FOR PUBLICATION



ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE
                                            REVIEW BOARD:

LIBERTY L. ROBERTS                          GREGORY F. ZOELLER
Collier~Magar & Roberts, P.C.               Attorney General of Indiana
Indianapolis, Indiana
                                            ELIZABETH ROGERS
                                            Deputy Attorney General

                                                                          FILED
                                            Indianapolis, Indiana

                                                                      Jun 29 2012, 9:25 am
                             IN THE
                   COURT OF APPEALS OF INDIANA                                CLERK
                                                                            of the supreme court,
                                                                            court of appeals and
                                                                                   tax court




CITY OF CARMEL,                             )
                                            )
      Appellant,                            )
                                            )
             vs.                            )      No. 93A02-1108-EX-841
                                            )
REVIEW BOARD OF THE INDIANA                 )
DEPARTMENT OF WORKFORCE                     )
DEVELOPMENT and GREG PARK,                  )
                                            )
      Appellees.                            )


   APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT OF WORKFORCE
                            DEVELOPMENT
                  The Honorable Steven F. Bier, Chairperson
                           Cause No. 11-R-2540



                                   June 29, 2012


                            OPINION - FOR PUBLICATION

BROWN, Judge
      The City of Carmel, Indiana (“Employer”) appeals a decision by the Review

Board of the Indiana Department of Workforce Development (the “Board”) in connection

with Greg Park’s application for unemployment benefits that Park was discharged, but

not for just cause. Employer raises one issue, which we revise and restate as whether the

record supports the Board’s decision. We reverse and remand.

      The relevant facts follow. Park worked as a full time patrol officer for the Carmel

Police Department from January 14, 2008, to February 19, 2011. On November 18,

2010, then Chief of Police Michael Fogarty submitted a letter to the Carmel Police Merit

Board stating that Park had violated department policies, rules, and regulations.

Following a public hearing at which Chief of Police Tim Green and Park testified, the

Merit Board issued findings of fact and conclusions of law, concluded that there was

substantial and convincing evidence to support the termination of Park’s employment,

and that the appropriate discipline for Park was termination effective February 19, 2011.

In its findings of fact, the Merit Board found that, on September 14, 2010, Park was

dispatched to a school to respond to a fight involving two juveniles, that Park’s superior

officer had arrived on the scene prior to Park and conducted an investigation, and that

Park’s superior officer instructed Park to arrest one of the juveniles and not the other.

The Merit Board further found that Park initially arrested one of the juveniles but later

called the home of the other juvenile, spoke with the juvenile about the fight, then

arrested the second juvenile, and that Park “disobeyed [his supervising officer’s] direct

order when he arrested the second juvenile.” Exhibits at 38.




                                            2
       Park filed a claim for unemployment benefits, and on March 10, 2011, a deputy

for the Indiana Department of Workforce Development issued a Determination of

Eligibility which found that Park was discharged for just cause and not eligible for full

unemployment benefits.       Park appealed the deputy’s determination, and after a

continuance a telephonic hearing was held on April 18, 2011, before an administrative

law judge (the “ALJ”).       The ALJ issued a decision which reversed the deputy’s

determination and concluded that Park was discharged but not for just cause.

Specifically, the ALJ’s decision provided in part:

       Decision – Reversed

       FINDINGS OF FACT: [Park] worked as a full time police officer for the
       Carmel Police Department. [Park] worked from January 14, 2008 until
       February 19, 2011. [Park] was discharged for violating the Employer’s
       policies and procedures. A recommendation of discharge was submitted to
       the Carmel Police Merit Broad [sic] stating that [Park] had violated the
       Employer’s policies and procedures.

       The Employer states that in September 2010, [Park] failed to obey the order
       of a supervisor. [Park] was called to the Mosaic School where two
       juveniles were involved in a fight. [Park] was told to arrest one of the
       juveniles but not the other. [Park] made a determination later that both
       juveniles should be arrested based on his own assessment. [Park] as an
       arresting officer made an independent judgment based on his knowledge of
       the evidence. No evidence was submitted to show [Park] should overlook
       evidence which would allow a wrong doer to go free. No information was
       provided to show that the officer must follow an order regardless of the
       information know[n] to him. No evidence was submitted to indicate [Park]
       made a wrongful arrest in the arrest of the second juvenile.

