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Paglini v. Police Board

OPINION FILED SEPTEMBER 26, 1975.

JOSEPH A. PAGLINI, APPELLEE,

v.

THE POLICE BOARD OF THE CITY OF CHICAGO ET AL., APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. F. Emmett Morrissey, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Joseph A. Paglini, the plaintiff, is a lieutenant of the Chicago Police Department and the defendants are the Police Board of the City of Chicago, Marlin Johnson, Morgan F. Murphy, Sr., Reverend Wilbur N. Daniel, Paul W. Goodrich and Louis S. Peick, the members of the Police Board; and James B. Conlisk, Jr., the then superintendent of police. The plaintiff filed a complaint in the circuit court of Cook County under the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.; ch. 24, par. 10-1-45) seeking review and reversal of a decision of the Police Board (the Board) which discharged him for violations of rules of the Department, and in particular for the improper solicitation and acceptance of $50 from a tavern owner. He argued before the circuit court that the proceeding against him was invalid because it was conducted by a hearing officer who was not a member of the Board, and because at no time during the hearing was a member of the Board present. This was contrary, he said, to the provisions of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 10-1-18.1). The plaintiff argued in the alternative that the decision of the Board was contrary to the manifest weight of the evidence. The circuit court held that the City of Chicago could authorize the Board to appoint hearing officers under the home rule powers granted the city by section 6(a) of article VII of the Constitution of Illinois. The court, however, reversed the decision discharging the plaintiff on the ground that it was against the manifest weight of the evidence. The defendants appealed to the appellate court from the reversal of the Board's decision, and the plaintiff cross-appealed from the court's holding that the proceeding before the hearing officer was legal. We have taken the appeals under our Rule 302(b). 58 Ill.2d R. 302(b).

The Illinois Municipal Code provides for hearings "before the Police Board or any member thereof" (Ill. Rev. Stat. 1973, ch. 24, par. 10-1-18.1). However, the City of Chicago by action of the city council amended the section of its code, section 11-3, pertaining to the Police Board. The amendment, which became effective in June 1972, provided inter alia for the appointment of hearing officers by the Board and authorized them to conduct hearings, make findings and present recommendations to the Board.

The plaintiff's contention on appeal is that a hearing officer appointed by the Board under the ordinance is an officer under section 6(f) of article VII of our constitution. As a consequence, he says the appointment must be approved by referendum as section 6(f) prescribes. However, we consider that the plaintiff's contention raises only the surface issue. An underlying question is whether the members of the Board themselves are officers within the meaning of section 6(f) so that a change in their office, for example, a change, as here, giving them power to appoint hearing officers to make findings and recommendations, is subject to approval by referendum.

Section 6(a) of article VII of the Constitution of 1970 contains a broad grant of powers to home rule units:

"(a) * * * Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt."

An ordinance of a home rule unit enacted under this grant of power can supersede a previously enacted conflicting statute. See Kanellos v. County of Cook, 53 Ill.2d 161, 166-67; People ex rel. Hanrahan v. Beck, 54 Ill.2d 561, 565-66.

One of the limitations referred to in section 6(a) appears in section 6(f). It states:

"A home rule unit shall have the power subject to approval by referendum to adopt, alter or repeal a form of government provided by law, except that the form of government of Cook County shall be subject to the provisions of Section 3 of this Article. A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law. A home rule county shall have the power to provide for its officers, their manner of selection and terms of office in the manner set forth in Section 4 of this Article."

The proceedings of the constitutional convention disclose that section 6(f) was drawn to provide home rule units with greater flexibility in determining the form or structure and the operation of their governments. 7 Record of Proceedings, Sixth Illinois Constitutional Convention, Committee on Local Government, Committee Report 1665-69; Baum, A Tentative Survey of Illinois Home Rule (Part I): Powers and Limitations, 1972 U. Ill. L.F. 137, 146-52; Parkhurst, Two Years Later: The Status of Home Rule in Illinois, 71 U. Ill. Bull. 26.

A reading of section 6(f) shows that its subject is the form of government of a home rule unit. If the form or structure of government is to be adopted, altered or repealed there must be an approval by referendum. When the section refers to a home rule municipality having the power to provide "for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law" the reference is to officers in the home rule unit's form of government. It is this character of officer whose office, manner of selection and term of office are to be subject to a referendum. There was no intendment by the constitutional convention that every person who might be said to be an "officer" under that broad and accommodable term would be an officer within the meaning of section 6(f). "[I]t is not to be assumed that a particular servant is an officer under all laws because he has been held to be an officer within the meaning of a particular provision." 3 Antieau, Municipal Corporation Law, sec. 22.00.

The form of government of the City of Chicago is set out in article 21 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 21-1 et seq.) which was adopted by referendum in an election on November 4, 1947. These sections provide inter alia for a mayor (ch. 24, par. 21-5), a corporation counsel (par. 21-11), a city clerk and a city treasurer (par. 21-12) and aldermen (par. 21-22), all of whom may be considered to be officers in the city's form or structure of government.

Members of the Board here are not officers in the form or structure of government of the City of Chicago and are not officers within the meaning of section 6(f). The city under its home rule powers could authorize the Board to appoint hearing officers without the necessity of a referendum.

We turn now to the city's contention that the circuit court erred in holding that the decision of the Board was contrary to the ...


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