Court of Appeals of Indiana | Memorandum Decision 18A-MI-1358 | December 14, 2018 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Jeffrey S. McQuary

TOMPKINS LAW

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

William W. Barrett

Daniel J. Layden

WILLIAMS BARRETT &

WILKOWSKI, LLP

Greenwood, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Bryan Burton,

Appellant-Petitioner,

v.

City of Franklin,

Appellee-Respondent.

December 14, 2018

Court of Appeals Case No.

18A-MI-1358

Appeal from the Johnson Superior 

Court

The Honorable Marla K. Clark, 

Judge

Trial Court Cause No.

41D04-1705-MI-106

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-1358 | December 14, 2018 Page 2 of 10

Case Summary

[1] City of Franklin Chief of Police Tim O’Sullivan (“Chief O’Sullivan”) 

recommended the termination of Bryan Burton (“Burton”) from the City of 

Franklin police force following Burton’s arrest for domestic violence. The 

Franklin Police Merit Commission (“the Commission”) conducted a hearing 

and terminated Burton’s employment. The termination decision was affirmed 

by the trial court and Burton now appeals. We affirm.

Issues

[2] Burton presents two consolidated and restated issues for our review:

I. Whether the termination decision is reversible because 

Burton was deprived of procedural due process; and

II. Whether the termination decision is unsupported by 

substantial evidence.

Facts and Procedural History

[3] On October 23, 2016, Burton’s fourteen-year-old stepson called 9-1-1 and 

reported that Burton and his wife, Jordan Burton (“Jordan”), were arguing 

about their youngest child and that, during the argument, Burton had grabbed 

Jordan’s arm. Franklin Police Officers Jason Hyneman, Bryan Goldfarb, and 

Sergeant Lucas responded. Jordan appeared to be upset and displayed her arm, 

which had three lineal red lines on it. She reported that Burton had grabbed 

her. She also expressed some concern about bias among Burton’s fellow police 
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officers; in response, the supervising officer made the decision to turn the 

investigation over to the Johnson County Sheriff’s Department.

[4] Sheriff’s Deputy Evan Preston arrived on the scene shortly thereafter and began 

to interview the Burtons and their teenaged children. He observed an injury to 

Jordan’s arm. Burton denied having grabbed Jordan. One of the teenagers 

reported that Burton had grabbed Jordan and interfered with the operation of 

her vehicle. Another teenager reported that Jordan had struck him in the face. 

Both Jordan and Burton were arrested.1

[5] That same evening, Chief O’Sullivan was informed about Burton’s arrest. On 

October 24, 2016, Chief O’Sullivan met with Burton and issued him a five-day 

suspension letter. On October 25, 2016, Chief O’Sullivan preferred charges 

against Burton, alleging that he had engaged in conduct unbecoming an officer 

and conduct injurious to the public peace and welfare. The first charge was 

related to the conduct underlying the arrest for felony battery and the second 

charge was related to Burton’s alleged untruthfulness on October 19, 2016, 

when discussing the state of his marriage in a conference with Chief O’Sullivan.

[6] At Burton’s request, the Commission conducted an evidentiary hearing on 

April 19, 2017. The Commission found that Burton had engaged in both 

unbecoming and injurious conduct; it approved Chief O’Sullivan’s 

recommendation that Burton’s employment be terminated. Burton sought 

 

1 Ultimately, a special prosecutor declined to bring criminal charges against either of the Burtons.
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judicial review of the disciplinary decision, pursuant to Indiana Code Section 4-

21.5-1-1. On March 7, 2018, the trial court heard argument of counsel. On 

May 15, 2018, the trial court issued its decision affirming the Commission’s 

disciplinary decision. Burton now appeals. 

Discussion and Decision

Standard of Review

[7] Indiana Code Section 36-8-3.5-17(b) provides in relevant part that a police 

department member may be disciplined if “the commission finds the member 

guilty of a breach of discipline, including: ... (G) conduct injurious to the public 

peace or welfare; [or] (H) conduct unbecoming a member[.]” The discipline 

may include suspension, demotion, or dismissal. See id. Pursuant to subsection 

(h), the misconduct is to be established by a preponderance of the evidence. A 

member who is aggrieved by a decision of the commission to dismiss him may 

appeal to the circuit or superior court of the county in which the unit is located. 

I.C. § 36-8-3.5-18.

