Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose                      Mar 14 2013, 8:16 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEY FOR APPELLEE:

EDWARD J. MERCHANT                               CHARLES N. BRAUN II
Ruckelshaus Kautzman Blackwell                   Indianapolis, Indiana
 Bemis & Hasbrook
Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

RICHARD LINDSEY,                                 )
                                                 )
       Appellant,                                )
                                                 )
              vs.                                )      No. 83A05-1206-MI-317
                                                 )
CITY OF CLINTON, INDIANA,                        )
                                                 )
       Appellee.                                 )


                    APPEAL FROM THE VERMILLION CIRCUIT COURT
                        The Honorable David A. Ault, Special Judge
                              Cause No. 83C01-1108-MI-12



                                       March 14, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Richard Lindsey appeals the trial court’s order affirming the decision of the Police

Department Merit Board for the City of Clinton (the “Merit Board”) to terminate his

employment as a police officer. Lindsey raises one issue, which we restate as whether

the court’s decision was unsupported by substantial evidence or was arbitrary and

capricious. We affirm.

                         FACTS & PROCEDURAL HISTORY

       Lindsey was a police officer with the City of Clinton Police Department (the

“Department”). In October 2009, Police Chief Curtis Stoffel was informed that Lindsey

had been observed several times operating a motorcycle. On October 19, 2009, Chief

Stoffel met with Lindsey and discussed the issue, at which time Lindsey informed Chief

Stoffel that he possessed a motorcycle learner’s permit. Chief Stoffel advised Lindsey to

follow the guidelines of the motorcycle learner’s permit. At the time, the records of the

Indiana Bureau of Motor Vehicles disclosed that Lindsey did not have a motorcycle

learner’s permit.

       On February 28, 2010, Lindsey and K.J., who were involved in an intimate

relationship, went on a trip to Florida. On or about March 5, 2010, Lindsey and K.J.

stayed at a hotel in the area of Key West, Florida, where at some point Lindsey caused

K.J. to fall onto the floor of their hotel room, and Lindsey did not seek or provide K.J.

with medical assistance. After returning to Indiana on March 9, 2010, K.J. sought

medical attention for injuries and made a verbal complaint against Lindsey with Chief

Stoffel. On or about March 12, 2010, Chief Stoffel informed Lindsey of the verbal

complaint and ordered Lindsey not to have any further contact with K.J. during the

                                            2
Department’s internal investigation.      Assistant Chief Daniel Whallon interviewed

Lindsey on March 17, 2010, in connection with the Department’s internal investigation

and summarized his findings in a report dated March 31, 2010.

       On about April 1, 2010, Lindsey’s take-home police vehicle was observed parked

directly in front of K.J.’s residence, and Lindsey was again advised to have no further

contact with K.J. during the internal investigation.

       On April 11, 2010, Lindsey was observed operating his motorcycle while not

wearing a helmet. On April 22, 2010, Lindsey was observed operating his motorcycle,

not wearing a helmet, and carrying K.J., who was also not wearing a helmet, as a

passenger. On June 17, 2010, Lindsey was again observed operating his motorcycle

while not wearing a helmet and carrying his daughter as a passenger. On the dates of

April 11, April 22, and June 17, 2010, Lindsey possessed a valid motorcycle learner’s

permit but not a motorcycle license.

       An officer evaluation report dated May 4, 2010, prepared by Assistant Chief

Whallon included a comment that Lindsey “was given orders from [Chief Stoffel] to have

no contact with a female subject during an internal investigation. Officer disobeyed this

order.” Id. at 22. On a scale of 1 to 5, with 1 being poor and 5 being excellent, the report

indicated a “2” for “general attitude” and a “3” for “moral” and for “judgment.” Id. at 21.

Lindsey received a “5” for his knowledge of traffic laws and a “4” for each of the other

categories. Id.

       Also on May 4, 2010, Lindsey visited with K.J. at her residence and left his

personal vehicle unlocked and parked in front of her residence. Lindsey discovered that a

                                             3
set of keys which included a key to the Department and Lindsey’s patrol car and other

patrol cars had been stolen, and Lindsey contacted the Vermillion County Sheriff’s

Department and reported the theft of the keys. Later that day, Lindsey left a handwritten

note for Chief Stoffel stating: “POV. was broke into last night around 3 am. Only thing

taken were my CPD keys & my house keys. 83-3 took the report.” Id. at 29.

       On May 5, 2010, Chief Stoffel sent a memorandum to all officers indicating that

sometime on May 4, 2010, Lindsey had his keys to the police vehicles and the

Department stolen out of his personal vehicle, providing instructions regarding securing

and parking vehicles, and informing “every person with keys to this department and/or

vehicles to never leave them unsecured in your vehicle.” Id. at 27. On May 10, 2010,

Chief Stoffel requested a full investigation regarding the theft reported by Lindsey on

May 4, 2010.

