                                                                           FILED
                                                                    Jul 13 2016, 8:31 am

                                                                           CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Lynne D. Hammer                                            Robert P. Thomas
Office of Corporation Counsel                              Thomas & Nugent
Indianapolis, Indiana                                      Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

City of Indianapolis,                                      July 13, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A05-1510-MI-1765
        v.                                                 Appeal from the Marion Superior
                                                           Court
Bradford Bentley,                                          The Honorable Bruce E. Petit,
Appellee-Plaintiff                                         Special Judge
                                                           Trial Court Cause No.
                                                           49D01-1409-MI-30056



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016                     Page 1 of 17
[1]   An Indianapolis Police sergeant was demoted to patrol officer. He sought

      judicial review of the demotion. During the litigation, the City of Indianapolis

      (the City) filed the required transcript over six months late and its summary

      judgment response and designated evidence over four months late. The trial

      court struck all of the untimely filed documents and found in favor of the

      officer. The City now appeals. Finding no error, we affirm.


                                                       Facts
[2]   Sometime in 2013 or 2014, Indianapolis Police Sergeant Brad Bentley was

      demoted to patrol officer. On August 26, 2014, the Indianapolis Metropolitan

      Police Department Civilian Police Merit Board (Merit Board) upheld the

      demotion. Sergeant Bentley filed a petition for judicial review on September

      10, 2014, and then filed a motion for summary judgment on November 24,

      2014. The City did not file the transcript from the Merit Board hearing within

      thirty days of receiving the sergeant’s summons, as required by Indianapolis

      Code section 279-237(o).


[3]   Sergeant Bentley’s wife works for the Marion County Superior Court. As a

      result, the first two trial judges recused themselves. A special judge from

      outside of Marion County was appointed on February 6, 2015. On April 8,

      2015, the trial court afforded the City twenty-one additional days to file the six-

      months-overdue transcript from the Merit Board hearing, though the trial court

      did not explicitly state that the transcript would be accepted if filed by the

      twenty-one-day deadline. The City filed the transcript on April 27, 2015, but


      Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016   Page 2 of 17
the trial court later struck it from the record as untimely filed. On June 16,

2015, the City filed its response to Sergeant Bentley’s summary judgment

motion, but the trial court struck the City’s pleading from the record. 1

Following an argument on the pending summary judgment motion, on October

9, 2015, the trial court found in favor of Sergeant Bentley. In pertinent part, the

trial court found as follows:


        5.       A second issue addressed at the Pre-Trial Conference held
                 April 8, 2015, concerned the Defendant’s failure to file a
                 transcript of the Merit Board proceedings as required
                 pursuant to Municipal Code of Indianapolis, Section 279-
                 237. This failure was one of the grounds upon which
                 Plaintiff was seeking Summary Judgment. The Court
                 Ordered Defendant to file the transcript within twenty one
                 (21) days of the Pre-Trial Order and the Defendant did file
                 that transcript on April 27, 2015. It should be noted that
                 the Court did not grant leave or approve the late filing of
                 this transcript in its Order but merely set a deadline to file
                 that transcript if the Defendant was going to do so. It was
                 the Court’s intent to address the propriety of a late filing
                 and Plaintiff’s remedies, if any, at a later time.


                                                  ***


        8.       . . . Plaintiff contends that because Defendant failed to file
                 the transcript of the Merit Board proceedings as required
                 by the Code Section 279-237, Plaintiff is entitled to
                 Summary Judgment as a matter of law. . . . . Defendant
                 did file the transcript on April 27, 2015, and now argues



1
 The City’s summary judgment response and designated evidence were filed on June 16, 2015, over four
months past the court-imposed deadline of February 9, 2015.

Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016                    Page 3 of 17
                 that any delay of filing that transcript was de minimis or
                 non-prejudicial to the Plaintiff and that Defendant has
                 now substantially complied with the Code’s requirements.
                 Plaintiff requests that the Court vacate its Order allowing
                 Defendant to file a transcript outside the thirty (30) day
                 time limit required by the code and that the Court not
                 consider same. Defendant responds that the Indianapolis
                 Municipal Code does not set forth exclusion of the
                 transcript as a remedy for failure to comply with the time
                 limits set forth in the Code and that the Code is
                 inconsistent with the Indiana Administrative Orders and
                 Procedure Act. . . .


