CADDNAR

[CITE: Gerber v. Department of Natural Resources, 10 CADDNAR 62 (2005)]

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Cause #: 01-159L
Caption: Stephen Gerber v. Department of Natural Resources
Administrative Law Judge Panel: Wilcox, Schwanke, Hyndman
Attorneys: O'Malley; White
Date: May 17, 2005

[NOTE: THE ALLEN SUPERIOR COURT (02D01-0506-PL-252) AFFIRMED THE DECISION OF THE AOPA COMMITTEE OF THE NATURAL RESOURCES COMMISSION AFFIRMING THE DECISION OF THE [DNR], DIVISION OF LAW ENFORCEMENT, TO TERMINATE THE EMPLOYMENT OF STEVE GERBER. ALLEN SUPERIOR COURT DECISION FOLLOWS ADMINISTRATIVE FINDINGS OF FACT. ON APRIL 28, 2006, GERBER APPEALED ALLEN SUPERIOR COURT DECISION (02A05-0605-CV-228). ON APRIL 10, 2007, THE COURT OF APPEALS AFFIRMED IN A MEMORANDUM DECISION - NFP. ON JUNE 19, 2007, COURT OF APPEALS DENIED REHEARING. THE MEMORANDUM DECISION FOLLOWS THE LOWER COURT ORDER. ON JUNE 19, 2007, FILED PETITION TO TRANSFER. ON OCTOBER 9, 2007, THE SUPREME COURT DENIED TRANSFER.]

FINAL ORDER

REPORT

On August 21, 2001, Steven Gerber, by counsel, filed administrative review of the termination of his employment with the Natural Resources Commission, NRC. A prehearing conference was held September 25, 2001 wherein the parties agreed to mediation of the issues. On October 15, 2001, notice was provided that the parties terminated mediation, without success, and a hearing was held on May 29, 2003.

DISPOSITION OF MOTION TO DISMISS CHARGES

At hearing, Gerber, by counsel, moved to dismiss the charges against him for failure of the Department of Natural Resources, DNR, to conduct a predeprivation hearing. Testimony at hearing and evidence offered show that the Division of Law Enforcement conducted a predeprivation hearing on August 8, 2001, conducted by Colonel Bruce Clear, Director of the Division of Law Enforcement. This predeprivation hearing was conducted after issuance of the Statement of Charges on July 19, 2001. See Exhibit A.

Testimony showed that Gerber was suspended on July 25, 2001, pending the outcome of the termination proceedings. See Special Order 1791 dated July 23, 2001. Following that hearing, Gerber was terminated on August 19, 2001. See Special Order 1795.

The purpose of the predeprivation hearing is to afford a charged party with the opportunity to explain why discipline should not be taken. See SCEARCY v. DNR, 9 CADDNAR 62, 64 (2002).

The Indiana Court of Appeals has spoken to the question of what constitutes due process in predeprivation hearings before the Department of Natural Resources. See NATURAL RESOURCES COMMISSION ET AL. v. SULLIVAN, 428 N.E. 2d 92,100 (Ind. Ct. App.1981). In SULLIVAN, the DNR issued a statement of charges alleging Sullivan committed repeated acts of incompetence. The same day, the Director of Law Enforcement demoted Sullivan by special order. No predeprivation hearing was held prior to Sullivan's demotion. Sullivan argued that DNR violated his due process rights under the Indiana and United States Constitutions because he was disciplined without a hearing.

The Sullivan Court specifically provided that "due process requires only one full-blown, trial type administrative hearing." Citing GRISELL v. CONSOLIDATED CITY OF INDIANAPOLIS, 425 N.E. 2d 247 (Ind. Ct. App. 1981). The SULLIVAN court

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held that "[w]here an appeal is taken from a full administrative review hearing and there is no demonstration that prejudice occurring in an earlier proceeding affected the later hearing, due process rights are adequately safeguarded." Id. The court determined that defects in pre-demotion procedures, while inadequate to satisfy due process, were cured by a post-demotion hearing before the Natural Resources Commission.

Colonel Clear testified that he questioned the Indiana State Personnel Department about suspending an employee with pay. See T.R. 157. Clear testified that the agency director and attorney advised him that suspension with pay constituted ghost employment and was unlawful. Id. Therefore, Gerber was not suspended with pay.

The DNR suspension of Gerber without pay and prior to termination was done in the normal practice of the Division of Law Enforcement. See testimony of Bruce Clear T.R. 162. Suspensions of Law Enforcement Officers prior to termination allow DNR to remove the officer from uniform, from "carrying a gun, wearing a badge, having control of the public" when they are aware they may be terminated. Id.

Gerber was suspended on July 25, 2001. A predeprivation hearing was held on August 8, 2001, and DNR terminated Gerber on August 19, 2001. Gerber appealed the termination on August 21, 2001.

The evidence fails to show Gerber was prejudiced by the suspension prior to termination. Any defect in the pre-deprivation process was cured by the post-demotion hearing before the NRC, as supported by the Sullivan court.

It is not unreasonable for the DNR to suspend a conservation officer prior to termination and remove the officer's gun, badge and items that could prove a danger to the public pending the officer's suspension.

Based on the SULLIVAN analysis and the evidence presented, Gerber's motion to dismiss the charges for DNR's failure to conduct a pre-deprivation hearing prior to suspension is DENIED.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. On November 9, 1980, Steven Gerber ("Gerber") began employment with the Department of Natural Resources.

2. On August 31, 2001, Gerber filed for administrative review of his August 9, 2001, termination from the Department of Natural Resources Division of Law Enforcement (the "Department").

3. Administrative review is provided for discipline administered to Indiana Conservation Officers under the Administrative Orders and Procedures Act, commonly referred to as AOPA, at Indiana Code 4-21.5. Rules governing this issue are found at 310 IAC 1.2.

