by John E. Motylinski (Winter 2018)
On August 15, 2017, the Illinois Appellate Court, Second District, issued a ruling in Gilles v. Carol Stream Fire Protection District, 2017 IL App (2d) 160995-U. In its thirty-three-page decision, the court affirmed a battalion chief’s termination following a contentious hearing before the Carol Stream Fire Protection District’s Board of Fire Commissioners. As clearly demonstrated by the Gilles case, disputed discipline and termination matters can be fraught with pitfalls. However, the Gilles decision contains five lessons that should be kept in mind when engaged in difficult disciplinary or termination proceedings.
A brief review of the facts in Gilles will prove useful. Joseph Gilles served as a battalion chief for the Carol Stream Fire Protection District. After exhausting progressive disciplinary measures, the District’s fire chief filed charges with the Board of Fire Commissioners seeking Gilles’ termination. At the hearing, the chief presented evidence that Gilles was obese and had significant difficulties communicating and leading his subordinates. Furthermore, Gilles had refused to comply with an order to sign a performance improvement plan (“PIP”). Gilles participated in the hearing and argued that the charges were pretextual. Specifically, Gilles asserted that the fire chief wanted to fire him in retribution for refusing to cover up misconduct on an EMS call. In the end, the Board of Fire Commissioners found that Gilles disobeyed the Chief’s lawful order to sign the PIP and recommended termination. Gilles sought administrative review in the DuPage County Circuit Court, which affirmed the Board. Thereafter, Gilles appealed to the Illinois Appellate Court.
On review, the Appellate Court analyzed each of Gilles’ arguments in depth and, each time, found for the Board. Therefore, Gilles is useful in identifying how to survive an appeal of a disputed termination. By keeping the following five lessons from the Gilles decision in mind, districts and boards of fire commissioners might avoid pitfalls during contested hearings.
Lesson #1: Charges filed with the Board of Fire Commissioners do not need to be drafted with the same level of detail as court pleadings.
Gilles’ first argument was that the Fire Chief’s charges filed with the Board of Commissioners did not contain enough facts, as is required in court proceedings. In court cases, complaints must be drafted with all the facts needed to back up their allegations, and failure to include all necessary facts may result in such a pleading being dismissed. However, charges in an administrative proceeding—such as the hearing before a Fire Commission—do not need to be “drawn with the same precision, refinements, or subtleties as pleadings in a judicial proceeding.” Indeed, charges only have to “reasonably advise the respondent as to the charges so that he or she will intelligently be able to prepare a defense.” Because the charges against Gilles put him on reasonable notice of the charges, the court deemed them sufficient. Therefore, while charges should be as specific as possible, they do not need to be as detailed as court pleadings.
Lesson #2: Ensure orders, notes, and documents forming the basis of discipline or discharge are in writing.
The Gilles decision highlights the importance of creating and maintaining detailed writings in anticipation of contentious hearings. As part of Gilles attack on the Board’s decision, he argued that the fire chief had not actually ordered him to sign the PIP. Had the fire chief only issued a verbal order, Gilles might have had a viable complaint. But, perhaps anticipating trouble down the line, the fire chief sent a letter to Gilles that stated “you are hereby ordered to sign the PIP and immediately commence exercising your best efforts to satisfactorily meet the requirements of the PIP.” The letter was transmitted via email and U.S. mail, and further ordered Gilles to respond within twenty-four (24) hours. Accordingly, because the order forming the basis of Gilles’ termination was reduced to writing, the court confirmed the Board’s findings. Consequently, if an order or other document is expected to be relevant to a discipline or termination proceeding, it must be placed in writing.
Lesson #3: Evidence submitted before the Board need not strictly comply with courtroom rules of evidence.
Gilles argued that the fire chief did not comply with the rules of evidence applicable to court proceedings and, as such, Gilles was entitled to a new hearing. In particular, Gilles took issue with notes that were submitted into evidence, which the fire chief had taken during meetings and interviews about Gilles’ job performance. However, the court noted that administrative agencies (such as the Board) do not need to observe the technical rules of evidence. Instead, a Board’s evidentiary rulings will only be reversed when an error occurs and it results in substantial injustice to a party. In Gilles, the court found that, while there was a minor evidentiary error committed by the Board, it was not severe enough to constitute “substantial injustice.”
Lesson #4: Avoid ex parte communications.
While the Gilles hearing was progressing, the Board of Fire Commissioners welcomed a new Fire Commissioner. In attempting to get up to speed, the new Commissioner sent an email to the fire chief asking for details on the ongoing proceedings. The fire chief responded that he could not talk to the commissioner because it may bias him, but did offer some color commentary on the matter. Gilles later complained that this exchange was an improper ex parte communication, which is defined as a communication by a party directly with a judge about the issues in the case without the other parties’ knowledge. The court agreed that an ex parte communication had occurred between the new commissioner and the fire chief, but it did not warrant a new hearing. As noted by the Court, only when an ex parte communication results in prejudice to a complaining party will a Board’s decision be reversed. Gilles could not identify any prejudice, so the court affirmed the Board. However, Gilles nonetheless underscores the need to prevent ex parte communications between decision makers and parties during the pendency of a contested hearing.
Lesson #5: Fire departments have an interest in employee health, personal appearance, and mannerisms.
Gilles challenged the reasonableness of the PIP, claiming the District allegedly had no interest in his personal hygiene, health, personal appearance, or mannerisms.
The court disagreed, holding that the District did have interests in these aspects of Gilles’ life. Indeed, the Court noted that such considerations “are understandably important in the atmosphere of a fire station where people have to work and live around each other during 24-hour shifts.” As such, the court also found it reasonable to order Gilles to “take control of his weight, which at times exceeded 360 pounds.” Thus, Gilles makes clear that courts will not interfere with the internal operations of a fire department “unless there is a very good reason to do so,” and it is proper for Districts to consider employee health, personal appearance, and mannerisms in disciplinary proceedings.
These five lessons will serve all fire district officials in disciplinary hearings.