Court of Appeals of Indiana | Opinion 82A01-1409-CT-378 | April 15, 2015 Page 1 of 12

ATTORNEY FOR APPELLANT

Charles L. Berger

Berger & Berger, LLP

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Keith W. Vonderahe

Clay W. Havill

Molly E. Briles

Ziemer Stayman Weitzel & Shoulders, LLP

Evansville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Mike Winters,

Appellant-Plaintiff,

[1] v.

City of Evansville,

[2] Appellee-Defendant

April 15, 2015

Court of Appeals Case No.

82A01-1409-CT-378

Appeal from the Vanderburgh Circuit 

Court

The Honorable David D. Kiely, Judge

Case No. 82C01-1308-CT-410

Crone, Judge.

Case Summary

[3] While working a second job as a school security officer, Corporal Mike 

Winters, a thirty-year veteran of the Evansville Police Department (“EPD”), 

grabbed a sixteen-year-old student’s crotch in an apparently misguided attempt 
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to teach him about the dangers of fighting. The student’s family did not press 

criminal charges but did file an internal affairs complaint against Winters. 

EPD’s chief issued a personnel order finding that Winters committed eight 

violations of EPD’s rules and regulations, suspending him for twenty-one days 

without pay, and recommending his termination. Winters appealed the order 

to the Evansville Police Merit Commission (“the Merit Commission”). After a 

disciplinary hearing, the three-member Merit Commission found that Winters 

committed seven of the eight rule violations, and it voted two to one to affirm

his suspension and terminate his employment with EPD. Winters appealed the 

decision by filing a complaint against the City of Evansville (“City”) in the trial 

court. Both parties moved for summary judgment. The trial court granted the 

City’s motion and denied Winters’s motion.

[4] On appeal, Winters contends that the Merit Commission’s decision is not 

supported by substantial evidence and is arbitrary and capricious, which is 

another way of saying that the decision is patently unreasonable. Winters raises 

three issues: (1) the chief’s motivation for seeking termination was improper; 

(2) the two commissioners who voted in favor of termination based their 

decision on improper considerations; and (3) the punishment is 

disproportionate to the conduct. We resolve these issues as follows: (1) 

because the chief did not participate in the Merit Commission’s decision to 

terminate Winters, his motivation for seeking termination is irrelevant; (2) the 

commissioners did not base their decision on improper considerations; and (3) 

the Merit Commission’s decision to terminate Winters for his unjustified and 
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unprovoked grabbing of the student’s crotch is supported by substantial 

evidence and is not arbitrary and capricious, or patently unreasonable. 

Therefore, we affirm.

Facts and Procedural History1

[5] The relevant facts are undisputed. As of May 16, 2013, Winters had been 

employed as an EPD officer for thirty years. Winters had a second job as a 

security officer for the Evansville Vanderburgh School Corporation (“EVSC”) 

at its Academy for Innovative Studies (“AIS”), which serves students who had 

behavioral problems in other schools. On that date, Winters was working at 

AIS in full police uniform when he heard loud noises coming from a classroom 

in which approximately five students were serving in-school suspension. 

Winters entered the classroom and told the students to calm down and take 

their seats, which they did.

[6] The students started talking about fighting. Winters told them not to fight and 

cautioned them about the consequences of fighting. A sixteen-year-old student, 

Z.P., said that he would fight someone smaller than himself. Winters grabbed 

Z.P.’s crotch and said, “What if someone did this to you?” Appellee’s App. at 

 

1 We held oral argument on March 18, 2015, at DePauw University in Greencastle. We thank the faculty, 

staff, and students for their hospitality, and we thank counsel for their participation.
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344. 2 Z.P. replied, “Dude, you grabbed my balls.” Id. at 26, 344.3 Both Z.P. 

and Winters reported the incident to AIS’s principal, who contacted EVSC’s 

security director, who contacted EPD. The incident was also reported to Z.P.’s 

parents, who declined to press criminal charges but did file an internal affairs 

complaint against Winters.

