Court of Appeals of Indiana | Opinion 49A05-1510-MI-1765 | July 13, 2016 Page 1 of 17

ATTORNEY FOR APPELLANT

Lynne D. Hammer

Office of Corporation Counsel

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Robert P. Thomas

Thomas & Nugent

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

City of Indianapolis,

Appellant-Defendant,

v.

Bradford Bentley,

Appellee-Plaintiff

July 13, 2016

Court of Appeals Case No.

49A05-1510-MI-1765

Appeal from the Marion Superior 

Court

The Honorable Bruce E. Petit, 

Special Judge

Trial Court Cause No.

49D01-1409-MI-30056

Baker, Judge.
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[1] An Indianapolis Police sergeant was demoted to patrol officer. He sought 

judicial review of the demotion. During the litigation, the City of Indianapolis 

(the City) filed the required transcript over six months late and its summary 

judgment response and designated evidence over four months late. The trial 

court struck all of the untimely filed documents and found in favor of the 

officer. The City now appeals. Finding no error, we affirm.

Facts

[2] Sometime in 2013 or 2014, Indianapolis Police Sergeant Brad Bentley was 

demoted to patrol officer. On August 26, 2014, the Indianapolis Metropolitan 

Police Department Civilian Police Merit Board (Merit Board) upheld the 

demotion. Sergeant Bentley filed a petition for judicial review on September 

10, 2014, and then filed a motion for summary judgment on November 24, 

2014. The City did not file the transcript from the Merit Board hearing within 

thirty days of receiving the sergeant’s summons, as required by Indianapolis 

Code section 279-237(o).

[3] Sergeant Bentley’s wife works for the Marion County Superior Court. As a 

result, the first two trial judges recused themselves. A special judge from 

outside of Marion County was appointed on February 6, 2015. On April 8, 

2015, the trial court afforded the City twenty-one additional days to file the sixmonths-overdue transcript from the Merit Board hearing, though the trial court 

did not explicitly state that the transcript would be accepted if filed by the 

twenty-one-day deadline. The City filed the transcript on April 27, 2015, but 
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the trial court later struck it from the record as untimely filed. On June 16, 

2015, the City filed its response to Sergeant Bentley’s summary judgment 

motion, but the trial court struck the City’s pleading from the record.1 

Following an argument on the pending summary judgment motion, on October 

9, 2015, the trial court found in favor of Sergeant Bentley. In pertinent part, the 

trial court found as follows:

5. A second issue addressed at the Pre-Trial Conference held 

April 8, 2015, concerned the Defendant’s failure to file a 

transcript of the Merit Board proceedings as required 

pursuant to Municipal Code of Indianapolis, Section 279-

237. This failure was one of the grounds upon which 

Plaintiff was seeking Summary Judgment. The Court 

Ordered Defendant to file the transcript within twenty one 

(21) days of the Pre-Trial Order and the Defendant did file 

that transcript on April 27, 2015. It should be noted that 

the Court did not grant leave or approve the late filing of 

this transcript in its Order but merely set a deadline to file 

that transcript if the Defendant was going to do so. It was 

the Court’s intent to address the propriety of a late filing 

and Plaintiff’s remedies, if any, at a later time.

***

8. . . . Plaintiff contends that because Defendant failed to file 

the transcript of the Merit Board proceedings as required 

by the Code Section 279-237, Plaintiff is entitled to 

Summary Judgment as a matter of law. . . . . Defendant 

did file the transcript on April 27, 2015, and now argues 

 

1 The City’s summary judgment response and designated evidence were filed on June 16, 2015, over four 

months past the court-imposed deadline of February 9, 2015.
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that any delay of filing that transcript was de minimis or 

non-prejudicial to the Plaintiff and that Defendant has 

now substantially complied with the Code’s requirements. 

Plaintiff requests that the Court vacate its Order allowing 

Defendant to file a transcript outside the thirty (30) day 

time limit required by the code and that the Court not 

consider same. Defendant responds that the Indianapolis 

Municipal Code does not set forth exclusion of the 

transcript as a remedy for failure to comply with the time 

limits set forth in the Code and that the Code is 

inconsistent with the Indiana Administrative Orders and 

Procedure Act. . . . 

9. The Court rejects Defendant’s argument that because no 

remedy is set forth in the Code, then Plaintiff is not 

entitled to a remedy for Defendant’s non-compliance. To 

rule otherwise would render the Code unenforceable. . . . 

