Stover v. Board of Fire & Police Commissioners ( 1997 )

JUSTICE CHAPMAN,

dissenting:

Merit. The ability to perform. Good character. These are the qualities of employees that article 10, division 2.1, Board of Fire and Police Commissioners, of the Illinois Municipal Code is intended to guarantee. Mueller v. Board of Fire & Police Commissioners, 267 Ill. App. 3d 726, 732, 643 N.E.2d 255, 260 (1994). The statutory scheme is intended to guarantee access to eligibility for employment based on a fair consideration of the applicant’s qualifications. See Peoria Police Sergeants v. City of Peoria Board of Fire & Police Commissioners, 215 Ill. App. 3d 278, 574 N.E.2d 1240 (1991). Freezing the list of eligible applicants at the time a vacancy occurs is inconsistent with the statutory objectives of hiring, promoting, and retaining quality applicants.

Section 10—2.1—14 of the Illinois Municipal Code provides:

"The board of fire and police commissioners shall prepare and keep a register of persons *** otherwise eligible. These persons shall take rank upon the register as candidates in the order of their relative excellence as determined by examination, without reference to priority of time of examination.” (Emphasis added.) 65 ILCS 5/10—2.1—14 (West 1994).

I agree with the majority that a board is empowered to keep an ongoing promotional eligibility roster. However, I cannot agree that the phrase, "without reference to priority of time of examination,” mandates that the list of eligibles be frozen at the time a vacancy occurs. In fact, it suggests just the opposite. The timing of an applicant’s examination is not the deciding factor; it is a nonfactor. The ranking of the applicants is to be made based on their relative excellence without regard to when they took the exam. Why then should an arbitrary cutoff time become the most important factor in determining eligibility? In my judgment, it should not.

In construing a statute so as to give effect to the intention of the legislature, a court will read the provisions of the statute as a whole in conformity with its dominating general purpose and in accordance with its practical application. Balmes v. Hiab-Foco, A.B., 105 Ill. App. 3d 572, 574, 434 N.E.2d 482, 484 (1982). In doing so, a court will avoid a construction that results in absurdity, inconvenience, or injustice. Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 363, 489 N.E.2d 1374, 1379 (1986). The Municipal Code does not state that the eligibility list must be frozen at the time a vacancy occurs. As a practical matter, why would it be frozen, for to do so prevents those employees who learned of the availability of the position only when the vacancy occurred from ever applying.

In examining division 2.1 as a whole, it is obvious that the legislature intended that the Board promulgate rules to provide for the orderly appointment and promotion of employees based on public, competitive, qualifying examinations and for the removal of such employees only for cause. Mueller v. Board of Fire & Police Commissioners, 267 Ill. App. 3d 726, 731-32, 643 N.E.2d 255, 260 (1994); 65 ILCS 5/10—2.1—6 (West 1994). In view of the important statutory objectives of hiring, promoting, and retaining applicants on the basis of ability and merit, I cannot fathom a system that would arbitrarily freeze the list of eligibles at the time a vacancy occurs. In this case there is no indication that the appointment from lieutenant to captain was an emergency. The entire procedure from examination to appointment was accomplished fairly quickly. Although administrative efficiency might suggest that there should be some point in time when the list of eligible applicants is frozen, it seems arbitrary and unfair to potential candidates to freeze the list when a vacancy is created. In order to do justice to potential candidates and, more importantly, to recruit from the widest pool of the most qualified candidates for the benefit of the community, eligible candidates should be permitted to apply beyond the date a vacancy occurs, which, as I have indicated, may be when most prospective applicants learn of the availability of the position.

Finally, my research has not revealed any case discussing the issue at bar. Contrary to the majority’s declaration, Hammer v. City of Peoria Board of Fire & Police Commissioners, 196 Ill. App. 3d 306, 553 N.E.2d 744 (1990), does not support the majority’s position. I believe the legislature’s intent is clearly evident, and I would reverse the decision of the trial court.