       On May 13, 2010, Chief Stoffel hand delivered a memorandum letter to Lindsey

which advised him he “ha[d] been, and continue[d] to be, under department internal

affairs investigation for various disciplinary related violations” and that the investigations

“relate[d] to [Lindsey’s] conduct both on duty as an officer for [the Department] and off

duty as well.” Id. at 23. In the memorandum letter, Chief Stoffel stated that he was

preparing to file formal disciplinary charges with the Merit Board recommending that

Lindsey’s employment be terminated and provided Lindsey with “an opportunity to

voluntarily resign from the [Department] in lieu of facing the filing of the various

disciplinary charges.” Id. Chief Stoffel stated that “[a]t this time I am not required to

share with you what the anticipated charges will be, or the underlying facts, if you decide

                                              4
not to voluntarily resign,” that “[t]hese of course will be provided to you in great detail if

I am required to initiate the formal disciplinary charging process in the future,” and that

“[i]n addition, I am not required to tell you when the anticipated charges will be filed

with the Merit Board.” Id. Chief Stoffel further stated that Lindsey was not required to

resign, that he was entitled to seek out counsel and was “highly encouraged” to seek

counsel and to discuss the matter with family, colleagues, advisors, and friends before

making any final decision. Id. The memorandum letter also provided that “[e]ffective

immediately and until further notice by me, your job assignment will be working at the

[Department] Headquarters, specifically performing night radio dispatch duties and your

new shift time will be between the hours of 6:00 P.M. to 6:00 A.M.,” that “[f]or your new

duties you will not need to be in uniform or be in possession of your department issue[d]

weapons/equipment since your duties will not involve exercising police authority on the

street until further notice by me,” and that “[y]our present police rank, grade, salary or

benefits will not be affected in any way by this assignment.” Id. at 24.

       Chief Stoffel filed charges, dated May 12, 2011, against Lindsey with the Merit

Board which included seven counts for breach of discipline. Count I alleged that Lindsey

ended his work shift early without authorization on December 4, 2010, and failed to

notify his supervisor that he would not be at his assigned shift on December 5, 2010.

Count II alleged that on April 11, 2010, at approximately 6:45 p.m. Lindsey was

observed operating his motorcycle and not wearing a helmet; that on April 22, 2010,

Lindsey and K.J. were observed riding on Lindsey’s motorcycle and neither were

wearing a helmet; that on June 17, 2010, at 5:41 p.m. Lindsey was again riding his

                                              5
motorcycle without wearing a helmet and that he had a small female child on the rear of

the bike; and that Lindsey was not complying with Indiana traffic laws and a direct verbal

order given to him on October 19, 2009, by Chief Stoffel to obtain a motorcycle license

or permit and obey all traffic laws. Count III alleged that on or about April 14 and April

18, 2010, Lindsey observed a group of juveniles engaged in fighting in a park and took

no action to stop the fight or notify the parents of the persons involved in the fight.

Count IV alleged that on or about March 5, 2010, Lindsey and K.J., while staying in Key

West, Florida, began to argue, that the argument became physical in nature, that Lindsey

inflicted pain on K.J., eventually knocking her unconscious, and that Lindsey did not

provide K.J. first aid or take her to a medical facility. Count V alleged that, in connection

with an internal investigation related to the events described in Count IV, Lindsey was

ordered not to have further contact with K.J., that on April 1, 2010, Lindsey’s take-home

police vehicle was seen parked on the street in front of K.J.’s residence, that Lindsey had

been ordered twice not to have contact with K.J. during the internal investigation, and

that on April 22, 2010, Lindsey was observed operating his motorcycle with K.J. as a

passenger. Count VI alleged that Lindsey’s Department-issued keys had been stolen

from his unlocked personal vehicle, that Chief Stoffel requested a full investigation into

the theft of the keys, and that the Vermillion County Sheriff’s Office advised that

Lindsey had refused to complete a statement or cooperate any further with the

investigation. Count VII alleged that Lindsey was ordered to remove his personal items

from his squad car and return the vehicle the following day and that the following day

Lindsey returned the vehicle with most of his personal belongings still in the vehicle.

                                             6
      On July 13 and 14, 2011, the Merit Board held a hearing at which it heard

testimony and arguments related to the allegations against Lindsey. The parties presented

evidence and testimony which included testimony from Chief Stoffel, Assistant Chief

Whallon, Lindsey, the Clerk/Treasurer for the City, and a number of police officers, as

well as documentary evidence including selected timesheets for Lindsey, Lindsey’s BMV

records, a case report from the Vermillion County Sheriff’s Department, Lindsey’s

officer evaluation report, internal Department correspondence regarding Lindsey and his

conduct, and a number of witness statements.

      Lindsey testified, with respect to the incident where K.J. was knocked off of a bed

in a hotel room during their Florida trip, that he rolled off of K.J., believed she “could

pounce on [him],” and “proceeded to give her a playful kick” and “connected with her

and she went off the end of the bed and struck the floor.” Merit Board Transcript at 264-

265. Lindsey testified that K.J. “didn’t pop back up like [he] thought she would,” that he

“crawled down to the foot of the bed and looked over the edge to check on her,” that

“[s]he was laying there looking straight up at the ceiling, breathing,” that he said

