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09/05/96 THOMAS SPRAGUE v. CITY MARION

September 5, 1996

THOMAS SPRAGUE, PLAINTIFF-APPELLEE,
v.
THE CITY OF MARION, THE CITY OF MARION POLICE AND FIRE MERIT BOARD, MARION POLICE DEPARTMENT, MAYOR ROBERT BUTLER, COMMISSIONER DAVID HANCOCK, CHAIRMAN RON GREGORY, AND POLICE CHIEF RONALD SWAFFORD, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Williamson County. No. 94-CH-44. Honorable Ronald Eckiss, Judge, presiding.

The Honorable Justice Welch delivered the opinion of the court. Goldenhersh and Kuehn, JJ., concur.

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

On July 19, 1994, Officer Thomas Sprague, plaintiff, was suspended for three days without pay by defendant Ron Swafford, the chief of police for the Marion Police Department. On that date, Swafford sent a letter to Sprague informing him of this action.

On July 21, 1994, Sprague sent a letter to defendant Ron Gregory, the chairman of the City of Marion Police and Fire Merit Commission (Merit Commission). The letter stated in part, "I wish to respectfully notify you and the Merit Commission of a formal contestment to [the suspension]." Copies of this letter were sent to Ron Swafford and Commissioner David Hancock. Sprague considered this letter to sufficiently notify the board that he was appealing the suspension and requesting a hearing. However, neither Gregory nor Swafford considered this letter to be an appeal or a request for a hearing. No further action was thus taken by the Board of Police and Fire Commissioners concerning Sprague's suspension.

On September 2, 1994, Sprague's attorney wrote a letter to Swafford indicating that because no hearing was commenced within 30 days of Sprague's appeal, according to section 10-2.1-17 of the Illinois Municipal Code (65 ILCS 5/10-2.1-17 (West 1992)), the suspension was null and void.

On September 12, 1994, the City of Marion Police and Fire Merit Board (Board) scheduled a hearing for September 19, 1994. Sprague did not attend the hearing on advice of his counsel but filed a complaint with the circuit court of Williamson County for a declaratory judgment and injunctive relief, alleging that the Board no longer had jurisdiction, could no longer assert jurisdiction, and was required to restore Sprague's lost wages and seniority and remove any reference of this incident from his personnel file. A hearing was conducted on September 19, 1994, in the absence of Sprague. At the hearing, the Board reviewed the suspension and sustained the previous decision of the police chief to suspend Sprague for three days.

On May 8, 1995, the circuit court of Williamson County conducted a bench trial. The central dispute at trial was whether the letter sent by Sprague on July 21, 1994, sufficiently requested a hearing. On September 27, 1995, the circuit court of Williamson County found that Sprague's letter was sufficiently clear to be considered a request for a formal hearing, that the Merit Commission should have set a hearing upon the receipt of the request, and that because no hearing was set within 30 days of the request the Merit Commission lost jurisdiction to review the suspension. The court held that the suspension must therefore be vacated.

Defendants appeal the circuit court's decision, raising the issue of whether a hearing was required and, if so, whether it was untimely under the facts of this case. Both parties agree that section 10-2.1-17 of the Illinois Municipal Code is the controlling statute in this case. In pertinent part, the statute states:

"Removal or discharge-Investigation of charges-Retirement. Except as hereinafter provided, no officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. If the chief of the fire department or the chief of the police department or both of them are appointed in the manner provided by ordinance, they may be removed or discharged by the appointing authority. In such case the appointing authority shall file with the corporate authorities the reasons for such removal or discharge, which removal or discharge shall not become effective unless confirmed by a majority vote of the corporate authorities. The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time. In case an officer or member is found guilty, the board may discharge him, or may suspend him not exceeding 30 days without pay. The board may suspend any officer or member pending the hearing with or without pay, but not to exceed 30 days. If the Board of Fire and Police Commissioners determines that the charges are not sustained, the officer or member shall be reimbursed for all wages withheld, if any. In the conduct of this hearing, each member of the board shall have power to administer oaths and affirmations, and the board shall have power to secure by its subpoena both the attendance and testimony of witnesses and the production of books and papers relevant to the hearing.

Nothing in this Section shall be construed to prevent the chief of the fire department or the chief of the police department from suspending without pay a member of his department for a period of not more than 5 calendar days, but he shall notify the board in writing of such suspension. Any policeman or fireman so suspended may appeal to the board of fire and police commissioners for a review of the suspension within 5 calendar days after such suspension, and upon such appeal, the board may sustain the action of the chief of the department, may reverse it with instructions that the man receive his pay for the period involved, or may suspend the officer for an additional period of not more than 30 days or discharge him, depending on the facts presented." (Emphasis added.) 65 ILCS 5/10-2.1-17 (West 1992).

Sprague argues on appeal that this statute entitles him to a hearing of his suspension which must be conducted within 30 days. We note, however, that this statute only mentions the opportunity of a hearing in the context of the first paragraph when discussing the removal or discharge of an officer, and it does not mention the opportunity of a hearing in the last paragraph, which deals with suspensions of less than five days. Sprague argues that this is a distinction without a difference and that the statute entitles him to a hearing within 30 days. We disagree.

Although not cited by either party on appeal or in the trial court, our court's ruling in Scott v. Illinois State Police Merit Board, 222 Ill. App. 3d 496, 165 Ill. Dec. 20, 584 N.E.2d 199 (1991), offers some guidance in this area. In Scott, the plaintiff, a member of the Department of State Police, was suspended for three days. Scott, 222 Ill. App. 3d at 497. He petitioned the board for a review of this disciplinary action. Scott, 222 Ill. App. 3d at 497. The board conducted a meeting by teleconference call, discussed the matter, and unanimously voted to deny Scott's petition for further review and uphold the decision to suspend Scott. Scott, 222 Ill. App. 3d at 498. Scott appealed, contending that section 13 of the State Police Act (Ill. Rev. Stat. 1987, ch. 121, par. 307.13) was unconstitutional in that it denied his constitutional rights to due process and equal protection because it allowed the board to dismiss his petition without a hearing. Scott, 222 Ill. App. 3d at 498. Our supreme court had noted that section 13 of the State Police Act should be considered in pari materia with section 10-2.1-17 of the Illinois Municipal Code. Kropel v. Conlisk, 60 Ill. 2d 17, 25, 322 N.E.2d 793 (1975).

This court then examined section 13 of the State Police Act, which governs matters relating to the discipline of State police officers. Section 13 states in pertinent part: "Any officer so suspended *** may petition the Board in writing to review the suspension. *** The Board may, by unanimous decision, dismiss the petition if it has determined that there is no substantial basis for its review of the suspension." Ill. Rev. Stat. 1987, ch. 121, par. 307.13. Scott argued that this provision denied his constitutional rights to due process and equal protection and that other statutes governing county and municipal law enforcement officers, including section 10-2.1-17 of the Illinois Municipal Code, contained due process protections absent from section 13 of the State Police Act. Scott, 222 Ill. App. 3d at 499. This court found that the statutes cited by Scott did not afford him greater due process protection, and in fact, this court specifically stated, "None of the statutes governing Scott's counterparts in county and municipal law enforcement provide for a ...


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