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11/22/94 MARK MUELLER v. BOARD FIRE AND POLICE

November 22, 1994

MARK MUELLER, PLAINTIFF-APPELLANT,
v.
THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF LAKE ZURICH AND ITS MEMBERS, MIKE SKARZYNSKI, MICHAEL CHARNOTA, GENE MCLAUGHLIN; AND MICHAEL R. WENZEL, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 93-MR-67. Honorable Bernard E. Drew, Jr., Judge, Presiding.

Bowman, Doyle, Colwell

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

On May 18, 1993, plaintiff, Mark Mueller, filed an amended complaint for declaratory judgment (count I) and administrative review (count II) to contest defendants' decision to remove his name without proper grounds from the final "Register of Eligibles" for a fire fighter-paramedic position in the Lake Zurich fire department and transferring defendant Michael R. Wenzel from rank No. 2 on the "Final Firefighter/Paramedic List" to rank No. 1 on the final "Register of Eligibles" (Register) for employment purposes. The court granted the motion of defendants, the board of fire and police commissioners of the Village of Lake Zurich (Board) and Wenzel, to dismiss plaintiff's complaint for failure to state a cause of action because of inadequate factual allegations concerning the evaluation process.

Plaintiff timely appeals from the court's order of August 9, 1993, dismissing his amended complaint with prejudice. Plaintiff argues that his amended complaint stated a cause of action to determine the legality or correctness of the Board's decision and the decision was reviewable by the circuit court either by complaint for declaratory relief or for administrative review. Additionally, plaintiff argues that even if the complaint is not properly reviewable under the Administrative Review Law (Review Law) (735 ILCS 5/3-101 et seq. (West 1992)), it is reviewable by common-law writ of certiorari. We reverse and remand for further proceedings.

We briefly recite the essentially undisputed facts found in the pleadings and the limited common-law record before us. Plaintiff alleged that he was listed No. 1 out of 189 individuals on a final fire fighter list posted by the Board which was effective October 14, 1992 through October 14, 1994. Under rules of the Board, all applicants for the position in question would be required to pass nine elements of the entry-level examination process: (1) orientation; (2) preliminary character and background investigation; (3) written test; (4) physical agility test; (5) initial oral examination; (6) detailed background investigation; (7) psychological examination; (8) final oral examination; and (9) medical examination. All tests were pass-fail except for the graded written test and initial oral examination each of which required a 70% passing grade. The failure to achieve a minimum grade in any examination element disqualified an applicant from further participation. The examination of applicants is conducted pursuant to certain provisions of division 2.1 of article 10 of the Municipal Code (Code)(65 ILCS 5/10-2.1-6 et seq. (West 1992)).

According to the Board's rules, an alternative testing procedure provided that, instead of administering all elements of the examination before establishing an eligibility list, the Board could test applicants on only the first five elements and defer testing on the remaining elements until a vacancy existed. When the Board acts to fill a vacancy, the applicants from the initial, conditional list are integrated into the final Register from which appointments are then made--only if those applicants pass the deferred elements of the examination, including the psychological examination.

Plaintiff and the other applicants were initially tested on the first five elements, and the remainder were deferred. According to the complaint, plaintiff was in first place and Wenzel was in second place on the conditional list. Plaintiff reported for the second oral interview on January 6, 1992. He also took a psychological examination. On January 14, 1993, he was notified by the Board that Wenzel would now rank No. 1 on the final Register for employment purposes. It was further alleged that plaintiff had specific prior training and experience as a certified fire fighter and that Wenzel had no prior fire department or training equivalent to plaintiff's. The complaint stated that, on April 6, 1993, the Board's attorney notified plaintiff's attorney that plaintiff had failed the psychological examination for the position but declined to provide any details concerning the failed examination. A rule of the Board provides: "Each applicant shall be notified within a reasonable time of the result of his or her examination."

