Flynn v. Board of Fire and Police Com'rs of City of Harrisburg

• Decision Date: 22 October 1975
• Docket Number: No. 74--306,74--306
• Citation: 342 N.E.2d 298,33 Ill.App.3d 394
• Parties: Wesley E. FLYNN, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF HARRISBURG, Illinois, and Carolyn Sue Thompson, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 298

342 N.E.2d 298

33 Ill.App.3d 394

Wesley E. FLYNN, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF HARRISBURG, Illinois, and Carolyn Sue Thompson Defendants-Appellees.

No. 74--306.

Appellate Court of Illinois, Fifth District.

Oct. 22, 1975.

Mitchell & Armstrong, Ltd., Marion, for plaintiff-appellant.

Charles M. Ferguson, Harrisburg (for Board of Fire and Police Commissioners of the City of Harrisburg, Illinois), for defendants-appellees.

CARTER, Justice:

This is an appeal from an order of the Circuit Court of Saline County which affirmed a decision of the Board of Fire and Police Commissioners of the City of Harrisburg, Illinois. The Board found: (1) plaintiff-appellant was guilty of acts unbecoming a police officer which tended to bring disrepute upon the Police Department of the City of Harrisburg, contrart to the rules and regulations of the Police Department of the City of Harrisburg and (2) the evidence was sufficient to warrant a finding that plaintiff-appellant was guilty of conduct unbecoming a police officer in that he did criminal damage to property, entered complainant's automobile without authority and committed an assault upon complainant, all in violation of the Statutes of the State of Illinois. By reason of these findings of fact and guilt, the Board determined that cause existed for the discharged of plaintiff-appellant from his position as a police officer.

The appellant's first contention on appeal is that the Board of Fire and Police Commissioners (hereinafter referred to as the Board) lost jurisdiction of this case when they granted a continuance of the hearing beyond the prescribed 30 days on their own motion. The rules of the Board specifically state:

If the officer or fireman is suspended pending hearing, the Board may not, on its own motion, continue the hearing to a date beyond thirty days from the date of suspension. Rules and Regulations of the Board of Fire and Police Commissioners City of Harrisburg, Illinois, 1959, Art. V. § 3.

In the instant case the appellant was originally suspended on April 5, 1973, for a period of 30 days. The hearing with reference to the charges was held on May 2, 1973, and on May 3, 1973, the Board granted a continuance upon its own motion in order that polygraph tests might be given. On June 4, 1973, the Board discharged the appellant as a police officer.

Although the Board did not comply with its own rules we are not of the opinion that this non-compliance caused it to lose jurisdiction of the case. In Brewton v. Civil Service Commission,115 Ill.App.2d 460, 253 N.E.2d 504, the court construed a similar provision as not being jurisdictional. In that case the officer was suspended for 30 days and the charges were filed after the 30 day period prescribed by Ill.Rev.Stat., 1965, ch. 24, § 10--1--18. The court concluded that allowing the filing of charges after the 30 day period resulted in no great prejudice because the defendant loses no right to a hearing or review and may have a remedy elsewhere for whatever harm occurred.

In addition the enabling legislation for the Board probides:

'The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, . . ., which hearing may be continued from time to time.' Ill.Rev.Stat., 1969, ch. 24, § 10--2.1--17.

Therefore although the Board failed to comply with its own rules it was still within the limitations set forth by the legislature which ultimately prescribes what jurisdiction an administrative agency will have. Because we cannot discover any prejudice resulting to the appellant and the appellant has only directed our attention to cases which state that rules of an administrative agency have the force and effect of law and an agency is bound by its rules, we conclude the Board in the instant case did not lose jurisdiction by the continuance.

The appelant next contends the Board failed to make an independent determination of 'cause for removal' and instead adopted a criteria set forth by the City Council of Harrisburg. In its order discharging the appellant the Board found the following:

'6. Respondent, as charged herein, and contrary to the Rules and Regulations of the Police Department of the City of Harrisburg, Illinois, is guilty of acts unbecoming a police officer, which tended to bring disrepute upon the Police Department of the City of Harrisburg.

'7. That the evidence herein is sufficient to warrant a finding and this Board does so find that the Respondent was guilty of conduct unbecoming a police officer in that he did criminal damage to the property of Carolyn Sue Thompson by breaking out the rear window of her 1973 Pontiac Bonneville automobile and further without authority of the said Carolyn Sue Thompson entered her said automobile and further find that Respondent committed assault Board do not specify any conduct for a policeman of the Statutes of the State of Illinois.

