Szewczk v. Board of Fire and Police Commissioners , 2011 IL App (2d) 100321 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Szewczyk v. Board of Fire & Police Commissioners, 2011 IL App (2d) 100321
Appellate Court ROGER SZEWCZYK, Plaintiff-Appellee, v. THE BOARD OF FIRE
Caption AND POLICE COMMISSIONERS OF THE VILLAGE OF
RICHMOND, TOM VAN DAELE, KEN WERZEK, and ROBERT
ELIOT, its Commissioners, THE VILLAGE OF RICHMOND, and
KEVIN BRUSEK, Defendant-Appellants.
District & No. Second District
Docket No. 2–10–0321
Filed June 9, 2011
Held Plaintiff was removed from his position as police chief after attaining
(Note: This syllabus pension eligibility by a vote of the local board of fire and police
constitutes no part of the commissioners and the trial court’s reversal of the board’s denial of
opinion of the court but plaintiff’s petition for reinstatement to his prior rank as sergeant was
has been prepared by the itself reversed, since the board’s ruling on plaintiff’s petition was not
Reporter of Decisions for against the manifest weight of the evidence where plaintiff presented no
the convenience of the evidence in support of his petition.
reader.)
Decision Under Appeal from the Circuit Court of McHenry County, No. 09–MR–82; the
Review Hon. Michael T. Caldwell, Judge, presiding.
Judgment Reversed.
Counsel on Appeal from the Circuit Court of McHenry County, No. 09–MR–82; the
Appeal Hon. Michael T. Caldwell, Judge, presiding.
Jennifer J. Gibson, of Zukowski, Rogers, Flood & McArdle, of Crystal
Lake, for appellants.
Thomas F. McGuire and Jolanta A. Zinevich, both of Thomas F.
McGuire & Associates, Ltd., of Long Grove, for appellee
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Bowman concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff, Roger Szewczyk, served as a sergeant in the Village of Richmond (Village)
police department from 1995 to 1999. In 1999, defendant Kevin Brusek, then the Village
president, appointed him police chief. In 2005, Brusek sent plaintiff a letter announcing that
he was “terminated” from office. After voting three times, the five members of the Village
board of trustees voted four to one to end plaintiff’s employment.
¶2 Plaintiff asked the new Village president, Lauri Olson, and the Board of Fire and Police
Commissioners of the Village (Commissioners) and its commissioners, Tom Van Daele,
Kevin Thomas, and Ken Werzek, to reappoint him as police chief. He also submitted a
petition for reinstatement to the rank of sergeant, requesting a hearing before the
Commissioners. Olson and the Commissioners declined the requests. Plaintiff filed a
complaint for mandamus, requesting the circuit court to direct the Commissioners to conduct
a hearing on the petition. The parties filed opposing motions for summary judgment, and the
trial court ruled for plaintiff.
¶3 On appeal in Szewczyk v. Board of Fire & Police Commissioners of Village of Richmond
(Szewczyk I), 381 Ill. App. 3d 159 (2008), the Commissioners framed the issues by
comparing sections 10–2.1–4 and 10–2.1–17 of the Illinois Municipal Code (Municipal
Code) (65 ILCS 5/10–2.1–4, 10–2.1–17 (West 2006)) to section 3.1–35–10 of the Municipal
Code (65 ILCS 5/3.1–35–10 (West 2006)) and ordinance No. 3.01(e) of the Village of
Richmond Code (Village Code) (Richmond Village Code Ordinance No. 3.01(e) (2004)).
Sections 10–2.1–4 and 10–2.1–17 of the Municipal Code govern the removal of a police
chief in particular, and section 3.1–35–10 and ordinance No. 3.01(e) govern the removal of
municipal officers in general. We held that (1) the specific provisions, rather than the general
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provisions, applied to plaintiff’s tenure as police chief, (2) regardless of the difference
between the specific and general provisions, plaintiff was denied procedural due process
under both schemes, and (3) the circuit court correctly granted plaintiff mandamus directing
the Commissioners to hear his petition. Szewczyk I, 381 Ill. App. 3d at 170.
¶4 On remand, the Commissioners who were serving at the time, defendants Van Daele,
Werzek, and Robert Eliot, heard and denied plaintiff’s petition for reinstatement to the rank
of sergeant, and plaintiff sought administrative review in the circuit court. The circuit court
reversed the decision and remanded the matter to the Commissioners, with instructions to
reinstate plaintiff to the police department at the rank of sergeant, retroactive to April 30,
2005.
