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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.

FILED
Mar 16 2009, 9:35 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: CHRISTOPHER J. WHEELER Stout & Wheeler, P.C. Angola, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana HEATHER L. HAGAN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
SCOTT A. SCHWARTZ, Appellant-Petitioner, vs. INDIANA STATE POLICE, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 76A03-0806-CV-299

APPEAL FROM THE STEUBEN SUPERIOR COURT The Honorable William C. Fee, Judge Cause No. 76D01-0709-MI-360

March 16, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION KIRSCH, Judge

Scott A. Schwartz ("Schwartz") appeals from a judicial review affirming the decision of the Indiana State Police Board ("the Board") to terminate Schwartz's employment with the Indiana State Police ("ISP"). Schwartz raises the following issues for our review: I. Whether the Board's decision to affirm the termination of Schwartz's employment with the ISP was procedurally flawed due to the Board's failure to rule on Schwartz's motions and failure to issue sufficiently specific findings of fact; and Whether the Board's decision to affirm the termination of Schwartz's employment with the ISP was arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with the law.

II.

We affirm. FACTS AND PROCEDURAL HISTORY In the early morning hours of August 6, 2006, Schwartz, Adriane Lautzenheiser, and Amanda Carper were out on a boat on the lake behind Schwartz's residence in Hamilton, Indiana. After boating, the three returned to Schwartz's residence. Sometime thereafter, Lee White arrived at Schwartz's residence and was looking for his girlfriend, Lautzenheiser. Schwartz opened the door for White, allowing him into the residence and pointed toward the bathroom. White found Lautzenheiser and Carper in a state of undress. White and Schwartz then engaged in a physical altercation in Schwartz's residence. White left, but returned a short time later throwing a clay pot through a window pane abutting the door to the residence. Schwartz called 911 to report a breaking and entering claiming that White had unlawfully entered his residence. Officers from the Hamilton Police Department and ISP

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responded to the 911 call. After the Hamilton police officers arrived, Schwartz telephoned ISP Trooper Maggie Shortt to seek advice as to the proper ISP procedures to follow when having someone arrested. Schwartz told Trooper Shortt that a woman and child came to his residence in response to a domestic disturbance at their home, and that a man came to his residence thereafter and kicked in his door. White was arrested by Hamilton police officers for breaking and entering Schwartz's residence. ISP Detectives Harry Nix and Dan Clawson assisted the Hamilton Police Department with their investigation of the incident. They interviewed Schwartz, Carper, and Lautzenheiser at the scene and interviewed White at the Steuben County Jail. Detectives Nix and Clawson determined that Carper and Lautzenheiser were intoxicated during their initial interviews and re-interviewed them within days after the incident. In those subsequent interviews, both women acknowledged being on a boat with Schwartz on the night of the incident. Lautzenheiser's daughter saw the women and Schwartz preparing to go out in the boat on the lake on the night of the incident. When Schwartz was initially interviewed, he did not inform the Hamilton police officers or the ISP detectives that he had been on the boat with Lautzenheiser and Carper. Instead, he told them that the two women had come to his residence seeking assistance following a domestic disturbance at another residence. When Schwartz was confronted with the women's statements, he stated to ISP detectives and to the internal investigator, Sergeant Kathy Robbins, that he had not been on the boat with the two women.

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On August 9, 2006, White had a conversation with Schwartz that was recorded through the use of a body wire as part of the ISP detectives' investigation. During this conversation, Schwartz sought White's assistance in having Lautzenheiser and Carper change their statements to disclaim that they were on the boat with Schwartz on the evening of the incident, in order to make their statements conform with Schwartz's initial statement to the Hamilton police officers and the ISP detectives. During this conversation, White reiterated that Schwartz had opened the door to his residence for White and let him enter, but White was now being charged with breaking and entering. In response to that statement, Schwartz indicated, "Well and I'm gonna take care of that too." Appellant's App. at 161. Schwartz subsequently told the ISP detectives, and then later Sergeant Robbins, that White had broken and entered Schwartz's residence. At the conclusion of Sergeant Robbins's investigation, she issued a summary of her investigation to her commanders. On November 30, 2006, ISP Superintendent Paul Whitesell filed formal disciplinary charges against Schwartz alleging that Schwartz violated Rule 17, Sections 17-3(A)1, 173(A)12, and 17-3(A)14 of the ISP Personnel Rules. The charges against Schwartz are as follows: 1. On or about August 6, 2006, Trooper Schwartz did interfere with a case brought by another agency when he provided false information to the investigating officer called to his residence to investigate a reported breaking and entering, in violation of Police Rule 17, Section 173(A)14.

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2.

On or about August 6, 2006, Trooper Schwartz did give a false report of the commission of a crime; to wit: he called 911 to report a breaking and entering of his residence, knowing the report to be false, contrary to Ind. Code [

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