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Hammers v. Board of Fire And Police Com'rs

MAY 14, 1956.

PAUL HAMMERS, PLAINTIFF-APPELLANT,

v.

BOARD OF FIRE AND POLICE COMMISSIONERS OF CITY OF MATTOON, ILLINOIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Coles county; the Hon. ROBERT F. COTTON, Judge, presiding. Judgment affirmed.

PRESIDING JUSTICE HIBBS DELIVERED THE OPINION OF THE COURT.

Rehearing denied June 11, 1956.

The plaintiff, appellant here, instituted this action in the Circuit Court of Coles county to reverse an administrative decision of the Board of Fire and Police Commissioners of the City of Mattoon entered July 21, 1954, which discharged the plaintiff as a policeman. The Circuit Court affirmed the action of the administrative board.

On or about February 1, 1952 Larkin Jones, then the Chief of Police of the City of Mattoon filed a letter with the Board of Fire and Police Commissioners of that city requesting that the Board discharge Paul Hammers, a policeman. The letter set up that on the night of January 29, 1952 the Chief arranged to put into effect on the following night a trap for a person who had assaulted one Nedra Ellsworth. Under the plan all police officers including the appellant, Paul Hammers were to take their places in specified spots in the vicinity of the 1400 block on Lafayette avenue in that city and were not to leave the scene until the Chief picked up Officer Heckwine, who was to be used as a decoy, and personally came by each car and notified the officers that they could leave their post of duty.

On the night of January 30, 1952, pursuant to such plan, all police cars and two sheriff's cars were assigned to certain places indicated by the schedule. The plaintiff, the appellant, and officer Baker were assigned to one car spotted at the corner of 15th street and Lafayette avenue. They stayed there while officer Heckwine made three or four trips by their car and then officer Hammers said: "I guess it is all over, let's go," and proceeded to leave the designated spot to where officers Plummer and Creek were stationed in their car. It was charged that the plaintiff told Plummer and Creek that it was over, "Let's go home," and they also left, thus leaving two gaps in the line.

It was further charged in the letter that plaintiff wilfully and without authority disobeyed the orders of the Chief of Police in not remaining at the spot assigned until relieved by personal orders, and through his wilful conduct endangered the life of officer Heckwine and so disrupted the plan to apprehend the person who had been causing the assaults that he escaped.

The Chief recommended that officer Hammers be relieved of his duties as a police officer in the City of Mattoon.

The Board of Fire and Police Commissioners held a hearing on the purported charges in February 1952 without filing written charges against Hammers, as required by the provisions of Chapter 24, Sec. 14-11 of Illinois Revised Statutes, 1951. At the conclusion of that hearing the plaintiff here was discharged by the Board. Later he filed a complaint with the Circuit Court to review the decision, which was affirmed. Thereafter Hammers appealed to this court where the cause was reversed for the reason that no written charges had been filed and the appellant nor anyone in his behalf had any knowledge of the contents of the letter or the particular charges against him. (Hammers v. Board of Fire & Police Com'rs, 1 Ill. App.2d 421.) In that case it is said: "If the letter written by Chief Larkin Jones to the chairman of the Board had been given to Hammers in reasonable time so that he would have had full knowledge of the offense charged against him and time to prepare any defense he may have had, then the provisions of the statute would have been satisfied. But this was not done. Instead, the officer was notified orally late in the evening of February 3, 1952, that he would have a hearing before the Board at 10:30 A.M. the following morning. This court does not believe that the statute has been complied with, either in letter or spirit."

Thereafter the Board of Fire and Police Commissioners ordered the plaintiff reinstated, and three days later, the Board filed the charges against the appellant. The first charge consisted of a recital of the letter of the former police chief, Larkin Jones. Then there was added six other charges. The additional charges, especially three to six, are not now of importance inasmuch as the Board's opinion and decision was based solely upon the charges contained in the letter of February 1, 1952 of the then Chief of Police, Larkin Jones. The appellant was served with a written copy of the charges against him and relieved of his position as a patrolman on the police force. The charges were set for hearing for June 4, 1954. The decision of the Fire and Police Commissioners Board was filed on the 21st day of July 1954 and found that the charges contained in the letter of Larkin Jones, former Chief of Police, had been sustained by the evidence. The Board found that on the 30th day of January 1952 the appellant wilfully and without authority disobeyed the orders of his superior officer in failing to remain at the post of duty assigned to him and in so doing endangered the life of officer John Heckwine and disrupted the plan of the Chief of Police to apprehend the person who had theretofore viciously assaulted a woman in the City of Mattoon, that he cursed his superior officer and was guilty of insubordination towards him. The order finally found that the appellant was not a fit and proper person to be a member of the police force of the City of Mattoon, and his discharge on the 5th day of February, 1952 was thereby made permanent.

