CADDNAR

 

 

[CITE: Parker v. DNR, 13 CADDNAR 176 (2013)]

 

[VOLUME 13, PAGE 176]

 

 

Cause #: 12-032D

Caption: Parker v. DNR

Administrative Law Judge: Jensen

Attorneys: Newton (Parker); Boyko (DNR)

Date: June 26, 2013

 

 

FINAL ORDER

 

The Department’s termination of Parker’s employment is affirmed.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

CASE SUMMARY AND JURISDICTION

 

1.      On February 7, 2012, David L. Parker (“Parker”), represented by counsel, Stacy K. Newton, of Rudolph, Fine, Porter & Johnson, LLP,  filed correspondence with the Natural Resources Commission (“Commission”) seeking administrative review under I.C. 14-10-3-9 and I.C. 4-21.5 et. seq of his termination from employment by the Department of Natural Resources (“Department”). [1]

 

2.      Parker was the Assistant Property Manager at the Sugar Ridge Fish and Wildlife Area who served as the Acting Property Manager from March 2011 through September 2011.

 

3.      Parker’s employment was terminated by the Department on January 11, 2012 under the authority of I.C. 14-10-3-8.

 

4.      As relevant to the instant proceeding, I.C. 14-10-3 applies to property managers of the Department’s Division of Fish and Wildlife, which manages the Sugar Ridge Fish and Wildlife Area.  I.C. 14-10-3 et seq. prescribes procedures relating to the enlistment, training, hiring or termination of those employees.  I.C. 14-10-3-1(3) & I.C. 14-10-3-2.

 

5.      It is noted that I.C. 14-10-3-8, which granted to the Department the authority to terminate the employment of property managers such as Parker, as well as I.C. 14-10-3-9, which grants to Parker the right to seek administrative review of the termination by the Commission, were repealed effective July 1, 2012.  P.L.100-2012, SEC.44 & P.L.100-2012, SEC.45.  However, because Parker’s termination occurred before the effective date of the repeal, I.C. 14-10-3-8 and I.C. 14-10-3-9 remain applicable to Parker’s termination and this administrative review.

 

6.      I.C. 14-10-3-9 specifies that administrative review shall be conducted in accordance with I.C. 4-21.5 et seq. 

 

7.      The Commission is the ultimate authority.  I.C. 4-21.5-1-15, I.C. 14-10-2-3, 312 IAC 3-1-2.

 

8.      The Commission has jurisdiction over the subject matter and the persons of the parties to the instant proceeding.

 

FINDINGS OF FACT

 

9.      Throughout this final order it will be necessary to make reference to a juvenile girl who is the daughter of an employee whose assigned work location is the Sugar Ridge Fish and Wildlife Area office.  The parties asked that this juvenile girl’s name be withheld to protect her identity, which request was granted.  The administrative law judge notes here that reference to the juvenile girl’s mother by name will effectively disclose the identity of the juvenile girl.  Therefore, just as the juvenile girl’s identity will be withheld, the mother’s identity will likewise be withheld.  Throughout this order, the mother will be referred to simply as “the child’s mother” and the juvenile girl will be referred to as “the child”.

 

10.  The child was 12 years of age at the time of the events discussed herein.

 

11.  Prior to his termination on January 11, 2012, Parker had been employed by the Department for 26 years in various capacities beginning as an intermittent laborer and working into his first management position at Green-Sullivan State Forest where he worked for approximately 10 years.  Parker then served as the Assistant Property Manager at Deem Lake for approximately two years until he assumed responsibilities as the Assistance Property Manager at the Sugar Ridge Fish and Wildlife Area on November 1, 2000.  Respondent’s Exhibit 7.

 

12.  The Department’s stated grounds for Parker’s termination was “repeated unbecoming conduct” under Indiana Code § 14-10-3-8(4).  Respondent’s Exhibit 7.

 

13.  Until December 2011, Parker had received no written reprimands or suspensions and was the subject of no disciplinary action throughout the entirety of his 26 years of employment with the Department.

 

14.  Parker’s performance appraisals throughout his 26 years of employment with the Department reflected satisfactory performance of his job responsibilities. 

 

15.  As the Assistant Property Manager, Parker was responsible for the overall management of Sugar Ridge Fish and Wildlife Area in support of efforts to provide quality fishing and hunting opportunities to the public. 

 

16.  Parker, as the Assistant Property Manager, assumed his responsibilities at Sugar Ridge Fish and Wildlife Area at nearly the same time Nate Leavitt (“Leavitt”) became the Property Manager.  Parker served under the supervision of Leavitt until early March 2011, when Leavitt transferred to manage a different Department property. 