“[w]hat’s the matter,” and “she didn’t respond.” Id. at 265-266. Lindsey further testified

that he “swung around and got off the bed and she was laying there breathing and she

was starting to get up” and he “was over there putting some clothes away and when she

got up she was upset, she was crying and she was extremely mad.” Id. at 266. Lindsey

testified that he did not think K.J. was injured. Lindsey further testified that K.J. was

crying and “started yelling at [him] about how she was going to get [him] fired” and that

he “asked her ‘[w]hy she was so mad,’ and that was the first that I heard anything about

                                            7
being knocked unconscious.” Id. at 269-270. When asked whether it was possible that

K.J. did not respond at first because she was unconscious, Lindsey testified “I don’t

know, I’m not a medical doctor. Like I said, she was breathing. She was looking up. I

just thought she was exhausted from our foreplay.” Id. at 270. Lindsey indicated that he

did not provide medical assistance or make any calls for medical services. Testimony

was presented that, after returning to Indiana, K.J. sought medical attention at a hospital

in Indiana in connection with the altercation with Lindsey.

       In addition, when asked “[w]as there a conversation with [Assistant Chief]

Whallon [on May 4, 2010] regarding perhaps you feel you were being harassed by the

department,” Lindsey answered “yes” and explained that “I didn’t agree with one of

[Assistant Chief Whallon’s] evaluation points,” that “[t]he remarks that he penned on the

paper about me having contact with [K.J.] . . . I felt that that was harassment,” and that “it

was an illegal order. That only a judge can issue a no contact order.” Id. at 372. Lindsey

further testified: “I further stated that I had inquired or was going to inquire with legal

counsel about a possible harassment against the department.” Id. at 372-373. When

asked about his actions in the days following, Lindsey testified that he “contacted the

EEOC with a telephone number” and “the Indiana Civil Liberties and gave them [his]

story.” Id. at 373. Further, the Clerk/Treasurer for the City indicated that Lindsey had

visited her office around April 2010 and asked “whether there existed any policies

regarding harassment in the City” and the Clerk/Treasurer printed off some information

and gave it to him. Id. at 437.



                                              8
       Following the hearing, the Merit Board took the matter under advisement. On

July 27, 2011, the Merit Board held an executive session to deliberate regarding the

disciplinary charges. On July 29, 2011, the Merit Board issued Findings of Fact and

Conclusions of Law, which stated that Count VII had been withdrawn at the request of

the Department, that the Merit Board reached a vote of 2-2 upon the charges under Count

I resulting in a decision in favor of Lindsey on that count, that the Department met its

burden of proof as to the charges under Counts II, IV, V, and VI, and that the Department

failed to meet its burden of proof as to the charges under Count III. Specifically, the

Merit Board determined, as to Count II, that Lindsey’s operation of his motorcycle on

April 11, April 22, and June 17, 2010, while not wearing a helmet and possessing only a

motorcycle learner’s permit was a violation of Ind. Code § 9-24-8-3(b)(1), that carrying a

passenger on his motorcycle on April 22 and June 17, 2010, while possessing only a

motorcycle learner’s permit was a violation of Ind. Code § 9-24-8-3(b)(3), that Lindsey’s

operation of his motorcycle on the three dates was a violation of Chief Stoffel’s order on

October 19, 2009, and that Lindsey’s conduct on the three dates constituted conduct

unbecoming an officer. As to Count IV, the Merit Board determined that Lindsey’s

“conduct in striking or pushing [K.J.] off the bed and onto the floor of their hotel room,

rendering her unconscious and/or incapacitated, and in further failing to provide or obtain

medical care for [K.J.] as a result of this incident constitutes conduct unbecoming an

officer.” Id. at 18. As to Count V, the Merit Board found that Lindsey’s continued

contact with K.J. following her verbal complaint to Chief Stoffel and the initiation of an

internal investigation, and in light of the direct verbal orders of Chief Stoffel and

                                            9
Assistant Chief Whallon not to have contact with K.J., constituted conduct unbecoming

an officer. As to Count VI, the Merit Board found that Lindsey’s failure to properly

secure the keys of the Department and its patrol vehicles by leaving them in his unlocked

personal vehicle constituted neglect of duty and neglect of orders and that Lindsey’s

failure to secure the keys and his further conduct in reporting the theft to a different

police agency and only informing Chief Stoffel of the theft by leaving a note constituted

conduct unbecoming an officer. Based upon its decision as to Counts II, IV, V, and VI,

the Merit Board determined that Lindsey’s employment with the Department was to be

terminated as of July 29, 2011.

       Lindsey filed a petition for judicial review of the Merit Board’s decision, and the

trial court held a hearing on March 9, 2012. On May 22, 2012, the trial court issued

Findings of Fact, Conclusions of Law and Order affirming the determination of the Merit

Board. The court specifically found that sufficient evidence was presented on Counts II,

IV, V, and VI to support the Merit Board’s determinations and that the Merit Board

“adhered to all proper legal procedures as required by Indiana Code § 36-8-3.5-17 and

did not act in a retaliatory manner in finding that Lindsey should be terminated.” March

22, 2012 Order of the Trial Court at 11. The court found that Lindsey failed to establish

that the Merit Board’s decision was arbitrary or capricious or contrary to law.

