                                                                                      FILED
                                                                                  Apr 17 2018, 8:00 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
      Rodney Pol, Jr.                                             Russell W. Brown, Jr.
      Assistant City Attorney                                     Scott King Group
      Gary, Indiana                                               Merrillville, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      City of Gary Police Civil Service                           April 17, 2018
      Commission,                                                 Court of Appeals Case No.
      Appellant-Petitioner,                                       45A05-1706-PL-1414
                                                                  Appeal from the Lake Superior
              v.                                                  Court
                                                                  The Honorable A. Leon Sarkisian,
      Raymond Robinson,                                           Judge Pro Tempore
      Appellee-Respondent.                                        The Honorable Diane Kavadias
                                                                  Schneider, Judge
                                                                  Trial Court Cause No.
                                                                  45D11-1503-PL-22



      Najam, Judge.


                                         Statement of the Case
[1]   The City of Gary Police Civil Service Commission (“Commission”) appeals the

      trial court’s entry of summary judgment for Raymond Robinson on his petition




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      for judicial review from an adverse decision of the Commission. The

      Commission raises three issues for our review, which we restate as follows:


              1.    Whether the trial court erred when it denied the
              Commission’s motion to dismiss Robinson’s petition for judicial
              review.


              2.      Whether the Commission preserved for appellate review
              its claim that the trial court considered inadmissible evidence on
              summary judgment.


              3.   Whether the trial court erred when it entered summary
              judgment for Robinson.


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


                                   Facts and Procedural History
[3]   In September of 2012, agents with the Federal Bureau of Investigation (“FBI”)

      arrested Gary Police Department (“GPD”) Officer David Finley on charges of

      corruption. The FBI’s investigation and ultimate arrest of Finley was based at

      least in part on tips provided by a confidential informant (“CI”). Shortly after

      Finley’s arrest, the CI “went into hiding out of a valid fear that Finley (or

      associates) would harm” the CI. Appellant’s App. Vol. II at 61.


[4]   On January 19, 2013, Robinson, also an officer with the GPD, used his GPD

      credentials to conduct an unauthorized informational search of the National

      Crime Information Center (“NCIC”) and the Indiana Data and

      Communication System (“IDACS”), which are law enforcement databases that


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      contain information about individuals who have had contact with law

      enforcement. Robinson searched those databases for the CI who had assisted

      the FBI in Finley’s case. The CI’s information in those databases included the

      CI’s phone number. Shortly after Robinson conducted that search, the CI

      began receiving threatening phone calls.


[5]   The CI informed the FBI of those calls, and FBI Special Agent Dan Cooley

      investigated. In the course of that investigation, Special Agent Cooley learned

      that Robinson had used the NCIC and IDACS databases to access the CI’s

      information. Special Agent Cooley arranged to interview Robinson at a GPD

      station in February. During that interview, Robinson admitted that he had

      used his GPD credentials to conduct an unauthorized search for the CI and that

      he had seen the CI’s information in those databases. But Robinson stated that

      he had performed that search simply out of “curiosity.” Id. Later, Robinson

      also admitted that he had falsely testified to Finley’s sentencing court that

      Robinson had written a letter on Finley’s behalf when, in fact, Finley had

      written that letter himself.


[6]   On March 1, after learning of Robinson’s alleged unauthorized access to the

      NCIC and IDACS databases, GPD Chief Wade Ingram ordered Robinson to

      be transferred from the Bureau of Uniform Services Division to the

      Administrative Services Division. About a month later, Chief Ingram ordered

      Robinson to be transferred back to the Bureau of Uniform Services Division.

      Meanwhile, the FBI continued to investigate Robinson’s access to the NCIC

      and IDACS databases. On October 15, Indiana State Police Captain Mike

      Court of Appeals of Indiana | Opinion 45A05-1706-PL-1414 | April 17, 2018   Page 3 of 12
      White informed Chief Ingram that the FBI had substantiated to the State Police

      that Robinson accessed the two databases without authorization, and, as a

      result, the State Police had permanently revoked Robinson’s access to the

      NCIC and IDACS databases.


