 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,
                                                                         Jul 07 2014, 9:28 am
 collateral estoppel, or the law of the case.




ATTORNEYS FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
JOHN F. KAUTZMAN                                    ANTHONY W. OVERHOLT
JOHN A. HENRY                                       MAGGIE L. SMITH
Indianapolis, Indiana                               Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

ANTHONY NEUMEISTER,                                 )
                                                    )
       Apellant-Defendant,                          )
                                                    )
           vs.                                      )     No. 30A01-1309-PL-00387
                                                    )
CITY OF GREENFIELD, INDIANA,                        )
                                                    )
       Appellees-Plaintiffs.                        )

                     APPEAL FROM THE HANCOCK CIRCUIT COURT
                       The Honorable Daniel J. Pfleging, Special Judge
                              Cause No. 30C01-1201-PL-100


                                           July 7, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
        Police Officer Anthony Neumeister (“Neumeister”) was terminated for cause by

the Board of Public Works and Safety for the City of Greenfield, Indiana (“the Board”).

Neumeister sought judicial review of his termination in Hancock Circuit Court. The trial

court affirmed the Board’s termination of Neumeister’s employment.                          Neumeister

appeals and raises the following arguments, which we restate as:

        I. Whether Neumeister’s due process rights were violated during the
        administrative hearing process; and

        II. Whether the Board’s decision to terminate Neumeister’s employment was not
        supported by substantial evidence.

We affirm.1

                                 Facts and Procedural History2

        On August 7, 2011, at approximately 3:00 a.m., Anthony Neumeister, then a ten-

year veteran police officer with the Greenfield Police Department (“GPD”), was off-duty

and working at his second, private employment security job when he mentioned to his

close friend Michael Shawn Huff (“Mr. Huff”) that he was interested in selling his

personal firearm, a Glock .45 caliber handgun. Mr. Huff expressed interest in purchasing




1
  On June 6, 2014, Neumeister filed a motion with this court seeking a stay of appeal. The motion cites
an affidavit by witness Justin Jenkins recanting his statement that he observed Mr. Huff with a handgun
and that Mr. Huff told him that Neumeister had sold the firearm to him. In his motion, Neumeister argues
that this newly discovered evidence requires that the cause be remanded to the trial court for additional
proceedings. We disagree. Neumeister’s motion was denied by order of our court dated ______.
2
  In his brief, Appellant’s counsel failed to provide a statement of facts most favorable to the judgment.
2
  In his brief, Appellant’s counsel failed to provide a statement of facts most favorable to the judgment.
We remind Appellant’s counsel that pursuant to Indiana Appellate Rule 46(A)(6)(b), an appellant's
statement of facts “shall be stated in accordance with the standard of review appropriate to the judgment
or order being appealed.”
                                                    2
the firearm but informed Neumeister that Mr. Huff had been convicted of two felonies in

Ohio3 and that, therefore, it would be illegal for Mr. Huff to purchase the firearm.

       Shortly thereafter, Neumeister used the police computer in his cruiser to contact

Hancock County Emergency Operations Center dispatcher John Collins (“Collins”).

Neumeister asked Collins to perform a criminal history inquiry on Mr. Huff using the

Indiana Data and Communication System (“IDACS”), a database which accesses national

and statewide criminal history information and Bureau of Motor Vehicle information.

Although there were no active criminal investigations regarding Huff, and although

federal and state regulations restrict IDACS use to “criminal justice” purposes only,

Neumeister categorized the purpose for the inquiries as for “investigation.” Appellee’s

App. pp. 30, 35, 38, 92. The inquiry, using the name “Shawn Huff”, revealed no criminal

history for Mr. Huff. Several hours later, Neumeister performed a second using the name

“Michael Shawn Huff,” which revealed that Mr. Huff had a criminal history that included

two felony convictions in Ohio.

       Within “a week or two” of Neumeister’s August 7 conversation with Mr. Huff and

IDACS inquiries, Neumeister sold his firearm to Mr. Huff’s wife (“Mrs. Huff”) for $400

cash. Appellee’s App. p. 808. Mrs. Huff claimed that she purchased the gun for personal

safety reasons, but later testified that she had no permit for the gun and little

understanding of how to operate the gun. She also testified that she stored the gun in the

same safe where Mr. Huff kept the nightly deposits for his construction business.


