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Lowell Fehrenbacher v. Mercer County

April 18, 2012

LOWELL FEHRENBACHER,
PLAINTIFF-APPELLANT,
v.
MERCER COUNTY, ILLINOIS, MERCER COUNTY BOARD, MAXINE HENRY, DAVID MAYNARD, FLOYD UTZ, CHARLES BOX, BOB VICKERY, BILL OLSEN, DAN SCHROEDER, BILL THORP, TERRY ELLIOTT, AND TOM GREG G. CHICKRIS DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 14th Judicial Circuit Mercer County, Illinois Circuit No. 10-MR-16 Honorable HAINES, Judge Presiding

The opinion of the court was delivered by: Justice Lytton

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

Presiding Justice Schmidt concurred in the judgment and opinion.

Justice Carter dissented, with opinion.

OPINION

¶ 1 Plaintiff Lowell Fehrenbacher was terminated from his position as Mercer County engineer. Fehrenbacher filed a complaint against Mercer County, the county board and the individual county board members, seeking administrative review of his termination. The trial court affirmed the county board's decision to terminate Fehrenbacher. On appeal, Fehrenbacher argues that his termination was unlawful because he was not served with a petition for removal, as required by Illinois statute. We affirm.

¶ 2 Lowell Fehrenbacher was hired by Mercer County as its county engineer on January 21, 2010. On June 11, 2010, he was served with a "Mercer County pre-Disciplinary Hearing Notice." The notice directed Fehrenbacher to attend "a pre-disciplinary hearing in the Mercer County Board Room on Friday, June 25, 2010." Fehrenbacher was placed on administrative leave until the hearing.

¶ 3 The notice stated that Fehrenbacher was being charged with violating civil and/or criminal law, and/or neglect of duty, and/or malfeasance in office, by committing the following acts: (1) attempting to obtain insurance coverage for his daughter through the county health insurance program, knowing that she is not a dependent or otherwise eligible for coverage; (2) placing one or more members of the county highway department staff in "imminent apprehension of bodily harm, and/or acting in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace"; (3) placing the county board chairman in "imminent apprehension of bodily harm, and/or acting in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace"; and (4) threatening to lodge a complaint against the ex-county engineer with the Illinois Association of County Engineers because he provided assistance to the county.

¶ 4 The notice advised Fehrenbacher: "If the Employer believes the evidence against you to be true, the result may be disciplinary action up to and including discharge. After an explanation of the Employer's evidence, you will have the opportunity to present your side of the story."

¶ 5 On June 25, 2010, Fehrenbacher and his attorney appeared at the predisciplinary hearing, which was held before three members of the county board. At the hearing, Fehrenbacher and others provided testimony regarding the charges set forth in the notice.

¶ 6 Eleven days after the hearing, the county board voted to terminate Fehrenbacher as county engineer. The following month, the county board sent Fehrenbacher a letter, notifying him that his employment was terminated. According to the letter, the board had determined that Fehrenbacher committed all of the acts alleged in the predisciplinary notice. The letter stated: "Each of these acts by itself is a violation of your employment agreement and sufficient to cause the termination of your employment under your employment agreement."

¶ 7 Fehrenbacher filed a complaint for administrative review in the trial court. In his complaint, Fehrenbacher asserted that the county board's termination of his employment violated his due process rights, in part, because the county board never filed a removal petition required by section 5-203 of the Illinois Highway Code (Code) (605 ILCS 5/5-203 (West 2008)). Regarding this issue, the trial court found:

"Plaintiff has waived this argument by failing to present [it] to the Board at the administrative agency level. Nevertheless, I find the notice of the hearing regarding potential discipline of the Plaintiff, including removal from his position as County Engineer, was sufficient for due process purposes and the substantive requirements of the Removal Statute. The notice of the hearing put the Plaintiff on notice as to what the allegations were and what was going to happen and what possible ramification or possible parameters of punishment could be, such as termination."

ΒΆ 8 The trial court then went on to examine the board's findings and conclusions supporting Fehrenbacher's removal. The court found that two of the county board's bases for removal were against the manifest weight of the evidence but that there was sufficient evidence in the record to support the remaining two bases for removal. Since the board stated that any one of Fehrenbacher's acts was ...


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