Content-Type: text/html Cause #: 00-107l.v9.html

CADDNAR


[CITE: Steven T. Gerber v. DNR, 9 CADDNAR 31 (2001)]

[VOLUME 9, PAGE 31]

Cause #: 00-107L
Caption: Steven T. Gerber v. DNR
Administrative Law Judge: Lucas
Attorneys: pro se (Gerber); Roth
Date: October 29, 2001

ORDER

The first alleged offense against Steven Gerber, labeled by the Department of Natural Resources as "Neglect of Duty," is vacated. The second alleged offense, for a violation of IC 35-47-5-2, is affirmed. The period of suspension against Gerber is reduced from 20 days to 15 days.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. This proceeding was initiated by Steven T. Gerber ("Gerber") on May 30, 2000 when he filed his "Petition for Administrative Review of Special Order 1747."

2. The proceeding is governed by IC 4-21.5 (sometimes referred to as the "administrative orders and procedures act" or "AOPA") and 312 IAC 3-1, a multi-section rule adopted by the Natural Resources Commission (the "Commission") to assist in its implementation of AOPA. In addition, rules adopted by the Commission with respect to administration of the Department of Natural Resources (the "Department"), Division of Law Enforcement (the "Division"), at 310 IAC 1.2 also apply.

3. Summary judgment is appropriate only where no genuine issue of material fact exists and where the moving party is entitled to judgment as a matter of law. Auto-Owners Insurance Co. v. United Farm Bureau Insurance C., 560 N.E.2d 459 (Ind. App. 1990). A party moving for summary judgment has the burden of showing there is no genuine issue of material fact. Marsym Development Corp. v. Winchester Econ. Devel. Comm'n, 447 N.E.2d 1187 (Ind. App. 1983). Cited recently by the Commission in Bieda v. B&R Development and DNR, 9 Caddnar 1 (2000).

4. As the moving party in the June 30, 2000 summary judgment motion, Gerber had the burden of showing there is no genuine issue of material fact. As the moving party in the November 17, 2000 summary judgment motion, the Department had the same burden.

5. Summary judgment is considered in AOPA at IC 4-21.5-3-23. Subsections (a) and (b) provide in pertinent part:

"(a) A party may, at any time after a matter is assigned to an administrative law judge, move for summary judgment in the party's favor as to all or any part of the issues in a proceeding. The motion must be supported with affidavits or other evidence permitted under this section and set forth specifice facts showing that there is not a genuine issue in dispute.
"(b) . . . The [summary] judgment sought shall be rendered immediately if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to a judgment as a matter of law."

6. The substance of this proceeding is Gerber's administrative review of a February 29, 2000 statement of charges that alleges two offenses resulting in discipline. Both of the offenses relate to the treatment of switchblades.[FOOTNOTE 1]

7. The first alleged offense was non-criminal in nature and was labeled as "Neglect of Duty" in the

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disciplinary action brought against him by the Division. In support of the alleged offense, Gerber's superior, Lt. Ralph E. Taylor ("Taylor"), states that on or about May 3, 1998, Gerber seized three switchblades from Stephen Creque ("Creque") that Gerber then failed to properly enter into the Department's evidence system.

8. The second alleged offense was that Gerber provided at least one of the switchblades to a private citizen in violation of IC 35-47-5-2. This statutory section provides: "It is a Class B misdemeanor for a person to manufacture, possess, display, offer, sell, lend, give away, or purchase any knife with a blade that opens automatically by hand pressure applied to a button, spring, or other device in the handle of the knife."

9. Internal investigations regarding an employee of the Division are governed by Standard Operating Procedure 9-13, effective 09/07/88 and revised 10/01/98 ("SOP 9-13)." In its general policy statement, SOP 9-13 specifies when a disciplinary action against an employee is timely: "Complaints of a non-criminal nature must be submitted within one (1) [emphasis deleted] year of the date the complaint is alleged to have occurred. Complaints of a criminal nature will follow statute of limitations guidelines set forth by law." [Emphasis supplied by SOP 9-13.]

10. In his June 30, 2000 motion for summary judgment, Gerber urged with respect to the first alleged offense that it is untimely. The Division alleged in the disciplinary action that the violation occurred on or about May 3, 1998, but the charges were not filed until February 29, 2000. Since more than one year passed between the occurrence of the alleged offense and the filing of the disciplinary action, Gerber contended summary judgment should be granted in his favor and against the Department with respect to the first alleged offense.

11. The Department responded that the one-year limitation set forth in SOP 9-13 should be tolled because Gerber allegedly concealed evidence until the Division conducted its internal investigation. The Department's argument was found to be unpersuasive.

