                                                                                 FILED
                                                                            May 28 2019, 5:34 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Rinzer Williams, III                                       Rodney Pol, Jr.
      Gary, Indiana                                              Assistant City Attorney
                                                                 Gary, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Gary Police Civil Service                                  May 28, 2019
      Commission,                                                Court of Appeals Case No.
      Appellant-Respondent,                                      18A-MI-540
                                                                 Appeal from the Lake Circuit
              v.                                                 Court
                                                                 The Honorable Marissa
      City of Gary,                                              McDermott, Judge
      Appellee-Petitioner.                                       The Honorable Alice A. Kuzemka,
                                                                 Temporary Judge
                                                                 Trial Court Cause No.
                                                                 45C01-1707-MI-221



      Shepard, Senior Judge.


[1]   Police officers were following the trail of a suspect in the aftermath of a double

      homicide, and a K-9 unit led them to the home of a reserve police officer. He

      refused to open his door and later failed to cooperate with an internal affairs

      investigation. Was the police force justified in terminating his reserve status?

      The Gary Police Civil Service Commission said no and ordered the City of

      Court of Appeals of Indiana | Opinion 18A-MI-540 | May 28, 2019                                Page 1 of 12
      Gary to reinstate Reserve Officer Lamarquist Pritchett. The trial court reversed

      the Commission. We affirm the trial court’s judgment.


                                                     Issues
[2]   The Commission raises two issues:


              I.       Whether the trial court committed reversible error in
                       declining to defer to the Commission’s findings; and

              II.      Whether the trial court erred in reversing the
                       Commission’s decision that Pritchett should be reinstated.

                                Facts and Procedural History
[3]   Pritchett was a reserve police officer with the Gary Police Department (GPD)

      and lived in Gary. He had been a reserve officer for six years. On the night of

      October 21, 2016, a double homicide occurred. Several GPD officers used a K-

      9 unit to follow a scent trail from the scene. As the officers walked with the K-

      9, they saw a man, later identified as Pritchett, wearing a police uniform while

      standing in the doorway of a house. As the officers approached, Pritchett

      retreated inside the house and shut the door.


[4]   The K-9 followed the scent to the house and alerted at the front door. The

      officers knocked on the door for five minutes, but no one answered. They next

      went to a neighboring house, where the K-9 also alerted. The resident of that

      house allowed the officers to enter and search, but they did not find any

      suspects.




      Court of Appeals of Indiana | Opinion 18A-MI-540 | May 28, 2019           Page 2 of 12
[5]   The officers returned to Pritchett’s house, where they received orders to wait for

      a homicide detective. As they waited, they saw lights being turned on and off

      inside the residence. The detectives arrived and knocked on the door, but

      Pritchett did not respond.


[6]   One of the detectives contacted Pritchett by telephone the next day. Pritchett

      admitted he had been at home the previous evening and had not answered the

      door for the officers. When asked why he had failed to respond, Pritchett

      explained he was behind on child support and thought that the officers were

      there to serve a child support warrant on him. He also said he had been arguing

      with his girlfriend, and he “wasn’t in the right state of mind to come to the

      door.” Appellee’s App. Vol. II, p. 19.


[7]   Sergeant Justin Illyes of the GPD’s internal affairs division was assigned to

      investigate Pritchett’s failure to cooperate with the officers. The sergeant and

      Pritchett spoke by telephone and scheduled an in-person meeting for the

      morning of November 7, 2016. During a telephone call before the meeting,

      Pritchett indicated that his attorney had told him not to speak with anyone

      about the matter. Sergeant Illyes advised Pritchett that Pritchett was required

      by GPD rules and regulations to speak with him, and failure to comply could

      result in disciplinary action. Pritchett indicated he would be present.


[8]   Pritchett did not appear for the November 7 meeting at the scheduled time.

      Later, Pritchett and his attorney called Sergeant Illyes to reschedule the meeting

      for a time when his attorney could be present. Sergeant Illyes indicated that


      Court of Appeals of Indiana | Opinion 18A-MI-540 | May 28, 2019           Page 3 of 12
       attorneys “are not involved” in internal affairs investigations. Id. at 23.

