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Hayes v. Civil Service Commission

OPINION FILED OCTOBER 22, 1952

JOHN S. HAYES, APPELLEE,

v.

CIVIL SERVICE COMMISSION OF CITY OF CHICAGO ET AL., APPELLANTS.



Appeal by defendants from the Superior Court of Cook county; the Hon. JOHN A. SBARBARO, Judge, presiding. Heard in the third division of this court for the first district at the December term, 1951. Reversed and remanded with directions. Opinion filed October 22, 1952. Rehearing denied November 14, 1952. Released for publication November 17, 1952.

MR. PRESIDING JUSTICE LEWE DELIVERED THE OPINION OF THE COURT.

Rehearing denied November 14, 1952

Plaintiff instituted an action under the provisions of the Administrative Review Act to reverse and vacate an order of the Civil Service Commission finding that plaintiff, a patrolman of the City of Chicago, was guilty of misconduct, and directing his discharge.

Plaintiff was charged before the Commission with violating the following rules:

Rule 389, § 3 — Conduct unbecoming a police officer or employee of the Police Department.

Rule 389, § 11 — Disobedience of orders.

Rule 378 — Other business prohibited. A member of the Department shall devote his whole time and attention to his duties. He is expressly prohibited from following any other calling or occupation, or being engaged in any other business.

The specifications of the charges stated in substance that plaintiff was guilty of disobedience of orders and of operating and being engaged in a business other than his employment as a policeman, in that he owned and operated a tavern in the City of Chicago.

The material facts are substantially uncontroverted. Plaintiff and one Bratsos about December 8, 1948, executed a contract to purchase the tavern here involved from George Economon for the sum of $112,500 payable in ten years in monthly installments of $1,000 each out of the proceeds of the business. In the evening of September 27, 1950 plaintiff, while off duty, was seen by Captain Balswick, of the Chicago Police Department, serving as a bartender at the tavern. Shortly thereafter plaintiff sold his one-half interest in the tavern to Bratsos. During this period of about twenty-two months when plaintiff had an interest in the tavern he was assigned to the Traffic Bureau where he acted as a traffic policeman at a busy street intersection. There was no evidence tending to show that plaintiff neglected the duties of his assignment as a policeman while he was jointly interested in the tavern with Bratsos. Plaintiff's immediate superior officer testified that plaintiff had been commended for his work while on duty at the intersection. Bratsos stated that on occasions he requested plaintiff "to stay around and help out a little" at the tavern. Plaintiff testified that he spent little time at the tavern. He admitted that he was familiar with the provisions of Rule 378 but was of the opinion that since he had not taken an active part in the operation of the tavern except on a few occasions there was no violation of the rule.

The trial court found that the finding and decision of the Commission ordering the discharge of plaintiff was against the manifest weight of the evidence and that "the record does not show that the plaintiff was guilty of violating any rule of the Chicago Police Department and the finding of the Civil Service Commission of the City of Chicago is not supported by the evidence in the record."

As grounds for reversal defendants urge: (1) That plaintiff's joint ownership of an interest in the tavern and his occasional tending of bar and serving of customers (although while off duty) was a violation of a valid rule of the Police Department and constituted sufficient legal cause for discharge; and (2) that plaintiff's financial interest in the tavern, coupled with his activities, was a violation of the Dram Shop Act constituting conduct unbecoming an officer of the Police Department.

Plaintiff says that the Civil Service Commission did not find him guilty of disobedience to orders and that the conduct unbecoming a police officer, consisting of the alleged violation of Rule 378, was not supported by the evidence. Moreover, plaintiff argues that his financial interest in a legitimate business enterprise cannot be a cause for removal. In Joyce v. Board of Education of Chicago, 325 Ill. App. 543, this court defined cause for removal to mean "some substantial shortcoming which rendered continuance in his office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognized as a good cause for his no longer occupying the place."

In this State the law has always looked upon the business of selling alcoholic beverages with disfavor. In Great Atlantic & Pacific Tea Co. v. Mayor of Danville, 367 Ill. 310, at p. 317, our Supreme Court said:

"The regulation and restriction of the right to sell alcoholic beverages is referable to the police power which has resided in the States since the beginning of the present system of government. The policy of the State has long been to ...


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