[CITE: Moss v. DNR, 13 CADDNAR 259 (2014)]
[VOLUME 13, PAGE 259]
Cause #: 13-134L
Caption: Moss v. DNR
Administrative Law Judge: Jensen
Attorneys: O’Hara (Moss); Boyko (DNR)
Date: April 28, 2014
[NOTE: DNR TOOK JUDICIAL REVIEW ON MAY 30, 2014 IN THE MARION CIRCUIT COURT (49D04-1405-PL-017919). ON DECEMBER 19, 2014, THE MARION CIRCUIT COURT ENTERED ITS ORDER VACATING THE COMMISSION’S DECISION AND REMANDED. ON JANUARY 8, 2015, MOSS FILED APPEAL (CAUSE NUMBER 49A02-1501-PL-00007). ON JULY 9, 2015 COURT OF APPEALS ENTERED ITS MEMORANDUM DECISION. BOTH PARTIES PETITIONED FOR REHEARING. ON SEPTEMBER 30, 2015, COURT OF APPEALS ENTERED ITS MEMORANDUM DECISION ON REHEARING.
ON MARCH 18, 2016, THE MARION CIRCUIT COURT ENTERED ITS
REMAND ORDER.
ON NOVEMBER 9, 2016, THE COMMISSION ISSUED ITS REVISED ORDER ON REMAND. SEE Moss v. DNR, (Remand),
14 CADDNAR 128 (2016).
[See Editor’s note at end of this document regarding change in the decision’s original format.]
FINAL ORDER
155. Moss shall, at his personal expense, undergo a drug and alcohol evaluation at a licensed drug and alcohol treatment facility the results of which shall be provided to his superior officer. Moss shall follow through with any recommendations resulting from that evaluation.
156. The Division shall be entitled to take disciplinary action as would be appropriate for a conservation officer’s failure to comply with a direct order from a superior officer should Moss fail to comply with the order set forth in finding 155.
157. The termination of employment imposed as disciplinary action against Moss with an effective date of July 18, 2013 is hereby commuted to a suspension without pay for a period of nine months.
158. Conservation Officer Moss is reinstated to duty status effective on the date of this order.
159. Notwithstanding Finding 158, the effectiveness of Conservation Officer Moss’ reinstatement to duty status is temporarily stayed for a period of time extending to the date a court assumes jurisdiction on judicial review or the expiration of thirty (30) days, whichever occurs first. Conservation Officer Moss shall receive full compensation during the period of the stay.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
PROCEDURAL SUMMARY:
1. David Moss (“Moss”), by counsel Mark O’Hara, filed correspondence with the Natural Resources Commission (“Commission”) on August 8, 2013 seeking review of the Department of Natural Resources’ (“Department”) termination of his employment as a conservation officer with its Division of Law Enforcement (“Division”).
2. A prehearing conference was conducted on September 9, 2013 with Moss participating in person and by counsel and the Department participating by counsel, Ihor N. Boyko, Lieutenant Colonel Steve Hunter and Lieutenant Timothy Beaver (Beaver”). The parties indicated that the matter at issue was not amenable to resolution and sought to prepare for an administrative hearing.
3. An administrative hearing was scheduled and conducted on December 5, 2013.[1]
4. Applicable to the substantive issues presented by the instant proceeding is I.C. 14-9-8 and 312 IAC 4.
5. Procedurally, the Administrative Orders and Procedures Act, or AOPA, codified at I.C. 4-21.5 and administrative rules adopted by the Commission at 312 IAC 3 govern.
6. Moss is entitled to administrative review pursuant to 312 IAC 4-4-6, which provides:
Sec. 6. (a) A conservation officer whose employment is terminated or who is demoted, suspended, or otherwise incurs direct pecuniary loss as a result of a final determination by the division director, or a person designated by the division director, may seek administrative review from the commission under IC 4-21.5 and 312 IAC 3-1.
(b) The department may, through the issuance of a general order, establish a board to provide informal review of any disciplinary action. A determination that is subject to administrative review under subsection (a), and for which informal review is available under this subsection, is not a final determination until the board completes the review and makes a written report of its findings.
(c) The employment of a probationary employee may be terminated without charges being made under section 5 of this rule. A probationary employee is not entitled to a predisciplinary meeting, administrative review under subsection (a), or informal review under subsection (b).
(d) A party who is aggrieved by a final agency action of the commission may seek judicial review under IC 4-21.5-5.
Also applicable is I.C. 4-21.5-3-4(a)(5), which specifies that a person seeking review of a personnel determination shall fulfill the requirements of I.C. 4-21.5-3-7.
7. Moss complied with all procedural requirements necessary to commence this proceeding.
8. The Commission is possessed of jurisdiction over both the subject matter of this proceeding and the persons of the parties.
9. The Commission is the “ultimate authority” or the entity vested by law as the “final authority of [the Department].” I.C. 4-21.5-1-15 & 312 IAC 3-1-2.
FINDINGS OF FACT AND CONCLUSIONS OF LAW:
10. The action to terminate Moss’ employment resulted from two investigations conducted by the Division’s Office of Professional Standards.
11. The first investigation, commonly referred to as the “OPS#1” investigation was initiated on January 10, 2013 under Case Number INV1300543O, when the Columbus City Police Chief telephoned Captain Zachariah L. Mathews’ (“Mathews”) cellular phone to inform him that “Moss was a suspect in a child molesting investigation.” Respondent’s Exhibit 7. On April 24, 2013 Mathews was again notified directly by Detective David Steinkoenig of the Bartholomew County Sheriff’s Department, of “a handful of allegations” against Moss. An investigation, commonly referred to as the “OPS#2” investigation was initiated by Mathews under Case Number INV1300583O. Respondent’s Exhibit 11.
12. Mathews is the Special Operations Commander for the Department’s Division of Law Enforcement. In this position he supervises both the training and the special investigations sections, the latter section being responsible for conducting internal affairs investigations for the Office of Professional Standards.
13. Major Terry Hindman (“Hindman”) serves as the Operations Commander for the Department’s Division of Law Enforcement and is Mathews’ direct superior. Hindman had no direct involvement in Mathews’ investigation of Moss. Testimony of Hindman.
14. If allegations of a serious nature are received against an officer or an officer is alleged to have committed a crime the internal investigation is conducted by the Office of Professional Standards. Testimony of Hindman.
15. All activity associated with the OPS#1 investigation was concluded by January 22, 2013 when Moss participated in a polygraph examination. No action was recorded by Mathews in the OPS#1 investigation report between January 22, 2013 and April 29, 2013 when Mathews inquired and ascertained that the criminal case remained under review. Id. While not contained within the OPS#1 investigation report the child molesting allegations were not substantiated and no criminal charges were filed. Id & Testimony of Mathews.
[VOLUME 13, PAGE 260]
16. The OPS#1 investigation resulted in the allegations that Moss had committed multiple violations related to his employment but no action was immediately taken.
