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Appeal from the Vanderburgh Circuit Court. The Honorable David D. Kiely, Judge. Case No.82C01-1308-CT-410.
ATTORNEY FOR APPELLANT: Charles L. Berger Berger & Berger, LLP, Evansville, Indiana.
ATTORNEYS FOR APPELLEE: Keith W. Vonderahe, Clay W. Havill, Molly E. Briles, Ziemer Stayman Weitzel & Shoulders, LLP, Evansville, Indiana.
Crone, Judge. Robb, J., and Bradford, J., concur.
[¶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 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 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 History
[¶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 ...