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Budka v. Board of Public Safety Comm'rs

OPINION FILED DECEMBER 14, 1983.

GARY H. BUDKA, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

THE BOARD OF PUBLIC SAFETY COMMISSIONERS ET AL., DEFENDANTS-APPELLANTS AND CROSS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

On December 5, 1977, plaintiff Gary H. Budka was discharged as a village of Rosemont police officer by the defendant Board of Public Safety Commissioners because he failed to maintain his residence in Rosemont. On January 9, 1978, plaintiff filed an administrative review action challenging his discharge, and on March 9, 1981, that action was dismissed for want of prosecution. On March 4, 1982, plaintiff filed the present action which was identical to the previously dismissed suit. On November 9, 1982, the trial court set aside the board's decision and found that Rosemont's residency requirements did not apply to plaintiff. The court directed that plaintiff be reinstated as a police officer and awarded him back pay and allowances subject to setoffs with the exception that no back pay and allowances were awarded for the period during which the action was dismissed for want of prosecution. Defendants appeal. Plaintiff has filed a cross-appeal challenging that portion of the order which did not allow him back pay for the period during which the matter was dismissed for want of prosecution.

On August 1, 1972, plaintiff, who at the time resided in Chicago, was appointed an officer of the Rosemont police department. Approximately seven months later, while in his probationary period, plaintiff established a residence in Rosemont. On September 22, 1977, plaintiff established residence in Schaumburg.

Defendant Richard Drehobl, director of public safety, filed written charges with the board in October 1977, seeking plaintiff's discharge for his failure to maintain a residence in Rosemont. The charges alleged violations of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 3-14-1), Rosemont Ordinance 74-3-9, and Rosemont Police Department and Board of Police and Fire Commissioners Rules.

At the hearing before the board, plaintiff testified that he had not been advised, when he was hired, of any statute, rule or ordinance requiring him to live in Rosemont. Although he had heard "by word of mouth" of the supposed requirement, his taking up of residency in Rosemont was not motivated by a desire to comply with a requirement. Plaintiff also testified that one month before he moved to Schaumburg, he was ordered to sign a form acknowledging his understanding that actual residence within Rosemont was a condition of his employment. Plaintiff signed the form under protest and, at the time of signing, plaintiff's attorney wrote to the Police and Fire Commission expressing the belief that the residency requirements were unconstitutional as applied to plaintiff.

Plaintiff testified that on October 10, 1977, he told Drehobl he had purchased a home in Florida and was considering moving there. He also testified that, in moving to Schaumburg, he relied on the fact that the Rosemont chief of patrol resided in Schaumburg. Prior to plaintiff's change of residence, however, discharge proceedings were brought against the chief.

Plaintiff argued before the board and in the trial court that the Illinois Municipal Code was not applicable to him. He maintained that the adoption of Rosemont Ordinance 75-9-17A conflicted with the State statute and that under Rosemont's home rule powers, the statute was superseded. The statute provides in relevant part:

"No person shall be eligible to any municipal office unless he is a qualified elector of the municipality and has resided therein at least one year next preceding his election or appointment. However, these requirements shall not apply to the municipal engineer, health officers, or other officers who require technical training or knowledge. Nor shall these requirements apply to city attorneys or to village attorneys. But no person shall be eligible to any municipal office who is a defaulter to the municipality.

Except for incorporated towns which have superseded a civil township, municipalities having a population of not more than 500,000 are hereby authorized and empowered to adopt ordinances which allow firemen and policemen to reside outside of the corporate limits of the municipality by which they are employed both at the time of appointment and while serving as such firemen or policemen." Ill. Rev. Stat. 1975, ch. 24, par. 3-14-1.

The Rosemont ordinance adopted on September 17, 1975, provides in relevant part:

"SECTION 3: That section 2-103.1 of the Code of Ordinances of the Village of Rosemont be amended to read as follows:

Sec. 2-103.1. Requirements for appointment.

All applicants for a position in the Department of Public Safety shall be citizens of the United States, electors within the State of Illinois and County of Cook, and shall have been residents of the Village of Rosemont for at ...


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