 

17.  Also employed at the Sugar Ridge Fish and Wildlife Area is Regional Secretary, Debbie Walter (“Walter”).  In addition to preparing purchasing documents and reports, conducting inventory, and handling fishing license sales for Sugar Ridge Fish and Wildlife Area, Walter also handles purchasing matters for public lands in the southern part of Indiana.  Walter reported directly to the Property Manager but was also responsible for assignments received from the Assistant Property Manager.

 

18.  “[Leavitt’s] job was largely administrative; he spent the better part of every week in the office and [Parker] at least attempted to spend as much time as [he] could in the field supervising and working with the work crews.”  Testimony of Parker.  Under Leavitt’s supervision, Parker was particularly assigned to address the safety program, equipment maintenance and inventory.  Parker also served as the direct supervisor of the property’s laborers.  

 

19.  Therefore while Leavitt was serving as the Property Manager, even though Parker and Walter were required to interact with respect to various purchasing matters and to conduct inventory, Parker’s contact with Walter was minimized.

 

[VOLUME 13, PAGE 177]

 

20.  During the period between Leavitt’s departure in March 2011 and the Department’s hiring of Sam Whiteleather (“Whiteleather”) as the new Property Manager in September 2011, Parker was the highest ranking employee at the Sugar Ridge Fish and Wildlife Area and became responsible for all management duties.  In essence, Parker temporarily served as an Acting Property Manager during that short time period.

 

21.   It was during this period between March 2011 and September 2011 that it became necessary for Parker to spend a greater number of hours in the office and increased the need for him to be in contact with Walter.

 

22.  Parker and Walter concur that between March to September 2011 their working relationship became difficult.

 

23.  Parker admitted that he occasionally referred to Walter as “the toad” when talking to other employees, including the child’s mother and Susan Myer (“Myer”). 

 

24.  Walter explained that Parker started “shirking off some of his duties” and acting in an “unprofessional” manner.  Walter elaborated that she observed Parker taking the child, along with the child’s friends, out to lunch or to go shopping using his State issued vehicle.  Occasionally these events would occur during Parker’s work hours.

 

25.  Walter added that she also became aware of activity occurring between Parker and the child in the Sugar Ridge Fish and Wildlife Area’s conference room that involved the use of Redi-Whip. 

 

26.  Walter discussed this with the child’s mother who referred to the activity involving the Redi-Whip as a “game” Parker and the child played.  Parker acknowledged the inappropriate nature of this activity as he explained that it involved Parker, the child and on occasion other friends of the child spraying Redi-Whip at each other and into each other’s mouths. 

 

27.  Parker acknowledged to investigators that he commonly photographed and video-taped the activities involving the Redi-Whip as well as the child and himself with the whipped cream on their faces and clothing.

 

28.  All the evidence together assures the accuracy of Walter’s testimony that as a result of the activities involving Redi-Whip there were “stains all over the conference room floor.” 

 

29.  Walter was also aware that Parker bought the child clothing from Victoria’s Secret and expressed the belief that such purchases being made by Parker was inappropriate.  Victoria Secret catalogs were left in plain sight in the office by Parker and Parker occasionally mentioned, in the presence of Walter, the need to inform the child that Victoria Secret was having a sale.

 

30.  Walter discussed the situation with Parker advising him that she was, for the first time ever “unhappy” at her job.  She advised Parker of her belief that his behavior was unprofessional.  Parker asked what he could do to correct the situation and Walter asked him to remove the Victoria Secret material from the office and to “stop acting like a 10 year old.”  Walter also reminded him of the impropriety of taking the child and her friends to lunch and shopping using the State issued vehicle.  Walter emphasized her belief that the Parker’s purchase of items from Victoria Secret for the child and his activities with the child involving the use of Redi-Whip was inappropriate.

 

31.  It is understood that Victoria Secret stores sell a line of clothing under a label “Pink”, which clothing is not lingerie.  Parker and the child’s mother insist that the items purchased for the child from Victoria Secret were “Pink” items.  Walter clearly believes that even items of clothing under the “Pink” label are inappropriate for any child at the age of 12 but further expressed that Parker inferred that some of the items purchased for the child were lingerie items.  

 

32.  The evidence supports the conclusion that Parker persisted in maintaining Victoria Secret catalogs in his office in open sight. 

 

33.  Parker even admitted intentionally placing a Victoria Secret receipt in his expense report that Walter was responsible for reconciling.   

 

34.  Further, the evidence is clear that Parker would “regularly” carry Victoria Secret shopping bags and bags containing “multiple cans of whipped cream” waving the bags into the shared workspace of Walter and Myer.  Myer testified that this activity on Parker’s part “was to me a point to [Walter]; it was to get under [Walter’s] skin”. 