3
  In Ohio, Mr. Huff was convicted of deception to obtain illegal narcotics and possession of illegal
narcotics.
                                                 3
       Several weeks later, on September 27, 2011, Justin Jenkins (“Jenkins”), a former

employee of the construction company owned by Mr. Huff, came to the Hancock County

Sherriff’s Department and reported to Captain Kevin Haggard (“Captain Haggard”) that

Jenkins believed that Mr. Huff, a convicted felon, was in possession of a firearm. Jenkins

stated that Mr. Huff had shown the firearm to Jenkins at Mr. Huff’s construction office

and that Mr. Huff had told Jenkins that Neumeister sold Mr. Huff the firearm. According

to Jenkins, Kyle Ellison (“Ellison”), another employee of Mr. Huff, also saw Mr. Huff

with the firearm at Mr. Huff’s home. Captain Haggard later confirmed this with Ellison,

who added that Neumeister had contacted Ellison after Jenkins went to the Sheriff’s

Department and questioned him regarding the information Ellison had about Mr. Huff’s

possession of the firearm.

       Later on the same day he met with Jenkins, Captain Haggard contacted Detective

Randy Ratliff (“Detective Ratliff”) with the GPD to report what Jenkins had told him.

Using IDACS records, Detective Ratliff confirmed that on August 7, 2011, Neumeister

had used his user ID to run two inquiries on Mr. Huff. Detective Ratliff also determined

that there was no pending criminal investigation involving Mr. Huff justifying the

inquiries. Detective Ratliff then reported his findings to John Jester, Chief of Police for

the GPD.

       The same day, September 27, 2011, Captain Haggard wrote a letter to Indiana

State Police First Sergeant John Carmin (“Sergeant Carmin”), Commander of IDACS, to

notify him of the police department’s investigation of Neumeister’s potentially improper

use of the system. Sergeant Carmin thereafter accessed the system in archival mode and

                                            4
confirmed that on August 7, 2011, Neumeister’s user ID was used to access the system to

run two inquiries on Mr. Huff. The GPD later received a reprimand from the Indiana

State Police for the violation.

       The next day, September 28, 2011, Captain Haggard contacted Special Agent

Emmit Carney (“Agent Carney”) with the Bureau of Alcohol, Tobacco, Firearms, and

Explosives regarding the investigation on Neumeister. Later that afternoon, Captain

Haggard and Agent Carney met with Mr. Huff at his construction business. Mr. Huff

confirmed to them that he was a convicted felon but denied that he purchased the firearm

from Neumeister, insisting that it was his wife who made the purchase. Mr. Huff also

acknowledged that Neumeister had performed an inquiry into Mr. Huff’s criminal history.

Agent Carney later told Captain Haggard that the transaction between Neumeister and

Mrs. Huff possibly violated state and federal statutes, but that Agent Carney did not know

whether the United States Attorney’s Office would bring charges and that Agent Carney

did not intend to seek charges against Neumeister.

       The same afternoon, Neumeister, who was on duty at the time, requested a

meeting with Detective Ratliff and Chief Jester. Neumeister first told Ratliff and Jester

that he had sold his firearm to Mr. Huff, then quickly changed his statement to claim that

he sold it to Mrs. Huff. Neumeister claimed that he had run only one criminal history

inquiry on Mr. Huff. Neumeister claimed that his IDACS inquiry revealed no criminal

history for Mr. Huff. Neumeister stated that he was not aware that use of the IDACS

system was reserved for police investigations only.



                                            5
      The next day, September 29, 2011, Detective Ratliff learned that, on the day of his

meeting with Detective Ratliff and Chief Jester, Neumeister had contacted Hancock

County Emergency Operations Center coordinator Keri Brady (“Brady”) and asked her

whether she believed he had violated any policies by using IDACS to search for Mr.

Huff’s criminal history. After Brady told Neumeister that she did believe that he had

violated IDACS policy, he asked her not to tell anyone about their conversation. Also, on

September 29, 2011, pursuant to an agreement Mr. Huff had made during his meeting

with Captain Haggard and Agent Carney to surrender the firearm, Neumeister arrived at

Mr. Huff’s place of business to obtain possession of the firearm.

