Charles W. Olshock, Cross-Appellants v. Village of Skokie, Cross-Appellees

541 F.2d 1254, 93 L.R.R.M. (BNA) 2289, 1976 U.S. App. LEXIS 7094

• Court: Court of Appeals for the Seventh Circuit
• Decided: September 17, 1976
• Docket: 76-1153, 76-1191
• Status: Published

Opinions

PER CURIAM.

In 1971 the Village of Skokie, Illinois, a municipality of about 68,000 persons located northwest of Chicago, entered into a collective bargaining agreement with the Combined Counties Police Association as the bargaining agent for all of its approximately 96 police patrolmen. At the last negotiating session on June 27,1975, for the fiscal year beginning May 1, 1975, a bargaining impasse was reached. The association thereupon decided to conduct a “uniform protest” which was to consist of reporting for work at the normal time out of uniform and remaining available for work out of uniform throughout the shift.

The uniform protest began at midnight on July 3, and ended July 13, 1975. Fifty-nine patrolmen members of the association participated as their various shifts were to commence. The Rules and Regulations of the Police Department of the Village of Skokie require the wearing of full uniform and require obedience to direct orders. When the 59 protestors reported at their respective roll calls, they were ordered to put on their uniforms and, failing to do so, were placed on no-pay status and ordered to leave the premises. They would leave the building but remain on the parking lot outside of the police station throughout their shift.

A small number of patrolmen returned to uniform duty after one to six days of protest, but most of them reported back on either July 13 or 14. During the course of the protest, almost all of the police officers participating had been charged with failure to report in uniform and refusing to change into uniform when directly ordered to do so, under Ill.Rev.Stat., ch. 24, § 10-2.1 — 17 (1975). Hearings were conducted before the Board of Fire and Police Commissioners on fourteen days or evenings over the period of July 14 to September 13, 1975.

Of the 59 policemen who participated in the “uniform protest,” two of them resigned from the force. Of the remaining 57, two were never charged with any regulation violations, one was found not guilty, 20 were suspended for various numbers of days and 34 were discharged. Of those suspended, three were suspended for 30 days, 11 were suspended for 25 days, three for 15 days, two for six days and one for two days.

Thirty-two of the 34 discharged patrolmen brought this action, alleging deprivation of rights under the First, Fifth and Fourteenth Amendments to the Constitution, and under 42 U.S.C. §§ 1983 and 1985. Trial, commenced on September 10, 1975 and concluded on January 21, 1976. Findings of fact, conclusions of law and a decree were entered by the district court on February 4, 1976. Olshock v. Village of Skokie, 411 F.Supp. 257 (N.D.I11.1976).

The district court reinstated all of the plaintiffs with back pay from July 4, 1975 to the date of reinstatement less the following amounts: (1) each plaintiff’s salary for the ten days he was off duty on protest; (2) each plaintiff’s salary for a maximum suspension period of 30 days (unless the defendants in their discretion reduced the suspension period in the case of any individual patrolman); (3) damages of $3,423.80, which was l/59th of the Village of Skokie’s excess payroll and other expenses resulting from the uniform protest in the total amount of $202,004.15; (4) all amounts received from full-time employment between July 4, 1975 and January 31, 1976; and (5) all amounts received as unemployment compensation from the State of Illinois (which amounts shall be repaid by the Village of Skokie to the State of Illinois). Back salaries were payable as of March 1, 1976 without interest prior to. that date but were to bear interest of 5 per cent per annum from that date until paid.

The defendants, the Village of Skokie, the Board of Fire and Police Commissioners of the Village, the three individual members of the board, and the Village Chief of Police, appealed from the February 4, 1976 decree. The plaintiffs cross-appealed from that portion of the decree which directs an offset or deduction of $3,423.80 per plaintiff.

I

At the outset, we make it clear that the plaintiffs’ actions in failing to report in proper uniform and in refusing to change into uniform when directly ordered to do so by their superior officers were in violation of Rules and Regulations of the Police Department of the Village of Skokie and under Illinois law would be cause for removal or discharge. The Supreme Court of the United States, in holding in Kelley v. Johnson, 425 U.S. 238, 248, 96 S.Ct. 1440, 1446, 47 L.Ed.2d 708 (1976), that a county regulation limiting the length of a policeman’s hair did not violate any right guaranteed to policemen by the Fourteenth Amendment, said:

The overwhelming majority of state and local police of the present day are uniformed. . . . This choice [that similarity in appearance of police officers is desirable] may be based on a desire to make police officers readily recognizable to the members of the public, or a desire for the esprit de corps which such similarity is felt to inculcate within the police force itself. Either one is a sufficiently rational justification for regulations so as to defeat respondent’s claim based on the liberty guaranty of the Fourteenth Amendment.