4

[7] On May 23, 2013, EPD Chief Billy Bolin issued a personnel order finding that 

Winters had committed eight violations of EPD rules and regulations relating 

to upholding and obeying laws, ordinances, and regulations; fostering good 

public relations and maintaining respect for the department; and 

inappropriately touching a juvenile. The order also suspended Winters for 

twenty-one days without pay and recommended that he be terminated from 

EPD. Winters appealed the order to the three-member Merit Commission, 

which held a hearing on July 22, 2013.5 At the conclusion of the hearing, the 

 

2 We appreciate that the City included the entire transcript of the Merit Commission’s hearing in its 

appellee’s appendix, which allowed us to consider the whole picture here. Winters included less than a third 

of the transcript in his appellant’s appendix, and he failed to include a copy of the Merit Commission’s 

decision.

3 Winters’s pedagogical philosophy is best described as, “Cuius testiculos habes, habeas cardia et 

cerebellum.”

4

 Z.P.’s mother testified that she and Z.P.’s father let Z.P. decide whether Winters should be criminally 

charged because Z.P. would be the one to testify at trial. She explained that Z.P. “was not comfortable with 

that, he did not think that he would want to do that, so at that time, we just let that go.” Appellee’s App. at 

87.

5 Under current Indiana law, a police department merit commission must consist of five commissioners, two 

of which are appointed by the governmental unit’s executive, one by the unit’s legislative body, and two by 

the active members of the police department. Ind. Code § 36-8-3.5-6. We presume that the City’s threemember commission was grandfathered under Indiana Code Section 36-8-3.5-1 and that the City’s executive, 

legislative body, and police department members each appointed one member to the commission.
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Merit Commission found that Winters committed seven of the eight alleged 

rule violations and voted two to one to affirm his suspension and terminate his 

employment with EPD. Commission President Adrian Brooks and 

Commissioner John Hegeman voted in favor of suspension and termination; 

Commissioner Mike Cook opined that suspension was “appropriate” but did 

not support termination. Id. at 228. The Merit Commission issued a written 

decision with factual findings consistent with the foregoing.

[8] Winters appealed the Merit Commission’s decision by filing a complaint 

against the City in the trial court pursuant to Indiana Code Section 36-8-3-4(e) 

(“The reasons for the suspension, demotion, or dismissal of a member of the 

police or fire department shall be entered as specific findings of fact upon the 

records of the [Merit Commission]. A member who is suspended for a period 

exceeding five (5) days, demoted, or dismissed may appeal the decision to the 

circuit or superior court of the county in which the unit is located. However, a 

member may not appeal any other decision.”). Both parties moved for 

summary judgment. The trial court denied Winters’s motion and granted the 

City’s motion, finding no genuine issue of material fact and concluding as a 

matter of law that the Merit Commission’s written findings and decision to 

terminate Winters’s employment were based upon substantial evidence, not 

arbitrary or capricious, and “not in violation of any constitutional, statutory or 

legal principle.” Appellant’s App. at 13.

[9] Winters now appeals. Additional facts will be provided as necessary.
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Discussion and Decision

[10] “Judicial review of administrative decisions is very limited.” City of Indianapolis 

v. Woods, 703 N.E.2d 1087, 1090 (Ind. Ct. App. 1998), trans. denied (1999).

Deference is to be given by the reviewing court to the expertise of the 

administrative body. Discretionary decisions of administrative bodies, 

including those of police merit commissions, are entitled to deference 

absent a showing that the decision was arbitrary and capricious, or an 

abuse of discretion, or otherwise not in accordance with law. Further, 

review is limited to determining whether the administrative body 

adhered to proper legal procedure and made a finding based upon 

substantial evidence in accordance with appropriate constitutional and 

statutory provisions. The reviewing court may not substitute its 

judgment for that of the administrative body or modify a penalty 

imposed by that body in a disciplinary action, without a showing that 

such action was arbitrary and capricious.

The challenging party has the burden of proving that an administrative 

action was arbitrary and capricious. An arbitrary and capricious 

decision is one which is patently unreasonable. It is made without 

consideration of the facts and in total disregard of the circumstances 

and lacks any basis which might lead a reasonable person to the same 

conclusion. Substantial evidence is that relevant evidence which a 

reasonable mind might accept as adequate to support a conclusion.

Id. at 1090-91 (citations omitted).

[11] The trial court initially reviewed the Merit Commission’s termination decision.

In order to properly adjudge whether the initial review was erroneous, 

we necessarily look through its decision to consider the validity of the 

Merit [Commission’s] determination. In so doing, we use the same 

standard which was required to be applied in the initial review, as to 

those facts and conclusions addressed by the Merit [Commission].

