 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing                  Nov 21 2013, 10:19 am
 the defense of res judicata, collateral
 estoppel, or the law of the case.



ATTORNEY FOR APPELLANTS:                          ATTORNEY FOR APPELLEES:

MACARTHUR DRAKE                                   CLORIUS L. LAY
Gary, Indiana                                     Gary, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

KEITH ELLER, NATHANIEL HALL, and                  )
JEFFERY TATUM,                                    )
                                                  )
       Appellants-Plaintiffs,                     )
                                                  )
               vs.                                )        No. 45A04-1212-PL-662
                                                  )
CITY OF GARY, GARY POLICE CIVIL                   )
SERVICE COMMISSION, and VERGIE                    )
THORNTON,                                         )
                                                  )
       Appellees-Defendants.                      )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                            The Honorable John R. Pera, Judge
                              Cause No. 45D10-0909-PL-112


                                       November 21, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Keith Eller, Nathaniel Hall, and Jeffery Tatum (collectively, Appellants) appeal the

trial court’s denial of their motion for summary judgment and its grant of the City of Gary,

the Gary Police Civil Service Commission, and Vergie Thornton’s (collectively, the City)

motion for summary judgment.

       We affirm in part, reverse in part, and remand.

       At least every two years, officers of the Gary Police Department may compete for

placement on an eligible promotional list. Ranking on the list is based on an officer’s written

exam score, performance record, length of service, oral interview, recognition for exemplary

conduct, and past disciplinary actions. Officers who have been in their current rank for at

least two years may take the written exam. To be interviewed, officers must achieve at least

a minimum passing score on the written exam. Officers are promoted, as needed, in order of

their ranking on the eligible promotional list, which expires after two years.

       Pursuant to Gary Ordinance 5881 and its amendments, the Gary Police Civil Service

Commission (the Commission) has adopted Rules to Govern Police Officers and Rules of

Procedure (the Rules). Section V of the Rules is entitled Rules and Regulations Concerning

Promotions and Demotions. Relevant to this case are the following paragraphs:

       7.     The name and any means of identification of any member taking this
       competitive or qualifying examination…shall be withheld and made
       unavailable to the person or persons grading the examination and all written
       competitive examinations shall be treated and filed as confidential.
       8.     Any member aggrieved with the grade received on the written
       competitive examination shall have the right to appeal in writing to the
       Commission for a review of the grade within ten (10) days after the notice of
       the grade has been sent to him. The Commission, after reviewing the grade
       and the examination papers, shall have the authority to affirm the grade or to
       correct the grade according to the findings of the review.

                                              2
Appendix at 39.

        Officers Eller and Hall participated in the promotional process in 2006 and took the

written exam on June 17, 2006. On July 20, 2006, both officers were sent letters indicating

that they had failed the exam.1 Hall sent a letter to the Commission on July 6, 2007,

requesting an appeal, and Eller sent a similar letter on July 7.2 Although the appeal letters

were placed in the respective officer’s file, only Hall’s was file-stamped by the administrator,

Virgie Thornton, and processed.

        Thereafter, Hall received a letter from the Commission indicating that his appeal was

scheduled for September 22. On that date, he (and other officers) met with a representative

of Stanard & Associates, Inc. (Stanard), a private contractor from Chicago hired to conduct

all aspects of the written examination. After this meeting, Hall sent another letter to the

Commission setting out the specific grounds for his appeal and requesting a hearing before

the Commission.

        On October 11, Stanard sent a letter to the Commission setting out the nature of Hall’s

appeal and recommending that the promotional list stand and that no adjustment be made to

Hall’s score. Thereafter, at the November 2006 Commission meeting, the Commission

accepted the recommendations of Stanard “as a final decision” of Hall’s appeal and notified



1 The City incorrectly asserts throughout its appellate brief that the written grade notifications were sent to
Eller and Hall on June 20, 2006. At the summary judgment hearing, the City was similarly confused regarding
the date of the notification letters, indicating that the letters went out July 6.
2
  It appears that the officers’ appeal requests were sent after test results were unofficially posted and before the
result letters were mailed.


                                                         3
him by letter on December 5, 2006. Id. at 101.

        Despite the denial of his appeal, Hall ended up on the 2006 promotional list for

lieutenant. This occurred because the Commission voted at its October meeting to “accept

the re-scoring of the 2006 promotion examination”, which resulted in fifty-eight additional

officers passing at various ranks.3 Id. at 42. The promotional list for lieutenant that included

Hall’s name was issued on January 4, 2007. The rescoring, however, did not result in Eller

making it onto the promotional list for sergeant, and Hall was not ultimately promoted from

the list before it expired.

        On September 6, 2007, Eller and Hall, by counsel, requested to review the originals of

their respective exam responses and scores. The Commission responded, by counsel,

denying the request and indicating that the exams were confidential and that the Rules do not

provide for review of the examination papers by the examinee.

