ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
John H. Haskin Mitzi H. Martin
Bradley L. Wilson Susan W. Kline
Meghan U. Lehner Brian R. Garrison
John H. Haskin & Associates Baker & Daniels, LLP
Indianapolis, Indiana Indianapolis, Indiana
FILED
______________________________________________________________________________
Mar 06 2012, 8:48 am
In the
CLERK
Indiana Supreme Court of the supreme court,
court of appeals and
tax court
_________________________________
No. 94S00-1109-CQ-570
MARK J. THATCHER,
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:
1) Does Indiana Code section 36-8-4-7(a) apply to a member of the 1977 Fund1 who
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 36-8-4-
7(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
1
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.
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.
2
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 36-8-8-
13.7 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 – Thatcher
was 49 years old at the time he requested reinstatement – and disability.
In December 2009, as a result of receiving a federal grant, the City decided to hire three
new police officers. At that time, the Kokomo city attorney advised the Board of Works that, in
his opinion, Thatcher could not be reinstated because of the following statutory prohibition:
A person may not be appointed as a member of the police
department or fire department after the person has reached thirty-
six (36) years of age. A person may be reappointed as a member
of the department only if the person is a former member or a
retired member not yet receiving retirement benefits of the 1925,
1937, 1953, or 1977 fund and can complete twenty (20) years of
service before reaching sixty (60) years of age.
Ind. Code § 36-8-4-7(a); Pl.’s App. at 190. Thatcher was 50 years old at this time and had
completed four years of service on the police department.
4
Thatcher brought claims in federal district court against the City and the Kokomo Police
Department (“KPD”) under the Age Discrimination in Employment Act (“ADEA”) and the
Americans with Disabilities Act (“ADA”).3 The federal district court determined that resolution
of the defendants’ motion for summary judgment involved unanswered questions of Indiana law,
which it certified to this Court and we accepted.
Discussion
Our analysis of this matter requires us to interpret various sections of the Indiana Code.
When a statute has not previously been construed, the express language of the statute controls the
interpretation and the rules of statutory construction apply. Livingston v. Fast Cash USA, Inc.,
753 N.E.2d 572, 575 (Ind. 2001). “Clear and unambiguous statutes leave no room for judicial
construction.” Basileh v. Alghusain, 912 N.E.2d 814, 821 (Ind. 2009). But when a statute is
susceptible to more than one interpretation it is deemed ambiguous and thus open to judicial
construction. Id.
As a threshold matter we note that Indiana Code title 36 is entitled “Local Government.”
Article 8 of this title is entitled “Public Safety.” Chapter 4 of this article is entitled “Police and
Fire Employment Policies in Cities” (the “Employment Chapter”) and Chapter 8 of the Public
Safety article is entitled “1977 Police Officers’ and Firefighters’ Pension and Disability Fund”
(the “1977 Fund Chapter”). Title 35 of the Indiana Administrative Code is entitled “Board of
Trustees of the Public Employees’ Retirement Fund,” Article 2 of this title concerns the “Police
and Firefighters’ Pension and Disability Fund (1977 Fund),” and Rule 5 of this article governs
“Disability Benefits.”
The first question before us concerns application of one sentence of Indiana Code section
36-8-4-7, or what Thatcher refers to as the “Reappointment Statute”:
A person may be reappointed as a member of the department only
if the person is a former member or a retired member not yet
receiving retirement benefits of the 1925, 1937, 1953, or 1977 fund
3
Thatcher originally asserted several other claims, which he voluntarily dismissed.
5
and can complete twenty (20) years of service before reaching
sixty (60) years of age.
I.C. § 36-8-4-7(a). This section also provides, “A person must pass the aptitude, physical agility,
and physical examination required by the local board of the fund and by IC 36-8-8-19 to be
appointed or reappointed as a member of the department.” I.C. § 36-8-4-7(c).
Thatcher argues that this statute does not apply to him because, according to Thatcher’s
interpretation of another section of the statutory scheme, he is exempted from the examination
requirements of Indiana Code section 36-8-8-19. See I.C. § 36-8-8-12(b) (“A member who has
had a covered impairment and returns to active duty with the department shall not be treated as a
new applicant seeking to become a member of the 1977 fund.”); see also 35 I.A.C. 2-5-5(c)(3)
(“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.”). Thatcher
reasons that because he is exempt from being “treated as a new applicant seeking to become a
member of the 1977 fund,” he is also exempt from the requirements of Indiana Code section 36-
8-4-7(c), and therefore, he seeks not a “reappointment” to the KPD under the statute, but rather
something else – which he refers to as “reinstatement.”
