State of Indiana Board of Firefighting Personnel Standards v. John T. Cline (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Jan 17 2018, 8:46 am

regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr. Matthew G. Langenbacher
Attorney General of Indiana Indianapolis, Indiana
Andrea E. Rahman
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

State of Indiana Board of January 17, 2018
Firefighting and Personnel Court of Appeals Case No.
Standards, 49A04-1707-PL-1670
Appellant, Appeal from the Marion Superior
Court
v. The Honorable James A. Joven,
Judge
John T. Cline, Trial Court Cause No.
Appellee. 49D13-1604-PL-12184

Bailey, Judge.

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 Case Summary
[1] The State of Indiana Board of Firefighting and Personnel Standards (“the

Board”) appeals the trial court’s denial of the Board’s motion to dismiss the

petition for judicial review filed by John T. Cline (“Cline”). The Board presents

the sole issue of whether the trial court was required to dismiss the petition for

judicial review when Cline failed to timely file the agency record. We reverse.

Facts and Procedural History
[2] On October 6, 2014, the Indiana Department of Homeland Security (“the

IDHS”), as records custodian for the Board, received an anonymous letter

regarding Cline, who was then serving as the Deputy Fire Chief of the

Sellersburg Volunteer Fire Department (“the Department”). The letter

contained accusations that Cline had pled guilty to charges of Child

Exploitation and Possession of Child Pornography and had received an eight-

year sentence, almost fully-suspended. The enclosed Chronological Case

Summary indicated that Cline had been charged with the commission of

criminal conduct in 1999 and had pled guilty in 2001 to one Class C felony and

one Class A misdemeanor.

[3] On November 3, 2014, the Board met and voted to revoke the following

firefighting certifications possessed by Cline: Driver Operator Mobile Water

Supply; Fire Inspector I/II; Fire Investigator; Fire Officer I and II; First Class

Firefighter; Hazmat Awareness, Operations and Technician; Instructor I;

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 Second Class Firefighter; Strategy and Tactics; and Technical Rescue

Awareness. (App. Vol. II, pg. 129.)1 Cline was notified of the revocation order,

and filed a petition for administrative review.2 On December 8, 2014, Cline

was re-elected to a four-year term as Deputy Chief for the Department.

[4] On July 17, 2015, an Administrative Law Judge of the IDHS (“the ALJ”)

issued a non-final decision reversing the Board’s revocation of Cline’s

certifications. The Board issued a letter to the parties requesting their

submissions of briefs addressing five questions. On March 14, 2016, following

the submission of briefs, the Board issued a final order, adopting in part and

reversing in part the ALJ decision, and revoking Cline’s firefighting

certifications.

[5] On April 7, 2016, Cline filed a petition for judicial review; the agency record

was due on May 9, 2016.3 On May 2 or 3, 2016, Cline’s counsel called the

1
The appealed order states that the revoked certifications are not required for Cline to continue his
employment, fire certifications are voluntary and the necessity therefor may be waived by a majority vote of
the Department’s Board of Directors; thus, “the status of Cline’s employment with the Department will
require a determination by the Department Board, and is not an immediate result of the certification
revocations.” (App. Vol. II, pg. 248.) However, the Department By-Laws require that an officer have a Fire
Officer II certification. Even if Cline served out his elected term, he would be ineligible to run for election
again, without the requisite certification or a Board waiver.
2
The revocation action was based upon 655 IND. ADMIN. CODE § 1-1-7(b)(2) providing in relevant part:
“The [State Board] may take action with respect to the … certification of any fire service person … in
accordance with the provisions of IC 4-21.5-3-6 and IC 22-12-7-7(4) upon information provided to the [State
Board] that the fire service person has: been convicted of an offense if the acts that resulted in the conviction
have direct bearing on whether or not the person shall be entrusted to perform the activities permitted under
any certification held by the fire service person[.]” Certain convictions are specified, including child
molestation. See id.
3
The thirtieth day fell on Sunday, May 8, 2016.

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 Board’s counsel and left a message to inquire about the status of the record. A

day later, the Board’s counsel advised that the record would be available that

week or the following week.

[6] On Friday afternoon, May 6, 2016, at around 3:00 p.m., Cline’s counsel

received a message from counsel for the IDHS stating that the agency record

was ready. Cline’s counsel decided to pick up the record, as opposed to having

it mailed. On Monday, May 9, 2016 – the day the agency record was due –

Cline’s counsel picked it up from the IDHS office. However, he did not file the

record until May 10, 2016.