 

35.  Parker acknowledged having transported the child and her friends in his State issued vehicle but the evidence supports the conclusion that Parker stopped this activity after Walter discussed the situation with him. 

 

36.  Parker acknowledged that on one occasion he was required for work purposes to travel to Evansville and that he took the child with him.  Parker admitted that the trip to Evansville became a “shopping spree” for the child that occurred during Parker’s work hours and he acknowledged the misuse of his work time.  Claimant’s Exhibit C.

 

37.  The Sugar Ridge Fish and Wildlife Area office building is shared by personnel of the Department’s Divisions of Fish and Wildlife, Water, Nature Preserves as well as by conservation officers and personnel assigned to the Department’s Division of Law Enforcement’s Operational District 7.   The portion of the building controlled by the Division of Law Enforcement is separated from the remainder of the building and entry into this portion of the building by the public is restricted.  While members of the public may access those portions of the building not under the control of the Division of Law Enforcement, the public at large would not be allowed to roam freely throughout the office space without invitation.   

 

38.  Non-Division of Law Enforcement employees working at the Sugar Ridge Fish and Wildlife Area were allowed to freely access the Division of Law Enforcement’s office space.  Respondent’s Exhibit 3.

 

39.  The lobby areas and the kitchen are common areas for all employees as is the conference room the floor of which was stained by the Redi-Whip.  The conference room is also utilized on occasion for meetings with members of the public.  

 

40.  The evidence supports the conclusion that the game involving the use of Redi-Whip continued after Walter’s discussion with Parker but Parker moved the cans of Redi-Whip to the refrigerator maintained for use by the staff of the Division of Law Enforcement.  

 

41.  Parker commented to Myer that if he ever caught Walter “snooping around his house that he would kill her over a couple days…basically it would be a slow and painful death.”  Testimony of Myer

 

42.  While Parker’s statement did not cause Myer to believe Walter was in eminent danger, knowledge of the statement was “unnerving” to Walter.  Testimony of Walter. 

 

[VOLUME 13, PAGE 178]

 

43.  It was apparent to the administrative law judge from Myer’s demeanor during the administrative hearing that her knowledge of the events occurring between Parker and Walter and the dissention existing at the Sugar Ridge Fish and Wildlife Area placed her in an uncomfortable position.

 

44.  Parker’s taunting of Walter also included placing a ball cap stained with whipped topping within Walter’s work space.  Parker testified he had placed the ball cap in Walter’s trash but Walter discovered the cap on the corner of her desk.  Walter acknowledged that she did not know how the cap ended up on her desk.  In any event the need for Parker to place the ball cap in the trash can in Walter’s office space as opposed to the trash can in his own office or some other trash can is consistent with the taunting that he was otherwise engaging in toward Walter.  The evidence clearly supports the conclusion that Parker’s intent was to antagonize Walter.

 

45.  Further example of Parker’s taunting of Walter occurred following a conversation in which Walter acknowledged having financial difficulties to the point that she could not afford shoes for her son.  Parker inexplicably left a Shoe Carnival receipt on Walter’s desk reflecting the purchased of several hundred dollars worth of shoes and boots for the child.   

 

46.  The child’s mother is an employee of the Department’s Division of Law Enforcement. 

 

47.  Walter, who was clearly concerned about the child’s well-being initially consulted with Lt. Charles Anthony Sanders (“Sanders”) on July 28, 2011.  Sanders is the supervisor of the child’s mother.

 

48.  It was clear from the evidence that Walter and others were concerned about Parker’s sexual intentions with respect to the child.

 

49.  Sanders is a Lieutenant with the Department’s Law Enforcement Division serving as a District Supervisor for Operational District 7. 

 

50.  On July 28, 2011, when Walter reported her concerns about Parker’s involvement with the child to Sanders, Sanders expressed to Walter that she should notify him if she observed additional activity that she believed required his attention.  Sanders was aware of other individuals who shared Walter’s concerns about Parker’s relationship with the child.  Respondent’s Exhibit 5. 

 

51.  On August 1, 2011, Parker, after having become aware that people were talking about his involvement with the child, engaged Sanders in a discussion.  Sanders cautioned Parker to be aware of the public perceptions created by his actions.

 

52.  On August 1, 2011, Sanders also spoke to the child’s mother about the reports being made by Walter and others.  The child’s mother was aware of the relationship between Parker and the child and was unconcerned except for the belief that Parker spent too much money on the child.  Testimony of Sanders, Respondent’s Exhibit 5.

