Apr 15 2015, 9:06 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Charles L. Berger Keith W. Vonderahe
Berger & Berger, LLP Clay W. Havill
Evansville, Indiana Molly E. Briles
Ziemer Stayman Weitzel & Shoulders, LLP
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mike Winters, April 15, 2015
Appellant-Plaintiff, Court of Appeals Case No.
82A01-1409-CT-378
[1] v. Appeal from the Vanderburgh Circuit
Court
City of Evansville, The Honorable David D. Kiely, Judge
[2] Appellee-Defendant Case No. 82C01-1308-CT-410
Crone, Judge.
Case Summary
[3] While working a second job as a school security officer, Corporal Mike
Winters, a thirty-year veteran of the Evansville Police Department (“EPD”),
grabbed a sixteen-year-old student’s crotch in an apparently misguided attempt
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to teach him about the dangers of fighting. The student’s family did not press
criminal charges but did file an internal affairs complaint against Winters.
EPD’s chief issued a personnel order finding that Winters committed eight
violations of EPD’s rules and regulations, suspending him for twenty-one days
without pay, and recommending his termination. Winters appealed the order
to the Evansville Police Merit Commission (“the Merit Commission”). After a
disciplinary hearing, the three-member Merit Commission found that Winters
committed seven of the eight rule violations, and it voted two to one to affirm
his suspension and terminate his employment with EPD. Winters appealed the
decision by filing a complaint against the City of Evansville (“City”) in the trial
court. Both parties moved for summary judgment. The trial court granted the
City’s motion and denied Winters’s motion.
[4] On appeal, Winters contends that the Merit Commission’s decision is not
supported by substantial evidence and is arbitrary and capricious, which is
another way of saying that the decision is patently unreasonable. Winters raises
three issues: (1) the chief’s motivation for seeking termination was improper;
(2) the two commissioners who voted in favor of termination based their
decision on improper considerations; and (3) the punishment is
disproportionate to the conduct. We resolve these issues as follows: (1)
because the chief did not participate in the Merit Commission’s decision to
terminate Winters, his motivation for seeking termination is irrelevant; (2) the
commissioners did not base their decision on improper considerations; and (3)
the Merit Commission’s decision to terminate Winters for his unjustified and
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unprovoked grabbing of the student’s crotch is supported by substantial
evidence and is not arbitrary and capricious, or patently unreasonable.
Therefore, we affirm.
Facts and Procedural History1
[5] The relevant facts are undisputed. As of May 16, 2013, Winters had been
employed as an EPD officer for thirty years. Winters had a second job as a
security officer for the Evansville Vanderburgh School Corporation (“EVSC”)
at its Academy for Innovative Studies (“AIS”), which serves students who had
behavioral problems in other schools. On that date, Winters was working at
AIS in full police uniform when he heard loud noises coming from a classroom
in which approximately five students were serving in-school suspension.
Winters entered the classroom and told the students to calm down and take
their seats, which they did.
[6] The students started talking about fighting. Winters told them not to fight and
cautioned them about the consequences of fighting. A sixteen-year-old student,
Z.P., said that he would fight someone smaller than himself. Winters grabbed
Z.P.’s crotch and said, “What if someone did this to you?” Appellee’s App. at
1
We held oral argument on March 18, 2015, at DePauw University in Greencastle. We thank the faculty,
staff, and students for their hospitality, and we thank counsel for their participation.
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344. 2 Z.P. replied, “Dude, you grabbed my balls.” Id. at 26, 344.3 Both Z.P.
and Winters reported the incident to AIS’s principal, who contacted EVSC’s
security director, who contacted EPD. The incident was also reported to Z.P.’s
parents, who declined to press criminal charges but did file an internal affairs
complaint against Winters.4
[7] On May 23, 2013, EPD Chief Billy Bolin issued a personnel order finding that
Winters had committed eight violations of EPD rules and regulations relating
to upholding and obeying laws, ordinances, and regulations; fostering good
public relations and maintaining respect for the department; and
inappropriately touching a juvenile. The order also suspended Winters for
twenty-one days without pay and recommended that he be terminated from
EPD. Winters appealed the order to the three-member Merit Commission,
which held a hearing on July 22, 2013.5 At the conclusion of the hearing, the
2
We appreciate that the City included the entire transcript of the Merit Commission’s hearing in its
appellee’s appendix, which allowed us to consider the whole picture here. Winters included less than a third
of the transcript in his appellant’s appendix, and he failed to include a copy of the Merit Commission’s
decision.
