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Scott v. Dep't of Com. And Community Affairs

OPINION FILED FEBRUARY 3, 1981.

JOHNNY SCOTT ET AL., APPELLEES,

v.

THE DEPARTMENT OF COMMERCE AND COMMUNITY AFFAIRS ET AL., APPELLANTS.



Appeal from the Circuit Court of St. Clair County, the Hon. Dennis J. Jacobsen, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

On March 19, 1980, plaintiff Johnny Scott, a commissioner of the East St. Louis Housing Authority, filed a petition seeking a temporary restraining order, a temporary injunction, a permanent injunction and declaratory relief to prevent the Department of Commerce and Community Affairs (Department) from conducting a hearing to remove plaintiff and three other commissioners from the Housing Authority pursuant to section 4 of the Housing Authorities Act (Ill. Rev. Stat. 1979, ch. 67 1/2, par. 4). The other commissioners, William Stokes, Larona J. Morris and Willie L. Dancy, were allowed to intervene as plaintiffs. Following a March 24 hearing the circuit court of St. Clair County granted a preliminary injunction enjoining the Department from proceeding with the hearing on the ground that section 4 of the Housing Authorities Act was unconstitutional. The Department sought an interlocutory appeal to the appellate court, and, because the statute had been found unconstitutional, the appeal was transferred here pursuant to our Rule 302(a). 73 Ill.2d R. 302(a).

The Housing Authorities Act (Ill. Rev. Stat. 1979, ch. 67 1/2, par. 1 et seq.) provides for the appointment of five commissioners, to staggered five-year terms, by the presiding officer of a city, village, incorporated town or county in which the particular authority is created. (One of the five commissioners had not been in office during the period here involved.) The commissioners, whose appointment must be approved by the Department, serve without compensation. Their removal is provided for in section 4 of the Act:

"Whenever it shall appear to the Department of Local Government Affairs that a commissioner is incompetent or guilty of neglect of duty or malfeasance, the Department of Local Government Affairs shall require such commissioner to appear before it to show cause why he should not be removed from office. At least fifteen days' written notice of such a hearing shall be given to the commissioner whose conduct is in question and to all other members of the Authority. At the hearing the commissioner may be represented by counsel and may appear personally and present such pertinent evidence as he wishes or as the Department of Local Government Affairs may request.

If after a hearing the Department of Local Government Affairs determines that a commissioner has been incompetent or has been guilty of neglect of duty or malfeasance, it shall remove such commissioner from the Authority within seven days, and there shall thereupon be deemed to be a vacancy of such office." (Ill. Rev. Stat. 1979, ch. 67 1/2, par. 4.)

(The Department of Local Government Affairs was abolished on October 1, 1979, and its duties transferred to the Department of Commerce and Community Affairs by Illinois Executive Order No. 3 (1979) preceding Ill. Rev. Stat. 1979, ch. 127, par. 1.)

The plaintiffs had been served on January 28, 1980, with a "Notice of Charges" and a "Notice of Removal Hearing," apparently prompted by the report of a housing authority task force formed by the mayor of East St. Louis. The "Notice of Charges" was as follows:

"NOTICE OF CHARGES

In the Matter of:

The Commissioners of ) the East Saint Louis ) Housing Authority )

To: Johnny Scott; William Stokes; LaRona J. Morris, and; Willie Levell.

You are hereby notified that pursuant to Section 4 of the Housing Authorities Act, Ill. Rev. Stat., 1979, Ch. 67 1/2, Section 4, you are charged with incompetence, neglect of duty or malfeasance in the performance of your duties as a commissioner of the East Saint Louis Housing Authority. You are required to appear at the removal hearing scheduled on the 29th day of February, 1980 to show cause why you should not be removed as a commissioner for the following acts of incompetence, neglect of duty or malfeasance:

1. that at the end of fiscal year 1977 routine expenses of the Housing Authority exceeded the budget by $366,169.84 and homeownership expenses exceeded the budget by $53,639.80 in violation of Section 407, Article 14 of the terms and conditions in Part 2 of the Annual Contributions Contract;

2. that at the end of fiscal year 1978 routine expenses of the Housing Authority exceeded the budget by $352,320 and administrative expenses exceeded the budget by $130,129 in violation of Section 407, Article H of the terms and ...


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