¶5 The Commissioners now appeal to this court, arguing that (1) plaintiff did not
automatically revert to the position of sergeant upon his discharge as police chief; (2) the
hearing on plaintiff’s petition for reinstatement as sergeant satisfied his right to due process;
and (3) the Commissioners properly denied plaintiff’s petition. We agree with the
Commissioners and reverse the judgment of the circuit court.
¶6 FACTS
¶7 In 1990, the Commissioners appointed plaintiff as a full-time, sworn police officer of the
Village police department. In 1995, plaintiff was appointed to the rank of sergeant. In 1999,
Brusek appointed plaintiff as police chief. At the time of his appointment as police chief,
plaintiff was 49 years old and was not eligible for pension benefits, because he had not yet
reached the eligibility age of 55.
¶8 As of December 31, 2004, plaintiff was a participating employee and a member in good
standing of the Illinois Municipal Retirement Fund (IMRF). Also as of that date, plaintiff
was eligible to retire on partial pension benefits through the IMRF, under section 7–141 of
the Illinois Pension Code (Pension Code) (40 ILCS 5/7–141 (West 2006)). However,
plaintiff was to become eligible for full benefits when he reached his fifty-fifth birthday on
April 29, 2005.
¶9 On March 15, 2005, Brusek sent the Village board of trustees a memorandum that stated,
“[a]s of 10:00 this morning; Chief Roger Szewczyk’s employment with the Village of
Richmond was terminated. There will be an Executive Session tomorrow evening with
further details.” The minutes of the March 16, 2005, executive session indicate that the board
of trustees took no action on the termination.
¶ 10 On March 21, 2005, Brusek sent Karla Thomas, the Village clerk, and Lisa Waggoner,
the Village attorney, a letter explaining that Brusek had attempted to suspend plaintiff on
March 15, but, when plaintiff declared that he could not be suspended, Brusek “fired” him.
Brusek’s letter to Thomas and Waggoner included his reasons for the termination, including
insubordination, failure to investigate and report official misconduct, failure to meet
budgetary goals, failure to exercise management and leadership skills, and inability to work
with other municipal entities.
¶ 11 On March 23, 2005, the board of trustees held a special meeting at which it debated
plaintiff’s termination. Initially, two trustees voted for termination and three voted against
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it. The board of trustees then debated placing plaintiff on administrative leave with pay. Four
trustees voted to place plaintiff on leave until April 6, 2005, and one voted against it.
Following the meeting, Brusek sent plaintiff a letter informing him that he had been placed
on administrative leave, but the letter did not state the duration. Brusek ordered plaintiff to
turn in his badge, his nameplate, and all other equipment that belonged to the Village. Brusek
informed plaintiff that he could not carry a weapon or act as a police officer. Brusek sent a
copy of the letter to the Commissioners, the board of trustees, and Waggoner.
¶ 12 On April 6, 2005, the board of trustees held a regular meeting. At Brusek’s invitation,
Village president-elect Olson joined the executive session, at which plaintiff’s status was
discussed further. Four of the five trustees voted to terminate plaintiff, effective April 30,
2005, one day after his fifty-fifth birthday.
¶ 13 On April 30, 2005, Brusek sent plaintiff a letter informing him of the termination. Brusek
sent copies of the letter to the Commissioners, the board of trustees, and Waggoner. The
letter provided as follows:
“You have been on paid Administrative Leave through April 30, 2005, and received
all benefits through this date. As of April 30th you are separated from employment with
the Village of Richmond and you are free to take your retirement. Enclosed you will find
a check for your unused vacation and sick days. Also enclosed is a copy of the COBRA
plan for medical insurance.”
¶ 14 On May 4, 2005, Olson assumed office as Village president. On May 11, 2005, plaintiff’s
counsel sent the Commissioners a petition for reinstatement to his previous rank of sergeant,
requesting a hearing, and, the next day, counsel sent the petition to Olson.
¶ 15 At no time did either Brusek or the board of trustees ask plaintiff to appear or otherwise
answer the allegations that were the basis for his termination. Plaintiff asked to appear before
the board of trustees, but the request was denied. Besides filing the petition for reinstatement
to his previous rank, plaintiff did not ask to appear before the Commissioners to answer the
allegations, and they did not ask him to do so.
¶ 16 Plaintiff sought and obtained from the circuit court a writ of mandamus to compel the
Commissioners to grant him a hearing on his petition for reinstatement to the rank of
sergeant. The Commissioners appealed, and, after discussing the relevant statutory
framework for removing or discharging a police chief, we remanded the cause to the
Commissioners to hear plaintiff’s petition for reinstatement to the rank of sergeant. Szewczyk
I, 381 Ill. App. 3d at 170.