[7]   On January 23, 2014, the City of Gary (“the City”) filed a complaint against

      Robinson with the Commission. The City alleged that Robinson’s

      unauthorized access of the NCIC and IDACS databases was an “abuse of

      privileges” and “prohibited by directives and law.” Id. at 50. The City further

      alleged that, due to the State Police’s permanent revocation of Robinson’s

      access to those databases, “Robinson’s current function as a police officer has

      been permanently diminished . . . .” Id. at 51. Accordingly, the City requested

      that the Commission terminate Robinson’s employment.


[8]   Thereafter, a single hearing officer held a fact-finding hearing on the City’s

      complaint. The hearing officer then recommended Robinson’s termination.

      Robinson appealed to the Commission, but the Commission accepted the

      hearing officer’s recommendation.


[9]   Robinson filed a petition for judicial review in the trial court. After the court

      had denied a motion to dismiss filed by the Commission, Robinson moved for

      summary judgment. In his motion, Robinson argued that the designated

      evidence showed that the GPD was aware of Robinson’s misconduct no later

      than March 1, 2013, when Chief Ingram transferred Robinson between

      divisions based on Robinson’s alleged unauthorized use of the NCIC and


      Court of Appeals of Indiana | Opinion 45A05-1706-PL-1414 | April 17, 2018   Page 4 of 12
       IDACS databases. As such, Robinson continued, Commission Rule of

       Procedure II(7)(A), which states that “disciplinary proceedings must be

       commenced within one-hundred and twenty (120) days from the date the

       alleged misconduct is discovered,” required the dismissal of the Commission’s

       proceedings because the City’s complaint was filed 328 days after March 1,

       2013. Id. at 79.


[10]   The Commission did not object to Robinson’s designated evidence in support of

       his motion for summary judgment. Indeed, the Commission informed the trial

       court that Robinson had done a “great job of laying out the facts of the case.”

       Tr. at 21. Rather than argue facts, the Commission argued that Rule II(7)(A)

       did not begin to run until the investigation into Robinson’s alleged misconduct

       had been completed. According to the Commission, that occurred here on

       October 15, 2013, when State Police Captain White informed Chief Ingram

       that Robinson’s access to the NCIC and IDACS databases was being

       permanently revoked based on the FBI’s substantiation of Robinson’s alleged

       misuse. As such, the Commission continued, the City timely filed its January

       23, 2014, complaint with the Commission. The trial court agreed with

       Robinson and entered summary judgment accordingly. This appeal ensued.


                                       Discussion and Decision
                                        Issue One: Motion to Dismiss

[11]   On appeal, we first address the Commission’s argument that the trial court

       erred when it denied the Commission’s motion to dismiss. But the


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       Commission’s argument on appeal has no relationship to the argument it made

       in the trial court on its motion to dismiss. Compare Appellant’s Br. at 33-35 with

       Appellant’s App. Vol. II at 6-7. As such, the Commission has not preserved its

       argument on appeal for our review. E.g., Holleman v. Ind. Dep’t of Corr., 27

       N.E.3d 293, 297 (Ind. Ct. App. 2015).


[12]   Nonetheless, in its motion to dismiss, the Commission asserted that Robinson

       bore the burden to file the Commission’s record in the trial court within thirty

       days of the Commission’s decision, which he did not do. In support of that

       position, the Commission relied on Indiana Code Section 4-21.5-5-13(a), a

       provision within Indiana’s Administrative Orders and Procedures Act

       (“AOPA”). But AOPA does not apply here. Rather, Indiana Code Chapter

       36-8-3.5 applies. Indeed, aside from the plain text of the statutes within that

       Chapter, the Commission’s own Rules of Procedure expressly state that that

       Chapter applies in lieu of AOPA on judicial review. Appellant’s App. Vol. II at

       97-98. And Indiana Code Section 36-8-3.5-18(b)(5) directs that the

       Commission, not Robinson, bore the burden to file the Commission’s record in

       the trial court on judicial review. Accordingly, we reject the argument the

       Commission made to the trial court and affirm the trial court’s denial of the

       motion to dismiss.


