Appeal from the Circuit Court of Madison County; the Hon. P.J.
O'Neill, Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendants, M.E. Gorris, chief of police of Wood River, and the Board of Fire and Police Commissioners of Wood River, appeal from the judgment of the circuit court of Madison County reversing the board's decision to affirm the three-day suspension of the plaintiff, Stephen Lakin, imposed by Gorris.
On July 26, 1980, plaintiff was suspended for three days by Gorris for violation of police department Rule 5-1.08 defining conduct constituting neglect of duty. Plaintiff appealed the suspension to the board. Hearings were held by the board on August 20, September 3 and September 4, 1980. On September 9, 1980, the board found that the evidence supported the three-day suspension. On administrative review of the decision, the circuit court of Madison County reversed, finding that although the factual findings were not contrary to the manifest weight of the evidence, the conduct did not evidence a substantial shortcoming that would justify a three-day suspension.
Defendants raise three issues on appeal. One, whether the trial court's review of an administrative board's determination upholding a police chief's three-day suspension against an officer for neglect of duty is constitutionally permissible. Two, whether on administrative review the trial court erred by applying an incorrect legal standard in reviewing an administrative board's decision upholding a three-day suspension. Three, whether the Board's decision upholding the police chief's imposition of a three-day suspension of plaintiff is arbitrary, unreasonable and unrelated to the requirements of the service where the findings of fact made by the board are not in dispute.
Before addressing the issues raised by defendants on appeal, it is necessary to address plaintiff's argument concerning the findings made by the board.
In the board's findings, facts concerning an incident that occurred on July 10, 1980, were included, but the formal charges made by Gorris related only to a July 23, 1980, incident. Plaintiff argues that such inclusion without formal charges impairs his statutory and constitutional rights.
• 1 It is true that the plaintiff was not formally charged with the July 10, 1980, incident. It is also true that findings relating to July 10, 1980, were included in the board's decision. We find any error because of this inclusion to be harmless. Therefore, we will consider the suspension as relating only to the July 23, 1980, incident and will review the record accordingly.
Lakin was charged, and the evidence establishes, that on July 23, while on duty, plaintiff parked his patrol car at a remote area of the city dump, known as the "Burn Lot." Plaintiff got out of his car to urinate and then sat in the car for three to four minutes to contemplate some personal problems. Plaintiff's commander, who observed plaintiff as he sat in the parked car, noticed that plaintiff's head was laid back against the headrest and that his eyes were half-closed and his mouth open. The commander testified that plaintiff appeared to be asleep. Rule 5-1.08 of the rules and regulations of the board proscribes conduct that constitutes neglect of duty and defines "sleeping, loafing or being idle" as such conduct.
The first issue raised by defendants on appeal is that the trial court's review of the three-day suspension is "unconstitutional." In essence the defendant's contention is that once a trial court on administrative review applies the manifest weight of the evidence test and finds that the administrative agency's findings of fact were not contrary to the manifest weight of the evidence, that court cannot then review the agency's decision pertaining to cause to suspend for three days without unconstitutionally intruding upon the function of the agency.
It is true that a court on administrative review must first determine whether or not the agency's findings of fact are contrary to the manifest weight of the evidence. (See, e.g., Hale v. Hellstrom (1981), 101 Ill. App.3d 1127, 428 N.E.2d 1197; Kreiser v. Police Board (1976), 40 Ill. App.3d 436, 352 N.E.2d 389, aff'd (1977), 69 Ill.2d 27, 370 N.E.2d 511.) We agree with the circuit court's determination that the findings of the board are not contrary to the manifest weight of the evidence. However, defendants raise a question as to the propriety of the circuit court's review of the board's decision that cause to suspend existed.
Defendants argue that the trial court on administrative review should approach the question of cause to suspend for three days as a question of fact. Thus, if the findings of fact relied upon by the board in sustaining the suspension are not contrary to the manifest weight of the evidence, the trial court on administrative review cannot substitute its judgment for that of the board on the question of cause to suspend. Additionally, defendants argue that the legislative intent apparent in the applicable statutory provision, when read together with pertinent case law, requires that a trial court on administrative review use only the manifest weight of the evidence test when reviewing a suspension of five days or less.
Plaintiff argues that the applicable statutory provision requires the question of cause in all cases to be a question of law and therefore reviewable. Plaintiff also argues that the judicial application and interpretation of the statute establishes that the question of cause to suspend is reviewable by a trial court on administrative review.
We conclude that this issue does not raise a question of constitutionality, but rather is one of statutory construction. The applicable statutory provision of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 10-2.1-17), provides in pertinent 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. * * * The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time. In case an officer or member is found guilty, the board may discharge him, or may suspend him not exceeding 30 days without pay. The board may suspend any officer or member pending the hearing with or without pay, but not to exceed 30 ...