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Schwarze v. Board of Fire & Police Com'rs

FEBRUARY 4, 1964.

RAYMOND B. SCHWARZE, PLAINTIFF-APPELLEE,

v.

BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF FRANKLIN PARK, COOK COUNTY, ILLINOIS, AND WILLIAM F. KOERBER, CHIEF OF POLICE OF THE VILLAGE OF FRANKLIN PARK, ILLINOIS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Order reversed and cause remanded with directions.

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

Rehearing denied February 19, 1964.

Defendants appeal from an order which on administrative review reversed the findings and order of discharge of the Board of Fire and Police Commissioners of the Village of Franklin Park. The proceedings before the Board were begun on May 10, 1962, by the filing of charges against Raymond B. Schwarze, a policeman, by William F. Koerber, Chief of Police of the Village. The charges, addressed to the Board, read:

"I have this day May 8, 1962, found it necessary to relieve Officer Ray Schwarze of his police duty at 8:00 P.M. for the following charges, and also with this report file official charges

Violation of Rule 45 and 46:

That on the 8th day of May 1962, at the approximate hour of 8:00 P.M. at Police Headquarters, situated at 9545 W. Belmont Ave., Franklin Park, Illinois, Officer Raymond B. Schwarze, Star #9 was, then and there, while on duty in uniform, and having his service revolver on his person, drunk and intoxicated, in violation of Rule 45 and Rule 46 of the Rules and Regulations of the Police Department of the Village of Franklin Park, State of Illinois.

Violation of Rule 6:

That on the 9th day of May 1962, at the approximate hour of 4:00 P.M. at Police Headquarters, situated at 9545 W. Belmont Ave., Franklin Park, Illinois, Officer Raymond B. Schwarze, Star #9 did then and there absent himself from duty without lawful authority in violation of Rule 6 of the Rules and Regulations of the Police Department of the Village of Franklin Park, State of Illinois."

A detailed report accompanied the charges.

The hearing before the Board was conducted on May 29, 1962, in the Municipal Building at Franklin Park. Present were the Chairman of the Board and the two Commissioners. Nicholas T. Kitsos, Village Attorney and Hermes C. Kitsos appeared as attorneys for the defendants and the Village and Norman E. Jacobson, for the plaintiff. Chief Koerber and Patrolman Schwarze were present.

Plaintiff was not prejudiced by the additional detailed report attached to the charges. The members of the Board knew that this report was not to be considered as evidence. Chief Koerber, Patrolman Schwarze, several police officers and two other persons testified about the facts which formed the basis for the charges.

The Board after considering the evidence returned written findings on June 20, 1962. These findings stated in part that "in violation of Rule 46 of the Rules and Regulations of the Franklin Park Police Department, he, Patrolman Raymond B. Schwarze, was on or about the 8th day of May, 1962, at the appropriate [approximate] hour of 8:00 p.m. at Franklin Park, Illinois, while on duty and in uniform and having his service revolver on his person, drunk and intoxicated. That concerning the charge of violating Rule 45, the testimony seems to indicate that Patrolman Raymond B. Schwarze was not in the same condition of intoxication when he came on duty at 4:00 p.m. on May 8, 1962, as he was later, at 8:00 p.m. of the same day. Consequently it seems reasonable to infer that he did drink intoxicating liquor between the hours of 4:00 p.m. and 8:00 p.m., on May 8, 1962. Therefore we find Patrolman Raymond B. Schwarze in violation of Rule 45 on said date of May 8, 1962."

Patrolman Schwarze was exonerated of violation of Rule 6, which regulated the manner in which absences from duty are to be reported. The Board concluded that the charges of being drunk on duty and of drinking on duty are amply supported by the evidence and plaintiff was discharged from his position as a patrolman.

The scope of review of the findings of administrative tribunals in the federal system is determined by 5 U.S.C. § 1009(e). The primary function of the courts with respect to review of administrative decisions is chiefly to insure compliance by the agency with applicable statutory and regulatory requirements and the courts will not review the wisdom of agency ...


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