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Kaiser v. Dixon

OPINION FILED SEPTEMBER 7, 1984.

JACQUELINE KAISER, PLAINTIFF-APPELLANT,

v.

JOHN FULTON DIXON ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County; the Hon. John S. Teschner, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Plaintiff, Jacqueline Kaiser, appeals from a June 21, 1983, judgment entered by the trial court, which confirmed the decision of a village of Roselle (Roselle) hearing officer denying plaintiff reinstatement as a dispatcher for the Roselle police department, back pay, and attorney fees. Plaintiff also appeals from a February 6, 1980, trial court order, which issued a writ of mandamus compelling Roselle to hold a hearing on the question of plaintiff's discharge, but denied her request to be reinstated with back pay without a hearing. Plaintiff's prior appeal from the 1980 order was dismissed by this court for lack of jurisdiction because the order was not final. (Kaiser v. Village of Roselle (1980), 88 Ill. App.3d 1199 (Rule 23 order).) Defendants, John Dixon, the director of village services and personnel, James Munroe, the chief of police, and Roselle cross-appeal from the February 6, 1980, order.

Plaintiff raises the following issues on appeal: (1) whether plaintiff was improperly discharged by the chief of police; (2) whether plaintiff was discharged in a manner contrary to the ordinances and staff policy manual of Roselle; (3) whether plaintiff was terminated in a manner contrary to the rules and regulations of the Roselle police department; and (4) whether the later, court-ordered hearing afforded plaintiff by Roselle denied her due process.

On November 11, 1977, plaintiff's employment as a radio dispatcher for the Roselle police department was terminated. She brought suit seeking, in count I of her second amended complaint, a writ of mandamus ordering defendants Dixon and Roselle to hold a hearing "regarding the termination of plaintiff's employment" and ordering her reinstatement with back pay pending the hearing. She also sought attorney fees in count I. Count I alleged plaintiff was improperly terminated because the defendants failed to follow the procedures set out for terminating a village employee in Roselle's staff policy manual (manual). Count II, in the alternative, alleged that plaintiff was improperly terminated by the chief of police because her termination was effected under rules and regulations of the police department which were void to the extent they attempted to vest authority in the chief of police to hire or fire employees of the police department who were not sworn police officers. Count II sought reinstatement and back pay. Count III, in the alternative, alleged plaintiff was a member of the police department and that she was not terminated in accordance with the police department rules. Count III sought a writ of mandamus ordering the defendants to vacate plaintiff's termination and reinstate her "as a member of the Roselle Police Department with full back pay, plus interest, costs, and attorney's fees."

At trial, plaintiff called Joseph Devlin, the president of Roselle's board of trustees, as an adverse witness. He testified that defendant Munroe, the chief of police, contacted him about the chief's intention to fire plaintiff. Devlin did not fire plaintiff but "had concurred with the action." He did not contact plaintiff, investigate the charges against her, give her a list of charges, seek documentation of the charges, hold a hearing concerning the termination, or inform her of a right to a hearing.

John Dixon, the former director of village services and personnel, was called by plaintiff as an adverse witness. He testified that, while he was the director, he suspended plaintiff in January 1977. At the time of this suspension, Munroe recommended that plaintiff be dismissed. After discussing the matter with the chief and plaintiff, Dixon decided to suspend plaintiff rather than terminate her. Dixon wrote the letter notifying plaintiff of her suspension.

Dixon testified that he did not recall being asked to take any disciplinary action against plaintiff at a later time and did not recall receiving plaintiff's exhibit No. 5I which was a November 11, 1977, document from the chief requesting that plaintiff be terminated. He was out of town on that date and, on his return, plaintiff was "no longer an employee." He was not sure whether the village president or the chief fired plaintiff. He testified that he did write a letter (plaintiff's exhibit No. 5F) denying plaintiff's request for a hearing before him and that plaintiff did not request a hearing within the proper time frame. No specified time period for seeking a hearing is provided in the manual, so he believed the time would be a reasonable time.

Defendant James Munroe, the police chief, testified as an adverse witness that he hired plaintiff subject to the approval of Dixon as to salary. He indicated that Dixon could have prohibited his hiring someone but that "it was not done." In January 1977, he sought to terminate plaintiff, but Dixon thought a suspension would be more proper. In his January 5, 1977, memo to Dixon (plaintiff's exhibit No. 5), he recommended that plaintiff be terminated. He testified that he "poorly worded this document" and "should have perhaps said that on consultation with [Dixon], I had decided to back off and have the suspension."