[7] The Board moved to dismiss Cline’s petition for judicial review, based on the

failure to timely file the record, and Cline filed a response in opposition. On

June 7, 2016, the trial court issued an order denying the motion to dismiss. The

trial court acknowledged that the filing of the agency record had been one day

late, but concluded that dismissal was not mandatory:

Failure to file the record within the time permitted by this
subsection, including any extension period ordered by the court,
is cause for dismissal of the petition for review. …” IND. CODE §
4-21.5-5-13(b) (emphasis added). While the untimely filing of the
agency record might be cause for dismissal, dismissal is not
warranted in this case. Cline filed the record only one day late.
The Board has not contended that it suffered any prejudice from
the one-day delay. The Act does not mandate dismissal for
failure to meet the filing deadline, so it is within this Court’s
discretion to allow the petition to move forward despite the one-
day delay in filing.

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 (App. Vol. II, pgs. 19-20). The Board’s motion to reconsider was denied. Its

motion for substitution of a properly paginated agency record was granted.

[8] The parties appeared for a hearing on January 24, 2017, at which argument of

counsel was heard. On June 29, 2017, the trial court issued its order declaring

the Board’s revocation order invalid and remanding the matter for further

proceedings. The trial court concluded that the revocation of Cline’s

certifications had been arbitrary and capricious because the Board had failed to

comply with statutory procedures.4 The Board now appeals, challenging the

denial of its motion to dismiss.

Discussion and Decision
Standard of Review
[9] We review de novo a trial court’s ruling on a motion to dismiss for failure to

timely file necessary agency records where the court has ruled on a paper

record. Wayne County Prop. Tax Assessment Bd. of Appeals v. United Ancient Order

of Druids-Grove # 29, 847 N.E.2d 924, 926 (Ind. 2006).

4
In part, the trial court concluded: “The Final Order does not contain any discussion that indicates the State
Board examined the acts that gave rise to Cline’s convictions. Moreover, the Final Order does not contain
any discussion to show if or how those acts have any bearing on the activities permitted under Cline’s
certifications.” (App. Vol. II, pg. 17.)

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 Analysis
[10] The Administrative Orders and Procedures Act (“AOPA”) governs

administrative proceedings and judicial review of decisions of the Board. See

Ind. Code § 4-21.5-3-6; 22-12-7-7(4). A person aggrieved by an agency action

may file a petition for review in the trial court, and may show that the agency

action was invalid by demonstrating the party was prejudiced by an agency

action that was:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law;

(2) contrary to constitutional right, power, privilege, or
immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right;

(4) without observance of procedure required by law; or

(5) unsupported by substantial evidence.

Teaching our Posterity Success v. Ind. DOE, 20 N.E.3d 149, 151 (Ind. 2014) (citing

I.C. § 4-21.5-5-14) [hereinafter “TOPS”].

[11] Indiana Code Section 4-21.5-5-13 governs the transmittal of the agency record

to the trial court. Subsection (c) provides in relevant part: “Upon a written

request by the petitioner, the agency taking the action being reviewed shall

prepare the agency record for the petitioner.” Subsection (a) requires that,

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 “[w]ithin thirty (30) days after the filing of the petition, or within further time

allowed by the court or by other law, the petitioner shall transmit to the court

the original or a certified copy of the agency record for judicial review of the

agency action[.]” Subsection (b) addresses extensions of time and the

availability of dismissal:

An extension of time in which to file the record shall be granted
by the court for good cause shown. Inability to obtain the record
from the responsible agency within the time permitted by this
section is good cause. Failure to file the record within the time
permitted by this subsection, including any extension period
ordered by the court, is cause for dismissal of the petition for
review by the court, on its own motion, or on petition of any
party of record to the proceeding.

[12] The Board contends “it is a bright line rule that a petitioner seeking judicial

review under AOPA must file the complete administrative record within 30

days of filing the petition or within an extension of time granted by the trial

court.” Appellant’s Brief at 10. The Board directs our attention to TOPS for

the proposition that dismissal is mandatory when filing is untimely. In

response, Cline argues that there is a narrow exception to the bright-line rule of

TOPS, and that his circumstances fall within the exception. He argues that he

has prevailed on the merits and should not be penalized for a one-day late filing

of the agency record. He directs our attention to Indiana Family & Soc. Servs.

Admin. v. Meyer, 927 N.E.2d 367 (Ind. 2010) [hereinafter “Meyer”].

[13] In denying the Board’s motion to dismiss Cline’s petition, the trial court

considered TOPS and First Am. Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind.

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 2014) (handed down on the same day and citing TOPS.) The Robertson decision

reversed the denial of a motion to dismiss a petition for judicial review where

the petitioner had attached documents to its petition for judicial review but

failed to file a certified agency record. See id. at 762-63. However, the trial

court herein distinguished those decisions on the basis that “both cases

addressed situations where the petitioners wholly failed to file an agency record

for the reviewing court to consider.” (App. Vol. II, pg. 48.) The trial court

concluded that neither case stood “for the proposition that a trial court must

dismiss a petition for judicial review when the petitioner files the agency record

late.” (App. Vol. II, pg. 48.)

