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03/23/95 JAMES ORLOWSKI v. VILLAGE VILLA PARK BOARD

March 23, 1995

JAMES ORLOWSKI, PLAINTIFF-APPELLEE,
v.
THE VILLAGE OF VILLA PARK BOARD OF FIRE AND POLICE COMMISSIONERS; CHIEF OF THE VILLA PARK POLICE DEPARTMENT, RONALD R. OHLSON, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Du Page County. No. 93-MR-461. Honorable John S. Teschner, Judge, Presiding.

The Honorable Justice Bowman delivered the opinion of the court: Colwell and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

In consolidated case Nos. 2-94-1039 and 2-94-1082, defendants, the Village of Villa Park Board of Fire and Police Commissioners (Board) and the chief of the Villa Park police department, Ronald R. Ohlson (Chief), appeal an order reversing the Board's affirmance of plaintiff James Orlowski's one-day suspension from the Villa Park police department.

The following brief summary of the facts is taken, from the record. Plaintiff is a Villa Park police officer. On February 26, 1993, the Chief issued a written reprimand to plaintiff for plaintiff's alleged failure to properly handcuff a prisoner. At the request of plaintiff, the written reprimand was rescinded and a one-day suspension was issued. By receiving a one-day suspension, as opposed to a reprimand, plaintiff apparently received the right to appeal his suspension to the Board. After an evidentiary hearing, the Board affirmed plaintiff's suspension. Plaintiff then filed the present complaint for administrative review in the circuit court of Du Page County. That court reversed the decision of the Board, holding that the Board improperly shifted the burden of proceeding to plaintiff. Both the Board and the Chief then filed their timely appeals to this court.

On appeal, the Board and Chief collectively have eight principal contentions: (1) plaintiff's failure to name the individual members of the Board in his complaint necessitates dismissal of the complaint; (2) plaintiff was properly required to carry the burden of proof on his appeal to the Board; (3) the one-day suspension was not the functional equivalent of the filing of charges of misconduct against plaintiff; (4) the police department's rule prohibiting conduct unbecoming an officer is constitutionally valid; (5) the Board's affirmance of plaintiff's suspension was not against the manifest weight of the evidence; (6) the Board properly heard evidence of plaintiff's prior uncharged misconduct; (7) plaintiff's conduct demands that his suspension be increased; and (8) the trial court erred in denying the Board's motion to assess costs against plaintiff for preparing and certifying the record of proceedings. Because we agree with the Chief that the complaint for administrative review must be dismissed because of plaintiff's failure to name the individual members of the Board in the complaint, we need not address the other contentions.

The Chief first contends that this court should dismiss plaintiff's appeal of the Board's decision. In support of this contention, the Chief argues that (1) plaintiff did not name the proper parties to the appeal; and (2) the failure to do so mandates dismissal of the appeal. We will address each argument in turn.

The Chief initially argues that plaintiff did not name the proper parties in his complaint for administrative review. In the complaint, plaintiff named the Board and the Chief as defendants. According to the Chief, plaintiff should have also named the individual members of the Board because they were parties of record to the proceedings before the Board. We agree.

Judicial review of administrative decisions is governed by the Administrative Review Law (Review Law) (735 ILCS 5/3-101 et seq. (West 1992)). Section 3-103 of the Review Law requires that an action for administrative review "shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby." (735 ILCS 5/3-103 (West 1992).) Moreover, the summons must be issued on the administrative agency and on all defendants. (735 ILCS 5/3-105 (West 1992).) Relevant to this appeal is section 3-107(a), which defines who shall be made a defendant to an action for review of an administrative decision. At the time the complaint was filed and ruled upon, section 3-107(a) read as follows:

"Except as provided in subsection (b), in any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants." 735 ILCS 5/3-107(a) (West 1992).

In Trettenero v. Police Pension Fund (1994), 268 Ill. App. 3d 58, 205 Ill. Dec. 731, 643 N.E.2d 1338, this court addressed whether individual members of an administrative board were "parties of record" for purposes of naming defendants in a complaint for administrative review. In Trettenero, the plaintiff filed an application to the board of trustees of the police pension fund of Aurora seeking a line-of-duty pension or, alternatively, a nonduty pension. After conducting a hearing, the board granted the plaintiff a nonduty pension, whereupon the plaintiff filed a complaint for administrative review pursuant to the Review Law. The complaint named both the board and the individual trustees of the board as defendants. The trial court dismissed the individual trustees as defendants. Trettenero, 268 Ill. App. 3d at 60-61.

This court reversed, concluding that the individual trustees of the board were parties of record in the administrative proceedings and hence were required to be named in the complaint pursuant to section 107(a) of the Review Law. ( Trettenero, 268 Ill. App. 3d at 62.) In support of its conclusion, this court noted that the report of proceedings from the board's hearing listed each trustee as a party of record and that each trustee signed the written decision adjudicating the plaintiff's claim. Trettenero, 268 Ill. App. 3d at 62.

In this case, the individual members of the Board were "parties of record" in the administrative proceedings below and hence were required to be named as party defendants in plaintiff's complaint for administrative review. Here, as in Trettenero, the report of proceedings from the Board's hearing on plaintiff's appeal from the order of suspension lists each board member as a party of record, and each board member signed the written decision adjudicating plaintiff's case. Applying the plain meaning of section 107(a), we find that the individual board members were parties of record to the administrative proceedings. (See Trettenero, 268 Ill. App. 3d at 62.) Accordingly, plaintiff should have named the individual board members as party defendants in his complaint for administrative review.

Having determined that plaintiff did not name all the proper parties to the complaint, we now determine the consequences of this failure. The Chief argues that plaintiff's failure to name all the necessary parties in this administrative review action divests this court of subject-matter jurisdiction. The Chief urges this court ...


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