# Brzana v. Martin > Appellate Court of Illinois · March 14, 1991 · 211 Ill. App. 3d 415 URL: https://www.frixlaw.com/law-library/cases/7024467 ## Case - **Full name:** CATHERINE BRZANA v. LEROY MARTIN, as Superintendent of Police - **Court:** Appellate Court of Illinois - **Decided:** March 14, 1991 - **Citations:** 211 Ill. App. 3d 415; 155 Ill. Dec. 898; 570 N.E.2d 411; 1991 Ill. App. LEXIS 365 - **Precedential status:** Published - **Opinion:** Dissent by Jiganti - **Judges:** Jiganti, Linn - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7024467 ## Opinion text PRESIDING JUSTICE JIGANTI, dissenting: Respectfully, I dissent. The majority found that the trial court erred because as the majority stated, “we find that Brzana’s position is well taken and that the defendants did not follow their own rules and regulations regarding the drug conference hearing.” (211 Ill. App. 3d at 429.) Contrary to the statement of the majority, that was not Brzana’s position. Brzana never took that position in the trial court and it was not raised on appeal. Quite the opposite, on December 19, 1988, at a hearing on a motion for a temporary restraining order, the plaintiff’s attorney stated that the rules provide that a probationary police officer candidate be given a drug-screening test and “she’s already had one.” On August 4, 1989, at the hearing on the motion for a summary judgment, counsel stated that there had been a drug conference and hearing under the rule. Not only is the fundamental premise of the majority belied by the record, the legal conclusion that the defendants did not follow the rules is faulty. The rule states that the party “may request a conference.” Nowhere does the majority suggest that the plaintiff requested and was denied a conference. Rather, the majority implies it was the duty of the police department to suggest the conference. The majority states that after the plaintiff reapplied, there was “no barrier to *** conducting the drug conference hearing at that time.” The majority then says that the police department “could have proceeded” then with the drug conference. 211 Ill. App. 3d at 425. The issues properly before this court emanate from a complaint filed by the plaintiff which stated essentially that the plaintiff resigned from her position in 1985, reapplied and successfully completed all phases of the application procedure. However, on May 15, 1986, the commissioner of personnel informed the plaintiff that she was disqualified based on an updated background check. The reason given for the disqualification was the fact that a background check had revealed that the plaintiff had previously been appointed but that on August 6, 1985, a urine specimen she had submitted was found to contain THC (cannabinoids) metabolite carboxythc. The commissioner further informed the plaintiff that she had resigned while the investigation regarding the allegations of the THC in her urine specimen was in progress. After receiving notice of her disqualification, the plaintiff requested a hearing as she was entitled to do under section 28 of the administrative hearing procedure. A hearing was held before a hearing officer of the personnel board of the City of Chicago. The personnel board approved the retention of the plaintiff’s name on the eligibility list for police officers. In her complaint, the plaintiff alleged that the police department ignored the findings of the personnel board. The plaintiff concluded that the defendants in essence disciplined her again for conduct which allegedly occurred in 1985 and for which a full evidentiary hearing resulting in her reinstatement on the eligibility list was provided. On appeal, the plaintiff raises two issues. Consistent with her argument in the trial court, she says that she was twice disciplined for the same alleged misconduct. Citing to the case of Messina v. City of Chicago (1986), 145 Ill. App. 3d 549 , 495 N.E.2d 1228 , the plaintiff argues that this action is improper even with respect to probationary employees. I believe it is apparent, as it was to the trial court, that the fact of the plaintiff’s initial resignation was not a disciplinary action. The only disciplinary action in this case occurred when the plaintiff was terminated under the recommendation of the superintendent of police in December of 1988. As the commissioner noted when he informed the plaintiff of her disqualification, she resigned before the investigation in 1985 was completed. The plaintiff next argues that in the factual setting alleged in the complaint, the superintendent of police had no authority to terminate a probationary officer. The plaintiff makes two arguments to support the contention that the superintendent had no authority. First, she alleges that as a matter of statutory construction she was provided with a hearing before the personnel department to challenge the superintendent’s recommendation and was successful in doing so. The plaintiff argues that the provisions allowing for a hearing are meaningless if the candidate can be terminated for the same reason she successfully challenged at the hearing. As authority for her contention, the plaintiff states that it is a fundamental rule of statutory construction that where there are two constructions that may be given to a statute, one of which would make the enactment absurd or illogical while the other would render it reasonable and sensible, the construction which leads to the absurd result must be avoided. Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303 , 527 N.E.2d 1264 . In my estimation the plaintiff offers scant authority for divesting the police superintendent of the ability to remove probationary police officers. There is a legitimate rationale for giving the superintendent broad authority to remove prospective police officers. It is only during the probationary phase of the officer’s training process that certain characteristics which may make the prospective officer unacceptable for appointment will come to light. (See Romanik v. Board of Fire & Police Commissioners (1975), 61 Ill. 2d 422 , 338 N.E.2d 397 .) The probationary period is part of the selection process, and until the prospective officer successfully completes this period of review, he has not reached the status of an appointed police officer. Moreover, in the present case the majority conceded that the plaintiff could have been fired or disqualified as a result of her alleged use of marijuana in 1985. Further, the personnel board acknowledged that its findings “have no precedential value.” The plaintiff also argues that under the policies and customs and practices of the municipality and under the circumstances of this case, the trial court was in error in finding that the superintendent had the authority to terminate her. The plaintiff cites to People ex rel. Ryan v. Civil Service Comm’n (1969), 117 Ill. App. 2d 50 , 253 N.E.2d 913 , in arguing that the superintendent does not have unfettered discretion. The plaintiff cites People ex rel. Ryan for the statement that “[a]n appointing officer has some discretion in appointing persons certified to open positions.” (People ex rel. Ryan, 117 Ill. App. 2d at 57 , 253 N.E.2d at 916 .) That of course is not the holding in the case, and People ex rel. Ryan is distinguishable from the present case for numerous reasons that are not pertinent. Nevertheless, the plaintiff cites to the case to suggest that the superintendent does not have unfettered discretion. However, even the plaintiffs interpretation of People ex rel. Ryan does not support the proposition that the superintendent had no discretion in this case. The rationale for the superintendent’s broad authority over probationary officers, as previously stated, applies to this argument as well. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7024467. Public record. Not legal advice.