Board of Public Works and Safety

MINUTES OF THE SPECIAL MEETING BOARD OF PUBLIC WORKS AND SAFETY CITY OF HOBART, LAKE COUNTY, INDIANA SEPTEMBER 17, 2014 Call to Order: Mayor Snedecor called the special meeting of the Board to order at 1:35 p.m. followed by the Pledge of Allegiance. Roll Call: The following members were present: Mayor Snedecor, Mr. Lain and Mr. Ehrhardt. Also present: Hearing Officer Jim Meyer and Clerk-Treasurer Longer. Noted as also present: Attorney Christopher Cooper on behalf of Officer Kirk Homoky; Attorney Dan Whitten and Attorney Ken Elwood on behalf of Hobart Police Chief Zormier; Chief Zormier; and City Attorney Anthony DeBonis. The meeting was also attended and recorded by a Court Reporter, hired by the City and a Videographer, hired by Attorney Cooper, both from Boss Reporters. Mr. Snedecor turned the meeting over to Hearing Officer Meyer. Business of the Hearing: The Matter of Officer Kirk Homoky’s pay status at the request of Chief Zormier. Mr. Meyer asked for opening statements, beginning with representatives of Chief Zormier. Mr. Cooper noted there is a pending motion as to the disqualification of Mayor Snedecor from the proceedings and stated he wanted to raise an issue as to the Open Meetings Act. Mr. Whitten stated there was no problem with resolving the motion as to Mr. Snedecor but any other motions would be inappropriate at this time. Respondent’s Motion for disqualification of Mr. Snedecor: Mr. Meyer asked for arguments on the motion for recusal of Mr. Snedecor. Mr. Cooper reviewed his motion and argued that the Board was not provided with all documents related to this action as the Clerk- Treasurer only provided some of the motions consisting of 35 pages to the Board prior to this hearing but over 35 documents were filed in this case by Mr. Cooper comprising over 161 pages. Mr. Elwood objected, stating the motion filed regarding Mr. Snedecor was filed timely in accordance with the Hearing Officer’s instructions and provided then to the Board, but no documents were attached to that motion as filed and stated no additional documents should be provided to the Board as it relates to this motion as they are past the deadline. Mr. Meyer stated the motion had no other documents attached when filed and sustained the objection. Mr. Cooper argued that anything filed with the Board goes into the record but the Board’s review of documents can be limited to those allowed by the Hearing Officer. Mr. Meyer agreed that the record will contain all documents, but those specific to this hearing were presented to the Board upon his approval, and the motion filed as to the recusal of Mr. Snedecor did not have any documents attached. Mr. Cooper stated he would be leaving for the Board a copy of all the motions and documents he has filed for the record. Mr. Whitten objected to taking up any issue in this case other than the pay status of Officer Homoky which is the reason for this hearing. Mr. Meyer stated both sides agreed to taking up the motion on the recusal of Mr. Snedecor and asked both sides to proceed with arguments on this motion. Board of Works Special Meeting Minutes: September 17, 2014 1 Mr. Cooper reviewed his motion and asked to provide an offer of proof. Mr. Elwood objected stating an offer of proof must be discussed outside the hearing of the Board. Discussion followed with numerous objections to Mr. Cooper attempting to provide information to the Board not contained in the motion. Mr. Meyer warned Mr. Cooper, stating he was out of order in not allowing objections made to be ruled upon before proceeding. Continuing arguments among counsel occurred. Mr. Meyer stated the motion itself did not tie into any specific document that was provided timely, and while Mr. Cooper has a right to make an argument, he could not introduce evidence. Mr. Cooper continued with comments about the relationship of Mr. Snedecor with Jeremy Ogden and asked that a photograph be marked as Respondent’s Exhibit #3. Mr. Elwood objected that this was not part of the motion at hand and Mr. Meyer sustained the objection. Discussion followed as to documents being made part of the record and those provided to the Board for this specific hearing and the rules of procedure being applied to this hearing. Mr. Meyer stated he has informed counsel of the rules of procedure for this hearing and if there is a disagreement about the rules set forth, counsel has a right to appeal. Mr. Cooper stated the meeting did not meet the law under the Open Meetings Act as the notice was not published 48 hours prior to the hearing as is required. Mr. Meyer stated this issue will be taken up after the motion for recusal. Mr. Cooper continued his argument on the motion for recusal, stating