Daily Journal staff reports
A fired Franklin police officer has filed a lawsuit against the city, claiming the process used to terminate him violated his rights and didn’t include all of the needed evidence and testimony.
Bryan K. Burton was fired by the Franklin Police Merit Board in May after it found him guilty of two internal disciplinary charges: conduct unbecoming an officer and conduct injurious to the public peace and welfare. The charges stem from Burton’s Oct. 23 arrest on a felony domestic battery charge and statements he made to the police chief in a meeting days before his arrest.
A special prosecutor decided Burton and his wife should not face criminal charges from the incident, but police chief Tim O’Sullivan sought Burton’s termination.
Burton said his appeal, filed in Johnson Superior Court 4, will focus on three complaints:
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.
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.
Evidence rulings during the hearing were incorrect, specifically what the merit board was told about how O’Sullivan used a lie detector test to clear another officer in an unrelated matter weeks before Burton’s arrest but refused to offer Burton a lie detector test. His fellow officers should also have been allowed to testify before the merit board about his overall work performance, he said.
The appeal asks the court to reverse or modify the merit board’s decision. Burton, who was a Franklin police officer for 15 years, wants his job back.
The appeal was filed by Franklin attorney Jay Hoffman, who represented Burton before the merit board. Jennifer Jones Auger will represent him in the appeal. She did not respond to calls for comment.
The city will be represented by its insurance company, who has hired Bill Barrett as its attorney in this matter. Barrett is the attorney for the police merit board.
The appeal takes issue with O’Sullivan’s investigation before he asked for Burton’s termination.
O’Sullivan’s review of the three Franklin Police Department officer reports, none of whom investigated the incident since they ceded the investigation to the Johnson County Sheriff’s Office, did not meet the criteria for a departmental investigation as required by merit board rules and Indiana law, and is insufficient evidence to determine he battered or confined his wife, according to written findings submitted by Hoffman after the hearing.
Burton is also troubled by other inconsistencies in how O’Sullivan handles discipline, he said. For example, police department policies say that if you are reprimanded, you are given a corrective interview, can file a written response and sign the reprimand.
But that process didn’t happen in at least one disciplinary matter regarding Burton making a racist comment that the merit board was informed of, and O’Sullivan’s testimony conflicted with that, Burton said.
Separately, Burton is seeking unemployment pay from the city through the Indiana Department of Workforce Development. The city initially denied the claim because Burton was terminated for cause and because he is not unemployed since he owns and operates a construction company, city attorney Lynn Gray said.
The state’s first initial review of Burton’s claim determined that Burton was not disqualified from earning unemployment because he showed evidence that the city’s policies were not uniformly enforced among all employees, according to an Indiana Department of Workforce Development document.
The document says that Burton was not fired for just cause because state law says that an employee must knowingly violate a reasonable and uniformly enforced policy, and that Burton is not disqualified from unemployment.
Gray said Burton has given information to the state about a specific Franklin police officer who had been arrested but was not fired, and Burton has said that there are additional officers who have arrest records.
The city will appeal the decision and continue to fight the unemployment claim due to Burton’s disciplinary history, the progressive discipline, the hearing and the decision by the police merit board and his other employment.
The city had initially planned to try to recoup the salary Burton was paid from the time of his suspension until his termination, which was about six months. Officials decided not to pursue that pay because the cost of seeking the pay would fall to the taxpayers, Gray said. The cost of the collection efforts could quickly eat up any money the city could recoup from Burton, she said.