dissenting:
I would affirm the appellate court.
I agree with the majority and the appellate court that “section 10 — 2.1—18 [Ill. Rev. Stat. 1975, ch. 24, par. 10 — 2.1—18] is correctly construed to apply to seniority in rank and not in length of service with the department.” (77 Ill. 2d at 274.) However, I disagree with the majority on two points.
First, a reading of section 10 — 2.1—18 indicates rather clearly that reduction in rank cannot be effected without a reduction in force (which did not occur here):
“When the force of the fire department or of the police department is reduced, and positions displaced or abolished, seniority shall prevail and the officers and members so reduced in rank, or removed from the service of the fire department or of the police department shall be considered furloughed without pay.” (Emphasis added.)
The portion of that paragraph which states “and positions displaced or abolished” should be read in the conjunctive, and not in the disjunctive, as the majority impliedly does. The paragraph begins with the essential problem before stating the statutory resolution: “When the force *** is reduced, *** seniority shall prevail ***.” There has been no reduction in force in this case, only a “reduction in rank.” If “reduction in rank” had been intended as a separate ground by the legislature, it would have used the disjunctive conjunction or and not the conjunctive conjunction “and [positions displaced or abolished] ” (emphasis added). The majority has not adequately addressed this issue.
Second, due process entitled the plaintiff to a hearing. There are, of course, “qualitative differences” (77 Ill. 2d at 275) between a discharge for cause and a layoff for purposes of economy and efficiency. (Powell v. Jones (1973), 56 Ill. 2d 70, 80.) Nevertheless, where a party has a property right in a benefit, such as public employment, or, as here, public employment in a particular position, he has a right to a hearing before his termination or “furlough.” In Powell this court stated:
“Given the expansion of due process guarantees to encompass a broad range of interests now classified for due process purposes as ‘property,’ and the specific holdings of Roth and Sindermann, it is apparent that while every public employee does not have a right to continued employment, a public employee can have such a right dependent upon the surrounding circumstances including existing rules and understandings. *** a public employee may be able to show, from surrounding circumstances, that he has a legitimate claim to continued employment, and it is clear that such claim, whether characterized as ‘property’ or otherwise, has now been held to be entitled to due process protection.” (56 Ill. 2d 70, 77.)
Accord, Board of Regents v. Roth (1972), 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709; Perry v. Sindermann (1972), 408 U.S. 561, 33 L. Ed. 2d 570, 92 S. Ct. 2694.
I believe surrounding circumstances, including the statute, establish plaintiff’s claim of entitlement to the position of sergeant, resulting in a property right which should not be denied him without a hearing. Section 10 — 2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 10 — 2.1—17) requires that a hearing be given to a police officer who is to be removed or discharged. This provision evidences that a police officer has a property interest in — an economic benefit is derived from — his employment. The character of his property interest or economic benefit is not changed merely because the purposes or motives for terminating him differ from time to time. Whether the police officer is discharged for cause or laid off for budgetary reasons, his economic benefit, his property interest, remains intact. Hence, I suggest the statute establishes a policeman’s property interest in both his rank and employment, and that property interest may not be ignored by his summary termination. A hearing would also help determine whether a cutback in numbers or reduction in rank was made in good faith, or for other less laudatory reasons.
For these reasons, I dissent from the majority’s opinion, and would affirm the appellate court.