                                                                      FILED
                                                                  Apr 26 2017, 9:04 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                         Steven T. Fulk
Attorney General of Indiana                                 Fulk & Associates, LLC
                                                            Indianapolis, Indiana
Frances Barrow
Kyle Hunter
Deputy Attorneys General
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana, Indiana                                   April 26, 2017
Department of Correction, and                               Court of Appeals Case No.
Indiana State Employees’                                    49A02-1605-PL-998
Appeals Commission,                                         Appeal from the Marion Superior
Appellants-Respondents,                                     Court
                                                            The Honorable Thomas J. Carroll,
        v.                                                  Judge
                                                            Trial Court Cause No.
Debra Mills, et al.,                                        49D06-1407-PL-25580
Appellees-Petitioners.



Riley, Judge.




Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017                  Page 1 of 34
                                     STATEMENT OF THE CASE

[1]   Appellants-Respondents, State of Indiana (State), Indiana Department of

      Correction (DOC), and Indiana State Employees’ Appeals Commission

      (SEAC) (collectively, the State), appeal the trial court’s Order on Petition for

      Judicial Review, granting judgment in favor of Appellees-Petitioners, Debra

      Mills (Mills), Thomas Bird (Bird), Jay Matthews (Matthews), Chris Weeks

      (Weeks), Linda Rumple (Rumple), Darrel Miller (Miller), and Scott

      Gillenwater (Gillenwater) (collectively, the Employees). 1


[2]   We affirm in part, reverse in part, and remand for further administrative

      proceedings.


                                                       ISSUE

[3]   The State raises three issues on appeal, which we consolidate and restate as the

      following single issue: Whether the trial court erred in reversing the Final

      Order of the SEAC based on the fact that the State presented substantial

      evidence that the Employees were laid off from their positions at the DOC in

      accordance with statutory requirements.




      1
        Two additional former DOC employees, Timothy Hygh (Hygh) and Jeffery Mellott (Mellott), participated
      in the merit complaint process as further described below; however, they did not join with the rest of the
      Employees in seeking judicial review of the SEAC’s administrative ruling and are not parties to this appeal.
      Facts pertaining to Hygh and Mellott are included where relevant.

      Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017                         Page 2 of 34
                            FACTS AND PROCEDURAL HISTORY

[4]   In 2009, Indiana’s governor and the commissioner of the DOC implemented

      the “Facility Forward” initiative, which was designed to “enhance prison

      capacity, maximize current state property and assets, decrease spending

      through cost savings, and increase overall efficiencies, while still providing the

      utmost safety and security for the State of Indiana.” (Agency Record Vol. II, p.

      342). Part of the Facility Forward plan called for transferring the juvenile

      inmates from the Indianapolis Juvenile Correctional Facility (IJCF) in

      Indianapolis, Marion County, Indiana, to a new facility—the Madison Juvenile

      Correctional Facility (MJCF)—in Madison, Jefferson County, Indiana. The

      MJCF was slated for opening in October of 2009. Part of the cost-saving

      measures of the Facility Forward initiative also included replacing certain DOC

      employees with private contractors.


[5]   On July 7, 2009, DOC administrators and representatives from the Indiana

      State Personnel Department (SPD) called for a meeting with the institutional

      teachers at the IJCF—i.e., the Employees. The Employees were notified that,

      in conjunction with the transfer of the juvenile offenders to the MJCF, the

      institutional teaching positions at IJCF were being eliminated because the DOC

      intended to fill the teaching roles through contracts with universities.

      Accordingly, the Employees’ employment would be terminated as of August

      14, 2009. During subsequent meetings with the Employees on July 10, 2009,

      and July 17, 2009, it was made clear to the Employees that they were being laid



      Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 3 of 34
      off due to the elimination of their positions; they were not being terminated for

      cause.


[6]   At the time, Indiana’s State Personnel Act was in effect, which set forth specific

      procedures to be used in the event of a layoff of merit employees in the State’s

      classified service (which, as the parties agree, applies to the Employees). See

      Ind. Code § 4-15-2-32 (repealed by P.L. 229-2011, Sec. 269, effective July 1,

      2011). Upon a department head’s determination that a layoff was necessary,

      the department head was required to notify the director of the SPD, who would

      then compute the retention points of each employee within the affected class

      based upon the employees’ seniority, service ratings, veterans’ preference status,

      and employment status. I.C. § 4-15-2-32(a) (repealed 2011). These retention

      scores were to be utilized to determine the order of layoff, whether employees

      were eligible to displace (i.e., bump) others in the department, and the

      employees’ priority status on a re-employment list. I.C. § 4-15-2-32 (repealed

      2011). At each of the meetings discussing their impending layoff, the

      Employees requested copies of their retention scores. While a few Employees

      recalled that the SPD representatives promised to provide the retention scores at

      a subsequent meeting but failed to do so, other Employees stated that they were

      explicitly told that retention scores would not be figured because their positions

      were being eliminated and they had no bumping or other layoff rights.

      Regardless, it is undisputed that the Employees were not provided with a copy

      of their retention scores until after litigation commenced.




      Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 4 of 34
[7]   On July 31, 2009, the Employees filed individual merit complaints with the

      DOC, indicating that they were wrongfully terminated without cause, that their

      terminations were retaliatory, that they had not been advised of their retention

      points, that their bumping/reassignment rights were ignored, and that the

      timing of the termination created a hardship. 2 Although not all of the

      Employees sought specific relief, others explicitly requested to be retained in

      their current positions at their current salaries or to otherwise be reassigned as

      an institutional teacher at another DOC facility. On August 3, 2009, the DOC

      responded to the Employees and advised that it was unable to provide the

      requested relief. On August 14, 2009, the Employees were officially terminated

      from their institutional teaching positions with the DOC.


