CADDNAR

 

 

[CITE: Knoy v. DNR, 15 CADDNAR 36 (2018)]

 

[VOLUME 15, PAGE 36]

 

Cause #: 17-058L

Caption: Knoy v. DNR

Administrative Law Judge: Wilson

Attorneys: Duncan (Knoy); Gamboa (DNR)

Date: October 29, 2018

 

[See Editor’s note at end of this document regarding change in the decision’s original format.]

 

Final Order

1.         Bryan Knoy violated General Order ADM002, Procedures D, Procedure 1, Core Value 12 for honesty by his failure to be truthful and trustworthy at all times, at all places and Procedures D, Procedure 4(3)(b) by his failure to cooperate fully in the internal investigation and Procedures D, Procedure 4(3)(c) by his failure to provide accurate, complete, and truthful information during the internal investigation.

 

2.         Bryan Knoy violated General Order ADM002, Procedures D, Procedure 4(1)(b) by his failure to obey a lawful order, specifically the order dated January 6, 2017, ordering his complete cooperation and truthfulness.

 

3.         Bryan Knoy violated General Order ADM002 Rules of Conduct, Procedures D, Procedure 4(3)(g) by his betrayal or other wrongful disclosure of confidential information.

 

4.         The violations of General Order ADM002 by Bryan Knoy support a finding of just cause to terminate his employment with the Department of Natural Resources, Division of Law Enforcement.

 

5.         The Department of Natural Resources, Division of Law Enforcement, termination of Bryan Knoy is affirmed.

 

 

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER

 

Statement of the Proceeding and Jurisdiction:

 

1.         On May 31, 2017, Bryan Knoy (“Knoy”) filed correspondence with the Natural Resources Commission (the “Commission”) seeking administrative review of his employment termination from the Department of Natural Resources (the “Department”) Law Enforcement Division (“Division”).

 

2.         The original correspondence filed by Knoy states, in part, “I, Bryan D. Knoy, a Conservation Officer with the Department of Natural Resources Law Enforcement Division request a public hearing through the Natural Resources Commission as afforded in IC 14-9-8-14.”

 

3.         The correspondence initiated a proceeding governed by IC 4-21.5-3, commonly referred to as the Administrative Orders and Procedures Act (“AOPA”) and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA.

 

4.         Knoy and the Department are hereinafter collectively referred to as the “Parties”.

 

5.         Administrative Law Judge (“ALJ”) Dawn Wilson was appointed under IC 4-10-2-2 to consider the correspondence as a petition requesting administrative review under AOPA and 312 IAC 3-1 and to conduct this proceeding.

 

6.         On behalf of the Department, on June 6, 2017, Elizabeth Gamboa filed her appearance as counsel; on January 9, 2018, Samantha DeWester filed her appearance and on June 27, 2018, Justin Paicely filed his appearance.

 

7.         On behalf of Knoy, on June 6, 2017, Andrew Duncan filed his appearance as counsel and on June 8, 2017, John Kautzman filed his appearance.

 

8.         On June 23, 2017, following the issuance of notice to the Parties, ALJ Wilson held a Prehearing Conference in Indianapolis, Indiana. During the Prehearing Conference, ALJ Wilson provided legal advisories to the Parties and allowed the Parties the opportunity to state their positions, including appropriate treatment of the complaint in light of Knoy’s corresponding complaint filed to challenge his employment termination before the State Employees Appeals Commission (“SEAC”).[1]

 

9.         On July 3, 2017, with ALJ approval, Knoy filed an Amended Petition for Administrative Review (“Petition”). The Petition states, in part, the following alleged violations and Knoy’s denial of each[2]:

 

…General Order: ADM002 Rules of Conduct…...Sgt. Knoy failed to follow a lawful order from Director East regarding being truthful and cooperative throughout the internal investigation…Sgt. Knoy violated this General Order by knowingly and repeatedly being untruthful throughout two formal interviews. Sgt. Knoy was purposely evasive and provided numerous false statements in response to key questions….Sgt. Knoy knowingly violated the terms of the Confidentiality  Warning he signed by discussing specific aspects of the investigation with his wife and father, one of which had participated in various aspects of the allegations….Sgt. Knoy hereby DENIES the entirety of the factual basis with respect to any and all substantiated findings of the DAB finding him in violation of General Order ADM002 Rules of Conduct as reviewed by Major Michael Portteus….

 

…Indiana Conservation Officer Code of Ethics…Sgt. Knoy violated the Code of Ethics by being untruthful and also by deliberately disobeying the regulations of the division. His conduct also reflects a lack of adherence to the Core Values and a disregard for the welfare of others….Sgt. Knoy hereby DENIES the entirety of the factual basis with respect to any and all substantiated findings of the DAB finding him in violation of Indiana Conservation Officer Code of Ethics as reviewed by Major Michael Portteus…..

 

…Indiana Conservation Officer Oath…Sgt. Knoy violated his Oath of an Indiana Conservation Officer by not adhering to the Core Values, Code of Ethics and Rules of Conduct. Further he violated his pledge to be honest and to maintain unimpeachable integrity…. Sgt. Knoy hereby DENIES the entirety of the factual basis with respect to any and all substantiated findings of the DAB finding him in violation of Oath of an Indiana Conservation Officer as reviewed by Major Michael Portteus….

 

10.     In the Petition, Knoy specifically identifies the following disputed issues:

·   The general investigative process and procedural irregularities by the Department’s Law Enforcement Division concerning the investigation into Knoy’s advisement concerning the Division Director.

·   Findings that Knoy was untruthful regarding the information he received regarding Director East.

·   Findings that Knoy was untruthful about the source of the information he received regarding Director East.

·   Findings that Knoy was untruthful during the investigative process.

·   Findings that Knoy improperly solicited information regarding Director East’s physical condition on December 31, 2016.

·   Findings that Knoy attempted to employ “countermeasures” during the polygraph examination he took during the investigation.

·   Findings that Knoy had inappropriate conversations with his wife or father regarding the investigation.

·   Findings that Knoy improperly utilized a personal source of information to obtain medical information regarding Director East.

·   Findings that Knoy self-initiated an investigation on December 31, 2016.

·   Findings that Knoy deliberately disobeyed the regulations of the law enforcement division.

 

11.     On September 12, 2017, Knoy, by counsel, filed a Motion for Preservation of Evidence. On October 2, 2017, the Department filed its objection. On October 26, 2017, Knoy withdrew his motion.

 

12.     Status conferences were held during which deadlines were ordered for discovery and for the Parties to file witness and exhibit lists. To accommodate needs expressed by the Parties, original deadlines were extended by ALJ order.

 

13.     On June 1, 2018, prior to the Final Status Conference scheduled to be heard on June 7, 2018, Knoy, by counsel filed “Petitioner Bryan Knoy’s Objection to Department of Natural Resrouces (sic) Exhibits”. On that same date, the Department, by counsel, filed a “Motion to Exclude Witnesses”. Following the Final Status Conference, both motions were denied within the “Report from Final Status Conference and Prehearing Orders”, dated June 7, 2018.

 

14.     An administrative hearing of the facts began on June 27, 2018, and, following recess, resumed on June 28, 2018, and July 11, 2018. On July 12, 2018, closing

 

[VOLUME 15, PAGE 37]

 

15.     statements were presented by the Parties. The hearing occurred at the offices of the Commission’s Division of Hearings in Indianapolis, Indiana, with both Parties and counsel of record present for all hearing dates.

 

16.     Following the administrative hearing, each Party was allowed the opportunity to file a post-hearing brief or proposed findings of fact and conclusions of law, on or before August 13, 2018, as determined to be appropriate by each party.

 

17.     On August 13, 2018, Knoy filed “Petitioner Bryan Knoy’s Proposed Findings of Fact and Conclusions of Law”.  On that same date, the Department filed its “Proposed Findings of Fact, Conclusions of Law and Order”.  Thereafter, on August 13, 2018, the hearing record was closed.

 

18.     With limited exception, “a conservation officer whose employment is terminated…as a result of a final determination by the division director (or a person designated by the division director) may seek administrative review from the commission under IC 4-21.5 and 312 IAC 3-1.” See 312 IAC 4-4-6(a).

 

19.     The Commission has de novo jurisdiction over the subject matter and over the persons of the Parties under IC 4-21.5 and 312 IAC 3-1. IC 4-21.5-3-14(d).

 

20.     The Commission appoints ALJs. IC 14-10-2-2(a).

 

21.     After an ALJ issues a nonfinal order and following the opportunity for objection to the nonfinal order, the ultimate authority shall issue a final order. For an administrative review proceeding requested on the termination of employment for a conservation officer, the Commission is the ultimate authority of the Department. IC 14-10-2-3.

 

22.     The findings of the Commission, acting as the ultimate authority of the Department are final, except that a Party may appeal to the appropriate court.      IC 14-9-8-14(c).

 

Findings of Fact:[3]

Investigation-Division Director Col. East 

23.     On December 31, 2016, Lt. Col. Terry Hyndman (“Hyndman”) was employed by the Department and performed administrative duties designed to implement and oversee the Law Enforcement Director’s vision of policy and practice for the Division. Hyndman oversaw the Division’s Disciplinary Action Board (“DAB”) as a facilitator on multiple occasions. See testimony of Hyndman.

 

24.     On December 31, 2016, Hyndman responded to a call regarding the Department’s Law Enforcement Division Director, Col. Danny East (“East”). Hyndman made a report to the Department’s statewide central dispatch office that is located in Bloomington, Indiana. See testimony of Hyndman and Exhibit 2.

 

25.     On December 31, 2016, at 12:18 p.m., the central dispatch office prepared and distributed the following text to approximately 80 Division staff: “200 10-76 to SR 37/ OLIVER WINERY REF 100 IS HAVING MEDICAL ISSUES_EMS ADVD HES PASSEDOUT IN VEHICLE- CLI”[4] (the “EAST TEXT”). See Exhibit 2[5] and Exhibit T.

 

26.     On December 31, 2016, at 12:39 p.m., the central dispatch office distributed a follow-up text stating: “PER 200 – EMS IS TRANSPORTING 100 TO BLOOMINGTON HOSPITAL – CLI”. See Exhibit 2 and Exhibit T.

 

27.     Hyndman followed the ambulance transporting East to Bloomington Hospital. While Hyndman was at the hospital he notified the Department’s Director, Cameron Clark (“Dir. Clark”), of the situation. East was released from Bloomington Hospital on December 31, 2016, at approximately 3:00 p.m. See testimony of Hyndman, Exhibit 2 and Exhibit T.

 

28.     A few days after the release of the EAST TEXT, Lt. John Canerella (“Canerella”) told Hyndman about a rumor that East was drunk and that it was being covered up. Hyndman reported the rumor to East. Later, East told Hyndman that he had met with Dir. Clark, who had also heard a rumor that East had been intoxicated. Hyndman told East that he would initiate an investigation into the intoxication allegations. See testimony of Hyndman.

 

29.     Generally, District internal investigations are initiated by District leadership and maintained within the District. For allegations involving Central Office staff, the Operations Commander, the Law Enforcement Director or the Executive Officer could initiate an investigation. Serious allegations that would involve a potential violation of law could be turned over to Office of Professional Standards (“OPS”) staff for investigation. At the time the investigation was initiated, for an internal investigation assigned to OPS, the OPS Manager, Capt. Zack Mathews (“Mathews”)[6], would normally serve a role. See testimony of Hyndman and Exhibit F.

 

30.     Hyndman and East determined that Mathews could be a witness, due to Mathews’ involvement prior to initiation of the investigation, so it would be inappropriate for Mathews to conduct an investigation of the allegations. Id.

 

31.     Mathews testified to a back-up protocol, whereby Canerella would conduct an OPS investigation upon Mathews’ unavailability. See testimony of Mathews and Exhibit F. The back-up protocol referred to by Mathews is not stated within any written protocol admitted as evidence in this proceeding and is determined to be an available option, but not the exclusive option available to the Division.

 

32.     Major Jason Lee (“Lee”) is the current Operations Major[7] for the Division. In this position, Lee supervises the North and South Region Captains and coordinates the DAB. Lee has been employed by the Division for nearly 20 years. Prior to Lee’s assignment to his current position in October of 2016, Hyndman was the Operations Major and Lee was the South Region Captain who was commonly a voting member of the DAB. In total, Lee participated as a voting DAB member approximately 27 times. See testimony of Lee.

 

33.     Hyndman discussed the need for investigation with Lee and recused himself from the East investigation because he had direct involvement with East on December 31, 2016. Based on his credibility and skill as an investigator, Lt. Kent Hutchins (“Hutchins”) was chosen by Hyndman to conduct the investigation of East, and to also investigate any allegation of cover-up by Hyndman. Lee agreed to the choice of investigator and to supervise the investigation. See testimony of Lee and Hyndman.

 

34.     Hutchins is the Division’s District 5 Commander and has approximately 38 years of Division service. In his role as a District Commander, he performs supervision duties and administrative functions. Hutchins has conducted several thousand investigations throughout his career, including complex felony and misdemeanor investigations. He has also frequently supervised others as they conducted investigations. Hutchins has conducted two or three internal investigations per year since 2005, including the investigation of the director and staff employed by a non-law enforcement division of the Department. Hutchins is not a part of OPS. Hutchins served on the DAB five or six times prior to 2017. See testimony of Hutchins.

 

35.     On January 5, 2017, Hutchins met with Hyndman and Lee and was instructed to refrain from discussing the matter with East or Hyndman.

 

36.     Lee instructed Hutchins to start with a review of the medical records, to go in whatever direction the information directed and to conduct a fair and expedient investigation. See testimony of Lee.

