MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Dec 14 2018, 8:48 am

court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jeffrey S. McQuary                                       William W. Barrett
TOMPKINS LAW                                             Daniel J. Layden
Indianapolis, Indiana                                    WILLIAMS BARRETT &
                                                         WILKOWSKI, LLP
                                                         Greenwood, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Bryan Burton,                                            December 14, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-MI-1358
        v.                                               Appeal from the Johnson Superior
                                                         Court
City of Franklin,                                        The Honorable Marla K. Clark,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         41D04-1705-MI-106



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-MI-1358 | December 14, 2018                   Page 1 of 10
                                          Case Summary
[1]   City of Franklin Chief of Police Tim O’Sullivan (“Chief O’Sullivan”)

      recommended the termination of Bryan Burton (“Burton”) from the City of

      Franklin police force following Burton’s arrest for domestic violence. The

      Franklin Police Merit Commission (“the Commission”) conducted a hearing

      and terminated Burton’s employment. The termination decision was affirmed

      by the trial court and Burton now appeals. We affirm.



                                                   Issues
[2]   Burton presents two consolidated and restated issues for our review:


              I.      Whether the termination decision is reversible because
                      Burton was deprived of procedural due process; and


              II.     Whether the termination decision is unsupported by
                      substantial evidence.


                            Facts and Procedural History
[3]   On October 23, 2016, Burton’s fourteen-year-old stepson called 9-1-1 and

      reported that Burton and his wife, Jordan Burton (“Jordan”), were arguing

      about their youngest child and that, during the argument, Burton had grabbed

      Jordan’s arm. Franklin Police Officers Jason Hyneman, Bryan Goldfarb, and

      Sergeant Lucas responded. Jordan appeared to be upset and displayed her arm,

      which had three lineal red lines on it. She reported that Burton had grabbed

      her. She also expressed some concern about bias among Burton’s fellow police

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1358 | December 14, 2018   Page 2 of 10
      officers; in response, the supervising officer made the decision to turn the

      investigation over to the Johnson County Sheriff’s Department.


[4]   Sheriff’s Deputy Evan Preston arrived on the scene shortly thereafter and began

      to interview the Burtons and their teenaged children. He observed an injury to

      Jordan’s arm. Burton denied having grabbed Jordan. One of the teenagers

      reported that Burton had grabbed Jordan and interfered with the operation of

      her vehicle. Another teenager reported that Jordan had struck him in the face.

      Both Jordan and Burton were arrested.1


[5]   That same evening, Chief O’Sullivan was informed about Burton’s arrest. On

      October 24, 2016, Chief O’Sullivan met with Burton and issued him a five-day

      suspension letter. On October 25, 2016, Chief O’Sullivan preferred charges

      against Burton, alleging that he had engaged in conduct unbecoming an officer

      and conduct injurious to the public peace and welfare. The first charge was

      related to the conduct underlying the arrest for felony battery and the second

      charge was related to Burton’s alleged untruthfulness on October 19, 2016,

      when discussing the state of his marriage in a conference with Chief O’Sullivan.


[6]   At Burton’s request, the Commission conducted an evidentiary hearing on

      April 19, 2017. The Commission found that Burton had engaged in both

      unbecoming and injurious conduct; it approved Chief O’Sullivan’s

      recommendation that Burton’s employment be terminated. Burton sought




      1
          Ultimately, a special prosecutor declined to bring criminal charges against either of the Burtons.


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1358 | December 14, 2018                        Page 3 of 10
      judicial review of the disciplinary decision, pursuant to Indiana Code Section 4-

      21.5-1-1. On March 7, 2018, the trial court heard argument of counsel. On

      May 15, 2018, the trial court issued its decision affirming the Commission’s

      disciplinary decision. Burton now appeals.



                                Discussion and Decision
                                       Standard of Review
[7]   Indiana Code Section 36-8-3.5-17(b) provides in relevant part that a police

      department member may be disciplined if “the commission finds the member

      guilty of a breach of discipline, including: … (G) conduct injurious to the public

      peace or welfare; [or] (H) conduct unbecoming a member[.]” The discipline

      may include suspension, demotion, or dismissal. See id. Pursuant to subsection

      (h), the misconduct is to be established by a preponderance of the evidence. A

      member who is aggrieved by a decision of the commission to dismiss him may

      appeal to the circuit or superior court of the county in which the unit is located.

      I.C. § 36-8-3.5-18.