                          ISSUE & STANDARD OF REVIEW

       The issue is whether the trial court’s decision was arbitrary and capricious or

unsupported by substantial evidence. In reviewing the decision of an administrative

agency, we defer to the agency’s expertise and will not reverse simply because we may

                                            10
have reached a different result. Filter Specialists, Inc. v. Brooks, 906 N.E.2d 835, 844

(Ind. 2009). To that end, we may consider only whether the decision was based on

substantial evidence, was arbitrary and capricious, or was in violation of any

constitutional, statutory, or legal principle.   Id.   “Substantial evidence” means such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

Ind. Family and Soc. Servs. Admin. v. Pickett, 903 N.E.2d 171, 177 (Ind. Ct. App. 2009),

aff’d and clarified on reh’g. The challenging party has the burden of proving that an

administrative action was arbitrary and capricious. Fornelli v. City of Knox, 902 N.E.2d

889, 892 (Ind. Ct. App. 2009) (citation omitted), trans. denied.         An arbitrary and

capricious decision is one that is patently unreasonable, made without consideration of

the facts and in total disregard of the circumstances, and lacks any basis that might lead a

reasonable person to the same conclusion. Id. We may not substitute our judgment for

that of the administrative body. Davidson v. City of Elkhart, 696 N.E.2d 58, 61 (Ind. Ct.

App. 1998), trans. denied. On review, we do not reweigh the evidence. Id.

       “Moreover, the discipline of police officers is within the province of the

government’s executive, rather than judicial, branch.”          Fornelli, 902 N.E.2d at

893 (internal quotation marks and citations omitted).      “For this reason, we will not

substitute our judgment for that of the administrative body when no compelling

circumstances are present.” Id.

                                      DISCUSSION

       Lindsey contends that (A) the disciplinary charges filed against him were

motivated by retaliation; (B) the doctrine of laches barred the charges against him; and

                                            11
(C) the findings and conclusions concerning all counts were unsupported by substantial

evidence and were thus arbitrary and capricious.

A.     Retaliation

       Lindsey asserts that the fact that Chief Stoffel allegedly articulated a lawful reason

for the termination of Lindsey’s employment which appears to be independent does not

necessarily establish that Chief Stoffel lacked retaliatory intent when he filed disciplinary

charges against Lindsey, that Chief Stoffel’s reasons for recommending the termination

of Lindsey were all pretextual because they were clearly stale, and that the evidence

makes it apparent that Chief Stoffel retaliated against Lindsey because Lindsey

threatened to file a complaint with the EEOC and/or ICLU and because Lindsey had

advised Assistant Chief Whallon that he was going to discuss the harassment matter with

his attorney. Lindsey argues that, nine days after advising Assistant Chief Whallon of his

intention to file a harassment complaint, Lindsey received a memorandum from Chief

Stoffel requesting his resignation but not advising him as to the reasons for the request.

       The City maintains that the disciplinary charges filed against Lindsey were not

motivated by retaliation.    The City argues that, “[o]ther than the extremely vague

assertions” that Lindsey “verbally mentioned briefly one time” to Assistant Chief

Whallon that he felt he was being harassed and that he contacted the EEOC and ICLU,

the record does not show that Lindsey notified the City, Department, or Merit Board that

he was going to contact or had contacted either the EEOC or ICLU and that the transcript

of the Merit Board hearing is “devoid of any concrete evidence to support Lindsey’s

assertion that he was being harassed before the filing of the disciplinary charges against

                                             12
him . . . .” Appellee’s Brief at 3. The City argues that the record lacks any evidence that

Lindsey “did anything formally to assert his vague harassment claim.” Id. at 3-4. The

City further asserts that there is no evidence “which exhibits a long standing deep seated

‘bad blood’ with any of the City Officials involved” or that “the City was getting even

with Lindsey because he was ‘thinking about’ pursuing a harassment claim.” Id. at 5. In

his reply brief, Lindsey argues that the evidence makes clear that Chief Stoffel’s actions

were motivated by retaliation and that there was no reasonable explanation as to why

Chief Stoffel waited a year to file the disciplinary charges he claimed to be presently

preparing on May 13, 2010.

       At the hearing before the Merit Board, when asked “[w]as there a conversation

with [Assistant Chief] Whallon [on May 4, 2010] regarding perhaps you feel you were

being harassed by the department,” Lindsey answered “yes” and explained that “I didn’t

agree with one of [Assistant Chief Whallon’s] evaluation points. The remarks that he

penned on the paper about me having contact with [K.J.],” that “I felt that that was

harassment,” and that “it was an illegal order. That only a judge can issue a no contact

order.” Merit Board Transcript at 372. Lindsey further testified: “I further stated that I

had inquired or was going to inquire with legal counsel about a possible harassment

against the department.” Id. at 372-373. When asked about his actions in the days

following the conversation on May 4, 2010, Lindsey testified that he “contacted the

EEOC with a telephone number” and “the Indiana Civil Liberties and gave them [his]

story.” Id. at 373. Also, the Clerk/Treasurer for the City indicated that Lindsey had

visited her office in approximately April 2010 and asked for any policies regarding

                                            13
harassment in the City. The trial court found that the Merit Board “adhered to all proper

legal procedures as required by Indiana Code § 36-8-3.5-17[1] and did not act in a

retaliatory manner in finding that Lindsey should be terminated.” March 22, 2012 Order

of the Trial Court at 11.