 

[VOLUME 15, PAGE 38]

 

37.     On January 5, 2017, Hutchins’ interviewed Dir. Clark. See testimony of Hutchins and Exhibit 2.

 

38.     During the investigation Hutchins contacted multiple hospitals, including Bloomington Hospital, and obtained blood alcohol testing protocols. See testimony of Lee and Exhibit 2.

 

39.     Hutchins received and reviewed records from Bloomington Hospital and emergency medical providers concerning East and spoke with treating medical personnel. Hutchins discovered no reference to any suspicion of alcohol or drug use by East’s medical personnel on December 31, 2016. See testimony of Hutchins.

 

40.     Lee requested that Hutchins send out a Division wide memorandum (“Hutchins’ Memo”) announcing his initial inquiry conclusions concerning East,[8] in an attempt to restore faith and confidence in the Division Director’s leadership. Id.

 

41.     Following his investigation, Hutchins concluded that the allegation against East was unfounded. Hutchins also found that no cover-up was perpetrated by Division personnel. Id.

 

Investigation-East Rumor

 

42.     An issue that was identified early on in the East investigation was that if the allegations against East were unfounded, it would be necessary to discover who inserted rumors of alcohol, in that allegations against the Director of a Division comprised of over 200 officers who need to have faith in their leader is a “large matter”. See testimony of Lee.

 

43.     Hutchins investigated the source of rumors and the circumstances surrounding the rumors related to East’s December 31, 2016 incident. See testimony of Hutchins.

 

44.     On January 5, 2017 and January 13, 2017, Hutchins interviewed Dir. Clark. During those conversations, it was revealed that Mathews called Clark at approximately 2:42 p.m. on December 31, 2016, and the call lasted 28 minutes. During the call, Mathews reported to Dir. Clark that medical reports from Bloomington Hospital would show East was intoxicated. Mathews also reported that EMTs smelled alcohol on East and Bloomington Hospital medical personnel reported that alcohol was a factor in the incident. On January 2, 2017, Dir. Clark spoke again with Mathews for approximately 22 minutes. During the call, Mathews reported that he had received a follow-up call that “guaranteed” medical records would reveal alcohol as a significant factor. See testimony of Hutchins and Exhibit 2.

 

45.     Hutchins’ review of phone records made available to him by Maj. Portteus[9]  enabled Hutchins to determine that Mathews called Knoy within minutes of his calls to Dir. Clark on December 31, 2016, and January 2, 2017. Id.

 

46.     Knoy became a member of the Division on September 14, 1998. From 1998 until 2013 he was employed as a field officer assigned to Morgan County. In 2013, he was promoted to a training Sergeant, primarily performing administrative functions. During his tenure, Knoy did not receive any discipline, other than the discipline at issue in this proceeding. Knoy’s supervisor was Mathews on December 31, 2016. Upon a change in Mathews’ position, in February of 2017, Lee became his supervisor. See testimony of Knoy and Exhibit E.

 

47.     Prior to the investigation, Hutchins worked with Knoy closely on a professional level because of the position held by Knoy as a part of the training staff. See testimony of Hutchins.

 

48.     On January 10, 2017, from approximately 8:30 a.m. until 9:08 a.m., Hutchins conducted a recorded interview of Knoy, at Hutchins’ office in Cloverdale, Indiana. Hutchins had his staff work elsewhere during that time to preserve Knoy’s dignity and privacy. Before the interview began, Hutchins reminded Knoy that Knoy was “duty bound” to be accountable and truthful in every aspect of the interview and Knoy signed a “Garrity Warning”.  The warning advised Knoy that he was required to answer the questions posed by Hutchins fully and truthfully and that his failure to do so could result in disciplinary action, including dismissal from the Division, but not criminal prosecution. See Exhibit 1 and Exhibit 2. Knoy also signed an Internal Investigation Confidentiality Warning (“Confidentiality Warning”). See Exhibit 2.

 

49.     During Hutchins’ interview of Knoy on January 10, 2017, Hutchins specifically informed Knoy that the investigation concerned rumors about East and stated to Knoy “I don’t necessarily have to ask the exact, precise, right question in order to extract the truth, and that’s per General Order ADM002, and all your responses are going to be subject to polygraph confirmation”. See Exhibit 13 and Exhibit J, p 2. During the interview:

 

a.       Knoy reported that on December 31, 2016, “I went home, and my wife had received unsolicited information outside of the - the DNR that pertained to Director East’s call.” See Exhibit 13 and Exhibit J, p 6.

b.      Knoy reported that he did not know the source of the information he received from his wife on December 31, 2016, concerning East. See Exhibit 13 and Exhibit J, p 6.

c.       Hutchins asked, “So you - you knew who gave her the information, and you determined the source was credible?” Knoy responded, “I had a - no, I did not know exactly who gave her the information. I had an inclination. I mean, she has friends outside that I don’t have, but - I had an inclination as to who it was, and I had no reason not to believe it.” Hutchins inquired, “But you weren’t sure who it was?” Knoy affirmed, “Right.” See Exhibit 13 and Exhibit J, p 8.

d.      To support his determination that the information was credible, upon further inquiry by Hutchins, Knoy stated again that he had an “inclination” about who it could be and stated; “There’s a couple of people down there that we - that we associate with. One of them’s named Lindsey…Lindsey Hill would be one of them.” Hutchins asked her position at the hospital and Knoy responded “I don’t know. I don’t know at all.” Hutchins struggled to elicit small pieces of information from Knoy when he asked if she was a nurse, to which Knoy responded; “Oh, she’s a nurse, she’s a nurse. I don’t know what position” at Bloomington Hospital. See Exhibit 13 and Exhibit J, p 9.

e.       Hutchins asked what motivation the source could have to transmit information to his wife, Carissa Knoy, and Knoy responded; “Yeah, I don’t know, I don’t know, unless it came up in casual conversation, but - you know.” When Hutchins pointed out that it didn’t appear to be casual but more of a report in three calls, with each call reporting more specific information, Knoy responded; “Yeah, and I wasn’t going to go to - I wasn’t going to go to Zach with just bull crap information. I mean --.” See Exhibit 13 and Exhibit J, p 10.

f.       Knoy clearly stated to Hutchins that he was not sure of the identity of the source and that he did not want to know the identity of the source. See Exhibit 13 and Exhibit J, p 14.

g.      Later in the interview, when Hutchins pointed out to Knoy how “bizarre” it would be for a person who was unknown to East to initiate a telephone conversation about East’s medical condition with Knoy’s wife, Knoy told Hutchins that he was certain that Hill, a friend of 15 years, was the source; but that he didn’t know “100%”. Id. 

h.      Knoy told Hutchins that Hill, after her arrival at the Knoy home on New Year’s Eve, discussed her opinion of the cause of East’s medical condition and then Knoy knew she was the source. At that time, Knoy told Hill that he had reported the information to his superior. See Exhibit 13 and Exhibit J, pp 15-16. Knoy told Hutchins that when Hill and Hill’s husband came to the Knoy home on New Year’s Eve, Hill “tried to do some conversation, but I said no.” See Exhibit 13 and Exhibit J, p 15.

i.        Later in the interview, Knoy acknowledged that he discussed the EAST TEXT with his wife. Upon inquiry by Hutchins concerning if Knoy thought his wife called [Hill], a Bloomington Hospital employee, Knoy told Hutchins, “I don’t know. I doubt that. I don’t see that.” See Exhibit 13 and Exhibit J, p. 21

j.        Later, Hutchins asked why alcohol was such a “hot topic” for Hill. Knoy reported “I don’t know, unless it was just the context of the text.” Hutchins asked, “So she - she had to have knowledge of the text?” Knoy responded, “Oh, sure she did, through my wife.” See Exhibit 13 and Exhibit J, p 24. Knoy acknowledged that Hill probably wouldn’t know East from anybody else and acknowledged the possibility that his wife made an inquiry to Hill after Knoy relayed the content of the EAST TEXT to his wife. See Exhibit 13 and Exhibit J, p 25.

k.      At the conclusion of the interview on January 10, 2017, Hutchins reminded Knoy, “and we’re clear that none of this is going to be discussed with your wife?” See Exhibit 13 and Exhibit J, p 26.

 

[VOLUME 15, PAGE 39]

 

50.     As a result of the responses provided by Knoy during the interview, as an investigator, Hutchins determined that Knoy came to the interview prepared to tell his story, not to listen to Hutchins’ questions and respond to each question truthfully. See testimony of Hutchins.

 

51.     A conclusion of the ALJ is that Knoy remained hesitant to acknowledge his part in the solicitation by suggesting that Hill could have, called the hospital, on her own initiative, on her day off, to retrieve information about a person’s medical condition who was unknown to her, without any prompting by Knoy through his wife. Knoy’s alternative to solicitation of the information is based on discrepant events that were inconsistent with his later statements.

 

52.     The ALJ also factually concludes that Knoy was evasive in his responses and that he did not willingly and transparently provide information to Hutchins during the interview on January 10, 2017.

 

53.     During Knoy’s testimony, Knoy professed that the information he received became increasingly more detailed. Because of the detail and because he knew Hill to be a nurse at Bloomington Hospital, he was convinced of the accuracy of the information. When Knoy called Mathews and reported the information, he offered to share the person he thought was the source but did not, at Mathews’ request. Knoy followed-up by text to Mathews and at least one additional phone call. See testimony of Knoy.

 

54.     Knoy asserted during his testimony that he was not certain that the source of the information was Hill because “I did not hear it with my own ears I did not see it with my own eyes. I cannot be 100% certain of anything unless that occurs.” See testimony of Knoy. Knoy “assumed” his wife spoke with Hill on a reoccurring basis that day because Hill was coming to the Knoy home that evening. Knoy acknowledged that he had a reasonable belief that the information came from Hill because Hill had a nursing position with Bloomington Hospital and his wife told him that she would contact Hill to find out about East’s condition. Id.

 

55.     Mathews has been employed by the Division for nearly 20 years. He was employed as a part of the OPS office for 14 years, until his position changed in February of 2017. Mathews has conducted or supervised others in approximately 175 internal affairs investigations. See testimony of Mathews.

 

56.     On January 10, 2017, Hutchins interviewed Mathews.[10] Mathews signed a Garrity Warning and a Confidentiality Warning[11] immediately prior to his interview. See testimony of Hutchins. Mathews provided testimony during the administrative hearing regarding the facts he reported during his interview. In many instances, Mathews’ testimony concerning the content of the interview was confirmed by Hutchins’ testimony and Exhibit 2. It is determined that, during the interview, Mathews reported to Hutchins that Knoy contacted him on the afternoon of December 31, 2016, and other multiple occasions concerning East’s medical condition and “guaranteed” that East’s medical records would reveal East’s intoxication. Mathews trusted the information he received from Knoy and contacted Division and former Department staff to discuss the matter. Mathews also called Dir. Clark on December 31, 2016, and January 2, 2017. Mathews assumed that he would be assigned to investigate the allegations and did not investigate or confirm the information before he reported the information to Dir. Clark. See testimony of Hutchins and Mathews.

 

57.     Originally, Mathews told Knoy that the information was not sufficient to elevate the issue. Thereafter, Knoy communicated additional information to Mathews. See testimony of Mathews.

 

58.     On December 31, 2016, at 4:45 p.m., Knoy sent a text to Mathews stating, “He’s lying. The only reason no bac was done is because he was honest about drinking. They could smell it on him so it was obvious what was going on.”[12] See testimony of Lee and Exhibit 2.

 

59.     On the evening of January 10, 2017, Hutchins conducted a telephone interview of Hill.[13] During his interview, Hutchins found Hill to be evasive. During his testimony Hutchins reported that, during Hill’s interview, she told him she was not working at Bloomington Hospital on December 31, 2016, when Carissa Knoy asked her to check on East’s condition. In addition, Hutchins testified that Hill reported to him that she spoke to Carissa Knoy once about East and told Carissa Knoy that East’s condition was stable. In addition, Hill denied that she relayed any information to Carissa Knoy concerning alcohol use by East and denied speaking to Knoy about East on New Year’s Eve. See testimony of Hutchins and Exhibit 2.

 

60.     The ALJ determined that Hill’s denial that she relayed information to Carissa Knoy concerning alcohol use by East is inconsistent with other credible testimony presented during the administrative hearing.

 

61.     The ALJ determined that Hill’s denial that she spoke to Knoy about East on New Year’s Eve is inconsistent with other credible testimony presented at the administrative hearing.

 

62.     On January 11, 2017, Hutchins conducted a second interview of Knoy. The interview lasted from approximately 12:30 p.m. until 12:52 p.m. The overarching theme of the questioning by Hutchins was expressed by Hutchins’ statement; “We don’t need to dance around this.” See Exhibit 14 and Exhibit L, p 6.

 

a.       Knoy acknowledged that his wife called Hill prior to him coming home from the store on December 31, 2016, and received “information back” from Hill on multiple occasions, with each call reporting more specific information. See Exhibit 14 and Exhibit L, p 6.  Later in the interview, Knoy acknowledged that he specifically asked his wife to verify the information on December 31, 2016, or a day or two later. See Exhibit 14 and Exhibit L, p 15.

b.      Hutchins asked if Knoy’s wife got three calls from Hill. Knoy’s response was, “I’m assuming.” See Exhibit 14 and Exhibit L, p 4. Hutchins asked “so did she receive three calls - or not?” Knoy responded “That’s what I’m guessing, there’s - I said there’s three waves of information coming in.” See Exhibit 14 and Exhibit L, p 9.  

c.       Knoy stated, “I have no reason to believe that there’s any information that came from a - another party other than [Hill].” See Exhibit 14 and Exhibit L, p 9.  When Hutchins asked, “At the time you told me yesterday, you knew for sure that it was [Hill]?” Knoy responded, “…I had good reason to believe but I also had good reason to not want to know that, not want to know that information.” Id. 

d.      Regarding the conversation between Knoy and Hill on New Year’s Eve, Knoy told Hutchins that his wife told Hill that there was “some concern that it may have been medical” See Exhibit 14 and Exhibit L, p 14. In Carissa Knoy’s presence, Knoy responded to his wife’s comment by telling Hill that he had “passed the information on”. See Exhibit 14 and Exhibit L, p 14.

