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Smith v. O'keefe

FEBRUARY 2, 1973.

ALBERT SMITH, PLAINTIFF-APPELLANT,

v.

PAT O'KEEFE ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Franklin County; the Hon. RANDALL S. QUINDRY, Judge, presiding.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 9, 1973.

Plaintiff appeals from a judgment of the Circuit Court of Franklin County which confirmed a decision of the Board of Fire and Police Commissioners of the City of Benton discharging the appellant, Albert Smith, as a Benton fireman.

Appellant, who had been employed as a fireman by the City of Benton for four years, was discharged by the Benton Board of Fire and Police Commissioners after a hearing on various charges of misconduct. He then filed a suit in the Circuit Court of Franklin County under the Illinois Administrative Review Act, seeking to set aside the order of the Board. The Circuit Court confirmed the Board's order of discharge and the plaintiff appeals.

• 1 In our view, the principal point in this appeal is whether or not the findings of the Board were against the manifest weight of the evidence. The duty of the reviewing court on appeal from a circuit court order confirming the decision of an administrative body, is to examine the entire record to determine whether the findings of such a body on questions of fact are contrary to the manifest weight of the evidence. (Dorfman v. Gerber, 29 Ill.2d 191.) And, when the administrative order is contrary to the manifest weight of the evidence, it is the duty of the reviewing court to set it aside. Russell v. License Appeal Com. of the City of Chicago, 133 Ill. App.2d 594, 273 N.E.2d 650.

The pertinent section of the Cities and Villages Act (Ill. Rev. Stat., 1969, ch. 24, par. 10-2.1-17), provides:

"Removal or discharge — Investigation of charges — Retirement.) Except as hereinafter provided, no officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time. In case an officer or member is found guilty, the board may discharge him, or may suspend him not exceeding 30 days without pay."

A complaint was filed by the fire chief, Pat O'Keefe, and the assistant fire chief, Claude Grimes, making certain allegations against appellant and requesting the Board to discharge him from his duties as a fireman. In its decision the Board found that appellant had conducted himself in a manner not befitting a member of the fire department by (1) leaving the fire department headquarters while on active duty and without permission on February 26, 1969, and May 4, 1969; (2) by leaving the scene of a fire without permission from his superior on October 10, 1969, and December 24, 1968; and (3) by calling Assistant Chief Grimes a vile and degrading name while on duty and in the presence of other firemen. The Board found that the charges with reference to the failure to respond to fire calls while not on duty had not been proven.

The Board further stated in its order that the rules and regulations established by the fire department itself had not been in each instance specified with all desirable particularity and that, from time to time, the chief or officer in charge had given permission for absences from the fire station when an emergency could have made such absences undesirable and that the rules had not been applied with complete consistency. The Board further stated that "the Commission finds that any regular fireman must have known by information and observation during the period of probation that individual firemen attending fires are obliged to remain at the scene of the fire until dismissed by the person in charge and not for each fireman to exercise his individual discretion." The Board further stated that sound public opinion would recognize these failures and omissions as good cause for his no longer occupying the position of fireman. The Board also pointed out that they were not condoning all of the conduct about which evidence was introduced on the part of officers and regular firemen of the department, but they could not discuss such here because no charges were filed against other persons.

The incidents which the Board found to constitute good cause for the dismissal of the appellant will be reviewed in chronological order.

The first incident occurred on December 24, 1968 during a fire at the Isaac residence. The charge was leaving the scene of a fire without the permission of his immediate superior.

One of the complaining witnesses, O'Keefe, testified that, after having complaints from two other firemen (presumably John Smith and James Manion) as to why the appellant was always the first to leave fires, he went around to the front of the Isaac house and found neither Albert Smith nor the fire truck. However, he did not testify that the fire was not over when he found that the appellant was gone. He also admitted never having asked the appellant whether he left the scene of the fire or not, and admitted that he did not see him leave. Both John Smith and Manion testified that the appellant was only at the fire ten minutes and then left. They also testified that the fire lasted from an hour to an hour and a half. When called during rebuttal testimony, John Smith stated that shortly after they got to the fire the decision was made not to use the truck which the appellant had driven to the fire, but to save it in case they had another fire. Therefore, the truck which was driven by the appellant should have been returned to the fire house immediately. Thus, his testimony appears to be somewhat inconsistent. The only witness substantiating the claimant's case against the appellant is James Manion. Appellant attempted to show bias and prejudice on the part of Manion, but was not allowed to do so.

Appellant denied that he left the scene of the fire without permission and further testified that he was there until the fire was out and heard O'Keefe say to roll up the hoses and go in. His story was substantiated in its entirety by Charles Webster, a volunteer fireman, who stated that the appellant was still there when O'Keefe said, "Let's roll up the hoses and go in." Webster testified that he was back at the firehouse three to five minutes before the defendant was. Four other impartial, independent and disinterested witnesses (Birdie Smith, Cockrum, Craig and Canada) testified that they saw the appellant fighting the fire and saw him go inside the house, pulling the hose to fight the fire. Birdie Smith and Dorothy Cockrum testified that the appellant was still standing around with the other firemen after the fire was out and smoldering. The appellant testified that he was at the fire for an hour. Craig corroborated the appellant's testimony when he referred to a plastic face shield that had broken in the fire and that he had handed it to the appellant after the fire was over.

Richard Canada, a deputy sheriff, was at the fire at least a half-hour and saw the appellant pulling hoses and going inside the house. He testified that the ...


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