 

53.  On November 22, 2011, as Walter locked up the building to leave for the day she discovered the child hiding in an already darkened back office.  As Walter exited the building she did not observe the child’s mother’s vehicle in the parking area so she returned and questioned the child as to why she was in the dark and otherwise empty office alone.  The child explained that her mother had to go to her grandmother’s house but would return soon.  Walter reluctantly proceeded to leave the building only to observe as she drove away from the office that Parker was driving into the office parking area.  This event, along with Parker’s continuing inappropriate office conduct and her awareness of the threat Parker had conveyed to Myer, prompted Walter to send an email to Sanders on November 22, 2011 expressing her continuing concerns about the relationship between Parker and the child. Respondent’s Exhibit 2.

 

54.  Sanders took no official action with respect to the situation between Parker and the child until after he received Walter’s November 22, 2011 email.  On November 23, 2011 Sanders had discussions with Parker and on November 28, 2011 discussed the situation with the child’s mother.  Sanders’ action was prompted not only by Walter’s continued concern but also because of a situation he personally observed involving Parker and the child. 

 

55.  Sanders explained that he attempts to provide a family friendly office environment for parents and tries to be understanding of difficulties in finding childcare on short notice as might be required when children are sick, have snow days from school or when parents have otherwise unexpected childcare difficulties.  

 

56.  The situation Sanders observed resulted on an occasion when the child was home from school due to illness and the child’s mother, apparently having no one else to watch over the child, bought her to the office.  The child was allowed to sleep in a vacant office in the portion of the building controlled by the Division of Law Enforcement.  On this occasion, Sanders observed more than one instance in which Parker was sitting in the doorway of the vacant office watching over the child.

 

57.  Despite the custom of allowing staff of the Department’s other Divisions to freely enter the otherwise restricted office space of the Division of Law Enforcement to conduct business, Sanders, on November 23, 2011, issued a letter to Parker effectively limiting Parker’s movement within the Division of Law Enforcement’s office space to “the front area around the TCO’s desk, or in the respective office or squad room when visiting with an officer.”  Respondent’s Exhibit 3.     

 

58.  Similarly, on November 28, 2011, Sanders provided written notification to the child’s mother with respect to “parameters for allowing [the child] to be in the office…”  Respondent’s Exhibit 4. 

 

59.  Because of the ongoing nature of concerns about the activities between Parker and the child, Sanders also felt obliged to notify Detective Sergeant William Baker (Baker), an investigator for the Department’s Division of Law Enforcement, District 7 geographic area, for further evaluation.  Testimony of Sanders, Testimony of Baker.

 

60.  After speaking to Sanders about the situation, Baker, in consultation with his superior, Captain Zach Matthews, deemed it appropriate to review the matter for potential criminal activity involving Parker with the child.  Testimony of Baker.

 

61.  Detective Sergeant Joel A. Arthur (Arthur), an investigator for the Department’s Law Enforcement Division assisted with the investigation with an emphasis on the technical aspects of the investigation.  Arthur had previously been assigned to the FBI Cyber Crimes Task Force for two years and has received specialized training through the National White Collar Crime Center in the forensic collection of data from computers and crimes utilizing the internet and cellular phones.  Testimony of Arthur.

 

62.  Through the investigation Parker’s office and work computer were searched.   

 

63.  Within the drawer of Parker’s desk located in the Sugar Ridge Fish and Wildlife Area office, Baker and Arthur located a Victoria Secret catalog on top of “several printed photo collages of [the child]”.  They observed numerous notes from the child on Parker’s desk. 

 

[VOLUME 13, PAGE 179]

 

64.  Arthur also removed the hard drive from Parker’s state-owned computer and using a forensic write-blocking bridge evaluated the contents of the hard drive.  Arthur discovered a folder identified as “dparker’s pictures”, which contained several additional folders within which were located numerous pictures of the child and other juveniles.

 

65.  Parker voluntarily provided the investigators his personal cellular phone and his personal laptop for additional review. 

 

66.  The vast majority of the evidence relied upon to support the termination of Parker’s employment was gathered through the criminal investigation conducted under the direction of Baker.  The criminal investigation was focused on potential criminal conduct occurring between Parker and the child and for this reason the investigators examined activity and incidents involving the child that occurred both on Parker’s work time as well as during his off-duty hours and considered activities occurring both within Parker’s workplace environment and at locations away from the Sugar Ridge Fish and Wildlife Area property.  Evidence of off-duty-hours activities was admitted by the Department without objection from Parker and, in fact, Parker, himself, entered into evidence audio recordings of law enforcement interviews, which includes information about non-work related incidents and activities.

 

67.  At issue in this proceeding is Parker’s “repeated unbecoming conduct” associated with his employment.  Indiana Code § 14-10-3-8.   For that reason, the administrative law judge has attempted to separate Parker’s on-duty activities from the off-duty activities and has attempted to limit her discussion and consideration to evidence relating to matters either involving Parker’s work environment or those matters impacting Parker’s employment as the Assistant Property Manager at Sugar Ridge Fish and Wildlife Area. 

