{ "id": 8499682, "name": "SELESTER GILTY, Plaintiff-Appellant, v. THE VILLAGE OF OAK PARK BOARD OF FIRE AND POLICE COMMISSIONERS et al., Defendants-Appellees", "name_abbreviation": "Gilty v. Village of Oak Park Board of Fire & Police Commissioners", "decision_date": "1991-09-06", "docket_number": "No. 1-89-1343", "first_page": "1078", "last_page": "1087", "citations": [ { "type": "official", "cite": "218 Ill. App. 3d 1078" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "451 N.E.2d 842", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "96 Ill. 2d 399", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3114487 ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0399-01" ] }, { "cite": "454 N.E.2d 652", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "97 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5516145 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/97/0378-01" ] }, { "cite": "109 Ill. 2d 202", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3127069 ], "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0202-01" ] }, { "cite": "95 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "869" } ], "opinion_index": 0 }, { "cite": "407 Ill. 588", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2640772 ], "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/ill/407/0588-01" ] }, { "cite": "531 N.E.2d 837", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "176 Ill. App. 3d 792", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3589017 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/176/0792-01" ] }, { "cite": "141 Ill. 2d 580", "category": "reporters:state", "reporter": "Ill. 2d", "weight": 3, "opinion_index": 0 }, { "cite": "214 Ill. App. 3d 961", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5297222 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "970" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0961-01" ] }, { "cite": "104 N.E.2d 780", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "782" } ], "opinion_index": 0 }, { "cite": "411 Ill. 613", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313540 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/ill/411/0613-01" ] }, { "cite": "549 N.E.2d 1266", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 9, "pin_cites": [ { "page": "1267" }, { "page": "1267" }, { "page": "1268" }, { "page": "1267" }, { "page": "1268" }, { "page": "1268" }, { "page": "1269" } ], "opinion_index": 0 }, { "cite": "133 Ill. 2d 349", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260081 ], "weight": 9, "pin_cites": [ { "page": "352-53" }, { "page": "354" }, { "page": "354-55" }, { "page": "354" }, { "page": "355" }, { "page": "355" }, { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0349-01" ] } ], "analysis": { "cardinality": 791, "char_count": 21156, "ocr_confidence": 0.717, "pagerank": { "raw": 1.8290119441052682e-07, "percentile": 0.7204570613962435 }, "sha256": "e3ddb57186cf4ff80cee04731fbe7ea82c9a0049f30338b1d9dee3fe73ca0ad8", "simhash": "1:09ddc0fcbfc786da", "word_count": 3417 }, "last_updated": "2023-07-14T18:01:44.666066+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LORENZ, P.J., and McNULTY, J., concur." ], "parties": [ "SELESTER GILTY, Plaintiff-Appellant, v. THE VILLAGE OF OAK PARK BOARD OF FIRE AND POLICE COMMISSIONERS et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE GORDON\ndelivered the opinion of the court:\nPlaintiff, Selester Gilty, appeals from an order of the circuit court of Cook County, affirming the decision of the Village of Oak Park Board of Fire and Police Commissioners (the Board), discharging plaintiff from the Oak Park police force. Plaintiff raises numerous issues on appeal. The defendant Board has submitted a motion to dismiss this appeal due to plaintiff\u2019s failure to comply with the requirements of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 \u2014 101 et seq.). The motion was taken with the case. For the reasons set forth below, we grant defendant\u2019s motion.\nFacts\nPlaintiff had been a member of the Oak Park police department since 1976. In 1984 he submitted himself as a candidate for promotion to the position of sergeant. As part of the promotion process, in September 1984, plaintiff completed a form entitled \u201cApplication for Promotional Examination.\u201d On this notarized form, he stated that he was \u201cnow attending Governor [sic] State Univ. (Master Program in Public Administration) Completed 17 Hours.\u201d Another form, entitled \u201cInformation Request of Sergeant Candidates,\u201d was completed and signed by the plaintiff in January 1985. The following statement was contained on that form: \u201cList high school or GED and any further schools which you have graduated from or attended, noting year(s) attended and degree, if any, and course of study.\u201d To this statement, plaintiff responded: \u201cJohn Marshall (63), Mayfair Jr. Collage [sic] (74), Univ. Ill. C. C.