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Mccaffery v. Civil Service Board

SEPTEMBER 20, 1955.

HARVEY MCCAFFERY, APPELLEE,

v.

CIVIL SERVICE BOARD OF CHICAGO PARK DISTRICT, WILLIAM L. MCFETRIDGE ET AL., MEMBERS OF CIVIL SERVICE BOARD OF CHICAGO PARK DISTRICT; GEORGE A. OTLEWIS, CHIEF OF POLICE OF CHICAGO PARK DISTRICT; AND GEORGE T. DONOGHUE, GENERAL SUPERINTENDENT OF CHICAGO PARK DISTRICT, APPELLANTS.



Appeal from the Circuit Court of Cook county; the Hon. HARRY M. FISHER, Judge, presiding. Judgment reversed.

PER CURIAM.

Rehearing denied October 25, 1955.

This action was brought under the Administrative Review Act to review an order of the Civil Service Board of the Chicago Park District. The Board had ordered the plaintiff discharged from the position of patrolman in the classified service of the Chicago Park District. On the first hearing the trial court remanded the cause to the Civil Service Board with instructions to strike from the record all hearsay evidence which it received on the original hearing, and for the taking of such additional evidence as the parties desired to present with respect to the charges, and at the closing of the proof to make its findings and decision in conformity with law. A further hearing was held by the Civil Service Board. The hearsay evidence was stricken from the record, after which the Board by its findings and decision again ordered the plaintiff discharged. The trial court reversed the findings and decision of the Civil Service Board and this appeal is taken from such judgment.

The theory upon which the defendants rely on this appeal is that the trial court erred when it entered its judgment reversing the Civil Service Board and found that the charges filed against the plaintiff were not proved by clear and convincing evidence and that the Board's findings and decision were against the manifest weight of the evidence.

From the testimony in the record taken before the Civil Service Board of the Chicago Park District in support of the charges filed against the plaintiff, it appears that on October 18, 1953 two police officers, Ytsen and Mikol, of the Chicago Park District, operating in a squad car at about 1:00 a.m., noticed an automobile which had Louisiana license plates and was weaving. The police officers stopped the car and took into custody the driver and another man with him. On a search of the car a loaded revolver was found under the seat. The revolver belonged to one of the men in the car. It had been in his pocket, and on the approach of the police he placed it on the seat. The other man thrust it under the seat where it was found by the police officers. Additional ammunition for the gun was found on one of the men and a knife on the other.

Ytsen and Mikol called the station and two other officers came with a squad car and assisted them in taking the prisoners, and the car in which they were riding, to the Garfield Park police station. When they arrived at the station the plaintiff was present. The plaintiff at that time was a patrolman working in citizen's dress. The two prisoners were placed in separate rooms. One of the arresting patrolmen made out the reports on the gun, the gun card and the gun slip, and the other made out the arrest slips. When the prisoners were taken to the station, Sergeant Hoffman, who was in charge of the station, was informed of the presence of the prisoners and that they had had a gun with them. The arrest slips, the gun card and the gun slip were left on a desk in the station by the arresting officers. One of the arresting officers placed the gun in his locker and the next day gave it to Sergeant Hoffman. As the arresting officers were about to leave the station the plaintiff told them that he would talk to the prisoners. The officers left the station at about 2:05 or 2:10 a.m.

The plaintiff questioned Taylor, one of the prisoners, about the possibility of having someone make a bond for them, and ascertained that Taylor was living with a man named Turner, to whom the plaintiff then telephoned. Turner then came to the station, and the plaintiff said that a $500 bond would be necessary. Subsequently he reduced the amount to $300. Taylor had a grandfather who lived in Monroe, Louisiana. Turner told the plaintiff that he would call the grandfather if it would be agreeable to the plaintiff. The latter assented and told Turner that there was a telephone in the hall which he could use. Turner called the grandfather, which call was verified by a record of the telephone company received in evidence. Turner got $27 from Taylor and $33 from Lewis, the other prisoner. This money was given by Turner to the plaintiff, and the plaintiff told Turner that if he would bring $300 which was to be sent by Taylor's grandfather from Louisiana that he, the plaintiff, would tear up the papers and release the prisoners and there would be no court hearing. He told them not to bring the $300 until after 12:30 the next night. The prisoners then left the police station at about 3:30 or 4:00 that morning without being booked or any bond having been made.

