Former Director of Public Safety Joe Wehner will have to wait another day to see if he will return as director. Judge Robert Barnet withheld his decision to order an injunction against Ball State's decision to reappoint him.
After almost three hours of testimony and debate, Barnet said he would weigh the evidence over night, thus concluding a court session that lasted until about 6:30 p.m.
The evidence for Barnet to consider includes allegations that Ball State denied Wehner his Constitutional due process and that Wehner had lost Ball State's trust.
Wehner's attorney, Mark Abrell of Dennis, Wenger and Abrell, argued that Wehner was effectively terminated from his job as director, though technically Wehner was given another position in the university as is still being paid as an employee.
Abrell said Wehner had a property interest in his job, primarily his reputation, and that by losing his position the university was causing him harm.
"He is damaged goods at this point," Abrell said. "He's never going to cover the reputational damages. That's irreparable.
"Every day he is not in that particular job is a day forever lost. He is entitled to that particular job and to stay in that particular job until they prove him with due process."
According to Abrell, the university violated several provisions of its faculty and professional personnel handbook when it gave Wehner no specific causes for his reappointment. Abrell also said the university acted to hastily and did not give the required 12-month notice that he would no longer be director.
Ball State's attorney, Steven Murphy of Defur, Voran, Hanley, Radcliff and Reed argued an injunction does not apply to Wehner because he was never officially dismissed. The university has a right, Murphy said, to determine its employees' appointments, in which the due process of law does not apply because, ultimately, no economic harm was done.
"That was a lot of language and a lot of words, but there was no law behind it," Murphy said. "Mr. Abrell keeps blurring the distinction between termination of employment and reappointment of another job."
Doug McConkey, the vice president of student affairs, was the defense's only witness. He said the culmination of multiple civilian complaints, coupled with the recent investigations from the Indiana State Police, caused him and Dean of Students Randy Hyman to question Wehner's leadership ability. McConkey testified that Wehner could not regain the decaying public trust in the department. If he were reappointed, he said, it would be "a real step backwards."
"I came to the conclusion, and it was supported, that there was not, and is not, a level of trust," he said.
As to Abrell's accusations that Wehner was never given any causes for his dismissal, McConkey said he was confident Hyman informed Wehner of their lack of confidence in his leadership.
Abrell, however, said it wasn't an issue of trust, but of politics. Abrell accused the university of getting rid of Wehner to appease public opinion and one criminal defendant who was arrested by UPD. The defendant, an unidentified university donor, complained to the university about the number of police officers present.
During his testimony, Wehner said three officers arrested him. He admitted that may be excessive, but it is only one more than normal. It wasn't normal, according to Wehner, when he and Hyman talked to the defendant without any lawyers present.
McConkey and Wehner offered conflicting testimonies concerning the defendant. Wehner said the defendant also complained about being handcuffed by the officers. McConkey said the complaint concerned the manner he was handcuffed.
McConkey also said this one particular complaint was one of many that sealed Wehner's fate.