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06/12/87 Timothy Sheehan, v. the Board of Fire and

June 12, 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.811

Date Reported: Original Opinion of May 1, 1987 at 158 Ill. App. 3d 275.

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

Plaintiff has filed a lengthy petition for rehearing in which he alleges that our opinion is flawed by numerous inaccuracies and misstatements of fact. This supplemental opinion is our response to those allegations.

The Amendment to the Charges

We stated in our opinion that the second amended statement of charges filed on February 26, 1985, did not add any new charges but merely made minor changes in the amended statement of charges previously filed on February 2, 1985. Although plaintiff questions the accuracy of this statement, we note that his argument is based on a copy of the amended statement of charges from which one page (page 9) is missing.

Page 9, which was included in volume III of the record on appeal, contains the eight paragraphs which plaintiff erroneously claims were added in the second amended statement of charges. (See Appendix "A attached.) Those paragraphs specified the departmental rules and general order plaintiff allegedly violated. The second amended statement of charges did not allege any additional charges of misconduct. This is evident not only from a comparison of the two sets of charges, but also from an examination of the motion to amend the amended statement of charges and the argument thereon.

It is immaterial that the board may have set February 20, 1985, as the last date on which to file amended charges against plaintiff. No new charges were filed.16

Plaintiff also persists in arguing that he was compelled to proceed with the evidentiary hearing only a few minutes after he had received the second amended statement of charges. As we stated in our opinion, however, plaintiff's attorney admitted on February 26, 1985, that he had been served wih a copy of the motion to amend the amended statement of charges on February 22, 1985. (C. 172, C. 175.) Except for two typographical errors in the numerical designation for the departmental rule requiring obedience to laws and regulations, which were corrected on February 26, 1985, the second amended statement of charges merely incorporated the changes proposed in the motion to amend which plaintiff's attorney received four days earlier. Those changes, as we said in our opinion, were minor.

Moreover, contrary to the repeated assertions in his petition for rehearing, plaintiff's attorney did decline the Board's offer of a continuance. C. 176-78, C. 190-92.

"Mr. McGuire [counsel for the board]: Now, Mr. Moss, do you wish a continuance of this matter?

Mr. Moss: Only if my client will be reinstated in the meantime." C. 177.

The board denied counsel's motion to reinstate plaintiff on active duty or to suspend him with pay and granted Commissioner Connolly's motion to continue plaintiff's suspension without pay. (C. 191.) Counsel for the board then inquired:

"Now, Mr. Moss, the question the Board would like you to address is do you wish a continuance of this matter?

Mr. Moss: No, I do not.

Mr. McGuire: Are you ready to proceed then?

Mr. Moss: I have a couple of preliminary motions and then ...


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