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Price v. Bd of Fire & Police Commissioners

OPINION FILED DECEMBER 20, 1985.

EARL DAVID PRICE, APPELLANT,

v.

THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF BEARDSTOWN ET AL., APPELLEES.



Appeal from the Circuit Court of Cass County; the Hon. Cecil J. Burrows, Judge, presiding.

PRESIDING JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

The plaintiff, Earl David Price, appeals a circuit court order affirming a decision of the Beardstown Board of Fire and Police Commissioners (board) discharging him from the position of Beardstown police officer. He contends that his discharge represents the impermissible imposition upon him of a second penalty for the same instance of improper conduct and that the board's finding that he committed the improper conduct which formed the basis for the charges against him is contrary to the manifest weight of the evidence.

Because the first issue which Price raises involves consideration of the sequence of procedural steps leading up to Price's discharge, a somewhat detailed recitation of the procedural history of the disciplinary proceedings involving Price is in order. At 7:30 p.m. on April 26, 1984, Price was given an oral notice of a five-day suspension by Beardstown police chief Raymond Taylor and at 11:19 p.m. on the same evening, a written notice of the five-day suspension, signed by Taylor, was served on Price. At approximately 4:30 p.m. on April 27, 1984, a notice of a special meeting of the board was served on Price's wife, and at 9:15 and 9:49 p.m. on the same day, a notice of appeal from Price's five-day suspension was served upon two members of the board. On an unspecified date, Taylor filed with the board formal charges against Price, a copy of which was served on Price at 6:50 p.m. on April 30, 1984. At that same time, Price served on the board a request to withdraw his notice of appeal from the five-day suspension.

On May 1, 1984, a notice of suspension pending the outcome of the board's hearing on the formal charges filed by Taylor was served on Price. Following the denial on May 15, 1984, of a motion to dismiss the charges against Price, the board on the same date conducted a hearing on the charges, which was resumed on May 21, 1984. At the latter session of the hearing, the board announced its decision to discharge Price from the police force. Upon the circuit court's dismissal of his complaint in administrative review, Price perfected an appeal to this court.

Price contends that the five-day suspension of which he received both oral and written notice on April 26, 1984, was a final disciplinary action and that the board, by virtue of the supreme court's decision in Burton v. Civil Service Com. (1979), 76 Ill.2d 522, 394 N.E.2d 1168, was thereafter precluded from taking further disciplinary action against him. He further maintains that his withdrawal of the notice of appeal of his five-day suspension divested the board of any jurisdiction that it may have had to take further action against him on the basis of his appeal of the five-day suspension. Finally, he asserts that only the board, and not the police chief, has power to suspend a police officer pending investigation by the board of alleged misconduct on the part of the officer.

• 1 Our analysis of this issue must begin with a consideration of the relevant statutory provision:

"Except as hereinafter provided, 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. If the Board of Fire and Police Commissioners determines that the charges are not sustained, the officer or member shall be reimbursed for all wages withheld, if any.

Nothing in this section shall be construed to prevent the chief of the fire department or the chief of the police department from suspending without pay a member of his department for a period of not more than 5 days, but he shall notify the board in writing of such suspension. Any policeman or fireman so suspended may appeal to the board of fire and police commissioners for a review of the suspension within 24 hours after such suspension, and upon such appeal, the board may sustain the action of the chief of the department, may reverse it with instructions that the man receive his pay for the period involved, or may suspend the officer for an additional period of not more than thirty days or discharge him, depending upon the facts presented." (Ill. Rev. Stat. 1983, ch. 24, par. 10-2.1-17.)

We initially note that "[t]he statute is silent as to any power of the chief of police to suspend an officer pending the filing of charges with the board." (Green v. Board of Fire & Police Commissioners (1980), 87 Ill. App.3d 183, 189, 408 N.E.2d 1187, 1192.) It follows that this provision permits the taking of disciplinary action against an officer in either or both of two ways. First, the chief may, upon written notice to an officer, suspend the officer for up to five days. This penalty may be enhanced by the board to a suspension for up to a total of 35 days or discharge if the officer appeals the suspension to the board. Second, the board may, if an officer is not suspended by the chief, or if no appeal is taken from such a suspension, impose discipline upon the officer consisting of suspension for up to 30 days or discharge if it finds that the evidence sustains charges preferred against the officer.