¶ 17 On remand, the Commissioners heard and denied plaintiff’s petition for reinstatement
to the rank of sergeant. The hearing was limited to argument, as plaintiff only introduced
Szewczyk I as evidence supporting his petition. After recapitulating the procedural history of
the case, the Commissioners found that all parties were given an opportunity to be heard and
present whatever evidence they had in support of or opposition to plaintiff’s reinstatement.
The Commissioners held that, pursuant to section 10–2.1–4 of the Municipal Code, “the
Village of Richmond was without any legal obligation to reinstate [plaintiff] to the rank of
sergeant after his employment with the Village was terminated on April 30, 2005. There is
no legal requirement either statutory or otherwise that the [Village] rehire [plaintiff] as a
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sworn officer of its police department.”
¶ 18 Plaintiff sought administrative review in the circuit court, which reversed the
Commissioners’ decision. The court found that plaintiff had been denied due process on
remand in that the Village had not filed formal charges, plaintiff was not given notice of any
charges, and the Commissioners failed to conduct a meaningful hearing to determine whether
cause existed to terminate plaintiff’s employment. The court remanded the matter to the
Commissioners with instructions to reinstate plaintiff to the police department at the rank of
sergeant, retroactive to April 30, 2005. The Commissioners filed a timely notice of appeal.
¶ 19 ANALYSIS
¶ 20 This is the second appeal addressing how plaintiff’s discharge as police chief affects his
potential reinstatement to the Village police department at his previous rank of sergeant. The
issue is presented in the procedural context of the Commissioners’ appeal from the circuit
court’s order granting plaintiff relief on his complaint for administrative review. In an appeal
from an administrative agency’s decision, this court reviews the agency’s determination, not
that of the circuit court. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497,
531 (2006). In all administrative proceedings, the plaintiff bears the burden of proof.
Marconi, 225 Ill. 2d at 532-33. Based upon the question presented, this court reviews agency
determinations under three distinct standards of review. First, the agency’s interpretation of
a statute or administrative rule is a question of law, which receives de novo review. Marconi,
225 Ill. 2d at 532. Second, the agency’s factual determinations will be upheld unless they are
against the manifest weight of the evidence. Kouzoukas v. Retirement Board of the
Policemen’s Annuity & Benefit Fund, 234 Ill. 2d 446, 465 (2009). A factual finding is against
the manifest weight of the evidence where the opposite conclusion is clearly apparent.
Peacock v. Board of Trustees of the Police Pension Fund, 395 Ill. App. 3d 644, 652 (2009).
Third, this court reviews mixed questions of fact and law under the “clearly erroneous”
standard. McKee v. Board of Trustees of the Champaign Police Pension Fund, 367 Ill. App.
3d 538, 543 (2006). An administrative agency’s decision is clearly erroneous where the
reviewing court comes to the definite and firm conclusion that the agency has committed an
error. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 211
(2008). The “clearly erroneous” standard provides some deference based upon the agency’s
experience a n d ex p ertise, falling between de novo review and
manifest-weight-of-the-evidence review. McKee, 367 Ill. App. 3d at 543.
¶ 21 In Szewczyk I, we determined that sections 10–2.1–4 and 10–2.1–17 of the Municipal
Code (65 ILCS 5/10–2.1–4, 10–2.1–17 (West 2006)) govern plaintiff’s discharge as police
chief. The primary rule of statutory construction is to ascertain and give effect to the intent
of the legislature. In re Marriage of Rogers, 213 Ill. 2d 129, 136 (2004). The plain language
of the statute is the best indicator of the legislature’s intent, and, when that language is clear,
its meaning will be given effect without resort to other tools of interpretation. Metzger v.
DaRosa, 209 Ill. 2d 30, 34-35 (2004).
¶ 22 The parties do not dispute the procedural history and the events that culminated in
plaintiff’s discharge. Whether plaintiff automatically reverted to his previous rank of sergeant
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after being discharged is a question of law, which we review de novo. However, if plaintiff
did not automatically revert to the rank of sergeant as a matter of law, the Commissioners’
decision to deny his petition for reinstatement would be reviewed under the manifest-weight-
of-the-evidence standard because his suitability to return to the police department is a
question of fact.
¶ 23 A. Appointment to Office
¶ 24 The statutes and ordinances that authorized plaintiff’s appointment as police chief
illustrate the procedure for his discharge and his potential restoration to his previous rank.
The Village Code was harmonized with the Municipal Code to authorize Brusek, as the
Village president, to appoint plaintiff as police chief.
