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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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