AGO 2005-01.

Case DateApril 05, 2005
CourtIndiana
Indiana Attorney General Opinions 2005. AGO 2005-01. April 5, 2005OFFICIAL OPINION 2005-1The Honorable Brent WaltzState House 200 West Washington StreetIndianapolis, Indiana 46204-2785 Re: Indiana Code section 36-8-4-6.5Dear Senator Waltz: You requested an opinion on the following question:
A city ordinance allows for the waiver of the requirement that an applicant for appointment to the positions of chief, assistant chief, or deputy chief of police have five years of continuous service (hereinafter "continuous service requirement"). The ordinance provides that the continuous service requirement may be waived "by majority vote of the common council on the request of the city executive." Does such an ordinance impermissibly conflict with Indiana Code section 36-8-4-6.5(c), which indicates that the continuous service requirement "may be waived by the city executive"?
Pursuant to duties under Indiana Code section 4-6-2-5, the Indiana Attorney General provides legal opinions to state officials upon request. The objective is to provide an unbiased overview of the correct application of the law. Opinions of the Attorney General are informational only and have no precedential effect. State Bd. of Tax Com 'rs. v. Methodist Home for Aged of the Ind. Cont of the Methodist Church, Inc., 241 N.E.2d 84,89 (Ind. App. 1968). If uncertainty exists concerning the executive or legislative nature of a duty or power within the government of a municipality, a petition may be filed in a local court where the court will determine the nature of the power and which branch of the municipality is authorized to exercise the duty or power. Ind. Code 36-4-4-5. Short Answer The legislature intended for all sections of Indiana Code chapter 36-8-4 to apply to all cities, even those cities with a merit system ordinance adopted under Indiana Code section 36-1-4-14. Under section 36-8-4-6.5, the legislature clearly intended to grant to the city executive the exclusive authority to waive the continuous service requirement for applicants for appointment to the positions of chief, assistant chief, or deputy police chief.' This grant of authority is consistent with other statutory provisions that place decisions regarding upper level policymaking positions solely with the city executive, without the need for approval or consent by the legislative branch of the city. The legislature has established a uniform procedure and explicit instruction to cities with regard to the method for waiving the continuous service requirement. A city ordinance, like that of the City of Greenwood, that deviates from the statute would impermissibly conflict with the statutory scheme set out by the legislature. Analvsis A. Merit Systems Indiana Code article 36-8 sets out a framework for local units of government to establish and operate law enforcement systems. Generally, a city's board of public safety administers its police and fire departments and appoints all employees of the police department except those in upper level policymaking positions. Ind. Code § 36-8-3-2 and -3. However, a city may choose to establish a merit (civil service) system under Indiana Code chapter 36-8-3.5. Merit systems are enacted to improve police departments by insuring that the tenure of police department members depends only on their ability to perform and that the members remain "free from political control." Coleman v. City of Gary, 44 N.E.2d 10 1, 106 (Ind. 1942). If a merit system is established, the city's merit commission has "exclusive authority over the appointment, discipline, demotion, promotion, and suspension of police officers," except for the appointment and removal of members in upper level policymaking positions who are appointed by the city executive. Warner v. City of Terre Haute, 30 F.Supp 2d 1107, 1122-23 (S.D. Ind. 1998). Prior to 1980, the state code contained various statutes for establishing police and fire department merit systems. See Ind. Code § 36-8-3.5-l(b). In 1981, the merit statutes were re-codified at Indiana Code chapter 36-8-3 and chapter 36-8-3.5 was added. Originally, chapter 3.5 indicated that the statutory...

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