A fired Franklin police officer has lost a lawsuit he filed appealing the decision of the local board to terminate him, but a separate federal lawsuit against the city is ongoing.
Bryan Burton was fired a year ago for conduct unbecoming an officer and conduct injurious to the public peace and welfare by the Franklin Police Merit Commission. The charges stem from Burton’s October 2016 arrest on a felony domestic battery charge and statements he made to the police chief in a meeting days before his arrest.
Burton appealed the merit board’s decision in a lawsuit filed in Johnson Superior Court 4, claiming the process used to terminate him violated his rights and didn’t include all of the needed evidence and testimony.
Judge Marla Clark reviewed the proceedings and case law and ruled that the merit board and its attorney made no errors and Burton’s rights were not violated. With her ruling, his termination stands.
But in the months after he lost his job, Burton filed a separate lawsuit, a federal civil case in U.S. District Court for the Southern District of Indiana, accusing the city, the merit board and Franklin Police Chief Tim O’Sullivan of age discrimination. Burton claims that O’Sullivan has allowed several younger officers to remain at the department when they faced allegations of criminal conduct that did not result in criminal charges, and has hired several officers who are in their 20s who had prior criminal convictions, the lawsuit said.
The judge issued an initial decision in that case in favor of the city, the merit board and the chief, and said the decision to dismiss Burton’s lawsuit against O’Sullivan was permanent. But the lawsuit against the city and merit board were dismissed without prejudice, meaning that Burton was allowed to refile or amend his allegations.
Burton and his attorney have filed two amendments to his initial lawsuit, and both outline examples of what they say is age discrimination.
Allegations in a civil lawsuit are the opinion of the person filing them and may be refuted in court. Burton is asking for punitive and compensatory damages. The city has asked the court to dismiss the suit.
Judge: Rights weren’t violated
Burton’s county lawsuit that appealed the merit board decision to fire him focused on an allegation that O’Sullivan did not conduct an internal investigation or have the internal review board consider the matter before seeking Burton’s termination, which violated his due process. The lawsuit also says a member of the merit board should have recused himself from the matter based on his previous comments about Burton, violating his right to a fair, unbiased hearing.
Clark considered the testimony and evidence allowed at the hearing, state law and case law, and wrote in her ruling that decisions of administrative boards, such as the merit commission, aren’t to be changed unless there is evidence that the decision was arbitrary, an abuse of discretion or violated the law. Her court’s review of the case was limited to whether the merit board followed the law and had substantial evidence, she wrote.
She noted that Burton was not alleging any irregularity in the proceedings, had a full-day hearing to defend himself against the disciplinary charges and that the merit board accepted the advice of its attorney every time evidence or procedures were called into question, the ruling said.
She also found that a proper investigation was conducted as per state law and that the merit board member Burton accused of bias had demonstrated no bias.
“The court concludes that Officer Burton failed to demonstrate a violation of statute or deprivation of due process rights that would warrant a reversal of the commission’s decision,” she wrote in her ruling.
Burton has until Friday to appeal Clark’s decision to the Indiana Court of Appeals. His attorney, Jeff McQuary of Brown Tompkins Lory and Mastrain in Indianapolis, said Burton is still considering the option.
Former officer says other officers’ backgrounds evidence of discrimination
The basis of Burton’s federal lawsuit is that the city and merit board have allowed officers in their 20s to remain at the department when they faced allegations of criminal conduct. The lawsuit also says the city has hired several younger officers, who are now in their 20s or 30s, who had prior criminal convictions before they were hired, such as officers who were arrested or convicted of minor consumption seven to 14 years ago, for example.
The lawsuit also lists three current and former officers of the Franklin Police Department and alleges they were wrongly disciplined by the department, and notes they are all in their 40s, the lawsuit said.
Burton is 43.
The city is again asking the court to dismiss the suit, saying that Burton has no factual evidence that he was intentionally treated differently than others in a similar situation due to a group affiliation.
“There is nothing to draw a reasonable inference that Franklin established a policy or practice of intentionally discriminating against a group or class of police officers based upon their age,” the city’s motion said.