Id. at 1091 (footnote omitted). “A court reviewing a police officer disciplinary 

action may not judge witness credibility or weigh conflicting evidence in 
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determining whether there was substantial evidence to support the action.” 

Jandura v. Town of Schererville, 937 N.E.2d 814, 819 (Ind. Ct. App. 2010), trans. 

denied (2011).

[12] Winters raises three issues: (1) Chief Bolin’s motivation to seek termination 

was improper; (2) the two commissioners who voted to suspend and terminate 

him improperly based their decision on matters outside the record; and (3) the 

punishment (a twenty-one-day unpaid suspension and termination after thirtyplus years of service) is disproportionate to the conduct (briefly grabbing the 

crotch area of a sixteen-year-old student “to demonstrate what could happen if 

someone attacks you and you are not prepared,” Appellant’s Br. at 5). To put it 

more concisely, Winters contends that the Merit Commission’s decision is 

arbitrary and capricious and not supported by substantial evidence.6

Section 1 – Chief Bolin’s motivation to seek Winters’s 

termination is irrelevant because he did not participate in the 

ultimate disciplinary decisionmaking.

[13] Regarding Chief Bolin, Winters complains that his recommendation for 

termination was based on “a prior incident in which his department’s public 

information officer made public statements against the Evansville Vanderburgh 

School Corporation for their failure to notify the Evansville Police Department 

 

6

 Winters also suggests a due process argument, which is essentially a claim that the decision is not 

supported by substantial evidence and was based on improper considerations. We address his argument in 

that context.
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of a sexual child predator,” and thus “he had other pressures playing upon 

him.” Appellant’s Br. at 7. We note, however, that Chief Bolin did not 

participate in the ultimate decision to terminate Winters’s employment, and 

therefore his motivation for seeking termination is irrelevant. See Jandura, 937 

N.E.2d at 819-20 (finding suspended officer’s claims regarding chief’s “alleged 

political motivations” irrelevant: “Although Chief Dowling initiated the 

disciplinary action, it was the Board commissioners who ultimately decided 

whether and how severely to discipline Jandura. Even if Chief Dowling was 

motivated by political considerations to file the disciplinary charge against 

Jandura, he was not the ultimate decisionmaker; the Board commissioners 

were. Indeed, we assume that one of the primary statutory purposes for the 

independent Board’s very existence is to remove the discipline of police officers 

from the ‘politics’ of the stationhouse.”).7

Section 2 – The commissioners did not base their decision on 

improper considerations.

[14] Winters takes issue with the following statement from Commissioner Hegeman:

I’ve been concerned throughout the hearing with the testimony from 

witnesses in support of Corporal Winters and Corporal Winters 

himself talking about, as counsel for the department mentioned, “these 

kids”. It was almost as if because these children are struggling and 

they’re at the AIS facility, that somehow they’re not entitled to be 

 

7

 Winters further complains that Chief Bolin “only had two and one-half (2 1⁄2) years of supervisory 

experience and never directly supervised” him. Appellant’s Br. at 6. These facts are also irrelevant to the 

Merit Commission’s decision.
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treated in the same way that children at Bosse, Memorial, Mater Dei, 

North, Central are treated or supposed to be treated.

Appellant’s Br. at 17 (quoting Appellant’s App. at 78). Winters argues that 

“[t]his statement clearly reflects bias and a lack of realization that a school for 

students who are unable to act as normal, properly engaged students are not the 

same as students that go to the Catholic or public high schools of the City of 

Evansville.” Id. at 18.

[15] It is undisputed that when Winters grabbed Z.P.’s crotch, Z.P. was not being 

disruptive and was not presenting a threat to him. In fact, counsel for Winters 

conceded at oral argument that “these kids” had the same right to be free from 

unwarranted touching as any other kids The nature of the school could, but in 

this instance did not, create a threatening environment warranting Winters’s 

conduct. Therefore, we find nothing wrong with Commissioner Hegeman’s 

remarks.

