Scott v. Department of Commerce and Community Affairs
| Decision Date | 03 February 1981 |
| Docket Number | No. 53998,53998 |
| Citation | 48 Ill.Dec. 560,416 N.E.2d 1082,84 Ill.2d 42 |
| Parties | , 48 Ill.Dec. 560 Johnny SCOTT et al., Appellees, v. The DEPARTMENT OF COMMERCE AND COMMUNITY AFFAIRS et al., Appellants. |
| Court | Illinois Supreme Court |
Tyrone C. Fahner, Atty. Gen., Springfield (Jon E. Tweedt, Asst. Atty. Gen., Springfield, of counsel), for appellants.
Roger L. Vetter, Belleville, for appellee Johnny Scott.
Edward Neville, East St. Louis, for appellees William Stokes and Willie L. Dancy.
On March 19, 1980, plaintiff Johnny Scott, a commissioner of the East St. Louis Housing Authority, filed a petition seeking a temporary restraining order, a temporary injunction, a permanent injunction and declaratory relief to prevent the Department of Commerce and Community Affairs (Department) from conducting a hearing to remove plaintiff and three other commissioners from the Housing Authority pursuant to section 4 of the Housing Authorities Act (Ill.Rev.Stat.1979, ch. 671/2, par. 4). The other commissioners, William Stokes, Larona J. Morris and Willie L. Dancy, were allowed to intervene as plaintiffs. Following a March 24 hearing the circuit court of St. Clair County granted a preliminary injunction enjoining the Department from proceeding with the hearing on the ground that section 4 of the Housing Authorities Act was unconstitutional. The Department sought an interlocutory appeal to the appellate court, and, because the statute had been found unconstitutional, the appeal was transferred here pursuant to our Rule 302(a). 73 Ill.2d R. 302(a).
The Housing Authorities Act (Ill.Rev.Stat.1979, ch. 671/2, par. 1 et seq.) provides for the appointment of five commissioners, to staggered five-year terms, by the presiding officer of a city, village, incorporated town or county in which the particular authority is created. (One of the five commissioners had not been in office during the period here involved.) The commissioners, whose appointment must be approved by the Department, serve without compensation. Their removal is provided for in section 4 of the Act:
(The Department of Local Government Affairs was abolished on October 1, 1979, and its duties transferred to the Department of Commerce and Community Affairs by Illinois Executive Order No. 3 (1979) preceding Ill.Rev.Stat.1979, ch. 127, par. 1.)
The plaintiffs had been served on January 28, 1980, with a "Notice of Charges" and a "Notice of Removal Hearing," apparently prompted by the report of a housing authority task force formed by the mayor of East St. Louis. The "Notice of Charges" was as follows:
"NOTICE OF CHARGES
In the Matter of
The Commissioners of )
the East Saint Louis )
Housing Authority )
To: Johnny Scott
William Stokes
LaRona J. Morris, and
Willie Levell.
You are hereby notified that pursuant to Section 4 of the Housing Authorities Act, Ill.Rev.Stat., 1979, Ch. 671/2, Section 4, you are charged with incompetence, neglect of duty or malfeasance in the performance of your duties as a commissioner of the East Saint Louis Housing Authority. You are required to appear at the removal hearing scheduled on the 29th day of February, 1980 to show cause why you should not be removed as a commissioner for the following acts of incompetence, neglect of duty or malfeasance:
1. that at the end of fiscal year 1977 routine expenses of the Housing Authority exceeded the budget by $366,169.84 and homeownership expenses exceeded the budget by $53,639.80 in violation of Section 407, Article 14 of the terms and conditions in Part 2 of the Annual Contributions Contract;
2. that at the end of fiscal year 1978 routine expenses of the Housing Authority exceeded the budget by $352,320 and administrative expenses exceeded the budget by $130,129 in violation of Section 407, Article H of the terms and conditions in Part 2 of the Annual Contributions Contract;
3. that the Housing Authority's personnel policy is outdated and does not reflect compatibility with 'pertinent practices' as required by the U.S. Department of Housing and Urban Development's handbook HM7401.1, Chapter 5, Section 1;
4. that the Housing Authority's personnel files contain no evidence that its administrative salaries are comparable to those of like positions in the local community;
5. that the Housing Authority's travel allowances exceeded the amount specified in its travel policy;
6. that the Housing Authority's Disposition policy is not being followed;
7. that the Housing Authority has not implemented a uniform schedule of charges to tenants for repair services other than normal wear and tear;
8. that the Housing Authority has an unreasonably high number of outstanding obligations in its accounts receivable;
9. that the Housing Authority did not adequately preserve the minutes of the Board of Commission meetings;
10. that the Housing Authority has allowed its maintenance program to decline to an unacceptable point;
11. that the Housing Authority has not followed the terms of the Memorandum of Accord effective 1971; and
12. that a contract for installing guttering was awarded by the Housing Authority to a firm whose bookkeeper is one of the Commissioners on the Housing Authority although there were lower bids made by other reputable firms, in violation of an Act to prevent Fraudulent and Corrupt Practices in the Making or Accepting of official appointments and contracts by public officers, Ill.Rev.Stat., 1979, Chapter 102, Section 3."
