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12/30/97 JOHN P. ROCHON AND TERRENCE JULIAN v. MATT

December 30, 1997

JOHN P. ROCHON AND TERRENCE JULIAN, PETITIONERS,
v.
MATT RODRIGUEZ, SUPERINTENDENT OF POLICE, CITY OF CHICAGO; THOMAS P. SADLER, DIRECTOR OF PERSONNEL; AND THE CITY OF CHICAGO, RESPONDENTS.



APPEAL FROM THE CIRCUIT COURT COOK COUNTY. No. 96 CH 0002206. THE HONORABLE STEPHEN A. SCHILLER, JUDGE PRESIDING.

The Honorable Justice Cousins delivered the opinion of the court. Rakowski and Tully, JJ., concur.

The opinion of the court was delivered by: Cousins

The Honorable Justice COUSINS delivered the opinion of the court:

Appellants, John P. Rochon and Terrence Julian, were discharged from their positions as probationary police officers with the Chicago police department in February 1996. They appeal from the trial court's dismissal of their petition for administrative review in which they sought reinstatement of their positions from appellees Matt Rodriguez, superintendent of police for the City of Chicago, Thomas P. Sadler, director of personnel for the City of Chicago, and the City of Chicago. Appellants also appeal from the denial of their motion to reconsider. On appeal, appellants contend, inter alia, that they were entitled to judicial review of their claims and that they are entitled to reinstatement because they were disciplined twice for the same conduct.

BACKGROUND

In their petition for administrative review, appellants

allege the following facts. They began working as probationary police officers with the City of Chicago on August 7, 1995. On November 24, 1995, Rochon missed several classes at the Chicago Basic Recruit Training Program because he went home to get an inhaler for his asthma attack. On November 24, 1995, Julian missed several classes because he ingested certain medicine for his flu which caused him to oversleep his lunch hour. Appellants had no prior record of absences. On November 27, 1995, when appellants returned to work, they were removed from the training program and placed on desk duty. Appellants also allege that they were advised that they were being penalized for their absences, that they would not be able to graduate with their class on January 23, 1996, and that they would be required to begin training again with a new class. Appellants did not graduate with their class and were terminated from the police department on February 2, 1996.

On March 5, 1996, appellants filed a petition for administrative review pursuant to section 3-112 of the Administrative Review Law (735 ILCS 5/3-112 (West 1992)) (Act), in which they contended that they were entitled to reinstatement because appellees did not have authority to punish them "multiple and successive times for the same conduct." On April 10, 1996, appellees filed a motion to dismiss appellants' petition pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)). Appellees argued that the trial court had no jurisdiction over the action because there had been no final decision of an administrative agency as required by the Act and that the superintendent's decision to terminate appellants did not constitute a final decision of an administrative agency. Appellees further argued that the Act did not allow for review of discretionary disciplinary decisions of the superintendent. After a hearing, the trial court dismissed the petition.

Thereafter, appellants filed a motion to reconsider to which appellees answered. A hearing was held on the motion at which the trial court, relative to the merits of appellants' complaint, stated that, in its view, appellants received one "continuous sanction" for their actions and were not punished twice for the same conduct. The trial court then dismissed the motion to reconsider. This appeal followed.

We reverse and remand.

ANALYSIS

Appellants contend that the superintendent violated section 2--84--050 of the City of Chicago Municipal Code (Chicago Municipal Code § 2--84--050 (1990)), when he suspended and later discharged them. Appellants further contend that they labeled their complaint as a "Petition for Administrative Review" because they believed that the superintendent rendered a final agency decision by acting on behalf of the City of Chicago. Appellants also argue that their complaint sufficiently stated a cause of action for common law certiorari or a writ of mandamus even if judicial review is not available under the Administrative Review Law. We disagree with appellants on these issues.

The Administrative Review Law applies only where it is adopted by express reference in the act creating or conferring power upon the administrative agency involved. Philger, Inc. v. Department of Revenue, 208 Ill. App. 3d 1066, 1069, 567 N.E.2d 773, 153 Ill. Dec. 815 (1991). In the instant case, appellants cite section 10-1-45 of the Illinois Municipal Code (65 ILCS 5/10-1-45 (West 1992)), to support their argument that the superintendent's decision is reviewable under the Administrative Review Law. Section 10-1-45 of the Act provides:

" § 10-1-45. The provisions of the Administrative Review Law, and all amendments and modifications thereof, and the rule adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of a Civil Service Commission, or of the Police Board of a city of more than 500,000 population. The term 'administrative ...


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