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12/19/96 MARTIN ZELISKO v. BOARD FIRE AND POLICE

December 19, 1996

MARTIN ZELISKO, PLAINTIFF-APPELLEE,
v.
THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF OAK BROOK; THE VILLAGE OF OAK BROOK; RICHARD ASCHER, AS CHAIRMAN AND MEMBER OF THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF OAK BROOK; SUE SANFORD, AS SECRETARY AND MEMBER OF THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF OAK BROOK; JOHN CRAIG, AS MEMBER OF THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF OAK BROOK; JAMES R. FLEMING, AS POLICE CHIEF OF THE VILLAGE OF OAK BROOK, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Du Page County. No. 95--MR--0051. Honorable Bonnie M. Wheaton, Judge, Presiding.

Released for Publication January 22, 1997.

The Honorable Justice Doyle delivered the opinion of the court. Inglis and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

In August 1994, James Fleming (Chief), the chief of the Oak Brook police department (Department), filed disciplinary charges with the Board of Fire and Police Commissioners of the Village of Oak Brook (Board) against plaintiff, Martin Zelisko, a police officer with the Department. On December 15, 1994, the Board, with one of its three members dissenting, determined that plaintiff was guilty of wrongdoing and issued a final order imposing a 30-day suspension of plaintiff without pay.

On January 18, 1995, plaintiff filed a complaint in the circuit court of Du Page County for administrative review of the Board's decision pursuant to the Administrative Review Law (735 ILCS 5/3--101 et seq. (West 1994)). Plaintiff's complaint named as defendants: the Board, the Village of Oak Brook (Village), the Chief, and the two Board members who decided that plaintiff was guilty of wrongdoing. The complaint did not name the dissenting Board member as a defendant. A summons was issued and served on each of the named defendants.

On October 3, 1995, the trial court concluded that the Board's findings that plaintiff was guilty of wrongdoing were against the manifest weight of the evidence and clearly erroneous. The court entered an order reversing the Board's finding of guilty and the 30-day suspension of plaintiff.

On October 24, 1995, the named defendants motioned to vacate the trial court order of October 3, 1995, and to dismiss plaintiff's complaint. The named defendants based their motion on plaintiff's failure to name the dissenting Board member, John W. Craig, as a defendant.

On January 4, 1996, after a hearing on the matter, the trial court found that the Board did not name Craig as a party, but that Craig was a party of record to the proceedings. The court entered an order which denied defendants' motion to vacate and dismiss. During the hearing, the trial court stated the following:

"And I will grant the Plaintiff an additional 21 days to serve [Craig] in the manner set forth in Section 3-103 of this Act [735 ILCS 5/3--103 (West 1994)].

I think any other construction or application of the statute would unduly penalize the Plaintiff by depriving him of what I have already found was a valid cause of action.

And I believe that there was good faith on the part of the Plaintiff and his counsel in naming all the persons who apparently took an adverse stand to that of the Plaintiff."

On January 11, 1996, plaintiff filed his first amended complaint and a summons was issued on Craig. The first amended complaint added Craig as a named defendant.

On February 8, 1996, the trial court conducted a hearing to determine if it was impermissible to join Craig at this juncture in the proceedings as argued by Craig's attorney. After the hearing, the trial court entered an order reaffirming ...


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