Plaintiff's complaint concluded that the court should rule that the Board did not have proper grounds for removing him in favor of Wenzel from the No. 1 position on the Register; that the Board should be required under the Review Law (735 ILCS 5/3-106, 3-108(b) (West 1992)) to file a record of the proceedings as its answer; and that the Board's decision to remove plaintiff from consideration was arbitrary, capricious, and contrary to the law and the manifest weight of the evidence.

The basis of the defendants' motion to dismiss was that plaintiff failed to state a cause of action. Plaintiff has argued both here and below that he cannot be expected to plead more specifically because the Board has control of the specific facts concerning the final examination elements. In support of his claim for declaratory relief, plaintiff argued that the Board failed to comply with the spirit and purpose of the Code to ensure that public employment be premised on merit. However, notice pleading is not sufficient in Illinois, and count I is too conclusory to meet the usual fact-pleading requirements of Illinois practice. (See Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426, 58 Ill. Dec. 725, 430 N.E.2d 976.) Even liberally construed, at this stage, the complaint did not contain sufficiently detailed facts regarding an actual or legal controversy for a declaration of rights either under the Code or under the Board's rules. (See Alderman Drugs, Inc. v. Metropolitan Life Insurance Co. (1979), 79 Ill. App. 3d 799, 803, 35 Ill. Dec. 34, 398 N.E.2d 984.) In any case, we need not further consider this issue or the availability of common-law certiorari as a method of review because, after reconsidering prior decisions of this court together with conflicting authority from other districts of the appellate court, we believe that the decision of the Board was subject to judicial review under the Administrative Review Law.

Defendants have maintained that plaintiff was not entitled to judicial review of the Board's decision because of this court's earlier decision in Barrows v. City of North Chicago (2d Dist. 1975), 32 Ill. App. 3d 960, 336 N.E.2d 596. Barrows stated that the only final administrative decisions of the Board to which the Review Law applied were those relating to the removal or discharge of officers or members of fire and police departments; the Review law did not apply to promotions. ( Barrows, 32 Ill. App. 3d at 962, citing Ill. Rev. Stat. 1971, ch. 24, par. 10-2.1-17; accord Foster v. Board of Fire & Police Commissioners (2d Dist. 1980), 81 Ill. App. 3d 48, 36 Ill. Dec. 509, 400 N.E.2d 1089 (location of language adopting Review Law in section 10-2.1-17 of Municipal Code dealing with subjects of removal and discharge of policemen and firemen construed to limit administrative review only to decisions dealing with removal and discharge); see Sullivan v. Board of Fire & Police Commissioners (2d Dist. 1981), 103 Ill. App. 3d 167, 58 Ill. Dec. 604, 430 N.E.2d 636 (following Foster); see also Hauri v. Batzel (1979), 71 Ill. App. 3d 164, 168, 27 Ill. Dec. 445, 389 N.E.2d 257 (dictum).) Barrows correctly noted that the Review Law applies only in instances where the act creating or conferring powers on the agency, by express reference, adopts the provisions of the Review Law. Barrows, 32 Ill. App. 3d at 962, citing Wilkins v. Department of Public Aid (1972), 51 Ill. 2d 88, 280 N.E.2d 706.

The reference to the Review Law is found in the section of the Code entitled "Removal or discharge--Investigation of charges--Retirement--Review under Administrative Review Law." The third paragraph states:

"The provisions of the Administrative Review Law * * * and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the board of fire and police commissioners hereunder. " (Emphasis added.) 65 ILCS 5/10-2.1-17 (West 1992).

Shortly after the Barrows decision, in 1977 the Appellate Court, First District, construed "hereunder" to refer to all of division 2.1 rather than only to section 10-2.1-17 dealing with removal and discharge and found administrative review applicable to all final decisions of the Board, including decisions concerning promotional examinations. ( People ex rel. Smith v. Board of Fire & Police Commissioners (1st Dist. 1977), 51 Ill. App. 3d 221, 9 Ill. Dec. 297, 366 N.E.2d 554.) Foster did not agree with the Smith decision and continued to follow Barrows based on ...


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