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Cheek v. Dye

OPINION FILED AUGUST 16, 1982.

ROSEMARY CHEEK, PLAINTIFF-APPELLANT,

v.

WILLIAM DYE, CHIEF OF POLICE OF THE CHAMPAIGN POLICE DEPARTMENT, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Champaign County; the Hon. Creed D. Tucker, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Plaintiff was a probationary police officer for the city of Champaign. Prior to the end of her probationary period she was summarily discharged by the chief of police. She sought a writ of mandamus from the circuit court of Champaign County and, after various amendments, the court dismissed with prejudice her second amended complaint. This appeal then followed. We affirm.

The fundamental issue presented, around which all the other issues revolve, is whether the undoubted power of a board of fire and police commissioners of a city subject to division 2.1 of article 10 of the Illinois Municipal Code (IMC) (Ill. Rev. Stat. 1979, ch. 24, par. 10-2.1-1 et seq.) to discharge a probationary officer may be delegated to the chief of police. So far as we are aware, this matter has not heretofore been passed upon by a reviewing court of this State.

Preliminarily, section 10-2.1-1 of the IMC (Ill. Rev. Stat. 1979, ch. 24, par. 10-2.1-1) provides that for all municipalities operating under division 2.1, a board of fire and police commissioners shall be appointed by the mayor with the consent of the appropriate municipal body; section 10-2.1-4 (Ill. Rev. Stat. 1979, ch. 24, par. 10-2.1-4) provides that the board shall appoint all members of the fire and police departments, and further sections set forth in detail how such appointments are to be made. Special provision is made for the appointment of the chiefs of the departments, if the city is under the managerial form, which Champaign has adopted.

Two sections of the IMC form the basis for the dispute in the case at bar. Section 10-2.1-15 (Ill. Rev. Stat. 1979, ch. 24, par. 10-2.1-15) provides for promotion by examination and merit and states in part:

"The method of examination and the rules governing examinations for promotion shall be the same as provided for applicants for original appointment, except that original appointments only shall be on probation, as provided by the rules."

Section 10-2.1-17 (Ill. Rev. Stat. 1979, ch. 24, par. 10-2.1-17) provides for removal and discharge of officers, and makes provision for written charges, a hearing on them by the board, and for disposition by the board of the matter.

Plaintiff contends that the latter section, 10-2.1-17, must govern discharge. Defendants, the chief of police of Champaign, the board of fire and police commissioners of Champaign, and the city itself, maintain that for a probationary officer section 10-2.1-15 controls.

Defendants' position is largely supported by the supreme court's opinion in Romanik v. Board of Fire & Police Commissioners (1975), 61 Ill.2d 422, 338 N.E.2d 397. In that case the court held that section 10-2.1-17 did not apply to probationary officers and that section 10-2.1-15 authorized the board to adopt rules for the discharge of probationers.

The record here discloses that the defendant board has adopted such a rule and that the defendant city has likewise adopted an ordinance on the subject. The rule of the board provides:

"Upon initial appointment to either the Fire or Police Department, the Board will award a probationary certificate. This certificate is for one year and may be termed a `probationary commission.' The Chief of either department, with the approval of the City Manager, has the authority to dismiss the employee at any time during this period. Upon promotion, the employee does not serve a probationary period. (10-2.1-15)."

The code of the City of Champaign, chapter 2, section 2-159, provides:

"The first twelve (12) months of service following appointment to the Police Department shall be a probationary period, during which time the appointee shall be subject to discharge without a trial before the Board of Fire and Police Commissioners. The Chief of Police, with the approval of the City Manager, may discharge such appointee during the probationary period if he ...


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