17. The OPS#2 investigation concluded on May 23, 2013 when Moss participated in a second polygraph examination. Respondent’s Exhibit 11. The OPS#2 investigation also produced allegations that Moss had committed violations associated with his employment as a conservation officer. Id.
18. The OPS#1 and OPS#2 investigations, both of which were conducted by Mathews, are completely unrelated.
19. The Department established Moss’ disciplinary history noting that on January 21, 2012 Moss received a letter of consultation from District 4, where he was assigned prior to his transfer to District 6, which was his assigned District at the time he was terminated. The letter of consultation related to improper radio notification of his duty status. Testimony of Beaver.
20. On April 27, 2012, shortly after Moss’ transfer to District 6, Beaver noticed Moss frequently reporting on duty but out of service at home for administrative responsibilities at the beginning of his shift. Beaver, in the company of two First Sergeants, discussed the situation with Moss informally. During this conversation, Moss stated that he did have some conflicts with child care but insisted the situations in question were justified. Moss was instructed to address the child care issue and be prepared to take calls at the beginning of his shift in the future. Id.
21. The April 27, 2012 discussion resulted from an incident that occurred on opening day of turkey season when Mathews was to ride with Moss. Beaver related that Mathews had reported Moss as being vague with respect to a meeting time noting his belief that Moss was hesitant to commit to a time “due to an unknown reason.” Beaver stated that Moss was 10 minutes late going in service reportedly due to a babysitting conflict. Id.
22. June 25, 2012, Moss received a letter of reprimand regarding his failure to timely report for duty as well as his failure to complete a report as assigned. Id.
23. During the January 17, 2013 OPS#1 interview Mathews tells Moss;
You’ve been suspected of doing things that you shouldn’t have before that time. OK? So we’ve had some time to gather information. OK?
Respondent’s Exhibit 5. Also during that interview Mathews infers that the Division has previously installed a GPS tracking system on Moss’ commissioned vehicle and is already of aware of Moss frequenting inappropriate locations while on duty and using state owned equipment for improper purposes. This line of inquiry and comment leads to the reasonable conclusion that Moss was already under scrutiny before the Division received the allegations that prompted the initiation of the OPS #1 and OPS #2 investigations. However, the fact that the Division brought forward no charges against Moss associated with improper use of duty time or assigned equipment leads to the reasonable determination that those concerns proved to be unfounded.
24. Each of the charges at issue here resulted from the OPS#1 and OPS#2 investigations.
25. Between May 23, 2013, when the OPS #2 investigation concluded and June 13, 2013, when a Disciplinary Action Board (“DAB”) convened, Beaver testified that he was involved in preparing the “Statement of Charges” and “Statement of Circumstances” that outline the violations Moss was alleged to have committed.
26. The evidence does not reveal whether Beaver relied solely upon the OPS#1 and OPS#2 investigation reports or if he independently reviewed the actual evidence upon which the OPS#1 and OPS#2 investigation reports purport to be based. It is observed that the charges officially lodged by Beaver against Moss and the justification for those charges are indistinguishable from the conclusions stated in the OPS#1 and OPS#2 investigation reports. Compare Respondent’s Exhibits 7, 11, 15 & 16.
27. Because the allegations lodged against Moss as stated in Beaver’s Statement of Circumstances and Statement of Charges carried the potential for discipline involving pecuniary loss it was necessary to empanel a DAB. Testimony of Hindman.
28. The DAB did “not do an investigation but instead [reviews] the facts that were brought before them…” The members were provided copies of the Statement of Circumstances and the Statement of Charges for consideration prior to their meeting. Upon convening, the DAB members received additional information and sought clarifications from the investigator, Mathews, and from the district commander of the accused officer, Beaver. They also heard from and solicited additional clarification from the accused officer, Moss. Thereafter, the DAB members engaged in discussion amongst themselves about the evidence and the presentations but did not discuss their recommendations regarding the ultimate outcome. Testimony of Hindman.
29. Following the DAB members’ discussion, each member was called upon individually by Hindman to offer his recommendation of disciplinary action. Testimony of Hindman.
30. In this instance the DAB meeting occurred on June 13, 2013 with Hindman serving as the DAB facilitator. Beaver, Lieutenant Erick Bolt, Lieutenant Phil Schuetter, Captain Gary Whitaker and Captain Jason Lee, served as the DAB members who considered Moss’ fate. Unanimously, the DAB members recommended Moss’ termination. Respondent’s Exhibits 17 & 17A.
31. A pre-deprivation hearing was conducted on July 17, 2013 at which the Department Director, Cameron F. Clark, accepted the recommendations of Beaver and the DAB. Moss’ employment was terminated effective July 18, 2013. Respondent’s Exhibit 18.
32. In reaching their decision, members of the DAB placed great emphasis on the need for conservation officers to maintain a reputation for honesty and integrity; qualities that every conservation officer should display and qualities the Department and the Division should expect from every officer.
33. Beaver offered the belief that Moss is “deceitful” and that his reputation was “tarnished” with the Department, the community and various prosecutors. Lt. Bolt offered the opinion that Moss “struggles with integrity” and lacks honesty. Captain Whitaker observed that “lying during an OPS investigation ruins an officer’s credibility…”, and Captain Lee offered the opinion that Moss “was deceptive during the entire OPS investigation and he was deceptive to the Board today.” Respondent’s Exhibit 17
[VOLUME 13, PAGE 261]
34. It is certain that Moss was not forthcoming and candid during the OPS#1 and OPS#2 investigations. As the Board observed, Moss attempted to rationalize some of the decisions he had made and actions he had taken and failed to take personal responsibility.
35. The Department and the Division should expect the investigation into alleged officer misconduct to display at least the same degree of integrity and trustworthiness as they expect to receive from an accused officer.
36. Certain portions of the evidence create concern about the objectivity with which the OPS#1 and OPS#2 investigations were conducted. Most notable are portions of the OPS#2 investigation report that are marred by falsities and embellishments, contrary to Moss’ interests, that carried through from the investigation to Beaver’s Statement of Charges and ultimately to the DAB meeting and deliberations. Compare Respondent’s Exhibits 9, 10A & 10B to Respondent’s Exhibits 7, 11, 12 15, 17 and 17A.
37. The following exchange between Moss and Department’s counsel, Ihor N. Boyko, on cross examination, piqued interest in carefully ascertaining the accuracy of the written polygraph report prepared by Polygraph Examiner Matthew T. Harry (“Harry”):
Boyko: On the second polygraph didn’t you offer up explanations why you might not have passed that polygraph?
Moss: Yeah; I was trying to be cooperative.
Boyko: And what explanations did you offer; do you recall?
Moss: As far as the …the…
Boyko: Didn’t the examiner ask you why you might have failed that second polygraph?
Moss: I can’t remember exactly what I said.
Boyko: I mean, who offered up the reasons why the polygraph test showed you might have been deceptive? Who provided those reasons?
Moss: I did because I was being asked questions.
Boyko: OK; so you admit you were being deceptive at that point?
Moss: No, I never admitted to being deceptive.
