MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Jul 28 2017, 5:27 am
court except for the purpose of establishing
the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
Christopher Cooper                                          Adam J. Mindel
Chicago, Illinois                                           Hobart, Indiana


                                             IN THE
     COURT OF APPEALS OF INDIANA

Kirk Homoky,                                                July 28, 2017
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            45A03-1609-MI-2052
        v.                                                  Appeal from the Lake Superior
                                                            Court
City of Hobart, Indiana,1                                   The Honorable Calvin D.
Appellee-Plaintiff                                          Hawkins, Judge
                                                            Trial Court Cause No.
                                                            45D02-1603-MI-4



Altice, Judge.




1
 Despite acknowledging that Hobart Police Chief Richard Zormier is not a proper party pursuant to Ind.
Code § 36-8-3-4(f), Homoky’s counsel has nevertheless persisted in listing Zormier as such in his filings
before this court. Because it is undisputed that Zormier is not a proper party, we omit his name from the
caption of this case. The City of Hobart (the City) is the sole appellee. See Ind. Code § 36-8-3-4(f).

Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017             Page 1 of 24
                                                Case Summary


[1]   Kirk Homoky appeals from the trial court’s order affirming the decision of the

      Hobart Board of Public Works and Safety (the Board) to terminate Homoky’s

      employment as an officer of the Hobart Police Department (HPD). Homoky

      raises numerous issues on appeal, which we consolidate and restate as the

      following two:


              1. Was the Board’s decision made pursuant to proper procedure?


              2. Were the Board’s findings supported by substantial evidence?


[2]   We affirm.


                                       Facts & Procedural History


[3]   While working as an HPD officer in 2012, Homoky used the Indiana Data and

      Communication System (IDACS), a police database which accesses national

      and statewide criminal history and Bureau of Motor Vehicle information, to

      run numerous inquiries on his estranged wife, Mattie Homoky n/k/a Robbins

      (Mattie), and individuals with whom Mattie was associating. Homoky told

      Mattie on several occasions that he had been running her name as well as the

      license plates of cars parked in front of her home. Homoky also told Mattie

      that he had run IDACS inquiries on Phillip Crowder, a man Mattie was dating,

      and Homoky told her about Crowder’s criminal history. Both Mattie and

      Crowder made complaints about Homoky’s behavior to the HPD.



      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017   Page 2 of 24
[4]   On November 28, 2012, Detective Jeremy Ogden spoke to Dan Barton, the

      manager of Stardust Bowl II, where Homoky had previously worked a side job

      as a security officer from 2008 until 2010. Barton told Detective Ogden that in

      early 2010, Homoky had been inadvertently issued several paychecks to which

      he was not entitled and that those paychecks had been cashed. Barton stated

      that he had called Homoky and left a voicemail, but Homoky did not return his

      call. Another investigator spoke to Mattie, who stated that Homoky knew the

      checks had been issued in error but nevertheless allowed the checks to be

      deposited into their joint account. Mattie stated that Homoky signed three of

      the checks himself and she signed the remaining four on his behalf and with his

      permission.


[5]   As a result of an internal investigation, a notice of discipline was filed against

      Homoky and subsequently amended. The amended notice alleged three

      violations. Count I alleged that Homoky had used IDACS for non-law

      enforcement purposes by running Mattie’s and Crowder’s names and the

      license plates of vehicles parked in front of Mattie’s home. Count III2 alleged

      that Homoky had allowed the checks from Stardust Bowl to be deposited into

      his joint bank account with knowledge that he was not entitled to those funds.

      The notice alleged that Homoky’s conduct violated various HPD Rules and

      Regulations and constituted grounds for discipline under I.C. § 36-8-3-



      2
        Count II involved an alleged theft during a traffic stop, which a majority of the Board found was not proven
      by a preponderance of the evidence. Because Homoky was not found to have committed the conduct alleged
      in Count II, we need not discuss it.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017             Page 3 of 24
      4(b)(2)(B), (F), (G), and (H). The notice indicated that HPD Chief of Police

      Richard Zormier sought Homoky’s dismissal from the HPD as discipline for the

      alleged violations.


[6]   Homoky requested a hearing, and after protracted pretrial proceedings and

      exhaustive discovery, a four-day evidentiary hearing was held before the Board.

      On October 7, 2015, the Board unanimously voted to find Homoky guilty of the

      violations alleged in Counts I and III and to terminate his employment with the

      HPD. Homoky filed a petition for judicial review on October 19, 2015.

      Meanwhile, at its next regularly scheduled meeting on October 21, 2015, the

      Board voted unanimously to approve its written Findings, Conclusions, and

      Decision regarding the termination of Homoky’s employment. Following oral

      argument, the trial court issued its order affirming the Board’s findings,

      conclusions, and decision on August 10, 2016. Homoky now appeals.


