APPEAL from the Circuit Court of Du Page County; the Hon.
WILLIAM E. BLACK, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Charges had been filed against plaintiff, a police officer of the Village of Lombard, by the chief of police as a result of which a hearing was held by the Board of Fire and Police Commissioners (Board) on May 16, 1975, at which hearing no evidence was presented. Following a guilty plea, the Board entered an order discharging plaintiff as a police officer. Plaintiff then filed a complaint for judicial review alleging in substance that the Board, by its order, denied him a fair and impartial hearing and deprived him of due process of law because his plea of guilty was entered in reliance upon a plea bargain agreement which was unfulfilled. He alleges that the plea bargain was made in the presence of the members of the Board and with their approval and that the agreement was that in exchange for his plea of guilty and his public apology to certain persons he would be suspended from duty for 30 days and would not be discharged.
Plaintiff's prayer was in the alternative as follows: that the Board's order (a) be reversed, or (b) be reversed and remanded with instructions to enter a 30-day suspension without pay, or (c) be reversed and remanded with instructions to grant plaintiff a complete hearing de novo; it also prayed that based on his allegation of financial burden and irreparable harm, the Board's decision be stayed without bond pending final disposition of the case. The Board filed an answer denying in effect those allegations, and filed the record, including a transcript of the proceedings before the Board.
Thereafter, plaintiff filed his motion seeking a stay of the Board's decision. Upon this motion the trial court, after reading the transcript of proceedings before the Board, hearing oral argument, and requesting and receiving briefs from the parties, decided to hear testimony "to find out if the Board was present during the plea negotiations." Accordingly, but over the Board's objections, the trial court heard testimony of witnesses offered by the plaintiff and by the Board. At the conclusion the trial court entered its judgment vacating the Board's decision discharging plaintiff and remanding the case to the Board to permit plaintiff to withdraw his plea of guilty and for a full hearing de novo.
On this appeal the Board's principal argument is that the trial court erred in hearing additional evidence. That argument is based on the following provision of section 11 of the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 274):
"No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court."
Plaintiff argues, on the other hand, that in view of plaintiff's guilty plea, no evidence was presented at the hearing before the Board bearing upon plaintiff's guilt. Further, that the evidence heard by the trial court was only on a procedural issue, namely the conduct of the unreported plea bargaining session which took place during a recess called by the Board for the purpose of a "pretrial conference," which resulted in the plea agreement agreeing to a 30-day suspension in return for plaintiff's guilty plea. Plaintiff further argues that the transcript of proceedings before the Board in itself contains sufficient basis for affirmance of the order appealed from. We agree.
• 1 It is a familiar principle that when an appeal is taken the appellee may defend the judgment below on any ground appearing of record, and that it is the duty of the reviewing court to affirm if the judgment below is proper. Vendo Co. v. Stoner, 58 Ill.2d 289, 307; Shaw v. Lorenz, 42 Ill.2d 246, 248; 5 Am.Jur.2d Appeal and Error § 931; see also Kravis v. Smith Marine, Inc., 60 Ill.2d 141, 147.
Our review of the proceedings before the Board discloses the following: The hearing of the charges of plaintiff's alleged violation of the rules of the Lombard Police Department took place on May 16, 1975. Present at that hearing, in addition to the three commissioners of the Board and the Board's secretary, were Mr. Ralph Gust (Village prosecutor, representing the police chief who brought the charges), Mr. Walter Wellman (Board attorney), Mr. Arthur Eggers (respondent there, plaintiff-appellee here), and Messrs. Kaplan and Hoffman (attorneys for Eggers). Mr. Peter Davis, Jr., a Board member, was hearing officer.
After Eggers pleaded not guilty to the charges Mr. Gust amended them, and the Board recessed to review the amended charges. When the Board reconvened at 8 p.m. Mr. Davis stated that "counsel are requesting a pre-trial discussion behind doors to settle it." Pursuant to Mr. Wellman's suggestion and a Board member's motion for a "recess for 5 minutes for a pre-trial conference," a recess was taken which lasted until 8:57 p.m.
At the resumption of the hearing Mr. Gust further amended the charges, Eggers (through his attorney, Hoffman) withdrew his not guilty plea and pleaded guilty to paragraphs 2 and 3 of the second amended statement of charges, and Mr. Gust stated that pursuant to authority from the Chief he withdrew the charges under paragraph 4 "without prejudice." Mr. Eggers then made a statement of apology to Sgt. Kundrot for "speaking disrespectful [sic]" to him, and to four other named persons "if I spoke rudely." At Mr. Davis' request to Mr. Wellman to "warn him [Eggers] of the consequences of the plea of guilty," the following appears in the transcript:
"MR. WELLMAN: Mr. Eggers, you realize that by pleading guilty to these charges, that the Board can either suspend you from one to 30 days, or they can discharge you from the department? That it is up to the Board to do that; and you have made these pleas of guilty of your own free volition and no promises have been made to you by anyone as to the consequences; is that correct?
OFFICER EGGERS: Yes, sir.
MR. WELLMAN: And while still realizing that, you persist in your plea of guilty to the ...