        Officer Tatum took the promotional exam for sergeant on September 20, 2008 and

was notified nine days later that he had not passed. On October 3, Tatum sent a letter to the

Commission requesting that the SOP section of the exam be thrown out due to faulty study

materials. He directed the Commission to the rescoring that occurred with respect to the

2006 exam and sought similar treatment.                  After further communications with the

Commission, Tatum sent another demand letter on November 15, 2008 along with supporting

documentation that the “SOP disc that was giving [sic] out for the Sergeant promotional


3
  The rescoring was due to a determination that study materials for the SOP section of the exam had not been
properly disseminated to all officers. Accordingly, exam scores were recalculated after providing each
candidate with full credit for this section of the exam.


                                                     4
exam [was] defective.” Id. at 39. The Commission responded on January 30, 2009 and

informed Tatum that he would not have passed even if the SOP section of the exam was not

counted. On April, 24, 2009, by counsel, Tatum sent another letter to the Commission and

requested recalculation of his exam score based upon giving him full credit for the SOP

section. The Commission denied the request, and Tatum sent another letter, on July 27,

2009, requesting rescoring similar to the full-credit adjustment the Commission had made for

the 2006 exam. At its August meeting, the Commission referred the matter to counsel.

       On September 18, 2009, Eller, Hall, and Tatum filed a complaint against the City

seeking damages, declaratory judgment, and injunctive relief. Specifically, Appellants

sought “to be promoted, with back pay, to the ranks to which they would have had the

opportunity to be promoted had the…deprivation of their rights not occurred.” Id. at 26.

       On December 9, 2009, Appellants filed a petition for a preliminary injunction in an

attempt to stop a promotional exam for the rank of sergeant from being conducted on

December 19. Following a hearing, the trial court denied the injunction request.

       The City filed a motion for summary judgment in January 2011, and Appellants

responded with a cross-motion for summary judgment. Among other evidence, Appellants

designated affidavits from Eller, Hall, and Tatum. The City moved to strike several

paragraphs from each affidavit, which motions the trial court granted in May 2011.

       The trial court conducted the summary judgment hearing on March 13, 2012. The

matter was taken under advisement. On November 27, 2012, the court issued its order

summarily denying Appellants’ motion for summary judgment and granting the City’s


                                             5
motion for summary judgment. Appellants now appeal.

        On appeal, Appellants claim that the Commission failed or refused to process their

appeals and refused to allow them access to their exam materials for review.4 Accordingly,

Appellants contend that they were entitled to summary judgment as opposed to the City.

        Our standard of reviewing a summary judgment ruling is well settled and the same as

that employed by the trial court. Summary judgment is appropriate only when the designated

materials demonstrate that there is no genuine issue of material fact and the moving party is

entitled to a judgment as a matter of law. See Ind. Trial Rule 56(C); Austin v. Vanderburgh

Cnty. Sheriff Merit Comm’n, 761 N.E.2d 875 (Ind. Ct. App. 2002). “When reviewing the

designated materials, we are mindful that all facts and reasonable inferences drawn therefrom

are construed in favor of the nonmoving party. We carefully review summary judgment

rulings to ensure that the parties were not improperly denied their day in court.” Id. at 879

(citation omitted). The fact that the parties made cross-motions for summary judgment does

not alter our review, as we consider each motion separately to determine whether the moving

party is entitled to judgment as a matter of law. Mahan v. Am. Standard Ins. Co., 862 N.E.2d

669 (Ind. Ct. App. 2007), trans. denied. Finally, “[a] trial court’s grant of summary judgment

arrives on appeal cloaked with a presumption of validity, and the appellant bears the burden

of demonstrating that the grant of summary judgment was erroneous.” Amaya v. Brater, 981


4 Without any true analysis, Appellants also claim that the trial court erred when it struck paragraphs from
each of their individual affidavits, which were designated below in support of their summary judgment
motions. The trial court struck the paragraphs in May 2011 and the summary judgment hearing was not held
until March 2012, with the summary judgment order issuing November 2012. There is no indication in the
record that Appellants ever objected to the City’s motions to strike or the granting of said motions. Regardless,
the stricken paragraphs have no effect on our determinations on appeal.

                                                       6
N.E.2d 1235, 1239 (Ind. Ct. App. 2013), trans. denied.

       This case involves the interpretation of an ordinance and rules adopted by the

Commission. In Indiana, the rules of statutory construction apply in construing an ordinance.

Kaser v. Barker, 811 N.E.2d 930 (Ind. Ct. App. 2004), trans. denied. Further, rules adopted

by a police civil service commission have the force and effect of law. Coleman v. City of

Gary, 44 N.E.2d 101 (Ind. 1942).

