FOR PUBLICATION
                                                       Apr 12 2013, 8:15 am




ATTORNEY FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

EDWARD J. MERCHANT                            ROSEMARY L. BOREK
Ruckelshaus Kautzman Blackwell                Stephenson Morow & Semler
Bemis & Hasbrook                              Indianapolis, Indiana
Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

DAVID R. MERTZ,                               )
                                              )
      Appellant-Plaintiff,                    )
                                              )
             vs.                              )      No. 41A01-1206-MI-286
                                              )
CITY OF GREENWOOD, INDIANA,                   )
                                              )
      Appellee-Defendant.                     )


                   APPEAL FROM THE JOHNSON SUPERIOR COURT
                       The Honorable Kim Van Valer, Senior Judge
                            Cause No. 41D01-1112-MI-106



                                    April 12, 2013


                             OPINION - FOR PUBLICATION


NAJAM, Judge
                                   STATEMENT OF THE CASE

        David R. Mertz appeals the trial court’s order denying his petition to reverse the

disciplinary action taken against him by the Greenwood Police Merit Commission (“the

Commission”) following an evidentiary hearing.                    Mertz presents a single issue for

review, namely, whether the Commission was authorized to hear the particular

disciplinary matter against Mertz and impose discipline against him.

        We affirm.

                           FACTS AND PROCEDURAL HISTORY

        The Mayor of Greenwood appointed Mertz to be Assistant Chief (“Assistant

Chief”) of the Greenwood Police Department (“the Department”) on January 1, 2008.

Beginning November 2, 2010, Mertz acted as lead investigator in a case involving

alleged misconduct by Officer Nicholas Dine. On March 18 the mayor terminated the

police chief from that position and removed Mertz from the position of assistant chief.1

Mertz was subsequently appointed to the rank of Lieutenant in the Department, the rank

he had held prior to his appointment as Assistant Chief. As a lieutenant, Mertz worked in

a supervisory capacity as shift commander.

        At the conclusion of the Dine disciplinary proceedings in early April 2011, the

Commission asked a conduct review board to “examine and review the testimony and

conduct of some ranking officers regarding their conduct during the investigation and

disciplinary proceedings of Nick Dine, one being Lt. David Mertz.” Appellant’s App. at


        1
          Mertz asserts that he was removed from the position of Assistant Chief “[a]s a result of actions
taken by [him] while serving as lead investigator” in the Officer Dine matter. Mertz’s citation to the
record does not support that assertion but, instead, merely cites the part of the Order that states the date of
Mertz’s removal from that position.
                                                      2
4. The conduct review board, comprised of Assistant Chief James Ison, Sergeant Russell

Crague, and Officer Dan Skeel, reviewed the transcripts from the Dine disciplinary

proceedings and concluded that Mertz had violated three rules and regulations in relation

to his conduct in the Dine disciplinary proceedings. As a result, on June 27, 2011, Police

Chief Richard McQueary filed disciplinary charges against Mertz with the Commission,

requesting the Commission to determine whether Mertz should be demoted from the rank

of Lieutenant due to his actions while serving as assistant chief and lead investigator in

the Dine matter (“the Charges”). In particular, the Charges allege that Mertz committed

the following:

      Count 1.     Violation of Greenwood Police Department Rules and
      Regulations Established by the Greenwood Board of Public Works and
      Safety (1979), Rule 2.34 “Conduct Unbecoming an Officer”

      “(H) Any act or conduct, which is unethical or tends to ridicule,
      debasement, disrepute, disgrace or degrade another officer, the department,
      or otherwise creates disrespect from other officers.”

                                          ***

      Count 2.     Violation of Greenwood Police Department Rules and
      Regulations Established by the Greenwood Board of Public Works and
      Safety (1979), Rule 4.14 “Harmony and Cooperation”

      “Employees shall conduct themselves in a manner that will foster the
      greatest harmony and cooperation between each other, other sections of the
      department and between other police agencies.”

                                          ***

      Count 3.     Violation of Greenwood Police Department Rules and
      Regulations Established by the Greenwood Board of Public Works and
      Safety (1979), Rule 4.50 “Court Cases and Attendance”

      “Employees shall not take part or be concerned either directly or indirectly
      in making or negotiating any compromise or arrangement for any person
                                            3
        with a view of permitting such a person to escape the penalty of law; nor
        shall they seek to obtain any continuance of any trial in court out of
        friendship for the defendant or otherwise interfere with the court of justice.”