4. Gerber's termination was based on a Statement of Charges issued on July 19, 2001, which contained a Statement of Circumstances including eight (8) circumstances in support of termination.

5. On or about July 25, 2001, the Department suspended Gerber pending the outcome of termination proceedings.

6. A Predeprivation Hearing was held on August 8, 2001 with Colonel Bruce Clear.

7. Indiana Code 14-9-8 governs the DNR Division of Law Enforcement. Rules at 312 IAC 4-4-5 authorize the Division Director to discharge an employee for cause.

8. The Department alleges:

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On November 8, 2000, independent investigators filed a finding as a result of an allegation made by District #2 F/Sgt. William Snyder. The finding concluded that ICO Steven T. Gerber committed an act of insubordination by removing the air deflector from the rear of his new Ford Expedition commission, without approval so to do, contrary to Standard Operating Procedures 5-7(C-2) and 41-2-C(D)-6(a) or approval from an officer of appropriate higher authority. This act of insubordination occurred on or about September 13, 2000.

9. SOP 5-7(C-2) provides:

Requests for modification to equipment will be submitted via the chain of command. Modification to equipment shall not be made unless approved in writing by the Division Director.

10. SOP 41-2-C(D)-6(a) provides:

Employees shall be responsible for the general maintenance and appearance of assigned division vehicles and shall: (a) not alter mechanical or electrical equipment of the vehicle except, as authorized.

11. Testimony provided by Officer Gerber was that the air deflector blocked his light bar, and subsequently fell off while driving. He stated that the air deflector was "loose," however, the Department did not have any other incident of a loose air deflector on the Expeditions. The fact that the air deflector blocked his light bar, and subsequently fell off, produces a question of credibility in the testimony that it just "fell off."

12. Gerber's removal of the air deflector without submittal of a modification request through the chain of command violated SOP 5-7(C-2).

13. Gerber failed to follow SOP 41-2-C(D)-6(a) when he altered the equipment of his vehicle without authorization.

14. First Sgt. William Snyder and Lt. Ralph Taylor were Claimant's immediate supervisors at the time of the discipline at issue.

15. Evidence supports a finding that Gerber removed the air deflector without permission to do so. See Gerber testimony T.R. 12.

16. Gerber violated Standard Operating Procedures 5-7(C-2) and 41-2-C(D)-(6a) by removing the air deflector from the rear of his state issued Ford Expedition on or about September 13, 2000. SOP 5-7(C-2) requires written approval by the Division Director and such request shall be submitted via the chain of command. Gerber did not have written approval to remove the air deflector from his state issued vehicle as evidenced by his testimony (T.R. 45,46, 211, 248), testimony of F/Sgt. Snyder (T.R. 45, 46), and testimony of Lt. Koontz at (T.R. 142). See Misconduct Recommendation of Exhibit 2.

17. The Department provides in the Statement of Circumstances:

On November 9, 2000, independent investigators filed a finding as a result of an allegation made by District #2 F/Sgt. William Snyder. The finding concluded that ICO Steven T. Gerber had committed a violation of IAC 310-1.2-5-4(13). Investigators found that Officer Gerber had knowingly or recklessly conveyed false information to the division's Quartermaster that led him to believe that permission may have been granted for the transfer of a light bar from Officer Gerber's old commission to his new one. As a result of this conveyance, that occurred on or about September 11, 2000, Officer Gerber was able to leave quartermaster with a light bar contrary to Standard Operating Procedures 5-7 (C-2) and 41-2-C(D)-(6a), and approval from an officer of appropriate higher authority. See Misconduct Recommendation at Exhibit 3.

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18. The Department alleges Gerber violated 310 IAC 1.2-5-4(13) that provides for knowing and reckless conveyance of false information to the Quartermaster. 310 IAC 1.2-5-4(13) provides "cause for disciplinary action under this rule is established by any of the following: ...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."

19. However, Gerber testified that Lt. Taylor, his immediate supervisor, stated that the bar "looks great." Lt. Taylor also indicated that he had "no problem" with the light bar placement. Lt. Taylor asked Gerber to place his request for the light bar in writing when asked if he could remove the light bar from his vehicle.

20. Gerber should expect to rely on Lt. Taylor's statement as approval for the light bar. It is reasonable for Gerber to believe Lt. Taylor approved of the light bar by Taylor's indication that the bar "looks great."

21. The SOP 5-7(C-2) requirement to submit requests for modification to equipment through the chain of command could reasonably be seen as satisfied through Gerber's informing Lt. Taylor of the light bar modification. Several days after this conversation, Lt. Taylor informed Gerber that the light bar was not approved. At that time, Taylor told Gerber to put his request in writing.

22. The testimony fails to support a finding that 410 IAC 1.2.5-4 was violated.

23. The Department alleges thirdly that Gerber "committed an act of insubordination by varying from his assigned work hours without notification or approval to do so, thereby being in violation of Standard Operating Procedure 4-11 Procedure D" on September 23, 2000. See Exhibit 4, Misconduct Recommendation.

24. Exhibit F shows that Gerber started his shift at 9:04 a.m. on September 23, 2000. Gerber was scheduled to work from 3:30 p.m. to 12:00 midnight on September 23, 2000. Id. Exhibit F provides evidence that Gerber met with Senator Meeks at 3:00 p.m., just prior to his normal work-shift.

25. Official notice is taken that routine schedules in the Division of Law Enforcement allow morning duty to begin at 8:00 a.m. Official notice is taken that routine start times include 2:00 p.m. and 3:30 p.m. No routine shifts begin at 9:00 a.m. The fact that no routine hours begin at 9:00 a.m. leads to a question in the credibility of Gerber's testimony that he mistakenly started work at 9:00 a.m.

26. The evidence supports the charge alleging that Gerber committed insubordination by varying from his assigned work hours without notification or approval to do so on September 23, 2000.

