Order
The final order of the administrative law judge panel is modified to read "Special Order 1546R is affirmed to the extent that it imposes a two day suspension on Master Officer Alan Fix. Upon return of the computers to Law Enforcement Headquarters, Master Officer Fix will be released from any duty to pay for the computers and will be entitled to a refund of any reimbursement previously tendered to the department. The computers shall be turned over to the Division of Management Information Systems for disposition."
Findings of Fact
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5, IC 14-9, and 310 IAC 1.2 apply to these proceedings.
3. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 for disciplinary actions taken by the DNR with respect to Conservation Officers.
4. At all times relevant to these proceedings, Alan Fix ("Fix") was a Conservation Officer holding the rank of Master Officer and thus an employee of the DNR.
5. On January 5, 1996, Fix was suspended for two days and ordered to compensate the DNR Division of Law Enforcement in the amount of $200 by the Law Enforcement Division Director.
6. Fix filed a timely petition for administrative review of the disciplinary action.
7. At all times relevant to these proceedings, Fix was assigned to duties in the Lake Michigan area.
8. In early May of 1995, Fix was detailed to a drug school in Indianapolis.
9. At this time, there was a new office being constructed at Dunes State Park.
10. While in Indianapolis, Fix was given authorization to visit both the state and federal surplus property warehouse for the purpose of acquiring office furniture for the new offices.
11. On May 5, 1995, Fix visited the warehouse and examined a number of items.
12. Fix called his First Sergeant to tell him he had found some usable office furniture and a furnace.
13. After some discussion, Fix was told not to get the furnace but the furniture would be fine.
14. Shortly there after, Fix called again and said he had found some lap top computers on the federal side of the warehouse.
15. Fix was advised by the First Sergeant that the only way the division could buy computers was to have prior approval from the Management Information Systems (MIS) Division.
16. After some further discussion, the First Sergeant asked the Lieutenant about buying surplus computers and was told that no computers could be purchased without going through MIS. The Sergeant relayed this message to Fix.
17. Fix indicated he thought the Division was missing out on a good deal.
18. After that conversation, Fix was told by a warehouse employee that he could take the computers for a ten day trial.
19. Fix knew he was coming back to the warehouse the following week with a State Parks truck to pick up the office furniture so he decided to take two lap top computers back with him.
20. Fix showed the computers to the First Sergeant at Fix's residence.
21. Fix's testimony indicated the Sergeant was surprised to see them and Fix was told to take them back.
22. Fix went back to the warehouse with the truck. He picked up the furniture and tried to return the computers.
23. The director of the warehouse was there and indicated there was no such trial policy and refused to take the computers back.
24. Fix filed an appeal in writing with the warehouse director.
25. On May 5, 1995, Fix signed a distribution document and invoice (Exhibit D) for the computers and other office equipment as a duly authorized representative of the DNR.
26. Fix was a duly authorized representative of the DNR for the purpose of purchasing the other items.
27. Fix clearly was not a duly authorized representative of the DNR for the purpose of purchasing computers.
28. After Fix attempted to return the computers as instructed by his First Sergeant, no further activity took place until the Lieutenant received a phone call from headquarters asking about a $200 computer purchase.
29. The Lieutenant commenced the investigation that led to the
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suspension.
30. Fix raises the following two issues which must be resolved:
(1) A charge of insubordination cannot be maintained because of the lack of deliberate intent to disobey an order; and
(2) Disciplinary actions should be progressive and since Fix has had no previous disciplinary actions of any significance, punishment should be limited to a letter of reprimand.
31. While it is probably true that Fix did not deliberately purchase the computers, he did deliberately sign the invoice and take possession of computers when he had been told in clear, unambiguous language by a superior officer that the Division of Law Enforcement could not acquire any computers without going through MIS.
32. Because Fix intentionally performed acts which put the whole scenario into motion after having been advised that the division could not acquire the computers, an insubordination charge can be maintained.
33. Article 22 of the Agreement between the state law enforcement officers organizations and the state (Exhibit C) contains the following language: "The state will normally impose discipline in a progressive manner, however the state shall retain the right to impose discipline which is appropriate to the seriousness of an individual incident or situation."
34. Deliberately engaging in an act which causes the employer to be obligated to pay $200 for unwanted goods can certainly qualify as a more serious type violation. Also, present as an aggravating circumstance is the fact that the First Sergeant and the Lieutenant first learned of the problem several weeks later from headquarters rather than from Fix himself.
35. Under the above circumstance, a two day suspension and reimbursement of the department for $200 is an appropriate penalty.
36. The order imposing the disciplinary action must be amended, however.
37. Special order #1546R (Exhibit B) specifies in part that the computers should be returned to Fix as his personal property. Legally, the computers must remain the property of the DNR as purchased surplus government property.