(76) and completed 17 Hours on a Master\u2019s Program at Governor [sic] State University in Public Administration (32 Hour Program), and many other Police related schools.\u201d\nOn March 23, 1985, in a second phase of the promotion process, plaintiff was interviewed by two members of the Board, Commissioners Whiten and Matthies. Pursuant to department policy, the interview was tape recorded. At that interview, plaintiff was asked \u201cin terms of personal and professional skills, knowledges [sic], abilities and competencies, all of those kind of good things about you, which of those do you think best qualifies you for a promotion to sergeant in this Department? *** What evidence can you give me for all the good things you just said about yourself?\u201d He responded \u201cWell, one is my educational background. As I have stated in the past, I am working on a Master\u2019s in public administration. I have also an AA degree in sociology and a Bachelor\u2019s degree in psychology. Those do not necessarily stipulate that I will be a great leader or a good leader, but those are what I would hope to be indicators.\u201d Plaintiff was not promoted.\nIn January 1988, Oak Park Police Chief William Kohnke asked all officers to complete a form entitled \u201cProfile of Training and Interest in Future Training\u201d as part of a new program he was instituting in the department. Under the heading \u201cExpertise in Police Field,\u201d plaintiff wrote \u201cB.A. in Police Adm. & Operations.\u201d Kohnke also examined each officer\u2019s personnel file, the applications for the 1985 sergeant\u2019s examination and the 1985 \u201cInformation Request for Sergeant Candidates\u201d to determine each officer\u2019s training and educational background. He sought to verify the information on the various forms by receiving college transcripts from all institutions that officers indicated they had attended.\nHaving been unable to verify plaintiff\u2019s claimed educational achievements, on March 25, 1988, Chief Kohnke undertook a formal oral interrogation of the plaintiff regarding his educational background. When asked by the attorney for the village whether he had a degree in psychology from the University of Illinois in Chicago as claimed in January of 1985, plaintiff responded \u201cTo the best of my knowledge I had completed the requirements for a Bachelor degree, University of Illinois, in psychology, yes if that is what you mean.\u201d He admitted, however, that he did not have a formal document, a piece of paper from the university, showing that he had achieved the degree.\nPlaintiff also said that he had fulfilled the requirements for a bachelor\u2019s degree in police administration and operations from Lewis University, and although he did not have a diploma evidencing that degree either, one would be provided to him upon request. He explained that he saw no need to attend a graduation ceremony since he had already started accumulating hours towards a master\u2019s degree at Lewis University in criminal and social justice. Plaintiff also stated that he had taken and passed the writing proficiency examination at Lewis University, a requirement for a bachelor\u2019s degree.\nIn addition, plaintiff was asked about his statement made in 1984, when he completed the \u201cInformation Request for Sergeant Candidates,\u201d that he had \u201ccompleted 17 Hours on a Master\u2019s Program at Governors State University in Public Administration.\u201d He admitted that he was not officially enrolled in a master\u2019s degree program, but maintained that the courses he was taking could be applied to a master\u2019s degree. In later testimony, he further admitted that he left Governors State University after the fall quarter of 1983 due to financial and academic reasons, and had not petitioned the school for readmission.\nWhen the plaintiff was unable to produce verification of the degrees which he claimed to possess or to offer a credible explanation at the March 25 hearing, Chief Kohnke and Commissioner Matthies (now former commissioner) brought four charges against him with the Board. In the first charge, plaintiff was accused of violating sections 28 \u2014 5\u201473 and 26 \u2014 7 of the Rules and Regulations of the Police Department of the Village of Oak Park, which read as follows:\n\u201c28 \u2014 5\u201473 Truthfulness: Members and Employees are required to be truthful at all times whether under oath or not.\u201d\n\u201c26 \u2014 7 Reports and Bookings: No Member or Employee shall knowingly falsify any official report or enter or cause to be entered any inaccurate, false or improper information on records of the Department.\u201d\nThree specific violations of these rules were alleged in the first charge in conjunction with the sergeant\u2019s promotional process in 1984 and 1985. The violation alleged in subparagraph 1 of the first charge occurred on March 23, 1985, when plaintiff at his interview told the Board that he was working on a master\u2019s degree in public administration and had a bachelor\u2019s degree in psychology. Subparagraph 2 alleged violation of departmental rules in September 1984, when plaintiff, under oath, completed the form entitled \u201cApplication for Promotional Examination.