Fedanzo v. City of Chicago

• Decision Date: 24 May 2002
• Docket Number: No. 1-01-0582.,1-01-0582.
• Citation: 775 N.E.2d 26,333 Ill. App.3d 339,266 Ill.Dec. 464
• Parties: Joseph FEDANZO, Plaintiff-Appellant, v. The CITY OF CHICAGO and the Personnel Board of the City of Chicago, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

775 N.E.2d 26

333 Ill. App.3d 339

266 Ill.Dec. 464

Joseph FEDANZO, Plaintiff-Appellant, v. The CITY OF CHICAGO and the Personnel Board of the City of Chicago, Defendants-Appellees.

No. 1-01-0582.

Appellate Court of Illinois, First District, Fifth Division.

May 24, 2002.

Rehearing Denied July 30, 2002.

As Modified Upon Denial of Rehearing August 2, 2002.

Beranek and DeWilkins, Orland Park (Donald W. DeWilkins, of counsel), for Appellant.

Corporation Counsel of the City of Chicago (Mara S. Georges, Lawrence Rosenthal, Benna Ruth Solomon and Erica M. Landsberg, of counsel), for Appellee.

MODIFIED UPON DENIAL OF REHEARING

Justice QUINN delivered the opinion of the court:

Plaintiff Joseph Fedanzo filed a petition for writ of certiorari in the circuit court seeking review of the recommendation and decision of the Personnel Board of the City of Chicago (Personnel Board) and the City of Chicago (City) to terminate him from his employment with the City. The trial court denied the petition. On appeal, plaintiff seeks reinstatement, contending: (1) that the Chicago residency requirement is unconstitutional; (2) that the decision of the Personnel Board was against the manifest weight of the evidence; and (3) that the hearing officer erred in denying his motions to suppress evidence. For the reasons set forth below, we affirm the judgment of the trial court.

BACKGROUND

In early 1991, plaintiff accepted a position with the City's department of water. He later worked as an electrical mechanic with the City's department of aviation at O'Hare International Airport (O'Hare). In a change of address form completed on July 3, 1996, plaintiff changed his Chicago address from 5371 North Delphia to 4623 North Chester Avenue. Acting on an anonymous tip it received in November 1997, the City's inspector general's office (IGO) began an investigation into plaintiff's residency. This investigation ultimately led to plaintiff's termination from his employment with the City effective April 12, 1999. This action was based upon plaintiff's violation of various personnel rules, all relating to his failure to actually reside in the City. Plaintiff sought a hearing on the termination decision.

Prior to his hearing, plaintiff filed a motion to suppress statements he made to investigators, claiming provisions of his union collective bargaining agreement had been violated. He also filed a motion to suppress all evidence gathered after six months from when the IGO's investigation began, based upon its failure to inform the mayor, as required by City ordinance, of the continued investigation. Additionally, plaintiff filed a motion to vacate the City's order terminating him on the ground the residency requirement violated his procedural and substantive due process rights as guaranteed by the United States and Illinois Constitutions. All of these motions were denied.

At the hearing, Daniel Hintz testified that he was the lead investigator with the IGO on plaintiff's residency case. Based upon the most recent address information plaintiff had provided, his address was 4623 North Chester Avenue, unit 108W, which is a one-bedroom condominium owned by plaintiff. The Chester Avenue condominium was part of four buildings, each covering a city block, and surrounded by Chester, Commons, Leland and Wilson. On December 3, 1997, February 18, 1998, March 20, April 3, April 13 and June 1, 1998, Hintz conducted surveillance on plaintiff's Chester Avenue address, with each beginning about 2:30 a.m. and ending around 7 a.m. Plaintiff was usually scheduled to be at work by 7 a.m. Hintz did not observe plaintiff during any of his surveillances. On cross-examination, Hintz testified that because there were multiple entrances into the buildings, he was unable to see them all at once and admitted that plaintiff could have left the property without being seen by Hintz.

When Hintz called the telephone number registered to the Chester Avenue address on October 30, 1998, an answering machine with a female voice picked up, stating that the "Donoho residence" had been reached. On November 25, 1998, when Hintz called the number again, the answering machine, still in a female voice, stated that the "Fedanzo/Donoho residence" had been reached.

Between June and September 1998, Hintz conducted surveillance numerous times on 248 North Harvard Street, a single-family home, in Villa Park, Illinois, owned by plaintiff, his wife Natalie, and his father. In June 1998, Hintz conducted surveillance on this home on three occasions and saw plaintiff leave the home between 6:15 a.m. and 6:30 a.m. twice. In July 1998, Hintz conducted surveillance on four occasions. On three of those dates, plaintiff was seen leaving the Villa Park residence around 6:30 a.m.

