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06/10/88 Philip Cappitelli, v. Bruce Rodewald

June 10, 1988

PHILIP CAPPITELLI, PLAINTIFF-APPELLANT

v.

BRUCE RODEWALD, CHIEF OF THE FIRE DEPARTMENT OF THE VILLAGE OF ARLINGTON HEIGHTS, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

525 N.E.2d 1037, 171 Ill. App. 3d 875, 121 Ill. Dec. 730 1988.IL.918

Appeal from the Circuit Court of Cook County; the Hon. Albert S. Green, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This is an appeal by plaintiff Philip Cappitelli, an Arlington Heights fire lieutenant, from an order of the trial court affirming the decision of defendant Board of Fire and Police Commissioners of the Village of Arlington Heights (board). In 1984, the board suspended plaintiff for 120 days without pay because he had refused to take a physical "stress test."

On appeal, plaintiff alleges that the board did not have the power to suspend him for 120 days, the notice of hearing and charges was improper, the punishment was excessive, the board's decision is contrary to the manifest weight of the evidence, and it was error for the trial court to deny plaintiff's motion to amend his complaint.

First, the issue of the board's jurisdiction to suspend a fireman for 120 days must be addressed. Present State law permits a board to discharge a fireman (or police officer) for misconduct or to suspend him for a period "not exceeding 30 days without pay." (Ill. Rev. Stat. 1983, ch. 24, par. 10-2.1-17.) Notwithstanding this express limitation of power, defendants contend that they possess authority to suspend for more than 30 days. This contention is based on an admission in one of plaintiff's pleadings and on the village's home rule power. Under the Illinois Constitution, "a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare." (Ill. Const. 1970, art. VII, § 6(a).) In a number of cases, the Illinois Supreme Court has held that in personnel matters involving municipal employees, a home rule unit may enact an ordinance that conflicts with a previously enacted State statute. See, e.g., Paglini v. Police Board (1975), 61 Ill. 2d 233, 335 N.E.2d 480.

That defendant Village of Arlington Heights (village) had jurisdiction to enact an ordinance that supersedes section 10-2.1-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 10-2.1-17) is indisputable. However, the ordinance enacted by the village does not conflict with the State statute. The relevant ordinance states, in part:

"Board to Make Rules. The Board of Fire and Police Commissioners shall make rules for and appointments to the Fire and Police Departments as is necessary, except insofar as said power may otherwise be reserved to the President and Board of Trustees. Said rule shall also provide for the imposition of discipline upon members of the Fire and Police Departments, including, but not limited to, suspension, demotion, reduction in rank, and discharge. Said disciplinary action shall be in accordance with the statutes of the State of Illinois except as modified by the ordinances of the Village." (Arlington Heights, Ill., Village Code § 6 -- 205(e)(3) (1984).)

Pursuant to this ordinance, the board adopted a rule allowing it to discharge, reduce in rank, or suspend an officer for a period not exceeding 120 days.

Since an administrative agency is a creature of statute, any power claimed by it must find its source within the provisions of the statute by which it is created. (City of Chicago v. Fair Employment Practices Comm'n (1976), 65 Ill. 2d 108, 357 N.E.2d 1154.) Additionally, an administrative agency may be vested with discretionary powers but intelligent standards must be provided to guide the agency in the exercise of that discretion. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 370 N.E.2d 223.) This rule precludes an administrative body from altering or adding to rules and regulations authorized by statute. (Schalz v. McHenry County Sheriff's Department Merit Comm'n (1986), 113 Ill. 2d 198, 497 N.E.2d 731.) Moreover, to the extent that an administrative rule conflicts with a statute, the rule is invalid. Matthews v. Will County Department of Public Aid (1987), 152 Ill. App. 3d 400, 504 N.E.2d 529.

Applying these settled principles to the present case, it is obvious that the board's rule authorizing a 120-day suspension conflicts with the village ordinance which sets as a standard for disciplinary action a requirement that the board act in accordance with State statutes. The relevant State statute limits suspensions to 30 days. (Ill. Rev. Stat. 1983, ch. 24, par. 10-2.1-17.) Since the board's rule authorizing a 120-day suspension is contrary to the statute, and the home rule unit has not authorized the board to adopt disciplinary rules contrary to the statute, the rule is beyond the board's authority.

Defendants assert that the term in the village ordinance, "[said] disciplinary action shall be in accordance with the statutes of the State of Illinois" (Arlington Heights, Ill., Village Code ยง 6 -- 205(e)(3) (1984)) refers only to procedural matters regarding imposition of discipline. However, the plain language of the ordinance does not express any limitations on disciplinary actions except those imposed by State statutes or village ordinances. Moreover, defendants' argument that plaintiff waived the jurisdiction issue by a judicial admission in his pleadings lacks merit. If a statute, by its terms, precludes jurisdiction, the fact that a party consents to jurisdiction does not confer subject matter jurisdiction. (Paulik v. Village of ...


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