      Based on the information he gathered regarding Neumeister’s use of IDACS and

the transaction between Neumeister and Mrs. Huff, Detective Ratliff believed that

Neumeister had violated GPD policy and procedure. On October 5, 2011, Detective

Ratliff met with Neumeister for a recorded interview, during which Neumeister admitted

that he had performed two inquiries into Mr. Huff’s criminal history and that there was

no particular crime which he was investigating when he performed the inquiries.

      On October 21, 2011, Chief Jester issued his Notice of the Chief of Police’s

Charges, where he recommended that Neumeister be terminated from his position as a

police officer.   Chief Jester based his recommendations on his determination that

Neumeister “performed a ‘Straw purchase’ gun sale to the wife of Michael Huff knowing

that Michael Huff was a convicted felon and violated [] Standard Operating Procedures,

as well as IDACS/NCIC rules”; that Neumeister “knowingly lied to Dispatcher John

Collins to receive a criminal history on Michael Huff”; and that Neumeister violated

                                            6
Greenfield Police Department procedures prohibiting officers from using their official

position or department property for “personal or financial gain.” Appellee’s App. pp.

1096-97.

       On October 26, 2011, the Board notified Neumeister that a hearing had been set

for November 21, 2011. The notice provided that Neumeister had the right to call

witness and to subpoena witnesses. Neumeister requested that the hearing be rescheduled.

The Board granted Neumeister’s request and rescheduled the hearing.

       The three-day hearing was held on December 5, 8, and 9, 2011. Members of the

Board presiding over the hearing were Brad DeReamer, mayor of the City of Greenfield

(“DeReamer”), Joseph Duffy, and Ronald Nichter (“Nichter”). On December 5, the first

day of the hearing, Neumeister asked the Board to continue the hearing because he

wished to present testimony by Agent Carney, who was on vacation at the time. The City

objected, observing that Neumeister had known about the hearing since October 27, 2011,

and could have subpoenaed or arranged to depose Agent Carney, but failed to do either.

The Board denied Neumeister’s request for a continuance but allowed Neumeister to

introduce into evidence a newspaper article in which Agent Carney told a local reporter

that he believed that Neumeister “didn’t break the law” because no licensed gun dealer

was involved in the transaction. Appellee’s App. p. 1098. At the hearing, Neumeister

also requested that the Board remove DeReamer as a presiding member since DeReamer

was a defendant in a prior federal claim filed by Neumeister, in which Neumeister

alleged that he was wrongfully denied a job promotion. The Board denied Neumeister’s

request.

                                           7
       During the hearing, twenty witnesses testified, and Neumeister’s counsel cross-

examined all of the witnesses who appeared. Members of the Board also asked questions

of the witnesses. The Board also admitted videotaped statements by Jenkins and Ellison

over Neumeister’s counsel’s objection.

       The parties tendered proposed findings and conclusions to the Board.            On

December 14, 2011, the Board issued twenty-two pages of findings of fact and

conclusions terminating Neumeister’s employment as a police officer.           The Board

concluded that Officer Neumeister used IDACS to further his personal interest, in

violation of several Department policies and procedures and state law; that he lied about

his purpose for accessing the system; that his conduct resulted in an investigation by the

Hancock County Sheriff’s Department, the Hancock County Prosecutor, the Shelby

County Prosecutor acting as Special Prosecutor, the federal Bureau of Alcohol, Tobacco,

and Firearms, and the Indiana State Police; that he caused embarrassment to the

Greenfield Police Department and the Hancock County dispatch center; and that his

behavior “reflect[ed] badly on the integrity of police professionals.” Appellant’s App. p.

110.   The Board determined, “For Officer Neumeister’s actions, as set forth in the

Findings of Fact and his violation of federal law, state law, state regulations, Greenfield

Police Department Standard Operating Procedure and the Greenfield Policy and

Procedure Manual, his employment shall be terminated[.]” Id. at 112.

       On January 13, 2012, Neumeister filed in Hancock Circuit Court his petition for

judicial review of the Board’s findings and conclusions, claiming due process violations

and lack of substantial evidence. The trial court held a hearing on Neumeister’s petition

                                            8
the following day. The trial court allowed Neumeister to supplement the record with

exhibits and testimony by Agent Carney, who stated that he did not believe that

Neumeister violated federal law because, under his reading of the law, a licensed firearm

dealer must be involved before such a sale is illegal.