 

63.     The ALJ’s determination is that Knoy’s interview responses reveal his hesitancy to provide full and complete information during the interview. Hutchins asked Knoy a number of clear, concise and focused questions. Knoy’s responses were less than forthcoming and, on multiple occasions, were not fully responsive to the questions posed.

 

[VOLUME 15, PAGE 40]

 

64.     Cpl. John Deem (“Deem”) has been employed by the Division as a Conservation Officer for 21 years. Deem currently operates out of the District 2 Law Enforcement office located in Steuben County. See testimony of Deem.

 

65.     Deem was interviewed by Hutchins on January 12, 2017. Deem credibly testified that he reported to Hutchins during his interview that he received the EAST TEXT from central dispatch on December 31, 2016, and called Knoy, an off-duty training officer. Deem was aware that Knoy was not an investigator but he knew Knoy’s residence was located near the incident location. Knoy told Deem that he would check to see if he could be of help. Deem texted Knoy and later in the afternoon Knoy told Deem by telephone that he received information Knoy believed to be “100%” accurate, that the cause of East’s issues were related to alcohol, not blood pressure medicine. Deem and Knoy decided that Knoy would report the information to Knoy’s supervisor, Mathews. Thereafter, Knoy told Deem that he did report the information to Mathews. See testimony of Deem.

 

66.     Hutchins recorded in his summary of the investigation that Deem, during his interview, reported that Knoy decided during their initial phone conversation that the word choice of “passed out” meant “intoxicated” in the EAST TEXT. Deem reported to Hutchins during his interview that he also discussed the phrasing of the EAST TEXT with other Division employees, including Mathews. See Exhibit 2.

 

67.     Following Hutchins’ second Knoy interview, Hutchins determined Knoy was not forthcoming during his direct interviews and he requested a polygraph examination of Knoy. From another room, Hutchins contemporaneously observed as Sgt. John Campbell (“Campbell”) conducted Knoy’s pre-polygraph interview on January 20, 2017. See testimony of Hutchins.

 

68.     Campbell is an Indiana State Police (“ISP”) polygraph examiner who has been employed by ISP since 1989. Campbell has been a polygraph examiner since 2015. Campbell met with Knoy to conduct a polygraph examination[14] after reading Hutchins’ investigation report. Prior to any examination attempt, Campbell had Knoy sign a Garrity Warning and explained the voluntariness of the examination. Campbell explained that consequences for nonparticipation would be between Knoy and his agency. Campbell conducted a pre-polygraph interview with Knoy to determine his suitability for testing. Campbell found Knoy to be suitable for testing but was unable to finalize Knoy’s polygraph examination. See testimony of Campbell.

 

69.     During the pre-polygraph interview, Knoy acknowledged that he was aware of the source of the information concerning East and stated that he “tried to thin slice this for Kent is I viewed it as 100%, I know it’s from [Hill], is me talking, you know, picking up the phone, I know [Hill] is on the other end and that information came from her, or my wife said, hey, [Hill] said this.” See Exhibit 15 and Exhibit M, p 54. Campbell asked about the information Knoy received from Carissa Knoy, upon Knoy’s return home from the grocery, and Knoy stated “She gave me the information. Did I assume that it came from [Hill]? Absolutely.” See Exhibit 15 and Exhibit M, p 54. In addition, Knoy reported to Campbell, “[Knoy’s wife] only knowns one person that’s - that I know of that’s in the medical field that works at Bloomington. [Hill]”. See Exhibit 15 and Exhibit M, p 55. After receiving one or more “waves” of information, Knoy acknowledged, whether his wife told him the source or not, he “believed it was coming from [Hill].” See Exhibit 15 and Exhibit M, p 57.

 

70.     During the pre-polygraph interview, Knoy stated “My wife was the one that told me the calls were unsolicited.” Campbell responded with the question, “Okay, okay, but she started it by reaching out to [Hill]?” Knoy responded, “Yeah, I’m assuming she reached out to [Hill] and said, hey, this is what’s going on, put the feelers out….” See Exhibit 15 and Exhibit M, p 79.

 

71.     During the pre-polygraph interview, Knoy acknowledged that he had a short conversation with Hill about East’s condition on New Year’s Eve, December 31, 2016. See Exhibit 15 and Exhibit M, pp 43, 65, 68, 70-71 and 93. Knoy acknowledged that the short conversation was a back and forth exchange between Knoy and Hill. See Exhibit 15 and Exhibit M, p 78. Knoy stated “But the answer - I mean, the answer to the question is still the same, did I have a conversation with [Hill] at my house about Danny East’s medical - whatever, problems that were going on that day, yes.” See Exhibit 15 and Exhibit M, p 94.

 

72.     During the pre-polygraph interview, Knoy stated that he shared information with his wife, after he was advised to speak to her by his father, and he was mindful that he violated the confidentiality warning by talking to her. See Exhibit 15 and Exhibit M, pp 75 and 91-92.

 

73.     Hutchins determined that multiple statements by Knoy during the pre-polygraph interview were inconsistent with statements made by Knoy during the two interviews he had conducted with Knoy, specifically regarding the source of the information and solicitation of the information. In addition, Hutchins was concerned about Knoy’s failure to maintain confidentiality by discussing the investigation with his wife and his father. See testimony of Hutchins.

 

74.     During his testimony, Knoy stated that he knew “more” at the time of the pre-polygraph interview on January 20, 2017, than he did in his interviews with Hutchins on January 10, 2017, and January 11, 2017. Knoy testified that, on the morning of his pre-polygraph interview, his wife “told” him that he asked her to solicit information from Hill two days after the EAST TEXT. Knoy asserted during his testimony that during his interviews on January 10, 2017 and January 11, 2017, he relayed only the information concerning solicitation by him, through his wife on December 31, 2016. In his testimony Knoy acknowledged that, two days later, he asked his wife to ask Hill to confirm the accuracy of the information Hill had provided. See testimony of Knoy.

 

75.     A reasonable conclusion is that Knoy elicited confirmation of information, directly or through his wife, from Hill on December 31, 2016, before Knoy texted Mathews on that date. Contrary to statements by Knoy during his interviews with Hutchins, Knoy was aware of the source of the solicited information on December 31, 2016, regardless of whether additional confirmation was requested two days later.

 

Investigation-East Rumor Conclusions

 

76.     At the conclusion of the East rumor investigation, Hutchins prepared a “Statement of Circumstances and Summary of Investigation” (“Investigation Summary”) and submitted the document to Lee. Hutchins concluded in his Investigation Summary that Knoy lied to him during the investigatory process.  See testimony of Hutchins and Exhibit 2.

 

77.     Hutchins also prepared a single document that included a “Statement of Circumstances” and a “Statement of Charges”. The Statement of Charges included Hutchins’ determination that Knoy violated the Rules of Conduct, the Code of Ethics and the Oath for Conservation Officers. The document was submitted by Hutchins to Lee. The document did not include a specific discipline recommendation. See Exhibit T and Exhibit 5.[15]

 

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78.     The Statement of Charges found that Knoy violated General Order: ADM002,  Rules of Conduct, in the following ways:

Sgt. Knoy violated this general order by repeating conversations not known to be true for the purpose of discrediting a fellow employee. Further, he failed to follow a lawful order from Director East regarding being truthful and cooperative throughout the investigation.

 

Additionally, he violated this General Order by knowingly and repeatedly being untruthful throughout two formal interviews. Sgt. Knoy was purposefully evasive and provided numerous false statements in response to key questions.

 

Further, Sgt. Knoy knowingly violated the terms of the Confidentiality Warning he signed by discussing specific aspects of the investigation with his wife and father, one of which had participated in various aspects of the allegations. Id.

 

79.     The Statement of Charges found that, “Sgt. Knoy violated the Code of Ethics by being untruthful and also by deliberately disobeying the regulations of the division. His conduct also reflects a lack of adherence to the Core Values and a disregard for the welfare of others.” Id.

 

80.     The Statement of Charges found “Sgt. Knoy violated his Oath of an Indiana Conservation Officer by not adhering to Core Values, Code of Ethics and Rules of Conduct. Further, he violated his pledge to be honest and to maintain unimpeachable integrity.” Id.

 

81.     On January 30, 2017, after Hutchins’ report was submitted, Lee, as Operations Commander, Hyndman, as Executive Officer and East, as Division Director, signed the “Chain of Command Review of the Recommendation for Disciplinary Action” recommending the formation of the DAB for the matter. See Exhibit 5.

 

82.     Also on January 30, 2017, Lee met with Knoy in the parking lot of the Morgan County Sheriff’s Department and presented a copy of the Statement of Charges to Knoy. See testimony of Lee.

 

83.     Knoy’s confidentiality restrictions that began with his first interview on January 10, 2017, were lifted on or about January 30, 2017.  See testimony of Knoy and Exhibits B and I.

 

Knoy’s Disciplinary Action Board (DAB)-When and Who

 

84.     A DAB is not generally convened unless disciplinary action involving a pecuniary loss is anticipated or recommended. At the time when a DAB is convened, voting members do not possess a specific disciplinary recommendation; although the facilitator may be aware of a specific recommendation. See testimony of Hyndman.

 

85.     A DAB is generally comprised of a nonvoting chair who acts as a facilitator and four voting members, the North Region Captain, the South Region Captain, a North Region Lieutenant and a South Region Lieutenant. Id.

 

86.     When Lee provided Knoy with the Statement of Charges on January 30, 2017, he informed Knoy of the DAB that was originally scheduled to convene on February 22, 2018. When they met, Knoy reported to Lee that he had a problem with East making a final decision on any discipline and also requested that the North Region Captain, Gary Whitaker (“Whitaker”), be removed from consideration as a DAB member due to a conversation Whitaker had with Knoy’s co-worker, Cora Showalter. See testimony of Lee.

 

87.     Lt. Cora Showalter (“Showalter”) is a Conservation Officer who worked with Knoy when he and Showalter were both training Sergeants supervised by Mathews. At that time, the training section was comprised of Mathews, Knoy and Showalter. See testimony of Showalter.

 

88.     On January 12, 2017, Whitaker told Showalter that East was “not happy” because he had to answer Dir. Clark’s questions and that, “officers shouldn’t be spreading rumors” about East. Id. Whitaker also told her not to worry about it but “your work life is probably going to change.” Id. Also on January 12, 2017, Hutchins informed Lee of the conversation Whitaker had with Showalter. See Exhibit Y. Lee met with Showalter before the DAB convened and subsequently removed Whitaker from the DAB. Whitaker was replaced with Lt. Andy Wuestefeld (“Wuestefeld”). See testimony of Showalter and Lee.

 

89.     While Knoy’s DAB was originally scheduled for February 22, 2017, it was rescheduled to March 9, 2017, and again rescheduled. The DAB ultimately convened on May 9, 2017, at 10:00 a.m., at the Atterbury Fish and Wildlife office, and adjourned at 9:30 p.m. See testimony of Lee and Exhibit 11.

 

90.     The DAB convened to consider the charges against Knoy was Lee’s first experience as a DAB facilitator and not a voting member. As the DAB coordinator, Lee sent emails on January 30, 2017, February 10, 2017, April 24, 2017 and May 8, 2017, to the DAB members with the following attachments relevant to the DAB, the “Knoy Statement of Circumstances 1-2017”, the “Knoy Polygraph”, “Hutchins Supplemental Investigation”, “Written Submission to Board-Knoy” and “Knoy Written Response 2”. Lee sent some, but not all, of the emails to Hutchins and Hyndman. See testimony of Lee and Exhibit 8.

 

91.     Mathews noted that Lee was the supervisor of the investigation conducted by Hutchins and that Lee was also Knoy’s supervisor at the time when Lee served as the facilitator of the DAB considering Knoy’s discipline. Mathews supports a separation of decision makers for internal investigations so that the same person does not fill multiple roles. Mathews credibly testified that a separation of roles had been his custom and practice as an OPS investigator for internal affairs investigations involving major complaints. Mathew’s position is that Lee’s performance in all three roles created the potential for a conflict. See testimony of Mathews. Mathews acknowledged that Internal Affairs SOP INV003 does not require a separation of roles. See testimony of Mathews, Exhibit 7 and Exhibit F.

 

92.     Ultimately, the voting members assigned by Lee who participated in the DAB that was convened to consider discipline for the charges included Capt. Timothy Beaver, Lt. Shawn Brown, Lt. Duane Englert and Lt. Andy Wuestefeld. See testimony of Beaver.

 

93.     Capt. Timothy Beaver (“Beaver”) has been employed with the Division since 2003. In 2016, Beaver was promoted from a District Lieutenant to his current position, one of two regional commanders. As the Division’s South Region Commander, Beaver oversees the daily operation of the Division’s southern five law enforcement districts, comprised of approximately 80 to 90 law enforcement officers, and directly supervises five District Lieutenants. In his current position, much of his time is dedicated to acting as a liaison between field officers and headquarters. Beaver participated in seven DABs as a voting member before being assigned as a member of Knoy’s DAB. In addition, Beaver had one prior experience with a DAB as a supervisor in a situation when he asked for a DAB to be convened. Id.

