Winters v. City of Evansville

• Decision Date: 15 April 2015
• Docket Number: No. 82A01–1409–CT–378.,82A01–1409–CT–378.
• Citation: 29 N.E.3d 773
• Parties: Mike WINTERS, Appellant–Plaintiff, v. CITY OF EVANSVILLE, Appellee–Defendant.
• Court: Indiana Appellate Court

29 N.E.3d 773

Mike WINTERS, Appellant–Plaintiff

v.CITY OF EVANSVILLE, Appellee–Defendant.

No. 82A01–1409–CT–378.

Court of Appeals of Indiana.

April 15, 2015.

Charles L. Berger, Berger & Berger, LLP, Evansville, IN, Attorney for Appellant.

Keith W. Vonderahe, Clay W. Havill, Molly E. Briles, Ziemer Stayman Weitzel & Shoulders, LLP, Evansville, IN, Attorneys for Appellee.

CRONE, Judge.

Case Summary

[1] While working a second job as a school security officer, Corporal Mike Winters, a thirty-year veteran of the Evansville Police Department (“EPD”), grabbed a sixteen-year-old student's crotch in an apparently misguided attempt to teach him about the dangers of fighting. The student's family did not press criminal charges but did file an internal affairs complaint against Winters. EPD's chief issued a personnel order finding that Winters committed eight violations of EPD's rules and regulations, suspending him for twenty-one days without pay, and recommending his termination. Winters appealed the order to the Evansville Police Merit Commission (“the Merit Commission”). After a disciplinary hearing, the three-member Merit Commission found that Winters committed seven of the eight rule violations, and it voted two to one to affirm his suspension and terminate his employment with EPD. Winters appealed the decision by filing a complaint against the City of Evansville (“City”) in the trial court. Both parties moved for summary judgment. The trial court granted the City's motion and denied Winters's motion.

[2] On appeal, Winters contends that the Merit Commission's decision is not supported by substantial evidence and is arbitrary and capricious, which is another way of saying that the decision is patently unreasonable. Winters raises three issues: (1) the chief's motivation for seeking termination was improper; (2) the two commissioners who voted in favor of termination based their decision on improper considerations; and (3) the punishment is disproportionate to the conduct. We resolve these issues as follows: (1) because the chief did not participate in the Merit Commission's decision to terminate Winters, his motivation for seeking termination is irrelevant; (2) the commissioners did not base their decision on improper considerations; and (3) the Merit Commission's decision to terminate Winters for his unjustified and unprovoked grabbing of the student's crotch is supported by substantial evidence and is not arbitrary and capricious, or patently unreasonable. Therefore, we affirm.

Facts and Procedural History¹

[3] The relevant facts are undisputed. As of May 16, 2013, Winters had been employed as an EPD officer for thirty years. Winters had a second job as a security officer for the Evansville Vanderburgh School Corporation (“EVSC”) at its Academy for Innovative Studies (“AIS”), which serves students who had behavioral problems in other schools. On that date, Winters was working at AIS in full police uniform when he heard loud noises coming from a classroom in which approximately five students were serving in-school suspension. Winters entered the classroom and told the students to calm down and take their seats, which they did.

[4] The students started talking about fighting. Winters told them not to fight and cautioned them about the consequences of fighting. A sixteen-year-old student, Z.P., said that he would fight someone smaller than himself. Winters grabbed Z.P.'s crotch and said, “What if someone did this to you?” Appellee's App. at 344.² Z.P. replied, “Dude, you grabbed my balls.” Id. at 26, 344.³ Both Z.P. and Winters reported the incident to AIS's principal, who contacted EVSC's security director, who contacted EPD. The incident was also reported to Z.P.'s parents, who declined to press criminal charges but did file an internal affairs complaint against Winters.⁴

[5] On May 23, 2013, EPD Chief Billy Bolin issued a personnel order finding that Winters had committed eight violations of EPD rules and regulations relating to upholding and obeying laws, ordinances, and regulations; fostering good public relations and maintaining respect for the department; and inappropriately touching a juvenile. The order also suspended Winters for twenty-one days without pay and recommended that he be terminated from EPD. Winters appealed the order to the three-member Merit Commission, which held a hearing on July 22, 2013.⁵ At the conclusion of the hearing, the Merit Commission found that Winters committed seven of the eight alleged rule violations and voted two to one to affirm his suspension and terminate his employment with EPD. Commission President Adrian Brooks and Commissioner John Hegeman voted in favor of suspension and termination; Commissioner Mike Cook opined that suspension was “appropriate” but did not support termination. Id. at 228. The Merit Commission issued a written decision with factual findings consistent with the foregoing.