       On February 22, 2013, the parties submitted to the trial court their proposed

findings of fact and conclusions. Six months later, on August 19, 2013, the trial court

issued its findings of fact and conclusions thereon, determining that substantial evidence

supported the Board’s decision to terminate Neumeister’s employment and that

Neumeister’s due process claims were without merit.

       Neumeister now appeals.

                                  I. Standard of Review

       This court reviews a decision of a municipal safety board as it does that of one by

an administrative agency.     Ind. Code § 36-8-3-4.      Our review of an administrative

decision is limited to whether the agency decision rests upon substantial evidence,

whether the decision was arbitrary and capricious, and whether it was contrary to any

constitutional, statutory, or legal principle. Fornelli v. City of Knox, 902 N.E.2d 889,

892 (Ind. Ct. App. 2009), trans. denied.

       Importantly for this case, “the discipline of police officers is within the province of

the government’s executive, rather than judicial, branch.” Sullivan v. City of Evansville,

728 N.E.2d 182, 187 (Ind. Ct. App. 2000). “For this reason, we will not substitute our

judgment for that of the administrative body when no compelling circumstances are

present.” Id.

                                              9
                                            II. Due Process

        Neumeister first claims that he was denied due process, citing several perceived

inadequacies during the administrative proceedings. Specifically, Neumeister argues that

“actual biases exhibited” by Board members DeReamer and Nichter are “substantially

prejudicial to Neumeister”; that the Board improperly denied several of Neumeister’s

motions; engaged in ex parte communications; and denied Neumeister the opportunity to

cross-examine the City’s witnesses, Jenkins and Ellison.4 Id. at 10-11.

        “The tenure given a police officer ‘is a constitutionally protected interest requiring

the opportunity for a fair hearing conducted in good faith before a full and impartial

body.’” Sullivan v. City of Evansville, 728 N.E.2d 182, 187 (Ind. Ct. App. 2000)

(quoting Atkinson v. City of Marion, 411 N.E.2d 622, 628 (Ind. Ct. App. 1980).

“Although such proceedings are not subject to all of the procedural safeguards afforded at

a trial, it is evident, as our courts have held, that the procedural standards should be at the

highest level workable under the circumstances, and that the fact-finding process should

be free of suspicion or even the appearance of impropriety.” Atkinson, 411 N.E.2d at

628.

        We first address Neumeister’s claims that DeReamer and Nichter were unable to

serve as impartial members of the Board because DeReamer was “the subject of personal

and professional attack” in a lawsuit filed by Neumeister and because Nichter had

4
  Neumeister also argues that “the trial court’s verbatim adoption of the [City’s] tendered findings of fact,
conclusions of law, and determination diminishes Neumeister’s burden under the clear error standard of
review.” Appellant’s Br. at 11-12. This statement is inaccurate, at best. Our review and comparison of
the City’s tendered findings and conclusions and the trial court’s findings and conclusions indicates that
the trial court did not adopt the City’s tendered findings verbatim, but rather, made dozens of changes to
them.
                                                    10
previously been represented in an unrelated civil action by Gregg Morelock (“Morelock”),

attorney for the city of Greenfield.

       Just as a judge must act with fairness and impartiality, a tribunal must act with

fairness and impartiality. See Matter of Guardianship of Garrard, 624 N.E.2d 68, 70 (Ind.

Ct. App. 1993); City of Mishawaka v. Stewart, 261 Ind. 670, 677, 310 N.E.2d 65, 69

(1974). We presume that “administrative agencies will act properly with or without

recusal of allegedly biased members” and in the absence of “a demonstration of actual

bias,” we will not interfere with the administrative process. Ripley Cty. Bd. of Zoning

Appeals v. Rumpke of Ind., Inc., 663 N.E.2d 198, 209 (Ind. Ct. App. 1996).

       To prove bias, a party must “establish from the [Board’s] conduct actual bias or

prejudice that places [him] in jeopardy.” Tharpe v. State, 955 N.E.2d 836, 839 (Ind. Ct.

App. 2011). One may not merely allege bias and prejudice against a tribunal to escape

the rigors of normal administrative procedure. New Trend Beauty Sch., Inc. v. Indiana

State Bd. of Beauty Culturist Examiners, 518 N.E.2d 1101, 1105 (Ind. Ct. App. 1988).

