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Reich v. Board of Fire And Police Comm'rs

SEPTEMBER 19, 1973.

ALBERT REICH, PLAINTIFF-APPELLANT,

v.

THE BOARD OF FIRE AND POLICE COMMISSIONERS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Stephenson County; the Hon. WILLIAM B. PHILLIPS, Judge, presiding.

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

This appeal is taken from an administrative review proceeding wherein the circuit court confirmed the defendant-Board's discharge of plaintiff from his position as a Freeport patrolman.

Plaintiff had been employed by the police department for over one year when the Chief of Police entered a complaint against him. On March 25 and 26, 1971, there was a formal hearing on the second amended complaint charging plaintiff with five violations of the Freeport Municipal Code; he was found guilty on four of the five charges.

• 1 A single valid finding is sufficient to constitute the basis for entering the order of dismissal. (DeGrazio v. Civil Service Com., 31 Ill.2d 482 (1964); Bagat v. Police Board of City of Chicago, 95 Ill. App.2d 45, 50 (1968); Moriarty v. Police Board of Chicago, 7 Ill. App.3d 978, 982 (1972).) We, therefore, consider the points raised on appeal only in their application to certain violations contained in the third charge. There, plaintiff was found in violation of sections 15-114-1, 15-125-6, 15-125-7 and 15-125-18 of Chapter 15 of the Freeport Municipal Code which sections specify the duty of an officer to know and enforce the criminal statutes, and provide that certain acts be subject to penalty: neglect of duty, violation of any criminal law, and the loss, spoiling, damage or wrongful disposal of City or Department property.

According to plaintiff's testimony, an attempted marijuana purchase was set up under the direction of the department, such purchase to be made through plaintiff's informer. The purchase failed after certain members of the department talked about the plans to a friend of the anticipated seller. Subsequently, plaintiff supplied his own money and encouraged the informant to persist in attempting a purchase. A "brick" of marijuana was ultimately bought and delivered to plaintiff but, feeling that the evidence would not hold up in court, that he would not be reimbursed for his cash outlay and that the department was not interested in the drug problem, plaintiff later gave the drug to the informant, suggesting it be returned to the seller for the money.

Plaintiff's multiple contentions will be grouped for the purpose of this appeal.

The findings of the Board were conclusionary, the findings were against the manifest weight of the evidence, and discharge was an inappropriate penalty;

Plaintiff was found to have violated a criminal statute which has since been held unconstitutional;

The Board based its decision upon secret evidence and arguments outside plaintiff's presence, was prejudiced and biased against plaintiff, and erred in failing to grant subpoenas;

The circuit court erred in refusing to strike defendant's answer.

• 2 A review of plaintiff's own testimony reveals that, without department knowledge or authority, he was in possession of marijuana, that he did not bring the matter to the attention of the appropriate officer or turn the evidence in to the department, and that he subsequenly had the "evidence" returned to the seller. Were we to determine that plaintiff's possession of the marijuana occurred within the scope of his duties, he would then have been in violation of the Code in returning the contraband to the seller. Conversely, were we to view such possession as being outside the scope of his duties, he would there be in violation of the criminal law. Under either finding, plaintiff was guilty of violating the Code and the Board's determination in this regard was not against the manifest weight of the evidence.

• 3 The findings stated that plaintiff had been found "guilty as charged." Within the amended charges, the factual background for each of the accusations was set forth. While the requirements for administrative findings are more exacting than those relating to the findings of trial courts (Maywood Trotting Ass'n v. Racing Com., 15 Ill.2d 559, 563 (1959)), we consider the findings herein to include, by reference, the specificities of the charges and hold these to be of such clarity as to negate plaintiff's allegation that the findings were conclusionary.

• 4 Under the provisions of section 10-2.1-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1969, ch. 24, sec. 10-2.1-17), a police officer may be discharged for cause. Plaintiff's violation of the Code and his disregard for departmental procedures was sufficient cause for the Board to appropriately discharge him from the force.

Plaintiff does not directly attack the constitutionality of that portion of the Code charging him with the violation which we here consider, namely, section 15-125-7, "* * * violation of any criminal law * * *." Rather, he directs his argument to the Code's underlying criminal statute (Ill. Rev. Stat. 1969, ch. 38, sec. 22-3) which was held unconstitutional in People v. McCabe, 49 Ill.2d 338 (1971). There is no question that, at the time of the occurrence, possession of marijuana was prohibited by an existing statute. To disclaim any violation because that statute was subsequently found unconstitutional would require that a police officer personally ...


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