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Del Rivero v. Cahill

OPINION FILED MAY 3, 1979.

ANGEL DEL RIVERO, PETITIONER-APPELLANT,

v.

WILLIAM E. CAHILL ET AL., RESPONDENTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Petitioner, Angel Del Rivero, brought this action in the circuit court of Cook County seeking to review a final determination of the Personnel Board of the City of Chicago (Personnel Board) removing petitioner's name from the eligibility list of candidates for the Chicago Police Department. After reviewing the administrative record, the circuit court entered an order affirming the Personnel Board's decision.

Petitioner's contentions on appeal can be summarized as follows: (1) the Personnel Board erroneously considered evidence of petitioner's prior arrests which were expunged pursuant to statute (Ill. Rev. Stat. 1975, ch. 38, par. 206-5); (2) petitioner's disqualification on the basis of prior arrests is in violation of title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq. (1976)) and the Fair Employment Practices Act (Ill. Rev. Stat. 1975, ch. 48, par. 851 et seq.); and (3) a departmental rule authorizing disqualification on the basis of a prior conviction for driving while under the influence denies petitioner due process and equal protection.

We affirm the judgment of the circuit court affirming the decision of the Personnel Board.

In June 1976, petitioner filed an application for employment as a police officer with the Chicago Police Department. Petitioner took the departmental examination and was found well qualified. Thereafter, following a background investigation, petitioner's name was stricken from the eligibility list by the superintendent of police for failure to meet the background standards of the department. Specifically, the background investigation disclosed that petitioner had been convicted of driving while under the influence and that he had engaged in certain criminal conduct.

On January 5, 1977, at petitioner's request, a hearing was held by the Personnel Board to review the superintendent's decision. A copy of petitioner's driving record, introduced at the hearing, indicated that he had been convicted in July 1974, of driving under the influence of alcohol, resulting in a one-year suspension of his driver's license. Petitioner related the circumstances surrounding the driving under the influence conviction.

In addition, James Lamb, a Chicago policeman, testified to an incident which had resulted in petitioner's arrest on an aggravated battery charge in 1969. Lamb testified that on May 4, 1969, he heard two shots fired outside his home. When he went to investigate the disturbance he was confronted by a man aiming a gun at his head. He identified himself as a police officer and fired two shots, hitting the man. Lamb stated he was then attacked by four other men, including petitioner. Petitioner was arrested for aggravated battery but was found not guilty of that charge.

Evidence indicating that petitioner was of good character was also introduced on his behalf at the hearing.

On March 25, 1977, petitioner was notified that the Personnel Board affirmed the recommendation of the superintendent removing petitioner's name from the eligibility list for police officers. The circuit court of Cook County affirmed the Personnel Board's decision after reviewing the administrative record, and petitioner pursued this appeal.

OPINION

I

Preliminarily, a question is raised concerning the proper method of obtaining judicial review of a final decision of the Personnel Board of the City of Chicago. Petitioner's complaint states that the action to review the Personnel Board's decision was brought pursuant to the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, pars. 264 through 279).

The Illinois Supreme Court has held that a municipality cannot authorize the use of the Administrative Review Act to review the decisions of an administrative agency established by ordinance pursuant to the municipality's home rule powers. (Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill.2d 11, 338 N.E.2d 186; Cummings v. Daley (1974), 58 Ill.2d 1, 317 N.E.2d 22; Paper Supply Co. v. City of Chicago (1974), 57 Ill.2d 553, 317 N.E.2d 3.) As stated in the Paper Supply Co. case:

"The method of judicial review of the decisions of the defendant city's administrative agencies is not a `function pertaining to its government and affairs' within the contemplation of section 6 of article VII of the Constitution of 1970, and the determination of the manner or method of such review is not ...


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