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HomeMy Public PortalAbout06-30-1966 108 Mr. Jameson presented the following Street Lighting.Estimate No. 3188 and moved the same be approved, seconded by Mr. Gehr and on voice vote was carried. National Road East -. East of Garwood Rd. Estimate No. 3188 Oper.Cost/Lamp/Mo. Total Cost/Mo. Install 29 - 400 Watt Mercury Vapor Multiple-Pendant Type on Wood Pole $4.75 137.75 There being no further business presented on motion duly made and carried the meeting adjourned. Henry 1. eson, President Attest: erJ. ' ee iy er ?SH,u11-*—IS:-X�'� ��i 3� ?=- i�e?E:C�' �x� i'e;i ,?r c'f'S �c�y of 3i-y�ti;WS -'.Hf-18:-"r7S-"e3I-i'r*** ,.'-,(`(''e3' ?S d" tit*1* BOARD OF PUBLIC WORKS AND SAFETY OF THE CITY OF RICHMOND, INDIANA, JUNE 30, 1966 The Board of Public Works and Safety of the City of Richmond, Indiana met in regular session int he City Hall, Thursday, June 30, 1966 at the hour of 9:00 o'clock a.m. (est). Mr. Jameson presiding with the following member being present. Mr. Keller being absent. The following business was had to-wit: Mr. Gehr moved the reading of the minutes of the previous meeting be dispensed with, seconded by Mr. Jameson and on voice vote was carried. Mr. Gehr moved the claims be allowed and paid, seconded by Mr. feller and on voice vote was carried. Police Chief Stultz presented the following: June 30, 1966 Board of Public Works & Safety Richmond, Indiana Gentlemen: Recommend the Board accept detective Orville Conyers resignation from the Richmond, Indiana Police department. Mr. Conyers has served twenty years on the department and is eligible for retire- ment. His letter of resignation is attached. Respectfully, /s/ William K. Stultz Chief of Police June 30, 1966 To Mr. William K. Stultz and Members of Board of Works Gentlemen: I am submitting this letter of my retirement from the Richmond Police Department having served as a member of the Department since June 16, 1946. My retirement to be effective as of July 1, 1966. It has been a pleasure to serve as a member- of this Department and to have been associated with all of the City officials. I wish to thank you for your cooperation, I remain Yours truly, /s/ Orville Conyers Mr. Gehr moved the Board accept the resignation of Detective Orville Conyers, seconded by Mr. Jameson and on voice vote was carried. The Clerk was requested to send Detective Conyers a letter of appreciation for his service and an expression of regret on his resignation. Groups from the City police Department and the City Fire Lbpartment were heard regarding raises in salary, etc. but were told that this isnot a matter for the Board of Works but should be presented to the Common Council by the Department Heads for action. Each council member has a zerox copy of the department requests and these were discussed at a recent meeting of the Council. The groups were told that decisions made on the requests of the Police and Fire Departments will be put in Ordinance form and passed on by the Common Council. A petition was read, signed by 29 residents m Richmond Avenue,' complaining of noise from the Newton Pure Oil Filling Station located at 25 Richmond Avenue. This petition was referred to Police Chief Stultz. Sergeant Paul Martin of the Traffic Division was present and asked that parking be banned on the north side of North "Elt Street from Northl9th to North 20th Streets. He said several accidents had occurred in this locality. He said there were no objectors to this banning of parking. Mr. Gehr moved that the above request be granted, seconded by Mr. Gehr and on voice vote was carried. 109 Fire Chief .Fredricks reported on action of sewer in the dyke at the Johanning Bulk Station. A letter was sent •to Warfield. Oil Company by the Board of Works recently and they have said they will take care of this matter. The Fire Marshall is to check back in two weeks and the item put on the agenda in two weeks. Police Chief Stultz brought up the hazardous condition of children crossing U.S. 27 North to the new Crestdale school. After much discussion, Chief Stultz was requested to include in his budget the item for an additional crossing guard at this locality. Mr. Lloyd Stump, 1339 South 6th Street, appeared before the Board and presented a petition signed by the residents on South 6th Street complaining of noise and dirt created by the operation of Kemper Brothers. He complained that the dirt gets into their houses and on their cars, making spots on the cars. Mr. Gehr moved that the Clerk be authorized to send a copy of the above petition to Kemper Brothers for their consideration, seconded by Mr. Jameson and on voice vote was carried. III The 'Clerk presented proof of publication of notice printed in the Richmond Palladium-Item, a newspaper of general circulation in the City of Richmond, Indiana on the dates of June 13th and 20th, 1966. Said notice designated that a public hearing - would be held on