Even if bias exists, reviewing court must presume that the Board will act properly with

respect to discharge or discipline of police officers with or without recusal of allegedly

biased members. Adkins v. City of Tell City, 625 N.E.2d 1298 (Ind. Ct. App. 1993).

       After considering Neumeister’s claims of bias, the trial court concluded, in

relevant part:

       41. As to Attorney Morelock’s representation of a Board member in
       unrelated litigation months before this case arose, there is no evidence to
       suggest a conflict of interest warranting reversal. As the Board noted in its
       findings, the only statutory limitation on the role of counsel at these
       hearings (other than the Rules of Professional Conduct) is that an attorney

                                            11
      prosecuting the case against an officer cannot also vote on the termination
      decision. See Ind. Code § 36-8-3-4(c). This conclusion also eliminates
      Petitioner’s argument that Attorney Overholt, as counsel to the Board,
      could not participate because he represented the City of Greenfield in an
      unrelated lawsuit filed by Petitioner.

      42. There is nothing in the Rules of Professional Conduct that prohibited
      Attorney Morelock’s participation in the hearing since his representation of
      Officer Neumeister in a previous family law matter was unrelated to the
      issues in this case. See Ind. R.P.C. 1.9.

                                          ***

      48. Petitioner claims that Mayor DeReamer and Chief Jester could not
      participate because they were defendants in a civil suit where Petitioner
      claimed that the Mayor and the Chief denied his requests for promotion.
      This is not evidence of actual bias.

      49. Further, even if this Court were to find that being a defendant in that
      suit was evidence sufficient to show actual bias (which it is not), the Mayor
      and the Chief had to play their respective parts in the hearing because State
      law requires it. Under Ind. Code § 36-8-3-4(a), the board of safety/board of
      works must conduct the hearing. Under Greenfield Rev. Ord. 31.12, the
      Mayor is, by law, a member of the Board. See Copy of Rev. Ord. 31.12,
      attached hereto. Neither State nor local law provides a recusal process for
      the Mayor’s role on the Board.

      50. Even if this Court determined that there was evidence showing Mayor
      DeReamer’s bias, Petitioner still would not be entitled to a reversal of the
      Board’s decision because the Mayor, by law, must serve on the Board.
      Indiana follows the “rule of necessity.” “[T]he rule of necessity provides
      that, in order that the law is not powerless to act, an otherwise disqualified
      judge may nevertheless preside over a case if there is no sufficient
      replacement.” Brown v. State, 684 N.E.2d 529, 534 (Ind. Ct. App. 1997).
      Indiana law, requires Mayor DeReamer to serve on the Board and requires
      Chief Jester, as the Chief, to file the discipline charges.

      As noted by the trial court, Neumeister provided no evidence to support his bald

allegations of bias, other than the fact that DeReamer is the defendant in a case brought

by Neumeister, the fact that Morelock previously represented Nichter, and the fact that


                                           12
the Board made various rulings that were unfavorable to Neumeister. This is inadequate

to show actual bias. See Dell v. City of Tipton, 618 N.E.2d 1338 (Ind. Ct. App. 1993)

(fact that safety board heard police officer’s dismissal case once and decision was

overturned by appellate court did not render board biased and unable to rehear the case,

where officer presented no evidence to demonstrate that board was actually biased).

       Furthermore, because Greenfield Revised Ordinance 31.12 requires that the Mayor

serve on the Board of Public Works, the rule of necessity allows his presence on the

Board notwithstanding any alleged bias. The rule of necessity is a doctrine firmly rooted

in common law and provides that, so that the law is not powerless to act, an otherwise

disqualified judge may nevertheless preside over a case if there is no sufficient

replacement. See Adkins v. City of Tell City, 625 N.E.2d 1298 (Ind. Ct. App. 1993)

(Where Board of Safety heard evidence and formed opinion regarding grave charges of

seduction and sodomy against police officer prior to officer’s dismissal hearing, this

exposure called into question Board’s impartiality, but rule of necessity permitted Board

to hear officer’s case and officer’s due process rights were not violated thereby, since if

Board could not rehear case after original improper hearing resulted in invalid decision to

dismiss officer, city would be powerless to remove him; moreover, officer did not

challenge veracity of charges against him).       As the trial court noted, the General

Assembly did not incorporate a recusal process for administrative proceedings because

       It would be too easy for employees facing discipline to abuse the process
       making tenuous arguments for recusal in order to delay or complicate the
       proceedings. That risk is especially high for smaller communities, such as
       Greenfield, which generally lack a wealth of personnel who can be called


                                            13
       upon to fill in for a recused member during a multiple-day Board hearing
       such as this one.

