FILED Jun 28 2023, 8:45 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Jeffrey A. Flores William Joseph Jenner Flores Law Office Jenner, Pattison & Sharpe Madison, Indiana Madison, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jonathon D. Simpson, June 28, 2023 Appellant-Defendant Court of Appeals Case No. 22A-MI-246 v. Appeal from the Jefferson Superior Court City of Madison, Indiana, The Honorable Michael J. Appellee-Plaintiff. Hensley, Special Judge Trial Court Cause No. 39D01-2002-MI-183
Opinion by Judge Pyle
Senior Judge Robb and Judge Weissmann concur.
Pyle, Judge.
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 1 of 25 Statement of the Case [1] Jonathon D. Simpson (“Simpson”) appeals the trial court’s order upholding the
City of Madison’s (“City”) Police Merit Board Commission’s (“Merit Board”)
decision to terminate Simpson’s employment with the Madison Police
Department (“MPD”). Simpson argues that the trial court erred by upholding
the Merit Board’s decision to terminate his employment. Concluding that the
trial court did not err, we affirm the trial court’s judgment.
[2] We affirm.
Issue Whether the trial court erred by upholding the Merit Board’s decision to terminate Simpson’s employment.
Facts1 [3] In 2004, Simpson started working for MPD as an officer. Simpson later
became a lieutenant detective. In 2006, the Indiana State Police (“ISP”)
1 We note that Simpson has provided minimal record materials for our review in this appeal. Specifically, in his Appellant’s Appendix, Simpson included only the chronological case summary (“CCS”) and the orders from Merit Board and trial court. He did not include any pleadings that had been filed with the Merit Board or the trial court. We direct Simpson’s attention to Indiana Appellate Rule 50(A)(1), which provides that the “purpose of an Appendix in civil appeals and appeals from Administrative Agencies is to present our Court with copies of only those parts of the Record on Appeal that are necessary for the Court to decide the issues presented.” Additionally, we direct Simpson to Appellate Rule 50(A)(2)(f), which provides that an Appellant’s Appendix “shall contain[,]” among other things, “pleadings and documents from the Clerk’s Record in chronological order that are necessary for the resolution of the issues raised on appeal[.]” We also note that Simpson failed to comply with Appellate Rule 22(C), which provides that “[a]ny record material cited in an appellate brief must be reproduced in an Appendix or Transcript or exhibits.” The City has included, in its Appellee’s Appendix, the relevant pleadings filed with the Merit Board along with the transcript and exhibits from the Merit Board hearings. Neither party, however, has included the pleadings
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 2 of 25 investigated Simpson regarding an allegation of improper relationships with
various people potentially involved in criminal investigations or cases. Two of
the questioned relationships included Carrie Brown (“Brown”) and Misty
Owens (“Owens”). In February 2006, Simpson admitted to then MPD police
chief, Chief Robert Wolf (“Chief Wolf”), that he had engaged in a sexual
relationship with Brown in 2002 and 2005 and that he had desired to have a
sexual relationship with Owens. At that time, Chief Wolf gave Simpson a
written informal reprimand for conduct unbecoming an officer.
[4] In 2013, ISP conducted a second investigation relating to Simpson. This
investigation related to Simpson’s evidence handling and packaging.
Specifically, Simpson had had evidence, including drugs and drug
paraphernalia, in his office, and he had not packaged, sealed, or placed that
evidence in the MPD evidence locker. Then MPD police chief, Chief Dan
Thurston (“Chief Thurston”) spoke to Simpson and gave him a verbal
reprimand about proper evidence practices and instructed Simpson to “follow
the proper chain of collecting evidence, packaging evidence, and logging
evidence.” (Appellee’s App. Vol. 4 at 223).
[5] Sometime between 2011-2013, then Jefferson County Prosecutor Chad Lewis
(“Prosecutor Lewis”) heard rumors about Simpson and asked Simpson whether
filed with the trial court on judicial review. For example, neither party’s appendix contains the briefs filed by Simpson and the City in support of their arguments on judicial review.
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 3 of 25 he was having a sexual relationship with any defendants, confidential
informants, or witnesses in then-pending cases. Simpson denied being engaged
in any such relationship.
[6] In October 2016, Simpson was conducting surveillance in an area where Brown
was in a car with Demontre Jones (“Jones”) and Tracie Pedraza (“Pedraza”)
(“the Jones/Pedraza investigation”). Simpson found drugs in the car and
arrested Jones and Pedraza. Simpson did not arrest Brown. Simpson wrote the
probable cause affidavit, which mentioned Brown’s presence at the scene.
