CADDNAR

[CITE: Moss v. DNR (Remand), 14 CADDNAR 128 (2016)]

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Cause #: 13-134L

Caption: Moss v. DNR

Administrative Law Judge: Jensen

Attorneys: Groth (Moss); Boyko, Wooding (DNR)

Date: November 9, 2016

[NOTE: THE FOLLOWING IS THE COMMISSION'S FINAL ORDER ON REMAND. SEE Moss v. DNR, 13 CADDNAR 259 (2014). ON DECEMBER 7, 2016, DNR SOUGHT JUDICIAL REVIEW IN THE MARION SUPERIOR COURT (49D14-1612-PL-042987). ON SEPTEMBER 14, 2017, THE MARION SUPERIOR COURT AFFIRMED NRC’S FINAL ORDER ON REMAND.]

FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER REVISING THE COMMISSION’S FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER ISSUED ON APRIL 28, 2014 ON REMAND FOLLOWING JUDICIAL REVIEW

Historical Summary and Procedural Posture:

1. On April 30, 2014, the Natural Resources Commission (“Commission”) issued its “Finding of Fact and Conclusions of Law with Final Order” (hereafter referred to as “the Final Order”) in the instant proceeding. Moss v. DNR, 13 CADDNAR 259 (2014).

2. The Department of Natural Resources (“Department”) sought judicial review of the Final Order on May 30, 2014 and on December 14, 2014 the Marion Circuit Court vacated the Final Order and remanded the matter to the Commission for further proceedings.

3. The Claimant, David Moss (“Moss”), appealed the Marion Circuit Court’s vacation of the Final Order and on July 9, 2015, the Indiana Court of Appeals affirmed in part and reversed in part the Marion Circuit Court’s order, remanding the matter back to the Marion Circuit Court.

4. On March 18, 2016, Marion Circuit Court Judge Louis Rosenburg once again remanded the matter to the Commission with instructions. Indiana Department of Natural Resources v. David Moss, Cause No. 49C01-1405-PL-017919, “Order” filed March 18, 2016 (hereafter referred to as “the Court Order”).

5. The Court Order affirms the majority of the findings of fact and conclusions of law as set forth in the Final Order. However, the Court Order provides as follows:

The Court therefore concludes that the ALJ’s finding that Moss did not violate 18 US Code 922(g)(1) is not supported by substantial evidence and misapplies applicable federal law.

Pgs. 12 – 13.

6. Further, the Court Order states:

Based on the foregoing Findings of Fact, Conclusions of Law and Legal Discussion, the decision of the NRC is vacated and remanded to the Commission for further proceedings consistent with this opinion. In particular, the Commission is to reconsider its decision as to sanctions in light of this Court’s finding that Moss contributed to the commission of the crime possession of a handgun by a felon per 18 US Code Section 922(g).

In lieu of reinstatement, the DNR shall continue its current compensation of Moss, until the NRC issues its final order herein. If said order continues Moss’s employment as a conservation officer, the NRC shall prescribe terms of reinstatement, including whether Moss may be placed in an administrative position.

Pgs. 17 – 18.

7. Further appeal was not taken by either party.

8. As pertinent to the instant proceeding, 312 IAC 3-1-20(a) states that “…upon remand following judicial review or appeal, the administrative law judge who previously conducted the proceeding shall resume jurisdiction.” Further, “if the administrative law judge is not the ultimate authority, IC 4-21.5-3-29 and section 12 of [312 IAC 3-1] apply.” 312 IAC 3-1-20(c).

9. In this instance the administrative law judge is not the ultimate authority.

10. The scope of this nonfinal order is limited to addressing the matters set forth in the Court Order.

Clarified Findings of Fact and Conclusions of Law on Remand Following Judicial Review

11. The Court Order determines the administrative law judge previously concluded that Moss had not facilitated the possession of a handgun by a felon which constitutes a violation of 18 U.S.C. 922(g).

12. The Court Order concluded that Moss had provided a handgun to a known felon through Moss’s admitted action of handing a handgun to his father as was alleged in the Department’s Statement of Charges against Moss as follows:

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).

(Bold added) (This allegation, as a whole, was referred to in the Final Order as Charge 1 Count 1 of the Department’s Statement of Charges, which was admitted as evidence at the administrative hearing as Respondent’s Exhibit 15).