Improvement Resolution No. 1077-1966 to construct a sanitary sewer on South Third Street from South C to South D Streets. The date and time designated for said hearing was ..June 30, 1966 at the hour of 10:00 a.m.. (est). The proof of publication was examined and found to be correct and in order and Mr. Jameson moved the same be received and filed. Mr. Gehr seconded this motion and on voice vote was carried. June 30, 1966 at the hour of 10:00 o'clock a.m. (est) being the date and time designated for hearing on said Improvement Resolution No. 1077-1966. There being no remonstrances filed on said Improvement Resolution No. 1077-1966. The City Engineer presented his, estimate on the total cost of the work to be done and all persons present who would be effected by the proposed work under Improvement Resolution i 'atr -t- No. 1077-1966 were heard by the Board on all questions and matters pertaining to said Improvement Resolution No. 1077-1966. The Board decided that the special benefits that will accrue to the properties abutting the proposed improvement will be equal to or exceed the estimated cost of said Improvement Resolution No. 1077-1966. After such hearing, Mr. Gehr moved the Board confirm Improvement Resolution No. 1077-1966 as adopted on June 9, 1966. Mr. Jameson seconded this motion and on voice vote was carried. . Mr. Gehr moved the adoption of Assessment roll for Improvement Resolution No. 1074-1966 for construction of alley between Lincoln and Randolph Streets from N.W.. 3rd to N. W. lath Street, and further that the date of July 28, 1966 at the hour of 10:00 o'clock (est) for a public hearing on said assessment roll. Mr. Jameson seconded this motion and on voice vote was carried. Mr. Gehr moved the adoption of Assessment roll for Improvement Resolution No. 1075-1966 for construction of alley between North 21st and North 22nd Streets from North C to North D Streets, and f urthe that the date of July 28, 1966 at the hour of 10:00 o'clock (est) for a public hearing on said assessment roll. Mr. Jameson seconded this motion and on voice vote was carried. A discussion was held on the sanitary sewer on Catalpa Drive. Mr. Gehr zisaid that Leroy Brant refuses to sign for the easement and he moved that the City pay this man 300 a foot for his easement across the land to complete the easement, a total of .approximately $120.00. Mr. Jameson seconded this motion and on voice vote was carried. Mr. Gehr read a letter & bond regarding construction of a new road (Richland Road). Mr. Gedvillas was abked to pre sent this letter to the county commissioners. Mr. Gehr read the following letter which he proposes to send to applicants explain- ing about streets: Dear Sir: . The City of Richmond, Indiana requires a sub-divider to construct sewers and streets and complete them to the City's specifications. Also where necessary they construct sidewalks. . It would be unfiar to the citizens that have met all of the requirements for streets and sewers, to construct these utilities where the property owners have not paid for theme The City of Richmond has a policy that if the property owner will grade, construct curb and gutter and place aggregate base for a street, the City will seal the surface and be responsible for its maintenance in the future. Yours very-truly, III /s/ Stanley B. Gehr City Enginner The above was approved by the Board. Mr. Gedvillas, City-County Plan, Commissioner, reported a complaint of a lady about excessive weeds and plants in the first alley north of U.S. 40 between S.W. 13th and S.W. 1hth Streets. She says it creates a visibility porblem and she also complained of buss with thorns scratching her car. This complaint was turned over to Mr. Burelison, Street Commissioner. 110 Fire Chief Fredricks presented the following: June 28, 1966 Henry Jameson, President Board of Public Works and Safety City of Richmond, Indiana Gentlemen: -Raymond Dean Bishop has satisfactorily completed one year as a probationary fire- man. I, therefore, recommend that Mr. Bishop be promoted to the rank of regular fireman as of July 1, 1966. Respectfully, /s/ Ernest Fredricks, Chief Richmond Fire Department City of Richmond, Indiana Mr. Gehr moved that Raymond Dean Bishop be promoted to the Rank of regular fire- man, seconded by Mr. Jameson and on voice vote was .carried. Mr. Jameson presented Estimate No. 3198 Street Lighting. on South 3rd between B and D Streets. Total Cost,�?Mo. Estimate No.. 3198 Oper.Cost/Lamp/Mo. Install 2 - 250 Watt Mercury Vapor Street _ Lights on Wood. Poles $4.00 $8.00 Mr. Jameson moved Estimate .No. 3198 be approved, seconded by Mr. Gehr and on voic d vote was carried. Mr. Jameson reported that the sum of $20.00 is needed for bonds for Mr. Calvelage and Mr. Hunt of the Building Commissioners Department. The amount can be transferred with- - in the same classification by resolution. Mr. Jameson moved that a resolution be pre- pared for Council's consideration to transfer