APPEAL from the Circuit Court of McHenry County; the Hon.
ROLAND A. HERRMANN, Judge, presiding.
MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Richard Donnelly filed a petition for mandamus in the circuit court of McHenry County on October 27, 1978. The petition was amended and count II was added on December 28, 1978. Petitioner asserted in his complaint that the procedures utilized in his dismissal from his position of deputy sheriff of McHenry County did not conform to the requirements of the rules and regulations of the defendant commission. As relief, petitioner sought a writ of mandamus directing the commission to hold a hearing with respect to the presence of cause for petitioner's removal. Petitioner further requested that defendant sheriff, Arthur Tyrrell, be commanded to reappoint petitioner, and to pay him all back salary computed from the date of his improper termination.
A hearing on the petition was held on February 2, 1979. Following the presentation of petitioner Donnelly's evidence, the defendants moved for a directed verdict which the trial court granted, denying the writ of mandamus. Petitioner appeals, and we consider herein whether the trial court properly directed a verdict in favor of defendants, and denied the petition for a writ of mandamus.
1 The writ of mandamus is a summary writ issued from a court of competent jurisdiction which commands the officer to whom it is addressed to perform some duty to which the petitioner is entitled of right to have performed and which the party owing the duty has failed to perform. (People ex rel. Council 19 v. Egan (1977), 52 Ill. App.3d 1042, 1044.) Since a writ of mandamus is considered an extraordinary remedy rather than a remedy of right, the party seeking the writ must show a clear legal right to the relief requested. (Kramer v. City of Chicago (1978), 58 Ill. App.3d 592, 598.) Where a petitioner has established a clear right to this writ, a court may in its discretion award mandamus as relief. (Kramer, at 598-99.) The petitioner in a mandamus action has the burden of establishing every material fact necessary to show the plain duty of the respondent before a court will interfere. People ex rel. Council 19 v. Egan (1977), 52 Ill. App.3d 1042, 1045.
It is the petitioner's contention that his discharge was not effective because it was not done in accordance with the rules, regulations and procedures of the commission. The defendants assert, however, that the discharge was proper and the trial court properly directed a verdict because the petitioner did not show a clear right to receive mandamus relief.
As support for his contention that his discharge was improper, and that a hearing on the matter should have been held by the defendant commission, the petitioner relies solely on the rules, regulations and procedures of the McHenry County sheriff's department merit commission. Petitioner specifically relies on article III of the Rules, Regulations and Procedures, which reads in pertinent part:
"B. APPOINTMENT TO THE DEPARTMENT.
Applicants for appointment as Deputy Sheriff or Deputy Sheriff [matron] to the Sheriff's Department, in addition to meeting the standards prescribed by the Illinois Revised Statutes, concerning Deputy Sheriffs must:
10. Serve successfully a one-year probationary period, during which time he is subject to removal by the Sheriff with the consent of the Merit Commission. The Commission shall be notified by the Sheriff in writing of the cause of the appointee's removal. * * *" (Emphasis added.)
Petitioner testified at the hearing that he was appointed a deputy sheriff of McHenry County and commenced his duties on or about April 24, 1977. He further testified that he was told by Captain Crabtree on March 13, 1978, that he was being discharged. The chairman of the McHenry County sheriff's department merit commission also testified at the hearing. He indicated in his testimony that he did recall receiving some correspondence pertaining to the petitioner's discharge, but he could not recall the exact date or month in which he received it. The minutes of the March 2 and April 6, 1978, meetings show that no action was taken at those meetings regarding petitioner's discharge. At the May 11, 1978, meeting, the commission voted unanimously in agreement with the sheriff's decision to terminate the petitioner.
Petitioner contends that his removal was not complete until the merit commission consented on May 11 to the action taken by the sheriff on March 13. Petitioner further contends that in the interim, he completed his probationary period, should have been certified as possessing tenure, and any attempt to remove him as a deputy sheriff could then only be accomplished for cause following a hearing before the commission. The crux of our consideration, then, becomes whether the language of the Rules, Regulations and Procedures should be construed to require that the consent of the commission be given prior to the expiration of the probationary period in order to make the discharge by the sheriff effective.
No cases were discovered in the course of our research which have interpreted the exact consent language contained in this rule. Several similarly worded State statutes have been construed by the courts>, however, in which the requirements for an effective discharge under those statutory provisions have been discussed.
Section 10-1-14 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 10-1-14), relating to civil service in cities, contained the following provision:
"* * * Original appointment shall be on probation for a period not to exceed 6 months * * *. At or before the expiration of the period of probation, the head of the department or office in which a candidate is employed may, by and with the consent of the commission, discharge him upon ...