Wagner v. Kramer
| Decision Date | 13 June 1984 |
| Docket Number | No. 2-83-0621,2-83-0621 |
| Citation | 465 N.E.2d 547,125 Ill.App.3d 12,80 Ill.Dec. 435 |
| Parties | , 80 Ill.Dec. 435 David E. WAGNER, Jr., Plaintiff-Appellant, v. George KRAMER, Sheriff of Kane County, Illinois, and Sheriff's Merit Commission, Roy E. Flora, James A. Ahlgren, and Vincent W. Koehler, Defendants- Appellees. |
| Court | United States Appellate Court of Illinois |
Stanley H. Jakala, Daniel P. Jakala, Berwyn, for plaintiff-appellant.
Robert J. Morrow, State's Atty., David R. Akemann, Wm. F. Barrett, Geneva, for defendants-appellees.
Plaintiff, Sergeant David E. Wagner, Jr., a deputy sheriff of the Kane County Sheriff's Department appeals the dismissal of his complaint for administrative review by the circuit court of Kane County. The court ruled that no extraordinary circumstances existed to authorize its review of a five-day disciplinary suspension. Plaintiff on appeal contends that the facts of his case constituted extraordinary circumstances authorizing judicial review. Defendants maintain that certain precautionary measures taken by the sheriff's department before giving plaintiff a direct order were established by the evidence and that the order was reasonable.
Plaintiff was suspended for a period of five days for violations of departmental standard operating procedures, regulation 6-3, sections 7-2 and 7-35:
7-2 Disobedience of Orders, "Failure to obey and fully execute any lawful orders, written or oral, given by a superior officer * * * "
7-35 Insubordination, " * * * Any failure or deliberate refusal to obey a lawful order given by a superior * * *."
On Tuesday, May 4, 1982, a writ for detention and quarantine was forwarded to the sheriff's office from the State's Attorney's office requiring transportation of an individual infected with tuberculosis from her Aurora home to the Aurora Mercy Center Hospital. The written order was shown to both duty sergeants, one of whom was plaintiff. Both men expressed some concern about ordering their men to handle this type of call.
Included in the Rule and Order of Quarantine and Isolation was the following language:
"[The patient] * * * is infected with Tuberculosis in a communicable state, and WHEREAS Tuberculosis in a communicable state is dangerous to the health of the public, as well as the individual, and, as a matter of protection of the public health, such communicable cases of Tuberculosis ought to be quarantined and confined. * * * "
No further action was taken on May 5 relative to the transportation of the patient or the actions of plaintiff since it was determined that the patient was unavailable that day in any event. On May 6 the sheriff's office received a call that the patient was at her home and was to be transported to the hospital. Plaintiff was then contacted by his superior officer, Lieutenant Grimes, and directed to follow, in his police vehicle, another officer and vehicle that were transporting the patient. He was to act as "back-up". He was advised that he would not have to leave his car unless there was trouble.
Plaintiff refused to obey the order. He was then told to go home.
On May 7 a disciplinary hearing was held by the sheriff's board of inquiry at which the charges were detailed for plaintiff and the basis for the charges was explained to him. Plaintiff explained that he felt the order in question was unjustifiable in that he was never trained to transport individuals with communicable diseases, "especially diseases for which there is no known cure or method of prevention available to assure him that he would not contact [sic] the disease." He further explained that he believed he was being asked to put himself, as well as his family and fellow officers, in a dangerous situation and that other alternatives should have been considered, especially since it was not an extreme emergency situation. He considered this type of order as calling for more than was required by his job description and that it was not an "ordinary police duty." Under these circumstances he believed that he was not in violation of a legal order.
During the hearing it was disclosed that plaintiff's superior officer had talked to the registered nurse who accompanied the patient during the transportation of the patient to the tuberculosis facility. The superior officer said he was advised by the nurse that the disease was not as communicable as had been publicized. He further stated that the nurse at the TB clinic did inform him that the disease was communicable by means of saliva but that infected persons on medication are not contagious. In the present case, however, the individual was being returned to the clinic because she was found not to be taking her medication. The superior officer also added that he had considered the possibility of transportation via ambulance, but the cost would have been charged to the department and if the individual refused to cooperate with the ambulance personnel, the department would still have been responsible for execution of the court order.