       [Park] is accused of intimidating the Mosaic School principal. The
       Employer did not provide evidence that [Park] had knowledge of the
       Mosaic principal’s statement or complaint to the Employer. The Employer
       did not provide any evidence of a complaint or statement being made by the
       principal. No evidence was submitted to show [Park] knew that an
       investigation was taking place regarding the incident.


                                             3
There are two incidents regarding citizen complaints that are a part of the
recommendation to discharge [Park]. [Park] made a traffic stop and failed
to give the driver a ticket. [Park] later took the ticket to the driver’s home.
The second incident involved [Park] using his position as a police officer to
obtain information he otherwise would not have been able to obtain. The
actual citizen complaints were not presented as evidence for trial. No first
hand testimony was provided. The complaints were the basis of the
Employer’s investigations. The Employer did not identify specific dates
when the complaints were received or when the investigations began.
Statements obtained from witnesses during the investigations were not
provided. [Park] was not aware and did not participate in the investigations
until two and three months after the incidents occurred.

The recommendation to the merit board to terminate [Park] was not the
result of progressive discipline. [Park] was discharged for investigations of
incidents that were deemed serious by the Employer because all the
incidents being investigated were occurring at one time. The Employer
chose to investigate the incidents at one time. The incidents were not
investigated when they occurred and the Employer did not provide
evidence that all the complaints came to its attention at one time.

[Park] received a six month evaluation in October of 2010. The evaluation
was not submitted as evidence. Three serious investigations of [Park] were
ong[o]ing; [Park’s] evaluation should have mentioned the receipt of three
serious complaints.

CONCLUSIONS OF LAW: The burden of proof for showing just cause
for a discharge is on the Employer. Moore v. Review Bd. of Indiana
Employment Sec. Div., 461 N.E.2d 737, 739 (Ind.Ct.App. 1984). In Moore
the Court stated:

       In a situation where an employee is alleged to have been
       terminated for just cause, the Employer bears the burden of
       proof initially. Once the Employer has established a prima
       facie showing of just cause for termination, the burden shifts
       to the employee to go forward with evidence rebutting the
       Employer’s claim.

Id.

The Administrative Law Judge finds that the Employer failed to make out a
prima facie case of just cause for discharging [Park]. To show that a
discharge was for just cause in a rule violation case, the Employer must
present evidence of the following: (1) there was a rule; (2) the rule was
                                      4
       reasonable; (3) the rule was uniformly enforced; (4) [Park] knew of the
       rule; and (5) [Park] knowingly violated the rule.

       There is no indication that [Park] would be discharged based on any single
       incident that was the basis of the Employer’s recommendation with the
       exception of retaliation. The Employer failed to show [Park] had
       knowledge of a complaint which is the basis for the retaliation claim.

       The Employer failed to show that [Park] could not make an independent
       arrest based on information known to him that may have not have been
       known to his supervisor in the arrest of the second juvenile. It has not been
       established that there was an insubordinate act. Finally, the Employer did
       not provide the citizen complaints it received or investigations it conducted.
       The Employer provided no first-hand testimony of the violations which led
       to [Park’s] discharge.

       The Administrative Law Judge holds that the Employer failed to
       demonstrate just cause for discharging [Park] pursuant to Indiana Code
       §22-4-15-1(d)(2).

       DECISION: The initial determination of the Deputy is REVERSED.
       [Park] if otherwise eligible is entitled to unemployment insurance benefits
       effective the week ending February 19, 2011.

       DATED AT INDIANA, THIS 18TH DAY OF APRIL, 2011.

Exhibits at 97-98. Employer filed an appeal from the decision of the ALJ, and the Board

affirmed the ALJ’s decision.

       The issue is whether the record supports the decision of the Board that Park was

discharged but not for just cause.       The Indiana Unemployment Compensation Act

provides that “[a]ny decision of the review board shall be conclusive and binding as to all

questions of fact.” Ind. Code § 22-4-17-12(a). However, Ind. Code § 22-4-17-12(f)

provides that when the Board’s decision is challenged as contrary to law, the reviewing

court is limited to a two part inquiry into: (1) “the sufficiency of the facts found to sustain

the decision;” and (2) “the sufficiency of the evidence to sustain the findings of facts.”


