Budka v. Board of Public Safety Commissioners

458 N.E.2d 126, 120 Ill. App. 3d 348, 75 Ill. Dec. 958, 1983 Ill. App. LEXIS 2619
CourtAppellate Court of Illinois
DecidedDecember 14, 1983
Docket82-2854
StatusPublished
Cited by13 cases

This text of 458 N.E.2d 126 (Budka v. Board of Public Safety Commissioners) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Budka v. Board of Public Safety Commissioners, 458 N.E.2d 126, 120 Ill. App. 3d 348, 75 Ill. Dec. 958, 1983 Ill. App. LEXIS 2619 (Ill. Ct. App. 1983).

Opinion

PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

On December 5, 1977, plaintiff Gary H. Budka was discharged as a village of Rosemont police officer by the defendant Board of Public Safety Commissioners because he failed to maintain his residence in Rosemont. On January 9, 1978, plaintiff filed an administrative review action challenging his discharge, and on March 9, 1981, that action was dismissed for want of prosecution. On March 4, 1982, plaintiff filed the present action which was identical to the previously dismissed suit. On November 9, 1982, the trial court set aside the board’s decision and found that Rosemont’s residency requirements did not apply to plaintiff. The court directed that plaintiff be reinstated as a police officer and awarded him back pay and allowances subject to setoffs with the exception that no back pay and allowances were awarded for the period during which the action was dismissed for want of prosecution. Defendants appeal. Plaintiff has filed a cross-appeal challenging that portion of the order which did not allow him back pay for the period during which the matter was dismissed for want of prosecution.

On August 1, 1972, plaintiff, who at the time resided in Chicago, was appointed an officer of the Rosemont police department. Approximately seven months later, while in his probationary period, plaintiff established a residence in Rosemont. On September 22, 1977, plaintiff established residence in Schaumburg.

Defendant Richard Drehobl, director of public safety, filed written charges with the board in October 1977, seeking plaintiff’s discharge for his failure to maintain a residence in Rosemont. The charges alleged violations of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 3 — 14—1), Rosemont Ordinance 74 — 3—9, and Rosemont Police Department and Board of Police and Pire Commissioners Rules.

At the hearing before the board, plaintiff testified that he had not been advised, when he was hired, of any statute, rule or ordinance requiring him to live in Rosemont. Although he had heard “by word of mouth” of the supposed requirement, his taking up of residency in Rosemont was not motivated by a desire to comply with a requirement. Plaintiff also testified that one month before he moved to Schaumburg, he was ordered to sign a form acknowledging his understanding that actual residence within Rosemont was a condition of his employment. Plaintiff signed the form under protest and, at the time of signing, plaintiff’s attorney wrote to the Police and Fire Commission expressing the belief that the residency requirements were unconstitutional as applied to plaintiff.

Plaintiff testified that on October 10, 1977, he told Drehobl he had purchased a home in Florida and was considering moving there. He also testified that, in moving to Schaumburg, he relied on the fact that the Rosemont chief of patrol resided in Schaumburg. Prior to plaintiff’s change of residence, however, discharge proceedings were brought against the chief.

Plaintiff argued before the board and in the trial court that the Illinois Municipal Code was not applicable to him. He maintained that the adoption of Rosemont Ordinance 75 — 9—17A conflicted with the State statute and that under Rosemont’s home rule powers, the statute was superseded. The statute provides in relevant part:

“No person shall be eligible to any municipal office unless he is a qualified elector of the municipality and has resided therein at least one year next preceding his election or appointment. However, these requirements shall not apply to the municipal engineer, health officers, or other officers who require technical training or knowledge. Nor shall these requirements apply to city attorneys or to village attorneys. But no person shall be eligible to any municipal office who is a defaulter to the municipality.
Except for incorporated towns which have superseded a civil township, municipalities having a population of not more than 500,000 are hereby authorized and empowered to adopt ordinances which allow firemen and policemen to reside outside of the corporate limits of the municipality by which they are employed both at the time of appointment and while serving as such firemen or policemen.” Ill. Rev. Stat. 1975, ch. 24, par. 3-14-1.

The Rosemont ordinance adopted on September 17, 1975, provides in relevant part:

“SECTION 3: That section 2 — 103.1 of the Code of Ordinances of the Village of Rosemont be amended to read as follows: Sec. 2 — 103.1. Requirements for appointment.
All applicants for a position in the Department of Public Safety shall be citizens of the United States, electors within the State of Illinois and County of Cook, and shall have been residents of the Village of Rosemont for at least six months preceding the time of their application. ***
Section 8. ***
It is the intent of the corporate authorities that to the extent that the terms of this Ordinance shall be inconsistent with a non-preemptive State law, that this Ordinance shall supersede State law in that regard within its jurisdiction.”

Rosemont’s home rule powers are derived from article VII, section 6 of the 1970 Illinois Constitution. An ordinance of a home rule unit shall supersede any conflicting State statute enacted prior to the 1970 Illinois Constitution. (County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 389 N.E.2d 553.) The grant of power to the home rule units is broad and imprecise to allow for greater flexibility. City of Evanston v. Create, Inc. (1981), 85 Ill. 2d 101, 421 N.E.2d 196.

Rosemont is a home rule unit, and the regulation of its police officers is within its home rule power. (See Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523, 343 N.E.2d 919.) And residency requirements may be imposed as a condition of employment. (McCarthy v. Philadelphia Civil Service Com. (1976), 424 U.S. 645, 47 L. Ed. 2d 366, 96 S. Ct. 1154; Andre v. Board of Trustees (7th Cir. 1977), 561 F.2d 48.) At issue here is the extent of the exercise of Rosemont’s power and the effect of its ordinances on section 3 — 14—1 of the Illinois Municipal Code.

The parties here have stipulated that Rosemont has not enacted an ordinance allowing officers to live outside the corporate limits. Defendants also maintain that section 3 — 14—1 is not superseded, or is only superseded in part, since the Rosemont ordinance does not conflict with the second paragraph of section 3 — 14—1.

Rosemont has not expressly allowed its officers to reside outside the municipality and the adoption of its ordinance in 1975 does not impliedly supersede all of section 3 — 14—1.

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Bluebook (online)
458 N.E.2d 126, 120 Ill. App. 3d 348, 75 Ill. Dec. 958, 1983 Ill. App. LEXIS 2619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/budka-v-board-of-public-safety-commissioners-illappct-1983.