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Klaren v. Board of Fire & Police Com'rs

SEPTEMBER 13, 1968.

CHARLES W. KLAREN, PLAINTIFF-APPELLEE,

v.

BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF WESTMONT, AN ILLINOIS CORPORATION, STEPHEN S. SZYMSKI, CHAIRMAN, FRANCIS S. MAIER, AND ALEX N. BRUNO, SECRETARY, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of DuPage County, Eighteenth Judicial Circuit; the Hon. WILLIAM C. ATTEN, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

The plaintiff filed an action for an administrative review of the decision of the Board of Fire and Police Commissioners of the Village of Westmont (the Board), which found that his status was "Sergeant of Police of the Village." The Circuit Court adjudged that the finding and decision of the Board should be held for naught and ordered the Board "to enter in and upon its records a finding that the plaintiff . . . is a `Captain of Police' of the Westmont Police Department." The Board appealed from this judgment.

On December 10, 1965, the plaintiff was requested to meet with the Board to discuss his status with the Westmont Police Department, and on January 5, 1966, the Board entered an order finding that the status of the plaintiff was to be designated as "Sergeant of Police of the Village."

On January 8, 1966, a copy of the finding was delivered to one of the attorneys for the plaintiff, and on February 1, the plaintiff filed a petition with the Board requesting a hearing on his status as a member of the Police Department and that the finding dated January 5, be set aside.

A hearing was held on the plaintiff's petition on February 28, 1966. On March 9, 1966, the Board made a finding that the evidence introduced at the hearing on February 28 was insufficient to warrant an order vacating the finding and order entered on January 5, and ordered that the petition to vacate such finding and order be denied; and that the status of the plaintiff as a Sergeant of Police of the Police Department of Westmont, as determined by the order entered January 5, 1966, be affirmed. The administrative review action and appeal followed.

The Board contends:

(1) that it was incumbent on the plaintiff to take an administrative review from the finding and order entered January 5, 1966;

(2) that the finding of the Board that the plaintiff was a sergeant of police was neither manifestly against the weight of the evidence, nor arbitrary or capricious, and the Circuit Court had no right to set it aside;

(3) that the Circuit Court had no right to interfere with the discretion of the Board in determining the status of the plaintiff;

(4) that the evidence definitely showed that the plaintiff was not entitled to be blanketed in as a captain of police in that he had not served for more than one year as such prior to the time a board of fire and police commissioners was appointed; and

(5) that the question involved is moot in that the plaintiff has taken a disability pension and is no longer a member of the police department.

In event we sustain the Board's threshold procedural contention, we will not reach the other reasons assigned for reversal of the judgment below.

It is uncontroverted that the Board entered an order on January 5, 1966, finding that the plaintiff held the status of sergeant of police. Notice and a copy of this order was served on one of the attorneys for the plaintiff on January 8, 1966.

A petition to set aside this order was filed on February 1, and on February 5, a stipulation was entered into between the attorneys for the Board, the Village, and the plaintiff, that the appeal period under the Administrative Review Act would commence as of the date of the final order on said ...


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