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Sherman v. Bd of Fire & Police Comm'rs

OPINION FILED DECEMBER 8, 1982.

BRADLEY SHERMAN ET AL., PLAINTIFFS-APPELLEES,

v.

THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF HIGHLAND ET AL., DEFENDANTS-APPELLANTS. — (STEPHEN EARNHART ET AL., COMPLAINANTS-APPELLANTS.)



Appeal from the Circuit Court of Madison County; the Hon. Thomas E. Hildebrand, Judge, presiding.

JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 5, 1983.

On December 11, 1981, plaintiffs, Bradley Sherman and Larry Gilbert, police officers employed by the police department of the city of Highland, Illinois, filed a petition for a temporary restraining order and a complaint for injunction in the circuit court of Madison County. Plaintiffs sought to enjoin the Board of Fire and Police Commissioners of the city of Highland (hereinafter referred to as the Board) from holding hearings concerning pending charges filed against them by Stephen Earnhart and William Frey (hereinafter referred to as complainants). Plaintiffs' complaint for injunction alleged, inter alia, that the Board was without jurisdiction to hear the charges filed by complainants because the Board filed to set the matter for a hearing within 30 days as required by section 10-2.1-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 10-2.1-17). Plaintiffs' petition for a temporary restraining order was granted, and a hearing on their request for an injunction was set for later in December.

On December 17 and 18, 1981, complainants and the Board, respectively, filed motions to dismiss the plaintiffs' complaint for injunction on the grounds that plaintiffs (1) had not exhausted their administrative remedies, (2) had an adequate remedy at law, and (3) would not suffer irreparable harm if the injunction was not issued. On December 18, 1981, both the Board and complainants filed their answers to plaintiffs' complaint for injunction, which denied that the Board had failed to comply with section 10-2.1-17 of the Illinois Municipal Code and alleged, as affirmative defense, essentially the same grounds asserted as a basis for dismissal of plaintiffs' complaint.

A hearing on plaintiffs' complaint for injunction and the Board's and complainants' motions to dismiss was had on December 18, 1981. A stipulation of facts was entered into by all the parties. This stipulation indicated that complainant Earnhart submitted written allegations against both plaintiffs to the Board on October 22 or 26, 1981. Complainant Frey submitted similar allegations against Officer Sherman on November 10, 1981. Both documents submitted by complainants claimed, in essence, that plaintiffs were guilty of official misconduct during an incident at a tavern in the early morning hours of September 4, 1981.

The Board's attorney sent a letter to complainants on November 13, 1981. The letter read in pertinent part:

"I am enclosing the charges which you filed with the Board of Fire & Police Commissioners on October 26, 1981.

I have been asked by the Board members to point out to you that Section 2 of their Rules and Regulations regarding charges, hearings, dismissals and suspensions provides in Subparagraph (c) that charges must be in writing and filed with the Secretary of the Board. The charges shall specify the rule violated and shall designate the time and place of the offense.

We ask that if you are going to file the charges, that you amend them to specifically point out the rule which was violated in each instance. The Rules and Regulations of the Fire & Police Commissioners and of the Highland Police Department are available at the City Offices.

If you wish to have any further action on the charges, you must amend them and file them with the Secretary of the Board of Fire & Police Commissioners, Kathy Essenpreis, within a reasonable period of time. I would recommend that they be filed in the near future if you intend to follow through with this matter."

The section of the Board's rules and regulations referred to in the above letter reads as follows:

"Sec. 2. Persons holding positions in the fire and police departments may be suspended without pay or discharged from service in the following manner:

(c) Charges shall be preferred in writing and shall be filed with the Secretary of the Board. The charges shall specify the rule violated and shall designate the time and place of the offense; * * *."

Rules and Regulations of the Board of Fire and Police Commissioners of the City of Highland Madison County, Illinois — Charges, Hearings, ...


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