Parisi v. Jenkins

• Decision Date: 21 August 1992
• Docket Number: No. 1-91-3292,1-91-3292
• Citation: 177 Ill.Dec. 496,603 N.E.2d 566,236 Ill.App.3d 42
• Parties: , 177 Ill.Dec. 496 Joseph PARISI, Plaintiff/Third-Party Defendant Appellant, v. Harry P. JENKINS, Chief of Police of the Village of Worth, and the Village of Worth, a municipal corporation, Defendants/Third-Party Plaintiffs Appellees.
• Court: United States Appellate Court of Illinois

Page 566

603 N.E.2d 566

236 Ill.App.3d 42, 177 Ill.Dec. 496

Joseph PARISI, Plaintiff/Third-Party Defendant Appellant, v. Harry P. JENKINS, Chief of Police of the Village of Worth and the Village of Worth, a municipal corporation Defendants/Third-Party Plaintiffs Appellees.

No. 1-91-3292.

Appellate Court of Illinois First District, Sixth Division.

Aug. 21, 1992.

Rehearing Denied Nov. 13, 1992.

James J. Roche & Associates (James J. Roche, Maria G. Calderon, of counsel), Chicago.

Gierach, Schussler & Walsh, Ltd. (James E. Gierach, Andrew J. Kutsulis, Jr., of counsel), Oak Lawn.

Justice McNAMARA delivered the opinion of the court:

Plaintiff, Joseph Parisi, appeals from an order of the circuit court of Cook County reversing an order of the Board of Police and Fire Commissioners of the Village of Worth ("the Police Board") requiring defendants to restore plaintiff to active duty as a patrol officer.

Defendant, the Village of Worth ("the Village"), appointed plaintiff as a full-time police officer on May 27, 1968, under the supervision of co-defendant, Chief of Police Harry P. Jenkins. Over the years, plaintiff suffered from various medical problems, including a heart condition and several surgeries. In September 1985, plaintiff injured his knee at work. While undergoing physical therapy for his knee injury, plaintiff injured his back. (Plaintiff has not worked as a police officer since September 1985, and has not been reinstated to active duty to the present.) On September 3, 1986, plaintiff applied to the Village Police Pension Board (the "Pension Board") for a line-of-duty disability pension under section 3-114.1 of the Illinois Pension Code. (Ill.Rev.Stat.1989, ch. 108 1/2, par. 3-114.1.) After a hearing, the Pension Board certified plaintiff to a non-duty disability payment of 50% of his salary as of September 3, 1986. In so doing, the Pension Board concluded that plaintiff injured his back while off duty, and was, therefore, not eligible for a line-of-duty disability under section 3-114.1 of the Pension Code. Plaintiff did not apply to the Police Board for a disability leave or benefits.

On May 20, 1989, plaintiff applied to the Pension Board to terminate his disability pension and to certify him for fitness to return to duty. On June 9, 1989, the Pension Board certified plaintiff's fitness for duty to Jenkins and terminated his disability pension. Plaintiff testified that he did not receive personal notice of the Pension Board's fitness certification. Rather, on June 16, 1989, Jenkins told plaintiff that he received the Pension Board's certification. Jenkins did not tell plaintiff that he must submit a request to the Police Board for reinstatement within 30 days of the Pension Board's certification. On July 11, 1989, plaintiff submitted a letter to the Police Board requesting information on his reinstatement to active duty. The Village refused to reinstate plaintiff as a patrol officer. Plaintiff collected temporary total disability compensation under the Workers' Compensation Act (Ill.Rev.Stat.1989, ch. 48, par. 138.1 et seq.) at two-thirds his average weekly salary until July 26, 1990. On July 24, 1990, plaintiff entered into a settlement of his worker's compensation claim for the 1985 accident, providing a $65,000 lump sum payment, and monthly payments of $1,200 for five years.

During the period of plaintiff's suspension from duty, the Illinois Fraternal Order of Police Labor Council/Worth Village Lodge No. 143 ("FOP") was elected as the bargaining representative for the Village of Worth Police Department to represent "full time permanent police officers." Shortly thereafter, the Village and the FOP entered into a labor agreement, effective May 1, 1987. Section 2(j) of Article XI provides that the employment relationship shall be terminated when an employee "is unable to return to full unrestricted duties within 365 days of a non-work related injury."

On January 25, 1990, plaintiff filed a complaint for injunctive relief in the circuit court against defendants, directing them to reinstate plaintiff to active duty and for payment of lost wages and benefits.

On October 25, 1990, while this case was pending, Jenkins filed charges against plaintiff before the Police Board, alleging that the following matter constituted cause for termination: (1) plaintiff was physically unfit to return to active duty; (2) plaintiff violated the labor agreement; (3) plaintiff violated section 10-2.1-24 of the Illinois Municipal Code (Ill.Rev.Stat.1989, ch. 24, par. 10-2.1-24); and (4) plaintiff refused to submit to a medical examination ordered by defendants in violation of a department rule.