                                              5
McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind.

1998), reh’g denied. The Indiana Supreme Court clarified our standard of review of the

Board’s decisions in McClain:

              Review of the Board’s findings of basic fact [is] subject to a
       “substantial evidence” standard of review. In this analysis the appellate
       court neither reweighs the evidence nor assesses the credibility of witnesses
       and considers only the evidence most favorable to the Board’s findings.

              The Board’s conclusions as to ultimate facts involve an inference or
       deduction based on the findings of basic fact. These questions of ultimate
       fact are sometimes described as “questions of law.” They are, however,
       more appropriately characterized as mixed questions of law and fact. As
       such, they are typically reviewed to ensure that the Board’s inference is
       “reasonable” or “reasonable in light of [the Board’s] findings.” The term
       “reasonableness” is conveniently imprecise. Some questions of ultimate
       fact are within the special competence of the Board. If so, it is appropriate
       for a court to exercise greater deference to the “reasonableness” of the
       Board’s conclusion. . . . However, not all ultimate facts are within the
       Board’s area of expertise. As to these, the reviewing court is more likely to
       exercise its own judgment. In either case the court examines the logic of
       the inference drawn and imposes any rules of law that may drive the result.
       That inference still requires reversal if the underlying facts are not
       supported by substantial evidence or the logic of the inference is faulty,
       even where the agency acts within its expertise, or if the agency proceeds
       under an incorrect view of the law.

Id. at 1317-1318 (citations and footnotes omitted).

       In Indiana, an employee is ineligible for unemployment benefits if he or she is

discharged for just cause. Stanrail Corp. v. Review Bd. of Dep’t of Workforce Dev., 735

N.E.2d 1197, 1202 (Ind. Ct. App. 2000), trans. denied; Ind. Code § 22-4-15-1. Ind. Code

§ 22-4-15-1(d) provides that “[d]ischarge for just cause” is defined to include a “knowing

violation of a reasonable and uniformly enforced rule of an employer . . . .”

       Employer argues that the Board improperly imposed on it “the burden to produce

evidence beyond what was required by the law and failed to take into consideration the
                                             6
substantial evidence, including Park’s admissions, which supported the finding that Park

violated the Department rules.” Appellant’s Brief at 12. Employer argues that it was not

required to produce additional evidence beyond Park’s admissions in order to establish

that Park violated the Department’s rules and that the Board did not have the authority to

impose the additional evidentiary burden on it. Employer argues that a written rule

required officers, including Park, to “promptly obey any lawful order of a supervisor”

and that “Park admitted that he intentionally disregarded his supervisor’s order because

he disagreed with it.” Id. at 13. Employer asserts that the Board “wants to create an

exception to the rule that does not exist” and that “[t]he rule does not provide that an

officer can disobey the order just because he disagrees with it.” Id. at 15. Employer

further argues that Park admitted that he failed to conform to rules and regulations when

he delivered a written warning to a driver at the home of the driver’s parents and that it

was improper for the Board to require Employer to have an actual citizen testify at the

hearing or to provide dates relating to the receipt of the citizen’s complaint. Employer

also argues that Park admitted that he used his title and position as a police officer to

obtain information that he would not have been able to obtain otherwise. Employer

asserts that the Board’s finding that “[t]here was no indication that Park would be

discharged based on any single incident that was the basis of [its] recommendation with

the exception of retaliation” is “directly contrary to the evidence and an improper legal

conclusion.” Id. at 21. Employer also asserts that the Board’s findings that it chose to

investigate the incidents at one time and not when they occurred and that Park’s




                                            7
discharge was not based on progressive discipline are not supported by, but are contrary

to, the evidence.

       The Board asserts that “[w]hile [Employer] argued that the ALJ imposed a burden

beyond what is required in unemployment insurance law, it seems that the real crux of

[Employer’s] argument goes to the weight the ALJ gave the evidence,” that “[t]he ALJ

determines credibility and made a determination that Park was more credible than the

evidence provided by [Employer],” and that “[c]ontrary to [Employer’s] assertion, no

additional evidentiary burden was imposed upon it by the ALJ.” Appellee’s Brief at 8.

