APPEAL from the Circuit Court of Peoria County; the Hon.
STEVEN COVEY, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Plaintiff Barbara Scheeler was appointed to the position of police patrolman for the City of Chillicothe for a probationary period of 12 months beginning December 20, 1976. In October of 1977 while driving a patrol car on duty, plaintiff was involved in a two-car accident. The driver of the other car later charged that plaintiff participated in the falsification of an accident report showing the other driver to be at fault. The police department undertook an internal investigation, and because that investigation could not be completed before plaintiff's probationary period expired, the fire and police commission extended plaintiff's probation for an additional six months. When the investigation was completed the chief of police recommended her dismissal, and on February 25, 1978, she was discharged by the commission without a hearing.
Plaintiff filed this mandamus action seeking reinstatement on the ground that she was denied her right to a hearing upon written charges as guaranteed under section 10-2.1-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 10-2.1-17), which provides in part:
"Except as hereinafter provided, no officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense."
Motions for summary judgment were filed by plaintiff and by defendants. Plaintiff's motion stated, inter alia, that the pertinent rule of the fire and police commission listed six reasons for dismissal during the probationary period or for having the probationary period extended for up to 6 months, and that she had never been charged with any of the listed causes. The rule provision in question appeared in the police department manual and provided as follows:
"k. [A recruit patrolman] may be suspended or dismissed from duty, during or at the termination of his probationary period or have his probationary period extended for up to six months for any of the following causes:
(1) Conduct unbecoming a police officer.
(2) Infraction of rules and regulations.
(3) Insubordination or the lack of amenability to discipline.
(4) Failure to satisfactorily meet the requirements of the police service, or to obtain passing grades, while in the basic police training course.
(5) Inability to learn police procedures and practices.
(6) Lack of physical and mental coordination."
The trial court found that plaintiff's probationary period had not been extended in accordance with paragraph (k) of the rules and, therefore, at the time of her discharge, plaintiff was no longer on probation and was entitled to a hearing under the statute. The trial court entered summary judgment in favor of plaintiff and ordered her reinstatement.
Defendants filed a motion to reconsider, asserting that the rule relied upon by plaintiff was never adopted by the fire and police commission and was attached to defendants' motion for summary judgment in error. The rule actually in ...