Hoban v. Rochford

• Decision Date: 14 June 1979
• Docket Number: No. 77-1521,77-1521
• Citation: 29 Ill.Dec. 531,392 N.E.2d 88,73 Ill.App.3d 671
• Parties: , 29 Ill.Dec. 531 William T. HOBAN, Plaintiff-Appellant, v. James M. ROCHFORD, Superintendent of Police, City of Chicago, Police Board of the City of Chicago, Marlin Johnson, Rev. Wilbur N. Daniel, Raymond J. Hauser, Paul W. Goodrich, Louis F. Peick, Sebastian Rivera, Jr., Thomas J. Henegan, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 88

392 N.E.2d 88

73 Ill.App.3d 671, 29 Ill.Dec. 531

William T. HOBAN, Plaintiff-Appellant, v. James M. ROCHFORD, Superintendent of Police, City of Chicago, Police Board of the City of Chicago, Marlin Johnson, Rev. Wilbur N. Daniel, Raymond J. Hauser, Paul W Goodrich, Louis F. Peick, Sebastian Rivera, Jr., Thomas J Henegan, Defendants-Appellees.

No. 77-1521.

Appellate Court of Illinois, First District, Fourth Division.

June 14, 1979.

William T. Hoban, Chicago, pro se, attorney for appellant.

William R. Quinlan, Corp. Counsel of the City of Chicago (Daniel R. Pascale, Richard F. Friedman, Asst. Corp. Counsel, Chicago, of counsel), for defendants-appellees.

ROMITI, Justice:

The plaintiff, William T. Hoban, was discharged from his position as captain of police with the Chicago police department following a hearing before the defendant police board on charges relating to his alleged failure to live within the city of Chicago as required by the Chicago Municipal Code. (Municipal Code of Chicago, ch. 25, par. 30.) Plaintiff sought review under the Administrative Review Act (Ill.Rev.Stat.1975, ch. 110, par. 264 et seq.), and the circuit court sustained the findings and decision of the police board. On appeal to this court plaintiff contends: (1) the decision of the police board was void because in the investigation by the police department certain statutory and administrative rules were violated; (2) the police board decision was void because plaintiff was suspended for more than thirty days before the hearing took place, in violation of Illinois statutory law (Ill.Rev.Stat.1975, ch. 24, par. 10-1-18.1), and the due process clauses of the Illinois and United States constitutions; (3) he was denied equal protection of the laws when he was discharged for violation of the residency requirement although the policy of the police department was to only issue thirty-day suspensions for the first such violation. Plaintiff does not challenge the finding of the board that he was in violation of the residency requirement.

We affirm the judgment of the trial court which sustained the findings and decision of the police board of the city of Chicago.

Plaintiff was appointed to the Chicago police department on August 22, 1955 and was promoted to the rank of captain on September 16, 1970. On December 4, 1975 he was advised in writing that he was alleged to be in violation of chapter 25, section 30 of the Municipal Code of Chicago and rule 25 of the Chicago police department, each of which required him, as an officer of the police department and a classified civil service employee, to actually reside in Chicago. The written notice also advised plaintiff that any admissions he made during questioning could be used as the basis for charges seeking his removal and discharge. He was further advised that he had the right to counsel during the examination. Plaintiff signed a waiver of this right to counsel. During the examination on December 4 plaintiff refused to answer questions concerning his alleged residence in Lincolnwood, Illinois, claiming the constitutional privilege against self-incrimination. On December 9, 1975 plaintiff was again advised in writing of the alleged violations already noted, along with the additional charge that he had made a false report claiming residence in Chicago, in violation of rule 14 of the department. Plaintiff again executed a written waiver of counsel. Once more plaintiff asserted his constitutional privilege against self-incrimination and refused to answer questions about his alleged residence outside of Chicago. During this examination he was ordered to answer these questions by a police commander. He was advised orally that refusal to answer would constitute a violation of unspecified rules and regulations of the Chicago police department and would serve as a basis for seeking his discharge. Plaintiff persisted in his refusal to answer the questions. Near the end of the examination he was orally advised that the questions asked "were not intended to be used as evidence in any criminal prosecution" against him. Plaintiff indicated that even with this knowledge he would persist in his refusal to answer.

