      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                       FILED
      this Memorandum Decision shall not be                                   Mar 06 2020, 9:51 am
      regarded as precedent or cited before any
                                                                                   CLERK
      court except for the purpose of establishing                             Indiana Supreme Court
                                                                                  Court of Appeals
      the defense of res judicata, collateral                                       and Tax Court

      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Eric C. Welch                                            Ana M. Quirk
      Craig Beougher                                           Quirk & Hunter, PC
      Welch & Co., LLC                                         Muncie, Indiana
      Muncie, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Kevin D. Johanns,                                        March 6, 2020
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               19A-PL-2695
              v.                                               Appeal from the
                                                               Delaware County Circuit Court
      City of Muncie Fire Merit                                The Honorable
      Commission,                                              John M. Feick, Judge
      Appellee-Defendant.                                      Trial Court Cause No.
                                                               18C04-1901-PL-10



      Kirsch, Judge.


[1]   Kevin D. Johanns (“Johanns”) appeals the trial court’s order upholding the

      decision of the City of Muncie Fire Merit Commission (“the Commission”) to



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2695 | March 6, 2020                    Page 1 of 11
      terminate his employment as a firefighter for the City of Muncie. He raises the

      following restated issues for our review:


              I.       Whether the trial court misapplied the standard of review
                       and erred in upholding the decision of the Commission
                       because the decision was arbitrary and capricious and not
                       supported by the evidence; and


              II.      Whether Johanns’s due process rights were violated
                       because the City Attorney prosecuted the disciplinary case
                       against him while simultaneously acting as the
                       Commission’s counsel throughout the proceedings.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Johanns joined the Muncie Fire Department (“the Department”) as a firefighter

      on May 2000 and served the required one-year probation period, ending May

      22, 2001. Throughout his employment as a firefighter, he struggled to comply

      with the applicable rules and regulations. On numerous occasions between

      January 1, 2004 and December 31, 2008, Johanns reported late to work and

      was given verbal and written reprimands. Between January 1, 2010 and

      December 31, 2010, Johanns reported late to work and called in sick after the

      scheduled time to do so numerous times and was again given both verbal and

      written reprimands.


[4]   In 2012, Johanns was a driver for the Department. On multiple occasions, he

      had difficulty locating the addresses to which the firefighters were dispatched


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2695 | March 6, 2020   Page 2 of 11
      for emergency calls; failed or refused to listen to directions provided by other

      firefighters; narrowly avoided traffic accidents; and caused his fire truck to be

      late to emergency calls. In addition, at various times, Johanns had difficulty

      hooking his truck to water and pump apparatus.


[5]   In 2012, Johanns was assigned to Battalion Chief Clevenger (“Clevenger”). On

      multiple occasions, he was absent without leave or called in sick. He was given

      a one-day suspension for being unable to perform his duties. Johanns was

      unable to locate emergency scenes, failed to locate proper addresses, drove to

      wrong locations, was unable to operate the vehicles properly once he arrived at

      an emergency scene, and went the wrong way to the hospital. Clevenger

      testified that Johanns’s promptness and attendance were worse than anyone

      that he was aware of in his thirty-year history on the department. Appellant’s

      App. Vol. II at 48.


[6]   During this period of time, Johanns was assigned to Fire Station #5. Although

      the station was around the corner from the hospital, Johanns was unable to find

      the hospital while driving emergency vehicles. On three separate occasions,

      Johanns was taken off the apparatus that he was attempting to operate because

      he could not properly perform his duties.


[7]   Between January 1, 2013 and May 15, 2014, Johanns was unable to perform his

      duties and had to be relieved of his duties on the ground by another firefighter.

      He continued to be unable to fulfill his duties as a firefighter, to call in sick, and




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2695 | March 6, 2020   Page 3 of 11
       to be late to his shift. He also continued to have difficulty with driving and

       locating addresses and was involved in a minor accident with a school bus.


[8]    On January 26, 2016, Johanns was suspended without pay for one calendar day

       for absent without leave; in February 2016, he was reprimanded because he

       could not find the hospital while driving an emergency vehicle; and in April

       2016, he was suspended without pay for three calendar days for being absent

       without leave. In addition, at various times from January 1, 2018 to April 1,

       2018, Johanns failed to report for duty by the designated time and failed to

       contact Clevenger. In March 2017, he was suspended without pay for five

       calendar days and for seven calendar days for being absent without leave.


[9]    On May 18, 2018, the Fire Chief for the City of Muncie (“the Chief”), Eddie

       Bell, filed a Verified Disciplinary Complaint against Johanns. Hearings were

       held by the Commission on October 17, 2018 and December 20, 2018. On

       January 10, 2019, the Commission decided to terminate Johanns’s

       employment.


