Cesario v. Board of Fire, Police and Public Safety Commissioners

• Court: Appellate Court of Illinois
• Decided: September 22, 2006
• Docket: 1-04-3882 Rel
• Status: Published

Opinion

SIXTH DIVISION September 22, 2006

No. 1-04-3882

DAVID CESARIO, ) Appeal from the ) Circuit Court of Petitioner-Appellee, ) Cook County ) v. ) ) BOARD OF FIRE, POLICE AND PUBLIC SAFETY ) COMMISSIONERS OF THE TOWN OF CICERO, ) WAYNE JOHNSON as Chief of Police, and ) the TOWN OF CICERO, ILLINOIS, ) Honorable ) David Donnersburger, Respondents-Appellants. ) Judge Presiding

JUSTICE McNULTY delivered the opinion of the court:

The Town of Cicero (Town) charged officer David Cesario with

misconduct. The Town voluntarily dismissed the charges and later

refiled the dismissed charges. The Board of Fire, Police and

Public Safety Commissioners (Board) began the evidentiary hearing

about nine months after the Town moved for leave to refile the

charges. Following the evidentiary hearing the Board terminated

Cesario's employment. On administrative review, the trial court

vacated the Board's order, holding that the Board lost

jurisdiction before the evidentiary hearing began. Because the

record on appeal does not show when the Board permitted the

refiling of the charges, or the cause for the delay between the

refiling and the hearing, we cannot infer that the Board retained

jurisdiction over the case. Accordingly, we affirm the trial

court's decision vacating the Board's order.

BACKGROUND

On February 8, 1998, several Cicero police officers,

including Cesario, chased and arrested Javier Leal. A doctor who 1-04-3882

treated Leal following the arrest found several lacerations to

Leal's scalp, a chipped tooth, a fractured nose and other

indications that Leal had suffered a beating. Investigators from

the internal affairs division of Cicero's police department

interviewed Cesario and other officers about the arrest.

In April 1998 the Town of Cicero filed a complaint against

Cesario with the Town's Board of Fire, Police and Public Safety

Commissioners, charging Cesario with using excessive force when

arresting Leal. The Town also accused Cesario of lying to

investigators from internal affairs.

The Board promptly began proceedings on the charges.

Cesario requested several continuances and agreed to several

further continuances the Town requested. At a hearing on May 5,

1998, the parties discussed the status of discovery. Cesario's

attorney agreed to set June 8, 1998, as the date to determine

whether the parties had completed discovery. The Town's attorney

raised "the nettlesome issue of the thirty-day rule." Cesario's

attorney answered:

"We made a motion for continuance.

* * *

*** There is no problem with the thirty-day rule.

We will waive it and see you on the 8th for status

hearing. We will set a hearing date that night."

Later that year Cesario sought pension benefits for

disability. The Board, with the agreement of both parties, held

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no proceedings on the charges against Cesario pending a decision

on his petition for disability benefits.

Cesario eventually won the disability benefits. In November

1999 the Town moved to recommence the proceedings against Cesario

for use of excessive force and for lying to investigators. The

Town's attorney, in summarizing prior proceedings, told the

Board:

"There were charges filed ***. The case was

voluntarily dismissed. It was dismissed, by agreement,

without prejudice."

The Board granted Cesario's new attorney two weeks to respond to

the motion to recommence the proceedings.

The trial court and the parties refer to the motion as one

to reinstate the charges. We find that this is a misnomer.