                                          Discussion & Decision


[7]   Our review of administrative decisions is very limited. Winters v. City of

      Evansville, 29 N.E.3d 773, 778 (Ind. Ct. App. 2015), trans. denied.


              Deference is to be given by the reviewing court to the expertise of
              the administrative body. Discretionary decisions of
              administrative bodies, including those of police merit
              commissions, are entitled to deference absent a showing that the
              decision was arbitrary and capricious, or an abuse of discretion,
              or otherwise not in accordance with law. Further, review is
              limited to determining whether the administrative body adhered
              to proper legal procedure and made a finding based upon
              substantial evidence in accordance with appropriate

      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017   Page 4 of 24
               constitutional and statutory provisions. . . . Substantial evidence
               is that relevant evidence which a reasonable mind might accept
               as adequate to support a conclusion.


      Id. When determining whether a police officer disciplinary action was based on

      substantial evidence, a reviewing court may not judge the credibility of

      witnesses or weigh conflicting evidence. Id. at 778-79.


[8]   Before turning to the merits of this appeal, we note that there are numerous

      deficiencies in Homoky’s appellate briefing.3 We first note that Homoky’s

      Statement of the Issues does not correspond to the issues presented in the body

      of his brief. Indeed, one of the issues set forth in the Statement of the Issues—

      whether the Board erred in placing Homoky on unpaid administrative leave

      prior to his termination—is never discussed at all in his brief. See Ind. Appellate

      Rule 46(A)(4) (providing that the statement of issues “shall concisely and

      particularly describe each issue presented for review”). Homoky’s Statement of

      the Facts contains virtually no substantive facts and instead is devoted to

      providing a recitation of procedural history better suited for the Statement of

      Case section of the brief. See Ind. App. R. 46(A)(5) (providing that the

      statement of the case shall briefly describe the nature of the case, the course of

      relevant proceedings, and the disposition of the issues by the trial court or

      administrative agency); Ind. App. R. 46(A)(6) (providing that statement of facts




      3
        Homoky’s appellate counsel also represented him during the administrative proceedings below. Although
      counsel’s office is located in Chicago, he is an attorney licensed to practice in Indiana, and as such he is
      responsible for being familiar with the requirements for an appellate brief in this state.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017             Page 5 of 24
      shall describe the facts relevant to the issues presented for review, supported by

      citation to the record or appendix and stated in accordance with the standard of

      review). The Summary of the Argument Section is certainly not a “succinct,

      clear, and accurate statement of the arguments made in the body of the brief.”

      See Ind. App. R. 46(A)(7). Rather, it consists largely of factual allegations not

      set forth in the Statement of Facts. To make matters worse, most of the “facts”

      set forth in the Summary of the Argument section are not supported by citation

      to the record, are irrelevant and often inflammatory, and/or not stated in

      accordance with the appropriate standard of review.


[9]   The errors that have most hampered our appellate review, however, appear in

      the Argument section of Homoky’s brief. In this section, Homoky’s counsel

      continues to disregard the standard of review by relying upon evidence not

      favorable to the judgment and arguing that certain testimony is not worthy of

      credit. Homoky’s counsel also fails to cite legal authority in support of many of

      his arguments, and some of the authority he does cite is inapposite.4

      Additionally, throughout his brief, Homoky’s counsel has not cited to the

      volumes and pages of his Appendix as required by our appellate rules. See Ind.

      App. R. 22(C) (providing that “[a]ny factual statement shall be supported by a

      citation to the volume and page where it appears in an Appendix, and if not




      4
       For example, in support of his argument that Mayor Snedecor should have recused himself from the Board,
      Homoky cites Ind. Code § 4-21.5-3-1, which he refers to as a “judicial canon”. Appellant’s Brief at 24. I.C. §
      4-21.5-3-1 addresses service of process in proceedings under the Administrative Orders and Procedures Act,
      and we are at a loss as to its relevance to any of the issues Homoky presents.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017              Page 6 of 24
contained in an Appendix, to the volume and page it appears in the Transcript

or exhibits, e.g., Appellant’s App. Vol. II p.5; Tr. Vol. I, pp. 231-32”). See also

Ind. App. R. 46(A)(5), (6), (8) (providing that citations to the record must be

made in accordance with Ind. App. R. 22(C)). Rather, where Homoky’s

counsel has provided citation to the record, he has cited to each item in the

Appendix by its specific title or an abbreviation thereof and the page numbers of