        9.       The Court rejects Defendant’s argument that because no
                 remedy is set forth in the Code, then Plaintiff is not
                 entitled to a remedy for Defendant’s non-compliance. To
                 rule otherwise would render the Code unenforceable. . . .
                 There’s no question in this Court’s mind that had the
                 Plaintiff not complied with the time limits set forth for
                 filing his Appeal, his Appeal would be subject to a
                 summary denial. . . . The logical interpretation of the Code
                 in effectuating its purpose of providing Plaintiff with a
                 timely means of appeal, is to not allow a late filing of the
                 transcript without a court order extending the time limits
                 for good cause or that the reviewing court is granted
                 discretion with regard to remedies imposed when the Code
                 is violated. . . . The Court hereby finds that the transcript .
                 . . was not timely filed and Orders it stricken from the
                 record.


                 10. . . . [B]ecause the untimely filed transcript has been
                 stricken from the record, the Court cannot and does not
                 find substantial evidence to support the [Merit] Board’s
                 decision. Further, . . . the Court is unable to make a
                 determination whether the [Merit] Board’s decision was
                 arbitrarily [sic] and capricious or an abuse of discretion.

Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016       Page 4 of 17
                       Although the burden of proof to show the decision was
                       arbitrary and capricious generally lies with the challenging
                       party, . . . the Court’s inability to make that determination
                       and a lack of evidence thereon, is completely through the
                       fault of the Defendant, not Plaintiff, and Defendant should
                       not be allowed to benefit from its failure to comply with
                       the Code’s requirements. The Court finds no basis to
                       uphold the Merit Board’s decision previously entered.


      Appellant’s App. p. 5-8 (internal citations omitted). The trial court reversed the

      Merit Board’s ruling and ordered the Merit Board to restore Sergeant Bentley to

      the rank of sergeant with retroactive back pay. The City now appeals.


                                    Discussion and Decision
                                       I. Standard of Review
[4]   When we review the decision of an administrative agency, we are bound by the

      same standard as the trial court. Parker v. Ind. State Fair Bd., 992 N.E.2d 969,

      976 (Ind. Ct. App. 2013). We do not try the case de novo and do not substitute

      our judgment for that of the agency. Id. Pursuant to the Administrative Orders

      and Procedures Act (AOPA), we will reverse the administrative decision only if

      it is (1) arbitrary, capricious, or otherwise not in accordance with law; (2)

      contrary to a constitutional right, power, privilege, or immunity; (3) in excess of

      statutory jurisdiction, authority, or limitations, or short of statutory right; (4)

      without observance of procedure required by law; or (5) unsupported by

      substantial evidence. Ind. Code § 4–21.5–5–14. Although an appellate court

      grants deference to an administrative agency’s findings of fact, no such

      deference is accorded to its conclusions of law. Parker, 992 N.E.2d at 976. The
      Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016     Page 5 of 17
      burden of demonstrating the invalidity of the agency action is on the party who

      asserts the invalidity. Id. In this case, the trial court disposed of the petition by

      granting summary judgment in favor of Sergeant Bentley. Summary judgment

      is proper where no genuine issue of material fact remains and the movant is

      entitled to judgment as a matter of law. Ind. Trial Rule 56(C).


                                     II. Untimely Transcript
[5]   The City argues that the trial court erred by striking the untimely-filed

      transcript. Our starting point in analyzing this argument must be the City’s

      own ordinance, which provides as follows:

              Any officer who disagrees with the findings of the merit board
              shall have the right to file a verified petition to the Superior or
              Circuit Court of Marion County for a review of the decision.
              The petition for review must be filed within thirty (30) calendar
              days after the written decision of the board. The City of
              Indianapolis shall be the sole defendant in the petition for review.
              Within thirty (30) calendar days after receipt of a summons, the
              city shall cause the merit board to file a true and complete copy
              of the transcript of the hearing with the court. The court, without
              jury, shall review the record and render its decision as in other
              administrative reviews.


      Indianapolis Code § 279-237(o) (“the Ordinance”). Initially, we observe that it

      is atypical for the respondent, rather than the petitioner, to bear the cost and

      responsibility of preparation and filing of the transcript of the administrative

      proceeding. But the City drafts and passes its own ordinances, and this is how

      it has chosen to structure the review of Merit Board decisions.


      Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016    Page 6 of 17
[6]   Having decided to structure its procedure in this fashion, the City is bound to

      comply with it. The plain language of the Ordinance requires that the City file

      the transcript of the Merit Board hearing within thirty days of receipt of the

      summons. In this case, the thirty-day deadline passed on October 16, 2014.

      The City did not file the transcript until April 27, 2015—193 days late. And

      never once, during the course of those six months, did the City request an

      extension of time or in any way indicate that it was experiencing difficulty with

      preparation of the transcript. This tardiness was not de minimis; it was

      extreme. And filing a required document over six months late is not substantial

      compliance, as the City argues. The trial court did not err by concluding that

      the City did not meet the procedural burden imposed by the Ordinance.


