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

OPINION FILED APRIL 24, 1979.

EARL HASENSTAB ET AL., PLAINTIFFS-APPELLANTS,

v.

THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF BELLEVILLE ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of St. Clair County; the Hon. D.W. COSTELLO, Judge, presiding.

MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court affirming a decision of the Board of Fire and Police Commissioners of Belleville, an administrative agency.

The hearing before the Board of Fire and Police Commissioners (hereinafter referred to as "Board") resulted from a public meeting held by the City Council of Belleville in the council chambers, with public notice having been given of the meeting. The meeting was held in connection with labor negotiations; and members of several labor unions, other labor representatives, the news media and the general public were present. At the meeting, the city council voted to fire 80 to 90 city employees who were members of various unions. The four plaintiffs, who were out of uniform and off duty, were present at the meeting. They were members of the Belleville Fire Department and Local 53 of the International Association of Fire Fighters. All four had unblemished records, and none of them had ever been disciplined. One had four years of service, two had 23 years of service and one had 25 years of service. Hasenstab and Smallwood were pipemen, and Wilson and Riesenberger were captains. The meeting adjourned about 11:30 p.m., after which the disputed incidents occurred.

Shortly after the city council meeting adjourned, someone in the audience said loudly words to the effect, "Where is the labor man of the year?" apparently referring to Mayor Nichols. Police Captain Mercurio and Alderman Koeneman testified that Hasenstab made the statement, but Smallwood, Captain Wilson and a reporter, Enyart, all testified that it was not Hasenstab, nor any other firefighter, who made the remark.

Following this, Hasenstab approached the railing separating the council floor from the visitor's gallery. The following conversation took place between Hasenstab and Alderman William Calhoun:

"Hasenstab: "Well, dummy, you did it again. [A brief conversation with Alderman Forayt occurred.] There's no sense talking to you, I can get as much sense out of that tree. You're some fine union men.

Calhoun: I'm as good a goddamn union man as you are. How many jobs do you have?

Hasenstab: I don't moonlight.

Calhoun: Well, check with your other union brothers and see how much they moonlight."

This exchange lasted about two minutes. Witnesses variously characterized it as a "little discussion," "heated discussion," "this rather small incident," "heated argument," and "loud discussion."

There was testimony that the voices of Calhoun and Hasenstab were equally loud. Alderman Stelling, who was 2 feet away, did not hear the discussion, and Alderman Thompson was 8 to 10 feet away and could not hear anything other than a lot of mumble.

At about this time, Police Captain Mercurio either asked or ordered the plaintiffs to clear the room; however, they did not comply. Captain Wilson asked why firemen were singled out and were asked to leave the room. He said, "* * * this is an open council meeting, and I feel like we have the same right to remain as anyone else." Captain Riesenberger said, "* * * the room has a lot of people in it, why are you choosing us to leave?" Captain Mercurio responded, "* * * well, I've been given orders to get you guys out of here." At the time there was a good deal of activity and disturbance in the room, caused by conversations among the aldermen, spectators, press, reporters and cameramen, and TV crews. After Mercurio had asked or ordered them to leave several times, the plaintiffs left together, at the same time that others started leaving also. This was approximately three to 10 minutes after the first time Captain Mercurio asked them to leave, according to the testimony. It was not necessary to use any physical force to get them to leave. There were no violent acts, no threats of violence, and no threatening gestures made by any of the plaintiffs.

On June 3, 1975, the defendants filed written charges with the Board of Fire and Police Commissioners, charging the plaintiffs with violating sections 4, 19, and 22 of the General Rules and Regulations of the Fire Department Manual, as follows:

"1. * * * with violating Section 4 in that they failed to obey the lawful order of a police officer in the performance of his duties. Specifically, on May 22, 1975, at approximately 11:30 P.M., they failed to leave the City Council Chambers when ordered to do so by Captain Michael Mercurio. This order was issued because of the lack of good behavior on the part of Firemen ...


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