27. Gerber is alleged to have "committed an act of insubordination by making statements which 'are contrary to Division/Department policy or indicate professional frustration in carrying out duty related responsibilities' thereby being in violation of Standard Operating Procedure 12-1, Policy (F). Officer Gerber made statements to Diana Lee of WPTA television, by pointing out what he (Gerber), felt were deficiencies with the division's commission emergency lighting system" on September 27, 2000.

28. When questioned about talking with Diana Lee, Gerber testified that he told her, "[s]ee that over there, I'll talk with you later about it." No testimony was provided indicating Gerber talked with her or if he did, what the nature of the conversation was. No DNR conservation officer heard Gerber's conversation with her, and no evidence shows that there was a conversation after the initial statement to Lee. The evidence that this statement "could have been taken as putting DNR down" is not supported.

29. Speaking with the media is standard practice for all conservation officers, and it would be viewed as abnormal if they did not have contact with them. Public information officers in the division of law enforcement are utilized for severe, critical issues. The fact that a public information officer is employed by the division does not prevent conservation officers from speaking to the media based on present practices.

30. The charge that Gerber committed an act of insubordination by making

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statements contrary to DNR policy is unsupported by the evidence. No evidence supports a finding that SOP 12-1 was violated.

31. DNR alleges that Gerber "committed an act of insubordination by making contact with the Allen County Sheriff's Office regarding a case beyond the scope of his primary duties without notification or approval from an officer of appropriate higher authority thereby being in violation of 310 IAC 1.2-5-4(27)." The charge alleges that "[o]n or about February 6, 2001, Gerber initiated a prostitution case and an internal investigation involving another agency, not a part of his routine duties, without obtaining permission from his district command or through the chain of command. Previous specific directives had been given by Lt. Taylor to Officer Gerber relative to conducting investigations beyond the scope of his primary duties without prior approval of his commander."

32. Gerber testified that he met individuals on the Internet at which time he became suspicious of their activity. See T.R. 23 and 71. He stated that he then gave this information to the Allen County Sheriff.

33. Providing this information to the Allen County Sheriff did not, in the panel's opinion, constitute initiation of an investigation by Gerber. Approval was given to Gerber to talk with Kite regarding this matter. Based on the evidence presented, this charge is not supported.

34. DNR charges Gerber with committing "an act of insubordination by failing to make Lt. Taylor aware of a meeting that took place on or about February 11, 2001, relative to a matter of internal affairs interest involving another agency" thereby violating 310 IAC 1.2-5-4(4).

35. On or about February 11, 2001, Gerber stated that he was unable to inform Lt. Taylor about this investigation since Taylor was on vacation. Gerber evidently went beyond discussions with individuals on the Internet, but arranged a meeting with the people he talked with via the Internet. This meeting occurred without any notice to Lt. Taylor, although Taylor ordered Gerber to inform him on this issue. See testimony of Lt. Taylor at T.R. 216, 217, 220, 221 and 235.

36. When given an order to inform his immediate supervisor of this issue, Taylor asserts that it is normal procedure to inform the chain of command if one's supervisor is unavailable. At no time prior to Gerber's meeting with individuals from the Internet did Gerber inform up the chain of command regarding the upcoming meeting. The fact that Lt. Taylor was on vacation did not justify Gerber's failure to inform his chain of command. It is reasonable to expect Gerber would contact his next supervisor in the chain of command, F/Sgt. Snyder. See Exhibit B Page 4 of Preliminary Investigation Summary. Gerber disobeyed an order to inform his supervisors prior to meeting with those individuals Gerber suspected of illegal activity.

37. The seventh DNR charge alleges that "Gerber failed to comply to a directive given by an Officer of appropriate higher authority, specifically F/Sgt. William Snyder. Officer Gerber was told to produce a tape recording that contained evidence relative to an official investigation of the Department of Natural Resources Law Enforcement Division that involved Officer Gerber, thereby being a violation of 310 IAC 1.2-5-4(4), an act of insubordination. F/Sgt. Snyder directed Officer Gerber to produce the tape on two separate occasions on March 9, 2001, but Officer Gerber did not produce the tape as directed."

38. On two separate occasions, Gerber's supervisor directed him to produce a tape recording that contained evidence relative to an investigation of the DNR Law Enforcement Division that involved Gerber. Gerber refused to produce the tape when ordered. Gerber produced the tape recordings three days later, after the second directive as evidence by testimony of Gerber, Lt. Taylor, and F/Sgt. Snyder, TR 36, 38, 84, 85, 221, 222, 199 and 209. Also See DNR Exhibit B.

39. The evidence supports a finding that Gerber committed an act of insubordination in violation of 310 IAC 1.2-5-4(4), on or about March 9, 2001 when he failed to comply with a directive given to him by F/Sgt. Snyder.

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40. DNR alleges "[o]n May 4, 2001, Investigators F/Sgt. Tom Torsell and Officer John Cannarella interviewed Officer Gerber after advising him of his Garrity Warning. Officer Steven T. Gerber failed to reply fully and truthfully during his interview, thereby being a violation of 310 IAC 1.2-5-4(13)."

41. Gerber was questioned about his truthfulness to F/Sgt. Torsell and Officer Cannarella during interview. Gerber denied conveying false information to the officers. See TR 39. The officers questioned Gerber about two issues: (1) whether Gerber conducted an investigation with the Allen County IDEX center; and, (2) whether the tape recording requested by F/Sgt. Snyder was available. See TR 165.

42. The panel fails to find evidence supporting the charge that Gerber failed to reply fully and truthfully during these interviews.

43. Although DNR acted on Gerber's numerous violations of DNR rules and Indiana Law as a whole, the charges taken separately would warrant discipline. DNR terminated Gerber's employment based on the totality of the charges issued.

44. The evidence supports findings that DNR charges were substantiated showing violations of DNR rules and Indiana Law, specifically those charges reflected in paragraphs 8, 23, 33 and 36 at supra. Gerber's termination is supported by the evidence.