¶ 25 The Municipal Code provides that a village president, by and with the advice and consent
of the board of trustees, may appoint “officers necessary to carry into effect the powers
conferred upon municipalities.” 65 ILCS 5/3.1–30–5(a) (West 2006). While section
3.1–30–5(a) does not expressly prescribe the appointment of a police chief, there is no
dispute that a police chief qualifies as a necessary officer whom a village president may
appoint. Szewczyk I, 381 Ill. App. 3d at 165.
¶ 26 Section 3.1–30–5(a) applies to municipal officers generally, but section 10–2.1–4 of the
Municipal Code expressly addresses the appointment of a police chief. Section 10–2.1–4
provides in part that “[t]he board of fire and police commissioners shall appoint all officers
and members of the fire and police departments of the municipality, including the chief of
police and the chief of the fire department, unless the council or board of trustees shall by
ordinance as to them otherwise provide; except as otherwise provided in this Section, and
except that in any municipality which adopts or has adopted this Division 2.1 and also adopts
or has adopted Article 5 of this Code, the chief of police and the chief of the fire department
shall be appointed by the municipal manager, if it is provided by ordinance in such
municipality that such chiefs, or either of them, shall not be appointed by the board of fire
and police commissioners.” 65 ILCS 5/10–2.1–4 (West 2006).
¶ 27 In this case, the Village enacted ordinance No. 3.13(B) to establish that the village
president, rather than the Commissioners, has the authority to appoint the police chief.
Ordinance No. 3.13(B) provides in part that “[t]he Chief of Police shall be appointed by the
Village President with the advice and consent of the Board of Trustees on such terms and
conditions as they may fix by ordinance, resolution or written agreement with such person.”
Richmond Village Code Ordinance No. 3.13(B) (2004).
¶ 28 Here, there is no dispute that Brusek adhered to the Municipal Code and the Village
ordinances in appointing plaintiff as police chief in 1999. However, the parties disagree on
how the removal provisions affect plaintiff’s potential return to the police department.
¶ 29 B. Removal From Office and Restoration to Previous Rank
¶ 30 Sections 10–2.1–4 and 10–2.1–17 of the Municipal Code govern the removal of a police
chief specifically, and section 3.1–35–10 and ordinance No. 3.01(e) govern the removal of
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municipal officers generally. In Szewczyk I, we concluded that the two schemes conflict in
the way the vote of the board of trustees affected the discharge. Szewczyk I, 381 Ill. App. 3d
at 165. Because specific provisions control over more general provisions in the interpretation
of legislative intent (Knolls Condominium Ass’n v. Harms, 202 Ill. 2d 450, 459 (2002)), we
concluded that sections 10–2.1–4 and 10–2.1–17 apply. Szewczyk I, 381 Ill. App. 3d at 165.
Regardless of the conflict, we concluded that Brusek, the board of trustees, and the
Commissioners deprived plaintiff of due process by failing to adhere to either scheme.
Szewczyk I, 381 Ill. App. 3d at 166.
¶ 31 1. Section 10–2.1–4 of the Municipal Code
¶ 32 Sections 10–2.1–4 and 10–2.1–17 of the Municipal Code are similar in prescribing a
procedure for removing a police chief. The application of the statutes to these facts is best
understood by parsing the provisions, which the General Assembly set forth as a list.
¶ 33 The first relevant portion of section 10–2.1–4 provides that “[i]f 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.” 65 ILCS 5/10–2.1–4 (West 2006).
Under this straightforward provision, Brusek, the appointing authority, was authorized to
discharge plaintiff as police chief. Brusek, as required, filed with the board of trustees the
reasons for the discharge, and the discharge did not become effective until confirmed by the
trustees’ majority vote.
¶ 34 Section 10–2.1–4 next states that “[i]f a member of the department is appointed chief of
police or chief of the fire department prior to being eligible to retire on pension, he shall be
considered as on furlough from the rank he held immediately prior to his appointment as
chief.” 65 ILCS 5/10–2.1–4 (West 2006). The Commissioners correctly concede that plaintiff
was on furlough from the rank of sergeant during his tenure as police chief because (1)
plaintiff was a member of the department at the time of the appointment (i.e., he was
promoted from within) and (2) the appointment occurred before plaintiff had attained
eligibility to retire on pension.
¶ 35 Section 10–2.1–4 goes on to provide that “[i]f he resigns as chief or is discharged as chief
prior to attaining eligibility to retire on pension, he shall revert to and be established in
whatever rank he currently holds, except for previously appointed positions, and thereafter
be entitled to all the benefits and emoluments of that rank, without regard as to whether a
vacancy then exists in that rank.” 65 ILCS 5/10–2.1–4 (West 2006). Determining whether
the discharge caused plaintiff to revert automatically to the rank of sergeant turns on two
questions: (1) when did plaintiff attain eligibility to retire on pension and (2) when was
plaintiff discharged.