Id. at 5-6. All of the Charges were based on Mertz’s conduct regarding the Dine

disciplinary proceedings.

        Mertz filed a motion to dismiss the disciplinary proceedings and disciplinary

charges, arguing that the Commission was not authorized to pursue disciplinary charges

against Mertz because the conduct on which the Charges were based occurred while he

was in the position of Assistant Chief. In support, Mertz cited statutes,2 a local ordinance,

and the Greenwood Municipal Code. The Commission held an evidentiary hearing on

the Charges and the motion to dismiss on November 3, 2011. Following the hearing, the

Commission found as follows:

        1.     On or about June 27th, 2011[,] Richard McQueary, Chief of Police
        for Greenwood Police Department filed Written Charges against Lieutenant
        David R. Mertz wherein it was alleged that Lieutenant Mertz violated
        certain rules and regulations of the Greenwood Police Department and
        Greenwood Municipal Code.

        2.    On November 3rd, 2011[,] the Greenwood Merit Commission did
        conduct a hearing regarding these alleged violations and[,] after due
        consideration thereof, the Commission[] did make certain findings of fact
        and determinations.

        3.     Specifically, with regard to Count II of the charges, the Merit Board
        finds that pursuant to definition 2.1 of the general provisions of the
        Greenwood Police Department Rules and Regulations, the term
        “Department” shall mean the Greenwood Police Department and that the
        Merit Board is not included within this definition[. T]herefore the Board


        2
           Mertz cites Indiana Code Section 36-4-4-2, regarding the separation of powers in city
government, to show that only the mayor had authority to discipline a chief or assistant chief of police.
He also cites Section 36-8-3-4(m), which provides that only the mayor is authorized to discipline a
member of the police department who holds an “upper level policy[-]making position.” Appellant’s Brief
at 8.
                                                   4
       finds that Rule 4.14 “Harmony & Cooperation” is not applicable to this
       matter.

       4.     As to Count III, the Board further finds that the actions of Lieutenant
       Mertz, while disturbing to the Merit Commission, do not constitute a
       technical violation of Rule 4.5 of the Greenwood Police Department Rules
       & Regulations, “Court Cases and Attendance[,”] for the reason that Section
       4.5 is not intended to apply to merit board proceedings but is intended to
       apply in Courts of Law and under penalty of law.

       5.     As it relates to Count I of the pending charges, the Board finds that
       on April 6th and 7th, 2011[,] Lieutenant Mertz was not the Assistant Chief
       of Police and that he did in fact commit unethical conduct because his
       actions, by his own admission, were intended to delay and manipulate the
       Nicholas Dine disciplinary proceedings until the composition of the Merit
       Board could change. The Merit Board further finds that a Lieutenant in the
       Police Department is in a position of authority and that the truth and
       veracity of Lieutenant Mertz’s testimony at his own disciplinary hearing
       continued to remain in question and reflect poorly on the Department.
       Therefore, Lieutenant Mertz has violated Greenwood Police Department
       Rules and Regulations, Rule 2.34 “Conduct Unbecoming an Officer” in that
       his actions and conduct tend to ridicule, debase, disrepute, disgrace or
       degrade another officer, the department, or otherwise create disrespect from
       other officers[.”]

       6.     The Board finds that Lieutenant Mertz’s Motion to Dismiss the
       disciplinary charges should be denied.

Id. at 54-55. As a result, the Commission imposed the following discipline:

       A.     That for the violation of Count I, “Conduct Unbecoming[,”]
              Lieutenant Mertz upon his return to active duty shall be suspended
              for ten (10) days without pay.

       B.     That Lieutenant Mertz will retain the rank of Lieutenant within the
              Greenwood Police Department.

Id. at 56.