Appellant’s App. p. 270.

       Neumeister next argues that his due process rights were violated by

communications during the proceedings between witnesses Chief Jester and Captain

Haggard, which allegedly took place in violation of a separation of witnesses order and

“within the direct line of sight of two Board members.” Appellant’s Br. at 21. We find

no error here. Neither Chief Jester nor Haggard was a member of the Board, so no

improper ex parte communication occurred. Furthermore, a violation of a separation of

witness order does not constitute a due process violation. See Ashbaugh v. State, 272

Ind. 557, 562, 400 N.E.2d 767, 771 (1980) (Witnesses did not violate separation of

witnesses order, but even if they had, this would not have automatically prohibited their

testimony. Even if the order is violated, the court, in its discretion, may allow the

violating witness to testify.).

       We turn now to Neumeister’s argument that the Board improperly “failed to

provide Neumeister a meaningful opportunity to cross-examine Jenkins and Ellison.”

Appellant’s Br. at 23. Although Jenkins and Ellison were present at the hearing, and over

Neumeister’s objection, Attorney Morelock presented the recorded statements of Jenkins

and Ellison during his case-in-chief.    Morelock then released Jenkins and Ellison,

apparently during the lunch break on the first day of the hearing, from his subpoena and

both witnesses left the hearing. As a result, Neumeister was unable to cross-examine

them. Neumeister argues that this constitutes a violation of his due process rights. We


                                           14
disagree. This issue arose on the first day of the hearing, December 5. After the first day,

the hearing did not reconvene until Thursday, December 8. After he learned that Jenkins

and Ellison had been released from the City’s subpoena and left the hearing,

Neumeister’s counsel objected, stating that he had intended to cross-examine them.

Morelock responded that Neumeister should subpoena Jenkins and Ellison if he wished to

cross-examine them. The Board also offered to take a break to allow Neumeister to call

back Jenkins and Ellison as witnesses, and Neumeister’s counsel responded that he would

attempt to locate them. He had three days to do so, but he did not. As the trial court

noted, because Neumeister failed to act with reasonable diligence here, he has waived

any claim of error. See Hightower v. State, 343 N.E.2d 300, 305 (Ind. Ct. App. 1976)

(“Defendant had the right to confront witnesses at the hearing . . .. [But he] did not

subpoena either of the court appointed physicians for that hearing and his failure so to do

amounts to a waiver of his right to now argue he was deprived of his right to cross

examine said physicians.”).

       Finally, Neumeister argues that the Board improperly denied his request for a

continuance so that he could call as a witness Agent Carney, who was on vacation at the

time. Again, we find no error here. After Neumeister learned on October 27, 2011 that a

hearing would be held on Chief Jester’s charges, he failed to issue any subpoenas to

secure Agent Carney’s attendance or to make arrangements to take Agent Carney’s

deposition. Instead, he waited until the first day of the hearing, then made a motion to

continue the proceedings because Agent Carney was on vacation. The Board denied

Neumeister’s requested continuance, but allowed into evidence a newspaper article which

                                            15
quoted Agent Carney’s statement that he believed that Neumeister did not break the law.

During the hearing, three witnesses testified that Agent Carney had told them he believed

that a straw purchase in violation of federal law likely had occurred, but that he would

allow Neumeister to reverse the transaction because the U.S. Attorney’s Office would not

file charges and prosecute this case in light of the fact that Mr. Huff’s underlying felonies

were not violent crimes. And on review of the Board’s decision, the trial court allowed

Neumeister to supplement the record with Agent Carney’s live testimony, which was

nearly identical to his statement in the newspaper. As the trial court noted, both the

Board and the trial court were free to reject this testimony and did so. We find no

reversible error here.

                                 II. Substantial Evidence

       Neumeister argues that the Board’s decision was arbitrary and capricious and not

supported by substantial evidence in that: 1) the Board relied on evidence which was

admitted in violation of Neumeister’s due process rights; and 2) the record and the trial

court’s findings of fact and conclusions fail to prove that Neumeister knowingly and

intentionally violated IDACS policy.

