Sangirardi v. Village of Stickney

• Decision Date: 30 June 2003
• Docket Number: No. 1-02-1339.,1-02-1339.
• Citation: 276 Ill.Dec. 28,793 N.E.2d 787,342 Ill. App.3d 1
• Parties: Joseph SANGIRARDI, Plaintiff-Appellant, v. The VILLAGE OF STICKNEY; John Zitek, as Chief of Police of the Village of Stickney; The Board of Fire and Police Commissioners of the Village of Stickney; and Edwin Noska, James Bernard and Fred Schimel, as Members of the Board of Fire and Police Commissioners of the Village of Stickney, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

793 N.E.2d 787

342 Ill. App.3d 1

276 Ill.Dec. 28

Joseph SANGIRARDI, Plaintiff-Appellant, v. The VILLAGE OF STICKNEY; John Zitek, as Chief of Police of the Village of Stickney; The Board of Fire and Police Commissioners of the Village of Stickney; and Edwin Noska, James Bernard and Fred Schimel, as Members of the Board of Fire and Police Commissioners of the Village of Stickney, Defendants-Appellees.

No. 1-02-1339.

Appellate Court of Illinois, First District, First Division.

June 30, 2003.

Harrison Law Offices, James T. Harrison, Woodstock, for Plaintiff-Appellant.

Schiff Hardin & Waite, Donald J. Freger, Ruth E. Krugly, Chicago, for the Village and Zitek.

Katz, Randall, Weinberg & Richmond, Kenneth C. Shepro, Chicago, for the Village Board and Noska, Bernard and Schimel.

Justice SMITH delivered the opinion of the court:

Plaintiff Joseph Sangirardi was discharged from his duties as a Stickney police officer by defendants Village of Stickney (Village), Village chief of police John Zitek (Chief Zitek), Village Board of Fire and Police Commissioners (the Board), and board commissioners Edwin Noska, James Bernard and Fred Schimel. Plaintiff filed an action for administrative review of the Board's decision. The circuit court of Cook County affirmed the Board, and plaintiff appealed.

On appeal, plaintiff contends that he was deprived of his due process rights, alleging that the Board was biased due to ex parte communications, violated the Open Meetings Act (5 ILCS 120/1 et seq. (West 1998)), and improperly subjected plaintiff to disciplinary action when he invoked the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1 et seq. (West 1998)) to prevent disclosure of his psychological evaluation results. Plaintiff also contends that the Board's findings of fact were against the manifest weight of the evidence. Moreover, plaintiff contends that the Board's finding that cause existed to discharge him was arbitrary, unreasonable and unrelated to the requirements of service. For the reasons that follow, we affirm.

BACKGROUND

Plaintiff was employed as a police officer for the Village from July 1988 until February 1999. In a letter to the Board dated June 15, 1998, Chief Zitek expressed concern that plaintiffs escalating misconduct was compromising the police department and asked the Board to consider appropriate professional counseling for plaintiff or disciplinary action. In the letter, Chief Zitek alleged that plaintiff was not understanding and considerate when handling juvenile situations; did not accept advice from superiors; displayed poor judgment in performing his duties; had difficulty in making a good impression when dealing with the public; and violated the conflict of interest and fairness and impartiality provisions of the code of ethics. The letter referred the Board to "[s]ee attachments and reference to various reports and documents."

On June 16, 1998, the Board convened, reviewed Chief Zitek's June 15 letter and sent Chief Zitek a letter recommending, inter alia, that plaintiff undergo a psychological evaluation and that disciplinary action be taken pending the results of the professional evaluation.

In June, July and August of 1998, Chief Zitek ordered plaintiff to undergo a psychological evaluation to determine his fitness for duty (fitness exam) as a result of incidents involving plaintiffs slamming of a police car door and actions pertaining to a juvenile. Although plaintiff reported for the scheduled fitness exams, the exams were not administered or completed because plaintiff would not sign certain forms or consent to release the results of the fitness exam to Chief Zitek. On September 3, 1998, Chief Zitek again ordered plaintiff to undergo the fitness exam rescheduled for September 15, 1998, and to release the results to Chief Zitek. Plaintiff submitted to that fitness exam, which was conducted by psychologist Harry E. Gunn.

On September 23, 1998, Chief Zitek wrote the Board a letter requesting review of plaintiffs action of assisting the North Riverside police department without prior authorization from his superiors. The letter also referred to "attachments" and "various reports and documents." The Board convened on September 25, 1998, and reviewed Chief Zitek's letter.

On Saturday, October 10, 1998, Chief Zitek issued an order noting that plaintiff had participated in the fitness exam, that Dr. Gunn had issued a report of the result of that exam, and that plaintiff refused to release that report. Chief Zitek ordered plaintiff to release that report within 48 hours.

