Preview:

FOR PUBLICATION

ATTORNEY FOR APPELLANT: ANDREW P. WIRICK Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: JOHN F. KAUTZMAN M. ELIZABETH BEMIS Ruckelshaus, Roland, Kautzman Blackwell & Hasbrook Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CITY OF KOKOMO, INDIANA, Appellant-Defendant, vs. SCOTT KERN, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 34A04-0512-CV-726

APPEAL FROM THE HOWARD CIRCUIT COURT The Honorable Lynn Murray, Judge Cause No. 34C01-0507-PL-632

August 17, 2006

OPINION - FOR PUBLICATION

BAILEY, Judge

Case Summary Appellant-Defendant City of Kokomo appeals a judgment reversing the decision of the Kokomo Board of Public Works and Safety ("the Board") to demote Appellee-Plaintiff Scott Kern ("Kern") from his position as a captain of the Kokomo Fire Department ("the Fire Department") to that of firefighter because of public statements made by Kern. We reverse.1 Issue The City of Kokomo presents two issues for review, which we consolidate and restate as the following issue: whether the trial court erroneously found that the Board's decision to demote Kern constituted a violation of his First Amendment right to free speech. Facts and Procedural History In 1989, the Fire Department hired Kern as a firefighter. In 1996, Kern was promoted to the rank of captain. 2 In 2004, Kern was living in the Willowridge subdivision of Kokomo. For several years, Willowridge residents had organized and presented Fourth of July fireworks displays for the neighborhood. During June of 2004, Kokomo Fire Chief David Duncan ("Chief Duncan") received an anonymous complaint that Willowridge residents had set up donation boxes to obtain contributions for a July 2004 fireworks display. Chief Duncan contacted Kern and advised Kern that a fireworks permit would be necessary, pursuant to Indiana Code Section 22-11-

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Oral argument was conducted on July 18, 2006, in the Indiana Court of Appeals courtroom. We thank counsel for their advocacy. Kern received one interim promotion, also in 1996.

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14-2. 3

Kern responded that he would contact the community members involved in

organizing the fireworks display. Several days later, Chief Duncan received a copy of a flyer soliciting donations for a Fourth of July fireworks display to be held at Willowridge. Kern was listed as one of the contact persons. Chief Duncan mailed certified letters to each of the named individuals, including Kern, advising them that conducting a fireworks display without a permit would be a violation of law. Ron Herrell ("Herrell"), a retired Fire Department inspector and then an Indiana State Representative, volunteered to investigate. He then contacted the State Fire Marshall, who ostensibly advised that a permit should be obtained for a fireworks display using large fireworks, but that it was possible to obtain an expedited permit, and that "[the Chief] better have a reason to deny it." (App. 105.) Herrell contacted Chief Duncan to discuss the situation. Chief Duncan indicated that he did not know that he would make an exception for a fireman by granting an expedited permit and that he "didn't owe Kern any favors" because Kern had opposed Pat Donohue in the primary election for mayor. (App. 106.)

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Indiana Code Section 22-11-14-2 provides in pertinent part: (a) The fire prevention and building safety commission may: (1) adopt rules under IC 4-22-2 for the granting of permits for supervised public displays of fireworks by municipalities, fair associations, amusement parks, and other organizations or groups of individuals; and (2) establish by rule the fee for the permit, which shall be paid into the fire and building services fund created under IC 22-12-6-1. (b) The application for a permit required under subsection (a) must: (1) name a competent operator who is to officiate at the display; (2) set forth a brief resume of the operator's experience; (3) be made in writing; and (4) be received with the applicable fee by the office of the state fire marshal at least five (5) business days before the display.

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Kern obtained an application for a fireworks permit from the State Fire Marshal's office and brought the partially completed application to a June 30, 2004 meeting with Chief Duncan. The permit application listed Kern's name, telephone number, address, and signature. It also included an aerial photograph of the Willowridge subdivision, indicating the drop zone and area from which the fireworks would be launched. The application did not list the name of the fireworks shooter, nor did it include a listing of fireworks sizes and types or a Certificate of Insurance. Kern and Chief Duncan discussed, but did not resolve, the issue of whether Kern's homeowner's policy served as adequate insurance because the fireworks would be launched from his property. Chief Duncan advised Kern that he would not approve an incomplete permit application. The planned fireworks display was cancelled. Subsequently, the Kokomo Tribune and the Kokomo Perspective published articles about the cancellation. In an article published by the Kokomo Tribune, Kern was quoted as saying, "I don't mind if someone has a personal vendetta against me. I don't mind confrontation. But I do mind when it hurts the people of the neighborhood. I think the city is abusing its power." (App. 116.) The same article included Chief Duncan's denial that Kern submitted the proper documents to obtain a fireworks permit. On July 7, 2004, in an article published by the Kokomo Perspective, Kern admitted, "We never got licensed." (App. 118.) The Perspective further quoted Kern as saying, "We completed the rest of the process, and the state fire marshal told us there was no reason why our permit couldn't be signed. But the Chief dragged his feet." (App. 118.) On July 11,