[14] The TOPS Court initially explained its holding thus:

Resolving a long-standing lack of consensus on the subject, today
we hold that a petitioner seeking judicial review of an agency
action must file with the trial court the agency record as defined
by [AOPA]. Failure to do so results in dismissal of the petition.

20 N.E.3d at 150. The case did, as the trial court observed, involve a complete

failure to file an agency record. Yet the TOPS Court discussed, at some length,

the Meyer case, in which four justices had agreed that the trial court could not

extend the statutory filing deadline absent a timely motion.

[15] The parties to the TOPS appeal were the Indiana Department of Education

(“the DOE”) and TOPS, an educational services provider. TOPS was removed

from a provider list and was unsuccessful in achieving reinstatement during

administrative proceedings. See id. TOPS filed a petition for judicial review but

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 did not file an official agency record or request an extension of time to do so.

See id. at 150-51. The petition for judicial review was dismissed, TOPS

appealed, and a panel of this Court reversed the dismissal and remanded for

statutorily-mandated findings and conclusions to accompany the final order.

See id. at 151. On remand, the trial court determined that a timely filed agency

record was not necessary because the letter deemed to be a final agency order

was facially defective. The DOE sought transfer, which our supreme court

granted “to address the question of whether an official agency record is required

to adjudicate a petition for review under [AOPA].” Id.

[16] The Court observed that both the DOE and TOPS supported their respective

positions by relying on the evenly-divided decision in Meyer. TOPS, 20 N.E.3d

at 153. The Court then summarized the Meyer decision:

Meyer involved a Medicaid claimant’s appeal of the Family and
Social Services Administration’s (“FSSA”) decision to deny her
benefits. Meyer appealed the decision, contending the agency’s
final order was erroneous in part because it was based on a
clerical error in the valuation of Meyer’s assets. Meyer attached
to her petition for judicial review copies of several agency
documents including the final action and the ALJ’s decision.
Although Meyer had been granted an extension of time in which
to file the agency record as permitted by statute, she failed to file
the record within the extended time period. [927 N.E.2d] at 369.
After time to file the record had expired, FSSA answered
Meyer’s petition and admitted the valuation error. Id. Four
weeks after filing its answer, FSSA moved to dismiss the petition
on the grounds that Meyer had failed to file the agency record
timely. The trial court then granted Meyer’s petition to extend
retroactively the time period for filing the record, and Meyer

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 thereafter filed the agency record. FSSA appealed and in a
divided opinion the Court of Appeals affirmed the judgment of
the trial court. See Ind. Family & Soc. Svcs. Admin. v. Meyer, 900
N.E.2d 74, 80 (Ind. Ct. App. 2009).

On transfer this Court was unanimous in holding that the
relevant provisions of AOPA do not permit untimely filing of the
agency record or nunc pro tunc extensions of the filing deadline.
See Meyer, 927 N.E.2d at 370, 372. Reviewing the statutory
language “[f]ailure to file the record within the time permitted by
this subsection … is cause for dismissal …” the Court found that
“the statute is clear” in placing the responsibility on the petitioner
to file the agency record timely, and that any request for an
extension of time must be made within the statutory time period.
Id. at 370, 371.

...

Two important facts distinguish Meyer from the case before us
and from most AOPA appeals. First, the contested issue was the
existence of what was essentially an arithmetic error in the
agency decision, albeit one that affected the outcome. Second,
and most importantly, the State conceded its error on the contested
issue before it moved to dismiss for lack of a record. So to the
extent Meyer represents the possibility of an exception to the filing
requirement, thus triggering the permissive “cause for dismissal”
language in Indiana Code section 4-21.5-5-13(b), any such
exception is extremely narrow.

TOPS, 20 N.E.3d at 153-54.

[17] The TOPS Court went on to recognize that, despite the lack of a majority

opinion in Meyer, “[a]ll four justices in Meyer agreed that the trial court lacked

authority to extend the filing deadline for an agency record that was not filed
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 within the required statutory period or an authorized extension thereof.” 20

N.E.3d at 155. The Court reviewed the reasoning underlying that conclusion in

Meyer (that is, “the purpose of AOPA section 13 is to ensure that the review of

agency action proceeds in an efficient and speedy manner, and that the

reviewing trial court has access to the record before rendering its decision” and

“the filing requirement also ensures that no relevant evidence or materials are

hidden”). Id. The Court then clarified “This reasoning applies with equal force

to a requirement that the official agency record must be filed with the trial court

in order for judicial review to proceed.” Id.