[8] Our review of an administrative action is very limited. Gray v. Cty. of Starke, 82 

N.E.3d 913, 917 (Ind. Ct. App. 2017). We give deference to the expertise of the

administrative body, which includes a police merit commission. Id. We will 

not reverse its discretionary decision absent a showing that the decision was 

arbitrary and capricious, an abuse of discretion, or otherwise not in accordance 

with the law. Id. Our review is limited to determining whether the 

administrative body adhered to proper legal procedure and made a finding 
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based upon substantial evidence in accordance with appropriate constitutional 

and statutory provisions. Id. We will not substitute our judgment for that of 

the administrative body, and we will not modify a penalty imposed in a 

disciplinary action, absent a showing that the action was arbitrary and 

capricious. Id.

[9] “An arbitrary and capricious decision, which the challenging party bears the 

burden of proving, is a decision which is willful and unreasonable, made 

without any consideration of the facts and in total disregard of the 

circumstances, and lacks any basis which might lead a reasonable and honest 

person to the same decision.” Bird v. Cty. of Allen, 639 N.E.2d 320, 328 (Ind. Ct. 

App. 1994). Substantial evidence is such relevant evidence as a reasonable 

mind might accept as being adequate to support a conclusion. Id. We will not 

reweigh the evidence upon review. Id.

[10] In addition, “[t]he 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.” Winters v. City of Evansville, 29 N.E.3d 

773, 781 (Ind. Ct. App. 2015) (citation omitted).

Procedural Due Process

[11] At the hearing, Burton argued that Chief O’Sullivan failed to adequately 

investigate the domestic incident before preferring charges. Specifically, he 

contended that Chief O’Sullivan should have initiated an internal investigation 
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independent of that undertaken by the Johnson County Sheriff’s Department. 

In his deposition, Chief O’Sullivan had agreed that, although he had the power 

to convene an internal review panel, he had declined to do so. Having 

knowledge of Burton’s disciplinary history, Chief O’Sullivan opined that “the 

arrest was enough.” (App. Vol. II, pg. 25.) 

[12] Burton now asserts that Chief O’Sullivan “violated [I.C. § 36-8-3.5-14] that 

required him to conduct an investigation before preferring charges.” Brief of 

Appellant at 20. Burton directs our attention to the language of Indiana Code 

Section 36-8-3.5-14(c):

If the chief of the department, after an investigation within the 

department, prefers charges against a member of the department 

for an alleged breach of discipline ... a hearing shall be 

conducted upon the request of the member.

With emphasis upon the phrase “after an investigation within the department,” 

Burton argues that the disciplinary statute mandates an internal departmental 

investigation before preferring charges. The interpretation of a statute is purely 

a question of law. B.K.C. v. State, 781 N.E.2d 1157, 1167 (Ind. Ct. App. 2003). 

Our purpose is to ascertain and give effect to the intent of the legislature and if 

the text is clear and unambiguous, we merely apply the plain meaning of the 

statute. Id. We will interpret ambiguous text using established principles of 

statutory construction; that is, we will construe the statute in accordance with 

its purpose and the statutory scheme of which it is a part. Id. We presume that 
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the legislature intends for us to apply language in a logical manner consistent 

with the statute’s underlying policy and goals. Id.

[13] The City of Franklin contends that the purpose and objective of subsection (c) is 

that the accused officer possesses the right to a hearing, upon request. We 

agree. Although the language contemplates that an investigation precedes the 

preferring of charges, no means or manner is described and the statutory 

objective – right to a hearing – is not conditioned upon a departmental 

investigation. Moreover, the Legislature could not logically have intended to 

prevent a department from deferring investigation to another department in the 

case of a potential conflict of interest.

[14] That said, the record reveals that Chief O’Sullivan did not prefer charges in a 

vacuum. He received and reviewed the reports of the three first-responding 

City of Franklin police officers. He also reviewed the 9-1-1 dispatcher’s 

comments. He conferred with his deputy chief of police and with members of 

the Johnson County Sheriff’s Department, who had taken over the 

investigation. In sum, charges were not preferred absent investigation. 

[15] Burton suggests that, had Chief O’Sullivan personally and adequately 

investigated, he would have learned that no criminal charges were filed against 

Burton in connection with the alleged battery upon Jordan. But Chief 

O’Sullivan’s ability to pursue disciplinary action was not contingent upon the 

filing of criminal charges by the Johnson County Prosecutor. We have 

observed, “[f]rom the very nature of a policeman’s duties, his conduct in the 
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community on and off duty must be above reproach.” Pope v. Marion Cty. 