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2004, the Kokomo Tribune published a letter signed by Kern and two other members of the "Fireworks Committee." In part, the letter provides, It would be nice if they took as much interest in getting their equipment in better working order instead of wasting taxpayer dollars and spending so much time trying to shut down our fireworks show. We would like to think that this has no political strings attached to it, but I think we would be sadly mistaken if we thought that way. . . . I guess that's what we get for our tax dollar. Living in perhaps the highest tax rate zone in the city is an old run-down fire truck for our so-called fire protection and a side of harassment from the fire department for good measure. (App. 119.) On August 9, 2004, Chief Duncan filed a professional standards complaint initiation form against Kern, alleging violations of the Fire Department Rules and Regulations. On November 20, 2004, the Kokomo Fire Department Board of Chiefs convened, reviewed written documents, and recommended that Kern receive a written reprimand and time off. On February 28, 2005, Chief Duncan presented charges against Kern to the Board, alleging violations of Fire Department Rules and Regulations Article 3.01 (Conduct Unbecoming an Officer) and Article 5.09 (Failure to Keep Supervisors Informed). 4 Kern timely requested a hearing, and hearings were conducted on March 28 and April 1, 2005. Chief Duncan requested that Kern be demoted from Captain to firefighter, receive a thirtyday suspension, and be prohibited from Fire Department property during the suspension.

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Article 3.01 provides: "Department employees shall conduct themselves in a way that reflects most favorably on the Department. Conduct unbecoming a member shall include that which brings the Department into disrepute, or reflects discredit upon the member as a representative of the Department, or that which impairs the operation or efficiency of the Department or its members." Article 5.09 provides: "All personnel shall keep their supervisors informed of any unusual activity, situation, or problem, with which the Department would be reasonably concerned. These activities may include: Personnel taking drugs on the job, gambling, unsafe working conditions, or illegal activities of any kind."

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On June 20, 2005, the Board issued its Findings of Fact, Conclusions of Law, and Final Determination, finding that Kern violated Article 3.01 (Conduct Unbecoming an Officer) but that there was insufficient evidence that Kern violated Article 5.09 (Failure to Keep Supervisors Informed). In pertinent part, the Board found: "Captain Kern brought the Department into disrepute, misled the public and residents of his neighborhood as to the reasons for the denial of the permit application, and undermined the public's confidence in the Department." (App. 29.) Kern was demoted to the rank of firefighter. On July 15, 2005, Kern filed a Verified Petition for Judicial Review in the Howard Circuit Court. Oral argument was heard on October 6, 2005. On December 7, 2005, the trial court entered its Findings of Fact, Conclusions of Law, and Order finding that the Board decision was contrary to law, and ordering Kern's reinstatement as a Captain. This appeal ensued. Discussion and Decision A. Standard of Review Judicial review of an administrative determination is limited to determining whether the administration possessed jurisdiction of the subject matter, whether the administrative decision was made pursuant to proper procedures, was based upon substantial evidence, was not arbitrary or capricious, and was not in violation of any constitutional, statutory or legal principle. Rynerson v. City of Franklin, 669 N.E.2d 964, 971 (Ind. 1996). The court reviewing an administrative determination may not determine questions of credibility or weigh conflicting evidence and choose that which it sees fit to rely upon in determining whether there was substantial evidence to support an administrative action. Id. 6

B. Analysis The City of Kokomo challenges, as contrary to law, the trial court's conclusion that the demotion must be reversed because Kern was exercising his right of free speech under the First Amendment to the United States Constitution. The trial court applied the Connick/Pickering test to Kern's speech. See Connick v. Myers, 461 U.S. 138 (1983) (holding that a deputy district attorney's discharge did not offend the First Amendment, after she exercised her rights to speech at the office); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968) (holding that, absent proof of false statements knowingly or recklessly made, a teacher's exercise of his right to speak on issues of public importance may not form the basis for his discharge). Pickering requires determining whether the employee spoke as a citizen on a matter of public concern. Id. at 568. If so, the question becomes whether the government employer had an adequate justification for treating the employee differently from any other member of the general public. Id. According to Connick, a governmental entity has broader discretion to restrict speech when it acts as an employer, but the restrictions imposed must be directed at speech that has some potential to affect its operations. 461 U.S. at 151-52. "[The Court's] responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government; this does not require a grant of immunity for employee grievances not afforded by the First Amendment to those who do not work for the state." Connick, 461 U.S. at 147. Recently, the United States Supreme Court again addressed the free speech rights of a public employee, expounding upon the Connick and Pickering decisions in the context of a

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