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05/01/87 Timothy Sheehan, v. the Board of Fire and

May 1, 1987

TIMOTHY SHEEHAN, PLAINTIFF-APPELLEE

v.

THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF DES PLAINES ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

509 N.E.2d 467, 158 Ill. App. 3d 275, 108 Ill. Dec. 771 1987.IL.573

Appeal from the Circuit Court of Cook County; the Hon. Joseph Wosik, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SULLIVAN delivered the opinion of the court. LORENZ and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

Defendants appeal from the order of the circuit court reversing the board's order discharging plaintiff from his employment as a patrolman with the city police department. They contend that the court erred in reversing the board's decision. We agree.

After an extensive evidentiary hearing, the board found that on 12 separate occasions plaintiff falsely represented that he was working for two different employers at two different places during the same period of time and that on 10 of these occasions, plaintiff was on two payrolls for the same period of time and was being paid on the basis of those two payrolls. *fn1 The evidence in support of those findings is discussed below.

The board determined that by this conduct, plaintiff committed the criminal offenses of theft and attempted theft, violated departmental rules requiring compliance with laws and regulations and forbidding unbecoming conduct, and, in one instance, disobeyed a general departmental order by leaving his assigned post without permission. The board decided that plaintiff's activities constituted a substantial shortcoming which rendered his continuance in employment as a patrolman detrimental to the discipline and efficiency of the service and good cause for no longer being employed as a member of the police department. Accordingly, the board ordered plaintiff's employment terminated immediately.

On administrative review, the circuit court reversed. The court found that the board's decision was unconstitutional and illegal, that it violated due process, and that it was against the manifest weight of the evidence. In our judgment, the record does not support these findings and although not all of the court's criticisms of the proceedings require individual comment, we shall address the principal ones.

The Amendment to the Charges

A 10-count statement of charges was filed with the board on January 25, 1985. On February 2 an amended statement of charges, adding five counts, was filed. On February 26, the date scheduled for the commencement of the evidentiary hearing, the chief of police moved to file a second amended statement of charges. The proposed amendment did not add any new charges but merely made minor changes in the charges already on file. *fn2 There was nothing improper in the board's decision to permit the second amended statement of charges to be filed and plaintiff failed to demonstrate any prejudice because of the amendment. See Giampa v. Civil Service Com. (1980), 89 Ill. App. 3d 606, 611, 411 N.E.2d 1110.

The circuit court's finding that plaintiff was forced to proceed with the evidentiary hearing only moments after receiving the amended charges is contradicted by the record. Plaintiff's attorney acknowledged that he had received notice of the proposed changes four days earlier and expressly declined the board's offer of a continuance to prepare a defense to the second amended statement of charges because of the board's decision to continue plaintiff's suspension without pay during the pendency of the hearing.

The Board's Authority to Suspend Plaintiff Without Pay

The court stated its belief that Thomas McGuire, counsel for the board, improperly advised the board that it had the legal authority to suspend plaintiff without pay for several successive 30-day periods while the administrative hearing was pending. *fn3 We note, however, that in McCoy v. Kamradt (1985), 136 Ill. App. 3d 551, 483 N.E.2d 544, the court construed section 10-2.1-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 10-2.1-17), to permit a board of fire and police commissioners to suspend an employee without pay for more than 30 days during the pendency of a hearing. (McCoy v. Kamradt (1985), 136 Ill. App. 3d 551, 559-60. See also People ex rel. Cotter v. Conlisk (1974), 17 Ill. App. 3d 346, 347-48, 308 N.E.2d 1.) That case is dispositive of plaintiff's argument that the board lacked authority to suspend him without pay for more than 30 days prior to its final decision.

The 1935 Rules

The circuit court found that the rules and regulations under which the board operated (first adopted in 1935) were deficient because they did not specify the manner in which the administrative hearing would be conducted. We note, however, that one of them, Rule 39, requires all charges to be set forth in writing, detailing the nature and character of the offense, and gives the accused the right to defend himself. Although the rules are otherwise silent regarding the procedure to be followed at a disciplinary hearing, the failure to adopt any rules governing dismissal proceedings does not constitute cause for reversal, unless prejudice is demonstrated. (Westby v. Board of Fire & Police Commissioners (1977), 48 Ill. App. 3d 388, 391-92, 362 N.E.2d 1098.) Plaintiff did not show how he was prejudiced by the board's failure to adopt more comprehensive rules.

On February 2, 1985, more than three weeks before the evidentiary hearing began, the board, acting through its counsel, advised plaintiff's attorney that the hearing would be conducted in accordance with section 10-2.1-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 10-2.1-17), and the cases interpreting that provision. On February 13 he acknowledged receipt of the board's rules and regulations and on February 26 he protested that those rules failed to specify the manner in which the administrative hearing would be conducted. Prior to that date, he had served the board with a motion asking that it inform him "of the procedural and evidentiary rules to be followed during the course of the hearing."

In a letter dated February 22, 1985, and sent to counsel for both parties, the board's attorney reiterated what he had said on February 2 and explained in greater detail the procedural and evidentiary rules that would be followed. Although plaintiff's attorney denied that he had received this letter, when the contents thereof were explained to him on February 26 he voiced no dissatisfaction with the guidelines McGuire had prepared for the hearing.

In our judgment, plaintiff was not prejudiced by the board's failure to adopt comprehensive rules governing the dismissal proceedings. He received the fair and ...


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