Appeal from the Circuit Court of Du Page County. No. 92-CH-0240. Honorable John W. Darrah, Judge, Presiding.
Petition for Leave to Appeal Allowed December 6, 1994.
The opinion of the court was delivered by: Mclaren
JUSTICE McLAREN delivered the opinion of the court:
The defendants, the Board of Fire and Police Commissioners of the Village of Downers Grove (the Board), the Village of Downers Grove (Village), Kurt Bressner, Stanley Greanias, James Haley, Terry Chiganos, and John P. Wander, appeal the trial court's denial of their motion to reconsider an order entered on March 5, 1993, which found unconstitutional section 17-33(b) of the Downers Grove municipal code and ordered the plaintiff, Milton H. Villegas, to be reinstated to his position with the Village fire department with back pay and lost benefits. For the following reasons, we affirm.
The Village of Downers Grove is an Illinois municipal corporation and a home rule unit of local government. (Ill. Const. 1970, art. VII, § 6.) Pursuant to its power as a home rule unit, the Village adopted ordinance 2036 in 1977, which amended various sections of the Downers Grove municipal code to establish home rule procedures governing certain aspects of Village affairs. (Downers Grove, Ill., Municipal Code, §§ 2-69 through 2-73, §§ 17-29 through 17-33 (1990).) Section 17-33 sets forth the procedures to be followed in disciplining personnel under the jurisdiction of the Board, which includes members of the Downers Grove fire department. Section 17-33 conveys the authority to impose discipline to the chief of each department, rather than to the Board. The procedure requires notification of the charges to the employee in writing, provides for a hearing to allow the employee to defend against the charges, and allows the employee to obtain de novo review by the Board in certain instances.
On January 9, 1992, the plaintiff was served with a written notification of violations of departmental rules and regulations pursuant to section 17-33(b)(i) of the municipal code. (Downers Grove, Ill., Municipal Code § 17-33(b)(i) (1990).) The charges listed seven violations, including neglect of duty, filing false written reports, making false statements to a superior officer, making false statements during an interrogation regarding the false reports, and failing to show proper respect for superior officers. The notice of the chargesadvised the plaintiff to appear before Fire Chief John P. Wander on January 23, 1992, to defend against the charges.
The plaintiff met with Chief Wander as requested. No witnesses were sworn and the plaintiff was not afforded the opportunity to confront or cross-examine adverse witnesses. The hearing consisted of a Discussion between counsel and Chief Wander with a statement by the plaintiff. On February 12, 1992, the plaintiff was served with a written notice of finding of cause for disciplinary action, in which Chief Wander ordered the plaintiff discharged and removed from his position as engineer and member of the fire department.
On February 18, 1992, the plaintiff sought review of the chief's discharge order by the Board. A hearing was set for March 10, 1992. However, on March 10, 1992, the plaintiff filed a complaint in the circuit court of Du Page County to enjoin the Board from commencing the hearings and for administrative review of the order of discharge. At the same time, the plaintiff sought a temporary restraining order (TRO) to enjoin the Board from reviewing the fire chief's order. The proceedings of the Board were continued until the trial court ruled on the merits of the plaintiff's complaint.
On March 12, 1992, the trial court issued a TRO. However, the TRO was dissolved on March 18, 1992, pursuant to the trial court's ruling that the plaintiff failed to exhaust his administrative remedies. The trial court's order preserved the plaintiff's right to challenge the validity of the Village ordinance at a later time.
On April 27, 1992, the Board commenced a de novo hearing in which evidence was presented which indicated that while the plaintiff was the ranking person on duty and in charge at one of the Downers Grove fire stations on August 25, 1992, several of the fire fighters, namely, Jeffrey A. Vandevoore, Kevin P. King, Jeffrey S. Oakley, and the plaintiff, were playing basketball when Oakley injured his ankle. The plaintiff decided with Vandevoore, King, and Oakley, to falsely report that the injury occurred when Oakley stepped on a barbell weight on the floor of the weight room which caused his ankle to twist. The fire fighters testified that they decided to falsely report Oakley's injury because they believed their basketball privileges would be revoked if the true cause was revealed.
Shortly after the injury, the plaintiff telephoned Captain Feld at another fire station to report Oakley's injury. The plaintiff informed Captain Feld that Oakley twisted his ankle when he stepped on weights on the floor of the station and that the injury was caused by a lack of weight storage racks which had been cut from the budget. On the same day, the plaintiff prepared and signed an investigation report which falsely reported the cause of Oakley's injury. Oakleyand King also prepared and filed false reports regarding the accident which indicated that Oakley twisted his ankle by stepping on a weight on the floor of the weight room.
On September 25, 1991, the plaintiff, Vandevoore, Oakley and King received a notice from Chief Wander directing them to submit a written report regarding Oakley's injury on August 25, 1991. Again, the plaintiff submitted a false report. Next, the men were served with notices which directed them to attend formal interrogations regarding the injury to Oakley. On November 13, 1992, the plaintiff stated that he did not advise any of the other fire fighters to submit false reports. At the hearing, Vandevoore testified that the plaintiff urged them to adhere to the "weight room story" or they could lose their jobs.
On July 31, 1992, the Board entered an order finding the plaintiff guilty of four of the charges. The Board further found the plaintiff's actions "constituted a substantial shortcoming which renders his continuance in office detrimental to the discipline and efficiency of the Downers Grove Fire Department and constitutes cause for discharge within the meaning of Section 17-33(b)(i) of the Downers Grove Municipal Code." The Board discharged and removed the plaintiff from his position as engineer with the fire department, effective February 12, 1992.
On August 20, 1992, the plaintiff filed an amended complaint against the Board seeking a declaratory judgment that the hearing process provided by the municipal code violated the plaintiff's due process rights. The complaint also sought judicial review of the Board's decision to terminate his employment under the Administrative Review Act. Oral arguments were heard by the trial court, and on ...