We disagree that simply because Thatcher is exempted under the 1977 Fund Chapter of
the code from being “treated as a new applicant seeking to become a member of the 1977 fund,”
I.C. § 36-8-8-12(b), he is also exempted under the Employment Chapter from “pass[ing] the
aptitude, physical agility, and physical examination required by the local board of the fund and
by IC 36-8-8-19.” I.C. § 36-8-4-7(c). But even if we did agree with Thatcher on this point, we
could not make his ultimate inferential leap that because he seeks to “return to active duty” with
the department he is not seeking “reappointment” to his position.
None of the words or phrases “reappointment,” “reinstatement,” “return to active duty,”
or “return to active service” are defined in the statutes. Thatcher points to various locations
within article 8 where these words are used. See, e.g., Br. of Pl. at 12 (“The Legislature used the
term ‘reappointment’ in the Reappointment Statute, but did not use the term in the [1977 Fund
Chapter]. . . . [but] the Legislature . . . used the phrase ‘return to active duty’ . . . [in sections of
6
the 1977 Fund Chapter].”) These observations are correct, but they do not mandate Thatcher’s
conclusion that “[t]he Legislature intended that recovered members be determined to be
‘returning to active duty’ and not simply reappointments.” Br. of Pl. at 12. Rather, it seems
from the plain language of the statutes that regardless of how Thatcher’s proposed return to work
is phrased, that such a return is a “reappointment” subject to Indiana Code section 36-8-4-7.
Thatcher may have been deemed “recovered” and therefore eligible for reinstatement or
reappointment from PERF’s standpoint – in fact, the record before us indicates that he was.
This, however, is not the same thing as being eligible for reappointment under Indiana Code
section 36-8-4-7. Thatcher’s employment with the KPD ended when his unpaid leave terminated
and he was placed on permanent disability. He is therefore subject to the terms of Indiana Code
section 36-8-4-7.
Because we have answered the first question affirmatively, we must now proceed to the
second question. Indiana Code section 36-8-8-12(e), which deals with administration of the
1977 fund,4 provides in relevant part, “Time spent receiving disability benefits is considered
active service for the purpose of determining retirement benefits until the fund member has a
total of twenty (20) years of service.” The second question asks whether this statute applies to
eligibility determinations under the Reappointment Statute such that time spent receiving
disability benefits – in Thatcher’s case nearly twenty-four years – counts toward “years of
service” in computing whether a potential reappointee “can complete twenty (20) years of
service before reaching sixty (60) years of age.” I.C. § 36-8-4-7(a).
By the plain language of the statute, we answer this question in the negative. Indiana
Code section 36-8-8-12(e) very specifically requires that time spent receiving disability benefits
be counted toward active service “for the purpose of determining retirement benefits.”
(emphasis added). It does not mandate counting this time in computing how many years of
service a reappointee can accrue before reaching age sixty or for any other purpose. As with the
4
As noted earlier, article 8 of title 36 concerns “Public Safety” and chapter 4 of this article concerns
“Police and Fire Employment Policies in Cities.” Chapter 8 of this article is entitled “1977 Police
Officers’ and Firefighters’ Pension and Disability Fund.”
7
words “reappointment” and “reinstatement,” “service” and “active service” are undefined in
these statutes. But the fact that the Legislature drafted the 1977 Fund Chapter to expressly
include disability time in the service calculation for retirement benefits indicates that normally,
such time would not be so included. C.f., e.g., Corr v. Am. Family Ins., 767 N.E.2d 535, 540
(Ind. 2002) (recognizing that an interpretation rendering statutory language mere surplusage
violates canons of statutory construction). This comports with the common understanding of
what “service” entails – that is, doing something for some useful purpose. See, e.g., The
American Heritage Dictionary of the English Language 1184-85 (1981) (defining “service” as
“[t]he occupation or duties of a servant,” “[e]mployment in duties or work for another,” and
“[w]ork done for others as an occupation or business”).
We commend Thatcher for his commitment to police service and for his efforts to return
to active duty on the KPD. And we sympathize with his frustrations at not being able to return to
serve his community in this capacity. Indeed the City initially believed it could offer Thatcher a
position when one became available. The City later realized, and correctly so, that there was a
statutory prohibition against allowing Thatcher’s return to the Department.
Conclusion
Indiana Code section 36-8-4-7(a) applies to a member of the 1977 Fund who is receiving
disability benefits and who has been determined to have been recovered pursuant to 35 Indiana
Administrative Code section 2-5-5(c). And the time period during which a person receives
disability benefits under Indiana Code section 36-8-8-12(e) does not count toward “years of
service” as that term is used in Indiana Code section 36-8-4-7(a).
Shepard, C.J., and Dickson, Sullivan and David, JJ., concur.
8