FOR PUBLICATION

ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

ROSEMARY L. BOREK                             JOHN H. HASKIN
Stephenson Morow & Semler                     RYAN P. SINK
Indianapolis, Indiana                         Indianapolis, Indiana

                                                                       Apr 01 2013, 9:38 am
                             IN THE
                   COURT OF APPEALS OF INDIANA

FAYETTE COUNTY BOARD OF                       )
COMMISSIONERS,                                )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 21A04-1208-PL-434
                                              )
HOWARD PRICE,                                 )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE FAYETTE CIRCUIT COURT
                     The Honorable Gregory A. Horn, Special Judge
                           Cause No. 21C01-1103-PL-146


                                    April 1, 2013

                             OPINION – FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

       In this interlocutory appeal, Appellant/Defendant, the Fayette County Board of

Commissioners (Board), appeals the trial court’s denial of its motion for summary

judgment after the trial court concluded that the Board’s decision not to reappoint

Appellee/Plaintiff Howard Price (Price), as Director of Highway Operations was a quasi-

judicial decision that is subject to judicial review.

       We affirm.

                                            ISSUE

       Price raises one issue on appeal, which we restate as follows:      Whether the

Board’s decision not to reappoint Price as Director of Highway Operations was a quasi-

judicial decision, which is appealable to the Circuit Court pursuant to Indiana Code

section 36-2-2-27.


                         FACTS AND PROCEDURAL HISTORY

       After serving as Director of Highway Operations from 1991 through 2002, Price

was replaced in 2003. He was reappointed to the position in 2006 and served through

2010. At the January 4, 2011 public meeting, which Price attended, newly elected

Commissioner Barton Barker mentioned that he was concerned about problems within

the highway department. After discussing the concerns, the Commissioners agreed to

hold executive sessions on January 13 and 14, 2011, to further examine the issue. During

the January 13 session, the Board would meet with both union and nonunion employees,

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and during the January 14 session, the Board would meet with Price. The Board told

Price to attend the January 14 session. The Board also issued a memorandum to all

highway department staff setting forth the schedule for the two executive sessions, and a

notice to the union president stating that the purpose of the meeting was to get input from

employees about the future management of the highway department.

       During the January 13, 2011 executive session, the Commissioners asked the

union employees what was occurring at the highway department. Twelve employees told

the Board that Price showed favoritism and gave inconsistent directions. The highway

department foreman told the Commissioners that there were supervision problems at the

department but that part of the blame rested with the employees as well as the

Commissioners.

       The following day, Price answered the Commissioners’ questions on various

topics during a 60 to 90 minute executive session. Specifically, Price answered questions

about his medical condition, his military service and work experience, and problems he

had encountered with highway department employees. He complained that he needed the

Board’s help to get the workers to do their jobs. Price was given an opportunity to

answer all of the Board’s questions and to explain why he felt he was meeting

expectations as the Director of Highway Operations.

       At the next scheduled Board meeting on January 18, 2011, Commissioner

Breitenbach (Breitenbach) moved to reappoint Price as Director of Highway Operations.

The motion failed for a lack of a second. Price’s reappointment was not discussed until

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the next regularly scheduled meeting on February 8, 2011. Breitenbach again moved to

reappoint Price as Director of Highway Operations, pointing out that Price had recently

handled a weather emergency despite being short on equipment and employees.

Breitenbach also pointed out that Price never missed a day of work. Again, the Board

failed to second the motion. Instead, Barker moved to appoint an interim supervisor until

the position could be advertised and a replacement hired. Commissioner Pflum (Pflum)

seconded the motion, which passed.

      After the meeting, Price asked the commissioners why he had been terminated.

Pflum explained that his decision was based on his personal observations and the best

interests of the county’s taxpayers. According to Pflum, the highway department was not

as efficient as it could be. Pflum further explained that his decision was based upon

information learned in the executive sessions.     He also spoke to people driving on

country roads and citizens in the district. Breitenbach disagreed with the decision, and

stated for the record the reasons he believed that Price should have been retained as the

Director of Highway Operations.

      On March 1, 2011, Price filed a complaint against the Board in the Fayette Circuit

Court. Specifically, the complaint alleged that Price was bringing the original action and

appeal against the Board pursuant to Indiana Code section 36-2-2-27, requesting a de

novo hearing and review of the Board’s decision to terminate him. The Board filed a

motion to dismiss, which the trial court converted to a motion for summary judgment

following a hearing. The Board filed a summary judgment motion on December 2, 2011.

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The trial court held a hearing on the motion and denied it on March 8, 2012. Specifically,

the trial court concluded that:

       [T]he Fayette County Board of Commissioners provided [Price] and the
       union employees with prior notice of its executive sessions and general,
       open session pertaining to the employment of [Price] as county Highway
       Supervisor; the Board ascertained facts, heard witnesses, and determined
       the issue of whether or not to terminate the employment of [Price] as
       county Highway Supervisor; and, finally, the Board passed a motion to
       terminate [Price’s] continued employment as county Highway Supervisor –
       a decision that is enforceable by law. As such, the acts of the Board are
       quasi-judicial in nature and are subject to review. Accordingly, the [c]ourt
       finds that the Fayette County Board of Commissioners’ Motion for
       Summary Judgment must be denied.

(Appellant’s App. p. 373).

       The Board now appeals. Additional facts will be provided if necessary.

