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Flynn v. Hillard

February 18, 1999

KEVIN FLYNN, PETITIONER-APPELLANT,
v.
TERRY G. HILLARD, SUPERINTENDENT OF THE CHICAGO POLICE DEPARTMENT, THOMAS P. SADLER, DIRECTOR OF PERSONNEL, AND THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, RESPONDENTS-APPELLEES.



The opinion of the court was delivered by: Presiding Justice South

Appeal from the Circuit Court of Cook County. Honorable John K. Madden, Judge Presiding.

Kevin Flynn, a probationary officer with the City of Chicago's department of police (Department), was terminated by the superintendent of the Chicago police department (Superintendent). Flynn brought an action for administrative review of the Superintendent's decision. The City of Chicago (City) filed a motion to dismiss the case for lack of jurisdiction. The circuit court initially denied the City's motion to dismiss. On the City's motion for reconsideration, the circuit court granted the City's motion and dismissed the case.

Plaintiff was hired by the Department as a probationary police officer on March 18, 1996. Such officers must serve a probationary period before obtaining any career-service rights. During this period, probationary officers are evaluated by field training officers and may be terminated for any reason without formal proceedings or a finding of cause.

Flynn asserted that he received a negative evaluation by Officer Thomas Conley after Officer Conley had observed his performance for only four days. On the basis of negative evaluations, Flynn was ordered discharged.

On March 4, 1997, Flynn filed a petition for administrative review alleging that the Superintendent had unlawfully terminated him from his job as a probationary police officer. The complaint alleged that the Department failed to follow its own general and special orders in evaluating his performance and that he received a negative evaluation from an officer who should not have been permitted to evaluate him. He also alleged that he was interrogated about his poor evaluations in violation of his right to counsel under the Chicago Municipal Code (Chicago Municipal Code §2-84-330 (1990)) and section 3.8 of the Uniform Police Officers Disciplinary Act (50 ILCS 725/3.8 (West 1996)). The complaint further claimed that Flynn was fired, because he is a homosexual, in violation of the Illinois Human Rights Act (Act) (775 ILCS 5/1-101 et seq. (West 1996)) and the City's human rights ordinance.

On May 6, 1997, the City filed a motion to dismiss noting that the Chicago Municipal Code, which confers upon the Superintendent the power to terminate probationary police officers, does not adopt the provisions of the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 1996)); that the Superintendent's decision is not a decision by an administrative agency; and that discretionary decisions of the Superintendent are not subject to administrative review. The City further argued that the special orders of the Department do not create a property right in probationary police officers entitling them to continued employment; that any request by Flynn for mandamus was also improper and should be dismissed; and that the City's Commission on Human Relations has primary exclusive jurisdiction over Flynn's sexual- preference-discrimination claim.

On July 28, 1997, the circuit court held a hearing on the motion to dismiss. The circuit court explained that Flynn's claim should have been brought as a petition for a writ of certiorari rather than as a complaint for administrative review. The City agreed to allow the court to treat Flynn's action as a petition for writ of certiorari. The City then argued that the circuit court lacked jurisdiction to consider Flynn's claim, whether that claim was treated as a complaint for administrative review or a petition for writ of certiorari. The City explained that the Superintendent has sole discretion to fire probationary police officers, that no evidentiary hearings are held prior to such terminations, that there are no findings of fact or Conclusions of law, and that, therefore, there is no record of an inferior tribunal for the circuit court to review, thereby making Flynn's claim inappropriate for consideration either as a writ of certiorari or as a complaint for administrative review.

The City described the process by which recommendations are made to the Superintendent as to which probationary officers to terminate. The City explained that the Department had internal special orders that set out the standards for reviewing probationary police officers. These officers are reviewed by field training officers who are experienced police officers who take the probationary police officer around. If problems occur in a probationer's training, a group of officers from the Department reviews the situation and makes recommendations for either additional academic training, field training, or termination. The reviewing officers can interview whomever they think appropriate in making their determination as to whether the problems exhibited by a probationary police officer can be corrected. If the review panel determines that the poor performance will not improve, the probationer will be terminated. The City further explained that the Chicago Commission on Human Relations (the Commission) had exclusive jurisdiction over Flynn's discrimination claim and that Flynn was about to file a complaint with the Commission. In later proceedings, Flynn's counsel confirmed that Flynn had, in fact, filed a complaint against the Superintendent with the Commission.

Flynn argued that the memoranda, special orders, and general orders of the Department formed a sufficient record to permit review; that the Department failed to follow its own internal rules in evaluating him; that the Superintendent is required to follow the Department's rules and regulations; and that it is the circuit court's duty to determine whether the evaluation rules were followed. If such rules were not followed, Flynn argued, the circuit court must reinstate him.

The circuit court denied the City's motion to dismiss on August 1, 1997. The City then filed a motion for reconsideration of that denial and attached, among other documents, a number of Illinois decisions for the circuit court's review. At the hearing held on September 4, 1997, the City argued that the trial court's ruling of August 1, 1997, did not comport with existing case law.

On September 12, 1997, the circuit court granted both the City's motion to reconsider and the motion to dismiss the complaint.

In considering a motion to dismiss, all well-pleaded facts are accepted as true. Buckner v. O'Brien, 287 Ill. App. 3d 173, 176, 677 N.E.2d 1363, 1366 (1997). A motion for dismissal should only be granted in those cases where there are no material facts in dispute and defendants are entitled to dismissal as a matter of law. Frydman v. Horn Eye Center, Ltd., 286 Ill. App. 3d 853, 857, 676 N.E.2d 1355, 1359 (1997). On appeal, the reviewing court does not defer to the circuit court's ruling but considers the issue de novo. Buckner, 287 Ill. App. 3d at 177, 677 N.E.2d at 1366.

Flynn originally filed his complaint for administrative review, and it was agreed that, since this was improper, it would be treated as a writ of certiorari. The circuit court then determined that it could not treat Flynn's complaint as an administrative review action, because according to section 10-1-45 of the Illinois Municipal Code (65 ILCS 5/10-1-45 (West 1996)), the Administrative Review Law applies only to decisions by the civil service commission and the police board. The Superintendent's decision to discharge probationary police officers is not reviewable under the Administrative Review Law. Rochon v. Rodriguez, 293 Ill. App. 3d 952, 955, 689 N.E.2d 288, 291 (1997).

Flynn argues that whether he labeled his cause of action as a complaint for administrative review, a petition for writ of certiorari, or a petition for a writ of mandamus is unimportant, because the relief that he is seeking is the same. However, the court in Rochon indicated that none of these types of complaints could overcome the fact that the circuit court does not have ...


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