12. The Division was the author of SOP 9-13. If there is ambiguity in its reference to the requisite timing for a disciplinary action, the ambiguity must be construed against the Division. One aspect of the SOP 9-13 that is unambiguous, however, is the provision stating a disciplinary action for a violation of a non-criminal nature must be brought within one year of its occurrence. The Division could have written SOP 9-13 to state a disciplinary action must be brought within one year of the date the violation is "discovered." To the contrary, the Division specified in SOP 9-13 that the action must be taken within one year of when the violation "occurred."

13. Gerber was granted summary judgment in his favor and against the Department with respect to the first alleged offense. Because the disciplinary action was not initiated until more than one year after the alleged offense, the non-criminal violation is untimely and must properly be vacated.

14. With regard to the second alleged offense, Gerber was found not to be entitled to summary judgment. If Gerber were tried and convicted of a violation of IC 35-47-5-2 with respect to transfer of a switchblade, the conviction itself could form a basis for establishing the second alleged offense. The opposite does not follow. The burden of proof for a criminal conviction is whether the offense is found to have occurred beyond a reasonable doubt. The burden for this proceeding is whether the violation is found to have occurred by a proponderance of the evidence. Even had Gerber been tried in criminal court for the activity that forms the basis for the second alleged offense, and found not guilty, the Division would not be precluded from pursuing disciplinary action with respect to the activity. There may be a reaonsable doubt as to whether Gerber engaged in criminal activity, but the

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preponderance of the evidence may yet support the finding for the purposes of a disciplinary action.

15. On November 17, 2000, the Department moved for summary judgment on the basis the factual elements of the second alleged violation were not in material dispute but rather supported summary judgment in its favor and against Gerber. Although many relevant facts were not in material dispute, there was also found to be an insufficient basis to grant summary judgment in favor of the Department.

16. On January 3, 2000, Taylor received a report of alleged employment misconduct directed to Gerber. This report was provided by Mark Jones ("Jones") and in pertinent part alleged Gerber committed a criminal misdemeanor in violation of IC 35-47-5-2 with respect to the possession and disposition of switchblades.

17. Taylor initiated preliminary inquiries, as anticipated by SOP 9-13, during which time Jones was able to retrieve a switchblade that Jones indicated had been provided to him by Gerber. Because this alleged misconduct was of a criminal nature, Taylor decided Gerber should not be immediately informed of the investigation.

18. Taylor made a preliminary determination the allegations against Gerber were valid and could result in Gerber's suspension, demotion, or termination. He prepared an "Employee Misconduct Recommended Disposition Report" that was, through the Division's chain-of-command, submitted to Lieutenant Colonel Jeffrey Wells and Colonel Larry Allen pursuant to SOP 9-13.

19. On January 13, 2000 and pursuant to SOP 9-13, Colonel Allen forwarded an "Employee Misconduct Internal Investigation Assignment Report," along with the complete preliminary investigation package, to Lieutenant Jerry D. Shepherd ("Shepherd") and Conservation Officer John Cannerella ("Cannerella"). Shepherd and Cannerella were assigned to conduct an internal investigation pertaining strictly to misconduct allegations of a criminal nature.

20. On January 31, 2000, Shepherd and Cannerella notified Gerber an internal investigation had been commenced into Gerber's alleged misconduct. On the same day, Shepherd and Cannerella interviewed Gerber.

21. The internal investigation revealed that on May 3, 1998, Jones advised Gerber an individual at the Fort Wayne Flea Market was selling switchblades. Gerber identified Creque as the seller and issued a warning citation against him for violation of IC 35-47-5-2.

22. During testimony at hearing, Gerber described Jones as a "professional snitch." As described by Gerber, Jones "doesn't work for a living. The way he gets his money is by ratting people out." Gerber testified he was working with Jones in seeking information concerning alleged fishing and wildlife violations. Jones had previously assisted with information leading to a fish and wildlife criminal conviction for which Gerber was able to secure a TIP reward. Gerber testified he was trying to maintain a working relationship with Jones, even though Jones "was of questionable character."

23. Gerber testified that Jones approached him about Creque selling switchblades at a Ft. Wayne flea market. According to Gerber, Jones told him Jones had tried to pursue the switchblade violations with another law enforcement agency but without success. Gerber agreed to visit the flea market and determine whether there was a criminal violation.

24. In a Department automobile on May 3, 1998, Gerber drove himself to the flea market, accompanied by Jones and his girlfriend, Kimberly Crago. Gerber was in plain clothes. There he encountered Stephen Creque, who had a collection of knives for sale, three of which were switchblades. Gerber returned briefly to the Department automobile, obtained a copy of the Indiana criminal code, and returned to the flea market. He read

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the criminal citation to Creque, issued a warning citation, then took possession of the three switchblades.