       Pritchett indicated he would call him back.


[9]    During another phone call on November 7, Pritchett agreed he would meet

       with Sergeant Illyes at one o’clock that day. Pritchett appeared at the GPD

       with his father, but Sergeant Illyes was on a conference call. The sergeant

       stepped outside to ask Pritchett’s father to wait for him, but Pritchett and his

       father left after a half-hour. Pritchett later called Sergeant Illyes to say that he

       had left to go pick up his kids from school. He had appeared at GPD so he

       “wouldn’t be insubordinate” for failing to appear. Id. at 25. Sergeant Illyes told

       Pritchett to appear on Wednesday, November 9, at ten o’clock and further that

       failure to appear would constitute insubordination.


[10]   On November 9, 2016, Pritchett arrived at the GPD internal affairs office,

       signed in, and promptly left. Due to Pritchett’s failure to appear for interviews,

       neither Sergeant Illyes nor any other internal affairs officers were able to speak

       with Pritchett about his acts on the night of the homicides.


[11]   On November 14, 2016, the GPD sent Pritchett a letter entitled “Suspension of

       Police Powers.” Appellant’s App. Vol. 2, p. 81. In the letter, Chief Larry

       McKinley notified Pritchett, “all authority extended to you from the Gary

       Police Department is suspended. You are hereby commanded to cease

       identifying yourself as a Reserve Officer with the Gary Police Department.” Id.

       The letter further stated, “This suspension will be in effect pending the outcome

       of your investigation.” Id.


       Court of Appeals of Indiana | Opinion 18A-MI-540 | May 28, 2019              Page 4 of 12
[12]   On December 20, 2016, the City filed a verified complaint with the

       Commission, asking the Commission to terminate Pritchett’s appointment as a

       reserve officer. During a January 5, 2017 meeting, the Commission determined

       that it would decide the case rather than assign it to a hearing officer.


[13]   The Commission held a hearing on March 9, 2017, during which the

       Commission explained that it had recently amended the rules governing reserve

       police officers and that some of the rules cited in the City’s complaint were now

       inapplicable to reserve officers. The City requested leave to amend its

       complaint, and the Commission granted the request.


[14]   During the same meeting, the Commission held an executive session. After the

       session, the Commission unanimously determined, “Pritchett had indeed been

       prejudiced by the fact that it has been over ninety (90) days in which his powers

       have been suspended and it is the decision of the Commission to reinstate

       reserve officer Pritchett’s reserve officer power [sic] immediately, pending the

       outcome of the hearing.” Id. at 137.


[15]   On March 20, 2017, the City filed an amended complaint with the

       Commission. The City alleged that Pritchett had violated Commission rules,

       neglected or disobeyed orders, engaged in immoral conduct, engaged in

       conduct injurious to the public peace or welfare, and engaged in conduct

       unbecoming a police officer. The City reaffirmed its request that the

       Commission terminate Pritchett’s appointment as a reserve officer.




       Court of Appeals of Indiana | Opinion 18A-MI-540 | May 28, 2019             Page 5 of 12
[16]   The Commission held evidentiary hearings on April 6, May 4, and May 24,

       2017. The City presented evidence describing the events set forth above.

       Pritchett did not present any evidence.


[17]   On June 1, 2017, the Commission held a hearing to announce its decision. The

       Commission’s attorney recommended that it determine the City “has failed to

       submit a prima facie case which would substantiate that Officer Pritchett

       violated the rules as set out in the code of conduct for Reserve Officers” and

       allow Pritchett to continue serving as a reinstated officer. Id. at 147. The

       Commission unanimously accepted the recommendation. The City filed a

       Notice of Appeal, which the Commission rejected.


[18]   On July 20, 2017, the City filed a verified complaint for judicial review. The

       court held oral argument, and the parties submitted proposed findings of fact

       and conclusions thereon. The court reversed the Commission’s decision and

       remanded for further proceedings.