¶ 36 If plaintiff was discharged before attaining eligibility to retire on pension, he “shall
revert” to his previous rank of sergeant and “thereafter be entitled to all the benefits and
emoluments of that rank, without regard as to whether a vacancy then exists in that rank.”
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65 ILCS 5/10–2.1–4 (West 2006). However, if plaintiff was discharged after attaining
eligibility to retire on pension, section 10–2.1–4 is silent on his potential reversion to his
previous rank. Section 10–2.1–4 does not specify whether a discharged police chief shall
revert, shall not revert, or may revert to his previous rank if he is discharged after attaining
pension eligibility, and the absence of mandatory language suggests that the Commissioners
have discretion in deciding whether to reinstate such an officer.
¶ 37 a. Eligibility to Retire on Pension
¶ 38 The parties dispute whether plaintiff was “discharged as chief prior to attaining eligibility
to retire on pension.” 65 ILCS 5/10–2.1–4 (West 2006). Plaintiff asserts that he was
discharged before attaining eligibility to retire on pension and therefore is entitled to revert
to the rank of sergeant because, even assuming that he was effectively terminated on April
30, 2005, the termination occurred (1) before he attained eligibility to receive his maximum
pension benefit at age 60 or (2) before he reached age 65, which is the age for mandatory
retirement under section 10–2.1–17. See 65 ILCS 5/10–2.1–17 (West 2006) (“The age for
retirement of policemen or firemen in the service of any municipality which adopts this
Division 2.1 is 65 years, unless the Council or Board of Trustees shall by ordinance provide
for an earlier retirement age of not less than 60 years.”).
¶ 39 Plaintiff equates “attaining eligibility to retire on pension” in section 10–2.1–4 with
reaching the “age for retirement” in section 10–2.1–17, but his position is flawed because the
phrases are not synonymous. The plain and ordinary meaning of the statutes supports the
Commissioners’ interpretation that “attaining eligibility to retire on pension” means being
eligible to receive any pension upon retirement, not attaining eligibility to receive the
maximum benefit at age 60 or reaching the mandatory retirement age of 65. Therefore, we
conclude that plaintiff “attained eligibility to retire on pension” on April 29, 2005, when he
turned 55 and became eligible to receive a monthly benefit of $948.
¶ 40 Plaintiff alternatively asserts that he never attained eligibility to retire on pension under
section 10–2.1–4, because he never applied for pension benefits. Plaintiff argues that
attaining pension eligibility does not occur until the IMRF confirms the eligibility after the
employee files an application. We disagree. “[W]here a statute is clear and unambiguous,
courts cannot read into the statute limitations, exceptions, or other conditions not expressed
by the legislature,” and courts “should evaluate a statutory provision as a whole rather than
reading phrases in isolation.” People v. Glisson, 202 Ill. 2d 499, 505 (2002). Plaintiff reads
into section 10–2.1–4 a condition not specified by the General Assembly. The plain and
ordinary meaning of the statute does not show that the General Assembly intended for either
a pension application by a former chief or a pension eligibility determination by the IMRF
to dictate whether a discharged police chief reverts to a previous rank. Moreover, allowing
a discharged police chief to control his eligibility to retire on pension by delaying the filing
of an application with the IMRF would subvert the automatic reversion provision of section
10–2.1–4. The General Assembly did not intend such a result.
¶ 41 b. Effective Date of Discharge
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¶ 42 Determining the effective date of plaintiff’s discharge is a thornier issue, considering the
drawn-out termination process. On March 15, 2005, Brusek informed the board of trustees
that “[a]s of 10:00 this morning; Chief Roger Szewczyk’s employment with the Village of
Richmond was terminated.” On March 21, 2005, Brusek informed Thomas and Waggoner
that he “fired” plaintiff on March 15 after a confrontation, and Brusek alleged several
examples of inadequate job performance.
¶ 43 On March 23, 2005, by a four-to-one vote, the board of trustees placed plaintiff on
administrative leave until April 6, 2005. Brusek ordered plaintiff to turn in equipment
belonging to the Village and informed plaintiff that he could not carry a weapon or act as a
police officer. On April 6, 2005, by a four-to-one vote, the board of trustees confirmed the
termination of plaintiff’s employment, but they specified April 30, 2005, as the effective date
of the termination.