the individual document.5 This has made review of Homoky’s arguments

unnecessarily cumbersome, particularly because Homoky has submitted a ten-

volume Appendix and a six-volume Supplemental Appendix. Homoky’s

counsel has also cited to materials we have been unable to locate6 and he

repeatedly mischaracterizes items appearing in his Appendix.7




5
  Homoky’s counsel has sometimes failed to provide page references at all. For example, in his Reply Brief,
Homoky’s counsel cites to an item submitted as offer of proof, which he refers to as “Spillman messages,
Supplemental Appendix, Ex. 1”. Reply Brief at 5, 12. These messages are hundreds of pages long and span
more than four volumes of Homoky’s Supplemental Appendix, yet Homoky’s counsel has not provided page
citations even when he purports to be directly quoting these messages. It is not our duty to scour the
record—which is particularly voluminous in this case—in search of support for a litigant’s contentions, and
we decline to do so here. See Legacy Healthcare, Inc. v. Barnes & Thornburg, 837 N.E.2d 619, 639 n.29 (Ind. Ct.
App. 2005), trans. denied.
6
  Homoky repeatedly cites to “Ex. 87” and “Ex. A to Grissom dep.” Appellant’s Brief at 24, 25, 29, 37. There
is no Exhibit 87 listed in the Table of Contents to Homoky’s Appendix, and although we have been able to
locate the deposition of retired HPD Detective David Grissom, no exhibits are attached thereto.
7
  For example, in the Table of Contents, Homoky has listed a document he refers to as “Probable Cause
Affidavit by Ogden”. Appellant’s Appendix Vol. 1 at 3. The document referenced, however, is clearly not a
probable cause affidavit, nor was it authored by Detective Ogden. Rather, the document is some sort of
report prepared by one of Homoky’s expert witnesses. See Appellant’s Appendix Vol. 5 at 134-137. He also
cites this document in support of his claim that Mattie admitted that she is the one who picked up all of the
paychecks from Stardust. See Reply Brief at 9. This document provides no support for this assertion.
Homoky also cites to three Facebook posts purportedly made by Detective Ogden’s wife, Debbie Ogden,
which he submitted as an offer of proof. According to Homoky’s counsel, these posts “evince [Mattie’s] and
Debbie Ogden’s friendship.” Appellant’s Brief at 32. Putting aside for the moment whether such a friendship
is relevant to the issues at hand, the Facebook posts in question consist of vague references to liars and “bad

Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017               Page 7 of 24
[10]   Many of the errors in Homoky’s Appellant’s Brief are repeated and

       compounded in his Reply Brief. Specifically, the only citations to authority in

       Homoky’s Reply Brief appear in a quote from the Appellees’ Brief and in

       Homoky’s prayer for relief. Further, Homoky spends much of his Reply Brief

       discussing evidence that is irrelevant and/or unfavorable to the judgment. For

       example, Homoky discusses at length the alleged misconduct of other HPD

       officers and the evidence presented concerning Count II, which the Board

       found had not been proven by a preponderance of the evidence. 8


[11]   “It is incumbent on appellate counsel to accurately represent the record and to

       provide cogent argument supported with adequate citation to authority.” K.S.

       v. D.S., 64 N.E.3d 1209, 1218 (Ind. Ct. App. 2016). Furthermore, an appellate

       brief “should not only present the issues to be decided on appeal, but it should

       be of material assistance to the court in deciding those issues.” Id. (quoting

       Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997)). Far from being

       helpful, Homoky’s briefing in this case has made our review of his claims

       unduly burdensome and time-consuming. We have nevertheless endeavored to

       address Homoky’s arguments to the extent his deficient briefing allows.

       However, to the extent we have not addressed any specific argument set forth in




       cops.” Appellant’s Appendix Vol. 10, p. 16-18. There is nothing whatsoever in these posts suggesting that
       Debbie Ogden even knew Mattie, much less that they had a friendship.
       8
         Homoky asserts that the evidence establishes that another officer committed the misconduct alleged in
       Count II and that there was a conspiracy against Homoky. It is an understatement to say that the inferences
       Homoky asks us to make in this regard are strained. In any event, Homoky’s arguments are nothing more
       than an invitation to reweigh the evidence and draw inferences unfavorable to the judgment, which
       Homoky’s counsel should be well aware is not permitted under the applicable standard of review.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017              Page 8 of 24
       Homoky’s brief, it is because we have found such argument to be waived for

       failure to make a cogent argument. See Countrywide Home Loans, Inc. v. Holland,

       993 N.E.2d 184, 186 n.2 (Ind. Ct. App. 2013); Ind. App. R. 46(A)(8)(a).


                                                  1. Procedure


[12]   Homoky claims that a number of procedural errors during the administrative

       proceeding deprived him of due process. “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. 2000)). “Where an officer’s

       property right to continued employment is endangered, the administrative

       agency charged with determining whether to discipline the officer need not

       afford the officer all of the procedural safeguards found in a proceeding before a

       court.” Dell v. City of Tipton, 618 N.E.2d 1338, 1342 (Ind. Ct. App. 1993), trans.

       denied. Rather, the administrative body must enforce standards of due process

       at the highest level workable under the circumstances. Id. See also Jandura v.