[8]   Sometime after the July meetings, the Employees received letters regarding

      their layoffs and were asked to submit a form indicating whether they wanted to

      be considered for re-employment should any other institutional teaching

      positions become available. All of the Employees opted to be placed on a re-

      employment list, with some of them specifying that they would be willing to

      work within any county in Indiana and with others indicating that they would

      accept employment only in certain counties. At the time he received his layoff

      letter, Bird also received notice that he was eligible to “bump” into a

      correctional sergeant or a correctional officer position; Bird declined these DOC




      2
        The Employees’ separate causes were consolidated by order of the administrative law judge on May 3,
      2013.

      Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017                      Page 5 of 34
       employment opportunities. (Agency Tr. p. 155). In addition, shortly after the

       layoff, both Weeks and Mellott received letters, inviting them to accept an

       institutional teacher position in a DOC facility in Fort Wayne, Indiana. Weeks

       declined, but Mellott accepted the position; however, Mellott quit after thirteen

       weeks upon discovering that layoffs were imminent at that facility as well.

       Also, at some point after the layoff, both Miller and Hygh received letters from

       the SPD indicating that they had been declined for state jobs for which they had

       never applied.


[9]    On August 18, 2009, the Employees appealed their terminations to the SPD.

       On August 25, 2009, the SPD denied the Employees’ merit complaints because

       it found that the DOC had followed the proper procedures for layoffs. The

       SPD further informed the Employees that they had been “placed on a Recall list

       for the Institutional Teacher classification and will remain on the list for one (1)

       year from the date of the layoff.” (Agency Record Vol. I, p. 7).


[10]   On September 9, 2009, the Employees filed requests for administrative review

       with the SEAC, 3 which would be heard by an administrative law judge (ALJ).

       On October 5, 2009, the ALJ conducted a prehearing conference and issued a

       Scheduling Order on October 13, 2009. Pursuant to the Scheduling Order, the

       “[SPD] [was to] calculate retention scores for [the Employees]. And [SPD]

       and/or [the DOC] [would] answer and document whether any institutional



       3
         The SEAC is statutorily authorized “[t]o hear or investigate those appeals from state employees . . . and
       fairly and impartially render decisions as to the validity of the appeals or lack thereof.” I.C. § 4-15-1.5-6(1).

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017                              Page 6 of 34
       teacher positions exist currently in Marion County. Depending on the

       for[e]going responses, [the Employees] [would] consider whether they wish to

       pursue any further theories of remedy or recovery and whether SEAC is the

       preferred forum for doing so.” (Agency Record Vol. I, p. 63). A telephone

       status conference was held on November 2, 2009, and the ALJ, again,

       subsequently issued a Scheduling Order. This Scheduling Order noted that the

       SPD had “provided [the Employees’] retention scores as required by law and

       [the DOC] ha[d] indicated [six] institutional teacher positions remain in Marion

       [County], [three] vocational teaching positions and [three] administrators.”

       (Agency Record Vol. I, p. 65).


[11]   Almost two years later, on October 24, 2011, the Employees filed a motion for

       summary judgment. In support of their motion, the Employees argued that the

       DOC violated the State Personnel Act because it “intentionally created

       vacancies by firing the [Employees] in furtherance of [using private

       contractors], willfully refused to follow the statute regarding those vacancies,

       and further (inexplicably) refused to grant the [Employees] their retention

       scores or bumping rights pursuant thereto.” (Agency Record Vol. I, p. 94). On

       November 3, 2011, the ALJ ordered the Employees to supplement their

       summary judgment motion to show that they had higher retention scores than

       the remaining institutional teachers and that they were entitled to bump into the

       positions of those remaining teachers. The Employees requested permission

       from the ALJ to conduct additional discovery to compile retention scores, but

       the DOC responded that, on October 15, 2009, it had faxed “a table purporting


       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 7 of 34
       to be a listing of all Institutional Teacher 4 positions in Marion County on July

       7, 2009,” along with their retention scores. (Agency Record Vol. I, p. 283).

       Accordingly, determining that the Employees were in possession of all

       necessary information, the ALJ instructed them “to revise the chart so it

       indicates on its face its conformity and accuracy ‘as of’ the date of layoffs at

       issue, and so it indicates which positions survived the layoff.” (Agency Record

       Vol. I, p. 283).


[12]   On February 27, 2012, the ALJ denied the Employees’ motion for summary

       judgment, finding that the Employees had failed to supplement their motion as

       ordered and that they “[f]ailed to articulate a cogent claim upon which relief

       can be granted that goes beyond a speculative or vague claim of a state

       conspiracy to make lawful independent contracting decisions that the

       [Employees] simply do not agree with.” (Agency Record Vol. I, p. 287). In

       addition, as to the Employees’ purported rights to “bump” into other DOC

       positions, the ALJ noted that the Employees made “no formal designation of

       evidence . . . and little use of such retention scores to show what alleged,

       specific job positions the [Employees] are claimed entitled to bump into.”

       (Agency Record Vol. I, pp. 282-83 n.1). The ALJ ordered the Employees to

       show good cause, within ten days, as to why their case should not be dismissed

       with prejudice.


[13]   On March 13, 2012, the ALJ dismissed the Employees’ case for failing to tender

       good cause. However, the next day, the ALJ received the Employees’

       submission of good cause, which had apparently been filed on March 8, 2012.

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 8 of 34
       In their submission, the Employees proffered that the DOC had provided

       inadequate information to determine the accuracy of the proffered retention

       scores and whether any positions were available for the Employees to bump

       into. Because the Employees had timely filed their submission of good cause,

       on March 15, 2012, the ALJ vacated its order of dismissal. On April 3, 2012,

       the DOC responded to the Employees’ tender of good cause, claiming that the

       Employees should have addressed the need for additional information on the

       matter of the retention points during the discovery phase. According to the

       DOC,

               [p]ursuant to the file retention schedule set by the [Indiana]
               Department of Administration, personnel files are only kept in
               their entirety for one year. The State . . . no longer even uses the
               merit employment system. It would be an amazing, almost
               herculean burden on [the DOC] to have to reopen discovery and
               attempt to find information at this point. Every discovery request
               from [the Employees] received an appropriate response.


       (Agency Record Vol. II, pp. 306-07).