       On December 1, Mertz filed a verified petition for judicial review of the

Commission’s decision, requesting that the trial court rule that the Commission had

lacked authority to hear the disciplinary matter against him and to reverse the
                                             5
Commission’s determination.     On April 26, 2012, the trial court held a hearing on

Mertz’s petition, and on May 29 it issued the Order, denying Mertz’s request. The Order

provides, in relevant part:

       4. Findings of Fact.
       a.    Mertz was appointed Assistant Chief of Police of the Greenwood
             Police Department on or about January 1, 2008.
       b.    During his tenure as Assistant Chief, Mertz served as lead
             investigator in a misconduct investigation against Officer Nicholas
             Dine.
       c.    Mertz was removed from the position of Assistant Chief by the
             Mayor in March of 2011. His removal as Assistant Chief resulted in
             him returning to the rank of Lieutenant.
       d.    The Merit Commission held disciplinary proceedings with regard to
             Officer Dine on April 6th and 7th, 2011[,] at which Mertz testified
             about his own actions during the investigation.
       e.    At the time of the actions about which he testified, Mertz was
             Assistant Chief of Police, but at the time of his testimony, he was a
             Lieutenant with the Police Department serving in a supervisory
             capacity as shift commander.
       f.    After his testimony on April 6th and 7th, a Conduct Review Board
             was convened to review Mertz[’s] own conduct, issued a decision on
             or about June 6, 2011[,] and forwarded the same to Richard
             McQueary, Chief of Police for the City of Greenwood. The decision
             of the Review Board resulted in formal charges against Mertz filed
             with the Merit Commission by Chief McQueary on June 27, 2011.
       g.    On November 3, 2011, the Merit Commission heard the charges and
             issued its Findings of Fact and Judgment. The Merit Commission
             found that Mertz[]

                     did in fact commit unethical conduct because his
                     actions, by his own admission, were intended to delay
                     and manipulate the Nicholas Dine disciplinary
                     proceedings until the composition of the Merit Board
                     could change. The Merit Board further finds that a
                     Lieutenant in the Police Department is in a position of
                     authority and that the truth and veracity of Lieutenant
                     Mertz’s testimony at his own disciplinary hearing
                     continued to remain in question and reflect poorly on
                     the Department. Therefore, Lieutenant Mertz has
                     violated Greenwood Police Department Rules and
                     Regulations, Rule 2.34 “Conduct Unbecoming an
                                            6
            Officer” in that his actions and conduct tend to
            ridicule, debase, disrepute, disgrace or degrade another
            officer, the department, or otherwise create disrespect
            from other officers[.”]
h.   The Merit Commission ordered that “Lieutenant Mertz upon his
     return to active duty shall be suspended for (10) days without pay.”
     Exhibit E to Mertz’[s] Petition for Judicial Review.

5.   Conclusions.
a.   Authority of the Court to conduct a Judicial Review of the Merit
     Commission action.

     i.     Indiana Code [S]ection 36-8-3.5-18(a) governs judicial
            review of merit commission decisions and provides
            that “[a] member who is aggrieved by a decision of the
            commission to suspend him for a period greater than
            ten (10) calendar days, demote him, or dismiss him
            may appeal to the circuit or superior court of the
            county in which the unit is located.”
     ii.    Though Mertz argues that his 10[-]day suspension was
            applied to “the next ten (10) days the department had
            scheduled Mertz to work”[], there is no indication of
            such application in the Findings and Judgment of the
            Merit Commission issued on November 3, 2011.
     iii.   However, if the suspension was, in fact, applied to the
            next 10 working days and the period from the first day
            of suspension to the last day of suspension was more
            than 10 calendar days, the court would have
            jurisdiction to review the Merit Commission action.[]

b.   Authority of the Merit Commission

     i.     According to Greenwood Common Council Ordinance
            No. 93-3 Section 14-27(k) and the Greenwood
            Municipal Code (1993) Article 12 Section 6-386(k),
            the city of Greenwood Police Merit Commission may
            take disciplinary action, including suspension, against
            any police officer except the Chief or Assistant Chief.
     ii.    The Mayor has exclusive authority to appoint and
            remove the Police Chief and Assistant Police Chief.
            I.C. 36-8-3.5-11.
     iii.   Once removed by the Mayor, the member is appointed
            to the rank held at the time of the appointment (or a
            higher rank if promoted while serving as Chief or
                                   7
                    Assistant Chief) and is subject to discipline by the
                    Merit Commission.
             iv.    Though the actions for which Mertz was disciplined
                    occurred primarily while he was Assistant Chief, the
                    nature of Mertz[’s] actions was determined, at the
                    earliest, by the Conduct Review board in June of 2011
                    well after he had been removed as Assistant Chief.
             v.     The extent to which his actions could impact Mertz’[s]
                    fitness or ability to serve in the supervisory capacity to
                    which he was appointed as Lieutenant could not have
                    been properly evaluated until the nature of his actions
                    was determined.
             vi.    Once removed as Assistant Chief, the Merit
                    Commission had the authority to consider disciplinary
                    action against Lieutenant Mertz.