Simpson did not inform Prosecutor Lewis, who was the prosecutor at that time,
about his prior sexual relationship with Brown. The prosecutor’s office brought
charges against Jones and Pedraza and obtained convictions against them.
[7] In December 2017, Simpson searched the residence of James Wainman
(“Wainman”), who was a convicted felon (“the Wainman investigation”).
During the search of Wainman’s residence, Simpson recovered
methamphetamine, two guns, drug paraphernalia, and scales. Simpson
collected the evidence but made no arrests. Jefferson County Sheriff Deputy
Ben Flint (“Deputy Flint”) and ISP Trooper Andrew Garrett (“Trooper
Garrett”) were also on the scene as Simpson searched the house. While on the
scene, Deputy Flint and Trooper Garrett expressed concern about Simpson’s
actions during the search. As Simpson was searching the house, Trooper
Garrett went to his vehicle and radioed his sergeant to express his concerns.
The ISP sergeant told Trooper Garrett to stay on the scene and document his
observations. After Deputy Flint had left the scene, he sent an email to his
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 4 of 25 superior officer to set out his concerns about Simpson’s search at the Wainman
residence.
[8] Simpson waited more than six months before he logged the evidence from the
Wainman investigation into the MPD’s evidence system. Additionally,
Simpson did not submit an investigation report to MPD’s case report system.
Nor did Simpson send a report to the prosecutor’s office. As a result, the
prosecutor’s office did not file any charges relating to the Wainman
investigation. About a month after Simpson had logged the evidence into
MPD’s evidence tracking system, he filed a system request to have an item of
the evidence collected from the Wainman investigation be “destroyed . . . for no
charges filed.” (Appellee’s App. Vol. 2 at 86, Vol. 4 at 147). Specifically,
Simpson sought to destroy eight “individual plastic bags each weighing .5
grams to 1 gram[.]” (Appellee’s App. Vol. 4 at 144). This evidence, however,
was not destroyed.
[9] The ISP commenced a third investigation of Simpson in 2017 (“the 2017 ISP
investigation”). Trooper Tracy Rohlfing (“Trooper Rohlfing”) conducted the
investigation. This third investigation related in part to Simpson’s actions in
the Wainman investigation. The ISP investigation also looked into the
Jones/Pedraza investigation and Simpson’s failure to report his previous sexual
relationship with Brown to the prosecutor. Trooper Rohlfing interviewed
Simpson and other witnesses, including Brown and Owens, during this
investigation. When Trooper Rohlfing interviewed Simpson, Simpson
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 5 of 25 indicated that he had up to fourteen other cases or reports that he had not
logged.
[10] Trooper Rohlfing later went to the MPD station in 2018 and discussed the 2017
ISP investigation with MPD Chief Jeremy Perkins (“Chief Perkins”). At that
time, Chief Perkins learned of the Wainman investigation and Simpson’s prior
problems with evidentiary practices. Chief Perkins searched the MPD case
report system for a report on the Wainman investigation, but no report existed.
Chief Perkins later placed Simpson on administrative leave. The ISP later
transferred out and took control of the evidence from the Wainman
investigation.
[11] On March 15, 2019, Jefferson County Prosecutor David Sutter (“Prosecutor
Sutter”) asked to meet with Chief Perkins. During that meeting, Prosecutor
Sutter informed Chief Perkins that the prosecutor’s office had decided to no
longer accept cases filed by Simpson. Prosecutor Sutter also gave Chief Perkins
a letter (“March 2019 Prosecutor Letter”) that indicated that decision. The
letter provided, in relevant part, as follows:
I have received and reviewed two police reports from the Indiana State Police; 17ISPC013857 and 13ISPC007678. Both reports involve City of Madison Police Department Lieutenant Detective Jonathon Simpson. The reports contain allegations that bear directly on Lieutenant Detective Simpson’s truthfulness. Additionally, there is concerning information contained in the reports regarding evidence handling practices in cases that Lieutenant Detective Simpson investigated.
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 6 of 25 The Indiana Rules of Professional Responsibility and the United States Supreme Court cases of Brady v. Maryland and U.S. v. Giglio [sic] require me to disclose any information about character for untruthfulness for any State’s witnesses. All exculpatory evidence that is material to guilt or punishment must be produced to a defendant or defense attorney including impeachment evidence of government witnesses. I am providing disclosure of the allegations contained in the above referenced police reports to any defendant or defense attorney who has a case where Lieutenant Detective Jonathon Simpson is a witness or affiant pursuant to Brady v. Maryland and U.S. v. Giglio [sic].