       Town of Schererville, 937 N.E.2d 814, 819 (Ind. Ct. App. 2010) (“With respect to

       administrative boards or panels generally, because they are often composed of

       persons without legal training, ‘courts are reluctant to impose strict technical

       requirements upon their procedure.’” (citation omitted)), trans. denied.

               A. Mayor Snedecor




       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017   Page 9 of 24
[13]   Homoky makes a number of arguments relating to Mayor Snedecor’s position

       on the Board. Homoky first argues that Mayor Snedecor should have recused

       himself or, alternatively, been removed from the Board because he was biased

       against Homoky. “Due process in administrative hearings requires that all

       hearings be conducted before an impartial body.” Ripley Cnty. Bd. of Zoning

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

       trans. denied. However, “in the absence of a demonstration of actual bias, we

       will not interfere with the administrative process. Instead, we presume that an

       administrative board or panel will act properly and without bias or prejudice.”9

       Jandura, 937 N.E.2d at 819 (quoting In re Change to Established Water Level of

       Lake of Woods in Marshall Cnty., 822 N.E.2d 1032, 1041 (Ind. Ct. App. 2005),

       trans. denied). “Furthermore, one may not allege bias and prejudice against a

       tribunal to escape the rigors of normal administrative procedure.” Adkins v. City

       of Tell City, 625 N.E.2d 1298, 1303 (Ind. Ct. App. 1993).




       9
         Homoky cites Atkinson for the proposition “that the fact-finding process should be free of suspicion or even
       the appearance of impropriety.” 411 N.E.2d at 528 (citing City of Mishawaka v. Stewart, 310 N.E.2d 65, 69
       (Ind. 1974)). Our Supreme Court has subsequently clarified that in Stewart, it “did not mean to say that the
       touchstone for determining due process was freedom from suspicion or appearance of impropriety[.]”
       Rynerson v. City of Franklin, 669 N.E.2d 964, 969 (Ind. 1996).
       Despite acknowledging that Mayor Snedecor is not a judge, Homoky nevertheless argues that his
       participation on the Board violated Ind. Judicial Canon 2.11, which provides in relevant part that a judge
       shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be
       questioned. He also cites federal case law applying 28 U.S.C. § 455, which requires federal judges to recuse
       “in any proceeding in which his impartiality might reasonably be questioned.” These authorities are plainly
       inapplicable to the case at hand. This court has previously noted that “judges are held to a higher standard
       when it comes to conflicts of interest than are members of an administrative body.” Jandura, 937 N.E.2d at
       820. In order to prevail on his claim that he was deprived of a hearing before an impartial body, Homoky
       must establish actual bias, not merely that Mayor Snedecor’s impartiality might reasonably be questioned.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017             Page 10 of 24
[14]   Homoky argues that Mayor Snedecor was disqualified from serving on the

       Board because he had participated in the investigation of Homoky. The

       evidence concerning Mayor Snedecor’s involvement in the investigation is thin.

       In a response to interrogatories, Detective Ogden stated that he had provided

       Mayor Snedecor with “[b]rief explanations of the investigation of Officer

       Homoky” between 2012 and 2013. Appellant’s Appendix Vol. 9 at 56. We note,

       however, that “[p]rior involvement in an investigation does not automatically

       bias or disqualify a safety board.” Adkins, 625 N.E.2d at 1303. “[A]n

       adjudicator’s exposure to investigatory case materials would deny due process

       to the party under investigation only if ‘the special facts and circumstances

       present in the case [show] that the risk of unfairness is intolerably high.’”

       Hearing and Speech Clinic of Evansville, Inc. v. Ind. Dep’t of Welfare, Medicaid Div.,

       466 N.E.2d 462, 467 (Ind. Ct. App. 1984) (quoting Withrow v. Larkin, 421 U.S.

       35, 58 (1975)) (alteration in original). Homoky has directed our attention to no

       evidence supporting a conclusion that such special circumstances exist here.


[15]   Homoky also makes a poorly developed argument that Mayor Snedecor was

       biased against him due to his involvement in an internal investigation into

       alleged improper towing procedures by HPD officers. In support, Homoky

       directs our attention to Grissom’s deposition, in which he testified that Mayor

       Snedecor had instructed him to put an end to the investigation because it was

       harming officer morale. Grissom testified further that Homoky was one of

       several officers implicated in that investigation. It is unclear to us how Mayor

       Snedecor’s decision to end an investigation into possible wrongdoing by a


       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017   Page 11 of 24
       number officers—including Homoky—establishes bias against Homoky.

       Homoky fails to explain the relevance of these matters, and we decline to

       develop an argument on his behalf. Homoky’s claims in this regard are far too

       tenuous to compel a finding of actual bias. In sum, Homoky has not

       established that Mayor Snedecor’s participation on the Board deprived him of

       an impartial hearing body.