3
Winters’s pedagogical philosophy is best described as, “Cuius testiculos habes, habeas cardia et
cerebellum.”
4
Z.P.’s mother testified that she and Z.P.’s father let Z.P. decide whether Winters should be criminally
charged because Z.P. would be the one to testify at trial. She explained that Z.P. “was not comfortable with
that, he did not think that he would want to do that, so at that time, we just let that go.” Appellee’s App. at
87.
5
Under current Indiana law, a police department merit commission must consist of five commissioners, two
of which are appointed by the governmental unit’s executive, one by the unit’s legislative body, and two by
the active members of the police department. Ind. Code § 36-8-3.5-6. We presume that the City’s three-
member commission was grandfathered under Indiana Code Section 36-8-3.5-1 and that the City’s executive,
legislative body, and police department members each appointed one member to the commission.
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Merit Commission found that Winters committed seven of the eight alleged
rule violations and voted two to one to affirm his suspension and terminate his
employment with EPD. Commission President Adrian Brooks and
Commissioner John Hegeman voted in favor of suspension and termination;
Commissioner Mike Cook opined that suspension was “appropriate” but did
not support termination. Id. at 228. The Merit Commission issued a written
decision with factual findings consistent with the foregoing.
[8] Winters appealed the Merit Commission’s decision by filing a complaint
against the City in the trial court pursuant to Indiana Code Section 36-8-3-4(e)
(“The reasons for the suspension, demotion, or dismissal of a member of the
police or fire department shall be entered as specific findings of fact upon the
records of the [Merit Commission]. A member who is suspended for a period
exceeding five (5) days, demoted, or dismissed may appeal the decision to the
circuit or superior court of the county in which the unit is located. However, a
member may not appeal any other decision.”). Both parties moved for
summary judgment. The trial court denied Winters’s motion and granted the
City’s motion, finding no genuine issue of material fact and concluding as a
matter of law that the Merit Commission’s written findings and decision to
terminate Winters’s employment were based upon substantial evidence, not
arbitrary or capricious, and “not in violation of any constitutional, statutory or
legal principle.” Appellant’s App. at 13.
[9] Winters now appeals. Additional facts will be provided as necessary.
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Discussion and Decision
[10] “Judicial review of administrative decisions is very limited.” City of Indianapolis
v. Woods, 703 N.E.2d 1087, 1090 (Ind. Ct. App. 1998), trans. denied (1999).
Deference is to be given by the reviewing court to the expertise of the
administrative body. Discretionary decisions of administrative bodies,
including those of police merit commissions, are entitled to deference
absent a showing that the decision was arbitrary and capricious, or an
abuse of discretion, or otherwise not in accordance with law. Further,
review is limited to determining whether the administrative body
adhered to proper legal procedure and made a finding based upon
substantial evidence in accordance with appropriate constitutional and
statutory provisions. The reviewing court may not substitute its
judgment for that of the administrative body or modify a penalty
imposed by that body in a disciplinary action, without a showing that
such action was arbitrary and capricious.
The challenging party has the burden of proving that an administrative
action was arbitrary and capricious. An arbitrary and capricious
decision is one which is patently unreasonable. It is made without
consideration of the facts and in total disregard of the circumstances
and lacks any basis which might lead a reasonable person to the same
conclusion. Substantial evidence is that relevant evidence which a
reasonable mind might accept as adequate to support a conclusion.
Id. at 1090-91 (citations omitted).
[11] The trial court initially reviewed the Merit Commission’s termination decision.
In order to properly adjudge whether the initial review was erroneous,
we necessarily look through its decision to consider the validity of the
Merit [Commission’s] determination. In so doing, we use the same
standard which was required to be applied in the initial review, as to
those facts and conclusions addressed by the Merit [Commission].
