Sheehan v. Board of Fire and Police Com'rs of City of Des Plaines
| Decision Date | 01 May 1987 |
| Docket Number | No. 86-2350,86-2350 |
| Citation | 158 Ill.App.3d 275,509 N.E.2d 467,108 Ill.Dec. 771 |
| Parties | , 108 Ill.Dec. 771 Timothy SHEEHAN, Plaintiff-Appellee, v. The BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF DES PLAINES, the City of Des Plaines Police Department, Leroy Alfano, A.C. Wilson, William Connolly, Herman Herzog, Thomas McGuire and Joseph Kozenczak, individually and as Chief of the City of DesPlaines Police Dept., Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Arthur C. Thorpe, Patrick A. Lucansky, Klein, Thorpe and Jenkins, Ltd., Chicago, Erwin W. Jentsch, Mount Prospect, for defendants-appellants.
John D. Moss, Parrillo, Weiss & Moss, Chicago, for plaintiff-appellee.
Defendants appeal from the order of the circuit court reversing the Board's order discharging plaintiff from his employment as a patrolman with the city police department. They contend that the court erred in reversing the Board's decision. We agree.
After an extensive evidentiary hearing, the Board found that on 12 separate occasions plaintiff falsely represented that he was working for two different employers at two different places during the same period of time and that on 10 of these occasions, plaintiff was on two payrolls for the same period of time and was being paid on the basis of those two payrolls. 1 The evidence in support of those findings is discussed below.
The Board determined that by this conduct, plaintiff committed the criminal offenses of theft and attempted theft, violated departmental rules requiring compliance with laws and regulations and forbidding unbecoming conduct, and, in one instance, disobeyed a general departmental order by leaving his assigned post without permission. The Board decided that plaintiff's activities constituted a substantial shortcoming which rendered his continuance in employment as a patrolman detrimental to the discipline and efficiency of the service and good cause for no longer being employed as a member of the police department. Accordingly, the Board ordered On administrative review, the circuit court reversed. The court found that the Board's decision was unconstitutional and illegal, that it violated due process and that it was against the manifest weight of the evidence. In our judgment, the record does not support these findings and although not all of the court's criticisms of the proceedings require individual comment, we shall address the principal ones.
[108 Ill.Dec. 775] plaintiff's employment terminated immediately.
A ten-count statement of charges was filed with the Board on January 25, 1985. On February 2 an amended statement of charges, adding five counts, was filed. On February 26, the date scheduled for the commencement of the evidentiary hearing, the chief of police moved to file a second amended statement of charges. The proposed amendment did not add any new charges but merely made minor changes in the charges already on file. 2 There was nothing improper in the Board's decision to permit the second amended statement of charges to be filed and plaintiff failed to demonstrate any prejudice because of the amendment. See Giampa v. Civil Service Commission (1980), 89 Ill.App.3d 606, 611, 44 Ill.Dec. 744, 411 N.E.2d 1110.
The circuit court's finding that plaintiff was forced to proceed with the evidentiary hearing only moments after receiving the amended charges is contradicted by the record. Plaintiff's attorney acknowledged that he had received notice of the proposed changes four days earlier and expressly declined the Board's offer of a continuance to prepare a defense to the second amended statement of charges because of the Board's decision to continue plaintiff's suspension without pay during the pendency of the hearing.
The court stated its belief that Thomas McGuire, counsel for the Board, improperly advised the Board that it had the legal authority to suspend plaintiff without pay for several successive 30-day periods while the administrative hearing was pending. 3 We note, however, that in McCoy v. Kamradt (1985), 136 Ill.App.3d 551, 91 Ill.Dec. 198, 483 N.E.2d 544, the court construed section 10-2.1-17 of the Illinois Municipal Code (Ill.Rev.Stat.1983, ch. 24, par. 10-2.1-17), to permit a board of fire and police commissioners to suspend an employee without pay for more than 30 days during the pendency of a hearing. That case is dispositive of plaintiff's argument that the Board lacked authority to suspend him without pay for more than 30 days prior to its final decision.
