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PETERSEN v. THE BOARD OF REGENTS OF THE REGENCY UN.

October 10, 1985

SCOTT PETERSEN, PLAINTIFF,
v.
THE BOARD OF REGENTS OF THE REGENCY UNIVERSITY SYSTEM, DEFENDANT.



The opinion of the court was delivered by: Roszkowski, District Judge.

ORDER

The defendant Board of Regents has moved that the court grant summary judgment on its behalf. On the basis of the briefs submitted and for the reasons set out below the court grants summary judgment for the defendant.

BACKGROUND

Scott Petersen, the plaintiff in this action is a police officer for the Northern Illinois University Police Department. In August of 1985 Petersen received a memorandum from his superior, Captain Paul Leifheit of the University Police. The memorandum alleged three violations of department rules*fn1 and recommended a three-day suspension. On August 31, the department held a hearing and neither side claims any procedural irregularities. Pursuant to a Collective Bargaining Agreement, however, the Plaintiff as a member of the Fraternal Order of Police had a right to a second hearing at the level of the Director of Personnel.

An attorney for the plaintiff and the union requested a schedule and then a continuance of that schedule for a second hearing. The employee Relations Officer whom the Director of Personnel designated to conduct the hearing refused to allow Petersen's counsel to accompany Petersen into the hearing room. Only a union representative was allowed to and did accompany Petersen into the hearing room. The Employee Relations Officer subsequently approved the department's request to suspend Petersen for three days and Petersen served the suspension in three consecutive work days.

DISCUSSION

Petersen claims that by denying him the right to have his attorney present at this second hearing the Board of Regents violated his constitutional rights to equal protection and to due process of the laws.

A. Equal protection claims

In Palcek v. City of Chicago Heights, 74 Ill. App.3d 702, 393 N.E.2d 1218, 30 Ill.Dec. 871 (1979), a police officer was discharged from the Chicago Heights Police Department after the City's Board of Fire and Police Commissioners found the officer guilty of removing property from a store. The officer appealed his discharge contending that his statements that were used against him were obtained without a warning of the officer's rights under certain Illinois statutes. The appellate court noted that one of three Municipal Code sections could determine a police officer's rights during a discharge. The choice depended on the population of the employing community and whether the community had elected to be controlled by the civil service provisions of the Municipal Code section 10-1-1. Palcek, 74 Ill.App.3d at 703, 393 N.E.2d at 1220, 30 Ill.Dec. at 873 (citing Ill.Rev.Stat. ch. 24, ¶ 10-1-1 (1977)).

If the City had a population of at least 5,000 and no more than 250,000 and was not subject to the Municipal Code section 10-1-1, or had a population of less than 5,000 and was subject to Division 2.1 of the Municipal Code, section 10-2.1-1 of the Municipal Code regulated removal and discharge. That section provided in pertinent part,

  no officer or member of the fire or police department
  of any municipality subject to this Division 2.1 shall
  be removed or discharged except for cause, upon
  written charges, and after an opportunity to be heard
  in his own defense. * * * The board of fire and police
  commissioners shall conduct a fair and impartial
  hearing of the charges, to be commenced within 30 days
  of the filing thereof, which hearing may be continued
  from time to time. In case an officer or member is
  found guilty, the board may discharge him, or may
  suspend him not exceeding 30 days without pay. The
  board may suspend any officer or member pending the
  hearing with or without pay, but not to exceed 30
  days.

Ill.Rev.Stat. ch. 24, ¶ 10-2.1-1 (1983). If the city was subject to the civil service provisions of the Municipal Code, section 10-1-18 applied, and it provided in pertinent part,

  no officer or employee in the classified civil service
  of any municipality who is appointed under the rule
  and after examination, may be removed or discharged,
  or suspended for a period of more than 30 days, except
  for cause upon written charges and after an
  opportunity to be heard in his own defense. * * *
  Before any officer or employee in the classified
  service of any municipality may be interrogated or
  examined by or before any disciplinary board, or
  departmental agent or investigator, the results of
  which hearing, interrogation or examination maybe the
  basis for filing charges seeking his removal or
  discharge, he must be advised in writing as to what
  specific improper or illegal act he is alleged to have
  committed; he must be advised in writing that his
  admissions made in the course of the hearing,
  interrogation or examination may be used as the basis
  for charges seeking his removal or discharge; and he
  must be advised in writing that he has the right to
  counsel of his own choosing present to advise him at
  any hearing, interrogation or examination; and a
  complete record of any hearing, interrogation or
  examination shall be made and a complete transcript
  thereof made available to such officer or employee
  without charge and without delay. Nothing in this
  Division 1 limits the power of any officer to suspend
  a subordinate for a reasonable period not exceeding 30
  days except that any employee or officer suspended for
  more than 5 days or suspended within 6 months after a
  previous suspension shall be entitled, upon request,
  to a hearing
 
  before the civil service commission concerning
  the propriety of ...

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