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Davern v. Civil Service Commission

SEPTEMBER 23, 1969.

WILLIAM E. DAVERN, JR.,

v.

CIVIL SERVICE COMMISSION OF THE CITY OF CHICAGO, AND ORLANDO W. WILSON, SUPERINTENDENT OF POLICE OF THE CITY OF CHICAGO, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. F. EMMETT MORRISSEY, Judge, presiding. Judgment affirmed.

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

The plaintiff, William E. Davern, Jr., an applicant for the position of patrolman in the Chicago Police Department, commenced this action by filing his complaint under the Administrative Review Act (Ill Rev Stats 1965, c 110, §§ 264-279 inclusive), seeking to reverse an order of the Civil Service Commission of the City of Chicago (hereinafter referred to as the Commission), which had disapproved his certification to the position of patrolman and had struck his name from the eligible list and Civil Service Register. After remanding the cause to the Commission for the taking of additional evidence pursuant to c 110, § 275(1) (g) and receiving a supplemental record in which the Commission affirmed its original decision of decertification, the trial court reversed the order of the Commission, holding it to be contrary to the manifest weight of the evidence, and ruled that the plaintiff was entitled to have his name immediately restored to the eligible list and register for the position of patrolman and was entitled to be certified and appointed to the position, to perform the duties thereof, and to receive the salary appropriated therefor, until removed as provided by law. The defendants appeal from this judgment and seek to reverse it.

The plaintiff passed an examination given by the Commission for the position of patrolman. On September 27, 1965, the Commission certified him for appointment to that position. Shortly thereafter, the plaintiff received a letter, dated October 19, 1965, from the Chief Examiner and Secretary of the Commission which directed him to appear before the Commission on October 27, 1965, "to show cause why your certification to the position of Patrolman should not be disapproved." The plaintiff appeared as directed. He was without counsel and no witnesses testified against him. At this time, no attorney represented the Police Department. The plaintiff merely answered the questions asked of him by the Commission. These proceedings were informal and brief.

The plaintiff explained to the Commission that he resigned from the Chicago Police Department on May 10, 1960, at a time when he was assigned to the Summerdale Police District and was a patrolman having detective duties. At the time of his resignation he had been a member of the police force for approximately five years. He and his brother, also a patrolman and assigned to the same shift at the Summerdale Station as the plaintiff, resigned from the Police Department on the same date in deference to the wishes of their father, a physician, who thought it best that his sons leave the force due to the constant adverse publicity regarding the Police Department which he was receiving from his patients. Both the plaintiff and his brother then entered private industry until the plaintiff took the patrolman examination, apparently in 1965, and was certified for the position in that year.

During the questioning of the plaintiff by members of the Commission, it became apparent that the Commission had been advised by the Chicago Police Department that it recommended that the Commission disapprove the plaintiff's certification. At this first hearing before the Commission, its members referred to a Police Department report concerning the plaintiff which was not shown to him at this time and which indicated, according to the conclusions of an unnamed lie detector examiner, that the plaintiff had lied when he answered "No" to the following questions put to him in 1960 during a polygraph examination given to him with his consent: "Did you ever receive any burglary proceeds since you were a policeman; did your detective partner at the Summerdale Police Station ever tell you that he actually knew Richard Morrison was working with policemen?"

The Commission also was advised by the Police Department that the plaintiff always denied being involved in any police wrongdoing and was never accused of any criminal offense as a result of the police investigation into the activities at the Summerdale Police District. At the conclusion of this informal hearing, the plaintiff was told that the Commission wished to take the matter under consideration and would advise him of its decision. Approximately a week later, the plaintiff was told by letter that, after investigation, the Commission had entered an order disapproving his certification to the position of patrolman and had struck his name from the eligible list and register. He did not receive a copy of this order; no reasons were given in the letter for this action of the Commission; and the investigation which it had conducted was not specified.

The plaintiff then filed his timely complaint in the Circuit Court of Cook County, pursuant to the Administrative Review Act, alleging the foregoing facts as well as stating that after receiving the letter of disapproval from the Commission, he had employed an attorney to ascertain the reasons for its action. He was informed that the Commission's files contained a letter which was signed by the Director of Personnel of the Chicago Police Department in his official capacity and was addressed to the President of the Commission. The complaint went on to allege that this letter contained information which formed the basis of the Commission's questions to the plaintiff concerning the alleged results of a lie detector test which he had taken. The letter concluded with the recommendation of the Police Department that the certification of the plaintiff be withdrawn.

Continuing, the complaint alleged that at the time of his resignation in May, 1960, the plaintiff was assigned to the Summerdale Police District and, along with numerous other police officers, was subjected to intensive investigation; that the plaintiff cooperated fully in said internal investigation, submitted to a polygraph test, and testified before the County Grand Jury on two occasions; that the plaintiff resigned because of unfavorable publicity reflecting upon all personnel attached to the District and their families; and that there was no authority under Rule II, section 6 (Disqualifications from Civil Service) of the Commission nor was any competent, relevant evidence introduced against him at the hearing before the Commission which warranted its disapproval of his certification. In conclusion, the complaint prayed that, upon review of the transcript of the evidence supporting the order, the court would reverse the Commission.