The Board argues that Employer states that it had a written rule which required officers to

promptly obey any lawful order of a supervisor but that Employer did not submit a copy

of its employee handbook. The Board further argues that Park was able to make an

independent determination whether to arrest an individual based on probable cause and is

not required to obtain the permission of a supervisor and thus that the Board properly

determined that Employer failed to prove that Park violated a rule and disobeyed his

supervisor when he arrested both juveniles instead of just one of them. The Board asserts

that it did not find the evidence in connection with the citizen complaints to be

compelling of discharge and that it was reasonable for the ALJ to conclude that Employer

“needed to meet its burden with respect to each complaint made against Park” and that

“[e]vidence supporting only one incident was insufficient to justify a finding of discharge

for just cause.” Id. at 10. The Board also maintains that the ALJ did not rely on

Employer’s failure to timely investigate the citizen complaints or to engage in

progressive discipline in concluding that it failed to meet its burden of proof.


                                              8
       In its reply brief, Employer argues that the Board improperly required it to

produce additional evidence beyond a prima facie case, that Park admitted to the rule

violations, and that “[t]his is not an issue of credibility.” Appellant’s Reply Brief at 5.

Employer further argues that it was not required to prove a “totality” of action or prove

every violation in the original charging letter in order to establish just cause for Park’s

termination at the hearing. Id. Also, Employer argues that the Board’s decision does not

state that it weighed the evidence and determined that Park was more credible as the

Board argues but rather that the decision repeatedly states that “no evidence” was

submitted. Id. at 7.

       The employer bears the initial burden of establishing that an employee was

terminated for just cause. Coleman v. Review Bd. of Ind. Dep’t of Workforce Dev., 905

N.E.2d 1015, 1019-1020 (Ind. Ct. App. 2009). To establish a prima facie case for just

cause discharge for violation of an employer rule, the employer has to show that the

claimant: (1) knowingly violated; (2) a reasonable; and (3) uniformly enforced rule. Id.

at 1020; Stanrail, 735 N.E.2d at 1203. To have knowingly violated an employer’s rules,

the employee must: (1) know the rule; and (2) know his conduct violated the rule.

Stanrail, 735 N.E.2d at 1203. If an employer meets this burden, the claimant must

present evidence to rebut the employer’s prima facie showing. Coleman, 905 N.E.2d at

1020; Stanrail, 735 N.E.2d at 1203.

       A uniformly enforced rule is one that is carried out in such a way that all persons

under the same conditions and in the same circumstances are treated alike. Gen. Motors

Corp. v. Review Bd. of Ind. Dep’t of Workforce Dev., 671 N.E.2d 493, 498 (Ind. Ct.


                                            9
App. 1996). “In order to evaluate uniformity one must first define the class of persons

against whom uniformity is measured.” Stanrail, 735 N.E.2d at 1203. This court has

often stated that “[a]n employer’s asserted work rule must be reduced to writing and

introduced into evidence to enable this court to fairly and reasonably review the

determination that an employee was discharged for ‘just cause’ for the knowing violation

of a rule.” Id. at 1205 (citing KBI, Inc. v. Review Bd. of the Ind. Dep’t of Workforce

Dev., 656 N.E.2d 842, 844 (Ind. Ct. App 1995)); see also Doughty v. Review Bd. of

Dep’t of Workforce Dev., 784 N.E.2d 524, 527 (Ind. Ct. App. 2003) (citing Watterson v.

Review Bd. of Ind. Dep’t of Emp’t & Training Serv., 568 N.E.2d 1102, 1105 (Ind. Ct.

App. 1991) (stating that reducing a rule to writing and introducing it into evidence is “the

minimum evidence necessary for the employer to satisfy its burden that it has a rule and

that that rule is reasonable and uniformly enforced”)). The reason for requiring uniform

enforcement of a known and reasonable rule is to give notice to employees about what

punishment they can reasonably anticipate if they violate the rule and to protect

employees against arbitrary enforcement. Coleman, 905 N.E.2d at 1020.

