APPEAL FROM THE STARKE CIRCUIT COURT HONORABLE MARVIN D. McLAUGHLIN, JUDGE CAUSE NO. 82-27
Hoffman, P.j. Staton, J. and Garrard, J. Concur.
Appellee Martin E. Rogness was employed by the City of Portage as a police officer. On February 24, 1981, Rogness was driving a marked police car past Woodland Park, when he noticed his wife, Kathy, seated in her automobile with an unknown male. Prior to this date, dissolution of marriage proceedings had been commenced between Rogness and his wife. Rogness then parked his car and approached his wife's auto. He opened the passenger side door and repeatedly beat the passenger, David Carullo, about the head, and threatened to kill him. After this incident, Kathy Rogness made a report to Portage police which led to charges against Rogness before the Portage Metropolitan Police Commission.
Over the following months, hearings were conducted to determine Rogness' fitness for further duty. During these proceedings, evidence was gathered which resulted in a transcript of several hundred pages.
On November 3, 1981, the Commission found that Rogness violated the following rules and regulations of the Portage Police Department:
"RULE 5.01 UNBECOMING CONDUCT
Officers shall conduct themselves at all times, both on and off duty, in such a manner as to reflect most favorably on the Department. Conduct unbecoming an officer shall include that which brings the Portage Police Department into disrepute or reflects discredit upon the officer as a member of the Department, or that which impairs the operation or efficiency of the Department or officer.
"RULE 2.02 VIOLATION OF RULES AND CONFORMANCE TO LAWS
Officers shall not commit any acts or omit any acts which constitute a violation of any of the rules, regulations, directives or orders of the Portage Police Department.
He shall also obey all the laws of the United States, the State and Local Jurisdiction in which the officer is present."
As a result of this finding, the Commission terminated Rogness' employment.
Rogness appealed this decision to the Starke Circuit Court. In reviewing this determination, the trial Judge considered the entire record made by the Commission. No additional evidence was considered. The trial Judge made findings of fact and modified the decision of the Commission by reducing the penalty to a one-year suspension from duty, without pay. In doing so, the court specifically found that three of the six findings of fact made by the Commission to support the penalty were illegally considered.
The City of Portage now appeals this decision, on the basis that the trial court was without power to modify the Commission's penalty.
Appellant's principal argument is that the Starke Circuit Court erred in modifying the penalty imposed by the Portage Police Commission. Appellant argues that Ind. Code § 18-1-11-3(d) (1980 Burns Supp.) applies to this case, since judicial construction of this statute prevents a reviewing trial court from modifying the Police Commission's order. This statute provides in pertinent part that:
"... [i]f the court finds that the action or decision of the board appealed from should not be affirmed in all things, then the court shall make a general finding, setting out however, sufficient facts to show the nature of such proceeding and the court's decision thereon, and shall render judgment either reversing the decision of the board, or ordering the same to be modified as the court shall find and adJudge to be proper."
Appellee contends that the successor statute, Ind. Code § 36-8-3-4(i) (Burns 1981 Repl.) should apply, since ...