 

94.     Beaver is Hutchins’ immediate supervisor. Beaver was not supervisor over Hutchins for the investigation and did not discuss the details of the investigation prior to the time when the DAB convened. Beaver saw the Hutchins’ Memo prior to his appointment to Knoy’s DAB. However, Beaver had no preconceived concept of an appropriate resolution before he arrived for the DAB meeting. Beaver has known Knoy since 2002 and at the time when the DAB convened, Beaver knew Knoy to be a Sergeant who scheduled relevant training designed to fulfill ongoing training requirements for Division personnel and who ran the Core Value training for new recruits. Id.

 

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95.     Lt. Shawn Brown (“Brown”) has been employed by the Division for approximately 23 years. Prior to Knoy’s DAB, Brown had no DAB experience. See testimony of Brown.

 

96.     When Lee contacted Brown to discuss scheduling for Knoy’s DAB meeting, Lee told Brown that the case was “pretty obvious” that Knoy had “lied” and that the DAB “shouldn’t take that long”.  Id. Lee’s statements bothered Brown because he had not yet received any documentation to review and wanted to maintain his neutrality in order to make an honest evaluation. Brown decided to participate in the DAB and to be an “advocate for truth”. Id. When the DAB met, Brown expressed to Lee that he was bothered by Lee’s comments and participated as a voting member of Knoy’s DAB. Id.

 

97.     Wuestefeld has been employed by the Division since 1998 and currently oversees the Division’s District 4 operations, covering eleven Indiana counties. He supervises ten field officers, two corporals and an office manager. Wuestefeld has participated as a voting member of ten to twelve DABs during his tenure with the Division. He has also been involved with DABs as a charging officer for actions brought by him. No one spoke to Wuestefeld regarding a preferred outcome before the DAB met. See testimony of Wuestefeld.

 

98.     Lt. Duane Englert (“Englert”) has been employed by the Division since 1985. Before being assigned to Knoy’s DAB, he had one or two experiences with DABs, one as a charging lieutenant. See testimony of Englert.

 

Knoy’s DAB-Evaluation of the Charges

 

99.     A typical DAB meeting includes the following steps:

a.       The investigator presents the substance of his or her investigation and offers no recommended discipline.

b.      The person who has been accused is allowed the opportunity to present information to the DAB.

c.       The DAB reviews the information presented and engages in discussion.

d.      The DAB members separate and each member prepares the member’s independent written recommendation.

e.       Each member presents his or her independent written recommendation to the facilitator and an individual discussion of the recommendation occurs so that the facilitator clearly understands the member’s recommendation.

f.       The DAB members reassemble and final DAB recommendations are written. A DAB recommendation is not necessarily unanimous.

See testimony of Beaver.

100. Knoy’s DAB was similar procedurally to other DABs in which Wuestefeld had participated. See testimony of Wuestefeld.

 

101.  During Knoy’s DAB meeting, Lee allowed Hutchins to present his investigation report and the voting members asked Hutchins questions. Hutchins submitted audios of interviews conducted by Hutchins during his investigation and East’s medical records. Lee observed that the DAB members participated in a “tremendous discussion that day”, listened to all of the recorded interviews of Knoy and watched the polygraph video. See testimony of Lee. The audios were stopped periodically and portions were reviewed multiple times in order for the members to hear various articulations. Lee read all of Knoy’s written submission to the DAB members that was admitted as Exhibit 6, and portions of the document admitted as Exhibit 7. On advice of counsel, Knoy was not present but Lee informed the DAB members that Knoy’s failure to appear should not be held against him. The DAB deliberated extensively. See testimony of Beaver, Wuestefeld, Englert and Lee.

 

102.  During Knoy’s DAB meeting, Lee provided general direction concerning the flow of the meeting and allowed the free flow of discussion among the members. Lee did not attempt to sway or otherwise influence the DAB members as they determined their conclusions and recommendation. See testimony of Lee.

 

103.  Englert perceived no undue influence by Lee or any DAB member on the other members designed to sway the direction of the DAB. Wuestefeld felt no strong controlling personality within the DAB and no effort toward retaliation against Knoy. Beaver felt no pressure to vote in any certain way. See testimony of Beaver, Englert and Wuesterfeld.

 

104.  Knoy’s DAB evaluated the charge that Knoy repeated conversations not known to be true for the purpose of discrediting a fellow employee. Primarily the DAB focused on Knoy’s report to Mathews in evaluating this charge.

a.      The DAB did not find that it was inappropriate for Knoy to report a complaint, including a major complaint, against a superior to his immediate supervisor. As potential employee misconduct, Knoy making a “'report up', such as the calls he made to Mathews, his immediate supervisor, would not be employee misconduct.”  See testimony of Englert, Wuestefeld and Exhibit F. 

b.     Brown specifically determined that it would be misconduct if Knoy had not reported an incident that Knoy believed to be a violation of the Code of Conduct. See testimony of Brown.

c.      By inquiring about East’s medical condition, Englert believed that Knoy inappropriately initiated an investigation, not merely reported the potential of a major complaint to a superior. Englert found it to be very unusual for an off duty officer to investigate a case when the officer is not designated as an investigating officer. Englert determined that normal procedures involving the collection of medical information would include the use of a subpoena because of HIPAA regulations.[16] See testimony of Englert.

d.     In Englert’s career, spanning 33 years, he would never have initiated an investigation based on the information Hill provided to Knoy. Englert concluded that Knoy was “reckless” in believing the information about East was true. See testimony of Englert.

 

105.  Englert determined that Knoy perpetrated violations by sharing information contrary to a written directive, the Confidentiality Warning. Wuestefeld was not concerned about communication Knoy had with his wife after he signed the Confidentially Warning. See testimony of Englert and Wuestefeld. See also Exhibit F.

 

106.  The majority of the DAB’s discussion regarding the charges against Knoy concerned violations resulting from Knoy’s untruthfulness and lack of cooperation during the investigation.

 

a.      All DAB members agreed that Knoy lied during the investigation. See testimony of Beaver and Englert.

b.     Beaver was disappointed by Knoy’s responses within the interviews and determined that if Knoy had reported accurately, “it wouldn’t have been as big a deal.” See testimony of Beaver.

c.      Englert specifically found Knoy to be “untruthful about some key questions that were asked that were very simple to answer and that continued throughout two interviews.” See testimony of Englert. Englert determined that Knoy’s untruthfulness violated the Conservation Officer Oath as well as the direct order given to him to be honest during the investigation. Englert also determined that Knoy perpetrated other non-specified violations, by his overall untruthfulness throughout the investigation. Id.

d.     Wuestefeld perceived a lack of cooperation and integrity by Knoy because Knoy was not being up front with his answers during the interviews. See testimony of Wuestefeld.

e.      The most common observations of the DAB members focused on three inconsistencies within Knoy’s recorded statements.

                                                              i.      First, Knoy said the information about East was “unsolicited.” Beaver, Englert and Wuestefeld specifically determined the statements by Knoy were false because Knoy, in his pre-polygraph interview, stated that he asked his wife to call Hill contradicting his prior statements that the information was unsolicited.

                                                             ii.     Second, Knoy originally said the source could have been one of two people, but was probably Hill. Englert specifically determined that during the pre-polygraph interview Knoy revealed that he was aware of the source of the information. Wuestefeld specifically observed that Knoy professed that he was initially uncertain about who provided the information. Then, in a subsequent interview, he acknowledged that he was certain.

                                                             iii.   Third, Knoy reported that he had no conversation with Hill at his home on New Year’s Eve about East, and that he attempted to “squash” or stifle the conversation. However, Knoy’s conversation with Hill on New Year’s Eve was evidenced by a text Knoy sent to Mathews stating East was lying and that East was drunk in reliance on his conversation with Hill, a person well known to Knoy. In addition, Wuestefeld observed in Knoy’s pre-polygraph interview that Knoy acknowledged he engaged in conversation about East with Hill on New Year’s Eve at his home.

          See testimony of Beaver, Englert, Brown and Wuestefeld.

 

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107.  For each charge identified in the Statement of Charges, Lee prepared DAB findings to document whether each charge, as originally stated in the Statement of Charges, was “substantiated” or “unsubstantiated”[17] in accordance with his notes and recollection of the DAB’s discussion and final conclusions. See testimony of Lee and Exhibit 12.

 

108.  Unsubstantiated does not mean exonerated. See testimony of Beaver.

 

109.  Knoy’s DAB substantiated all charges, except one. The DAB unsubstantiated the following charge related to violation of General Order ADM002 Rules of Conduct: “Sgt. Knoy violated this general order by repeating conversations not known to be true for the purpose of discrediting a fellow employee.-Unsubstantiated”.  See Exhibit 12.

 

Knoy’s DAB-Recommendations

 

110.  Once the charges were evaluated the DAB members discussed the appropriate sanction for the substantiated violations. After a group discussion, the DAB members separated so that each member could write out his own individual recommendation. Beaver specifically recalled writing his position on lined paper before he met with Lee to confirm that Lee had no questions concerning Beaver’s position and recommendation. See testimony of Wuestefeld, Englert and Beaver.

 

111.  Lee did not inform the DAB that employment termination was the only available option. The DAB members considered options identified in a standard operating procedure[18], including no discipline, consultation, reprimand, suspension from one to ninety days, demotion to field officer and termination. Id.

 

112.  Beaver did not want to see Knoy terminated but the DAB’s intention was to support the oath and applicable core values. The members supported recommending discipline designed to set a firm standard, not to create a “slippery slope” by allowing some lies.  See testimony of Beaver.

 

113.  Three of the DAB members originally recommended employment termination. Brown’s initial written recommendation[19] did not recommend termination and stated his preference to give Knoy “grace” through an extended suspension. See testimony of Brown and Lee.

 

114.  After meeting individually with Lee, the members met again as a group and Lee read each member’s recommendation aloud. Lee then allowed the members the opportunity to justify their recommendations and to participate in further dialogue. See testimony of Lee, Wuestefeld, Englert and Beaver.

 

115.  The DAB members were aware that the charges were serious and would result some sort of pecuniary discipline. The members acknowledged that law enforcement staff have very little direct supervision and Knoy’s future employment in the Division would be problematic due to his lies in the investigation. See testimony of Beaver.

 

116.  The DAB determined that through demotion, Knoy would be making arrests and could be an impeachable witness. See testimony of Beaver.

 

117.  The members discussed that “as a law enforcement officer your word is everything.” See testimony of Lee.

 

118.  The group discussed how to maintain an employee who did not have honesty and integrity. The value of an officer without integrity was discussed. See testimony of Wuestefeld.

 

119.  During deliberations, the DAB discussed that officers are made aware from the very start that “credibility as an officer is paramount.” See testimony of Beaver.

 

120.  Two United States Supreme Court cases, “Brady”[20] and “Giglio”[21] were discussed. The DAB members had a concern and the desire for officers to be unimpeachable witnesses but acknowledged that Brady and Giglio, criminal cases, would not require an agency to terminate an employee for credibility concerns. However, the DAB members determined that the Division would not employ someone who could not be trusted as a witness, an employee who compromised his integrity. For that reason, Beaver, Englert and Wuestefeld asserted their belief that they had no choice but to terminate Knoy.[22] See testimony of Beaver.

 

121.  Englert recalled that one basis of the DAB recommendation to terminate Knoy was case law, including the “Brady” and “Giglio” cases, not because the cases would require termination but because the need to report the misconduct in the future created a quandary about what to do with him. Regardless of the position in which Knoy would be placed, Knoy’s untruthfulness was an issue for Englert. Englert also had a concern that Knoy, in his position as a trainer, could be informing new recruits on issues related to the Code of Ethics. See testimony of Englert.

 

122.  Most, including Wuestefeld, voted for termination after a discussion about what could be done upon retention of an employee with whom there is a lack of trust. At the time of the DAB meeting, Knoy was a training Sergeant and was not an employee who was traditionally involved with testifying in court. See testimony of Wuestefeld.

 

123.  The DAB consensus was that employment termination by the Department was “discretionary”. Englert’s recommendation was based on his belief that he had “no alternative” to give leniency by retaining Knoy because “truthfulness is truthfulness. It doesn’t matter whether we need to tell the prosecutor or not.” Englert was concerned about what to do with an employee who lied in an investigation if the employee were to be retained. If the employment was not terminated, it would “basically sideline them with no law enforcement duties”. See testimony of Englert.

 

124.  Wuestefeld is aware that a DAB is not required to consider progressive discipline for an employee and is aware of DAB recommendations that have been lessened by upper management. It was reported to the DAB that Knoy had no prior discipline and Wuestefeld accepted that to be a fact in his consideration of appropriate discipline. See testimony of Wuestefeld.

 

125.  Beaver acknowledged that progressive discipline factors may include the seriousness of the incident, the circumstances surrounding the incident, prior negative work performance, the employee’s longevity, the possibility of future similar problems, involvement of the public or other members of the Department and the employee’s disciplinary record.[23] Beaver acknowledged that the factors were not discussed by the DAB and Beaver stated his understanding that the Department is not required to follow progressive discipline principles. See testimony of Beaver.

 

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126.  The ALJ notes that the Division Director is required to consider progressive discipline and to impose appropriate discipline based on the seriousness of the misconduct. See 312 IAC 4-4-5. A DAB should evaluate the seriousness of the misconduct to evaluate if progressive discipline would be appropriate. In this instance, the weight of the evidence supports a factual conclusion that the DAB members considered Knoy’s violations with an awareness that Knoy had no prior discipline when determining its recommendation to terminate Knoy’s employment.