The "Notice of Removal Hearing" specified the time and place of the hearing, informed the commissioners that the hearing would be conducted in accordance with section 10 of the Illinois Administrative Procedure Act (Ill.Rev.Stat.1979, ch. 127, par. 1010), that they had the right to counsel and to present evidence and argument, and that a decision on their removal would be forthcoming within seven days by certified mail. Relevant provisions of that act include section 12 (Ill.Rev.Stat.1979, ch. 127, par. 1012), providing for use of civil evidence rules, cross-examination and judicial notice, and section 13 (Ill.Rev.Stat.1979, ch. 127, par. 1013), requiring that, when the decision maker has not heard the case or read the record, a proposal for decision must be served upon the parties and the party adversely affected afforded an opportunity to file a brief in opposition. Final orders must contain findings of fact supported by concise statements of the supporting facts and separately stated conclusions of law. Ex parte communications in contested cases are barred by section 15 (Ill.Rev.Stat.1979, ch. 127, par. 1015).
On February 14, plaintiff Scott filed with the Department a "Request for Production of Documents," a "Motion to Dismiss Charges" and a "Motion to Disqualify Hearing Officer." These motions were denied by the assistant director of the Department in a February 19 ruling based in part upon his statements that the burden of proof under section 4 of the Housing Authorities Act is upon the commissioners to show cause why they should not be removed from office, and that neither the Housing Authorities Act nor the Illinois Administrative Procedure Act required discovery or production of the documents sought by the commissioners.
On the same date that the petition was filed, the St. Clair County circuit court issued a temporary restraining order precluding the Department from proceeding with the removal hearing. At the subsequent hearing on the issuance of an injunction the court found section 4 to be unconstitutional because it placed the burden of proof upon the plaintiffs, the standard for removal lacked definiteness, and the statute contained no provision for discovery.
We need not dwell at length upon the plaintiffs' contention that the standard for removal of a commissioner who is found to be "incompetent or guilty of neglect of duty or malfeasance" is unconstitutionally vague. A statute is, of course, presumed to be valid, and the burden is on the party challenging it to establish its constitutional invalidity. (Polyvend, Inc. v. Puckorius (1979), 77 Ill.2d 287, 32 Ill.Dec. 872, 395 N.E.2d 1376, appeal dismissed (1980), 444 U.S. 1062, 100 S.Ct. 1001, 62 L.Ed.2d 744.) We have just this term considered and upheld the validity of the standard "Improper, unprofessional or dishonorable conduct" as a basis for license revocation as against the contention that it was unconstitutionally vague and uncertain. (Chastek v. Anderson (1981), 83 Ill.2d 502, 506, 509, 48 Ill.Dec. 216, 416 N.E.2d 247.) We there indicated that the due process clauses of the Illinois and Federal constitutions are not violated if the duty imposed by the statute is described in sufficiently definite terms to serve as a guide to those who must comply with it.
Earlier language by this court is also appropriate:
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