Statutory and Constitutional Framework
It is well-settled that a state may confer on its employees a degree of job security so great that the job becomes a form of "property" within the meaning of the Sue Process Clause of the Fourteenth Amendment ( Board of Regents v. Roth, 408 U.S. 564, 576-77, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Hohmeier v. Leyden Community High Schools Dist. 212, 954 F.2d 461, 463-65 (7th Cir. 1992). When a job becomes "property" the state may not take it away without notice and a hearing--though "this procedure need not be elaborate and can be satisfied with less than a full evidentiary hearing" ( Smith v. Town of Eaton, 910 F.2d 1469, 1472 (7th Cir. 1990), citing Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 547 (1985)). Failure to provide due process is actionable under Section 1983, the all-purpose statutory vehicle for compensating the victims of constitutional torts.
Section 5-156 provides in relevant part:
A disabled policeman who receives duty or ordinary disability benefit shall be examined at least once a year by one or more physicians appointed by the board. When the disability ceases, the board shall discontinue payment of the benefit, and the policeman shall be returned to active service.
Buttitta claims that the final sentence of Section 5-156 confers a property interest in reinstatement upon any officer whom the Board finds no longer disabled. He says that the CPD may challenge the Board's conclusion that an officer is not disabled via judicial or administrative review, but not by internal fiat.
But defendants do not read "returned to active service" as requiring automatic reinstatement to active duty. CPD General Order 90-5 requires that any officer who seeks to return to duty after more than 30 days' inactivity must submit to a physical and/or psychological examination by the CPD's Medical Services Section (D. 12(n) P 13; D. Ex. B). Pursuant to that policy the CPD will not reinstate an officer unless he or she is "able to perform unrestricted police duties" (B. Ex. I).
Defendants followed that policy in Buttitta's case. CPD officials did not seek judicial review of the Board's determinations, nor did they offer Buttitta a hearing before declining to reinstate him. Instead they simply referred Buttitta back to the Board for continued disability payments.
Construction of the Statute
In any due process case where the deprivation of property is alleged, the threshold question is whether a property interest actually exists. In that respect Buttitta's is a case of first impression. No reported decisions of any court have considered whether Section 5-156 creates the property interest that is claimed here.
As a general rule, "property interests exist when an employer's discretion is clearly limited so that the employee cannot be denied employment unless specific conditions are met" ( Colburn v. Trustees of Indiana University, No. 91-2866, 973 F.2d 581, 1992 U.S. App. LEXIS 20195, at *27 (7th Cir. Aug. 27, 1992)). Paragraph 5-156 mandates a "return to active service" once the Board determines that an officer's original disability has ceased. Thus the discretion of the CPD to refuse reinstatement to an officer referred back to it by the Board is "clearly limited"--but how much and in what respects?
Answering that question calls for a fresh look at the final sentence of Section 5-156:
When the disability ceases, the board shall discontinue payment of the benefit, and the policeman shall be returned to active service.
Buttitta reads the phrase "returned to active service" to require actual reinstatement to the CPD, carrying with it a return to full salary, benefits and seniority accrual (if not an actual return to police duty). After reinstatement, he concedes, the CPD may return an officer to disability status (B. R. Mem. 3).
Defendants instead interpret a "return to active service" by the Board as a starting point for the CPD's internal review. At that time the CPD medical staff may determine that the officer remains unfit for duty--at least if that determination is based on a new or different disability not evaluated by the Board.
Defendants assert the right simply to return the officer to the Board's jurisdiction for the continuance of disability payments.
What is really in dispute here?
If the argument is over who decides when an officer is ready for actual policing duties, there can be no doubt that the last word must remain with the CPD. Any construction of the term "returned to active service" that places such decision-making power with the Board would defy common sense. For the CPD--as the agency directly responsible for guaranteeing the public safety--must have the authority to decide whether an officer is physically able "to serve and protect" Chicago's citizenry.
Section 5-156 empowers the Board to decide only whether "the disability"--the medical ground for an officer's original placement on the disability rolls--has ceased to exist. Nothing in the language or logic of the statute empowers the Board to make a general finding of fitness for actual police duty. Therefore the phrase "returned to active service" cannot be construed as a mandate to restore an officer automatically to full active duty or to the salary, benefits and seniority that normally accompany full active duty.
If the argument is rather over what formalities the CPD must follow once the Board certifies that an officer's disability has ceased, then Buttitta's case suffers from a different infirmity: He has failed to prove any injury. B. R. Mem. 3 states:
Defendants are partially correct when they assert that they can have an officer medically examined and that the Police Department can assert that an officer has a new disability. However, that does not mean that the defendants can veto the Board's decision. It simply means that once an officer is reinstated pursuant to the Board's statutory determination, the officer may be treated like any other active officer.
But that statement begs the question of how "any other active officer" would be treated.
According to defendants' undisputed evidence, any officer returning to duty after more than 30 days' inactivity must go through the same procedure that Buttitta went through. First the CPD Medical Section determines the officer's fitness for active duty. Then the officer is placed, as appropriate, on active duty or on the disability rolls.
Let it be assumed arguendo that Section 5-156 requires full reinstatement before the CPD can return an officer to disability status. It is still undisputed that the CPD believed Buttitta to be disabled--for a reason wholly different from the one on which the Board was opining--on both occasions when the Board returned him for "active service." Thus the CPD would immediately have placed him on disability on both occasions, and the question becomes what form of benefits Buttitta would have received.
Buttitta did not incur his liver ailment in the line of duty. Hence the CPD could not have awarded him 12 months of full-salary benefits under Cole § 2-84-480, nor the 75% of salary awarded to officers on duty disability under Section 5-154. Instead he could only have been placed on ordinary disability, which pays 50% of salary.
That is exactly what he did get and what he is getting today.
For Buttitta, then, reinstatement would have been nothing but a fleeting way station en route to the very disability status that he now occupies. No additional salary, benefits or seniority could have flowed to him from a purely technical act of reinstatement immediately followed by a new declaration of disability. Therefore he has not been "deprived" of anything within the meaning of the Due Process Clause.
Granted, Buttitta has not attempted to establish the full scope of his damages on the present motion. He only seeks to prove liability. But to show liability it is still necessary to show some deprivation of property. Buttitta has shown none.
In short, this Court agrees with defendants' interpretation of the statute. Section 5-156 does not mandate that a once-disabled police officer must automatically be returned to full-fledged active status once the Board finds that the original disability has ceased, so long as the CPD determines that the officer suffers from a different disability. Nor does the statute dictate that an officer must be reinstated to full salary and benefits pending the outcome of the CPD's own medical review. Finally, even if the statute does mandate such a provisional reinstatement, in Buttitta's case there is not even a hint that the reinstatement would have provided any tangible benefit to him. Buttitta has gotten his due.
There is no genuine issue of material fact, and defendants are entitled to a judgment as a matter of law. Judgment is granted for all defendants on all counts. This action is dismissed.
Milton I. Shadur
Senior United States District Judge
Date: September 30, 1992