Lane v. Village of Heyworth

2019 IL App (4th) 180488

• Court: Appellate Court of Illinois
• Decided: July 31, 2019
• Docket: 4-18-0488
• Status: Unpublished

Opinion

FILED July 31, 2019 2019 IL App (4th) 180488 Carla Bender 4th District Appellate NO. 4-18-0488 Court, IL

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

CHRISTOPHER LANE, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County THE VILLAGE OF HEYWORTH, a Municipal ) No. 16MR242 Corporation; TODD ZALUCHA, Mayor; and ) TOM HAYNES, HAROLD BROWN, DAN ) ) BILLINGTON, JIM LAUTERBERG, CLAY ) WISEMAN, and LYNNE BARNHILL, ) Honorable Trustees, ) Rebecca S. Foley, Defendants-Appellants. ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court, with opinion. Justices Steigmann and Harris concurred in the judgment and opinion.

OPINION ¶1 On February 16, 2016, Mayor Todd Zalucha removed Christopher Lane from his

position as the appointed police chief of the Village of Heyworth (Village). On February 18,

Mayor Zalucha informed the public of Lane’s termination and met with the Village’s board of

trustees in an executive session to discuss the reasons for termination. On February 23, the

Village’s board of trustees refused to reinstate Lane. Lane and his attorney sent a letter to Mayor

Zalucha advising the mayor that Lane never received the reasons for his removal in writing and,

therefore, was not properly removed from his position. On February 25, Mayor Zalucha provided

Lane with the reasons for his removal in writing. The reasons were served to the Village’s board

of trustees at the next regularly scheduled board meeting on March 3, 2016, and the Village’s

board of trustees voted against reinstatement. Lane sought review of that decision in the circuit court of McLean County, and the court awarded him back pay, benefits, and court costs.

¶2 On appeal, the Village argues the circuit court erred by (1) granting Lane’s

motion to modify the record on review, (2) finding Lane was removed twice for the same

offense, and (3) exceeding its jurisdiction by awarding monetary damages. We reverse.

¶3 I. BACKGROUND

¶4 On February 5 and February 16, 2016, Mayor Zalucha met with the appointed

police chief, Lane, about his employment with the Village. During the meetings, Mayor Zalucha

laid out the grounds for termination and offered Lane the option of resigning, which Lane

refused. After discussing the grounds for termination and Lane’s refusal to resign, Mayor

Zalucha fired Lane on February 16. On February 18, Mayor Zalucha read a statement to the

public during an open board of trustees meeting, stating he had terminated Lane’s employment

as an appointed official and that he would not be discussing the specific reasons for termination

due to the private and confidential nature of the information. The board members then went into

an executive session, where the Village attorney, Geoff Dodds, and Mayor Zalucha discussed the

conversations he had with Lane in the February 5 and February 16, 2016, meetings, as well as

the reasons for the termination, including some that had only come to light after the meeting

between the mayor and Lane on February 16. No formal vote was taken in the executive session.

¶5 The Village board of trustees met in a special open board meeting to vote on

Lane’s employment status on February 23, 2016. At the meeting, Mayor Zalucha read a prepared

statement regarding Lane’s removal as chief of police. The public statement said Lane’s removal

was “due to his performance not meeting expectations” and included references to Lane

providing false information to the Village’s liability insurance carrier and false statements to the

press. The mayor stated it was his opinion the interests of the Village “demand removal.”

-2- ¶6 After listening to comments from the public, the vote to reinstate Lane’s

employment was defeated by a 4 to 1 vote, with one member abstaining. On February 25, 2016,

Lane, through his attorney, sent a letter to Mayor Zalucha informing him Lane had not been

properly removed because the mayor failed to provide Lane with any written charges and the

board had not been properly informed of the reasons for removal. The letter also outlined the

claim Lane was denied due process in the actions leading up to his discharge by the Mayor.

¶7 As a result of Lane’s letter, Mayor Zalucha served Lane with written charges on

the same day, indicating Lane was being terminated for his “continual lack of honesty and for

performance well below what is expected for being Chief of Police of the Village of Heyworth.”