[16]   Homoky argues further that he should have been permitted to depose Mayor

       Snedecor and call him as a witness—which, we note, would necessarily have

       precluded him from serving on the Board. According to Homoky, Mayor

       Snedecor “had personal knowledge of material facts in the case” because “he

       played a role in the investigation into the Plaintiff’s alleged wrongdoing.”

       Appellant’s Brief at 25. This argument is also poorly developed, and none of the

       scant authority cited in support is applicable. Accordingly, it is waived for lack

       of cogency. Waiver notwithstanding, we note that Homoky has not directed

       our attention to any evidence remotely suggesting that Mayor Snedecor had

       personal knowledge of the matters giving rise to the disciplinary charges at issue

       here, or even that he had personal knowledge concerning the investigation of

       those charges. Rather, it appears that any information Mayor Snedecor

       received was acquired secondhand from the investigating officers. Given the

       complete dearth of evidence that Mayor Snedecor had personal knowledge of

       any relevant facts, we find no due process violation resulting from the denial of

       Homoky’s requests to depose Mayor Snedecor and call him as a witness.

               B. Presentation of Evidence

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017   Page 12 of 24
[17]   Homoky next argues that the hearing officer’s exclusion of certain proffered

       evidence resulted in a deprivation of due process. “In general, administrative

       bodies are not bound by the strict rules of evidence.” City of Hammond, Lake

       Cnty. v. Ind. Harbor Belt R. Co., 373 N.E.2d 893, 899 (Ind. Ct. App. 1978). See

       also Fornelli v. City of Knox, 902 N.E.2d 889, 894 (Ind. Ct. App. 2009) (observing

       that police merit board hearings are administrative actions allowing for less

       formality than in civil proceedings before a court), trans. denied. A hearing

       officer has the authority to exclude evidence that is irrelevant, immaterial, or

       unduly repetitious. Phegley v. Ind. Dep’t of Highways, 564 N.E.2d 291, 296 (Ind.

       Ct. App. 1990), trans. denied. A hearing officer likewise has discretion to limit

       the scope of cross-examination. King v. City of Gary, 296 N.E.2d 429, 461 (Ind.

       1973).


[18]   Homoky argues that he was denied due process when he was not allowed to

       present certain evidence he claims shows bias on the part of several witnesses.

       See State Bd. of Tax Comm’rs v. Aluminum Co. of Am., 402 N.E.2d 1316, 1323

       (Ind. Ct. App. 1980) (noting that minimal due process in an administrative

       hearing requires that a party have the opportunity to rebut adverse evidence and

       cross-examine witnesses). We will address each claim in turn.


[19]   Homoky spends a great deal of time arguing that the hearing officer improperly

       excluded evidence he claims tended to show that Detective Ogden was biased

       against him. Any bias on Detective Ogden’s part is irrelevant here. Although

       Detective Ogden conducted the bulk of the internal investigation of the

       disciplinary charges, it was the Board who ultimately decided whether and how

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017   Page 13 of 24
       severely to discipline Homoky. See Jandura, 937 N.E.2d at 819. Moreover,

       even if we assume Detective Ogden harbored bias against Homoky, he had no

       personal knowledge concerning the matters giving rise to the disciplinary

       charges. Rather, Detective Ogden’s testimony related to his own conduct and

       the manner in which he performed the investigation into the charges against

       Homoky.10 Neither the City nor the Board relied on Detective Ogden’s

       testimony to support the charges against Homoky.11 Because Detective Ogden

       gave no testimony relevant to whether Homoky committed the charged

       misconduct, any bias on his part is irrelevant. In any event, Homoky was

       permitted to introduce into evidence a deposition from an expert witness in

       which alleged bias in the investigation is discussed at length.


[20]   Homoky next argues that evidence concerning Mattie’s alleged bad acts was

       improperly excluded. Specifically, Homoky asserts that he should have been

       permitted to present evidence concerning Mattie’s 2003 check deception charge.

       He cites no legal authority for this argument, and it is therefore waived for lack

       of cogency. Waiver notwithstanding, we note that Homoky argues that this

       evidence was relevant to show that Mattie was solely responsible for cashing

       the Stardust Bowl checks. In other words, Homoky’s counsel asserts that he

       should have been permitted to present classic propensity evidence. See Wells v.




       10
         To the extent that Detective Ogden repeated any of the allegations made against Homoky by witnesses
       with personal knowledge, we note that it was Homoky who elicited such testimony.
       11
            Indeed, it was Homoky who called Detective Ogden as a witness, and the City did not cross-examine him.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017          Page 14 of 24
       State, 904 N.E.2d 265, 270 (Ind. Ct. App. 2009) (explaining that it is improper

       to use proof of crimes, wrongs, or acts to prove the character of a person in

       order to show action in conformity therewith), trans. denied. This would plainly

       be improper. Evidence of Mattie’s 2003 check deception charge, which was

       resolved by way of a pretrial diversion, was properly excluded. 12


[21]   Homoky also argues that he should have been allowed to present testimony that

       Mattie had engaged in various other bad acts. Homoky’s counsel attempts to

       get around the obvious inadmissibility of this evidence by casting it as

       “reputation evidence” admissible under Ind. Evidence Rule 608. Even

       assuming that Rule 608 fully applies to the Board, this argument is meritless.

