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05/08/89 Brian O'malley, v. Board of Fire and Police

May 8, 1989





538 N.E.2d 888, 182 Ill. App. 3d 1019, 131 Ill. Dec. 513 1989.IL.693

Appeal from the Circuit Court of Cook County; the Hon. Sophia Hall, Judge, presiding.


JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.


Brian O'Malley, a commander in the Rolling Meadows police department, was brought before the Board of Fire and Police Commissioners of Rolling Meadows (the Board) on charges of misconduct stemming from several specific incidents that occurred from March to June 1986. The Board found O'Malley guilty and demoted him to the rank of sergeant. For the reasons below, we affirm.

On June 6, 1986, O'Malley was charged by the Board with four specific counts of misconduct. The Board charged that (1) on or about 3:30 a.m. on June 1, 1986, O'Malley received a report of an armed robbery at a hotel and, although in close proximity to the hotel, failed to respond to the call for 15 minutes; (2) on May 16, 1986, O'Malley failed to supervise or back up units responding to an altercation at a local carnival; (3) contrary to department rules, and particularly a memorandum order dated April 11, 1986, O'Malley failed properly to supervise personnel under his command by spending excessive amounts of time in the station rather than assisting and supervising the personnel on patrol; and (4) O'Malley exceeded the time allotted for meals and breaks, during which time he remained in the radio room with a female dispatcher. O'Malley was also charged with, in incidents occurring from March to June 1986, failure to respond to a call to make an arrest at a gambling party; failure to back up police at a fire at a home for the mentally physically disabled; and failure to assist in processing a suspect arrested for possession of drugs. The complainant was Rolling Meadows Police Chief Ralph Evans, whose attorney presented the case against O'Malley before the Board. Evans' attorney was neither the village attorney for Rolling Meadows, nor the village prosecutor, but was retained by the Board to represent Evans, and his service was later ratified by a resolution of the city counsel.

On February 2, 1987, the Board found O'Malley guilty as charged and demoted him to the rank of sergeant. On February 9, 1987, O'Malley filed a petition for rehearing before the Board. On March 10, 1987, O'Malley's petition for rehearing was denied. On March 30, 1987, O'Malley filed a complaint for administrative review in the circuit court, naming the Board and its members as defendants, but omitting Chief Evans.

On April 9, 1987, O'Malley moved to amend his complaint to include Evans as a defendant. On July 1, 1987, O'Malley was granted leave to amend his complaint, and the amended complaint was filed on July 2, 1987. On October 1, 1987, Evans moved to dismiss O'Malley's complaint for failure to comply with provisions of the Administrative Review Act (Ill. Rev. Stat. 1987, ch. 110, par. 3-101 et seq.). Evans' motion was denied, and the trial court affirmed the rulings of the Board. O'Malley appeals the rulings of the Board, and Evans appeals the denial of his motion to dismiss. Because no relief is sought from Chief Evans on this appeal, we do not consider his appeal and address only the issues raised by O'Malley.

O'Malley first argues, without merit, that under Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, the Board had no authority to hold disciplinary hearings until it had exhausted the grievance procedures prescribed by the City of Rolling Meadows Personnel Rules (the Personnel Rules). In O'Malley v. City of Rolling Meadows (1st Dist. 1989), No. 1 -- 88 -- 1396 (unpublished order under Supreme Court Rule 23), which involved the same plaintiff and the same demotion, O'Malley maintained that the Personnel Rules constituted a contract under Duldulao, which the defendants had breached by instituting the Board hearing before the grievance procedures were exhausted. In a Rule 23 (107 Ill. 2d R. 23) order, we affirmed the dismissal of O'Malley's action to recover fees in connection with the breach of contract action, holding that Duldulao was inapplicable. The Personnel Rules stated that the rules of the Fire and Police Commission superseded the Personnel Rules in the event of conflict, which we held served as a disclaimer. We also held that the Personnel Rules did not constitute an offer sufficient to establish a contract. Thus the requirements of Duldulao were not met. That reasoning applies to the instant case as well.

No language in the grievance procedures of the Personnel Rules even intimates limitation, or control of, or jurisdictional prerequisite to, Board hearings. The rules of the Board of the Fire and Police Commission, promulgated under the authority of Rolling Meadows ordinances and State statute, grant the Board authority to conduct hearings and supersede the Personnel Rules where the two conflict. Even assuming applicability of the Personnel Rules, the proceeding against O'Malley would have been governed not by the grievance procedures, but by the disciplinary procedures, which are wholly separate and independent of the grievance procedures. Finally, Duldulao is inapplicable because it addressed a modification of the terms of traditional "at-will" employment; O'Malley's hiring and appointment were governed by statute. The Board had the authority to institute proceedings against O'Malley, regardless of the grievance procedures of the Personnel Rules.

O'Malley next argues that Chief Evans' attorney, Mr. Blomquist, had no authority to present the case against O'Malley and that the Board proceedings were therefore void. O'Malley contends that section 10-2.1-25 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 10-2.1-25) required the village prosecutor, and not Mr. Blomquist, to present the case against him. The actions of the Board, however, in assigning Mr. Blomquist to present the case against O'Malley met both the letter and the intent of section 10-2.1-25.

Section 10-2.1-25 states in relevant part: "The municipal attorney, in the event there is a separate attorney designated as a prosecutor for such municipality, shall represent the board unless the board is authorized by the municipality to employ its own attorney, and such attorney shall handle prosecutions before the board . . .." (Ill. Rev. Stat. 1987, ch. 24, par. 10-2.1-25.) The remainder of the section addresses the situation where a municipality employs a single attorney for the functions of municipal attorney and prosecutor. Rolling Meadows employs a municipal attorney and separate prosecutor. The plain language of section 10-2.1-25 indicates that where the functions of municipal attorney and village prosecutor are performed by different attorneys, the municipal attorney shall represent the Board. The statute seeks to avoid real or apparent conflicts of interest, where the attorney who represents the interests of the Board, and advises the Board on the law, is the same person who presents the case against the respondent; the statute seeks to prevent having the Judge be the prosecutor. See Weisenritter v. Board of Fire & Police Comm'n (1979), 67 Ill. App. 3d 799, 385 N.E.2d 336, appeal denied (1979), 75 Ill. 2d 595; Mank v. Board of Fire & Police Comm'n (1972), 7 Ill. App. 3d 478, 288 N.E.2d 49. See also Finin v. Board of Fire & Police Commissioners (1981), 98 Ill. App. 3d 879, 424 N.E.2d 976, appeal denied (1981), 85 Ill. 2d 577.

Here, the Board was represented by the municipal attorney, and the case against O'Malley was presented by a separate attorney. Although Mr. Blomquist was not the village prosecutor, he had served in the past as a prosecutor on behalf of the village and the City Council later ratified his employment for purposes of O'Malley's hearing. The Board complied with section 10 -- 2.1 -- 25 by being ...

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