Based on the allegations contained in the reports, the Jefferson Prosecutor’s Office will not call Lieutenant Detective Jonathon Simpson as [a] witness and will not accept cases where he has had any involvement.
(Appellee’s App. Vol. 4 at 34).
[12] On May 16, 2019, Chief Perkins referred charges to the Merit Board and
against Simpson for “Neglect of Duty, Violation of Department Rules and
Practices, and . . . conduct . . . unbecoming an officer.” (Appellee’s App. Vol. 2
at 6). The charges against Simpson ultimately involved: (1) Simpson’s conduct
in the Wainman investigation, including Simpson’s failure to timely and
properly log evidence and submit a report; and (2) Simpson’s failure to inform
prosecutors of his past sexual relationships with individuals who were the
subjects of or involved with a case or an investigation. Chief Perkins alleged
that Simpson had violated Standard Operating Procedure number eight (“SOP-
008”) as well as rules of conduct from the Police Merit Board Handbook,
including Article III(E)(1), Article III(E)(40), and Article III(E)(41).
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 7 of 25 [13] Chief Perkins alleged, in part, that Simpson had violated Standard Operating
Procedure number eight (“SOP-008”). SOP-008 is the MPD standard operating
procedure relating to “evidence and property control[,]” and it “[e]stablishe[d]
guidelines for collecting, preserving and transporting physical evidence from a
crime scene for analysis or storage.” (Appellee’s App. Vol. 4 at 225, 238).
SOP-008 provided, among other things, that MPD employees were required to
properly record all evidence into the department’s evidence system.
[14] Chief Perkins also alleged that Simpson had violated the rules of conduct from
the Police Merit Board Handbook, including Article III(E)(1), Article
III(E)(40), and Article III(E)(41). Police Merit Board Handbook Article
III(E)(1) is the provision that relates to conduct unbecoming an officer. It
provides, in part, that “[c]onduct unbecoming an officer shall include that
which brings the Department into disrepute or reflects discredit upon any
member, or that which impairs the operation or efficiency of the Department or
its members.” (Appellee’s App. Vol. 4 at 193). This provision also explains
that conduct unbecoming an officer may include, among other things,
“[k]nowingly withholding information from the Department, the prosecuting
attorney, or any court in which the officer is a witness[.]” (Appellee’s App. Vol.
4 at 193).
[15] Police Merit Board Handbook Articles III(E)(40) and (41) provide as follows:
(40) Departmental Reports. Members shall submit all necessary reports on time and in accordance with established departmental procedure. Reports submitted by members shall be truthful and
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 8 of 25 complete, and no member shall knowingly enter or cause to be entered any inaccurate, false or improper information, or withhold information from the Prosecuting Attorney or from any court.
(41) Processing Property and Evidence. Property or evidence which has been discovered, gathered or received in connection with departmental responsibilities will be processed in accordance with established departmental procedure. Members shall not convert to their own use, manufacture, conceal, falsify, destroy, remove, tamper with or withhold any property or evidence in connection with an investigation or other police action, except in accordance with established departmental procedure.
(Appellee’s App. Vol. 4 at 202-03).
[16] Chief Perkins requested that the Merit Board terminate Simpson’s employment
with MPD. That same day, Chief Perkins notified Simpson of the pending
disciplinary action and charges against him as well as his right to request a
hearing before the Merit Board.
[17] The Merit Board held a hearing in November 2019 and January 2020. At the
beginning of the hearing, the parties agreed that all procedural matters for the
hearing were proper. The hearing officer explained that the hearing would “not
follow strict evidentiary rules” and that “hearsay w[ould] be allowed.” (Tr.
Vol. 2 at 66). Additionally, the parties submitted a stipulated agreement
regarding Simpson’s motion in limine, in which he had sought to exclude any
evidence or reference to any prior disciplinary actions against or investigations
of him. The parties’ stipulation provided that the parties had “agree[d] that
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 9 of 25 witnesses may be questioned regarding previous reprimands of Officer Simpson
so long as it relates to the specific allegations contained herein against Officer
Simpson.” (Appellee’s App. Vol. 2 at 51, 67).
[18] During the hearing, both the City and Simpson called witnesses. The City
called Chief Perkins, Trooper Rohlfing, Prosecutor Chad Lewis, Deputy Ben
Flint, Trooper Garrett, Chief Thurston, and Chief Wolf, who testified to the
facts as set forth above. Simpson testified and called numerous witnesses,
including Brown and Owens. Simpson also called some former and current
police officers to testify about evidence and report writing practices.
