Appeal from the United States District Court for the Northern District of Illinois - No. 75 C 3056 Joseph Samuel Perry, Judge.
Swygert, Sprecher and Wood, Circuit Judges. Wood, Circuit Judge, dissenting.
In 1971 the Village of Skokie, Illinois, a municipality of about 68,000 persons located northwest of Chicago, entered into a collective bargaining agreement with the Combined Counties Police Association as the bargaining agent for all of its approximately 96 police patrolmen. At the last negotiating session on June 27, 1975, for the fiscal year beginning May 1, 1975, a bargaining impasse was reached. The association thereupon decided to conduct a "uniform protest" which was to consist of reporting for work at the normal time out of uniform and remaining available for work out of uniform throughout the shift.
The uniform protest began at midnight on July 3, and ended July 13, 1975. Fifty-nine patrolmen members of the association participated as their various shifts were to commence. The Rules and Regulations of the Police Department of the Village of Skokie require the wearing of full uniform and require obedience to direct orders. When the 59 protestors reported at their respective roll calls, they were ordered to put on their uniforms and, failing to do so, were placed on no-pay status and ordered to leave the premises. They would leave the building but remain on the parking lot outside of the police station throughout their shift.
A small number of patrolmen returned to uniform duty after one to six days of protest, but most of them reported back on either July 13 or 14. During the course of the protest, almost all of the police officers participating had been charged with failure to report in uniform and refusing to change into uniform when directly ordered to do so, under Ill. Rev. Stat., ch. 24, § 10-2.1-17 (1975). Hearings were conducted before the Board of Fire and Police Commissioners on fourteen days or evenings over the period of July 14 to September 13, 1975.
Of the 59 policemen who participated in the "uniform protest," two of them resigned from the force. Of the remaining 57, two were never charged with any regulation violations, one was found not guilty, 20 were suspended for various numbers of days and 34 were discharged. Of those suspended, three were suspended for 30 days, 11 were suspended for 25 days, three for 15 days, two for six days and one for two days.
Thirty-two of the 34 discharged patrolmen brought this action, alleging deprivation of rights under the First, Fifth and Fourteenth Amendments to the Constitution, and under 42 U.S.C. §§ 1983 and 1985. Trial commenced on September 10, 1975 and concluded on January 21, 1976. Findings of fact, conclusions of law and a decree were entered by the district court on February 4, 1976. Olshock v. Village of Skokie, 411 F. Supp. 257 (N.D. Ill. 1976).
The district court reinstated all of the plaintiffs with back pay from July 4, 1975 to the date of reinstatement less the following amounts: (1) each plaintiff's salary for the ten days he was off duty on protest; (2) each plaintiff's salary for a maximum suspension period of 30 days (unless the defendants in their discretion reduced the suspension period in the case of any individual patrolman); (3) damages of $3,423.80, which was 1/59th of the Village of Skokie's excess payroll and other expenses resulting from the uniform protest in the total amount of $202,004.15; (4) all amounts received from full-time employment between July 4, 1975 and January 31, 1976; and (5) all amounts received as unemployment compensation from the State of Illinois (which amounts shall be repaid by the Village of Skokie to the State of Illinois). Back salaries were payable as of March 1, 1976 without interest prior to that date but were to bear interest of 5 per cent per annum from that date until paid.
The defendants, the Village of Skokie, the Board of Fire and Police Commissioners of the Village, the three individual members of the board, and the Village Chief of Police, appealed from the February 4, 1976 decree. The plaintiffs cross-appealed from that portion of the decree which directs an offset or deduction of $3,423.80 per plaintiff.
