FOR PUBLICATION

ATTORNEYS FOR APPELLANT:    ATTORNEY FOR APPELLEE:

JEFFREY A. MODISETT    KATHRYN D. SCHMIDT
Attorney General of Indiana    Burke Costanza & Cuppy LLP
            Merrillville, Indiana
JON LARAMORE
Deputy Attorney General
Indianapolis, Indiana

STATE OF INDIANA,              )
                                    )
    Appellant-Defendant,            )
                                    )
        vs.                         )    No. 45A04-9806-CV-281
                                    )
JAMES W. LANGEN,                    )
                                    )
    Appellee-Plaintiff.             )

    2.    Whether Langen has waived judicial review of the timeliness of the          Commission's final order.

December 19, 1995, sanctioning Langen by suspending Langen's license indefinitely, with the right to petition for reinstatement after six months.
    Langen filed his petition for judicial review in the trial court. After considering evidence submitted by the parties, the trial court entered summary judgment in favor of Langen. Specifically, the trial court concluded, as a matter of law, that the Commission violated applicable procedural law when it failed to issue its final order within sixty days of the date the Panel's order was issued. Accordingly, the trial court vacated the Commission's final order as null and void. On behalf of the Commission, the State appeals the trial court's judgment.

court heard evidence and testimony regarding the agency procedures. Ripley County Bd. of Zoning Appeals v. Rumpke of Indiana, Inc., 663 N.E.2d 198, 203 (Ind. Ct. App. 1996), trans. denied. We neither reweigh the evidence nor reassess witness credibility and will set aside the trial court's findings only if they are clearly erroneous. Stewart, 695 N.E.2d at 964.

law and, even assuming the Commission's order was untimely, the trial court erred when it vacated the order on that basis. We address the arguments in turn.
    First, as we noted earlier, subsection (f) provides that the sixty day time period runs from the date of the latter of three occurrences: (1) the ALJ's order, (2) the receipt of briefs, or (3) the close of oral arguments. Ind. Code § 4-21.5-3-29(f). In the instant case, we are not concerned with oral arguments as none were scheduled or heard. The relevant question is whether and how the briefing schedule set by the Commission affected the sixty day time period.
    We are troubled by both Langen's and the trial court's reliance on the parties' failure to file briefs as an indication that the sixty day time period began to run from the earliest possible date, the date of the Panel's order. Although we acknowledge that the statutory language indeed provides that the sixty days may run from the "receipt of briefs," that language must be read to mean the date upon which briefs are received by the ultimate authority or the date upon which those briefs are due, whichever comes first. To read the language otherwise would lead to the absurd result of allowing parties to manipulate the time period merely by deciding not to file briefs. For example, in the instant case, the Commission set a briefing schedule for the parties providing that briefs, if parties wished to file them, would be due by September 21, 1995. Langen essentially argues that if either he or the State would have chosen to file briefs, the sixty day time period would not have begun to run until those briefs were received by the Commission. Because the parties decided not to file briefs, Langen contends that the sixty day time period actually expired before the

briefs were even due.See footnote 2 Such an illogical result could not have been intended by the legislature.
    In construing statutory language, we must presume that the legislature did not intend an unreasonable and absurd result. Chestnut v. Roof, 665 N.E.2d 7, 10 (Ind. Ct. App. 1996). We hold that the phrase "receipt of briefs," as it pertains to the triggering of the sixty day time period within which the ultimate authority shall enter its final order, means either the receipt of briefs or the close of the briefing schedule, whichever comes first. Because no briefs were filed by the due date in the present case, the sixty day time period began to run on September 21, 1995.
    Next, we look to the Commission's extension of time. On November 8, 1995, within sixty days of the close of the briefing schedule, the Commission extended its time to rule until December 22, 1995 for good cause shown. See Ind. Code § 4-21.5-3-29(f) (the sixty day time period may be extended with the written consent of all parties or for good cause shown). Langen argues that the Commission's extension of time was arbitrary and capricious and, thus, must be reversed. We disagree.
    As we have noted, our review of an administrative agency decision is narrow and, we will reverse the agency's action only where it is purely arbitrary, or an error of law has been made. Indiana Civil Rights Comm'n v. Delaware County Circuit Court, 668 N.E.2d 1219,

1221 (Ind. 1996). An action of an administrative agency is arbitrary and capricious only where there is no reasonable basis for the action. Id.
    In its notice of extension of time to rule, the Commission stated that several members were absent from the meeting and that a new member had not had an opportunity to review the transcript and therefore did not participate. Under those circumstances, the remaining members were unable to reach a decision. Therefore, the review of Langen's case was placed on the agenda for the next meeting. In light of the Commission's explanation of good cause, and our limited standard of review in administrative cases, we cannot say that there was no reasonable basis for the Commission's decision to extend its time to rule. Langen has failed to meet his burden of showing that the Commission's extension of time was arbitrary and capricious.See footnote 3 Therefore, we conclude that the Commission's extension of time to rule until December 22, 1995, was valid and, consequently, that the Commission's final order of December 19, 1995 was timely issued.
    Even if we were to conclude that the Commission's final order was issued outside of the statutorily prescribed time period, Langen would not be entitled to summary judgment. We must agree with the State that the phraseology of subsection (f) stating that a final order "shall" be issued within sixty days of the three listed alternative events is directory rather than mandatory. Although use of the term "shall" generally connotes a mandatory as opposed to

a directory import, "shall" may be construed as directory in order to preserve legislative intent. Hancock County v. Rural Elec. v. City of Greenfield, 494 N.E.2d 1294, 1295 (Ind. Ct. App. 1986), trans. denied. As our supreme court has explained:
    The meaning and intention of the legislature are to be ascertained not only from the phraseology of the statute but also by considering its design, its nature and the consequences that flow from the various interpretations.

consequences follow." See Hancock County Rural Elec., 494 N.E.2d at 1296. Moreover, the purpose and intent of the sixty day time period is to promote the prompt and expeditious resolution of the administrative matters by the ultimate authority. The time period is not intended as a jurisdictional prerequisite to a valid final order. Accordingly, a mandatory construction of subsection (f) would thwart the intention of the legislature. Although we understand Langen's frustration with the system and the length of time he has awaited a final determination of his penalty,See footnote 4 the trial court granted him an inappropriate remedy. We conclude that the sixty day time period is directory rather than mandatory, and the trial court erred when it vacated the Commission's final order as null and void.

STATE OF INDIANA,    )
            )
    Appellant - Defendant,    )
            )
     vs.    ) No. 45A04-9806-CV-281
            )
JAMES W. LANGEN,    )
            )
    Appellee-Plaintiff.    )    

    I concur in result. I agree that the Commission's order was timely and that the sixty- day period provided in Ind. Code § 4-21.5-3-29 began to run on the date the parties' briefs were due, because none were filed. However, the discussion and conclusion that the sixty- day period, and the word "shall," is directory rather than mandatory is unnecessary to reach this decision. In addition, since we have chosen to address the case on the merits, I do not join in the majority opinion on the waiver issue.

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