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September 16, 1997


Appeal from the. Circuit Court of St. Clair County. No. 93-MR-137. Honorable. Robert P. LeChien, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court. Kuehn, P.j., concurs. Justice Chapman, dissenting.

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Plaintiff, James Stover, filed a complaint in the circuit court of St. Clair County for judicial review of an administrative decision of defendant, the Board of Fire and Police Commissioners of the City of O'Fallon (Board). Plaintiff filed the action alleging that he should have been promoted to the rank of captain. Defendant instead promoted Lieutenant Scott Battoe. The circuit court denied defendant's motion for summary judgment and entered an order remanding plaintiff's case to defendant to:


Recalculate the final score of James Stover and Scott Battoe for the rank of captain without consideration of the results of their oral interview; [and]


Exercise statutory authority consistent with the court's determinations herein and appoint a captain based on the revised final scores."

The circuit court subsequently reconsidered the above order and, ultimately, promoted plaintiff to the rank of captain. On appeal, defendant raises three issues: (1) whether the trial court erred in refusing to grant defendant's motion for summary judgment; (2) whether plaintiff waived his rights to promotion based on the March 21, 1992, examination by participating in the new examination; and (3) whether the circuit court erred in holding that defendant could not administer the captain's test to Lieutenant Battoe and then place him on the eligibility list. We affirm.

In this appeal, defendant has filed a motion to dismiss. This court denies said motion.


On August 19, 1989, defendant adopted rules which provided that promotional tests for vacancies occurring within the police department were to be comprised of the following components: written examination--40%, oral examination--30%, job performance--20%, years of service--5%, college credit--3%, paramedic points--2%. Defendant further provided that point totals are to be accumulated and that education, experience, and paramedic points, along with any veterans' preference, are to be added. However, defendant's attorney admitted that the rules were not publicized and published as required by section 10-2.1-5 of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/10-2.1-5 (West 1992)). In order to become a captain on the O'Fallon Police Department, one must hold the rank of lieutenant. On March 21, 1992, plaintiff was the only lieutenant on the police force. Plaintiff took a written examination for captain on that date, even though there was no vacancy in the rank of captain. The department was attempting to establish a register of eligibles for the rank of captain. Plaintiff was never administered any other components of the promotional test as outlined above. No captain's eligibility list was posted after plaintiff completed the written examination.

On October 26, 1992, approximately seven months after plaintiff took the written examination for captain, Scott Battoe was promoted to lieutenant. Then on May 3, 1993, Captain Norman Fitch retired, creating an opening in the rank of captain. On May 8, 1993, defendant recognized that a vacancy existed in the rank of captain as of May 3, 1993.

Gene Nute, the Board's chairman, admits that defendant failed to follow through on testing in March 1992, after plaintiff took the written component. Nute explained:

"It was our intent to create and have on file a list from which to promote[,] even though no vacancy was open nor [ sic ] projected *** . The problem is that we failed to follow through and administer an oral exam, etc., and complete the testing process to arrive at a final score and post/publish a Captain's Promotion List as such. For some reason the ball got dropped[,] and we on the board never finished what we had started. I wish I knew why, but it was just one of those things. No need to point fingers here. We take responsibility for what we did not do."

Nute sought legal advice as to how to proceed.

Defendant eventually allowed Lieutenant Battoe to take the written and oral exams and allowed plaintiff the opportunity to either retake the written exam or stand on his score from the written exam administered on March 21, 1992. On May 19, 1993, defendant sent plaintiff the following letter outlining these options.

"Dear Lieutenant Stover:

The O'Fallon Board of Fire & Police Commissioners has been authorized to fill the vacant position of Captain on the force. As you are aware, you took the written exam for Captain in March of 1992[;] however, the oral part of the examination process was ...

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