Boyko: But you offered up reasons why you possibly….
Moss: He said is there something else that’s on your mind… that could be weighing on your mind…I never said I was deceptive though.
Boyko: This is from the Columbus polygraph report which I believe is uh…
Judge: Could it be Exhibit 12?
Boyko: Yes, that sounds right. (inaudible) It says…the examiner writes, during my pre-test interview with Mr. Moss he advised me that he and his father never discussed whether there were drugs or drugs growing, in parentheses, marijuana, at his father’s house. In the post-test interview Mr. Moss said he did have a phone conversation with his dad about drugs at the house. According to Mr. Moss his dad did, in fact, tell him during a phone conversation that there were drugs present when the deputies were at the home. He could provide me no explanation why he did not disclose that to me or Captain Mathews before.
Moss: I did not say that! I did not say that there were drugs present at the house when the deputies were there and the tape will show that!
Boyko: But you do admit that there was a phone conversation that you say after the fact about … uh… when your dad advised you after the burglary at some point there was a phone conversation where your dad does state to you that there were drugs on the property?
Moss: He never said they were on the property. He said he had grown marijuana but he’d gotten rid of it.
Boyko: Where else would he be growing marijuana?
Moss: I don’t know…I have no idea.
Testimony of Moss[2].
38. A full review of the audio recording associated with Harry’s polygraph examination reveals that Harry’s statement is, in fact, inaccurate. (See infra, findings 114 through 122)
39. This identified inaccuracy caused a critical comparison to be made of all the recorded interviews against the written reports generated from those interviews.
40. The result is troubling.
OPS#1 INVESTIGATION:
While the child molesting accusation that precipitated the OPS#1 investigation was ultimately deemed unsubstantiated, Moss did commit violations of Division rules of conduct that came to light through or were committed during the process of that investigation.
41. Moss ultimately admitted the commission of the first three charges that include:
General Order I-II Rules of Conduct
Procedure 4: General Rules of Conduct
3. Accountability, responsibility, and discipline
e. Officers who are arrested, cited, or come under investigation for any criminal offense in this or another jurisdiction shall report this fact to a superior as soon as possible.
Officer Moss claims he was made aware of his involvement in the child molesting investigation on January 5, 2013. It was not until after January 17, 2013, after being questioned about this by Captain Mathews, that he advised his supervisor (Lt. Beaver).
General Order I-II Rules of Conduct
Procedure 4: General Rules of Conduct
3. Accountability, responsibility, and discipline
g. The betrayal or other wrongful disclosure of confidential information is prohibited.
After being explained the confidentiality agreement by Captain Mathews and signing, Officer Moss discussed details of the investigation by cell phone with an unauthorized party. This occurred during a break during Captain Mathews’ interview with Officer Moss.
General Order I-II Rules of Conduct
Procedure 4: General Rules of Conduct
3. Accountability, responsibility, and discipline
b. Officers shall cooperate fully in any internal administrative investigation conducted by the Division or other authorized agency and shall provide complete and accurate information in regard to any issue under investigation.
Captain Mathews confronted Officer Moss about the telephone calls he was making during the breaks. Officer Moss denied revealing any information about the ongoing investigation to an unauthorized party several times. Eventually, Officer Moss admitted to Captain Mathews he did reveal details of the investigation to the unauthorized party.
Respondent’s Exhibit 15, pg. 1.
42. Moss admitted these charges in an interview with Mathews that occurred on January 17, 2013. Respondent’s Exhibits 5 & 7.
43. Moss expressed embarrassment at the idea of having to report the child molesting allegation to his superior officer(s) and noted that he had hoped the matter would be resolved without the need to make the notification. Respondent’s Exhibit 5.
44. While Moss’ embarrassment is understandable, the delay in making the report was not justifiable and was a violation of clearly established rules of conduct.
[VOLUME 13, PAGE 262]
45. The evidence also reveals that Moss read and Mathews assured Moss’ understanding of the Confidentiality Warning, which states, in part:
The content of this investigation is confidential. You are hereby warned that you cannot discuss this interview, anything said during the interview, or even acknowledge the existence of this investigation with anyone.
Respondent’s Exhibit 2. Moss was offered, within the Confidentiality Warning, the opportunity to identify individuals with whom he wished to be able to discuss the investigation but failed to identify any such individual. Respondent’s Exhibits 2 and 5.
46. Moss testified that he had no experience with anything like that and “had no clue” what was happening. He further explained that he did not actively seek to discuss the investigation but instead he was telephoned by a friend who asked him how he was doing. Moss said he responded saying he believed he was about to be fired and the disclosure of the investigation followed. When confronted about the conversation by Mathews, Moss is not immediately truthful about the disclosure and the violation of the Confidentiality Warning.
47. While the disclosure in violation of the Confidentiality Warning is not excusable, the explanation is plausible. However, the attempt to conceal the truth from Mathews after the fact is inexcusable.
48. The fourth charge associated with the OPS#1 Investigation states:
General Order I-II Rules of Conduct
Procedure 4: General Rules of Conduct
2. Conduct Unbecoming an officer
a. Officers shall not engage in any conduct or activities on or off-duty that reflects discredit on Indiana Conservation Officer, tend to bring the Division or the Department into disrepute, or impair its efficient and effective operation.
Officer Moss admitted to drinking alcohol to the point of intoxication in a public place on the night the child molest incident allegedly occurred (November 21, 2012). He admitted his intoxication caused him to “black out” on more than one occasion during that evening.
Id. at pg. 2.
49. While the constitutional validity of disciplinary rules associated with conduct unbecoming an officer was not questioned by Moss in this proceeding a brief discussion of the debate that frequently occurs with respect to disciplinary rules of this nature is advisable.
50. Discipline of an employee under rules addressing “conduct unbecoming an officer” has, on occasion, been challenged on the belief that the “subjectivity implicit in the language of the rule permits police officials to enforce the rule with unfettered discretion” and because it “offers no guidance to those conscientious members of the Department who seek to avoid the rule’s proscription.” Parker v. DNR, 13 CADDNAR 176, 180, (2013), citing Bence v. Breier, 501 F.2d 1185, 1190, (1974).
51. Consider however;
“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).
Parker, at 180.
Furthermore, the Division rule pertaining to conduct unbecoming an officer provides additional explanation into the types of conduct an officer might expect the Department and the Division to consider unbecoming.
52. Moss was not in uniform and was not on duty at the time he visited a local bar with his girlfriend and another couple on the night in question. Testimony of Moss.
53. There is no evidence that Moss was in his Department commissioned vehicle or that he was driving any vehicle after drinking alcoholic beverages. Id.
54. Furthermore, Moss’ friends advised Matthews that they did not believe Moss “was sloppy drunk or on the verge of blacking out.” Respondent’s Exhibit 7, pg. 7. Moss’ girlfriend also did not believe that Moss was significantly intoxicated indicating that the following morning he was able to recall certain details about the prior evening.
