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Appeals court affirms sending employee appeal back to agency

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The Indiana Court of Appeals affirmed the grant of a fired Department of Correction employee’s petition for judicial review, finding that it was clear on the record that an administrative agency’s action was without evidentiary foundation. The appellate court noted the difficulty the judge had in conducting the judicial review due to deficiencies in recording testimony.

George Finney, who was a teacher at the Westville Correctional Facility, was fired after becoming belligerent and verbally abusive toward Westville officials after he was made to put his cell phone in his car before going into the facility. The Indiana State Employees’ Appeal Commission and an administrative law judge found that Westville proved it had cause to fire Finney. The full commission affirmed the ALJ’s determination, so Finney sought judicial review in Marion Superior Court.

There were numerous technical issues during the ALJ’s hearing, so most of the witnesses’ testimony wasn’t recorded and often recordings were inaudible, static, or blank. Only Finney’s and one other person’s testimony was intelligible.

Marion Superior Judge David Dreyer granted Finney’s petition, set aside the agency action and remanded to the agency for further proceedings.

The COA affirmed, finding Westville didn’t show that the reviewing court committed reversible error. It’s clear from the record that the agency’s action was without evidentiary foundation, let alone substantial evidence as required by Indiana Code 4-21.5-5-14(d)(5), wrote Senior Judge Patrick Sullivan in Westville Correctional Facility, et al. v. George Finney, No. 49A05-1103-PL-92.

“Without question Judge Dreyer’s task in conducting his judicial review was made difficult, if not virtually impossible, by the woeful deficiencies in the tape recordings of the testimony of various witnesses so that the attempts to transcribe the proceedings from those tapes were unavailing,” he wrote. “Suffice it to say that our extensive compilation of what appears on the purported record of the proceedings before the administrative agency reflects an intolerable failure to preserve the evidence or to make sure that the recording equipment was adequate to the task at hand. The posture of the case at its various levels, including this level, cries out for remedial action with respect to SEAC’s method of preserving testimonial evidence.”

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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