[14]   On April 17, 2012, the ALJ conditionally lifted its show cause order. In

       addition, the ALJ noted that “[t]he limited discovery that [the Employees] seek

       is sworn answers from the [DOC] about the prior list of retention scores

       furnished in October[] 2009. This ALJ is skeptical that this discovery could not

       have been completed before, but [the Employees’] counsel says ‘not so’, and so

       in the interests of judicial patience and justice, limited discovery shall proceed”

       in the form of written interrogatories to the DOC “on the subject of the prior list


       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 9 of 34
       of retention scores (only).” (Agency Record Vol. II, pp. 309-10). On August 1,

       2012, the Employees requested a hearing with the ALJ because they believed

       the interrogatories they received from the DOC were insufficient and

       incomplete. The ALJ instructed the Employees that they could file a specific

       motion to compel, but it does not appear that the Employees ever did so.


[15]   On November 9, 2012, the DOC filed a motion to dismiss pursuant to Indiana

       Trial Rule 12(b)(6) and a motion for summary judgment pursuant to Indiana

       Trial Rule 56. The DOC argued that the Employees were properly laid-off

       pursuant to statutory requirements with no violations of layoff rights. The

       DOC also argued that it did not conduct the layoffs as a means of retaliation.

       On May 3, 2013, the ALJ granted in part and denied in part the DOC’s motion

       for summary judgment (and found that the DOC’s motion to dismiss was either

       moot or otherwise consolidated with the summary judgment motion based on

       overlapping arguments). In particular, the ALJ determined that the Employees

       “were terminated when their positions at the IJCF were eliminated, not for the

       failure of [the Employees] to perform their jobs adequately. Similarly, [the

       DOC] has sufficiently proven the events in question were a structured layoff

       under the former Governor’s proper authority, and not for an improper

       motive.” (Agency Record Vol. II, p. 434). However, because the DOC failed

       to establish that there is no genuine issue of material fact as to whether the

       Employees were denied their statutory layoff rights, the ALJ denied summary

       judgment on this basis. Moreover, because of the perpetual delays, which the

       ALJ largely attributed to the Employees, and because the Employees had


       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 10 of 34
       requested several extensions to respond to the summary judgment motion but

       then failed to do so, the ALJ established that the Employees’ recovery would be

       limited should they be found to prevail on the merits.


[16]   On June 3, 2013, the Employees filed a motion to correct error. Although

       neither the ALJ nor the DOC had received the Employees’ response to the

       DOC’s summary judgment motion, the Employees argued that such a response

       had been timely filed by deposit in the U.S. mail and should have been

       considered. On June 21, 2013, the DOC objected to the Employees’ motion to

       correct error. On July 22, 2013, the ALJ partially granted and partially denied

       the Employees’ motion to correct error. The ALJ vacated the portion of its

       decision limiting the Employees’ possible recovery as Employees demonstrated

       that they had attempted to timely respond to the summary judgment motion.

       In all other respects, the ALJ declined to modify its summary judgment order.


[17]   On December 9, 2013, the ALJ conducted an evidentiary hearing with the sole

       issue being whether the Employees were denied their statutory layoff rights

       under Indiana Code section 4-15-2-32 of the State Personnel Act. During the

       hearing, the Employees testified to their belief that the retention points were not

       calculated prior to litigation such that they were deprived of their bumping and

       re-employment rights. Specifically, the Employees stated that they were told, in

       no uncertain terms, that their retention scores would not be calculated because

       they had no layoff rights. In turn, the DOC presented evidence from a

       supervisor at SPD, who testified that the Employees’ retention points were

       calculated prior to the layoff even though the scores were never provided

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 11 of 34
       directly to the Employees per SPD policy. The SPD supervisor further added

       that only one of the Employees, Bird, qualified for bumping rights under the

       statute, and he declined such an offer.


[18]   On March 10, 2014, the ALJ issued its Findings of Fact, Conclusions of Law

       and Non-Final Order, denying and dismissing the Employees’ merit

       complaints. The ALJ acknowledged that DOC “could have handled the

       lay[]off in a more delicate manner” but found “no statutory violation

       warranting damages.” (Appellants’ App. Vol. II, p. 61). Specifically, the ALJ

       determined that there was evidence that “the retention scores were calculated at

       or before the time of the layoff and used to check on bumping or retention”;

       there were no other positions into which the Employees could have moved by

       virtue of their retention scores; and the evidence revealed that a re-employment

       list or its “functional equivalent” was utilized. (Appellants’ App. Vol. II, pp.

       61, 63). On March 28, 2014, the Employees filed an objection to the ALJ’s

       Non-Final Order with the SEAC. On June 17, 2014, the SEAC conducted an

       oral argument, and on June 30, 2014, the SEAC issued its Final Order,

       adopting the determination of the ALJ in its entirety.


[19]   On July 30, 2014, the Employees filed a Verified Petition for Judicial Review of

       the SEAC’s decision with the trial court. The Employees named the State, the

       DOC, and the SEAC as responding parties (i.e., collectively, the State). 4 On




       4
           The SEAC unsuccessfully moved to be dismissed from the action.


       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 12 of 34
       February 19, 2016, the trial court conducted a hearing. 5 On April 6, 2016, the

       trial court issued its Order on Petition for Judicial Review of the Final Order of

       the State Employees’ Appeals Commission, reversing the determination of the

       SEAC and instead finding in favor of the Employees. The trial court

       determined that the SEAC’s Final Order was “arbitrary, capricious, not in

       accordance with law, an abuse of discretion, and not supported by substantial

       evidence.” (Appellants’ App. Vol. II, p. 29). Ultimately, the trial court

       concluded, in relevant part, that the State

                did not compute retention scores at the time of layoff to
                determine the order of the layoff, did not assess bumping rights
                either with Marion County or contiguous counties, and did not
                create or utilize a re-employment list, but instead—by its own
                admission—ordered the layoff based upon licensure
                considerations contrary to statute.


       (Appellants’ App. Vol. II, p. 27). The trial court therefore reversed the SEAC’s

       Final Order and remanded for entry in favor of the Employees and for

       proceedings on the Employees’ damages.


