Barrows v. City of North Chicago

• Decision Date: 17 October 1975
• Docket Number: No. 74--128,74--128
• Citation: 32 Ill.App.3d 960,336 N.E.2d 596
• Parties: Donald BARROWS, Plaintiff-Appellee, v. CITY OF NORTH CHICAGO, Illinois, etc., et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 596

336 N.E.2d 596

32 Ill.App.3d 960

Donald BARROWS, Plaintiff-Appellee, v. CITY OF NORTH CHICAGO, Illinois, etc., et al., Defendants-Appellants.

No. 74--128.

Appellate Court of Illinois, Second District, Second Division.

Oct. 17, 1975.

Rosing & Carlson, James T. Magee, Waukegan, for defendants-appellants.

Daly & Daly, Frank M. Daly, Waukegan, for plaintiff-appellee.

RECHENMACHER, Presiding Justice:

Defendants appeal from a declaratory judgment adjudging that a vacancy exists in the defendant city's police department to which plaintiff ('Barrows'), a patrolman in the city's police department, is entitled to be promoted, and ordering his promotion to the rank of sergeant with payment to him, effective April 25, 1970, of the difference in salary corresponding to that rank. The individual defendants are the members of the city's Board of Fire and Police Commissioners ('Board') ¹ and Edward Chrapkowski, the city's Chief of Police. The principal issues presented are (1) whether a vacancy exists in the rank of police sergeant, (2) whether Barrows is entitled to promotion to that rank and (3) whether the Administrative Review Act is applicable and if so whether this suit is barred by Barrows' failure to exhaust his administrative remedy.

In May, 1969, defendant Edward Chrapkowski, a patrolman since 1964 in the city's police department, was duly designated its chief of police. On March 14, 1970, the Board conducted an examination for 'promotion to Police Sergeant' and on that date so notified the mayor and city council. The letter listed 'the names of those who passed the examination in order of performance'. The following names were accordingly listed in this order:

(1) Ernest Fisher, (2) Edward Chrapkowski, (3) Donald Barrows, and eight other names.

On April 27, 1970, the city's police department included two sergeants, and the city adopted an ordinance increasing the number of police sergeants from two to four. Another section thereof provided that:

'(A)ny person appointed * * * to the offices of Chief of Police * * * shall continue to hold the permanent rank to which theretofore or thereafter appointed * * *. No vacancy shall be construed to have occurred by virtue of the elevation of any officer to any of the aforementioned posts * * *. * * * After the term of said appointive officer is terminated, said officer shall revert to the compensation schedule established for officers of equal permanent rank.'

On May 26, 1970, the Board certified Fisher and defendant Chrapkowski 'for promotion' to the rank of sergeant 'to be effective as of April 25, 1970', and they were so promoted. As noted above, Chrapkowski was chief of police on the date of his 'promotion' to the rank of police sergeant and continues to hold that position.

Barrow request for appointment to the rank of police sergeant based on his assertion that a vacancy exists in that rank was refused by the Board.

Defendants are mistaken in their contention that the Administrative Review Act (Ill.Rev.Stat.1971, ch. 110, par. 264 et seq.) is applicable to plaintiff's grievance, and that his failure to exhaust his remedy thereunder bars him from relief in this proceeding. Section 265 provides in effect that that Act is applicable only in those instances 'where the Act creating or conferring power on (the) agency, by express reference, adopts the provisions of this Act'. (See Wilkins v. Dept. of Public Aid, 51 Ill.2d 88, 280 N.E.2d 706). The only final administrative decision of the Board to which the provisions of the Administrative Review Act are applicable are those relating to removal or discharge of officers or members of the Fire and Police Departments (Ill.Rev.Stat.1971, ch. 24, par. 10--2.1--17).

We next consider whether a vacancy exists in the rank of sergeant. Defendants rely on that provision in the ordinance of April 27, 1970, which states in effect that 'No vacancy shall be construed to have occurred by virtue of the elevation' to 'the office of Police Chief', and that 'such officer shall continue to hold the permanent rank' to which he was appointed. The trial court concluded that that section of the ordinance was repugnant to Section 10--2.1--4 of the Municipal Code (Ill.Rev.Stat.1971, ch. 24, par. 10--2.1--4), because 'the purpose of the statute in providing for a furlough in this situation is so that the position could be filled by an active officer and still permit the Chief to retain his protected rank.'

We disagree. Section 10--2.1--4 provides in pertinent part as follows:

'If a member of the (police) department is appointed Chief of Police * * * 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. If he resigns as Chief * * * prior to attaining eligibility to retire on pension, he shall revert to and be established in such prior rank, and thereafter be entitled to all the benefits and emoluments of such prior rank, without regard as to whether a vacancy then exists in such rank.'

In DeGuiseppe v. Bd. of Fire & Police Comm'rs., ...