      c.     Judicial Review.
             i.     The Court declines to find the Merit Commission’s
                    decision to suspend Lieutenant Mertz willfully
                    unreasonable considering the facts and circumstances
                    revealed by the record presented for review.

Id. at 1-3 (emphasis in original). Therefore, the trial court denied Mertz’s petition for

review. Mertz now appeals.

                           DISCUSSION AND DECISION

      Judicial review of administrative decisions is very limited. City of Indianapolis v.

Woods, 703 N.E.2d 1087, 1090 (Ind. Ct. App. 1998) (citing City of Greenwood v.

Dowler, 492 N.E.2d 1081, 1084 (Ind. Ct. App. 1986)), trans. denied. Deference is to be

given by the reviewing court to the expertise of the administrative body. Id. (citation

omitted). 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. Id. Further, review is limited to determining whether the administrative body


                                            8
adhered to proper legal procedure and made a finding based upon substantial evidence in

accordance with appropriate constitutional and statutory provisions. Id. at 1090-91. 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. Id. at 1091.

       Additionally,

       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. The evidence is not to be reweighed by a
       reviewing court.

Id. (citation omitted). This case involves the construction of a municipal ordinance and a

municipal code. When this court construes a municipal ordinance, we apply the rules

applicable to statutory construction. City of Jeffersonville v. Hallmark at Jeffersonville,

L.P., 937 N.E.2d 402, 406 (Ind. Ct. App. 2010) (citing City of Indianapolis v. Campbell,

792 N.E.2d 620, 624 (Ind. Ct. App. 2003)), trans. denied. The primary rule of statutory

construction is to ascertain and give effect to the intent of the statute’s drafters. Id.

(citation omitted). The best evidence of that intent is the language of the statute, and all

words must be given their plain and ordinary meaning unless otherwise indicated by the

statute. Id. (citation omitted).

       The Johnson Superior Court initially reviewed the Commission’s decision. We, in

turn, review the trial court’s decision which affirmed the Commission.



                                             9
          In order to properly adjudge whether the initial review was erroneous, we
          necessarily look through its decision to consider the validity of the
          Commission’s determination.[fn] 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 Board.

                 Footnote: In this regard, our review is unlike the appellate
                 review of an original trial court decision or judgment. In such
                 instance it is the obligation of this tribunal to give deference
                 to the discretionary prerogatives of the trial court. This is
                 particularly so with respect to factual determinations.
                 Haseman v. Orman (1997) Ind., 680 N.E.2d 531; Kennedy v.
                 Kennedy (1997) Ind. App., 688 N.E.2d 1264, trans. denied.

See id.

          Mertz contends that the trial court erred when it concluded that the Commission

had authority to consider disciplinary action against him after he was removed as

Assistant Chief for conduct that occurred while he was Assistant Chief. In support of his

contention that the Commission lacked authority in this case, Mertz relies on municipal

code provisions and a local ordinance. Specifically, City of Greenwood Municipal Code

article 12, section 6-386 and Greenwood Ordinance No. 93-3, section 14-27 provide, in

relevant part:

          (j)    Authorization for discipline. Any police officer may be disciplined
          by the commission for any reason authorized by I.C. 36-8-3-4, as amended,
          by this Ordinance, as amended, or by department rules and regulations
          existing at the time of the act constituting the alleged offense.