       We observe that Lindsey does not point to the record to show that he informed the

Department that he intended to raise any harassment or other allegations prior to the dates

Chief Stoffel informed him in October 2009 to follow the traffic laws or of the March

2010 verbal complaint by K.J. or prior to his May 4, 2010 meeting with Assistant Chief

Whallon.

       With respect to Lindsey’s argument that the timing of Chief Stoffel’s May 13,

2010 letter relative to Lindsey’s May 4, 2010 meeting with Assistant Chief Whallon

shows retaliatory intent, we note that the record shows that Chief Stoffel informed

Lindsey in October 2009 to follow the traffic laws, that Chief Stoffel informed Lindsey

on or about March 12, 2010, of the verbal complaint against him by K.J. and ordered

Lindsey not to have any further contact with K.J. during the internal investigation, that

Lindsey was interviewed sometime in March 2010 as part of the internal investigation,

and that Lindsey visited K.J.’s residence on April 1, 2010 and carried K.J. as a passenger

on April 22, 2010. Each of these incidents occurred prior to Lindsey’s May 4, 2010

meeting with Assistant Chief Whallon. Further, the March 31, 2010 report detailed the

findings of the investigation regarding Lindsey’s trip to Florida and altercations with

K.J., and the May 4, 2010 evaluation stated that Lindsey had disobeyed the order to have


       1
           Indiana Code § 36-8-3.5-17 governs disciplinary actions under police and fire merit systems.
                                                    14
no contact with K.J. Lindsey reported the stolen keys on May 4, 2010, and Chief Stoffel

sent a memorandum to all officers regarding the matter on May 10, 2010. We observe

that this timeline suggests that the timing of Chief Stoffel’s May 13, 2010 letter was in

response to the events of the preceding months.

       Further, as to Lindsey’s assertion that the fact that the May 13, 2010 letter did not

advise him of the details of the internal investigation shows retaliatory intent, we note

that Lindsey was specifically informed to follow the traffic laws, that K.J. had filed a

complaint against him, and not to have contact with K.J. Also, Lindsey was interviewed

by Assistant Chief Whallon regarding K.J.’s complaint, and the May 13, 2010 letter

explained that Chief Stoffel was not required to share the anticipated charges until formal

disciplinary charges were initiated.

       Based upon the record and the evidence before the Merit Board, we cannot say

that Lindsey has demonstrated or that the evidence shows that Chief Stoffel’s May 13,

2010 letter was prepared, that the disciplinary charges against Lindsey were filed, or that

Lindsey’s employment was terminated in retaliation for Lindsey’s statements to Assistant

Chief Whallon that he felt he was being harassed or that he had or was going to make

inquiry with legal counsel.

B.     Laches

       Lindsey next argues that the doctrine of laches operates to bar the disciplinary

charges against him, that not one of the disciplinary charges involved conduct that

occurred in calendar year 2011 although the charging document was filed on May 12,

2011, that Chief Stoffel advised Lindsey on May 13, 2010 that he was “presently

                                            15
preparing” to file disciplinary charges, and that the unexplained length of time between

the alleged misconduct and the filing of the charges caused both prejudice and injury to

Lindsey. Appellant’s Brief at 8.

       The City argues that Lindsey does not cite to authority for his argument that the

City’s actions must be invalidated based upon the doctrine of laches. The City asserts

that Chief Stoffel testified that the investigation of Lindsey uncovered new issues to

investigate, that the transcript is devoid of any evidence that Lindsey suffered a reduction

in salary or was suspended during the investigation phase or after the disciplinary charges

were filed, and that Lindsey cannot show that his defense was prejudiced by any delay

and “the memory of the witnesses is always a challenge for both sides and the trier of fact

will always judge the credibility of each witness.” Appellee’s Brief at 13.

       Laches is an equitable defense that may be raised to stop a person from asserting a

claim that he would normally be entitled to assert. Ind. Real Estate Comm’n v. Ackman,

766 N.E.2d 1269, 1273 (Ind. Ct. App. 2002). The rationale behind the doctrine of laches

is that a person who, for an unreasonable length of time, has neglected to assert a claim

against another waives the right to assert his claim when this delay prejudices the person

against whom he would assert it. Id. Laches requires: (1) inexcusable delay in asserting

a known right; (2) an implied waiver arising from knowing acquiescence in existing

conditions; and (3) a change in circumstances causing prejudice to the adverse party.

SMDfund, Inc. v. Fort Wayne-Allen Cnty. Airport Auth., 831 N.E.2d 725, 729 (Ind.

2005), cert. denied, 546 U.S. 1093, 126 S. Ct. 1051 (2006). The question of laches is one

to be determined by the court in the exercise of its sound discretion. Ackman, 766

                                            16
N.E.2d at 1273 (citation omitted). For a decision to be reversed on appeal, an abuse of

discretion must be clearly demonstrated. Id.