[7]   Next, the City argues that because the Ordinance does not set forth a

      consequence for an untimely filing, there should be no consequence

      whatsoever. We disagree, as reading the Ordinance in this way would make

      the thirty-day requirement entirely superfluous.2 Furthermore, it would enable

      the City to infinitely delay all petitions for judicial review of Merit Board

      decisions, which is a result not intended by the ordinance and which we cannot

      countenance. In our view, the absence of a prescribed consequence merely

      means that the consequence is left for the trial court to determine. For example,

      the trial court could order the City to pay the attorney fees of the petitioner for



      2
        We also note our certainty that if Sergeant Bentley had filed his petition past the thirty-day deadline
      imposed by the Ordinance, the City would have sought dismissal even though the Ordinance does not specify
      a remedy for a petitioner’s tardiness.

      Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016                     Page 7 of 17
      the period of delay. We acknowledge that striking the transcript is an extreme

      remedy. But as noted above, in this particular case, the City’s delay was

      egregious. Therefore, we cannot say that the trial court erred by striking the

      transcript that was filed over six months after the deadline had passed.


[8]   After the trial court struck the untimely filed transcript and the City’s untimely

      filed summary judgment brief and designated evidence, it was left only with

      Sergeant Bentley’s summary judgment motion and designated evidence.

      Sergeant Bentley still bore the burden, as the petitioner and summary judgment

      movant, of establishing that he was entitled to relief. Included among his

      designated evidence supporting summary judgment was Sergeant Bentley’s

      verified petition for review of the Merit Board’s decision. Appellant’s App. p.

      12. In this document, which was signed under oath by Sergeant Bentley and

      notarized, id. at 28, Sergeant Bentley stated that on February 10, 2014, the

      Merit Board adopted the recommendation that he be demoted from sergeant to

      patrolman, id. at 12. As noted above, the AOPA provides that an

      administrative decision shall be reversed if, among other things, it is

      unsupported by substantial evidence. I.C. § 4-21.5-5-14(d)(5). In this case, with

      no transcript and no evidence designated by the City in support of the

      demotion, there is no evidence supporting the demotion. Therefore, we find

      that the trial court did not err by finding that Sergeant Bentley had met his

      burden of establishing that he is entitled to relief as a matter of law and

      reversing the Merit Board’s decision.




      Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016      Page 8 of 17
                                                 III. Remedy
[9]    The City argues that even if the trial court properly reversed the Merit Board’s

       determination, the trial court’s remedy—ordering the reinstatement of Sergeant

       Bentley’s former rank as well as back pay—was improper. According to the

       City, the only thing that the trial court was permitted to do was to remand to

       the Merit Board for a new hearing. Under the circumstances presented by this

       case, we disagree.


[10]   We acknowledge the cases cited by the City holding that, following a reversal of

       the decision of an administrative agency, the trial court was required to remand

       to the agency for reconsideration. Those cases, however, are readily

       distinguishable from the case before us. In Hamilton County Department of Public

       Welfare v. Smith, this Court affirmed the trial court’s conclusion that the

       Department of Public Welfare had made an error of analysis in denying Smith

       welfare benefits. 567 N.E.2d 165, 170-71 (Ind. Ct. App. 1991). We found,

       however, that the appropriate remedy was to remand to the agency so that it

       could further consider Smith’s application in light of this Court’s analysis. Id.;

       see also Ind. Alcoholic Beverage Comm’n v. Edwards, 659 N.E.2d 631, 636 (Ind. Ct.

       App. 1995) (holding that the trial court had properly reversed the denial of an

       alcoholic beverage permit but had improperly ordered the permit awarded;

       instead, proper remedy was remand to agency for reconsideration in light of

       appellate opinion).




       Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016   Page 9 of 17
[11]   When an agency errs in its analysis, it makes sense to provide an opportunity

       for the agency to reconsider its decision by applying the correct analysis. Here,

       however, the trial court did not find that the Merit Board erred in its analysis.

       Instead, it found that there was no evidence supporting the Merit Board’s

       decision. To remand to the Merit Board under these circumstances would, in

       essence, offer the City a chance of a second bite of the apple. Perhaps, the

       second time, it could manage to file its documents in a timely fashion. But to

       afford the City this chance would be unfair and would also render its own

       ordinance entirely meaningless. We do not believe that the City-County

       Council intended such a result when it passed the Ordinance, and we decline to

       read it in such a fashion. In this case, the only fair remedy is the one ordered by

       the trial court—reinstatement to the rank of sergeant and provision of back pay.