Inasmuch as the Skokie regulations were rationally justified, their violation would create “cause” for removal or discharge under the applicable Illinois Statute. Ill.Rev. Stat., ch. 24, § 10-2.1-17 (1975).¹ The plaintiffs recognize this fact in one of their briefs when they concede that they do not “expect a favorable decision to in any way indicate approval of their protest actions.”

II

However, we are confronted with another constitutional problem which arises out of the defendants’ conduct of the “fair and impartial hearing” required by § 10-2.1-17.

In Bishop v. Wood, -U.S. -, -, 96 S.Ct. 2074, 2078, 48 L.Ed.2d 684 (1976), the Supreme Court, in holding that a Marion, North Carolina, ordinance which had been interpreted as a matter of state law as permitting the discharge of a city policeman “at the will and pleasure of the city” did not create a property interest sufficient to invoke constitutional protection, said:

A property interest in employment can, of course be created' by ordinance, or by an implied contract.² In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law.³

As the Court recognized in Bishop, six justices in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), concluded that “because the employee could only be discharged for cause, he had a property interest which was entitled to constitutional protection,” thus distinguishing Bishop from Arnett,-U.S.-, at n.8, 96 S.Ct. 2074.

We look then to the Illinois statute which provides that “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” and “[t]he board of fire and police commissioners shall conduct a fair and impartial hearing of the charges . . . .” Ill.Rev.Stat., ch. 24, § 10-2.1-17 (1975).⁴ In interpreting this statute, as applied to the dismissal of a village fireman, the Illinois Appellate Court said in Dendor v. Board of Fire and Police Commissioners, 11 Ill.App.3d 582, 588-589, 297 N.E.2d 316, 321 (1st Dist.1973):

We begin with the premise that although a public employee does not have a constitutional right to such employment, he cannot be barred or removed from that employment arbitrarily or in disregard of his constitutional rights. (Fort v. Civil Service Commission of County of Alameda (1964), 61 Cal.2d 331, 38 Cal. Rptr. 625, 392 P.2d 385.) It can be said with equal certainty that acceptance of public employment is not an abandonment of constitutionally protected rights. (Citations omitted.)

The Illinois Supreme Court has held that “[t]he authority given the Board of Fire and Police Commissioners to remove only for cause is not an arbitrary one, but is to be exercised on just and reasonable grounds.” Fantozzi v. Board of Fire and Police Commissioners, 27 Ill.2d 357, 360, 189 N.E.2d 275, 277 (1963). The Illinois Appellate Court reversed the Board of Fire and Police Commissioner’s discharge of a fireman, who had left headquarters without permission, on the ground that “in view of the unprofessional working conditions of this fire department, we find it difficult to believe that . . [leaving without permission] constitute^] ‘good cause’ for the discharge . . . [inasmuch as] firemen were often away from their posts of duty for short periods.” Smith v. O’Keefe, 9 Ill.App.3d 814, 823, 293 N.E.2d 142, 149 (5th Dist.1973).

The Supreme Court recently held in Hortonville Joint School District v. Hortonville Education Ass’n, - U.S. -, -, 96 S.Ct. 2308, 2314, 49 L.Ed.2d 1 (1976), that the members of a school board which discharged teachers who had gone on strike in direct violation of Wisconsin law, were not disqualified inasmuch as:

[A] decisionmaker [is not] disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of .a showing that he is not “capable of judging a particular controversy fairly on the basis of its own circumstances.”

The Court recognized, however, that disqualification would result if “the Board members had some personal or official stake in the decision” or “the Board has manifested some personal bitterness toward the . . . [accused] . . . .”

In Mank v. Board of Fire and Police Commissioners, 7 Ill.App.2d 478, 484, 288 N.E.2d 49, 53 (5th Dist.1972), in holding that under § 10-2.1-17, the requirements of a fair and impartial hearing were not satisfied where one of the commissioners was the father of the police chief who brought the charges against the officer, said:

Bias and prejudice is an illusive condition of the mind and it may even unconsciously exist in the person who would sincerely contend that he has no bias or prejudice. The function of the Board of Fire and Police Commissioners is judicial to determine whether or not the charges were true and whether or not the charges were sufficiently severe to warrant a discharge. The testimony offered here was conflicting and . . . raised a number of credibility issues. Relationship by blood is sufficient to disqualify a judge in hearings . . . and the commissioners here were “judges in the full sense of the word.” (Emphasis added.)

