# Romanik v. Board of Fire & Police Commissioners > Illinois Supreme Court · September 26, 1975 · 61 Ill. 2d 422 URL: https://www.frixlaw.com/law-library/cases/9526223 ## Case - **Full name:** ROBERT ROMANIK, Appellee, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF EAST ST. LOUIS, Appellant - **Court:** Illinois Supreme Court - **Decided:** September 26, 1975 - **Citations:** 61 Ill. 2d 422; 338 N.E.2d 397; 1975 Ill. LEXIS 289 - **Precedential status:** Published - **Opinion:** Dissent by Goldenhersh - **Judges:** Schaefer, Goldenhersh - **Cited by:** 29 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/9526223 ## Opinion text MR. JUSTICE GOLDENHERSH, dissenting: I dissent. In my opinion the provisions of section 10 — 2.1—17 of the Municipal Code require that the judgments of the appellate and circuit courts be affirmed. The rationale of the majority opinion appears to be that the power to make rules concerning probationary appointments authorizes the promulgation of a rule which provides for summary discharge. An examination of the authorities demonstrates this to be clearly erroneous. The majority seeks support for its position in People ex rel. Betts v. Village of Maywood, 298 Ill. App. 160 , but its analysis of that case will not withstand scrutiny. Betts involved a rule which provided “All appointments to the Fire Department will be upon probation. If during the first six months of actual service, the person appointed proves in the opinion of the Fire Marshal or Fire and Police Board unfit for the position, he will be dropped from the service.” ( 298 Ill. App. 160, 168 .) Although the majority correctly states that the statute in force in 1936 provided for “regular” and “temporary” appointments it also provided: “No officer or member of the fire or police department of any such city, village or incorporated town, who shall have been such for more than one year prior to the adoption of this Act, by such city, village or incorporated town, or who shall have been appointed under the rules and examination provided for by this Act, shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. *** The term officer or member of the fire or police department of such city, village or incorporated town as used herein shall include all officers and members of the fire and police departments of such cities, villages or incorporated towns who shall have been employed as regular members of such fire or police department for more than one year. Such regular employment for more than one year shall constitute such officers or members city officers.” Ill. Rev. Stat. 1937, ch. 24, par. 854. In contrast section 10 — 2.1—17 provides: “*** no officer or member of the fire or police department of any municipality subject to this division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges.” The terms “officer” and “member of the *** police department” are not defined and no distinction is made between an officer or member of the department serving a probationary period and one who has attained permanent status. Nor does the reference to Fish v. McGann, 205 Ill. 179 , sustain the majority’s position. In 1903, when Fish was decided, section 10 of the Civil Service Act, which provided for appointment of employees on probation also provided: *** At or before the expiration of the period of probation, the head of the department or office, in which a candidate is employed, may, by and with the consent of said commission, discharge him, upon assigning in writing his reason therefor to said commission. If he is not then discharged, his appointment shall be deemed complete.’ ” ( 205 Ill. at 183 .) In contrast, section 12 of the Civil Service Act provided, with respect to employees who had completed their probationary period: “ ‘No officer or employee in the classified civil service of any city, who shall have been appointed under said rules and after said examination, shall be removed or discharged except for cause, upon written charges and after an opportunity to be heard in his own defense. Such charges shall be investigated by or before said civil service commission, or by or before some officer or board appointed by said commission, to conduct such investigation.’ ”205 Ill. at 183. It is obvious that when it intended to do so the General Assembly has provided in explicit terms for the summary discharge of probationary employees. Section 10 of the Civil Service in Parks Act (Ill. Rev. Stat. 1973, ch. 24Vz, par. 88) provides that appointments “shall be on probation for a period of not more than 6 months” and that at any time during the probation period the appointing officer with the approval of the Civil Service Board may discharge the probationary employee. Section 36h of the University Civil Service System Act (Ill. Rev. Stat. 1973, ch. 2414, par. 38b7) also provides for six-month probationary appointments and for discharge during that period if the employer determines that the employee has failed “to demonstrate the ability and the qualifications necessary to furnish satisfactory service.” Similarly division 1 of the Civil Service in Cities Act (Ill. Rev. Stat. 1973, ch. 24, par. 10 — 1—14,) in contrast to division 2.1, involved here, provides that original appointments be for a period not to exceed 6 months and for discharge during the probationary period. Had the General Assembly intended that division 2.1 contain a similar provision it would have so provided. An examination of the relevant rules adopted by the Board of Fire and Police Commissioners of the City of East St. Louis demonstrates further the anomalous result of the majority’s decision. Section 19 of the rule governing appointments provides: “All original appointments to the Police Department under and in accordance with the rules and regulations of the Board of Fire and Police Commissioners shall be for a probationary period of one year.” Plaintiff was discharged after nine months of service. The effect of the majority opinion is to engraft onto division 2.1, which contains no provision for discharge of probationary employees, authority for summary discharge during a longer probationary period than was provided in any of the statutes here cited. On at least one prior occasion this court has performed a statutory excision of impressive proportions (see dissenting opinion in Community Consolidated School District Number 210 v. Mini, 55 Ill.2d 382 ) but even that feat of legal surgery pales into inconsequence when compared to the engraftation here accomplished. On a prior occasion, in considering the validity of a discharge this court recognized that although division 2.1 of article 10 permitted alternate methods of appointment all discharges are governed by the provisions of section 10 — 2.1—17. Bovinette v. City of Mascoutah, 55 Ill.2d 129 , involved the question whether the city manager of Mascoutah, admittedly empowered to appoint the Chief of Police, was authorized to dismiss him. We held that although division 2.1 of article 10 of the Municipal Code authorized appointment by the city manager, the provisions of 10 — 2.1—17 governed discharge. In so doing we said “The language of these sections of the statute is plain and certain and must be given effect by the courts. We cannot read into the statute words which are not within the plain intention of the legislature as determined from the statute itself. (Donahoo v. Board of Education, 413 Ill. 422, 426 ; Smith v. Board of Education, 405 Ill. 143, 148 .) We cannot restrict nor enlarge the plain meaning of an unambiguous statute. People ex rel. Nelson Bros. Storage and Furniture Co. v. Fisher, 373 Ill. 228, 234 .” ( 55 Ill.2d 129 at 133 .) The language of Bovinette is apposite here. In addition to the clearly erroneous interpretation of the statute I call attention to the fact that it is impossible to reconcile the majority opinion with our statements concerning due process in Powell v. Jones, 56 Ill.2d 70 , and Kropel v. Conlisk, 60 Ill.2d 17 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9526223. Public record. Not legal advice.