the sum of $20.00 from Board of Works budget account J-19, Insurance Premium, to Board of Works budget account J-23, Premium on Official Bonds. Mr. Gehr seconded this motion and on voice.vofe was carried. The Clerk presented the transcript returned from the- Wayne Circuit Court in the case of William Duane Martin vs. The City of Richmond, Indiana. Mr. Jameson moved the transcript be made a record of this meeting, seconded by Mr. Gehr and on voi ce vote was carried. STATE OF INDIANA ) IN THE WAYNE CIRCUIT. COURT ) SS: COUNTY OF WAYNE ) APRIL TERM, 1966 WILLIAM DUANE MARTIN NO. 2392 VS. THE CITY OF RICHMOND, INDIANA OPINION, FINDING AND JUDGEMENT The evidence in this case tends to prove the following facts: The plaintiff, William Duane Martin, by his written application dated June 3, 1965, signed by him, made application for appointment to the Richmond, Indiana Fire Department and delivered it to Ernest Fredricks, Chief of Fire Department, City of Richmond, Indiana. This application introduced as an exhibit shows the following sentence: - "Ever arrested x. When? Where? And What Charges? Speeding 45 in 30 zone". No other arrest or charges of crime are stated. Other evidence shows thatin the Wayne Superior Court, Wayne County, Indiana on the 15th day of October, 1958, the plaintiff plead guilty on an affidavit charging him with the crime of Grand Larceny. He was then 18 years of age. The court sentenced him and released him on probation. A police Court Record introduced in evidence shows that at about the same time, the plaintiff plead guilty to the crime of Arson in The Common Pleas Court, Preble County, Ohio. This record also shows several traffic violations. This was introduced in evidence a duly certified copy of the record and minutes of a meeting of the Board of Public Works and Safety of Richmond, Indiana of dates June 24 and September 15, 1965. June 24, 1965: The following letter was read from Fire Chief Fredricks, with regard to the applications of Raymond Dean Bishop and William Duane Martin: Mr. Jameson, Pres. Bd. of Public Works .and Safety Richmond, Indiana Dear Mt. Jameson: I have the applications and medical reports of two men to present to the Board of Works for its approval. Each of these applicants has been checked out OK with our Department. I would like to recommend to the Board of Works that said applicants be placed on the Fire Department as Probationary Firemen for one (1) year, starting July 1st, 1965. Respectfully, /s/ Ernest Fredricks, Chief Richmond Fire Department City of Richmond, Indiana Mr. Kemper moved that Raymond Dean Bishop and William Duane Martin be hired as probation- ary firemen for one year, seconded by Mr. Gehr and on voice vote was carried"'. September 15, 1965: "Fire Chief Fredricks presented the following: . 1 1 - September 15, 1965 Mr. Henry Jameson, President Board of Public Works and Safety City of Richmond, Indiana Dear Sir: _ It has been brought to the attention of this office that William Duane Martin, a Probationary Fireman, has a police record. We checked this out and found that be had been charged and convicted of Grand Latcency, received a fine of $10$00 & costs, 1 to 10 years suspended sentence, October 15, 1958. For the best interests of the Fire Department, I recommend to the Board of Works that William Duane Martin be dismissed as a Probationary Fireman as of September 8, 1965. Respectfully submitted, /s/ Ernest Fredricks, Chief Richmond Fire Department City of Richmond, Indiana Mr. William D. Martin was in attendance and requested that his hearing be postponed until September 23, 1965. Mr. Martin stated that he was advised by his Counsel not to make a statement at this time . Mr. Kemper moved the request for the postponement of a hearing be declined. Mr. Gehr seconded this motion and on voice vote was carried. Mr. Kemper reported that he had made investigation of the charge of Mr. Martin of being convicted of Grand Larceny and found this to be correct and can be found in Superior Court of Wayne County, Indiana Crime Order Book B, page 371. After discussion by the Board Mr. Kemper moved that since probationary fireman William Duane Martin has been convicted _of a felony, that for the best interests of the Fire Department, probationary fireman William Duane Martin be dismissed_ from the Fire Department of Richmond, Indiana as of September 9, 1965. Mr. Gehr seconded this motion and on voice vote was carried." There is no evidence that the Board of Public Works and Safety at the time it acted on the application of the plaintiff and appointed him a probationary fireman it had knowledge of the crimes committed by the plaintiff other than stated in his applic- ation. There was introduced in evidence as Defendant's Exhibit #4, a booklet entitled. Rules and Regulations of the Fire Department of Richmond, Indiana, but there is no evidence that these rules were ever formally adopted by the Board of Public Works and Safety. There