At the next regular Village board meeting on March 3, 2016, Mayor Zalucha explained to the

board members the prior attempt to remove Lane was “declared to be null and void.” Mayor

Zalucha stated he removed Lane on February 25, 2016, and provided him with the written

charges against him. Lane’s attorney was present and argued why he did not believe the previous

effort to terminate his client was properly handled. He also argued on Lane’s behalf to the

residents of the Village who were present at the meeting. After further public comments, the vote

to reinstate Lane was again defeated 4 to 1, with one member absent. Lane was officially

terminated.

¶8 In April 2016, Lane petitioned the circuit court for a writ of certiorari to overturn

his termination as police chief of the Village and reinstate him to that position with full back pay

and benefits. In May 2016, the Village filed its answer and affirmative defenses, and pursuant to

the procedure for review under a common law writ of certiorari, the Village filed a record of all

matters relating to its decision to remove Lane. In January 2017, Lane filed a motion seeking to

strike the Village’s answer and affirmative defenses, as well as a motion to modify the record on

-3- review to include only the February 23 and March 3, 2016, meetings and the open and closed

session minutes or recordings of those meetings. In February 2017, the Village filed its response.

The court granted Lane’s motion to modify the record on review. In October 2017, after oral

arguments, the court granted the writ of certiorari, stating Lane was removed from office twice,

on February 16, 2016, and on February 25, 2016, for the same reasons and awarded applicable

back pay and benefits.

¶9 This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 A. Record on Review

¶ 12 The Village argues the circuit court improperly granted Lane’s motion modifying

the record on review. We agree.

¶ 13 “The Administrative Review Act is applicable only where it is expressly adopted

by the act creating or conferring power on the agency involved.” Smith v. Department of Public

Aid, 67 Ill. 2d 529, 540, 367 N.E.2d 1286, 1292 (1977). Common law certiorari is “a general

method for reviewing the action of agencies and tribunals exercising administrative functions.”

(Internal quotation marks omitted.) Smith, 67 Ill. 2d at 541. It applies where the statute creating

the administrative agency does not contain an express reference to the Administrative Review

Act and provides no other form of review. Smith, 67 Ill. 2d at 541. Our supreme court has stated

“the substantial differences that at one time existed between common law and statutory

certiorari have been all but obliterated.” Smith, 67 Ill. 2d at 541. The standards of review in an

action under a common law writ of certiorari are essentially the same as those under the

Administrative Review Law. Oliver v. Pierce, 2012 IL App (4th) 110005, ¶ 12, 964 N.E.2d 666.

Courts of review will not interfere with an agency’s or tribunal’s discretionary authority unless

-4- the exercise of discretion is found to be arbitrary and capricious or its action is against the

manifest weight of the evidence. Hanrahan v. Williams, 174 Ill. 2d 268, 272-73, 673 N.E.2d 251,

254 (1996). Neither the Illinois Municipal Code (65 ILCS 5/1-1-1 et seq. (West 2014)) nor the

Village’s municipal code expressly reference the Administrative Review Law, formerly known

as the Administrative Review Act, and neither party argues common law certiorari was not the

proper method of review in this case.

¶ 14 A writ of certiorari draws its origins in chancery and allows a petitioner, without

an avenue of appeal or review, an opportunity to obtain limited review of an action by a court or

other tribunal with quasi-judicial functions. Hartley v. Will County Board of Review, 106 Ill.

App. 3d 950, 954, 436 N.E.2d 1073, 1076 (1982). The purpose of the writ is to “have the entire

record of the inferior tribunal brought before the court to determine, from the record alone,

whether that body proceeded according to the applicable law.” Stratton v. Wenona Community

Unit District No. 1, 133 Ill. 2d 413, 427, 551 N.E.2d 640, 645 (1990).