By an order dated December 10, 1975, and effective that same day, the superintendent of police suspended plaintiff "for a minimum of thirty (30) days" for violation of rules 6, 14, 25 and 51B of the Chicago police department. The order also stated charges would be filed with the Chicago police board seeking his separation from the force or other such punishment as might be determined after a board hearing. The order noted that at the hearing the board would also review the original disciplinary action taken by the superintendent.

In a letter from the police board dated December 22, 1975, the superintendent was notified that a hearing officer had reviewed the suspension and determined it was warranted pending hearing of charges by the board. On December 24 plaintiff was notified in writing of charges filed against him before the board and of a hearing on those charges scheduled for January 6, 1976. Plaintiff was charged with violation of the following rules:

"Rule 2. Any action or conduct which impedes the Department's efforts to achieve its policy and goals or brings discredit upon the Department.

Rule 6. Disobedience of an order or directive, whether written or oral.

Rule 14. Making a false report, written or oral.

Rule 25. Failure to actually reside within the corporate boundaries of the City of Chicago.

Rule 51B. Failure to cooperate when called to give evidence or statements by any investigative branch or superior officer of the Chicago Police Department or the Police Board when the evidence or statements sought relate specifically, directly and narrowly to the performance of his official duties. If the member properly asserts a constitutional privilege, he will be required to cooperate if advised that by law any evidence or statements given by him cannot be used against him in a subsequent criminal prosecution. " (Rules and Regulations of the Police Department, City of Chicago, Art. V, Rules 2, 6, 14, 25, and 51B.)

According to the specifications included in the notice to plaintiff, the violations of rules 2 and 25 were founded directly upon his alleged failure to reside in Chicago. The violation of rule 14 was based on a "Residence Auto Licensing Data Card" submitted by the plaintiff in 1975 in which he indicated that he resided at a specified address in Chicago. Violation of rule 51B was based on his failure to cooperate and answer questions on December 4 and 9, 1975 concerning his residence. The violation of rule 6 was founded on his failure to obey his superior commander's order on December 9, 1975 to answer questions concerning his residence and his use of a department vehicle in November, 1975. Following a hearing the board found, on April 12, 1976, that plaintiff had violated these rules in the manner specified in the charges and ordered that he be discharged from the police department. ¹ The circuit court sustained these findings and the decision on August 1, 1977 and this appeal followed.

I.

Plaintiff contends that the action of the board was void because the police department's investigation and institution of charges was not in compliance with the procedures required by the department's own rules and by Illinois statute. However, our examination of the record establishes that the applicable procedures were followed. Plaintiff asserts that when the department notified him of his suspension they failed to inform him that he had a right to a review of the suspension by the police board and they also failed to include an express finding by the superintendent that the public safety or good of the department required his immediate suspension as required by the rules of procedure of the board. (Rules of Procedure of the Police Board, City of Chicago, Article IV, §§ A, C(1).) But these requirements do not apply to:

"any suspension implemented by the superintendent of police which is accompanied by the filing of charges with the Police Board seeking a member's separation or suspension in excess of 30 days except that no later than seven days after service of the notice of suspension a member of the Police Board or its hearing officer shall review the order of the superintendent together with the reasons therefor and shall at that time determine whether suspension pending the disposition of charges is warranted." (Rules of Procedure, Article IV, § D.)

The superintendent's order suspending plaintiff stated that charges would be filed seeking his separation from the force. Those charges were filed by December 24, 1975. We find that these charges accompanied plaintiff's suspension order within the meaning of article IV, section D. The record further shows that on December 22, 1975 the superintendent was notified by the police board that they had reviewed the suspension order, as required by article IV, section D and approved the suspension pending the hearing of charges. That notice does not indicate on what date the review took place, but we must presume, in the absence of contrary evidence, that the board complied with the seven day requirement. Beam v. Erven (1971), 133 Ill.App.2d 193, 272 N.E.2d 685.

Section 10-1-18.1 of the Illinois Municipal Code provides in pertinent part:

"In any municipality of more than 500,000 population, no officer or employee of the police department in the classified civil service of the municipality whose appointment has become complete may be removed or discharged, or suspended for more than 30 days except for cause upon written charges and after an opportunity to be heard in his own defense by the Police Board. Before any such officer or employee may be interrogated or examined by or before any disciplinary board, or departmental agent or investigator, the results of which hearing, interrogation or examination may be the basis...