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Flynn v. Board of Fire & Police Commissioners

OCTOBER 22, 1975.

WESLEY E. FLYNN, PLAINTIFF-APPELLANT,

v.

BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF HARRISBURG ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Saline County; the Hon. DOROTHY SPOMER, Judge, presiding.

MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the Circuit Court of Saline County which affirmed a decision of the Board of Fire and Police Commissioners of the City of Harrisburg, Illinois. The Board found: (1) plaintiff-appellant was guilty of acts unbecoming a police officer which tended to bring disrepute upon the Police Department of the City of Harrisburg, contrary to the rules and regulations of the Police Department of the City of Harrisburg; and (2) the evidence was sufficient to warrant a finding that plaintiff-appellant was guilty of conduct unbecoming a police officer in that he did criminal damage to property, entered complainant's automobile without authority and committed an assault upon complainant, all in violation of the statutes of the State of Illinois. By reason of these findings of fact and guilt, the Board determined that cause existed for the discharge of plaintiff-appellant from his position as a police officer.

• 1 The appellant's first contention on appeal is that the Board of Fire and Police Commissioners (hereinafter referred to as the Board) lost jurisdiction of this case when they granted a continuance of the hearing beyond the prescribed 30 days on their own motion. The rules of the Board specifically state:

"If the officer or fireman is suspended pending hearing, the Board may not, on its own motion, continue the hearing to a date beyond thirty days from the date of suspension." (Rules and Regulations of the Board of Fire and Police Commissioners, City of Harrisburg, Illinois, art. V, § 3 (1959).)

In the instant case the appellant was originally suspended on April 5, 1973, for a period of 30 days. The hearing with reference to the charges was held on May 2, 1973, and on May 3, 1973, the Board granted a continuance upon its own motion in order that polygraph tests might be given. On June 4, 1973, the Board discharged the appellant as a police officer.

Although the Board did not comply with its own rules, we are not of the opinion that this noncompliance caused it to lose jurisdiction of the case. In Brewton v. Civil Service Com., 115 Ill. App.2d 460, the court construed a similar provision as not being jurisdictional. In that case the officer was suspended for 30 days and the charges were filed after the 30-day period prescribed by section 10-1-18 of the Municipal Code (Ill. Rev. Stat. 1965, ch. 24, § 10-1-18). The court concluded that allowing the filing of charges after the 30-day period resulted in no great prejudice because the defendant loses no right to a hearing or review and may have a remedy elsewhere for whatever harm occurred.

In addition the enabling legislation for the Board provides:

"The board of fire and police commissioners shall conduct a fair and impartial hearing of charges, * * * which hearing may be continued from time to time." (Ill. Rev. Stat. 1969, ch. 24, § 10-2.1-17.)

Therefore although the Board failed to comply with its own rules it was still within the limitations set forth by the legislature which ultimately prescribes what jurisdiction an administrative agency will have. Because we cannot discover any prejudice resulting to the appellant and the appellant has only directed our attention to cases which state that rules of an administrative agency have the force and effect of law and an agency is bound by its rules, we conclude the Board in the instant case did not lose jurisdiction by the continuance.

• 2 The appellant next contends the Board failed to make an independent determination of "cause for removal" and instead adopted a criteria set forth by the City Council of Harrisburg. In its order discharging the appellant the Board found the following:

"6. Respondent, as charged herein, and contrary to the Rules and Regulations of the Police Department of the City of Harrisburg, Illinois, is guilty of acts unbecoming a police officer, which tended to bring disrepute upon the Police Department of the City of Harrisburg.

7. That the evidence herein is sufficient to warrant a finding and this Board does so find that the Respondent was guilty of conduct unbecoming a police officer in that he did criminal damage to the property of Carolyn Sue Thompson by breaking out the rear window of her 1973 Pontiac Bonneville automobile and further without authority of the said Carolyn Sue Thompson entered her said automobile and further find that Respondent committed assault upon Carolyn Sue Thompson, all in violation of the Statutes of the State of Illinois.

By reason of the findings of fact and the guilt herein, cause exists for the discharge of the Respondent, Wesley B. Flynn, from his position as a police officer in and for the City of Harrisburg, Illinois."

It is appellant's contention as to finding "6" that the Rules and Regulations of the Board do not specify any conduct for a policeman or any acts which may be prohibited. Appellant contends further that the Board under finding "6" yielded its obligation to determine "cause" to the City Council because the Council passed an ordinance providing the Board may remove a policeman for unbecoming conduct which is detrimental to the best interest of the city.

Although section 10-2.1-17 of the Municipal Code (Ill. Rev. Stat. 1969, ch. 24, § 10-2.1-17) specifies the Board is to determine "cause" there is statutory authority under which the city may prescribe the duties and powers of police officers. (Ill. Rev. Stat. 1961, ch. 24, § 11-1-2.) In addition, section 5-3-10 of the Code (Ill. Rev. Stat. 1961, ch. 24, § 5-3-10) provides, "[t]he council or board may by such ordinance * * * (3) make such rules and regulations as may be necessary or proper for the efficient and economical conduct of the business of the city or village." In Quinlan v. Board of Fire and Police Commissioners, 27 Ill. App.3d 286, the court held that reference to the city's ordinance proscribing conduct unbecoming a police officer by the city board of fire and police commissioners during disciplinary hearings against city police chief did not prevent the board from making an independent determination of "cause for suspension."

The ordinance passed by the City was consistent with the requirement that the Board should determine "cause" as the ordinance only stated that certain conduct "may be" grounds for discharge, not that it "shall be." The former language still allows the Board to make the determination.

• 3, 4 There is some merit to the appellant's argument that the Rules and Regulations of the Board do not contain any rule regarding conduct unbecoming a police officer and therefore the appellant could not have been guilty of violating those rules. Even though the appellant might not have violated a rule of the Board as found in paragraph "6," a single valid finding of "cause" is sufficient to constitute the basis for an order of discharge. (Moriarty v. Police Board, 7 Ill. App.3d 978.) We are of the opinion the finding in paragraph "7" states a valid "cause" for discharge.

• 5 Before reaching a decision as to whether there was "cause" for the discharge, it is necessary to determine if the finding itself was adequate. The rule in Illinois is that a decision of an administrative agency must contain findings so as to make judicial review of that decision possible. (Reinhardt v. Board of Education, 61 Ill.2d 101.) The decision in the instant case stated adequate findings of fact and guilt in paragraph "7." The Board not only found the appellant guilty of conduct unbecoming an officer but also criminal damage to property by breaking out the window of Ms. Thompson's car, entry into a car without authority, and assaulting Ms. Thompson. The ...


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