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1st District upholds merit board in firing of deputy

Thursday, August 30, 2018
Chicago Daily Law Bulletin

1st District upholds merit board in firing of deputy

A state appeals court on Wednesday upheld the Cook County Sheriff’s Merit Board’s decision to fire a sheriff’s deputy even though a prior appellate court found the board was illegally constituted at the time.

In May 2017, a 1st District Appellate Court panel reversed the dismissal of a sheriff’s deputy after finding that a member of the merit board, John R. Rosales, was still hearing and deciding cases even though his term on the board had expired.

Rosales was on the board when it considered the case of deputy Miguel Lopez, whom the sheriff’s office sought to fire after he missed 96 hours of shift time without being excused.

Lopez argued that, under Taylor v. Dart, 2017 IL (1st) 143684-B, his dismissal was void because the board was illegally constituted at the time.

However, a separate 1st District panel on Wednesday ruled it was in the interest of public policy to not invalidate every decision an illegally constituted merit board may have touched, rejecting Lopez’s appeal.

“Since the plaintiff in this case is not the first claimant to have brought the illegal appointment of Rosales to light, we conclude that public interest is better served by not invalidating the plaintiff’s termination decision,” Justice James Fitzgerald Smith wrote in the 28-page unpublished Rule 23 order.

“This will circumvent the upheaval that would doubtlessly result if we were to invalidate the merit board’s decision and invite hundreds of plaintiffs to seek invalidation of all the decision[s] rendered by the illegally constituted panel during Rosales’ unauthorized term,” Smith wrote. 

The merit board made other decisions apart from disciplinary actions — like promotions — during the three-year period Rosales improperly sat on the board. All those actions would be jeopardized, the panel noted, which is why the justices cited the de facto officer doctrine in justifying its ruling.

The de facto officer doctrine allows courts to uphold the decisions made by individuals or entities even if those parties were illegally appointed or constituted. The doctrine requires courts to balance the public’s interest in an orderly government is outweighed by its interest in exposing and undoing illegal government actions.

The Taylor court refused to consider the de facto officer doctrine in upholding the dismissal of a sheriff’s deputy in that case, something the current 1st District panel noted in Lopez’s case.

The 1st District panel sided with the sheriff’s office and the merit board’s argument that Taylorshould be considered separate from Lopez’s case because Taylor happened first. To apply Taylor to at least 60 cases pending in Cook County Circuit Court would result in “chaos,” Smith wrote.

“Specifically, the sheriff and the merit board argue that while the plaintiff in Taylor may receive the benefit of being the first to challenge compliance with the merit board appointment statute, and have the merit board’s decision voided, public policy requires that all later challenges be denied, so as to prevent the chaos that would result in the invalidation of hundreds of decisions rendered by the same illegally constituted board,” Smith wrote. “[W]e agree.”

The 1st District panel’s decision comes nearly a month after a federal judge sided with the Taylorcourt in another case involving an officer who was fired when Rosales sat on the board.

The 1st District panel also upheld Lopez’s dismissal on its merits. Lopez presented evidence showing he was on disability leave for alcohol dependency and his late or unexcused absences from December 2012 to April 2013 stemmed from his recovery. 

Lopez never informed the department of this issue — his July 2014 evidentiary hearing was the first time the department had learned he had been struggling with alcoholism.

Smith wrote that while the panel sympathized with Lopez’s struggle, the merit board in its June 1, 2016, decision said it had weighed the treatment of his disorder with his unexcused absenteeism when dismissing him.

“Regardless of how much sympathy we may have for the plaintiff’s struggle, as a reviewing court, we may not reweigh the board’s determination as to the evidence or the credibility of witnesses,” Smith wrote.

The sheriff’s department and the merit board were represented by Stephanie A. Scharf and Sarah R. Marmor of Scharf Banks Marmor LLC.

“We are exceptionally pleased with the appellate court’s decision which will help ensure that officers who were terminated for gross misconduct remain terminated, and not put the safety of the public at risk,” Cara LeFevour Smith, the sheriff’s policy adviser, said in a statement.

Lopez was represented by Dana L. Kurtz, Heidi Karr Sleper and Jacob Exline of the Hinsdale-based Kurtz Law Offices Ltd. They did not return a request comment.

Justices Nathaniel R. Howse Jr. and Terrence J. Lavin concurred with the order.

The case is Miguel Lopez v. Thomas J. Dart, et al., 2018 IL App (1st) 170733-U.

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