Mr. Snedecor participated in investigating the offenses alleged of Officer Homoky and is unfit to sit on this tribunal. Mr. Elwood argued that Mr. Cooper is making several unsubstantiated allegations that was not part of the motion filed by the deadlines set by the hearing officer. He pointed out that September 5th was the deadline for motions to be filed, no substantiating evidence was provided with the motion filed by this date, and asked that the motion be denied. Mr. Meyer stated this was not a hearing officer decision and asked that Corporate Counsel, City Attorney DeBonis to act as advisor to the Board as to this particular issue. Mr. DeBonis provided information to the Board as to the various parts of the motion and what the law provides in response to the motion, stating there has been no evidence presented in the motion and no other supporting materials for the motion. Mr. DeBonis stated as an advisor to the Board that there has been no evidence of statements or actions taken indicating any bias on the part of Mr. Snedecor against Mr. Homoky. Mr. DeBonis continued by explaining the difference in standards between a Judge in a trial court and an administrative hearing of the Board, and the Indiana Court of Appeals rulings on Administrative procedures of Boards such as this, citing numerous cases of various courts. Mr. DeBonis stated the question at hand is whether the board member has demonstrated “actual bias” defined by the Courts as “such bias or prejudice exists only where there is an undisputed claim or where the judge has expressed an opinion on the merits of the pending controversy” as found: In re: Adoption of M.H., Indiana Court of Appeals, August 19, 2014; 2014 WestLaw 4084348 and also Cook vs. State, 612 NE2d 1085 at 1088, 1983. He continued that it has also been held that prior involvement in investigations does not automatically disqualify a safety board or its members, as found in Koeneman vs. City of New Haven, a 1987 decision of the Court of Appeals. Mr. DeBonis stated that in determining whether actual bias exists, it requires that there has been some indication from the trier of the case that he has pre-judged the case or that he is so hostile to the interests of the person being tried that he cannot be fair, and cited two cases as examples of this statement. Mr. DeBonis summarized that there has been no evidence presented to show Mr. Snedecor has demonstrated actual bias and, in light of the legal authorities cited earlier, it is his opinion, that the Respondent has failed to demonstrate the existence of actual bias on the part of Mr. Snedecor and recommended the Board vote to deny Respondent’s motion to disqualify Brian Snedecor. Motion by Mr. Lain, seconded by Mr. Ehrhardt, to deny the Respondent’s motion to disqualify Mr. Snedecor from the Board. All aye, motion carried. (3-0) Motion to disqualify Mr. Snedecor is denied. City Attorney DeBonis leaves the meeting. Board of Works Special Meeting Minutes: September 17, 2014 2 Allegation of lack of proper notice given of Special Board Meeting: Mr. Meyer stated that Mr. Cooper has alleged that there was not proper notice provided by the Clerk-Treasurer for this special meeting, and he asked the Clerk-Treasurer verify that the 48 hour notice was provided in accordance with the open door laws. Clerk-Treasurer Longer stated that on September 11, 2014, notice of the special meeting was posted in two places in City Hall and subsequently faxed to the newspapers the following day. Additionally, notice was posted on the City’s website. Mr. Meyer stated that based on the information provided he finds that the proper notice of this Special Meeting has been given. Pay Status of Officer Homoky: Mr. Meyer asked Mr. Whitten to proceed with an opening statement. Mr. Whitten stated the hearing is for the limited purpose of determining the pay status of Officer Homoky as he remains on Administrative Leave pending the outcome of his criminal charges. He noted that it is the discretion of the Board to determine whether the Administrative Leave is paid or unpaid. Mr. Whitten reviewed the prior actions of the Board, placing Officer Homoky on unpaid administrative leave in early 2013 when criminal charges were filed by the Lake County Prosecutor’s Office against him. In 2014, Officer Homoky’s attorney advised that the criminal charges were resolved and dismissed and the administrative hearing of the Board could proceed. Mr. Cooper stated this is a mis-statement as his communications with Attorney DeBonis show that both were under the impression that the criminal charges had been dismissed. Mr. Meyer stated that he has found that the charge of a Class A Misdemeanor Conversion was not dismissed and asked counsel to move