ORDER
The August 6, 1998 Letter of Reprimand to ICO Gerber is affirmed.
DISSENTING ORDER: Lt. Greg Dye, Dissenting Opinion
1. The Letter of Reprimand is unsupported by the facts in this case.
2. The policy of the Director of the Division of Law Enforcement is to discuss problems with an officer prior to issuing discipline. The evidence shows that no discussion was held with ICO Gerber prior to issuance of the Reprimand in this case.
3. No evidence was presented indicating that the chain of command informed ICO Gerber that his conduct was inappropriate. As no discipline had been issued prior to this Reprimand for such behavior, progressive discipline would support a lower level of punishment, i.e. a Letter of Consultation. ICO Gerber has been an Indiana Conservation Officer for 18 years. Without a previous offense, it is improper in this case to issue a Letter of Reprimand.
4. No evidence shows that Gerber has been warned that this type of interrogation method was wrong or inappropriate. Interrogation is a necessary part of investigation for Conservation Officers. At times, strong methods are required to completely investigate cases. In this instance, it was reasonable for ICO Gerber to shower and dress in Conservation Officer uniform in order to present his official authority to investigate a possible theft.
FINDINGS OF FACT
1. IC 4-21.5, IC 14-9 and IC 310 IAC 1.2 apply to these proceedings.
2. The Natural Resources Commission, "NRC" is the ultimate authority within the meaning of IC 4-21.5 for disciplinary actions taken by the DNR against Conservation Officers.
3. At all times relevant to these proceedings, Steven Gerber ("Gerber")was a Conservation Officer with the rank of Master Officer and an employee of the DNR.
4. At issue is a Letter of Reprimand ( "Reprimand") issued to Gerber on August 6, 1998 by Lt. Ralph Taylor, Commander of District 2 Headquarters for the Indiana Conservation Office. See Respondent's Exhibit J. Lt. Taylor is the supervising conservation officer for ICO Gerber.
5. A petition for administrative review was filed by Gerber on August 21, 1998.
6. The facts surrounding the basis of the Reprimand were provided in hearing on May 26, 1999 through testimonial and documentary evidence.[FOOTNOTE 1]
7. On May 13, 1998, ICO Gerber resided on the property of Steve Jackson, the owner of a shopping center outlet property. Gerber lived at the outlet property through an arrangement with Jackson for Gerber to "look after" Jackson's property.
8. On May 13, 1998, ICO Gerber met with Steve Jackson regarding Jackson's complaint that someone had stolen electricity at the outlet property. Jackson stated that a building was being constructed next door to his property and that contractors were using his electricity.
9. Jackson testified that previous criminal activity including vandalism to cars and trespassing had occurred on the property and Jackson wanted to stop that activity. Jackson stated that he wanted someone to set an example." Jackson further testified that a thief is a thief and anyone using his facilities without Jackson's authority should "go to jail."
10. During Gerber's meeting with Jackson, Jackson shut off the electricity at the outlet box and Gerber parked his car on the electrical cord so that the cord could not
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be removed.
11. On May 14, 1998, Shawn Zimmerman, an employee of LeMaster Construction Company, arrived at the outlet property at approximately 6:30 a.m. as part of a construction crew on a building next door to the outlet. He testified that while preparing for construction, he saw LeMaster's plug in the outlet building where Gerber resided. He attempted to plug into the cord but couldn't obtain electricity.
12. At that point, Zimmerman stated that ICO Gerber stuck his head out of the window and asked his name. Zimmerman said he was sorry to wake Gerber up. Gerber then told Zimmerman to wait there and he would be right down.
13. Evidence established that Gerber then took a shower and dressed. See Respondent's Exhibit H. Zimmerman estimated that Gerber came down in 45 minutes. Mike Taylor, Zimmerman's supervisor, estimated that Gerber came down in 40 minutes. Testimony shows that Gerber took somewhere between 25 minutes to 45 minutes to come down and was dressed in his Conservation Officer full uniform.
