Schlicher v. Bd. of Fire and Police Com'Rs

• Decision Date: 06 March 2006
• Docket Number: No. 2-05-0774.,2-05-0774.
• Citation: 845 N.E.2d 55,300 Ill.Dec. 634
• Court: United States Appellate Court of Illinois
• Parties: James SCHLICHER, Plaintiff-Appellant, v. The BOARD OF FIRE AND POLICE COMMISSIONERS OF the VILLAGE OF WESTMONT, The Village of Westmont, Ray Botch, Indiv. and in His Official Capacity as Village Manager of the Village of Westmont, Zbigniew "Jerry" Zywczyk, Indiv. and in His Former Official Capacity as Police Chief, Randy Sticha, Indiv. and in His Official Capacity as Police Chief, and John F. Bright, Defendants-Appellees.

845 N.E.2d 55

300 Ill.Dec. 634

James SCHLICHER, Plaintiff-Appellant, v. The BOARD OF FIRE AND POLICE COMMISSIONERS OF the VILLAGE OF WESTMONT, The Village of Westmont, Ray Botch, Indiv. and in His Official Capacity as Village Manager of the Village of Westmont, Zbigniew "Jerry" Zywczyk, Indiv. and in His Former Official Capacity as Police Chief, Randy Sticha, Indiv. and in His Official Capacity as Police Chief, and John F. Bright, Defendants-Appellees.

No. 2-05-0774.

Appellate Court of Illinois, Second District.

March 6, 2006.

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Stanley H. Jakala, Berwyn, for James Schlicher.

John F. O'Reilly, O'Reilly Law offices, Wheaton, for Board of Fire & Police Commissioners Westmont, Ray Botch, John F. Bright Randy Sticha, Village of Westmont Zbigniew "Jerry" Zywczyk.

Justice O'MALLEY delivered the opinion of the court:

Plaintiff, James Schlicher, appeals the trial court's dismissal of his third amended complaint, which alleged that defendants, the Board of Fire and Police Commissioners of the Village of Westmont (Board), the Village of Westmont (Village), Ray Botch (both individually and in his official capacity as village manager), Zbigniew Zywczyk (both individually and in his former official capacity as police chief), Randy Sticha (both individually and in his official capacity as police chief), and John Bright, wrongfully caused him to be bypassed for promotion to the rank of sergeant in the Westmont police department. For the reasons that follow, we affirm in part, reverse in part, and remand the cause.

In his third amended complaint, plaintiff alleged as follows. The Board maintained a sergeant promotion eligibility list, which ranked the top seven candidates eligible for promotion to the level of sergeant and provided an evaluative score for each candidate. After an officer named on the list was promoted, his name was removed from the list and the names of those officers ranked below him ascended one spot on the list. Under Illinois law, an officer's name must be removed from the promotion list after it has appeared on the list for three years.

On the May 2000 list, the top three candidates, who had scores of 78.98, 76.15, and 75.56, were later promoted after each of their names rose to the top of the promotion list. Plaintiff's name appeared fourth on the list with a score of 75.35, and Bright's name appeared fifth, with a score of 75.20. From 1976 until January 2003, a span that included the promotion of 26 police officers, the Board always promoted the officer ranked first on the list.

In May 1999, Sergeant Ronald Rizzo tendered a letter of retirement to the then police chief, Zywczyk. Plaintiff claimed that Zywczyk promoted Officer Thomas Mulhearn to the rank of sergeant in May 1999 despite the fact that Rizzo worked in that rank until July 1999. However, we note that, elsewhere in the complaint, plaintiff asserted that Mulhearn was promoted to the rank of sergeant in 1996.

In May 1999, 2000, and early 2002, plaintiff served as a union representative, and he negotiated with the Village on issues such as salary, "comp time," collective bargaining agreement language, and 12-hour shifts. In April or May 2002, plaintiff was involved in an investigation of former deputy chief Larry Harrison, who resigned as a result of the investigation.

In July 2002, plaintiff discovered that former police chief Zywczyk had altered his "promotional evaluation points" from 90 to 60 and that his rank on the May 2000 promotion list would have been higher but for this deduction. Plaintiff alleged that the reduction "pertained to plaintiff's union activity."

On January 6, 2003, the Village passed Ordinance No. 03-14, which, inter alia, reduced from seven to six the number of sergeants working for the Village. Village of Westmont, Ordinance No. 03-14 (eff. January 6, 2003).