13. Within Count 1 Charge 1 there are four distinct allegations.

14. The facts stated in the Final Order supported the Commission’s conclusion that the Department failed to prove three of the allegations contained within Count 1 Charge 1. These conclusions were affirmed on judicial review.

15. The fourth allegation of Count 1 Charge 1 asserts that Moss contributed to the possession of a firearm by a convicted felon in violation of 18 United States Code § 922(g).

16. The Final Order expressly states the following findings of fact:

68. Moss conceded that on an occasion after becoming a conservation officer he handed a handgun to his father

83. Moss’s father was convicted in 1984 of Dealing a Schedule II Controlled Substance (Cocaine), a Class B Felony.

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 v. DNR, 13 CADDNAR 259, 268 (2014). At 263 – 265.

17. Although Findings 68, 83 and 93 combine to substantiate the Department’s charge that Moss did, in fact, contribute to the possession of a firearm by a known convicted felon the conclusion reached at Finding 147 erroneously does not reflect that conclusion.

18. In hindsight it is clear the conclusion stated in the Final Order, at Finding 147, that the Department failed to prove the entirety of Count 1 Charge 1 overlooked and is inconsistent with ultimate determinations of fact expressed in Findings 68, 83 and 93 of the Final Order as they relate to the fourth allegation of Count 1 Charge 1.

Reconsideration of Sanction

19. The Court Order requires reconsideration “as to sanctions in light of this Court’s finding that Moss contributed to the commission of the crime possession of a handgun by a felon per 18 US Code Section 922(g).” At pg. 18.

20. The director of the Department’s Division of Law Enforcement “will normally impose discipline in a progressive manner; however, the division director shall impose discipline that is appropriate to the seriousness of the misconduct.” 312 IAC 4-4-5, Harris v. DNR, 10 CADDNAR 289, 300 (2006).

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21. Moss’ service with the Department began in 2009 and he was employed as a conservation officer until his termination in July 2013. During that period of time Moss “received a letter of consultation for misreporting duty status” and a “reprimand for tardiness in reporting for duty. Neither of these actions was considered serious.” Court Order, pg. 2.

22. With respect to Moss’ misconduct, the comments and recommendations of the disciplinary action board’s (hereafter referred to as “DAB”) members were summarized by Major Terry Hyndman (“Hyndman”) to include the following:

(a) “Officer Moss uses poor judgment and is deceitful.”

(b) Officer Moss chooses to “ignore laws that we should be enforcing… Officer Moss has even shown a tendency to disregard various SOP and Department rules that he feels don’t apply to him.”

(d) “Officer Moss has shown a pattern of poor decision making. He was deceptive…Officer Moss seems to pick and choose which laws he will enforce or believe in.”

Respondent’s Exhibit 17.

23. The DAB did not conduct a de novo review of the investigation conducted by Captain Zachariah L. Mathews (“Mathews”), the Department’s internal investigator. Final Order, Finding 28.

24. Unlike the DAB, as the ultimate authority for the Department, administrative review of a Department action by the Commission is required to be conducted de novo, considering and applying proper weight to the evidence presented at the administrative hearing. Indiana Code § 4-21.5-3-14(d); Court Order, Finding 5; see also Clauss v. DNR, 11 CADDNAR 150, 151 (2007), Sommers v. LaPorte Co. Conven. & Visitors Bur., 13 CADDNAR 169, 171-172 (2013).

25. After full consideration of the audio recordings of the investigation interviews the Commission determined that with respect to certain allegations against Moss the content of those recordings is inconsistent with the content of the Statement of Circumstances and the Statement of Charges prepared by Mathews that were presented to and considered by the DAB. Final Order, Findings 82 and 120. While this factor does not excuse any misconduct actually committed by Moss, the misrepresentations contained within the Statement of Circumstances and the Statement of Charges presented an exaggerated characterization of Moss’ misconduct by facilitating the lodging of charges for which there was no evidentiary support and presenting an inflated view of the alleged deception. Furthermore, because the DAB relied heavily upon an inaccurate evidentiary summation without conducting de novo review, it is reasonable that Moss’ continued denial of the unsupported allegations would be viewed as continuing deception before the DAB. See Respondent’s Exhibit 17. For these reasons the determinations of the DAB were, and are again, determined to be of diminished value.

26. Neither the Department, nor Moss, presented any additional evidence associated with the application of “progressive discipline” or evidence to substantiate that the sanction imposed by the Department was or was not proportionate to the misconduct. For this reason, the record in this proceeding proves to be of limited assistance.