 

127.  When the DAB was reconvened after meeting individually with Lee, Lee acted as a resource regarding prior DAB determinations. Id.

 

128.  Lee was asked whether there was an option other than employment termination in light of Giglio and Brady case law. Upon inquiry by Brown, Lee told the DAB members that the Division always fired everybody who lied. When Brown had been with the Department for approximately five years, he was trained regarding the consequences of lying for an officer and the Department based on the requirements of Giglio and Brady. At that time, Brown was told: “You lie, you die”. For that reason, he was inclined to believe Lee’s representation regarding consistent discipline. See testimony of Brown.

 

129.  The members prepared a second written recommendation and all four DAB members recommended the termination of Knoy’s employment. See testimony of Lee, Brown, Beaver and Englert.

 

130.  Brown, after a consideration of discipline ranging from no discipline to termination, recommended Knoy’s termination based solely on his understanding of the Division’s consistent discipline for deception by an officer. However, after the conclusion of the DAB meeting, Brown became aware of other law enforcement staff who lied and were able to retain employment with the Division. Brown would not have ultimately recommended Knoy’s termination if he had been given accurate information by Lee. See testimony of Brown.

 

131.  Mathews has access to a database with information from 1973 that references 14 internal investigations for allegations of deception since that time. Mathews reported that four of those cases resulted in DAB recommendations to terminate the employee’s employment. Mathews acknowledged that the database includes gaps in information, including information concerning any actual discipline that may or may not have been implemented following a DAB recommendation. The database covers a period of time during which DAB practices were altered by multiple individuals, including changes in practice that were implemented by Mathews and others. See testimony of Mathews.

 

132.  The ALJ finds that it is unknown if the underlying facts of cases included within the database possessed by Mathews are similar to the relevant facts in this proceeding. It is also unknown if the database encompasses information for all Division investigations or solely the cases investigated by the OPS office. Overall, the ALJ finds that the database information presented by Mathews does not provide a credible source of information with which to evaluate the consistent application of Department discipline over time for similarly situated employees.

 

Knoy’s DAB-Final Report

 

133.  Lee inserted the analysis and recommendations of each DAB member into a document titled “Disciplinary Action Board May 09, 2017 Sgt. Bryan Knoy”.

 

a.       Brown’s statement determined that Knoy “provided misleading and untruthful information” during the internal investigation, “foolishly” believed information he received from Hill and was not “prudent” in providing good information to the best of his ability. See testimony of Brown and Exhibit 11.

b.      Beaver’s statement concludes “his untruthfulness during this investigation has tarnished his integrity. There is nothing more important than integrity as a law enforcement officer and Sgt. Knoy knows that and violated that. I reluctantly recommend termination as I feel that there is no other alternative.” See Exhibit 11.

c.       Wuestefeld’s statement concludes “[Knoy] made false statements …[and] violated the term[s] of the confidentiality warning when he discussed the ongoing investigation with his wife and father, after being instructed not to do so. [Knoy] admitted to this during the pre-polygraph interview. With all considerations taken into account, [Knoy] was found to be in violation of the charges listed in the statement of charges. The most concerning of which is his lack of honesty and attempts to dance around questions, only giving partial answers leading to the perception that he was uncooperative and less than forthcoming with complete and accurate information. With the lack of honesty I recommend termination.” Id.  

d.      Englert’s statement includes references to his review of all three Knoy interviews and concludes, “Sgt. Knoy failed to follow a lawful order, failed to be truthful and cooperative throughout the investigation and violated general orders by knowingly and repeatedly being untruthful throughout two formal interviews. Sgt. Knoy knowingly violated the terms of the confidentiality warning by discussing aspects of the investigation with his wife and father.” Id.

 

134.  Lee summarized the DAB conclusion as follows; “After meeting with each commander individually, I reconvened the members and reviewed their individual recommendations with the group. A thorough discussion was held and the Board ultimately unanimously agreed that the intentional lying should trigger Giglio and Brady requirements and that termination was the appropriate recommendation to forward to Major Portteus for his consideration.” See Exhibit 11.

 

135.  All four DAB members signed the recommendation to terminate Knoy’s employment. Lee also signed the recommendation as “Operations Commander” and as “Presiding Officer, Disciplinary Action Board”.  See testimony of Lee and Exhibit 11.

 

136.  A DAB recommendation is not binding on others up the chain and is not the “final word” of the Department. See testimony of Brown and Englert.

 

137.  The final DAB recommendation would, under usual circumstances, have been sent to East, as the Division Director, as the next phase of the discipline approval process. However, East had recused himself by Memorandum to Lee dated February 10, 2017, as the Division’s “final review and adjudicator” for Knoy’s DAB. See Exhibit 2. Therefore, on May 16, 2017, Maj. Portteus, as East’s proxy, was responsible for reviewing the document and signed the DAB recommendation. On May 16, 2017 Maj. Portteus signed the DAB’s recommendation to terminate Knoy’s employment. See testimony of Lee and Exhibit 11.

 

138.  On May 18, 2017, the Department’s Deputy Director, Mike Smith, initialed the document, “MJS”, and handwrote “ok”. Smith filled the role of Dir. Clark who had been interviewed during the pendency of the investigation. See testimony of Lee and Exhibit 11.

 

Knoy’s Employment Termination

 

139.  On Monday, May 22, 2017, Lee, Beaver and Capt. Bill Brown met with Knoy and served him with notice of Maj. Portteus’ and Smith’s approval of the DAB’s recommendation and suspension pending termination. Knoy was informed during the meeting that he could request a pre-deprivation meeting through Maj Portteus. See testimony of Lee and Exhibit 11.

 

140.  Knoy was notified by Special Order #3021, dated May 23, 2017, that: “The Law Enforcement Division Headquarters is in receipt of a Statement of Charges filed by Lt. Kent Hutchins. The written charges outline cause for discipline pursuant to IC 14-9-8-14 and 312 IAC 4-4-5 and were personally served to you on May 22, 2017.” The order states that “the chain of command recommends” that Knoy be “suspended from duty without pay…pending final order of termination from employment.” The order states that the suspension was effective on May 22, 2017. The order is signed by Maj. Portteus, Support Services Proxy for Director Danny East Law Enforcement Division. See testimony of Knoy and Exhibit 10.

 

[VOLUME 15, PAGE 45]

 

141.  Special Order 3023, dated June 2, 2017, was issued after a pre-deprivation meeting at which Knoy was afforded the opportunity to challenge the evidence against him. The pre-deprivation meeting was “held in accordance with IC 4-21.5, 312 IAC 3-1 and SOP IV-V” and conducted by Maj. Portteus on May 31, 2017.  See Exhibit 9. The pre-deprivation meeting results state, “[a]fter considering the points you brought forward I did not find sufficient justification to change the recommendation of the District Commander[24] and Disciplinary Action Board”. Knoy was terminated from his employment, effective on June 2, 2017. Id. The order is signed by Maj. Portteus, Support Services Proxy for Director Danny East Law Enforcement Division. The order was signed as “APPROVED” by “Cameron F. Clark, Director Department of Natural Resources”. See testimony of Knoy and Exhibit 9.

 

Alleged Investigation process irregularities

 

142.  The Petitioner presented evidence concerning seven potential irregularities within the process that resulted in Knoy’s employment termination by the Department.

 

143.  First, Knoy argues that the investigation should have been identified as a “major complaint” and that Division procedure required that OPS investigate the complaint. A major complaint is defined at SOP INV003(C)(7) to be “a complaint of a more serious nature that may include but is not limited to corruption, brutality, misuse of force, breach of civil rights, or criminal conduct. See Exhibit F.  SOP INV003(D) states “The Office of Professional Standards shall: 1) investigate assigned major complaints and complaints of special concern.” Id.

 

144.  With respect to this contention, the ALJ finds that, regardless of the appropriate characterization of any complaint against East, the investigation against Knoy, separately investigated, is not determined to be a major complaint. Even if the misconduct alleged in the complaint would have traditionally been assigned to OPS for investigation, Mathews, as an OPS representative, placed himself in the position of being a potential witness or suspect in the investigation. While Mathews asserted in his testimony that another investigator was available to conduct the investigation, this alternative is not detailed in the SOP and is not required. Mathews’ involvement placed the Division in a position that warranted a shift from any involvement by OPS in the investigation. Due to the involvement of Mathews in the underlying situation, the complaint was not assigned to OPS. No irregularity is found in the Division’s decision to assign the investigation to Hutchins and not OPS.

 

145.  Second, Petitioner alleges that Hutchins’ Memo distributed to Division employees dated January 6, 2017[25], supports a conclusion that Hutchins was predisposed to conclude that Knoy purposefully disseminated false information because the memo included the phrase “malicious intent” when identifying the unknown source of rumors.

 

a.       When Mathews received Hutchins’ Memo, he was concerned that Hutchins had determined malicious intent was involved before the completion of Hutchins’ investigation. See testimony of Mathews. Prior to the investigation, Lee had no idea that Knoy was involved. Hutchins also had no idea that Knoy would be implicated in the rumor investigation before his investigation began or even at the conclusion of the East investigation. See testimony of Lee and Hutchins. Based on the credible testimony of Hutchins, he began his investigation into the East rumors with minimal information about any rumor. When the investigation into the East rumors began, Hutchins believed that the end result could point to Mathews. He originally scheduled the interview with Knoy prior to Mathews’ interview to gather anticipated information for use during Mathews’ interview. Unexpectedly, the information he obtained during Knoy’s interview led Hutchins in a different direction. See testimony of Hutchins.

b.      With respect to this contention, the ALJ finds that the investigation of rumors concerning East began with an allegation, not a specific person. After Hutchins made attempts to elicit information from Knoy in two separate interviews, he concluded that Knoy “repeated conversations not known to be true for the purpose of discrediting a fellow employee.” Exhibit T.

c.       The weight of the evidence admitted at the administrative hearing supports a finding that Hutchins was predisposed to a belief that the person who disseminated information concerning East did so with malicious intent. Malicious intent could include discrediting a fellow employee. The DAB “unsubstantiated” this charge against Knoy, and the DAB’s recommendation formed the basis of the Department’s determination to terminate Knoy’s employment. As a result, the ALJ finds that any predisposed conclusion by Hutchins on this issue is not critical to the ultimate conclusion in this proceeding.

  

146.  Third, the Petitioner presented a concern that communication among Hutchins, Lee, Hyndman and East was inappropriate. With respect to this contention:

 

a.       SOP INV003, Procedure 2(3) requires supervisors to “give periodic status reports to the Chain of Command if it does not interfere with, or complicate, the investigation.” Exhibit F.

b.      During an in-depth investigation, especially one originated at the Central Office level, Hutchins would generally keep his supervisor informed of the progress of his investigation, and Hutchins did keep Lee informed during the East rumor investigation. At no time did Hutchins receive direction from the Division or Department leadership on the appropriate focus of his investigation or that Knoy should be implicated. Hutchins followed the evidence and did not tailor his investigation to reach any specific conclusion. See testimony of Hutchins.

c.       Lee took a passive role in supervising the investigation of rumors that was conducted by Hutchins. Lee discussed interviews with Hutchins and received updates from Hutchins throughout the investigation. See testimony of Lee.

d.      The ALJ finds that communication between Hutchins and Lee creates no concern.

e.       Lee notified Hutchins of concerns shared by Lee, East and Hyndman, by email dated January 18, 2017, stating “…someone lied. At the end of the investigation if we cannot say who, it would be a shame.” See testimony of Lee and Exhibit W.

f.       The ALJ finds that the email to Hutchins from Lee dated January 18, 2017, advised Hutchins of the critical nature of the investigation. The email did not target any specific person nor did it recommend any specific discipline. The email is insufficient evidence to support a factual conclusion that the email interfered with or complicated the investigation. 

g.      Lee informed Hyndman and East on the progress of the East rumor investigation and consulted with them periodically throughout the investigatory process. Lee was not directed by Hyndman or East to perform any task or reach any specific conclusion throughout the rumor investigation. Lee received no orders or pressure from his superiors regarding how the investigation should be conducted or the discipline appropriate for the rumor originator.  See testimony of Lee. See also Exhibits O, P and Q[26].

h.      The ALJ find that there is insufficient evidence in the record to support a factual conclusion that communication between Lee and Hyndman or East interfered with or complicated the investigation.

i.        During a January 18, 2017, Division staff meeting in Indianapolis, East, the rumor victim, stated that if somebody lied about East, they would be fired[27]. See testimony of Mathews.

j.        The ALJ finds that the audience to which East spoke was of an undetermined composition. No evidence supports a conclusion that Hutchins was present or otherwise became aware of East’s comment. Even if Hutchins was made aware of the comment, no evidence was presented to show that Hutchins’ investigation was not conducted in a fair and impartial manner, or was otherwise influenced by East’s statement. In addition, Hutchins’ authority did not include the recommendation of proper disciplinary action and any comment heard by Hutchins about any specific sanction is not critical to the ultimate conclusion in this proceeding. 

k.      The ALJ notes that the requirement in SOP INV003 for the Division to investigate complaints “fairly and impartially” would be best served by the Department’s efforts to avoid a victim’s inclusion in an investigation. Generally, in this way, the Department could avoid a potential appearance of impropriety, if not actual impropriety. Information provided by East, as a victim, to Lee, had a potential to complicate or interfere with the investigation. The manner in which the SOP requirements were applied in this instance afforded the potential for a tarnished complaint process and is found to present an irregularity. However, Lee credibly testified that East did not direct the investigation. In this case, the irregularity is not found to have resulted in any actual violation of the requirement of SOP INV003 to provide a fair and impartial complaint investigation.