on. Mr. Whitten continued that there is a pending criminal charge that is set for status May 21, 2015 in the Criminal Division, Superior Court of Lake County, so Chief Zormier is here today requesting the Board place Officer Homoky on unpaid administrative leave pending the outcome of that criminal proceeding. He noted that, as understood by all, the administrative proceeding on the disciplinary charges filed by Chief Zormier in front of this Board is stayed until the criminal proceeding is resolved but a determination of paid or unpaid administrative leave may be considered at this time. Mr. Meyer asked Mr. Cooper for his opening statement. Discussion followed regarding the filing of various other documents for the record. Mr. Meyer stated the ruling of the Board was that all motions and documents were to be filed by no later than September 10, 2014 and he instructed the Clerk-Treasurer as to what motions and documents were to be provided to the Board for this hearing. Mr. Cooper argued that his motions had been filed timely and Mr. Meyer agreed that the documents provided to the Board were only those documents that were referenced in the rulings he issued, not every piece of paper filed in this case. Mr. Cooper, in his opening statement, stated that the issue today is whether Chief Zormier can show the Board that there is a substantial likelihood of success on the merits of this case in the disciplinary proceedings on the administrative charges filed against Officer Homoky. He stated he has subpoenaed witnesses today who will offer testimony which will bolster the point that upon the Board’s decision and the Administrative Review in particular, laches will play a significant role in the outcome of this case. Mr. Whitten and Mr. Elwood objected to Mr. Cooper’s attempt to get into the substantive matters and evidence in the case that is under a stay order. Mr. Meyer stated there is a right to call witnesses but Mr. Cooper cannot get into the substantive matter of this case. There is nothing at this point that indicates the witnesses will go beyond what is permitted in this current hearing. Mr. Cooper continued that laches will play a role during the administrative review, in relation to the amount of time that has passed before a person is charged and he will show there was an opportunity in 2010 for action to be taken but none was taken at that time and therefore the charges filed by Chief Zormier will be unable to succeed. Mr. Cooper continued that it is the Respondent’s position that although Board members change, the practice over the last 10 years of officer discipline…. Mr. Elwood Board of Works Special Meeting Minutes: September 17, 2014 3 objected stating past officer discipline is irrelevant and in violation of the Hearing Officer’s determination on the motions. Mr. Meyer reminded the parties of his decision regarding motions issued on September 12th, which stated prior conduct of officers and past decisions and rulings of the Board was not relevant and not permitted at this hearing. Mr. Cooper stated his opening statement was concluded. Mr. Whitten called Hobart Police Chief Zormier to testify. The witness was sworn. Mr. Whitten provided Chief Zormier with a copy of the Notice to Kirk Homoky of Request to Hobart Board of Public Works and Safety to Change the Pay Status of Kirk Homoky from Paid Administrative Leave to Unpaid Administrative Leave (marked as Exh. 1). Chief Zormier testified that he had this document prepared, signed the document and service was made and notice was given. Chief Zormier provided testimony as to the timeline of events regarding the scheduling of the Administrative Hearing and the pay status information, leading to the current request to place Officer Homoky on unpaid administrative leave until the final disposition of the pending criminal matter. Mr. Whitten presented Chief Zormier with the Order of the Lake County Superior Court, Cause No. 45G02-1302-FC-00018 and 45G02-1302-FD-00029, dated May 21, 2014 (marked as Exh. 2) with certain items redacted. Mr. Cooper questioned the redacted portions. Discussion followed regarding redaction and Mr. Elwood stated the redacted portions are in keeping with the prior decision of the Hearing Officer to not allow certain items into evidence. Mr. Cooper agreed to the Exhibit with the redactions and Mr. Meyer allowed Exhibit 2 into the record. Chief Zormier testified that his request today is to change the pay status of Officer Homoky from paid to unpaid Administrative Leave based on the pending criminal charges and the status conference on compliance set for May 21, 2015 at 8:30 a.m. Chief Zormier also testified that if Officer Homoky is exonerated of the charges, the Board will have the discretion