       The foremost objective in statutory interpretation is to determine and effect legislative

intent. In re Guardianship of A.J.A., 991 N.E.2d 110 (Ind. 2013). We examine and interpret

a statute as a whole, giving words their common and ordinary meaning. Id.

       A court, in a proper action, may investigate the acts of a civil service commission to

determine if such acts have been arbitrary, capricious, fraudulent, or illegal. Coleman v. City

of Gary, 44 N.E.2d 101. “Such an investigation by the court is for the purpose of

determining whether the commission acted within its legal jurisdiction.” Id. at 105. In other

words, our review of administrative decisions is “constrained to a determination of whether

the administrative agency lacked subject matter jurisdiction or employed improper

procedures, or whether the decision was unsupported by substantial evidence or was

arbitrary, capricious, or in violation of constitutional, statutory or legal principles.” Parlow v.

Ind. Family & Social Servs. Admin., 717 N.E.2d 1212, 1214 (Ind. Ct. App. 1999).

       We initially address Appellants’ claim that the exam papers were required by

ordinance to be made part of their permanent personnel files to which they should have had

access at any time. This argument ignores an amendment to the applicable ordinance.


                                                7
       Gary Ordinance 5881 was substantially amended in 1991. Relevant to the instant

appeal, Section 5 dealing with promotions, rules, examinations, and review of grades was

rewritten “to accurately reflect legislative intent”. The Exhibits, Tab 46 at 1. Subsection b of

this section previously provided in part:

       The name or any means of identification of any member taking this
       competitive or qualifying examination…shall be withheld and made
       unavailable to the person or persons who grade the examinations and all
       written competitive examinations shall be treated and filed as confidential.
       Examination papers shall be made a part of the permanent filed [sic] of the
       individual officer taking the examination and they shall be retained in the
       chief’s office or police headquarters and shall be maintained under the
       supervision of the chief of police and the individual officer shall have access to
       this file to examine it at any time. The commission shall notify each member,
       in writing, of the grade which the member received on the examination.

The Exhibits, Tab 22. This provision was recodified as subsection B(1) and rewritten as

follows:

       The name or any means of identification of any member taking this
       competitive or qualifying examination…shall be withheld and made
       unavailable to the person or persons who grade the examinations shall [sic] be
       treated and filed as confidential. The commission shall notify each member in
       writing of the grade which the member received on the examination.

The Exhibits, Tab 46 at 2 (emphasis in original).

       The ordinance upon which Appellants rely no longer requires exams to be retained in

a member’s personnel file for review by the member. This portion of the original ordinance

was omitted from the 1991 recodification and the confidential nature of the exams was

emphasized. Accordingly, summary judgment was properly entered against Appellants on

their claim for declaratory judgment regarding an alleged right under the ordinance to review

their exam papers.

                                               8
        We now turn to Appellants’ claim that they were denied an appeal of their individual

test scores. In this regard, it is important to recognize that Appellants are not similarly

situated. The undisputed evidence indicates that Eller did not get an appeal. Hall and Tatum,

on the other hand, received some sort of review of the exams, although they contend that the

appeal provided by the Commission was not sufficient under the Rules.

        The Rules unquestionably grant a member the right to appeal his or her exam score.

As set out above, section V, paragraph 8 of the Rules provides:

        Any member aggrieved with the grade received on the written competitive
        examination shall have the right to appeal in writing to the Commission for a
        review of the grade within ten (10) days after the notice of the grade has been
        sent to him. The Commission, after reviewing the grade and the examination
        papers, shall have the authority to affirm the grade or to correct the grade
        according to the findings of the review.

Appendix at 39.5

        Contrary to Appellants’ unsupported assertion, this rule does not guarantee a right to a

hearing before the Commission. The rule simply provides that upon appeal by an aggrieved

member, the Commission shall have the authority to affirm the grade or to correct it after

reviewing the grade and exam papers.6 The rule sets up no particular requirements for the



5
  Ordinance 5881, as amended by Ordinance 6545-A, similarly provides in § 5(B)(a) for an aggrieved
member’s right to appeal and grants the Commission “authority to affirm the grade or to correct the grade
according to the findings of review”. The Exhibits, Tab 46 at 3. Although the ordinance sets out a right to
appeal to the Commission, it says nothing about a right to a hearing.
6
  This is in stark contrast to the detailed rules and procedures governing disciplinary actions. The Rules
expressly require an evidentiary hearing before the Commission or a hearing officer in disciplinary actions.
See § II, Rule 10 of the Rules. Further, where the disciplinary hearing was before a hearing officer, the Rules
provide for an appeal to the Commission of the hearing officer’s recommendation. If a timely appeal of a
hearing officer’s decision is initiated, “the Commission shall then set the matter for a hearing on the record
before the Commission.” § II, Rule 28(A)(4)(b) of the Rules.