55. However, Moss explains that immediately upon returning home, while his girlfriend drove the babysitter to her home “around the corner” he fell asleep in the living room chair. Moss further proclaims that while he recalls portions of the night after leaving the bar there are aspects of that night that he does not recall. Examples include being unaware of who drove home from the bar and an inability to recall moving from the living room to the bedroom.
56. The evidence indicates that Moss drank between two to four beers and consumed four shots of liquor in a public place.
57. It is commonly understood that the effects of alcoholic beverages upon the body continue to increase for a period of time after last consumption so while there is no evidence that Moss “blacked out” while in public, it is apparent that he consumed a sufficient amount of alcohol to cause him to be unable to recall certain aspects of the latter part of the evening and night.
58. The record is void as to any description of Moss’ demeanor or actions while in a public place after consuming those amounts of alcoholic beverages; however, it is reasonable to conclude from the amount of alcohol consumed the high probability that Moss was displaying signs of intoxication while in public.
59. Regardless of whether Moss was displaying the effects of intoxication while in public, his consumption of shots of liquor in a public place is, alone, sufficient to justify the violation as charged by the Department.
60. A law enforcement officer must be ever mindful that he/she is always under the scrutinizing eye of the public and is expected by the Department, the Division and the public served to set a superior example.
61. Moss should expect nothing less of himself and the Department should be allowed to expect nothing less of all its officers.
62. Without doubt Moss failed the Division and the Department; but more than that, Moss failed himself.
[VOLUME 13, PAGE 263]
OPS#2 INVESTIGATION:
63. The OPS#2 Investigation involved several allegations brought to the attention of Detective David Steinkoenig of the Bartholomew County Sheriff’s Department by J. Stuart Cundiff (Cundiff) who is the father of Moss’s former step-mother, Rebecca Moss. Rebecca Moss and Moss’s father, Roger Moss, had, in the months immediately prior to Cundiff’s report, been embroiled in what Moss characterized as a “messy” and “nasty” divorce.
64. Particularly, the OPS#2 investigation involved allegations that:
Officer David Moss provided a handgun to his father who pointed it at his wife.
Officer David Moss stored/cleaned firearms and otherwise contributed to collective possession of a firearm by a convicted felon, Roger Moss.
Officer David Moss had knowledge that his father was growing marijuana at his home and/or property.
Officer David Moss attempted to retrieve his father’s stolen firearms from the Bartholomew County Sheriff’s Department for his father, a convicted felon.
Officer David Moss assisted his father in violating a protective order in an attempt to retrieve his younger brother Carlus from the Just Friends Adult Daycare.
Officer David Moss was rude and unprofessional to Bartholomew County Sergeant Brandon Slate.
Officer Moss was deceptive during this investigation.
Respondent’s Exhibit 16, pg 2 (excerpts).
65. The internal investigation determined that allegations claiming Moss had attempted to retrieve recovered firearms for his father and that Moss was rude and unprofessional with a Bartholomew County Sergeant were “false or not factual or the employee was not involved.” Id.
66. The remaining allegations were “sustained” through the OPS#2 investigation and were included in the Statement of Charges as three individual charges with the first charge containing three counts. Respondent’s Exhibit 15.
67. The charges against Moss state:
General Order I-II Rules of Conduct
Procedure 4: General Rules of Conduct
1. Obedience to laws, regulations, and orders
a. Officers shall not violate any law or any division rule, policy, or procedure.
Count 1: Officer Moss provided a handgun to his father (a convicted, violent felon) who pointed the firearm at another person. This contributing act is in violation of several state laws and federal law (Pointing a firearm at another person-Class A Misdemeanor, Serious violent felon in possession of a firearm-B Felony, Intimidation-A Misdemeanor, Felon in possession of a firearm-Federal Felony).
Count 2: Officer Moss admitted to cleaning his issued M16 rifle at his father’s residence, storing a shotgun at his father’s residence, and witnessing on several occasions firearms at his father’s residence. Officer Moss’s contributing acts are in violation of state and federal laws (Serious violent felon in possession of a firearm-B Felony, Felon in possession of a firearm-Federal Felony).
Count 3: Officer Moss assisted his father with violating a protective order when they removed his step-brother from the adult day care business. The location was specifically within the order and Officer Moss was provided a copy of the order by the day care staff which he admits to reading.
General Order I-II Rules of Conduct
Procedure 4: General Rules of Conduct
3. Accountability, responsibility, and discipline
b. Officers shall cooperate fully in any internal administrative investigation conducted by the Division or other authorized agency and shall provide complete and accurate information in regard to any issue under investigation.
Officer Moss was deceptive on three, separate occasions during this investigation (during the May 2nd interview with Captain Mathews, during the pre-polygraph interview on May 23rd, and during the polygraph examination on May 23rd). The deception was related to the shotgun he kept at his father’s residence and his knowledge of his father growing marijuana at his father home or property.
General Order I-II Rules of Conduct
Procedure 4: General Rules of Conduct
9. Prohibited associations and establishments
a. Officers shall not knowingly commence or maintain a relationship with any person who is under criminal investigation, indictment, arrest, or incarceration by this or another police of criminal justice agency (for example, persons whom they know, should know, or have reason to believe are involved in felonious activity), except as necessary to the performance of official duties, or where unavoidable because of familial relationships.
Officer Moss eventually admitted to knowing that his father was cultivating marijuana at his father’s home or property.
Respondent’s Exhibit 15, pg. 2. (The OPS#2 charges against Moss will hereinafter be referred to as Charge 1, which includes Counts 1 through 3, Charge 2 and Charge 3.)
Moss’ Contributions to His Father’s Possession of Firearms:
68. Moss conceded that on an occasion after becoming a conservation officer he handed a handgun to his father and that his father pointed the weapon at Moss’s step-mother. The evidence supports the conclusion that the weapon was not loaded but nonetheless Moss recognized the gravity of his father’s actions and immediately relieved his father of possession of the handgun.
69. Moss further acknowledged that he cleaned his M16 service rifle at his father’s residence. Moss claimed this occurred when his father was not present and the Department offered no evidence to refute Moss’ claim.
70. Moss admitted that he has observed firearms at his father’s home throughout his life, including after he became a conservation officer.
Moss’ Storage of a Shotgun at His Father’s Home:
71. The allegation that Moss stored a shotgun at his father’s home presents a less straightforward topic of discussion.
72. In the OPS#2 investigation report, Mathews writes, “after failing the polygraph test on May 23rd Officer Moss admitted that he kept one of his shotguns at his father’s residence. He told the polygraph examiner that he was deceptive in his answers on this topic in the May 2nd interview.” Respondent’s Exhibit 11, pg. 4 (emphasis added).
73. During Mathews’ May 2, 2013 interview, Moss stated:
Mathews: Do you keep firearms at your dad’s house?
Moss: I have; yeah.
Mathews: Yeah. Since you’ve been a conservation officer?
Moss: Yeah…well let me think about that cause…
Mathews: Like a 12 gauge shotgun that he bought for you?