____________________________________________

ALLEN SUPERIOR COURT DECISION
David J. Avery, Judge

A. This cause was submitted to the Court to review the decision of the AOPA Committee of the Natural Resources Commission upholding the termination of the employment of the Petitioner Steven T. Gerber.

B. Petitioner, Steven T. Gerber ("Gerber") was employed by the Respondent, Indiana Department of Natural Resources ("DNR") in the Division of Law Enforcement, for nearly twenty-one years, commencing on November 9, 1980 and continuing until his termination on August 19, 2001. On July 19, 2001, a Statement of Charges was issued. On July 25, 2001, Gerber was suspended without pay pending the outcome of the termination proceedings. On August 8, 2001 a pre-deprivation hearing was conducted. Gerber was terminated on August 19, 2001. On August 21, 2001 Gerber appealed his termination. On May 29, 2003, an Administrative Law Judge Panel ("ALJ Panel") conducted a hearing. On April 2, 2004, the ALJ Panel issued its Report, Findings of Fact and Non-final Order affirming the DNR's termination of Gerber. On April 19, 2004, Gerber filed his objection to the ALJ Panel's Report. On May 17, 2005, the AOPA Committee of the Natural Resources Commission ("AOPA Committee") issued its order upholding the findings of the ALJ Panel that Gerber was guilty of four instances of deliberate, aggravated or repeated insubordination. On June 15, 2005, Gerber filed this Verified Petition for Judicial Review.

C. The standard of review is set forth in I.C. Section 14-21.5-5-14. A court may grant relief on judicial review only if the party petitioning for review demonstrates that it was prejudiced by agency action that was:

1) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
2) Contrary to constitutional right, power, privilege or immunity;
3) In excess of statutory jurisdiction, authority, or limitation, or short of statutory right;
4) Without observance of procedure required by law; or,
5) Unsupported by substantial evidence.

D. On judicial review, the Court may not try the case de novo. I.C. 4-21.5-5-11. The Court is bound by the aency's findings of fact if those findings are suported by substantial evidence. Hamilton County Department of Public Welfare vs. Smith, 567 N.E.2d 165, 168 (Ind. Ct. App. 1991). The court may not reweigh the evidence in determining whether the findings are supported by substantial evidence. Id. The court must consider only that evidence, which suports the agency's state reasons. May vs. Dept. of Natural Resources, 565 N.E.2d 367, 373 (Ind. Ct. App. 1991)

E. The ALJ Panel's decision to uphold the termination of Gerber for insubordination was based on four incidents:

1) Removal of the air deflector from Gerber's commissioned unit.
2) Varying work hours without permission.
3) Gerber's failur to make his superior aware of a meeting which Gerber attended on behalf of another governmental agency, and
4) Gerber's failure to comply with the directive given by a superior officer.

Gerber contends that there's a lack of substantial evidence to suport each of the foregoing incidents of insubordination.

G. The Court makes the following findings of fact and conclusions:

1. Gerber was employed by the DNR in its Division of Law Enforcement commencing November 9, 1980.

2. On July 19, 2001, Lt. Ralph E. Taylor ("Lt. Taylor") signed a Statement of Charges requesting the termination of Gerber. Gerber was charged, in pertinent part, with the violation of 310 IAC 1.2-5-4 [FOOTNOTE 1].

3. 310 IAC 1.2-5-4(4) provides:

"Cause for disciplinary action under this rule is established by any of the following:
(4) Deliberate, aggravated or repeated insubordination."

4. On July 25, 2001, the DNR suspended Gerber without pay pending the outcome of the termination proceedings (TR., p.615).

5. On August 8, 2001 a pre-deprivation hearing was conducted after which Gerber was terminated on August 19, 2001. (Tr., p. 615).

6. On August 21, 2001 Gerber appealed his termination. (Tr., p. 616).

7. On May 29, 2003, an Administrative Law Judge Panel ("ALJ Panel") conducted a hearing on Gerber's appeal of the DNR's decision to terminate Gerber. Gerber was present at the hearing and was represented by counsel. Gerber presented evidence at the hearing. (Tr., pp. 92-350).

8. On April 2, 2004, the ALJ Panel issued its Report, Findings of Fact and Non-Final Order affirming the DNR's termination of Gerber.

9. On April 19, 2004, Gerber filed his objection to the ALJ Panel's Report. (Tr., pp. 607-12).

10. On May 17, 2005, the AOPA Committee issued its order upholding the findings of the ALJ Panel that Gerber was guilty of four instances of deliberate, aggravated or repeated insubordination. (Tr., pp. 546-553).

11. On June 15, 2005, Gerber filed this Verified Petition for Judicial Review.

12. In the Statement of Charges, dated July 19, 2001, Gerber was charged with committing an act of insubordination by removing the air deflector from the Ford Expedition issued to Gerber by DNR on or about September 13, 2000. (Tr., p. 374).

13. Standard Operating Procedure ("SOP") 5-7(C)(2) provides, "Requests for modification to equipment will be submitted via the chain-of-command. Modificationto equipment shall not be made unless approved in writing by the Division Director." (Tr., p. 387).

14. SOP 41-2C(D)(6)(a) provides, "Employees shall be responsible for the general maintenance and appearance of assigned Division vehicles and shall: a. not alter mechanical or electrical equipment of the vehicle except, as authorized;..." (Tr., p. 389).

15. Gerber admits that he removed the air deflector and that he did so without permission. (Tr., p. 103).

16. During the hearing conducted on May 29, 2003, Gerber testified that he removed the deflector because it was loose; however, Gerber went on to testify "And, I also at that time removed it for a second reason. And, the second reason was that it was blocking the arrow stick which is a director-- directional signal on my overhead lights. So, for those two reasons, I took it off- put it in the back of the truck." (Tr., p. 137).