[20]   The State now appeals. Additional facts will be provided as necessary.




       5
         Although a copy of the transcript of this hearing was received by the Clerk of the Indiana Appellate Courts
       on March 9, 2017, it was not filed due to non-conformance with the Indiana Rules of Appellate Procedure.
       Despite notice of the transcript’s defect, it does not appear that a corrected version was ever re-submitted.

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017                        Page 13 of 34
                                    DISCUSSION AND DECISION

                                               I. Standard of Review

[21]   The Administrative Orders and Procedures Act governs judicial review of an

       agency action. I.C. § 4-21.5-5-1. When our court reviews the decision of an

       administrative agency, we are bound by the same standard of review as utilized

       by the trial court and “may not try the cause de novo or substitute [our]

       judgment for that of the agency.” I.C. § 4-21.5-5-11; Pierce v. State Dep’t of Corr.,

       885 N.E.2d 77, 88 (Ind. Ct. App. 2008). Thus, we do not reweigh evidence or

       assess the credibility of witnesses, and we review the record in the light most

       favorable to the administrative proceedings. Ind. Educ. Emp’t Relations Bd. v.

       Nettle Creek Classroom Teachers Ass’n, 26 N.E.3d 47, 54 (Ind. Ct. App. 2015). In

       addition, “[j]udicial review of disputed issues of fact must be confined to the

       agency record.” I.C. § 4-21.5-5-11.


[22]   Our court will reverse an administrative decision if the party

               seeking judicial relief has been prejudiced by an agency action
               that is: (1) arbitrary, capricious, an abuse of discretion, or
               otherwise not in accordance with law; (2) contrary to
               constitutional right, power, privilege, or immunity; (3) in excess
               of statutory jurisdiction, authority, or limitations, or short of
               statutory right; (4) without observance of procedure required by
               law; or (5) unsupported by substantial evidence.


       I.C. § 4-21.5-5-14(d). “A decision is arbitrary and capricious when it is made

       without any consideration of the facts and lacks any basis that may lead a

       reasonable person to make the same decision made by the administrative


       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 14 of 34
       agency.” Pierce, 885 N.E.2d at 88. In general, the party seeking judicial relief

       “bears the burden of demonstrating that the agency’s action is invalid.” Id.; see

       I.C. § 4-21.5-5-14(a). Here, however, the State is appealing from the trial

       court’s decision that the SEAC’s Final Order is arbitrary and capricious; thus,

       the State seeks to establish the validity of the agency action. Accordingly,

       “[t]he relevant inquiry is whether there is substantial evidence of probative

       value to support the agency’s determination.” Family & Soc. Servs. Admin. v.

       Boise, 667 N.E.2d 753, 754 (Ind. Ct. App. 1996), trans. denied. “[S]ubstantial

       evidence is more than speculation and conjecture yet less than a preponderance

       of evidence. Substantial evidence means such relevant evidence as a reasonable

       mind might accept as adequate to support a conclusion.” Ind. Family & Soc.

       Servs. Admin. v. Pickett, 903 N.E.2d 171, 177 (alteration in original) (internal

       quotation marks and citation omitted), clarified on reh’g, 908 N.E.2d 1191 (Ind.

       Ct. App. 2009).


                                               II. State Personnel Act

[23]   The State claims that the SEAC’s Final Order should be affirmed because there

       is substantial evidence to establish that the State complied with the State

       Personnel Act in the course of conducting the layoffs now at issue. The

       Employees alleged that the DOC violated each of the three subsections of

       Indiana Code section 4-15-2-32 by (1) failing to calculate and provide retention

       points in order to properly conduct the layoffs; (2) failing to utilize retention

       points to administer the Employees’ bumping rights; and (3) failing to properly




       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 15 of 34
       implement a re-employment list based on retention scores. We will address

       each point in turn.


[24]   First, however, we note that to the extent that the resolution of this case hinges

       on an interpretation of the (now repealed) State Personnel Act, we must

       “determine whether the legislature has spoken clearly and unambiguously on

       the point in question.” Pierce, 885 N.E.2d at 88 (quoting St. Vincent Hosp. &

       Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 703-04 (Ind.2002)). An

       unambiguous statute must be given “its clear and plain meaning.” Id. An

       ambiguous statute, however, is susceptible to more than one interpretation, in

       which case, “we must try to ascertain the legislature’s intent and interpret the

       statute so as to effectuate that intent.” Id. Courts presume that “the legislature

       intended logical application of the language used in the statute, so as to avoid

       unjust or absurd results.” Id.


[25]   We further note that “‘[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.’” Id. at

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

       “Deference to an agency’s interpretation of a statute becomes a consideration

       when a statute is ambiguous and susceptible of more than one reasonable

       interpretation.” Id. Thus, “[w]hen a court is faced with two reasonable

       interpretations of a statute, one of which is supplied by an administrative

       agency charged with enforcing the statute, the court should defer to the

       agency.” Id. If a court determines that an agency interpretation is reasonable,

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 16 of 34
       it need not address the other party’s proposed interpretation in recognition of

       “the general policies of acknowledging the expertise of agencies empowered to

       interpret and enforce statutes and increasing public reliance on agency

       interpretations.” Id. (quoting Ind. Wholesale Wine & Liquor Co., Inc. v. State ex rel.

       Ind. Alcoholic Beverage Comm'n, 695 N.E.2d 99, 105 (Ind.1998)). That said, “[i]f

       an agency misconstrues a statute, there is no reasonable basis for the agency’s

       ultimate action and the trial court is required to reverse the agency’s action as

       being arbitrary and capricious.” Id.