\u201d He stated therein that he was attending Governors State University in a master\u2019s program in public administration. The violation alleged in subparagraph 3 involved two of plaintiff\u2019s written answers on the form entitled \u201cInformation Request of Sergeant Candidates,\u201d which plaintiff submitted in January of 1985, where he gave the impression that he graduated from the University of Illinois in 1976, and indicated that he was enrolled in a master\u2019s program at Governors State University.\nThe second charge alleged violations of Illinois perjury statutes. (Ill. Rev. Stat. 1987, ch. 101, par. 5; ch. 88, par. 32 \u2014 2.) This charge was dismissed by the Board prior to its final order.\nThe third charge invoked the same departmental rules as in the first charge. But the alleged violation here occurred in January 1988 when plaintiff stated on his \u201cProfile of Training and Interest In Future Training\u201d form that he had a \u201cB.A. in Police Administrations and Operations.\u201d\nThe fourth and final charge involved the statements made by plaintiff on March 25, 1988, during interrogation by the police chief and the village attorney. Plaintiff allegedly again violated departmental rules 28 \u2014 5\u201473 and 26 \u2014 7, as in the first and third charges, when he said that he had passed the writing proficiency examination at Lewis University and was eligible for graduation.\nAfter extensive hearings on the charges, the Board found plaintiff not guilty of the charges of subparagraphs 2 and 3 of the first charge, and guilty of the remaining charges. The Board also, before entering its final order, reviewed plaintiff\u2019s personnel file including his employment history, and on September 24, 1988, entered an order discharging the plaintiff. A copy of the findings and decision of the Board was mailed to plaintiff with a letter dated September 27, 1988.\nOn October 13, 1988, plaintiff filed a complaint for administrative review in the circuit court of Cook County. In that complaint plaintiff joined only two defendants, the Village of Oak Park Board of Fire and Police Commissioners and the Village of Oak Park. On November 15, 1988, defendant Board moved to strike and dismiss plaintiff\u2019s complaint for failure to name Police Chief Kohnke and Commissioner Matthies, who had initially filed the charges against plaintiff with the Board, as defendants as required by section 3 \u2014 107 of the Administrative Review Law. (Ill. Rev. Stat. 1987, ch. 110, par. 3 \u2014 107.) The Board\u2019s motion also sought to dismiss the Village of Oak Park as defendant since it was not a party of record to the proceedings before the Board.\nOn December 27, 1988, plaintiff filed a motion for a preliminary injunction seeking reinstatement to his position with the Oak Park police department, and on January 24, 1989, filed a response to defendant\u2019s motion to dismiss. On January 26, 1989, the circuit court denied plaintiff\u2019s motion for preliminary injunction, granted defendant\u2019s motion to dismiss as to the Village of Oak Park, and granted plaintiff leave to amend his complaint to add Kohnke and Matthies as defendants. On February 2, 1989, plaintiff filed an amended complaint adding Kohnke and Matthies as defendants, and summons were issued to each of them that day.\nThe circuit court, by order entered April 10, 1989, affirmed the decision by the Board to discharge plaintiff. Notice of appeal to this court was filed by plaintiff on April 13, 1989. Defendants have filed a motion with this court to dismiss this appeal for lack of jurisdiction to review the decision of the Board. For the reasons set forth below, defendants\u2019 motion is granted.\nOpinion\nDefendants contend in their motion to dismiss this appeal that plaintiff\u2019s failure to name Police Chief Kohnke and Commissioner Matthies as defendants and to serve summons on them within 35 days of service of the Board\u2019s decision on plaintiff resulted in the circuit court being without jurisdiction to hear the case. Further, defendants urge that under the recent Illinois Supreme Court case of Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, the circuit court\u2019s order allowing plaintiff to amend his complaint more than 35 days after service of the Board\u2019s order on plaintiff was ineffective. Although we disagree with defendant\u2019s contention that the circuit court lacked jurisdiction, we nevertheless find that the complaint must be dismissed for failure to satisfy the statutory requirements of joinder of all required parties pursuant to section 3 \u2014 107 of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3\u2014 107), and service of summons upon them within 35 days pursuant to section 3 \u2014 103 (Ill. Rev. Stat. 1987, ch. 110, par. 3 \u2014 103), requirements which are mandatory, interlocking and nonwaivable. Lockett, 133 Ill. 2d 349, 549 N.E.2d 1266; Cuny v. Annunzio (1952), 411 Ill. 613, 104 N.E.2d 780; Zientara v. Lottery Control Board (1991), 214 Ill. App. 3d 961, appeal denied (1991), 141 Ill. 2d 580.