of whether or not to award back pay pursuant to I.C. 36-8-3-4. Mr. Cooper questioned Chief Zormier as to his testimony regarding the discretion of the Board. Chief Zormier again referred to I.C. 36-8-3-4 as to discretion of the Board. Mr. Cooper requested a side-bar to make an offer of proof. Mr. Meyer asked the Board to leave the room to allow for a side-bar with the court reporter present. The Board members left the room at 2:53 p.m. At 3:23 p.m., the Board was brought back into the room and the hearing resumed with Mr. Meyer providing a recap for the Board that there were discussions held and decisions made as to witnesses who would be called to testify. Mr. Cooper resumed the cross-examination of Chief Zormier, asking why the request for the no-pay status change. Chief Zormier stated the pending criminal charge in Lake Superior Court that goes to his integrity and honesty. Mr. Cooper stated he had nothing further. Mr. Elwood began questioning Chief Zormier and was stopped by Mr. Meyer for clarification of the questioning. Mr. Elwood then continued with questioning regarding the process of the filing of charges. Mr. Cooper then re-crossed regarding the process of Administrative Review. Mr. Elwood objected and Mr. Meyer sustained, saying this line of questioning is irrelevant as he is asking for the opinion of the witness. There were no further questions of Chief Zormier. Mr. Cooper stated there was an order to separate the witnesses and the door to the hearing room remains open. Mr. Elwood noted the witnesses were all called by Mr. Cooper. Mr. Meyer asked that the door be closed to the hallway where the witnesses were waiting but was to remain unlocked to satisfy the open door law. Mr. Cooper called Daniel Barton to testify. Mr. Barton was sworn and stated he is employed by Stardust Bowl II as a General Manager. He testified that Officer Homoky provided security for the Stardust Bowl from 2008 into 2010. Mr. Cooper questioned Mr. Barton regarding his deposition and the filing of a Board of Works Special Meeting Minutes: September 17, 2014 4 criminal complaint against Officer Homoky and numerous objections regarding procedures and relevance were made and discussion followed. Mr. Meyer sustained the objections. Mr. Barton was asked by Mr. Cooper to describe the time-clock system at Stardust Bowl II to track the hourly work hours of the employees. Mr. Barton, in response to Mr. Cooper's question, stated that both Officer Kirk Homoky and Officer Jeremy Ogden worked security for Stardust Bowl. Mr. Barton stated there was a "glitch" in the system, realized at the end of June 2010 and seven (7) overpayments were taken by Mr. Homoky. Mr. Barton stated there were eight or nine more checks issued but only seven were taken, only one of which Officer Homoky would have been entitled to. Mr. Barton stated he had no personal knowledge as to who cashed the checks. Mr. Elwood objected as to questioning of who cashed the checks and Mr. Meyer sustained the objection, stating Mr. Barton had been asked and answered the question. Mr. Cooper continued his questioning of Mr. Barton regarding statements made in his deposition and when he discussed the overpayments with Officer Ogden and Officer Dave Evans. Mr. Barton stated it was in 2012 after seeing Officer Homoky's name in the newspaper. Mr. Elwood objected to the use of the deposition transcript for this type of questioning. Mr. Cooper withdrew the question. Mr. Cooper continued asking questions, objected to by Mr. Elwood as to relevance and sustained by Mr. Meyer. Mr. Meyer announced to those in the attendance that the regularly scheduled meeting of the Board of Public Works was scheduled to begin at 4:00 p.m. and will begin upon the conclusion of this hearing. Mr. Cooper asked Mr. Barton if Officer Homoky violated a Stardust rule of policy by cashing the checks issued in error as an overpayment. Mr. Barton answered that there is not a specific policy but Officer Homoky received checks he was not entitled to for time he did not work and it is the opinion of Stardust Bowl II that it was wrong. Mr. Cooper had no further questions of Mr. Barton and Mr. Elwood had no cross-examination for Mr. Barton. Discussion followed regarding a request by Mr. Cooper to call additional witnesses. Mr. Meyer clarified his prior ruling as to what Mr. Cooper intended to ask certain witnesses to testify to, and it was ruled to be irrelevant and who was to be allowed to testify had already been determined outside the hearing of the Board. Mr. Cooper stated it is his understanding at this time that Respondent is not permitted to call Officer Ogden and Respondent rests. Mr. Cooper asked to submit Exhibit #5 shown as Respondent's Document 32 for the