[18] Finally, the TOPS Court announced its intention to adopt a bright-line rule:

In sum we hold a petitioner for review cannot receive
consideration of its petition where the statutorily-defined agency
record has not been filed. In our view this bright-line approach
best serves the goals of accuracy, efficiency, and judicial
economy.

Id.

[19] Subsequently, in Allen Cty. Plan Comm’n v. Olde Canal Place Ass’n, 61 N.E.3d

1266 (Ind. Ct. App. 2016), a panel of this Court applied that bright-line rule to

hold that dismissal is mandatory when a petitioner fails to timely file the agency

record. The trial court had granted Old Canal Place Association (“OCPA”) an

extension of time to file an agency record but OCPA did not file the agency

record by the extended deadline. See id. at 1270. The opposing party, MRK,

filed a motion to dismiss but OCPA then filed a complete agency record, eight

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 days late. The matter was dismissed and OCPA filed a Trial Rule 60(B)(1)

motion. The trial court granted the motion, reinstated the case, and MRK

appealed. We held that the trial court’s action setting aside the dismissal was

an “empty exercise,” explaining:

In Robertson and TOPS, our Supreme Court … set forth a bright-
line rule. Specifically, the Court held that the statutory language
makes dismissal mandatory when the agency record is not timely
filed. TOPS, 20 N.E.3d at 155 (holding that “a petitioner for
review cannot receive consideration of its petition where the
statutorily-defined agency record has not been filed”); Robertson,
19 N.E.3d at 762-63 (same). Additionally, in TOPS, the Court
reaffirmed its prior holding that “the relevant provisions of
AOPA do not permit untimely filing of the agency record or nunc
pro tunc extensions of the filing deadline.” TOPS, 20 N.E.3d at
153 (quoting [Meyer], 927 N.E.2d 367, 372 (Ind. 2010)). . . .

Because OCPA is not permitted to belatedly file the Record, the
Record is not, and will never be, properly before the trial court.
Without the Record, OCPA’s petition cannot be considered.

Allen Cty., 61 N.E.3d at 1269-70.

[20] The law is thus clear. Our Indiana Supreme Court has examined the relevant

statutory language, balanced the preference for deciding cases on the merits

against the need for judicial efficiency, and concluded that this “bright-line

approach best serves the goals of accuracy, efficiency, and judicial economy.”

TOPS, 20 N.E.3d at 155.

[21] Cline recognizes the bright-line rule but argues that our legislature must have

intended that its statutory language be “applied logically and not to bring about
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 an unjust or absurd result.” Appellee’s Brief at 9. He asserts that his case is

similar to that of Meyer, because the Board is not undertaking on appeal to

contest the merits of the trial court’s decision. To the extent that Meyer and

TOPS recognize a very limited exception where AOPA proceedings might

continue without a timely-filed agency record, this precedent is not helpful to

Cline.

[22] Meyer involved extraordinarily unusual circumstances, where a mathematical

error had already been conceded by the party moving for dismissal. Thus, the

trial court, and the appellate courts, were not dependent upon a later-filed

agency record to reach the merits of the case and ascertain whether the

appealed decision was erroneous. See TOPS, 20 N.E.3d at 154. Here, at most,

Cline has shown procedural error on the part of the Board in failing to make

more specific findings. The Board has not conceded error in the certification

revocation decision, and the trial court could not reach the merits of that

decision without an agency record.

[23] To effect statutory compliance, Cline was required to file the agency record or

file a motion for an extension of time by May 9, 2016. He did not do so and the

trial court should have dismissed the petition for judicial review.

Conclusion
[24] The Board has demonstrated its entitlement to dismissal of Cline’s petition for

judicial review.

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[25] Reversed.

Pyle, J., concurs.
Kirsch, J., concurs with separate opinion.

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 IN THE
COURT OF APPEALS OF INDIANA

State of Indiana Board of Court of Appeals Case No.
Firefighting and Personnel 49A04-1707-PL-1670
Standards,
Appellant,

v.

John T. Cline,
Appellee.

Kirsch, Judge, concurring, with separate opinion.

[26] I concur, albeit with much reluctance. As the trial court noted, the filing of the

record was only one day late, and no party sustained any prejudice from the

delay. When the delay is minimal, and when no prejudice results, courts

should chastise the tardy filer but should then decide the case on the merits or

on the lack thereof.

[27] In Teaching our Posterity Success v. Ind. DOE, 20 N.E.3d 149, 151 (Ind. 2014),

however, our Supreme Court set forth as a “bright line rule” that a petitioner

seeking judicial review “must file the complete administrative record within

thirty days of filing the petition or within an extension of time granted by the

trial court.” It is that bright line rule that we apply here.

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