27. Contested determinations of the Commission, including those involving personnel determinations of the Department’s Division of Law Enforcement, are indexed pursuant to Indiana Code § 4-21.5-3-32.

28. Official notice may be taken of “the record of other proceedings before the agency.” Indiana Code 4-21.5-3-26(f)(2).

29. The administrative law judge has conducted a survey of the Commission’s indexed cases considering disciplinary action taken by the Department for conservation officer misconduct.[1] Three cases considered involve disciplinary action associated with officer deception and failure to comply with standard operating procedures or direct orders of superior officers. The remaining case involves those types of allegations in an instance relating to providing an illegal weapon to another person, similar to the allegations lodged against Moss in this instance.

30. The sanctions imposed in these past proceedings are presumed to be consistent with 312 IAC 4-4-5’s requirement that the discipline be progressive or “appropriate to the seriousness of the misconduct.” Based upon that presumption the sanctions imposed in those proceedings, should provide an accurate means by which to determine whether the sanction of termination previously imposed by the Department, the 90 day suspension imposed by the Commission, or some other sanction is “proportionate to” Moss’ misconduct. Order. See pg. 17 of the Court

31. In Fix v. DNR, 8 CADDNAR 1 (1996), the Department recommended and the Commission affirmed a two day suspension for Master Officer Alan Fix for insubordination. The record states that Fix had received no previous disciplinary action “of any significance”[2]. In this instance, Fix, despite having requested and been denied permission to purchase two laptop computers, made the purchase from the federal surplus property warehouse. Fix later tried unsuccessfully to return the laptops but “as an aggravating circumstance [Fix’s] First Sergeant and the Lieutenant first learned of the problem several weeks later from headquarters rather than from Fix himself.” Id. at pg. 2. The Department imposed and the Commission affirmed a two day suspension and ordered Fix to reimburse the Department $200 for the unwanted computers.

32. In 2000, the Commission considered the Department’s suspension of Officer Stephen T. Gerber (Gerber) for an alleged violation of IC 35-47-5-2 for providing a switchblade knife to another person. Steven T. Gerber v. DNR, 9 CADDNAR 31 (2001). (Referred to as “Gerber I”) In this instance, the internal investigation conducted by the Department’s Law Enforcement Division resulted in the determination that Gerber confiscated three switchblade knives based upon information he received from an informant. The informant had advised Gerber, in advance, that he wanted paid for the information or that alternatively he would accept one of the switchblade knives as payment. Gerber initially rejected both of these alternatives. After confiscating the switchblade knives, Gerber did not secure them and did not place them into the Department’s secured evidence system. Gerber did not prepare a case report and Gerber did not cite or arrest the person from whom he confiscated the switchblade knives. Ultimately, Gerber was unable to account for two of the switchblade knives and allowed the third “to be taken from the backseat of the Department's automobile by the informant, a person Gerber described as a ‘professional snitch’ of ‘questionable character.’” While Gerber later retrieved the switchblade knife from the informant, Gerber then, almost immediately, in the presence of the informant, placed the intact switchblade knife in a trash bin at the informant’s residence. Id. at pg. 35. With respect to his actions, Gerber “first admitted giving a switchblade to [the informant]. He then said he wished to change his answer to say that ‘technically’ he did not give [the informant] the switchblade. Gerber said he threw the switchblade in the trash bin in the presence of [the informant], and [the informant] could have retrieved the switchblade, but Gerber did not give the switchblade to [the informant].” Id. at pg. 34.

33. In Gerber I, the Department charged Gerber with a criminal violation of IC 35-47-5-2 and with Neglect of Duty, which encompassed the failure to prepare a case report, the mishandling of confiscated evidence, and the dishonesty associated with his actions. For his offenses, the Department sanctioned Gerber, a 22 year veteran conservation officer, with a 20 day suspension that was reduced to 15 days by the Commission. Gerber I. Two years prior to this incident, Gerber had been issued a reprimand for being “‘overbearing, oppressive, or tyrannical’ in his conduct in the discharge of his duties”. Gerber v. Department of Natural Resources, 8 CADDNAR 147, (1999).