¶ 15 In Niles Township High School District 219 v. Illinois Educational Labor

Relations Board, 379 Ill. App. 3d 22, 25, 883 N.E.2d 29, 33 (2007), the First District was tasked

with determining the applicable record on review of the Illinois Educational Labor Relations

Board’s (IELRB) decision. The case arose from a dispute over the school district’s refusal to

arbitrate, which led to the teacher’s union filing a charge with the IELRB. Niles Township High

School District 219, 379 Ill. App. 3d at 24. The executive director of the IELRB investigated the

union’s charge and issued a formal unfair labor practice complaint. Niles Township High School

District 219, 379 Ill. App. 3d at 25. The matter was referred to an administrative law judge

(ALJ), and the ALJ submitted its recommendations to the IELRB. Niles Township High School

District 219, 379 Ill. App. 3d at 25. The appellate court, when determining what constituted the

-5- record on appeal, noted Illinois Supreme Court Rule 335(d) (eff. Feb. 1, 1994) provides: “ ‘The

entire record before the administrative agency shall be the record on review unless the agency

and the petitioner stipulate to omit portions.’ ” Niles Township High School District 219, 379 Ill.

App. 3d at 25 (quoting Ill. S. Ct. R. 335(d) (eff. Feb. 1, 1994)). As a result, it found documents

produced during the investigative stage of the IELRB proceeding and not considered by the

agency in rendering a final decision were still part of the “entire record.” Niles Township High

School District 219, 379 Ill. App. 3d at 25-26.

¶ 16 Here, section 1-6-6(A) of the Village’s municipal code (Village of Heyworth

Municipal Code § 1-6-6(A) (adopted Apr. 6, 2009)) states, “[t]he mayor shall be president of the

board of trustees as provided by statute.” Mayor Zalucha, as the Village board president,

reviewed a number of documents and had various allegations investigated by the Village

attorney relating to Lane’s employment, performance, use of Village property, and involvement

with other agencies to determine whether it was in the Village’s best interest to remove Lane as

police chief. All of this investigative information, as well as previous efforts at remediation or

warnings given to Lane, contributed to the mayor’s ultimate decision to remove him. Further, at

the first executive meeting with the Village board, at least 17 specific instances, which the mayor

believed to be some form of misfeasance, malfeasance, or nonfeasance of office, were discussed

with the Village board to explain why he felt removal was necessary. At the second executive

session, where a vote was taken, two additional examples were provided. The full Village board,

with the mayor as its president, is the administrative body in this case. Although the mayor has

authority to initiate the removal of the police chief, there must be action by the rest of the board

within the specified time to either approve or disapprove of his removal. As a result, the actions

of the mayor and the board of trustees must be considered together when evaluating the process

-6- of removal. We see no reason the information obtained in the investigative stage would not be

part of the entire record on review. See Niles Township High School District 219, 379 Ill. App.

3d at 26. Contrary to Lane’s argument, both here and before the trial court, the actions of the

board in refusing to reinstate Lane cannot be separated from the basis for his removal in the first

place. Otherwise, Lane would appear to concede his removal was proper but merely contend the

process was not appropriate. Reviewing the record, this was not the claim. Lane’s counsel

contested the propriety of removal when he appeared at the second meeting, arguing the reasons

for removal were not appropriate and contending his client deserved to be reinstated. Further,

Lane contended part of the fatal defect in the proceedings was his alleged removal twice for the

same offense in violation of statute. It is not possible to make that determination without

knowing the offenses for which he was removed, or for which removal was sought, in each

meeting before the board.

¶ 17 B. Writ of Certiorari

¶ 18 The Village argues the trial court erred in granting certiorari. We agree.

¶ 19 “The common law writ of certiorari provides a means whereby a party who has

no avenue of appeal or direct review may obtain limited review over action by a court or other

tribunal exercising quasi-judicial functions.” Reichert v. Court of Claims, 203 Ill. 2d 257, 260,

786 N.E.2d 174, 177 (2003). We review legal questions of statutory interpretation de novo. In re

Petition for Annexation to the Village of Bull Valley, 392 Ill. App. 3d 577, 585, 912 N.E.2d 194,

201 (2009).