[10]   On January 17, 2019, Johanns filed a Verified Complaint for Declaratory

       Relief. The Commission filed its answer on March 13, 2019 and its Motion for

       Judgment on the Evidence on September 10, 2019. Johanns filed his Response

       and Counter Motion for Judgment on the Evidence on September 21, 2019. On

       October 22, 2019, the trial court issued its Order upholding the decision of the

       Commission. Johanns now appeals.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2695 | March 6, 2020   Page 4 of 11
                                      Discussion and Decision

                                        I.       Sufficient Evidence
[11]   On appeal, Johanns contends that the trial court erred in upholding the

       Commission’s decision to terminate him. Specifically, he argues that the

       Commission’s decision was arbitrary, capricious, an abuse of discretion,

       unsupported by the evidence, and in excess of statutory authority. Johanns

       asserts that the evidence presented did not support the Commission’s decision

       to terminate his employment and that his termination was consistent with the

       discipline administered to other similarly situated firefighters.


[12]   Judicial review of administrative decisions is very limited. Gray v. Cty. Of

       Starke, 82 N.E.3d 913, 917 (Ind. Ct. App. 2017), trans. denied. We give

       deference to the expertise of the administrative body. Id. Discretionary

       decisions of administrative bodies, including those of merit commissions, are

       entitled to deference absent a showing that the decision was arbitrary and

       capricious, or an abuse of discretion, or otherwise not in accordance with law.

       Winters v. City of Evansville, 29 N.E.3d 773, 778 (Ind. Ct. App. 2015), trans.

       denied. Our review is limited to determining whether the administrative body

       adhered to proper legal procedure and made a finding based upon substantial

       evidence in accordance with appropriate constitutional and statutory

       provisions. Id. The reviewing court does not substitute its judgment for that of

       the administrative body, or modify a penalty imposed in a disciplinary action,

       absent a showing that the action was arbitrary and capricious. Id.



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2695 | March 6, 2020   Page 5 of 11
[13]   “‘An arbitrary and capricious decision, which the challenging party bears the

       burden of proving, is a decision which is willful and unreasonable, made

       without any consideration of the facts and in total disregard of the

       circumstances, and lacks any basis which might lead a reasonable and honest

       person to the same decision.’” Gray, 82 N.E.3d at 917 (quoting Bird v. Cty. Of

       Allen, 639 N.E.2d 320, 328 (Ind. Ct. App. 1994)). Substantial evidence is such

       relevant evidence as a reasonable mind might accept as being adequate to

       support a conclusion. Id. We do not reweigh the evidence upon review. Id.


[14]   Indiana Code section 36-8-3-4 provides for the disciplinary powers of safety

       boards in cities. The statute provides in pertinent part that a member of the fire

       department may be disciplined by demotion, dismissal, reprimand, forfeiture, or

       suspension upon a finding and decision of the safety board that the member has

       been or is guilty of neglect of duty, neglect or disobedience of orders, or absence

       without leave. Ind. Code § 36-8-3-4(b)(2)(A), (C), (E).


[15]   Here, Johanns was hired as a firefighter in 2001. Following his probationary

       period, he quickly progressed as a firefighter and was promoted to the rank of

       sergeant in 2007. Thereafter, his performance deteriorated. Since 2012,

       Johanns had issues with reporting for work. A summary of Johanns’s

       attendance and disciplinary actions from 2013 to 2018 was introduced during

       the hearing. Appellant’s App. Vol. II at 109-113. Over that time period, there

       were multiple instances of Johanns being absent without leave. The

       Department had attempted to progressively discipline Johanns beginning with



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2695 | March 6, 2020   Page 6 of 11
       reprimands and continuing to a suspension of seven days without pay. Id. at

       51-52, 77.


[16]   In addition to his problems with attendance, Johanns could not fulfill his duties

       as a firefighter. He was unable to locate emergency scenes; his driving was

       unsafe; he was unable to operate fire apparatus at the scene of a fire; and he

       failed to obey his officers’ directions. At one point, although he was stationed

       at the fire station located across the street from the hospital, Johanns could not

       find his way to the hospital while driving an ambulance after firefighters had

       pulled a person out of a burning structure, which put the person’s life at risk.

       Id. at 50, 64. He consistently did not know the driving directions to emergency

       locations. As forms of discipline, Johanns was reduced in rank, moved to other

       stations, and given multiple days off work without pay. At one point, he was

       also prohibited from driving or operating any vehicle during emergency

       situations. Further, Johanns was unable to pump his fire truck in order to

       obtain water to fight fires, which endangered firefighters at the other end of the

       hose because they needed water to fight the fires. Id. at 50. He was also unable

       to operate the aerial apparatus and other special pieces of equipment. Id. at 50,

       78.