Moss: Well, hold on a second now cause I had to…when I got back from the military I stored some weapons there and as soon as I got a place to live I kept them at my house and then other than that…
….
Mathews: You had at least your own 12 gauge there in the glass case in the bedroom in the gun case?
Moss: No, I didn’t have a 12 gauge there…my stepmom was concerned that I had a gun there when they went to do the investigation for that and I did not have any guns there…I hadn’t had guns there for years.
Respondent’s Exhibit 9.
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74. Following the polygraph examination, Harry stated to Moss; “There’s a detail you’re leaving out or there’s something you’re not telling me the truth about but the conclusion of the test is that you didn’t pass”. A portion of Moss’ post-test response included this exchange:
Moss: The only thing I can think of that…um…might be bothering me. I do remember now that Captain Mathews kept asking me about a shotgun….a shotgun…if I had any guns out there.
Harry: Um huh
Moss: And I couldn’t even recall…or I couldn’t think then why he kept asking me about that shotgun. And uh….and uh…the shotgun that was stolen from my dad had been…I purchased it.
Harry: OK
Moss: And uh…now I know why …cause he kept asking me “are you sure you didn’t have a gun…you sure you didn’t have a gun?” And it was like it wasn’t my gun…it wasn’t. I didn’t lie to him.
Harry: Uh huh.
Moss: But I did buy that gun for him so…
Harry: Was that in the back of your head when you talked to Captain Mathews?
Moss: No, not when I talked to Captain Mathews. I didn’t think about it until after the fact but I mean…
Harry: But, since you talked to him and you coming in here today.
Moss: Yeah, I thought of it and then I forgot to even bring it up when we were in there... but that gun… but heck I bought that gun for him when I was, like, 21 and I didn’t think about it when I was in there. That’s the only thing I can think of that would even affect the test.
Respondent’s Exhibit 10B.
75. Moss never admitted that he stored a shotgun at his father’s home since becoming a conservation officer and Moss did not admit to Harry that he had been deceptive during the May 2nd interview with Mathews regarding this topic.
76. The fact that Moss stored firearms at his father’s home upon returning from the military before becoming a conservation officer is of no relevance to this proceeding and was never made an issue during the OPS#2 investigation.
77. Moss’ gifting of a shotgun to his father when Moss was 21 years of age is equally not relevant to this proceeding.
78. Out of concern that the results of the polygraph examination had been impacted by this detail, Moss’ offered clarification regarding the shotgun, its purchase, its possession and its ownership by his father. Nothing about the clarification reveals deception or amounts to an admission that Moss owned the shotgun that had been at the home of his father.
79. For clarity it is important to note that a person in the business of dealing in firearms must be a holder of a Federal Firearms License (“FFL”) issued under the Gun Control Act of 1968. 18 U.S.C.923(a). An FFL holder is obligated to maintain certain information pertaining to the conduct of the licensed activity, which includes the maintenance of records providing the identity and other information regarding the disposition of any firearm on a form prescribed by the United States Attorney General. 18 U.S.C. 923(g). The form, referred to as a Firearms Transaction Record or Form 4473, which requires the recordation of the transferee’s name and other identifying information would have identified Moss as the owner of the shotgun at the time of his purchase, provided that Moss purchased the shotgun from an FFL holder. The licensing requirements set forth at 18 U.S.C. 923(a) and the record keeping requirement established at 18 U.S.C. 923(g) are applicable only to individuals “in the business” of dealing in firearms but do not apply to exchanges of firearms between individuals who are not “in the business” of dealing in firearms. For this reason there is no requirement under the Gun Control Act of 1968 for Moss to record the gifting of the shotgun to his father or for his father to record his identity as the transferee, or new owner, of the shotgun. Exhaustive research has revealed no Indiana law requiring the recordation of firearms transactions or registration of ownership identification beyond what is required by the Gun Control Act of 1968. Therefore, Moss may have been identified as the owner of the shotgun at the time of purchase in which case even though Moss gifted the shotgun to his father, Moss would remain identified as the owner of the weapon unless his father voluntarily registered himself as the owner of the weapon.
80. That Moss may have remained the registered owner of the shotgun is not sufficient to refute Moss’ explanation that the shotgun had been gifted to and was the property of his father.
81. There is no evidence to contradict Moss’ claim that he gave the shotgun to his father and there is nothing about Moss’ actual explanation or about his demeanor while offering the explanation that indicates a lack of truthfulness. Respondent’s Exhibits 9 & 10B.
82. The OPS#2 investigation report clearly misrepresents the facts in a manner that unjustifiably portrays Moss as having committed a violation of the law as alleged in Count 2 of Charge 1 and for being deceptive with respect to this issue as alleged in Charge 2. Compare Respondent’s Exhibits 9, 10a, 10b and 11.
Allegations Associated with Moss’ Knowledge that His Father was Prohibited from Possessing a Firearm:
83. Moss’s father was convicted in 1984 of Dealing a Schedule II Controlled Substance (Cocaine), a Class B Felony. As a result of this conviction, Moss’s father falls within a class of offenders referred to as a “serious violent felon.” Any person who qualifies as a “serious violent felon” is prohibited from possessing a firearm. I.C. 35-47-4-5(b)(23) or (25).
84. Not all persons who are convicted of a felony are classified as a “serious violent felon.” Id.
85. Moss was born in 1978, being approximately 6 years of age when his father was convicted.
86. The evidence indicates that Moss’s father has, for the entirety of Moss’s life, possessed firearms at his home.
87. Moss’ assertion that he had not checked his father’s criminal history and was not certain as to the crime for which his father had been convicted is not contested by the Department and is accepted as fact.
88. Moss testified that his father had made inquiry of an attorney regarding the legality of his possession of firearms and thereafter had informed Moss that he was allowed to possess firearms at his residence but not carry them outside of his residence.[3]
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89. Every allegation made against Moss with respect to his father’s possession of firearms involves instances that occurred within Moss’s father’s home.
90. Also consistent with the report Moss’ father made regarding the attorney’s opinion is the fact that while Moss and his father had engaged in hunting activities together, such activity only involved archery equipment. Respondent’s Exhibit 9.
91. During Mathews’ interview with Moss on May 2, 2013, Moss does not dispute that his father was convicted of a felony but Moss reminds Mathews that he was “a kid” and that he does not “know much about it.” Also during the interview Moss makes clear his uncertainty with respect to the legality of his father possessing firearms. Respondent’s Exhibit 9. Moss offers a similar explanation to Harry during the polygraph pre-test interview as follows:
Harry: OK and you knew that your father was a felon?
Moss: Yeah, but I’m not really sure on the specifics about what firearms he can have and what he can’t have to tell you the truth. I’m still not even certain. I’m …like that pistol that he had; he bought that before he even became a felon from what he told me. I’m not really sure when he got it or where he got it and then … I don’t know. I would love to speak knowledgeably on that law but I think most of it is federal laws and then you have the serious violent felon but I’m not really sure if he qualifies for that. I mean I know it lists on there the different, like, felonies but I’m not sure exactly what , like I said without looking at a criminal history, I’m not sure if he qualifies for that even so…
Respondent’s Exhibit 10A.