Ill

Thus, the Illinois statute as interpreted by Illinois Courts has created a property interest in employment entitled to constitutional protection under Bishop and Ar-nett, although under the circumstances of this case no liberty interest existed in accordance with Kelley.

The district court here held lengthy and voluminous hearings. The court made detailed findings and conclusions. 411 F.Supp. 258-268. We have examined the record below and find those findings and conclusions not “clearly erroneous.” F.R. Civ.P. 52(a).

The only discernible pattern of treatment of the 54 police officers who were disciplined is that the 34 who were discharged appeared with an attorney and the 20 who were suspended appeared without an attorney. 411 F.Supp. at 260.

Any other purported pattern of treatment does not survive close analysis. All 54 of those disciplined agreed to engage in the uniform protest (A. 4a), all of them participated in the protest, all of them were members of the police association (A. 10a), all of them pleaded not guilty⁵ to the charges against them (A. 4a), and all of them stipulated as to the facts of what occurred (A. 13a). All of them were charged with the same offenses on substantially the same days.

At the outset there are some unexplained facts. Two officers, Markoutas and Kruscynski, who participated in the protest and were in the same category otherwise as the 54 disciplined, were not even charged. (A. 3a.) Markoutas had even urged a reluctant officer to join the protest and the latter was discharged. (T. 2066 — 2067.) The officer (Trombatore) who first brought up the subject of some protest action, who first brought up the possibility of a full-out strike, who first suggested the possibility of speeding up arrests and issuing of tickets and who first suggested the uniform protest (A. 14a; T. 1203) was not discharged nor even suspended for the maximum 30 days. Another officer (Warrington) who had urged a full strike and was more outspoken than others about participating in a job protest, was not discharged but was only suspended for 15 days. (A. 14a; T. 801.)

The district court found that:

13. The evidence upon which the plaintiffs herein were found guilty and then discharged was identical to the evidence to which all the other policemen stipulated and upon which all the other policemen were found guilty and then merely suspended without pay for specific periods of time. The plaintiffs herein did not contest the same facts that were stipulated to by the other officers and they offered no evidence whatsoever to contradict said facts.

411 F.Supp. at 260.

The record contains the length of service and the service record of almost all of the 54 disciplined officers and there appears to be no correlation between the severity of punishment meted out and length of service or quality of that service. Some of the discharged plaintiffs had long service records and extremely commendable records. For example, officer Olshoek had over ten years service, ten police department commendations and 20 letters from appreciative citizens (Board Hearings, 894-896, 913-914); officer Anglin had over ten years service (A. la) and ten letters of commendation based on citizens’ reactions to the quality of his police service. (Anglin Ex. 1.)

The defendants have attempted to argue that all the men who returned up to and including July 13, 1975, were only suspended whereas the 34 who returned on July 14, 1975 were discharged. On July 13, the police association counsel had advised the men to return to work inasmuch as he had been told by a village representative that if they would end the strike no one would be fired. (A. 10a.) When the men agreed to return, the association counsel reported that fact to the chief of police and said the men would report at the 7:00 a. m. o’clock shift on July 14, to which the chief replied that they should “come back as soon as possible.” (A. 24a — 25a.) Nowhere does the record or the findings indicate that the discharged men were advised by anyone that July 13, was a crucial deadline between future professional life and death.⁶ And, in fact, the “deadline” was not actually adhered to: plaintiffs Prondfit, Jones and Carter reported on the 13th and were told by their supervising officer to come back on the 14th (Finding 9, 411 F-Supp. at 259); officers DeGusto, McLaughlin and Quante were suspended only, despite the fact that they returned on the 14th. (Finding 18, Id. at 261.) The only apparent reason these six received different kinds of punishment is that the three returning on the 13th had attorneys for their disciplinary hearings and were discharged, whereas the three returning on the 14th had no attorneys⁷ and were suspended (Findings 11 and 12, Id. at 260).

