MARION CTY. SHERIFF'S MERIT BD. v. PEOPLES BROADCASTING CORP.

SHEPARD, Chief Justice.

The question presented is whether a county sheriff's merit board may conduct an executive session to discuss the evidence presented during its public hearing on disciplinary charges against a deputy and then proceed to take final action in public. We hold it may.

This question comes to us as the second part of one lawsuit. In the first part, the Johnson Circuit Court ordered the Marion County Sheriff's Merit Board to conduct its disciplinary hearings in public and permit the use of cameras and recorders at those hearings. The Court of Appeals ultimately affirmed those orders in Berry v. Peoples Broadcasting Corp. (1987), Ind. App., 514 N.E.2d 1283 (Berry I) and we affirm them in a companion decision issued today.

The facts giving rise to this appeal occurred soon after the trial court's final judgment on Berry I. On January 22, 1987, even before a motion to correct error was filed in Berry I, legal counsel for the merit board sent a letter to arrange another disciplinary hearing. Counsel notified the parties that the merit board would not seek appellate review, leaving the sheriff's deputies as the only appellants in Berry I. Counsel further explained that the board would not enforce its Rule 505(B)(3) during the hearing conducted pursuant to Ind. Code § 36-8-10-11. Thus, the board would permit the reasonable use of recording devices. Significant to the issue of this case, the letter also stated:

After receiving this notice, the media parties initiated Berry II by returning to the trial court seeking a permanent injunction against the merit board's plans for such an executive session. The trial court found that the "deliberations" of the merit board must be conducted openly, citing Citizens Action Coalition v. Public Service Commission (1981), Ind. App., 425 N.E.2d 178, and Ind. Code § 5-14-1.5-1. It entered judgment as follows: "The Court therefore permanently enjoins the sheriff's merit board from closed session deliberations in disciplinary hearings held pursuant to I.C. 36-8-10-11."

The merit board and the deputies appealed that order. A divided First District of the Court of Appeals affirmed the trial court and held that the "deliberative session of the board is subject to the Open Door Law and that it should be open to the public." Sheriff's Merit Board v. Peoples Broadcasting Corp. (1988), Ind. App., 530 N.E.2d 755 (Berry II). The First District's opinion did not discuss Ind. Code § 36-8-10-11 ("fair public hearing"); it was grounded solely in a statutory interpretation of Ind. Code § 5-14-1.5-1 to -7, the Indiana Open Door Law.2 We grant transfer.

This issue turns upon statutory interpretation of the Open Door Law and the statute on disciplinary proceedings for sheriffs' departments.

If the only law controlling this question were the Open Door Law, the merit board's plan to hold an executive session as announced in its letter of January 22, 1987, would be permissible under Ind. Code § 5-14-1.5-6(b)(5)(A)-(B). That section reads: "(b) Executive sessions may be held only in the following instances: (5) `With respect to any individual over whom the governing body has jurisdiction: (A) To receive information concerning the individual's alleged misconduct; and (B) To discuss, prior to any determination, that individual's status as an employee. ...'" (emphasis added).

While Berry I considered the relationship between subsection A and the merit law's fair public hearing requirement, this case requires analysis of subsection (B) and the fair public hearing requirement. The merit board proposed to "discuss[] the testimony and charges lodged against the deputies." Such a discussion fits within Ind. Code § 5-14-1.5-6(b)(5)(A)-(B).

A conflict arises, however, when the Open Door Law is juxtaposed with the merit board's own law on disciplinary proceedings. That statute, Ind. Code § 36-8-10-11(a), states, in pertinent part: "The sheriff may dismiss, demote, or temporarily suspend a county police officer for cause after preferring charges in writing and after a fair public hearing before the board. ..." (emphasis added).

Our analysis begins with basic principles of statutory interpretation. When two statutes apply to the same subject they must be construed in harmony if possible. Schrenker v. Clifford (1979), 270 Ind. 525, 387 N.E.2d 59; Bell v. Bingham (1985), Ind. App., 484 N.E.2d 624. This rule, by definition, must be applied before any other rules of statutory construction are applied.

Two lines of reasoning lead us to conclude that these two statutes may be construed harmoniously. First, conducting a "fair public hearing" under Ind. Code § 36-8-10-11 does not conflict with conducting an executive session for discussions among board members prior to their determination under Ind. Code § 5-14-1.5-6(b)(5)(B). A hearing is testimony and argument heard by the merit board from the disputants before it. It does not include deliberations or discussions by the merit board members with each other. Second, our understanding of the first amendment and the due process provisions of the fifth and fourteenth amendments to the federal constitution suggests that the statutes should be interpreted in a way that assures a fair determination of the deputies' rights in their employment.