                                       A. Calculation of Retention Points

[26]   The State contends that the trial court improperly reversed the SEAC/ALJ

       because there is ample evidence that the Employees’ retention scores were

       calculated in accordance with the State Personnel Act. Former Indiana Code

       section 4-15-2-32(a) provides as follows:


           (a) An appointing authority[ 6] may lay-off employees in the classified
               service whenever it is deemed necessary, due to shortage of work
               or funds, or the abolishment of a position, or other material
               change in duties or organization. For purposes of this section,
               offices and positions of employment in each county where the
               division of service operates is considered one autonomous unit
               and lay-off procedures will apply within the county affected by
               the lay-off. When a lay-off is necessary, the appointing authority
               will determine in which class or classes the lay-off or lay-offs will
               occur, the number of employees to be laid off within each



       6
         “‘Appointing authority’ means the head of a department, division, board, commission, individual, or group
       of individuals who has the power by law or by lawfully delegated authority to make appointments to
       positions in the state service.” I.C. § 4-15-2-2.1 (repealed 2011).

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017                     Page 17 of 34
                  affected class, the county or counties where lay-offs are to occur
                  and give written notice to the director[ 7] a reasonable time before
                  the effective date of the lay-off. The director, in accordance with
                  the rules, shall compute retention points to determine the order
                  of lay-off within each county. The retention points will be
                  computed as of the effective date of the lay-off and will reflect
                  systematic consideration of seniority, service ratings, veterans’
                  preference status, and employment status. The director shall
                  provide the appointing authority with a written notice containing
                  the names and retention points of employees to be laid off in
                  each county, and such orders relating to the lay-off as deemed
                  necessary to secure compliance with this section.


[27]   In this case, there is no dispute that, prior to litigation, the Employees never

       received copies of their retention scores. During the administrative hearing, the

       Employees testified that, at the time they were notified of the impending layoff,

       the DOC and SPD representatives made it clear that retention scores would not

       be figured or provided. When the retention scores were eventually provided

       during litigation, the Employees discovered that seven Marion County DOC

       employees with the same classification (i.e., institutional teachers) had survived

       the layoff. Because several of the Employees had higher retention scores than

       these institutional teachers who were not laid off, the Employees maintained

       that the layoffs were not conducted in accordance with seniority. The

       Employees also raised concerns that the DOC did not explain what factors it

       considered in calculating the scores. Finally, the Employees challenged the




       7
           “‘Director’ means the state personnel director . . . .” I.C. § 4-15-2-2.7 (repealed 2011).


       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017                         Page 18 of 34
       timeliness and validity of the retention scores due to purported errors in the

       chart, such as the inclusion of a few retired and terminated DOC employees

       and because the chart was dated several years after the layoff.


[28]   Contrary to the Employees’ contentions, the ALJ made the following specific

       findings and conclusions relevant to the calculation of retention scores:

               15. Joyce Crull [(Crull)], an employee of SPD, testified
               regarding Exhibit A [(i.e., the retention score chart)]. . . . Crull
               did not personally calculate the retention scores/points.
               However, . . . Crull directly supervised the individual (Nancy
               Shockley [(Shockley)], a former state employee who did not
               testify) who calculated the retention points and compiled Exhibit
               A. . . . Crull had personal knowledge that the task was done
               either before or at the time of the layoff. When pressed on cross
               exam, her only waffle was exclaiming that the scores might have
               actually been calculated in 2009 [sic], prior to the layoff. . . . Crull
               explained that the date on the lower corner [(i.e., 8/30/2012)] is
               the date Exhibit A was first printed, and not the date that the
               retention points were first calculated.

               16. . . . Crull further explained that employees would never be
               told where they sit, per retention points, on a list prior to the
               effective date of the layoff, which was consistent with DOC’s
               actions.

               ****

               23. . . . Part of the trial effort by [the Employees] was to imply
               that retention scores were not calculated in 2009, or that Exhibit
               A was made up after the fact. [The Employees] also claimed
               there was inaccurate information reported in Exhibit A.
               However, the alleged inaccuracies were either not there, not
               material or de minimis.

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017      Page 19 of 34
        24. There were [institutional teachers] listed on Exhibits A-B
        who no longer worked at IJCF exactly when the layoffs occurred
        because they had left state employment shortly before the layoff.
        While this is not ideal, it supports the [DOC’s] contention and
        credibility of . . . Crull, . . . that the scores were calculated before
        the litigation in 2009. Also, post layoff dates contained at the
        bottom of the pages were mentioned. However, no witness was
        able to provide any specific evidence that the retention scores, as
        reported in Exhibit A-B, were not accurate.

        25. [Weeks] further pointed out that one of the columns
        appeared to be transposed. But, transposition aside, he admitted
        on cross exam that his data was correct. No harm is shown by
        the same.

        26. [Mills] asserted she should have been one notch up the list
        on Exhibit A, where [Zelda Lewis (Lewis), a vocational teacher
        at Indiana Women’s Prison who was not laid off,] was. Yet, the
        list shows [Lewis] started earlier than [Mills], making the
        opposite seem true. [Mills] thought maybe [Lewis’] start date
        was wrong (and closer to [Mills]), but this was speculation. . . .

        ****

        28. The scores were calculated to the hundredth place, yet [the
        Employees] questioned the accuracy of the scores. The criticism
        came without personal knowledge of how retention scores are
        calculated. Attacking the accuracy of the scores was based on
        mere speculation. [While the [S]tate was to use certain factors in
        calculating the scores, the [S]tate was not required to break down
        the scores into subparts or explain the calculation to [the
        Employees]. In other words, the [Employees] wondering about
        the calculation method offers nothing of evidentiary value.]

        29. The chart has inherent credibility that outweighs the
        [Employees’] speculation, as the information generally lines up
        with the employment figures, at the time of the layoff, for those

Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017      Page 20 of 34
        listed, (e.g., hire dates, ranking, job title, job unit, annual pay
        rate). Again, the scores themselves appear mathematical and are
        out to the hundredths place. Exhibits A and B do not contain
        material problems.

        ****

        31. John Nally [(Nally)], a central office administrator for
        DOC, also supported . . . Crull’s testimony. His memory of all
        the events had faded, but he did specifically recall a request from
        SPD asking him to compile all of the [Employees’] credentials at
        some point prior to the layoff. He believed the request was in
        connection to retention score calculation activities, as . . . Crull
        said.

