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01/26/95 MARK KOTTE AND TOWN NORMAL POLICE

January 26, 1995

MARK KOTTE AND TOWN OF NORMAL POLICE BENEVOLENT AND PROTECTIVE ASSOCIATION UNIT NUMBER 22 (PBPA), PLAINTIFFS-APPELLANTS,
v.
NORMAL BOARD OF FIRE AND POLICE COMMISSIONERS, DEFENDANT-APPELLEE.



Appeal from Circuit Court of McLean County. No. 92MR154. Honorable William T. Caisley Judge Presiding.

Released for Publication January 26, 1995. As Corrected March 31, 1995.

Honorable Robert W. Cook, J., Honorable James A Knecht, P.j., Honorable Robert J. Steigmann, J., Concurring

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

In November 1992, plaintiffs, Mark Kotte, a sergeant with the Normal police department, and the Town of Normal Police Benevolent and Protective Association Unit No. 22 (PBPA), the collective-bargaining agent for all Normal police officers below the rank of lieutenant, brought this declaratory judgment action, alleging the rules and regulations of the Normal Board of Fire and Police Commissioners (Board) regarding temporary appointments and promotions violated division 2.1 of article 10 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1991, ch. 24, pars. 10-2.1-1 through 10-2.1-30). Division 2.1 of article 10 of the Code governs the operation of boards of fire and police commissioners for municipalities without civil service. Plaintiffs sought a declaration that the rules, which were enacted pursuant to a Normal ordinance, were invalid and the vacatur of any temporary appointments made under the rules. On cross-motions for summary judgment, the circuit court granted summary judgment for defendant and denied summary judgment for plaintiffs on March 22, 1993. Plaintiffs appeal. We affirm.

Section 10-2.1-16 of the Code states the board of fire and police commissioners has sole authority to make temporary appointments to prevent the stoppage of public business, meet extraordinary exigencies, or prevent material impairment of the police department. Those appointments are never to exceed 60 days. (Ill. Rev. Stat. 1991, ch. 24, par. 10-2.1-16.) Section 10-2.1-4 of the Code further provides "all appointments *** other than that of the lowest rank *** shall be from the rank next below that to which the appointment is made except as otherwise provided in this Section." Ill. Rev. Stat. 1991, ch. 24, par. 10-2.1-4.

The Town of Normal (Normal), having a population greater than 25,000, is a home-rule unit under article VII, section 6, of the Illinois Constitution. (Ill. Const. 1970, art. VII, § 6.) Pursuant to its powers to regulate for the protection of the public health, safety, morals, and welfare (see Ill. Const. 1970, art. VII, § 6(a)), Normal passed an ordinance that allowed the Board to enact rules modifying the Code's provisions. Specifically, the ordinance provided:

"The Board may promulgate rules authorizing the Chief of the department in which any temporary vacancy exists to name a person to the rank in which the temporary vacancy exists to fill that vacancy. The Board by rule may provide for temporary appointments exceeding sixty (60) days *** twice in any calendar year. It is the intent of this Section to modify Section 10-2.1-16 of the Illinois Municipal Code." (Emphasis added.) Town of Normal, Ill., Ordinance 3371, ch. 10, div. 9, § 10.9-4 (February 4, 1985).

Pursuant to this ordinance, the Board enacted the following rules and regulations:

"The Chief of the Department in which any temporary vacancy exists is hereby authorized to name a person to the rank in which the temporary vacancy exists to fill that vacancy as follows:

A. The Chief of the Police is authorized to appoint any person to the rank in which any temporary vacancy exists. Such person shall serve *** at the discretion of the Chief of Police." (Town of Normal, Ill., Rule 5.1, § 1(A) (1992).)

The rules also allowed temporary appointments to exceed 60 days in length, provided the Board must confirm all temporary appointments expected to exceed 60 days. Town of Normal, Ill., Rule 5.1, § 2 (1992).

Pursuant to this authority, Normal police chief James Taylor temporarily appointed Frank Zayas, who held the rank of patrolman, to the rank of sergeant in July 1991. Taylor stated by affidavit that the police department chain of command included one chief, two captains, four lieutenants, and seven sergeants. The PBPA protested because there were no vacancies in the rank of sergeant when Zayas was appointed.

On December 1, 1991, Taylor temporarily appointed Zayas to the rank of lieutenant to fill an existing vacancy. On January 22, 1992, Taylor requested and on March 11, 1992, received approval from the Board of Zayas' temporary appointment for a period exceeding 60 days. Taylor stated in his December 1992 affidavit that at the time of Zayas' appointment, there were two lieutenant vacancies and one sergeant vacancy due to several retirements within the command staff. He stated Zayas' temporary appointment was necessary in his judgment to preclude a possible stoppage of public business or material impairment in the orderly and ...


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