• 2 This case differs from Burton in that here, unlike in Burton, the relevant statutory provision permits the imposition of a penalty by the administrative tribunal responsible for adjudicating charges of employee misconduct in addition to a suspension of limited duration which may be imposed by the employee's supervisor. Supporting this conclusion is the statement in the statute that "[n]othing in this section shall be construed to prevent" a suspension of not more than five days by the department chief. Under the interpretation of the statute for which Price contends, a suspension of not more than five days would for practical purposes be precluded by a police or fire department's desire to file with the board charges against an officer during or subsequent to a five-day suspension imposed by the chief relating to the same conduct as that which was the basis for suspension by the chief. Such an interpretation of this provision would violate the fundamental rule of statutory construction that clear statutory language should be given effect without resort to other aids in construction. (People v. Robinson (1982), 89 Ill.2d 469, 433 N.E.2d 674; DeWitt County Taxpayers' Association v. County Board (1983), 112 Ill. App.3d 332, 445 N.E.2d 509.) Moreover, Price's interpretation of the statute would have the practical effect of rendering the language providing for suspensions by the chief of not more than five days a dead letter, since it is highly doubtful that chiefs would make use of their power to impose short suspensions under this provision while knowing that such action would foreclose all further disciplinary action with respect to the same conduct. Therefore, interpretation of the statute in accordance with Price's views would also run afoul of the principle that statutes should be construed so as to render no word or clause thereof meaningless or superfluous. Pioneer Processing, Inc. v. Environmental Protection Agency (1982), 111 Ill. App.3d 414, 444 N.E.2d 211.

• 3-5 In view of our conclusion as to the meaning of the relevant statute, Price's remaining allegations of error are of little significance. Contrary to Price's contention, the evidence that a special meeting of the board had been scheduled prior to the time that Price's notice of appeal was served on the board members supports the conclusion that the hearing was primarily intended as a forum for considering the charges of misconduct on the part of Price alleged in Taylor's complaint which was to be filed with the board rather than as a forum for considering the imposition upon Price of additional discipline as a result of the filing of his notice of appeal from the five-day suspension. Thus, Price's withdrawal of his notice of appeal was of no relevance to the board's authority to consider the charges which Taylor filed against him. Furthermore, although the evidence supports the view that the initial five-day suspension of Price may have been imposed by Taylor with the intention that it constitute an initial period of suspension pending action by the board on the charges which Taylor filed against Price, the use of the chief's power to suspend with that type of subjective intent is not impermissible under our view of the statute. Finally, we note parenthetically that our interpretation of the statute does not have the effect of placing persons such as Price in double jeopardy, since the prohibition against double jeopardy is applicable only to criminal proceedings, and public employee disciplinary proceedings are civil in nature. See Bart v. Department of Law Enforcement (1977), 52 Ill. App.3d 487, 367 N.E.2d 773.

• 6 We next consider Price's contention that the board's finding that he committed the acts of misconduct charged in the complaint which Taylor filed with the board is contrary to the manifest weight of the evidence. The charges essentially state that on April 26, 1984, Price committed an assault and battery and an aggravated battery on Chief Taylor by striking him at the Beardstown city hall.

We deem Taylor's contention that the evidence is insufficient to support the board's finding to be so lacking in merit that a detailed statement of all of the evidence introduced at the May 15, 1984, hearing is unnecessary. Suffice it to say that there was unimpeached testimony on the part of four witnesses that Price initiated the altercation without significant provocation on the part of Taylor by striking Taylor in the face. Officer Jack Hageman did testify on Price's behalf that Taylor told him after the meeting at which the altercation occurred, that Price approached him during the meeting shaking his finger and yelling and that he (Taylor) then stood and grabbed Price's fingers immediately before Price struck him. This testimony is, however, contradicted by that of Velma Ashcraft, which may fairly be read as a statement that she had Taylor's hands in full view prior to the altercation and that Price, rather than Taylor, first initiated bodily contact between the two men by striking Taylor in the face. Moreover, Price's own testimony supports the conclusion that Taylor's purported grabbing of his fingers, if it occurred, was not an important factor in precipitating his striking Taylor, for in his initial narrative version of events on the evening in question, Price did not mention that Taylor grabbed his fingers before he struck Taylor. It is elemental that where, as here, there is conflicting testimony, the administrative tribunal's evaluation of the witness' credibility is not to be disturbed on review. E.g., DeGrazio v. Civil Service Com. (1964), 31 Ill.2d 482, 202 N.E.2d 522; Zinser v. Board of Fire & Police Commissioners (1961), 28 Ill. App.2d 435, 172 N.E.2d 33.

Neither of the two cases cited in support of Price's argument that the evidence is insufficient to sustain the charges against him supports that contention. None of the findings of misconduct at issue in Smith v. O'Keefe (1973), 9 Ill. App.3d 814, 293 N.E.2d 142, which the appellate court held were contrary to the manifest weight of the evidence, were supported by the type of credible and unimpeached testimony present in the case at bar. In People v. Brumbeloe (1968), 97 Ill. App.2d 370, 240 N.E.2d 150, the defendant's conviction of voluntary manslaughter on the accountability theory was reversed on the ground that he committed no conduct with the intention that the principal commit voluntary manslaughter, since his actions leading up and during the affray which resulted in the decedent's death were ...


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