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Roger Szewczyk v. the Board of Fire and Police

June 9, 2011

ROGER SZEWCZYK,
PLAINTIFF-APPELLEE,
v.
THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF RICHMOND, TOM VAN DAELE, KEN WERZEK, AND ROBERT ELIOT,
ITS COMMISSIONERS, THE VILLAGE OF RICHMOND, AND KEVIN BRUSEK,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of McHenry County. No. 09-MR-82 Honorable Michael T. Caldwell, Judge, Presiding.

The opinion of the court was delivered by: Justice Burke

Unpublished opinion

JUSTICE BURKE delivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice Bowman concurred in the judgment and opinion.

OPINION

Plaintiff, Roger Szewczyk, served as a sergeant in the Village of Richmond (Village) police department from 1995 to 1999. In 1999, defendant Kevin Brusek, then the Village president, appointed him police chief. In 2005, Brusek sent plaintiff a letter announcing that he was "terminated" from office. After voting three times, the five members of the Village board of trustees voted four to one to end plaintiff's employment.

Plaintiff asked the new Village president, Lauri Olson, and the Board of Fire and Police Commissioners of the Village (Commissioners) and its commissioners, Tom Van Daele, Kevin Thomas, and Ken Werzek, to reappoint him as police chief. He also submitted a petition for reinstatement to the rank of sergeant, requesting a hearing before the Commissioners. Olson and the Commissioners declined the requests. Plaintiff filed a complaint for mandamus, requesting the circuit court to direct the Commissioners to conduct a hearing on the petition. The parties filed opposing motions for summary judgment, and the trial court ruled for plaintiff.

On appeal in Szewczyk v. Board of Fire & Police Commissioners of Village of Richmond (Szewczyk I), 381 Ill. App. 3d 159 (2008), the Commissioners framed the issues by comparing sections 10-2.1-4 and 10-2.1-17 of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/10-2.1-4, 10-2.1-17 (West 2006)) to section 3.1-35-10 of the Municipal Code (65 ILCS 5/3.1-35-10 (West 2006)) and ordinance No. 3.01(e) of the Village of Richmond Code (Village Code) (Richmond Village Code Ordinance No. 3.01(e) (2004)). Sections 10-2.1-4 and 10-2.1-17 of the Municipal Code govern the removal of a police chief in particular, and section 3.1-35-10 and ordinance No. 3.01(e) govern the removal of municipal officers in general. We held that (1) the specific provisions, rather than the general provisions, applied to plaintiff's tenure as police chief, (2) regardless of the difference between the specific and general provisions, plaintiff was denied procedural due process under both schemes, and (3) the circuit court correctly granted plaintiff mandamus directing the Commissioners to hear his petition. Szewczyk I, 381 Ill. App. 3d at 170.

On remand, the Commissioners who were serving at the time, defendants Van Daele, Werzek, and Robert Eliot, heard and denied plaintiff's petition for reinstatement to the rank of sergeant, and plaintiff sought administrative review in the circuit court. The circuit court reversed the decision and remanded the matter to the Commissioners, with instructions to reinstate plaintiff to the police department at the rank of sergeant, retroactive to April 30, 2005.

The Commissioners now appeal to this court, arguing that (1) plaintiff did not automatically revert to the position of sergeant upon his discharge as police chief; (2) the hearing on plaintiff's petition for reinstatement as sergeant satisfied his right to due process; and (3) the Commissioners properly denied plaintiff's petition. We agree with the Commissioners and reverse the judgment of the circuit court.

FACTS

In 1990, the Commissioners appointed plaintiff as a full-time, sworn police officer of the Village police department. In 1995, plaintiff was appointed to the rank of sergeant. In 1999, Brusek appointed plaintiff as police chief. At the time of his appointment as police chief, plaintiff was 49 years old and was not eligible for pension benefits, because he had not yet reached the eligibility age of 55.