¶ 20 Section 3.1-35-10 of the Illinois Municipal Code states:

“Except where otherwise provided by statute, the mayor or

president may remove any officer appointed by the mayor or

-7- president under this Code, on any written charge, whenever the

mayor or president is of the opinion that the interests of the

municipality demand removal. The mayor or president shall report

the reasons for the removal to the corporate authorities at a

meeting to be held not less than 5 nor more than 10 days after the

removal. If the mayor or president fails or refuses to report to the

corporate authorities the reasons for the removal, or if the

corporate authorities by a two-thirds vote of all members

authorized by law to be elected disapprove of the removal, the

officer thereupon shall be restored to the office from which the

officer was removed. The vote shall be by yeas and nays, which

shall be entered upon the journal of the corporate authorities. Upon

restoration, the officer shall give a new bond and take a new oath

of office. No officer shall be removed a second time for the same

offense.” 65 ILCS 5/3.1-35-10 (West 2014).

¶ 21 The statute references removal “on any written charge,” but it does not specify to

whom the written charge must be provided and when. It would seem evident the written charge

would precede removal, and the parties accepted an interpretation requiring the charge to be

provided to Lane prior to termination. We see nothing in the statute precluding such an

interpretation. Utilizing the authority set out above, the Village relied on similar provisions

within the Illinois Municipal Code for guidance to conclude a comparison of a mayor’s authority

to employ certain officers may be relevant. It contends efforts to employ municipal officers in

violation of the statutory employment limitations have been found to be void ab initio. “[W]hen

-8- city officials attempt an act which is beyond the limit of their power, the act has no official

sanction, and is no more effectual than if performed by nonofficial persons. As a municipal act it

is wholly void, and, being void, nothing of substance may flow from it.” (Emphases added and

internal quotation marks omitted.) Walters v. Village of Colfax, 466 F. Supp. 2d 1046, 1054-55

(C.D. Ill. 2006). Lane instead relied on case authority under the Administrative Review Act (Ill.

Rev. Stat. 1957, ch. 10, ¶ 267) applicable to the Illinois Public Aid Commission to argue the acts

of the mayor in the first instance of removal were not void but merely voidable as actions that

were an improper exercise of authority. He contends such actions are considered voidable, while

only those in excess of authority are void. As a result, he contends he was terminated twice for

the same reason in violation of statute. There are several problems with this argument by

analogy. First, as noted above, our supreme court says we should examine the entire statute in

conjunction with other statutes touching on the same or similar subjects, as the Village has done

here. See Relf v. Shatayeva, 2013 IL 114925, ¶ 23, 998 N.E.2d 18. The Village’s reliance on

similar provisions in the Illinois Municipal Code relating to the mayor’s appointment authority is

not only supported by case law but is arguably more persuasive. Next, the case authority upon

which Lane relies does not even relate to the Illinois Municipal Code or municipal agencies but

involves the Illinois Public Aid Commission. As such, just as here, the court in Pearce Hospital

Foundation v. Illinois Public Aid Comm’n, 15 Ill. 2d 301, 154 N.E.2d 691 (1958), the case relied

upon by Lane, was bound to consider the interpretation by the administrative agency as an

informed source for ascertaining legislative intent. Interpretations of the Administrative Review

Act by the Illinois Public Aid Commission, which was formed for a purpose significantly

different than municipal government, have no persuasive value for interpretation of the Illinois

Municipal Code, contrary to Lane’s argument.

-9- ¶ 22 The statute is silent as to whether the reasons presented to the board must be in

writing. For our purposes, it does not matter since it was clear the mayor was to provide a copy

of the charges, in writing, to Lane and did not. Based on our interpretation of the statute, we do

not find it requires the reasons presented to the board must be in writing.

¶ 23 Mayor Zalucha attempted to fire Lane without providing him a written charge as

required by statute. As no charge was given to Lane, he was not properly fired or “removed” as

the statute describes it. Therefore, when the board of trustees voted the first time on February 18,

2016, the action was premature and exceeded its statutory power, thereby voiding the vote of the

board. Failing to provide written charges to Lane precluded his removal by the mayor. Absent

removal in compliance with the statute, the board did not have the authority to vote since Lane

was not properly removed. Thus, Lane remained the police chief of the Village. Our conclusion

is also supported by the simple fact Lane continued to be paid during the interim. It does not go

unnoticed that Lane’s counsel, having argued he was improperly removed in the first instance,

did not offer to return Lane’s salary for the intervening period between the two votes. Upon

receiving a letter from Lane, the Village declared the initial removal void and treated it as if it

never happened. Lane posits the illogical argument that, having improperly removed him (which,

under his theory, would mean he was not removed), the board could not rescind its action (which

would also mean he was not removed). In other words, once improperly removed, he had to

remain improperly removed regardless of the wishes of the municipality otherwise.

