Town workers who claim their conversations were illegally recorded lose appeal

Municipal employees who alleged their conversations were illegally recorded in violation of the Indiana Wiretap Act failed in their appeal challenging the grant of summary judgment to their employer, the town of New Carlisle.

The case involves former New Carlisle Police Chief Jeff Roseboom, Sgt. Ron Whitt, Det. Patrick Cicero, New Carlisle Town Council member Ron Colpitts and his niece, Abbey Moffitt. The group alleged other city officials had been spying on conversations they had either in Roseboom’s office or the office of the town clerk, Susan Moffitt.

The town had installed video surveillance in the Town Hall beginning in 2009, but there were never audio components. However, the appellants began to suspect their conversations were being recorded when an unrelated person would bring up topics they had discussed in private. According to the Indiana Court of Appeals, “(t)he trial court described an acrimonious relationship between the parties spanning well over a decade, much of which colors the narrative of the Appellants’ claims.”

The appellants filed a complaint against the town, and both parties moved for summary judgment. The St. Joseph Superior Court ruled in favor of the town, and the Court of Appeals affirmed Thursday in Ron Whitt, Jeff Roseboom, Abbey Moffitt, Patrick Cicero, and Ron Colpitts v. Town of New Carlisle, 20A-CT-2279.

“Here, the Appellants have designated no evidence that electronic communications were intercepted, alleging only that security cameras or hidden devices in offices may have been secretly recording audio, allegations which only entail the interception of oral communication,” Chief Judge Cale Bradford wrote.

“Further, while Appellants claim that those audio devices may also have captured one side of a phone conversation at times, or that an office phone may have been used to capture oral conversations occurring in an office, those interceptions would also not fall under the IWA, as the statute only covers the interception of communication during its transmission.

“… The Town’s designated evidence showed there were no allegations of any intercepted communications that fell within the scope of IWA, nor did any of the Appellants’ evidence show that there were any allegations or material facts that any such recording that would violate the IWA took place,” Bradford wrote.

The COA panel also rejected the appellants’ argument that their rights under 42 U.S.C. § 1983 were violated, finding that the town council had not authorized “the creation or operation of an audio surveillance system in the Town Hall.”

“Further, the Appellants have failed to designate any evidence to suggest that a Town employee with final policy-making authority over the town acted to create an audio surveillance system,” Bradford continued.

“Although they have made claims regarding certain police officer and town employees, none of those individuals are alleged to have final decision-making authority to implement the alleged surveillance. As the trial court points out, even if the Chief of Police ordered and oversaw the installation of a security system, a police chief ‘is the final policymaker for his municipal department’ but not for the town,” the chief judge concluded.