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08/04/88 Lawrence Simonis, v. the Countryside Fire

August 4, 1988

LAWRENCE SIMONIS, PLAINTIFF-APPELLANT

v.

THE COUNTRYSIDE FIRE PROTECTION DISTRICT ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

527 N.E.2d 673, 173 Ill. App. 3d 418, 123 Ill. Dec. 210 1988.IL.1213

Appeal from the Circuit Court of Lake County; the Hon. Fred A. Geiger, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

The plaintiff, Lawrence Simonis, sought administrative review of a decision of the Board of Trustees of the Countryside Fire Protection District (Board) which found that he failed to perform his duty and suspended him for five duty days. Plaintiff appeals from an order of the trial court which affirmed the Board's decision. On appeal, plaintiff contends that (1) the trial court did not have the authority to review his complaint under a common law writ of certiorari ; (2) he was denied due process at his disciplinary hearing; (3) his disciplinary hearing was conducted in violation of the Open Meetings Act (Ill. Rev. Stat. 1987, ch. 102, par. 41 et seq.); (4) the Board and fire chief failed to follow the fire department's disciplinary procedures; and (5) the trial court's decision was against the manifest weight of the evidence.

On January 10, 1987, at 5:15 a.m., station two of the Countryside Fire Protection District received a call for an ambulance. The call indicated that a person had suffered a broken leg in a snowmobile accident. After attempting to wake up plaintiff, fire fighters Tim Rick and Ken Arnswald responded to the scene. Plaintiff failed to wake up and respond to the call.

According to the fire district's normal operating procedures, upon receipt of a typical emergency call, two fire fighters are dispatched to the scene while a third fire fighter monitors the radio. The fire fighter who monitors the radio is responsible for recording the ambulance's departure and arrival times and dispatching additional manpower if necessary. When a call is received by one of the fire district's two stations, the other station is also required to monitor the radio until the station which received the call acknowledges that it has taken over monitoring the radio. Once a fire fighter team has been dispatched on a call, other on-call fire fighters receive a telephonic page instructing them to come into the station.

On March 2, 1987, the Board held a formal hearing to determine whether plaintiff failed to perform his duty. Fire fighters Rick and Arnswald testified that they, along with plaintiff, had worked a full duty day which started at 8 a.m. on January 9 and ended at 8 a.m. on January 10. Around midnight, Arnswald and plaintiff went to sleep in the bunk room; Rick went to the bunk room sometime later that morning. At 5:15 a.m., both Rick and Arnswald awoke to a pager tone which came in over the station's radio. Following the tone, there was a verbal message indicating the nature and location of the call. As he was getting dressed, Rick stated that he told plaintiff three times to get out of bed and then turned on the lights. Rick proceeded to get his equipment and place it in the ambulance. Arnswald testified that he called to plaintiff in an above normal tone of voice three times yet plaintiff failed to get up. Rick and Arnswald testified that they left the station and were unable to raise plaintiff on the radio. Neither of them went to Simonis' bed and attempted to shake him from his sleeping condition.

Captain Spiegel testified that on January 10, 1987, at 5:15 a.m., he received a message on his pager calling him into station two. Upon arriving at the station, Spiegel notified another on-call fire fighter that he was there and began shoveling snow. At approximately 5:30 a.m., when he was done shoveling snow, Spiegel entered the bunk room and saw plaintiff getting out of bed. Spiegel asked what had happened, at which point plaintiff repeated the same question to Spiegel. Upon being told that there was a call in progress, plaintiff indicated that he was unaware of the call. Spiegel then instructed plaintiff to get dressed and help shovel snow.

Plaintiff testified that on January 8, 1987, while he was on call, he responded to a pager call which lasted until midnight. During his normal duty shift, plaintiff stated that there were no calls. Plaintiff testified that he did not have any sleeping disorders and was not suffering from any physical ailments. Plaintiff admitted that he did not wake up when the 5:15 a.m. call was received. Plaintiff further stated that he was embarrassed when he learned from Spiegel that there was a call in progress. Plaintiff testified that he had never before slept through a call. Plaintiff had been given numerous citations and awards commending his work as a fire fighter.

The Board found that plaintiff had failed to perform his duty and suspended him for five duty days. On April 8, 1987, pursuant to section 3-101 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3-101), plaintiff filed a complaint in the trial court. After deciding that it had no jurisdiction to consider plaintiff's complaint under section 3-101, the trial court reviewed the complaint as a common law writ of certiorari. The trial court found that the Board's decision was not against the manifest weight of the evidence, and plaintiff appeals from that finding.

On appeal, plaintiff first contends that the trial court improperly reviewed his complaint as a common law writ of certiorari instead of entertaining it under the Administrative Review Act (Ill. Rev. Stat. 1987, ch. 110, par. 3-101 et seq.). We find no merit to plaintiff's contention.

In the relevant part, section 16.01 of "An Act relating to the State Fire Marshall" states:

"Any fire protection district having a fire department of which 3 or more, but not all members, are full time, paid members, may, at the option of the fire protection district board of trustees, elect to come under the provisions of Sections 16.01 to 16.18, inclusive, and shall be subject to the provisions of Section 16.13 relating to removal or discharge of fire department personnel." (Ill. Rev. Stat. 1985, ch. 127 1/2, par. 37.01.)

According to section 16.01, the Board had the option of deciding whether it should adopt section 16.13's procedures for the removal or discharge of fire department personnel. Under section 16.13, the removal or discharge of fire department personnel is subject to the provisions of the ...


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