Lesner v. Police Bd. of Chi., 1–15–0545.
| Citation | 404 Ill.Dec. 352,55 N.E.3d 1206 |
| Decision Date | 14 June 2016 |
| Docket Number | No. 1–15–0545.,1–15–0545. |
| Parties | Steven LESNER, Petitioner–Appellant, v. The POLICE BOARD OF The CITY OF CHICAGO and Garry McCarthy, Superintendent, Respondents–Appellees. |
| Court | United States Appellate Court of Illinois |
Thomas J. Pleines, Chicago, for appellant.
Stephen R. Patton, Corporation Counsel, Chicago (Benna Ruth Solomon, Miriam Zreczny Kasper, and Carl Newman, Assistant Corporation Counsel, of counsel), for appellees.
delivered the judgment of the court, with opinion.
¶ 1 Does the City of Chicago's police board have the statutory discretion to order an officer's discharge after the police superintendent made the less drastic disciplinary recommendation of suspension?
¶ 2 This case presents a rare instance where the police board asserted its authority by disagreeing with the superintendent's recommendation and imposed a harsher penalty for misconduct. In a case of first impression, we must determine if the Illinois and Chicago Municipal Codes grant the Chicago police board the power to impose what the police board considers the appropriate penalty for a police officer's misconduct. We hold the police board acted within its legal authority under both the Illinois and Chicago Municipal Codes in discharging the petitioner, a former Chicago police sergeant whose misconduct resulted in a woman killing herself with his auxiliary firearm.
¶ 3 At its core, the petitioner and the dissent view the Chicago police board as a sort of bureaucratic rubber-stamp with no capacity to increase (though they concede it may decrease) the police superintendent's disciplinary recommendations. This essentially treats the police board as a procedural extension of the superintendent's authority. To the contrary, the Illinois and Chicago Municipal Codes, which created the police board, put an end to dealing with police misconduct as solely an internal police function. The municipal codes along with the police board's rules of procedure place final decision-making power on matters of discharge, removal, and suspension exceeding 30 days in the control of the police board as an autonomous, impartial public body. Any other interpretation circumvents the legislative purposes for the police board and renders the police board's function symbolic instead of substantive.
¶ 5 None of the facts are in dispute. On February 17, 2009, at about 7:45 p.m., Chicago police sergeant Steven Lesner (the petitioner) and two officers in a beat car responded to a call of an argument between Catherine Weiland and her boyfriend at a restaurant on Chicago's north side. The officers removed Weiland's boyfriend from the restaurant. Weiland lived nearby and had a car. Lesner thought Weiland seemed distraught and offered to drive her home in his police car. On the way, Weiland asked Lesner to stop and buy a bottle of wine. Lesner agreed. In uniform, Lesner went into a store and bought wine. When they arrived at Weiland's apartment, Lesner helped Weiland carry her things inside. He stayed for about 40 minutes and talked to Weiland and to her brother and father, who lived in separate units in the three-flat building. Weiland and her brother were concerned about Weiland's car. Lesner agreed to drive them to the restaurant to retrieve it. Before returning to patrol duty, Lesner gave Weiland his card on which he wrote his personal cell phone number.
¶ 6 At about 11 p.m., when Lesner's shift ended, he received a call from Weiland inviting him out for a drink. Lesner declined but accepted her invitation to come to her apartment for a drink and watch television. Weiland asked Lesner to buy more wine on the way. Before leaving the station, Lesner put his duty firearm in his locker and strapped his auxiliary firearm to his ankle. On his way over to Weiland's apartment, Lesner bought Weiland some wine and a six-pack of beer for himself.
¶ 7 Lesner spoke to Weiland's brother for about 20 minutes before going upstairs to Weiland's apartment and watching television with her. Lesner sat on the loveseat and Weiland sat on a nearby chair. Lesner removed his auxiliary weapon from his ankle holster and placed both on the floor next to his seat. Lesner testified that he took off the gun when he thought Weiland wasn't looking, because he had his feet on a table and “it looks kind of stupid.” About an hour later, just before 1:40 a.m., Weiland said she needed to take her medication, left the room, and returned with a large pill box. Lesner, who had drunk three or four beers, excused himself to use the bathroom. That's when Weiland picked up Lesner's gun and shot herself in the head.