[19] The parties entered joint exhibits, including the Police Merit Board Handbook
and SOP-008. The City and Simpson also entered their own exhibits. Among
the City’s exhibits were Exhibit C-1, the March 2019 Prosecutor letter, and
Exhibit C-2, the 2017 ISP investigation report. The City introduced these two
exhibits during Chief Perkins’ testimony. Simpson objected to both exhibits
based on foundation. Specifically, Simpson argued that the City should not be
able to introduce the exhibits through Chief Perkins because Chief Perkins had
not written the letter or the ISP report. The hearing officer overruled Simpson’s
objections and admitted the exhibits into evidence.
[20] Despite objecting to the admission of Exhibits C-1 and C-2, Simpson’s counsel
questioned witnesses about the content of these two exhibits. For example,
Simpson’s counsel questioned Chief Perkins and Trooper Rohlfing on cross-
examination about Exhibit C-1 and its contents. Specifically, Simpson’s
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 10 of 25 counsel pointed out that Exhibit C-1 had mentioned that the ISP report had
contained allegations regarding Simpson’s truthfulness. During Simpson’s
testimony, Simpson’s counsel also asked Simpson about Exhibit C-1, including
the specific contents of the letter. Specifically, Simpson’s counsel asked
Simpson, “[W]hat does [the letter] basically say?” (Appellee’s App. Vol. 3 at
181). Simpson then summarized the content of the letter. Moreover,
Simpson’s counsel also questioned Trooper Rohlfing, who had authored the
2017 ISP investigation report, about Exhibit C-2 and his investigation as set
forth in Exhibit C-2.
[21] During the hearing, various witnesses testified about Simpson’s conduct in the
Wainman investigation, including Simpson’s failure to timely and properly log
evidence and submit a report. Chief Perkins testified that Simpson had violated
SOP-008 and multiple rules of conduct as set out in the Police Merit Board
Handbook. Specifically, Chief Perkins testified that the Wainman investigation
had been compromised by Simpson’s actions, including his failure to timely log
evidence. Chief Perkins also testified that Simpson had violated the rules of
conduct in Article III(E)(40) and (41) of the Police Merit Board Handbook by
failing to complete a report in the Wainman investigation.
[22] The City also presented testimony during the hearing to address Simpson’s
failure to inform prosecutors of his past sexual relationships with individuals
who were the subjects of or involved with a case or an investigation. This
testimony focused mainly on the Jones/Pedraza investigation and Simpson’s
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 11 of 25 prior sexual relationship with Brown. The City also presented testimony about
Simpson’s prior relationship with Owens.
[23] Chief Perkins and Prosecutor Lewis testified that Simpson had failed to report
his relationship with Brown to prosecutors during the Jones/Pedraza
proceedings. Prosecutor Lewis, who was the prosecutor at the time of the
Jones/Pedraza investigation, testified that Simpson should have disclosed his
relationship with Brown as part of the proceedings against Jones and Pedraza.
Trooper Rohlfing testified that law enforcement officers have a “duty to bring
forward and provide to the prosecutor any evidence that suggests whatsoever
that [a] person may not be guilty.” (Appellee’s App. Vol. 2 at 158). Chief
Perkins testified that Simpson’s non-disclosure was a violation of the Brady rule
and constituted conduct unbecoming an officer under Article III(E)(1)(g) of the
Police Merit Board Rules. Additionally, Chief Perkins testified that the ISP had
informed him that they had “released [Jones] from prison based on their
findings” in the 2017 ISP investigation of Simpson. (Appellee’s App. Vol. 2 at
98).
[24] When Simpson testified, he stated that he did not understand why the ISP had
“started yelling this Brady concern” during the 2017 ISP investigation.
(Appellee’s App. Vol. 3 at 164). However, one of Simpson’s own witnesses,
Tyson Eblen (“Eblen”), who was a former MPD detective from 2004 to 2017,
acknowledged during cross-examination that a police officer who had been
involved in a past sexual relationship with an individual who was a suspect,
arrestee, or witness in a case had a duty to disclose that relationship to the
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 12 of 25 prosecutor. Eblen testified that it was “important to disclose that information”
because “it could border on the line of perhaps exculpatory evidence” and
“could indicate that maybe there is a bias there.” (Appellee’s App. Vol. 3 at
148). Simpson testified that he was aware that the prosecutor’s office had
modified Jones’ and Pedraza’s sentences based on Simpson’s failure to inform
the prosecutor’s office about his relationship with Brown. Simpson also
testified that he had told a deputy prosecutor, Richard Eppard (“Deputy
Prosecutor Eppard”), about his prior sexual relationship with Brown. Simpson
did not call Deputy Prosecutor Eppard as a witness.
