Sprague v. City of Marion , 283 Ill. App. 3d 837 ( 1996 )

                             NO.  5-95-0761

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             FIFTH DISTRICT

_________________________________________________________________

THOMAS SPRAGUE,                            )  Appeal from the

                                          )  Circuit Court of

    Plaintiff-Appellee,                   )  Williamson County.

                                          )

v.                                         )  No. 94-CH-44

                                          )

THE CITY OF MARION, THE CITY OF MARION     )

POLICE AND FIRE MERIT BOARD, MARION POLICE )

DEPARTMENT, MAYOR ROBERT BUTLER,           )

COMMISSIONER DAVID HANCOCK, CHAIRMAN )

RON  GREGORY, and POLICE CHIEF RONALD )

SWAFFORD, )  Honorable

                                          )  Ronald Eckiss,

    Defendants-Appellants.                )  Judge, presiding.

_________________________________________________________________

    JUSTICE WELCH delivered the opinion of the court:

    On July 19, 1994, Officer Thomas Sprague, plaintiff, was

suspended for three days without pay by defendant Ron Swafford, the

chief of police for the Marion Police Department.  On that date,

Swafford sent a letter to Sprague informing him of this action.  

    On July 21, 1994, Sprague sent a letter to defendant Ron

Gregory, the chairman of the City of Marion Police and Fire Merit

Commission (Merit Commission).  The letter stated in part, "I wish

to respectfully notify you and the Merit Commission of a formal

contestment to [the suspension]."  Copies of this letter were sent

to Ron Swafford and Commissioner David Hancock.  Sprague considered

this letter to sufficiently notify the board that he was appealing

the suspension and requesting a hearing.  However, neither Gregory

nor Swafford considered this letter to be an appeal or a request

for a hearing.  No further action was thus taken by the Board of

Police and Fire Commissioners concerning Sprague's suspension.

    On September 2, 1994, Sprague's attorney wrote a letter to

Swafford indicating that because no hearing was commenced within 30

days of Sprague's appeal, according to section 10-2.1-17 of the

Illinois Municipal Code (65 ILCS 5/10-2.1-17 (West 1992)), the

suspension was null and void.  

    On September 12, 1994, the City of Marion Police and Fire

Merit Board (Board) scheduled a hearing for September 19, 1994.

Sprague did not attend the hearing on advice of his counsel but

filed a complaint with the circuit court of Williamson County for

a declaratory judgment and injunctive relief, alleging that the

Board no longer had jurisdiction, could no longer assert jurisdic-

tion, and was required to restore Sprague's lost wages and

seniority and remove any reference of this incident from his

personnel file.  A hearing was conducted on September 19, 1994, in

the absence of Sprague.  At the hearing, the Board reviewed the

suspension and sustained the previous decision of the police chief

to suspend Sprague for three days.  

    On May 8, 1995, the circuit court of Williamson County

conducted a bench trial.  The central dispute at trial was whether

the letter sent by Sprague on July 21, 1994, sufficiently requested

a hearing.  On September 27, 1995, the circuit court of Williamson

County found that Sprague's letter was sufficiently clear to be

considered a request for a formal hearing, that the Merit Commis-

sion should have set a hearing upon the receipt of the request, and

that because no hearing was set within 30 days of the request the

Merit Commission lost jurisdiction to review the suspension.  The

court held that the suspension must therefore be vacated.

    Defendants appeal the circuit court's decision, raising the

issue of whether a hearing was required and, if so, whether it was

untimely under the facts of this case.  Both parties agree that

section 10-2.1-17 of the Illinois Municipal Code is the controlling

statute in this case.  In pertinent part, the statute states:

    "Removal or discharge-Investigation of charges-Retire-

    ment.  Except as hereinafter provided, no officer or

    member of the fire or police department of any municipal-

    ity 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.  If

    the chief of the fire department or the chief of the

    police department or both of them are appointed in the

    manner provided by ordinance, they may be removed or

    discharged by the appointing authority.  In such case the

    appointing authority shall file with the corporate

    authorities the reasons for such removal or discharge,

    which removal or discharge shall not become effective

    unless confirmed by a majority vote of the corporate

    authorities.  The board of fire and police commissioners

    shall conduct a fair and impartial hearing of the

    charges, to be commenced within 30 days of the filing

    thereof, which hearing may be continued from time to

    time.  In case an officer or member is found guilty, the

    board may discharge him, or may suspend him not exceeding

    30 days without pay.  The board may suspend any officer

    or member pending the hearing with or without pay, but

    not to exceed 30 days.  If the Board of Fire and Police

    Commissioners determines that the charges are not

    sustained, the officer or member shall be reimbursed for

    all wages withheld, if any.  In the conduct of this

    hearing, each member of the board shall have power to

    administer oaths and affirmations, and the board shall

    have power to secure by its subpoena both the attendance

    and testimony of witnesses and the production of books

    and papers relevant to the hearing.  