By reason of the findings of fact and the guilt herein, cause exists for the discharge of the Respondent, Wesley B. Flynn, from his position as a police officer in and for the City of Harrisburg, Illinois.'

It is appellant's contention as to finding '6' that the Rules and Regulations of the Board do not specify and conduct for a policeman or any acts which may be prohibited. Appellant contends further that the Board under finding '6' yielded its obligation to determine 'cause' to the City Council because the Council passed an ordinance providing the Board may remove a policeman for unbecoming conduct which is detrimental to the best interest of the city.

Although Ill.Rev.Stat.1969, ch. 24, § 10--2.1--17, specifies the Board is to determine 'cause' there is statutory authority under which the city may prescribe the duties and powers of police officers. Ill.Rev.Stat., 1961, ch. 24, § 11--1--2. In addition, Ill.Rev.Stat., 1961, ch. 24, § 5--3--10 provides, '(t)he council or board may by such ordinance . . . (3) make such rules and regulations as may be necessary or proper for the efficient and economical conduct of the business of the city or village.' In Quinlan v. Board of Fire and Police Commissioners, 27 Ill.App.3d 286, 327 N.E.2d 203, the court held that reference to the city's ordinance proscribing conduct unbecoming a police officer by the city board of fire and police commissioners during disciplinary hearings against city police chief did not prevent the board from making an independent determination of 'cause for suspension.'

The ordinance passed by the City was consistent with the requirement that the Board should determine 'cause' as the ordinance only stated that certain conduct 'may be' brounds for discharge not that it 'shall be.' The former language still allows the Board to make the determination.

There is some merit to the appellant's argument that the Rules and Regulations of the Board do not contain any rule regarding conduct unbecoming a police officer and therefore the appellant could not have been guilty of violation those rules. Even though the appellant might not have violated a rule of the Board as found in paragraph '6,' a single valid finding of 'cause' is sufficient to constitute the basis for an order of discharge. Moriarty v. The Police Board of Chicago, 7 Ill.App.3d 978, 289 N.E.2d 32. We are of the opinion the finding in paragraph '7' states a valid 'cause' for discharge.

Before reaching a decision as to whether there was 'cause' for the discharge, it is necessary to determine if the finding itself was adequate. The rule in Illinois is that a decision of an administrative agency must contain findings so as to make judicial review of that decision possible. Reinhardt v. Board of Education, 61 Ill.2d 101, 329 N.E.2d 218. The decision in the instant case stated adequate findings of fact and guilt in paragraph '7.' The Board not only found the appellant guilty of conduct unbecoming an officer but also criminal damage to property by breaking out the window of Ms. Thompson's car, entry into a car without authority, and assaulting Ms. Thompson. The Board's order went on to say that by reason of the findings 'cause' existed. We are of the opinion these findings were adequately set forth as to permit a review of the case.

The appellant claims though that even if these finding are true, they do not constitute good 'cause' for the appellant's discharge. We disagree. Cause is not defined by statute but is left to the administrative agency to determine. Our courts have construed the word cause to mean:

'Some substantial shortcoming which renders the employee's continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognizes as good cause for his no longer holding the position. (citation omitted).' Davenport v. Board of Fire and Police Commissioners, 2 Ill.App.3d 864, 278 N.E.2d 212, at 215 (3rd Dist. 1972).

As stated above it is left to the Board to determine 'cause,' and it is the rule in Illinois that courts cannot reverse an administrative agency's finding of 'cause' unless the findings are so unrelated to requirements of the service or so trivial as to be unreasonable and arbitrary. Nolting v. Civil Service Commission, 7 Ill.App.2d 147, 129 N.E.2d 236.

In the instant case the findings of 'cause' were related to the requirements of the service inasmuch as police officers are supposed to be respected and mediating elements within the community. In this case, the appellant was just the opposite. Furthermore, findings of criminal damage to property and assault are not such trivial matters as to be unreasonable and arbitrary grounds for a police officer's discharge. In Kammerer v. Board of Fire and Police Commissioners, 44 Ill.2d 500, 256 N.E.2d 12, an off-duty police officer was discharged for kicking and damaging a squad car, and impugning the character of the child of police. The Supreme Court of Illinois sustained the...