[CITE:
Scearcy v. Department of Natural Resources,
9 CADDNAR 62 (2002)]
[VOLUME
9, PAGE 62]
Cause
#: 00-203L
Caption: Scearcy v. Department of Natural Resources
Administrative Law Judge: Wells
Attorneys: Webster; Boyko
Date: August 22, 2002
[NOTE 1: ON APRIL 25, 2002,
THE MAJORITY OF MEMBERS OF A PANEL OF ADMINISTRATIVE LAW JUDGES PROVIDED
CLAIMANT SCEARCY ADMINISTRATIVE REVIEW IN ACCORDANCE WITH IC 14-9-8 AND IC
4-21.5, AND CONCLUDED IN ITS “FINDINGS OF FACT AND CONCLUSIONS OF LAW
WITH NONFINAL ORDER BY THE PANEL OF ADMINISTRATIVE LAW JUDGES” THAT SCEARCY
SHOULD BE REINSTATED AS A CONSERVATION OFFICER. THE DNR OBJECTED TO THE
REINSTATEMENT AND AFTER FURTHER CONSIDERATION BY THE COMMISSION THE TERMINATION
OF SCEARCY’S EMPLOYMENT WAS AFFIRMED. REFERENCES CONTAINED IN THE
COMMISSION’S FINAL ORDER TO PARAGRAPH 35, 36 AND 43 ARE REFERENCES TO
CONTENT OF THE PANEL’S NONFINAL
ORDER.]
[NOTE 2: CLAIMANT SCEARCY
FILED FOR JUDICIAL REVIEW ON SEPTEMBER 13, 2002, IN THE KNOX COUNTY CIRCUIT
COURT IN CAUSE NUMBER 42C01-0209-PL-363. BOTH THE DNR AND COMMISSION WERE NAMED
AS PARTIES. FOLLOWING AN AGREED MOTION, ON OCTOBER 22, 2002, THE KNOX CIRCUIT
COURT DISMISSED THE COMMISSION AS A PARTY AFTER REASONING: “Although
AOPA does require that petitioner serve a copy of the petition on the ultimate
authority issuing the order, the…Commission was not a party to the
proceeding; and therefore, should not be included as a respondent in a judicial
review…The…Commission was the ultimate authority issuing the order,
but this involvement is analogous to the position of a trial court in an
appellate matter.” JUDICIAL REVIEW CONTINUED AS TO THE DNR.] FINAL ORDER Charles Scearcy remains terminated from employment
as an Indiana Conservation Officer. FINDINGS OF FACT The Administrative Law Judge Panel in a majority opinion issued its Findings
of Fact and held in paragraphs 35 and 36 that evidence submitted did not meet
the DNR's burden of persuasion, by a preponderance of the evidence, to find
that Officer Charles Scearcy violated 310 IAC
1.2-5-4(13): Knowing or reckless conveyance of false information to another law
enforcement officer or another employee of the Department concerning a matter
of official state business. In addition, the Panel likewise held in paragraph 43
that there was "no basis for believing" he violated 310 IAC
1.2-5-4(28): Conduct that could compromise a law enforcement officer or subject
the officer to blackmail. The Commission finds the evidence and law to be
contrary to the findings of the majority opinion. [VOLUME 9, PAGE 63] conservation officer. The Jailer's Assistant knew Scearcy as a conservation officer and testified that Scearcy's bonding Wills out of jail was memorable because
she had never before known a law enforcement officer to bond out a prisoner. [VOLUME 9, PAGE 64] After being served the written charges, Officer Scearcy
requested and received a predeprivation hearing
before the Division Director as afforded in the administrative rules. The predeprivation hearing gives the employee the opportunity
to state any reason why the discipline should not be taken. Following the predeprivation hearing, the Division Director entered an
order with respect to the written charges. On October 23, 2000, the Law
Enforcement Division Director, with the approval of the Director of the
Department of Natural Resources, issued an order terminating Charles Scearcy's employment as an Indiana Conservation Officer
under the authority granted by Indiana law. Charles Scearcy
committed gross acts of misconduct. He was terminated for cause consistent with
applicable rules and statutes and under the authority granted the Director of
the Indiana Department of Natural Resources, Law Enforcement Division.
