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Zions v. Police Bd. of City of Chicago

OPINION FILED DECEMBER 20, 1978.

WAYNE J. ZIONS ET AL., PLAINTIFFS-APPELLANTS,

v.

THE POLICE BOARD OF THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES.



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:

Rehearing denied January 31, 1979.

Plaintiffs Wayne J. Zions and John Carioscia, both former Chicago policemen, filed a complaint in the circuit court seeking review of the administrative action of the defendant Police Board of the City of Chicago (the Board) finding them guilty of violating department rules and discharging them from the force. This appeal is from the circuit court's decision affirming their discharges. Each officer contends that the Board's decision was against the manifest weight of the evidence, and should have been reversed by the circuit court. Both officers also contend that discharge was inappropriate punishment for their offenses.

The incident which led to charges being preferred against the plaintiffs occurred in the early morning hours of February 25, 1972. That morning, the plaintiffs and several other on-duty policemen responded to a disturbance call made by Mrs. Walker, the owner of a building at 9251 South King Drive in Chicago. Mrs. Walker had complained that a tenant, Lavella Rogers, was disturbing other tenants by playing loud music. Arriving at the scene, Zions and his patrol partner, Carioscia, discovered that two other policemen, Victor Howard and Robert Smith were already there and had quieted the disturbance. While discussing the situation among themselves, the officers, including two other backup policemen who had also arrived, Officers Amendola and Matejko, heard Mrs. Walker pounding on her apartment window, shouting that she had just been threatened by Rogers. The officers then entered the building and ran up a stairway to the Rogers apartment.

Inside the apartment Officer Matejko had an argument with Rogers. Richard Leftridge, a friend of Rogers, intervened, resulting in an altercation in which Leftridge was wrestled to the floor, and physically restrained by a number of officers, including Carioscia but not Zions. In the course of the struggle, Leftridge was struck in the face by Officer Matejko's club. Leftridge, who suffered an injury to his eye from the blow he received, filed a complaint with the Board.

Subsequently, Zions and Carioscia were each charged with making a false report and failing to report the improper conduct of their fellow officers — violations of department rules 13 and 21 respectively. Officer Carioscia was also charged with violating two additional rules: Impeding the department's efforts to achieve its goals or bringing discredit upon the department (rule 2), and willful maltreatment or disrespect to any person (rule 8).

At the hearing on these charges, the Board considered only evidence presented by stipulation. It consisted of the following: Statements from Zions and Carioscia taken by the Police Department Internal Affairs Division approximately 1 month after the incident; stipulated abstracts of the testimony of Leftridge, Rogers, and Officers Howard and Smith in an action in a Federal court proceeding in which Zions and Carioscia were charged with violations of criminal laws in connection with the occurrence in which Leftridge was injured; and an abstract of a deposition given by Carioscia in a civil action against him based on his conduct during that occurrence. Because all of the evidence was stipulated, the Board neither had the opportunity to observe the demeanor of the witnesses nor to ask additional questions.

• 1 The function of this court is limited to determining whether the Board's decision is contrary to the manifest weight of the evidence. Unless an administrative board has abused its discretion or its decision is not substantially supported by the evidence or is clearly wrong, this court may not substitute its judgment for that of the board, even though this court would have drawn other inferences from the evidence. (Scuderi v. Industrial Com. (1978), 73 Ill.2d 277, 383 N.E.2d 174; Aarco American, Inc. v. Baylor (1974), 18 Ill. App.3d 14, 309 N.E.2d 380; Suttle v. Police Board (1973), 11 Ill. App.3d 576, 297 N.E.2d 174.) The guidelines for this court's review of the decision of an administrative body were explained in Lieberman v. Rochford (1976), 43 Ill. App.3d 1001, 1003, 358 N.E.2d 287:

"While the findings and conclusions of an administrative agency are to be held prima facie true and correct * * * our supreme court has construed this provision to limit the function of the reviewing court to ascertaining whether the findings and decisions of the administrative agency are against the manifest weight of the evidence. * * * Moreover, a reviewing court will not reweigh the evidence and determine the credibility of the witnesses. * * * A reviewing court may, however, reverse an administrative body's findings where the findings of that body are against the manifest weight of the evidence. * * * An examination will thus be made on review to determine whether enough evidence exists on record to support the findings of violation."

Zions was charged with including a false report in his statement to the Internal Affairs Division of the Chicago Police Department. When asked to state everything he could regarding the incident, Zions responded that "* * * [W]e, Amendola, Matejko and Carioscia and myself went up the stairs. I was the last one." In this declaration Zions failed to account for Smith's and Howard's whereabouts on the stairs. In reliance upon Howard's stipulated version of the occurrence to the effect that he and Smith followed the others to the apartment, the Board apparently reasoned that Zions must have been aware of their presence behind him on the stairway. The Board concluded that by not including Smith and Howard in his statement, Zions made a false report.

• 2 The evidence was not sufficient to establish that Zions' failure to state that Howard and Smith also came up the stairs was intentional or even a falsehood. Viewing the context in which he made his statement, we find no affirmative attempt by Zions to make a misleading statement. Instead, we find Zions answering the report's open-ended question by stating the facts as he remembered them. Zions never specifically denied Smith's and Howard's presence on the stairs or in the apartment for he was never specifically asked where they were. His failure to mention Smith and Howard makes Zions' report at the most incomplete — not false.

Accepting Howard's statement as true, it reveals only what Howard, and not Zions, saw and experienced. There was no evidence to establish that Zions knew Smith and Howard were behind him on the stairway. The fact that Howard's testimony is contradicted by other witnesses including his own patrol partner, Officer Smith, suggests the possibility that either because of the physical layout of the apartment and stairwell or because of the officers' timing or speed in proceeding up the stairs, Zions may not have been aware of Smith's and Howard's presence behind him. Rogers' testimony, for instance, shows that she too was unaware of Howard's and Smith's presence:

"* * * [T]hen three officers came in, and then another police officer came in a couple of minutes later. * * * I later noticed the first two officers who had been at the apartment standing in the doorway after Leftridge was struck in the eye."

Our examination of this and other conflicting accounts is not directed to discrediting Howard's testimony, but only to illustrate that the evidence was not adequate to substantially support a finding of Zions' guilt. Without further evidence, showing the physical layout of the apartment and stairwell and how long after Zions ran up the stairway Smith and Howard followed, the Board's inference that Zions knew Howard and Smith were behind him and omitted this fact from his report is unsupportable. As this court recently stated in another police board review, "[T]he Board has relied on an inference so lacking in substance that it cannot support its finding." (Tinner v. Police Board ...


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