As of December 31, 2004, plaintiff was a participating employee and a member in good standing of the Illinois Municipal Retirement Fund (IMRF). Also as of that date, plaintiff was eligible to retire on partial pension benefits through the IMRF, under section 7-141 of the Illinois Pension Code (Pension Code) (40 ILCS 5/7-141 (West 2006)). However, plaintiff was to become eligible for full benefits when he reached his fifty-fifth birthday on April 29, 2005.

On March 15, 2005, Brusek sent the Village board of trustees a memorandum that stated, "[a]s of 10:00 this morning; Chief Roger Szewczyk's employment with the Village of Richmond was terminated. There will be an Executive Session tomorrow evening with further details." The minutes of the March 16, 2005, executive session indicate that the board of trustees took no action on the termination.

On March 21, 2005, Brusek sent Karla Thomas, the Village clerk, and Lisa Waggoner, the Village attorney, a letter explaining that Brusek had attempted to suspend plaintiff on March 15, but, when plaintiff declared that he could not be suspended, Brusek "fired" him. Brusek's letter to Thomas and Waggoner included his reasons for the termination, including insubordination, failure to investigate and report official misconduct, failure to meet budgetary goals, failure to exercise management and leadership skills, and inability to work with other municipal entities.

On March 23, 2005, the board of trustees held a special meeting at which it debated plaintiff's termination. Initially, two trustees voted for termination and three voted against it. The board of trustees then debated placing plaintiff on administrative leave with pay. Four trustees voted to place plaintiff on leave until April 6, 2005, and one voted against it. Following the meeting, Brusek sent plaintiff a letter informing him that he had been placed on administrative leave, but the letter did not state the duration. Brusek ordered plaintiff to turn in his badge, his nameplate, and all other equipment that belonged to the Village. Brusek informed plaintiff that he could not carry a weapon or act as a police officer. Brusek sent a copy of the letter to the Commissioners, the board of trustees, and Waggoner.

On April 6, 2005, the board of trustees held a regular meeting. At Brusek's invitation, Village president-elect Olson joined the executive session, at which plaintiff's status was discussed further. Four of the five trustees voted to terminate plaintiff, effective April 30, 2005, one day after his fifty-fifth birthday.

On April 30, 2005, Brusek sent plaintiff a letter informing him of the termination. Brusek sent copies of the letter to the Commissioners, the board of trustees, and Waggoner. The letter provided as follows:

"You have been on paid Administrative Leave through April 30, 2005, and received all benefits through this date. As of April 30th you are separated from employment with the Village of Richmond and you are free to take your retirement. Enclosed you will find a check for your unused vacation and sick days. Also enclosed is a copy of the COBRA plan for medical insurance."

On May 4, 2005, Olson assumed office as Village president. On May 11, 2005, plaintiff's counsel sent the Commissioners a petition for reinstatement to his previous rank of sergeant, requesting a hearing, and, the next day, counsel sent the petition to Olson.

At no time did either Brusek or the board of trustees ask plaintiff to appear or otherwise answer the allegations that were the basis for his termination. Plaintiff asked to appear before the board of trustees, but the request was denied. Besides filing the petition for reinstatement to his previous rank, plaintiff did not ask to appear before the Commissioners to answer the allegations, and they did not ask him to do so.

Plaintiff sought and obtained from the circuit court a writ of mandamus to compel the Commissioners to grant him a hearing on his petition for reinstatement to the rank of sergeant. The Commissioners appealed, and, after discussing the relevant statutory framework for removing or discharging a police chief, we remanded the cause to the Commissioners to hear plaintiff's petition for reinstatement to the rank of sergeant. Szewczyk I, 381 Ill. App. 3d at 170.

On remand, the Commissioners heard and denied plaintiff's petition for reinstatement to the rank of sergeant. The hearing was limited to argument, as plaintiff only introduced Szewczyk I as evidence supporting his petition. After recapitulating the procedural history of the case, the Commissioners found that all parties were given an opportunity to be heard and present whatever evidence they had in support of or opposition to plaintiff's reinstatement. The Commissioners held that, pursuant to section 10-2.1-4 of the Municipal Code, "the Village of Richmond was without any legal obligation to reinstate [plaintiff] to the rank of sergeant after his employment with the Village was ...


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