[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Lake County. No. 12-MR-818. Honorable Jorge L. Ortiz, Judge, Presiding.
The trial court properly affirmed the decision of a village civil service commission to pass over plaintiff for a promotion to the rank of lieutenant in the village fire department, notwithstanding the fact that he was the highest-ranking person on the promotion eligibility list, since the collective bargaining agreement and the Fire Department Promotion Act gave the commission the authority to pass over plaintiff if it concluded that he had demonstrated substantial shortcomings in work performance or engaged in misconduct affecting the performance of his duties, and in plaintiff's case, the consideration of hearsay evidence of his shortcomings and misconduct did not violate his right to procedural due process, the finding that such circumstances existed was not against the manifest weight of the evidence, and the decision to pass over him was not clearly erroneous.
Thomas F. McGuire, of Thomas F. McGuire & Associates, Ltd., of Long Grove, for appellant.
Terrence T. Creamer and Mark S. Wilkinson, both of Franczek Radelet, P.C., of Chicago, for appellees Civil Service Commission of the Village of Gurnee, Ty Bonds, Lori Hubbartt, and George Iler.
Thomas G. Draths and Clare J. Quish, both of Schuyler, Roche & Crisham, P.C., of Chicago, for other appellees.
JUSTICE SPENCE delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Jorgensen concurred in the judgment and opinion.
[¶1] Plaintiff, Henry Chamberlain, is a firefighter-paramedic with the Village of
Gurnee fire department who was passed over for promotion to lieutenant. This was despite the fact that plaintiff was the highest-ranking person on the promotion eligibility list for that rank. Pursuant to section 20(d) of the Fire Department Promotion Act (Promotion Act) (50 ILCS 742/20(d) (West 2010)) and article 18 of the collective bargaining agreement (CBA) between defendants Gurnee and the Gurnee Firefighters Union I.A.F.F. Local 3598, defendant the Civil Service Commission of the Village of Gurnee (Commission) passed over plaintiff after the fire department presented evidence regarding alleged work-performance shortcomings and incidents of misconduct.
[¶2] Plaintiff appealed the decision to the Lake County circuit court, which affirmed the decision. For the reasons stated herein, we affirm.
[¶3] I. BACKGROUND
[¶4] Plaintiff has been a firefighter-paramedic with the Gurnee fire department since 1994. In May 2010, the Commission, an administrative agency of the Village of Gurnee, established a promotion eligibility list for the promotion of firefighters to the rank of lieutenant. The promotion list was in effect from May 21, 2010, through May 22, 2012. In the spring of 2012, plaintiff was the highest-ranking person on the list and therefore was next in line for a promotion. However, in an April 20, 2012, finding and decision by the Commission, plaintiff was passed over for promotion. Defendant James Gramer, second on the list, was promoted instead.
[¶5] The Commission derives its authority to pass over a firefighter on the promotion list from the CBA, dated May 1, 2011. Article 18 reads, in part:
" [A]ll promotions made off that list will be made in order of finish on the final list. However, the Civil Service Board shall have the right to pass over that person and appoint the next highest ranked person on the list if the Board has reason to conclude that the highest ranking person has demonstrated substantial shortcomings in work performance or has engaged in misconduct affecting the person's ability to perform the duties of the promoted rank since the posting of the promotion list."
The language of the CBA tracks the language of section 20(d) of the Promotion Act, which reads, in part:
" [T]he appointing authority shall have the right to pass over that person and appoint the next highest ranked person on the list if the appointing authority has reason to conclude that the highest ranking person has demonstrated substantial shortcomings in work performance or has engaged in misconduct affecting the person's ability to perform the duties of the promoted rank since the posting of the promotion list." 50 ILCS 742/20(d) (West 2010).
Thus, under provisions of both the CBA and the Promotion Act, the highest-ranking candidate on the promotion list is selected for a promotion unless the Commission finds that the candidate demonstrated substantial work-performance shortcomings or engaged in misconduct affecting his or her ability to perform in the promoted rank. The Commission passed over plaintiff pursuant to these provisions.
[¶6] The Commission's investigation into plaintiff's performance formally began on or about March 16, 2012, when defendant Thomas Draths, an attorney representing the Gurnee fire department, notified the Commission that plaintiff was the highest-ranking person on the promotion list and that the fire department believed that he had demonstrated substantial shortcomings in his work performance and/or had engaged in misconduct affecting his ability
to perform the duties of a lieutenant. The fire department's notification of charges and allegations included a March 6, 2012, transcript of plaintiff's administrative statement regarding four alleged incidents of misconduct (occurring, respectively, on or about January 23, January 24, January 25, and February 27, 2012) and statements from firefighters and paramedics regarding plaintiff's conduct during three of these incidents. In response to the notification, plaintiff's counsel, Thomas McGuire, wrote to the Commission on March 23, 2012, to request an evidentiary hearing, asserting that plaintiff had a property interest in having his name on the promotion list, thus entitling him to procedural due process, and generally asserting that the Commission should not take any action against plaintiff. The Commission declined to hold a hearing, but on April 5, 2012, it did notify plaintiff and Draths that it would hold a special meeting on April 10, pursuant to its rules and regulations and section 20(d) of the Promotion Act (50 ILCS 742/20(d) (West 2010)), to determine whether plaintiff engaged in misconduct or demonstrated shortcomings in work performance. Counsel for plaintiff responded to the notice with an April 9, 2012, letter, in which he argued, in pertinent part, that plaintiff should not be removed from the promotion list--an action that the Commission would not be taking in any event, since the decision to be made was only whether to pass over plaintiff on the list--and that statements provided to the Commission by the fire department were inadmissible hearsay.
[¶7] The fire department's notification alleged the following four incidents of misconduct and/or substantial work-performance shortcomings, all of which occurred while plaintiff was on duty. The first alleged incident was on January 23, 2012, when plaintiff responded to a call from a construction site at 401 Hunt Club Road in Gurnee. An injured person had fallen approximately 25 to 30 feet. In the presence of the injured person, plaintiff's coworkers, and other Gurnee personnel, plaintiff said, " 'Were you the one who was up on the scaffolding that said 'Bears suck'? That's what you get for being a Packers' fan.'"
[¶8] The second alleged incident occurred on January 24, 2012. Plaintiff was on the scene of a car accident where the car was on its side with two occupants within. In the presence of civilians, plaintiff referred to his coworkers as, " 'You idiots! You dumbasses!'" In the notification, no context was given for the derisive words.
[¶9] The third alleged incident occurred on January 25, 2012. While en route to and at Condell Medical Center, plaintiff allegedly responded unprofessionally when communicating with a nurse who was asking for an abbreviated radio report. Once plaintiff arrived at the hospital, he engaged the nurse in confrontational conversation, blocking her egress by standing close to her while she was against a wall and, at one point, asking whether she wanted to " 'take this outside.'"
[¶10] The fourth alleged incident occurred the morning of February 27, 2012. Plaintiff engaged in a verbal altercation with a fellow firefighter regarding garbage being mixed with recyclables. The exchange was described as less than cordial on plaintiff's part, with many ...