Following a voluntary dismissal, the plaintiff has 30 days in

which to move to vacate the dismissal. Hawes v. Luhr Brothers, Inc., 212 Ill. 2d at 93, 105-06 (2004). Once the 30-day period

has elapsed, the court has no power to reinstate the cause of

action, unless the court granted the plaintiff, at the time of

the voluntary dismissal, leave to move to set aside the

dismissal. Layfield v. Village of University Park, 267 Ill. App. 3d 347, 349 (1994); Weisguth v. Supreme Tribe of Ben Hur, 272

Ill. 541, 543 (1916); but see Hawes, 212 Ill. 2d at 104-07

(Weisguth rule partially superceded by statute). Absent such

leave to set aside the dismissal, the plaintiff must begin the

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action anew by filing a new complaint or by refiling the original

complaint. Layfield, 267 Ill. App. 3d at 349; Weisguth, 272 Ill. at 543. The record here shows no reservation of a right to set

aside the dismissal, and we see no indication that the Town

sought to set aside the voluntary dismissal. In effect the Town

sought leave to begin a new action by refiling the charges

against Cesario. We will refer to the Town's motion as one for

leave to refile the charges. When the parties in the transcript

discuss the motion for reinstatement, we will treat that as a

reference to the motion for leave to refile the charges.

The Board heard evidence related to the charges on August

29, 2000, and October 10, 2000. In the final order dated

September 9, 2003, the Board assessed the credibility of the

witnesses and concluded that the evidence substantiated the

charges. Accordingly, the Board terminated Cesario's employment

as a Cicero police officer.

Cesario petitioned for administrative review of the Board's

order. The Board filed the record of the evidentiary hearing in

response to the petition. Cesario moved to compel the Board to

file a complete record of all pretrial proceedings. The court

granted the motion. The Board filed transcripts of all

proceedings in 1998 leading up to the voluntary dismissal, and

transcripts of proceedings held in November and December 1999.

The Board produced no record concerning any proceedings in 2000

prior to the beginning of the evidentiary hearing on August 29,

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2000. In the transcript of the August hearing, the parties refer

to earlier proceedings in 2000. The Board produced no transcript

from those proceedings.

The Board supplemented the record with the affidavit of the

attorney who represented Cesario at the evidentiary hearing. The

attorney swore:

"I did not file any motions or pleadings regarding

the reinstatement of the charges. The charges were

previously dismissed without prejudice and by agreement

of the parties."

The trial court held:

"At the December 6, 1999 hearing, the matter of

reinstatement was taken under consideration with ruling

on the motion to be made in writing. Much of the

record has been lost and while it is clear that at some

point the motion to reinstate was granted, there is no

record of this. There is no indication anywhere in the

record of the date when the motion to reinstate was

granted.

*** There is no presumption of jurisdiction of an

administrative review board. [Citation.] The facts

upon which jurisdiction is founded must be contained in

the administrative record. [Citation.]

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In the instant case, there is no information in

the Record as to when the charges against Plaintiff

were reinstated. Therefore, it is impossible to

determine whether a hearing on the reinstated charges

was commenced within thirty days. Nor can this court

assume that any delay in the commencement of the

hearing on the reinstated charges was by agreement of

Plaintiff as there is nothing in the Record which

indicates this.

*** [T]he order of dismissal is void for lack of

jurisdiction."

The Board now appeals.

ANALYSIS

We review the Board's decision, not the trial court's

judgment. Sangirardi v. Village of Stickney, 342 Ill. App. 3d 1, 10 (2003). We defer to the Board's findings of fact, but we

review de novo issues of law. Sangirardi, 342 Ill. App. 3d at

10.

The Illinois Municipal Code provides:

"Except as hereinafter provided, no officer or member

of the fire or police department of any municipality

*** shall be removed or discharged except for cause,

upon written charges, and after an opportunity to be

heard in his own defense. *** The board of fire and

police commissioners shall conduct a fair and impartial

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hearing of the charges, to be commenced within 30 days

of the filing thereof, which hearing may be continued

from time to time." 65 ILCS 5/10-2.1-17 (West 1998).

Failure to comply with the statutory time limit for beginning the

hearing divests the Board of jurisdiction over the case. Kvidera v. Board of Fire & Police Commissioners of Village of Schiller

Park, 192 Ill. App. 3d 950, 956 (1989).

