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Romanik v. Bd. of Fire & Police Com.

OPINION FILED SEPTEMBER 26, 1975.

ROBERT ROMANIK, APPELLEE,

v.

THE BOARD OF FIRE AND POLICE COMMISSIONERS OF EAST ST. LOUIS, APPELLANT.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County; the Hon. Robert L. Gagen, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 21, 1975.

We allowed leave to appeal in this case to review a judgment of the Fifth District Appellate Court (19 Ill. App.3d 431), which held that a probationary police patrolman could not be discharged without a formal hearing after notice of the grounds for the discharge. We reverse that judgment.

The probationary patrolman, Robert Romanik, was discharged by the East St. Louis Board of Fire and Police Commissioners during his probationary period. The Board acted on the written recommendation of the chief of the department which was accompanied by a record of the occurrences upon which it was based.

Romanik brought this action against the Board, alleging that he had not been given notice of the charges against him or a hearing at which he could answer them, and seeking reinstatement and back pay. The circuit court of St. Clair County initially dismissed the complaint, but then reconsidered its order and entered a judgment reinstating Romanik and awarding him back pay after the appellate court handed down its decision in Collins v. Towle (1972), 3 Ill. App.3d 753. The appellate court in the present case interpreted Collins as holding that "probationary patrolmen are to be considered as members of the police department for the purpose of the division of the Municipal Code dealing with removal or discharge; specifically including therein section 10-2.1-17." (19 Ill. App.3d at 431-32.) That section requires notice of charges and a formal hearing before removal or discharge.

Because the present case was decided solely upon the basis of the appellate court's opinion in Collins v. Towle, we turn at once to a consideration of that opinion. The appellate court there held that the appointment of policemen to a probationary status is authorized by section 10-2.1-15 which states: "The method of examination and the rules governing examinations for promotion shall be the same as provided for applicants for original appointment, except that original appointments only shall be on probation, as provided by the rules." Ill. Rev. Stat. 1973, ch. 24, par. 10-2.1-15.

But the appellate court avoided what would seem to be the clear meaning of this provision by holding that the last phrase of the sentence, "as provided by the rules" does not authorize the adoption of rules governing original appointments on probation, but instead modifies the phrase "examination * * * for original appointment." This construction eliminates, for practical purposes, the statutory grant of authority to provide by rule for original appointments on probation. In so doing it runs counter to the basic philosophy underlying our civil service laws, and to long standing authority.

In 1936 the applicable statute provided, just as it does today, for two types of appointment, "regular" and "temporary." But it differed from the statute now before us in that it contained no reference whatsoever to probationary appointments. Nevertheless, the appellate court in People ex rel. Betts v. Village of Maywood (1st Dist. 1938), 298 Ill. App. 160, 170, held that the Board of Fire and Police Commissioners of the Village of Maywood was authorized "to make a rule [Rule 106] providing for a probationary period or to make probationary appointments." The court said:

"* * * In our opinion it is sufficient answer to plaintiff's contention in this regard to state that in the light of the spirit and policy manifested in all the civil service enactments of the legislature, the broad powers conferred upon the board under section 5 of the act to make rules `to carry out the purpose of this act, and for appointments and removals' authorized said board to adopt Rule 106. * * * Because of the very nature of the duties of firemen and policemen, in the performance of which the highest courage in dangerous situations is a prime requisite, we think the legislature must have intended that the ability to pass a written and physical examination should not be the final test. It is only through probationary appointments for a reasonable period, during which firemen and policemen may be observed in the actual performance of their duties in situations of danger, that their real worth and mettle may be tested. We are impelled to the conclusion that in enacting the Board of Fire and Police Commissioners Act, it was within the contemplation of the legislature that the board adopt reasonable rules as to probationary appointments." 298 Ill. App. 160, 170-71.

The relevant circumstances have not changed since 1936, and we hold that the protection afforded by section 10-2.1-17 does not extend to probationary officers, because until they have completed their probationary term, they have not been "appointed" in the manner contemplated by the statute. (See Fish v. McGann (1903), 205 Ill. 179.) A prospective police officer's performance on written and physical examinations no more conclusively measures his actual fitness for the job than a Ph. D. degree necessarily indicates an ability to teach. The science of testing cannot indicate how a person will react under situations of unmonitored trust, grave responsibility, or severe stress. Nor can it warn of such characteristics as rudeness, insubordination, arrogance, laziness, carelessness, dishonesty, or malice. A municipality is not required to rely at its peril upon the results of written examinations in the original appointment of its police officers.

We hold that section 10-2.1-17 applies only to an officer who has completed his probationary period, and that section 10-2.1-15 authorized the Board to adopt its rule providing for summary discharge of probationary police officers. The judgments of the circuit and appellate courts are therefore reversed.

Judgments reversed.

MR. JUSTICE GOLDENHERSH, dissenting:

I dissent. In my opinion the provisions of section 10-2.1-17 of the Municipal Code require that the judgments of the ...


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