APPEAL from the Circuit Court of Henry County; the Hon. DAN H.
McNEAL, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Plaintiff Leo Finin appeals from an order of the circuit court of Henry County affirming on administrative review the decision of the defendant Board of Fire and Police Commissioners of the City of Kewanee to discharge plaintiff as a Kewanee police officer. On appeal, plaintiff raises two issues for our consideration: First, did the defendant Board grant plaintiff a hearing on the charges against him within 30 days of the filing of the charges as mandated by section 10-2.1-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 10-2.1-17), and second, was there a merger of the prosecutorial and judicial functions of the Board when it exercised its quasi-judicial powers.
The relevant facts are that on January 8, 1980, Martin H. Katz, attorney and special prosecutor for the Board of Fire and Police Commissioners of the City of Kewanee (Board), filed charges against plaintiff Finin pursuant to section 10-2.1-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 10-2.1-17). In the charges, Finin was accused of violating a number of State laws and various rules and regulations of the Kewanee Police Department while employed as a Kewanee police officer. Notice of the charges was served upon Finin by mail on January 9, and a hearing was set for January 28, 1980, at 10 a.m. in the Kewanee City Council Chambers.
Sometime after the matter was initially set for a January 28 hearing, Finin's attorney, Michael Warner, contacted attorney Katz and asked for a continuance. Subsequently, Katz drafted the following stipulation:
"It is hereby stipulated by and between the special prosecutor of the Board of Fire & Police Commissioners of Kewanee, Illinois and the attorney [for] Leo A. Finin as follows:
1. That whereas the matter had previously been set for hearing on the charges against Leo Finin on the 28th day of January, 1980; and
2. Whereas the defendant requires that said matter be continued;
IT IS HEREBY STIPULATED by and between the parties as follows:
1. That said hearing on the charges shall take place on February 12, 1980 at the Kewanee City Hall at the hour of 9:30 A.M.
2. That Leo Finin agrees that his suspension shall remain in full force and effect pending the outcome of the hearing on said charges.
3. That Leo Finin waives the requirement that said charges be heard within thirty days from the date said charges are filed."
After receiving the stipulation from Katz, attorney Warner made two changes. In the second paragraph 2 of the stipulation, Warner added the phrase "without waiving any right to contest the validity of the suspension or length thereof." Warner also changed the word "are" in paragraph three to "were." He then signed the stipulation, and returned it to Katz on January 23 with the accompanying letter:
"Attached hereto find your Stipulation which I have signed. You will note that I have made a few corrections, which I don't think you will have any objection to, and if you do, please call me.
Also, I spoke with Jim Nash [attorney for the Board] and he suggested that you, myself and Mr. Finin in an executive session sit down a week from this Wednesday, that is January 30, 1980, in a more or less informal executive session ...