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Austin v. Bd. of Fire & Police Commrs.

SEPTEMBER 27, 1972.

ELBERT AUSTIN, PLAINTIFF-APPELLANT,

v.

THE CITY OF EAST MOLINE BOARD OF FIRE AND POLICE COMMISSIONERS ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Rock Island County; the Hon. CONWAY L. SPANTON, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment entered in the circuit court of Rock Island County which affirmed the findings of fact and the decision of the Board of Fire and Police Commissioners of the City of East Moline. The Board after an administrative hearing found the appellant, Elbert Austin, guilty of taking a 30-30 Winchester Illinois Sesquicentennial model rifle from the wall of an office building while he was on duty and making an investigation of what appeared to be a "break in." The Board ordered the appellant discharged from the police force of the city of East Moline. It is the appellant's theory on this appeal that the findings of the Board were against the manifest weight of the evidence and that the proceedings conducted by the Board were not fair and proper.

The alleged taking of the rifle occurred on April 16, 1971, at about 4:50 A.M. The appellant and a fellow officer, Gary Grafton, were on a routine patrol in their squad car when they noticed a broken window in a building owned by the H.C. Duke Company. The officers stopped to investigate and it was during this investigation that the rifle was allegedly taken by the appellant. Officer Grafton testified that he saw the rifle taken by the appellant, who stated, "I think I will take it home." He further testified that the appellant repeated this remark, then walked through the "shop area" of the building and placed the rifle behind a cart and that later when an Officer Thiron was no longer in the immediate vicinity the appellant carried the rifle from the building, entered the squad car and drove away in the general direction of his home located approximately one block or one and one-half blocks from the H.C. Duke Company building.

Officer Grafton also testified that on several occasions he attempted to prevail upon the appellant to return the rifle, but on one occasion was rebuffed when the appellant stated, "I can run it to Chicago and get a hundred bucks out of it." There was also testimony to the effect that following the investigation of the alleged theft Grafton told a fellow officer, Frank Hodshire, about the incident. The theft of the rifle was reported by Mr. Duke on the afternoon following the alleged theft and Grafton then reported the incident to the Chief of Police. The 30-30 Winchester commemorative rifle was never found.

On cross examination the witness Grafton acknowledged that he was a member of the National Rifle Association and that both he and his fellow officer Hodshire are owners of numerous guns. He denied that there had been personal strife based on racial differences between him and the appellant.

It is the contention of the appellant that the only direct evidence of the theft was the testimony of Grafton and that all other evidence considered by the Board was circumstantial. He further attempts to question the credibility of the testimony of Mr. Duke, who stated the rifle was present in his father's office on April 15, 1971, but was missing on the following day after the police investigation. The appellant argues that it is difficult to believe that Mr. Duke would keep a day to day mental log of the presence of a rifle hanging in someone else's office. By being the owner of numerous guns and a member of the National Rifle Association the appellant argues that the possession of the missing 30-30 commemorative Winchester rifle would be far more appealing to Grafton and by such argument attempts to infer that it was Grafton who in fact stole the weapon.

In a further effort to cast doubt upon Grafton's testimony the appellant attempted to show that racial bias existed in their relationship as fellow officers.

• 1-3 In regard to the appellant's claim that the findings of the board that he was guilty of theft of a rifle were against the manifest weight of the evidence, we must at the outset recognize that the Administrative Review Act states that "the findings and conclusions of the administrative agencies on questions of fact shall be held to be prima facie true and correct." (Chapter 110, Sec. 274, Illinois Revised Statutes.) In the instant case the appellant fails to cite any cases in support of his argument that the Board's findings were against the manifest weight of the evidence, but instead would have us interpret the evidence in a manner different from the interpretation it received by the Board. Further the appellant attempts to establish various motives which would tend to show that Officer Grafton rather than the appellant was guilty of the charge. We are well aware of the fact that the only direct testimony against the appellant and which was controverted was that given by Officer Grafton and that all other testimony was circumstantial. However, evidence clearly places the appellant at the scene of the alleged theft, established that the rifle was missing, further showed that an Officer Thiron was ordered from the office where the rifle was located, that the appellant entered the squad car alone and drove away in a general direction towards his home. All of this circumstantial evidence corroborates the direct testimony of the witness Grafton. On administrative review the court does not weigh the evidence and its function is limited to ascertaining if the findings and decisions of the administrative agency are against the manifest weight of the evidence.

In DeGrazio v. Civil Service Com. of the City of Chicago, 31 Ill.2d 482, 202 N.E.2d 522, our Supreme Court stated:

"On administrative review the court does not weigh the evidence and its function is limited to ascertaining if the findings and decision of the administrative agency are against the manifest weight of the evidence * * * it is the function of the court to decide if the charges preferred against the officer are not so trivial as to be unreasonable or arbitrary, if the Commission acted on evidence that fairly tended to sustain the charges, and if its decision is related to the requirements of the service. The court cannot substitute its judgment for that of the Commission. (Etscheid v. Police Board of the City of Chicago, 47 Ill. App.2d 124, 197 N.E.2d 484)."

The Board found the appellant guilty of taking a rifle during the course of an investigation. We fail to find anything in the record which would permit us to conclude such a finding was contrary to the manifest weight of the evidence. After Officer Grafton had informed the Chief of Police of the city of East Moline that the appellant had taken the rifle the chief then proceeded to conduct an investigation. In the process of this investigation polygraph or lie detector tests were given to the appellant, Officer Grafton and other individuals who were involved in the incident. The members of the Board of Fire and Police Commissioners prior to the hearing had knowledge of both the taking and the results of these tests. The Board, however, received no less than five admonitions to ignore the results of the lie detector tests. The first admonition was given prior to the hearing, the second at the commencement of the taking of testimony, and on two other occasions during the course of the hearing. Finally in written guidelines the members of the Board were told:

"Any evidence which is not in the record of this case cannot and should not be considered by you in arriving at your decision. Any evidence given to which an objection has been sustained or which has been ordered stricken from the record, should not be considered by you in arriving at a decision."

The appellant contends that reversible error was committed when a polygraph test was administered and that the members of the Board had knowledge of this fact plus the results of the test.

• 4 The statutes prohibiting a court from requiring or suggesting that the defendant in a criminal trial or the plaintiff or defendant in a civil trial submit to a "polygraphic detection deception test" apply neither in terms nor in principle to a proceedings before a Board of Fire and Police Commissioners. (Coursey v. Board of Fire and Police Commissioners of the Village of Skokie, 90 Ill. App.2d 31, 234 N.E.2d 339.) In Coursey, the court recognized that the effective and efficient operation of a police department requires that allegations of police misconduct be thoroughly investigated and ...


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