[16] Winters also takes issue with Commission President Brooks, who, according to 

Winters, “compared the duties of Corporal Winters to himself, a minister, to 

what Mr. Brooks does at church as opposed to specialized security work at a 

school requiring armed, on-duty police officers patrolling its halls in order for it 

to operate on a daily basis.” Id. at 10. We presume that Winters refers to the 

following remarks by President Brooks: “I am in my 33rd year of ministry. If I 

were to do that tomorrow, I would be dismissed, and so would anyone else. If 

you did it at a bank, someone within a bank inappropriately did that, they 

would be terminated.” Appellant’s App. at 79. Winters contends that “[w]hat 
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is appropriate for a minister on a Sunday is absolutely no reality or reference to 

what is appropriate for security personnel at an education facility which cannot 

operate without a police presence.” Appellant’s Br. at 10. 

[17] President Brooks was simply commenting on the impropriety of such conduct 

in most circumstances, and this did not constitute impermissible bias. An 

unprovoked and unjustified grabbing of another person’s genital area would be

extremely inappropriate in any situation and would subject the assailant to 

severe discipline and criminal charges. See Ind. Code § 35-42-2-1 (a person who 

knowingly or intentionally touches another person in a rude, insolent, or angry 

manner commits battery, a class B misdemeanor).

Section 3 – The decision to terminate Winters for grabbing 

Z.P.’s crotch is supported by substantial evidence and is not 

arbitrary and capricious.

[18] Finally, as for the proportionality of the punishment, Winters asserts that this 

“was a one-time event where no harm occurred to anyone” and points out that 

several AIS employees and fellow officers testified on his behalf and disagreed 

with the proposed discipline based on his character and service. Id. at 15.8 

 

8

 In his brief, Winters asserts that he “had no disciplinary record.” Appellant’s Br. at 5 (citing Appellant’s 

App. at 35, 77). The cited pages do not support this assertion, and the City observes that the record is silent 

regarding Winters’s disciplinary history. The City then makes its own extra-record assertion that Winters 

“received at least two (2) written reprimands and was suspended from duty on at least four (4) separate 

occasions during which [he] was suspended without pay for a total of thirteen (13) days.” Appellee’s Br. at 

11. Two wrongs do not make a right here. We are unpersuaded by the City’s suggestion that it is entitled to 

relief under Indiana Appellate Rule 66(E) (“The Court may assess damages if an appeal, petition, or motion, 

or response, is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include 

attorneys’ fees.”).
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Although no evidence was presented regarding whether Z.P. suffered physical 

or psychological harm, it is undisputed that Winters abruptly grabbed his

genital area without provocation. Z.P. was not being disruptive and never 

presented a threat to Winters. At a minimum, such a touching would be 

distressing to a reasonable person and could be grounds for criminal charges. 

We agree with the City that Winters’s grabbing of Z.P.’s crotch area “bears 

directly on his qualifications as an officer and the discharge of his duties.” 

Appellee’s Br. at 15. Indeed, Winters does not challenge the Merit 

Commission’s determination that he committed seven violations of EPD rules 

and regulations.

[19] The amount of evidence regarding the incident for which Winters was 

disciplined is relatively small, but it is undisputed and sufficiently egregious that 

a reasonable mind might accept it as adequate to support a conclusion that 

termination of Winters’s employment was the appropriate discipline for his 

conduct. In other words, we conclude that the Merit Commission’s decision is 

supported by substantial evidence.

[20] We also conclude that the decision is not arbitrary and capricious. “The 

discipline of police officers is within the province of the executive branch of 

government, not the judicial branch. For this reason, we will not substitute our 

judgment for that of the administrative body when no compelling circumstances 

are present.” McDaniel v. City of Evansville, 604 N.E.2d 1223, 1225 (Ind. Ct. 

App. 1992) (citation, quotation marks, and brackets omitted), trans. denied

(1993). The legislature established merit commissions to permit lay people to 
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make determinations such as these dealing with police discipline. The Merit 

Commission, whose members were selected by the City’s governing bodies and 

police department pursuant to our legislature’s directive, relied on its expertise 

in considering the facts and circumstances before it and exercised its 

considerable discretion in determining the proper consequences for Winters’s 

actions in his part-time job as a school security officer. We cannot say that its 

decision to terminate Winters for grabbing a teenage student’s crotch is patently 

unreasonable. Therefore, we affirm.

[21] Affirmed.

Robb, J., and Bradford, J., concur.