On January 21, 2003, the Board promoted Bright to the rank of sergeant despite the fact that, at the time of his promotion, he was listed second on the eligibility list and plaintiff was listed first. Though plaintiff does not raise the point in his third amended complaint, the minutes of the January 14, 2003, Board meeting indicate that the Board announced it would choose the officer to promote from among the top three candidates, and plaintiff acknowledged his understanding of this rule.

In April 2003, Sergeant James Farley submitted a letter of resignation, effective June 2003. Chief Sticha did not promote plaintiff to fill Farley's vacancy, but instead allowed the May 2000 promotion list to expire in May 2003. Plaintiff's third amended complaint does not state whether Farley's position was filled.

Plaintiff eventually filed his third amended complaint, seeking administrative review of the Board's bypassing him for promotion (count I), alleging that Ordinance No. 03-14 constituted intentional interference with a prospective economic advantage (count II), and alleging that Ordinance No. 03-14 was enacted and enforced as retaliation for his union activities (count III). The trial court heard argument on the latter two counts on December 9, 2004, and dismissed them pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2002)), based on its conclusion that defendants were immune under the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1-101 et seq. (West 2002)). On July 7, 2005, after reviewing the record, the trial court dismissed plaintiff's count for administrative review, on the ground that the Board's decision was not clearly erroneous. Plaintiff timely appeals.

At the outset, we note defendants' assertion that several of plaintiff's arguments should be deemed waived for various reasons. However, waiver is a limitation upon the parties, not the courts (In re Marriage of Kostusik, 361 Ill.App.3d 103, 114, 296 Ill.Dec. 732, 836 N.E.2d 147 (2005)), and, in light of the fact that defendants were able to address all the arguments they seek to have deemed waived, we decline to invoke waiver in this case.

Plaintiff's first contention is that the Board's decision to bypass him for promotion was arbitrary and capricious. In reviewing a final administrative decision under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2002)), our role is to review the administrative decision, not the trial court's determination. Du Page County Airport Authority v. Department of Revenue, 358 Ill.App.3d 476, 481, 294 Ill.Dec. 507, 831 N.E.2d 30 (2005). The standard of review applicable to an agency's decision depends on the type of question presented. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill.2d 380, 390, 261 Ill.Dec. 302, 763 N.E.2d 272 (2001). An agency's findings of fact will be upheld unless against the manifest weight of the evidence, i.e., unless the opposite conclusion is clearly evident. Du Page County Airport Authority, 358 Ill.App.3d at 482, 294 Ill.Dec. 507, 831 N.E.2d 30. On the other hand, an agency's rulings on questions of law are reviewed de novo. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill.2d 191, 205, 229 Ill.Dec. 522, 692 N.E.2d 295 (1998). Mixed questions of law and fact, in which the facts and law are undisputed and the only issue is whether the facts satisfy the settled statutory standard, receive review under the clearly-erroneous standard. Du Page County Airport Authority, 358 Ill.App.3d at 482, 294 Ill.Dec. 507, 831 N.E.2d 30. A decision is clearly erroneous only if the reviewing court is left with a definite and firm conviction that a mistake has been committed. AFM Messenger, 198 Ill.2d at 395, 261 Ill.Dec. 302, 763 N.E.2d 272. The parties agree that the clearly-erroneous standard should apply to our review of the Board's promotion decision.

Section 10-2.1-15 of the Illinois Municipal Code (65 ILCS 5/10-2.1-15 (West 2002)), which plaintiff avers applies here, provides for promotions in fire and police departments 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 promotions shall be made from the 3 having the highest rating [sic], and where there are less than 3 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 * * *. * * * The board shall strike off the names of candidates for promotional appointment after they have remained thereon for more than 3 years, provided there is no vacancy existing which can be filled from the promotional register."

The above-quoted statute provides that the Board may choose from any of the three highest-rated candidates on its promotion list. Thus, the Board complied with the statute when it promoted Bright, the second-rated candidate, instead of plaintiff, the top-rated candidate. Plaintiff does not challenge that both officers were qualified for promotion, and we note that they obtained near-identical promotion evaluation scores (plaintiff obtained a 75.35 score, while Bright obtained a 75.20). Therefore, the Board's decision to promote Bright over plaintiff was not clearly erroneous.

Plaintiff's primary argument is not that the Board's decision was clearly erroneous, but that, notwithstanding the Board's statutory discretion to promote any of the top three candidates, the Board established a historical policy of promoting the officer ranked first on the promotion list and that policy controls the Board's statutory discretion. We disagree. The question of the Board's authority is a matter of law, which we review de novo. Du Page County Airport Authority, 358 Ill. App.3d at 482-84, 294...