       The record reveals that Chief Stoffel’s May 13, 2010 memorandum letter to

Lindsey expressly informed Lindsey that he was under investigation for various

disciplinary violations related to his on-duty and off-duty conduct and that Chief Stoffel

was preparing to file formal disciplinary charges with the Merit Board recommending

that Lindsey’s employment be terminated. The letter encouraged Lindsey to seek counsel

and discuss the matter with advisors and others. In addition, the memorandum letter

expressly informed Lindsey that the anticipated charges and underlying facts would be

provided to him in great detail if formal disciplinary charges were initiated. The letter

also provided that Lindsey’s job assignment was being altered and that his rank, grade,

salary and benefits would not be affected. Moreover, the memorandum letter expressly

informed Lindsey that “[i]n addition, I am not required to tell you when the anticipated

charges will be filed with the Merit Board.” Appellant’s Appendix at 23. The language

of the May 13, 2010 letter and Lindsey’s job reassignment in connection with the internal

investigation do not show that the Department or Chief Stoffel in some way acquiesced

or impliedly waived filing the disciplinary charges.

       Moreover, Lindsey was specifically informed to follow the traffic laws in October

2009 and that K.J. had filed a complaint against him and not to have contact with K.J. in

March 2010, and he was interviewed by Assistant Chief Whallon regarding K.J.’s

complaint in March 2010 and was aware that the Department’s keys were stolen from his

unsecured vehicle in May 2010.       The subsequent charges against Lindsey provided

                                            17
sufficient detail of the alleged breach of discipline allegations against him, and Lindsey

was given an adequate opportunity to and did present evidence and testimony regarding

the allegations at the Merit Board hearing.

       Based upon the record, we cannot say that Lindsey has demonstrated that the

length of time between the date he received a letter regarding the internal investigation in

May 2010 and the date the charges were filed in May 2011 or the dates of the hearing

before the Merit Board in July 2011 prevented Lindsey from presenting an adequate

defense at the Merit Board hearing, that he was prejudiced by any delay under the

circumstances and in light of the charges, or that equity dictates that the Department’s

charges be dismissed based upon the doctrine of laches.

C.     Findings and Conclusions

       Lindsey contends that the trial court’s findings and conclusions concerning all

counts were unsupported by substantial evidence and were thus arbitrary and capricious.

He argues in part with respect to Count II that, even assuming arguendo that he did

operate his motorcycle without a helmet or carried passengers on his motorcycle while he

possessed a learner’s permit, the violations do not justify his termination as they do not

bear any relationship to his fitness as an officer or upon his capacity to discharge his

duties. Lindsey further claims that the facts and conclusions concerning Count IV were

based upon a biased and corrupt internal investigation which tainted the Merit Board’s

entire determination. He asserts that Chief Stoffel informed Assistant Chief Whallon that

“Lindsey ‘battered’ [K.J.] in Florida before providing Lindsey an opportunity to explain

his side of the story!” Appellant’s Brief at 13. Lindsey also argues that he never stated

                                              18
that K.J. appeared unconscious or that her eyes rolled back in her head and that, in fact,

he did not think K.J. was injured at the time the accident occurred. Lindsey points to his

statements in a report summarizing his internal investigation interview which provided

that he had stated that the incident “was just horseplay” and was “an accident” and that he

had offered to call 911 or the local police “at least four times.” Id. at 14 (citations

omitted). With respect to Counts IV and V, Lindsey argues that the right to privacy

prohibits the Department from disciplining Lindsey on the basis of off-duty personal or

sexual relationships and that, even assuming arguendo that Chief Stoffel could issue the

no contact order, no evidence was presented regarding how Lindsey’s alleged violation

negatively impacted his efficiency as an officer.

       The City maintains that evidence was presented at the hearing before the Merit

Board supporting the allegations under each of the counts against Lindsey. The City

argues that Lindsey’s private conduct was reasonably related to his ability to be a police

officer. In his reply brief, Lindsey points out that he was not issued citations for the

alleged traffic violations, that no written complaint was filed regarding K.J.’s complaint,

that K.J. did not testify at the Merit Board hearing and thus there was no direct evidence

concerning the contents of her alleged complaint, that Lindsey notified Chief Stoffel of

the theft of the keys on the day they were stolen, and that the findings of the Merit Board

and court were arbitrary and capricious and unsupported by substantial evidence.

       The record reveals that Lindsey was observed on April 11, April 22, and June 17,

2010, riding his motorcycle without wearing a helmet. On these dates, Lindsey possessed

a valid motorcycle learner’s permit but not a motorcycle license. Ind. Code § 9-24-8-

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3(b)(1) requires an operator of a motorcycle holding a motorcycle learner’s permit to

wear a helmet. Further, on April 22 and June 17, 2010, Lindsey was observed carrying a

passenger on his motorcycle. Ind. Code § 9-24-8-3(b)(3) prohibits an operator of a

motorcycle with a motorcycle learner’s permit to carry other passengers. Moreover, on

October 19, 2009, Chief Stoffel had expressly advised Lindsey to follow the guidelines of

the motorcycle learner’s permit.

        The record further reveals that K.J. visited Chief Stoffel in person between March

9 and March 12, 2010, and made a verbal complaint regarding the conduct of Lindsey

during a trip she had taken with Lindsey to Florida. Assistant Chief Whallon interviewed

Lindsey on March 17, 2010, as a part of an internal investigation and prepared a report

dated March 31, 2010.             Lindsey’s testimony before the Merit Board included a

description of the incident where K.J. was knocked off of a bed in a hotel room and onto

the floor. Lindsey specifically testified that he gave Lindsey “a playful kick,” that K.J.

