APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding.
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the circuit court confirming a decision of the Civil Service Commission by which plaintiff was discharged from his position with the Chicago Fire Department.
The Commissioner of the Chicago Fire Department filed charges with the Civil Service Commission against plaintiff. After a hearing, plaintiff was found guilty of violating the following sections of the Rules and Regulations of the Fire Department: Section 383, "Entering Places Where Intoxicating Liquors Are Sold While On Duty, Except In The Immediate Pursuit Thereof"; Section 384, "Neglect of Duty"; section 390, "Absence From Duty Without Permission." The Commission thereupon ordered that plaintiff be discharged from his position as firefighter, 1st Class. This order was confirmed by the circuit court on administrative review.
Plaintiff contends that the evidence adduced at the hearing failed to prove the charges, that the rule against firemen on duty entering places where intoxicating beverages are sold was unreasonably applied in this case, and that the discharge from the service was harsh and unconscionable punishment even if the charges were proven. In view of plaintiff's contentions, we find it necessary to set out in detail the testimony taken at the hearing.
Ennis Rice, for the Department: He is the Division Marshal of the 4th Division of the Chicago Fire Department and is assigned to Headquarters. On May 7, 1967, plaintiff was working under his direction and was detailed to the International Amphitheatre. About 4:00 A.M. on May 8, he received a call from the Amphitheatre that a fireman was in trouble. When he arrived, he found plaintiff sitting on the floor. Plaintiff explained that his knee had been injured when he was attacked by some Mexicans in Donovan Hall, which is a partitioned area in the southern part of the Amphitheatre. A dance had been held by a Mexican group in Donovan Hall, and he [Rice] understood that alcoholic beverages were served there. Plaintiff said that he had gone to the washroom in Donovan Hall because the one near his apparatus stank; that he had also heard that sandwiches were being given away at the dance and he wanted to get one. Plaintiff claimed that he had gone into the men's room and three men had chased him when he came out. He said he had done nothing to provoke the attack and had not had anything to drink.
Marshal Rice had given orders to remove Flood Pressure Unit 11 (plaintiff's unit) from Donovan Hall because of the presence of a cocktail bar there, and had ordered that no firemen were to go into Donovan Hall. The order was given to plaintiff and he was told to relay it to the other men. A general regulation prohibiting on-duty firemen from entering places where liquor is sold was also in effect at that time.
The witness called an ambulance for plaintiff, then took another man, Kushner, to check and see if the toilets were properly marked, which they were. He checked the washroom plaintiff had said was dirty, and found nothing wrong with it. This washroom was close to plaintiff's apparatus.
Although the men are not expected to stay on their apparatus and may visit other rigs, they are expected to stay close to their equipment. The apparatus to which plaintiff was assigned was located in Exposition Hall. The washroom plaintiff had used was 300 feet south to Donovan Hall and an additional 250 feet beyond.
Arthur Lentz, for the Department: He is a Lieutenant in the Chicago Fire Department. He arrived at the Amphitheatre about midnight and found that plaintiff was missing from his assignment when he should have been at his apparatus. Engineer Kushner said plaintiff had taken a walk to the south end of the hall. He waited about 10 minutes and, when plaintiff did not return, he went to Donovan Hall looking for him. Intoxicating liquors were being sold in Donovan Hall that night. There were two or three thousand people at the dance. After searching for about one and a half hours, he found plaintiff talking to some people at the south end of Donovan Hall, about a block and a half from his equipment. He asked plaintiff what he was doing there, and plaintiff replied, "I am just looking around." He told plaintiff to return to his apparatus, and plaintiff said something to the effect of "this job is for squares." He told plaintiff to return to his apparatus or he would be suspended. Plaintiff said "Okay," and disappeared into the crowd. He tried to follow him but lost him, and spent 15 to 20 minutes looking for him unsuccessfully.
The witness went back to the apparatus about 1:30 A.M., and called the Division Marshal to tell him that he was going to suspend plaintiff, but the Marshal was not in. He remained at the apparatus, awake, until approximately 3:45 A.M., when he next saw plaintiff. Plaintiff was with Marshal Rice and was sitting on the floor in front of the apparatus, with a cut over his forehead, nose bleeding, and clothing torn. Plaintiff explained that he had been assaulted by four Mexicans upon leaving the washroom to which he had gone after returning to his apparatus. Plaintiff was then taken to the hospital.
Plaintiff knew of the order to remain on the apparatus. Men on such detail must stay within five to ten feet of their equipment. There was a washroom 30 to 40 feet from the apparatus which witness had used that night and it was not too dirty. He did not know where plaintiff was between 1:30 A.M. and 3:45 A.M. Plaintiff belonged at the rig where the witness was during that time. If there was a fire, the Company getting the alarm would blow the siren. He doubted that a siren could have been heard by someone in Donovan Hall that night, due to the general noise and the band.
Carlyle Jakovec, for the Department: He is a Fire Department Lieutenant assigned to Donovan Hall on May 7. About 3:30 A.M., after the dance broke up, they moved their equipment back to Donovan Hall. About 200 feet away, he saw plaintiff being escorted out of the women's washroom by three or four male Mexicans. He turned away, and then a fireman said, "look at him." Whereupon, he turned back, heard some women yelling something, and saw plaintiff running north about 50 to 60 feet away, with the men following close behind him. They caught plaintiff, and the witness yelled, "Stop." Plaintiff tore loose and continued north. He figured that plaintiff had gotten away, and decided not to "make an incident out of it." About ten minutes later, he was told by the police that plaintiff had been "beat up and hurt."
There was a general order not to go into Donovan Hall that night; however, he and his two men had been expressly assigned there by the Chief. There were three apparatuses at the Amphitheatre. He had seen plaintiff in Donovan Hall earlier that night about 8:00 or 8:30 P.M. He thought a siren could not be heard in Donovan Hall because of the three Mexican bands. His men normally used the washroom plaintiff used.
Jake Kushner, for the Department. He is a Fire Engineer who was assigned to the same apparatus as plaintiff on the night in question in Exhibition Hall. He arrived on duty ten minutes before midnight and saw plaintiff, who was sitting with the engineer on duty. Plaintiff told him he was going to take a walk. The Lieutenant came there and then left, saying he was going to look for plaintiff. The witness stayed on the apparatus and did not see plaintiff until ...