17. During the hearing conducted on May 29, 2003, Lt. Koontz testified that he interviewed Gerber on October 18th about the deflector. Lt.Koontz stated that Gerber recalled that the air deflector needed to be removed "because of an issue with the- - the light stick, or whatever its called on the back-- excuse me, on the back of the light bar. And, I asked Officer Gerber duing that interview if he did in fact remove it, and he said that he did. And, that was done at the time the light bar was being installed by a radio repair facility." (Tr., p. 233).

18. In its Report, Findings of Fact, and Non-Final Order of the Administrative Law Judge, the ALJ Panel, in its proposed findings, specifically Paragraph 16, determined that "Gerber violated Standard Operating Procedure 5-7(C-2) and 41-2-C(D)-(6a) by removing the air deflector from the rear of his State-issued Ford Expedition on or about September 13, 2000. SOP 5-7(C-2) requires written approval by the Division Director and such request shall be submitted via the chain-of-command. Gerber did not have written approval to remove the air deflector from his State-issued vehicle as evidenced by his testimony (T.R. 45, 46, 211, 248), testimony of F. Sgt. Snyder (T.R. 45, 46), and testimony by Lt. Koontz at (T.R. 142)...." (Tr., p. 617).

19. In its Report, Findings of Fact, and Non-Final Order of the Administrative Law Judge, the ALJ Panel, in its proposed findings, specifically Paragraph 11, determined that "Testimony provided by Officer Gerber was that the air deflector blocked his light bar, and subsequently fell off while driving. He sated that the air deflector was loose," however, the Department did not have any other incident of a loose air deflector on the Expeditions. The fact that the air deflector blocked his light bar, and subsequently fell off, produces a question of credibility in the testimony that it just "fell off"." (Tr., p. 617).

20. This Court determines that the ALJ Panel based its finding in Paragraph 16 after weighing the credibility of the testimony of Gerber and that this Court is not to reweigh the weight of Gerber's testimony. The standard of review is whether there is substantial evidence that supports the ALJ Panel's finding.

21. This Court finds that on the basis of Gerber's admission that he removed the air deflector without permission there is substantial evidence that supports the ALJ Panel's finding that Gerber violated SOP 5-7(C)(2) and SOP 41-2C(D)(6)(a).

22. In the Statement of Charges, dated July 19, 2001, Gerber was charged with committing an act of insubordination on September 23, 2000 by varying from his assigned work hours without notification or approval to do so, in violation of SOP 4-11, Procedure (D). (Tr., 372).

23. SOP 4-11, Procedure (D), in pertinent part, states:

"No district/section commander shall approve any requests for compensation for additional hours worked outside of the assigned work schedule nor shall any officer vary from scheduled work hours except under the following conditions:

1) Responding to an emergency where human safety is a vital issued;and/or,
2) Responding to a complaint or continuing an investigation which is directly related to the Department's area of responsibility and where immediate law enforcement action is required; and/or,
3) For an official activity affiliated with Department responsibilities or interests and with the prior knowledge and approval of the appropriate District/Section command.

24. During the hearing conducted on May 29, 2003, Gerber admitted that he varied his schedule without permission to do so. (Tr., pp. 106-06). Gerber testified that he worked the wrong schedule on the day in question and that when he realized that he was on the wrong schedule he went off duty and later returned at the scheduled time. (Tr., p. 106).

25. In its Report, Findings of Fact, and Non-Final Order of the Administrative Law Judge, the ALJ Panel, in its proposed findings, specifically Paragraph 22 [FOOTNOTE 2], dtermined that "Exhibit F shows that Gerber started his shift at 9:04 a.m. on September 23, 2000. Gerber was scheduled to work from 3:30 p.m. to 12:00 midnight on September 23, 2000. Id. Exhibit F provides evidence that Gerber met with Senator Meeks at 3:00 p.m.; just prior to his normal work-shift." (Tr., p. 618).

26. In its Report, Findings of Fact, and Non-Final Order of the Administrative Law Judge, the ALJ Panel, in its proposed findings, specifically Paragraph 23 [FOOTNOTE 3], determined that "Official notice is taken that routine schedules in the Division of Law Enforcement allow morning duty to being at 8:00 a.m. Official notice is taken that routine start times include 2:00 p.m. and 3:30 p.m. No routine shifts start at 9:00 a.m. The fact that no routine shifts start at 9:00 a.m. leads toa question of credibility of Gerber's testimony that he mistakenly started at 9:00 a.m." (Tr., p. 618).

27. In its Report, Findings of Fact, and Non-Final Order of the Administrative Law Judge, the ALJ Panel, in its proposed findings, specifically Paragraph 25, determined that "the evidence supports the charge that Gerber committed insubordination by varying from his assigned work hours without notification or approval to do so on September 23, 2000. (Tr., p. 619).

28. This Court determines that the ALJ Panel based its finding in Paragraph 25 after weighing the credibility of the testimony of Gerber and that it is not within the province of this Court to reweigh the weight of Gerber's testimony. The standard of review is whether there is substantial evidence that supports the ALJ Panel's finding.

29. The Court finds that based upon Gerber's admission that he varied his schedule without permission to do so (Tr., pp. 105-06), there is substantial evidence supporting the ALJ Panels finding that Gerber violated SOP 4-11, Procedure (D).

30. In the Statement of Charges, dated July 19, 2001, Gerber was charged with committing "an act of insubordination by failing to make Lt. Taylor of a meeting that took place on or about February 11, 2001, relative to a matter of internal affairs interest involving another agency. ..." (TR., p. 375).

31. During the hearing conducted on May 29, 2003, Gerber testified that while at home and on the internet, he "stumbled" across two gals that appeared to being doing something illegal. (Tr., pp. 111, 114). Gerber made arrangements to meet the two females for drinks at Applebee's. During the conversation at Applebee's, Gerber received information from the females that they had a connection with someone at the Allen County Sheriff's Department that would perform background checks for them. (Tr., p. 114). After the meeting, Gerber turned over all of the information gathered from his investigation to a representative of the Allen County Sheriff's Department. (Tr., pp. 114-15).