        ****

        11. [Indiana Code section 4-15-2-32(a)] requires the SPD to
        calculate retention points for every laid-off employee at the time
        of layoff. There is conflicting evidence regarding whether the
        retention points were calculated prior to the layoff or at the time
        of layoff. Either way, DOC presented evidence that the retention
        scores were calculated at or before the time of the layoff and used
        to check on bumping or retention. However, there is no question
        that copies of these retention scores were not given to the
        [Employees] until litigation. Counsel for DOC maintains that
        DOC or SPD did not provide the score copies to [the Employees]
        in July, 2009 because of its belief at the time that none of the
        [Employees] had bumping rights.

        12. [The Employees] requested their retention points at each
        of the meetings on July 7, 10, and 17, 2009. DOC did not
        provide copies of the retention scores. DOC was not obligated to
        provide copies of retention scores at this point, as it was prior to
        the layoffs. However, once the layoff happened, DOC should
        have furnished the scores that day, but did so repeatedly shortly


Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 21 of 34
               after in litigation.[ 8]

               13. The evidence shows [DOC] at least went through the
               deliberative process of computing retention scores and did use
               and provide the retention scores in 2009. Any failure to forward
               copies of the retention scores to [the Employees] in July 2009
               was not material, de minim[i]s or harmless.

               14. Based on the unopposed testimony, it is impossible that . .
               . DOC or SPD failed to compute or use the retention scores
               because [Bird] was offered, in writing, a position in a lower class
               shortly after the layoffs in 2009. The employment offer was
               based on his retention points and having achieved permanent
               status in a lower class. If a retention score did not exist, SPD
               would not have offered the position or used the term “bump” in
               its correspondence.


       (Appellants’ App. Vol. II, pp. 55, 56, 57 & n.13, 61) (citations and footnotes

       omitted).


[29]   We find that the evidence in the record supports the ALJ’s findings, which, in

       turn, support the ALJ’s determination (as adopted by the SEAC) that the DOC

       did not violate the State Personnel Act with respect to calculating retention

       scores. Although there was conflicting evidence regarding whether retention

       scores were calculated prior to the layoff or only after the commencement of

       litigation, it was within the discretion of the ALJ to weigh that evidence and




       8
        The ALJ’s conclusion that the DOC should have provided the scores to the Employees upon layoff is based
       on its assessment of Indiana Code section 4-15-2-30 (repealed 2011) and Indiana Code section 5-14-3-4(b)(8),
       when read in conjunction with the statute at hand. The ALJ noted that these other provisions “provid[e]
       access to employee records.” (Appellants’ App. Vol. II, p. 61).

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017                       Page 22 of 34
       accord credibility to Crull’s testimony that the retention scores were positively

       calculated prior to the layoff and were current per SPD standards as of the

       effective date of the layoff. Specifically, Crull testified that retention scores are

       considered current so long as they are calculated no more than six months

       preceding the layoff. She further stated that upon the DOC’s notice of layoff,

       the SPD would have required “time in order to review the whole document of

       the [E]mployees’ records” and then would have “draw[n] a list up of

       individuals in the classification throughout the county under DOC.” (Agency

       Tr. pp. 47, 49-50). 9


[30]   Moreover, based on a plain reading of the statute, neither the DOC nor the

       SPD was required to provide the retention scores to the Employees or to offer a

       breakdown of how such scores were calculated. Rather, the State Personnel

       Act simply requires the SPD director to figure the retention scores using the

       statutory criteria and then provide a list to, in this case, the head of the DOC

       containing only the names and retention points of the employees in the

       designated classification. While the record does not include evidence of the

       specific data utilized, there is substantial evidence—that is, more than




       9
         To support its claim, the State primarily relies on the interrogatory responses of Shockley, who calculated
       the retention scores and explained the date she did so and what factors were considered. Although
       Shockley’s interrogatory was included with the agency record, it was not admitted as evidence during the
       hearing and the ALJ did not take official notice of the facts stated therein. See I.C. § 4-21.5-3-26.
       Furthermore, Shockley did not testify during the hearing, and nothing in the ALJ’s findings and conclusions
       indicates that it relied upon her interrogatory to support its determination. See I.C. § 4-21.5-3-27(d)
       (“Findings must be based exclusively upon the evidence of record in the proceeding and on matters officially
       noticed in that proceeding. . . .”). Thus, we do not consider Shockley’s interrogatory as evidence.

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017                        Page 23 of 34
       speculation but less than a preponderance—that the State complied with the

       statutory criteria for factoring the retention scores. Pickett, 903 N.E.2d at 177.

       Crull testified that the retention scores were calculated using “the entire

       working record, the continuous record of the [Employees,]” and the retention

       chart included information pertinent to calculating scores, such as the

       Employees’ hire dates, job titles, department information, and salaries.

       (Agency Tr. p. 45). Also, Nally testified that, prior to the layoff, he provided

       information on the Employees’ credentials to the SPD for use in calculating

       retention scores.


[31]   In reversing the SEAC/ALJ, the trial court determined that retention scores

       were not calculated at the time of the layoff based on the testimony of the

       Employees and the October 13, 2009 Scheduling Order, which directed the

       DOC to “calculate retention scores for [the Employees].” (Agency Record Vol.

       I, p. 63). We first note that this Scheduling Order does not establish that such

       scores had not been previously calculated inasmuch as it ordered the DOC to

       provide copies of those scores to the Employees. Furthermore, the fact that the

       trial court discredited the ALJ’s findings on the basis of this Scheduling Order

       and conflicting testimony of the Employees amounts to improper reweighing of

       the evidence.


[32]   Finally, we address the Employees’ assertion that the DOC violated the State

       Personnel Act because several institutional teachers remained employed at the

       central administration office and Indiana Women’s prison, despite having

       lower retention scores than some of the Employees. While the ALJ’s findings

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 24 of 34
       on this issue primarily relate to whether the Employees had the right to “bump”

       these other institutional teachers out of their jobs, which we discuss in an

       analysis of Indiana Code section 4-15-2-32(b) below, we must also consider this

       argument in the context of whether the DOC violated Indiana Code section 4-

       15-2-32(a) by not relying on the retention scores to determine the proper order

       of layoff of institutional teachers within Marion County.