                              Issue Two: Evidence on Summary Judgment

[13]   We next address the Commission’s argument that the trial court erroneously

       considered evidence on summary judgment that was not before the

       Commission. But we conclude that the Commission has also failed to preserve
       Court of Appeals of Indiana | Opinion 45A05-1706-PL-1414 | April 17, 2018   Page 6 of 12
       this issue for our review. It is well established that “[a] party that fails to make

       a timely objection” to the admission of evidence in the trial court on summary

       judgment “waives . . . the right on appeal to assert the admission of evidence as

       erroneous.” Hay v. Hay, 885 N.E.2d 21, 23 n.1 (Ind. Ct. App 2008) (quotation

       marks omitted). Here, not only did the Commission not object in the trial court

       to Robinson’s designation of evidence on summary judgment, the Commission

       affirmatively agreed with Robinson’s representation of facts to the trial court.1

       Tr. at 15-22. We hold that this issue is not properly before us, and we do not

       consider it.


                                Issue Three: Entry of Summary Judgment

[14]   We thus turn to the Commission’s argument that the trial court erred when it

       entered summary judgment for Robinson. We review summary judgment

       applying the same standard as the trial court: “summary judgment is

       appropriate ‘if the designated evidentiary matter shows that there is no genuine

       issue as to any material fact and that the moving party is entitled to judgment as

       a matter of law.’” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting

       Ind. Trial Rule 56(C)). We limit our review to the materials designated at the

       trial level. Fraternal Order of Police, Lodge No. 73 v. City of Evansville, 829 N.E.2d




       1
         The Commission argues that its objection at a prior hearing in the trial court on the Commission’s motion
       to dismiss preserved its argument on appeal with respect to the evidence designated on summary judgment.
       We cannot agree. An objection must be contemporaneous to preserve an issue for appellate review. E.g.,
       Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000). The Commission further asserts that much of the
       complained-of evidence was not properly admitted before the Commission in Robinson’s appeal from the
       single hearing officer’s recommendation. Appellant’s Br. at 21. Aside from a single online newspaper article,
       however, the Commission’s reading of the record is incorrect. See Appellee’s App. Vol. 3 at 25.

       Court of Appeals of Indiana | Opinion 45A05-1706-PL-1414 | April 17, 2018                       Page 7 of 12
       494, 496 (Ind. 2005). Where the challenge to summary judgment raises a pure

       question of law, such as the interpretation of a statute, we review that question

       de novo. Ballard v. Lewis, 8 N.E.3d 190, 193 (Ind. 2014). Our goal in statutory

       interpretation is to determine the legislature’s intent, which, if the statute is

       unambiguous, we do by following the plain and ordinary meaning of the

       statute. E.g., Jones v. State, 87 N.E.3d 450, 454 (Ind. 2017).


[15]   As an initial matter, we note that the Commission has, it seems, abdicated the

       position it took on summary judgment in the trial court. Again, in the trial

       court, the Commission argued only that the 120-day timeframe in which to file

       a complaint under Commission Rule of Procedure II(7)(A) did not begin to run

       until after the State Police had informed Chief Ingram of the FBI’s

       substantiation of Robinson’s misuse of the NCIC and IDACS databases. On

       appeal, however, the Commission instead focuses on whether the facts before

       the trial court on summary judgment were properly admitted and whether those

       facts defeat judgment as a matter of law for Robinson.2 But, as explained

       above, the Commission did not preserve a challenge to the facts for appellate

       review, and instead the Commission expressly conceded to the trial court that

       Robinson’s representation of the facts was “accurate.” Tr. at 21-22. As such,

       the Commission’s argument on appeal that the trial court’s entry of summary




       2
         In its argument, the Commission not only cites but substantially relies on a not-for-publication
       memorandum decision of this Court. We remind counsel for the Commission that such decisions “shall not
       be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the
       case.” Ind. Appellate Rule 65(D).

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       judgment is erroneous based on the Commission’s newfound reading of the

       record is without merit, and we do not consider it.


[16]   Nonetheless, the argument the Commission made to the trial court deserves our

       review, and Robinson cogently addresses that argument in his brief to this

       Court. Accordingly, we exercise our discretion to review the merits of the trial

       court’s judgment on that argument.


[17]   This issue turns on the interpretation of Commission Rule of Procedure

       II(7)(A). That Rule states:


               Except as otherwise provided, disciplinary proceedings must be
               commenced within one-hundred and twenty (120) days from the
               date the alleged misconduct is discovered. Disciplinary proceedings
               against a police officer are barred after the expiration of two (2)
               years from the date of the occurrence of the alleged misconduct,
               unless the misconduct would, if proved in a court of law,
               constitute a felony or a Class A misdemeanor in which case the
               disciplinary proceedings may be commenced at any time.


