      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                     FILED
      this Memorandum Decision shall not be                                 Nov 06 2017, 8:42 am

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


      ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
      John F. Kautzman                                        Jim Brugh
      Edward J. Merchant                                      Logansport, Indiana
      Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Shawn Durham,                                           November 6, 2017
      Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                              09A04-1706-MI-1322
              v.                                              Appeal from the Cass Superior
                                                              Court
      Town of Galveston, Indiana                              The Honorable Richard A.
      Appellee-Defendant                                      Maughmer, Judge
                                                              Trial Court Cause No.
                                                              09D02-1609-MI-48



      Altice, Judge.


                                               Case Summary


[1]   Following a disciplinary hearing, the Galveston Town Board (the Board), by a

      3-2 vote, found that Shawn Durham committed eight of nine counts of

      Court of Appeals of Indiana | Memorandum Decision 09A04-1706-MI-1322 | November 6, 2017        Page 1 of 10
      insubordination and misconduct, and, as a result, terminated Durham’s

      employment as Town Marshall. Durham sought judicial review of the Board’s

      decision, arguing that the procedure employed by the Board violated his due

      process rights and that the evidence was insufficient to support the Board’s

      findings that he committed acts that amounted to insubordination and

      misconduct. The trial court rejected Durham’s arguments and affirmed the

      Board’s decision. On appeal, Durham argues only that the procedure employed

      by the Board violated his due process rights.


[2]   We affirm.


                                       Facts & Procedural History


[3]   The Board, composed of five members, is the legislative body of the Town of

      Galveston and also operates as the safety board for police department purposes.

      See Ind. Code § 36-8-3-4(a). In 2012, the Board appointed Durham as Town

      Marshal. See Ind. Code § 36-5-7-2 (“[t]he town legislative body shall appoint a

      town marshal”). In that capacity, Durham served at the pleasure of the Board.

      See I.C. § 36-5-7-3. The Board had legal authority to discipline Durham by

      dismissal upon determining that he was guilty of a violation of rules, neglect or

      disobedience of orders, conduct unbecoming an officer, or another breach of

      discipline. See I.C. § 36-8-3-4(b)(B), (C), (H), (I).


[4]   On or about July 26, 2016, the Board passed, by a 3-2 vote, Resolution No.

      2016-02 in which the Board terminated Durham from his position as Town

      Marshal. On July 28, 2016, Durham filed a motion to set aside his termination

      Court of Appeals of Indiana | Memorandum Decision 09A04-1706-MI-1322 | November 6, 2017   Page 2 of 10
      on grounds that he was entitled to a hearing before his dismissal. See I.C. § 36-

      5-7-3 (“before terminating or suspending a marshal who has been employed by

      the town for more than six (6) months after completing the minimum basic

      training requirements . . . the legislative body must conduct the disciplinary

      removal and appeals procedure prescribed by IC 36-8,” which includes written

      notice of disciplinary charges and notice of right to a hearing).


[5]   On or about August 1, 2016, the Board acknowledged its error and passed

      Resolution No. 2016-03 in which it rescinded Durham’s termination and set out

      in writing nine disciplinary charges against Durham. The two board members

      who opposed Resolution No. 2016-02 recused themselves from the vote on

      Resolution No. 2016-03.


[6]   In chronological order, the events underlying the nine charges of misconduct

      and insubordination presented against Durham are as follows. In Count VII, it

      was alleged that on May 2, 2016, Durham surreptitiously recorded his

      conversation with board members John Hart and James Jackson and later

      released that information, out of context, at the Board’s June 2, 2016 meeting.

      Count VIII alleged that at the June 2 board meeting, Durham committed

      misconduct when he used profane language in the presence of the public and

      that such conduct amounted to insubordination as to board member Jackson

      specifically.


[7]   In Counts I through IV, it was alleged that Durham was guilty of

      insubordination when, on June 6, 2016, he refused to comply with Hart’s


      Court of Appeals of Indiana | Memorandum Decision 09A04-1706-MI-1322 | November 6, 2017   Page 3 of 10
      demands that he give the Board the keys to the police department building and

      vehicles, passwords to police department computers, and the code to the police

      department camera system.


[8]   In Count V, it was alleged that on June 8, 2016, Hart requested access to

      recordings from the police department’s surveillance system in relation to

      possible misuse or abuse of town property and that Durham was guilty of

      insubordination because he refused to grant Hart access. Also on June 8,

      Durham conducted a meeting of reserve officers at the Town’s police

      department despite being directed by the Board in February 2016 to discontinue

      use of reserve officers. Durham had also previously engaged a reserve officer to

      accompany him in the Town’s police vehicle to perform police functions on or

      about March 20, 2016, despite the Board’s February directive. Based on these

      events, Durham was charged with insubordination under Count VI. Finally, in

      Count IX, it was alleged that Durham committed misconduct by appearing on

      and providing misleading information to the public through a local media

      outlet.


