Smith v. Cnty. of Hancock
| Decision Date | 27 June 2013 |
| Docket Number | No. 33A04–1212–MI–626.,33A04–1212–MI–626. |
| Citation | 990 N.E.2d 68 |
| Parties | Jacob K. SMITH, Appellant–Petitioner, v. COUNTY OF HANCOCK, Indiana, Appellees–Respondent. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Henry Circuit Court; The Honorable Mary G. Willis, Judge; Cause No. 33C01–1207–MI–82.
John F. Kautzman Edward J. Merchant Ruckelshaus Kautzman Blackwell Bemis & Hasbrook Indianapolis, IN, Attorneys for Appellant.
David W. Stone, IV, Stone Law Office & Legal Research, Anderson, IN, Gregg Morelock, Brand & Morelock, Greenfield, IN, Attorneys for Appellee.
Jacob Smith was dismissed from the Hancock County Sheriff's Department (the “Department”) following a hearing of the Hancock County Sheriff's Merit Board (the “Merit Board”) on charges of misconduct. Smith appeals the trial court's decision onjudicial review affirming the Merit Board's termination of his employment, raising the following consolidated and restated issue for our review: whether he was denied due process in the conduct of the disciplinary proceedings leading to his termination. Concluding he was afforded appropriate due process, we affirm the judgment of the trial court.1
Since at least September of 2010, Smith has been a member of the Department. During that time, he was romantically involved off-and-on with Audrey Swift. In September of 2010, Smith was disciplined with a five-day suspension for uninvited and abusive—both in tone and frequency—contact with Swift. In June of 2011, he was disciplined with a two-day suspension for continued abusive contact with Swift after being given a direct order by a superior not to contact her. Beginning on February 2, 2012, and into the following day, including while he was on duty, Smith made multiple phone calls and sent multiple texts to Swift while still subject to the no-contact order and after having been asked by Swift to stop communicating with her. The texts and phone calls were abusive and threatening. Swift contacted the police and Smith made two phone calls to Swift that the officers who arrived to take her complaint heard over speakerphone.
On February 3, 2012, a Formal Action Notice was filed with Hancock County Sheriff Michael Shepherd regarding Smith's conduct. Sheriff Shepherd directed Captain Kevin Haggard to conduct an internal investigation of Smith's actions. Simultaneously, the Greenfield Police Department was conducting a criminal investigation. Captain Haggard began the internal investigation on February 6, 2012, when he obtained a copy of the Greenfield Police Department offense report. On February 8, 2012, Smith gave a statement to Captain Haggard in the internal investigation in which he admitted, among other things, contacting Swift while on duty on February 2. On February 24, 2012, Sheriff Shepherd filed Written Charges to Discharge with the Merit Board, alleging Smith had violated several rules of conduct and objectives of the Department Rules and Regulations. A hearing was scheduled for March 16, 2012, before the Merit Board.
On March 2, 2012, the State charged Smith with official misconduct, a Class D felony; intimidation, a Class A misdemeanor; and harassment, a Class B misdemeanor. On March 8, 2012, Smith filed with the Merit Board a Motion for Stay of Disciplinary Hearing Pending Disposition of Criminal Charges. On March 15, 2012, no ruling having been made on that motion, Smith also filed an Emergency Motion for Continuance. The Merit Board did not make a decision on those motions until immediately prior to the hearing on March 16, at which time it denied the motions. Smith's counsel then stated:
Respectfully, given the criminal charges my client faces I cannot advise my client to voluntarily submit to this process. He does have Fifth Amendment rights. I do not believe you can receive a fair hearing without his testimony at this setting. However, given those criminal charges he cannot offer that testimony and I cannot advise him to offer that testimony. And therefore we will not participate in this hearing given those criminal charges until the charges have been disposed of within the Court system.
Appendix of Appellant at 6–7. After a lengthy discussion, Smith's counsel again stated that he could not advise his client to participate in the hearing because Id. at 20. The record reflects that Smith and his counsel left, and the hearing proceeded in their absence, with several witnesses testifying. On March 22, 2012, the Merit Board again convened in public session and voted to terminate Smith's employment with the Department, concluding he had violated several Department rules of conduct and objectives.
