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09/08/95 DAVID BURGESS v. BOARD FIRE AND POLICE

September 8, 1995

DAVID BURGESS, PLAINTIFF-APPELLANT,
v.
BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF EVERGREEN PARK, ILLINOIS, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE RICHARD L. CURRY, JUDGE PRESIDING..

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j., and T. O'brien, J., concur.

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON delivered the opinion of the court:

BACKGROUND

The plaintiff-appellant David Burgess alleged in his two count first amended complaint for declaratory judgment and mandamus that the defendant-appellee Board of Fire and Police Commissioners of the Village of Evergreen Park (hereinafter referred to as the"Board") wrongfully based its decision not to hire him as a full-time Evergreen Park police officer on biased, unfair, and inaccurate testing procedures. The Board moved to dismiss the first amended complaint under sections 2-615 and 2-619 of the Code of Civil Procedure. (735 ILCS 5/2-615, 5/2-619 (West 1992).) The circuit court granted the Board's motion to dismiss and the plaintiff now appeals.

FACTS

The plaintiff alleged in his first amended complaint that he applied for the position of full-time police officer with the Village of Evergreen Park and that, after successfully completing written, oral, and physical testing, and being ranked twelfth on a hiring list, he was further required to participate in an oral psychological examination and in a polygraph examination. The plaintiff completed these examinations and, although he had worked as a part-time Evergreen Park police officer since May 1984, was subsequently notified that the results of both examinations "were not satisfactory" and that his application for the position of full-time police officer therefore would receive no additional consideration.

The complaint further alleged that prior to conducting the above-mentioned psychological examination the psychologist who performed the evaluation stated to him that he "understood that the plaintiff had a personality conflict with [the psychologist's] secretary in scheduling an appointment" and that the psychologist's subsequent "comments about the scheduling problems were phrased in a manner to exhibit bias and prejudice against the plaintiff upsetting [him] and making him nervous."

The plaintiff asserted in his declaratory judgment count, which was essentially identical to his mandamus count, that the bias which the psychologist allegedly displayed and the inherent unreliability of the polygraph rendered the testing process by which the Board rejected his application unfair and irrational, therefore depriving him of a liberty interest guaranteed under the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution. In his prayer for relief he sought a declaration that the psychological and polygraph examinations he received were "null and void," that he should be given another psychological examination, and that the Board should be prohibited from requiring him to take a polygraph examination.

The circuit court granted the Board's motion to dismiss the plaintiff's first amended complaint, ruling that he failed to state a cause of action for either declaratory judgment or mandamus based on a deprivation of any cognizable liberty interest. The court, in response to the plaintiff's request, also specifically found that it hadsubject matter jurisdiction over the plaintiff's suit because the plaintiff was not required to proceed under the Administrative Review Law.

We address at the outset the question of whether the circuit court in fact had subject matter jurisdiction over the plaintiff's suit. The Board argues here, as it did before the circuit court, that the statutory scheme under which it is constituted and authorized to carry out its duties, the Board of Fire and Police Commissioners Division of Article 10 of the Municipal Code of 1961 (65 ILCS 5/10-2.1-1 et seq. (West 1992) (hereinafter referred to as the "Act")), requires that any actions challenging its hiring decisions must be brought pursuant to the Administrative Review Law. (735 ILCS 5/3-101 et seq. (West 1992).) The Board maintains that since the plaintiff sought a declaratory judgment and relief by mandamus, rather than proceeding under the Administrative Review Law, the circuit court lacked subject matter jurisdiction over the plaintiff's action.

The Administrative Review Law provides that it "shall apply to and govern every action to review judicially a final decision of any administrative agency where the Act creating or conferring power on such agency, by express reference, adopts [its] provisions...." (735 ILCS 5/3-102 (West 1992).) Section 10-2.1-17 of the Act, entitled "Removal or discharge--Investigation of charges--Retirement--Review under Administrative Review Law," primarily regulates the rights and procedures to be followed for the removal, discharge, and disciplining of firemen and policemen. One small paragraph pertains to the retirement age of firemen and policemen. The third paragraph of section 10-2.1-17 purports to invoke the Administrative Review Law for appeals from final decisions of boards of fire and police commissioners. That paragraph provides as follows:

"The provisionsof the Administrative Review Law, and all amendments and modifications thereof, 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. The term "administrative decision" is ...


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