¶ 44 On April 29, 2005, plaintiff turned 55 years old, which we have determined rendered him
eligible to retire on pension for purposes of section 10–2.1–4. On April 30, 2005, Brusek sent
plaintiff written notification that he had been “separated from employment” with the Village
and was free to take his retirement, effective that day. On May 4, 2005, Olson assumed office
as Village president.
¶ 45 In this appeal, the Commissioners base their arguments on the assumption that the
effective date of plaintiff’s discharge was April 30, 2005, as voted by the board of trustees
at the April 6, 2005, meeting. Plaintiff argues that the discharge occurred (1) on March 15,
2005, the date Brusek told plaintiff he was “fired” or (2) on April 6, 2005, the date the board
of trustees actually voted to confirm the discharge. Both events occurred before plaintiff
turned 55 and attained eligibility to retire on pension.
¶ 46 Plaintiff’s discharge could not have been effective at any time before the board of trustees
held their vote, because the “discharge shall not become effective unless confirmed by a
majority vote of the corporate authorities.” 65 ILCS 5/10–2.1–4 (West 2006). Thus, we reject
plaintiff’s argument that he was discharged on March 15, 2005, or any other date before the
board of trustees voted.
¶ 47 While the board of trustees voted on April 6, 2005, to confirm the discharge, they
provided for plaintiff to continue receiving full pay and benefits until April 30, 2005. We
reject plaintiff’s position that the effective date of discharge was the date of the vote. The
timing of such a vote is a matter within the trustees’ discretion. Thus, the trustees could
effect plaintiff’s discharge on April 30, 2005, in two ways: (1) schedule the vote for April
30 or, (2) at an earlier date, specify April 30 as the prospective date of the discharge. The
trustees happened to choose the latter. We conclude that, because specifying a prospective
date of discharge is no different from delaying the vote itself, both are matters within the
trustees’ discretion.
¶ 48 We acknowledge that delaying the effective date of discharge until after plaintiff attained
eligibility to retire on pension was a transparent attempt to circumvent the automatic
reversion provision of section 10–2.1–4. Preventing plaintiff’s automatic reversion to the
rank of sergeant denied plaintiff “all the benefits and emoluments of that rank, without regard
as to whether a vacancy then exists in that rank.” 65 ILCS 5/10–2.1–4 (West 2006). Plaintiff
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argues that the tactic denied him due process, but the assertion is unpersuasive. Plaintiff
could have invoked the reversion provision himself by resigning as chief before attaining
eligibility to retire on pension on his fifty-fifth birthday.
¶ 49 While plaintiff suggests that his discharge was somehow incomplete or flawed, we note
that his tenure as police chief ended at the very latest when Olson assumed office as the new
Village president. See 65 ILCS 5/3.1–30–5(c) (West 2006) (an appointed municipal officer’s
term, except as otherwise expressly provided in the Municipal Code, shall not exceed that
of the mayor or president of the municipality).
¶ 50 In any event, we conclude that plaintiff was discharged after attaining eligibility to retire
on pension, because (1) he attained eligibility to retire on pension on April 29, 2005, and (2)
the effective date of discharge was April 30, 2005. See 65 ILCS 5/10–2.1–4 (West 2006).
Therefore, the automatic reversion provision of section 10–2.1–4 did not require that plaintiff
revert to the rank of sergeant upon his discharge as police chief.
¶ 51 2. Section 10–2.1–17 of the Municipal Code
¶ 52 Section 10–2.1–17 sets forth a procedure for discharging rank-and-file officers and police
chiefs. The statute provides that “[e]xcept as hereinafter provided, 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.” 65 ILCS 5/10–2.1–17 (West 2006). This introductory provision
places on the Village the burden of serving written charges on the officer and showing cause
to discharge.
¶ 53 Section 10–2.1–17 also addresses the discharge of a police chief specifically: “[i]f 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.” 65 ILCS
5/10–2.1–17 (West 2006). This provision is consistent with section 10–2.1–4. Brusek
appointed plaintiff as police chief by ordinance, and therefore he was authorized to discharge
plaintiff upon filing with the board of trustees the reasons for the discharge. The discharge
did not become effective unless confirmed by a majority vote of the board of trustees, which
we have determined occurred as of April 30, 2005.
