APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
This is a suit filed under the Administrative Review Act. (Ill. Rev. Stat. 1969, ch. 110, par. 274.) Plaintiff, Oliver B. Christenson, was charged with misconduct and ordered removed from his position as Chief *fn1 of the Police Department of the Village of Oak Forest, by a decision of the Board of Fire and Police Commissioners of the Village, pursuant to Section 10-2.1-17 of the Municipal Code. (Ill. Rev. Stat. 1969, ch. 24, par. 10-2.1-17.) Judgment was entered in the Circuit Court affirming the dismissal by the Board and plaintiff appeals.
The record reveals that on March 4, 1969, there were charges filed against the plaintiff with the Board of Fire and Police Commissioners. On March 14, 1969, plaintiff was served with a notice of suspension without pay for a period of 30 days commencing on March 4, 1969, pending formal hearing on April 3, 1969. On that date plaintiff appeared before the defendant Board and demanded an immediate hearing on the charges. The hearing was continued, over plaintiff's objections, until May 1. On April 8, 1969, plaintiff demanded reinstatement with pay as of April 3, 1969.
On April 10, 1969, the defendant served plaintiff with a notice of suspension without pay for a period of 30 days effective April 5, 1969. Plaintiff again appeared before the Board on May 1, 1969, and the hearing was again continued over objection by plaintiff. On September 23, 1970, the defendant Board dropped the charges which had been filed on March 4, 1969.
On June 25, 1970, new and different charges were filed against the plaintiff with the defendant Board and the plaintiff was suspended from the Police Department for a period of 30 days effective June 27, 1970.
The charges filed on June 25, 1970, related to five specific acts of alleged misconduct. After a public hearing, the Board found the plaintiff guilty of conduct unbecoming an officer with respect to two of the allegations and found that the other three allegations were not sustained by a preponderance of the evidence. The Board discharged the plaintiff from the Police Department, and the trial court affirmed the decision of the Board.
The charges on which the plaintiff was found guilty were as follows:
"2. On or about November 20, 1968, said Oliver B. Christenson forced Thomas Derouin, who was at the time under arrest by said Oliver B. Christenson, to purchase $100.00 worth of raffle tickets from the respondent in exchange for having all charges against said Thomas Derouin dropped.
3. In or about December, 1968, said Oliver B. Christenson attempted to persuade one Edward Bennett, who was at the time a part time police officer on the police force of the Village of Oak Forest, to sell pornographic films to the public at a price of $10.00 a reel."
With regard to the charge in paragraph two, Thomas Derouin testified that on or about November 20, 1968, at about 7:00 P.M., he and three friends were in front of a restaurant in Oak Forest. Derouin stated that he had a fuse in his hand and that he threw it across the street. In a couple of minutes, five squad cars came up. Derouin went to the station with the police, but no charges were placed against him. Derouin said he purchased $25 worth of raffle tickets at the police station. He stated that the tickets were on the table and that he gave the money to the plaintiff. He and his friends were allowed to leave the police station. He testified that he was never told that if he purchased the tickets he would not be arrested and charged with a crime.
Officer Arthur Wolfe testified that he was in the room with Tom Derouin, the other boys, and the plaintiff on the evening in question. He said he was informed by the plaintiff that the boys wished to purchase some raffle tickets. Wolfe stated that the boys waited for someone to bring them money to purchase the tickets. Fred Koning, a friend of Thomas Derouin's, testified that he loaned Tom Derouin about $8 on the occasion in question.
The plaintiff, Oliver B. Christenson, testified that on November 20, 1968, he was employed as Chief of Police, Oak Forest, with the rank of captain. He stated that he was patrolling by car when he noticed a boy throw a flare into an empty lot. He pulled over to where Thomas Derouin and three other boys were. The plaintiff stated that the boys rode to the police station in the squad car. At the station, Chief Christenson told the radio operator not to run a card on the boys because he was just going to talk to them. Christenson stated that he reprimanded Thomas Derouin. He said he told Derouin a raffle was being held by the police department for the purpose of erecting a gun range and the drawing of said raffle was being held at the mayor's ball. The funds from the purchase of the tickets were to be turned over to the police department. He stated that the boys wanted to know if they could purchase tickets. They did so. The boys then left the station. The plaintiff denied that Thomas Derouin was ever under arrest or that he was brought to the station for the purpose of placing charges against him. Christenson stated that he had known Thomas Derouin since he was six or seven years old, and that Derouin came to the police station a couple of times a week. Derouin also did work for the Police Department, and his father was a part-time policeman.
Eleanor Fitzpatrick testified that she was a radio dispatcher for the Oak Forest Police Department in November, 1968. She stated that when there is a complaint or arrest, a card is made up on the person when he is brought to the station. On the occasion in question, when she asked whether the Chief wanted a complaint on the boys, Christenson answered, "No, we're not going to arrest the boys. We're just here to talk to them." She also stated that the boys were laughing and talking as they left the station.
• 1 On the basis of this record, we think the Board's finding that Christenson forced Derouin to purchase raffle tickets in return for having charges against him dropped was not supported by the evidence. In our view, there was insufficient evidence to establish either that Derouin was forced to buy the tickets, that he was in fact under arrest at the time he purchased them, or that any complaint was ever filed against him, as charged by the Board. It is certainly not unusual for boys to be brought into a police station ...