Kloss v. Board of Fire and Police Com'rs of Village of Mundelein

• Court: Appellate Court of Illinois
• Writing for the Court: HOPF; NASH; REINHARD
• Citation: Kloss v. Board of Fire and Police Com'rs of Village of Mundelein, 438 N.E.2d 685, 108 Ill.App.3d 8, 63 Ill.Dec. 754 (Ill. App. 1982)
• Decision Date: 21 July 1982
• Docket Number: No. 81-827,81-827
• Parties: , 63 Ill.Dec. 754 Gerard KLOSS, Plaintiff-Appellee, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF the VILLAGE OF MUNDELEIN and Arthur Glitz, Chief of Police for the Village of Mundelein, Defendants-Appellants.

Page 685

438 N.E.2d 685

108 Ill.App.3d 8, 63 Ill.Dec. 754

Gerard KLOSS, Plaintiff-Appellee, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF the VILLAGE OF MUNDELEIN and Arthur Glitz, Chief of Police for the Village of Mundelein, Defendants-Appellants.

No. 81-827.

Appellate Court of Illinois Second District.

July 21, 1982.

Charles F. Marino, Chicago, Rosing, Carlson & Magee, Ltd., Waukegan, for defendants-appellants.

Dunlap & Boyd, Ltd., Robert W. Brown, Jr., Libertyville, for plaintiff-appellee.

HOPF, Justice:

The Mundelein Board of Fire and Police Commissioners, as well as the village of Mundelein and its chief of police, appeal from the Lake County circuit court's reversal of the Board's decision to discharge Gerard Kloss from the Mundelein Police Department. After a hearing, the Commissioners of the Board found that Kloss should be discharged because he had violated certain provisions of the Board of Fire and Police Commissioners' rules. Kloss appealed to the circuit court contending that the Board's decision was against the manifest weight of the evidence. After reviewing the record and findings of the Board the circuit court reversed the Board's decision, ordered Kloss reinstated, and awarded him back pay for the time he was off. The Board, the chief of police and the village of Mundelein appeal.

Kloss was charged with violating the Board's rules. The substance of those charges was that on October 9, 1978, Kloss, while off duty, and in his apartment, yelled, kicked, screamed profanities and, most importantly, threatened to kill a police officer while aiming a gun at him.

The record reveals very little conflicting evidence about Kloss's conduct. Kloss had been on the force since 1969, except for a period of time he was on disability for an on-the-job injury.

On the evening of the incident Kloss was at home in his apartment. His next door neighbor, Raymond Newman, was also a Mundelein police officer and was also at home. When he heard a noise in the hallway Newman opened the door and recognized Kloss's fiancee standing in the doorway. She was quite distraught and upset. After she calmed down she told Newman that Kloss might shoot himself. They returned to Kloss's apartment but were unable to get in the door because Kloss shut the door on them. Kloss repeatedly asked to be left alone. During the times when the door was open Kloss appeared to Newman to be rational one moment and the next moment he would be screaming and swearing.

The police were called, and several police officers and paramedics quickly arrived on the scene. Sergeant Sindles testified that he attempted to open the door to the apartment but Kloss shut the door on him. Nonetheless the sergeant pushed the door open again and said he wanted to talk to Kloss. He saw Kloss holding one of his daughters in his left arm, wearing a bathrobe. Kloss repeatedly screamed at the sergeant saying he should get out of his house or he would kill him. The sergeant kept approaching him. Kloss pulled a gun from the right hand pocket of his bathrobe and pointed it at the sergeant and again told him to get out of his apartment or he would kill him. The sergeant told Kloss he was going to talk to him and kept walking towards him when Kloss's other daughter came running towards Kloss. Kloss put the gun back in his right hand pocket, picked up his daughter and, while holding both girls in his arms, turned his right side to the sergeant and told him to take the gun. The sergeant took the gun and handed it to someone behind him.

After this incident Kloss's moods continued to alternate between rational and violent. Ultimately he agreed to be taken to the hospital.

A number of other officers and paramedics who had been on the scene testified at trial. Of these, only the sergeant recalled Kloss's threats to the sergeant, although other parts of that conversation were overheard.

Gerard Kloss testified that on the day of the incident he had been visited by his ex-wife in the early afternoon and had an argument with her about visitation and child custody. After she left, he and his fiancee obtained a baby sitter for the children and went out to price liquor for their upcoming wedding. They stopped at a number of taverns and Kloss remembered drinking about five beers.

