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Zinser v. Board of Fire And Police Com'rs

JANUARY 3, 1961.

EMIL ZINSER, JOHN FINKLEIN, FRANK HART, IRVIN SCHMITZ, FRANK BADER, FLOYD SCHMITZ, JOHN CHOUINARD, CLARENCE LIST, CHARLES BRAUN, EARL RITZHEIMER, KENNETH HARTMAN, RAYMOND GENTSCH, ELMER HOFFMAN, EDWARD HOCK, NORMAN SCHLESINGER, CLARENCE HOLCOMB, STANLEY SCHOBERT, EDWIN KLEIN, AND LELAND KNAPP, PLAINTIFFS-APPELLANTS,

v.

BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF BELLEVILLE, ILLINOIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of St. Clair county; the Hon. JOSEPH E. FLEMING, Judge, presiding. Affirmed.

HOFFMAN, JUSTICE.

Rehearing denied February 20, 1961.

This is a case involving the review of an order of the Board of Fire and Police Commissioners of the City of Belleville. Nineteen members of the Fire Department of the City of Belleville were found guilty of insubordination and were suspended for a period of 10 days without pay. Written charges had been filed with the Board of Fire and Police Commissioners by the Assistant Chief.

Specifically, the charge of insubordination was based on the failure of the 19 firemen involved to attend a refresher class that had been arranged for December 11, 1958 commencing at 7:15 in the evening. This class was a refresher course on various aspects of firefighting conducted by the National Board of Fire Underwriters. A notice had been posted on the various bulletin boards of the fire stations in the city on December 6, 1958 stating that all off-duty men were to report at the auditorium in the Belleville Township School for this refresher class. The notice was signed by the Assistant Chief of the Fire Department and had been ordered by the Chief who was then in the hospital.

After a full hearing, the Board found the men guilty of "wilfully and knowingly" ignoring the notice and held that this constituted a deliberate violation of the provisions of the fire department manual which provided that the Chief of the Fire Department had control and direction of all members of the fire department, and required that every member of the department should cheerfully conform to all orders, rules and regulations.

Under the provisions of the Administrative Review Act (Ill. Rev. Stat., 1959, chap. 110, par. 264 and following,) an appeal was taken from the order of the Board of Fire and Police Commissioners to the Circuit Court of St. Clair County. The Circuit Court sustained the decision of the Board.

On review, it is contended by the firemen that the record failed to show any legal cause to support the decision of the Board; that the requirement that the firemen attend the refresher course would violate the provision of the Illinois law pertaining to the number of hours that a fireman can work in a month; that the plaintiffs were not accorded a fair and impartial hearing; and that the decision was against the manifest weight of the evidence.

Section 11 of the Administrative Review Act (Ill. Re. Sta., 1959, chap. 110, par. 274,) provides:

"The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct."

[1-3] Many cases have explained the nature of the reviewing courts' consideration of a decision of an administrative board. The findings of the administrative agency on questions of fact are prima facie correct; they may be reviewed to determine if they are supported by the evidence, but they can be set aside only if they are against the manifest weight of the evidence. Fenyes v. State Employees' Retirement System, 17 Ill.2d 106, 111, 160 N.E.2d 810, 813. When there is evidence to support the findings of the administrative agency, the decision will be affirmed. The fact that a court hearing the case originally might have reached a different conclusion is immaterial, if the order of the administrative agency is not contrary to the manifest weight of the evidence. Adamek v. Civil Service Commission, 17 Ill. App.2d 11, 20, 149 N.E.2d 466, 471. We are thus limited to the determination of whether or not there is evidence to support the findings of the Board and whether the findings of the Board are against the manifest weight of the evidence. Parker v. Department of Registration and Education, 5 Ill.2d 288, 293, 294, 125 N.E.2d 494, 496, 497.

Article 14, Section 14-11 of the Revised Cities and Villages Act (Ill. Rev. Stat., 1959, chap. 24, par. 14-11,) provides that no member of the fire department of any municipality subject to the article shall be removed or suspended except for cause upon written charges and after an opportunity to be heard in his own defense. A broad discretion is accorded the Board of Fire and Police Commissioners in determining what constitutes a proper cause for suspension, but it is essential to the validity of such suspension, that it shall be based upon substantial misconduct or incapacity. Disobedience of a proper order given by a superior officer is such misconduct.

Consequently, the first question to determine is whether the notice to attend the refresher course could reasonably be construed as an order which the men had to obey. If it were a matter of discretion or an invitation to a social function, it would hardly be sufficient cause for suspension for a member who deliberately refused to attend. The notice stated:

"All off duty men are to report to the Belleville Township School Auditorium, Thursday, ...


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