Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Weisenritter v. Bd. of Fire & Police Comm'rs

OPINION FILED AUGUST 2, 1978.

LEROY WEISENRITTER, PLAINTIFF-APPELLEE,

v.

BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF BURBANK, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding. MR. PRESIDING JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

After a full hearing, the Board of Fire and Police Commissioners (the Board) of the City of Burbank found LeRoy Weisenritter, a city fire engineer, guilty of violating several rules and regulations of the Board and the Fire Department (the Department), including a prohibition against obtaining outside employment without departmental approval, and discharged him. On administrative review, without any findings of fact, the circuit court reversed the Board's decision and reinstated Weisenritter. On appeal, the Board argues that the trial judge erred in overturning its findings and decision, and contends that the Board's conclusion was not against the manifest weight of the evidence. We agree with this contention, and so reverse the order of the circuit court.

At his hearing, Weisenritter testified that he had been employed by the Department for almost 7 years, and was familiar with its rules and regulations. Four or five years earlier he had been employed by a drum manufacturing corporation, while simultaneously employed by the Department, and he had obtained written consent for that employment from the Department chief. Weisenritter admitted that he was an incorporator of the Burbank Alarm & Intercom Service, Inc., and a certified copy of the firm's incorporation papers was admitted into evidence. It showed that the corporation had existed for about 1 year, that Weisenritter was its secretary, and that 10 shares of corporate common stock had been issued. The exhibit also stated that one of the corporation's purposes was "to sell, install, distribute, repair and service fire and smoke detectors * * *." Weisenritter admitted in his testimony that he owned five of the corporation's 10 shares, and he had solicited business on behalf of the corporation and had been selling the corporation's goods or services. He agreed he had not obtained the fire chief's written consent to engage in that business because he "didn't think [he] had to."

Articles X, section 5d, and XIII, section 1 of the Department's rules and regulations provide as follows with respect to employees engaging in outside employment:

"[That employees] engage in no other occupation or activity for compensation except that of the Fire Department without making application to the Chief of Department for approval. Nor shall they continue in other employment if the application is not approved.

* * *

Full time employment by the Department, generally, shall constitute the sole employment of any employee. However, in recognition of the fact that personal situations do occur which make it necessary for employees to seek supplementary employment, outside employment may be permitted under certain conditions. Because of the possibility of conflict of interest, Department employees are not allowed to work for any other organization, or engage in business for themselves, without the express written permission of the Chief of Department. Any employee seeking approval for outside employment must make written application for same to the office of the Chief and have it approved. Approval authorizes outside employment for a period of one year from the time of approval, unless otherwise specified." (Emphasis added.)

Measured against these standards, the evidence introduced at the hearing clearly demonstrates that Weisenritter knowingly violated these rules and regulations. He was an incorporator and half-owner of a corporation selling fire alarm systems, and admitted selling its products or services; yet, he never sought the written permission of his supervisor, even though his having done so on a previous occasion demonstrated that he was aware of this requirement. Weisenritter's conduct was in distinct contravention of the Department's rules, and the activity he engaged in was precisely the type the rule was intended to prohibit. Article XIII, section 1, expressly states that "the possibility of conflict of interest" is a reason for the prohibition against dual employment. It is difficult to conceive of a situation more prone to create such conflicts than that of a fireman moonlighting by selling fire alarm systems. His position as a fireman may lead persons he approaches to have confidence in the systems he is selling as well as to believe they might receive better fire protection by dealing with a member of the fire department.

Although the circuit court appeared to base its reversal on the lack of a showing in the hearing before the Board that Weisenritter was compensated for his services, article XIII, section 1 of the Department's rules and regulations does not dispense with the need for written approval in the case of fire department employees who are not compensated for outside pursuits. That section's prohibition extends to employees who engage in business for themselves. This, in our opinion as well as that of the Board, covers a person who owns 50 percent of the stock and is an officer of a corporation on whose behalf he acts as a salesman.

When the circuit court reviews the decision of an administrative agency, the sole question is whether the findings and decision of the agency are against the manifest weight of the evidence. The Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 274) provides:

"The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct."

And this court has, on numerous occasions, described the proper role of the trial judge on administrative review. (See Taylor v. Police Board 1978), 62 Ill. App.3d 486, 378 N.E.2d 285; Ranquist v. Stackler (1977), 55 Ill. App.3d 545, 370 N.E.2d 1198.) In Dante v. Police Board (1976), 43 Ill. App.3d 499, 502, 357 N.E.2d 549, the court stated:

"It is not the duty of the court to weigh the evidence before the Board, but rather its duty is to ascertain if the findings and decision of the administrative agency are against the manifest weight of the evidence. (Schnulle v. Board of Fire & Police Commissioners (1974), 16 Ill. App.3d 812, 818, 306 N.E.2d 906.) The reviewing court determines only whether there is any evidence which fairly tends to support the Board's determination and its decision should not be reversed unless the opposite conclusion is clearly evident. (Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill. App.3d 864, 868, 278 N.E.2d 212.)"

• 1 In this case, the Board's initial determination was in accord with the manifest weight of the evidence, and the trial judge erred in reversing its findings, for a conclusion contrary to the one the Board reached was not "clearly evident." (Dante; Davenport.) While the Board also found Weisenritter guilty of several other less significant violations of the Department's rules and regulations, it is unnecessary to review the evidence on these violations, for Weisenritter's transgression in engaging in outside employment with a strong likelihood of creating conflicts of interest, without procuring the necessary consent, clearly was sufficient to support his discharge.

Weisenritter argues that in any event his discharge was improper because he was never notified in writing of the offense which we have determined was established by the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.