       Appellant’s App. Vol. II at 79 (emphasis added). According to Robinson, the

       120-day requirement began to run on March 1, 2013, when Chief Ingram

       transferred Robinson to a different division of the GPD based on Robinson’s

       alleged misuse of the NCIC and IDACS databases. According to the

       Commission’s argument in the trial court, however, the 120-day requirement

       began to run on October 15, 2013, when the State Police first informed Chief

       Ingram that the FBI had substantiated the allegations against Robinson. In

       agreeing with Robinson’s interpretation in its order on summary judgment, the


       Court of Appeals of Indiana | Opinion 45A05-1706-PL-1414 | April 17, 2018     Page 9 of 12
       trial court applied reasoning from our medical malpractice case law to conclude

       that the 120-day requirement began to run when “the City of Gary knew or

       learned of facts that, in the exercise of reasonable diligence, should have led [it]

       to the discovery of the alleged misconduct.” Id. at 143-44 (discussing Jeffrey v.

       Methodist Hosps., 956 N.E.2d 151, 159 (Ind. Ct. App. 2011)).


[18]   We agree with the Commission’s argument in the trial court for two

       independent reasons. First, while the trial court’s analogy to medical

       malpractice cases might well have been persuasive in a vacuum, here we have

       an agency’s interpretation of its own rules, which is entitled to “great weight.”

       Andy Mohr West v. Off. of Ind. Sec’y of State, 54 N.E.3d 349, 353 (Ind. 2016).

       Specifically, the Commission’s interpretation of Rule II(7)(A) provides that the

       phrase “the date the alleged misconduct is discovered” refers to the date an

       allegation is substantiated by an investigation. Further, the Commission’s

       interpretation is reasonable and not inconsistent with the language of the Rule

       itself. As such, the judiciary must “stop our analysis and need not move

       forward with any other proposed interpretation.” Id.


[19]   Second, under Robinson’s reading of Rule II(7)(A), “discovered” means the

       same date as the date of the allegation. That is, Robinson reads the Rule to say,

       in effect, that a complaint must be filed within 120 days of the date “the alleged

       misconduct is alleged.” Had the intent of the drafters of the Rule been to start

       the 120-day clock on the date of an allegation, we think the Rule would have

       more plainly stated as much. See, e.g., State v. Prater, 922 N.E.2d 746, 750 (Ind.

       Ct. App. 2010) (“In interpreting a statute, we must consider not only what the

       Court of Appeals of Indiana | Opinion 45A05-1706-PL-1414 | April 17, 2018   Page 10 of 12
       statute says but what it does not say.”) (alterations and quotation marks

       omitted), trans. denied.


[20]   Moreover, Robinson’s reading is simply not practical. As the Commission

       argued in the trial court, it receives reports of “alleged misconduct all the time

       on police officers. There has to be some type of investigation” before the City is

       required to consider filing a complaint. Tr. at 30. And, here, that investigation

       was not even an internal investigation; rather, the investigation was conducted

       by the FBI and the State Police and outside the control of the City and the

       GPD. As such, we agree with the Commission’s argument in the trial court

       with respect to the proper interpretation of Rule II(7)(A) and hold that the 120-

       day requirement began to run when the State Police first informed Chief

       Ingram that the FBI had substantiated the allegations against Robinson. We

       reverse the trial court’s entry of summary judgment for Robinson and remand

       for further proceedings not inconsistent with this opinion.3


                                                     Conclusion

[21]   In sum, we affirm the trial court’s denial of the Commission’s motion to dismiss

       and the court’s admission of evidence on summary judgment. However, we

       reverse the trial court’s entry of summary judgment for Robinson, and we

       remand for further proceedings not inconsistent with this opinion.




       3
         We note that the Commission’s argument on appeal is only that disputed facts preclude the entry of
       summary judgment, not that the Commission is entitled to summary judgment. Accordingly, we do not
       direct the entry of summary judgment for the Commission at this time.

       Court of Appeals of Indiana | Opinion 45A05-1706-PL-1414 | April 17, 2018                   Page 11 of 12
[22]   Affirmed in part, reversed in part, and remanded for further proceedings.


       Mathias, J., and Barnes, J., concur.




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