“went off the end of the bed and struck the floor,” that K.J. “didn’t pop back up like [he]

thought she would,” that K.J. did not respond when he asked what was the matter, that

when K.J. “got up” she was “upset . . . crying and she was extremely mad,” that he asked

why she was so mad and “that was the first that I heard anything about being knocked

unconscious,” and that he did not provide medical assistance or make any calls for

medical services. Merit Board Transcript at 264-270.2 Testimony was presented that,


        2
          The March 31, 2010 report prepared by Assistant Chief Whallon in connection with K.J.’s
complaint indicated in part that, at one point when Lindsey and K.J. were in a hotel room during their trip
to Florida, K.J. “went to the foot of the bed,” that Lindsey “was on his stomach across the bed” and
“thought she was going to jump on him (playfully), so he raised his foot, and ‘hit her with his foot.’”
Appellant’s Appendix at 34. The report provided that “[Lindsey] said, ‘I called out to her . . . [K.J.]? But
no answer’” and that Lindsey crawled to the edge of the bed and noticed her on the floor. Id. Lindsey
                                                    20
after returning to Indiana, K.J. sought medical attention at a hospital in Indiana in

connection with what occurred in Florida.

        Despite Chief Stoffel’s order that Lindsey not have any contact with K.J. during

the internal investigation, Lindsey’s take-home police vehicle was observed parked

directly in front of K.J.’s residence on about April 1, 2010, Lindsey was observed riding

his motorcycle carrying K.J. as a passenger on June 17, 2010, and Lindsey parked his

vehicle in front of K.J.’s residence for approximately twelve hours and visited with her

on May 4, 2010.

        The record also shows that, after he parked in front of K.J.’s residence on May 4,

2010, for approximately twelve hours, Lindsey discovered that keys to the Department

said that K.J. “was on her back, her eyes were opened, and she was breathing hard.” Id. Lindsey reported
that “he got out off [sic] bed and started to fold laundry and put it away” and that “a few seconds later
[K.J.] rolled over and started crying.” Id. The report indicated that “He told me she was mad, she told
him she had been knocked unconscious.” Id. (emphasis added). The report further indicated: “He said, ‘I
did not know you were unconscious’. He told her that they were just ‘horsing around’. She did not
believe him and they started arguing.” Id. (emphasis added). The report further indicated that Lindsey
“went on to tell me that it was just horseplay, and that it was an accident,” that he “offered her at least
four times to call 9-1-1 or the local police department,” and that she “told him no.” Id.

        In a footnote in his appellant’s brief, Lindsey states that, at the hearing before the Merit Board,
the City offered the March 31, 2010 report as an exhibit at the hearing, that Lindsey objected to its
admissibility as hearsay because K.J. did not appear at the hearing, and that the objection was sustained.
Appellant’s Brief at 14-15 n.1. We note that the transcript of the hearing shows that the Merit Board, by
counsel, “sustain[ed] the objection to the extent that these documents pertain to statements having been
made by [K.J.]” and would “allow admission of [] Lindsey’s statement.” Merit Board Transcript at 68.

         We observe that many of the statements in the March 31, 2010 report are cumulative of or similar
to statements made by Lindsey during his testimony before the Merit Board, namely, that K.J. did not
initially respond to Lindsey after she fell to the floor, that after a few seconds K.J. was crying and
extremely upset, that K.J. made a comment about being knocked unconscious, and that Lindsey did not
provide or seek medical assistance. We further observe that it is not entirely clear whether the statements
in the report that “she told him she had been knocked unconscious” and “[s]he did not believe him” are
statements attributable to K.J. or to Lindsey. We also observe that Lindsey cites to the report in the
argument section of his appellant’s brief and states that he attached the March 31, 2010 report to his brief
in support of his petition for judicial review. Lindsey was not denied a full and fair hearing before the
Merit Board, and, as we conclude above, the Merit Board’s decision with respect to Count IV is supported
by substantial evidence, even without consideration of any of the statements in the March 31, 2010 report
which may be attributable to K.J.
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and the Department’s patrol vehicles had been stolen from his unlocked personal vehicle.

He made a report regarding the theft to the Vermillion County Sheriff’s Department and

left a handwritten note for Chief Stoffel stating that the keys were taken from his vehicle.

       The Indiana Supreme Court has observed that “[f]rom the very nature of a

policeman’s duties, his conduct in the community on and off duty must be above

reproach.” Fraternal Order of Police, Local Lodge 73 v. City of Evansville, 559 N.E.2d

607, 609 (Ind. 1990) (citing Pope v. Marion Cnty. Sheriff’s Merit Bd., 157 Ind. App. 636,

646, 301 N.E.2d 386, 391 (1973)). Further, “[n]o cause is a legal cause for removal of a

police officer unless it bears some relation to the officer’s fitness for holding office or his

incapacity to discharge his duties.” Town of Highland v. Powell, 168 Ind. App. 123, 128,

341 N.E.2d 804, 808 n.7 (1976); see also City of North Vernon v. Brading, 479 N.E.2d

619, 624 (Ind. Ct. App. 1985) (noting that a cause for dismissal must bear “a legal

relation to the policeman’s fitness for holding the position, or his incapacity to discharge

its duties”), reh’g denied, trans. denied.