       As an initial matter, Homoky argues that such testimony would show Mattie’s

       “reputation for stealing and writing ‘bad’ checks, etc.” Appellant’s Brief at 40.

       Rule 608, however, allows the introduction of evidence regarding only “the

       witness’s reputation for having a character for truthfulness or untruthfulness[.]”

       Furthermore, Homoky sought not to introduce evidence of Mattie’s reputation

       within the community. Rather, his offers of proof establish that he sought to

       introduce evidence of specific instances of misconduct, which is prohibited by

       Rule 608. See Jacobs v. State, 22 N.E.3d 1286, 1289 (Ind. 2015) (explaining that

       Ind. Evid. R. 608(b) prohibits the admission of evidence regarding specific




       12
          Homoky clearly argues that evidence of Mattie’s 2003 check deception charge should have been admitted
       as substantive evidence, not merely as impeachment evidence under Ind. Evidence Rule 609. Nevertheless,
       we note this evidence was not admissible under Rule 609 because it was resolved by way of a pretrial
       diversion agreement and did not result in a conviction. See Ind. Evid. R. 609 (allowing the admission of
       evidence of a conviction of a crime of dishonesty for the purpose of attacking a witness’s credibility).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017        Page 15 of 24
       instances of misconduct). The evidence to which Homoky refers was part and

       parcel of an ongoing attempt by Homoky to discredit Mattie by portraying her

       as a bad person. Being prevented from fully pursuing that strategy did not

       deprive him of due process.


[22]   Next, Homoky argues that the exclusion of evidence concerning allegedly less

       severe discipline imposed on other HPD officers for misusing police equipment

       deprived him of due process. Homoky has made no attempt to explain how

       such evidence is relevant to whether he committed the charged misconduct.

       Alleged failure to discipline other officers is no bar to prosecuting disciplinary

       action. King, 296 N.E.2d at 462. See also Davidson v. Perron, 756 N.E.2d 1007,

       1015 (Ind. Ct. App. 2001) (finding no abuse of discretion in limiting discovery

       relating to discipline of other officers because the officer’s claim of retributive

       action “must stand or fall on its own merits”).


[23]   Homoky also argues that his expert witness should have been permitted to give

       his opinion on whether Homoky should be dismissed for his misconduct. This

       testimony was properly excluded as it sought to invade the province of the

       Board and amounted to a legal conclusion. See City of Columbia City v. Ind. Util.

       Regulation Comm’n, 618 N.E.2d 21, 28 (Ind. Ct. App. 1993) (explaining that “[a]




       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017   Page 16 of 24
       legal conclusion is where an expert states his opinion as to how the case should

       be decided”).13


[24]   Homoky argues further that another expert witness should have been permitted

       to testify concerning Detective Ogden’s alleged bias and its effect on the

       investigation. Homoky again fails to cite any authority in support of this

       argument, and he also fails to direct our attention to any specific testimony that

       he claims was improperly excluded. Consequently, this argument is waived.

       Waiver notwithstanding, we note that this expert gave an evidentiary

       deposition, which was heard and considered by the Board, in which he gave his

       opinion concerning bias among the investigators and material witnesses. There

       was no due process violation here.

                C. Other Procedural Claims


[25]   Homoky makes several other procedural arguments, a number of which are

       waived for lack of cogency.14 We will address Homoky’s remaining arguments

       to the extent his deficient briefing allows.




       13
          Homoky also complains that Chief Zormier was permitted to testify concerning his beliefs as to whether
       Homoky committed the alleged violations and Homoky should be disciplined. Homoky agreed at the
       hearing that Chief Zormier was permitted to testify to his beliefs on these issues. Accordingly, his argument
       in this regard is waived.
       14
         Homoky’s laches argument is waived for failure to cite authority. Homoky’s spoliation argument is
       waived for the same reason, and we note further that his arguments on that issue are based on
       mischaracterizations of the record. We therefore decline to address either of these arguments on their merits.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017             Page 17 of 24
[26]   Homoky argues that the Board improperly issued two orders. Specifically, he

       characterizes the Board’s unanimous vote at the conclusion of the evidentiary

       hearing to find Homoky guilty of the misconduct alleged in Counts I and III

       and to dismiss Homoky as one order, and the Board’s written findings and

       conclusions, which were adopted at its next regular public meeting on October

       21, 2015, as a second order. Homoky argues further that the Board lacked

       jurisdiction to enter this “second order” because Homoky had filed his petition

       for judicial review two days earlier.


