The Greenwood City Council is considering making procedural changes to the rules for the city’s police and fire merit commissions, a move designed to protect the integrity of the disciplinary process.
Two ordinances introduced during the Jan. 18 city council meeting would prohibit both police and fire merit commission members from participating in ex parte communications concerning a pending disciplinary matter or disciplinary issue. Ex parte is a legal term for when parties involved in a case speak about it without all of them being present.
The ordinance for the fire merit commission would also forbid members from speaking with case parties about matters where charges are expected or summary discipline reviews, according to city documents.
The changes are needed in order to protect the integrity of the disciplinary process, said Bill Barrett, an attorney representing the chiefs of both Greenwood Police and Fire. As an attorney, Barrett has represented not only Greenwood’s fire and police merit commissions at times, but also Trafalgar’s Board of Police Commissioners and Franklin’s Police Merit Commission.
In most matters, merit commission members act in a legislative capacity — they have hearings for public input, listen to constituents and pass rules. In disciplinary cases, members of the merit commissions act as a court, with members becoming judges to issue decisions on disciplinary matters, Barrett said.
“But in a disciplinary case, when the chief says, ‘Merit commission, I want you to suspend or terminate or demote a merit firefighter or a merit police officer,’ they put on they put on a robe — at least for metaphorical purposes,” Barrett said. “They act like judges, and that’s why there shouldn’t be any contact.”
In disciplinary cases, state statute says the decision to discipline is only based on the preponderance of evidence at a hearing. If someone under a discipline is found liable and subject to it, they have an absolute right to go to court to have the decision reviewed, Barrett said.
But right now, without rules that explicitly forbid the ex parte communications, if there’s evidence of the communication, any decision reached is open to attack by people who could say a commissioner had improper communication with one of the parties, Barrett said.
More importantly, Barrett says, the lack of a rule undermines public trust in the entire process.
“How can the public have confidence that a police officer subjected to discipline, may not receive discipline, hasn’t had some opportunity to get an advantage,” he said. “It can go either way — someone trying to get out of trouble or someone trying wrongly to put someone in trouble.”
Barrett has had first-hand experience dealing with situations like these. A few years ago he represented Franklin’s merit commission during a high-profile discipline case where the police officer, now a former officer, and his supporters tried to influence the commission during the officer’s disciplinary case, he said.
It really twisted the process, he said.
“It made the process take a lot longer, be a lot more expensive, and it subjected the process to a lot of review in the paper,” he said. “And it led, in Franklin, to the passage of an ordinance just like this.”
For Greenwood, concerns were raised about creating a similar rule last year after a disciplinary process involving a firefighter, Barrett said.
“The last case where I represented the fire merit commission, there were concerns about attempts by people to talk to commissioners during the pendency of the case,” Barrett said.
When explaining the ordinance to the city council, Barrett also addressed some comments made during public comment by Nat Ridge, district vice president of Johnson County Professional Firefighters Local 4252. The union represents firefighters from Greenwood, Bargersville and White River Township.
Ridge expressed concerns about how the city was going about changing the fire merit commission ordinance, expressing concerns that it would limit the ability of firefighters to speak with commission members on non-disciplinary matters. The union is also not against the idea of protecting the integrity of the process, but believes the changes should have included the commissions and service members, he said.
Firefighters and police officers have worked hard to build trust between them, the mayor’s office and the city council, and appreciate the work the city council has done with them, Ridge said. However, amending the ordinance designed to protect service members with no prior knowledge sets a “dangerous precedent,” he said.
Police officers and firefighters will still be able to communicate with commission members about things like rules and standards changes under the proposed changes. The changes are only for disciplinary matters, and commissioners would be required to self-report these communications, Barrett said.
“It is only in the context of a disciplinary case when this ordinance would be in essence,” he said.
Council members Brad Pendleton and Michael Williams also questioned the lack of communication about the process prior to the Jan. 18 meeting. Williams said several council members were contacted by people who had concerns.
“You probably should have had some more open lines of communication to ease those concerns before we bring it to a public forum,” Williams said.
Pendleton also asked both Barrett and Deputy Mayor Terry McLaughlin why a commission wasn’t brought into the process. They both said they couldn’t provide an answer on that, with Barrett saying his participation was limited to what occurred with the Greenwood case and that he was asked to present it to the council.
Assistant city attorney Joe Sayler, who took part in drafting some of the final drafts, said while he wasn’t involved on the fire side, he knew there was consultation with fire department leadership. For the police side, he was at a meeting where the merit commission voted on the changes, he said.
Sayler also stressed the changes weren’t an attack on police officers or firefighters.
“It establishes an additional procedural right at the first hearing level of the disciplinary proceeding where a member of service can assert, ‘Hey, the people that are supposed to be deciding neutrally fairly, impartially (and) with no dog in this race, someone isn’t and I would like them to not sit on my case.’ As of right now, that does not exist,” Sayler said.
Both ordinances were introduced on Jan. 18. Two more readings, including a final vote, will take place next month.
