Jakubec v. Bloomingdale Fire Protection District No. 1

493 N.E.2d 717, 144 Ill. App. 3d 49, 97 Ill. Dec. 910, 1986 Ill. App. LEXIS 2308
CourtAppellate Court of Illinois
DecidedMay 28, 1986
DocketNo. 2—85—0185
StatusPublished
Cited by2 cases

This text of 493 N.E.2d 717 (Jakubec v. Bloomingdale Fire Protection District No. 1) 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
Jakubec v. Bloomingdale Fire Protection District No. 1, 493 N.E.2d 717, 144 Ill. App. 3d 49, 97 Ill. Dec. 910, 1986 Ill. App. LEXIS 2308 (Ill. Ct. App. 1986).

Opinion

JUSTICE SCHNAKE

delivered the opinion of the court:

The plaintiff, Stephen Jakubec, Jr., appeals from an order of the circuit court of Du Page County affirming the administrative decision of the defendants, the board of trustees of the Bloomingdale Fire Protection District No. 1 (trustees), specifically, Robert C. Smith, Walter A. Plass and Donald E. Petges, which discharged the plaintiff from the fire department as a result of charges of neglect of duty brought by defendant Richard E. Randecker, the assistant chief of the fire department. The plaintiff raises two issues on appeal: (1) whether the decision of the defendants was against the manifest weight of the evidence; and (2) whether the defendants’ findings constitute sufficient cause to warrant discharge. For the reasons set forth below, the judgment of the circuit court is affirmed.

The findings and conclusions of an administrative agency on questions of fact are to be considered prima facie true and correct. (Ill. Rev. Stat. 1985, ch. 110, par. 3—110.) Consequently, a reviewing court should not reweigh the evidence and determine what is the preponderance of the evidence. (Cusack v. Edgar (1985), 137 Ill. App. 3d 505, 509.) On administrative review, the court’s function is to determine whether the findings and decisions of the administrative agency are supported by substantial evidence in the record, and it may not disturb the judgment unless it is against the manifest weight of the evidence. (Garland v. Department of Labor (1984), 104 Ill. 2d 383, 392; Crittenden v. Board of Fire & Police Commissioners (1985), 139 Ill. App. 3d 154, 158; Davis v. Retirement Board of Policemen’s Annuity Fund (1975), 30 Ill. App. 3d 318, 323.) In order to conclude that a finding is against the manifest weight of the evidence, the court must be satisfied that an opposite conclusion is clearly evident. Battle v. Illinois Civil Service Com. (1979), 78 Ill. App. 3d 828, 831; Fox v. Illinois Civil Service Com. (1978), 66 Ill. App. 3d 381, 387.

The record in the present case reveals that the plaintiff became a full-time firefighter for the Bloomingdale Fire Protection District No. 1 on August 1, 1975. A bond referendum was passed in 1977 for the purpose of establishing a paramedic program, and an ambulance tax was created. In 1978, an oral offer was made to the plaintiff giving him the opportunity to become a paramedic in addition to being a firefighter/EMT. The plaintiff testified that he verbally responded that he would “try paramedic out” and would see if he could handle it. There was no conversation or written directive issued as to the duties or length of service of a paramedic. The plaintiff began his paramedic training in July 1978, which he successfully completed. Lawrence Koehn, the fire chief, testified that the plaintiff was given time away from his job to complete his training and was paid his wages for the duration. The cost to the fire department was approximately $6,000.

In a letter dated July 25, 1982, the plaintiff notified Chief Koehn of his intent to decertify as a paramedic when the renewal of his certification became due in June 1983. The reasons cited by the plaintiff were certain hospital policies, the increasing responsibilities and complexities of the paramedic service, and his increasing role as department radio repairman. Chief Koehn advised the trustees of the plaintiff’s letter on August 10, 1982. At a trustee meeting the following month, the trustees decided that “unilateral moves within the Department to change job category may only be done with the approval of the Chief of the Department.” On November 9, 1982, the trustees, at a meeting attended by the plaintiff, approved a motion which provided that each shift would consist of a lieutenant, a firefighter, a firefighter EMT I and four paramedics so that all shifts would be filled with adequately trained personnel. A written directive to that effect was issued and distributed to fire department employees. The probable outcome of the failure to retain one’s job status in the assigned category was explained.

In a letter dated July 1, 1983, Chief Koehn explained the recent changes to the plaintiff. He noted that the plaintiff was behind in the continuing education required for recertification and advised him that, since all job slots in the department were full, there would be no place for the plaintiff to transfer should he elect not to maintain his paramedic status. In a letter dated July 21, 1983, Dr. Stanley Zydlo, project medical director of the mobile intensive care unit at Northwest Community Hospital, notified the plaintiff that his failure to take the June 1983 recertification examination was taken as his intention to allow his certified status to lapse. A follow-up letter was sent by Dr. Zydlo on July 29, 1983, which notified the plaintiff that he was no longer a certified paramedic.

The plaintiff served as a paramedic through August 3, 1983. On August 4, 1983, Assistant Chief Randecker, pursuant to the instructions of the vacationing Chief Koehn, charged the plaintiff with violation of chapter V (Fire Department Offenses and Penalties), article C, neglect of duty, in that since his certified paramedic status lapsed, he could no longer function in that capacity. This court, as well as the circuit court, is required to take judicial notice of all general ordinances of municipal corporations within the State. Ill. Rev. Stat. 1985, ch. 110, pars. 8—1001, 8—1002; City of Chicago v. Severini (1980), 91 Ill. App. 3d 38, 46.

The plaintiff contends that the decision of the defendants was against the manifest weight of the evidence. Specifically, he argues that since no ordinances, rules or regulations were enacted by the trustees creating, defining or establishing duties and conditions relating to a position or rank of firefighter/paramedic, the plaintiff cannot be found to have wilfully refused to recertify as a paramedic, and the defendants’ conduct amounted to a unilateral change of the terms of his employment contract.

In Illinois, a municipal position need not be created by formal ordinance, but may be established by contract, express or implied. (People ex rel. Siegal v. Rogers (1947), 397 Ill. 187, 193; People ex rel. Jacobs v. Coffin (1918), 282 Ill. 599, 607.) This rule of law has been upheld to the benefit of plaintiffs in various cases in which the plaintiff had been appointed to and served in positions which the defendant board of fire and police commissioners subsequently claimed were nonexistent because they had not been created validly by statute or municipal ordinance. (People ex rel. Siegal v. Rogers (1947), 397 Ill. 187; People ex rel. Jacobs v. Coffin (1918), 282 Ill. 599; Reilly v. Board of Fire & Police Commissioners (1975), 32 Ill. App. 3d 142; Kagann v. Board of Fire & Police Commissioners (1975), 28 Ill. App. 3d 209; People ex rel. Bubash v. Board of Fire & Police Commissioners (1973), 14 Ill. App. 3d 1042; see also People ex rel. Kwiat v. Board of Fire & Police Commissioners (1973), 14 Ill. App. 3d 45 (held in favor of the defendant where the plaintiff was never appointed to nor performed duties of requested position).) We discern reason for holding that this rationale is not equally applicable to a situation, as here, where the plaintiff elected to fill a position in a newly created program and thereafter claimed that the position was nonexistent because it was not created by ordinance.

Section 6 of “An Act in relation to fire protection districts” (Ill. Rev. Stat. 1985, ch. 1271/2, par.

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Bluebook (online)
493 N.E.2d 717, 144 Ill. App. 3d 49, 97 Ill. Dec. 910, 1986 Ill. App. LEXIS 2308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jakubec-v-bloomingdale-fire-protection-district-no-1-illappct-1986.