[8]   Our review of an administrative action is very limited. Gray v. Cty. of Starke, 82

      N.E.3d 913, 917 (Ind. Ct. App. 2017). We give deference to the expertise of the

      administrative body, which includes a police merit commission. Id. We will

      not reverse its discretionary decision absent a showing that the decision was

      arbitrary and capricious, an abuse of discretion, or otherwise not in accordance

      with the law. Id. Our review is limited to determining whether the

      administrative body adhered to proper legal procedure and made a finding
      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1358 | December 14, 2018   Page 4 of 10
       based upon substantial evidence in accordance with appropriate constitutional

       and statutory provisions. Id. We will not substitute our judgment for that of

       the administrative body, and we will not modify a penalty imposed in a

       disciplinary action, absent a showing that the action was arbitrary and

       capricious. Id.


[9]    “An arbitrary and capricious decision, which the challenging party bears the

       burden of proving, is a decision which is willful and unreasonable, made

       without any consideration of the facts and in total disregard of the

       circumstances, and lacks any basis which might lead a reasonable and honest

       person to the same decision.” Bird v. Cty. of Allen, 639 N.E.2d 320, 328 (Ind. Ct.

       App. 1994). Substantial evidence is such relevant evidence as a reasonable

       mind might accept as being adequate to support a conclusion. Id. We will not

       reweigh the evidence upon review. Id.


[10]   In addition, “[t]he discipline of police officers is within the province of the

       executive branch of government, not the judicial branch. For this reason, we

       will not substitute our judgment for that of the administrative body when no

       compelling circumstances are present.” Winters v. City of Evansville, 29 N.E.3d

       773, 781 (Ind. Ct. App. 2015) (citation omitted).


                                     Procedural Due Process
[11]   At the hearing, Burton argued that Chief O’Sullivan failed to adequately

       investigate the domestic incident before preferring charges. Specifically, he

       contended that Chief O’Sullivan should have initiated an internal investigation

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1358 | December 14, 2018   Page 5 of 10
       independent of that undertaken by the Johnson County Sheriff’s Department.

       In his deposition, Chief O’Sullivan had agreed that, although he had the power

       to convene an internal review panel, he had declined to do so. Having

       knowledge of Burton’s disciplinary history, Chief O’Sullivan opined that “the

       arrest was enough.” (App. Vol. II, pg. 25.)


[12]   Burton now asserts that Chief O’Sullivan “violated [I.C. § 36-8-3.5-14] that

       required him to conduct an investigation before preferring charges.” Brief of

       Appellant at 20. Burton directs our attention to the language of Indiana Code

       Section 36-8-3.5-14(c):


               If the chief of the department, after an investigation within the
               department, prefers charges against a member of the department
               for an alleged breach of discipline … a hearing shall be
               conducted upon the request of the member.


       With emphasis upon the phrase “after an investigation within the department,”

       Burton argues that the disciplinary statute mandates an internal departmental

       investigation before preferring charges. The interpretation of a statute is purely

       a question of law. B.K.C. v. State, 781 N.E.2d 1157, 1167 (Ind. Ct. App. 2003).

       Our purpose is to ascertain and give effect to the intent of the legislature and if

       the text is clear and unambiguous, we merely apply the plain meaning of the

       statute. Id. We will interpret ambiguous text using established principles of

       statutory construction; that is, we will construe the statute in accordance with

       its purpose and the statutory scheme of which it is a part. Id. We presume that




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1358 | December 14, 2018   Page 6 of 10
       the legislature intends for us to apply language in a logical manner consistent

       with the statute’s underlying policy and goals. Id.


[13]   The City of Franklin contends that the purpose and objective of subsection (c) is

       that the accused officer possesses the right to a hearing, upon request. We

       agree. Although the language contemplates that an investigation precedes the

       preferring of charges, no means or manner is described and the statutory

       objective – right to a hearing – is not conditioned upon a departmental

       investigation. Moreover, the Legislature could not logically have intended to

       prevent a department from deferring investigation to another department in the

       case of a potential conflict of interest.


[14]   That said, the record reveals that Chief O’Sullivan did not prefer charges in a

       vacuum. He received and reviewed the reports of the three first-responding

       City of Franklin police officers. He also reviewed the 9-1-1 dispatcher’s

       comments. He conferred with his deputy chief of police and with members of

       the Johnson County Sheriff’s Department, who had taken over the

       investigation. In sum, charges were not preferred absent investigation.