It was the first time in two years that he had anything of an alcoholic nature to drink. His doctor had prescribed medication for his bleeding ulcers and he testified he had taken that medication earlier in the day, prior to drinking. Kloss remembered very little of the evening in question but could remember waking up in the hospital. He indicated the combination of the prescription drugs and the beer made him ill.

As indicated, the Board found cause to discharge, but the circuit court reversed the Board's decision and ordered Kloss reinstated with back pay and other benefits.

On appeal the Board of Fire and Police Commissioners and the other appellants contend that the trial court did not have jurisdiction to reverse the findings of the Board. The Board contends that the trial court did not have jurisdiction because the complaint and summons, as it was originally issued, was a mandamus action and the actual administrative review, summons and amended complaint for administrative review were not filed until long after 35 days from the date that the decision was served on Kloss.

The Administrative Review Act (hereinafter the Act) (Ill.Rev.Stat.1977, ch. 110, par. 264 et seq.) applies to actions for judicial review of agency decisions and provides that judicial review must be sought within 35 days from the date that a copy of the decision is served on the party affected by the decision. Ill.Rev.Stat.1977, ch. 110, par. 267.

In the case at bar, the decision of the Board was presented to Kloss on December 11, 1978. Kloss then filed his first complaint, 28 days later, on January 8, 1979. Personal service, rather than by registered mail, was made by the sheriff on both the police chief and the village clerk. The police chief was served on January 10 and the clerk served on January 19. Subsequently Kloss had the proper administrative review summons issued by the clerk. Contrary to the Board's contention, we believe Kloss did exercise reasonable diligence to obtain service as required by Supreme Court Rule 103(b). 73 Ill.2d R. 103(b).

The Board contends that because the Kloss complaint did not specifically request judicial review of the Board's decision and instead requested that Kloss be reinstated, it was, in effect, a writ of mandamus. This contention was also in the Board's motion to dismiss the complaint. Having characterized the complaint as a writ of mandamus, the Board contends that no complaint for administrative review was filed within the 35-day period. An amended complaint for administrative review was filed by a new attorney on October 14, 1980.

While the Act does set forth certain requirements for a complaint (Ill.Rev.Stat.1977, ch. 110, par. 272(a)), there is no specific request for relief that must be made. The Act does not require that the specific words "administrative review" be included.

The Kloss complaint alleged that the Board's decision was against the manifest weight of the evidence, was arbitrary and capricious and was without finding in fact or in law. It further requested that the court cause Kloss to be reinstated as patrolman. The complaint, however, makes no specific request for a mandamus.

The Board contends that the case of Klaren v. Board of Fire and Police Commissioners (1968), 99 Ill.App.2d 356, 240 N.E.2d 535, is controlling and requires that this cause be dismissed for want of jurisdiction. Klaren, however, differs from the situation here. In Klaren, the Board entered a reviewable order and the affected party requested a second hearing from the Board. Only after the second hearing, and more than 35 days after entry of the first order, did the affected party petition for administrative review. Similarly, the case at bar is unlike Norris v. City of Aurora (1978), 64 Ill.App.3d 748, 21 Ill.Dec. 704, 381 N.E.2d 996, where the 35-day requirement was held to be no bar to the addition of parties by an amended complaint.

The Administrative Review Act requires that the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 264 et seq.), including its provisions for appeal, be made applicable to proceedings under the Administrative Review Act. The Practice Act allows a pleading to be changed at any time before a final judgment in order to enable the plaintiff to sustain the claim it intended to bring. (Ill.Rev.Stat.1977, ch. 110, par. 33.) In sum, we believe that the pleadings were sufficient to preserve the question for review and that the trial court did have jurisdiction.

Having established that the trial court had jurisdiction, we address the Board's contention that the trial court erred in finding that their decision was against the manifest weight of the evidence.

In Department of Mental Health and Developmental Disabilities v. Civil Service Com. (1981), 85 Ill.2d 547, 55 Ill.Dec. 560, 426 N.E.2d 885, a two-step procedure for review of an administrative agency's decision was set forth. First it must be determined if the agency's decision was contrary to the manifest weight of the evidence. In this regard it should be kept in mind that the findings and conclusions of the Board on questions of fact must be considered prima facie, true and correct. (Ill.Rev.Stat.1977, ch. 110, par. 274.) On the other hand, if the record does not disclose evidence supporting the Board's determination, a reviewing court must not hesitate to grant relief. (Basketfield v. Police Board (1974), 56 Ill.2d 351, 359, 307 N.E.2d 371, 375.) In the case before us the testimony of Sergeant Sindles was sufficient evidence to sustain a finding that Kloss had threatened him with his weapon. Therefore, the Board's findings of fact were not against the manifest weight of the evidence....