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Mank v. Bd. of Fire And Police Commrs.

SEPTEMBER 18, 1972.

LOUIS MANK, PLAINTIFF-APPELLEE,

v.

THE BOARD OF FIRE AND POLICE COMMISSIONERS ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Madison County; the Hon. FOSS D. MEYER, Judge, presiding.

MR. JUSTICE SMITH DELIVERED THE OPINION OF THE COURT:

This is an appeal by the Board of Fire and Police Commissioners of the City of Granite City from a circuit court judgment which reversed the discharge of a city policeman, Louis Mank. The Board of Fire and Police Commissioners heard charges against Louis Mank, and after the hearing, sustained six of the charges and ordered the discharge of Mank. The circuit court on administrative review of this decision found that Louis Mank did not receive a fair and impartial hearing and therefore reversed. The circuit court also found that some of the charges were barred by laches.

Louis Mank, the appellee, was a policeman employed by the City of Granite City. Thirteen charges were filed with the Board of Fire and Police Commissioners by the city police chief, one Ronald J. Veizer, in December, 1969. A hearing was held by the Board and the Board found that there was sufficient grounds to sustain six of the thirteen charges. The charges upon which the Board found against Mank were as follows:

(1) That Mank was employed by a private corporation from June 12, 1969, to November 23, 1969, when he was assigned as a patrolman and he did not request absence during that period of time.

(2) That Mank has failed to respond to directions of officers and resents authority and does not conform to acceptable standards for a patrolman.

(3) That on February 3, 1968, Mank issued a ticket to a police officer also in uniform and that charge was dropped.

(4) That on July 7, 1967, Mank struck a prisoner after he had been placed under arrest and was in custody without sufficient cause.

(5) That on November 26, 1966, Mank struck another individual without sufficient cause while he was on duty.

(6) That on May 23, 1966, Mank, while on duty, struck another individual causing him to be severely injured.

Upon the decision being rendered by the Board of Fire and Police Commissioners of the City of Granite City, administrative review was sought by Mank. After a hearing, the court reversed the Board, finding that "it was impossible for the Respondent, Louis Mank, to receive a fair and impartial hearing * * * for the reason that one of the members of the Board of Fire and Police Commissioners of the City of Granite City, a Municipal Corporation, to-wit, George Veizer, is also the father of the complainant in this matter * * *." The court also found that the last three charges were barred by laches, and that the second charge was unimportant and was unsubstantiated by admissible evidence. The first and third charges alone were found sustained by admissible evidence, but because of the ruling on the fair hearing, the discharge was reversed.

Pursuant to the Administrative Review Act, a notice of appeal was filed by the Board of Fire and Police Commissioners, appealing the decision of the Circuit Court. A motion to dismiss this appeal was made by Mank on the basis that the City of Granite City did not by resolution authorize that the appeal be taken. This motion was taken with the case.

The argument of Mank is that the City, as the governing body, must authorize the appeal by resolution. In support of his argument, Mank cites Hotchkiss v. Calumet City, 377 Ill. 615, 37 N.E.2d 332, and People v. City of Peoria, 378 Ill. 572, 39 N.E.2d 42, for his authority. Neither case is applicable. In Peoria, the City adopted a resolution to dismiss an appeal after several council members proceeded to appeal. The court held that the appeal was not authorized and dismissed it. In the Hotchkiss case, the real party in interest, the City, did not appeal. Members of the council did. However, as they were not the real parties in interest, their appeals could not be maintained and the City could not ratify and adopt their acts to affect the appeal on behalf of the City after the appeal time had elapsed.

• 1, 2 Both of the foregoing cases involved matters directly affecting the City and not an independent board created by statute. Division 2 of the Illinois Municipal Code (ch. 24, 1971 Ill. Rev. Stat., sec. 10-2.1-1 et seq.), creating the statutory basis for the Board of Fire and Police Commissioners, provides that a decision of that Board may be reviewed by Administrative Review (Section 10-2.1-17), and that the procedures adopted by that act and the rules promulgated thereunder apply to the proceedings. The Administrative Review Act (ch. 110A, 1971 Ill. Rev. Stat., sec. 264, et seq.), provides that review shall be sought in the Circuit Court by filing a complaint and that the administrative agency shall be made a party defendant. An administrative agency is, under Section 1, a "board * * * having power under law to make administrative decisions". The named defendants in this action were the Board of Fire and Police Commissioners and the individual members. Granite City was not made a party to the proceeding nor required to be a party. As the party in interest under the Administrative Review Act, and as the defendant in the action, the agency has the right to appeal under Section 13 on an adverse decision in the Circuit Court.

• 3 Furthermore, the legislative intent of Division 2 of the Municipal Code is to create an independent autonomous Board to review matters coming before it. The members are appointed for three-year terms and more than two members cannot be of the same political party. They may not be related by blood to elected officials in the City. The members are not subject to removal except after hearing upon written charges. The creation of the Board and the giving of the Board the powers that were given it clearly manifests the desire to create an independent Board. To say that the Board has to rely upon the city council for its actions in appealing or not appealing a case would seem to ...


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