 

68.  Ultimately, it was determined by the Department’s Law Enforcement Division that Parker possessed no sexually explicit or nude photographs of the child or any juvenile.   The investigation revealed that Parker had inappropriate feelings for the child and caused Parker to realize and acknowledge that some of his behavior with the child was improper.  It was concluded, however, that Parker had engaged in no unlawful conduct with the child.  Testimony of Baker, Testimony of Arthur, Respondent’s Exhibit 5.

 

69.  Information gleaned from the criminal investigation was reviewed by Eric Kleinert (Kleinert), who is employed by the State Personnel Department and served as the Human Resources Director for the Department in January 2012 and by Cameron F. Clark (Clark), Department’s General Counsel, who also served as the Department’s Pre-Deprivation Officer in January 2012, as well as by other Department staff.

 

70.  Clark explained that as the Pre-Deprivation Officer it was his responsibility, in coordination with other supervisory staff of the Department, to make determinations regarding employee disciplinary matters.  This facet of Clark’s position occasionally, as it did in this instance, involved conducting Pre-Deprivation meetings with employees facing disciplinary action. 

 

71.  In this instance Clark, along with Kleinert, and other unidentified Department staff, conducted the Pre-Deprivation meeting with Parker on January 11, 2012.    

 

72.  During the Pre-Deprivation meeting Parker was advised of the allegations and issues upon which the potential discipline was based and was provided an opportunity to address those allegations and issues.  The Pre-Deprivation meeting was lengthy, lasting over one hour, and the topics of discussion included, among other things, minors being transported by Parker in state vehicles, Parker taking minors to lunch and shopping on work time, Parker wrestling with the child in the conference room resulting in Parker’s inadvertent touching of inappropriate anatomical body parts of the child, Parker’s placement of the Victoria Secret receipt in his expense report, and the sexual innuendos related to his activities with the child.  Parker was provided an opportunity to address all of the issues raised.  According to Clark Parker emphasized that much of the activity occurring between himself and the child occurred outside of his work hours and conveyed the belief that the activities occurring on work time were not “that big a deal.”  Testimony of Clark. 

 

73.  The evidence allows for the reasonable conclusion that the wrestling in the conference room between Parker and the child occurred when she was much younger.  Regardless of the child’s age, the occurrence of wrestling between a grown man and a child in an office environment remains highly suspect notwithstanding it coming to light several years later.

 

74.  After speaking to Parker the individuals conducting the Pre-Deprivation meeting determined that termination was the appropriate action.  Clark’s determination that Parker’s inappropriate use of the Victoria Secret receipt was a “horrible example for somebody in a position of authority to be setting amongst your fellow employees; the people over whom you are supervising” is absolutely accurate.  Clark added that Parker’s activities involving the Victoria Secret material could be construed as sexual harassment, which is taken very seriously by the Department and was, alone, sufficient grounds for Parker’s termination in Clark’s opinion.  Furthermore, Clark noted the “atypical” activity between Parker, a 54 year old male, and the 12 year old child was known by employees of Sugar Ridge Fish and Wildlife Area whether it occurred, as it did, both on work time, occasionally at the Sugar Ridge Fish and Wildlife Area office in view of other employees, or on Parker’s personal time.  In this respect, Clark believed that Parker’s integrity had been undermined and his ability to effectively supervise staff had been compromised.  Overall, Clark conveyed the Department’s belief that Parker’s behavior was extremely unbecoming for a person who served in a supervisory capacity.

 

75.  Clark’s conclusions about the impact of Parker’s activities upon Parker’s management ability are well founded.

 

76.  While Parker and the child’s mother described Parker’s relationship to the child as one of essentially being an uncle.  Parker, who is unmarried, has no children and is somewhat estranged from his siblings, expressed that the child and the child’s parents were like family to him. 

 

77.  However, the investigation disclosed that Parker’s feelings toward the child extended beyond the feelings of an uncle to a niece.  In fact, Parker acknowledged that he had fantasized about the child while masturbating and occasionally forgot the child’s young age. 

 

78.  Parker advised that he frequently became upset if the child paid him no attention explaining that he spends large sums of money on the child and believed he “should get something out of it.”  Otherwise, Parker expressed that he simply felt like an ATM Machine.  

 

79.  While the activities occurring between Parker and the child were inappropriate for a workplace setting in any event, the activity that might otherwise have been characterized as “horseplay” appears far more sinister given Parker’s true feelings for the child.

