Kvidera v. Board of Fire & Police Com'rs of the Village of Schiller Park

• Decision Date: 27 December 1989
• Docket Number: Nos. 1-88-3170,88-3183 and 88-3490,s. 1-88-3170
• Citation: 140 Ill.Dec. 96,549 N.E.2d 747,192 Ill.App.3d 950
• Parties: , 140 Ill.Dec. 96 Jeanne KVIDERA, Plaintiff-Appellee, Cross-Appellant, v. The BOARD OF FIRE & POLICE COMMISSIONERS OF THE VILLAGE OF SCHILLER PARK, et al., Defendants-Appellants, Cross-Appellees.
• Court: United States Appellate Court of Illinois

Page 747

549 N.E.2d 747

192 Ill.App.3d 950, 140 Ill.Dec. 96

Jeanne KVIDERA, Plaintiff-Appellee, Cross-Appellant, v. The BOARD OF FIRE & POLICE COMMISSIONERS OF THE VILLAGE OF SCHILLER PARK, et al., Defendants-Appellants Cross-Appellees.

Nos. 1-88-3170, 88-3183 and 88-3490.

Appellate Court of Illinois,

First District,

Third Division.

Dec. 27, 1989.

Harry J. Smith, Jr., River Grove (Harry J. Smith, Jr., and Lawrence J. Czepiel, of counsel), for defendants-appellants, cross-appellees.

Thomas F. McGuire & Associates, Ltd., Long Grove, for plaintiff-appellee, cross-appellant.

Presiding Justice FREEMAN delivered the opinion of the court:

Following an administrative hearing, the Board of Fire and Police Commissioners of the Village of Schiller Park (Board) found plaintiff, Jeanne Kvidera, guilty of violating various rules and regulations of the Schiller Park police department. Plaintiff was charged with 10 counts of misconduct and found guilty of using verbally abusive language to a civilian (Count I), assisting in the composition of a letter which alleged marital infidelity of the husband of a candidate for the school board (Count II), and attempting to impede the police department's investigation of her involvement in those incidents (Count III). The Board ordered plaintiff suspended for 30 days on each of the first two counts and discharged on the third count.

On administrative review, the circuit court sustained the Board's findings of fact, but reversed the penalties imposed and remanded the case to the Board for the imposition of an "appropriate lesser sanction." On remand, the Board reconsidered the charges and determined that the penalties which had originally been imposed were appropriate. The circuit court refused to confirm the penalties. Thereafter, the Board appealed the order of the circuit court and plaintiff cross-appealed. The appellate court, in dismissing both appeals, stated that in the absence of a contempt citation, in order to have an appealable order, the circuit court should either affirm or direct the Board to impose a specific sanction. (Kvidera v. Board of Fire & Police Commissioners (1988), 168 Ill.App.3d 380, 119 Ill.Dec. 95, 522 N.E.2d 757.) The circuit court then remanded the case to the Board with orders to impose a maximum penalty, exclusive of termination, on all counts and to reinstate plaintiff in her position with the department. The Board complied with the order of the court and imposed a penalty of 30 days' suspension, considered served, on all counts.

The Board appeals from this order contending that the trial court erred by reversing its decision to discharge plaintiff for impeding an official investigation, and in the alternative, by not allowing it to impose a penalty of discharge on all three counts. Plaintiff cross-appeals contending that (1) the Board did not have jurisdiction over her to conduct the hearing, (2) the Board's findings of guilt were against the manifest weight of the evidence, and (3) the Board did not have authority to both suspend and discharge her. We affirm in part, reverse in part, and modify.

Plaintiff, a patrol officer with the Schiller Park Police, testified that on August 28, 1985, she, Josephine Balgro and Nancy Selvaggio were at a restaurant in Glendale Heights. Balgro told plaintiff and Selvaggio that she was upset that a member of the Schiller Park school board, Irene Del Guidice, had told Balgro's husband that she (Balgro) was having an extra-marital affair. As a means of allowing Balgro to vent her feelings, the three ladies began to compose a letter. As the three of them developed ideas for the letter, Balgro wrote them down on a napkin. According to plaintiff, Balgro would decide what she wanted to say and plaintiff would then rephrase it. After the letter had been composed on the napkin, Balgro asked plaintiff if she would type it for her. Plaintiff refused, however, Selvaggio consented. Plaintiff testified that on the night the letter was composed the three of them talked about sending it to members of the school board, but there was no definite intent to mail it. In an earlier statement, which plaintiff made during the course of the police investigation, she stated that she knew that the letter would be sent to Del Guidice. The letter, which was included as a part of the record, alleged that the husband of Vicki Caliendo, a candidate for the Schiller Park school board, was having an extra-marital affair. The letter also stated that because of Mr. Caliendo's conduct, Vicki Caliendo was a poor choice for the school board, and that unless Del Guidice reconsidered sponsoring Caliendo as a member of the board, copies of the letter would be sent to the local newspaper. The concluding statement in the letter was that it would be sent to the other members of the school board. Plaintiff stated that on occasion, she had telephoned Balgro to inquire whether the letter had been mailed; however, she did not see the typewritten letter until after the police department had begun its investigation.

