Hermes v. Hein

• Decision Date: 16 November 1979
• Docket Number: No. 79 C 749.,79 C 749.
• Citation: 479 F. Supp. 820
• Parties: John Michael HERMES, Burt Kaminsky, Arthur Hockstadter, Timothy Hillyer, Frank Murphy, Michael Rompala, Jr., Michael Staufenbiel, Dexter Gorski, Lawrence Parks, Bruce P. Batka, and William Sharpe, Plaintiffs, v. William HEIN, Individually and as President of the Village Board of the Village of Wheeling, Illinois; Ronald Bruhn, Individually and as Chairman of the Board of Fire and Police Commissioners of the Village of Wheeling, Illinois; Jack Metzger, Individually and as Secretary of the Board of Fire and Police Commissioners of the Village of Wheeling, Illinois; Jerome Vesecky, Individually and as a Member of the Board of Fire and Police Commissioners of the Village of Wheeling, Illinois; and the Village of Wheeling, an Illinois Municipal Corporation and Body Politic, Defendants.
• Court: U.S. District Court — Northern District of Illinois

479 F. Supp. 820

John Michael HERMES, Burt Kaminsky, Arthur Hockstadter, Timothy Hillyer, Frank Murphy, Michael Rompala, Jr., Michael Staufenbiel, Dexter Gorski, Lawrence Parks, Bruce P. Batka, and William Sharpe, Plaintiffs, v. William HEIN, Individually and as President of the Village Board of the Village of Wheeling, Illinois; Ronald Bruhn, Individually and as Chairman of the Board of Fire and Police Commissioners of the Village of Wheeling, Illinois; Jack Metzger, Individually and as Secretary of the Board of Fire and Police Commissioners of the Village of Wheeling, Illinois; Jerome Vesecky, Individually and as a Member of the Board of Fire and Police Commissioners of the Village of Wheeling, Illinois; and the Village of Wheeling, an Illinois Municipal Corporation and Body Politic, Defendants.

No. 79 C 749.

United States District Court, N. D. Illinois, E. D.

November 16, 1979.

COPYRIGHT MATERIAL OMITTED

Michael J. Wall and Joseph A. Morris, Rothschild, Barry & Myers, Chicago, Ill., for plaintiffs.

Gary A. Weintraub, Jann, Carroll, Kruse & Sain, Ltd., Chicago, Ill., for defendants.

ORDER

BUA, District Judge.

This is an action brought by police officers of the Village of Wheeling pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985 alleging that the defendants violated their First, Fifth and Fourteenth Amendment rights. The defendants in this case are the members of the Village of Wheeling Board of Fire and Police Commissioners, the President of the Village Board of Wheeling, and the Village of Wheeling. The individual defendants are charged with falsifying and rigging the results of competitive examinations conducted to determine eligibility for promotion in the Wheeling Police Department. The complaint also charges the defendants with unlawfully manipulating the criteria for determining the numerical rank of each candidate on a statutorily mandated promotional eligibility roster. The complaint also alleges that the President of the Village Board of Wheeling and the members of the Village Board of Fire and Police Commissioners entered into a conspiracy in order to assure the promotion of police officers whose political affiliations were acceptable to them.

Two separate examinations were held in 1978. One examination related to eligibility for promotion to the rank of Lieutenant and one examination related to eligibility for promotion to the rank of Sergeant.

Presently before the court is defendants' motion to dismiss the complaint and plaintiff Hermes' motion for summary judgment on Count I.

I. Defendants' Motion to Dismiss

A. Failure to state a claim upon which relief can be granted.

Several grounds for dismissal or for alternative relief are raised. Defendants first argue that each of the four counts of the complaint fails to state a claim upon which relief can be granted.

Count I charges that the defendants rigged and manipulated the promotional examination and eligibility criteria for Lieutenants and thereby deprived plaintiff Hermes of his civil rights in violation of 42 U.S.C. § 1983 by wrongfully denying him a promotion.

Count II realleges the allegations of Count I but is founded on an alleged violation of 42 U.S.C. § 1985(1) and § 1985(3). Count II charges that the four individual defendants conspired to falsify the results of the examination and manipulate the order of eligibility for promotion to Lieutenant.

Counts III and IV mirror Counts I and II of the complaint but are concerned with the 1978 Sergeants' examination and eligibility roster.

The defendants argue that the complaint does not allege either a violation of the First Amendment's free speech clause, or a violation of the due process clause or equal protection clause of the Fourteenth Amendment.

With respect to a violation of the due process clause, defendants first argue that the complaint does not implicate a protected property interest.

