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Kosoglad v. Porcelli

OPINION FILED APRIL 23, 1985.

LEONARD W. KOSOGLAD, PLAINTIFF-APPELLANT,

v.

JOHN C. PORCELLI ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Leonard W. Kosoglad, plaintiff, appeals from an order of the circuit court of Cook County dismissing on the merits his complaint wherein he requested the trial court to hold that his removal from the Lincolnwood board of fire and police commissioners (board of commissioners) by the board of trustees of the village of Lincolnwood (village board) was unlawful.

In 1982, plaintiff was appointed by the mayor of Lincolnwood to the board of commissioners for a three-year term. On September 15, 1983, defendant Porcelli, mayor of Lincolnwood, presented to plaintiff and to the village board six written charges against plaintiff, and requested that the village board vote to remove plaintiff from the board of commissioners.

The charges stated that plaintiff had sought to "undermine the authority of the chief of police by interfering in personnel matters under the jurisdiction of the chief" in that at a meeting held on September 7, 1983, attended by plaintiff, the chief and several village police officers, plaintiff made "disparaging statements" about the chief, including having advised the chief that his retention as chief "was dependent upon" plaintiff's "help," that plaintiff had "criticized the chief in his operation of the department and, in particular, how he dealt with his supervisory personnel" and had advised the officers that "they should have tried harder to obtain pay raises" and that plaintiff "requested the chief to remove 50% of the disciplinary records" from one officer's personnel files. It was charged that these actions "are contrary to the function and purpose of the business of a member of the * * * [Board of Commissioners]," are "improper and undermine the morale of the police department. Such conduct is also contrary to the letter and spirit of the law in that it is outside the scope of authority given to a Commissioner, and prevents that Commissioner from remaining objective in the evaluation of police officers for promotion within the department."

A hearing on the charges was held by the board at the village board's regularly scheduled meeting of September 19, 1983. Village attorney Cope stated that he would serve only as an advisor to the village board on matters of procedure and objections; another attorney had been retained by the village to present to the village board the evidence against plaintiff.

Plaintiff, the chairman of the board of commissioners, the chief of police, the mayor, and the four police officers who attended the September 7, 1983, meeting presented testimony. While the evidence was somewhat contradictory, for purposes of this opinion it is sufficient to say that the essence of the testimony was as follows: On September 7, plaintiff called the chief and four other officers to arrange a meeting to discuss what plaintiff termed a "very severe morale problem." Plaintiff did not advise the mayor or other commissioners of the alleged morale problem or of the meeting which he had arranged. At the meeting plaintiff indicated to the chief that some of the officers were concerned that the chief was placing into their personnel files critical memos which allegedly related to trivial matters. According to some of the participants in the meeting, plaintiff suggested the chief should remove "50%" of the memos in the personnel files.

Plaintiff discussed, or criticized, the manner in which the chief handled personnel problems. Testimony was elicited to the effect that plaintiff advised the officers that if they, rather than the chief, had presented their request for higher pay to the village board, they would have received larger raises.

The chairman of the board of commissioners testified that it was not the duty of the board of commissioners to intercede in disputes between the chief and police officers, nor was it the policy of the board of commissioners to undertake informal investigations of the police department or to comment on salary negotiations. A year earlier the chairman, in the presence of the mayor, had requested plaintiff to not interfere in police department business.

At the close of the evidence, the village board voted to continue the matter to its next regularly scheduled meeting. At that next meeting, the village board went into executive (closed) session to consider plaintiff's removal. Following the executive session, the village board returned to the public meeting and voted to remove plaintiff from the board of fire and police commissioners, with five members voting for removal and one member abstaining.

Plaintiff filed a three-count complaint in the circuit court to challenge his removal. Count I sought a declaratory judgment that plaintiff's removal was unlawful, count II sought administrative review of the removal and count III petitioned for a writ of certiorari. Counts I and II were dismissed by the trial court; plaintiff subsequently amended count III to include substantially the same allegations as were contained in the stricken counts.

The trial court denied defendants' motion to dismiss count III and ordered defendants to file a certified record of the evidentiary proceedings had before the village board. After reviewing the record, and receiving the written and oral arguments of counsel, the court refused to quash the village board proceedings, and dismissed plaintiff's complaint. *fn1

The essence of plaintiff's allegations in this court is that the village board's removal of plaintiff as a member of the board of fire and police commissioners was unlawful because: (1) there was no sufficient "cause" shown for his removal; (2) village attorney Cope's participation rendered the hearing before the village board unfair and; (3) the village board's closed executive session in which plaintiff's removal was considered violated the Illinois Open Meetings Act (Ill. Rev. Stat. 1983, ch. 102, par. 41 et seq.). Defendants cross-appeal, contending that the trial court erred in denying, without a hearing, defendant's petition for costs and attorney fees under section 2-611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-611). We affirm the trial court in all respects.

The parties agree that section 10-2.1-3 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 10-2.1-3) applies here. That statute provides in part:

"Members [of the Board of Fire and Police Commissioners] shall not be subject to removal, except for cause, upon written charges, and after an opportunity to be heard within 30 days in his or her own defense, before a regular meeting of the governing body of the municipality for which they have been appointed. A majority vote of the elected members of such governing body shall be required to remove any such member from office."

The relevant Lincolnwood ordinance mirrors this statutory language.

Defendants have contended throughout these proceedings that the judiciary is without authority to review whether adequate "cause" for plaintiff's removal was shown. They posit that since members of the board of commissioners are "political appointees" holding policy-making positions within the municipality and because the General Assembly has committed the responsibility and discretion for their removal to a local ...


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