          (k) Disciplinary action that may be taken. The commission may take the
          following disciplinary actions against any police officer except the chief or
          assistant chief of police:

                 (1)   Reprimand;
                 (2)   Suspension with or without pay;
                 (3)   Demotion;
                 (4)   Dismissal;
                 (5)   Forfeiture;
                                               10
                (6) Administrative leave.[]

Appellant’s App. at 69, 83 (emphasis added).3

        Mertz contends that the Commission lacked authority to discipline him because

his discipline was based on conduct which occurred while he was Assistant Chief of the

Department.4 In support he points out that the Assistant Chief of the Department serves

at the pleasure of the mayor. And he relies on City of Greenwood Municipal Code article

12, section 6-386 and Greenwood Ordinance No. 93-3, section 14-27, which provide that

the Commission may not take any of the enumerated disciplinary actions against a chief

or assistant chief of police. These provisions also refer to the “rules and regulations

existing at the time of the act constituting the alleged offense.”                 Greenwood, Inc.,

Municipal Code art. 12, § 6-386(j), Greenwood, Ind., Ordinance No. 93-3, § 14-27(j).

Mertz construes these provisions to mean categorically that the Commission lacks

authority to discipline an officer for conduct committed while he was serving as chief or

assistant chief of police. We cannot agree.

        First, the plain language of the municipal code and ordinance does not squarely

address the question before us. In other words, the municipal code and the ordinance are

silent as to whether a chief or assistant chief can be disciplined for conduct that occurred

while holding one of those offices. But while the chief of police and the assistant chief


        3
            The quoted portions of the Greenwood Municipal Code and the Greenwood Ordinance are
identical except for a footnote in the ordinance. That footnote is not material to this case.
        4
           The Commission also contends that the Commission had authority to discipline Mertz for his
conduct at his own disciplinary hearing after he was removed from office. On these facts we cannot agree
because at the hearing in question Mertz was charged only with past misconduct. He was not charged and
could not have been charged with conduct that had not yet taken place. As such, the Commission’s
finding against the truth and veracity of Mertz’s testimony was a valid credibility determination but did
not constitute independent grounds to discipline Mertz in the same proceeding.
                                                   11
serve at the pleasure of the mayor, they remain police officers subject to the same

professional standards as other police officers. Greenwood Municipal Code article 12,

section 6-386 and Greenwood Ordinance No. 93-3, section 14-27 provide that “any

police officer may be disciplined for any reason authorized by [Indiana Code Section 36-

8-3-4], as amended, by this Ordinance, as amended, or by department rules and

regulations existing at the time of the act constituting the alleged offense.”

       Mertz was at all relevant times a police officer, and, as such, he was subject to the

same professional standards as other police officers. And, at the time of his disciplinary

proceedings, Mertz was neither a chief nor assistant chief of police, and the Commission

applied the statute, ordinances, and department rules and regulations that were in effect at

the time of his conduct.     Mertz proposes that we interpret the municipal code and

ordinance to prohibit any discipline by the Commission for misconduct by a chief or

assistant chief of police.    But such an interpretation is untenable because it would

undermine the entire command structure. Under Mertz’s interpretation, superior officers

would not be subject to the same professional standards and rules of conduct as the

officers whom they command.

       Moreover, under Mertz’s construction of the municipal code and ordinance, the

chief and assistant chief of police would be immune from liability except for removal

from office by the appointing authority. For example, if a mayor reduced a chief or

assistant chief to the rank of a “regular member” of the police department but imposed no

other discipline, then such an officer might well escape any further accountability for the




                                             12
offense.5 Mertz’s interpretation would lead to absurd results. See City of Carmel v.

Steele, 865 N.E.2d 612, 618 (Ind. 2007) (“we do not presume that the Legislature

intended language used in a statute to be applied . . . to bring about an unjust or absurd

result.”); Curley v. Lake Count Bd. of Elections & Registration, 896 N.E.2d 24, 34 (Ind.

Ct. App. 2008), trans. denied.6

        We find an analogous situation in our state constitution relating to whether state

legislators are subject to prosecution for criminal offenses. Specifically,

        Senators and Representatives, in all cases except treason, felony, and
        breach of the peace, shall be privileged from arrest, during the session of
        the General Assembly, and in going to and returning from the same; and
        shall not be subject to any civil process, during the session of the General
        Assembly, nor during the fifteen days next before the commencement
        thereof. For any speech or debate in either House, a member shall not be
        questioned in any other place.

Ind. Const. art. 4, § 8. In other words, during the legislative session, state legislators are

exempt from prosecution for all offenses except treason, felony, and breach of the peace.