is no record of such adoption. Article 1, Sections 2, 4 5 and 6 on page 9, and Section 7 on page 10 provide for the appointment of probationary fireman for one (1) year. The plaintiff was familiar with these rules when he applied to be a member of the fire department, and they were explained to him by the Chief of the Fire Department. The, evidence shows that the plaintiff accepted his appointment as a probationary member of the fire department for one (1) year, and that he assumed and discharged the duties of such probationary fireman, and was paid a salary for his serviees, out of which money was deducted for payment into the Firemen's Pension Fund which would enure to his benefit in the event at the expiration of one (1) year the Board should appoint him a permanent member of the fire department. If not, the money would be refunded to him. On September 29, 1965, the plaintiff filed in this court his complaint by way of an appeal from his dismissal by the Richmond Fire Department, and in his complaint he alleges he was dismissed without cause and contrary to law, and without thh Board having preferred a specific charge against him and spread the same of record, and did not give the plaintiff proper notice of time and place of hearing of such charge, and therefore he was illegally, arbitrarily and capriciously dismissed and ask that the. Board be mandated to reinstate him as a member of the fire department and make payment of his salary from date of dismissal up to filing of the complaint. As to this case the controlling statutes seems to be Burns Indiana Statutes, Sec. 48-6102, wherby,the Board of Public Works and Safety is given the general power to appoint all members and employees of the fire department, and to make and promulgate rules and regulations for the appointment of members of the fire department, and for the government of the department. This Section then also provides that no member of the fire department shall be dismissed except for cause, as provided in the next section, which is, however, Sec. 48-6105, which provides that every member of the fire department appointed by the board shall hold office until they are removed by the board. They may III be removed for any cause other than politics, after a written notice is served upon such member in person or by copy left at his last and usual place of residence notify- ing him of the time and place of hearing, and after am opportunity for a hearing is given, if demanded, and the written reasons-for such removal shall be entered upon the records of such hoard. Another Section 48-6204 in the 5th paragraph thereof, tho not directly applicable to the case at bar, still tends to throw some light on it. This section applies to Cities of the First Class. It provides: "Every original to the police or fire depart- ment shall be for a probationary period to be fixed by the board, not to exceed a period of one (1) year. If at any time during the probationary period the conduct or capacity of?:the probationer is found not to be satisfactory, which facts shall be determined by the board after a public hearing, the probationer shall be notified in writing by the board that he will not receive a permanent appointment, whereupon his employment shall cease; otherwise, his retention in the service after the expiration of the probationary period shall be equivalent to and shall constitute his final and permanet appointment." 1. 12 This is practically what happened in the case at bar. The appointment made by the board was for a probationary fireman for a period of probation of one (1) year to determine whether or not at the expiration of one (1) year, the plaintiff should be appointed a permanet member of the fire department, that is, for an indefinate 'berm he should be removed by the board for cause and notice, and so on, as provided by Sec. 48-6105. Only on such appointment after one (1) year could he claim the benefit of that statute. Referring to the case of Kirmse v. City of Gary, 114 Ind. App. 558, on page 561, the statement as to a member of the police department is applicable to a member of the fire department. This case says: "A member thf the police department is an employee of the City. The relationship of employer and employee is a contractual relationship. The contract of employment out of which the relation of employer and employee arises may be either express or implied, verbal or written." So in the case at bar, the plaintiff has merely a contract by which he has been appointed merely a probationary fireman. He is bound by the terms of that contract and has only such rights as it gives. Of course, the law thf Indiana enters into that contract, but there is no statute saying that in the case of cities of the sedond class the probationary fireman shall be entitled to have charges preferred and notice given in order to dismiss him as provided in the case of a-permanent fireman with indefinite tenure as provided in Sec. 48-6105. The plaintiff is presumed to know the law, and he entered into a contract with the board knowing all its poweremand limitations thereof. . If it should be argued that the board had no legal power to make the contract or appointment of a probationary fireman for the fixed term of one (1) year and therefore the contract is illegal, then the plaintiff has no rights at all and can be discharged summarily without notice. The case of People v. Village of Maywood. 