Id. at 1091 (footnote omitted). “A court reviewing a police officer disciplinary
action may not judge witness credibility or weigh conflicting evidence in
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determining whether there was substantial evidence to support the action.”
Jandura v. Town of Schererville, 937 N.E.2d 814, 819 (Ind. Ct. App. 2010), trans.
denied (2011).
[12] Winters raises three issues: (1) Chief Bolin’s motivation to seek termination
was improper; (2) the two commissioners who voted to suspend and terminate
him improperly based their decision on matters outside the record; and (3) the
punishment (a twenty-one-day unpaid suspension and termination after thirty-
plus years of service) is disproportionate to the conduct (briefly grabbing the
crotch area of a sixteen-year-old student “to demonstrate what could happen if
someone attacks you and you are not prepared,” Appellant’s Br. at 5). To put it
more concisely, Winters contends that the Merit Commission’s decision is
arbitrary and capricious and not supported by substantial evidence.6
Section 1 – Chief Bolin’s motivation to seek Winters’s
termination is irrelevant because he did not participate in the
ultimate disciplinary decisionmaking.
[13] Regarding Chief Bolin, Winters complains that his recommendation for
termination was based on “a prior incident in which his department’s public
information officer made public statements against the Evansville Vanderburgh
School Corporation for their failure to notify the Evansville Police Department
6
Winters also suggests a due process argument, which is essentially a claim that the decision is not
supported by substantial evidence and was based on improper considerations. We address his argument in
that context.
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of a sexual child predator,” and thus “he had other pressures playing upon
him.” Appellant’s Br. at 7. We note, however, that Chief Bolin did not
participate in the ultimate decision to terminate Winters’s employment, and
therefore his motivation for seeking termination is irrelevant. See Jandura, 937
N.E.2d at 819-20 (finding suspended officer’s claims regarding chief’s “alleged
political motivations” irrelevant: “Although Chief Dowling initiated the
disciplinary action, it was the Board commissioners who ultimately decided
whether and how severely to discipline Jandura. Even if Chief Dowling was
motivated by political considerations to file the disciplinary charge against
Jandura, he was not the ultimate decisionmaker; the Board commissioners
were. Indeed, we assume that one of the primary statutory purposes for the
independent Board’s very existence is to remove the discipline of police officers
from the ‘politics’ of the stationhouse.”).7
Section 2 – The commissioners did not base their decision on
improper considerations.
[14] Winters takes issue with the following statement from Commissioner Hegeman:
I’ve been concerned throughout the hearing with the testimony from
witnesses in support of Corporal Winters and Corporal Winters
himself talking about, as counsel for the department mentioned, “these
kids”. It was almost as if because these children are struggling and
they’re at the AIS facility, that somehow they’re not entitled to be
7
Winters further complains that Chief Bolin “only had two and one-half (2 ½) years of supervisory
experience and never directly supervised” him. Appellant’s Br. at 6. These facts are also irrelevant to the
Merit Commission’s decision.
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treated in the same way that children at Bosse, Memorial, Mater Dei,
North, Central are treated or supposed to be treated.
Appellant’s Br. at 17 (quoting Appellant’s App. at 78). Winters argues that
“[t]his statement clearly reflects bias and a lack of realization that a school for
students who are unable to act as normal, properly engaged students are not the
same as students that go to the Catholic or public high schools of the City of
Evansville.” Id. at 18.
[15] It is undisputed that when Winters grabbed Z.P.’s crotch, Z.P. was not being
disruptive and was not presenting a threat to him. In fact, counsel for Winters
conceded at oral argument that “these kids” had the same right to be free from
unwarranted touching as any other kids The nature of the school could, but in
this instance did not, create a threatening environment warranting Winters’s
conduct. Therefore, we find nothing wrong with Commissioner Hegeman’s
remarks.