In August 1998, Hintz had the Villa Park residence under surveillance four times and saw plaintiff leave the premises around 6:30 a.m. three times. During both of his surveillance times in September 1998, Hintz saw plaintiff leave the Villa Park home around 6:30 a.m.

In October 1998, Hintz conducted surveillance on eight occasions. During each surveillance that month, Hintz saw plaintiff leave the Villa Park residence between 6:20 a.m. and 6:40 a.m. In November, Hintz conducted surveillance three times and saw plaintiff leaving the Villa Park house on each occasion around 6:30 a.m. Throughout his investigation, each time Hintz saw plaintiff, he was driving a 1995 GMC Jimmy having license plate "SPU 225," which is registered to plaintiff's father.

During Hintz's cross-examination, plaintiff's counsel brought out that most of the reports completed by Hintz regarding his surveillance were identical, except for the dates. Hintz stated this was "purposeful." Hintz admitted that from where he maintained surveillance, he could not actually see plaintiff leave the residence at 248 North Harvard, but he included that information in his reports because it was the "only logical place for [plaintiff] to come from."

Hintz also testified that he and Beth Fikar, another investigator, interviewed Thomas Kehoe, who lived at 236 North Harvard, regarding who lived at 248 North Harvard. Hintz denied speaking with anyone else in the Kehoe family regarding plaintiff.

Plaintiff testified at the hearing as an adverse witness. Plaintiff stated that he was married in August 1990 and had never divorced or legally separated from his wife. Plaintiff and his wife have two children, a daughter, Danielle, born December 1, 1990, and a son, Michael, born May 31, 1997. Plaintiff testified that Danielle attended school in Lombard, Illinois, which is near Villa Park. He testified that the 248 North Harvard property was purchased in the fall of 1995. At that time, plaintiff's wife and daughter moved into the home.

Plaintiff testified that he had lived at 4623 North Chester "[s]ince probably fall of 1990." He did not know how many units per level were in the building. At the hearing, plaintiff knew the streets surrounding the condominium but did not know all of them when interviewed earlier by representatives of the IGO. At the hearing, plaintiff knew the number of the parking spot for his Chester Avenue residence but did not know it previously when interviewed. Regarding an interview he had with the IGO, plaintiff was asked at the hearing, "During the interview, you knew the importance of telling the truth; isn't that right?" Plaintiff responded, "No."

Plaintiff stated that while working for the City, it was his practice to give his paychecks to his wife. Plaintiff testified that he paid the taxes on the Chester Avenue residence, but his father paid the mortgage. He also, testified that neither his wife nor his children had ever been to his Chester Street condominium and stated that a woman named Ricki Donoho lived there, but "[n]ot all the time." Donoho kept clothes there and would "come and go" from the property as she pleased. Plaintiff explained that she was a friend to him and his father and that she slept in the condominium's only bedroom when she stayed there.

Plaintiff stated that the electric bill for the Chester Avenue property was in both his and Donoho's name. Regarding the telephone number assigned to the Chester Avenue condominium, plaintiff stated that on October 30 and November 25, 1998, he did not have an answering machine at the number, but Donoho did. A document filed with plaintiff's condominium association showed that a burgundy Ford Escort was listed as being assigned to his parking space. Plaintiff stated that he did not own such a car and had never driven one. On cross-examination, plaintiff stated that Donoho owned a burgundy Ford Escort.

As for the house in Villa Park, plaintiff, who is a drummer in several bands, stated he had a music studio built in the basement soon after it was purchased. The studio was originally built as an eight-track recording studio, but plaintiff subsequently "[p]umped it up to a 16." Plaintiff had a key to the Villa Park residence at the time of the hearing and also in 1998. He kept some clothes at the house in Villa Park and further stated that during most of October and all of November of 1998 he stayed there. He did not recall how often he stayed there prior to September 1998. The tax bill for the Harvard residence was in the name of plaintiff, his wife and his father. Plaintiff admitted to receiving "junk" mail at the Harvard residence.

On cross-examination by his counsel, plaintiff stated that his wife was five months pregnant when they married in August 1990, which was the reason for the marriage. A short time later, the two stopped living together. Plaintiff explained that because of religious beliefs, he and his wife did not divorce. Plaintiff testified that bills relating to the condominium were paid from funds in a joint account plaintiff had with his father. Plaintiff also testified that he received mail, including correspondence from the City, at his Chester Avenue address.

Kathleen...