34. Following the reprimand in 1998 and the suspension in 2000, Gerber was, once again, the subject of disciplinary action by the Department in 2001. This disciplinary action was also the subject of administrative review by the Commission. Gerber v. Department of Natural Resources, 10 CADDNAR 62, (2005). (Referred to as “Gerber II”) On this occasion the Department recommended termination of Gerber’s employment following its determination that Gerber had committed the following offenses:

a. committing “an act of insubordination by removing the air deflector from the rear of his new Ford Expedition commission without approval so to do, contrary to Standard Operating Procedure 5-7(C-2) and 41-2-C(D)-6(a). At pg. 64.

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b. “knowingly or recklessly conveyed false information to the division's Quartermaster” in violation of 310 IAC 1.2-5-4(13) leading Quartermaster to believe permission had been granted to alter the Expedition. At pg. 65.

c. committing “‘an act of insubordination by varying from his assigned work hours without notification or approval to do so, thereby being in violation of Standard Operating Procedure 4-11 Procedure D’” Id.

d. committing "‘an act of insubordination by making statements which 'are contrary to Division/Department policy or indicate professional frustration in carrying out duty related responsibilities' thereby being in violation of Standard Operating Procedure 12-1, Policy (F)…” Id.

e. committing "‘an act of insubordination by making contact with the Allen County Sheriff's Office regarding a case beyond the scope of his primary duties without notification or approval from an officer of appropriate higher authority thereby being in violation of 310 IAC 1.2-5-4(27).’” At pg. 66

f. “committing ‘an act of insubordination by failing to make Lt. Taylor aware of a meeting that took place on or about February 11, 2001, relative to a matter of internal affairs interest involving another agency’ thereby violating 310 IAC 1.2-5-4(4)” Id.

g. failure “‘to comply with a directive given by an Officer of appropriate higher authority…” Id.

h. failure “to reply fully and truthfully during his interview, thereby being a violation of 310 IAC 1.2-5-4(13).”

The Commission, following an administrative hearing, determined Gerber had committed three acts of insubordination and had failed to follow one direct order of a superior officer (identified in items a, c, f, and g) but determined there to be insufficient evidence to substantiate the remaining Department allegations. The Commission affirmed the Department’s termination of Gerber’s employment as a conservation officer.[3]

35. In 2006 the Commission considered the suspension of Master Conservation Officer Dirk Harris. Harris v. DNR, 10 CADDNAR 289, (2006). In 2005 Harris submitted to then Lieutenant Stephen L. Hunter (Hunter) an Indiana Conservation Officers Justification for Overtime form (referred to as “Justification”) as follows:

…seeking overtime compensation for 2.5 hours worked on April 12, 2005 that were in excess of his … duty hours. … Harris, in specifying the reason for the extra hours, wrote ‘subpoena/court.’ Harris also checked the box which reads, ‘3. For an official activity affiliated with IDNR responsibilities or interest and with the prior knowledge and approval of district command.’ The Justification provided to Hunter by Harris also included a summary that states, ‘Court, Delaware County, Burton Case Yorktown Court.’

At page 292. (Paragraph numbering and exhibit identifications omitted.) The facts, as determined by the Commission, indicate that Harris had not received a subpoena; he had not obtained prior approval of district command to accrue overtime, and district command did not have prior knowledge of Harris’ overtime. In fact “the Burton Case” referenced by Harris on the Justification was not on the Yorktown Court’s docket on the day in question. Upon inquiry by Hunter, Harris further compounded his false statements by providing a copy of another conservation officer’s subpoena to appear in a companion case to the referenced “Burton Case”.

36. The Department recommended that Harris, who had been suspended on five prior occasions, with three of those suspensions occurring within the most recent four to five years, and who had submitted falsified and misleading documentation to his superior officer for personal financial gain, be suspended for three days.

37. In affirming the Department’s recommendation, the Commission concluded that Harris misconduct constituted a failure to comply with Standard Operating Procedure 1-1B(D)(1)(c)(3) and 312 IAC 4-6-3(3), “each of which require that Harris be accurate, complete and truthful in all manners, including the completion and submission of Departmental reports.”

38. The sanctions imposed in Fix, Gerber I, Gerber II, and Harris evidence a substantially consistent application of discipline upon conservation officers engaged in misconduct spanning a period of time from 1996 to 2006. Termination, in Moss’ case presents a significant divergence from that history.

