dissenting.
I dissent. Hardesty’s claim that he was victimized by Bolerjack’s selective enforcement of various sheriff department rules and regulations is not barred by the issue preclusion branch of res judicata. Issue preclusion applies only where an essential issue has been actually litigated in a prior proceeding. Peterson v. Culver Educational Foundation (1980), Ind.App., 402 N.E.2d 448, 461; Illinois Central Gulf R.R. v. Parks (1979), Ind.App., 390 N.E.2d 1078, 1081. The issue of selective enforcement was neither essential nor actually litigated in the prior Merit Board proceeding and its review.
The Merit Board made no finding regarding selective enforcement. The only factual issues before the Board concerned Har-desty’s alleged violation of certain rules and regulations. During his hearing before the Board, Hardesty attempted to admit evidence of selective enforcement in an effort to mitigate any punishment he might receive. The Board excluded all such evidence believing it was immaterial to their task. The Board “found” only that Hardesty had committed the acts alleged by Boler-jack, which constituted a material breach of his employment contract. Accordingly, the Board directed that Hardesty be discharged.
Hardesty’s petition for review alleged in pertinent part that the Board erred in excluding the evidence of selective enforcement. To uphold the Board’s decision, Judge Miller need only have found that evidence regarding selective enforcement was immaterial to the Board’s determination of whether Hardesty had committed the violations alleged by Bolerjack. This is what Judge Miller found in that part of his memorandum labeled “6. Selective Enforcement.” That section’s last sentence states: “That other police officers may have committed similar or dissimilar offenses serves as no bar to the validity of the actions of the sheriff and The Board.” Thus, Judge Miller did not find that there was no selective enforcement, only that any evidence regarding it was immaterial and properly excluded by the Board.
Yet, the Majority believes that Judge Miller’s determination that there had been no selective enforcement is valid. Judge Miller could not have validly made such a determination. The Board made no “finding” regarding selective enforcement. Its conclusion was only that Hardesty committed certain acts which warranted his discharge. Any review by Judge Miller was limited to: whether the Board had subject matter jurisdiction; whether the Board followed proper administrative procedure; whether the Board rendered an administrative decision supported by substantial evidence; and whether the decision violated any constitutional, statutory, or legal principle. Brinson v. Sheriff’s Merit Board of Jefferson County (1979), Ind.App., 395 N.E.2d 267, 270.
*247A determination by Judge Miller concerning the selective enforcement of department rules by Bolerjack was unnecessary to uphold the Board’s decision that Hardesty had committed the acts Bolerjack alleged. See King v. City of Gary (1973), 260 Ind. 459, 296 N.E.2d 429, 431 (allegation of selective enforcement no bar to administrative disciplinary proceedings). Therefore, any such determination by Judge Miller would not bar Hardesty’s present claim of selective enforcement. The issue of selective enforcement was neither essential nor actually litigated in the Merit Board proceeding or on its review. Consequently, there is no issue preclusion. I would reverse the judgment.