[25] In regard to Simpson’s relationship with Owens, Chief Perkins testified that he
believed that Simpson had been involved in a prior sexual relationship with
Owens. Trooper Rohlfing testified that, during the 2017 ISP investigation, he
had interviewed Owens about her relationship with Simpson. Owens told
Trooper Rohlfing that she and Simpson had engaged in a relationship that
involved “heavy petting” and kissing. (Appellee’s App. Vol. 2 at 159). Owens
also told Trooper Rohlfing that there were instances when Simpson had
overlooked when she had drugs. Simpson cross-examined Trooper Rohlfing
about his level of certainty regarding whether Simpson had had a sexual
relationship with Owens. Trooper Rohlfing testified that he could not say for
certain because Owens had reported that the two had engaged in a relationship
while Simpson had denied it. When Simpson presented Owens as a witness,
Owens denied that she had had a sexual relationship with Simpson. Owens
further testified that she had lied during her ISP interview and that she was on
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 13 of 25 drugs during that interview. During Trooper Rohlfing’s rebuttal testimony, he
testified that Owens showed no signs of intoxication at the time of her ISP
interview. Additionally, Trooper Rohlfing testified that he had been informed
that Simpson had contacted another person to talk to Owens about her Merit
Board hearing testimony.
[26] On January 30, 2020, the Merit Board issued an order terminating Simpson’s
employment with MPD. Specifically, the Merit Board concluded that
Simpson’s failure to timely log the evidence from the Wainman investigation
and failure to file a report had violated the MPD’s SOP-008 and the rules of
conduct as set out in Articles III(E)(40) and (41) of the Police Merit Board
Handbook. The Merit Board also concluded that these failures had
compromised the investigation and future prosecution of any offenses against
Wainman. Additionally, the Merit Board concluded that Simpson’s failure to
disclose his previous intimate relationships with Brown and Owens had
jeopardized prosecutions for the prosecutor’s office, had violated the rule of
conduct in Article III(E)(1)(g) of the Police Merit Board Handbook, and
constituted conduct unbecoming of an officer. Additionally, the Merit Board
determined that Simpson’s failure to disclose his previous relationships had
resulted in his violation or had caused the prosecutor’s office to violate the
Brady rule that required “disclosing information of an exculpatory nature to
defendants in criminal matters.” (App. Vol. 2 at 21).
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 14 of 25 [27] Thereafter, Simpson filed with the trial court a petition for judicial review of the
Merit Board’s decision.2 In October 2021, the trial court held a hearing on
Simpson’s judicial review petition. During the hearing, Simpson argued that he
was deprived “fundamental fairness or due process” because the hearing officer
admitted Exhibit C-1 (March 2019 Prosecutor letter) and Exhibit C-2 (2017 ISP
investigation report), which he asserted had contained hearsay with
“conclusory” assertions and “salacious allegations.” (Tr. Vol. 2 at 4, 5, 7).
Simpson conceded that the hearing officer had explained that hearsay would be
allowed during the Merit Board hearing and acknowledged that it was
“commonplace” in administrative hearings for hearsay to be admitted. (Tr.
Vol. 2 at 4). He generally argued that the admission of the exhibits prevented
the Merit Board from being impartial in its determination. Simpson also argued
that the Merit Board had improperly used his 2006 informal reprimand as a
basis of his termination and that the Merit Board’s finding that he had had a
sexual relationship with Owens was not supported by the evidence.
[28] In January 2022, the trial court issued an order upholding the Merit Board’s
decision to terminate Simpson. The trial court made the following relevant
findings to address Simpson’s arguments on judicial review:
15. [Simpson] was afforded adequate due process as he was represented by counsel at all times of this process and never once
2 Again, the parties’ exact arguments to the trial court are not known because the parties, when filing their respective appellate appendices, did not include their briefs or pleadings that they had filed with the trial court on judicial review.
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 15 of 25 made a claim that the process that the City of Madison Merit Board had violated his due process rights. [Simpson’s] counsel accepted the matters at the time of the hearing of the Merit Board as procedurally proper. (Tr. Vol. I p. 6).