The record fails to disclose that prior to refusing the order of Lieutenant Grimes, plaintiff was advised of the information provided Grimes by the registered nurse. Further, it does not appear in the record that the plaintiff was told of a letter written by the medical director of the Kane County Tuberculosis Clinic to the sheriff three weeks earlier dated April 14, 1982. Thus, plaintiff was not told by his superiors of Dr. Richard C. Bodie's statement that:
Dr. Bodie also stated:
"[o]ur experience in the past has been that considerable fear has been engendered among a large number of people needlessly when an active case of pulmonary Tuberculosis has been part of their environment * * * "
and that he hoped his explanation would be of help to the sheriff's personnel in understanding the modern day concept of tuberculosis.
The testimony at the hearing further disclosed that when Undersheriff Perez was consulted by Lieutenant Grimes regarding plaintiff's refusal, he stated that he understood plaintiff's reasons but if given a direct order by a superior officer, an officer must comply or suffer the consequences. Whether his excuses were valid or invalid, "an order is an order." Perez indicated that had an ambulance been summoned to transport the patient it is to be assumed that a "back-up" would still have been necessary.
Lieutenant Grimes related that upon arrival at the hospital no extraordinary services were provided for the patient even though she was being admitted for a communicable disease. No special precautions were taken by persons in close proximity to the patient, such as masks or gowns. The patient was taken to her room in an elevator in which were riding several other persons. The hospital had been aware of the patient's pending arrival and admission.
The hearing before the Sheriff's Board of Inquiry concluded with the imposition of the five-day suspension by the sheriff.
On May 12, 1982, plaintiff telephoned the Sheriff's Merit Commission of Kane County and requested a hearing on the suspension. The request was denied. Upon appeal to the trial court for administrative review, the case was remanded with the requirement that the plaintiff file a written request for a hearing with the commission and obtain a written answer. On November 9, 1982, the written request for review was also denied. The commission indicated that by law there was no right to a merit commission hearing to review a suspension of five days or less. It also stated however, that it had requested the sheriff to provide other relevant documents which were then examined. The conclusion reached by the merit commission was that there was no extraordinary circumstances present which would warrant an exception to the general rule.
On December 13, 1982, the plaintiff again filed a complaint for administrative review of the merit commission's denial of review of the sheriff's imposition of a five-day suspension. It appears however that the court interpreted the complaint for administrative review as a complaint for judicial review of the sheriff's order as its final order of June 9, 1983 provides "that there being no extraordinary circumstances present giving the Court judicial authority to review the Sheriff's Department order in question, the Motion to Dismiss is granted." Plaintiff's notice of appeal filed June 6, 1983, asks for review of the trial court's order and the issues addressed by the parties on appeal relate to the review of the sheriff's order of the five-day disciplinary suspension.
Plaintiff contends his due process right to review of his five-day disciplinary suspension was denied when his complaint for administrative review was dismissed by the circuit court. He argues that the facts in his case constitute extraordinary circumstances warranting judicial review under this court's opinion in Buege v. Lee (1978), 56 Ill.App.3d 793, 14 Ill.Dec. 416, 372 N.E.2d 427. He concludes that if he were infected by tuberculosis he could be discharged (People ex rel. Ballinger v. O'Connor (1957), 13 Ill.App.2d 317, 142 N.E.2d 144). He also argues that he had an obligation to prevent...
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Taylor v. Police Bd. of the City of Chicago
...so as to constitute perjury. It is the Department's burden to establish that Taylor committed perjury. Wagner v. Kramer, 125 Ill.App.3d 12, 17, 80 Ill.Dec. 435, 465 N.E.2d 547 (1984) (“the department has the duty to go into a hearing and prove its case” (internal quotation marks omitted)). ......
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Kneip v. Board of Fire and Police Com'rs of City of Wood Dale
...will not be reversed unless it is arbitrary, unreasonable or unrelated to the requirements of service. (Wagner v. Kramer (1984), 125 Ill.App.3d 12, 22, 80 Ill.Dec. 435, 465 N.E.2d 547, aff'd (1985), 108 Ill.2d 413, 92 Ill.Dec. 218, 484 N.E.2d 1073; Lakin v. Gorris (1983), 113 Ill.App.3d 103......
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Hershinow v. Bonamarte, 84-2918
...hierarchy. More was not required. Plaintiff argues that the Illinois Appellate Court's decision in Wagner v. Kramer, 125 Ill.App.3d 12, 80 Ill.Dec. 435, 465 N.E.2d 547 (2d Dist.1984), establishes that he was entitled to a hearing before the Civil Service Commission of Highland Park, so that......
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