However, once the legislative session has ended, the legislators are no longer immune

from prosecution. Similarly, here, the chief and assistant chief of the Greenwood Police

Department are immune from discipline by the Commission while they serve in those

offices. But, again, they are at all times police officers. And in the event they are

demoted from chief or assistant chief, their immunity from discipline by the Commission,

granted by the municipal code and ordinance, no longer exists.

        5
           The parties point to no legal authority to show how and to what extent the mayor may discipline
the chief or assistant chief of the Department aside from removing them from office.
        6
          Mertz makes no argument under Indiana Code Section 36-8-3.5-1 through -23. And this case
can be adequately disposed of under the municipal ordinances discussed above. Therefore, we need not
consider the question suggested by the City, whether Indiana Code chapter 36-8-3.5 governs merit
commission issues in Greenwood.
                                                   13
      We must reconcile two provisions in apparent conflict with each other. First,

again, the City of Greenwood Municipal Code article 12, section 6-386(j) and

Greenwood Ordinance No. 93-3, section 14-27(j) provide that any police officer may be

disciplined by the Commission for any reason authorized by statute, ordinance, or

department rules and regulations existing at the time of the act constituting the alleged

offense. But subsection (k) of both the municipal code and the ordinance provides that

“any police officer except the chief or assistant chief of police” may be reprimanded,

suspended, demoted, dismissed, forfeited, or placed on administrative leave. Appellant’s

App. at 69, 83 (emphasis added). In construing subsection (k), we must consider not only

what it says but also what it does not say. See State v. Dugan, 793 N.E.2d 1034, 1036

(Ind. 2003). The exception is for “the chief or assistant chief of police,” which speaks to

the present. The words “former chief” or “former assistant chief” or the equivalent do

not appear in the text of the code or ordinance. In construing an ordinance, we cannot

supply missing terms. See Uhlman v. Panares, 908 N.E.2d 650, 657 (Ind. Ct. App.

2009). Those ordinances do not provide that a police officer serving as either chief or

assistant chief when the act constituting the alleged offense occurs is immune from

discipline by the Commission at a later date. Subsection (k) is an exception to the

Commission’s general authority to discipline any police officer and, as such, should be

strictly construed. See Robinson v. Indiana University, 659 N.E.2d 153, 156 (Ind. Ct.

App. 1995) (holding exceptions to a statute should be strictly construed), trans. denied.

The burden of proving the exception is upon the party claiming it. Id. Thus, Mertz

appeals from a negative judgment on this issue. Subsection (k) does not by its terms


                                            14
grant an absolute, durable immunity that survives when an officer is no longer chief or

assistant chief of police, and Mertz has not shown otherwise.

         When two provisions are in apparent conflict, we must construe them

harmoniously if reasonably possible. See Wilson v. Isaacs, 929 N.E.2d 200, 203 (Ind.

2010).    Mertz contends that the exception nullifies in perpetuity the Commission’s

general authority under the Greenwood Municipal Code and the ordinance to discipline a

police officer if the conduct in question occurred while the officer was also the chief or

assistant chief. Instead, we conclude that the purpose of the exception is to prevent the

Commission from interfering with the mayor’s executive authority over the police

department which the mayor exercises through his appointments of the chief and assistant

chief.    Here, the Commission did not interfere with the mayor’s authority over

administration of the police department because Mertz was no longer assistant chief when

the Commission considered the disciplinary charges against him. Thus, we hold that the

exception is not absolute but suspends the Commission’s authority to discipline an officer

while he holds the appointment as chief or assistant chief.         Once the mayor has

terminated the appointment or the appointment otherwise ends, the purpose of the

exception no longer exists, and the exception no longer applies.

     Mertz has not met his burden to show that the trial court determination, upholding

the Commission’s interpretation of the relevant ordinances, is arbitrary and capricious, an

abuse of discretion, or otherwise contrary to law.        Woods, 703 N.E.2d at 1090.

Therefore, Mertz has not met his burden to prevail on appeal, and we affirm the

determination of the trial court that the Commission had authority to hear the disciplinary


                                            15
proceeding against Mertz, a former Assistant Chief of the Department, based on conduct

that occurred while he was serving as Assistant Chief, and to impose discipline against

him.

       Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.




                                          16