[19]   The court determined the Commission had erred by failing to issue findings and

       conclusions. In the absence of findings and conclusions, the court declined to

       afford any deference to the Commission’s decision. In addition, the court

       stated, “it appears that even if proper findings had been entered, a review of the

       facts in [the] record would not support the Commission’s determination.” Id. at

       187. The court further concluded the Commission’s decision was “arbitrary,

       capricious, and unsupported by substantial evidence,” and remanded the matter




       Court of Appeals of Indiana | Opinion 18A-MI-540 | May 28, 2019          Page 6 of 12
       to the Commission to issue findings and conclusions “not inconsistent” with

       the court’s decision. Id. This appeal followed.


                                     Discussion and Decision
                                        A. Standard of Review
[20]   In general, the discipline of police officers is within the province of the

       government’s executive, rather than judicial, branch. Sullivan v. City of

       Evansville, 728 N.E.2d 182 (Ind. Ct. App. 2000). A reviewing court may not

       substitute its judgment for that of the administrative body. City of Indianapolis v.

       Woods, 703 N.E.2d 1087 (Ind. Ct. App. 1998), trans. denied.


[21]   As a result, when reviewing a police officer disciplinary action, a court is

       limited to determining whether the board of police commissioners possessed

       jurisdiction over the subject matter and whether the board’s decision was made

       pursuant to proper procedures, was based upon substantial evidence, was

       arbitrary or capricious, and was in violation of any constitutional, statutory, or

       legal principle. Jandura v. Town of Schererville, 937 N.E.2d 814 (Ind. Ct. App.

       2010), trans. denied; see also Gary Ordinance section 2-1084 (December 21, 1982)

       (setting forth standards of review for court appeals of Commission decisions).

       An arbitrary and capricious decision is one 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. Davidson v. City of Elkhart, 696 N.E.2d 58 (Ind. Ct.




       Court of Appeals of Indiana | Opinion 18A-MI-540 | May 28, 2019               Page 7 of 12
       App. 1998), trans. denied. A party challenging an administrative decision bears

       the burden of proving it arbitrary and capricious. Id.


                         B. Findings, Conclusions, and Deference
[22]   The Commission argues the trial court erred in: (1) determining the

       Commission was required to issue findings of fact and conclusions, and (2)

       declining to defer to the Commission’s authority in the absence of same.


[23]   Regardless of whether the Commission was required to issue findings and

       conclusions under the circumstances of this case, it is well established that

       courts do not weigh conflicting evidence and defer to boards of police

       commissioners on questions of witness credibility. Jandura, 937 N.E.2d at 818-

       19. Further, we are not bound by an administrative agency’s conclusions of

       law, but “‘[a]n interpretation of a statute by an administrative agency charged

       with the duty of enforcing the statute is entitled to great weight, unless this

       interpretation would be inconsistent with the statute itself.’” Chrysler Group,

       LLC v. Rev. Bd. of Ind. Dept. of Workforce Dev., 960 N.E.2d 118, 123 (Ind. 2012)

       (quoting LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000)).


[24]   Nevertheless, in this case the Commission did not identify any credibility

       determinations, nor did it explain how it interpreted the governing ordinances

       and codes of conduct. Instead, the Commission simply adopted its attorney’s

       recommendation that the City had failed to establish a prima facie case of

       misconduct. Cf. Jandura, 937 N.E.2d at 817 (disciplinary board addressed

       claims of police misconduct point-by-point and explicitly imposed a lesser

       Court of Appeals of Indiana | Opinion 18A-MI-540 | May 28, 2019            Page 8 of 12
       sanction than was requested by chief of police). The trial court was required to

       avoid reweighing the facts, but there is no indication that the court failed to

       comply with that rule. As we discuss in more detail below, Pritchett’s repeated

       and blatant noncompliance with GPD rules governing reserve officers was

       clearly established by uncontradicted evidence. The trial court did not err on

       the question of deference to the administrative agency.


                                          C. Prima Facie Case
[25]   The Commission claims the trial court erred in concluding that its decision was

       arbitrary and capricious, as well as unsupported by the evidence. The City’s

       Rules and Regulations Governing Gary Police Reserve Officers provide that the

       Commission “has jurisdiction over the selection for appointment of, and

       disciplining and/or removal of, such Reserve Officer [sic] for the City of Gary.”