The Finding of Fact indicates that during the course of an administrative
investigation Scearcy was asked twice whether he had
ever bonded anyone out of jail. Each time, Scearcy
answered, "No." The questions were simply stated and straightforward.
No evidence was introduced to indicate Scearcy was
confused by what was being asked. Furthermore, it is unreasonable to believe
that any veteran law enforcement officer could misunderstand the question. The
source of funds utilized to provide the cash bond was not an issue and is
irrelevant to the question. In fact, testimony was introduced stating that when
Scearcy arrived at the Knox County Jail he told the
Jailer's Assistant on duty that night, "I'm here to bond out Poly
Wills." In addition, Scearcy requested that the
bond money receipt be made out in his name.
The Law Enforcement Division's Standard Operating Procedure 15-7, which
provided standing policy at the time of the incident, stated
"....Employees shall not furnish bond or bail for any person arrested, nor
shall they suggest an attorney or bondsman to any prisoner or his
friends." Evidence clearly supports the DNR's burden that it is more
likely than not that Scearcy knowingly conveyed false
information to F/Sgt. Barker when he denied having ever bonded anybody out of
jail.
The Indiana Administrative Code establishing cause for disciplinary action for
Indiana Conservation Officers at the time the charges were brought against Scearcy prohibits, "Conduct that could [emphasis not
shown] compromise a law enforcement officer or subject the officer to
blackmail." Evidence indicates that Scearcy was
allowed access into areas of the jail normally closed to the general public as
a result of his status as a
No testimony was introduced to indicate that Scearcy
made any attempt to ascertain the crime or crimes for which Wills was charged
or the circumstances leading to his arrest and incarceration. Instead, the
evidence indicates that Scearcy telephoned the
arresting officer and requested to know, "What can you do for Poly?"
Trooper Clark, the arresting officer, testified that in five years as a law
enforcement officer he had never been contacted by a fellow law enforcement
officer on behalf of a person he had arrested. As a conservation officer, it is
reasonable to believe Scearcy understood the
mechanics of an arrest. A law enforcement officer knows that a police officer
must have probable cause to believe a crime was committed and that the person
charged committed the crime in order to affect a lawful arrest. It is
reasonable to believe that using his law enforcement authority to bond a
prisoner out of jail and requesting favorable disposition of the charges could
compromise a conservation officer. Trooper Clark testified that his initial
contact with Poly Wills was a result of observing what he believed to be a
hand-to-hand drug transaction. Evidence also supports the DNR's contention that
Wills had a reputation in the local law enforcement community as "a known
illegal drug violator." For these reasons, I disagree with the Finding of
Facts in paragraph 43. The evidence presented meets the DNR's burden that Scearcy's conduct could [emphasis not shown] compromise a
law enforcement officer.
On October 18, 1999, the Law Enforcement Division initiated an internal
investigation of Officer Charles Scearcy into
allegations of misconduct based upon a citizen complaint. Veteran conservation
officers with significant investigative experience conducted the investigation
and in a manner consistent with the Division's Standard Operating Procedure
9-13 that establishes policy on Internal Investigations. The completed
investigation was forwarded to Officer Scearcy's
district commander, Lt. Ralph Huffines for review and
recommendation. Upon review of the completed investigation, Lt. Huffines filed written charges against Officer Scearcy and recommended that he be terminated for just
cause from the Law Enforcement Division.
The written charges and recommendation for termination were reviewed and
concurred upon by Lt. Huffines' supervisors (South
Region Commander [captain], Operations Commander [major] and Executive Officer
[lieutenant colonel]) as it was forwarded thru the chain of command to the
Division Director. As outlined in the Indiana Administrative Code, the Division
Director appointed a Disciplinary Review Board that reviewed the charges. The
Board found probable cause for the charges and concurred with the
recommendation for termination. The Division Director then directed the charges
served as adopted by the Disciplinary Review Board.