[33]   At the time the Employees were laid off, seven employees classified as

       institutional teachers remained employed by the DOC in Marion County: three

       vocational teachers at the Indiana Women’s Prison and four administrators in

       DOC’s central office. However, there is evidence indicating that, at some

       point, the vocational teachers were also eliminated in favor of using private

       contractors. During the hearing, Nally testified that the DOC “wanted people

       in Central Office with District Administrator’s Licenses,” which is why the four

       individuals with administrative licenses were retained notwithstanding whether

       their retention scores were higher than the laid-off Employees. (Agency Tr. p.

       294). Thus, the Employees argue that the layoffs ran afoul of the State

       Personnel Act because they were done in accordance with licensing needs

       rather than seniority.


[34]   The State Personnel Act authorizes the head of a department to conduct layoffs

       whenever “deemed necessary, due to shortage of work or funds, or the

       abolishment of a position, or other material change in duties or organization.”

       I.C. § 4-15-2-32(a) (repealed 2011). Here, the institutional teaching positions

       were abolished at the IJCF. While the administrative employees at issue were

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 25 of 34
       technically also classified as institutional teachers, they did not function in such

       a capacity and, in fact, held special licenses to fulfill other duties for the DOC in

       the central office. Although the State Personnel Act does state that layoffs

       within a certain class should be conducted in order of seniority, we find that it

       would defy logical reasoning to construe the State Personnel Act as requiring an

       agency to lay off licensed/qualified employees only to move more senior

       employees into positions for which they are patently unqualified. See Citizens

       Action Coal. of Ind., Inc. v. N. Ind. Pub. Serv. Co., 796 N.E.2d 1264, 1269 (Ind. Ct.

       App. 2003) (“[A] statute is to be construed so as to not bring about an absurd

       result.”), trans. denied. Accordingly, we agree with the SEAC/ALJ and find

       that the State did not violate Indiana Code section 4-15-2-32(a) of the State

       Personnel Act.


                                                B. Bumping Rights

[35]   The State next contends that the trial court erroneously reversed the

       SEAC/ALJ because the evidence demonstrates that it complied with Indiana

       Code section 4-15-2-32(b) (repealed 2011), which provides as follows:

           (b) An employee in the classified service who has been notified of
               pending lay-off and who has permanent status in a lower class
               has the right, provided they have more retention points, to
               displace within the same affected county, the employee with the
               least retention points in that lower class. Any employee in the
               classified service who has permanent status in a lower class and
               is displaced by another employee has the right, provided they
               have more retention points, to displace within the same affected
               county the employee with the least retention points in that lower
               class. This procedure shall continue until the employee with the

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 26 of 34
               least retention points in the lowest class, in the same affected
               county, of the same appointing authority has been reached and if
               necessary, laid off. Should a layoff result in the closing of all
               offices in a county, any employee in the classified service who
               has been notified of pending lay-off and who has permanent
               status in the class from which they are laid off may, provided
               they have more retention points, displace within the division of
               service in any contiguous county the employee with the least
               retention points in that class.


[36]   Contrary to the State, the Employees assert that the DOC failed to assess their

       bumping rights within Marion County. We disagree. Based on the plain

       language of this statute, in order to qualify for bumping rights, an employee

       must have permanent status in a lower class and must have higher retention

       points than an individual employed in that lower position within the same

       county. Thus, the statute makes it clear that the Employees had no right to

       laterally displace other institutional teachers within the county even if they had

       a higher retention score. Furthermore, as the ALJ found based on the retention

       score chart, only Bird had permanent status in lower classes—as both a

       correctional sergeant and a correctional officer. Shortly after the layoff, Bird

       admitted that he received an offer to “bump” into a correctional sergeant or

       correctional officer position, but he declined. (Agency Tr. p. 155). Mills and

       Matthews both testified to their belief that they had permanent status as,

       respectively, a librarian and a teacher’s assistant for which they should have

       received bumping rights. However, this is contradicted by the DOC’s retention

       chart, and the ALJ was charged with weighing the evidence.



       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 27 of 34
[37]   Additionally, the Employees insist that they should have been able to bump

       into other institutional teaching positions within the counties contiguous to

       Marion County based on the fact that all DOC institutional teaching jobs were

       eliminated within Marion County. The statute provides that in the event that

       “all offices in a county” are closed due to layoffs, institutional teachers with

       permanent status as institutional teachers could displace other institutional

       teachers who had lower retention scores within the contiguous counties. I.C. §

       4-15-2-32(b) (repealed 2011). The ALJ specifically found that this provision

       “has no application because DOC’s Marion County office was not closed down

       entirely.” (Appellants’ App. Vol. II, p. 62). In particular, the evidence revealed

       that the DOC’s central office, located in Marion County, remained operational.

       Likewise, although it was staffed with private contractors instead of

       institutional teachers, the Indiana Women’s Prison, also located in Marion

       County, did not shut down. Therefore, like the SEAC/ALJ, we find that there

       is substantial evidence that the State did not violate Indiana Code section 4-15-

       2-32(b) of the State Personnel Act.


                                              C. Re-Employment List

[38]   Lastly, the State asserts that the trial court erroneously reversed the SEAC/ALJ

       because the evidence establishes that, in conducting the layoffs, the State

       adhered to Indiana Code section 4-15-2-32(c) (repealed 2011), which provides:


           (c) Employees who have been reduced or laid off will be placed on
               appropriate re-employment lists in accordance with rules
               established by the director. Those employees with the highest
               retention points in each affected class will be placed at the top of

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 28 of 34
               the list followed by employees ranked in descending order. An
               employee who is laid off will retain re-employment rights for a
               period of one (1) year from the lay-off date. During this one (1)
               year period, the appointing authority, for the division of service
               affected, shall not hire nor promote anyone into a class affected
               by the lay-off until all laid off employees on the re-employment
               list for that class have been reinstated or decline the position
               when it is offered. Employees who fail to respond within five (5)
               days, to a written offer sent to their last known address, will be
               deemed to have declined. Even though a lay-off applies only to
               affected counties, re-employment rights extend to all counties,
               and at the request of the laid off or reduced employee, their name
               will be placed on the appropriate re-employment list for any or
               all counties.