 

[VOLUME 15, PAGE 46]

 

147.  Fourth, Hutchins determined who would be interviewed and determined that Carissa Knoy and David Knoy, Knoy’s wife and father, respectively, would not be interviewed.

 

a.       Carissa Knoy prepared a written statement that was considered by the DAB, in which she acknowledged that East was unknown to Hill and that Carissa Knoy was aware that Hill was not working at Bloomington Hospital on December 31, 2016. See Carissa Knoy and Exhibit 7.

b.      David Knoy also submitted a prepared statement that was considered by the DAB. See Exhibit 7.

c.       Once the confidentiality restrictions were lifted, Knoy had ample opportunity to present any supporting information to any Division or Department employee who Knoy believed would benefit from the information. In fact, Knoy submitted two separate statements to the DAB. See Exhibits 6 and 7.

d.      Both David Knoy and Carissa Knoy provided testimony during the administrative hearing.

                                                              i.      During her testimony, Carissa Knoy provided credible testimony acknowledging that, after Knoy discussed the EAST TEXT with her, she called Hill on December 31, 2016, to ask Hill, a good friend, about East’s condition, because Hill worked at Bloomington Hospital. Carissa Knoy acknowledged in her testimony that she told Hill that she wondered if East was drunk and Hill responded that she would see what she could find out. Subsequently, Hill did share information about East with Carissa Knoy and directly with Knoy on December 31, 2016. See testimony of Carissa Knoy.

                                                            ii.      During the administrative hearing David Knoy, testified that Knoy told him that there were allegations against him at work, that Knoy’s wife was involved, and that his job was in jeopardy. See testimony of David Knoy. 

e.       With respect to this contention, the ALJ finds that Hutchins interviewed persons he found to be necessary to the investigation, decisions well within the authority of an investigator. Hutchins’s decision to not interview Carissa Knoy or David Knoy would not support a conclusion that his investigation was not fair or impartial.

 

148.  Fifth, Mathews, Knoy and Deem all received emails, with orders from East attached, to appear and provide “complete cooperation and truthfulness” during interviews by Hutchins. These orders included similar wording but identified different dates, times and interview locations. All of the orders required the person being interviewed to “arrive unarmed and in plain clothes.” See testimony of Lee and Exhibit 2.

 

a.       Mathews considered the order instructing him to appear without his firearm and in plain clothes to be “not customary” and a “threat”. See testimony of Mathews. Contrary to the perception of Mathews that the instructions were a “threat” Hutchins informed Deem that the instruction was designed to “intimidate” officers who were ordered to participate in an interview. See testimony of Deem.

b.      The ALJ determines that the orders represent an acceptable law enforcement interview technique, not a threat.

c.       Because East’s signature appeared on Mathews’ order to appear for an interview, Mathews determined that East, as the victim of rumors, was coordinating Hutchins’ investigation. See testimony of Mathews.

d.      A polygraph request by the Department is only available through the authority possessed by the Division Director. At the time of the request for a polygraph examination of Knoy, East was the Division Director. See testimony of Hyndman.

e.       Lee informed East of Knoy’s polygraph and drafted an order to be sent under East’s signature setting Knoy’s polygraph. Lee also drafted the orders to appear for Hutchins’ interviews. The East orders, as drafted by Lee, were attached to emails sent by Pam Nelson, East’s administrative assistant. See testimony of Lee, Exhibit 2 and Exhibit V.

f.       As to this contention, the ALJ finds that East’s signature on orders directing Division staff to appear for interviews and for Knoy to appear for a polygraph examination were drafted by Lee. The inclusion of East’s signature on the orders was only the fulfillment of a procedural obligation. Lee assisted Hutchins with ministerial assistance by providing orders sufficient for Hutchins to complete the investigation and provides no evidence of an investigation that was not fair and impartial. East’s signature on any order does not provide evidence that East influenced the outcome of the investigation.

 

149.  Sixth, Hutchins utilized different Confidentiality Warning formats for different interviewees.

 

a.       Prior to being interviewed by Hutchins on January 10, 2017, Knoy signed, and on January 12, 2017, Deem signed a Confidentiality Warning stating “The content of this investigation is confidential. You are hereby warned that you cannot discuss this interview, anything said during the interview, or even acknowledge the existence of this investigation with anyone. …Exceptions to the above are the interviewer or anyone above the interview[er] in his/her chain of command, not in your chain of command….”  See Exhibit 12. While the document reflects that Knoy signed his Confidentiality Warning on January 10, 2016, at 8:32 a.m., the ALJ determines that the handwritten year is actually intended to be 2017 and represents an unintended error. Id.

b.      Before Mathews was interviewed by Hutchins on January 10, 2017, Mathews signed a Confidentiality Warning. The format initially provided to Mathews was the same as the form that was signed by Knoy and Deem and was designed by Mathews in 2004.  Mathews provided Hutchins a version of the form that Mathews revised in 2005 to allow the interviewee to write in acceptable exemptions to the prohibition. Hutchins allowed Mathews to sign the format that Mathews provided and allowed Mathews  to exempt his wife and attorney.  See Mathews and Exhibit 2.

c.       On January 11, 2017, at 9:00 a.m., Hutchins emailed Knoy to inform him that an updated Confidentiality Warning form was available and that the newer form would allow an exemption for discussions between Knoy and his attorney, contrary to the obligation stated within the document he had signed. The email states “You may retain this email as an exemption to the agreement you signed to allow you to speak to an attorney.” See testimony of Knoy and Exhibits B and I. Knoy was not notified of the version of the form that was signed by Mathews.

d.      With respect to this contention, the ALJ finds that there was no evidence to establish which version of the form was approved and in use. It is noted that neither format includes any approval date or revision indicator. No evidence was presented to show any approved justification that would support the use of any alternative version of any approved format. In this instance, Knoy’s wife was involved in the underlying situation being investigated. Even if the form would have allowed for an additional exemption, it would be justified to exclude her from such an exemption. Therefore, even if the form signed by Knoy was not a currently approved form, the error would be harmless.

 

150.  Seventh, Lee acted in three different capacities. Lee was not Hutchins’ day to day supervisor at the time of the investigation but did supervise the investigation. In addition, Lee became Knoy’s supervisor in February of 2017, when Mathews was reassigned. Lastly, Lee acted as Knoy’s DAB facilitator.

 

a.       Knoy’s supervisor at the time of the incident, Mathews, involved himself in the incident by advancing the East rumor to the Department’s Director. Because this report was known to Hyndman and East, an alternate procedure that did not involve Mathews was pursued. The alternate procedure also resulted in Lee performing multiple roles. Lee’s first role was oversight over the investigation. Lee and Hutchins effectively communicated and at the conclusion of Hutchins investigation, Lee, consistent with SOP INV003, Procedure 6(1), as the “primary investigative authority” reviewed the investigative findings. See Exhibit F.

b.      SOP INV003, Procedure 2(2) states that a supervisor shall “investigate and resolve minor complaints against their employees and major complaints with Chain of Command approval.” Id. 

c.       The ALJ finds that Lee’s roles as the investigation supervisor and Knoy’s supervisor at the time when the DAB was conducted presents no potential conflict and, in fact, The SOP contemplates that complaints might be brought and investigated by a supervisor.

d.      In Lee’s role as the DAB facilitator, Lee appropriately set the time and place for the DAB to meet, and established an appropriate DAB composition. Because of his investigation oversight Lee knew much more about the investigation than a DAB facilitator typically does. Before the DAB convened, Lee offered his biased conclusion that Knoy “lied” to Brown. 

e.       The ALJ finds that Lee, in his position as the DAB facilitator, could have been in a position to insert his advanced knowledge of the investigation through open discussion with the members. It is undetermined if Lee maintained neutrality in his facilitation of the DAB members. The evidence presented at hearing is insufficient to support a finding that this potential for irregularity actually resulted in a recommendation different than the members would have otherwise reached. No evidence supports a reasonable conclusion that Lee’s statement to Brown before the DAB convened biased Brown in any way.

 

[VOLUME 15, PAGE 47]

 

Conclusions of Law

 

151.  Indiana’s at-will employment doctrine allows an employer to terminate employment for “good reason, bad reason, or no reason at all.” Meyers v Meyers, 861 N.E.2d 704, 705 (Ind 2007), quoting Montgomery v Bd. Of Trustees of Purdue Univ., 849 N.E. 2d 1120, 1128 (Ind 2006).

 

152.  The Indiana at-will doctrine is limited by narrow exceptions such as a public policy exception if “clear statutory expression of a right or duty is contravened.” Ogden v Robertson, 962 N.E. 2d 134, 145 (Ind App 2012), citing Baker v Tremco, 917 N.E. 2d 650, 654 (Ind 2009).

 

153.  The Indiana General Assembly has conferred a public policy exception to employment at-will, through IC 14-9-8-14(a), and states a specific statutory right as follows: “The division director may, with the approval of the director, discharge,…an employee of the division, for cause, after preferring charges in writing.” In addition, prior to imposing a sanction, the employee must be afforded a predisciplinary meeting with the Division Director, or the Division Director’s designee. See 312 IAC 4-4-5.

 

154.  “For cause” in the context of employment termination by the Department as it is stated within IC 14-9-8-14(a) imposes procedural due process protections. Natural Resources Commission v Sullivan, 428 N.E.2d 92, 98 (Ind App 1981).

 

155.  At the time when the Department terminated Knoy’s employment, Knoy was a Conservation Officer, specifically a training Sergeant, for the Department’s Law Enforcement Division.

 

156.  A Conservation Officer is defined as “an officer employee of the law enforcement division organized under IC 14-9-8.” IC 14-8-2-53.

 

157.  As a training Sergeant and Conservation Officer, Knoy was an “employee of the Division” for purposes of IC 14-9-8-14.

 

158.  In this instance, Knoy does not challenge that the Division preferred charges in writing to Knoy in compliance with IC 14-9-8-14. In addition, Knoy does not challenge that a proxy for the Division Director and the Department Director approved Knoy’s employment termination following a pre-deprivation meeting.

 

159.  The Petitioner requests administrative review of Knoy’s employment termination based on the Department’s findings of violations by Knoy and by alleging procedural irregularities by the Department during the investigative process. See the Petition.

 

160.  The ultimate authority for the Department for the Department’s order terminating Knoy’s employment is the Commission and administrative review of the Department’s decision is to be heard de novo by an ALJ. IC 4-21.5-3-14(d).

 

 

The Department’s Basis-One Charge Unsubstantiated

 

161.  The charges that resulted in Knoy’s employment termination allege that Knoy violated General Order ADM002, Rules of Conduct, the Indiana Conservation Officer Code of Ethics and the Oath of an Indiana Conservation Officer.

 

162.  The DAB recommendation was accepted and approved for service by Maj. Portteus on May 16, 2017. See Exhibit 11. Special Order #3023 approved Knoy’s termination and “did not find sufficient justification to change the recommendation of the [DAB]”. See Exhibit 9. It is determined that the DAB findings and recommendation, not the original charges identified by Hutchins, form the basis of the Department’s employment termination of Knoy.

 

163.  The DAB unsubstantiated one charge against Knoy. The unsubstantiated charge was for violating General Order ADM002, Procedures D, Procedure 4(4)(b)(2) by repeating conversations not known to be true for the purpose of discrediting a fellow officer. Because this violation was unsubstantiated by the DAB, the charge is not found to have formed the basis of the Department’s decision to terminate Knoy’s employment. This alleged violation is not evaluated further.

 

164.  Knoy disputes and denies, “[f]indings that Knoy improperly solicited information regarding Director East’s physical condition on December 31, 2016… [f]indings that Knoy improperly utilized a personal source of information to obtain medical information regarding Director East…. [and] [f]indings that Knoy self-initiated an investigation on December 31, 2016.” Both Hutchins and the DAB members found that Knoy conducted himself in reliance on information that was inappropriate, improperly solicited information, improperly utilized a personal source and self-initiated an investigation. However, none of these activities appear to have formed the basis of the Department’s employment termination sanction. As such, these issues identified by Knoy as disputed issues need not be addressed.

 

 

Notice of Prohibited Acts to Support a Sanction  

 

165.  An employee must have been provided sufficient notice of prohibited activities or conduct. Where cause as the general standard “is not supplemented by explicit enumeration of prohibited acts, it is nevertheless sufficient if the specific acts involved in an individual case clearly fall within the scope of the standard.” Sullivan at 101.  

 

166.  In a case before the Commission on the employment termination of a Department Property Manager, the Commission considered whether an activity or conduct “'clearly falls within the contemplation of a disciplinary rule' such that he 'should not be entitled to escape responsibility for his actions merely because [the] rule may be imprecise when applied in a different context.'” Parker v. DNR, 13 CADDNAR 176 (2013), quoting Bird v County of Allen, 639 N.E. 2d 320, 333 (1994). In Parker, the statutory proscription was found to provide sufficient notice to support employment termination.

 

167.  The Division’s Director may issue, general orders, special orders, standard operating procedures, administrative procedures, and policies. These written directives must be signed by the Division Director, approved by the Department Director, distributed to employees and must include a date of effectiveness. 312 IAC 4-4-3.

 

168.  “A division employee must abide by any standard operating procedure, written directive, general order, special order, or other order issued under this article.” 312 IAC 4-2-2.

 

169.  A "Standard operating procedure" is defined as “a step by step guideline issued under proper authority and designed to carry out the activities of the division.” 312 IAC 4-1-21.

