Marengo makes Bullington a reserve
ILEA Master Instructor's letter raises concerns, but council president says it doesn't reflect town's latest action
September 21, 2011Town of Marengo officials have continued efforts to keep their choice for town law enforcement in uniform despite opposition, mainly from other law enforcement officers.
As reported in a recent Clarion News article, Wayne Bullington, a former deputy of the Crawford County Sheriff's Department, left law enforcement years ago and pursued other interests. During that time, one of his legs had to be amputated due to a serious infection. Once he was fitted with a prosthetic limb and learned to use it, he worked for a while in corrections at the Crawford County Jail then shifted to a law enforcement position at Marengo.
After accepting the position of town marshal, Bullington was required to attend training at the Indiana Law Enforcement Academy. He had completed the training years earlier, but anyone wanting to return to police work following a six-year absence must retake the training.
Although Bullington excelled at much of the classroom training, he was unable to complete the firing range section to his trainer's satisfaction and was removed from the class.
Since then, town officials have been exploring ways to keep him on in some law enforcement capacity. They recently passed an ordinance that allowed Bullington to serve as a special officer "with the powers and duties granted to a regular police officer pursuant to IC 36-8-3-7." That ordinance, however, has since been shelved after some protested its legal status.
At their regular monthly meeting on Sept. 12, town officials deployed another strategy, making retired Indiana Conservation Officer Larry (Moose) Allen town marshal which, they indicated, would allow Bullington to work under Allen as a special officer with arrest powers and the ability to carry a firearm. The plan would allow the town to split its $250-a-week police budget between the two men, with Allen receiving $50 as acting marshal and Bullington receiving $200 to work part time as a security officer. He would then serve as a part-time, unpaid special deputy, which would give him the ability to make arrests and carry a firearm.
Members of the town council voted 3-0 in favor of the arrangement, and Allen was sworn in for the position at the meeting.
But some are still convinced that the arrangement will not hold up under scrutiny due to the way Indiana law is written on the matter.
"This could put all of us in a liability situation," Milltown Police Chief Ray Saylor said. "We all fall under the same criteria. If not, no town would go to the expense of sending officers to the academy. This has nothing to do with having a disability; this is about complying with the law. A person may be the greatest guy in the world but still not qualified to serve as a police officer."
In a letter to the Crawford County Sheriff's Department, attorney A. Howard Williams, who serves as a Master Instructor at the Indiana Law Enforcement Academy, wrote: "I am well aware of the statutory mandate regarding the minimum training and qualifications of law enforcement officers in the State of Indiana. I graduated from the 20th Basic Academy Class in 1973 and have worked in law enforcement capacity for the past 40 years."
Williams went on to say that he had spoken to Lt. David Kipper, firearms instructor at the Indiana Law Enforcement Academy, who reported that Bullington had problems on the firing range including pointing his firearm at other students while trying to kneel down, even during live fire training.
Kipper also said Bullington also had difficulties loading his magazine with rounds and performing the malfunction clearance drill, where he would often point the weapon at his own feet. Williams said that Kipper also told him that he, on three separate occasions, had to physically block Bullington's weapon from sweeping other students/instructors while going down to and getting up from a kneeling position. The instructor also told Williams that Bullington had pinched his pinkie finger three separate times while trying to clear malfunction and that he had limited hand strength and was having a hard time pulling the slide all the way to the rear.
"Marshal Bullington was called to the Range Control Tower (on the second day) and Lt. Kipper explained to him that his conduct endangered the overall safety of the range," Williams said in the letter. "Marshal Bullington turned in the remainder of his rounds and departed the range. Based on these facts, it is absolutely clear that Wayne Bullington failed the mandatory statutory qualifications required of all Indiana police officers and therefore cannot exercise the powers of arrest, conduct a search or a seizure of a person or property, or carry a firearm. I have reviewed IC 36-8-3-7 and can find no indication that said statute would allow a town or municipality to subvert the state mandated minimum proficiency standards required by the Indiana Law Enforcement Training Board.
"Based on my 35-plus years of defending law enforcement related civil liability cases, I can state with certainty that the current situation represents an intolerable legal liability risk to the taxpayers. The Marengo Town Council would be deemed to be deliberately indifferent to a known risk of injury to the public and their citizens by authorizing a statutorily ineligible individual to operate in a police capacity."
Williams went on to say that Bullington is not authorized to access law enforcement data bases, communicate on emergency allocated radio frequencies or conduct any form of criminal investigation.
"Sheriff's personnel should not assist Mr. Bullington in any criminal matters involving third parties," Williams said in the letter. "The Crawford County Jail should not accept any person presented to the jail as the result of an alleged arrest by Mr. Bullington. Mr. Bullington should not be allowed to enter the secured areas of the Crawford County Jail. Mr. Bullington should be excluded from any crime scene. Mr. Bullington may not legally operate a police vehicle or impersonate a police officer, and Mr. Bullington may not be granted access to NCIC or IDACS operated by the sheriff's department."
"That letter is not accurate," Tonia Elliott, president of the Marengo Town Council, said Monday. "It was written before we took the last action on this. We are trying to do everything legally.
"Our attorney got in touch with the attorney at the academy when we passed the first ordinance and discovered that it may not be the appropriate course action. So, we hired Moose (Allen), which will allow Wayne to work as a reserve officer under Moose and as a security officer part time. The town council has received many compliments about the good work Wayne (Bullington) has done. And we've done nothing different than what others have done. Wayne will be a reserve officer. He took his 40-hour basic under Ray Saylor before he was hired. And as a reserve, that's all he needs."
Saylor said Bullington took only the classroom portion of the 40-hour basic under him and that physical tactics and firearms use were not covered.
Crawford County Prosecutor Cheryl Hillenburg said she hasn't heard back from the county attorney on the issue. "I'm trying to keep abreast of the situation," she said, "but I haven't gotten a response from legal counsel yet, so I really can't comment now."