32. During the hearing conducted on May 29, 2003, Gerber admitted that prior to his meeting with the two females, Gerber did not make Lt. Taylor aware of Gerber's meeting with the two females at Applebee's on February 11, 2001. Gerber also testified that at the time he arranged the meeting with the two females, Gerber was off-duty and he was unable to contact Lt. Taylor because Lt. Taylor was unavailable. Gerber intended to contact Lt. Taylor when Gerber next saw Lt. Taylor. (Tr., pp. 122-23).

33. During the hearing conducted on May 29, 2003, Lt. Taylor, acknowledged that Gerber had informed Lt. Taylor of Gerber's investigation involving the two females and that Gerber had made contact with the Allen Cunty Sheriff's Department because of the possible involvement of one of their officers in a situation. Lt Taylor advised Gerber that he (Lt. Taylor) was bothered by the contact. Lt. Taylor instructed Gerber that he was to contact Lt. Taylor immediately regarding any additional things that he found out so that Lt. Taylor could serve as the contact between the State Police and the Allen County Sheriff's Department since it was an internal matter involving Sheriff's Department personnel. (Tr., pp. 307-308). Lt. Taylor aslo testified that he was on vacation on February 11, 2001, however, in the absence of Lt. Taylor, it would have been standard procedure for Gerber to contact first F/Sgt. Snyder. (Tr., p. 311).

34. During the hearing conducted on May 29, 2003, Lt. Taylor testified that he heard nothing from Gerber after Lt. Taylor informed Gerber to keep Lt. Taylor posted on what was taking place in the case involving the Sheriff of Allen County. (Tr., p. 326).

35. In its Report, Findings of Fact, and Non-Final Order of the Administrative Law Judge, the ALJ Panel, in its proposed findings, specifically Paragraph 34, determined that "On or about February 11, 2001, Gerber stated that he was unable to inform Lt. Taylor about this investigation since Taylor was on vacation. Gerber evidently went beyond discussions with individuals on the internet, but arranged a meeting with the people he talked with via internet. This meeting occurred without any notice to Lt. Taylor, although Taylor ordered Gerber to inform him on this issue. See testimony of Lt. Taylor at T. R. 216, 217, 220, 221 and 235." (Tr., p. 620).

36. In its Report, Findings of Fact, and Non-Final Order of the Administrative Law Judge, the ALJ Panel, in its proposed findings, specifically Paragraph 35, determined that "When given an order to inform his immediate supervisor of this issue, Taylor asserts taht it is normal procedure to inform the chain-of-command if one's supervisor is unavailable. At no time prior to Gerber's meeting with the individuals from the internet, did Gerber inform up the chain-of-command regarding the upcoming meeting. The fact that Lt. Taylor was on vacation did not justify Gerber's failure to inform his chain-of-command. It is reasonable to expect Gerber would contact his next supervisor in the chain-of-command., F. Sgt. Snyder. (citation omitted). Gerber disobeyed an order to inform his supervisors prior to meeting with those individuals Gerber suspected of illegal activity." (Tr., p. 620).

37. The Court finds that based upon Gerber's admission that Gerber failed to inform Lt. Taylor, or any other individuals in the chain-of-command, regarding Gerber's meeting that took place on or about February 11, 2001 relative to a matter of internal affairs interest involving another law enforcement agency, there is substantial evidence supporting the ALJ Panel's finding that Gerber disobeyed Lt. Taylor's order to keep Lt. Taylor informed when Gerber failed to inform Lt. Taylor, or any other individuals in the chain-of-command, regarding Gerber's meeting that took place on or about February 11, 2001.

38. In the Statement of Charges, dated July 19, 2001, Gerber was charged with failing to comply to a directive given by an officer of appropriate higher authority, specifically F/Sgt. William Snyder. On or about March 9, 2001, F/Sgt. William Snyder ordered Gerber on to produce a tape recording that contained evidence relative to an official investigation of the Department of Natural Law Enforcement Division that involved Officer Gerber, and that Gerber refused to obey the order. (Tr., p. 375).

39. During the hearing conducted on May 29, 2003, Gerber testified that he was accused of buying alcohol for somebody underage and that an investigation was taking place. F/Sgt. Snyder had started the investigation and Snyder was unaware of any communication between Gerber and Lt. Taylor regarding the investigation concerning the meeting with the two females at Applebee's on February 11, 2000. Gerber states that he filled in Sgt. Snyder on the situation. Gerber admits F/Sgt. Snyder requested the original tape recording and that Gerber explained it was personal property. Gerber stated that he did not want it out of his hands. When F/Sgt. Snyder insisted on the tape, Gerber felt it was unlawful request and that he wanted to speak to Lt. Taylor about the situation. (Tr., pp. 175-76).

40. During the hearing conducted on May 29, 2003, Gerber admitted that F/Sgt. Snyder requested copies of the tape on two occasions. Gerber admitted that he did not give Snyder the original tape when reuested. Instead, Gerber produced the tape within 72 hours after speaking with Lt. Taylor. (Tr., pp. 127-128).

41. In its Report, Findings of Fact, and Non-Final Order of the Administrative Law Judge, the ALJ Panel, in its prposed findings,specifically Paragraph 37, determined that The ALJ Panel report found "On two separate occasions, Gerber's supervisor directed him to produce a tape recording that contained evidence relative to an investigation of the DNR Law Enforcement Division that involved Gerber. Gerber refused to produce the tape when ordered. Gerber produced the tape recordings three days later, after the second directive as evidenced by testimony of Gerber, Lt. Taylor, and F/Sgt. Snyder...(Citations omitted" (Tr., p. 620).