[17]   Furthermore, Johanns earned failing scores on his job performance evaluations

       in 2013, 2014, 2015, and 2016. Id. at 51-52. He only passed the job

       performance evaluation in 2017 because he was no longer given any

       responsibilities with his job. Id. at 52. His rank had been reduced, he was not



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2695 | March 6, 2020   Page 7 of 11
       driving emergency vehicles, and he was no longer using the pumping

       equipment. Id.


[18]   Clevenger testified that Johanns’s ability on the job, his general promptness and

       attendance at work, and his disciplinary issues were worse than anyone else in

       his thirty-year history in the Department. Id. at 48, 53, 55. Johanns had

       received more individual training, more tutoring, more retraining than anyone

       else in the department which was not common for a seventeen-year veteran. Id.

       at 54. Clevenger believed that Johanns was treated fairly and equally with

       other members of the Department. Id. at 55.


[19]   We, therefore, conclude that there was substantial, relevant evidence presented

       to support the decision by the Commission to terminate Johanns’s employment.

       The evidence presented was sufficient to lead a reasonable person to support the

       conclusion to terminate the employment of Johanns, and the decision was not

       arbitrary and capricious. The trial court did not err in upholding the

       Commission’s decision.


                                              II.      Due Process
[20]   Johanns contends that he was deprived of his due process rights at the

       Commission’s hearing. He contends that his hearing was fundamentally flawed

       because the attorney for the Commission was also the City Attorney

       prosecuting the matter. Johanns maintains that there was a conflict of interest

       where the City Attorney acted as an advocate for the position of the



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2695 | March 6, 2020   Page 8 of 11
       Department in prosecuting the disciplinary actions against Johanns while

       simultaneously representing the Commission which is the factfinder in the case.


[21]   Due process requires a neutral, or unbiased, adjudicatory decision maker.

       Torres v. City of Hammond, 12 N.E.908, 909 (Ind. Ct. App. 2014). 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 decision

       making. Id. (citing Rynerson v. City of Franklin, 669 N.E.2d 964, 967 (Ind.

       1996)).


[22]   In Rynerson v. City of Franklin, which dealt with a disciplinary hearing against a

       police officer conducted by the City of Franklin Board of Public Works and

       Safety, our Supreme Court found no due process violation and upheld the

       termination where the city attorney was also a member of the Board of Public

       Works and Safety but recused himself from the board for the hearing. 669

       N.E.2d at 966. There, the city attorney prosecuted the case against the police

       officer after having temporarily recused himself from his position on the board.

       Id. The remaining members of the board determined that the police officer was

       guilty of conduct unbecoming an officer and neglect of duty and terminated the

       police officer’s employment with the department. Id.


[23]   In Torres v. City of Hammond, this court found that Torres did not have the

       benefit of an impartial decision maker in a proceeding before a city board where

       the city attorney served on the board, and the case was argued by the assistant

       city attorney. 12 N.E.3d at 910. Our court found Rynerson inapposite because


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2695 | March 6, 2020   Page 9 of 11
       the city attorney in Rynerson had recused himself from the board and did not

       participate in the proceedings before the board. Id. But, in Torres, the assistant

       city attorney argued the case before a board on which the city attorney

       participated as a member and in the decision-making process. Id. Therefore,

       the city attorney’s office participated in both the prosecution of the case and the

       decision-making process, and this court found that Torres’s due process rights

       were violated. Id.


[24]   Here, the city attorney was not a member of the Commission and had no

       decision-making power with the Commission. Johanns was afforded an

       opportunity to have a hearing before the Commission and was represented by

       an attorney at each stage of the proceeding. He was given the opportunity to

       present evidence and witness testimony at the hearing before the Commission.

       The Commission found that Johanns’s overall performance as a firefighter was

       poor, that he neglected his duties as a firefighter, disobeyed orders, and was

       absent without leave and concluded that Johanns’s employment should be

       terminated. The city attorney did not participate in the determination of the

       factual issues or vote upon the decision to terminate Johanns. We, therefore,

       conclude that Johanns’s due process rights were not violated by the city

       attorney prosecuting the charges against him even though he acted as attorney

       for the Commission when the city attorney was not a member of the

       Commission and did not participate in the decision-making process.


[25]   In conclusion, the decision of the Commission terminating the employment of

       Johanns was supported by sufficient evidence, the trial court did not err in

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2695 | March 6, 2020   Page 10 of 11
       affirming it, and Johanns’s due process rights were not violated by the city

       attorney.


[26]   Affirmed.


       Bailey, J., and Mathias, J., concur.




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