       Appellant’s App. Vol. 2, p. 50. The chief of the GPD may suspend a reserve

       officer’s police powers “if the offense is deemed to be egregious, pending

       Commission review at the next regular scheduled meeting.” Id. at 57. A

       reserve officer may not be dismissed unless the Commission finds proof of

       misconduct “by a preponderance of the evidence.” Id. at 55. Allegations of

       misconduct may include, in relevant part:


               a.       Neglect of Duty

               b.       Violation of Commission Rules

               c.       Neglect or Disobedience of Orders

               d.       Continuing Incapacity


       Court of Appeals of Indiana | Opinion 18A-MI-540 | May 28, 2019           Page 9 of 12
               e.       Absence without Leave

               f.       Immoral Conduct

               g.       Conduct Injurious to the Public Peace or Welfare

               h.       Conduct Unbecoming a Police Officer

       Id. at 56.


[26]   Like the trial court, we are obligated to view the evidence in the light most

       favorable to the Commission’s decision, but based upon the evidence presented

       it is difficult to understand how the Commission could have concluded that the

       City had failed to present a prima facie case that Pritchett had violated the

       reserve officers’ code of conduct. Pritchett admitted to a detective that he had

       failed to answer his door on the night of October 21, 2016, even though he

       knew other officers were outside. He offered unconvincing excuses, such as

       that he feared the officers had arrived (in the middle of the night, with a K-9

       unit) to serve a warrant for unpaid child support. Pritchett’s refusal to

       cooperate delayed two officers and a homicide detective from pursuing other

       avenues of investigation for a double homicide case.


[27]   Further, after the GPD’s internal affairs division opened an investigation,

       Pritchett continued to fail to cooperate. Sergeant Illyes repeatedly ordered

       Pritchett to appear for an interview, but Pritchett took steps to avoid

       questioning. He first failed to appear at an agreed-upon time. Next, he

       appeared but left the internal affairs division’s offices after waiting for thirty

       minutes. Finally, on a third occasion, he arrived, signed in, and promptly left


       Court of Appeals of Indiana | Opinion 18A-MI-540 | May 28, 2019             Page 10 of 12
       without talking with Sergeant Illyes. Pritchett admitted to the sergeant that his

       primary goal was to avoid appearing to “be insubordinate” for failing to attend

       questioning. Appellee’s App. Vol. II, p. 25. At a minimum, this undisputed

       evidence, much of which resulted from Pritchett’s own statements to his fellow

       officers, demonstrates neglect or disobedience of orders, conduct injurious to

       the public peace or welfare, and conduct unbecoming a police officer, as alleged

       by the City in its Amended Verified Complaint.


[28]   The Commission argues that it did not necessarily determine that Pritchett was

       innocent of any rule violations. Instead, the Commission claims that its order

       to reinstate Pritchett could be seen as an acknowledgement that Pritchett had

       committed rule violations but that he had been “punished enough” by his

       suspension. Appellant’s Br. p. 15. This argument is undercut by the

       Committee’s unanimous, unequivocal adoption of its attorney’s

       recommendation that the Committee should conclude the City had “failed to

       submit a prima facie case which would substantiate that Officer Pritchett
                                                                               1
       violated the rules.” Appellant’s App. Vol. 2, p. 147. The trial court did not err

       in concluding the Commission’s ruling was arbitrary and capricious because it

       was issued in disregard of the undisputed facts and circumstances. See Jandura,




       1
         The Commission further claims the City erroneously relied in part on rules and ordinances that are
       inapplicable to reserve police officers. We need not address this issue because the City plainly claimed that
       Pritchett violated rules governing reserve police officers and submitted ample evidence in support of that
       claim.

       Court of Appeals of Indiana | Opinion 18A-MI-540 | May 28, 2019                                   Page 11 of 12
       937 N.E.2d at 819 (affirming disciplinary case involving police officer; officer

       did not dispute rule violations during administrative proceedings).


                                                 Conclusion
[29]   For the reasons stated above, we affirm the judgment of the trial court.


[30]   Affirmed.


       Kirsch, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 18A-MI-540 | May 28, 2019         Page 12 of 12