On September 4, 1985, at about 8:30 a.m., plaintiff was issuing parking tickets when Vicki Caliendo drove up to where she was standing. Caliendo indicated to plaintiff that she knew about the letter and that the "war was on." When Caliendo persisted in yelling and screaming, plaintiff made verbally abusive comments to her. Plaintiff stated that she invited Caliendo to talk the matter over, but that Caliendo's response was that she was going to get plaintiff on a charge of conduct unbecoming an officer and sped away. Plaintiff immediately reported the incident to her superior. She was subsequently informed that the Caliendos had lodged a formal complaint against her and had alleged her involvement in the letter to the school board.

Plaintiff stated that she told Balgro that she (Balgro) had gotten her into a lot of trouble with the letter and that there would be an investigation. She stated that she probably told Balgro to deny involvement in the letter in order to protect her (Balgro) since it was Balgro who had physically written it. Plaintiff did not remember telling Balgro that the police could not prove anything.

Balgro testified that it was plaintiff's idea to write the letter for the purpose of "getting even with people." It was agreed that the letter would be sent anonymously. While Balgro suggested that the letter be sent to the members of the school board, it was plaintiff who suggested that it be sent to Del Guidice. Balgro sent the letter to the seven members of the Schiller Park school board. She testified that from time to time, plaintiff would inquire of her as to whether she had mailed the letter, but that plaintiff did not encourage her to do so. Balgro also stated that on one occasion, when plaintiff asked whether the letter had been mailed, plaintiff remarked that it had been quiet and that she had not heard anything. According to Balgro, plaintiff told her to deny any knowledge of the letter because it was plaintiff's job on the line; that if Balgro denied it, the police investigator would not know anything about it; and if Balgro would claim responsibility for the letter, then the police investigation would end.

Nancy Selvaggio testified that on the evening in the restaurant, it was plaintiff who brought up the extra-marital affair of Caliendo's husband. As plaintiff spoke, Balgro wrote down her statements. Selvaggio did not recall whether the plan to mail the letter was discussed at that time.

Vicki Caliendo testified that she, her husband and their eight-year-old daughter were residents of Schiller Park. On August 30, 1985, she received a copy of the letter which plaintiff had allegedly dictated. On September 4, Caliendo and her daughter drove up to where plaintiff was standing. After commenting to plaintiff concerning the letter, plaintiff verbally abused her. According to Caliendo, her daughter, who was in the front of the car, heard the exchange between her and plaintiff. Plaintiff was in uniform at the time of the incident. Caliendo also testified that her husband was a policeman in the Village of Franklin Park and that he had been a reserve officer in Schiller Park.

The Board found plaintiff guilty of three counts and imposed penalties of both suspension and discharge. On administrative review, the circuit court held that the findings of the Board were not against the manifest weight of the evidence; however, the court found the penalties to be excessive.

Initially, we address plaintiff's contention, in her cross-appeal, that the Board lacked jurisdiction to conduct a hearing on the charges filed against her. Plaintiff first argues that the Board failed to commence the hearing within the time required by law. Section 10-2.1-17 of the Illinois Municipal Code provides, in pertinent part, that:

"The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time." (Ill.Rev.Stat.1985, ch. 24, par. 10-2.1-17.)

In the case at bar, the charges were filed on February 25, 1986, and the hearing was scheduled to commence on March 17, 1986. Plaintiff argues that the March 17 "hearing" was continued to March 29 at defendant's request. Therefore, she maintains, the March 29 hearing, which commenced two days after the running of the statutory 30-day period, was improper. Plaintiff argued vigorously below that the March 17 proceeding was not a hearing.

Our review of the record reveals that at the proceeding on March 17, the parties discussed defendant's compliance with plaintiff's discovery requests; plaintiff requested additional discovery to include proof of the Board's 1960 publication of the rules which it had adopted in that year; the parties entered into a stipulation to admit evidence at a later time during the hearings; and plaintiff presented a written motion to dismiss....