COA: Fired deputy marshal wrongly denied hearing

October 4, 2018

The Indiana Court of Appeals reversed a decision that found a deputy town marshal was not entitled to a hearing following his employment termination.

In late April 2017, Joseph Budner, a full-time deputy Town Marshal for the North Judson Police Department, took several weeks of leave from his job due to a medical condition.

Several months after his 12 weeks of leave were up, Budner was released from employment for failing to respond to requests for proof of his medical clearance and warnings of replacement due to staffing concerns.

Three days after his Aug. 25 release, Budner requested a hearing regarding his discharge pursuant to Indiana Code Section 36-8-3-4. The NJPD denied his request and Budner filed a petition for judicial review naming the town as the respondent. The Starke Circuit Court subsequently granted the town’s motion to dismiss Budner’s petition under Trial Rule 12(B)(6) alleging that Budner was not entitled to a hearing.

On appeal, Budner contended that a hearing was mandatory because he requested it as required within five days of his termination notice.

The appellate court agreed and held that Budner was entitled to a hearing when it found that the town terminated Budner’s employment due to his incapacity and absence without leave, “both explicitly delineated in subsection (b)(2) of the statute.” 

In its decision, the appellate court noted that in Cook v. Atlanta, Indiana Town Council, it rejected a town council’s argument that Indiana Code Section 36-8-3-4 applied only to a town marshal’s termination for disciplinary reasons.

The appellate court held in Cook that the Atlanta town council was not free to terminate Cook’s employment as its town marshal without conducting the removal and appeals procedure “prescribed by Ind. Code [Art.] 36-8 and adhering to the requirements of subsections (b) through (l) of Ind. Code § 36-8-3-4.”

“Here, given the plain language of Indiana Code Section 36-8-3-4 and our opinion in Cook, we hold that Budner was entitled to a hearing regarding the termination of his employment,” Judge Edward Najam wrote for the court. “We reverse the trial court’s dismissal of Budner’s petition for judicial review for failure to state a claim upon which relief can be granted and remand for further proceedings.”

The case is Joseph Budner v. Incorporated Town of North Judson, Indiana, 18A-MI-984. 







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