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ATTORNEYS FOR APPELLANT
John H. Haskin Bradley L. Wilson Meghan U. Lehner John H. Haskin & Associates Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Mitzi H. Martin Susan W. Kline Brian R. Garrison Baker & Daniels, LLP Indianapolis, Indiana

______________________________________________________________________________

FILED
of the supreme court, court of appeals and tax court

Indiana Supreme Court
_________________________________ No. 94S00-1109-CQ-570 MARK J. THATCHER,

In the

Mar 06 2012, 8:48 am

CLERK

Plaintiff, v. CITY OF KOKOMO, ET AL., Defendants. _________________________________

Certified Questions from the United States District Court Southern District of Indiana No. 1:10-cv-101-WTL-TAB The Honorable William T. Lawrence, Judge _________________________________

March 6, 2012 Rucker, Justice.

This cause comes to us as a certified question from the United States District Court for the Southern District of Indiana. Pursuant to Indiana Appellate Rule 64, which allows

certification of questions of Indiana law for consideration by this Court, we have accepted the following questions: Does Indiana Code section 36-8-4-7(a) apply to a member of the 1977 Fund1 who

1)

is receiving disability benefits and who has been determined to have been recovered pursuant to 35 Indiana Administrative Code section 2-5-5(c)?

2)

If yes, does Indiana Code section 36-8-8-12(e) apply to determination of

eligibility under Indiana Code section 36-8-4-7(a), such that time spent receiving disability benefits counts toward "years of service" as that term is used in Indiana Code section 36-8-47(a)?

Facts and Procedural History Mark J. Thatcher ("Thatcher") served as a police officer for the City of Kokomo (the "City") beginning in 1980. After approximately four years on the job, Thatcher sustained a knee injury in the line of duty. Thatcher's injury rendered him unable to work, and he was placed on paid sick leave for six months. Thatcher applied for PERF disability benefits pursuant to his membership in the 1977 Fund. When Thatcher's paid sick leave expired in August 1984, Thatcher was placed on unpaid medical leave pending the resolution of his disability claim. Pl.'s App. at 175. During the pendency of Thatcher's disability claim, the chief of the City police department informed Thatcher that he would recommend to the Board of Public Works and Safety ("Board of Works")2 that Thatcher's "employment with the Kokomo Police Department be terminated" on December 10, 1984. Pl.'s App. at 176. Though the record is not entirely
The "1977 Fund" is a disability and pension fund for police officers and firefighters established by Indiana Code section 36-8-8-4 that is managed by the Indiana Public Employees' Retirement Fund ("PERF"). See Cert. to Ind. Sup. Ct. at 1 n.1.
1 2

The Board of Works has exclusive control over all matters relating to the Kokomo Police Department, including employment actions. Neither the police chief nor the local pension board have authority in this regard. Pl.'s App. at 120.

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clear, this appears to have been in response to the State Pension Board's initial denial of Thatcher's disability claim on November 8, 1984. On December 10, 1984, Thatcher requested that his unpaid leave be extended, apparently so he could appeal the Board's decision. Pl.'s App. at 177. The State Pension Board ultimately reversed its decision and granted disability benefits to Thatcher on May 22, 1985. Pl.'s App. at 178. On July 8, 1985, the Board of Works terminated Thatcher's medical leave with the notation that he is "now on disability pension." Pl.'s App. at 182-84. In 2008, due to advances in surgical techniques, Thatcher's knee was repaired and he asked the chief of police for reinstatement to active duty. The chief brought the issue to the November 13, 2008 meeting of the local pension board, which administers the City's participation in the 1977 Fund. Pursuant to its authority under Indiana Code section 36-8-8-13.7 to "[r]eview [a fund] member's impairment," the local board concluded that Thatcher should undergo a physical examination by a doctor of the board's choosing and then the board would revisit the matter. Pl.'s App. at 71. Thatcher underwent the examination and the physician submitted a written report to the local board. At its December 11, 2008 meeting, the board reviewed the report and found that "Officer Thatcher has been rehabilitated to the point where he is physically capable of performing these [sic] duties that may be required in the normal course of police work." Pl.'s App. at 78. The board voted to "reinstate Mark Thatcher and place him back on the active rolls and to send that information to the state PERF board for their recommendation." Pl.'s App. at 78. The local pension board then sent a letter to PERF, stating that it had completed a medical evaluation of Thatcher pursuant to Indiana Code section 36-8-813.7 and found him fit to return to duty. Pl.'s App. at 81. This letter was copied to the Board of Works. PERF responded on December 31, 2008 declaring, "The PERF medical authority

recommends that Mark Thatcher return to the Kokomo Police Department, with the restrictions that his position should not involve[ ] significant running and jumping. Please notify us in writing if there is a suitable position within the department that does not involve significant running and jumping." Pl.'s App. at 82. This action was consistent with the requirements of 35 Indiana Administrative Code section 2-5-5(c)(1), which provides, "[i]f there is a final determination that a disabilitant has recovered, the state board shall solicit a certification from

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the local authorities with regard to the existence of suitable and available work on the police or fire department."

However, the local pension board recommended to the Board of Works that Thatcher "not be offered a position" because "due to . . . fiscal constraints, the department has no available work at this time." Pl.'s App. at 83. In January 2009, the Board of Works notified PERF that no suitable work was available for Thatcher. The effect of this notification was to permit the continuation of Thatcher's disability benefits. See 35 Ind. Admin. Code 2-5-5(c)(2) ("Benefits will be terminated if suitable and available work on the police or fire department has been offered to the member."). This Rule also provides that "[a] recovered member returning to the same department will not be treated as a new applicant and will not be subjected to the application process for new members in the fund." 35 I.A.C. 2-5-5(c)(3). The Board of Works further notified PERF that "[s]hould a suitable position become available with the Department this Board will see that Mr. Thatcher is properly notified and given the opportunity to accept that assignment." Pl.'s App. at 84. Thatcher then filed a Charge of Discrimination with the EEOC claiming that the City of Kokomo had discriminated against him on the basis of age

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