\nJudicial review of administrative decisions is governed by the Administrative Review Law (the Act) (Ill. Rev. Stat. 1987, ch. 110, par. 3 \u2014 101 et seq.). Relevant to this appeal are sections 3 \u2014 102, 3 \u2014 103 and 3 \u2014 107 of that act. Section 3 \u2014 102 defines the scope of the Act, and provides in part:\n\u201cUnless review is sought of an administrative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision.\u201d (Ill. Rev. Stat. 1987, ch. 110, par. 3 \u2014 102.)\nSection 3 \u2014 103 sets forth the requirement of commencement of an action for administrative review under the Act, and provides in part:\n\u201cEvery action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.\u201d (Ill. Rev. Stat. 1987, ch. 110, par. 3 \u2014 103.)\nSection 3 \u2014 107 defines who shall be made defendants to an action for review of an administrative decision. This section provides:\n\u201cIn any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.\u201d Ill. Rev. Stat. 1987, ch. 110, par. 3 \u2014 107.\nThe interpretation of these rules given by the Illinois Supreme Court in Lockett must control. There, the Chicago police superintendent filed disciplinary charges against Lockett with the Chicago Police Board. The board dismissed Lockett, and Lockett sought judicial review of that decision. He named the police board and its individual members as defendants. The circuit court granted the board\u2019s motion to dismiss the complaint due to Lockett\u2019s failure to name the superintendent as a defendant within the 35-day period of section 3 \u2014 103, and also denied Lockett\u2019s request to amend his complaint to add the superintendent as a defendant. Lockett appealed. The appellate court found that although filing of a complaint within 35 days after the plaintiff receives notice of the administrative decision is a jurisdictional requirement, and failure to comply will bar review, failure to name the superintendent as a defendant did not render the complaint fatally defective. It reasoned that the superintendent was not required to be named as a defendant, since it was the board\u2019s decision, not the charges filed by the superintendent, which was being reviewed. The appellate court, therefore, reversed the dismissal order and remanded the case. (Lockett v. Chicago Police Board (1988), 176 Ill. App. 3d 792, 531 N.E.2d 837.) The supreme court granted the board leave to appeal and reversed the judgment of the appellate court and affirmed the circuit court judgment.\nThe Illinois Supreme Court first noted that the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 \u2014 101 et seq.), which sets forth the procedural requirements for judicial review of an administrative decision, is a departure from the common law, and therefore \u201cthe procedures it establishes must be strictly adhered to in order to justify its application.\u201d (Lockett v. Chicago Police Board, 133 Ill. 2d at 352-53, 549 N.E.2d at 1267, citing Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 595, 95 N.E.2d 864, 869.) The court found that the clear and unambiguous language of section 3 \u2014 107 required that the superintendent, who was a party of record to the proceedings before the board, be made a defendant in the action for administrative review. Lockett, 133 Ill. 2d at 354, 549 N.E.2d at 1267.\nThe court then went on to consider whether the circuit court should have allowed Lockett to amend his complaint to name the superintendent as a defendant. On this point, it looked to section 3\u2014 103, which requires the filing of a complaint and issuance of summons within 35 days from the time plaintiff receives a copy of the administrative decision. (Ill. Rev. Stat. 1987, ch. 110, par. 3 \u2014 103.) \u201cThe requirement that a complaint be filed within the 35-day limit is jurisdictional; if a complaint is not timely filed, no jurisdiction is conferred on the circuit court and judicial review of the administrative decision is barred. (Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 211.)\u201d (Lockett, 133 Ill. 2d at 354-55, 549 N.E.2d at 1268.) However, if a complaint as filed joins less than all necessary parties, the jurisdictional requirement is satisfied. See Zientara v. Lottery Control Board (1991), 214 Ill. App. 3d 961, 970, appeal denied (1991), 141 Ill. 2d 580 (where the court stated \u201cthe Lockett court did not indicate that a failure to name a necessary defendant as required under section 3 \u2014 107 would deprive the court of jurisdiction\u201d).