ILNews

Issue of fact exists in firefighter demotion

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals reversed a trial court grant of summary judgment because there is a genuine issue of fact as to why a firefighter was demoted.

In Jeffrey Kochis v. City of Hammond, Indiana, et al., No. 45A03-0709-CV-445, Kochis appealed the grant of summary judgment in favor of Hammond in his complaint that he had been demoted even though no charges had been filed against him and that he didn't receive due process.

Kochis had been a firefighter with the Hammond Fire Department since 1982 and worked as assistant fire chief/drillmaster at the time a new mayor took office in 2004. When Mayor Thomas McDermott took office, he named a new fire chief and assistant chief on Jan. 1, 2004. The new chief, David Hamm, demoted former Deputy Chief Michael Jakubczyk to assistant fire chief/drillmaster and demoted Kochis to captain. The city's Board of Public Works and Safety approved the changes.

Kochis filed a complaint, asking to be reinstated as assistant fire chief/drillmaster, receive back pay, and obtain other relief. He filed a motion for summary judgment, arguing that according to Indiana statute only the positions of chief and deputy chief were upper-level policy-making positions that didn't require due process in order for the holders of those offices to be demoted. Hammond argued Kochis' position as assistant fire chief/drillmaster was an upper-level policy-making position.

The city responded to his complaint saying the demotion was not based on a disciplinary reason, but for economic reasons, yet offered no evidence to explain the demotion further. Hammond also said that it had to reinstate Jakubczyk to the position of assistant fire chief/drillmaster, because that was the position he held before becoming deputy chief and Indiana Code 36-8-3.5-11(d) required the board to return him to the position he held before his appointment to deputy chief. Hammond also filed a motion for summary judgment.

The trial court agreed with Hammond and found the demotion of Jakubczyk was authorized by statute, which required Jakubczyk be returned to the position of assistant fire chief/drillmaster, thus causing a demotion for Kochis because there was no need for two people to perform this position. The trial court granted summary judgment in favor of Hammond.

Hammond erred in interpreting that I.C. section 36-8-3.5-11(d) required Jakubczyk to hold the same position he had before he was appointed deputy chief. The statute only speaks of the person's previously held rank, not the particular position he or she held, wrote Judge Carr Darden.

By law, Jakubczyk couldn't be reduced in grade to a rank below assistant chief, but evidence doesn't establish how many such positions were in the department or if any assistant chief positions were vacant. Also, there wasn't any evidence to show that Kochis was placed in the next available slot down the ladder, wrote Judge Darden.

Although Kochis' appeal asks the appellate court to grant him summary judgment on his complaint, the Court of Appeals ruled that neither party is entitled to summary judgment because a genuine issue of material fact exists for the basis of Kochis' demotion.

Hammond argued Kochis was demoted for economic reasons, not disciplinary reasons, and so he is not entitled to due process. An exception to the statute that calls for due process for police and fire personnel is if they are dismissed or demoted for economic reasons. However, Hammond's evidence to prove Kochis was demoted for economic reasons is scant, wrote Judge Darden, and because there is a genuine issue of fact, summary judgment shouldn't be granted to either party.

The case is remanded for further proceedings consistent with the opinion.
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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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