Appeal from the Circuit Court of Cook County; the Hon. Nathan
M. Cohen, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The plaintiff, a member of the police force of the City of Chicago, was summarily suspended for 30 days, after being advised that an anonymous party had charged that he did not reside within the City of Chicago. The plaintiff denied the charge and requested a hearing, but none was held prior to suspension. Following the procedures established by section 10-1-18.1 of the Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 10-1-18.1), the order of suspension was issued without notice or hearing before the police board, or any other body. The plaintiff then filed suit in the circuit court of Cook County to enjoin his suspension. A temporary injunction was issued on November 30, 1972, and a decree for permanent injunction on January 22, 1973.
This case was heard on complaint and motion to dismiss. Hence, all well-pleaded facts were admitted for the purpose of ruling on the motion. The sworn complaint alleged that the City of Chicago is a municipal corporation established under the laws of the State of Illinois; that Kropel was a resident of the City of Chicago; that he is and has been employed as a police officer of the City for over 7 years; that he made a written request for a hearing, which was not granted; that his salary is $1162 per month and a 30-day suspension would cause a loss of salary to him in that amount; and that the section of the Code, ordinance and regulation under which the City purports to act violates the first, fourth, fifth, ninth, thirteenth and fourteenth amendments to the United States Constitution and sections 1, 2, 5, 6, 12, 18, 21 and 24 of article I of the Illinois Constitution.
The circuit court held that the section of the Code authorizing summary suspension for up to 30 days without hearing violated the constitutions of the United States and the State of Illinois, and the court upheld the validity of the residency requirement of chapter 25 of the Chicago Municipal Code and Police Rule 24, which provided that officers on the City of Chicago Police Department must live within the city limits of the City of Chicago.
The case comes directly to this court pursuant to Supreme Court Rule 302(a)(1) (Ill. Rev. Stat. 1973, ch. 110A, par. 302(a)(1)) inasmuch as a statute of the State of Illinois was declared unconstitutional in the circuit court.
The statute in question is section 10-1-18.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 10-1-18.1). Pertinent parts of such paragraph read:
"In any municipality of more than 500,000 population, no officer or employee of the police department in the classified civil service of the municipality whose appointment has become complete may be removed or discharged, or suspended for more than 30 days except for cause upon written charges and after an opportunity to be heard in his own defense by the Police Board. * * *
Nothing in this Section limits the power of the superintendent to suspend a subordinate for a reasonable period, not exceeding 30 days."
The application of section 10-1-18.1 is limited to municipalities with a population of more than 500,000, and to those situations where a policeman may be discharged or suspended. Section 10-1-18.1, as set forth above, mandates a police-board hearing with full rights where discharge or more than 30 days suspension is recommended. The police board consists of five persons appointed by the mayor with the consent of the city council.
This section should be construed in light of the analogous provisions of the Municipal Code and the State Personnel Code. An inspection of those sections indicates that it is generally considered appropriate for such a statute to allow for a 30-day period during which an employee may be suspended without being entitled to a full hearing. However, it is also common to provide for some manner of review of such a suspension if it is imposed for more than 5 days.
Section 10-1-18 of the Municipal Code applies to city officers and employees generally, with the exception of police officers in cities of more than 500,000 population. It provides, in pertinent part:
"Except as hereinafter provided in this section, no officer or employee in the classified civil service of any municipality who is appointed under the rules and after examination, may be removed or discharged, or suspended for a period of more than 30 days, except for cause upon written charges and after an opportunity to be heard in his own defense. * * * Before any officer or employee in the classified service of any municipality may be interrogated or examined by or before any disciplinary board, or departmental agent or investigator, the results of which hearing, interrogation or examination may be the basis for filing charges seeking his removal or discharge, he must be advised in writing as to what specific improper or illegal act he is alleged to have committed; he must be advised in writing that his admissions made in the course of the hearing, interrogation or examination may be used as the basis for charges seeking his removal or discharge; and he must be advised in writing that he has the right to counsel of his own choosing present to advise him at any hearing, interrogation or examination; and a complete record of any hearing, interrogation or examination shall be made and a complete transcript thereof made available to such officer or employee without charge and without delay. Nothing in this Division 1 limits the power of any officer to suspend a subordinate for a reasonable period, not exceeding 30 days except that any employee or officer suspended for more than 5 days or suspended within 6 months after a previous suspension shall be entitled, upon request, to a hearing before the civil service commission concerning the propriety of such suspension." (Emphasis added.) Ill. Rev. Stat. 1973, ch. 24, par. 10-1-18.
This section recognizes two areas of possible abuse in the area of summary suspension. First, it recognizes that such suspensions do have a substantial economic impact on the employee, so a review procedure is available if the suspension is for more than 5 days. Second, it recognizes that there must be some limitation on the authority to summarily suspend, for absent such a limitation, ...