The opinion
JUSTICE TRAPP, dissenting:
I must conclude that this case is controlled by Burton v. Civil Service Com. (1979), 76 Ill. 2d 522 , 394 N.É.2d 1168, and that this decision must abide the rationale of that opinion.
The gist of Burton is that the statutory power to suspend a public employee as a form of discipline and the power to suspend pending a hearing upon charges are distinct actions which are not compatible or interchangeable. Upon such thesis, it was determined that a “suspension” framed as a disciplinary action cannot later be modified or enhanced even though the form and substance of the “suspension” was framed by error, mistake on the part of the administrative officer, or inadvertence unless there is express statutory authority to do so. The Burton opinion concluded that a suspension for 10 days for a serious violation of the employee’s duty was plainly drafted in error arising from the failure of the administrative officer to understand the terms of the statute and the applicable rules but that nevertheless further disciplinary sanctions upon subsequent charges could not stand.
Burton found three provisions for the “suspension” of an employee. Two provisions authorized suspension in different aspects for a period of 30 days and these were determined to represent final determinations of disciplinary matters. The remaining form of suspension was an interim suspension pending hearing upon charges filed. The court examined a series of written notices served by the administrative officer and concluded:
“A suspension pending decision on discharge may be levied for up to 30 days. Its purpose is to expedite the immediate, but interim, removal of an employee pending a final decision on discharge. The other two forms of suspensions, on the other hand, represent final determinations in a disciplinary matter. The three are distinct disciplinary actions which are not interchangeable. Final disciplinary actions, like other administrative decisions, may be reconsidered, modified or altered only if authorized by statute. [Citations.] The legislature has conferred no such power upon the Department. [Citations.] Consequently, the Department may not convert what is, in all aspects, a final suspension of less than 30 days into an interim suspension pending decision on discharge as a means of enhancing punishment for the same misconduct.” Burton v. Civil Service Com. (1979), 76 Ill. 2d 522, 526-27 , 394 N.E.2d 1168,1170 .
In testimony at the hearing upon charges, the chief of police undertook to testify that the verbal order of suspension was intended to be a suspension pending a hearing upon charges. So far as the record discloses, nothing said suggests that intent, and under the rationale of Burton, an unstated intent or belief of the administrative officer is not a basis for modifying a final,' disciplinary determination. Moreover, several hours after the verbal order, the chief of police procured the drafting and service of a letter form of notice which, in relevant part, stated:
“This is to notify you that in accordance with the powers granted to me under the Illinois Revised Statutes and the rules of the Board of Fire and Police Commissioners of the City of Beardstown, Illinois, I am hereby suspending you for the period of five (5) days.
Such suspension is based on your conduct in that on the 26 day [sic] of April, 1984, at 7:15 PM at ***.”
The letter notice included advice concerning the time and manner in which plaintiff might appeal the order and included the plaintiff’s receipt showing date and time.
One can find no suggestion in such notice that the suspension was intended to be an emergency or interim suspension pending a hearing on charges.
In Green v. Board of Fire & Police Commissioners (1980), 87 Ill. App. 3d 183 , 408 N.E.2d 1187 , the written notice of an “emergency suspension” for a period of five days included a statement that during that period, the chief of police intended to file written charges seeking discharge of the officer. The reviewing court concluded that the advice concerning the filing of charges clearly demonstrated that the suspension was not to be treated as a final determination. We do not have the benefit of that conclusion in this case. To read such an intent into the notice drafted several hours after the event charged, is, in the language of Burton, to “convert *** a final suspension *** into an interim suspension pending decision on discharge as a means of enhancing punishment for the same misconduct.” Burton v. Civil Service Com. (1979), 76 Ill. 2d 522, 527 , 394 N.E.2d 1168 .
The majority opinion undertakes to distinguish the facts of this case from the rule of Burton by noting the statutory language relating to suspension by the chief of police for not less than five days:
“Any policeman or fireman so suspended may appeal to the board of fire and police commissioners for a review of the suspension within 24 hours after such suspension, and upon such appeal, the board may sustain the action of the chief of the department, may reverse it with instructions that the man receive his pay for the period involved, or may suspend the officer for an additional period of not more than thirty days or discharge him, depending upon the facts presented.” HI. Rev. Stat. 1983, ch. 24, par. 10— 2.1-17.
The enhancement of the sanction stated in that language seems clearly and plainly restricted to a proceeding upon an appeal by the employee to the board of the order of the chief which imposed a five-day suspension. It is not contended that this proceeding was heard as such an appeal.
I believe that the precedent established by the supreme court requires that the order of the trial court dismissing the proceeding must be reversed.