92. Moss received express confirmation that his father is prohibited from possessing firearms when he attempted to retrieve a .44 magnum handgun that had been stolen from his father’s home that was later recovered by police. During that effort, Moss was advised by the Bartholomew County Sheriff’s Department Detective that he would have to sign documentation confirming that he was recovering the gun for himself and verifying that he would not return the firearm to his father. The instances alleged by the Division of Moss contributing to his father’s possession of firearms occurred before that occasion.
93. For any number of reasons, whether it be out of a need for a son to believe against reason in his father’s truthfulness or out of an effort to maintain deniability and eliminate the need to act against his father’s interests, Moss remained willfully blind to the situation surrounding his father’s possession of firearms. Moss’ unenviable position is recognized but the worrisome situation created cannot be condoned[4].
94. In any event, the evidence does not support a certain conclusion that at the time relevant to the Department’s allegations Moss knew his father’s conviction qualified him as a “serious violent felon.”
95. Despite the actual statements made by Moss to Mathews and to Harry, the OPS#2 investigation report states unequivocally that “Officer Moss knew that his father was a convicted serious violent felon”. This conclusion, which clearly supports the allegations set forth in Counts 1 and 2 of Charge 1, is not supported by the evidence. (emphasis added).
Violations Associated with the Protective Order:
96. With respect to Count 3 of Charge 1 the evidence is clear that the protective order was violated.
97. A protective order had been obtained by Moss’ step-mother naming Moss’s father as the Respondent. The protective order stated, in relevant part:
b. This order □ does / ◙ does not protect an intimate partner or child.
…..
4. ….The Respondent is further ordered to stay away from the following place(s) that is/are frequented by the Petitioner and/or Petitioner’s family or household members:
Just Friends- Adult Day Care.
Respondent’s Exhibit 14.
98. Moss was unaware that the protective order had been issued until after he arrived at Just Friends Adult Day Care (“Just Friends”) in the company of his father.
99. To Moss’ knowledge his father had not been served a copy of the protective order at the time they visited Just Friends.
100. Moss was provided a copy of the protective order by the facility’s staff and he acknowledged quickly reviewing the document looking particularly for references to his brother, Carlus, as a protected person. Moss asserts that after confirming Carlus was not identified as a protected person he concluded that his father removing Carlus from Just Friends was not a violation of the protective order.
101. Moss was correct in his conclusion that the protective order does not identify Carlus as a protected person.
102. However, the protective order did prohibit Moss’ father from being present at Just Friends.
103. While the protective order would not have prevented Moss’ father from contacting Carlus at other locations, the protective order requirement that Moss’ father stay away from Just Friends had the effect of prohibiting Moss’ father from contacting Carlus at or removing Carlus from that facility.
104. The charge against Moss alleges that Moss violating the law associated with his handling of the protective order.
105. To affirm the Department’s Count 3 of Charge 1 that Moss committed a violation of the law requires a determination that Moss was aware that his actions constituted a violation of the terms of the protective order.
106. Moss maintains that it was not his intent to allow his father to violate the protective order, insisting instead that he did not understand the dictates of the protective order.
107. Moss’ father was not prosecuted for a violation of the protective order and the protective order was amended to include Carlus as a protected person a few days later. These facts reasonably indicate that the protective order, as originally issued, was not enforceable for the purpose actually intended.
108. Moss offered that his failure to appropriately understand or address the protective order stems, in part, from lack of familiarity with protective orders noting that conservation officers are not routinely called upon to enforce protective orders. On multiple occasions throughout the interviews conducted by Mathews and Harry as well as during the administrative hearing, Moss asserted that he has had little dealing with protective orders.
109. Mathews aptly observed that willfully assisting his father in violating the protective order constituted a violation of the law whereas inaccurately reading and understanding the protective order amounted to incompetence. Respondent’s Exhibit 9. The evidence could be interpreted to support either conclusion.
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110. A conservation officer is cloaked with full law enforcement authority and it seems reasonable to conclude that a conservation officer should be equipped to quickly read, understand and enforce a protective order. This conclusion would lead to the belief that Moss willfully allowed the violation of the protective order.
111. However, even Mathews acknowledged that conservation officers do not have frequent contact with protective orders, which lends credibility to Moss’ claim that he misinterpreted the protective order. Respondent’s Exhibit 9.
112. The administrative record is void of any explanation as to how the Department reached the conclusion that Moss willfully assisted his father in violating the protective order as opposed to concluding that Moss simply acted incompetently. Under either circumstance Moss’ action was inappropriate.
Moss’ Knowledge of His Father’s Cultivation of Marijuana
113. Charge 2 alleges that Moss was deceptive with respect to “his knowledge of his father growing marijuana at his father’s home or property.”
114. The importance of Moss’ knowledge that his father was involved in the cultivation of marijuana stemmed from an allegation that during a burglary investigation at Moss’ father’s home Moss’ father had asked Moss to intervene by keeping the “police away from the garage and wooded area behind the house” where his father allegedly had marijuana plants growing. Claimant’s Exhibit B.
115. On May 2, 2013 Mathews questioned Moss about his knowledge of his father’s involvement in cultivating marijuana, as follows:
Mathews: Do you suspect your dad is, or has been growing marijuana? Have you suspected that at all?
Moss: No.
Mathews: Is this the first you know of it?
Moss: Yeah
…..
Mathews: If we Monday test you on a polygraph you’ll pass that?
Moss: Yeah
Mathews: That you have no thought, no suspicion, nothing that your dad is growing marijuana…you’re going to pass that?
Moss: Yeah
Respondent’s Exhibit 9.
116. On May 23, 2013, in Harry’s pre-test interview the subject of Moss’ father’s cultivation of marijuana was similarly discussed:
Moss: One of the complaints I guess was that I went out there to interfere in their investigation so they wouldn’t find marijuana at his house. What was specifically told to me was $5,000 dollars worth of marijuana…but I’m not… The question that was asked of me is did my dad ever mentioned it and no, my dad never mentioned anything to me about having marijuana out there as far as going out there stopping anyone from doing anything nor would I interfere in an investigation like that. And the Sheriff’s Department didn’t even ask to…cause they said it was in the garage and woods or something like that.
Harry: Talking specifically about marijuana?
Moss: That’s what he said. He mentioned “or meth” but I think he was just going off on a whim with that one so I’m not sure if that was part of the complaint or something but…. Yeah that was…from what I gathered it was marijuana it was specific to.
…
Harry: In regards to your dad’s house being broken into you’re saying that they’re accusing you of knowing that there was drugs out there? Is that accurate to say?
Moss: Right, right.
Harry: OK DNR is accusing you of knowing there were drugs out there?
Moss: Yeah.
Harry: OK, I’m just going to ask you point blank…did you know that there were drugs out there?