 

80.  Through the investigation Parker also admitted to allowing the child to drive a motor vehicle with him riding as a passenger and videotaping the events.  While Parker acknowledged allowing the child to drive on rural roads what is particularly important to this proceeding is the fact that Parker also acknowledged allowing the child to drive on roads within the Sugar Ridge Fish and Wildlife Area between the office and the shop.  Claimant’s Exhibit B.  The only evidence available provides for the reasonable conclusion that the child was only allowed to drive Parker’s personal vehicle and never Parker’s state issued vehicle.

 

[VOLUME 13, PAGE 180]

 

CONCLUSIONS OF LAW

 

81.  Parker’s employment was terminated based upon the belief of the Department that Parker had engaged in “repeated unbecoming conduct.”  Indiana Code § 14-10-3-8(4).

 

82.  Rules associated with employee disciplinary actions based upon imprecise language such as “unbecoming conduct” have routinely been the subject of attack for unconstitutional vagueness.  Bence v. Breier, 501 F.2d 1185, (1974) (involving the language “conduct unbecoming a member and detrimental to service”); Bird v. County of Allen, 639 N.E.2d 320, (1994) (involving the language “unbecoming conduct.”); Atkinson v. City of Marion, 411 N.E.2d 622, Ind. App. 1980; Natural Resources Commission v. Robert Sullivan, 428 N.E.2d 92, (1981) (involving the language “frequently repeated acts of incompetence”).

 

83.  Parker maintains that the basis of his termination, “repeated unbecoming conduct” as stated at Indiana Code 14-1-3-8(4) is unconstitutionally vague such that the Department possessed “unfettered discretion” and that any review of the Department’s decision is “meaningless.”  Parker concludes therefore that due process prevents the Commission’s application of the language.

 

84.  Parker cites Bence, supra in support of his proposition.  In Bence, two Milwaukee policemen were reprimanded following an incident in which they sought to have an investigation conducted by their labor negotiator relating to the City of Milwaukee’s failure to properly compensate policemen and to have the matter included in the next year’s negotiations.  However, the officers contacted the labor negotiator before they sought a remedy through commanding officers as required by Departmental policies.  The reprimands were based upon the Department’s conclusion that the officers engaged in “conduct unbecoming a member and detrimental to service.”

 

85.  The court concluded that the phrase “conduct unbecoming a member and detrimental to service” was unconstitutionally vague on the basis of three proscriptions against such vagueness that were stated as follows:

 

First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.  Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, law must provide explicit standards for those who apply them.  A vague law impermissibly delegates basic policy matters….for resolution on an ad hoc and subjective basis, with all the attendant dangers of arbitrary and discriminatory application.  Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.”  Uncertain meanings inevitably lead citizens to “‘steer far wider of the unlawful zone’…than if the boundaries of the forbidden areas were clearly marked.” 

 

Vagueness, however, is a matter of degree and context.  We recognize that “there are limitations in the English language with respect to being both specific and manageably brief,” and that “condemned to the use of words, we can never expect mathematical certainty from our language.”  Moreover, we recognize that there “are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision,” and therefore the vagueness doctrine is “not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.”  Yet, the “root of the vagueness doctrine is a rough idea of fairness.”

Bence, at 1188 - 1189, internal citations omitted.

 

86.  In the case of the two Milwaukee policemen the court determined the “subjectivity implicit in the language of the rule permits police officials to enforce the rule with unfettered discretion” and “offers no guidance to those conscientious members of the Department who seek to avoid the rule’s proscription” such that ultimately the court determined that for these reasons that “administrative and judicial review can be only a meaningless gesture.”  Bence at 1190.

 

87.  As was noted in Bence the actions taken by the Milwaukee policemen that became the basis of the reprimands they received was “merely [sending] a letter to the city’s labor negotiator outlining a proposed bargaining demand for the next round of negotiations,” which amounted to an exercise of their right to free speech as protected by the First Amendment to the Constitution of the United States.  This fact allowed the court to conclude:

 

Because the rule in this case is vague as applied to the plaintiffs, Bence and Hanneman, the case is readily distinguishable from other cases involving similar language where courts have determined that the plaintiffs lack standing to challenge the vagueness of a regulation, because the plaintiffs’ conduct was deemed to provide notice (i.e., the rule was not vague as applied to a plaintiff).  In Allen v. City of Greensboro, 452 F.2d 489 (1971), the Fourth Circuit stated that a police detective “knew the precise nature of the charge” [improper advances toward a young woman during the course of a police investigation] in rejecting a vagueness challenge on a regulation proscribing “conduct unbecoming an officer and a gentleman.”  Significantly, the court added that “the argument that the regulation….is so vague as to provide no guidance to police officers in ascertaining the proper standard of conduct may well be invalid in other circumstances…”  Similarly, Judge Leventhal, writing for the D.C. Circuit in Meehan v. Macy, 129 U.S. App. D.C. 217, 392 F.2d 822, 835 (1968), (additional citations omitted) dismissed a vagueness contention respecting a rule prohibiting “conduct unbecoming an officer” apparently on standing gounds: “We think it is inherent in the employment relationship as a matter of common sense if not common law that [a governmental] employee…cannot reasonably assert a right to keep his job while at the same time he inveighs against his superiors in public with intemperate and defamatory [cartoons]…[Dismissal in such circumstances does not come] as an unfair surprise or is so unexpected or uncertain as to chill his freedom to engage in appropriate speech.