¶ 24 It defies logic, common sense, and municipal law to assume a municipality,

invested by statute with the authority to take a certain action, does not also have authority to

rescind that action for whatever lawful reason it may choose. “A town has a right to reconsider or

rescind its former action if third parties’ rights have not intervened.” Thorp v. King, 42 Ill. App.

- 10 - 513, 519 (1891). If the board entered into an illegal contract, the party with whom it contracted

could not claim a constitutionally protected property interest in the benefit of that contract, even

if it acted in detrimental reliance thereon. Walters, 466 F. Supp. 2d at 1056. Here, having been

legally appointed to his position, plaintiff argues the board could not realize the illegality of its

action in his removal and rescind it, thereby ensuring his continued employment. Instead, he

claims what is essentially a protected property interest in his unlawful removal. This flies in the

face of the holding of Walters and cases cited therein, which concluded section 3.1-35-10 of the

Illinois Municipal Code, as a procedural statute, does not create a constitutionally protected

property interest in continued employment. Under Illinois law, public employees do not have

property rights in employment that trigger due process protections. Levin v. Civil Service

Comm’n of Cook County, 52 Ill. 2d 516, 521-22, 288 N.E.2d 97, 100 (1972). If the statute

contains no such protections for employment, it hardly does so for Lane’s unlawful removal.

¶ 25 At the March 3 meeting, Mayor Zalucha reread the charge, reminded Lane he had

already received the written charge on February 25, and provided the written charge to the board

of trustees as well. The board of trustees then voted to not reinstate Lane as police chief,

finalizing the removal process. Lane cannot have it both ways—argue he was not properly

removed due to a lack of notice with written charges and then, when properly served, say the

Village cannot correct the error. If he had no protectable property interest in continued

employment, he cannot now claim a protected interest in an invalid removal. Arguably, even if

invalidly removed, there is nothing that would have prohibited the board from reconsidering its

decision, vacating its previous vote, and voting to reinstate him. Lane would hardly object to the

board’s reconsideration of its vote under those circumstances.

- 11 - ¶ 26 Contrary to Lane’s claim he was removed twice for the same offense in violation

of the Illinois Municipal Code, Lane was not removed the first time, as the board vote was an act

considered void ab initio, and since the board rescinded its action, there was no removal. Even

assuming, for the sake of argument, he was, the reasons for his removal at the taking of the

second vote were not the same as those at the first. In the February 18 meeting, Mayor Zalucha

said he and Dodds learned new information between Lane’s removal and that meeting. As a

result of efforts by a computer consulting firm hired by the Village to install a new computer and

transfer data from Lane’s old computer, it was discovered Lane’s wife, who was not an

employee of the Village, was operating the Village police department’s Facebook page from her

own personal Facebook account and that Lane was having work e-mails automatically forwarded

to his personal e-mail address. That created multiple privacy issues as confidential law

enforcement information, criminal records, and juvenile information was more susceptible to

data breaches. In addition, they found all police department e-mails since 2013 had been placed

in the electronic trash bin, which did not conform to the procedures for public document disposal

and could constitute a possible Class 4 felony according to the Village attorney. They also

learned Lane was using the Law Enforcement Agencies Data System (LEADS) computerized

criminal history records information system for non-police-related inquiries in violation of the

LEADS agreement the municipality was required to sign in order to access the records system.

The penalties for doing so included not only the possibility of criminal charges but suspension of

the Village’s access to LEADS.