¶ 54 The Commissioners argue that, when the board of trustees confirmed Brusek’s decision,
plaintiff’s termination was complete on April 30, 2005, and that he was entitled to no further
hearing. However, after prescribing a procedure for the appointing authority to discharge the
police chief, section 10–2.1–17 goes on to state, “[t]he 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
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Commissioners determines that the charges are not sustained, the officer or member shall be
reimbursed for all wages withheld, if any.” 65 ILCS 5/10–2.1–17 (West 2006). This
provision, which mandates a hearing of the charges before the Commissioners, appears to
be at odds with the provision authorizing the appointing authority to discharge a police chief
upon a majority vote of the corporate authorities. Thus, section 10–2.1–17 contains separate
termination provisions involving (1) the village president and corporate authorities and (2)
the Commissioners. However, the statute does not state whether a village president’s
termination of a police chief requires confirmation by both the corporate authorities and the
Commissioners.
¶ 55 The provision involving the village president and the corporate authorities mentions
police chiefs specifically and speaks in terms of “reasons” for the discharge. See 65 ILCS
5/10–2.1–17 (West 2006) (“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.”). In contrast, the provision involving the Commissioners mentions
officers and members of the force generally and speaks in terms of “charges” that are the
basis for discharge. 65 ILCS 5/10–2.1–17 (West 2006) (“[N]o officer or member of the fire
or police department *** 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 ***.”).
Because specific provisions control over more general provisions in the interpretation of
legislative intent (Knolls, 202 Ill. 2d at 459), we conclude that the only reasonable
interpretation of section 10–2.1–17 is that (1) the village president and corporate authorities
discharge a police chief who is appointed by ordinance and (2) the Commissioners discharge
rank-and-file police officers.
¶ 56 Our interpretation of section 10–2.1–17 is consistent with the automatic reversion
provision of section 10–2.1–4. The right of a discharged police chief to revert to his previous
rank would be rendered meaningless if all fired police chiefs, regardless of their eligibility
to retire on pension, were entitled to full hearings of charges before the Commissioners. See
Dow Chemical Co. v. Department of Revenue, 224 Ill. App. 3d 263, 266 (1991) (in
interpreting a statute, “each part of a statute [is read] in light of every other provision, [so
that] the entire statute [is] construed to produce a harmonious whole”).
¶ 57 The right to a hearing before the Commissioners where the Village proves the charges
and the chief is given an opportunity to present a defense (65 ILCS 5/10–2.1–17 (West
2006)) is among the benefits and emoluments of plaintiff’s previous rank of sergeant. See
65 ILCS 5/10–2.1–4 (West 2006). However, we have determined that plaintiff did not revert
to the rank of sergeant upon his discharge as police chief because he had attained eligibility
to retire on pension. If section 10–2.1–17 automatically entitled plaintiff to a hearing for the
Commissioners to determine whether he was discharged properly, regardless of whether he
had attained eligibility to retire on pension, the reversion provision of section 10–2.1–4
would be rendered superfluous. To avoid this result, we hold that plaintiff’s discharge was
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complete upon the effective date of the board of trustees’ majority vote to confirm his
discharge.
¶ 58 Accordingly, we reject plaintiff’s interpretation of section 10–2.1–17 that, when an
appointing authority discharges a police chief, the discharge does not become effective until
(1) the corporate authorities by a majority vote confirm the discharge and (2) the village
serves the police chief with written charges and proves at a hearing before the
Commissioners that cause exists for terminating the chief’s employment. We hold that the
additional action by the Commissioners is not necessary to make the discharge effective
where the chief is fired after attaining eligibility to retire on pension. To the extent that our
holding might appear inconsistent with Szewczyk I, we take this opportunity to clarify
Szewczyk I.
¶ 59 C. Hearing Before the Commissioners
¶ 60 Although plaintiff does not seek reinstatement to the office of police chief, he denies that
cause exists to bar his reinstatement as sergeant. Plaintiff echoes the circuit court’s
conclusion that section 10–2.1–4 of the Municipal Code did not compel his retirement or
prohibit his reinstatement as sergeant, even if he was discharged after attaining pension
eligibility. Relying on Szewczyk I, plaintiff argues that the Village had the burden of filing
formal charges and proving at the hearing before the Commissioners that cause exists to bar
his reinstatement. The Commissioners respond that neither section 10–2.1–4 nor section
10–2.1–17 required them to reinstate plaintiff to the rank of sergeant, and therefore they had
discretion to deny plaintiff’s petition for reinstatement. The Commissioners argue that
plaintiff had the burden of proof on his petition.
¶ 61 As discussed, section 10–2.1–4 is silent on a police chief’s potential reversion to his
previous rank if he is discharged after attaining eligibility to retire on pension, as plaintiff
was in this case. The public, the bar, and the judiciary would benefit from the General
Assembly revisiting sections 10–2.1–4 and 10–2.1–17 to address the status of a police chief
who has been discharged after attaining eligibility to retire on pension.