14. Zimmerman testified that Gerber asked him who he thought was paying for the electricity. Zimmerman responded that Gerber probably was paying for it. Gerber then asked Zimmerman to produce his driver's license and at some point, told Zimmerman that he "was going to jail." Zimmerman expressed that he worked for LeMaster who had been on the site previously with a different crew. He testified that he told Gerber that LeMaster would reimburse him for the electricity. Zimmerman stated that Gerber asked him to produce his driver's license and Gerber held it for a while. Zimmerman stated to Gerber that he could not go to jail because he had a family, and stated that during the incident he began to cry.
15. Zimmerman told ICO Robert Cauffman, ("Cauffman") that during this incident he asked Gerber what a Class D Felony was and was told by Gerber that it "was like a $10,000.00 fine and up to a year and a half in prison." See Respondent's Exhibit F. He asked Gerber if he could go back to his truck and get his hat, believing that he was going to be arrested. Zimmerman estimated that this incident went on for approximately two hours.
16. Mike Taylor, LeMaster's Construction Manager and supervisor for Zimmerman, stated that he overheard the conversation between Zimmerman and Gerber and came over to speak with Gerber. He stated that he spoke with Gerber for approximately 30 minutes. Taylor testified that Gerber told him that Zimmerman was going to jail for theft and asked Taylor if he knew what conspiracy was.
17. Gerber read the definition of conspiracy to Taylor and asked Taylor whose electricity this was. Taylor recalled being told he could be arrested for conspiracy. At some point, Taylor stated that Gerber expressed that he and Zimmerman "had the biggest balls in the world." Taylor stated that he apologized several times to Gerber and went to the truck to call the owner of LeMaster. He testified that during this conversation, he heard Gerber tell Zimmerman 2 or 3 times that he was going to jail. Taylor also indicated that Zimmerman was in tears during the incident. Taylor estimated the amount of time of the incident was two to three hours.
18. Taylor called LeMaster and explained the situation to Safety Director, Mike Onyon ("Onyon"). Onyon then spoke with Gerber and testified that he tried to ascertain what the problem was. Gerber told him that the issue was theft with intent to defraud. Onyon attempted to but could not resolve things and indicated that Gerber expressed that it wasn't as easy as naming damages because kids need to be taught a lesson. Onyon indicated that the phone conversation was five to ten minutes long. Onyon further testified that during the phone conversation with Gerber, Gerber expressed that he needed to get back to Zimmerman because he was upset. Gerber asked Zimmerman, "If I take you to jail, is there anybody that will come and bail you out." See Respondent's Exhibit D.
19. On May 28, 1998, Onyon wrote a letter to Lt. Ralph Taylor describing the May 14, 1998 incident as provided in Respondent's Exhibit B.[FOOTNOTE 2] Onyon indicated that "the extension cord had been plugged into the receptacle by one of our men on the steel erection crew on Tuesday, May 12, thinking that the pole barn was part of the property owned by
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Olympic Pools. The cord was left there and that's where Shawn found it on Thursday morning." Onyon testified that this statement was based on Taylor's statement to Onyon and concludes the letter by stating, "I feel the brandishing of power far exceeded necessary or proper bounds and the seriousness of the infraction."
20. Lt. Ralph Taylor, upon receiving Onyon's letter, requested an internal investigation of the incident and ICO Robert Cauffman was assigned to conduct that investigation under case number HQ 3790.[FOOTNOTE 3]
21. Cauffman spoke with Lt. Taylor to determine the nature of the complaint. Cauffman interviewed several witnesses including Gerber, Steve Jackson, Shawn Zimmerman, Mike Taylor, and Mike Onyon. See Respondent's Exhibits D,F,G, and I. Cauffman testified that he asked Gerber to provide an overview of the facts surrounding the contact with Shawn Zimmerman. Gerber provided the summary to Cauffman as provided in Respondent's Exhibit H.
