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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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