Bence, at 1193 – 1194. (emphasis added)

 

88.  It is clear from the express effort to distinguish the facts of the Bence case from earlier decisions that there was no intent by the Seventh Circuit to undermine all disciplinary regulations embodying the proscription against “unbecoming conduct.”  Instead, as is evidenced by numerous decisions following Bence, there is conduct “clearly within the contemplation of a disciplinary statute or rule” such that the employee “should not be entitled to escape responsibility for his actions merely because the same provision may be imprecise when applied in different contexts.” Sullivan, supra at 101, citing Atkinson v. Marion, 411 N.E.2d 622, 627, (1980).

 

89.  Numerous cases decided prior to the Bence decision found conduct so clearly within the contemplation of a non-specific regulation to be sufficient for disciplinary action.  For instance, discipline was affirmed for a police officer who made improper advances to a woman during the course of an investigation as “conduct unbecoming an officer and a gentleman” in Allen v. City of Greensboro, supra; discipline was also upheld for “conduct unbecoming an officer” for the writing, printing and distributing of an “intemperate lampoon” defamatory to the Governor in Meehan v. Macy, supra, and disciplinary action was sustained in Arnett v. Kennedy, 416 US 134, (1974) when an employee was disciplined under a disciplinary scheme that permitted removal or suspension of employment for “such causes as will promote the efficiency of the service” after making reckless and unsupported bribery allegations.

 

[VOLUME 13, PAGE 181]

 

90.  Similarly, there are numerous occasions since Bence was decided in August 1974 in which disciplinary action taken under the authority of regulations utilizing inexact language have been affirmed.  For example, in Sullivan, supra, the Indiana Court of Appeals upheld a Department Division of Law Enforcement Captain’s demotion on the grounds of “frequently repeated acts of incompetence” upon evidence that the officer had, among other things, caused “dissention and low moral” and had on multiple occasions failed to follow established accounting requirements and for the submission of improper receipts for reimbursement resulting in 10 erroneous disbursements.  A second example is Atkinson v. Marion, supra; in which the Indiana Court of Appeals similarly affirmed an officer’s dismissal on the basis of “conduct unbecoming an officer” for “lying to a superior officer during an internal police investigation for theft and presenting a false sales slip in connection with the same investigation.” Finally, in Bird v. County of Allen, 639 N.E.2d 320, (1994) in which the Indiana Court of Appeals affirmed the termination of two police officers on the grounds of “unbecoming conduct” and “immoral conduct” after the officers engaged in the “preparation and dissemination of false, malicious statements concerning an alleged cover up by the Department.” 

 

91.  The question remaining in this instance is whether Parker’s activities and conduct “clearly falls within the contemplation of a disciplinary rule” such that he “should not be entitled to escape responsibility for his actions merely because [the] rule may be imprecise when applied in a different context.”  Bird at 333.

 

92.   Parker was, for much of the time relevant to this proceeding, the highest ranking member of the management physically located within the Sugar Ridge Fish and Wildlife Area.  He served as a supervisor for subordinate employees and in that role would have been responsible to recommend discipline or otherwise take corrective action with respect to a subordinates’ misconduct or failure to abide by established office policies.  In such position it was incumbent upon Parker to set the example by complying with rules and regulations associated with providing a safe and appropriate work environment for all staff.  Another facet of Parker’s responsibility was to foster adherence to established policies and procedures and compliance with accepted conditions of employment by setting an example for those employees under his supervision.

 

93.  Parker failed to carry out his management responsibilities.  In his failure Parker absolutely engaged in “repeated unbecoming conduct” as determined by the Department.

 

94.  The evidence reveals that Parker allowed the child to operate a motor vehicle on the Sugar Ridge Fish and Wildlife Area property between the office and the shop.  In so doing, Parker exposed the Sugar Ridge Fish and Wildlife Area and the Department to potential liability associated with his actions as well as he aided in the commission of a traffic offense.