16. The 2006 reprimand by then Chief Wolf was not improperly used by the Merit Board as a basis for this termination.
a.) In 2006, Simpson admitted to then Chief Robert Wolf that he had [had] a sexual relationship with Carrie Brown and desired to have a sexual relationship with Misty Owens. (Tr. Vol I. p. 176).
b.) Simpson was informally reprimanded for his behavior in 2006. (Hrg. Ex. C-2 pp. 32-33).
c.) The Merit Board found that, “by [O]fficer Simpson’s failure to disclose his previous relationship with Carrie Brown and Misty Owens he has violated or has caused the Jefferson County Prosecutor’s Office to violate, the standards set forth in the case of Brady v. Maryland and U.S. v. Giglio [sic], which relate to the disclosing information of an exculpatory nature to defendants in criminal matters.” (Merit Board Decision p. 4).
d.) The fact that Simpson continued to investigate or be involved in investigations that involved Brown and failed to disclose such information regarding his past relationship creates an entirely new action for which Simpson could be reprimanded. (Merit Board Decision p. 3).
17. The admission of Hearing Exhibits C-1 (A letter from Prosecutor David Sutter) and C-2 (2017 State Police investigation) did not constitute fundamental [e]rror.
a.) Police merit board hearings “are administrative actions which allow for less formality than in civil proceedings before a court and we will not disturb the [merit board’s] decision for the lack of promulgated rules of evidence as
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 16 of 25 long as the hearing was full and fair, before an impartial body and conducted in good faith.”. . . .
b.) [T]he admission of incompetent or immaterial evidence will not justify setting aside [an] administrative agency action if there is substantial evidence to support the agency’s decision[]. . . .
c.) [Simpson] fails to cite to any case whereby an administrative bodies [sic] decision has been overturned on the bas[i]s of introducing evidence that constituted fundamental error.
d.) The parties agreed and consented that the hearing officer would be the one to rule on the admission of evidence. (Tr. P. 9) The hearing officer stated at the hearing “we will not follow strict evidentiary rules in the hearing, so hearsay will be allowed.” [(] Tr. P. 7).
e.) The hearing officer admitted both C-1 and C-2. (Tr. P. 24).
f.) Exhibit C-1 (the letter from Prosecutor David Sutter stating that the Jefferson County Prosecutors office would no longer accept cases involving [O]fficer Simpson) was relevant evidence.
g.) Exhibit C-2 (the 2017 Indiana State Police Investigation) was relevant and although introduced through Chief Perkins, the Trooper who authored the report, Detective Tracy Rohlfing, testified and was available for cross examination regarding the contents of the report.
h.) The vast majority of the facts relied upon by the Merit Board were provided through testimony presented at the hearing. For example, in addition to exhibit C-1, the Merit Board relied on the testimony of former Prosecutor Chad Lewis who stated that Simpson did not inform him
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 17 of 25 of a previous sexual relationship with Brown and that Lewis felt that Simpson should have disclosed his previous relationship with Brown when it was learned that Carrie Brown was either a suspect or witness in a criminal case. (Tr. P. 127 and Merit Board Findings of Fact p. 2 and 3).
i.) The Merit Board relied upon substantial evidence when formulating their findings of fact and conclusions of law.
j.) The probative value of Exhibits C-1 and C-2 outweigh any prejudice that may have been caused for [Simpson].
18. The Board[‘]s Findings of Fact supported by the evidence.
*****
e.) [Simpson] fails to provide the Court with any evidence that illustrates the Merit Board[’]s findings are not supported by substantial evidence.
(App. Vol. 2 at 14-16).
[29] Simpson now appeals.
Decision [30] Simpson argues that the trial court erred by upholding the Merit Board’s
decision to terminate his employment. As Simpson argued to the trial court on
judicial review, Simpson contends that: (1) his due process rights were violated
by the Merit Board hearing process; (2) the Merit Board improperly used his
2006 informal reprimand as a basis for its decision to terminate his
employment; (3) the admission of Exhibits C-1 and C-2 resulted in fundamental
error; and (4) some of the Merit Board’s findings were not supported by
substantial evidence. We will review each argument in turn.
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 18 of 25 [31] “Our review of an administrative action is very limited.” Gray v. Cty. of Starke,
82 N.E.3d 913, 917 (Ind. Ct. App. 2017), reh’g denied, trans. denied. We give
deference to the expertise of the administrative body, which includes a police
merit commission, and will not reverse its discretionary decision absent a
showing that the decision was arbitrary and capricious, an abuse of discretion,
or otherwise not in accordance with the law. Id. “An arbitrary and capricious
decision, which the challenging party bears the burden of proving, is a decision
which is willful and unreasonable, made without any consideration of the facts
and in total disregard of the circumstances, and lacks any basis which might
lead a reasonable and honest person to the same decision.” Id. (cleaned up).