 

170.  A "Written directive" is defined to be “a written document used to guide or affect the performance or conduct of an employee.” 312 IAC 4-1-23.

 

171.  A "General order" is defined to mean “a permanent written directive to govern the conduct of all employees that is issued with the approval of the division director and the director.” 312 IAC 4-1-11.

 

172.  A ‘"Special order" means a personnel action issued under proper authority. A special order may be either temporary or permanent.” 312 IAC 4-1-20.

 

173.  The DAB findings identified specific violations of General Order: ADM002,  Rules of Conduct and referenced the following portions of the General Order:[28]

C. Definitions

Accountability – In the context of this procedure, accountability means the duty of all officers to truthfully acknowledge their actions and decisions when requested to do so by an authorized member of the Division or Department without deception or subterfuge.

 

D. Procedures

Procedure 1: Law Enforcement Division Core Values

The Law Enforcement Division defines and embraces the following Core Values as worthwhile, non-negotiable, and constantly present qualities for performance of duties:

 

1. Integrity-Commitment to the highest level of standards as measured by the policing profession, moral principles and ethics, standing up for one’s beliefs.

                 12. Honesty- A determination to be truthful and trustworthy at all times, at all places.

 

Procedure 4: General Conduct

 

1.      Obedience to laws, regulations and orders.

b.       Officers shall obey all lawful orders.

3           Accountability, responsibility and discipline.

a.      Officers are directly accountable for their actions through the chain of command, to the Division Director.

b.     Officers shall cooperate fully in any internal administrative investigation conducted by the Division or other authorized agency and shall provide complete and accurate information in regard to any issue under investigation.

c.      Officers shall be accurate, complete and truthful in all matters.

d.     Officers shall accept responsibility for their actions without attempting to conceal, divert, or mitigate their true culpability nor shall they engage in efforts to thwart, influence, or interfere with an internal criminal investigation.

 

g    The betrayal or other wrongful disclosure of confidential information is prohibited.

 

4.               Conduct toward fellow employees

b..........it is a violation of division policy to:

2) participate in deceptive conversations or make statements or repeat Conversations, known to be false, or not known to be true, for the purpose of undermining or discrediting a fellow employee or for the purpose of casting yourself in a positive light for possible or potential personal or professional gain.

 

See Exhibit T and Exhibit 5.

 

 [VOLUME 15, PAGE 48]

 

174.  Knoy was obligated to adhere to General Order ADM002, Rules of Conduct. The General Order provided notice to Knoy of prohibited activities for which a sanction might be imposed.

 

175.  The DAB findings identified a specific violation by Knoy, of one or more of the following portions of the Code of Ethics:[29] “Sgt. Knoy violated the Code of Ethics by being untruthful and also by deliberately disobeying the regulations of the division. His conduct also reflects a lack of adherence to the Core Values and a disregard for the welfare of others. –Substantiated.” See Exhibit 12.

 

176.  The Code of Ethics, an affirmation regarding fundamental duties undertaken by a Conservation Officer, as stated within Exhibit 12, are as follows:

 

As an Indiana Conservation Officer, my fundamental duty is to serve humankind; to safeguard lives and property; to protect the innocent against deception, the weak against oppression or intimidation, and the peaceful against violence and disorder; and to respect the Constitutional rights of all people to liberty, equality, and justice.

 

I will keep my private life unsullied as an example to all; maintain courageous calm in the face of danger, scorn or ridicule; develop self-restraint; and be constantly mindful of the welfare of others. Honest in thought and deed in both my personal and official life, I will be exemplary in obeying the laws of the land and the regulations of the Division. Whatever I see or hear of a confidential nature or that is confided in me in my official capacity will be kept ever secret unless revelation is necessary in the performance of my duty.

 

I will never act officiously or permit personal feelings, prejudices, animosities, or friendships to influence my decisions. With no compromise for crime and with relentless prosecution for criminals, I will enforce the law courteously and appropriately without fear or favor, malice or ill will, never employing unnecessary force or violence and never accepting gratuities.

 

I recognize the bade of office as a symbol of public faith, and I accept it as a public trust to be held so long as I am true to the ethics of the police service. I will constantly strive to achieve these objectives and ideals, dedicating myself before God to my chosen profession…conservation law enforcement.

 

See Exhibit T and Exhibit 5.

177.  Knoy disputes “findings that Knoy was untruthful regarding the information he received… about the source… regarding Director East…was untruthful during any portion of the investigative process…[and] deliberately disobeyed the regulations of the law enforcement division…See the Petition, para. 19.

 

178.  No statute or regulation admitted as evidence in this proceeding supports the sanction of a Division employee arising out of a violation of the Code of Ethics. No standard operating procedure, written directive, general order or a specific order admitted as evidence in this proceeding obligates the employee to comply with the Code of Ethics identified within the Statement of Charges and the Disciplinary Board Findings to avoid sanctions.

 

179.  The Code of Ethics certainly acknowledges duties that a conservation officer may internalize in accepting employment as a conservation officer. However, given no Department or Division directive, violation of the Code of Ethics would not provide sufficient notice to support a sanction against Knoy.

 

180.  The DAB findings identified a specific violation by Knoy, of one or more of the following portions of the Oath of an Indiana Conservation Officer[30] by: “Sgt. Knoy violated his Oath of an Indiana Conservation Officer by not adhering to the Core Values, Code of Ethics and Rules of Conduct. Further, he violated his pledge to be honest and to maintain unimpeachable integrity. –Substantiated.” See Exhibit 12.

 

181.  The DAB findings identified a specific violation by Knoy, of one or more of the following portions of the Oath of an Indiana Conservation Officer:[31]

 

I solemnly vow to the people of the State of Indian, upon my honor as an Indiana Conservation Officer, to embrace and adhere to the Core Values, the Code of Ethics, the Rules of Conduct, and the Mission of the Law Enforcement Division of the Indiana Department of Natural Resources and to adopt them into my everyday life.

 

I pledge to be honest in thought, word, and deed; to maintain unimpeachable integrity; to be just, fair, and impartial; to be steadfast against evil and its temptations; and to give my utmost to protect the rights, property, and lives of our citizens.

 

I shall strive to give thoughtful, intelligent obedience to the commands of my superiors, to make my conduct friendly but impartial, and courteous but firm; with no compromise for crime.

 

I shall, at all times, uphold the Constitution of the United States and the laws of my country, and the Constitution and laws of the State of Indiana and the Indiana Department of Natural Resources.

        See Exhibit T and Exhibit 5.

 

182.  Knoy disputes “findings that Knoy deliberately disobeyed the regulations of the law enforcement division.” See the Petition, para. 19.

 

183.  312 IAC 4-2-1 states, “Each conservation officer must subsequently take and abide by an oath to uphold all laws and local ordinances and to comply with court decisions and orders of courts having jurisdiction. The form of the oath shall be as prescribed by division director.”

 

184.  The DAB findings fail to identify that Knoy violated any specific law, local ordinance, court decision or court order. While the Division Director may determine the form of the oath for Conservation Officers, there was no evidence offered or admitted at the administrative hearing that requires a Conservation Officer to abide by an oath to avoid sanctions, to the extent that the oath extends beyond the parameters established by 312 IAC 4-2-1.

 

185.  No standard operating procedure, written directive, general order or specific order admitted as evidence in this proceeding other than the violations of the Code of Conduct discussed above obligate Knoy’s compliance with the oath identified within the DAB findings to avoid sanctions.

 

186.  The violation identifies no law with specificity that the Department alleges Knoy violated and fails to provide any specific notice to Knoy of the underlying basis for the violation.

 

187.  Given no Department or Division directive, violation of the Conservation Officer’s Oath would not provide sufficient notice to support a sanction against Knoy.

 

188.  Therefore, no violation of the Conservation Officer’s Oath by Knoy relied upon by the Department to terminate Knoy’s employment is found to support a sanction in this case on that basis.

 

 

Are Violations Supported by the Evidence?

 

189.  The DAB findings substantiated Hutchins’ original charges for violations of three separate sections of General Order ADM002. The Department determined that Knoy violated General Order ADM002, Procedures D, Procedure 4(3)(g) as follows: “Sgt. Knoy knowingly violated the terms of the Confidentiality Warning he signed by discussing specific aspects of the investigation with his wife and father, one of which had participated in various aspects of the allegations. –Substantiated.” See Exhibit 12.

 

190.  Knoy disputes findings that he “had inappropriate conversations with his wife or father regarding the investigation.” See the Petition, para. 19.

 

[VOLUME 15, PAGE 49]

 

191.  In signing the Confidentiality Warning on January 10, 2017, Knoy acknowledged that he was prohibited from discussing the interview, anything said during the interview, or even to acknowledge the existence of the investigation until the prohibition was lifted on January 30, 2017, with anyone other than the interviewer and those in the interviewer’s chain of command. At the conclusion of Knoy’s first interview, Hutchins confirmed orally with Knoy that he was prohibited from discussing the investigation with his wife. Following the time when Knoy signed the Confidentiality Warning, Hutchins sent Knoy an email that provided Knoy an exemption from the prohibition so that he could discuss the case with his legal counsel.

 

192.  There may have been other versions of the Confidentiality Warning available at the time when Knoy signed the warning. No version of the warning would have provided an exemption that would have allowed Knoy to discuss the investigation with his father. Evidence provided during the administrative hearing supports a finding that Knoy shared information concerning his fragile mental state with his father and was directed by his father to discuss those matters with his wife. Insufficient evidence was provided during the administrative hearing to support a legal conclusion that Knoy shared information concerning the investigation with his father.

 

193.  Knoy’s testimony, the testimony of Carissa Knoy and Knoy’s statements within his pre-polygraph interview specifically acknowledge Knoy’s discussion with his wife regarding the investigation as well as the underlying facts relevant to the investigation on the morning of January 20, 2017, prior to his pre-polygraph interview. Knoy’s discussions with his wife violated the Confidentiality Warning he signed and violated General Order ADM002 Rules of Conduct, Procedures D, Procedure 4(3)(g).

 

194.  The Department determined that Knoy violated General Order ADM002 as follows: “Sgt. Knoy failed to follow a lawful order from Director East regarding being truthful and cooperative throughout the Internal Investigation. -Substantiated” See Exhibit 12. Division Director East issued an order to Knoy to be truthful and cooperative. The order was a lawful order and East, at the time when the order was issued, was Knoy’s superior.

 

195.  “Upon the issuance of a lawful order by a superior, an employee must truthfully answer any question specifically directed, and narrowly related, to the scope of employment and operations of the division.” 312 IAC 4-6-4.

 

196.  The failure to obey a lawful order as a violation of General Order ADM002, Procedures D, Procedure 4(1)(b) will be found if Knoy is found to have violated General Order ADM002, Procedures D, Procedure 1(12) or General Order ADM002, Procedures D, Procedure 4(3)(b) or (c).

 

197.  The Department determined that Knoy violated General Order ADM002, Procedures D, Procedure 1(12) and Procedures D, Procedure 4(3) as follows: “Sgt. Knoy violated this General Order by knowing and repeatedly being untruthful throughout two formal interviews. Sgt. Knoy was purposely evasive and provided numerous false statements in response to key questions. -Substantiated” See Exhibit 12.

 

198.  Knoy disputes “findings that [Knoy] was untruthful regarding the information he received…about the source of the information regarding Director East…was untruthful during any portion of the investigative process [and]… attempted to employ “countermeasures” during the polygraph examination he took during the investigation.” See the Petition.

 

199.  Hutchins identified numerous inconsistencies in the statements made by Knoy during the two interviews conducted by Hutchins and the pre-polygraph examination observed by Hutchins. All of the DAB members determined that Knoy affirmatively lied during the investigation. Knoy’s statements in his January 10, 2017 interview, his January 11, 2017 interview and his January 20, 2017 pre-polygraph interview are inconsistent. The inconsistencies primarily involve the solicited nature of the information Knoy obtained, the source of the information and Knoy’s direct conversation with Hill on December 31, 2016.

 

200.  During his testimony, Knoy disputed that his responses to Hutchins regarding solicitation of information concerning East were inconsistent with the statements he made during his pre-polygraph interview because he claims the solicitation occurred two days after December 31, 2016, not on December 31, 2016. The solicitation directed by Knoy two days after December 31, 2016, does not resolve the inconsistencies of his statements.

 

201.  Knoy was purposefully evasive in his responses during all three interviews. Knoy acknowledged in his pre-polygraph interview that he “tried to thin-slice” the information for Hutchins. Afterwards, in the pre-polygraph interview, Knoy acknowledged that he was “splitting hairs” over how detailed the information was during the conversation at his home with Hill on New Year’s Eve and whether it was everything he placed in the text to Mathews. Knoy “split hairs” and “thin sliced” the information he shared during his interviews. Knoy did not offer information in a cooperative manner. Instead, Knoy cautiously parceled out thin slices of information and expanded the information when it became clear that his responses did not make logical sense. For example, he originally offered that the information was not solicited. However, upon Hutchins questioning him regarding why a person would, out of the blue, share information concerning East with Knoy’s wife, Knoy expanded the information he was willing to share. Upon being questioned about why he would believe an unknown source, Knoy offered more expansive information to include additional information about the source. Knoy’s interview responses support a conclusion that he was not cooperative but was evasive in his interview responses during the investigation.

 

202.  Knoy failed to cooperate fully and failed to be completely truthful in violation of General Order ADM002, Procedures D, Procedure 1(12) Honesty and General Order ADM002, Procedures D, Procedure 4(3). In addition, due to this violation, Knoy also is determined to have violated East’s order to be truthful and cooperative throughout the investigation; thereby violating ADM002, Procedures D, Procedure 4(1)(b).