[15]   Burton suggests that, had Chief O’Sullivan personally and adequately

       investigated, he would have learned that no criminal charges were filed against

       Burton in connection with the alleged battery upon Jordan. But Chief

       O’Sullivan’s ability to pursue disciplinary action was not contingent upon the

       filing of criminal charges by the Johnson County Prosecutor. We have

       observed, “[f]rom the very nature of a policeman’s duties, his conduct in the


       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1358 | December 14, 2018   Page 7 of 10
       community on and off duty must be above reproach.” Pope v. Marion Cty.

       Sheriff’s Merit Board, 157 Ind. App. 636, 301 N.E.2d 386, 391 (1973). Consistent

       therewith, Indiana Code Section 36-8-3.5-17 does not require the pursuit of

       criminal charges to support the imposition of police discipline.


[16]   Burton also argues that the Commission president, John Shafer (“Shafer”),

       “violated due process by not recusing himself despite bias against Burton.”

       Appellant’s Brief at 24. Shafer acknowledged that he had, in disciplinary

       proceedings conducted in 2015, asked Burton whether he had a drug or alcohol

       problem. Those disciplinary proceedings did not involve an allegation of

       substance abuse. Shafer did not recall the exact words he used, but he did recall

       his motivation as a desire to assist Burton. Burton argues that Shafer

       demonstrated a bias against Burton, that is, a long-standing belief that Burton

       was unfit to serve as a police officer.


[17]   “Due process in administrative hearings requires that all hearings be conducted

       before an impartial body.” Ripley Cty. Bd. of Zoning v. Rumpke of Indiana, 663

       N.E.2d 198, 209 (Ind. Ct. App. 1996). This dictates that agency members may

       not be swayed in their decisions by preconceived biases and prejudices. Id. We

       presume, however, that administrative agencies will act properly with or

       without recusal of allegedly biased members. Id. A mere allegation of bias is

       insufficient; a reviewing court will not interfere with the administrative process

       absent a demonstration of actual bias. New Trend Beauty Sch., Inc. v. Indiana

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

       1988).

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1358 | December 14, 2018   Page 8 of 10
[18]   As Burton observes, in Ripley, a panel of this Court did not find clear error in

       the trial court’s determination that a member of an administrative body was

       biased where he had made comments highly critical of a person who later

       appeared before that board. 663 N.E.2d at 209. There, a board of zoning

       appeals member owned land near the petitioner’s landfill, and had complained

       about the landfill operations, had led an effort to enforce a 300-foot setback

       against the petitioner, and had made comments including that “if he could run

       Rumpke out of Ripley County he would.” Id. at 210. The instant

       circumstances are not akin to those in Ripley. Shafer had interjected into prior

       disciplinary proceedings the idea that Burton might benefit from substance

       abuse therapy. Although the offer of assistance may have been misguided,

       there is no indication that Shafer had personal animus against Burton or a

       potential for personal gain. Burton has not shown that he was deprived of a

       hearing before an impartial body.


                                           Substantial Evidence
[19]   At the administrative hearing, photographic and testimonial evidence was

       introduced regarding Jordan’s injuries. Burton does not challenge the

       Commission’s finding that, more probably than not, Burton touched his wife on

       October 23, 2016, in a rude, insolent or angry manner, and caused injury.

       However, he argues at some length that he was not deceptive in communicating

       with Chief O’Sullivan on October 19, 2016, regarding the state of the Burton

       marriage.



       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1358 | December 14, 2018   Page 9 of 10
[20]   The Commission heard evidence suggesting that Burton’s marriage had been

       troubled for some time and he had complained at work. However, on October

       19, 2016, he assured Chief O’Sullivan that things were “perfect, great, or

       couldn’t be better.” (App. Vol. III, pg. 40.) This reassurance deprived the chief

       of the opportunity to refer Burton to an employee assistance program. A few

       days later, after the domestic incident, Burton wrote out a six-page statement in

       which he acknowledged that he and Jordan had experienced marital difficulties

       over some time. His current insistence that marriages have good days and bad

       days and his comments should refer to an isolated time frame, a good day, is a

       request to reweigh evidence. We have already observed, substantial evidence is

       such relevant evidence as a reasonable mind might accept as being adequate to

       support a conclusion, and we will not reweigh evidence upon review. Bird, 639

       N.E.2d at 328. The Commission did not enter an arbitrary and capricious

       decision unsupported by substantial evidence.



                                               Conclusion
[21]   Burton was not denied procedural due process. Substantial evidence supports

       the Commission’s findings. The trial court properly declined to overturn the

       disciplinary decision of the Commission.


[22]   Affirmed.


       Bradford, J., and Brown, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1358 | December 14, 2018   Page 10 of 10
