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06/06/88 William J. Sullivan, v. the Board of Fire and

June 6, 1988

WILLIAM J. SULLIVAN, PLAINTIFF-APPELLEE

v.

THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF BENSENVILLE ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

524 N.E.2d 733, 170 Ill. App. 3d 255, 120 Ill. Dec. 703 1988.IL.881

Appeal from the Circuit Court of Du Page County; the Hon. S. Bruce Scidmore, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. INGLIS and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant, the Board of Fire and Police Commissioners of the Village of Bensenville (the Board), appeals from the order of the circuit court of Du Page County reversing the Board's decision to discharge plaintiff, William J. Sullivan, and reinstating him as a police officer with back pay. The court found that the Board acted without jurisdiction where it commenced a hearing on charges against plaintiff more than 30 days after the date that the charges were filed and the record did not disclose the reason for certain continuances.

The issues raised on appeal concern whether the hearing of the charges against defendant was properly continued beyond the statutory 30-day period for commencement of the hearing and whether the hearing was eventually held within a time when the Board had jurisdiction to proceed.

The relevant facts are as follows. On October 8, 1986, the Village of Bensenville police chief, Michael J. Toomey, filed charges against plaintiff seeking his dismissal for withholding information and filing a false employment application. The charges stemmed from plaintiff's failure to admit that he had been fined over $50 in a traffic matter and that he was under investigation by his former employer, the Hoffman Estates police department, for issuing a citation to a woman and appearing at her home and sexually harassing her. On October 10, 1986, plaintiff was served with the charges and a notice of hearing scheduled for October 27, 1986.

At the October 27, 1986, hearing, plaintiff's attorney requested the police chief's response to a previous discovery request made by plaintiff. All documents had been provided except for certain documents which were apparently not possessed by the police chief but were in the possession of the Board. Plaintiff requested a subpoena from the Board to obtain those documents in its possession. Following a Discussion on whether a subpoena for the documents was proper, plaintiff moved for a continuance so that he would have "a little more time to prepare our defense." The parties then agreed to argue the merits of the request for the documents from the Board and to obtain the ruling at the new date set for the hearing. The hearing was continued until November 11, 1986.

On November 11, 1986, the Board denied plaintiff's request for a subpoena and production of employment applications. Plaintiff then filed a motion to strike certain paragraphs of the charges and a motion for a bill of particulars. Chief Toomey requested until November 18, 1986, to respond to these motions, and plaintiff stated that he had no objection. The Board asked plaintiff's counsel if it could proceed to the hearing on that date as well. Plaintiff's counsel responded, however, that "it might be pushing it" to have the hearing that night because the Board's decision might change plaintiff's strategy. Thereafter, the parties agreed to November 17, 1986, for a hearing on plaintiff's motions and November 24, 1986, for the hearing on the charges.

On November 17, 1986, the Board ordered certain charges stricken and adjourned until November 24, 1986, for a hearing on the remaining charges. On November 24, 1986, the Board allowed an amendment to restate the dismissed charges and, upon agreement of plaintiff, postponed the hearing until December 8, 1986. Chief Toomey expressed his concern regarding obtaining witnesses on December 8 or December 9, 1986.

The events between November 24, 1986, and January 14, 1987, are not documented in the record. According to plaintiff, however, the Board rescheduled the December 8, 1986, hearing for December 15, 1986, and, without explanation, cancelled and rescheduled for January 14, 1987.

The hearing commenced on January 14, 1987, and the witnesses testified. After the testimony, plaintiff's counsel moved to dismiss the petition for lack of jurisdiction because the hearing did not commence within 30 days of the filing of the charges. The Board found that, because plaintiff asked for the first continuance, never objected to further continuances, and acquiesced, it retained jurisdiction to hear the matter. After the ruling, plaintiff requested three weeks to prepare a response and to subpoena records so that he could impeach the testimony of a witness and suggested that the hearing continue on February 17, 1987. The chairman set the hearing for February 17, 1987. Following additional evidence on that date, the Board discharged plaintiff from employment with the Village of Bensenville police department.

Plaintiff filed a complaint for administrative review contending that the Board lacked jurisdiction to render its decision, that the written decision did not contain sufficient findings of fact, and that the decision was contrary to the manifest weight of the evidence. The trial court found that, on January 14, 1987, the Board lacked jurisdiction to render a decision because it failed to conduct a hearing within 30 days as required under section 10-2.1-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 10-2.1-17). The trial court further indicated that, while the Board's decision to discharge was not contrary to the manifest weight of the evidence, due to the lack of explanation for the continuances between November 24, 1986, and January 14, 1987, the Board lost jurisdiction to render a decision. The trial court reversed the Board's decision to discharge plaintiff and ordered that he ...


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