42. In its Report, Findings of Fact, and Non-Final Order of the Administrative Law Judge, the ALJ Panel, in its proposed findings, specifically Paragraph 36, determined that "The evidence supports a finding that Gerber committed an act of insubordination in violation of 310 IAC 1.2-5-4-(4), on or about March 9, 2001 when he failed to comply with the directive given to him by F/Sgt. Snyder." (Tr., p. 620).

43. The Court finds that based upon Gerber's admission that he refused to produce the tape when ordered to do so by F/Sgt. Snyder, there is substantial evidence supporting the ALJ Panel's finding that Gerber committed an act of insubordination in violation of 310 IAC 1.2-5-4(4), on or about March 9, 2001 when he failed to comply with the directive given to him by F/Sgt. Snyder.

44. In each of the four alleged instances of insubordination that are the basis of the ALJ Panel's reason for upholding Gerber's termination, there was substantial evidence in support of the ALJ Panel's findings, the substantial evidence, for the most part, being Gerber's admission to doing what he was alleged to have done, or failed to do. Albeit, Gerber had a reason for each of the four alleged instances of insubordination as to why he did, or failed to do, what he was alleged to have done or failed to do. However, it is not within the province of this Court to substitute its judgment for that or the ALJ Panel, or the AOPA Commission, as to whether Gerber's rationalizations justify his acts of insubordination.

45. Gerber has failed to demonstrate that the action of the AOPA Committee of the Natural Resources Commission upholding the DNR's termination of the employment of Gerber was unsupported by substantial evidence.

46. With regards to the process of Gerber's termination by the DNR, Gerber has been afforded procedural due process. Gerber was presented with a Statement of Charges. A pre-deprivation hearing was conducted. Gerber was permitted to appeal his termination. Gerber was present, in person and counsel, at the hearing before the ALJ Panel. At the hearing, Gerber presented evidence and conducted cross-examination of witnesses. Gerber was permitted to appeal the findings of the ALJ Panel.

47. Even assuming that there may have been some failure on behalf of the DNR to comply with SOP concerning disciplinary procedures [FOOTNOTE 4], such failure does not constitute a violation of Gerber's right of procedural due process as to the procedures utilized by the DNR in making the decision to terminate Gerber and Gerber's administrative appeal of that decision.

48. The actions of the DNR, the ALJ Panel and the AOPA Committee of the Natural Resources Commission were not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.

DECISION

The Court affirms the decision of the AOPA Committee of the Natural Resources Commission to affirm the decision of the Department of Natural Resources, Division of Law Enforcement, to terminate the employment of Steven Gerber.

DATED: MARCH 29, 2006
David J. Avery, Judge
Allen Superior Court

FOOTNOTES

1. The statement of Charges originally charged Gerber with eight circumstances and alleging a violation of 310 IAC 1.2-5-4(4), 312 IAC 1.2-5-4(1), and 312 IAC 1.2-5-4(27). On April 2, 2004, the Administrative Law Judge Panel issued its Report, Findings of Fact, and NonFinal Order of the Administrative Law Judge, which determined that Gerber had not violated 310 IAC 1.2-5-4(13), and 312 IAC 1.2-5-4(27), but that Gerber had violated 310 IAC 1.2-5-4(4).

2. There are two Paragraphs 22's in the Report and Findings of Fact, and Non-Final Order of the Administrative Law Judge. This particular paragraph is the second numbered Paragraph 22.

3. There are two Paragraph 23's in the Report and Findings of Fact, and Non-Final Order of the Administrative Law Judge. This particular paragraph is the second numbered Paragraph 23.

4. The Court does not make any determination that the DNR did, or did not, comply with SOP concerning the disciplnary actions taken against Gerber concerning the four instances of insubordination that Gerber was alleged to have committed. The Court does not see these issues as being relevant as to whether Gerber was afforded procedural due process as to the DNR's decision to terminate Gerber. The procedural due process afforded to Gerber by DNR was an appropriate and constitutionally valid process to contest the DNR's decision to terminate his employment.

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COURT OF APPEALS MEMORANDUM DECISION - NOT FOR PUBLICATION
CAUSE NO. 02-A05-0605-CV-228
APRIL 10, 2007

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

[PAGE 2 OF MEMORANDUM]

The Indiana Department of Natural Resources (the DNR) terminated Steven T. Gerber’s employment as a conservation officer with the DNR. Gerber was provided with a predeprivation hearing, a full evidentiary hearing before an administrative-law-judge panel (the ALJ panel), and an appeal before the Natural Resources Commission (the Commission). At each stage of the administrative review process, the decision to terminate Gerber was upheld. Thereafter, Gerber sought judicial review of the agency action. The court affirmed Gerber’s termination, and Gerber now appeals, claiming the Commission’s decision was arbitrary and capricious because the DNR failed to comply with its own procedures relating to employee discipline.

[PAGE 3 OF MEMORANDUM]

On April 2,2004, the ALJ panel issued its Report, Findings of Fact, and Non-Final Order. Of the eight instances of misconduct and/or insubordination alleged by the DNR, the ALJ panel found that the evidence supported only four charges of insubordination. These included: 1) removing the air deflector from his commissioned vehicle without written approval; 2) varying from his assigned work hours without notification or approval to do so; 3) disobeying a direct order by failing to inform his supervisor prior to attending a meeting he arranged with individuals suspected of illegal activity, with whom he had become acquainted on the Internet; and 4) failing to comply with a directive given by a superior officer, on two occasions, to produce a tape recording that contained evidence relevant to an investigation of the DNR Law Enforcement Division that involved Gerber. Based on these four instances of insubordination, the ALJ panel affirmed the DNR’s termination of Gerber. Thereafter, on May 17, 2005, the Commission affirmed and adopted the ALJ panel’s report, findings of fact, and nonfinal order, with only minor technical and clerical modifications.

record material in its appendix. Therefore, though still hampered by Gerber’s actions, we will proceed with our review.