       In sum, we find no error in the remedy fashioned by the trial court.


[12]   The judgment of the trial court is affirmed.


       Brown, J., concurs.
       May, J., concurs in result with a separate opinion.




       Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016   Page 10 of 17
                                                    IN THE
           COURT OF APPEALS OF INDIANA

       City of Indianapolis,                                      Court of Appeals Case No.
                                                                  49A05-1510-MI-1765
       Appellant-Defendant,

               v.

       Bradford Bentley,
       Appellee-Plaintiff.




       May, Judge, concurring in result with opinion.


[13]   I agree that we must affirm the trial court’s decision to reinstate Officer Bentley

       with back pay because the City filed its transcript too late. However, I write

       separately to explain why I believe our resolution of this matter of first

       impression is correct.


[14]   The City cited two decisions in support of its argument the trial court’s order of

       reinstatement with back pay was error: Hamilton Cnty Dep’t of Pub. Welfare v.

       Smith, 567 N.E.2d 165, 171 (Ind. Ct. App. 1991), and Ind. Alcoholic Beverage

       Comm’n v. Edwards, 659 N.E.2d 631 (Ind. Ct. App. 1995). In Smith, we held:

       Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016               Page 11 of 17
               When a court determines that an administrative agency has made
               an error, the court may reverse the agency decision and remand
               for further consideration. The reviewing court is without power
               to compel any action by the administrative agency; the court only
               has the power to order the agency to rehear the case.


       567 N.E.2d at 171 (internal citations omitted). That suggests the trial court did

       not have the authority to reinstate Bentley and order back pay. Rather,

       application of that holding would permit the trial court only to reverse the

       agency’s decision and remand for further agency consideration.


[15]   This rule was further explained in Edwards:


               The express intent of this part of the statute [the precursor to Ind.
               Code § 4-21.5-5-15] is to limit the reviewing court’s authority to
               remand the case to the administrative agency for further
               proceedings after a proper determination that the agency’s
               decision was contrary to law. If upon remand the agency
               unlawfully withholds or unreasonably delays the redetermination
               of the case, then the trial court may compel agency action by
               direct order. Otherwise the reviewing court does not have power
               to compel agency action as part of the initial review function. It
               may only remand the cause for rehearing.


               Remanding [the case] to the administrative body gives it an
               opportunity to correct the irregularities in its proceedings as
               determined by the court. At the same time it avoids the court’s
               encroachment upon [the agency’s] administrative functions.
               There is no more reason for assuming that the commission will
               disregard the law as fixed by this reviewing court than that a
               lower trial court will do so.


       659 N.E.2d at 636 (internal citations omitted).

       Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016   Page 12 of 17
[16]   The requirement a trial court remand an issue to an administrative agency in

       lieu of taking independent action is also found in federal law. See Fed. Power

       Comm’n v. Transcon Gas Pipe Line Corp., 423 U.S. 326, 331 (1976) (“If the

       decision of the agency ‘is not sustainable on the administrative record made,

       then the . . . decision must be vacated and the matter remanded . . . for further

       consideration.’”).


[17]   The majority finds Smith and Edwards “readily distinguishable” from the facts

       before us. (Slip op. at 9.) The majority correctly characterizes Smith and

       Edwards as applicable to scenarios when “an agency errs in its analysis,” id. at

       10. In this case, by contrast, the “trial court found that there was no evidence

       supporting the Merit Board’s decision.” Id. I do not disagree.


[18]   As the majority notes, the ordinance imposing on the City the burden to

       produce the transcript provides:


               Any officer who disagrees with the findings of the merit board
               shall have the right to file a verified petition to the Superior or
               Circuit Court of Marion County for a review of the decision.
               The petition for review must be filed within thirty (30) calendar
               days after the written decision of the board. The City of
               Indianapolis shall be the sole defendant in the petition for review.
               Within thirty (30) calendar days after receipt of a summons, the
               city shall cause the merit board to file a true and complete copy
               of the transcript with the court. The court, without jury, shall
               review the record and render its decision as in other
               administrative reviews.




       Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016   Page 13 of 17
       Indianapolis Code § 279-237(o). The language of the AOPA is different. See

       Ind. Code § 4-21.5-5-13(a) (requiring petitioner to file transcript of proceedings).

       Under AOPA, “[f]ailure to file the record within the time permitted by this

       subsection, including any extension period ordered by the court, is cause for

       dismissal of the petition[.]” Ind. Code § 4-21.5-5-13(b). The majority notes a

       similar sanction could be levied on the City for failure to file a transcript when it

       has the burden to do so. I agree.