The Commission filed an answer to this complaint and a transcript of the proceedings conducted before it. In its answer, it admitted most of the allegations contained in the plaintiff's complaint. It did deny, however, that it had no authority under its Rule II, section 6, to disapprove the plaintiff's certification and stated that the manifest weight of the evidence supported its order. Pursuant to order of court, a second hearing was held before the Commission on November 2, 1966, for the taking of such additional evidence as the parties wished to present. At this more formal hearing, both the Police Department and the plaintiff were represented by counsel. One witness testified for each side; direct and cross-examination were conducted by the attorneys; and documents were admitted into evidence. A transcript of these proceedings is also included in the record before us. The Police Department did not pursue the original line of inquiry as to whether or not the plaintiff had lied while taking a lie detector examination in 1960, but rather now attempted to demonstrate, over objection of plaintiff's counsel, that the plaintiff carelessly, even deliberately, mishandled evidence, a Polaroid camera, in 1959 which aided Richard Morrison in that it halted any further criminal prosecution of him for the burglary of this camera.

The only witness for the Police Department was Marcus McGill, a sergeant in the Department, who testified that the plaintiff's name was mentioned as a result of the police investigation into the statements and allegations made by Richard Morrison. The plaintiff was a detective on April 14, 1959, the night that Morrison and Jerry Bossuyt were arrested in the Summerdale Police District. The arresting officers were Handley and Gilmartin. The detectives involved as investigating officers were the plaintiff, Kann, and Norcott. The following property was found in Morrison's car: a Polaroid camera; bottles of liquor; cigarettes; and approximately $475 in coins. The arresting officers and the detectives escorted Morrison, Bossuyt, and the seized property to the Summerdale Police Station where the evidence was inventoried. Through police channels, it was learned that the items matched a description of merchandise taken in the burglary of Carmen Sakol Motors, which was located in another Police District. Morrison and Bossuyt were then detained on a burglary warrant. Continuing, McGill stated that although the property seized should have been taken at the earliest possible time from the Summerdale Station to the Custodian's Office located in Central Police Headquarters, the merchandise remained at Summerdale for six days before it was sent to the proper place. In addition, the Polaroid camera was entered on Summerdale's Recovered Property Inventory Sheet without its serial number being listed. No detective placed his private marking on the camera either. Police records showed that at the end of May, 1959, the plaintiff removed the camera from the Custodian's Office and kept it out for five or six days.

A document was then admitted into evidence over the objection of the plaintiff. It was a written report dated February 16, 1960, and sent from the Custodian's Office, Lost and Stolen Property Section, to the Deputy Commissioner of Police for Staff Services. This official police report indicated that a patrolman assigned to the Custodian's Office, noticing that the Summerdale Police Station's Recovered Property Inventory Sheet did not contain a serial number for the Polaroid camera, also could not locate it when the camera was turned in by the Summerdale District. He sought help from another patrolman assigned to the Custodian's Office who found the serial number by lifting a metal flap on the front of the camera and noticing the serial number, P120-459, stamped on the inside of this flap. This number was then entered on the appropriate police documents. The records in the Custodian's Office showed that the camera was removed on four occasions. These documents indicated which officer removed the evidence and when it was returned but apparently not who returned it. Officer Handley removed the camera on April 21, 1959, and it was returned the same day. Detective Glenn Cherry removed it on May 6, 1959, and it was returned the next day. The plaintiff took it out on May 27, 1959. The camera was returned on June 2, 1959. Finally, Officer Handley again removed it on September 24, 1959, and it was returned the same day.

On cross-examination, McGill testified that the plaintiff removed the camera from the Custodian's Office on May 27, 1959, so that it could be used in the court proceedings of that day. The witness went on to say that it was not normal procedure for a policeman to retain any evidence for five or six days after he had checked it out for use in court as the plaintiff had apparently done in this case. In conclusion, McGill stated that one of the plaintiff's partners at the Summerdale District in 1959-60, Detective Kann, was still in the Police Department and had been promoted to sergeant.

The Police Department then introduced another document into evidence without objection from the plaintiff. This was a written statement taken from and signed by the plaintiff on March 22, 1960, in Central Police Headquarters and given to two investigating sergeants detailed from the Police Commissioner's Office. In his written statement, the plaintiff denied ever working with a burglar, knowing of any Chicago Police Officer who did work with one, receiving anything from a burglar to conceal a crime, knowing of Morrison's activities with police officers before January, 1960, or being told by his partner, Kann, that Kann knew Morrison was working with policemen.

The plaintiff also declared in his statement that sometime after May 7, 1959, he had a conversation with his two detective partners, Norcott and Kann, in Kann's hospital room. There the plaintiff told the other two men that on May 7, 1959, he had appeared at a preliminary hearing in the Cook County Criminal Courts Building concerning the burglary of Sakol Motors for which Morrison and Bossuyt had been arrested. Also present were Officer Handley, who was one of the arresting officers; William Sakol, who was the complaining witness; and Barsy, the attorney for Morrison. This lawyer contended that his client had a receipt for the Polaroid camera taken from his car by the police in April, 1959, which would show that this camera was Morrison's personal property and not that of Sakol Motors. Morrison produced a receipt from Imperial Jewelers which also contained a serial number. This number was compared with the number on the camera. They were identical. The prosecution's complaining witness, Sakol, then stated that he had no receipt or bill of sale for the camera which would contain its serial number, but if the court would open the back of the camera, it would find there a positive of a picture taken by ...


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