39. With respect to the sanction imposed by the Commission in its Final Order the Court Order determined:

The [NRC] might have considered the relatively unblemished disciplinary record of Moss during the first three years of his employment. It might also have noted the mitigating circumstances identified by the ALJ. In sum, this Court finds that there was substantial evidence supporting the commutation of the sanction, based on the findings made by the ALJ.

At pg. 17.

40. Except for the fact that at the time of Gerber I, Gerber was a 22 year veteran while the events leading to this proceeding occurred when Moss had only been a conservation officer for 4 years, in many ways the circumstances leading to the Department’s recommended 20 day suspension of Gerber are significantly similar to the circumstances forming the bases of the Department’s recommended termination of Moss. For instance,

(a) Both Moss and Gerber had received one letter of reprimand;

(b) Both Moss and Gerber were less than candid in responding to the inquiries of investigators conducting the internal investigations; and,

41. In other respects, the circumstances involved in the two disciplinary actions are markedly different. Particularly, aggravating circumstances exist with respect to Gerber’s misconduct in Gerber I that do not exist with respect to Moss in this instance. Foremost in this conclusion is the fact that the Gerber gave the unlawful weapon to the informant to possess for the remainder of time whereas Moss allowed his father to be in unlawful possession of the weapon for only a few minutes of time under Moss’ supervision.

42. Additionally, unlike in Moss’ situation where each instance of substantiated misconduct occurred while Moss was engaging in his personal life with family and friends, Gerber’s misconduct directly involved his official duties as a conservation officer. Consider,

(a) Gerber’s failure to prepare a report associated with his confiscation of illegal weapons;

(b) Gerber’s failure to refer charges against or issue a citation to the alleged perpetrator from whom the illegal weapons were confiscated;

(d) Gerber’s ultimate inability to account for two of the confiscated illegal weapons.

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43. Moss’ misconduct was not more egregious than Gerber’s misconduct that was at issue in Gerber I.

44. The circumstances surrounding Moss providing his father with a handgun are also relevant for consideration and are stated in the Department’s Case Data Sheet under Case Number INV13005830 as follows:

…a family discussion about home defense had occurred shortly after [Moss’ father’s and step mother’s] home had been burglarized in the fall of 2012. The discussion occurred in a front room of [the] home. Present in the discussion were Roger Moss (Officer Moss’ father), Danielle Allen (Officer Moss’ fiancée), Officer Moss and [Rebecca Moss]. They were discussing different types of handguns…

Respondent’s Exhibit 11.

45. It was during this family discussion, when Moss understandably viewed Roger Moss as his father; not as a felon, that Moss displayed a .380 caliber handgun and ultimately handed it to his father, who possessed it for only a short time while under Moss’ supervision.

46. For Moss’ perspective toward Roger Moss during a family discussion to lean towards a father-son relationship as opposed to a relationship between a law enforcement officer and convicted felon is not difficult to comprehend.

47. The administrative law judge considered all of the facts established on administrative review, including the facts expressed in Findings 68, 83 and 93 of the Final Order that support the conclusion that Moss provided a firearm to his father, who Moss knew to be a convicted felon. The facts considered also include those that create a lack of trustworthiness in the Department’s investigation into Moss’ activities. Full consideration of all the facts resulted in the following conclusions:

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.

Moss at pg. 268.

48. The determinations, as stated within Findings 149 through 153 of the Final Order take into account certain mitigating factors that did not exist with respect to Gerber’s misconduct in Gerber I, in which the Department concluded a 20 day suspension [4] was “appropriate to the seriousness of the misconduct” as required by 312 IAC 4-4-5.

49. Arguably Gerber’s misconduct, which led to Gerber I, may have warranted the Department’s imposition of a sanction greater than a 20 day suspension. Conversely, in light of the Department’s imposed sanctions in Fix, Gerber I, Gerber II, and Harris that in accordance with 312 IAC 4-4-5 was required to be “appropriate to the seriousness of the misconduct”, termination of Moss’ employment or, arguably, even the 90 day suspension imposed upon Moss by the Commission, might be viewed as an overly harsh sanction in this instance.

50. Possibly, over time, the Department has become less tolerant of misconduct committed by its conservation officers; however, such determination at this juncture would be based upon speculation as there is no evidence in this record to support that conclusion.

51. Passage of time, alone, is insufficient to justify the substantial disparity between disciplinary action taken by the Department historically, particularly considering Gerber I, and termination of Moss in this instance. It was incumbent upon the Department to provide evidence establishing the appropriateness of the sanction imposed.

