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

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION


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 defined as in Section 3-101 of the Code of Civil Procedure." (65 ILCS 5/10-2.1-17.)

Prior to 1994 there was a lack of unanimity among the districts concerning the scope of the applicability of the Administrative Review Law to final decisions of boards of fire and police commissioners constituted under the Act. In Barrows v. City of North Chicago (1975), 32 Ill. App. 3d 960, 336 N.E.2d 596, the Second District appellate court held that the only final decisions of boards of fire and police commissioners constituted under the Act to which the provisions of the Administrative Review Law would apply are those covered in section 10-2.1-17 of the Act, namely only decisions relating to removal or discharge. (32 Ill. App. 3d at 962, 336 N.E.2d at 597.) Subsequent Second District decisions adhered to the holding set forth in Barrows. See Foster v. Board of Fire and Police Commissioners of the Village of Oak Brook (1980), 81 Ill. App. 3d 48, 400 N.E.2d 1089, 36 Ill. Dec. 509; Sullivan v. Board of Fire and Police Commissioners of the Village of Lisle (1981), 103 Ill. App. 3d 167, 430 N.E.2d 636, 58 Ill. Dec. 604.

However, the First District appellate court in People ex rel. Smith v. Board of Fire and Police Commissioners of Maywood (1977), 51 Ill. App. 3d 221, 366 N.E.2d 554, 9 Ill. Dec. 297, reached a different conclusion than did the court in Barrows. In Smith, the court interpreted "hereunder" as used in the administrative review paragraph of section 10-2.1-17 of the Act to "refer[] to the entire [Board of] Fire and Police [Commissioners] Division of the Municipal Code of 1961 ... thereby applying administrative review to all final decisions of [boards of fire and police commissioners]" rather than only those final decisions relating to removal and discharge. (51 Ill. App. 3d at 223, 366 N.E.2d at 556). In support of its conclusion, the court cited Zieler v. Village of Oak Lawn (1974), 23 Ill. App. 3d 752, 320 N.E.2d 86, and People ex rel. Fike v. Slaughter (1961), 31 Ill. App. 2d 175, 175 N.E.2d 585, both of which held that the Administrative Review Act, the predecessor of the Administrative Review Law, was the exclusive means of challenging decisions of boards of fire and police commissioners constituted under the Act.

The court in Smith also cited People ex rel. Goldfarb v. White (1964), 54 Ill. App. 2d 483, 203 N.E.2d 599, in support of its interpretation of the term hereunder. In Goldfarb, the court construed the meaning of the word hereunder within section 16b-2 of the Medical Practice Act. (Ill. Rev. Stat. 1961, ch. 91, par. 16b-2.) The Medical Practice Act, which, in section 16b, generally relates to license suspensions and revocations, further provides in section 16b-2 that the Administrative Review Act would apply to all final agency decisions "hereunder." The court in Goldfarb held that the term hereunder within section 16b-2 referred to all sections of the Medical Practice Act, thereby subjecting all final agency decisions pursuant to that statute to review under the Administrative Review Act:

"... it would be entirely inconsistent to hold that administrative review under section 16b-2 was intended only where revocation and suspension of licenses are involved, and that all other departmental decisions based upon committee decisions be excluded from administrative review. For purposes of uniform and consistent administrative review under the said section, "hereunder" when applied conformably with the other provisions of thestatute, must be read as meaning under the "Act." (54 Ill. App. 2d at 490-91, 203 N.E.2d at 603.)

We note here that the Third District appellate court in Beard v. Board of Fire and Police Commissioners of the City of Washington (1985), 130 Ill. App. 3d 692, 474 N.E.2d 918, 86 Ill. Dec. 4, and the Fifth District appellate court in Schickedanz v. City of O'Fallon (1993), 248 Ill. App. 3d 746, 618 N.E.2d 1289, 188 Ill. Dec. 719, have held, like the First District in Smith, that the Administrative Review Law applies to all final decisions of boards of fire and police commissioners constituted under the Act rather than only to final decisions relating to removal or discharge.