[27]   Yet again, Homoky cites no authority whatsoever supporting his contention

       that the Board is stripped of jurisdiction to enter specific findings—as required

       by statute15—immediately upon filing a petition for judicial review. 16 The City

       also notes that Homoky failed to object to the entry of the October 21 order,

       and argues further that Homoky “lacks the legal authority to unilaterally ‘close’

       the Board’s jurisdiction over the matter” by filing a petition for judicial review.

       Appellees’ Brief at 28. In his reply brief, Homoky asserts—again without citation

       to authority—that his “filing for judicial review does, absolutely, deprive the

       Board of jurisdiction to issue specific findings subsequent to Homoky’s filing in




       15
          See I.C. § 36-8-3-4(e) (providing that “[t]he reasons for the suspension, demotion, or dismissal of a member
       of the police or fire department shall be entered as specific findings of fact upon the records of the safety
       board”).
       16
          By way of analogy, we note that a trial court does not lose jurisdiction immediately upon the filing of a
       notice of appeal. Rather, the appellate court acquires jurisdiction on the date the notice of completion of
       clerk’s record is noted on the CCS. Ind. App. R. 8; LBLHA, LLC v. Town of Long Beach, 28 N.E.3d 1077, 1091
       (Ind. Ct. App. 2015) (noting that the trial court orders issued after the notice of completion of clerk’s record is
       filed are generally void).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017                 Page 18 of 24
       the Circuit\Superior Court.” Reply Brief at 10 (emphasis in original).

       Vehemence is no substitute for cogent legal argument. Homoky’s argument is

       waived.


[28]   Finally, Homoky argues that the trial court’s order did not include specific

       findings as required by I.C. § 36-8-3-4(i), which provides in relevant part as

       follows:


               The court shall make specific findings and state the conclusions
               of law upon which its decision is made. If the court finds that the
               decision of the safety board appealed from should in all things be
               affirmed, its judgment should state that, and judgment for costs
               shall be rendered against the party appealing. If the court finds
               that the decision of the safety board appealed from should not be
               affirmed in all things, then the court shall make a general finding,
               setting out sufficient facts to show the nature of the proceeding
               and the court’s decision on it.


[29]   The trial court’s order contained specific findings that the Board’s decision was

       made pursuant to proper procedures, not arbitrary and capricious, and

       supported by the evidence. The trial court also specifically adopted the Board’s

       findings as its own and incorporated them by reference, and found that the

       Board’s findings, conclusions, and decision should be affirmed. These findings

       were adequate to comply with I.C. § 36-8-3-4(i).


                                           2. Substantial Evidence


[30]   Homoky also argues that the Board’s findings that he committed the violations

       alleged in Counts I and III are not supported by substantial evidence. With


       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017   Page 19 of 24
       respect to Count I, the Board found in its written order that Homoky had been

       trained on the usage of IDACS and was aware that it was a violation to use

       IDACS for non-law enforcement purposes. The Board found that Homoky had

       nevertheless run fifteen IDACS queries of Mattie’s name between June 24 and

       August 28, 2012, without a valid law enforcement purpose for doing so. Thus,

       the Board concluded that Homoky had violated HPD Rules and Regulations

       concerning the protection of confidential information and conduct unbecoming

       an officer, as a result of which he violated I.C. § 36-8-3-4(b)(2)(B) and (H),

       which provide that an officer may be disciplined upon a finding that he or she is

       guilty of a violation of rules or conduct unbecoming an officer, respectively.


[31]   On appeal, Homoky does not dispute that he ran numerous IDACS queries of

       Mattie’s name, but he argues that he had a law enforcement purpose for doing

       so. Most of his arguments, however, are directed toward whether he had a

       valid law enforcement purpose for running IDACS searches on Crowder.

       Because the Board’s findings in Count I were premised solely on Homoky’s

       IDACS searches of Mattie’s name, his reasons for running IDACS searches of

       Crowder’s name are irrelevant.


[32]   Homoky’s argument that he had a law enforcement purpose for running

       Mattie’s name is not well developed, but seems to boil down to an assertion

       that he had carte blanche to run Mattie’s name at will because “[a]t the time

       relevant, [she] was wanted in an unrelated matter for the crime of passing bad

       checks.” Appellant’s Brief at 16. Homoky’s argument in this regard is

       disingenuous. In support of his claim, Homoky directs our attention to a

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017   Page 20 of 24
       Chronological Case Summary indicating that Mattie was charged with check

       deception in 2003 and entered into a pretrial diversion program in 2004, which

       she appears to have successfully completed that same year. This CCS was ruled

       inadmissible and submitted only as an offer of proof, a fact Homoky’s counsel

       fails to mention when making this argument. Homoky’s counsel’s reliance on

       this CCS as substantive evidence is therefore misplaced. In any event, the CCS

       does not support the claim that Mattie was being investigated for check

       deception or any other crime when Homoky ran her name on multiple

       occasions in 2012—approximately eight years after the check deception charge

       referenced in the CCS was resolved. The assertion by Homoky’s counsel that

       Mattie was “wanted” for check deception at the time Homoky ran IDACS

       inquiries of her name is false, and counsel’s claim that this charge could provide

       a legitimate, law-enforcement related purpose for his having done so is

       nonsensical.