There’s no question in this Court’s mind that had the 

Plaintiff not complied with the time limits set forth for 

filing his Appeal, his Appeal would be subject to a 

summary denial. . . . The logical interpretation of the Code 

in effectuating its purpose of providing Plaintiff with a 

timely means of appeal, is to not allow a late filing of the 

transcript without a court order extending the time limits 

for good cause or that the reviewing court is granted 

discretion with regard to remedies imposed when the Code 

is violated. . . . The Court hereby finds that the transcript . 

. . was not timely filed and Orders it stricken from the 

record.

10. . . . [B]ecause the untimely filed transcript has been 

stricken from the record, the Court cannot and does not 

find substantial evidence to support the [Merit] Board’s 

decision. Further, . . . the Court is unable to make a 

determination whether the [Merit] Board’s decision was 

arbitrarily [sic] and capricious or an abuse of discretion. 
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Although the burden of proof to show the decision was 

arbitrary and capricious generally lies with the challenging

party, . . . the Court’s inability to make that determination 

and a lack of evidence thereon, is completely through the 

fault of the Defendant, not Plaintiff, and Defendant should 

not be allowed to benefit from its failure to comply with 

the Code’s requirements. The Court finds no basis to 

uphold the Merit Board’s decision previously entered.

Appellant’s App. p. 5-8 (internal citations omitted). The trial court reversed the 

Merit Board’s ruling and ordered the Merit Board to restore Sergeant Bentley to 

the rank of sergeant with retroactive back pay. The City now appeals.

Discussion and Decision

I. Standard of Review

[4] When we review the decision of an administrative agency, we are bound by the 

same standard as the trial court. Parker v. Ind. State Fair Bd., 992 N.E.2d 969, 

976 (Ind. Ct. App. 2013). We do not try the case de novo and do not substitute 

our judgment for that of the agency. Id. Pursuant to the Administrative Orders 

and Procedures Act (AOPA), we will reverse the administrative decision only if 

it is (1) arbitrary, capricious, or otherwise not in accordance with law; (2) 

contrary to a constitutional right, power, privilege, or immunity; (3) in excess of 

statutory jurisdiction, authority, or limitations, or short of statutory right; (4) 

without observance of procedure required by law; or (5) unsupported by 

substantial evidence. Ind. Code § 4–21.5–5–14. Although an appellate court 

grants deference to an administrative agency’s findings of fact, no such 

deference is accorded to its conclusions of law. Parker, 992 N.E.2d at 976. The 
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burden of demonstrating the invalidity of the agency action is on the party who 

asserts the invalidity. Id. In this case, the trial court disposed of the petition by 

granting summary judgment in favor of Sergeant Bentley. Summary judgment 

is proper where no genuine issue of material fact remains and the movant is 

entitled to judgment as a matter of law. Ind. Trial Rule 56(C).

II. Untimely Transcript

[5] The City argues that the trial court erred by striking the untimely-filed 

transcript. Our starting point in analyzing this argument must be the City’s 

own ordinance, which provides as follows:

Any officer who disagrees with the findings of the merit board 

shall have the right to file a verified petition to the Superior or 

Circuit Court of Marion County for a review of the decision. 

The petition for review must be filed within thirty (30) calendar 

days after the written decision of the board. The City of 

Indianapolis shall be the sole defendant in the petition for review. 

Within thirty (30) calendar days after receipt of a summons, the 

city shall cause the merit board to file a true and complete copy 

of the transcript of the hearing with the court. The court, without 

jury, shall review the record and render its decision as in other 

administrative reviews. 

Indianapolis Code § 279-237(o) (“the Ordinance”). Initially, we observe that it 

is atypical for the respondent, rather than the petitioner, to bear the cost and 

responsibility of preparation and filing of the transcript of the administrative 

proceeding. But the City drafts and passes its own ordinances, and this is how 

it has chosen to structure the review of Merit Board decisions.
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[6] Having decided to structure its procedure in this fashion, the City is bound to 

comply with it. The plain language of the Ordinance requires that the City file 

the transcript of the Merit Board hearing within thirty days of receipt of the 

summons. In this case, the thirty-day deadline passed on October 16, 2014. 

The City did not file the transcript until April 27, 2015—193 days late. And 

never once, during the course of those six months, did the City request an 

extension of time or in any way indicate that it was experiencing difficulty with 

preparation of the transcript. This tardiness was not de minimis; it was 

extreme. And filing a required document over six months late is not substantial 

compliance, as the City argues. The trial court did not err by concluding that 

the City did not meet the procedural burden imposed by the Ordinance.