During the hearing before the Police Board, plaintiff testified that he felt fine, exercised regularly, and was free from pain. Plaintiff's medical records indicate that he submitted to several medical examinations subsequent to the Pension Board's certification. As ordered by Jenkins, St. Francis Hospital examined plaintiff in July 1989, and found him physically fit to return to work. In August 1989, Dr. David Spencer released plaintiff to work without restrictions effective February 22, 1989. Pursuant to Jenkins's order, Dr. David J. Smith, an orthopedic surgeon, examined plaintiff on December 1, 1990, and found him fit to return to his position as a patrol officer. Dr. John Herbick's letter of December 1990 indicated that "[plaintiff's] cardiac and orthopedic problems should not preclude him from returning as a police officer without restrictions * * *."

The Police Board denied defendants' motion to bar plaintiff under the doctrine of judicial estoppel from offering any evidence of his physical fitness for duty based upon his worker's compensation settlement. The Police Board also barred defendants from cross-examining plaintiff about his physical condition at the time of settlement, his recent complaints of pain, and his medical history. Based upon the evidence adduced at the hearing, the Police Board dismissed Counts I and II, and ordered that plaintiff be restored to active duty within seven days. The Police Board also ordered that plaintiff be censured for his failure to obey Jenkins's order for medical examination.

Upon administrative review, the circuit court of Cook County found that section 2 of Article XI of the labor agreement and section 10-2.1-24 of the Illinois Municipal Code constituted cause for termination. The trial court expressly found the labor agreement valid and binding. The court also determined that the Police Board denied defendants a fair hearing, and abused its discretion in denying the Village's motion to bar based upon the judicial estoppel doctrine. The trial court thus reversed the Police Board's decision, and plaintiff appeals from this order.

On appeal, plaintiff argues that: section 10-2.1-24 of the Illinois Municipal Code did not require him to apply for reinstatement to the Police Board; the FOP was not plaintiff's duly elected representative in the bargaining negotiations with defendants; the negotiation of section 2 was an ultra vires act by the Village, and in any event, should not be applied to plaintiff because it was negotiated during his disability leave; the judicial estoppel doctrine did not bar testimony of plaintiff's physical fitness to return to active police duty; and defendants were not denied a fair hearing by the Police Board.

Initially, we note that although we are not bound by an administrative decision interpreting statutory language, such conclusion is entitled to great weight. (Laborer's Local 1280 v. State Labor Relations Board (1987), 154 Ill.App.3d 1045, 107 Ill.Dec. 831, 507 N.E.2d 1200.) The standard of review under the Administrative Review Act provides that agency findings on questions of fact are "prima facie true and correct." (Ill.Rev.Stat.1989, ch. 110, par. 3-110.) Neither this court nor the trial court may substitute its judgment for that of the agency. (Mihalopoulos v. Board of Fire and Police Commissioners (1978), 60 Ill.App.3d 590, 17 Ill.Dec. 776, 376 N.E.2d 1105.) Our courts have construed this provision to limit this court's function to ascertaining whether the administrative agency's findings and decisions are against the manifest weight of the evidence (Davern v. Civil Service Commission (1970), 47 Ill.2d 469, 269 N.E.2d 713; Taylor v. Police Board of the City of Chicago (1978), 62 Ill.App.3d 486, 19 Ill.Dec. 285, 378 N.E.2d 1160), and the opposite conclusion is clearly evident. McHenry v. City of East St. Louis (1991), 210 Ill.App.3d 861, 155 Ill.Dec. 259, 569 N.E.2d 259.

We first consider plaintiff's contention that section 10-2.1-24 of the Illinois Municipal Code (Ill.Rev.Stat.1989, ch. 24, par. 10-2.1-24) did not constitute cause for his termination. In this regard, plaintiff argues that because his leave was authorized by section 3-114.2 of the Pension Code (Ill.Rev.Stat.1989, ch. 108 1/2, par. 3-114.2), section 10-2.1-24 of the Municipal Code did not apply here. Defendants respond that plaintiff's failure to request a disability leave from the Police Board did not render section 10-2.1-24 inapplicable.

The Village is subject to the provisions of division 2.1 of article 10 of the Illinois Municipal Code (Ill.Rev.Stat.1989, ch. 24, par. 10-2.1-1 et seq.) which provides for a board of police commissioners. Section 10-2.1-23 provides as follows:

"s 10-2.1-23. Disability or military leave--Grant by board. A person holding a position in a fire or police department who is injured while in the performance of his duties and because of such injury is temporarily unable to continue to perform his duties or who enters the military service * * * shall, upon written application to the board, be granted a disability or military leave, as the case may be. (Emphasis added.)" (Ill.Rev.Stat.1989, ch. 24, par. 10-2.1-23.)

Section 10-2.1-24 of the Code provides in pertinent part as follows:

"s 10-2.1-24. Return to active duty. A person...