       In this case, at the April 18, 2011 hearing before the ALJ, Employer introduced a

number of exhibits, which included the November 18, 2010 letter to the Carmel Police

Merit Board prepared by then Chief of Police Fogarty, the Merit Board’s findings of fact

and conclusions of law, and copies of two written reprimands related to Park. Chief of

Police Tim Green and Park testified before the ALJ. The November 18, 2010 letter set

forth “G.O. 12.1.3 Lawful Orders,” which stated “All personnel shall promptly obey any

lawful order of a supervisor including any other related from a supervisor by an officer of


                                            10
the same or lesser rank.” Exhibits at 22. In addition, the letter set forth “G.O. 61.1.8,”

which provided that “[o]nce the officer has stopped the violator and approaches to a point

where communications can begin, the following guidelines should be followed in terms

of officer-violator relationships: . . . 13. Return the violators [sic] operator’s license,

registration, and a copy of citation or written warning.” Id. at 25. “G.O. 26” provides in

part, under subsection B, that “[i]nformation regarding official business, communications

records and data shall be disseminated only to those for whom it was intended, according

to departmental procedures;” under subsection E that “[m]embers shall not conduct

themselves in an immoral and/or indecent manner that impairs their ability to perform as

police officers or causes the Department to be brought into disrepute;” and under

subsection F that “[w]hen dealing with the public, members shall not use language or

gestures that are indecent or discourteous,” that “[m]embers shall not enter into official

departmental correspondence or official verbal communication with anyone, except in

performance of their official duties,” that “[m]embers shall not intervene in the assigned

case of another member without permission of their commanding officer, but shall give

assistance when and where necessary,” and “[m]embers shall not use their official

position, badge or credentials for personal advantage nor to solicit goods, services or

gratuities.” Id. at 25-26.

       With respect to Employer’s claim that Park disobeyed a lawful order, Chief of

Police Green testified that a complaint was reported at a school involving a fight between

two juveniles. Chief Green testified that Sergeant Keith instructed Park to arrest one of

the juveniles and not the other. Chief Green testified that “[a]s a result of that, Officer


                                            11
Park ended up arrest[ing] two individuals and didn’t follow the directives and orders of

his sergeant, and also was found to have made some negative comments about the

sergeant to a civilian employee at this location.” Transcript at 16. Chief Green indicated

that Park disobeyed an order of Sergeant Keith to arrest one person and not the other.

When asked “is there any rule or regulation that you’re aware of in the Carmel Police

Department that requires a police officer who has statutory authority to arrest to get

permission from a supervisor to make an arrest,” Chief Green answered “No.” Transcript

at 61. Chief Green also indicated that Officer Park can decide to arrest someone based on

probable cause. When asked whether he thought Park’s belief that it would be wrong to

arrest one of the juveniles and not the other was rational, Chief Green testified: “I think

it’s rational to discuss things if you have a different view point on things, but at that point

Sergeant Keith had instructed Officer Park on what he wanted done. The issue [is] that

Officer Park did not follow that, nor did he speak with . . . Sergeant Keith, regarding that

prior to making his decision.” Id. Chief Green testified “So that’s not the same as an

officer, you asked me if an officer can make an arrest based on probable cause. Yes, he

or she can, but an officer, once instructed on how to carry something out, knows exactly

then what needs to be done and if they have a problem or disagree with that, they can go

through a certain procedure and that was not even done, sir.” Id. at 62.

       Park testified that when he arrived at the school Sergeant Keith stated “this one is

going to juvenile, or jail, this one is going home with his mom.” Id. at 79. Park testified

that Sergeant Keith handed paperwork to him to complete the report and that Sergeant

Keith called a juvenile prosecutor. Park testified:


                                              12
       Once it was determined that the first juvenile . . . was to be arrested, I then
       as per rules and regulation transported him back to the police department
       where . . . I began to get his side of the story, which is what I’m required to
       do. I’m gonna be doing a report and putting the charges on. After listening
       to his side of the story, I determined that this was not a case of self defense,
       but this was a case of mutual combat and that further investigation needed
       to be conducted.

