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Le Desma v. Burr Ridge Fire & Police Com.

OPINION FILED JUNE 1, 1978.

LEON LE DESMA, PLAINTIFF-APPELLANT,

v.

THE VILLAGE OF BURR RIDGE FIRE AND POLICE COMMISSION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Du Page County; the Hon. CHARLES R. NORGLE, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Plaintiff, Leon Le Desma, appeals from orders of the Circuit Court of Du Page County denying his petition for injunction against defendant Village of Burr Ridge Fire and Police Commission (Commission). Defendant Village of Burr Ridge Board of Trustees (Trustees) joins the Commission in an interlocutory appeal of a stay order entered by the trial court prohibiting the Commission from hearing charges against plaintiff pending his appeal from the order denying injunction. Plaintiff has filed a further motion to dismiss the interlocutory appeal which we have ordered taken with the case and we have consolidated these appeals for hearing and decision.

Plaintiff had been a police officer of the village for eight years prior to March 31, 1977, and held the rank of sergeant. As a result of an incident occurring at a motel in the village on March 23, 1977, the chief of police issued a written order suspending plaintiff from duty for five days without pay and reducing him in rank to patrolman. At plaintiff's request, a hearing of the charges against him was held by the Trustees at the conclusion of which he was informed that the Trustees would consider the evidence and render a written decision. They have not yet done so.

While this matter was being considered by the Trustees the village adopted division 2.1 of article 10 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, pars. 10-2.1-1 through 10-2.1-30), which provides for a board of fire and police commissioners, and the Commission established pursuant to that division now seeks to consider the same charges against plaintiff. Plaintiff contends that the Trustees retained jurisdiction to hear and decide his appeal to them of the disciplinary penalty imposed by the chief of police. Defendants, on the other hand, contend the Commission has sole jurisdiction and may consider the charges anew and impose such penalties, including discharge, as seem appropriate. The trial court, in effect, determined that the Commission has exclusive jurisdiction to consider disciplinary matters within the village police department. We agree with that general conclusion.

The disciplinary proceedings we have described were carried out pursuant to ordinances of the village enacted by authority of section 11-1-2 of the Illinois Municipal Code which provides that "[t]he corporate authorities of each municipality may prescribe the duties and powers of all police officers." (Ill. Rev. Stat. 1975, ch. 24, par. 11-1-2.) The ordinance governing the police department adopted by the village provides in section 29-15 that "[a]ppointments to, promotions within and discharges from the police department shall be made by the president with the approval of the board of trustees," and that the Trustees may suspend any member of the department for a period of 60 days. Section 7.01 of the police department rules and regulations, adopted by the Trustees, provides the procedures and penalties for disciplinary actions which may be taken against an officer and requires that the chief of police make an investigation and thereafter "the suspect officer will be charged with a violation or exonerated." The regulations further provide that a written report of any charges shall be made to the violating officer and that "he may apply for an opportunity to be heard in his own defense by either the board or the chief of police."

The only written report of charges made to plaintiff by the chief of police was dated March 31, 1977, and entitled "Order of Suspension and Demotion." It notified plaintiff that pursuant to the village ordinance he was suspended for five days without pay from March 25 through March 29, 1977, and effective March 31, 1977, was demoted to patrolman by order of the village president. The order further described the reasons upon which it was based as a charge that on March 23, 1977, plaintiff became intoxicated and created a disturbance on the premises of a Ramada Inn by removing his revolver and placing it on a bar in a threatening and careless manner in violation of specified rules and regulations of the police department.

On April 8, 1977, plaintiff was advised by letter from the chief of police of his right to a hearing before the Trustees and on April 11 he formally demanded that hearing. He was thereafter given a written notice that the hearing would be held by the Trustees on May 31 on the same charges specified in the earlier order by the chief and that plaintiff would thereafter be either exonerated, suspended further, demoted or discharged or that the five-day suspension imposed by the chief would be confirmed or expunged. As we earlier indicated, the disciplinary hearing was then held by the Trustees on May 31, June 15 and June 29, 1977, totaling some five hours of proceedings, and its decision is yet to be announced.

During the time we described, however, on April 19, 1977, at an election held pursuant to section 10-2.1-27 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 10-2.1-27), the Village of Burr Ridge adopted division 2.1 of article 10 of the Code (Ill. Rev. Stat. 1975, ch. 24, pars. 10-2.1-1 through 10-2.1-30) which provides for the appointment of a board of fire and police commissioners. Thereafter, as is provided by section 10-2.1-1 of the Code, the president of the village, with the consent of the Trustees, appointed the members of the new board of fire and police commissioners. Plaintiff was notified by the Commission that a hearing would be held before it on October 8, 1977, relating to the same conduct and charges previously heard by the Trustees and that the Commission would thereafter take such action, including plaintiff's discharge, as it deemed appropriate. Plaintiff's effort to prevent that hearing by injunction was refused by the trial court and is the subject of this appeal. The determinative issue which we must resolve is whether the Trustees or the Commission now have jurisdiction to consider the disciplinary action against plaintiff which we have described.

• 1 When a municipality becomes subject to the provisions of the board of fire and police commissioners division of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, pars. 10-2.1-1 through 10-2.1-30) the commissioners appointed thereunder have exclusive jurisdiction to consider charges against a police officer which might subject him to discharge or suspension exceeding five days (Ill. Rev. Stat. 1975, ch. 24, par. 10-2.1-17; see Edwards v. City of Marion (1970), 130 Ill. App.2d 895, 899-900, 266 N.E.2d 491, 494) and a city council or village board of trustees would not then be authorized to exercise disciplinary action against an officer as the power to do so is vested solely in the board of fire and police commissioners (see Bovinette v. City of Mascoutah (1973), 55 Ill.2d 129, 302 N.E.2d 313). The case before us is unique in that the disciplinary action taken against plaintiff commenced at a time when only the chief of police or the Trustees were authorized to take such action. That was also true on April 11, 1977, when plaintiff requested the hearing to which he was entitled before the Trustees. Counsel advised the court during oral argument that at some point before the Trustees could render a decision they were informed of a possible jurisdictional conflict with the newly formed Commission and for that reason have chosen not to render their decision. The Trustees and Commission stand together in their arguments on this appeal, both contending jurisdiction lies solely with the Commission in this matter.

Our analysis of these unusual proceedings and the applicable village ordinances, departmental rules and statutes leads to the conclusion that plaintiff was investigated and disciplined by the chief of police, who was authorized to do so, and that neither the Trustees nor the Commission is empowered to thereafter increase the penalty so imposed.

The disciplinary scheme shown by the village ordinances and police department rules and regulations permitted the chief of police to suspend an officer, with pay, during his investigation. *fn1 Departmental rule 7.02 sets out the penalties which may be imposed by way of disciplinary action against an officer and provides for the following:

"1. Reprimand by the Chief of Police.

2. Performance of extra duty without pay by Chief of Police.

3. Suspension from duty without pay by Chief of Police ...


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