[7] Next, the City argues that because the Ordinance does not set forth a 

consequence for an untimely filing, there should be no consequence 

whatsoever. We disagree, as reading the Ordinance in this way would make 

the thirty-day requirement entirely superfluous.2 Furthermore, it would enable 

the City to infinitely delay all petitions for judicial review of Merit Board 

decisions, which is a result not intended by the ordinance and which we cannot 

countenance. In our view, the absence of a prescribed consequence merely 

means that the consequence is left for the trial court to determine. For example, 

the trial court could order the City to pay the attorney fees of the petitioner for 

 

2 We also note our certainty that if Sergeant Bentley had filed his petition past the thirty-day deadline 

imposed by the Ordinance, the City would have sought dismissal even though the Ordinance does not specify 

a remedy for a petitioner’s tardiness.
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the period of delay. We acknowledge that striking the transcript is an extreme 

remedy. But as noted above, in this particular case, the City’s delay was 

egregious. Therefore, we cannot say that the trial court erred by striking the 

transcript that was filed over six months after the deadline had passed.

[8] After the trial court struck the untimely filed transcript and the City’s untimely 

filed summary judgment brief and designated evidence, it was left only with 

Sergeant Bentley’s summary judgment motion and designated evidence. 

Sergeant Bentley still bore the burden, as the petitioner and summary judgment 

movant, of establishing that he was entitled to relief. Included among his 

designated evidence supporting summary judgment was Sergeant Bentley’s 

verified petition for review of the Merit Board’s decision. Appellant’s App. p. 

12. In this document, which was signed under oath by Sergeant Bentley and 

notarized, id. at 28, Sergeant Bentley stated that on February 10, 2014, the 

Merit Board adopted the recommendation that he be demoted from sergeant to 

patrolman, id. at 12. As noted above, the AOPA provides that an 

administrative decision shall be reversed if, among other things, it is 

unsupported by substantial evidence. I.C. § 4-21.5-5-14(d)(5). In this case, with 

no transcript and no evidence designated by the City in support of the 

demotion, there is no evidence supporting the demotion. Therefore, we find 

that the trial court did not err by finding that Sergeant Bentley had met his 

burden of establishing that he is entitled to relief as a matter of law and 

reversing the Merit Board’s decision.
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III. Remedy

[9] The City argues that even if the trial court properly reversed the Merit Board’s 

determination, the trial court’s remedy—ordering the reinstatement of Sergeant 

Bentley’s former rank as well as back pay—was improper. According to the 

City, the only thing that the trial court was permitted to do was to remand to 

the Merit Board for a new hearing. Under the circumstances presented by this 

case, we disagree.

[10] We acknowledge the cases cited by the City holding that, following a reversal of 

the decision of an administrative agency, the trial court was required to remand 

to the agency for reconsideration. Those cases, however, are readily 

distinguishable from the case before us. In Hamilton County Department of Public 

Welfare v. Smith, this Court affirmed the trial court’s conclusion that the 

Department of Public Welfare had made an error of analysis in denying Smith 

welfare benefits. 567 N.E.2d 165, 170-71 (Ind. Ct. App. 1991). We found, 

however, that the appropriate remedy was to remand to the agency so that it 

could further consider Smith’s application in light of this Court’s analysis. Id.; 

see also Ind. Alcoholic Beverage Comm’n v. Edwards, 659 N.E.2d 631, 636 (Ind. Ct. 

App. 1995) (holding that the trial court had properly reversed the denial of an 

alcoholic beverage permit but had improperly ordered the permit awarded; 

instead, proper remedy was remand to agency for reconsideration in light of 

appellate opinion).
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[11] When an agency errs in its analysis, it makes sense to provide an opportunity 

for the agency to reconsider its decision by applying the correct analysis. Here, 

however, the trial court did not find that the Merit Board erred in its analysis. 

Instead, it found that there was no evidence supporting the Merit Board’s 

decision. To remand to the Merit Board under these circumstances would, in 

essence, offer the City a chance of a second bite of the apple. Perhaps, the 

second time, it could manage to file its documents in a timely fashion. But to 

afford the City this chance would be unfair and would also render its own 

ordinance entirely meaningless. We do not believe that the City-County 

Council intended such a result when it passed the Ordinance, and we decline to 

read it in such a fashion. In this case, the only fair remedy is the one ordered by 

the trial court—reinstatement to the rank of sergeant and provision of back pay. 

