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Rizzo v. Board of Fire & Police Commissioners

OCTOBER 24, 1975.

ERNEST D. RIZZO, PLAINTIFF-APPELLEE,

v.

BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF FRANKLIN PARK, COOK COUNTY, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Defendant (Board) appeals from an order of the circuit court of Cook County setting aside its decision which removed plaintiff from his job as a Franklin Park policeman. It contends that its decision was not against the manifest weight of the evidence and should therefore have been upheld.

Plaintiff was found guilty of misconduct for violating Rule 2 of the department's Rules and Regulations by possessing and using an automobile which he knew or should have known had been stolen. *fn1 The Board ordered his dismissal from the department. In an administrative review proceeding in the circuit court, the order was confirmed on November 25, 1968, and this court affirmed that finding in Rizzo v. Board of Fire & Police Commissioners, 131 Ill. App.2d 229, 267 N.E.2d 7.

Thereafter, on June 8, 1971, plaintiff filed a petition for supplementary proceedings based upon alleged perjurious testimony and other evidence not made known to the Board at the original hearing. The trial court entered an order vacating the 1968 judgment and ordering a hearing de novo by the Board which order was affirmed by this court. Rizzo v. Board of Fire and Police Commissioners, 11 Ill. App.3d 460, 297 N.E.2d 247.

The facts of the instant case were adequately summarized in our prior opinions. Having again examined the record, we believe our prior summary of the facts will amply serve our present needs, and, therefore, refer the reader to that summary of the evidence. 131 Ill. App.2d 229, 267 N.E.2d 7; 11 Ill. App.3d 460, 297 N.E.2d 247.

At the new hearing, the following additional evidence pertinent to this appeal was adduced.

William Zahn, the Acting Police Chief of Franklin Park from January through March, 1968, and the original complainant in this case, retired. He asked to withdraw the charges before the Board. He replied to plaintiff's circuit court complaint by filing a motion to dismiss the charges against plaintiff.

Plaintiff petitioned the Board to have its chairman, Bernard Hamilton, disqualify himself and moved to dismiss the proceedings. He alleged that Hamilton was prejudiced against him by virtue of a statement Hamilton had made to Officer Dennis Blum and that he was disqualified from being a Board member under Illinois law. *fn2 Sergeant James Miller testified that Hamilton said plaintiff would not come back to the department as long as he was a Board member. Miller did not know the approximate date of the conversation, nor who was present, except that Blum was not present. Blum denied ever hearing the remark in question. Plaintiff testified on his own behalf that Hamilton was in the lettering business and did business for the Village although he did not state the amount of business. The record indicates that Hamilton denied having ever made the remark in question and that his total business with the Village was billed at $1213.95 for the preceding three-year period. The Board denied plaintiff's motion.

John La Gioia for the Village

He is a police officer in the Franklin Park police department. His present testimony substantially corroborated his testimony from the original hearing including his conversations with plaintiff and the subsequent meeting with the man claiming to be John Campell. In addition, he testified that in late February or early March, 1968, he received a second statement, unsigned, but purportedly from Campell, and the 806 serial number plate in an envelope at the station. In this later statement Campell claimed to have purchased the 850 vehicle himself and to have stolen the 806 vehicle from Avis. The statement, if believed, would have cleared plaintiff from any knowledge or complicity in the crime. On February 29, 1968, he and Zahn traced the charred 850 vehicle to the ABC Welding Company in River Grove. The vehicle was now owned by Jerry Wilson. The serial number plate was missing. On cross-examination, he testified that plaintiff never specifically identified himself on the phone.

Harry Bade

He is the owner of the building in Des Plaines where John Campell allegedly lived in 1968. He had no knowledge of any tenant named John Campell.

Joseph Miller

He was the supervisor of security for Avis Rent-A-Car in late 1966. He recognized the Avis vehicle sale and transfer form. The charred 850 vehicle was sold to Ernest Rizzo on or about December 12, 1966. He reported the 806 vehicle ...


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