"However, where the delay in commencing the hearing

within the 30-day period is not attributable to the

Board, but rather to the plaintiff, the statute is not

violated. [Citations.]

*** [R]egardless of the exact cause, the relevant

inquiry is whether the delay was the result of the

plaintiff's behavior or, in the alternative, whether it

was attributable to the Board." Kvidera, 192 Ill. App. 3d at 956-57.

The Board claims that it retained jurisdiction because

Cesario agreed to several continuances in 1998, and on May 5,

1998, Cesario's attorney expressly waived the 30-day rule.

However, the waiver and the 1998 continuances preceded the

voluntary dismissal of the charges. When the Town refiled the

charges, it began a new action against Cesario. See Neuman v. Burstein, 230 Ill. App. 3d 33, 36 (1992); Moran v. Ortho

Pharmaceutical Corp., 907 F. Supp. 1228, 1229 (N.D. Ill. 1995);

735 ILCS 5/13-217 (West 1998). We cannot construe the waiver of

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the 30-day rule at one stage in the initial proceedings as a

waiver of that rule for any proceedings in the new action the

Town commenced by refiling the charges. See Kern v. Peabody Coal Co., 151 Ill. App. 3d 807, 811 (1987) (jury waiver in initial

action does not affect right to jury trial on refiled complaint

following voluntary dismissal).

Both parties compare this case to cases involving hearings

on remand following an appeal. Cesario cites Bridges v. Board of Fire & Police Commissioners of City of Zion, 83 Ill. App. 3d 190

(1980), as authority showing that the Board lost jurisdiction,

while the Board claims that under Jones v. Board of Fire & Police

Commissioners of Village of Mundelein, 127 Ill. App. 3d 793

(1984), it retained jurisdiction to hear the charges against

Cesario even if it did not begin the hearing within 30 days of

the refiling of the charges.

In Bridges the Zion board discharged the plaintiff without

holding an evidentiary hearing. The trial court reversed the

judgment and remanded the case to the Zion board for a hearing.

The Zion board began the hearing more than 30 days after the

trial court issued the order. The board discharged the plaintiff

and the plaintiff appealed. The appellate court held that the

Zion board lost jurisdiction over the case when it failed to

commence the hearing within 30 days of the remand order.

Bridges, 83 Ill. App. 3d at 195.

In Jones the Mundelein board discharged the plaintiff

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following a full evidentiary hearing. Our supreme court reversed

the decision and remanded to the Mundelein board for "'the

opportunity to take further evidence to determine a proper

disposition.'" Jones, 127 Ill. App. 3d at 801. The Mundelein

board did not begin the proceedings on remand within 30 days of

the issuance of our supreme court's mandate. On a second appeal

the appellate court rejected the argument that the Mundelein

board lost jurisdiction. The court emphasized that the Mundelein

board commenced the proceedings in accord with the 30-day

provision, before the initial appeal. The court distinguished

Bridges: "No hearing had been held in the Bridges case [prior to

the remand] ***. In contrast, the remand here was not

for a de novo hearing, or even specifically for a

hearing. *** [I]t is clear that the proceedings at the

original timely commenced hearing on the charges in

November 1978 were not abrogated by the supreme court's

mandate." Jones, 127 Ill. App. 3d at 801.

The remand did not require the refiling of charges.

The court in Jones acknowledged the continuing vitality of Bridges and its holding that the Board loses jurisdiction if it

fails to begin the hearing within 30 days of the filing of the

charges, unless the person charged causes the delay. Jones, 127

Ill. App. 3d at 799-800. In Bridges, as interpreted in Jones,

the proceedings following the appeal continued the preappeal

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proceedings on the charges. Because the Zion board in Bridges failed to begin the evidentiary hearing before the appeal, the

court order remanding the case for an evidentiary hearing

triggered the 30-day jurisdictional period for the hearing. The

Zion board's failure to begin the hearing within 30 days of the

order for remand, through no fault of the plaintiff, deprived the

board of jurisdiction over the charges.