The circuit court found that the rules and regulations under which the Board operated (first adopted in 1935) were deficient because they did not specify the manner in which the administrative hearing would be conducted. We note, however, that one of them, Rule 39, requires all charges to be set forth in writing, detailing the nature and character of the offense, and gives the accused the right to defend himself. Although the rules are otherwise silent regarding the procedure to be followed at a disciplinary hearing, the failure to adopt any rules governing dismissal proceedings does not constitute cause for reversal, unless prejudice is demonstrated. (Westby v. Board of Fire and Police Commissioners (1977), 48 Ill.App.3d 388, 391-92, 6 Ill.Dec. 276, 362 N.E.2d 1098.) Plaintiff did not show how he was prejudiced by On February 2, 1985, more than three weeks before the evidentiary hearing began, the Board, acting through its counsel, advised plaintiff's attorney that the hearing would be conducted in accordance with section 10-2.1-17 of the Illinois Municipal Code (Ill.Rev.Stat.1985, ch. 24, par. 10-2.1-17), and the cases interpreting that provision. On February 13 he acknowledged receipt of the Board's rules and regulations and on February 26 he protested that those rules failed to specify the manner in which the administrative hearing would be conducted. Prior to that date, he had served the Board with a motion asking that it inform him "of the procedural and evidentiary rules to be followed during the course of the hearing."
[108 Ill.Dec. 776] the Board's failure to adopt more comprehensive rules.
In a letter dated February 22, 1985, and sent to counsel for both parties, the Board's attorney reiterated what he had said on February 2 and explained in greater detail the procedural and evidentiary rules that would be followed. Although plaintiff's attorney denied that he had received this letter, when the contents thereof were explained to him on February 26 he voiced no dissatisfaction with the guidelines McGuire had prepared for the hearing.
In our judgment, plaintiff was not prejudiced by the Board's failure to adopt comprehensive rules governing the dismissal proceedings. He received the fair and impartial hearing to which he was entitled.
As we have noted previously, attorney Thomas McGuire acted as counsel for the Board. At the outset of the hearing, the chairman announced that McGuire would respond to all objections and motions, unless the Board decided otherwise. 4 The Board at all times retained control over the proceedings and was free to accept or reject McGuire's rulings as it saw fit, as McGuire often acknowledged during the proceedings. The circuit court took exception to this procedure, but we are aware of no authority forbidding it, at least where the attorney acts in a fair and neutral manner. (See Ladenheim v. Union County Hospital District (1979), 76 Ill.App.3d 90, 31 Ill.Dec. 568, 394 N.E.2d 770; Austin v. Board of Fire and Police Commissioners (1972), 7 Ill.App.3d 537, 544, 288 N.E.2d 113.) Although the court indicated its belief that McGuire was prejudiced against plaintiff, the record does not appear to support this conclusion.
The Board, on McGuire's advice, granted plaintiff's motion for discovery, his motion to bar the taking of photographs in the hearing room, his motion to exclude witnesses, his motion requesting permission to take the sergeant's examination and his motion to prevent police officers from wearing their sidearms while they testified.
McGuire cooperated with plaintiff's attorney in providing subpoenas; urged reciprocal discovery of names and addresses of all potential witnesses; insisted on compliance with the discovery orders (at one point temporarily barring the testimony of a witness whose name had been misspelled in an answer to discovery) and with the order excluding witnesses; and, on one occasion, ordered the hearing to be continued so that plaintiff's attorney would have an opportunity to receive and review all documentary evidence the chief of police intended to offer.
McGuire allowed plaintiff to present evidence of alleged bias. He sustained numerous objections made by his attorney and overruled others made by the attorney for the chief of police but he did not personally participate in the examination of any witnesses, except when he was expressly directed to do so by the Board, 5 and he did not act as prosecutor. Finally, it must be noted that McGuire did not make any recommendations to the Board regarding disposition of the charges brought We have reviewed the entire record of the proceedings and are satisfied that Thomas McGuire conducted himself in a fair and impartial manner as counsel for the Board.
[108 Ill.Dec. 777] against plaintiff or whether plaintiff should be suspended without pay during the pendency of the hearing.
In his motion for discovery, plaintiff requested production of all written reports of witnesses. Although the attorney for the chief of police represented,...
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