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
___________________________________________________________________________