22. Cauffman testified that he informed Gerber of the investigation and provided Gerber an Advice of Administrative Disciplinary Procedural Rights, "AADPR". See Respondent's Exhibit C.[FOOTNOTE 4]
23. Cauffman stated that he met with Zimmerman in Fort Wayne in conducting an interview of the incidents surrounding May 14, 1998. This interview was tape recorded and summarized in Respondent's Exhibit F. Similarly, Cauffman met with Mike Taylor and conducted an interview which was tape recorded.[FOOTNOTE 5]
24. Cauffman indicated the information gathered during the investigation was then sealed and given to his captain.
25. ICO Gerber raises the following issues:
1) Were the procedures for Letters of Reprimand under Standard Operating Procedure "Sop" 9-13 properly conducted"
2) Is the punishment of a Letter of Reprimand proper?
3) Was Gerber entitled to a Chain of Command appeal?
26. Claimant's Exhibit 1 shows the SOP for conducting internal investigations and provides in procedures 5 and 7: Written interview statements are encouraged and if taken, shall be attached to the submitted report. The submitted report shall contain concise statements of fact concerning the allegation, a summary determination of violations (if any) and a recommendation for disposition...Opinions shall not be expressed in the written reports.
27. Gerber asserts that the AADPR must be signed prior to an interview or the interview is void. It is unclear on what basis this assertion is made.
28. The SOP is a guidance document, providing recommendations for the employees of the Division of Law Enforcement to conduct its activities. It does not have the force of law. As such, the omission of written interview statements from the submitted report does not render the submitted report invalid. Testimony shows that taped recordings were made of Zimmerman's and Taylor's interviews without transcriptions.
29. However, the SOP may be used to determine the proper weight of the investigating officer's report and the credibility of the investigating officer in conducting a germane and unbiased report.
30. Based on the testimony and credibility of the witnesses, the evidence does not support a finding that Cauffman was biased in investigating this incident.
31. The facts support a finding that ICO Gerber acted in an overbearing and oppressive manner while conducting an investigation of the May 14 1998 incident. Testimony also supports a finding that unwarranted threats of jail were made by Gerber to Shawn Zimmerman and Mike Taylor. No determination was made as to who initially plugged into the outlet, no case report was prepared in support of a finding of felony theft on the part of Zimmerman.
32. Steve Jackson, owner of the site property, expressed that he did not feel that Gerber took sufficient
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action because he felt that Zimmerman should have gone to jail. Jackson stated that he wanted an example set and anyone trespassing and using his facilities without his authority should go to jail. He stated that Gerber disappointed him in only giving a warning, and felt that Gerber's actions were not harsh enough.
33. Jackson further provided that he had an arrangement with Gerber allowing Gerber to live on the property because Gerber looked after Jackson's property. Jackson stated that he allowed LeMaster to use his electricity after this incident.
34. The actions of Gerber indicate his failure to represent the State of Indiana DNR in this matter in that the policing of property was based on an arrangement with Steve Jackson, owner of the outlet. Gerber admitted that he attempted to balance Jackson's interest with those of LeMaster's and stated that he would never have taken Zimmerman to jail.
35. Master Officer Dean Jenkins, a conservation officer in Allen County, testified on direct examination that the timeframe for investigating a criminal incident may take between 1 to 1 1/2 hours, depending on the situation. He testified on cross examination that it is excessive to use two hours to write a normal warning citation. Additionally, ICO Jenkins testified that it is possible to be delayed while one gets dressed and/or has problems with contact lenses but states that it is unusual to take a shower first if a serious criminal activity is occurring because the possibility exists that the perpetrator may leave the area.
36. The August 6, 1998 Reprimand provides:
...
(1) On or about May 13th, 1998 ICO Steve Gerber investigated a complaint of theft of electricity from a property owned by Steve Jackson. The property was also the location where Officer Gerber lived at the time. The theft involved an electrical extension cord plugged into an outlet on the Jackson property being utilized by a construction contractor working on a building adjacent to the Jackson property. Mr. Jackson cut off the electricity to the box the cord was plugged into and ICO Gerber parked his state commission on the cord so it could not be removed when employee's [sic] came to find the problem.