In sum, we find no error in the remedy fashioned by the trial court.

[12] The judgment of the trial court is affirmed.

Brown, J., concurs.

May, J., concurs in result with a separate opinion.
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I N T H E

COURT OF APPEALS OF INDIANA

City of Indianapolis,

Appellant-Defendant,

v.

Bradford Bentley,

Appellee-Plaintiff.

Court of Appeals Case No.

49A05-1510-MI-1765

May, Judge, concurring in result with opinion.

[13] I agree that we must affirm the trial court’s decision to reinstate Officer Bentley 

with back pay because the City filed its transcript too late. However, I write 

separately to explain why I believe our resolution of this matter of first 

impression is correct. 

[14] The City cited two decisions in support of its argument the trial court’s order of 

reinstatement with back pay was error: Hamilton Cnty Dep’t of Pub. Welfare v. 

Smith, 567 N.E.2d 165, 171 (Ind. Ct. App. 1991), and Ind. Alcoholic Beverage 

Comm’n v. Edwards, 659 N.E.2d 631 (Ind. Ct. App. 1995). In Smith, we held:
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When a court determines that an administrative agency has made 

an error, the court may reverse the agency decision and remand 

for further consideration. The reviewing court is without power 

to compel any action by the administrative agency; the court only 

has the power to order the agency to rehear the case. 

567 N.E.2d at 171 (internal citations omitted). That suggests the trial court did 

not have the authority to reinstate Bentley and order back pay. Rather, 

application of that holding would permit the trial court only to reverse the 

agency’s decision and remand for further agency consideration. 

[15] This rule was further explained in Edwards:

The express intent of this part of the statute [the precursor to Ind. 

Code § 4-21.5-5-15] is to limit the reviewing court’s authority to 

remand the case to the administrative agency for further 

proceedings after a proper determination that the agency’s 

decision was contrary to law. If upon remand the agency 

unlawfully withholds or unreasonably delays the redetermination 

of the case, then the trial court may compel agency action by 

direct order. Otherwise the reviewing court does not have power 

to compel agency action as part of the initial review function. It 

may only remand the cause for rehearing.

Remanding [the case] to the administrative body gives it an 

opportunity to correct the irregularities in its proceedings as 

determined by the court. At the same time it avoids the court’s 

encroachment upon [the agency’s] administrative functions. 

There is no more reason for assuming that the commission will 

disregard the law as fixed by this reviewing court than that a 

lower trial court will do so.

659 N.E.2d at 636 (internal citations omitted). 
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[16] The requirement a trial court remand an issue to an administrative agency in 

lieu of taking independent action is also found in federal law. See Fed. Power 

Comm’n v. Transcon Gas Pipe Line Corp., 423 U.S. 326, 331 (1976) (“If the 

decision of the agency ‘is not sustainable on the administrative record made, 

then the . . . decision must be vacated and the matter remanded . . . for further 

consideration.’”).

[17] The majority finds Smith and Edwards “readily distinguishable” from the facts 

before us. (Slip op. at 9.) The majority correctly characterizes Smith and 

Edwards as applicable to scenarios when “an agency errs in its analysis,” id. at 

10. In this case, by contrast, the “trial court found that there was no evidence 

supporting the Merit Board’s decision.” Id. I do not disagree.

[18] As the majority notes, the ordinance imposing on the City the burden to 

produce the transcript provides:

Any officer who disagrees with the findings of the merit board 

shall have the right to file a verified petition to the Superior or 

Circuit Court of Marion County for a review of the decision. 

The petition for review must be filed within thirty (30) calendar 

days after the written decision of the board. The City of 

Indianapolis shall be the sole defendant in the petition for review. 

Within thirty (30) calendar days after receipt of a summons, the 

city shall cause the merit board to file a true and complete copy 

of the transcript with the court. The court, without jury, shall 

review the record and render its decision as in other 

administrative reviews.
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Indianapolis Code § 279-237(o). The language of the AOPA is different. See 

Ind. Code § 4-21.5-5-13(a) (requiring petitioner to file transcript of proceedings). 

Under AOPA, “[f]ailure to file the record within the time permitted by this 

subsection, including any extension period ordered by the court, is cause for 

dismissal of the petition[.]” Ind. Code § 4-21.5-5-13(b). The majority notes a 

similar sanction could be levied on the City for failure to file a transcript when it 

has the burden to do so. I agree.

