Hardesty v. Bolerjack

STATON, Judge,

dissenting.

I dissent because no meaningful review of the Board’s decision can be made without *495specific findings of fact. Merely finding that the charges are true shifts the fact finding burden on this Court which is not our function on review. The Majority’s acquiescence in assuming this fact finding burden defeats any meaningful review of the Board’s decision on appeal. The authority cited by the Majority, Martincich v. City of Hammond (1981), Ind.App., 419 N.E.2d 240, 245; Connell v. City of Logansport (1979), Ind.App., 397 N.E.2d 1058, does not support its proposition that adequate findings were made. Martincich which relies on Connell involved written reasons given to Connell before the hearing and the entry of the Board after the hearing. The Connell Court held that “... the written reasons or charging document can be read together with the entry of the Board to constitute the findings of the Board, especially since the entry refers to the charging document....” 397 N.E.2d at 1062. Since Connell, our Indiana Supreme Court has made it quite clear that more is required on appeal. Perez v. United States Steel Corp. (1981), Ind., 426 N.E.2d 29.

In Perez, Justice Hunter wrote: “... the specific findings of basic fact must reveal the Board’s determination of the relevant sub-issues and factual disputes which, in their sum, are dispositive of the particular claim or ultimate factual question before the Board. The findings must be specific enough to provide the reader with an understanding of the Board’s reasons, based on the evidence, for its finding of ultimate fact.” (Emphasis original.) In Hardesty’s case, this was not done. The entry of the Board merely repeats the charges filed before the hearing of evidence and then concludes after the hearing:

“The board unanimously now finds that, from the evidence and testimony concluding August 2,1977, said George Hardesty did commit these violations set out in charges numbered 1, 2, 3, 4, 5, and 6, aforesaid, filed against him by Dean Bol-erjack, Sheriff of St. Joseph County, Indiana, and did thereby violate the said rules and regulations of the St. Joseph County Police Merit Board. The Board further finds that the said actions on the part of George Hardesty constituted a material breach of his employment contract with the St. Joseph County, Indiana, Police Department.
“The board now, by majority decision, finds that because of the aforesaid conduct, the said George Hardesty should be discharged from the St. Joseph County, Indiana, Police Department."

“The requirement that findings of basic fact be entered insures that a careful examination of the evidence, rather than visceral inclinations, will control the agency’s decision. Davis, 2 Administrative Law Treatise, supra.” Perez, supra, at 32.

The interlacing of general factual material with the charges is so sparse and equivocal that any meaningful review of the Board’s decision is impossible. Therefore, I would reverse and remand to the Board for specific findings of fact in accordance with the Indiana Supreme Court Opinion in Perez, supra.