(2) On or about May 14th, 1998, Officer Gerber heard voices early in the morning trying to find out why there was no power to the extension cord. He made verbal contact with them from a window and told them to wait. He then took a shower and got dressed forcing them to wait several minutes. He then exercised behavior in a more aggressive manner than the situation called for ultimately issuing a warning ticket to Mr. Shawn Zimmerman for felony theft. Although a minor theft did occur, ICO Gerber did not ascertain if it was Mr. Zimmerman who took or received the stolen property.
The above offense is contrary to 310 IAC 1.2-5-4 (14) and constitute grounds for disciplinary action as set forth in 310 IAC 1.2-5-4....
37. 310 IAC 1.2-5-4 sets forth those actions which constitute cause for discipline in the Division of Law Enforcement, and include at (14) "Overbearing, oppressive, or tyrannical conduct in discharge of duty including unwarranted threats against any person or the malicious use of vulgar language."
38. 310 IAC 1.2-5-3 provides:
A letter of reprimand may be issued by an employee to a subordinate. ...
(b) A letter of reprimand shall include the following:
(1) A complete account or description of the conduct involved.
(2) Reference to the law or policy of the division prohibiting the conduct.
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39. Unwarranted threats of jail were made by Gerber to Zimmerman during this incident.
40. Based on the aforementioned facts, a finding is supported that Officer Gerber was "overbearing, oppressive, or tyrannical" in his conduct in the discharge of duty including unwarranted threats against any person or the malicious use of vulgar language. See 310 IAC 1.2-5-4 (14). The letter of reprimand is warranted in this instance.
41. The Reprimand of August 6, 1998 satifies 310 IAC 1.2-5-3 in providing a complete account or description of the conduct occurring on May 14, 1998 and references a violation of 310 IAC 1.2-5-4(14).
42. Gerber lastly argues that he was entitled to a chain of command appeal.
43. A chain of command appeal is considered by this panel as an informal means of settlement for cases involving letters of reprimand. No requirement is shown for chain of command appeals before or during administrative appeals under Ind. Code 4-21.5, the Administrative Orders and Procedures Act, "AOPA". Whether a meeting is to be held through the chain of command is irrelevant to this panel's determination in that settlement negotiations are not required under AOPA.
FOOTNOTES
1.An oral motion for separation of witnesses was requested by Gerber at the start of hearing. That motion was granted and the witnesses were admonished not to discuss the case. The ALJ panel was told by Steve Jackson (in the presence of Ihor Boyko and Steve Gerber), and the panel was told by Mike Onyon that Shawn Zimmerman had a conversation about his testimony after his testimony was given. Zimmerman commented on his testimony in the presence of Mike Onyon, Steve Jackson, Robert Cauffman, Larry Rhinehart and Ralph Taylor by stating that he could hardly remember that much and that was frustrating. Mr. Onyon indicated that the comments were of a general nature in regard to the differences in the nature of writings versus what he remembered. The nature of Steve Jackson's and Mike Onyon's recount of the conversation is reflected in the record.
2. Prior to the may 28, 1998 letter, Onyon called Lt. Taylor to complain about Gerber's actions. Lt. Taylor testified that he told Onyon all complaints had to be in writing.
3. Cauffman is a Senior Conservation Officer at District 10 Headquarters in Michigan City, Indiana.
4. Gerber indicated that he was not given Respondent's Exhibit C until after the interview and stated that he had to advise Cauffman that Gerber had to sign the AADPR. Cauffman stated that Gerber refused to sign the AADPR until he knew what it was about and why Cauffman was there. Cauffman stated that he explained to Gerber why he was there and read him his rights at which point Gerber indicated that he would sign the AADPR.
5. The tape recordings were summarized by Cauffman in his investigation report of Exhibits F and G, not transcribed.
6. The Division Director for the Division of Law Enforcement, Col. Larry Allen, indicated in hearing that his policy is to respond to all faxes within 2 weeks of receipt. Gerber provided in Exhibit 5 a fax made to Col. Allen on November 3, 1998 which was not responded to by Allen. Allen expressed that he felt that Gerber's intent was to seek administrative review of the Reprimand. Based on this assumption, Allen did not feel it appropriate to talk with Gerber about the incident.