[9]   Durham timely requested a hearing on the disciplinary charges. Prior to the

      hearing, Durham, by counsel, filed a motion for recusal with the Board seeking

      to disqualify Hart and Jackson from serving as voting members of the Board

      because either Hart or Jackson were specifically named in seven of the nine

      disciplinary charges and presumably were going to be witnesses against him.

      Durham argued that Hart and Jackson’s involvement in the conduct giving rise

      to the disciplinary charges made it “impossible for [them] to sit as unbiased and

      Court of Appeals of Indiana | Memorandum Decision 09A04-1706-MI-1322 | November 6, 2017   Page 4 of 10
       impartial triers of fact” when the matter was to be decided by the Board.

       Appellant’s Appendix Vol. II at 45. The Board, by counsel, denied Durham’s

       motion.


[10]   On August 24, 2016, a disciplinary hearing was held. Durham renewed his

       request that Hart and Jackson be disqualified from participating as voting

       members of the Board. The hearing officer, however, permitted Hart and

       Jackson to testify against Durham and sit as part of the Board in deciding the

       matter. After the hearing, the Board issued findings of fact and conclusions of

       law as Resolution No. 2016-04. By a 3-2 vote, with Hart and Jackson and one

       other board member voting in favor, Durham was found guilty of eight of the

       nine charges1 of misconduct and insubordination and was terminated from his

       position as Town Marshal. See I.C. § 36-5-2-13 (“[t]he town executive must

       have the approval of a majority of the town council before the executive may

       discharge . . . or remove a town employee”).


[11]   Durham sought judicial review of the Board’s action, arguing that the

       procedure employed by the Board, i.e., permitting Hart and Jackson to

       participate as voting members of the Board on the instant matter after they

       testified against him, violated his due process rights in that he was denied a fair

       and impartial hearing. Durham also argued that the evidence did not support

       the determination that he engaged in misconduct or insubordination. The trial



       1
        By a 5-0 vote, the Board found Durham not guilty of the allegations contained in Count IX, which
       concerned Durham’s comments to a local media outlet.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1706-MI-1322 | November 6, 2017       Page 5 of 10
       court affirmed the decision of the Board. Additional facts will be provided as

       needed.


                                           Discussion & Decision


[12]   Durham’s sole challenge on appeal is that the Board violated his due process

       rights when board members Hart and Jackson were permitted to testify

       regarding the alleged insubordination and misconduct and then sit as voting

       members of the Board in deciding the instant disciplinary action.


[13]   As our Supreme Court has noted:


               Due process requires a neutral, or unbiased, adjudicatory
               decisionmaker. Scholars and judges consistently characterize
               provision of a neutral decision-maker as one of the three or four
               core requirements of a system of fair adjudicatory
               decisionmaking. . . . The problem lies in defining and applying
               the neutral decision-maker requirement. Some forms of bias are
               permissible, even desirable, in a decision-maker. Other forms of
               bias are impermissible.


       Rynerson v. City of Franklin, 669 N.E.2d 964, 967 (Ind. 1996) (internal citations

       omitted). Nevertheless, it is “imperative that a strict test of impartiality be

       applied to the factfinding process. Id. (quoting City of Mishawaka v. Stewart, 261

       Ind. 670, 677-78, 310 N.E.2d 65, 69 (1974)).


[14]   We acknowledge that proceedings before administrative bodies are not required

       to be conducted with all of the procedural safeguards afforded by judicial

       proceedings, even when such proceedings are judicial in nature. Stewart, 261


       Court of Appeals of Indiana | Memorandum Decision 09A04-1706-MI-1322 | November 6, 2017   Page 6 of 10
       Ind. at 676, 310 N.E.2d at 68. We accept a lower standard in proceedings

       before quasi-judicial bodies because it would be unworkable to do otherwise.

       Id. There are, nevertheless, standards below which we should not go. Id.

       These standards, logically, should be at the highest level that is workable under

       the circumstances. Id.


[15]   Durham directs us to two cases as controlling the outcome of this case: Stewart

       and City of Hammond v. State ex rel. Jefferson, 411 N.E.2d 152 (Ind. Ct. App.

       1980). In Stewart, the Court held that it was a violation of due process for the

       city’s attorney to both prosecute the disciplinary complaint against the

       firefighter as well as chair the board responsible for adjudicating guilt and

       imposing sanctions. For the Court, “the appearance of bias arising from the

       duality . . . overshadow[ed] the actualities . . . to such extent as to invalidate the

       proceedings.” Stewart, 261 Ind. at 680, 310 N.E.2d at 70. The same result was

       reached in Hammond, wherein the court determined that it was improper for the

       city attorney to sit on the safety board as a decisionmaker even though an

       assistant city attorney prosecuted the disciplinary action. 411 N.E.2d at 154.

       The Hammond court noted that even though the city attorney did not personally

       assume conflicting roles, the appearance of impropriety was evident. Id.