                                                      9
review procedure utilized by the Commission in this regard. Moreover, Appellants provide

us with no cogent argument to support their assertion that the Commission is precluded from

seeking an advisory opinion from Stanard regarding appeals by members of their exam

scores. In fact, the Rules (section III, paragraph 9) grant the Commission authority to

“delegate to its employees such ministerial and non-discretionary functions as are necessary

for the effective and efficient performance of its duties”. The Exhibits, Tab 22 at 25.

          The appeals procedure (or at least one of them) employed by the Commission was for

Stanard to conduct a meeting with aggrieved members and then offer a recommendation to

the Commission. The Commission was, of course, free to accept or reject Stanard’s

recommendation and could schedule a hearing before the Commission if it felt such was

necessary. In sum, the record reflects that the Commission, not Stanard, made the ultimate

decisions regarding appeals. Appellants have wholly failed to establish that this process

violates the Rules or Ordinance 5881, as amended.

          Accordingly, we conclude as a matter of law that Hall received the appeal due him

under the Rules. The Commission employed the assistance of Stanard to assess the merits of

Hall’s appellate claims and then, at the November 2006 Commission meeting, accepted

Stanard’s recommendations as the “final decision” of the Commission. Appendix at 101.

The Commission notified Hall of this decision with a letter dated December 5, 2006. Hall,

however, did not seek judicial review until September 2009.7 The trial court properly granted

summary judgment in favor of the City and against Hall on his claim that he was denied an


7
    Neither party addresses the timeliness of the complaint for judicial review.


                                                       10
appeal of his exam score.

        Turning to Tatum, the record reveals that his appeal was addressed by the Commission

through correspondence and at several monthly meetings. There is no merit to his claim that

the Commission ignored his appeal or that he was not provided with an appeal. Moreover, it

is not clear that the Commission ever reached a final decision regarding his appeal. In fact,

the record indicates that at its August 2009 meeting, the Commission referred the matter of

Tatum’s July letter (requesting rescoring similar to the full-credit adjustment made in 2006)

to counsel. Tatum sought judicial review the following month, before any response from the

Commission. In any event, the Commission did not ignore Tatum’s appeal.8 Tatum has

failed to demonstrate that the grant of summary judgment in favor of the City was erroneous.

        Appellants emphasize that “[t]hey claim only that they had a right to appeal the scores

on their test for their respective promotions.” Appellants’ Brief at 14. As set out above, they

clearly had this right under the Rules. Hall and Tatum were provided an appeal to the

Commission; Eller was not. The designated evidence indicates that Eller timely filed an

appeal with the Commission, which, for whatever reason, was not processed.

        The City argues that regardless of whether Eller’s appeal was timely filed, he had no

right to judicial review of the exam and appeal procedure because he did not have a

constitutionally protected property interest in being placed on the eligible promotional list.



8 To the extent Tatum argues that his “equal treatment claim”, Appellant’s Brief at 15, should have survived
summary judgment, we find the issues waived for failure to present cogent argument. See Maggert v. Call,
817 N.E.2d 649 (Ind. Ct. App. 2004). Furthermore, we observe that there is absolutely no evidence in the
record that Tatum was treated any differently than the other members who took the 2008 exam.


                                                    11
The City relies on Austin v. Vanderburgh Cnty. Sheriff Merit Comm’n, 761 N.E.2d 875, but

Austin is inapposite. In that case, the appellant claimed a violation of his constitutional due

process rights when he was removed from a sheriff’s department eligibility list for

promotion. We concluded that summary judgment was properly entered against appellant on

his constitutional claim that he had protected property interest in having his name included on

the list.

        Here, Eller is not asserting a constitutional due process claim that he had a right to be

included on the eligible promotion list. He is simply arguing that the Commission did not

provide him with an appeal of his exam score as required under the Rules and the applicable

ordinance. In other words, Eller claims rights only to the extent provided by rule and

ordinance, not constitutional due process rights based on a protectable property interest.

        The trial court erred by entering summary judgment against Eller. The evidence

establishes as a matter of law that the Commission failed to provide him with an appeal of his

2006 exam scores, despite a timely written appeal. We, therefore, remand to the trial court

for further proceedings on Eller’s judicial review action, including review of the timeliness

of said action under the applicable ordinance and other considerations, such as laches, and, if

necessary, a determination of the appropriate remedy.

        In sum, we affirm the grant of summary judgment against Hall and Tatum and reverse

the grant of summary judgment against Eller. We further determine as a matter of law that

the Commission violated its own rules, as well as local ordinance, when it failed to process

Eller’s appeal of his exam score. The Commission, however, did not violate its rules when it


                                               12
denied Eller’s request to review his written exam. We remand this cause to the trial court for

further consideration of Eller’s complaint.

       Judgment affirmed in part, reversed in part, and remanded.

BAKER, J., and VAIDIK, J., concur.




                                              13