I. Fair Public Hearing

We construe "fair public hearing" as not conflicting with the merit board's proposed use of the Open Door Law's executive session provision. In construing statutes, words and phrases must be given plain, ordinary and usual meaning, unless a contrary purpose is clearly shown by the statute itself. Clipp v. Weaver (1983), Ind., 451 N.E.2d 1092; Overlade v. Wells (1955), 234 Ind. 436, 127 N.E.2d 686. In determining the plain, ordinary and usual meaning of fair public hearing, we first examine the meaning of "hearing" to discover whether any conflict with the applicable executive session provision exists. We understand "hearing" to include the presentation of evidence, rebuttal of evidence, and argument about the evidence; but the term in its plain, ordinary and usual meaning does not include the exchange of thoughts by the merit board members. The most common understanding of a "hearing" is that the appropriate members of the agency hear the facts, the characterization of facts, and argument about the facts.3 This meaning of "hearing" is adopted by each of the authorities we have been able to find.4 The parties have not presented any contrary understandings.

As for the term "public" in this context, we construe that much in the same way as the first and sixth amendment's right of access by media and the accused's right to a "public trial." In construing those rights, the Supreme Court has held that the presentation of evidence and argument about the evidence are public but not the jury's or judge's deliberations. See generally Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). Practical human experience indicates that private discussions permit greater candor among board members in evaluating their judgments.5 Their judgment will still contain all the necessary elements for rigorous public scrutiny: the evidence presented, the evidence debated and the final decision explained by findings of fact in writing. See Ind. Code § 36-8-10-11(a) ("The board shall make specific findings of fact in writing to support its decision").

Thus, because the plain meaning of a "fair public hearing" does not include private discussions permitted by section 6 of the Open Door Law, we hold that the merit board may proceed as it proposed in its January 22, 1987, correspondence. This statutory construction contrasts with our conclusion in Berry I that the provision of executive sessions for the receipt of evidence conflicts with the fair public hearing provision of Ind. Code § 36-8-10-11 and that the latter must prevail.

B. Due Process

This statutory interpretation must proceed in light of the fifth and fourteenth amendment due process rights of the officers. Justice Bobbitt explained the role of constitutional consideration in statutory interpretation: "The law is well settled that we should construe a statute, if there is doubt as to its meaning, in favor of an interpretation which accords due process to the parties rather than to adopt a construction which denies due process and invalidates the statute." Knoy v. Indiana Real Estate Commission (1959), 239 Ind. 379, 383, 157 N.E.2d 825, 828.

Procedural due process protections are afforded the two deputies because they have a property interest at stake. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The property interest in this case was created by the merit board statute, Ind. Code § 36-8-10-11(a). That statute creates a legitimate claim of entitlement by the sheriff deputies to their jobs. The constitutional right to due process attaches once the legislature creates a property interest in a civil service job. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

When protected interests are implicated, the Court in Roth suggests the extent of process required is "notice and opportunity for hearing appropriate to the nature of the case... ." Roth, 408 U.S. at 570 n. 7, 92 S.Ct. at 2705 n. 7, 33 L.Ed.2d at 556 n. 7 (quoting Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90, 96 (1971)).

The Supreme Court uses a balancing test to determine what procedures due process requires. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (termination of Social Security disability payments); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (termination of government employment). In Mathews, Justice Powell described the relevant considerations as:

Mathews, 424 U.S. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33.

The Mathews test is commonly used to determine whether due process requires additional procedural safeguards to protect an individual's property or liberty rights. While litigants are more often before courts urging that Mathews entitles them to a hearing, the basic purpose of this test is determining what process is due. Mathews thus applies to the question at hand.

The first step in the Mathews analysis addresses the private interest threatened by the board's action. In this case, that interest is a substantial one, the right to continued civil service employment terminable only upon a fair public hearing.6 Second, the risk of erroneous deprivation of that interest, as we noted earlier, arises out of the chilling effect of requiring board members to muse publicly about the relative credibility or dubiosity of the witnesses and parties before them. Third, the government interest in reaching the best possible personnel decision can be narrowly tailored through public airing of the evidence and private discussion of the merits, and public action and entry of findings.

The principles from Mathews suggest that reading the statutes so as to require that the deputies' fate be deliberated under the circumstances urged by appellees would mean a deprivation of the deputies' due process rights. The prospect of such a deprivation favors a statutory construction which accords due process. Knoy, 239 Ind. 379, 157 N.E.2d 825.

A countervailing constitutional right, however, is asserted by the media parties. They argue that the first amendment's right of access dictates open deliberations. See Press Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 606-67, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248, 256-57 (1982) ("the state's justification in denying access must be a weighty one ... it must be shown that the denial is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest."). None of the cases cited by the media on the right of access, however, extends that right to judicial, jury, or administrative deliberations. Indeed, one of the cited cases describes the limits of the first amendment's right of access:

Society of Professional Journalists v. Secretary of Labor, 616 F.Supp. 569, 577 (D. Utah 1985).

Further, the Supreme Court has long recognized a general bar against probing "mental processes" of administrative decision-makers. United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 1004, 85 L.Ed. 1429, 1435 (1941); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136, 155 (1971). In short, we think the constitutional issues apparent in this case, on balance, militate against the trial court's decision and in favor of reading the statute as we have.

We reverse the judgment of the trial court.

DeBRULER, GIVAN, PIVARNIK and DICKSON, JJ., concur.