The entitlement which the plaintiffs allege in the first two counts of the complaint is an entitlement to (1) the office of Lieutenant, (2) the wages and benefits attendant to that office, and (3) opportunities for professional advancement. The plaintiffs argue in their memorandum in response to defendants' motion to dismiss that the Illinois Municipal Code creates a property interest in promotional eligibility. This court does not agree. In order to establish a protected property interest "a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents of State Colleges v. Roth, 408 U.S. 564 at 577, 92 S.Ct. 2701 at 2709, 33 L.Ed.2d 548 (1972). On the other hand, a "person's interest in a benefit is a `property' interest for due process purposes if there are . . . rules or mutually explicit understandings that support his claim of entitlement to the benefit . . .." Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972).

In this case the complaint alleges no more than a "unilateral expectation" of promotion. The Illinois statute that provides the procedures for determining promotional eligibility is Ill.Rev.Stat. ch. 24, § 10-2.1-15. It provides for promotional eligibility as follows:

The board, by its rules, shall provide for promotion in the fire and police departments on the basis of ascertained merit and seniority in service and examination, and shall provide in all cases, where it is practicable, that vacancies shall be filled by promotion. All examinations for promotion shall be competitive among such members of the next lower rank as desire to submit themselves to examination. All promotions shall be made from the three having the highest rating, and where there are less than three names on the promotional eligible register, as originally posted, or remaining thereon after appointments have been made therefrom, appointments to fill existing vacancies shall be made from those names or name remaining on the promotional register. (emphasis added).

The statute clearly allows the Board of Fire and Police Commissioners to promote any of the top three candidates and does not restrict their discretion in choosing from among the top three candidates. It is clear that plaintiff Hermes cannot complain that he was denied a promotion to which he was entitled since even if he had been among the top three candidates for promotion or even if he had been ranked number one on the eligibility roster, he alleges no basis for finding that he was entitled to a promotion as a result of that ranking. Clearly, under the statute he would have no more than a unilateral expectation of promotion.

Plaintiff Hermes attempts to avoid the clear implication of the statutory language by phrasing his alleged property interest in terms of his interest in promotional eligibility rather than promotion. Assuming arguendo that Hermes has a property interest in promotional eligibility per se, he has not been denied this interest since he was among the three candidates eligible for promotion. See Exhibits B, C, and E, attached to Plaintiff Hermes Motion for Summary Judgment.

Plaintiff Hermes also seeks to establish a property interest in promotion by arguing that it is the unwavering custom and stated policy of the Board to promote the number one candidate from an eligibility roster to any vacancy that occurs. (Affidavit of John Hermes, attached to Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss, p. 2). See Perry v. Sindermann, supra. Thus "rigged" eligibility rosters would result in Hermes being ranked second rather than first on the eligibility roster and would deny him a promotion to which he would otherwise have been entitled. The problem with this argument is that there is no allegation in the complaint from which this court could determine that the alleged property interest in promotion exists as a result of the unwavering custom of the Board to fill vacancies in order of rank on the promotional eligibility roster.

The affidavits submitted may not be considered for purposes of defendants' motion to dismiss under Rule 12(b)(6), Fed.R. Civ.P., and therefore do not serve to cure the defect in the complaint. It should be noted, however, that these affidavits do not settle the issue as to whether or not plaintiffs have a property interest in promotion under the Sindermann "mutually explicit understanding" language since it is reasonably clear from a reading of defendants' affidavits that they did not feel bound to promote on the basis of order on the eligibility roster per se, but understood themselves to have the authority to fully consider each of the top three candidates on the eligibility list. Therefore, even if this court were to consider these affidavits and treat defendants' motion to dismiss as a motion for summary judgment, the court would not be able to find that Hermes' affidavit alone establishes as a fact that the plaintiffs are entitled to be promoted in the order of their rank on the eligibility roster.

Count I of the complaint therefore fails to state a claim based on the due process clause, since, reading all allegations as true and construing the complaint most favorably to the plaintiffs, it fails to allege any basis for finding that plaintiff Hermes has a property interest in the promotion to the rank of Lieutenant. The court will allow plaintiffs until December 14, 1979 to amend the complaint in this respect.

Count I does state a claim upon which relief can be granted based on the allegation that the defendants discriminated against Hermes on account of his political affiliation. In construing Count I most favorably to the pleader for purposes of this motion to dismiss, it is clear that the alleged acts of defendants in rigging the results of the examination and the rank order of the promotion were done in order to favor those whose political affiliations were acceptable to the defendants. Thus,...