       An arbitrary and capricious decision is one that is “patently unreasonable” and

made without consideration of the facts and in total disregard of the circumstances and

lacks any basis which might lead a reasonable person to the same conclusion. City of

Indpls. v. Woods, 703 N.E.2d 1087, 1091 (Ind. Ct. App. 1998), trans. denied. Substantial

evidence “means such relevant evidence as a reasonable mind might accept as adequate



                                             16
to support a conclusion.” Davis v. City of Kokomo, 919 N.E.2d 1213, 1222 (Ind. Ct.

App. 2010).

         Indiana Code section 36-8-3-4(h) provides that “[a] decision of the safety board is

considered prima facie correct, and the burden of proof is on the party appealing.” Thus,

an aggrieved party who is attacking the evidentiary support for the agency’s findings

bears the burden of demonstrating that the agency’s conclusions are clearly erroneous.

Davis v. City of Kokomo, 919 N.E.2d 1213, 1222 (Ind. Ct. App. 2010). We do not

conduct a de novo trial, but defer to the fact-finding of the agency, so long as the findings

are supported by substantial evidence. Id. Neither the trial court nor this court is

permitted to reweigh the evidence or reassess witness credibility. Id.

         We have already determined that Neumeister’s due process claims are without

merit.     As explained below, we further conclude that the Board’s findings and

conclusions were supported by substantial evidence and its decision was not arbitrary and

capricious.

         The Board based its decision to terminate Neumeister’s employment largely on

Neumeister’s improper use of IDACS for personal gain, a fact that is largely undisputed.

Indeed, under GPD policy, state law, and federal law, his improper use of IDACS itself

provides adequate basis to support his termination.

         Neumeister admitted that he used the police computer in his police cruiser, while

off duty, to run two inquiries on Mr. Huff. He also admitted that these inquiries were

related to the sale of Neumeister’s personal firearm and not to any pending criminal

investigation. No fewer than six witnesses testified at the hearing that this conduct

                                             17
violated various policies, procedures, and laws. Furthermore, Neumeister attempted to

conceal his violation, asking a dispatch center employee to hide the fact that he had

inquired as to the propriety of his actions and attempting to mislead Detective Ratliff and

Chief Jester regarding the purpose of his IDACS inquiry and the existence of the second

inquiry.

       Mrs. Huff and Mr. Huff both testified that Mrs. Huff was the only person who had

access to the firearm purchased from Neumeister. The Board was free to discount the

credibility of their testimony for many reasons. For example, Mrs. Huff testified that the

gun was stored in the same safe used to keep deposits from Mr. Huff’s business, and she

was not able to demonstrate even a basic knowledge about operation of the firearm. In

addition Mr. Huff had previously expressed interest in buying a firearm from Deputy

Haggard of the Hancock County Sheriff’s Department.

       The Board was also free to reject Neumeister’s self-serving testimony that he

believed that performing a criminal history inquiry to ensure that his own gun sale

occurred legally was a valid IDACS purpose and that he believed that it was not a crime

to sell a firearm to the wife of a man convicted of non-violent felonies. This is especially

true where Neumeister had previously tried to conceal the fact that he used the IDACS

system to run inquiries on Mr. Huff and where Neumeister initially told Detective Ratliff

and Chief Jester that he sold the firearm to Mr. Huff, then quickly changed his statement

to indicate that he sold the gun to Mrs. Huff. Finally, the Board was free to reject Agent

Carney’s statements in a local newspaper that he did not believe that Neumeister’s

conduct was in violation of federal law.

                                            18
       In light of the evidence presented against Neumeister and under our highly

deferential standard of review, we conclude that substantial evidence supports the

Board’s findings, and its decision to terminate Neumeister for violating Greenfield Police

Department policies and procedures, state law, and federal law was not arbitrary and

capricious. Neumeister’s arguments to the contrary are merely a request to reweigh the

evidence and the credibility of the witnesses, which our court will not do.

                                       Conclusion

       For all of these reasons, we conclude that Neumeister has not satisfied his burden

of demonstrating that the trial court’s decision affirming the Board’s determination was

arbitrary and capricious or unsupported by substantial evidence. Accordingly, we affirm

the trial court’s ruling.

       Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.




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