[33]   The evidence before the Board was that within the span of approximately two

       months, Homoky ran fifteen IDACS searches on his estranged wife, with

       whom he had a very contentious relationship. Furthermore, Mattie testified

       that on several occasions, Homoky told her that he had run her information

       through IDACS. One of the investigating officers testified that during the

       internal investigation, Homoky never offered any law enforcement purpose for

       running Mattie’s name and, contrary to Homoky’s assertions on appeal, there is

       no indication that Mattie was the subject of any police investigation at the

       relevant time. It is eminently reasonable to infer from these facts that Homoky


       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017   Page 21 of 24
       was using his position as a law enforcement officer to run Mattie’s information

       and taunting her with his ability to do so in an attempt to harass, annoy, and

       intimidate her. The Board’s finding that Homoky had no valid law

       enforcement purpose for running Mattie’s name is amply supported by the

       evidence, as was is its conclusion that these actions amounted to a violation of

       rules and conduct unbecoming an officer. See Appellees’ Appendix Vol. 2 at 38-39

       (HPD Rules and Regulations, defining conduct unbecoming an officer to

       include, inter alia, “[r]epeated discourteous treatment of a citizen or fellow

       officer” and “[o]verbearing, oppressive or tyrannical conduct in the discharge of

       duties”).17


[34]   Homoky also argues that the Board’s finding that he committed the violations

       alleged in Count III was not supported by substantial evidence. In its written

       order, the Board found that Homoky knowingly received the monetary benefit

       of the Stardust Bowl checks, which he knew he had not earned. Specifically,

       the Board found that the checks were picked up from Stardust by either

       Homoky or by Mattie with Homoky’s knowledge. The Board further found

       that Homoky personally signed three of those checks and Mattie signed the




       17
          Homoky also argues that there is no evidence to support the Board’s finding that he violated the HPD rule
       regarding the protection of confidential information. Homoky does not, however, favor us with a citation to
       the language of that rule or any attempt to analyze whether his conduct fell within that language.
       Accordingly, this argument is waived for failure to make a cogent argument. Moreover, because we have
       already concluded that the Board’s finding that Homoky violated the rules concerning proper use of IDACS
       was supported by substantial evidence, the finding that Homoky also violated the rule against disclosure of
       confidential information was not necessary to support the Board’s finding that Homoky committed a
       violation of rules under I.C. § 36-8-3-4(b)(2(B). We conclude that any error in this regard was harmless.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017           Page 22 of 24
       remaining four, again with Homoky’s knowledge and consent, and that

       Homoky knew the checks were deposited into his and Mattie’s joint checking

       account. The Board concluded that these actions violated HPD rules

       prohibiting conversion, disregard for property rights, and conduct unbecoming

       an officer, and were grounds for discipline under I.C. § 36-8-3-4(b)(2)(B), (G),

       and (H).


[35]   On appeal, Homoky argues that Mattie was solely responsible for the conduct

       alleged in Count III. His arguments in this regard are based on blatant

       mischaracterizations of the record. Homoky repeatedly claims that Mattie

       admitted to picking up the Stardust checks, “forging” Homoky’s signature, and

       depositing the checks “independently of Homoky.” Appellant’s Brief at 12, 23.

       Mattie made no such admissions. Rather, she testified that she had possibly

       picked up a couple of the checks “[i]f [she] was told to”, but she certainly had

       not picked up all seven of them. Appellant’s Appendix Vol. 3 at 118.

       Furthermore, Mattie reviewed copies of the checks and testified that Homoky

       had personally signed three of them and that she had signed his name to the

       remaining four, with Homoky’s permission and at his direction. This is a far

       cry from admitting to forgery. Rather, Mattie’s testimony indicated that she

       signed the checks as Homoky’s agent, which is a perfectly lawful and very

       common practice between spouses. See Ind. Code § 26-1-3.1-402 (providing

       that a representative may sign an instrument “by signing either the name of the

       represented person or the name of the signer”); Moehlenkamp v. Shatz, 396

       N.E.2d 433, 436-37 (Ind. Ct. App. 1979) (discussing the creation of agency


       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017   Page 23 of 24
       relationships between spouses). Likewise, although she testified that she might

       have been the one to deposit the checks into their joint bank account, she stated

       that she did so with Homoky’s knowledge and consent. All of these findings

       were amply supported by the record, and Homoky’s arguments to the contrary

       are nothing more than requests to reweigh the evidence and judge the credibility

       of witnesses.


[36]   Judgment affirmed.


[37]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-MI-2052 | July 28, 2017   Page 24 of 24