Furthermore, “[o]ur 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.” Id. “Substantial evidence is such relevant evidence as a reasonable
mind might accept as being adequate to support a conclusion.” Id. We will
neither reweigh the evidence upon review nor substitute our judgment for that
of the administrative body. Id. “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.” Winters v. City of
Evansville, 29 N.E.3d 773, 781 (Ind. Ct. App. 2015) (cleaned up), trans. denied.
[32] For Simpson’s first argument, he generally argues that his due process rights
were violated by the Merit Board hearing process. We recognize that “[t]he
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 19 of 25 tenure given a police officer ‘is a constitutionally protected interest requiring the
opportunity for a fair hearing conducted in good faith before a full and
impartial body.” Fornelli v. City of Knox, 902 N.E.2d 889, 893 (Ind. Ct. App.
2009) (cleaned up), trans. denied. Simpson, however, has waived this argument
because he failed to raise a due process objection in the first instance to the
Merit Board. See Pigg v. State, 929 N.E.2d 799, 803 (Ind. Ct. App. 2010)
(explaining that “[d]ue process rights are subject to waiver, and claims are
generally waived if raised for the first time on appeal”), trans. denied; Sedona Dev.
Group Inc., v. Merrillville Rd. Ltd. P’ship, 801 N.E.2d 1274, 1280 (Ind. Ct. App.
2004) (“[A] party may not present an argument or issue to an appellate court
unless the party raised that argument or issue to the trial court.”); McBride v.
Monroe County Office of Family & Children, 798 N.E.2d 185, 194 (Ind. Ct. App.
2003) (explaining that a party’s failure to raise constitutional due process
challenge below waives the issue for appellate review). Waiver
notwithstanding, Simpson has failed to show a violation of his due process
rights by the hearing process. Indeed, Simpson received notice of the charges
against him and his right to a hearing, and he was represented by counsel at the
hearing. Moreover, at the beginning of the hearing, the parties agreed that all
procedural matters for the hearing were proper.
[33] Second, we address Simpson’s assertion that the Merit Board improperly
considered his 2006 informal reprimand as a basis for its decision to terminate
his employment. During the Merit Board hearing, Simpson and the City
stipulated that the parties had “agree[d] that witnesses may be questioned
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 20 of 25 regarding previous reprimands of Officer Simpson so long as it relates to the
specific allegations contained herein against Officer Simpson.” (Appellee’s
App. Vol. 2 at 51, 67). Here, Simpson’s 2006 reprimand regarding his previous
sexual relationship with Brown related to the specific allegation that he had
failed to disclose that relationship to the prosecutor’s office during the
Jones/Pedraza investigation and proceedings. Indeed, a review of the Merit
Board’s order reveals that the Merit Board terminated Simpson’s employment,
in part, based on his failure to disclose his prior sexual relationship with Brown
during the Jones/Pedraza investigation and proceedings and not based on the
fact that he had previously engaged in a relationship with Brown. Accordingly,
we conclude that Simpson’s argument on this issue is without merit.
[34] Next, we turn to Simpson’s challenge to the admission of Exhibits C-1 and C-2.
Simpson asserts that the admission of Exhibits C-1 and C-2 resulted in
fundamental error. “The fundamental error doctrine is extremely narrow and
applies only when the error constitutes a blatant violation of basic principles,
the harm or potential for harm is substantial, and the resulting error denies the
defendant fundamental due process.” Johnson v. Wait, 947 N.E.2d 951, 959
(Ind. Ct. App. 2011) (cleaned up), reh’g denied, trans. denied. However, “[w]e
have applied the fundamental error doctrine only in limited situations in civil
cases.” Id.
[35] Even assuming that this civil proceeding was one of the limited situations in
which the fundamental error doctrine would apply, Simpson has failed to show
such error. Simpson acknowledges that he objected, based on foundation, to
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 21 of 25 the admission of these two exhibits during the Merit Board hearing. On judicial
review and on appeal, Simpson argues that the admission of these exhibits
constituted fundamental error because they contained hearsay. Simpson,
however, recognizes that the hearing officer explained that the Merit Board
hearing would “not follow strict evidentiary rules” and that “hearsay w[ould]
be allowed.” (Tr. Vol. 2 at 66). Simpson also generally argues that the
admission of the exhibits resulted in prejudice.