1.8 N. E. 2nd, 459, on page 463, supoorts this proposition when it says: "Plaintiff's appointment being unlawful and um-authorised, he could have been summarily discharged at any time. Neither could such appointment serve to vest him with any right to permanet tenure." This case also on page 463 says: "But it is urged that since the act under consideration does not expressly give the board the right to make probationary appointments and since the terms of the statute "are clear and precise, its sense manifest, and its consequence not absurd or palpably umjust, "there can be no implication that said board had any right to make a rule providing for a probationary period or to make probationary appointments, and that it necessarily follows that plaintiff's appointment as fireman was permanet and that he could not lawfully be removed from said position except. after a proper hearing on written charges. In our opinion it is sufficient answer to plaintiff's contention in this regard to state that in the light of the spirit and policy manifested in all the civil service enactments of the Legislature, the board powers conferred upon the board under sec. 5 of the act to make rules "to carry out the purpose of this act, and for appointment and removals" authorized said board to adopt Rule 106. Further- more, since the act before us is applicable only to fireman and policemen, it may well be that because of the nature and character of their duties the Legislature purposely refraned from restricting the board in its rule making power as to their appointment and removal except that the rules adopted concerning probationary appointments must be reasonable and fair. It cannot be said that rule 106 is either unreasonable or unfair. Because of the very nature of the duties of fireman and policement, in the performance of which the highest courage in dangerous situations is a prime requisite, we think the Legislature must have intended that the ability to pass a written and physical examina- tion should not be the final test. It is only through probationary appointments for a reasonable period, during which firemen% and policemen may be observed in the actual performance of their duties in situations of danger, that their real worth and mettle may be tested. We are impelled to the conclusion that in enacting the . Board of Fire and Police Commissioners Act, it was within the contemplation of the legislature that the board adopt reasonable rules as to probationary appointments." There is no, statute prohibiting the Board of Public Works and Safety of the City ofRichmond, Indiana from making probationary appointments, and therefore under the broad powers it has to make appointments and rules governing the fire department it may make appointments for probationary periods. Also, the case of Leduc v. Germain, 19 A 2nd, 862, throws light on the case at 'bar. Beginning on page 863, left column, first two paragraphs say: "Petitioners contend that they were duly appointed on December 17, 1940, as members of the fire department; that as such members they were entitled to the protect- ion of the rules of the department; that by virtue of Rule II they were entitled to notice in writing of charges and a hearing thereon before they could be legally dis- charged; and that such hearing on charges must be a judicial hearing governed by rules obtaining generally in judicial proceedings. They contend that their discharges are invalid from the beginning because they have been denied those rights. Respondents contended in reply that petitioners were not members of the fire department but merely applicants for appointment contingent upon the successful completion of a probationary training period; that as such they could not invoke the protection of Rule LI; that even if they could, said rule does not provide for a hearing; and finally, that even if, by implication, it does so 'provide, nevertheless it can avail these petitioners nothing, as they were not discharged because of the violation of any rule but because they had never been legally appointed in the first place." Such are practically the contentions of the parties in the case -at bar. The Court held that unless it found that thepetitioners were members of- the fire department and as such were entitled to the protection of Rule II, they would not be entitled • to such protection unless they had first passed the probationary period. Also, on page '861. , the court says: "In the