 

95.  Parker transported the child and other minors in a vehicle owned by the State of Indiana.  This action by Parker also exposed the Sugar Ridge Fish and Wildlife Area and the Department to potential liability through a flagrant violation of State and Departmental policies.  Furthermore, this activity was clearly known to other employees, which would have rendered Parker powerless to address a subordinate employees’ violation of the same policies and regulations.   

 

96.  The evidence reveals that Parker referred to Walter as “the toad” to Myer, an employee under his direct supervision, and to other employees within the Sugar Ridge Fish and Wildlife Area.  This action is utterly inexcusable for a manager as it not only displays a complete disregard for subordinate employees it fosters discord between management and staff as well as creating dissention between staff members.  Overall, this activity, particularly combined with other of Parker’s activities created an uncomfortable work environment for Walter, Myer and potentially other employees.  Such action certainly did nothing to foster a healthy, harmonious work environment or create teamwork between staff members and management.

 

97.  The evidence reveals that after Walter made known her disapproval of Parker’s activities with the child, Parker actively taunted Walter by placing a Victoria Secret receipt in his expense report.  This action reveals an absolute disregard for Walter, Walter’s morale or the work environment being created for Walter.  Furthermore, this action involves Parker’s fraudulent submission of a Victoria Secret Receipt for reimbursement without regard for the potential disruption to overall office operations or the potential to hinder account reconciliation. 

 

98.  Furthermore, and again after Parker was aware of Walter’s disapproval of his purchasing items from Victoria Secret and of the play with Redi-Whip, Parker intentionally displaying shopping bags from Victoria Secret and bags clearly containing cans of Redi-Whip created tangible imagery associated with the activities Walter found objectionable.  Again this action was contrary to the creation or maintenance of a cohesive work team or healthy work environment for Walter and other employees. 

 

99.  Under the circumstances that Walter was concerned that Parker’s activities with the child were potentially of an inappropriate sexual nature Parker’s display of the otherwise innocent cans of Redi-Whip could also arguably be construed as sexual harassment.  Without more, the display of Victoria Secret catalogs within the workplace could easily be construed as sexual harassment. 

 

100.          Certain of Parker’s activities with the child occurred during his work hours, which arguably could constitute a violation of 42 IAC 1-5-13 “ghost employment”.

 

101.          Parker’s participation in squirting Redi-Whip into the mouth of the child and at the child in the Sugar Ridge Fish and Wildlife Area, whether it occurred during Parker’s duty hours or on his off-duty hours, constitutes not only utterly reprehensible behavior for an office environment but this activity resulted in the defacing of property of the State of Indiana.

 

102.          Parker’s threatening statement made to one subordinate, Myer, about another subordinate, Walter, is obviously disruptive to the workplace.  Moreover, in today’s society where early warning signs of potential danger are frequently disregarded until the grave and deadly consequences become reality such a statement cannot be ignored and must be acted upon.

 

103.          Finally, Parker’s activities resulted in Sanders determination to restrict Parker’s movements within the Law Enforcement Division’s section of the Sugar Ridge Fish and Wildlife Area office, which clearly could have impacts upon the working relationships overall.

 

104.          Parker concludes from the evidence presented that:

 

The only evidence of actual work related conduct raised by the DNR was leaving a Victoria Secret receipt on Walter’s desk, allowing [the child] to ride in a work truck when Parker left the office to get lunch, some play fighting with whipped cream and a wrestling incident in the break room.  None of these things constitutes the type of unbecoming conduct a 26 year veteran of the DNR should be terminated for.

 

105.          As evidenced by the multiple examples enumerated herein, Parker, in his post-hearing brief omits a variety of incidents the evidence shows occurred.

 

106.          It is acknowledged that Parker may have been officially “off duty” during some of the instances of activity between himself and the child.  However, some of those activities, whether occurring during Parker’s work day or during Parker’s “off-duty” hours, occurred in the Sugar Ridge Fish and Wildlife Area office or on the property and as such directly impacted the Sugar Ridge Fish and Wildlife Area, the Department and Parker’s integrity, authority and ability to fulfill his employment responsibilities. 

 

107.          Parker also mischaracterizes the evidence relating to the submission of the Victoria Secret receipt.  The evidence is clear that the receipt was not merely left on Walter’s desk; it was included in Parker’s expense report where it could have, if processed, created numerous office and accounting disruptions.

 

108.          Taken as a whole, Parker’s actions and conduct unquestionably constitutes “repeated unbecoming conduct” supporting the Department’s termination of Parker’s employment as the Assistant Property Manager of Sugar Ridge Fish and Wildlife Area.

 

109. It is also certain that Parker’s conduct provided sufficient notice such that I.C. 14-10-3-8(4)’s proscription against “repeated unbecoming conduct” was not vague as applied to him.  See Bence, supra at 1193.