Id. at 79-80. When asked “[s]o [you] ultimately conducted that investigation and arrested

both juveniles,” Park answered “I did.” Id. at 80. Park does not point to the record to

show that, after arresting and interviewing the initial juvenile, he secured permission to

arrest the second juvenile or discussed the case or his concerns about any failure to arrest

the second juvenile with Sergeant Keith or his supervising officers prior to making the

arrest of the second juvenile despite Sergeant Keith’s previous instructions or order.

       By the nature of their positions, police officers face critical decisions, some

presenting life and death consequences. Given the risks posed, discipline is essential.

The failure to follow the orders of a superior officer can result in death, grievous injury,

or serious financial loss. The failure of an employee to follow the uniformly enforced

rules of the employer has long been recognized as just cause for termination because the

failure to follow such rules can have serious consequences. When we move from the

general employment arenas to police forces, the potential consequences of such failures

become much more dire. Here, there is no evidence of any justification for Park’s actions

in violating the instructions of his superior officer, other than that he himself concluded

that the second juvenile should be arrested. Based upon the record, we conclude that

Employer demonstrated that Park’s actions were in violation of Employer’s rules and that

Park’s arrest of the second juvenile, under the circumstances, constituted a failure to obey


                                             13
a lawful order under Employer’s rules. Accordingly, Employer demonstrated just cause

for discharging Park, and we reverse the findings of the ALJ and Board on this issue.

       In addition, as found by the Merit Board in its decision that Park’s employment

with the Carmel Police Department be terminated, there were a number of other

complaints and rule violations by Park, and Park had prior disciplinary issues. Although

separate evidence was submitted on some, but not all of Park’s disciplinary history to the

ALJ, these findings by the Merit Board were before the ALJ. For instance, Employer

presented evidence that, after arresting the first juvenile, Park went back to the school and

spoke with the school’s principal “during which time [the principal] felt very

uncomfortable, felt this was not proper and reported this to the department.” Id. at 48.

Further, the Merit Board found that Park stopped an eighteen year-old woman for

speeding, obtained her driver’s license and vehicle registration, released her without

issuing a citation or warning, and later completed a written warning for speeding, which

he took to the residence of the driver and delivered it to her mother. The driver’s mother

complained that Park made her feel uneasy and told her that he had stopped and watched

her and her daughter play tennis.

       Also, in its decision, the Merit Board set forth Park’s history of discipline and

work performance, which indicated among other incidents that Park was given a verbal

counseling session in April 2008 due to his behavior during a field training program

showing frustration and his desire to return to another police force; a verbal counseling

session in July 2008 in response to his conduct during a stolen vehicle investigation in

refusing to take a report; a written reprimand in September 2008 after Park had been


                                             14
admonished by a judge in open court for poor performance, lack of preparation,

inconsistency, and being untruthful in Carmel City Court; a verbal counseling session in

September 2008 related to an incident in which Park had handcuffed a man who was not

under arrest and searched him but did not notice a large knife sticking out of the man’s

pocket; a counseling and order to change an accident report in September 2008 involving

an incident where a school bus driver struck an unoccupied and properly parked vehicle

and Park’s report stated that the unoccupied vehicle was at fault for the collision; an

advisement in May 2009 due to a citizen complaint for his slow response after an alarm

company reported an alarm at a citizen’s house because Park chose to finish his breakfast

before responding to the dispatch; a counseling session reprimand in February 2009

related to Park conducting a traffic stop for an act that occurred on private property and

failing to follow proper departmental procedures; a counseling session in December 2009

for neglecting to take a report for check deception and failing to collect the evidence of

deception; and an internal investigation in July 2010 based upon two separate complaints

from women who advised that Park had been “hitting on them” and video from one of the

traffic stops showed that Park hugged the woman several times during the traffic stop.

       Based upon the evidence and testimony before the ALJ and Board, we conclude

that Employer showed that Park violated a reasonable and uniformly enforced rule related

to a lawful order of a supervisor and other departmental rules and that therefore Employer

demonstrated that Park was discharged for just cause. Accordingly, we reverse the

decision of the Board that Park was discharged but not for just cause and remand for

further proceedings consistent with this opinion.


                                            15
      For the foregoing reasons, we reverse the decision of the Board and remand for

further proceedings.

      Reversed and remanded.

BAKER, J., and KIRSCH, J., concur.




                                        16