absence of a statute or ordinance expressly extending protection to applicants, who are serving their probationary terms of instruction, against having such terms of instruction arbitrarily voided, we are powerless to grant relief. Manifestly, a matter of this kind is legislative and calls for legislative and not judicial action. Except where otherwise provided in the constitution, the power to fix- and safeguard the tenure of public officers and employees is vested in the legislature." The plaintiff having accepted the appointment as a probationary fireman and acted on it, he• cannot now say that he was not a probationary fireman but a regular III permanent fireman with indefinite employment and entitled to notice, hearing and so forth. His relationship with the board being contractual, it is plain that the minds of the parties did not meet to make plaintiff a permanent fireman but only met to make him a probationary fireman with all its limitations. It is obvious that the board did. not intend to give him an indefinite term but only a term of one (1) year. Also, it would seem to be a reasonable construction of the statute, 48-6105, that it applies only to the conduct of the fireman after he is appointed a permanent fireman and does not apply to any conduct before his appointment, that is, his conduct in applying for and securing his appointment. In the case at bar as to whether or not the conduct of the plaintiff was good or bad after his appointment has no relevancy. This case deals only with the. securing of his appointment by false statement in his application. It is a fair inference that the board would not have appointed the plaintiff, even as a probationary fireman, had it known at the time of his conviction for the crimes of Grand Larceny and Arson. Power and discretion as to making appointments, and as to who shall be appointed, and as to qualifications of a fireman, and what is. best for the fire department and the citizens of the City of Richmond, Indiana, is vested solely in the Board of Public Works and Safety. It is solely for. the board to say who shall be appointed and who shall be dismissed under the law applicable to dismissal. This court has no right to control the discretion of the board. The plaintiff attempted to s how that even the Mayor and others in the City Administration knew of the past record of the plaintiff as to his arrest at the time he applied for appointment. The answer to that is, their knowledge is not knowledge of the board and that it is the board only that makes the appointment. Also the evidence shows that the plaintiff was present at the hearing of the charge against him by the board. He knew what the charge was and he made no denial of III it at the time, and did not deny it in the trial of this case. All he asked the board to do was to continue the hearing. This, the board refused to do. This court cannot say that the board abused its discretion in so doing. There was no law compelling the board to give the plaintiff a hearing on the charge against him, as a probationary fireman. The court is of the opinion that the prayer of plaintiff's complaint should be denied, and the mandate to the Board of Public Works and Safety refused. • It is therefore ordered that the plaintiff take nothing on his complaint and pay the costs. is/ Gustave H. Hoelscher Judge, Wayne Circuit Court Dated: June 24, 1966 There being no further business presented . i ot'on ul made, seconded and carried the meet ;g d ' e . c-y ,�li enry p. son, resident Attest: A-ch . . eeg,ex • - ?c41*-3 s **-'-?R-- -i,X x*- „, . :--**icic-2 /.5 ''-'.c .4PME-HH81 -:X:!X K-'. - --c-":*ic-c"cicx K S`F n-J1c?t- BOARD OF PUBLIC WORKS AND SAFETY OF THE CITY OF RICHMOND, INDIANA, JULY 7, 1966 The Board of Public Works and Safety of the City of Richmond, Indiana met in regular session in the City Hall, Thursday, July 7, 1966 at the hour of 9:00 o'clock a.m. (est). Mr. Jameson presiding with the following member being present: Mr. Gehr. Mr. Keller being absent. The following business was had to-wit: III Mr. Jameson moved the minutes of the June 30th meeting be corrected to read that Mr. Jameson seconded the motion that the claims be allowed and paid instead of Mr. Keller. Mr. Gehr seconded this motion and on voice vote was carried. Mr. Gehr moved the reading of the minutes of the previous meeting as corrected be dispensed with, seconded by Mr. Jameson and on voice vote was carried. Mr. Gehr moved that the claims be allowed. and paid, seconded by Mr. Jameson and on voice vote was carried. Mr. Gehr moved that the Board approve curb cut request on S. W. "H" Street, 243 feet east of S. W. 2nd Street. Mr. Jameson seconded this motion and on voice vote was carried. The Traffic Department has approved this request. Fire Chief Fredricks reported on an accident to the Assistant Fire .Chief's car. he said this accident had been reported to the Insurance Company and he is waiting for bids.