The facts of Schickedanz v. City of O'Fallon are nearly identical to those of this case. There, as here, the applicability of the Administrative Review Law was in question with respect to a decision not to hire. In Schickedanz, the plaintiff applied for the position of patrolman on the City of O'Fallon Police Department. After completing the requisite tests the plaintiff was placed on an eligibility list but was not appointed when a vacancy occurred and was subsequently told that he would not be offered employment as a City of O'Fallon police officer. The plaintiff filed a complaint for mandamus, seeking an order requiring the defendants to appoint him to the position of City of O'Fallon police officer. The circuit court dismissed the plaintiff's mandamus action with prejudice, stating that it lacked subject matter jurisdiction because the Administrative Review Law was the exclusive means of review.

The appellate court in Schickedanz affirmed the dismissal of the plaintiff's mandamus action, holding that the Board decision not to hire him was reviewable only under the Administrative Review Law:

"It is undisputed that the Board notified plaintiff that he would not be hired. We find that this constituted a final administrative decision as it affected the legal rights, duties, and privileges of plaintiff, and there is no indication of any future proceedings before the Board on the issue of plaintiff's hiring. Therefore, the Board's decision not to hire plaintiff was reviewable only by the Administrative Review Law, and the trial court was correct in dismissing plaintiff's complaint for mandamus. (248 Ill. App. 3d at 748, 618 N.E.2d at 1290.)

In 1994, the Second District in the case of Mueller v. Board of Fire and Police Commissioners of the Village of Lake Zurich (1994), 267 Ill. App. 3d 726, 643 N.E.2d 255, 205 Ill. Dec. 304, realigned its position to concur with the First District in Smith and the Fifth District in Schickedanz. In that case, which, like Schickedanz, involved an action by a disappointed municipal civil service applicant, the Second District held that the Administrative Review Law applies generally to final decisions made pursuant to all sections ofthe Act rather than only those final decisions made pursuant to section 10-2.1-17. The court in Mueller embraced the holdings in Smith and Schickedanz and expressly reconsidered and overruled the earlier Second District decisions in Barrows, Foster, and Sullivan, stating that:

"In view of the important statutory objectives of hiring, promoting, and retaining applicants on the basis of ability and merit, we do not believe that the legislature, through mere inadvertence or happenstance, intended to shield from review all other personnel decisions of these boards except for those involving discharge or removal solely because reference to the [Administrative] Review Law occurs in section 10-2.1-17 of the [Act]. The legislature is free to clarify or amend this provision, but has not done so, and the weight of authority in this State now favors a broader interpretation. To adhere to our prior narrow reading of the provision would promote inequitable results and inconsistencies as to the (common-law) remedies available to an aggrieved applicant for employment or promotion and [would] make unavailable the salutary benefits of the [Administrative] Review Law. We prefer a construction which does not promote incongruous results regarding the type of personnel decisions subject to administrative review and one which promotes a readily available, uniform remedy for the citizens of this district." (267 Ill. App. 3d at 732-33, 643 N.E.2d at 261.)

We agree with the foregoing analysis. Pursuant to that analysis, and contrary to the circuit court's conclusion, all final decisions rendered by boards of fire and police commissioners constituted under the Act, including those regarding hiring, are reviewable exclusively under the Administrative Review Law. Given the decision in Mueller, this conclusion now appears to be unanimous among all the appellate districts reporting cases involving this question. Accordingly, since the Board's decision not to hire the plaintiff was reviewable only under the Administrative Review Law, the circuit court lacked subject matter jurisdiction over his action for declaratory judgment and mandamus.

The plaintiff maintains that the application of the Administrative Review Law as the exclusive means of reviewing final decisions rendered by boards of fire and police commissioners is justifiable only where such final decisions relate to those who have already been hired as full-time firemen and full-time policemen rather than to prospective applicants for such full-time positions. In support he points to section 10-2.1-26 of the Act which provides that:

"The provisions of this Division shall apply only to full-time firemen and full-time policemen of a regularly constituted fire orpolice department and not to any other personnel of any kind or description." (65 ILCS 5/10-2.1-26 (West 1992).)