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) contrary to constitutional right, power, privilege, or immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(4) without observance of procedure required by law; or

(5) unsupported by substantial evidence.

I.C. §4-21.5-5-4(d).

46. With regards to the process of Gerber’s termination by the DNR, Gerber has been afforded procedural due process. Gerber was presented with a Statement of Charges. A pre-deprivation hearing was conducted. Gerber was permitted to appeal his termination. Gerber was present, in person and counsel [sic], at the hearing before the ALJ Panel. At the hearing, Gerber presented evidence and conducted cross-examination of witnesses. Gerber was permitted to appeal the findings of the ALJ Panel.

47. Even assuming that there may have been some failure on behalf of the DNR to comply with SOP concerning disciplinary procedures [footnote 4], such failure does not constitute a violation of Gerber’s right of procedural due process as to the procedures utilized by the DNR in making the decision to terminate Gerber and Gerber’s administrative appeal of that decision.

Appellant’s Appendix at 17. In footnote 4, the court went on to state:

The Court does not make any determination that the DNR did, or did not, comply with SOP concerning the disciplinary actions taken against Gerber concerning the four instances of insubordination that Gerber was alleged to have committed. The Court does not see these as being relevant as to whether Gerber was afforded procedural due process as to the DNR’s decision to terminate Gerber. The procedural due process afforded to Gerber by DNR was an appropriate and constitutionally valid process to contest the DNR’s decision to terminate his employment.

The DNR similarly argues on appeal (as it did below) that its alleged noncompliance with SOP did not amount to a violation of Gerber’s due process rights. Further, the DNR observes that while Gerber asserts several violations of SOP during the internal disciplinary process, he does not allege on appeal that the omissions denied him due process.

In response, Gerber argues:

The DNR fails to acknowledge that the decision of an agency which has not followed its own rules is arbitrary and capricious. Its attempt to characterize the case as one of Gerber not having been denied procedural or substantive due process is an attempt to obscure the true issue in the case. That issue is whether an agency which adopts comprehensive rules relating to employee discipline is free to ignore them.

Reply Brief of Appellant at 1. He then goes on to rebuke the DNR for devoting its appellate brief to due process issues, and he explains that the DNR has “failed to understand that there is a difference between an agency failing to following [sic] the rules and SOPs it has adopted and a denial of due process.” Id. at 2. In sum, instead of due process, Gerber makes clear that the basis of his appeal is that “[t]he failure of the DNR to follow its own rules and SOPs made the decision arbitrary and capricious.” Id. at 3.

There is a fundamental problem with Gerber’s novel appellate argument – it was not raised below. As reflected in Gerber’s judicial review brief, he consistently argued to the judicial review court that, with respect to the DNR’s failure to follow SOP, his constitutional rights to due process had been violated.3 See e.g., Appellant’s Appendix at 61 (“the failure of the Department to follow SOP policy denied Gerber his constitutional rights to due process”); id. at 64 (“the failure of the Department to follow its written guidelines…is in violation of Gerber’s constitutional rights to due process”); id. at 66 (“as argued above, Gerber’s constitutional rights to due process were violated when the

[PAGE 8 OF MEMORANDUM]

Department failed to follow SOP 9-13”); id. at 67-76 (section of Gerber’s judicial review brief dedicated to the denial of his constitutional rights to due process by the DNR’s failure to follow its own written disciplinary policies). Likely because his due process argument failed below, Gerber now attempts to wholly recast the issue. This belated attempt to effectively raise a new issue is improper and, therefore, the issue is waived.4 See Stainbrook v. Low, 842 N.E.2d 386, 396 (Ind. Ct. App. 2006) (“the Estate raises these issues for the first time on appeal, so they are accordingly waived”), trans. denied.

KIRSCH, J., and RILEY, J., concur.

FOOTNOTES:

¹ Gerber’s appendix includes only the following items, all relating to the judicial review action: 1) The chronological case summary; 2) the court’s order of judgment; 3) Gerber’s petition for judicial review; 4) Gerber’s judicial review brief; 5) the DNR’s response brief; and 6) the DNR’s post-hearing brief.

² His primary complaint is that the DNR failed to comply with SOP 9-13, which establishes “guidelines for receiving and investigating complaints of employee misconduct.” Appellee’s Appendix at 75. He notes that in two of the instances of insubordination an Employee Misconduct Recommended Disposition Report was completed but not properly forwarded through the chain of command, and with respect to the two other instances, such a report was never initiated. Gerber also complains, pursuant to SOP 26-1F, that the DNR failed to provide him with an informal review hearing before a board of captains, which apparently would have occurred prior to the predeprivation hearing and prior to his actual termination. Finally, once again relying on SOP 9-13, he complains that the DNR failed to purge certain disciplinary matters more than two years old from his record. We note that although these prior disciplinary actions were referenced in the recommendation portion of the statement of charges, they did not constitute the charges against Gerber and were not referenced in the Commission’s report.

³ As noted previously, Gerber also challenged the factual basis supporting the four instances of insubordination, arguing that the Commission’s findings were unsupported by substantial evidence (with regard to each instance of alleged insubordination) and that the decision was arbitrary and capricious because the Commission ignored crucial testimony (with respect to two of the instances of alleged insubordination). Gerber does not assert these alternative claims of error on appeal. Moreover, at no time did he argue below that the Commission’s decision was arbitrary and capricious simply because the DNR failed to follow SOP during the initial disciplinary process. Rather, as set forth above, Gerber asserted only a due process claim regarding the failure to follow SOP.

⁴ Even if we were to reach the merits, Gerber would not prevail. His argument seems to be that because the DNR failed to strictly follow SOP with respect to the initial disciplinary matters, the agency is foreclosed from taking any further disciplinary action and the subsequent decision of the Commission is necessarily arbitrary and capricious. Without any showing of actual prejudice or a due process violation, we fail to see how this can be so. And the patchwork of authority Gerber relies upon does not adequately support his broad assertions.