52. The determination in the Final Order imposing a 90 day suspension upon Moss followed by reinstatement is reaffirmed.

53. The Court Order specifies in the event the previous order is reaffirmed “the [Commission] shall prescribe terms of reinstatement, including whether Moss may be placed in an administrative position.” Court Order, pgs. 17 – 18.

54. The Commission’s only authority with respect to the employment of conservation officers is provided at 312 IAC 4-4-6(a), which specifies that “a conservation officer whose employment is terminated or who is demoted or suspended 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.”

55. Nothing contained within 312 IAC 4-4-6 authorizes the Commission, in conjunction with administrative review of a termination, demotion or suspension, to “prescribe the terms of reinstatement”.

56. To the contrary the Indiana General Assembly has granted exclusive authority over the assignment of employees within the law enforcement division, including conservation officers, to the Department director and the director of the Department’s division of law enforcement. Consider as follows:

Sec. 3. The director has the following duties:

…

(2) The control of all officers, deputies, inspectors, and employees charged with the enforcement of the penal provisions of this title or of the rules of the commission.

(3) The direct charge of the conservation officers in the enforcement of the laws relating to fisheries and game.

Indiana Code § 14-9-2-3.

57. For purposes of Indiana Code § 14-9-2-3 the “director” is the director of the Department who is appointed by and serves at the pleasure of the governor, as set forth at Indiana Code § 14-9-2-1.

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58. Further, at Indiana Code § 14-9-8-7, the director of the law enforcement division of the Department, referred to as “division director”, who is also appointed by the governor upon recommendation of the director in accordance with Indiana Code § 14-9-8-6, is granted control over the assignment of the law enforcement division’s personnel, including conservation officers as follows:

Sec. 7.

(b)…The division director may assign and reassign each employee of the division to serve at the stations and perform the duties that the division director designates.

59. “A state administrative agency has only the powers conferred on it by the Indiana General Assembly. Powers not within the agency's legislative grant of authority may not be assumed by the agency nor implied to exist in its powers. The … Commission, on administrative review, [has] only the powers granted to [it] specifically by the Indiana General Assembly.” Pratt v. Indianapolis Water Co. & DNR, 9 CADDNAR 17, 18 (2001) (internal citations omitted), Markland v. Swistek d/b/a Crack of Dawn Hunt Club, 13 CADDNAR 194, 196 (2013).

60. Effort has been taken to comply with the Court Order while contemporaneously refraining from committing a violation of law.

61. The Department’s termination of Moss was commuted to a suspension, followed by reinstatement as a conservation officer.

62. In accordance with Indiana Code § 14-9-8-7(b) the division director may assign or reassign Moss to serve at any station and perform any duty in the same manner as the division director may exercise that authority with respect to any conservation officer of the division provided such assignment or reassignment does not constitute a demotion, suspension or termination reviewable under 312 IAC 4-4-6.

[1] The administrative law judge acknowledges that the administrative review cases considered is not exhaustive but affirms her intent to identify cases involving allegations or instances of dishonesty as was alleged against Moss, failure to obey an order as analogous to Moss’ violation of the Garrity Warning and the provision of weapons to unauthorized persons.

[2] This reference leads one to believe Fix had been previously subjected to some type of disciplinary action but the Commission’s order does not provide further detail.

[3] Past disciplinary action taken against Gerber is not reflected in the Commission’s Final Order issued in Gerber II; however, the Commission’s administrative review in Gerber I concluded with the issuance of a final order on October 29, 2001; nearly two months after Gerber II was initiated by Gerber. It would have been most appropriate to specify Gerber’s disciplinary history in the Gerber II final order but it may be reasonably concluded that the Commission was aware of Gerber’s history of disciplinary action and recognized that some of the events leading to the allegations in Gerber II occurred while Gerber’s administrative review in Gerber I remained pending before the Commission.

[4] It is recognized that in Gerber I, the Commission determined that the Neglect of Duty charge was barred by the applicable statute of limitations as stated in the Division of Law Enforcement’s Standard Operating Procedure and as such was required to be dismissed. It is presumed this factor resulted in the Commission’s reduction of the suspension from 20 days to 15 days. The Department’s proffered sanction, a 20 day suspension, was based upon the totality of the misconduct alleged against Gerber and that is the important consideration in conducting this comparison and establishing proportionality.