At the outset, we make it clear that the plaintiffs' actions in failing to report in proper uniform and in refusing to change into uniform when directly ordered to do so by their superior officers were in violation of Rules and Regulations of the Police Department of the Village of Skokie and under Illinois law would be cause for removal or discharge. The Supreme Court of the United States, in holding in Kelley v. Johnson, 425 U.S. 238, 96 S. Ct. 1440, 47 L. Ed. 2d 708, 44 U.S.L.W. 4469, 4472 (1976), that a county regulation limiting the length of a policeman's hair did not violate any right guaranteed to policemen by the Fourteenth Amendment, said:
The overwhelming majority of state and local police of the present day are uniformed. . . . This choice [that similarity in appearance of police officers is desirable] may be based on a desire to make police officers readily recognizable to the members of the public, or a desire for the esprit de corps which such similarity is felt to inculcate within the police force itself. Either one is a sufficiently rational justification for regulations so as to defeat respondent's claim based on the liberty guaranty of the Fourteenth Amendment.
Inasmuch as the Skokie regulations were rationally justified, their violation would create "cause" for removal or discharge under the applicable Illinois Statute. Ill. Rev. Stat., ch. 24, § 10-2.1-17 (1975).*fn1 The plaintiffs recognize this fact in one of their briefs when they concede that they do not "expect a favorable decision to in any way indicate approval of their protest actions."
However, we are confronted with another constitutional problem which arises out of the defendants' conduct of the "fair and impartial hearing" required by § 10-2.1-17.
In Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684, 44 U.S.L.W. 4820, 4821 (1976), the Supreme Court, in holding that a Marion, North Carolina, ordinance which had been interpreted as a matter of state law as permitting the discharge of a city policeman "at the will and pleasure of the city" did not create a property interest sufficient to invoke constitutional protection, said:
A property interest in employment can, of course, be created by ordinance, or by an implied contract.*fn2 In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law.*fn3
As the Court recognized in Bishop, six justices in Arnett v. Kennedy, 416 U.S. 134, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974), concluded that "because the employee could only be discharged for cause, he had a property interest which was entitled to constitutional protection," thus distinguishing Bishop from Arnett, 426 U.S. 341, at n.8.
We look then to the Illinois statute which provides that "no officer or member of the fire or police department of any municipality . . . shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense" and "the board of fire and police commissioners shall conduct a fair and impartial hearing of the charges . . . ." Ill. Rev. Stat., ch. 24, § 10-2.1-17 (1975).*fn4 In interpreting this statute, as applied to the dismissal of a village fireman, the Illinois Appellate Court said in Dendor v. Board of Fire and Police Commissioners, 11 Ill.App.3d 582, 588-589, 297 N.E.2d 316, 321 (1st Dist. 1973):
We begin with the premise that although a public employee does not have a constitutional right to such employment, he cannot be barred or removed from that employment arbitrarily or in disregard of his constitutional rights. (Fort v. Civil Service Commission of County of Alameda, (1964) 61 Cal.2d 331, 38 Cal. Rptr. 625, 392 P.2d 385.) It can be said with equal certainty that acceptance of public employment is not an abandonment of constitutionally protected rights.
The Illinois Supreme Court has held that "the authority given the Board of Fire and Police Commissioners to remove only for cause is not an arbitrary one, but is to be exercised on just and reasonable grounds." Fantozzi v. Board of Fire and Police Commissioners, 27 Ill.2d 357, 360, 189 N.E.2d 275, 277 (1963). The Illinois Appellate Court reversed the Board of Fire and Police Commissioner's discharge of a fireman, who had left headquarters without permission, on the ground that "in view of the unprofessional working conditions of this fire department, we find it difficult to believe that . . . [leaving without permission] constitute[s] 'good cause' for discharge . . . [inasmuch as] firemen were often away from their posts of duty for short periods." Smith v. O'Keefe, 9 Ill.App.3d 814, 823, 293 N.E.2d 142, 149 (5th Dist. 1973).
The Supreme Court recently held in Hortonville Joint School District v. Hortonville Education Ass'n, 426 U.S. 482, 96 S. Ct. 2308, 49 L. Ed. 2d 1, 44 U.S.L.W. 4864, 4867 (1976), that the members of a school board which discharged teachers who had gone on strike in ...