[6] Winters appealed the Merit Commission's decision by filing a complaint against the City in the trial court pursuant to Indiana Code Section 36–8–3–4(e) (“The reasons for the suspension, demotion, or dismissal of a member of the police or fire department shall be entered as specific findings of fact upon the records of the [Merit Commission]. A member who is suspended for a period exceeding five (5) days, demoted, or dismissed may appeal the decision to the circuit or superior court of the county in which the unit is located. However, a member may not appeal any other decision.”). Both parties moved for summary judgment. The trial court denied Winters's motion and granted the City's motion, finding no genuine issue of material fact and concluding as a matter of law that the Merit Commission's written findings and decision to terminate Winters's employment were based upon substantial evidence, not arbitrary or capricious, and “not in violation of any constitutional, statutory or legal principle.” Appellant's App. at 13.

[7] Winters now appeals. Additional facts will be provided as necessary.

Discussion and Decision

[8] “Judicial review of administrative decisions is very limited.” City of Indianapolis v. Woods, 703 N.E.2d 1087, 1090 (Ind.Ct.App.1998), trans. denied (1999).

Deference is to be given by the reviewing court to the expertise of the administrative body. Discretionary decisions of administrative bodies, including those of police 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. Further, 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. The reviewing court may not substitute its judgment for that of the administrative body or modify a penalty imposed by that body in a disciplinary action, without a showing that such action was arbitrary and capricious.

The challenging party has the burden of proving that an administrative action was arbitrary and capricious. An arbitrary and capricious decision is one which is patently unreasonable. It is made without consideration of the facts and in total disregard of the circumstances and lacks any basis which might lead a reasonable person to the same conclusion. Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion.

Id. at 1090–91 (citations omitted).

[9] The trial court initially reviewed the Merit Commission's termination decision.

In order to properly adjudge whether the initial review was erroneous, we necessarily look through its decision to consider the validity of the Merit [Commission's] determination. 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 [Commission].

Id. at 1091 (footnote omitted). “A court reviewing a police officer disciplinary action may not judge witness credibility or weigh conflicting evidence in determining whether there was substantial evidence to support the action.” Jandura v. Town of Schererville, 937 N.E.2d 814, 819 (Ind.Ct.App.2010), trans. denied (2011).

[10] Winters raises three issues: (1) Chief Bolin's motivation to seek termination was improper; (2) the two commissioners who voted to suspend and terminate him improperly based their decision on matters outside the record; and (3) the punishment (a twenty-one-day unpaid suspension and termination after thirty-plus years of service) is disproportionate to the conduct (briefly grabbing the crotch area of a sixteen-year-old student “to demonstrate what could happen if someone attacks you and you are not prepared,” Appellant's Br. at 5). To put it more concisely, Winters contends that the Merit Commission's decision is arbitrary and capricious and not supported by substantial evidence.⁶

Section 1—Chief Bolin's motivation to seek Winters's termination is irrelevant because he did not participate in the ultimate disciplinary decisionmaking.

[11] Regarding Chief Bolin, Winters complains that his recommendation for termination was based on “a prior incident in which his department's public information officer made public statements against the Evansville Vanderburgh School Corporation for their failure to notify the Evansville Police Department of a sexual child predator,” and thus “he had other pressures playing upon him.” Appellant's Br. at 7. We note, however, that Chief Bolin did not participate in the ultimate decision to terminate Winters's employment, and therefore his motivation for seeking termination is irrelevant. See Jandura, 937 N.E.2d at 819–20 (finding suspended officer's claims regarding chief's “alleged political motivations” irrelevant: “Although Chief Dowling initiated the disciplinary action, it was the Board commissioners who ultimately decided whether and how severely to discipline...