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08/29/89 J. Randolph Bethune, v. C. Tom Larson Et Al.

August 29, 1989

J. RANDOLPH BETHUNE, PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

C. TOM LARSON ET AL., DEFENDANTS-APPELLANTS AND CROSS-APPELLEES



Before the Board next met, Larson fired plaintiff. Larson then informed the Board of the discharge. The Board held a hearing, reviewed Larson's decision and approved plaintiff's discharge.

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

544 N.E.2d 49, 188 Ill. App. 3d 163, 135 Ill. Dec. 692 1989.IL.1324

Appeal from the Circuit Court of Montgomery County; the Hon. Joseph L. Fribley and the Hon. David W. Slater, Judges, presiding.

APPELLATE Judges:

JUSTICE HOWERTON delivered the opinion of the court. CHAPMAN and RARICK, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOWERTON

Plaintiff, Bethune, was employed for 11 years as a counselor by the Montgomery County Health Department. Because of a personality conflict he had with another employee, the two were put on six months' probation on October 10, 1984.

In March 1985, the chairman of the Montgomery County Board of Health (hereinafter referred to as the Board) and Larson, administrator of the Montgomery County health Department, met with the Montgomery County State's Attorney. The three of them concluded that Larson had the power to fire plaintiff. This meeting was held without direction of the Board.

Plaintiff then sought administrative review of the Board's action pursuant to the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.), claiming that Larson lacked authority to discharge him, and also claiming that the Board had not complied with the provisions of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1985, ch. 127, par. 1001 et seq.).

The circuit court granted plaintiff summary judgment, finding that Larson had no statutory authority to discharge plaintiff. The circuit court found further that although the manifest weight of the evidence supported the discharge, nevertheless, the Board's decision to discharge the plaintiff constituted a review of Larson's act, rather than an independent determination on the Board's part. Therefore, because Larson lacked authority, his act discharging plaintiff was void, and necessarily, then, the Board's act "affirming" the discharge was a "legally erroneous act."

The court remanded the case to the Board to take appropriate action and both sides appealed.

On appeal, defendants argue that the circuit court erred in finding that Larson lacked authority to discharge plaintiff. Defendants further argue that the Board's review and affirmation of the discharge amounted to a ratification and was not a legally erroneous act as found by the circuit court.

We agree with the circuit court that Larson did not have the authority to terminate plaintiff's employment. We further find, however, that the Board properly ratified Larson's decision to discharge plaintiff.

In finding Larson lacked authority to discharge plaintiff, and therefore, the discharge void, the circuit court heavily relied on Bessler v. Board of Education of Chartered School District No. 150 (1973), 11 Ill. App. 3d 210, 296 N.E.2d 89. We find Bessler clearly distinguishable, however.

In Bessler, plaintiff contended that the school board could not delegate authority to hire or fire a teacher. The appellate court agreed, and said that the "people have chosen the members of the Board who are to exercise these discretionary powers and the people have a right to have such powers exercised only by those in whom they have placed their confidence." 11 Ill. App. 3d at 213.

In contrast to Bessler, wherein the school board was elected, here the County Board of Health has not been elected, but has been appointed by the chairman of the County Board of Commissioners. (See Ill. Rev. Stat. 1985, ch. 111 1/2, par. 20c12.) Therefore, the fundamental impediment to the delegation of authority that was present in Bessler is not present here. Here, the people did not choose the Board of health, did not vest the Board with discretionary powers, and therefore, can have no expectation that ...


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