The Indiana Court of Appeals has reversed summary judgment for a Gary police officer accused of misusing his police privileges to investigate a confidential informant after finding the city’s complaint against the officer was not untimely filed.
The case of City of Gary Police Civil Service Commission v. Raymond Robinson, 45A05-1706-PL-1414, began in September 2012, when FBI agents arrested Gary Police Department Officer David Finley on corruption charges, based in part on tips from a confidential informant. When the informant went into hiding, GPD Officer Raymond Robinson used his credentials to conduct an unauthorized search of local and national law enforcement databases to find the informant.
Robinson was able to locate the phone number of the informant who soon began receiving threatening phone calls. The informant reported the calls, which led to an FBI investigation that uncovered Robinson’s unauthorized search of the databases. Robinson subsequently claimed he had conducted the searches out of curiosity, but the FBI investigation led to the permanent revocation of Robinson’s database access in October 2013. He had already been temporarily transferred out of the Bureau of Uniform Services Division in March 2013.
The city of Gary then filed a complaint against Robinson with the City of Gary Police Civil Service Commission on Jan. 23, 2014 and requested his termination. A hearing officer recommended Robinson’s termination, and the full commission accepted the hearing officer’s report.
Robinson then filed for judicial review in the Lake Superior Court, and the commission responded with a motion to dismiss. The trial court denied that motion, but granted summary judgment to Robinson after finding that the 120-day period for filing the January 2014 complaint – as set forth in Commission Rule of Procedure II(7)(A) – began running when Robinson was transferred in March 2013.
The Indiana Court of Appeals partially upheld that ruling on Tuesday, with Judge Edward Najam first writing the argument the commission made on appeal with regard to the denial of its motion to dismiss had no relationship to the argument it made to the trial court. Waiver notwithstanding, Najam also said the commission’s appellate argument that Robinson bore the burden under the Administrative Orders and Procedures Act to file the commission’s record in the trial court within 30 days of the commission’s decision – which was not done – fails because the AOPA does not apply here.
Najam also said the commission failed to preserve its argument regarding summary judgment evidence for appellate review. The police commission argued the trial court erroneously considered evidence on summary judgment that was not before the commission, but Najam said it waived that argument by failing to object and by affirmatively agreeing with Robinson’s representation of facts to the trial court.
However, the appellate court ultimately overturned the grant of summary judgment to Robinson after finding Rule II(7)(A) holds that alleged misconduct is “discovered” when an allegation is substantiated by an investigation. Here, the FBI investigation substantiated Robinson’s misconduct in October 2013, when his database access was removed, rather than when he was temporarily transferred based on alleged misconduct in March 2013.
Thus, the appellate panel reversed the entry of summary judgment for Robinson and remanded the case for further proceedings.