                              DISCUSSION AND DECISION

       The Board argues that the trial court erred in denying its motion for summary

judgment because the decision to terminate Price’s employment is not quasi-judicial in

nature. In reviewing a trial court’s ruling on summary judgment, we stand in the shoes of

the trial court, and apply the same standards in deciding whether to affirm or reverse

summary judgment. Warren v. Warren, 952 N.E.2d 269, 272 (Ind. Ct. App. 2011).

Summary judgment is appropriate if the designated evidentiary matter shows that there is

no genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law. Ind. Trial Rule 56(C). Our standard of review is not changed by the

trial court’s entry of findings of fact and conclusions thereon. C.M.L. ex rel. Brabant v.

Republic Services, Inc., 800 N.E.2d 200, 202 (Ind. Ct. App. 2003), trans. denied.

                                            5
Although the findings and conclusions provide valuable insight into the trial court’s

decision, they are not binding upon this court. Id.

         Further, the parties in this case agree that there is no disputed issue of fact and that

the question to be determined is a matter of law. We review questions of law de novo,

and therefore we owe no deference to the trial court’s conclusions. Simon Property

Group, L.P., v. Michigan Sporting Goods Distributors, Inc., 837 N.E.2d 1058, 1070 (Ind.

Ct. App. 2005), trans. denied

         Indiana Code section 36-2-2-27 provides that a “party to a proceeding before the

county executive who is aggrieved by a decision of the executive may appeal that

decision to the circuit court for the county.” Only “judicial” or “quasi-judicial” decisions

of the commissioners may be appealed. Great Lakes Transfer, LLC v. Porter County

Highway Department, 952 N.E.2d 235, 241 (Ind. Ct. App. 2011). The term “quasi-

judicial” or “judicial in nature” is used to designate a judicial function and to indicate that

it is being exercised by a person other than a judge. Lincoln v. Board of Commissioners

of Tippecanoe County, 510 N.E.2d 716, 721 (Ind. Ct. App. 1987), abrogated on other

grounds, McDillon v. Northern Indiana Public Service Company, 841 N.E.2d 1148 (Ind.

2006).

         Although it is difficult to define quasi-judicial power and to discriminate between

judicial and administrative acts in a way which will be applicable to every case, this court

has previously noticed it is the nature, quality, and purpose of the act performed, rather

than the name or character of the officer or board which performs it that determines its

                                                6
character as judicial. Id. Generally, the judicial function consists of: (1) the presence of

the parties upon notice; (2) the ascertainment of facts; (3) the determination of the issues;

and (4) the rendition of a judgment or final order regarding the parties’ rights, duties or

liabilities. Id.

       In Lincoln, the Board of Commissioners of Tippecanoe County affirmed Lincoln’s

discharge from her employment as a courthouse custodian. Id. Lincoln filed an appeal in

the Tippecanoe Circuit Court pursuant to Indiana Code section 36-2-2-27. Id. The Board

of Commissioners filed a motion to dismiss, which the trial court granted. On appeal,

this court noted that the Board of Commissioners provided notice to the parties, permitted

the parties to be represented by counsel, convened a formal hearing, took evidence,

judged the credibility of the witnesses and weighed the evidence, and then made a

decision to affirm the decision Lincoln’s discharge.         Id. at 721.     The Board of

Commissioners also adjudicated Lincoln’s challenge to her discharge and rendered a

decision against her. Id. at 721-22. Based on the foregoing, the Lincoln court concluded

that the Board was acting in a quasi-judicial capacity and that Indiana Code section 36-2-

2-27 therefore provided Lincoln the right to appeal the Board of Commissioners’ decision

to the circuit court. Id. at 722.

       Here, as in Lincoln, the Board provided notice to the parties, convened a hearing,

took evidence, judged the credibility of witnesses, weighed the evidence, ascertained the

facts, determined the issues, and rendered a judgment regarding Price’s position. The

Board was therefore acting in a quasi-judicial capacity and Indiana Code section 36-2-2-

                                             7
27 provides Price the right to appeal the Board’s decision to the Fayette Circuit Court.

See also Hyde v. Board of Commissioners of Wells County, 198 N.E. 333, 209 Ind. 245

(1935); Hastings v. Board of Commissioners of Monroe County, 188 N.E. 207, 205 Ind.

687 (1933).

                                    CONCLUSION

      Based on the foregoing, we conclude that the trial court did not err in denying the

Board’s motion for summary judgment.

      Affirmed.

BAKER, J. concurs

BARNES, J. concurs with separate opinion




                                           8
                                 IN THE
                      COURT OF APPEALS OF INDIANA



FAYETTE COUNTY BOARD OF                                   )
COMMISSIONERS,                                            )
                                                          )
        Appellant-Defendant,                              )
                                                          )
                vs.                                       )      No. 21A04-1208-PL-434
                                                          )
HOWARD PRICE,                                             )
                                                          )
        Appellee-Plaintiff.                               )


BARNES, Judge, concurring
        I concur with the majority’s decision that the trial court properly granted summary judgment

under the facts of this case. Given the Board’s quasi-judicial actions in terminating Price from his

position as Director of Highway Operations, the trial court properly determined that Price was entitled to

judicial review of the termination. I write separately to clarify that judicial review is not required in all

terminations of such positions. The Board subjected its determination to judicial review under Indiana

Code Section 36-2-2-27 by engaging in quasi-judicial actions when it terminated Price.


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