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03/12/87 Ken Lewis, v. Kenneth Hayes

March 12, 1987





505 N.E.2d 408, 152 Ill. App. 3d 1020, 106 Ill. Dec. 102 1987.IL.294

Appeal from the Circuit Court of Kankakee County; the Hon. John F. Michela, Judge, presiding.


JUSTICE STOUDER delivered the opinion of the court. HEIPLE and WOMBACHER, JJ., concur.


Defendants, the village of Bradley and its mayor, Kenneth Hayes, appeal from the judgment of the circuit court of Kankakee County awarding plaintiff, Ken Lewis, damages of $30,333 plus costs and attorney fees for the failure of the village to hire Lewis as a probationary police officer.

The Bradley police department's hiring procedures are governed by a board of police and fire commissioners (the board), which establishes an eligibility list for police officers. The process involves, first, an application for examination and an initial screening of applicants to determine eligibility. Second, applicants are required to pass written, physical, and oral examinations. Once a preliminary successful completion order is established, veteran's preference points are added, and a final eligibility list and rank order is published.

Upon completion of the testing procedure, Lewis occupied the second position on the eligibility list established in January 1982. After the first individual on the list was hired, a vacancy occurred in the department, but Lewis' name was not submitted by the board, allegedly on the basis that Lewis had not established residency in Bradley at the time. The board had enacted a rule that requires all applicants to be residents of the village. As had been done in the past, the residency requirement for taking the examination had been waived for Lewis, who was a former police officer. The practice was to allow former officers to take the examination and to make employment conditional upon taking up residency in the village. Further, prior practice of the board was to allow former officers to accept employment with the village and to give them 90 days to move into the village. At Lewis' oral interview, the board's chairman, Nick Coleveris, informed Lewis that he would have 90 days to move into the village if hired, and Lewis agreed to those terms. This point appears to be in dispute because the board secretary, Elmer Stump, testified that he never heard Coleveris make such a statement. Coleveris had a stroke since the time of the interview and was unable to testify.

When the third person on the list was hired before Lewis, he went to see the mayor. The mayor gave the reason of non-residency as the reason for the village's not hiring Lewis. At that time, the mayor was allegedly unaware of the previous hiring practices. Lewis was then hired as a part-time police officer, a group not governed by the board, in June 1982. There was no dispute about the fact that over the last 24 years, the eligibility list had always been followed in rank order or the fact that every other person hired as a full-time police officer, with one previous exception, was a Bradley resident. The eligibility list expired before any other vacancies occurred.

Lewis was removed from another eligibility list in 1984 when a question arose as to one of the answers he submitted on his application form. The question on the form was: "Were you ever discharged or forced to resign because of misconduct or unsatisfactory service or while under investigation?" Lewis checked the box "No" and added the comment "voluntarily resigned." This alleged misrepresentation was asserted in the village's first amended affirmative defense to Lewis' action. Lewis moved to strike the affirmative defense and a hearing was held on the motion. The defendants made an offer of proof at the hearing during which the Bourbonnais police chief testified that in 1981 Lewis was told that he was under investigation for alleged misconduct and was given the option of either voluntarily resigning or having charges filed against him if he decided to remain with the department. The chief also testified regarding the acts of misconduct and the subsequent investigation by the department. The motion of proof was rejected consistent with the court's determination that this part of the affirmative defense was irrelevant to the case. The defendants' motion to reconsider the order of dismissal was denied.

The first issue raised by the defendants is that, as a matter of law, Lewis had no basis upon which to ground his section 1983 action. The defendants contend that because dismissal from the position of probationary police officer did not have to be supported by cause, no property right existed in the position. The defendants contend then, that since no property right is involved, there was no deprivation of his substantive due process rights and, therefore, no basis for the section 1983 action. As the defendants correctly point out, municipalities governed by or electing to be governed by division 2.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 10-2.1-1 et seq.), may summarily discharge a probationary patrolman without a hearing. (See Romanik v. Board of Fire and Police Commissioners (1975), 61 Ill. 2d 422, 338 N.E.2d 397.) In that case, where the employee serves at the will and pleasure of the public employer, the courts will not recognize a constitutionally protected property interest. Bishop v. Wood (1976), 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074.

However, where a property interest exists, that interest must be protected by due process safeguards. Property interests are created and their dimensions defined by existing rules or understandings that stem from an independent source such as State law. These rules and understandings secure certain benefits and will support claims of entitlement to those benefits. (Board of Regents v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701.) In this case, the village of Bradley, by enacting its rules of the commission, has modified the status of a probationary police officer. Section 1 of Rule V states that a probationary employee can be terminated if he is found incompetent or disqualified for the performance of his duties. It then provides that termination can then take place "by and with consent of the Commission after the chief submits written reasons for the termination." The defendants argue that because this language does not contain the word "only," it is just an additional way to discharge a probationary employee. We would only say that to accept the defendants' interpretation of its rules would render it meaningless. If a probationary officer could be terminated either with cause or without, the "with cause" language would have no meaning whatsoever, and we cannot assume that the village would draft meaningless language and insert it into its commission's rules.

The defendants argue that to accept Lewis' interpretation would be tantamount to this court's stripping the rules of the board of police and fire commissioners act (Ill. Rev. Stat. 1985, ch. 24, par. 10-2.1-1 et seq.) of their obvious purpose of providing a probationary period during which the board may terminate an officer's employment without cause. This argument is without merit. The statute provides for guidelines and rules that must be followed. However, a municipality can provide greater protection for its employees if it sees fit to do so by enacting rules and regulations. But once that is done, the municipality, when challenged within the bounds of their own rules, cannot claim the rule to be invalid as providing more protection than that provided by statute. Therefore, we hold that a protectable property interest existed in employment as a probationary police officer in the village of Bradley.

Our next inquiry is whether the board's action in passing over Lewis for appointment as an officer, on the ground that he had not established residency in Bradley at the time the vacancy occurred, was arbitrary and capricious. The scope of review under the arbitrary-and-capricious standard is narrow, and the court is not to substitute its judgment for that of the agency. Nevertheless, an administrative agency is required to examine relevant facts and articulate a sufficient explanation for its action. (Sicinski v. Will County Police Department Merit ...

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