record. Mr. Meyer ruled that the document may be entered into the record, but is not admissible to the Board. Mr. Meyer asked each side for closing statements. Mr. Whitten summarized that it is established that Officer Homoky has a pending criminal charge, a misdemeanor charge of Conversion, pending in the Lake Superior Court until at least May 21, 2015. He noted it has also been established that in Chief Zormier's opinion, it is a crime of dishonesty and it will directly impact and affect Officer Homoky's ability to be a police officer, so Chief Zormier is requesting that this officer be placed on unpaid administrative leave. Mr. Whitten continued that Mr. Barton also testified that Stardust Bowl also believes that Officer Homoky did something wrong. Mr. Whitten, on behalf of Chief Zormier, requested that the Board change the pay status of Officer Homoky to unpaid administrative leave, not receiving a paycheck that the taxpayers pay for during the pending of the criminal charges is a reasonable request and good public policy. Board of Works Special Meeting Minutes: September 17, 2014 5 Mr. Cooper provided his closing statement, saying it is not good public policy to place this officer on unpaid leave and noted the Circuit Court Judge will determine whether the Board abused its authority based on the laches issue where the charging person is not permitted to sleep on its rights and that there was no criminal intent. Mr. Elwood objected as no evidence has been presented as to criminal intent. Mr. Meyer advised the Board that what Mr. Cooper says is not evidence. Discussion followed as to the actions of the “State's Attorney” in the filing of the criminal charges and Mr. Meyer noted that those items have already been ruled on prior to this hearing and it is not relevant at this time. Mr. Cooper continued with his closing statements, asking the Board to assign Officer Homoky other duties during the pending of the criminal case and stated the ruling will be most likely reversed in 1 1/2 years in an administrative hearing. He stated that laches is all too important and is the law and you cannot sit back for three years and then decide you want to act. He closed by stating that it makes sense to keep Officer Homoky in pay status and assign him other duties, because what is being said about laches is real and the evidence will show it was a mistake, not a crime, and there are tasks that Officer Homoky can perform right now that may not involve patrol duties. Mr. Meyer summarized for the Board the purpose of the hearing and the rules that apply, stating the Board's role is to listen to the evidence, and the arguments of counsel and make a decision based on their consideration of the information, the weight of the evidence and their own conclusions. Mr. Meyer continued that a decision as to paid or unpaid status must be based on a reasonable belief, with a factual basis in the record for your decision, that the decision is not arbitrary and capricious and that it was based on the evidence and facts. Mr. Meyer stated the Board is the sole determiner of the facts at this time and noted the Board has the discretion to decide what standards will apply in making a decision. It is up to the Board to decide whether the facts as presented warrant a change in the pay status of Officer Homoky. Mr. Meyer stated the Board may make a determination at this time or may advertise and hold an Executive Session at least 48 hours after notice is advertised. Mr. Cooper stated for the record that the Board did not see Exhibit 5, Document 32. Mr. Meyer again stated his prior ruling stands and the Board will not consider the document mentioned as part of this hearing today. Mr. Meyer turned the meeting back over to Mayor Snedecor and the Board. Motion by Mr. Ehrhardt, seconded by Mr. Lain, to remove Officer Kirk Homoky from the current paid administrative leave status and that he be placed on an unpaid administrative leave status pending the outcome of the criminal case. Mr. Snedecor repeated the motion and called for a vote on the motion. All aye, motion carried. (3-0) Mr. Cooper asked Mr. Meyer to accept copies of additional documents that were not presented to the Board. Mr. Meyer stated legal counsel can verify with the Clerk-Treasurer which documents are in the record, but the Board does not at this time have to review the documents. Adjournment: There being no further business related to this matter, Mr. Snedecor adjourned the meeting at 4:55 p.m., noting the regular meeting of the Board of Public Works and Safety would begin in approximately five minutes. ____________________________ ______________________________ SECRETARY PRESIDING OFFICER Board of Works Special Meeting Minutes: September 17, 2014 6