       The Employees have insisted that no re-employment list was ever created or

       utilized. In fact, no such list was ever produced during the course of litigation.


[39]   The ALJ concluded, and the SEAC agreed, that there was substantial evidence

       that the Employees “were placed on re-employment lists or the functional

       equivalent.” (Appellants’ App. Vol. II, p. 63). In particular, the ALJ found:

               33. The existence of a re-employment list, or [its] functional
               equivalent, was further bolstered by evidence of automatic
               employment applications with the State. Several [Employees]
               described receiving correspondence thanking them for applying
               to jobs even though they never personally applied. This evidence
               suggests that a re-employment list was in existence and utilized
               for automatic application to qualified positions, especially
               because this happened to more than one [of the Employees].

               34. [Weeks] stated he received a letter from SPD in early 2010
               that listed a position in Fort Wayne, IN that was similar to his
               old job. While the letter did not mention bumping rights or

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 29 of 34
               retention scoring, [Employee] Weeks testified that it mentioned
               special consideration.

               35. . . . [Mellott], in fact was rehired to a DOC facility in
               Northeast Indiana. However, [Employee] Mellott chose to quit
               after a number of weeks because that facility was also going
               through an active layoff. This episode shows the breadth of the
               layoff, the lack of open DOC [institutional teacher] positions
               within one year, and that DOC was considering the [Employees]
               not as fired but as laid off on a list.


       (Appellants’ App. Vol. II, p. 57) (citation omitted). Unlike the trial court,

       which determined that there was “no evidence at all establishing the existence

       of . . . re-employment lists,” we agree with the SEAC/ALJ that there is

       substantial evidence that a re-employment list was created and utilized based on

       the fact that employment offers were made to certain Employees within a short

       time after the layoff. (Appellants’ App. Vol. II, p. 25).


[40]   Nevertheless, we find that the evidence establishes that the State failed to

       comply with the specific procedure for implementing a re-employment list. The

       statute makes it abundantly clear that the Employees “with the highest

       retention points” should have been “placed at the top” of the re-employment

       list for institutional teachers. I.C. § 4-15-2-32(c) (repealed 2011). In this case,

       two of the Employees, Weeks and Mellott, were offered re-employment as

       institutional teachers shortly after the layoff in Fort Wayne, which Mellott

       ultimately accepted. However, according to the retention score chart, of the

       nine Employees who filed merit complaints, Weeks was ranked sixth and

       Mellott was ranked ninth in terms of retention points. Gillenwater, Mills,

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 30 of 34
       Miller, and Bird all informed the SPD that they would be willing to accept re-

       employment as an institutional teacher in any Indiana county and all had

       higher retention scores than both Weeks and Mellott. Yet, none of these four

       were offered the institutional teacher position in Fort Wayne (or anywhere else

       for that matter) prior to Weeks and Mellott being afforded the opportunity. 10

       There is no evidence that there were special certification or licensing

       requirements for the Fort Wayne position; rather, it appears that all of the

       Employees were qualified for any such institutional teaching position.

       Accordingly, the fact that the State did not offer re-employment opportunities in

       accordance with seniority is a violation of the State Personnel Act. We

       therefore agree with the trial court that the SEAC’s Final Order is not in

       accordance with the law on this issue. Thus, the matter should be remanded to

       the SEAC/ALJ for a determination of whether some or all of the Employees

       are entitled to damages based on the State’s failure to comply with former

       Indiana Code section 4-15-2-32(c) in light of the fact that so few re-employment

       opportunities were available in the year following the layoff.


                                                 CONCLUSION

[41]   Based on the foregoing, we conclude that SEAC/ALJ properly determined that

       the State calculated the Employees’ retention scores and adhered to statutory

       layoff rights in accordance with Indiana Code section 4-15-2-32(a)-(b) (repealed



       10
          We note that Rumple had the second highest retention score of the nine Employees; however, she
       indicated that she would only accept employment in the counties surrounding Marion County; thus, she
       would not have been offered the Fort Wayne position regardless.

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017                    Page 31 of 34
       2011). However, we also conclude that the State failed to comply with the

       State Personnel Act’s requirement that laid-off employees with the highest

       retention scores be afforded the first opportunity for re-employment. Thus, the

       trial court correctly reversed the Final Order of the SEAC with respect to

       Indiana Code section 4-15-2-32(c) (repealed 2011).


[42]   Affirmed in part, reversed in part, and remanded for further agency

       proceedings.


[43]   Altice, J. concurs


[44]   Crone, J. concurs in part and dissents in part with separate opinion




       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 32 of 34
                                                    IN THE
            COURT OF APPEALS OF INDIANA

       State of Indiana, Indiana                                   Court of Appeals Case No.
       Department of Correction, and                               49A02-1605-PL-998
       Indiana State Employees’
       Appeals Commission,
       Appellants-Respondents,

                v.

       Debra Mills, et al.,
       Appellees-Petitioners




       Crone, Judge, concurring in part and dissenting in part.


[45]   I respectfully disagree with the majority’s conclusion that the State did not

       violate the State Personnel Act by retaining four employees classified as

       institutional teachers who held administrative licenses but had lower retention

       scores than some of the Employees. 11 Indiana Code Section 4-15-2-32(a)

       specifically states that the order of lay-off for each class within a county is




       11
         The majority’s suggestion that the Employees were “patently unqualified” for those positions is an insult to
       them and ignores their years of loyal service.

       Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017                        Page 33 of 34
determined by retention points, not by licensing considerations. We may not

read into a statute that which is not the expressed intent of the legislature. In re

Guardianship of Stant, 50 N.E.3d 149, 152 (Ind. Ct. App. 2016), trans. denied. In

all other respects, I concur.




Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017   Page 34 of 34
