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Westby v. Bd. of Fire & Police Comm'rs

OPINION FILED APRIL 29, 1977.

MARVIN WESTBY, PLAINTIFF-APPELLANT,

v.

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



APPEAL from the Circuit Court of Kendall County; the Hon. CARL A. SWANSON, JR., Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

The plaintiff seeks reinstatement as chief of police of the city of Plano. He had been discharged following a hearing before the Board of Fire and Police Commissioners of the City. Acting on his complaint for administrative review, the circuit court affirmed the decision of the board.

The plaintiff appeals, contending that the failure of the board to adopt and publish rules deprived him of due process, that he did not receive a fair and impartial hearing before the board, and that the findings of the board are against the manifest weight of the evidence.

The City of Plano is a community of approximately 5,000 people with a part-time mayor and with infrequent serious crime. The police department is composed of one chief of police, one sergeant, five officers and five radio operators. Some are only part-time employees. The department has two patrol cars and one unmarked car. At any given time the number of policemen actually on duty ranges from three to one. When a single officer is on duty the chief and the sergeant are apparently considered to be "on call" 24 hours a day. The city adopted a Board of Fire and Police Commissioners pursuant to section 10-2.1-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 10-2.1-1) by an election on April 15, 1975. The board assumed office shortly thereafter. Although rules and procedures were being considered, the board had failed to adopt rules to govern dismissal proceedings at the time of the dismissal hearing on October 27, 1975.

• 1-3 The failure of the board to adopt rules pursuant to section 10-2.1-5 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 10-2.1-5) ("The board shall make rules * * * for appointments and removals * * *") did not adversely affect plaintiff in this case, however, and is therefore not cause for a reversal.

The statute also states as pertinent:

"no officer * * * shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. The board * * * shall conduct a fair and impartial hearing of the charges * * *." (Ill. Rev. Stat. 1975, ch. 24, par. 10-2.1-17.)

The provision that rules of procedure shall be adopted by the board is in aid of the legislative purpose that the board be an independent agency free from political and other influences and thus able to provide a fair and impartial hearing. (Stryker v. Village of Oak Park, 62 Ill.2d 523, 533 (1976); Mank v. Board of Fire & Police Commissioners, 7 Ill. App.3d 478, 482 (1972).) Rules must be adopted by the board within a reasonable time but the failure to adopt rules does not deprive the board of jurisdiction to hear and decide the charges. Mank v. Board of Fire & Police Commissioners, 7 Ill. App.3d 478, 483 (1972).

It has been held that the failure to follow rules even when they have been adopted does not require reversal of an administrative order unless prejudice is demonstrated. (Flynn v. Board of Fire & Police Commissioners, 33 Ill. App.3d 394, 397 (1975).) In our view we are led to the same inquiry whether the board has failed to adopt rules or whether it has adopted rules and failed to heed them. In each case the question is whether the failure has prejudiced the plaintiff and prevented him from receiving the fair and impartial hearing which the statute mandates.

• 4 Plaintiff's contention that he did not receive a fair and impartial hearing is not substantiated by the record. He complains that he was not permitted to name witnesses for the board to subpoena. His only request for a subpoena appearing on the record, however, was for the appearance of Larry Nelson, the owner of the local radio station. Nelson appeared at the hearing as a reporter for the station and a subpoena was in fact issued by the board and served on him. Plaintiff's counsel sought to elicit testimony from Nelson as to an alleged meeting where Chief Westby was asked to resign and the witness claimed the privilege of the news media not to divulge his sources of information. The failure to adopt rules was in no way related to the witness' refusal to testify.

• 5 Plaintiff's further complaint that he was denied a continuance again is related to the board's failure to adopt rules and was a permissible exercise of the board's discretion.

• 6 It further appears that the hearing was conducted with full regard for plaintiff's due process rights. The board was represented by its own attorney who did not participate in any questioning of the witnesses or otherwise act as prosecutor. (Contrast Gigger v. Board of Fire & Police Commissioners, 23 Ill. App.2d 433, 437 (1960). See also Phillips v. Board of Fire & Police Commissioners, 24 Ill. App.3d 242, 244 (1974).) The city attorney represented the complainants. Plaintiff was represented by counsel of his choice who was permitted lengthy cross-examination of all witnesses and the opportunity to call witnesses in plaintiff's behalf. Moreover, the board's ruling on the objections of both parties, on a review of the record, appears to have been impartial. We conclude that the procedure followed at the hearing afforded due process. Chambliss v. Board of Fire & Police Commissioners, 20 Ill. App.3d 24, 31 (1974). See also Flynn v. Board of Fire & Police Commissioners, 33 Ill. App.3d 394, 402 (1975).

• 7 Plaintiff has suggested a number of other circumstances which he claims have impugned the fairness and impartiality of the proceeding. He suggests that the fact that all but one of the members of the police department of the city had written letters stating that they would resign if Westby remained a police chief made a fair hearing impossible. We do not agree. The attitudes of co-employees are relevant to the charge that plaintiff's conduct had adversely affected the morale of the department and the letters do not appear to be improperly motivated. It was appropriate for the board to receive the letters as part of its preliminary investigative function in determining whether formal charges resulting in the administrative hearing were justified. (See Morelli v. Board of Education, 42 Ill. App.3d 722, 730 (1976); cf. Reich v. Board of Fire & Police Commissioners, 13 Ill. App.3d 1031, 1035-36 (1973).) Except for two findings (18c and 20b) which apparently were based on only the evidence of the letters and which will be discussed in another part of this opinion, there is nothing in the record to support plaintiff's argument that the board had acted improperly in this regard.

• 8, 9 Plaintiff also contends that the fact that the mayor suggested that he resign at a private meeting prior to the hearing suggests that plaintiff's fate was determined at that time. The mayor's suggestion, however, was to avoid the expense and general publicity of a hearing brought about by charges made by practically the entire police department. His suggestion that plaintiff resign does not affect the fairness of the hearing which plaintiff chose to undergo. The further claim that there is an appearance of impropriety because the mayor appointed his immediate supervisor in his private employment as one of the members of the board is not persuasive. Plaintiff has cited in support of this suggestion the case of Mank v. Board of Fire & ...


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