¶ 27 Lane argued the statements made in the open meetings following the executive

session discussions of the board constitute the “reasons for removal” and are controlling in

determining whether he was discharged for the same reasons twice. The trial court agreed. Our

- 12 - review of the statute, coupled with an understanding of the legal process involved, does not lead

us to the same conclusion. Under the Open Meetings Act (5 ILCS 120/2(c)(1) (West 2014)),

public bodies such as the Village are permitted to enter into an executive session to discuss

matters of personnel and discipline. Although no formal vote may be taken in an executive

session, the “reasons for removal” would constitute those matters of “personnel” or “discipline”

to which the Open Meetings Act refers and are clearly matters regularly addressed by such

public bodies in closed session. Section 3.1-35-10 requires the mayor to “report the reasons for

the removal to the corporate authorities” at the required meeting to be held between 5 and 10

days after removal. 65 ILCS 5/3.1-35-10 (West 2014). The only reference to “reasons for

removal” is found within the context of what the mayor reports to the “corporate authorities.”

There is nothing requiring a public statement of the reasons at all. The vote must be taken in

open session, and although it may make sense from a political or public relations standpoint for

the board and/or mayor to make some public statement about the reasons for removing a police

chief, there is nothing in the relevant section of the Illinois Municipal Code requiring them to do

so. The reasons expressed to the board in the February 23 meeting were in addition to those

previously given at the February 16 meeting between the mayor and Lane and those provided to

the board on February 18. As a result, the removal on February 25, 2016, was not for the same

reasons as February 16.

¶ 28 Even if we considered the reasons expressed in the public statements to constitute

the “reasons for removal” contemplated in the statute, the first public statement on February 18

indicated Lane’s removal was because his “performance is not meeting expectations.” At the

second meeting, the reasons for removal were summarized as “continual lack of honesty and

performance well below what is expected from the Police Chief.” These are two clearly different

- 13 - statements of reasons. The lack of honesty is a new “offense,” and nothing about the statute says

the board cannot consider the new offense in light of past transgressions. Thus, even under

Lane’s theory, his claim fails.

¶ 29 Lane cites Szewczyk v. Board of Fire & Police Commissioners of the Village of

Richmond, 381 Ill. App. 3d 159, 164, 885 N.E.2d 1106, 1111 (2008), which is inapposite. In that

case, the Village of Richmond’s president sent a letter to the plaintiff telling him he was

“ ‘terminated’ ” from his appointed position as police chief. Szewczyk, 381 Ill. App. 3d at 159-

60. The reasons for the termination were given to the Village of Richmond’s clerk and attorney,

and a special meeting of the board of trustees was held to vote on the plaintiff’s employment.

Szewczyk, 381 Ill. App. 3d at 161. The majority of the board of trustees voted against

termination, and the plaintiff was reinstated and placed on administrative leave. Szewczyk, 381

Ill. App. 3d at 167. About a month later, the board of trustees revisited the issue of the plaintiff’s

status and voted 4 to 1 in favor of termination. Szewczyk, 381 Ill. App. 3d at 167. In that case, the

court relied upon sections 10-2.1-4 and 10-2.1-17 of the Illinois Municipal Code (65 ILCS 5/10-

2.1-4, 10-2.1-17 (West 2006)), referencing the statute before us in dicta only. Szewczyk, 381 Ill.

App. 3d at 167-68. The facts in Szewczyk are distinguishable. There, the court found the plaintiff

was automatically restored to his position once the Village of Richmond’s board of trustees

voted against termination. Szewczyk, 381 Ill. App. 3d at 170. As a result, his removal a month

later, for the same reasons as before, was in violation of the statute. Szewczyk, 381 Ill. App. 3d at

170. Here, the board never voted against termination and only one vote was valid.

¶ 30 Based on our ruling, it is clear the trial court’s award of back pay and other

monetary damages was also improper. Therefore, we reverse the court’s judgment on its

interpretation of the statute and its award of damages.

- 14 - ¶ 31 III. CONCLUSION

¶ 32 For the reasons stated, we reverse the trial court’s judgment.

¶ 33 Reversed.

- 15 - No. 4-18-0488

Decision Under Review: Appeal from the Circuit Court of McLean County, No. 16-MR- 242; the Hon. Rebecca S. Foley, Judge, presiding.

Attorneys Julie A. Bruch and Karin L. Anderson, of O’Halloran Kosoff for Geitner & Cook, LLC, of Northbrook, for appellants. Appellant:

Attorneys Richard F. Blass, of Richard F. Blass & Associates, LLC, of for Elmhurst, for appellee. Appellee:

- 16 -