¶ 62 Nevertheless, we conclude that plaintiff had the burden of proof on his petition for
reinstatement. Plaintiff was discharged as police chief after attaining eligibility to retire on
pension. The timing of the discharge means that plaintiff did not automatically revert to the
rank of sergeant such that he no longer was a member of the police department at all. As
plaintiff was a former member of the police department, section 10–2.1–17 did not entitle
plaintiff to a hearing before the Commissioners where the Village would be required to show
cause for the termination of his employment and allow him to present a defense. The Village
did not trigger the proceeding before the Commissioners by firing plaintiff; instead, plaintiff
initiated the proceeding by filing his petition for reinstatement. In all administrative
proceedings, the plaintiff bears the burden of proof. Marconi, 225 Ill. 2d at 532-33. Because
plaintiff initiated the hearing, he had the burden of proving that the police department should
hire him back to the force.
¶ 63 We wish to further clarify Szewczyk I, where we summarized our holding as follows:
“In conclusion, we hold that plaintiff was removed from the office of police chief and
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that his employment with the Village ended entirely when the board of trustees voted
four to one to ‘confirm the removal of the Police Chief, effective April 30, 2005.’ See
65 ILCS 5/10–2.1–4, 10–2.1–17 (West 2006). Following the confirmation of the
removal, plaintiff was denied procedural due process because the Commissioners failed
to ‘conduct a fair and impartial hearing of the charges.’ See 65 ILCS 5/10–2.1–17 (West
2006). Because he was denied procedural due process, the trial court correctly granted
plaintiff mandamus, directing the Commissioners to hear his petition. By labeling the
document ‘Petition of Roger Szewczyk For Hearing As To Reinstatement To His Rank
Of Sergeant,’ plaintiff indicates that he does not seek restoration to the office of police
chief. Thus, the hearing before the Commissioners may be limited to the issue of whether
the Village police department should rehire him and grant him the rank of sergeant.”
Szewczyk I, 381 Ill. App. 3d at 170-71.
¶ 64 Reviewing Szewczyk I in its entirety shows that we remanded the cause for a hearing
before the Commissioners to determine whether plaintiff should be hired back as a sergeant.
We did not intend to direct the Commissioners to consider on remand whether cause existed
for plaintiff’s discharge or whether he should be reinstated as police chief.
¶ 65 Moreover, we conclude that the Commissioners afforded plaintiff a fair hearing on his
petition for reinstatement and that plaintiff failed to prove that he should be hired back as a
sergeant. Plaintiff was allowed to present his petition, and in Szewczyk I we stated that the
hearing could be limited to plaintiff’s petition for reinstatement. Plaintiff suggests that his
discharge was not effective because his hearing before the Commissioners was defective, but
that argument lacks merit because he would have been discharged automatically upon Olson
taking office as the new Village president. At the hearing, plaintiff introduced no evidence
that the Commissioners should be compelled to reinstate him or that any of the allegations
against him were false.
¶ 66 CONCLUSION
¶ 67 We conclude that plaintiff was discharged after attaining eligibility to retire on pension
but that section 10–2.1–4 provides no guidance on his potential reversion to his previous
rank. Section 10–2.1–4 does not specify whether a discharged police chief shall revert, shall
not revert, or may revert to his previous rank if he is discharged after attaining pension
eligibility. Moreover, section 10–2.1–17 does not explicitly state whether a police chief, once
effectively removed by the corporate authorities, still is entitled to a hearing before the
Commissioners where formal written charges are filed and proved by the village.
¶ 68 However, the only reasonable interpretation of sections 10–2.1–4 and 10–2.1–17 is that
(1) the village president and corporate authorities discharge a police chief who is appointed
by ordinance and (2) the Commissioners discharge rank-and-file police officers. Because
sections 10–2.1–4 and 10–2.1–17 did not mandate plaintiff’s reversion to the rank of
sergeant, he was not “entitled to all the benefits and emoluments of that rank” (65 ILCS
5/10–2.1–4 (West 2006)), including notice of written charges from the Village and a hearing
before the Commissioners where he may present a defense and the Village must prove that
cause for termination exists (see 65 ILCS 5/10–2.1–17 (West 2006)). Considering that
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plaintiff presented no evidence at the hearing on his petition for reinstatement to the rank of
sergeant, we further conclude that the Commissioners’ denial of the petition was not against
the manifest weight of the evidence. We reverse the judgment of the circuit court,
accordingly.
¶ 69 For the preceding reasons, the judgment of the circuit court of McHenry County is
reversed.
¶ 70 Reversed.
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