After arresting another prisoner, officers Ytsen and Mikol again returned to the station about 3:30 or 3:40, and they saw the plaintiff at the station at about 4:00 or 4:05, at which time the plaintiff gave Officer Ytsen $24 from the $60 which the plaintiff had received from Turner, $12 of which Ytsen gave to Mikol, and the plaintiff told Mikol that there was to be $300 more coming the following night.

Later that day, about noon, Taylor talked to a captain of the Maywood police about what had happened. Captain Fleming of the park police was then contacted. In the meantime Taylor had received $300 via Western Union from his grandfather in Monroe, Louisiana. Captain Fleming marked the bills. The chief of the park police, Captain Fleming and Captain Begner went with the two prisoners to the police station about midnight. On the books at the station the plaintiff was shown to have reported as sick at about 10:30 p.m. He was ordered to come to the station. Both prisoners identified him. Ytsen and Mikol were called and they identified the prisoners as the ones whom they had arrested the previous night. The plaintiff denied that he had ever seen the two prisoners before and said he did not remember whether or not he had interrogated any colored boys the night before. He said he was in and out of the station the previous evening but he could not remember the time, nor could he remember whether he had seen the two patrolmen at the station. The plaintiff had an almost complete lapse of memory as to any of the things which he had done that night. He made a written report that he had performed routine duties and that nothing unusual had happened.

The plaintiff in his own behalf testified that on the night in question his hours of duty were 1:00 to 9:00 a.m. He arrived at the station at 12:45 and reported to Sergeant Hoffman, who told the plaintiff that his partner was sick and that he (the plaintiff) should pick up his assigned squad car at the garage where it was being greased, start his tour of duty and come back in a couple of hours and pick up Officer Collins who would work with him. The plaintiff, after five or ten minutes, left the station, drove to the garage, picked up his squad car, had it refueled, and went to a restaurant at Jackson and Canal streets for a cup of coffee. When he came out he heard a call that city police had prisoners trapped in a building at Walnut and Homan streets, to which place he then went. He gave help to the police and talked to park police Officer DeFily. Patrol Sergeant Flynn, the supervisory officer of the plaintiff, was also at the scene. Plaintiff then went back to the station, where he arrived about 3:00. He then left the station at 3:00 or 3:05 with Officer Collins, and in the first hearing testified he did not return to the station until 9:00 that morning. His memory refreshed upon being shown a radiogram message for him to go to the station at 6:55 and a record showing that he had complied with the request, he testified that he did return to the station at about that time. He denied that he had seen either the arresting patrolmen or the prisoners, and stated that he was not in the station at 2:15, 2:20 or 2:25, at the time officers Ytsen and Mikol testified that he was. He denied that he talked to the prisoners, that he negotiated with them for their release, and that he took any money from them.

The garage which serviced the park police cars and which was located approximately two or three and one-half blocks from the police station issued a gasoline ticket, signed by plaintiff, which was stamped 1:33 a.m. on the morning of October 18th, and the attendant at the gas station testified that that was the time he punched the ticket before filling the tank of the plaintiff's car.

Desk Sergeant Hoffman, who was one of the respondents at the original hearing, testified that he did not see the plaintiff the night in question from the time plaintiff went to get his car until the time the latter came in and picked up Officer Collins, nor did he see him subsequently that morning before the time he checked out at 7:00 or 8:00. Sergeant Hoffman did not remember seeing the arresting patrolmen in the station with the prisoners, nor did he remember seeing Turner. He testified that the plaintiff was not at the station at 1:30 or 1:40 a.m., and that after he saw the plaintiff at the station between 2:30 and 3:00 he did not remember seeing him leave the station, but stated he did not see him in the station from that time till about 8:00 a.m.

Officer Collins testified that the plaintiff had reported at the station between 12:45 and 1:00 a.m. and had left the station shortly after. He again saw him about 3:15 and again shortly after 3:45 a.m. when the plaintiff came in and they went out together in a squad car, and neither returned to the station until 9:00 in the morning. He did not remember returning to the station as the radiogram directed and records showed they did. Neither did he remember seeing the prisoners around the station.

Park police Officer DeFily testified that he saw the plaintiff about 2:25 or 2:30 on the morning of October 18th in the vicinity of Walnut and Homan streets, where they were making an investigation of a burglary. Sergeant Flynn, the supervisory sergeant at Garfield Park station, testified that he was present at the ...


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