       Here, the trial court specifically found that the Merit Board’s decision with respect

to each count bears a reasonable relation to Lindsey’s fitness or capacity to hold his

position. With respect to Count II, the court found that “[t]he very nature of Lindsey’s

employment as a police officer places him consistently in the eyes of the public and he

must exercise sound judgment for the good of the department” and that “Lindsey did not

exercise sound judgment when he chose to disobey Indiana traffic laws while expecting

others to follow them.” March 22, 2012 Order of the Trial Court at 8-9. With respect to

Count IV, the court found that “Lindsey’s conduct constituted conduct unbecoming an

                                              22
officer when [he] struck or pushed [K.J.] off the bed, rendering her unconscious and/or

incapacitated, and in further failing to provide or obtain medical care,” that “[a]

reasonable relationship exists between Lindsey’s conduct and his fitness to hold his office

as Lindsey’s conduct must be above reproach whether he is on duty or off duty,” that

“Lindsey was not exercising sound judgment when he failed to obtain medical assistance

for [K.J.],” and that “Lindsey’s conduct toward [K.J.] has a direct relation to his

reputation as a police officer within the community.” Id. at 9.

       With respect to Count V, the court found that Lindsey’s “failure to follow the

orders of Chief Stoffel and Assistant Chief Whallon, which was in direct disobedience of

an order of a superior, has a direct effect on his fitness and capacity to hold his position

as a police officer” and there is a “reasonable relation between an officer’s fitness to hold

his office and his ability to follow the orders of his commanding officers.” Id. With

respect to Count VI, the court found that Lindsey was “not exercising the sound judgment

required of a police officer” at the time he left his keys in an unlocked vehicle and that

there is “a reasonable relation between Lindsey’s ability to maintain the security of his

police department and other patrol vehicles by properly securing his [Department] issued

keys and his capacity to discharge his duties.” Id. at 10.

       We cannot say that the court’s findings with respect to whether a reasonable

relationship exists between Lindsey’s conduct and his fitness to hold office or his

capacity to discharge his duties are patently unreasonable, made without consideration of

the facts and in total disregard of the circumstances, or lack any basis that might lead a

reasonable person to the same conclusion.

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       In addition, as to Lindsey’s assertion that the Department may not discipline him

on the basis of off-duty personal or sexual relationships, we note that, while a police

officer’s private life or relationship may be beyond the scope of a reasonable

investigation under certain circumstances such as where there is no or a tenuous

relationship between an officer’s relationship and his duties, we cannot say that all

aspects of an officer’s private life or conduct when the officer is off-duty may never be

considered in determining whether the officer engages in conduct unbecoming an officer,

provided that there is a reasonable relation to the officer’s fitness or capacity to hold his

position. As noted above, the court’s findings that such a reasonable relation exists in

this case are not arbitrary and capricious.

       With respect to Lindsey’s argument that the interview with Assistant Chief

Whallon was “tainted,” we observe that when asked to explain when he first became

involved in the internal investigation, Assistant Chief Whallon testified “I was advised by

Chief Stoffel that a battery had taken place in Florida,” that “[h]e told me that the person

in question would have been [] Lindsey,” and that “[h]e advised me that his girlfriend at

the time had been battered [and] came in and filed an official complaint . . . .” Merit

Board Transcript at 211-212. Assistant Chief Whallon then testified as to an overview of

the steps he took in performing the internal investigation and identified the persons he

interviewed. Assistant Chief Whallon testified that he spoke with K.J. about the incident,

that he “left her the information to make sure that she took the right steps to make sure if

a battery in fact did take place that since it happened in Florida she followed the correct

procedures,” that he “advised [K.J.] that [he] would be doing . . . an internal investigation

                                              24
on whether or not the incident took place,” and that he took a recorded statement from

K.J. Id. at 213 (emphases added). Assistant Chief Whallon further testified that he took

a recorded statement from Lindsey and prepared findings. Based upon our review of the

testimony before the Merit Board, we cannot say that Chief Stoffel’s statement that a

battery had taken place in Florida tainted the entire internal investigation or that Assistant

Chief Whallon was biased in performing the investigation.

       We do not reweigh the evidence and may not substitute our judgment for that of

the administrative body. See Davidson, 696 N.E.2d at 61. Based upon our review of the

record before the Merit Board and the trial court, we conclude that the decision of the

Merit Board was based on relevant evidence as reasonable persons might accept as

adequate to support the conclusion and is not patently unreasonable or made without

consideration of the facts and in total disregard of the circumstances.

       We cannot say that Lindsey satisfied his burden of demonstrating that the trial

court’s decision affirming the Merit Board’s determination was arbitrary and capricious

or unsupported by substantial evidence.

       Accordingly, we affirm the trial court’s ruling.

       Affirmed.

BAILEY, J., and VAIDIK, J., concur.




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