Moss: No
Harry: OK, In the conversation that your dad had with you…the phone conversation….when your dad called you when he was in transit to St. Louis…did he in any way say “hey Dave I need you to get out there and take care of the drugs that may be in the garage or the field or wherever”.
Moss: No.
Harry: Before the Sheriff’s Department gets there? Or make sure they don’t go in these parts of the property.
Moss: No, he didn’t tell me make sure they don’t go anywhere. He just wanted me to go check on my step mom and my brother. That was his…what he specifically asked me.
Harry: And there was no discussion about any kind of drugs?
Moss: No, as a matter of fact, my dad called me again when I was out there and I believe that I handed the phone to one of the detectives to talk to. I can’t remember which detective it was because there was three different detectives out there and, uh…
…
Harry: As far as that goes that day, or prior to, you have no knowledge of any drugs being out at your dad’s house?
Moss: Well, prior to…your asking….my dad used to smoke marijuana and I knew that. But as far as I know…
Harry: Within the last five years?
Moss: As far as I know he quit and I don’t know that he had anything but…
Harry: OK, how about since you’ve been employed at DNR? Have you ever seen any kind of drugs out there or had any knowledge that there were drugs out there?
Moss: No.
Respondent’s Exhibit 10A.
117. Following the polygraph examination during the post-test interview Moss and Harry had the following exchange regarding Moss’ knowledge of his father’s marijuana cultivation activities:
Moss: Well, uh, yeah. Come to think of the drug thing, I guess I did leave something out. My dad did tell me he had drugs out there but it wasn’t before; it was after-the-fact. He said he had some marijuana plants but he’d gotten rid of them and that’s all he told me. And, I said I don’t even want to fucking hear that is what I, is basically what I told him. I said why are you doing stupid stuff like that? And, uh, but I didn’t hide anything...
Harry: Why didn’t you tell Captain Mathews that?
Moss: I didn’t, I didn’t think about that when I was in there, I guess, and I… I
Harry: Well, furthermore, why didn’t you tell me that? I mean, because I’ve got no ties to DNR. It doesn’t matter to me one way or the other. The only thing I care about is whether or not…
Moss: I kind of forgot about it until you said removed… removed stuff from the house. My dad, like I said, he told me that probably months after-the-fact. And, it was… it was one of those things. Honestly, I couldn’t believe that. And he didn’t tell me he had them out there then during the robbery or anything, he just said that he had done that, but….
Harry: Hang on a second. Why is that even relevant to uh… he had to have had them out there during the robbery; that’s why he brought it up to you.
Moss: I don’t know. I… but he didn’t tell me that… I mean, he didn’t tell me that. Uh, I don’t, I don’t...I mean, other than…
Harry: How, what do you say, when you say pot plants, how many are we talking about?
Moss: I don’t know, I don’t know. I didn’t ask.
Harry: Alright. Okay. Alright.
Moss: I don’t know.
Harry: Well, that’s… would you agree that as a police officer, having your dad tell you that is a pretty… just based on how you reacted when you tell your dad why are you telling me that? You know that’s… why are you involved in that. I mean, as a police officer that’s got to be pretty heart-breaking to have your dad, and pretty heavy to have your dad come and tell you that.
Moss: Yeah.
Harry: Because, I mean, he obviously knows that as a CO you have… I mean, you’re just like the Sheriff Deputies or just like CPD, I mean, you are a police officer.
Moss: Yeah.
Harry: Well, why did, why did he tell you that?
Moss: My dad tells me about everything, I mean, hell he tells me about women he has sex with that I don’t want to hear. He tells me about everything that I don’t want hear.
Harry: Okay.
Moss: So, I mean, as far as drugs though, that’s the only thing he’s ever told me in the last uh I mean, as far as being employed that’s, I mean, I don’t know of anything else that he’s ever…
Harry: Why didn’t you tell me that back there?
Moss: I didn’t really… I guess I didn’t think about it. I should have thought about it and it’s probably…
Harry: I mean, one of my specific questions to you was did you ever know that you father ever had any kind of drugs out there at all.
Moss: Right.
Harry: And… that’s… that’s…
Moss: I mean, but I didn’t know where he had them.
Respondent’s Exhibit 10B.
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118. A comparison of Moss’ statements made before the polygraph examination and after the polygraph examination reveal the obvious deception.
119. However, during the post-test interview Moss reiterates to Harry that he did not know whether the plants were at his father’s home during the burglary investigation and asserts that he did not even know where the plants were.
120. Despite Moss’ actual statements, Harry conveys in the polygraph report that Moss said “his dad did, in fact tell him during a phone conversation that there were drugs present when the deputies were at [his father’s home].” Harry’s polygraph report in this respect is completely false. Respondent’s Exhibit 12 (emphasis added).
121. Harry’s unsupported statement could easily cause a reader to infer that Moss had interfered with the deputies’ movements throughout his father’s home and property during their burglary investigation in order to prevent the discovery of his father’s marijuana cultivation operation.
Moss Maintaining a Relationship with His Father:
122. With respect to Charge 3 there are a variety of matters to be considered.
123. The rule of conduct at issue is not artfully drafted and for this reason it requires interpretation.
124. The rule initially states that “officers shall not knowingly commence or maintain a relationship with any person who is under criminal investigation, indictment, arrest, or incarceration by this or another police or criminal justice agency”. This sentence taken alone denotes that the person with whom a relationship is prohibited must be the subject of an active investigation. However, the next sentence of the rule provides; “(for example, persons whom they know, should know, or have reason to believe are involved in felonious activity)”, which infers that a conservation officer must avoid relationships with any person they know or should know is engaging in criminal activity whether or not that person is the target of an active investigation. Respondent’s Exhibit 15.
125. Clearly, a conservation officer could know or suspect that a person is involved in felonious activity despite the fact that the person is not presently the subject of an active law enforcement investigation.
126. It is reasonable to infer that the Division does not intend to allow its conservation officers to associate with an individual who engages in undiscovered criminal activity any more than with an individual who is under active criminal investigation.
127. Moss’ father had not been indicted, arrested or incarcerated and Mathews repeatedly told Moss that no agency was seeking to open an investigation targeting his father. Clearly Moss’ father was not “under criminal investigation.”
128. However, according to Moss, who provides the only available source of actual evidence relating to his father’s drug activity, his father told him about the possession of marijuana plants after his father had already gotten rid of the plants. Respondent’s Exhibit 10B.
129. Whether Moss’ father was the subject of an investigation or whether the criminal activity his father was involved in was ongoing or occurred in the past, the rule of conduct at issue excepts from its application the maintenance of relationships that are “unavoidable because of familial relationship.” Respondent’s Exhibit 15.
130. The Department presented no evidence with respect to the relationship Moss enjoys with his father since the time his father reported to Moss his recent involvement in the cultivation of marijuana. Through the investigation Moss offered that he does not talk to his father often anymore. Moss also expressed a lack of knowledge whether his father presently maintains firearms at his home. From these statements it may be surmised that Moss’ relationship with his father has become more distant. In any event it would be reasonable to conclude that some type of relationship between a son and a father would qualify as an unavoidable familial relationship.
