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Bart v. Dept. of Law Enforcement

OPINION FILED SEPTEMBER 19, 1977.

LOUIS J. BART, PLAINTIFF-APPELLANT,

v.

THE DEPARTMENT OF LAW ENFORCEMENT, DIVISION OF STATE POLICE, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Sangamon County; the Hon. SIMON L. FRIEDMAN, Judge, presiding.

MR. JUSTICE KUNCE DELIVERED THE OPINION OF THE COURT:

Plaintiff Louis J. Bart appeals from a judgment of the circuit court of Sangamon County affirming a State Police Merit Board decision discharging him as a State police officer.

The superintendent of State police suspended the plaintiff for infraction of rules and regulations of the State police pending the filing of charges against the plaintiff with the Illinois State Police Merit Board. The complaint filed by the superintendent sought Bart's discharge for alleged misconduct on three separate occasions.

On July 7, 1974, while off duty, Bart had eight or nine beers before he went to John's Lounge in Springfield with some friends. The manager would not permit Bart to enter dressed in blue jeans contrary to a dress rule of the lounge. Bart exhibited his police identification, asked to use the rest room and after he came out he again showed his police credentials and demanded entrance which was again refused. Bart grabbed the manager in a headlock, dragged him up a stairway and hit him in the face. The owner, Delmar Kresse, upon investigating the disturbance, told Bart to release the manager and leave. Bart struck Kresse and told him he would have the bar closed in 15 minutes and that the establishment would be harassed every night and then left.

On December 10, 1974, again while off duty, Bart, while parking a truck he was driving, suddenly backed into a parking spot causing a city bus driven by Leonard Linder to stop short to avoid an accident and drew abreast of Bart's truck, whereupon, Bart looking at Linder said, "Fuck you"; the comment was heard by Linder and some school children riding the bus. Linder started to get out of the bus to get the truck's license number when he saw Bart, with the door partially open and a revolver in his hand, pointing in the direction of Linder and the bus passengers.

The third charge occurred on January 20, 1975, when during the course of the investigation of the other charges and while being interrogated by a superior, Bart stated that he did not use any profane language. During the hearing, however, Bart testified that he did say, "Fuck you," to the driver.

• 1, 2 Bart's contention that the decision of the Merit Board is against the manifest weight of the evidence is unmeritorious. Witnesses on Bart's behalf were either not present, were not looking, or could not see at critical moments. Only Bart directly contradicts the inculpating testimony, and in doing so he did not deny being involved in the incidents, but rather claimed innocent interpretations for his actions. For example, Bart stated that he did not intentionally strike anyone at John's Lounge and that, in the incident with the bus driver, explained that he pulled out his service revolver and placed it on the truck dashboard because he was provoked. The credibility of witnesses is determined by the Board. (Daniels v. Police Board of Chicago (1976), 37 Ill. App.3d 1018, 349 N.E.2d 504.) This court may reverse only where the decision is against the manifest weight of the evidence. (Kerr v. Police Board (1974), 59 Ill.2d 140, 319 N.E.2d 478.) A review of the entire record clearly shows that the Board's decision in this matter is not against the manifest weight of the evidence.

Bart next argues that the superintendent of the State police elected a remedy by suspending Bart for 30 days on the charges in this case and could not thereafter move for Bart's discharge from employment. Bart views the superintendent's actions as violating the double jeopardy and due process clauses of the Federal Constitution.

The relevant statutory provisions are:

"Disciplinary measures prescribed by the Board may be taken by the Superintendent for the punishment of infractions of the rules and regulations of the division as promulgated by the Department. Such disciplinary measures may include suspension of any State policeman for a reasonable period, not exceeding 30 days." Ill. Rev. Stat. 1973, ch. 121, par. 307.13.

"Except as is otherwise provided in this Act, no State policeman shall be removed, demoted or suspended except for cause, upon written charges filed with the Board by the superintendent and a hearing before the Board thereon upon not less than 10 days' notice at a place to be designated by the chairman thereof." Ill. Rev. Stat. 1973, ch. 121, par. 307.14.

• 3 The double jeopardy argument is inapposite. Double jeopardy has application only in criminal prosecutions. (Village of Maywood v. Houston (1956), 10 Ill.2d 117, 139 N.E.2d 233.) State Police Merit Board proceedings are civil proceedings. (Ceja v. State Police Merit Board (1973), 12 Ill. App.3d 52, 298 N.E.2d 378.) No double jeopardy problem exists. Bart raised the double jeopardy issue before the Board. The Board ruled:

"That when such written charges are filed with the Board by the Superintendent, the Superintendent may suspend the State Policeman so charged pending a hearing on the written charges."

• 4 The Board cites no authority for this proposition, and no express language to this effect can be found in the statute or in the Board's rules. However, assuming arguendo that the suspension pending discharge proceedings was improper, it does not affect the validity of the later ...


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