[19]   Prior to AOPA’s enactment in 1986, Indiana law required the governmental

       body acting as defendant in the appeal of an administrative decision to file a

       transcript of the proceedings. Burns Indiana Statutes Annotated § 48-6105

       (1951) provided: “Within ten (10) days after the service of summons [indicating

       an appeal from the board’s decision] said board shall file in said court a full,

       true and complete transcript of all papers, entries and other parts of the record

       relating to such particular case.”


[20]   Our Indiana Supreme Court interpreted that language in Hansen v. Town of

       Highland, 237 Ind. 516, 524, 147 N.E.2d 221, 225 (1958). Hansen, a police

       officer and Town Marshal appointed by the outgoing town board appealed the

       newly elected board’s decision to relieve him of his duties after the new board

       took office. Section 48-6105, which governed decisions by “boards of

       metropolitan police officers,” id. at 522, 147 N.E.2d at 224, required the board

       to file a transcript within ten days of the date of Hansen’s appeal. Though it is

       not entirely clear from the opinion, it seems that procedure was not followed.

       With regard to the city’s failure to file a transcript, the Court held:

       Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016   Page 14 of 17
               The duty is placed upon the city in this case to file the transcript -
               not the appellant [Hansen]. The city cannot take advantage of its
               own failure to follow a statutory proceeding in regard to
               dismissal. . . . A board or public body may not avoid the
               statutory obligation of furnishing a transcript in such cases by
               failing to file the same within the time directed by the statute, and
               thereby thwart an attempt to appeal from its decision.


       Id. at 525, 147 N.E.2d at 226. Similarly, here, the City should not be able to

       thwart Bentley’s attempt to appeal the Merit Board’s decision by not filing the

       record of administrative proceedings.


[21]   In James v. Harvey, 246 Neb. 329, 518 N.W.2d 150 (1994), the Supreme Court

       of Nebraska interpreted Neb. Rev. Stat. § 84-917(4), which, like the

       Indianapolis Ordinance, requires: “Within thirty days after service of the

       petition or within such further time as the court for good cause shown may

       allow, the agency shall prepare and transmit to the court a certified copy of the

       official record of the proceedings had before the agency.”


[22]   The facts of James are similar to those here: James appealed a Department of

       Social Services (DSS) decision to deny her benefits. The DSS was required to

       file the record of the proceedings within thirty days. It did not. Over three

       months later, the DSS filed a motion for extension of time, which the trial court

       granted. When the DSS did not file the record by the extended due date, James

       moved for default judgment. The trial court, in its function as reviewer of

       administrative decisions, reversed the DSS’ decision and granted James’ request

       for reimbursement of medical expenses.


       Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016    Page 15 of 17
[23]   In upholding the trial court’s decision, the Supreme Court of Nebraska stated:


               It is the duty of courts to prevent dilatory proceedings in the
               administration of justice. Aetna Cas. & Surety Co. v. Dickinson, 216
               Neb. 660, 345 N.W.2d 8 (1984). In Pressey v. State, 173 Neb. 652,
               114 N.W.2d 518 (1962), we recognized the inherent power of the
               court to dismiss an action for disobedience of a court order.
               However, in this situation it would be inequitable to dismiss the
               case because that would penalize James, the party seeking review
               of the agency’s order. The district court stated at the hearing on
               James’ motion to strike that this was the third or fourth case in
               the prior 3 months in which the filing of the transcript by DSS
               had been a problem. The court found that DSS’ claim of an
               increased workload was not sufficient for the court to make a
               finding that good cause had been shown for an extension.


               The transcript consisted of 23 pages of testimony and 21 exhibits
               which total less than 50 pages. DSS provided no rational
               explanation as to why it would take more than 3 months to
               produce the transcript. As the court noted, a sanction which
               would require DSS to pay the costs of preparing the transcript
               would serve no purpose because the agency’s employees prepare
               the transcript and because James was proceeding in forma
               pauperis. The court determined that the only sanction which
               would send a message to DSS concerning its dilatory practice
               was to reverse the agency’s order.


       James, 246 Neb. at 333-34, 518 N.W.2d at 153.


[24]   I believe the James reasoning supports our departure from the general rule that

       the trial court is required to remand a matter to the administrative agency on

       finding the administrative agency’s decision was not supported by sufficient

       evidence or was contrary to law. Instead, when the governmental agency


       Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016   Page 16 of 17
acting as the defendant does not do what it is required by law to do when an

individual appeals an administrative board decision, the trial court should have

authority to levy appropriate sanctions, including ordering entry of a result

opposite that reached by the administrative board. Therefore, I respectfully

concur in result.




Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016   Page 17 of 17