[19] Prior to AOPA’s enactment in 1986, Indiana law required the governmental 

body acting as defendant in the appeal of an administrative decision to file a 

transcript of the proceedings. Burns Indiana Statutes Annotated § 48-6105 

(1951) provided: “Within ten (10) days after the service of summons [indicating 

an appeal from the board’s decision] said board shall file in said court a full, 

true and complete transcript of all papers, entries and other parts of the record 

relating to such particular case.” 

[20] Our Indiana Supreme Court interpreted that language in Hansen v. Town of 

Highland, 237 Ind. 516, 524, 147 N.E.2d 221, 225 (1958). Hansen, a police 

officer and Town Marshal appointed by the outgoing town board appealed the 

newly elected board’s decision to relieve him of his duties after the new board 

took office. Section 48-6105, which governed decisions by “boards of 

metropolitan police officers,” id. at 522, 147 N.E.2d at 224, required the board 

to file a transcript within ten days of the date of Hansen’s appeal. Though it is 

not entirely clear from the opinion, it seems that procedure was not followed. 

With regard to the city’s failure to file a transcript, the Court held:
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The duty is placed upon the city in this case to file the transcript -

not the appellant [Hansen]. The city cannot take advantage of its 

own failure to follow a statutory proceeding in regard to 

dismissal. . . . A board or public body may not avoid the 

statutory obligation of furnishing a transcript in such cases by 

failing to file the same within the time directed by the statute, and 

thereby thwart an attempt to appeal from its decision.

Id. at 525, 147 N.E.2d at 226. Similarly, here, the City should not be able to 

thwart Bentley’s attempt to appeal the Merit Board’s decision by not filing the 

record of administrative proceedings. 

[21] In James v. Harvey, 246 Neb. 329, 518 N.W.2d 150 (1994), the Supreme Court 

of Nebraska interpreted Neb. Rev. Stat. § 84-917(4), which, like the 

Indianapolis Ordinance, requires: “Within thirty days after service of the 

petition or within such further time as the court for good cause shown may 

allow, the agency shall prepare and transmit to the court a certified copy of the 

official record of the proceedings had before the agency.” 

[22] The facts of James are similar to those here: James appealed a Department of 

Social Services (DSS) decision to deny her benefits. The DSS was required to 

file the record of the proceedings within thirty days. It did not. Over three 

months later, the DSS filed a motion for extension of time, which the trial court 

granted. When the DSS did not file the record by the extended due date, James

moved for default judgment. The trial court, in its function as reviewer of 

administrative decisions, reversed the DSS’ decision and granted James’ request 

for reimbursement of medical expenses.
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[23] In upholding the trial court’s decision, the Supreme Court of Nebraska stated:

It is the duty of courts to prevent dilatory proceedings in the 

administration of justice. Aetna Cas. & Surety Co. v. Dickinson, 216 

Neb. 660, 345 N.W.2d 8 (1984). In Pressey v. State, 173 Neb. 652, 

114 N.W.2d 518 (1962), we recognized the inherent power of the 

court to dismiss an action for disobedience of a court order. 

However, in this situation it would be inequitable to dismiss the 

case because that would penalize James, the party seeking review 

of the agency’s order. The district court stated at the hearing on 

James’ motion to strike that this was the third or fourth case in 

the prior 3 months in which the filing of the transcript by DSS 

had been a problem. The court found that DSS’ claim of an 

increased workload was not sufficient for the court to make a 

finding that good cause had been shown for an extension.

The transcript consisted of 23 pages of testimony and 21 exhibits 

which total less than 50 pages. DSS provided no rational 

explanation as to why it would take more than 3 months to 

produce the transcript. As the court noted, a sanction which 

would require DSS to pay the costs of preparing the transcript 

would serve no purpose because the agency’s employees prepare 

the transcript and because James was proceeding in forma 

pauperis. The court determined that the only sanction which 

would send a message to DSS concerning its dilatory practice 

was to reverse the agency’s order.

James, 246 Neb. at 333-34, 518 N.W.2d at 153.

[24] I believe the James reasoning supports our departure from the general rule that 

the trial court is required to remand a matter to the administrative agency on 

finding the administrative agency’s decision was not supported by sufficient 

evidence or was contrary to law. Instead, when the governmental agency 
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acting as the defendant does not do what it is required by law to do when an 

individual appeals an administrative board decision, the trial court should have 

authority to levy appropriate sanctions, including ordering entry of a result 

opposite that reached by the administrative board. Therefore, I respectfully 

concur in result.