                                  * * *

         Nothing in this Section shall be construed to

    prevent the chief of the fire department or the chief of

    the police department from suspending without pay a

    member of his department for a period of not more than 5

    calendar days, but he shall notify the board in writing

    of such suspension.  Any policeman or fireman so suspend-

    ed may appeal to the board of fire and police commission-

    ers for a review of the suspension within 5 calendar days

    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 30 days or dis-

    charge him, depending on the facts presented."  (Emphasis

    added.)  65 ILCS 5/10-2.1-17 (West 1992).

Sprague argues on appeal that this statute entitles him to a

hearing of his suspension which must be conducted within 30 days.

We note, however, that this statute only mentions the opportunity

of a hearing in the context of the first paragraph when discussing

the removal or discharge of an officer, and it does not mention the

opportunity of a hearing in the last paragraph, which deals with

suspensions of less than five days.  Sprague argues that this is a

distinction without a difference and that the statute entitles him

to a hearing within 30 days.  We disagree.

    Although not cited by either party on appeal or in the trial

court, our court's ruling in Scott v. Illinois State Police Merit

Board, 222 Ill. App. 3d 496 (1991), offers some guidance in this

area.  In Scott, the plaintiff, a member of the Department of State

Police, was suspended for three days.  Scott, 222 Ill. App. 3d at

497.  He petitioned the board for a review of this disciplinary

action.  Scott, 222 Ill. App. 3d at 497.  The board conducted a

meeting by teleconference call, discussed the matter, and unani-

mously voted to deny Scott's petition for further review and uphold

the decision to suspend Scott.  Scott, 222 Ill. App. 3d at 498.

Scott appealed, contending that section 13 of the State Police Act

(Ill. Rev. Stat. 1987, ch. 121, par. 307.13) was unconstitutional

in that it denied his constitutional rights to due process and

equal protection because it allowed the board to dismiss his

petition without a hearing.  Scott, 222 Ill. App. 3d at 498.  Our

supreme court had noted that section 13 of the State Police Act

should be considered in pari materia with section 10-2.1-17 of the

Illinois Municipal Code.  Kropel v. Conlisk, 60 Ill. 2d 17, 25

(1975).

    This court then examined section 13 of the State Police Act,

which governs matters relating to the discipline of State police

officers.  Section 13 states in pertinent part: "Any officer so

suspended *** may petition the Board in writing to review the

suspension.  *** The Board may, by unanimous decision, dismiss the

petition if it has determined that there is no substantial basis

for its review of the suspension."  Ill. Rev. Stat. 1987, ch. 121,

par. 307.13.  Scott argued that this provision denied his constitu-

tional rights to due process and equal protection and that other

statutes governing county and municipal law enforcement officers,

including section 10-2.1-17 of the Illinois Municipal Code,

contained due process protections absent from section 13 of the

State Police Act.  Scott, 222 Ill. App. 3d at 499.  This court

found that the statutes cited by Scott did not afford him greater

due process protection, and in fact, this court specifically

stated, "[N]one of the statutes governing Scott's counterparts in

county and municipal law enforcement provide for a hearing on a

suspension of five days or less."  Scott, 222 Ill. App. 3d at 500.

This court went on to hold that Scott was not entitled, either

constitutionally or under the public policy of Illinois, to a

hearing on his three-day suspension.  Scott, 222 Ill. App. 3d at

500.

    In reaching its decision, this court also examined the supreme

court's decision in Wagner v. Kramer, 108 Ill. 2d 413 (1985), which

cited Kropel v. Conlisk, 60 Ill. 2d 17 (1975).  This court noted

that the supreme court has specifically held that all that is

required is "some method of review" for disciplinary suspensions of

30 days or less.  Scott, 222 Ill. App. 3d at 500.  We are aware of

no law or policy which entitles an officer to a hearing for a

three-day suspension, and Sprague cites to none.  In addition,

other cases have held that suspensions for limited periods of up to

30 days without written charges and a hearing are reasonable.

Clark v. Morris, 99 Ill. App. 2d 24 (1968); People ex rel. Blanks

v. Ruddell, 1 Ill. App. 3d 662 (1971).