Sheriff’s Merit Board, 157 Ind. App. 636, 301 N.E.2d 386, 391 (1973). Consistent 

therewith, Indiana Code Section 36-8-3.5-17 does not require the pursuit of 

criminal charges to support the imposition of police discipline.

[16] Burton also argues that the Commission president, John Shafer (“Shafer”), 

“violated due process by not recusing himself despite bias against Burton.” 

Appellant’s Brief at 24. Shafer acknowledged that he had, in disciplinary 

proceedings conducted in 2015, asked Burton whether he had a drug or alcohol 

problem. Those disciplinary proceedings did not involve an allegation of

substance abuse. Shafer did not recall the exact words he used, but he did recall 

his motivation as a desire to assist Burton. Burton argues that Shafer 

demonstrated a bias against Burton, that is, a long-standing belief that Burton 

was unfit to serve as a police officer.

[17] “Due process in administrative hearings requires that all hearings be conducted 

before an impartial body.” Ripley Cty. Bd. of Zoning v. Rumpke of Indiana, 663 

N.E.2d 198, 209 (Ind. Ct. App. 1996). This dictates that agency members may

not be swayed in their decisions by preconceived biases and prejudices. Id. We 

presume, however, that administrative agencies will act properly with or 

without recusal of allegedly biased members. Id. A mere allegation of bias is 

insufficient; a reviewing court will not interfere with the administrative process 

absent a demonstration of actual bias. New Trend Beauty Sch., Inc. v. Indiana 

State Bd. of Beauty Culturist Examiners, 518 N.E.2d 1101, 1105 (Ind. Ct. App. 

1988).
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[18] As Burton observes, in Ripley, a panel of this Court did not find clear error in 

the trial court’s determination that a member of an administrative body was 

biased where he had made comments highly critical of a person who later 

appeared before that board. 663 N.E.2d at 209. There, a board of zoning 

appeals member owned land near the petitioner’s landfill, and had complained 

about the landfill operations, had led an effort to enforce a 300-foot setback 

against the petitioner, and had made comments including that “if he could run 

Rumpke out of Ripley County he would.” Id. at 210. The instant 

circumstances are not akin to those in Ripley. Shafer had interjected into prior 

disciplinary proceedings the idea that Burton might benefit from substance 

abuse therapy. Although the offer of assistance may have been misguided, 

there is no indication that Shafer had personal animus against Burton or a 

potential for personal gain. Burton has not shown that he was deprived of a 

hearing before an impartial body.

 Substantial Evidence

[19] At the administrative hearing, photographic and testimonial evidence was 

introduced regarding Jordan’s injuries. Burton does not challenge the 

Commission’s finding that, more probably than not, Burton touched his wife on 

October 23, 2016, in a rude, insolent or angry manner, and caused injury. 

However, he argues at some length that he was not deceptive in communicating 

with Chief O’Sullivan on October 19, 2016, regarding the state of the Burton 

marriage.
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[20] The Commission heard evidence suggesting that Burton’s marriage had been 

troubled for some time and he had complained at work. However, on October 

19, 2016, he assured Chief O’Sullivan that things were “perfect, great, or 

couldn’t be better.” (App. Vol. III, pg. 40.) This reassurance deprived the chief 

of the opportunity to refer Burton to an employee assistance program. A few 

days later, after the domestic incident, Burton wrote out a six-page statement in 

which he acknowledged that he and Jordan had experienced marital difficulties 

over some time. His current insistence that marriages have good days and bad 

days and his comments should refer to an isolated time frame, a good day, is a 

request to reweigh evidence. We have already observed, substantial evidence is 

such relevant evidence as a reasonable mind might accept as being adequate to 

support a conclusion, and we will not reweigh evidence upon review. Bird, 639 

N.E.2d at 328. The Commission did not enter an arbitrary and capricious 

decision unsupported by substantial evidence. 

Conclusion

[21] Burton was not denied procedural due process. Substantial evidence supports 

the Commission’s findings. The trial court properly declined to overturn the 

disciplinary decision of the Commission.

[22] Affirmed.

Bradford, J., and Brown, J., concur.