Here, following the voluntary dismissal, proceedings could

not recommence without the refiling of the charges against

Cesario. The Board allowed the Town to refile the charges

against Cesario, thereby starting a new action against Cesario.

The proceedings in 1998, prior to the voluntary dismissal, have

no bearing on the jurisdictional requirements for proceedings on

the refiled charges. This case, unlike Jones and Bridges, involves a new action, not a continuation of the proceedings

begun prior to the voluntary dismissal. To assert jurisdiction,

the Board needed to begin the hearing within 30 days of the

refiling of the charges, unless Cesario caused the delay. See 65

ILCS 5/10-2.1-17 (West 1998).

The record here does not show when the Board allowed the

Town to refile the charges against Cesario. "[B]ecause there is

no presumption in favor of the jurisdiction of administrative

agencies, the facts upon which their jurisdiction is founded must

appear in the record." Kahn v. Civil Service Comm'n, 40 Ill.

App. 3d 615, 618 (1976). The record here cannot support the

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conclusion that the Board began proceedings on the refiled

charges within 30 days of refiling.

The Board argues nonetheless that the record shows that it

had jurisdiction because Cesario waived the 30-day provision.

First, the Board notes that Cesario asked for some time to

respond to the motion to refile the charges. We do not see how

the request makes Cesario responsible for a delay between the

Board's decision to allow the Town to refile the charges and the

commencement of the hearing.

The Board also notes that Cesario's attorney admitted that

he never demanded a hearing following the refiling of the

charges. As the court held in Bridges: "There is no requirement in section 10-2.1-17 *** to

the effect that the plaintiff must file a demand for a

hearing. Consequently we see no basis in the argument

that the demand for a hearing should start the running

of the 30-day period." Bridges, 83 Ill. App. 3d at

194.

The Board must meet its statutory duty of commencing proceedings

in a timely manner. The respondent need not demand a hearing to

receive the benefit of the jurisdictional timing provisions.

Because the Board has not shown that Cesario caused the delay

between the refiling of the charges and the start of the hearing,

the Board has failed to show that it had jurisdiction to hear the

charges.

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Finally, the Board argues that if it lost jurisdiction,

jurisdiction revested in the Board when Cesario participated in

the hearings without objection. Under the narrow doctrine of

revestment, "litigants may revest a court which has general

jurisdiction over the matter with both personal and subject

matter jurisdiction over the particular cause after the 30-day

period following final judgment during which post-judgment

motions must ordinarily be filed." People v. Kaeding, 98 Ill. 2d 237, 240 (1983). But "[a]n administrative agency is different

from a court because an agency only has the authorization given

to it by the legislature through the statutes. Consequently, to

the extent an agency acts outside its statutory authority, it

acts without jurisdiction." Business & Professional People for Public Interest v. Illinois Commerce Comm'n, 136 Ill. 2d 192, 243

(1989). Where our legislature has carefully proscribed the

jurisdiction of an administrative body, litigants cannot by

consent sidestep the proscriptions. City of West Frankfort v.

Industrial Comm'n, 406 Ill. 452 (1950); Rockford Township Highway Department v. Illinois State Labor Relations Board, 153 Ill. App.

3d 863, 875 (1987). Thus, the doctrine of revestment does not

apply to administrative agencies. Cesario could not revest the

Board with jurisdiction when the statute terminated that

jurisdiction.

The record does not show that the Board began hearings in

this case within 30 days of the refiling of charges following the

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voluntary dismissal of the original charges. The record also

gives no indication that Cesario delayed the hearing on the

refiled charges. Thus, we cannot conclude from this record that

the Board had jurisdiction over the case when it began the

evidentiary hearing. Accordingly, we hold that the trial court

correctly vacated the Board's order.

Affirmed.

TULLY and O'MALLEY, JJ., concur.

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