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09/21/95 MILTON H. VILLEGAS v. BOARD FIRE AND

September 21, 1995

MILTON H. VILLEGAS, APPELLEE,
v.
THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF DOWNERS GROVE ET AL., APPELLANTS.



The Honorable Justice McMORROW delivered the opinion of the court:

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

In this appeal we are asked to determine whether an ordinance promulgated by the Village of Downers Grove is void on its face or void as applied to plaintiff, Milton H. Villegas, who was discharged for cause from his position as an engineer with the fire department of the Village of Downers Grove. Plaintiff asserted in the circuit court of Du Page County that, inter alia, he was entitled to reinstatement and back pay because he was not afforded an adequate pretermination hearing and, therefore, his due process rights were violated. The circuit court ruled in plaintiff's favor and the appellate court affirmed. (266 Ill. App. 3d 202.) Defendants, who include officials of the fire department, the Village ofDowners Grove, and the board of fire and police commissioners of Downers Grove (board), appealed, contending that plaintiff's due process rights were not violated by the alleged defects in plaintiff's original discharge order because he received a pretermination opportunity to defend himself and, in addition, a prompt and full post-termination de novo hearing by the board. Defendants further argue that because plaintiff's discharge was for cause, he is not entitled to reinstatement with back pay.

We granted the defendants leave to appeal (145 Ill. 2d R. 315), and now reverse the appellate and circuit courts.

BACKGROUND

On August 25, 1992, plaintiff was an engineer employed by the Downers Grove fire department. He was playing basketball at a fire station with three other fire fighters, Jeffrey Vandevoorde, Kevin King, and Jeffrey Oakley, when Oakley injured his ankle. At the time of the injury, plaintiff was the highest ranking person on duty. He and the others decided to falsely report that Oakley twisted his ankle in the weight room when he stepped on a barbell. In later testimony before the board, plaintiff described this decision as "a simple stupid tactical move that we made." The other fire fighters stated that they took this action primarily because they feared that their basketball privileges would be revoked if they told the truth.

Pursuant to the plan, on the day of the incident plaintiff telephoned the captain, who was the highest ranking fire department officer on duty. In that telephone conversation plaintiff attributed the cause of Oakley's injury to the lack of storage racks for the weights and the fact the racks had been cut from the budget. As a result of plaintiff's verbal report, the captain completed an untrue investigation report that mirrored plaintiff's false attribution of the injury to an unsafecondition, viz., the lack of storage racks and the unsafe elimination of funding for such racks.

Plaintiff's fabrication continued in his written report, filed on the day of the incident. Plaintiff's report attributed the cause of the injury to the assistant fire chief's act of "intentionally" leaving storage racks out of the budget. To rectify the unsafe condition, plaintiff recommended "supporting the fitness program by purchasing the holding racks." The other three fire fighters also filed false reports echoing plaintiff's "weight room" version of Oakley's injury.

In September 1991, Chief Wander sent each of the fire fighters involved in the incident a notice of investigation, directing each to submit to him a written report. The record reveals that the reports of plaintiff and Oakley repeated the weight room incident, while Vandevoorde's statement claimed that he did not witness the incident. King's written report related the actual facts and admitted that Oakley's injury occurred during a basketball game. Following receipt of these reports, Chief Wander served on the four men notices to attend separate interrogations regarding the matter.

On November 13, 1991, plaintiff and his counsel and union representative met with Chief Wander for the interrogation. Plaintiff admitted falsifying the report of Oakley's injury. He denied threatening or pressuring the others to adhere to the false story.

After the interrogations, Chief Wander sent plaintiff a detailed written notice of disciplinary charges and the grounds therefore. The notice informed plaintiff that before disciplinary action would be taken, the fire chief would conduct a hearing on January 23, 1992, to afford plaintiff an opportunity to appear in person and defend against the charges. During the hearing with the chief, plaintiff was allowed to explain the reasons and causes for his behavior, but no witnesses were called to testify. The precise scope of the January 23 hearing is not ascertainable from the record filed in this court.

On February 12, 1992, plaintiff was served with written notice of the chief's finding of cause for his discharge, effective on that date. A few days later, plaintiff filed a notice of appeal to the board, in accordance with the provisions of the Downers Grove Municipal Code. On the date of the scheduled hearing before the board, however, plaintiff filed a complaint in the circuit court of Du Page County, seeking to enjoin the board from proceeding and also seeking judicial review of Chief Wander's decision. In his complaint, plaintiff stated that section 17-33 of the Downers Grove Municipal Code "appears to provide that administrative decisions of the *** chief *** can be appealed" to the board and that "any such hearing" held by the board "would be the second adjudicatory hearing on the charges against Plaintiff." Plaintiff alleged that such second hearing was not authorized by statute and that the board was not the proper entity to review the chief's final administrative decision.

The circuit court initially granted plaintiff's motion for temporary restraining order, but subsequently dissolved it on the ground that plaintiff had failed to exhaust his administrative remedies, i.e., the hearing before the board. The court held that although the challenged provisions of the municipal code appeared to be facially constitutional, plaintiff could renew his constitutional challenge in court following the board's administrative hearing on the charges.

Thereafter, the board held a de novo evidentiary hearing on the charges against plaintiff. The charges included the filing of false written reports, neglect of duty, making false statements to a superior officer, making false statements during an interrogation regarding the false reports and failing to show proper respect forsuperior officers. The evidence adduced at the hearing reveals the following facts pertinent to plaintiff's discharge.

Plaintiff admitted his fabrications regarding Oakley's accident but denied attempting to pressure the other fire fighters to adhere to the false version of the incident.

King testified that plaintiff advised him to "stick to the story" or they could lose their jobs. According to King, plaintiff telephoned him to inquire whether King had adhered to the agreed-upon version of the incident and to suggest a meeting to discuss how the men should handle their upcoming interrogations with Chief Wander. King testified that he sought a 90-day leave of absence from work because of the pressure he felt he was under. Ultimately, King was suspended for two weeks, or 10 working days, for his participation in the incident.

Vandevoorde also testified that he felt pressured because he wanted to tell the truth but was concerned about the impact his statement would have on the others who had filed false reports. However, he decided to tell the truth about the incident when he spoke to the chief during his interrogation. For his ...


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