 

Just Cause

 

203.  312 IAC 4-4-5 provides the following guidance to assist with the implementation of IC 14-9-8-14: “The division director (or a person designated by the division director) may, for just cause, discharge,…an employee…. The division director will normally impose discipline in a progressive manner; however, the division director shall impose the discipline that is appropriate to the seriousness of the misconduct” 312 IAC 4-4-5.

 

204.  A facially clear and unambiguous statute need not and cannot be interpreted.  St. Vincent Hosp. and Health Care Center, Inc. v. Steele, 766 N.E.2d 699 (Ind 2002). In 2017, the Indiana Supreme Court stated the following:

If a statute is clear and unambiguous, we put aside various canons of statutory construction and simply “require that words and phrases be taken in their plain, ordinary, and usual sense.” Id. Indeed, “[c]lear and unambiguous statutes leave no room for judicial construction.” Id. We will find a statute ambiguous and open to judicial construction only if it is subject to more than one reasonable interpretation. See Ballard v Lewis, 8 N.E.3d at 194; Adams v. State, 960 N.E.2d 793, 798 (Ind 2012).

KS&E Sports v Runnels, 72 N.E.3d 892, 898-899 (Ind. 2017), citing Basileh v. Alghusain, 912 N.E.2d 814, 821 (Ind 2009).

 

205.  While 312 IAC 4-4-5 clarifies that cause to justify a sanction is “just cause”, no Division procedure presented as evidence was offered to provide guidance on the appropriate nature of discipline for any specific violation. By analysis, the rules of statutory construction for statutes also may provide guidance on interpreting the language of an administrative rule. The phrase “just cause” is determined to be unambiguous and will be construed in a “plain, or ordinary and usual, sense.” IC 1-1-4-1(1). 

 

206.  Regarding a Division sanction by the Department, the Indiana Court of Appeals has determined that cause relating to the reason for an employee’s sanction “must relate to and affect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.” Sullivan at 98. In the Sullivan case, the employee’s demotion was upheld due to evidence that Sullivan disobeyed direct orders from his superior. Id. at 102.

 

207.  There is a public interest in being “protected by police departments comprised of well-disciplined officers.” City of Clinton v Goldner, 885 N.E. 2d 67, 73 (Ind App 2008), citing Hilburt v Town of Markelville, 649 N.E. 2d 1036, 1039 (Ind App 1995), trans denied. There is a Division interest in running an efficient operation. City of Indianapolis v Heath, 686 N.E. 2d 940, 944 (Ind App 1967). In addition, “there is a particularly urgent need for close teamwork among those involved in the ‘high stakes' field of law enforcement” an environment dependent on “order, discipline, and esprit de corps.” Messer v New Albany Police Dept., 965 N.E.2d 54, 59 (Ind App 2012), quoting Kokkinis v. Ivkovich, 185 F.3d 840, 845 (7th Cir.1999) (quoting Breuer v. Hart, 909 F.2d 1035, 1040 (7th Cir.1990)).

 

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208.  “The very nature of a policeman’s duties, his conduct in the community on and off duty must be above reproach.” Gray v Cty. of Starke, 82 N.E. 3d 913, 919 (Ind App 2017), citing Pope v Marion Cty. Sheriff’s Merit Board, 301 N.E. 2d 386, 391 (Ind App 1973). The conduct of a Conservation Officer should, as reflected by General Order ADM002, affirm the interests of the Division and the interests of the public in the truthfulness of officers.

 

209.  “An agency may not rely on a written final order as precedent to the detriment of any person until the order has been made available for public inspection and indexed [by name and subject].” IC 4-21.5-3-32(b). Previously indexed Commission decisions may provide a source of guidance in this case. In determining whether the Department terminated the employment of Knoy for just cause, an analysis of historical application of the phrase as applied to prior sanctions of Division employees.

 

210.  In Moss v DNR, 14 CADDNAR 128 (2016), the ALJ conducted a survey of the Commission’s indexed cases regarding disciplinary action by the Department for Conservation Officers. The cases, which were decided between 1996 and 2006, reflect the Department’s propensity to impose lenient disciplinary actions for Conservation Officer misconduct. For example, in 1996, the Department imposed a three day suspension for an officer’s falsification of overtime forms when the officer had been suspended on five prior occasions. Harris v DNR, 10 CADDNAR 289 (2006). In the years between 2006, when the Department recommended the three day suspension in Harris and 2014, when it recommended employment termination in Moss primarily for false statements made in the course of an internal investigation, the Department’s stance regarding discipline for officer misconduct clearly shifted. Because of the unique and unfortunate evidentiary challenges present in Moss, the analysis and ultimate determinations are properly restricted to that case. Moss v DNR, 14 CADDNAR 128, 130 (2016), affirmed by the Marion Superior Court in case number 49D14-1612-PL-042987.[32]

 

211.  In this instance, Knoy had been a Division law enforcement officer for 18 years. Knoy’s tenure alone, combined with Knoy’s position as a training Sergeant supports a legal conclusion that Knoy was well informed regarding the requirements and procedures of the Division. Knoy is held to specific knowledge of the requirements within General Order ADM002, Code of Conduct.

 

212.  Knoy had an unblemished disciplinary history prior to the incident that is the subject of this proceeding.

 

213.  Knoy’s void in prior discipline was considered by the DAB and the DAB recommended Knoy’s employment termination as an appropriate sanction. The ALJ finds that the seriousness of the allegations supports the findings and the position of the DAB in that the violations by Knoy represent an unwillingness to follow General Order ADM002.  

 

214.  The violations by Knoy through his failure to maintain confidentiality, failure to obey a specific lawful order and his failure to cooperate and provide accurate, complete and truthful information during the internal investigation supports a legal conclusion that Knoy’s violations were of a substantial nature that justify a sanction of employment termination.

 

Alleged Process Irregularities

 

215.   The Division established Standard Operating Procedure (SOP) for Internal Affairs, INV003, approved on July 17, 2014[33], under the authority of 312 IAC 4-4-3. SOP INV003 establishes procedures for “investigating complaints and allegations of employee misconduct…fairly and impartially” See Exhibit F.

 

216.  Knoy identifies the following disputed issue in the Petition: “The general investigative process and procedural irregularities by the Department’s Law Enforcement Division concerning the investigation into Knoy’s advisement concerning the Division Director.” See the Petition.

 

217.  In part, the Commission’s decision in the Moss case was impacted by the testimony of the investigator[34] that was found to be unsupported by the evidence and the DAB’s failure to independently review and evaluate evidence.

 

218.  If procedural irregularities are of such a significant nature as to impact the credibility of the evidence, a Department decision as to officer discipline may be at risk of amendment or reversal.

 

219.  Under the circumstances East, Hyndman and Mathews were involved in the events preceding the investigation such that a deviation from usual procedure was necessary to ensure a fair investigation. This can hardly be considered detrimental to Knoy.

 

220.  As the DAB facilitator, Lee advised the DAB members that all employees previously investigated for deception had been fired by the Division. This representation was in error. Brown, as a DAB member would have recommended a sanction less than termination if Lee’s advice had been accurate. However, three of the four DAB members proposed employment termination before Lee’s assertion that all employees previously investigated for deception had been fired. In that a unanimous DAB recommendation is not required, this irregularity is not found to support a finding that Lee’s action actually impacted the DAB’s final recommendation in this case, only that his representation to the DAB members was in error.

 

221.  Despite minor irregularities by the Division, many of which resulted from the involvement by key persons in pre-investigative events, based on the weight of credible evidence presented at the hearing, the totality of the investigation process is determined to be fair and impartial. Any irregularity is found to be harmless in that no different result would have occurred. It is also determined that oversight through this de novo administrative review procedure provides an additional assurance of neutrality in this case. Sullivan at 100.

 

 

[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format.  The Final Order, Paragraphs 1 through 5, has been relocated to the “Final Order” section at the beginning of this document.] 

 

 

[1] SEAC No. 04-17-024 was dismissed on September 13, 2017.

[2] Portions of the Petition filed in bold formatting are not bolded in this decision. 

[3] Findings of fact that may be construed as conclusions of law and conclusions of law that may be construed as findings of fact are so deemed.

[4] The code “100” is a reference to the Division Director, here East, and “200” is a reference to Hyndman’s position on the date of the text.

[5] No attachment letter or number appears on the face of the exhibit. The pages of Exhibit 2 are not numbered. 

[6] Mathews assumed a different position with the Division on or about February of 2017.

[7] Lee was also referred to as the Operations Commander.

[8] The memo was not admitted as an exhibit in this case.

[9] Now deceased.

[10] The interview was recorded but no audio was offered or admitted as an exhibit in this proceeding.

[11] In his testimony, Mathews stated that when the confidentiality mandate was lifted, he contacted State Personnel and requested a “fair and independent investigation.’ No details of his request or any investigation conclusion were provided as evidence in this proceeding.

[12] Exhibit 2 has a list of attachments. One attachment is identified as “Text message from Sgt. Knoy to Captain Mathews with response: December 31, 2016 1645 hours. Response: 1752 hours.” The response is not included within the attachment admitted in this proceeding. 

[13] The interview was recorded but no audio was offered or admitted as an exhibit in this proceeding.

[14] Testimony regarding the polygraph was objected to by the Petitioner and overruled by the ALJ. The pre-polygraph interview observed by Hutchins is determined to be nothing more than statements made by Knoy that were heard by Hutchins, and by Campbell as experienced law enforcement officers, capable of identifying discrepancies in statements made over time. No polygraph examination conclusions were considered by the ALJ.  

[15] Petitioner objected to testimony concerning Knoy’s pre-polygraph interview observed by Hutchins as being beyond the scope of the Statement of Circumstances and the Statement of Charges. The objection was overruled. The investigator’s observations are noted in the Statement of Circumstances, Exhibits T and Exhibit 5. 

[16] Knoy was not recommended for employment termination because of a Health Insurance Portability and Accountability Act (HIPAA) violation. The DAB members believed that any violation would have been perpetrated by Hill.

[17] It is noted that SOP INV003, admitted as Exhibit F, in Procedure 3, references the identification of findings as “sustained” or “not sustained” among other options and does not reference “substantiated” or “unsubstantiated”.

[18] No SOP identifying a list of potential discipline was presented by either party.

[19] In Brown’s testimony, he stated that the Department’s current Law Enforcement Division Director, Arnold, showed Brown his handwritten statement a few months prior to the administrative hearing and discussed the content of the document with him. On the basis of Brown’s testimony, the Petitioner orally motioned for dismissal of this proceeding and requested appropriate sanctions against the Department by alleging that the document was not provided to the Petitioner thereby violating a discovery request. The motion was held under advisement by the ALJ and ultimately denied. The Petitioner was allowed an opportunity to file any appropriate motion on discovery, including any appropriate sanctions, within two weeks of the completion of the hearing. No motion was filed by the Petitioner.

[20] Brady v Maryland, 373 U.S. 83 (1963).

[21] Giglio v United States, 405 U.S. 150 (1972).

[22] Offer of Proof was submitted by Petitioner that there are prior DAB substantiated determinations of untruthfulness or deception in their careers by Moss, Hutchins and Lee who remain employed by the Division, resulting in inconsistent practice by the Division.

[23] While Standard Operating Procedure ENF 029 was identified and referenced, no such document was offered as evidence in this matter and any specific requirement for the Department, the Division or the DAB to adhere to the progressive discipline considerations anticipated by 312 IAC 4-4-5 was unstated by the Parties. 

[24] It is noted that in this case, the Operations Manager, Lee, signed the DAB’s recommendation, as a District Commander.

[25] The memo was not offered or admitted as an exhibit in this proceeding.

[26] Exhibits O, P and Q were originally admitted for a limited purpose, to show that Hyndman received the emails. A more thorough examination of the documents was explored during the testimony of Lee without objection by the Respondent.

[27] The testimony was properly objected to as hearsay. However, the Petitioner asserted that the testimony was for the purpose of showing motive, and therefore, did not fall within the definition of hearsay. Regardless of whether it was offered for the truth of the matter asserted, hearsay may be admitted at an administrative hearing, with its' use restricted unless the evidence would fall under a recognized exception. IC 4-21.5-3-26(a). 

[28] The excerpts within the Statement of Charges and the Disciplinary Board Findings do not appear to be the complete wording of General Order ADM002, Rules of Conduct. No party provided the full document to enable a review of the full text of the document, including any applicable exemptions that might be noted in the document. The excerpts provided are evaluated in this decision, as written.

[29] The segments presented in the Statement of Charges and the Disciplinary Board Findings identified as the Code of Ethics may or may not be the full and accurate Code of Ethics.

[30] The segments presented as the Oath identified within the Statement of Charges may or may not be the full and accurate Oath of an Indiana Conservation Officer.

[31] The segments presented as the Oath identified within the Statement of Charges may or may not be the full and accurate Oath of an Indiana Conservation Officer.

[32] Originally heard by the Commission in Moss v DNR, 13 CADDNAR 259 (2014), reversed and vacated on judicial review in case number 49D04-1405-PL-017919, appealed to the Indiana Court of Appeals resulting in a Memorandum Decision in case number 37 N.E. 3d 979 (2015), followed by remand by the Marion Circuit Court for issuance of a revised order, thereafter, issued as 14 CADDNAR 128 (2016).

[33] It is noted that the SOP also states, “[e]mployees who withhold information from, or fail to cooperate with, internal investigations are subject to disciplinary action in addition to any other disciplinary action that may result from the investigation.” See Exhibit F.

[34] Mathews.