Flynn v. Board of Fire & Police Commissioners

Mr. JUSTICE GEORGE J. MORAN, dissenting:

In my opinion the Board’s violation of its own rules deprived it of jurisdiction to dismiss appellant from his employment.

Article 5 of the “Rules and Regulations of the Board of Fire and Police Commissioners, City of Harrisburg, Illinois” specifies the procedure that is to be followed by the Board in holding hearings on charges that are brought against a police officer. Section 2 of article 5 states:

“Notification of Charges. That Board shall cause notification in writing of such charges to be served personally upon the officer or fireman against whom such charges are lodged or shall send the same registered mail to his address, as shown by the records of the Board, notifying him of the time and place of the hearing on said charges. No such hearing shall be held less than five nor more than ten days after the serving or mailing of the notice.”

Section 3 of article 5 says in part:

“If an officer or fireman is suspended pending hearing, the Board may not, on its own motion, continue the hearing to a date beyond thirty days from the date of suspension.”

Section 6 of article 5 contains the sentence:

“No suspension may be for a period greater than thirty days pending hearing, or for a greater period than 10 days thereafter.”

When the Board held the hearing more than 10 days after the written charges and notice of hearing had been served on the plaintiff (that is, more than 10 days after April 4, 1973), the Board disregarded article 5, section 2, of its rules. That section says that the Board may not hold a hearing on charges against a police officer after 10 days have passed from the giving of notice of the charges to the police officer. Because the plaintiff was first suspended on April 5, 1973, the time of 30 days from the date of his suspension was completed on May 5, 1973, therefore, by continuing the hearing on its own motion past May 5, 1973, the Board violated article 5, section 3, of its rules. The Board disregarded article 5, section 6, of its rules by suspending the plaintiff for more than 30 days before the termination of his hearing. The plaintiff has objected to all these violations of the Board’s rules.

The question is whether the Board’s violation of its own rules deprived it of jurisdiction to hear the charges against the plaintiff, and of authority to dismiss the plaintiff on the basis of the charges. The majority opinion considers only the significance of the Board’s failure to comply with article 5, section 3, of its rules by continuing on its own motion the hearing beyond the end of 30 days from the date on which the plaintiff was first suspended and relies on Brewton v. Civil Service Com., 115 Ill.App.2d 460 , 253 N.E.2d 504 . The majority states that the continuance did not deprive the Board of jurisdiction because the continuance was not prejudicial to the plaintiff.

Brewton involved section 10 — 1—18 of the Municipal Code (Ill. Rev. Stat. 1965, ch. 24, par. 10—1—18) which provides that “no * ' * ” employee in the classified civil service of any municipality * * * shall be removed or discharged, or suspended for a period of more than 30 days, except for cause upon written charges and after an opportunity to be heard in his own defense.” The complaining employee in Breioton argued that the statute means that if a municipality suspends an individual, the local civil service commission must hear the charges against the individual within 30 days of the date of his suspension or else lose jurisdiction to hear the charges. In response to this argument, the appellate court quoted Foreman v. Civil Service Com., 7 Ill.App.2d 122 , 129 N.E.2d 245 , a case in which a similar argument had been made:

“‘The statute, it is true, limits the length of this suspension. There is, however, no express language that charges must be filed, witnesses heard and the report of the Commission disposing of the charges filed within the 30-day period. We conclude that it would be unreasonable to find that it is the statutory intent to impose a fixed period of such short duration within which the Commission must hear and determine a cause or else lose jurisdiction thereof.” 115 Ill.App.2d 460, 464 , 253 N.E.2d 504, 506 .

In contrast with Brewton and Foreman, there is express language in the present case that the Board of Fire and Police Commissioners must hold its hearing within 10 days of giving notice of the charges to the police officer, and that the Board of Fire and Police Commissioners may not continue a hearing on its own motion beyond the end of 30 days from the date on which the police officer is first suspended. Brewton and Foreman are therefore not controlling on the question whether the Board’s disregard of the explicit requirements of its own rules caused it to lose its jurisdiction to hear and to act on the charges. The majority erroneously states that the Breioton court held that the statute prescribed a 30-day period for filing the charges under the statute and that a failure to so file within the designated time was not jurisdictional. This statement is incorrect because the Brewton court did not so hold.

Section 10 — 2.1—5 of the Municipal Code (Ill. Rev. Stat. 1973, ch. 24, 10—2.1—5) commands the Board of Fire and Police Commissioners to adopt rules concerning “the conduct of hearings on charges brought against a member of the police or fire department.” That section allows the Board to change the rales “from time to time” and specifies a procedure which the Board must follow in order to change the rules:

(1) The change must be printed for distribution;

(2) the Board must publish in a local newspaper a notice of the place where a copy of the printed change in the rules may be obtained, and a notice of the date when the change will become effective;

(3) the change in the rules may not become effective until 10 days after the Board’s notice of the change is published.

These formalities which the Board must observe in order to change a rule mean that the Board may not disregard its own rules.

Rules and regulations of administrative agencies have the force of statutes and once having established rules and regulations pursuant to statute, an administrative agency is bound by them and may not violate them. Margolin v. Public Mutual Fire Insurance Co., 4 Ill.App.3d 661 , 281 N.E.2d 728 . See also Crofts v. Board of Education, 105 Ill.App.2d 139 , 245 N.E.2d 87 ; People ex rel. Berquist v. Gregory, 337 Ill.App. 661 , 86 N.E.2d 434 ; Cartan v. Gregory, 329 Ill.App. 307 , 68 N.E.2d 193 ; Chicago v. Bullis, 124 Ill.App. 7 , aff’d, 221 Ill. 379 , 77 N.E. 575 ; Lindblom v. Doherty, 102 Ill.App. 14 ; Ptacek v. People ex rel. Deneen, 94 Ill.App. 571 , aff'd, 194 Ill. 125 , 62 N.E. 530 .

Chicago v. Bullís is especially relevant to the present case. In Bullís a police officer was dismissed by the Civil Service Commission of Chicago for conduct that was improper for a police officer. The Civil Service Commission had adopted a rule which required that a written notice, stating the time and place at which a hearing would be held, be served on an employee against whom charges had been made. The Civil Service Commission had violated its own rule by failing to serve notice on the accused police officer. The police officer appealed from his dismissal and argued that the Civil Service Commission had not had jurisdiction to hear the charges against him because it had disregarded its procedural rule about the giving of notice. The appellate court agreed with the police officer and said that the rule was “as binding as if made directly by the legislature.” ( 124 Ill.App. 7, 17 .) The Supreme Court affirmed at 221 Ill. 379 .

The Rules of the Board of Fire and Police Commissioners of Harrisburg were therefore binding on that administrative agency. Because the Board held its hearing on the charges against the plaintiff at a time when, according to the Board’s own rules, it could not hold the hearing over the objections of plaintiff, the Board lost its jurisdiction to hear the charges against the plaintiff and could not dismiss the plaintiff on the basis of the charges.

The judgment of the circuit court of Saline County upholding the dismissal of the plaintiff from the Harrisburg police force should be reversed.