On October 15, 1998, Chief Zitek filed with the Board formal disciplinary charges against plaintiff, alleging (1) that on October 12, 1998, plaintiff refused to obey Chief Zitek's order to release to Chief Zitek the results of plaintiffs fitness exam (hereinafter, the insubordination charge); (2) that in September 1998, plaintiff assisted the North Riverside police department without prior approval from his superiors and then demonstrated disrespect to a superior officer in a letter to the North Riverside police department; (3) that on June 18, 1998, plaintiff damaged a police car by closing the car door with excessive force and openly criticized Chief Zitek in the presence of another officer; and (4) that on two separate occasions in 1997, plaintiff handcuffed a juvenile and then made false statements regarding each incident. The Board issued a written order suspending plaintiff without pay and scheduled a hearing date for the charges.

The parties stipulated that plaintiff was not notified of the Board's meetings on June 16, September 25 and October 15, 1998; plaintiff was not present at those meetings; minutes were not taken of those meetings; and those meetings were not transcribed.

On October 23, 1998, the Board convened, appointed special counsel to the Board, and amended its October 15 order to reschedule the hearing and reinstate plaintiffs pay during his suspension. Prior to the hearing, plaintiff requested production of the documents attached to Chief Zitek's June 15 and September 23, 1998 letters; however, the attachments were not produced prior to the final administrative decision by the Board.

On October 26, 1998, Chief Zitek filed an additional charge, alleging that on March 17, 1998 (later amended to March 18, 1998), plaintiff verbally threatened a local businessman, later identified as Terry Cleary, with whom plaintiff was involved in litigation (hereinafter, the Cleary charge).

The Administrative Hearing

The administrative hearing commenced in November 1998 and was bifurcated to first address the validity of the charges and then, if necessary, to consider the appropriate disciplinary sanction. However, in December 1998, the Board dismissed on jurisdictional grounds the three charges pertaining to the incidents involving the North Riverside police department, the slammed car door, and the juvenile. The Board found that those three charges were barred because they had been the subject of prior communications from Chief Zitek to the Board and thus constituted a filing of charges without a hearing having been commenced within 30 days of those communications. Accordingly, the hearing proceeded only on two charges—the insubordination charge and the Cleary charge. Prior to the commencement of the evidentiary portion of the hearing, counsel to the Board advised and admonished the Board that it:

"may not and should not consider any materials, information, communications, documents or otherwise which were received by it from any source whatsoever outside of the formal hearing process, and this Board must conduct its hearing and [reach its] decision based solely on the evidence that is presented and the testimony that is presented during the hearing which [the Board has] now scheduled."

Plaintiff was represented by counsel, and over several hearing sessions the Board heard testimony from nine witnesses and received numerous exhibits from the parties.

Terry Cleary testified that he was the chief executive officer of Suburban Fence, Inc., and in July 1997 entered a contract to build a fence at plaintiffs home. Thereafter, Cleary filed a lawsuit to recover the balance due, and the trial court entered judgment for Cleary on March 17, 1998. Cleary testified that plaintiff was upset by the verdict, loudly called Cleary a thief, and was restrained by plaintiffs own lawyer. Plaintiff and his witness, Charles Daniels, a lumber salesman, essentially corroborated Cleary's testimony, although they characterized the conflict as verbal and nonthreatening. Cleary also testified that on the morning of March 18, 1998, he received a telephone call at his Cicero office at XXX-XXX-XXXX and immediately recognized plaintiffs voice. Cleary testified that plaintiff threatened to use Cleary's face to play curb racquetball and that Cleary could be hit in the head with his own two-by-fours or run over by a bus. Cleary reported the telephone call to the Cicero police department, which dispatched police officer Louis Sedlacek to the scene. Although Cleary told Officer Sedlacek the details concerning the threats, Cleary did not review Officer Sedlacek's report, which incorrectly indicated that Cleary's office telephone had "Caller ID." Moreover, Officer Sedlacek's report incorrectly listed XXX-XXX-XXXX, the telephone number of Cleary's Oak Park branch office, as the telephone number of Cleary's Cicero office.

Cicero police officer Sedlacek testified that although Cleary told him about the threat involving the bus, Officer Sedlacek failed to include that threat in his report. Officer Sedlacek testified confusingly and inconsistently concerning the notation in his report that the "Caller I'D [sic] displayed phone number of XXX-XXX-XXXX to which call came from" and concerning whether he authored the entire police report.

Plaintiffs wife Jackie Sangirardi testified that both she and plaintiff were asleep at...