Observations and Perceptions of a General Nature:
131. It is settled that;
The administrative law judge is required to conduct "de novo review of evidence presented at administrative hearing, weighing evidence and reaching conclusion[s], rather than deferring to initial determination[s] of [the] NRC". DNR v. United Refuse Co., Inc., 615 N.E. 2d 100 (Ind.1993). ‘The administrative law judge (ALJ) is required to make findings based on evidence presented at hearing; this requires [the] ALJ to independently weigh evidence presented at hearing and to base recommendations exclusively on that record.’ Id. Findings must be based upon the kind of evidence that is substantial and reliable. Id.
Putnam and Hootman v. DNR, 8 CADDNAR 104, 1998.
132. It is apparent from Mathews’ statements and attitude during the January 17, 2013 interview that he believed Moss to be a liar. Making reference to his encounter with Moss that led to Moss’ June 25, 2012 reprimand, Mathews stated, “Your general lifestyle is not an honest person.”
133. Mathews approach to the OPS#1 interview does not convey a goal of learning the truth as much as it conveys prejudgment and the intent to obtain Moss’ resignation. Respondent’s Exhibit 5.
134. At the end of the OPS#1 interview Mathews and Moss had the following discourse:
Mathews: How do you think I have treated you?
Moss: Like I’m guilty. I think you had that set in your head before I came in here.
Id.
The impression left in the mind of an objective third party after listening to the interview is consistent with Moss’ belief.
135. One might disregard the attitude displayed during the OPS#1 investigation except for the inaccuracies discovered in the OPS#2 investigation. Combined, these factors increase misgivings regarding the objectivity of the investigation that brought Moss to his demise.
136. Make no mistake; a conservation officer is not entitled to preferential treatment when under investigation. However, every person, including a conservation officer accused of wrongdoing, is entitled to the benefit of an unbiased and objective investigation conducted with the intent of truth seeking.
137. All conflicting information gathered during the OPS#2 investigation was resolved against Moss’ interests and on occasion, conclusions were based upon non-existent admissions.
138. Following the OPS#2 polygraph examination Matthews stated to Moss, “I can’t trust you on face value; the Division can’t trust you on face value….” Respondent’s Exhibit 10B.
139. Regrettably, on administrative review the investigation into Moss’ misconduct, particularly the OPS#2 investigation, is equally untrustworthy at face value.
140. Despite the imperfections apparent in the investigation it is clear that Moss is guilty of violations of the Division’s rules of conduct.
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141. All four of the charges resulting from the OPS#1 investigation are affirmed.
142. Charge 3 of the OPS#2 investigation must be invalidated. The relationship complained of is a father-son familial relationship and the Division’s rule of conduct at issue expressly exempts from its precepts those relationships of a familial nature.
143. While a father-son association is not within the scope of relationships that may be prohibited by the rule of conduct at issue in Charge 3 of the OPS#2 investigation and for that reason Charge 3 is deemed invalid, Moss is reminded that he swore to uphold the law at all times with respect to all people, including his family and friends.
144. Charge 2 of the OPS#2 investigation is affirmed, but only in part. Moss is concluded to have been deceptive during the OPS#2 investigation only with respect to his knowledge of his father’s marijuana cultivation; however, there is no proof to establish that Moss knew where the marijuana cultivation occurred. There is no evidence to support a conclusion that Moss was deceptive with respect to the shotgun that was located at his father’s house.
145. There is no evidence to support the conclusion that Moss stored a shotgun at his father’s house as was concluded in the OPS#2 investigation. Therefore, Count 2 of Charge 1 of the OPS#2 investigation must fail as that charge relates to the shotgun.
146. Count 1 and Count 2 of Charge 1 of the OPS#2 investigation allege that Moss provided firearms to a person he knew to be a “serious violent felon” who, as a result of that classification, is prohibited from possessing a firearm. The Department did not prove that Moss knew his father’s felony conviction caused his father to fall within the class of offenders characterized as a “serious violent felon.”
147. Moss should not be comforted in the fact that the Department failed to prove Counts 1 and 2 of Charge 1. Moss clearly questioned, in his own mind, the lawfulness of his father’s possession of firearms and was clearly aware that his review of his father’s criminal history would provide a definitive answer. Without doubt, Moss’ ignorance with respect to the lawfulness of his father’s possession of firearms was by design and the result is unacceptable.
148. With respect to Count 3 of Charge 1 of the OPS#2 investigation, the Department charges Moss with the violation of the law, namely the commission of the crime “invasion of privacy” for assisting in the violation of a protective order. I.C. 35-46-1-15.1. The evidence presented at the administrative hearing is not sufficient to justify a conclusion that Moss willfully assisted in the violation of the protective order any more than the evidence supports the conclusion that Moss incompetently failed to fully review and comprehend the dictates of the document.
149. While the evidence is not sufficient to uphold a number of the charges leveled against Moss as a result of the OPS#2 investigation, Moss’ injudicious actions were disclosed as result.
150. Full consideration has been given to the charges that have been affirmed on administrative review as well as to Moss’ lack of judgment as noted with respect to certain charges that were not affirmed.
151. It is concluded that Moss acted imperfectly, particularly with respect to matters involving his father. Empathy with Moss’ dilemma with respect to his father is appropriate but his actions, and inactions, cannot be overlooked.
152. Moss’ failure to be fully forthcoming during the course of the OPS#1 and OPS#2 investigations is unfortunate but judgment against Moss in that regard is tempered slightly by the manner in which the investigations appear to have been conducted.
153. Disciplinary action against Moss is appropriate. However, it is concluded that Moss’ character and reputation is not so utterly tarnished as to justify his termination from employment.
[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format. The Final Order, Paragraphs 155 through 159, have been relocated to the “Final Order” section at the beginning of this document.]
[1] It is disclosed here that it became necessary to remove the exhibit stickers originally affixed to Respondent’s Exhibits 9, 10A and 10B because the stickers became detached in the CD player resulting in a malfunction. The Exhibit identification numbers were written in permanent marker directly on the CD by the administrative law judge.
[2] The court reporter has not been requested to prepare a transcript of the hearing. If a witness is shown as quoted in these Findings, the statement is as nearly verbatim as the administrative law judge can ascertain. If a transcript is subsequently prepared that indicates different wording, the transcript constitutes the record and a quotation here shall be considered to paraphrase witness testimony.
[3] It is acknowledged that Moss’ testimony regarding matters told to him by his father may well have been hearsay given that Moss’ father was not available to testify. Upon proper objection the use of this testimony might have been restricted by operation of I.C. 4-21.5-3-26(a), however, the Department did not object to this testimony by Moss so the evidence was received without limitation.
[4] During the post-test interview when Moss explained to Harry that it seemed the Department wanted him to turn in his own father for possessing firearms, even Harry recognized “that would have been a hard phone call to make, I’m sure.”