[16]   Durham likens Hart and Jackson’s dual roles as material witnesses and

       decisionmakers to that of the city attorneys in Stewart and Hammond. The

       decisive factor in Stewart and Hammond, however, was the appearance of bias or

       impartiality created by the dual role of the city attorney as a prosecutor and

       decisionmaker in the same matter. This is not the case here. Hart and Jackson
       Court of Appeals of Indiana | Memorandum Decision 09A04-1706-MI-1322 | November 6, 2017   Page 7 of 10
       were not prosecuting the action, but were merely witnesses to Durham’s

       conduct. Indeed, the evidence in support of some of the disciplinary charges

       could only come from Hart or Jackson’s testimony. In short, the decisions in

       Stewart and Hammond do not support Durham’s position.


[17]   We next address Durham’s claim that his due process rights were violated

       because Hart and Jackson were unable to serve as impartial members of the

       Board. Durham repeatedly describes the procedure employed as being

       “tantamount to having a member of a jury step out of the jury box temporarily

       to become a member of the prosecution team, and then return to the jury box

       for the decision-making process.” Appellant’s Brief at 12. He maintains that it

       was improper for Hart and Jackson to serve in dual roles—as material witnesses

       and as decision-makers.


[18]   Although not attorneys, Hart and Jackson did serve dual roles. A contention

       that the combination of investigative and administrative functions in the same

       individuals violated due process has to “‘overcome a presumption of honesty

       and integrity in those serving as adjudicators.’” Rynerson, 669 N.E.2d at 968

       (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). An inquiry into whether

       the combination of investigative and adjudicative functions violates due process

       is “subject to the presumption that the members of the board are persons of

       ‘conscience and intellectual discipline, capable of judging the particular

       controversy fairly’ and will act with ‘honesty and integrity.’” Id. (quoting

       Withrow, 421 U.S. at 55). Just as a judge must act with fairness and

       impartiality, a tribunal must act with fairness and impartiality. See Stewart, 261

       Court of Appeals of Indiana | Memorandum Decision 09A04-1706-MI-1322 | November 6, 2017   Page 8 of 10
       Ind. at 677, 310 N.E.2d at 69. In the absence of “a demonstration of actual

       bias,” we will not interfere with the administrative process. Ripley Cty. Bd. of

       Zoning Appeals v. Rumpke of Ind., Inc., 663 N.E.2d 198, 209 (Ind. Ct. App. 1996).


[19]   To prove actual bias, a party must “establish from the [Board’s] conduct actual

       bias or prejudice that places [him] in jeopardy.” Tharpe v. State, 955 N.E.2d

       836, 839 (Ind. Ct. App. 2011). One may not merely allege bias and prejudice

       against a tribunal to escape the rigors of normal administrative procedure. New

       Trend Beauty Sch., Inc. v. Ind. State Bd. of Beauty Culturist Examiners, 518 N.E.2d

       1101, 1105 (Ind. Ct. App. 1988). Even if bias exists, however, “‘we must

       presume the Board will act properly with or without recusal of the allegedly

       biased members.’” Adkins v. City of Tell City, 625 N.E.2d 1298, 1303 (Ind. Ct.

       App. 1993) (quoting New Trend Beauty School, Inc. v. Ind. State Bd. Of Beauty

       Culturist Exam’rs, 518 N.E.2d 1101, 1105 (Ind. Ct. App. 1988)).


[20]   Here, although the trial court noted its concerns that “substantial hostility exists

       between four of Galveston’s board members”, the court did not note any

       evidence indicating actual bias against Durham. Appellant’s Appendix Vol. II at

       7. Contrary to Durham’s claim, the fact that Hart and Jackson were witnesses

       to Durham’s conduct and testified to such does not, in and of itself,

       demonstrate actual bias on their behalf. See Adkins, 625 N.E.2d at 1303 (noting

       that “prior involvement in an investigation does not automatically bias or

       disqualify a safety board”). Durham was afforded a hearing on the disciplinary

       charges against him at which he was given the opportunity to cross-examine

       both Hart and Jackson. There is nothing in the record that indicates actual bias

       Court of Appeals of Indiana | Memorandum Decision 09A04-1706-MI-1322 | November 6, 2017   Page 9 of 10
       on behalf of Hart and Jackson such that recusal was necessary. Indeed,

       diminishing Durham’s claim of bias is that, as noted above, both Hart and

       Jackson voted to find Durham not guilty of the misconduct alleged in Count

       IX. In sum, the procedure employed by the Board, i.e., permitting Hart and

       Jackson to testify during the disciplinary hearing and also decide the matter, did

       not violate Durham’s due process rights.2


[21]   Judgment affirmed.


       Baker, J. and Bailey, J., concur.




       2
         The trial court relied upon the rule of necessity in concluding that the procedure employed by the Board did
       not violate Durham’s due process rights. Having concluded that there has been no showing of actual bias
       and thus, that there were no grounds upon which to disqualify Hart and Jackson, we need not address the
       rule of necessity.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1706-MI-1322 | November 6, 2017         Page 10 of 10