On November 11, 1977, the chief talked with Devlin and told him he intended to fire plaintiff unless Devlin had an objection. Devlin concurred in the termination. The chief testified he did not know why he had plaintiff's exhibit No. 5I, which requests Dixon to terminate plaintiff, prepared in November 1977.

When plaintiff arrived for work on November 11, 1977, he told her he intended to fire her. He did not give her a written list of charges, hold a hearing or give her an opportunity to answer the charges. He admitted he did not exactly follow the police department rules in terminating plaintiff. He believed the rules gave him "power to amend or modify them" at his discretion and that he could override them "even on moment's notice for the public safety and public good * * *." He believed he did not have to follow the police department rules.

Plaintiff testified on her own behalf that she was a radio dispatcher with the Roselle police department beginning September 1, 1976. Her annual salary was $9,132 when she left on November 11, 1977. She also had obtained $2,274 in benefits and $798 in overtime pay.

She received a three-day suspension on January 7, 1977. She identified plaintiff's exhibit 5C as a letter she received from the chief granting her request for a hearing after the suspension. It contains a written list of charges. She later withdrew her request for a hearing. She was terminated on November 11, 1977.

Defendants called plaintiff as an adverse witness. She testified that the chief's secretary was her immediate supervisor. She did not know of anyone outside the police department who was in her chain of command. She testified she appealed her termination to Dixon.

Chief James Munroe testified that he wrote the rules of the police department and that these rules were adopted by the board of trustees.

In a written order issued on February 6, 1980, the trial court ordered Roselle and Dixon's successor as director of village services and personnel (now called village administrator), Glenn Spachman, to hold a hearing in accordance with the manual to determine whether plaintiff should be reinstated. The court ordered that plaintiff "shall not recover any back pay * * * unless she is reinstated pursuant to the hearing * * *."

The trial court set forth several findings in this order. Among these were a finding that the manual became a part of plaintiff's employment contract when she was hired by Roselle; that the rules and regulations of the police department reflect the rights in the manual rather than contradicting them; that plaintiff was not a "member" of the police department as that term is used in the Code of Ordinances of Roselle; that under the manual plaintiff was entitled to a hearing prior to her dismissal; and that she had made a timely request for a hearing.

On February 14 and 21, 1980, the hearing ordered by the trial court was held before Glenn Spachman, the village administrator of Roselle. At this hearing, the parties elicited testimony concerning the opinions of the various Roselle officials on whether they believed plaintiff was entitled to a hearing, and under what circumstances she would be entitled to a hearing. However, since the trial court had already determined that plaintiff was entitled to the hearing, this testimony is irrelevant and will not be recounted.

Defendant Munroe, the police chief, testified at the hearing. During the course of his testimony, several exhibits were offered by the village. These exhibits, which were various reports and memoranda by subordinates of the chief concerning plaintiff's misconduct, were objected to by plaintiff on the basis of relevance and hearsay. These exhibits were accepted into evidence.

Exhibit A was an October 11, 1977, memo from Hope Vandalia, plaintiff's supervisor, to the chief in which Vandalia reports that on October 10, 1977, plaintiff told another dispatcher that they should each take the radio room alone for four hours rather than both being there together for a full eight hours. It also indicated plaintiff was making arrest packages, which was outside the scope of her duties. Exhibit B was an October 11, 1977, memo from Vandalia to the chief concerning plaintiff's ongoing practice of calling Linda Crowley or Grace Jacobs, rather than the records clerk on duty, to get answers to her questions. It also indicated Linda, her son, and a friend named Mary were spending a lot of evenings at the police department and were "taking over the entire department." Linda Crowley and Grace Jacobs were former employees of the police department.

Exhibit C was an October 27, 1977, memo from Carol Kaad, a police department clerk, to Vandalia concerning plaintiff. It lists numerous derogatory statements about the department or department employees Kaad heard plaintiff make. It also states plaintiff has had visitors in the radio room for "great lengths of time," permitted them to use the copy machine and telephones, and ...


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