The primary rule of statutory construction is to ascertain and give effect to legislative intent. ( People v. Zaremba (1994), 158 Ill. 2d 36, 40, 630 N.E.2d 797, 799, 196 Ill. Dec. 632; Granite City Division of National Steel Co. v. Illinois Pollution Control Board (1993), 155 Ill. 2d 149, 181, 613 N.E.2d 719, 733, 184 Ill. Dec. 402.) Moreover, the language of a statute must be considered as a whole such that each section is examined in relation to every other section. ( Scadron v. City of Des Plaines (1992), 153 Ill. 2d 164, 185, 606 N.E.2d 1154, 1163, 180 Ill. Dec. 77; Abrahamson v. Illinois Department of Professional Regulation (1992), 153 Ill. 2d 76, 91, 606 N.E.2d 1111, 1118, 180 Ill. Dec. 34.) Where a statute is capable of more than one interpretation it should be given that interpretation which is reasonable and which will not produce absurd, unjust, unreasonable or inconvenient results which the legislature could not have intended. Collins v. Board of Trustees of the Firemen's Annuity & Benefit Fund of Chicago (1993), 155 Ill. 2d 103, 110, 610 N.E.2d 1250, 1253, 183 Ill. Dec. 6; People v. Stanciel (1992), 153 Ill. 2d 218, 233-34, 606 N.E.2d 1201, 1210, 180 Ill. Dec. 124.

We do not find plaintiff's restrictive interpretation of section 10-2.1-26 to be tenable given that other sections of the Act, on their face, apply to applicants and the application process. For example, section 10-2.1-6 sets forth both age requirements for fire and police applicants and general substantive requirements for fire and police examinations; section 10-2.1-8 provides that fire and police applicants who have served in the military shall receive preference in appointment; and section 10-2.1-14 provides for the maintenance of a register of eligible candidates for the position of full-time fireman or full-time policeman. Given the fact that these and other sections of the Act expressly relate to applicants and the application process, plaintiff's restrictive reading of section 10-2.1-26 to exclude applicants for the positions of full-time firemen and full-time policemen from the coverage of the Act would render that provision paradoxical and manifestly incorrect. Thus, we would construe section 10-2.1-26 of the Act to denote not merely those who have already been hired as full-time firemen and full-time policemen but also applicants for those full-time positions as well.

The plaintiff further maintains that our supreme court's decision in Romanik v. Board of Fire and Police Commissioners of East St. Louis (1975), 61 Ill. 2d 422, 338 N.E.2d 397, compels the conclusion that police applicants are not entitled, let alone required, to invoke the Administrative Review Law when challenging a hiring decision of a board of fire and police commissioners. In Romanik the court construed section 10-2.1-17 of the Act, which provides for notice and hearing before discharge, as not being applicable to probationary firemen and policemen. Thus, under Romanik, a probationary fireman or policeman may be fired by the appropriate board of fire or police commissioners without notice of the charges or a hearing. 61 Ill. 2d at 425, 338 N.E.2d at 399.

Romanik, however, does not negate the fact that the discharge of probationary firemen and policemen requires a final board decision sufficient to invoke the review provisions of the Administrative Review Law pursuant to section 10-2.1-17 of the Act. In point of fact, Romanik does not purport to even consider issues of reviewability. Thus, the holding in Romanik is extraneous to the jurisdictional question at issue in this appeal. See Mueller v. Board of Fire and Police Commissioners of the Village of Lake Zurich; Schickedanz v. City of O'Fallon.

For the reasons set forth above, we affirm the circuit court's ultimate action in dismissing the plaintiff's first amended complaint but, contrary to the position of the circuit court, our affirmance is predicated upon the jurisdictional grounds hereinabove discussed. Because of our finding that the circuit court lacked jurisdiction over the subject matter of this action, we need not consider this appeal on its merits.

AFFIRMED.

COUSINS, Jr., P.J., and T. O'BRIEN, J., concur.

19950908

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