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Wagner v. Kramer

OPINION FILED OCTOBER 18, 1985.

DAVID E. WAGNER, JR., APPELLEE,

v.

GEORGE KRAMER, SHERIFF, ET AL., APPELLANTS.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Kane County, the Hon. John A. Krause, Judge, presiding.

JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

On December 13, 1982, David Wagner, a deputy sheriff of the Kane County sheriff's department, filed a complaint for administrative review in the circuit court of Kane County against the sheriff of Kane County, George Kramer, and three members of the Kane County sheriff's merit commission. The complaint asked that the court review the decision of the sheriff's merit commission which denied the plaintiff a review of his five-day disciplinary suspension. The suspension was ordered by Sheriff Kramer, on the ground that the plaintiff refused to obey a direct order. The circuit court granted the defendants' motion to dismiss the complaint, holding that it had no authority to review the sheriff's order of suspension. The appellate court reversed and remanded to the circuit court, holding that the plaintiff had a right of review of the suspension. (125 Ill. App.3d 12.) We granted the defendants' petition for leave to appeal under Rule 315 (87 Ill.2d R. 315).

On May 4, 1982, a writ for detention and quarantine was delivered to the Kane County sheriff's department from the State's Attorney's office, requesting transportation of a woman with tuberculosis from her Aurora home to a nearby hospital. On May 6, the sheriff's office received a call that the patient was ready to be taken to the hospital. The plaintiff's superior officer, Lieutenant John Grimes, directed the plaintiff to act as a "back-up" in his vehicle and to follow another sheriff's vehicle that would transport the patient. The plaintiff was informed that he would not have to leave his vehicle unless some difficulties arose. The plaintiff refused to carry out the order, claiming that it was too dangerous because of the possibility that he might contract the disease. Lieutenant Grimes told the plaintiff that he was relieved of duty for the day.

The next day, May 7, 1982, a disciplinary hearing was held by the sheriff's board of inquiry. At it the plaintiff stated that he had not been trained to transport individuals with communicable diseases and that he could not place himself or his family into what was a dangerous situation. He also said that the duty was not required under his job description and that it was not an "ordinary police duty."

Lieutenant Grimes testified that the department had on earlier occasions been ordered to transport individuals with tuberculosis and that a nurse assigned to the tuberculosis clinic had informed him that the disease was not as contagious as some persons believed. He testified that on the occasion when the patient arrived at the hospital, no extraordinary precautions were taken by hospital personnel to shield themselves or the deputies to avoid contagion, even though they were expecting the patient's admission.

Undersheriff Peter Perez testified that he was notified by Lieutenant Grimes of the plaintiff's refusal. He stated that he could understand the plaintiff's reasons for refusal, but that when given a direct order, the plaintiff was obliged to comply with the order. Following the hearing, the plaintiff was suspended by the sheriff for 5 days for violating Department Regulation 6-3, sections 7-2 and 7-35, which concerned a failure or refusal to obey a lawful order given by a superior.

The plaintiff filed with the sheriff's merit commission of Kane County a written request for a hearing to review his suspension. In a letter to the plaintiff the commission denied the request, stating that, "under applicable law," the plaintiff had no right to a commission hearing to review a suspension for five working days or less.

The plaintiff then filed a complaint for administrative review in the circuit court of Kane County, requiring judicial review of the merit commission's denial of review of the sheriff's suspension order. On June 9, 1983, the circuit court granted the defendants' motion to dismiss the complaint.

The appellate court reversed, interpreting this court's decision in Kropel v. Conlisk (1975), 60 Ill.2d 17, to allow the plaintiff a review of his five-day suspension. (125 Ill. App.3d 12, 18.) The defendants contend here that the appellate court erred in interpreting Kropel to allow review of the suspension and argue that due process does not require a review of disciplinary suspensions of five days or less.

We consider that the resolution of the question does not require a constitutional application but rather is reached under our statutes.

The Sheriff's Merit System Act provides for a sheriff's office merit commission, which is to consist of three or five members with the duty, inter alia, upon complaint of the sheriff, to conduct disciplinary hearings for deputy sheriffs and to impose sanctions. (Ill. Rev. Stat. 1983, ch. 125, pars. 157, 164.) The Act provides also that the sheriff may directly take disciplinary action. The Act states:

"Sec. 13. Disciplinary measures. Disciplinary measures for actions violating * * * the internal procedures of the sheriff's office may be taken by the sheriff. Such disciplinary measures may include suspension of any certified person for reasonable periods, not exceeding a cumulative 30 days in any 12-month period." (Ill. Rev. Stat. 1983, ch. 125, par. 163.)

The Act provides, too, that the sheriff may bring charges before the merit commission:

"Sec. 14. Removal, demotion or suspension. Except as is otherwise provided in this Act, no certified person shall be * * * suspended except for cause, upon written charges filed with the Merit Commission by the sheriff. Upon the filing of such a petition, the sheriff may suspend the certified person pending the decision ...


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