Opinion
No. 71S03-8712-CV-1151.
December 16, 1987. Rehearing Denied February 23, 1988.
Appeal from the St. Joseph County Circuit Court, John W. Montgomery, J.
J. Christopher Warter, Patrick Warter, South Bend, for appellant.
Carolyn V. Pfotenhauer, Asst. City Atty., South Bend, for appellee.
In October of 1984 the South Bend Board of Public Safety adopted a merit plan for the purpose of regulating promotion practices in the South Bend Police Department. Douglas Way, a full-time paid employee, challenged the adoption of the plan, asserting that any promotion system which included elements of merit must meet the requirements of I.C. 36-8-3.5-1. The plan adopted by the Safety Board contained elements of merit but did not comply with the statute. The trial court granted summary judgment in favor of the City of South Bend, holding that I.C. 36-8-3.5-1 was not the exclusive available method for the City to initiate a merit system for the police department. The Court of Appeals affirmed the summary judgment. Way v. City of South Bend (1986), Ind. App., 496 N.E.2d 802. We grant transfer to resolve this issue.
This case was considered with City of Evansville v. International Association of Fire Fighters, Local 357 (1987), Ind., 516 N.E.2d 57, decided today, a case which was likewise pending before us on a petition to transfer. Both cases raised essentially the same question regarding the construction of I.C. 36-8-3.5-1. As we held in Evansville (Justice Givan dissenting), I.C. 36-8-3.5-1 is the exclusive method through which a municipality or township can create a merit system for its police or fire department.
We therefore vacate the opinion of the Court of Appeals and reverse with instruction to grant summary judgment in favor of appellant, pursuant to Ind. Rules App. Proc. 15(N) and Ind. Rules Trial Proc. 56(B).
SHEPARD, C.J., and PIVARNIK and DICKSON, JJ., concur.
GIVAN, J., dissents.