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Scott v. Rochford

OPINION FILED SEPTEMBER 20, 1978.

LEE A. SCOTT, PLAINTIFF-APPELLANT,

v.

JAMES M. ROCHFORD ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

MR. PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 15, 1978.

The plaintiff, Lee Scott, filed a complaint in the circuit court alleging that he was wrongfully discharged by the Chicago Police Department without a hearing. The defendants filed a motion to dismiss the complaint on the grounds that the plaintiff was a probationary policeman and, therefore, not entitled to a hearing prior to discharge. The trial court dismissed the action.

On appeal the plaintiff contends that the State statute which limits probationary periods for police officers to a maximum of nine months is applicable to him thus making his discharge without a hearing a violation of due process. The plaintiff further contends that the defendants failed to demonstrate the nine-month maximum had been validly extended.

The plaintiff was appointed to the Chicago Police Department on April 26, 1976. On February 10, 1977, he was involved in an off-duty incident in a tavern. The plaintiff was informed by letter on March 31, 1977, that he had been placed on the medical roll pending formal discharge by the police department. On April 5, 1977, the plaintiff received a letter informing him that he was discharged effective that same day.

On May 4, 1977, the plaintiff filed a complaint in the circuit court seeking an injunction, full back pay and other relief. The trial court based its subsequent dismissal of the complaint on its finding that the probationary period applicable to the plaintiff was one year as provided in rule IV, paragraph 5, of the Rules of the Department of Personnel:

"Probation. Any person appointed from a career service original entrance eligible list will serve a probationary period determined by the Director. Such probationary period shall in no case exceed one year from the date of original appointment. Such probationary period shall be based upon time of compensated employment. In no case shall a probationer be discharged until after the appointing officer has received from the Director of Personnel a notice in writing that the Director of Personnel has approved such discharge. Any employee whose probationary period began prior to January 1, 1976 shall continue to serve the probationary period in effect at the time of the employee's appointment."

At the defendant's request we have taken judicial notice of two memoranda issued by the director of personnel of the City of Chicago. The memorandum dated January 30, 1976, contained notification that the probationary period for all persons appointed to the department after January 1, 1976, would be for a period of one year. The second memorandum was dated April 22 1976, and was directed to all department heads. It concerned the ration of probationary employees and set out procedures for recommending continued employment or discharge. The memorandum also recited that employees appointed after January 1, 1976, would be subject to a probationary period of one year.

At the plaintiff's request we take judicial notice of the city ordinance creating the Department of Personnel which provides in pertinent part:

"25.1-5 The Director of Personnel shall issue personnel rules with the approval of the Personnel Board. Prior to the effective date of such rules, the Director of Personnel shall give public notice in one or more newspapers of general circulation, and in no case shall such publication be less than ten (10) days before the effective date of the proposed rule or amendment to the rule. Such public notice shall include information concerning where the rules can be reviewed and where comments may be directed. Nothing contained herein shall prohibit the Director of Personnel from giving any additional public notice that he may deem appropriate.

The rules shall provide:

7) For probationary periods after original appointment not to exceed one year." (Chicago Municipal Code 1976, ch. 25.1, par. 5(7).)

We also take judicial notice of a letter written by the director of personnel to plaintiff's attorney in which the director stated that public notice of the personnel rules for the City of Chicago was published on November 21, 1977, in seven Chicago daily newspapers.

Turning to the issues raised on appeal, it is undisputed that the plaintiff was a police officer for a period longer than nine months but less than one year. The plaintiff relies on a portion of State statute to support his contention that he was entitled to a ...


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