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Collins v. Towle

JANUARY 27, 1972.

DONALD W. COLLINS, PLAINTIFF-APPELLEE,

v.

EDWIN C. TOWLE ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Saline County; the Hon. HARRY L. McCABE, Judge, presiding.

MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

The Board of Police and Fire Commissioners of the City of Harrisburg, Illinois, appeal the trial court's entry of summary judgment on plaintiff's motion in an administrative review of his discharge as a probationary policeman. The trial court, in accordance with Chapter 24, Sec. 10-2.1-17, Illinois Revised Statutes, 1969, and the Illinois Administrative Review Act, especially Chapter 110, Sec. 268, Illinois Revised Statutes, 1945, ordered plaintiff's reinstatement. We affirm.

The record discloses that the City of Harrisburg was subject to Division 2.1, Article X, of the Illinois Municipal Code (Ill. Rev. Stat., 1969, ch. 24, pars. 10-2.1-1 to 10-2.1-29,) (hereinafter, Municipal Code) which governs the appointment, tenure, promotion and discharge of police and fire officials in certain municipalities. On or about October 13, 1969, plaintiff was appointed to the Harrisburg Police Department. On April 14, 1970, plaintiff received a letter signed by defendant which stated:

"In accordance with the attached letter from Mr. Roy Lane, Commissioner of Police * * * and by the verbal request of Mr. Ross Lane, Chief of Police * * * we hereby notify you of your dismissal from the Police Department * * *." Defendant's Exhibit A.

The attached letter referred to in defendant's exhibit A was designated defendant's exhibit B. It indicated that the written recommendation of Roy Lane that plaintiff be dismissed was based upon an alleged act of insubordination, namely, his refusal to resign from a part-time job.

In his complaint, plaintiff alleges that defendants violated the Municipal Code. Specifically, he avers "that no written charges were served upon, or exhibited to, the plaintiff, nor were any valid written charges prepared or filed, nor was there a hearing before said board at a regular meeting, or at any other time regarding said charges or reason for the discharge of plaintiff as a police officer in and for the City of Harrisburg, Illinois, all in violation of Section 10-2.1-17 of the Municipal Code * * *."

Section 10-2.1-17 of the Municipal Code states:

"* * * No officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense * * *."

Division 2.1 explicitly provides for only two types of appointment, "regular" (10-2.1-4) and "temporary" (10-2.1-16). The rule-making authority of a board of police and fire commissioners is limited by Section 10-2.1-5. That section states that the governing body of a municipality subject to the Division may authorize the board of police and fire commissioners to promulgate rules in order to "(1) carry out the purpose of this Division 2.1, and (2) for appointment and removals in accordance with the provisions of this Division 2.1. * * *" Furthermore, this section limits a board's rule-making power thus:

"These rules of the board shall apply only to the conduct of examinations for original appointments, for promotions, and to the conduct of hearings on charges brought against a member of the police or fire department."

The Division contains no explicit provision authorizing the existence of "probationary" status of original appointment. However, Section 10-2.1-15, which deals with the unrelated subject of examinations for promotion, states in relevant part:

"The method of examination * * * shall be the same as for applicants for original appointment, except that original appointments only shall be on probation, as provided by the rules."

Careful reading of this provision reveals that the phrase "as provided by the rules" might modify the word "probation" or, alternatively, the phrase "examination * * * for original appointment." We find that the most reasonable solution of this ambiguity, and the one most consistent with sub-section 5, quoted supra, is that it modifies the latter phrase.

At all relevant times, the following two rules, promulgated by defendants in accordance with the grant of rule-making authority from the municipal government ...


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