It is contended by the appellant in this court, (1) that the Board of Fire and Police Commissioners could not legally prefer the charges and then sit as judges at the hearing thereof; (2) that due process of law applies to administrative proceedings as well as judicial proceedings; (3) that in the interpretation of the fire and police commissioners statute, Chap. 24, Article 4 and particularly Sec. 14-11, Illinois Revised Statutes, it must be liberally construed towards the fireman or policeman; (4) that the discharge of an officer under the provisions of the act must be for "cause"; and finally (5) the decision of the administrative board is against the manifest weight of the evidence.

A resume of the facts show that in January of 1952 a Miss Nedra Ellsworth was going home from the business district of the City of Mattoon between 9:30 and 10:00 P.M. when an unidentified man assaulted her and beat her with a brick or other object, as a result of which she was seriously injured. The attack occurred in the 1400 block of Lafayette avenue in that city. On January 29, 1952 a meeting to plan strategy was held at the police department. The appellant, Paul Hammers was present and there were other officers also present. A plan was adopted which required placing of several officers in private cars in the vicinity in which the attack had occurred. Officer Heckwine was to be "designed as a woman and serve as a decoy." The arrangement was set up so that the department would have approximately four men or more who could constantly watch and observe the decoy officer as he walked along the sidewalk in the danger area. Heckwine was to continue to walk the area, and it was on his fifth trip when he was assaulted. "After the trap" should have been sprung following the assault on Heckwine in his female attire, it was found that the plaintiff, who was an alerted officer participating in the plan, had left his post of duty. In the assault Heckwine sustained a blow on the side of the head which raised a knot about half the size of a hen's egg and the assailant escaped.

Among the officers who participated in the execution of the plan was the plaintiff, Paul Hammers and officers, Creek, Plummer and Baker, as well as others including the sheriff and his deputies. Hammers was a senior city patrolman. He and Baker were in Hammers' car on the evening of January 30, 1952 as a part of the execution of the plan to trap the assailant. They were located just south of Lafayette avenue on 15th street, a few feet west of where Miss Ellsworth had been attacked. They saw Heckwine walk past them. Baker saw him three times. The car radio was on and the windows were open. At about 9:30 P.M. or shortly thereafter Hammers told Baker it appeared that it was all over and he had to go home and dress in his uniform to go on duty at 11:00 P.M. Baker stated that he believed they should stay and further testified he understood the Chief would come by and advise them when to leave. Nevertheless they drove around the block to where officers Plummer and Creek were located at their post of duty and Hammers stated to them that he thought it was all over, in consequence of which Plummer and Creek left. After the plaintiff had left his assigned post of duty, Heckwine was assaulted about five or ten feet from the alley. Heckwine saw the attacker, drew his gun and fired two shots but the assailant escaped. A search of the area was made without success. The Chief of Police, Larkin Jones returned to headquarters and telephoned the plaintiff who shortly thereafter reported at the police station. The Chief of Police released Hammers from duty and told him to go home.

On February 1, 1952 the Chief submitted to the chairman of the Board of Fire and Police Commissioners a set of charges which constituted the charge upon which the plaintiff was tried in this proceeding.

The plaintiff admitted he attended the meeting on January 29, 1952 in the office of the Chief of Police concerning the setting of the trap for the night of January 30th following, but he said that the Chief did not give any directive in his presence concerning the time when the men were supposed to leave their post of duty. He further testified that Edward Horn, captain of the police force was present. Horn testified that he was present in the Chief's office on the 29th of January, and all men were notified either on the evening the decoy was to be put out or on the evening prior thereto as to where they were to be stationed. Their instructions were that they were to have the windows of their cars down and a signal, the blowing of a police whistle, would ...


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