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Popejoy v. Zagel

OPINION FILED MAY 26, 1983.

LONNIE R. POPEJOY, PLAINTIFF-APPELLEE,

v.

JAMES B. ZAGEL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

On September 16, 1980, Lonnie Popejoy (plaintiff) was promoted from the rank of trooper to the rank of corporal in the Division of State Police of the Illinois Department of Law Enforcement. He was returned to rank of trooper by order of the Director of the Department of Law Enforcement (defendant) on August 1, 1981. Plaintiff brought action for a writ of mandamus to compel his reinstatement to the rank of corporal. The trial court issued the writ and defendant now appeals.

The question before this court is whether defendant could properly reduce plaintiff's rank absent compliance with the provision regulating demotions under "An Act in relation to the State Police" (the Act) (Ill. Rev. Stat. 1981, ch. 121, par. 307.1 et seq.). The resolution of this question requires an inquiry into the validity of Department of Law Enforcement Merit Board Rule 4-4, which purports to establish a one-year period of probation for all promotions within the State police with the language:

"PROMOTION PROBATIONARY PERIOD: All promotions shall be for a probationary period of one year during which time the Director may return the officer to that officer's prior rank."

A written communication, dated July 24, 1981, advised Popejoy:

"OFFICIAL PERSONNEL ACTION

On September 16, 1980, you were promoted to the rank of Corporal with the condition that you serve a one year probationary period. I find that you have failed to satisfactorily complete this probationary period. By that authority vested in me under Department of Law Enforcement Merit Board Rule 4-4, I hereby order you reduced in rank from Corporal to Trooper to become effective August 1, 1981.

/s/ James B. Zagel."

Demotions in the State police are governed by section 14 of the Act (Ill Rev. Stat. 1981, ch. 121, par. 307.14), which provides in pertinent part:

"Except as is otherwise provided in this Act, no Department of Law Enforcement officer shall be removed, demoted or suspended except for cause, upon written charges filed with the Board [Department of Law Enforcement Merit Board] by the Director and a hearing before the Board thereon upon not less than 10 days' notice at a place to be designated by the chairman thereof. At such hearing, the accused shall be afforded full opportunity to be heard in his own defense and to produce proof in his defense.

* * * If the charges against an accused are established by a preponderance of evidence, the Board shall make a finding of guilty and order either removal, demotion, suspension for a period of not more than 180 days, or such other disciplinary punishment as may be prescribed by the rules and regulations of the Board which, in the opinion of the members thereof, the offense merits. Thereupon the Director shall direct such removal or other punishment as ordered by the Board." Ill. Rev. Stat. 1981, ch. 121, par. 307.14.

The Act establishes certain rule-making authority in the Board. Section 8 of the Act (Ill. Rev. Stat. 1981, ch. 121, par. 307.8) provides in pertinent part:

"The Board shall exercise jurisdiction over the certification for appointment and promotion, and over the discipline, removal, demotion and suspension of Department of Law Enforcement officers. Pursuant to recognized merit principles of public employment, the Board shall formulate, adopt, and put into effect rules, regulations and procedures for its operation and the transaction of its business." Ill. Rev. Stat. 1981, ch. 121, par. 307.8.

Popejoy contends that his demotion to the rank of trooper was ineffective because the defendant failed to comply with the procedures set forth in section 14 of the Act (Ill. Rev. Stat. 1981, ch. 121, par. 307.14). He argues that Rule 4-4 is an invalid exercise of the Merit Board's rule-making power, because the rule operates to abrogate the procedures for demotion under the Act. We agree.

• 1 It is axiomatic that the authority of an administrative agency to adopt rules and regulations is defined by the statute creating that authority, and such rules and regulations must be in accord with the standards and policies set forth in the statute. (Pye v. Marco (1973), 13 Ill. App.3d 923, 926, 301 N.E.2d 63, 65.) An administrative body cannot extend or alter the operation of a statute by exercise of its rule-making powers. (Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill.2d 53, 60, 387 N.E.2d 320, 324; Illinois Bell Telephone Co. v. Illinois Commerce Com. (1953), 414 Ill. 275, 279, 111 N.E.2d 329, 332.) To the extent that any such rule or regulation is in conflict with the statute, it is invalid. Aurora East Public School District No. 131 v. ...


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