APPEAL from the Circuit Court of Peoria County; the Hon.
CHARLES IBEN, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
This is an appeal pursuant to the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264) of the reversal of a decision of the Board of Fire and Police Commissioners of Peoria, Illinois, by the Circuit Court of Peoria County. The Board of Fire and Police Commissioners, hereafter referred to as the Board, suspended plaintiff Ronald Shipp, a member of the Peoria Fire Department after a full hearing finding plaintiff had violated provisions of the Manual of Rules of the Peoria Fire Department. Plaintiff was charged with making certain statements to a newspaper reporter from the Peoria Journal Star that were subsequently published by the paper. The statements allegedly violated the Manual of Rules of the Fire Department in that they were disrespectful of plaintiff's superior officers; were comments of a personal nature or of a derogatory character relating to official fire department transaction; constituted acts or omissions contrary to the good order and discipline of the fire department; and constituted conduct unbecoming an employee. On appeal the circuit court found the decision of the Board was against the manifest weight of the evidence presented at the hearing and reversed the Board's decision suspending plaintiff for 35 days without pay.
Defendant raises four issues on appeal:
(1) Whether the trial court erred in its finding that the decision of the Board of Fire and Police Commissioners was contrary to the evidence.
(2) Whether the statements made by the plaintiff were protected by the first and fourteenth amendments of the Constitution of the United States.
(3) Whether the Board was improperly constituted when Commissioner LeDoux failed to recuse himself.
(4) Whether the plaintiff was wrongfully penalized for questions asked by his counsel.
Plaintiff made the adverse statement that resulted in his suspension after the results of a newly promulgated examination for promotion to captain had been released. The substance of plaintiff's statement was stipulated to by counsel for both sides and is set out as it was reported in a quote from the August 25, 1975, edition of the Peoria Journal Star:
"That Nielson was at least partially responsible for making sure four of the men who are no longer with the union were promoted to captain on the last captain's test. I'm sure he had a part in that. Whether it was by prepping them on the test or giving favorable comments to the Board of Police and Fire Commissioners."
The statement referred to Fire Chief Jacob Nielson and four firemen recently promoted to captain after the test. Chief Nielson and the other four men implicated by plaintiff had been suspended from the Firemans Local 544 labor union for accepting a pay increase for their educational efforts which resulted in their obtaining college degrees, or had voluntarily discontinued affiliation with the union. Great animosity existed between plaintiff, who was vice-president of the local union, and the Nielson group because of Chief Nielson's attitude toward the local fireman's labor union. Chief Nielson had been encouraging the formation of a rival union throughout the conflict between the City of Peoria Fireman's Local 544.
• 1 Preliminary to a discussion of the main issues we must determine whether the Board was improperly constituted when Commissioner LeDoux failed to recuse himself. Commissioner LeDoux had allegedly made remarks showing prejudice against plaintiff which had been published in the Peoria Journal Star. Had LeDoux recused himself only one member of the Board would have been left ready to proceed, which was less than the number required for a quorum. *fn1 Without a quorum present plaintiff's hearing would have been delayed and he, and the City, would have been then denied the remedy of an administrative determination. *fn2 We believe the Board was properly constituted and no error was committed by Commissioner LeDoux's refusal to recuse himself, even though he was more than aware of the subject matter. The Board's action is justified on the ground of the "rule of necessity." 1 Am.Jur.2d Administrative Law § 66 (1962); see Mank v. Board of Fire & Police Commissioners (1972), 7 Ill. App.3d 478, 288 N.E.2d 49.
• 2 Defendant's primary argument on appeal is that the trial court erred in reversing the Board's suspension of plaintiff on the ground that the decision of the Board was contrary to the manifest weight of the evidence. Plaintiff's counterargument is that the statement complained of was protected by the first and fourteenth amendments to the United States Constitution. On administrative review the court, whether appellate or circuit, does not reweigh the evidence presented to the administrative tribunal. The findings of the Board, in this case must be considered prima facie true and correct and will be upheld where the evidence supports the Board's finding. (Chambliss v. Board of Fire and Police Commissioners (1974), 20 Ill. App.3d 24, 312 N.E.2d 842; Etscheid v. Police Board (1964), 47 Ill. App.2d 124, 197 N.E.2d 484.) Only when the findings of the administrative body are contrary to the manifest weight of the evidence should their decision be reversed. 1 Ill. L. & Proc. Administrative Law & Procedure § 52 (1953).
Plaintiff readily admits making the statement publicly against his fellow firemen but denies that the statement is false or alternatively that he did not make the statement intentionally knowing it was false or making it recklessly without regard to its truth or falsity. The record indicates the basis of plaintiff's belief of the truth of the substance of his statement was uninvestigated hearsay statements and general conjecture motivated by strong feelings of animosity.
• 3-5 In a case such as this involving statements made by a public employee, the Board had the burden of proving three essential elements by a preponderance of the evidence to defeat plaintiff's contention that ...