[36] In reviewing this admission of evidence issue, we recognize “that [p]olice merit
board hearings are administrative actions which allow for less formality than in
civil proceedings before a court and we will not disturb the [merit board’s]
decision for the lack of promulgated rules of evidence as long as the hearing
was full and fair, before an impartial body and conducted in good faith.”
Fornelli, 902 N.E.2d at 894 (cleaned up). Indeed, “it is well settled that the
admission of incompetent or immaterial evidence will not justify setting aside
administrative agency action if there is substantial evidence to support the
agency’s decision.” Sullivan v. City of Evansville, 728 N.E.2d 182, 194 (Ind. Ct.
App. 2000). “[I]n the absence of a demonstration of actual bias, we will not
interfere with the administrative process.” Jandura v. Town of Schererville, 937
N.E.2d 814, 819 (Ind. Ct. App. 2010) (cleaned up), trans. denied. Instead, we
presume that an administrative board or panel . . . act[ed] properly and without
bias or prejudice.” Id. (cleaned up).
[37] Here, Simpson objected to Exhibits C-1 and C-2 based on foundation. Thus,
his objection to the admission of the exhibits was not based on the content of
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 22 of 25 the exhibits but on the method through which they were introduced into
evidence. Witnesses testified to the content of Exhibit C-1 and to the portions
of Exhibit C-2 that were specifically related to the preferred charges against
Simpson, and Simpson did not object to that testimony. Moreover, Simpson’s
counsel questioned witnesses about the content of these two exhibits.
Additionally, Simpson’s counsel also questioned Trooper Rohlfing, who had
authored the 2017 ISP investigation report, about Exhibit C-2 and his
investigation as set forth in Exhibit C-2. Because we presume that the Merit
Board acted without prejudice and a review of the Merit Board’s order reveals
that its conclusions regarding the preferred charges were supported by
substantial evidence, we reject Simpson’s argument that the Merit Board’s
decision should be reversed based on the admission of the two exhibits. See
Jandura, 937 N.E.2d at 819 (explaining that we presume that an administrative
board acted properly and without bias or prejudice); Sullivan, 728 N.E.2d at 194
(explaining that even the improper admission of evidence in an administrative
hearing “will not justify setting aside administrative agency action if there is
substantial evidence to support the agency’s decision”).
[38] Lastly, we also reject Simpson’s argument that some of the Merit Board’s
findings were not supported by substantial evidence. “Substantial evidence is
such relevant evidence as a reasonable mind might accept as being adequate to
support a conclusion.” Gray, 82 N.E.3d at 917. We will neither reweigh the
evidence upon review nor substitute our judgment for that of the administrative
body. Id. Additionally, “we will not substitute our judgment for that of the
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 23 of 25 administrative body when no compelling circumstances are present.” Winters,
29 N.E.3d at 781 (cleaned up).
[39] We have thoroughly reviewed the findings that Simpson challenges. For
example, Simpson argues that the Merit Board did not consider the testimony
of his witnesses because the findings did not specifically mention his witnesses.
However, the Merit Board’s order specifically states that it “considered the
testimony of all witnesses in making its decision.” (App. Vol. 2 at 18).
Simpson also challenges the Merit Board’s finding that he had had a
relationship with Owens and points to the conflicting evidence presented during
the hearing. However, such an argument is nothing more than a request for us
to reweigh the evidence, which we will not do. See Gray, 82 N.E.3d at 917
(explaining that we will neither reweigh the evidence upon review nor substitute
our judgment for that of the administrative body).3 We will not individually
discuss each of the findings that Simpson challenges because a review of each
one reveals that Simpson’s challenges are nothing more than a request for us to
reweigh the evidence. Accordingly, we reject Simpson’s challenge to the
findings and affirm the trial court’s order upholding the Merit Board’s decision
to terminate Simpson’s employment with MPD.
3 Moreover, it is clear from our review of the Merit Board proceedings and order that the primary evidence relating to the preferred charge regarding Simpson’s failure to disclose his prior sexual relationship was the evidence relating to Simpson’s relationship with Brown and his failure to disclose that relationship during the Jones/Pedraza investigation and proceedings.
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 24 of 25 [40] Affirmed.
Robb, S.J., and Weissmann, J., concur.
Court of Appeals of Indiana | Opinion 22A-MI-246| June 28, 2023 Page 25 of 25