\nThere is no question, however, that although the requirement of joinder of all parties under section 3 \u2014 107 is not jurisdictional, it is mandatory (Lockett, 133 Ill. 2d at 354, 549 N.E.2d at 1267), as is the interrelated requirement for issuance of summons within 35 days under section 3 \u2014 103. (Lockett, 133 Ill. 2d at 355, 549 N.E.2d at 1268.) While not depriving the court of jurisdiction, failure to comply with these mandatory requirements, namely the joinder of all necessary parties as defendants and the issuance of summons upon those parties within the 35-day time frame, nevertheless mandates dismissal in the absence of a good-faith effort to comply with the statute. (Lockett, 133 Ill. 2d at 355, 549 N.E.2d at 1268. See also Zientara v. Lottery Control Board (1991), 214 Ill. App. 3d 961, appeal denied (1991), 141 Ill. 2d 580.) The supreme court in Lockett acknowledged prior precedent which relaxed the 35-day period when plaintiff showed a good-faith effort to procure issuance of summons but failed in that effort due to circumstances beyond plaintiff\u2019s control, such as failure of the court clerk to implement service after all prerequisites had been met by the plaintiff. (See City National Bank & Trust Co. v. Property Tax Appeal Board (1983), 97 Ill. 2d 378, 454 N.E.2d 652; Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 451 N.E.2d 842.) In Lockett, however, the court concluded that there was no record of any good-faith effort by plaintiff to join and serve all defendants within 35 days, thus mandating dismissal. The court explicitly overruled several prior appellate decisions which had held that such failure to name and issue summons against necessary parties within 35 days could be cured by subsequent amendment regardless of any demonstrated good-faith effort. Lockett, 133 Ill. 2d at 356, 549 N.E.2d at 1269.\nHere, it is undisputed that plaintiff did not name Police Chief Kohnke or Commissioner Matthies as defendants or serve them with summons within the requisite 35-day period. Both were parties of record to the administrative board\u2019s proceedings, and were, therefore, necessary parties to the judicial review under section 3 \u2014 107. Although plaintiff\u2019s timely complaint naming fewer than all required defendants may have been sufficient to confer jurisdiction on the circuit court, plaintiff failed to comply with the mandatory requirements that all parties of record be named as defendants and summons issued in a timely manner. The record here, as in Lockett, is devoid of any evidence or, for that matter, any argument seeking to establish any good-faith effort by the plaintiff to name Kohnke and Matthies as defendants or to serve summons upon them within the 35-day time frame. Not until February 2, 1989, some four months after plaintiff\u2019s receipt of the Board\u2019s decision, were Kohnke and Matthies named as defendants and served with summons. Accordingly, we find that plaintiff has failed to comply with the specific procedural requirements of sections 3 \u2014 107 and 3 \u2014 103 requiring joinder and service of summons within 35 days. Under Lockett, such failure cannot be cured by subsequent amendment. Accordingly, plaintiff is barred from obtaining judicial review of the Board\u2019s decision.\nDefendants here have properly preserved their objection to any late amendments by their motion to dismiss before the circuit court. Moreover, even in the absence of a timely objection, the requirements of the Administrative Review Law are not waivable. Cuny v. Annunzio (1952), 411 Ill. 613, 617, 104 N.E.2d 780, 782.\nWhile the circuit court\u2019s review affirming the Board\u2019s decision on the merits was made before the supreme court\u2019s decision in Lockett, it is now clear that the merits should not have been reached and dismissal was mandated. However, since the circuit court\u2019s affirmance in favor of defendants reaches the same result as would have been reached had the complaint been dismissed by the circuit court, the order of that court need not be reversed, and this appeal is here and now dismissed. Because we have dismissed this appeal on procedural grounds, we do not address the substantive issues raised by plaintiff.\nAppeal dismissed.\nLORENZ, P.J., and McNULTY, J., concur.", "type": "majority", "author": "JUSTICE GORDON" } ], "attorneys": [ "Armand L. Andry, of Oak Park, for appellant.", "Klein, Thorpe & Jenkins, Ltd., of Chicago, for appellee Village of Oak Park Board of Fire and Police Commissioners.", "Raymond Heise, of Oak Park, for other appellees." ], "corrections": "", "head_matter": "SELESTER GILTY, Plaintiff-Appellant, v. THE VILLAGE OF OAK PARK BOARD OF FIRE AND POLICE COMMISSIONERS et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1-89-1343\nOpinion filed September 6, 1991.\nArmand L. Andry, of Oak Park, for appellant.\nKlein, Thorpe & Jenkins, Ltd., of Chicago, for appellee Village of Oak Park Board of Fire and Police Commissioners.\nRaymond Heise, of Oak Park, for other appellees." }, "file_name": "1078-01", "first_page_order": 1100, "last_page_order": 1109 }