25. During the Department's internal investigation, Jones said he and Gerber had a conversation in the parking lot of the flea market. Jones said he wanted to be paid cash or to receive one of the switchblades for information leading to issuance of the warning citation. Gerber told Jones he could have neither but placed the switchblades on the backseat of the Department automobile.

26. Crago was also interviewed as part of the Department's internal investigation. She said that in the flea market parking lot, Gerber told Jones he could not have any of the switchblades, but if Jones found a switchblade or picked one up from the backseat, there was nothing Gerber could do about it.

27. Gerber testified he placed the three switchblades in the Department automobile. He then drove himself, Jones, and Crago back to the Jones residence. There was a brief conversation at the Jones residence before Gerber drove alone to his own home.

28. Gerber testified that "a day or two later" he discovered one of the switchblades was missing from the Department automobile. Because he keeps the automobile locked, Gerber testified he "put two and two together" and determined Jones had stolen the switchblade.

29. Gerber testified he then went back to the Jones residence to confront Jones about the missing switchblade. Jones was present but did not admit to possessing the missing switchblade. Gerber testified that next, "I basically threatened him. I told him in no uncertain terms that if he did not return it, give it back to me, that I would arrest him. He said, 'Well, I want payment for turning you on to this guy.'" Gerber indicated he responded to Jones he was unable to provide any compensation.

30. Gerber testified that after an extended conversation with Jones, Gerber was ultimately able to retrieve the switchblade from him. Gerber took the switchblade, along with "rubbish" that had collected in the Department automobile, and threw them in a trash bin outside the Jones residence. Jones was present when the switchblade was thrown in the trash bin.

31. Gerber was also interviewed during the Department's internal investigation. At that time, he at first admitted giving a switchblade to Jones. He then said he wished to change his answer to say that "technically" he did not give Jones the switchblade. Gerber said he threw the switchblade in the trash bin in the presence of Jones, and Jones could have retrieved the switchblade, but Gerber did not give the switchblade to Jones.

32. Gerber testified he brought two of the switchblades to his home for photographing and the preparation of a case report, but he did neither.

33. Gerber testified he did not submit the switchblades to a secured location for seized contraband as provided in SOP 5-11. Instead, he testified his personal practice was to throw away some types of contraband. For contraband such as switchblades, "I'd probably bust it up first and then throw it away." Gerber testified he did not, however, "bust up" the switchblade he threw in the dumpster at the Jones residence. Gerber testified he threw away the other two switchblades, but he was unable to testify when or where.

34. Gerber is a Master Conservation Officer who has 22 years of experience with the Department.

35. The preponderance of the evidence supports the proposition that Steven Gerber lent or gave away a switchblade knife to Mark Jones in violation of IC 35-47-5-2. These violations probably occurred on not one but two occasions: First, on the drive away from the flea market on May 3, 1998. Gerber placed the switchblade in the backseat of the Department automobile, knowing Jones wanted the switchblade and that Jones believed himself entitled to compensation for assisting in a criminal case against Creque. Second, on a later unspecified date, when

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after obtaining the switchblade from Jones, and without disabling the switchblade, Gerber placed it in a trash bin at the residence of Jones and in the presence of Jones.

36. Gerber took possession of three switchblades, apparently in the ordinary course of his activities as a law enforcement officer. He did not, however, complete an arrest report for any of the switchblades nor did he place any of them in the Department's evidence system. Gerber testified his personal practice-which itself was outside established Department procedures-was to disable and throw away contraband of the nature of switchblades. Yet his testimony is that he does not know when or where he disposed of two of the switchblades seized. The third was allowed to be taken from the backseat of the Department's automobile by a person Gerber described as a "professional snitch" of "questionable characater." The switchblade was retrieved by Gerber then almost immediately replaced in a trash bin at the snitch's residence, and in the snitch's presence, without the switchblade being disabled.

37. Gerber's protestations are generally unconvincing that he did not expect Jones to take the switchblade from the backseat of the Department automobile. Gerber's protestations are totally incredible that he did not expect Jones to retrieve the switchblade from the trash bin at the Jones residence. Gerber is a Master Conservation Officer who understood the likely consequences of his actions.

38. The second alleged offense, that Gerber provided at least one of the switchblades to a private citizen in violation of IC 35-47-5-2, must be affirmed. This offense is the more serious of the two and should carry a suspension of 15 days.

FOOTNOTE

1. The pertinent statutory reference does not use the term "switchblade." Instead, reference is made in IC 35-47-5-2 to "any knife with a blade that opens automatically by hand pressure when applied to a button, springs, or other device in the handle of the knife." For the purposes of this order, the term "switchblade" means a knife with a blade that opens automatically as described in IC 35-47-5-2.