Appeal from the Circuit Court of Cook County; the Hon. James
C. Murray, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Plaintiff, David F. Rogers, filed an action for declaratory judgment to determine his right to serve as an elected village trustee of defendant village of Tinley Park, while also serving as a police officer on leave of absence status with the same municipality. Rogers and the village filed cross-motions for summary judgment. Although Rogers named other parties as defendants in his action, the only parties before this court are the plaintiff Rogers and the defendant village. The trial court granted plaintiff's motion and denied that of the village, holding that plaintiff had the right to serve in both capacities. The village appeals, contending that the positions of village trustee and police officer are incompatible and that plaintiff's acceptance of the position of village trustee automatically resulted in his resignation as a police officer.
The village of Tinley Park is a home rule municipality, governed by a legislative body consisting of an elected village president and six elected individual trustees, known collectively as the board of trustees. The board has the legislative responsibility for governing the village, including regulation of all village officers and employees.
Plaintiff has been a village police officer since 1973. In March 1981 his rank was patrol officer. On January 12, 1981, Rogers requested a leave of absence from the police department from February 15 through March 31, 1981, for the reason that he intended to run for public office in the April 1981 election. The police chief orally approved his request the next day.
On January 20, 1981, plaintiff met with the village manager, Dennis Kallsen, who told him that because of a lack of consistent application of the department's rule relating to "political utilization of official positions" it would not be necessary for Rogers actually to take a leave of absence during his candidacy. On that date Rogers withdrew his request for a leave of absence and the village manager formally approved that withdrawal. He advised Rogers that an employee could run for political office as long as no campaigning was done on duty and any campaigning done had to be done out of uniform. He also advised Rogers as to the mechanics of a request for leave of absence and that, if an extended leave were granted, it would be without pay, but that the employee would be allowed to remain under the village's group insurance policy if the employee paid the premium, and that the extended leave time would be viewed as creditable service for seniority purposes.
Rogers was elected village trustee at the April 7, 1981, election. On April 21, 1981, the village attorney answered an inquiry from the president and board of trustees as to whether Rogers may continue to be employed as a village police officer subsequent to the time he qualifies to hold the office of village trustee:
"In my opinion, Trustee-elect Rogers may not continue to be employed as a Village police officer after he qualifies to hold the office of Village Trustee. Further, Trustee-elect Rogers' act of qualification, ipso facto, operates as a resignation from his employment as a police officer."
On April 28, 1981, approximately one week prior to his qualification and assumption of duties as trustee on May 5, 1981, Rogers requested that the chief of police grant him a one-year leave of absence effective May 5, 1981, through May 4, 1982, to assume his trustee duties. The chief of police responded by letter dated April 29, 1981. Based on the village attorney's opinion, the chief concluded that a leave of absence could not be granted to a person who had resigned from the police department.
On May 5, 1981, Rogers was sworn in as village trustee and assumed the duties of that office. On May 6, 1981, the chief of police wrote Rogers and formally acknowledged his automatic resignation.
Rogers filed a complaint for a declaratory judgment that he had not voluntarily or automatically resigned from his position as a police officer and that he could lawfully serve as village trustee while a police officer on leave of absence. The village's answer alleged facts demonstrating the incompatibility between the two positions. Based on these facts, the village moved for summary judgment. Rogers filed a cross-motion for summary judgment, contending that (1) the common law doctrine of incompatibility affects only officers and has no application to municipal employees such as Rogers; (2) there is no statute or constitutional provision prohibiting the holding of both the office of trustee and the status of an employee on leave of absence; and (3) there are insufficient conflicts between the positions of trustee and policeman on leave to invoke the doctrine of incompatibility.
The trial court granted plaintiff's motion and denied defendant's motion. It based its judgment on a ground neither raised nor argued by either party, holding that the application of the incompatibility rule would result in an unconstitutional "chill" on Rogers' first amendment right to seek and hold elective public office. On appeal, Rogers makes no attempt to uphold the trial court's judgment on that ground, stating that while he agrees with the trial court's decision, he would reach it for different reasons.
The village argues that (1) the positions of police officer and village trustee are incompatible; (2) a police officer is an "officer" within the proscription of sections 3-4-3 and 3-14-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, pars. 3-4-3, 3-14-1); and (3) section 3 of the Corrupt Practices Act (Ill. Rev. Stat. 1979, ch. 102, par. 3) prohibits plaintiff from holding both positions. We find it necessary to consider only the first argument.
The doctrine of incompatibility is succinctly stated in People v. Haas (1908), 145 Ill. App. 283, 286-87:
"Incompatibility * * * is present when the written law of a state specifically prohibits the occupant of either one of the offices in question from holding the other and, also, where the duties of either office are such that the holder of the office cannot in every instance, properly and fully, faithfully perform all the duties of the other office. This incompatibility may arise from multiplicity of business in the one office or the other, considerations of public policy or otherwise. Bacon's Abridgement Vol. 7, Tit. `Officers,' K.; Rex v. Tizzard, 9 B. & C., 418; 1 Dillon on Mun. Corp., p. 308-9, secs. 225-7 and note 4; McCrary on Elec., secs. 336 et seq. 4th Ed; Mechem on Pub. Off., sec. 429; Dickson v. People, 17 Ill. 191; People ex rel. v. Hanifan, 96 Ill. 420; Packingham v. Harper, 66 Ill. App. 96. From these authorities it also appears that in case of incompatibility the acceptance of the second office is ipso facto a resignation of the first office. By his own action the officer expresses his voluntary resignation."
See also People ex rel. Petka v. Bingle (1983), 112 Ill. App.3d 73, 445 N.E.2d 941.
The elements of the doctrine of common law incompatibility are stated in 63 Am.Jur.2d Public Officers and Employees sec. 73 (1972):
"It is to be found in the character of the offices and their relation to each other, in the subordination of the one to the other, and in the nature of the duties and functions which attach to them.
Incompatibility of offices exists where there is a conflict in the duties of the offices, so that the performance of the duties of the one interferes with the performance of the duties of the other. They are generally considered incompatible where such duties and functions are inherently inconsistent and repugnant, so that because of the contrariety and antagonism which would result from the attempt of one person to discharge faithfully, impartially, and efficiently the duties of both offices, considerations of public policy render it improper for an incumbent to retain both.
At common law, it is not an essential element of incompatibility of offices that the clash of duty should exist in all or in the greater part of the official functions. If one office is superior to the other in some of its principal or important duties, so that the exercise of such duties may conflict, to the public detriment, with the exercise ...