    On September 12, 1994, the Board granted Officer Sprague a

hearing concerning his suspension.  The Board offered Sprague more

than what he was entitled to, by granting him an opportunity to

attend a hearing.  On September 19, 1994, Sprague chose not to

attend the hearing on the advice of his counsel.  The Board

proceeded to conduct a review of the suspension and subsequently

sustained it.  There were no constitutional rights, statutory

rights, or public policies violated by this procedure.  There is

nothing in the way this procedure was conducted which is contrary

to the provisions of section 10-2.1-17.

    Sprague further contends that the Board was required to

schedule the hearing within 30 days for the Board to retain its

jurisdiction.  However, this again is deduced from the reasoning

that the manner of review granted to those officers removed or

discharged also applies to those officers suspended for five days

or less.  We recognize that when we attempt to ascertain the

meaning of a statute, the statute must be read as a whole and all

relevant parts must be considered.  Fredericks v. Liberty Mutual

Insurance Co., 255 Ill. App. 3d 1029, 1036 (1994).  However,

statutes should not be interpreted so as to render a word or clause

meaningless or superfluous.  Price v. Board of Fire & Police

Commissioners, 139 Ill. App. 3d 333, 338 (1985).  The beginning of

the last paragraph states: "Nothing in this section shall be

construed to prevent the chief *** from suspending without pay a

member of his department for a period of not more than 5 calendar

days ***.  Any policeman or fireman so suspended may appeal to the

board *** for a review of the suspension ***."  65 ILCS 5/10-2.1-17

(West 1992).  This language shows that the legislature intended to

treat a suspension of five days or less different from those situa-

tions involving a removal or discharge.  As noted earlier, there is

nothing in the last paragraph which entitles an officer to a

hearing, and we did not create such right.  Similarly, there is no

mention of a 30-day time limit upon which the board must review an

appeal of a suspension of five days or less, and we shall not

create one.  It is not within the province of the appellate court

to inject provisions not found in the statute.  In re Cook, 122

Ill. App. 3d 1068, 1072 (1984).

    The facts adduced at trial indicate confusion by the Board as

to whether Sprague initially requested an appeal.  Sprague did not

specifically ask for a review but stated that he was notifying the

board of a "contestment", a word currently not found in Webster's

Dictionary.  Gregory testified that many officers would contest

matters, but no formal actions would be taken.  Swafford testified

that after reviewing the letter, along with a booklet on police

disciplinary action, he did not construe the letter to request a

review.  However, upon receipt of a letter by Sprague's attorney

explaining that Sprague's first letter was intended to request an

appeal, the Board took immediate action.  Within approximately two

months after the suspension, the Board conducted a review and

reached its decision to sustain Sprague's suspension.  This review

is not untimely and not violative of the applicable provisions in

section 10-2.1-17 of the Illinois Municipal Code.

    For the foregoing reasons, we reverse the findings of the

circuit court and remand to the court with directions to reinstate

the suspension of the plaintiff.

    Reversed and remanded with directions.

    GOLDENHERSH and KUEHN, JJ., concur.

                                     ATTACH A FRONT SHEET TO EACH CASE

___________________________________________________________________________

                                NO. 5-95-0761

                                    IN THE

                         APPELLATE COURT OF ILLINOIS

                                FIFTH DISTRICT

___________________________________________________________________________

THOMAS SPRAGUE,                           )  Appeal from the

                                         )  Circuit Court of

    Plaintiff-Appellee,                  )  Williamson County.

                                         )

v.                                        )  No. 94-CH-44

                                         )

THE CITY OF MARION, THE CITY OF MARION    )

POLICE AND FIRE MERIT BOARD, MARION POLICE)

DEPARTMENT, MAYOR ROBERT BUTLER,          )

COMMISSIONER DAVID HANCOCK, CHAIRMAN RON  )

GREGORY, and POLICE CHIEF RONALD SWAFFORD,)  Honorable

                                         )  Ronald Eckiss,

    Defendants-Appellants.               )  Judge, presiding.

___________________________________________________________________________

Opinion Filed:                 September 5, 1996

___________________________________________________________________________

Justices:      Honorable Thomas M. Welch, J.

              Honorable Richard P. Goldenhersh, J., and

              Honorable Clyde L. Kuehn, J.,

              Concur

___________________________________________________________________________

Attorneys      Winters, Brewster, Crosby & Patchett, 111 W. Main, P.O. Box

for            700, Marion, IL 62959; Garrison & Garrison, 612 N. Market

Appellants     P.O. Box 1110, Marion, IL  62959

___________________________________________________________________________

Attorney       John R. Roche, Jr., Illinois Fraternal Order of Police Labor

for            Council, 6345 West Joliet Road, Countryside, IL 60525

Appellee       

___________________________________________________________________________