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Kapsalis v. Bd of Fire & Police Comm'rs

OPINION FILED MAY 6, 1986.

JAMES KAPSALIS ET AL., PLAINTIFFS-APPELLEES,

v.

THE BOARD OF FIRE & POLICE COMMISSIONERS OF THE CITY OF BURBANK ET AL., DEFENDANTS-APPELLANTS.



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

JUSTICE SCARIANO DELIVERED THE OPINION OF THE COURT:

Plaintiffs, James Kapsalis and John Marozas, where discharged from their jobs as police officers in the city of Burbank police force without prior notice or a hearing. The city of Burbank, its board of fire and police commissioners, and individual commissioners, all defendants in this action, now appeal from the circuit court's order remanding the cause to the board for a new determination. The parties have stipulated that all the facts that apply to plaintiff Kapsalis also apply to plaintiff Marozas.

Before 1982, the city of Burbank had no police force of its own and had contracted to have its police work performed by the Cook County sheriff's department. Between 1972 and the time of suit however, the city had disbanded and re-created the board of fire and police commissioners (the board) a number of times. On August 25, 1982, the city council appointed a new chief of police and approved a motion to advertise for police recruits in suburban newspapers. A "Legal Notice," later published in the Daily Southtown Economist, stated: "Successful applicants will attend a school for patrol officers and will be subject to a probationary period of two years." The minutes of the city council meeting do not indicate whether the wording of any ads or the question of the appropriate probationary period were discussed.

On September 22, 1982, the Burbank city council passed an ordinance once again creating a board of fire and police commissioners, but denying the board authority to hire police officers. The ordinance provided that the board should have those powers enumerated in section 10-2.1-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 10-2.1-17), which outlines the procedures to be used in discharging police officers. The statute makes no reference to a probationary period.

At a city council meeting on October 8, 1982, 22 candidates for police officer were sworn in, including plaintiffs. The minutes of the meeting state:

"Treasurer Klein asked for a motion to change the rules and regulations to allow for coverage of medical and life insurance during the 90 day probationary [period] for these recruits and any employee, at the employees expense. * * * Motion carried."

The candidates were hired by the council and told to report to the police academy on the following Monday. The chief of police filed an affidavit in the trial court that he notified each police officer hired that all new officers would be required to serve a two-year probationary period. Plaintiff John Kapsalis filed a counteraffidavit stating that he was never told by any person, at any time, that he would be hired on a two-year probationary period.

On December 8, 1982, the city council passed ordinance No. 39-11-82, which established a police department and created the position of patrolman, to which plaintiffs had been appointed. Nothing in the ordinance referred to a probationary period for full-time employees. Plaintiffs graduated from the police academy on December 17, 1982. In January 1983, plaintiffs receives notices of salary increases, effective january 1, 1983. The notification form states: "Reason for the change * * * probationary period completed." This must have been a reference to the 90-day probationary period, although in reality, only 85 days had passed since plaintiffs were hired.

On March 9, 1983, the city council passed ordinance No. 9-2-83, which established a two-year probationary period for new police officers except those who were former members of another department. The ordinance was later amended, on April 7, 1983, to its current version, requiring a two-year probationary period for all new police officers who were former members of a regular police department of another municipality. The ordinance was to take effect immediately upon its passage.

On December 28, 1983, both plaintiffs were separately told by the chief of police that their employment was terminated effective immediately. They were given a letter at the same time that simply stated:

"This is to notify you that you have failed to meet the standards of [the] Burbank Police Department during your probationary period.

We regret to inform you that upon receipt of this letter, your duties as a Police Officer are terminated.

Burbank Fire & Police Commission"

Plaintiffs were hired on October 8, 1982, and discharged on December 28, 1983. The parties agree that probationary employees can be fired for any reason and are not entitled to a pretermination hearing or prior written notice of charges. (See Romanik v. Board of Fire & Police Commissioners (1975), 61 Ill.2d 422, 425, 338 N.E.2d 397, 399; City of Burbank ordinance No. 9-2-83.) On the other hand, upon the applicable city ordinance in effect at the time, officers who had achieved permanent status could only be discharged for cause and would thus be entitled to due process protections, including a right to notice of charges and an opportunity to be heard prior to discharge. (Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 538, 546, 84 L.Ed.2d 494, 501, 506, 105 S.Ct. 1487, 1491, 1495; City of Burbank ordinance No. 9-2-83.) Pursuant to its home-rule power, the city council declared section 10-2.1-17 of the Illinois Municipal Code ...


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