¶ 8 After hearing one gunshot, Lesner found Weiland in the chair he had been sitting in with his gun in her lap. Lesner called 911 and contacted his watch commander. He also informed Weiland's father and brother and stayed at the apartment until emergency personal and police arrived. An investigation over the next few days revealed Weiland had a bipolar disorder
and had not been taking her medication.
¶ 9 Lesner was not immediately disciplined but given other police duties for a few weeks. On March 1, 2011, Lesner returned to patrol duties, where he remained for 2 ½ years, until the superintendent filed disciplinary charges against him on September 11, 2013. The superintendent alleged that Lesner's conduct violated three rules of the Chicago police department: rule 2 (); rule 10 (inattention to duty); and rule 17 (). The superintendent recommended a 60–day suspension. Lesner served 30 of those days from October 5 to November 4, 2013. The superintendent recommended to the police board charges that would impose the balance of 30 days.
¶ 10 Following the filing of the charges, Lesner and the superintendent, in an attempt to resolve the matter without an evidentiary hearing, negotiated a stipulation under which Lesner would plead guilty and accept the 60–day suspension. The stipulation would have no effect should the police board reject the agreed upon suspension. With regard to the stipulation, the hearing officer advised the parties that in deciding how to proceed, they should keep in mind that the police board “feels it can increase or decrease or reduce that 60–day penalty.” The parties presented the stipulation to the police board and argued in its favor.
¶ 11 The police board rejected the stipulation. The case then proceeded to an evidentiary hearing before a hearing officer on May 23, 2014. Lesner testified as an adverse witness during the superintendent's case and admitted the factual basis for the violations. During Lesner's case, four witnesses testified about Lesner's character and Lesner testified about his complimentary work history, including his arrests, awards, and commendations. During closing arguments, Lesner's attorney and the counsel for the superintendent pressed for the 60–day suspension.
¶ 12 The police board issued findings and decision, concluding that the superintendent had proved violations of departmental rules 2, 10, and 17 and determining that Lesner “must be discharged from his position due to the serious nature of the conduct of which it found him guilty.” The police board relied on section 2–84–030 of the Municipal Code of Chicago (Chicago Municipal Code § 2–84–030 (amended Sept. 8, 2011)) and section 10–1–18.1 of the Illinois Municipal Code (65 ILCS 5/10–1–18.1 (West 2012)
), as authority to discharge Lesner. The police board explained that under these provisions, the superintendent “recommends” an appropriate penalty to the police board and the recommendation does not bind the police board. Rather, the concurrence of a majority of the police board on the penalty requires the superintendent to impose the police board's instructions. Thus, “the [police] Board has the power to impose any penalty it deems appropriate in the cases in which the Superintendent has recommended a suspension in excess of 30 days.”
¶ 13 The police board found that Lesner made “reprehensible” decisions on the night Weiland killed herself. The police board did not evaluate Lesner's conduct as an error in judgment in the course of making a split second decision. Instead, it described Lesner's actions that night as “a series of calculated and knowing decisions, made over the course of hours while on and off duty, aimed at using his position as a sergeant to further a personal relationship and that exhibited a complete lack of sound judgment, beginning with his decision to go into a liquor store while on duty and in uniform and buy alcohol for a woman who was distraught after an altercation with her boyfriend to which police were called, and ending with his decision to leave his loaded gun on the floor while he went to the bathroom, which allowed the woman to pick up his gun and use it to shoot herself in the head.”
¶ 14 The police board also made findings as to mitigating evidence, including Lesner's distinguished record as a police officer, his cooperation in Weiland's death investigation, his good reputation in the community, and the superintendent's recommendation of a 60–day suspension.
¶ 15 Based on everything before it, the police board deemed Lesner's conduct so serious that it “renders his continuance in his office detrimental to the discipline and efficiency of the service of the Chicago Police Department, and is something which the law recognizes as good cause for him to no longer occupy his office.” In addition, “[w]ith all due respect to the Superintendent,” the police board pointed to an extensive “pattern of misconduct” with “grave” consequences as leading it to finding “discharge is the only appropriate penalty.” The police board...
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