There is no pattern of severity of discipline discernible by any other rational test. The Board’s question “would you do it again?” was not asked of eight of those suspended, received varying answers from the other members of the suspended group, and was not asked of 27 of the discharged men. The record and findings abound with total inconsistency except as described in Findings 11 and 12 (411 F.Supp. at 260):

11. Except for the plaintiffs herein, all of the policemen who on or after July 3, 1975 and until July 14, 1975, had withdrawn their services as police officers in uniform, appeared for trial at administrative disciplinary hearings conducted by the defendant Board and, although pleading “technically not guilty”, signed stipulations of fact wherein they admitted that they had refused to perform their duty in uniform and that they had disobeyed orders to put on their uniforms and perform their duties therein. These policemen were found guilty and were suspended from duty without pay for specific periods of time. Before they were suspended, said policemen had stated that they would not be represented by counsel for the Union (Mr. Burpo), or by other counsel; and in fact they were not represented at their hearings by any counsel; they appeared pro se and in the record waived their right to any counsel after they were asked if they desired to have counsel.

12. Plaintiffs herein all refused to enter into the arrangement described in paragraph 11 above. Rather, they chose to be represented by counsel, to plead not guilty, and to go to trial. All plaintiffs herein were tried, were found guilty, and were discharged.

The 34 who were discharged received virtually the same form of “Findings and Decision” by the Board and the 20 who were suspended received substantially the same form except that the last paragraph ordered suspension rather than discharge.

It seems obvious that contrary to Illinois statute as interpreted by the Illinois courts and contrary to the due process and equal protection clauses of the Fourteenth Amendment, the defendant board and its individual members acted in a wholly arbitrary manner in purporting to distinguish between suspension and discharge. Actually, they were distinguishing between employing or not employing counsel to represent the protest participants. This was a suspect classification for which they failed to show a compelling need.

IV

In regard to damages, the district court was struggling conscientiously to do justice in view of the two countervailing pressures which we have discussed in Parts I and II of this opinion: the illegality of plaintiffs’ protest action and the arbitrariness of defendants’ reaction to that protest. Back pay is a remedy for employment discrimination and like most remedies is largely in the discretion of the district court. Johnson v. Railway Express Agency, 421 U.S. 454, 460, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Albemarle Paper Co. v. Moody, 422 U.S. 405, 414-425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).

The unusual circumstances of this case called for a Solomon-like approach by a chancellor and that is what the district court endeavored to apply. We cannot say that he was clearly wrong.

The district court’s judgment of February 4, 1976, is affirmed in its totality as against both the appeal and the cross-appeal.

AFFIRMED.

1 . Nor can plaintiffs’ actions be considered “partial strike activities” pre-empted by federal labor law against state regulation (see Lodge 76, Machinists v. Wisconsin Employment Relations Commission, - U.S. -, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976)), inasmuch as Illinois law prohibits municipal employees, including police officers, from striking against their employer. Board of Education v. Red-ding, 32 Ill.2d 567, 571, 207 N.E.2d 427, 430 (1965); Fletcher v. Civil Service Comm., 6 Ill.App.3d 593, 286 N.E.2d 130 (2d Dist.1972).

2 . In Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972), the Court said that a “person’s interest in a benefit is a ‘property’ interest for due process purposes if there are . . . rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.”

3 . In Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the Court said:

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law— rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

4 . The entire first paragraph of § 10-2.1-17 reads:

Except as hereinafter provided, no officer or member of the fire or police department of any municipality subject to this Division 2.1 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 hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time. In case an officer or member is found guilty, the board may discharge him, or may suspend him not exceeding 30 days without pay. The board may suspend any officer or member pending the hearing with or without pay, but not to exceed 30 days. If the Board of Fire and Police Commissioners determines that the charges are not sustained, the officer or member shall be reimbursed for all wages withheld, if any. In the conduct of this hearing, each member of the board shall have power to administer oaths and affirmations, and the board shall have power to secure by its subpoena both the attendance and testimony of witnesses and the production of books and papers relevant to the hearing.

5 . Or at least did not plead guilty, which amounts to a “not guilty” plea. Many of those who were discharged were not asked by the Board or prosecutor how they pleaded.

6 . The Chief of Police who had issued virtually identical notices of charges to the 54 disciplined men, had on July 16, 1976, “recommended” to the Board that all men who returned on July 14, be discharged and that all men who returned on or before July 13, be suspended only.

7 . Quante had no attorney until he was found guilty by the Board, after which he appeared at his mitigation hearing with a non-union attorney. (Finding 18, 411 F.Supp. at 261.) Officers Hanline and Lowen were represented by the union attorney at the outset of their hearings but when they discovered the semi-secret formula of success they discharged their attorney, but they were too late and were discharged rather than suspended. (Finding 19, Id. at 261.)