APPEAL from the Circuit Court of St. Clair County; the Hon.
ROBERT F. GAGEN, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
On September 12, 1972, the Board of Fire and Police Commissioners of East St. Louis, Illinois, discharged probationary Patrolman Carl Chambliss from the Police Department with the loss of all rights and benefits. This action came as a result of an administrative hearing held on August 29, 1972, with the plaintiff-appellee present and represented by counsel.
Written charges to the Board were made on July 31, 1972, by one Mrs. Annie Williams. The charges consisted of the conduct of the appellee and a fellow police officer on the night of July 21, 1972, concerning Vonne Marie Williams, the daughter of Mrs. Annie Williams. Specifically, it was alleged that one patrolman raped Miss Williams while appellee assisted in the act, in that he was in the vicinity of the occurrence and did not object or make a subsequent report.
After the Board announced its decision to discharge the two police officers, the appellee filed suit under the provisions of the Administrative Review Act. On July 19, 1973, the Circuit Court of St. Clair County reversed the decision of the Board and ordered that the appellee be restored to duty with the Police Department. The Board prosecutes this appeal.
The complaint filed by the appellee in the Circuit Court of St. Clair County asked for a judicial review of the record and that the decision of the Board be reversed. The trial court did not mention in its order the reason why it reversed the Board. However, appellee proposes three reasons why the trial court's order should be affirmed: (1) The appellee did not receive a fair hearing before the Board; (2) the results of the lie detector tests were not admissible at the Board hearing; and (3) the findings of the Board were against the manifest weight of the evidence.
• 1 The first point to be determined in this appeal is whether the findings of the Board of Fire and Police Commissioners are supported by the evidence. Its decision can be set aside only if it was against the manifest weight of the evidence. In DeGrazio v. Civil Service Com., 31 Ill.2d 482, 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. * * * The court cannot substitute its judgment for that of the Commission. (Etscheid v. Police Board of Chicago, 47 Ill. App.2d 124, 132.)"
On July 21, 1972, about 10:50 P.M., the appellee and a fellow police officer, Patrolman Bonner, drove their squad car into a ballpark in the City of East St. Louis to investigate a car parked on the field. The complaining witness, Vonne Marie Williams, 16, and her boyfriend, Charles Rives, were in the back seat of Rives' automobile. They were talking and kissing when the police officers arrived and ordered them out of the car. Vonne Williams testified that Officer Bonner asked her some questions and then talked to Charles Rives while she talked with the appellee a short distance away. Then Officer Bonner called Vonne Williams back to him and, after asking some personal questions, he talked once more with Charles Rives, telling him that he was going to take his girlfriend home. Then Officer Bonner told Vonne Williams to get in the front seat of the police car and he drove her to a vacant lot several blocks away from where the appellee and Charles Rives were waiting at the ballpark. Vonne Williams further testified that Officer Bonner made her get into the back seat of the police car and disrobe. He then sexually assaulted her, after which they returned to the ballpark. Vonne Williams on cross-examination testified that she could not run away as the doors of the car were locked and that she was frightened as the officer had threatened her.
Charles Rives' testimony coincided with the testimony of Vonne Williams up to the time she and Officer Bonner drove away. He stated that they were gone about 35 minutes, and he and appellee conversed at the ballpark during that time. He understood that Vonne was to be taken home and that Officer Bonner was going to let him go. Upon their return, Officer Bonner told Charles Rives to take Vonne home, and she got into the front seat of Rives' car. Charles further testified that Vonne was crying and she told him what had happened. Then Charles Rives attempted to catch the police car with his car but it eluded him. Charles Rives and Vonne Williams then drove directly to the police station where they reported what had happened. Lt. Curtis Smith, who was in charge, had all men going off duty at that time, which was midnight, to report to the main police station. While the police were reporting in at the station, Vonne Williams and Charles Rives were watching from an open door in the dispatcher's office and identified Officer Bonner and appellee upon their entrance to the station as the two officers who had accosted them earlier in the evening. Upon initial questioning by Lt. Smith, Officer Bonner and appellee denied being out at the ballpark and stopping anyone, and they persisted in their denials. However, when confronted with the complaining witness and Charles Rives, the two officers changed their story and admitted talking with the couple at the park, even though it was out of their assigned district. Although Vonne Williams was unable to identify Officer Bonner at the hearing, as he was out of uniform, she did identify him at the police station. Charles Rives identified both officers at the police station and also gave a positive identification at the hearing.
All four persons involved, Vonne Williams, Charles Rives, Officer Bonner and appellee agreed to submit to a polygraph examination, which was administered a week after the incident in question. The polygraphist testified at the hearing as to the results of the tests, and he was cross-examined by counsel for appellee. The results of the tests showed that the police officers produced sensitivity to pertinent questions. This testimony together with other testimony and evidence was duly considered by the Board in its findings.
• 2, 3 The appellee upon advice of his attorney refused to testify, as did Officer Bonner, claiming the protection of the Fifth Amendment of the United States Constitution. Our supreme court in Kammerer v. Board of Fire & Police Comm'rs, 44 Ill.2d 500, stated:
"No case has been cited, and we have found none, which holds that a public employer, in the course of a disciplinary hearing into an employee's conduct, may not require the employee to disclose information reasonably related to his fitness for continued employment."
In the Kammerer case, the plaintiff, a patrolman, claimed he was compelled to answer questions which constituted a violation of his privilege against self-incrimination. The court stated, "* * * if a public employee refuses to testify as to a matter concerning which his employer is entitled to inquire, he may be discharged for insubordination, but if he does testify his answers may not be used against him in a subsequent criminal prosecution." Consequently, the appellee had every opportunity to refute the testimony that had been presented against him, but instead he remained silent and offered no evidence in his behalf. The Board was not properly advised and could have compelled him to take the stand.
The four cases cited by appellee in his brief concerning the questions whether the findings of an administrative agency are supported by the evidence differ from the case at hand. In all four of the cases, there was considerable testimony on behalf of the public employee involved. In our present case, the only defense of appellee was in the form of cross-examination of the witnesses by his counsel and appellee's written report. It is well established that on administrative review the court does not re-weigh the evidence. The findings of the Board are prima ...