[16] Winters also takes issue with Commission President Brooks, who, according to
Winters, “compared the duties of Corporal Winters to himself, a minister, to
what Mr. Brooks does at church as opposed to specialized security work at a
school requiring armed, on-duty police officers patrolling its halls in order for it
to operate on a daily basis.” Id. at 10. We presume that Winters refers to the
following remarks by President Brooks: “I am in my 33rd year of ministry. If I
were to do that tomorrow, I would be dismissed, and so would anyone else. If
you did it at a bank, someone within a bank inappropriately did that, they
would be terminated.” Appellant’s App. at 79. Winters contends that “[w]hat
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is appropriate for a minister on a Sunday is absolutely no reality or reference to
what is appropriate for security personnel at an education facility which cannot
operate without a police presence.” Appellant’s Br. at 10.
[17] President Brooks was simply commenting on the impropriety of such conduct
in most circumstances, and this did not constitute impermissible bias. An
unprovoked and unjustified grabbing of another person’s genital area would be
extremely inappropriate in any situation and would subject the assailant to
severe discipline and criminal charges. See Ind. Code § 35-42-2-1 (a person who
knowingly or intentionally touches another person in a rude, insolent, or angry
manner commits battery, a class B misdemeanor).
Section 3 – The decision to terminate Winters for grabbing
Z.P.’s crotch is supported by substantial evidence and is not
arbitrary and capricious.
[18] Finally, as for the proportionality of the punishment, Winters asserts that this
“was a one-time event where no harm occurred to anyone” and points out that
several AIS employees and fellow officers testified on his behalf and disagreed
with the proposed discipline based on his character and service. Id. at 15.8
8
In his brief, Winters asserts that he “had no disciplinary record.” Appellant’s Br. at 5 (citing Appellant’s
App. at 35, 77). The cited pages do not support this assertion, and the City observes that the record is silent
regarding Winters’s disciplinary history. The City then makes its own extra-record assertion that Winters
“received at least two (2) written reprimands and was suspended from duty on at least four (4) separate
occasions during which [he] was suspended without pay for a total of thirteen (13) days.” Appellee’s Br. at
11. Two wrongs do not make a right here. We are unpersuaded by the City’s suggestion that it is entitled to
relief under Indiana Appellate Rule 66(E) (“The Court may assess damages if an appeal, petition, or motion,
or response, is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include
attorneys’ fees.”).
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Although no evidence was presented regarding whether Z.P. suffered physical
or psychological harm, it is undisputed that Winters abruptly grabbed his
genital area without provocation. Z.P. was not being disruptive and never
presented a threat to Winters. At a minimum, such a touching would be
distressing to a reasonable person and could be grounds for criminal charges.
We agree with the City that Winters’s grabbing of Z.P.’s crotch area “bears
directly on his qualifications as an officer and the discharge of his duties.”
Appellee’s Br. at 15. Indeed, Winters does not challenge the Merit
Commission’s determination that he committed seven violations of EPD rules
and regulations.
[19] The amount of evidence regarding the incident for which Winters was
disciplined is relatively small, but it is undisputed and sufficiently egregious that
a reasonable mind might accept it as adequate to support a conclusion that
termination of Winters’s employment was the appropriate discipline for his
conduct. In other words, we conclude that the Merit Commission’s decision is
supported by substantial evidence.
[20] We also conclude that the decision is not arbitrary and capricious. “The
discipline of police officers is within the province of the executive branch of
government, not the judicial branch. For this reason, we will not substitute our
judgment for that of the administrative body when no compelling circumstances
are present.” McDaniel v. City of Evansville, 604 N.E.2d 1223, 1225 (Ind. Ct.
App. 1992) (citation, quotation marks, and brackets omitted), trans. denied
(1993). The legislature established merit commissions to permit lay people to
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make determinations such as these dealing with police discipline. The Merit
Commission, whose members were selected by the City’s governing bodies and
police department pursuant to our legislature’s directive, relied on its expertise
in considering the facts and circumstances before it and exercised its
considerable discretion in determining the proper consequences for Winters’s
actions in his part-time job as a school security officer. We cannot say that its
decision to terminate Winters for grabbing a teenage student’s crotch is patently
unreasonable. Therefore, we affirm.
[21] Affirmed.
Robb, J., and Bradford, J., concur.
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