Smith thereafter filed a timely complaint and petition for judicial review of the Merit Board's decision. Following argument on the petition, the trial court entered the following order, in pertinent part:
3. Review of the administrative decision of the [Merit Board] is limited to determining whether the agency's decision was based upon substantial evidence, was arbitrary and capricious, and whether it was contrary to any constitutional, statutory, or legal principle.
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6. The complaining witness testified at the Merit Board hearing along with six (6) other witnesses. The Merit Board considered twenty-four (24) properly admitted Exhibits including text messages from the cell phone of [Smith] at the evidentiary hearing held on March 16, 2012. The Court finds that this was a fair public hearing before the Merit Board pursuant to I.C. 36–8–10–11(a).
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8. [Smith's] counsel elected to not cross-examine witnesses at the hearing. [Smith's] counsel elected not to introduce his own witnesses for direct and cross-examination. [Smith's] counsel elected not to introduce exhibits and other tangible evidence. The Court finds that [Smith] was not excluded from the proceedings by any action of the [Merit] Board and this strategic decision on the part of [Smith] and his counsel to leave the proceedings did not deny [Smith] a fair hearing....
9. Although the allegations did involve an alleged criminal offense and charges were pending, [Smith] could have participated in the Merit Board hearing and preserved his rights against self-incrimination. The Court finds that there was no violation of the constitutional principles found in the 5th Amendment at the Merit Board proceedings.
10. The Court finds that the internal investigation was completed upon the filing of the Formal Written Charges to Discharge. The criminal charges were filed thereafter. The Court finds that there was not a violation of the principles outlined in the [Department's] Rules and Regulations.
11. The decision of the [Merit Board] terminating the employment of [Smith] was not arbitrary and capricious and was not in violation of any constitutional, statutory or legal principles. The decision of the [Merit Board] is affirmed.
Supplemental Appendix of Appellant at 5–7 (quotations and citations omitted). Smith now appeals the trial court's decision.
Judicial review of administrative decisions is very limited. Roberts v. Cnty. of Allen, 773 N.E.2d 850, 853 (Ind.Ct.App.2002), trans. denied. The reviewing court gives deference to the expertise of the administrative body and will not reverse the discretionary decisions of an administrative body, including those of police merit commissions, absent a showing that the decision was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. Id. “A decision is arbitrary and capricious when it is 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 make the same decision.” Id. The challenging party has the burden of proving a decision is arbitrary and capricious. Id.
Further, judicial 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. “Substantial evidence” is relevant evidence a reasonable mind might accept as adequate to support the conclusion. Id. The reviewing court may not substitute its judgment for that of the administrative body or modify a penalty imposed in a disciplinary action without a showing that such action was arbitrary and capricious, nor may it reweigh the evidence. Id.
The trial court initially reviewed the Merit Board's decision to terminate Smith's employment with the Department. We, in turn, review the trial court's decision affirming the Merit Board. In order to properly adjudge whether the initial review was erroneous, we necessarily look through its decision to consider the validity of the Merit Board's determination. City of Indianapolis v. Woods, 703 N.E.2d 1087, 1091 (Ind.Ct.App.1998), trans. denied. In so doing, we use the same standard which was required to be applied in the initial review, as to those facts and conclusions addressed by the Merit Board. Id.
The merit board statute, Indiana Code section 36–8–10–11, creates in sheriff's deputies a property interest in their jobs and entitles them to procedural due process protections. Marion Cnty. Sheriff's Merit Bd. v. Peoples Broad. Corp., 547 N.E.2d 235, 239 (Ind.1989). Because the tenure given a police officer is a constitutionally protected interest, police merit board hearings are administrative actions that, although less formal than civil proceedings, as a matter of due process require a full and fair hearing conducted in good faith before an impartial body. Fornelli v. City of Knox, 902 N.E.2d 889, 894 (Ind.Ct.App.2009), trans. denied. The extent of the process...
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