APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. CURRY, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Plaintiff filed a complaint under the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.) for review of the decision of the Village of Oak Lawn's Board of Fire and Police Commissioners (Board) which found him guilty of violating certain rules and regulations of the Fire and Police Commission of the Village of Oak Lawn, and ordered him discharged from his position as a lieutenant and member of the Village's Fire Department. On appeal, he contends that (1) the Board lacked the jurisdiction to hear his cause, (2) its findings were against the manifest weight of the evidence, and (3) its discharge order was arbitrary.
Charges were filed against plaintiff on December 27, 1975, and amended on January 27, 1976. He was charged with violating article IV, section 140.11 of the Oak Lawn Fire and Police Commission rules, and chapter I, rules 9 and 28 of the Rules and Regulations of the Oak Lawn Fire Department, in that he (1) responded to an alarm in an intoxicated condition, (2) allowed the men under his command to drink intoxicating liquor while on duty, (3) drank intoxicating liquor whereby he could not properly perform his duty, (4) stored intoxicating liquor in the fire house, and (5) disobeyed direct orders from a superior officer. A hearing on these charges was held before the Board and the following pertinent evidence was adduced.
Elmore J. Harker, Deputy Chief, Oak Lawn Fire Department
He is Jerry Hall's shift commander. On December 23, 1975, Hall had been a lieutenant for five or six years, was station commander at the Marion Station Company No. 4 and was in command of Joe Gaul, Richard Champlain, John Butler, and Robert McKee. He talked to Hall a few minutes before midnight on December 23 and realized that Hall wasn't talking clearly. Hall was then at 9609 South Marion, where he was responding to a call that water was coming into the basement, and there was concern that the water would extinguish the flame of the hot water heater and cause "a gas problem." He and a Lieutenant Buckley went to the scene. Hall was in the basement, standing in water approximately eight inches deep, and lighting a cigarette. He noticed that Hall couldn't stand straight, was weaving back and forth, and could not talk properly. He began to talk to Hall, but left the basement after observing Hall's condition. He assigned another engine crew to handle the alarm, and instructed Hall that his engine was to go to Company 3, located at 94th Place and Cook and next to a police station. He called the police station, and asked a Sergeant Banis to prepare a breathalizer test. When Hall's crew arrived at the station, he spoke to Hall in Lieutenant Buckley's presence. He asked Hall if he had been drinking that day. Hall said that he and his men had not been drinking anything. He first requested and then ordered Hall to submit to a breathalizer test, and Hall refused. After Chief Vogelsanger arrived Harker briefed him on what had happened and talked to Hall in the chief's presence. Hall again denied drinking that day, and again refused a request and a direct order to take a breathalizer test. He then relieved Hall of duty. He, Vogelsanger, Buckley and Hall drove to the Marion Station Company No. 4. Earlier that day, two bottles of wine had been given to each man at the station. Pursuant to an eight- or nine-year custom, the wine was bought by the chief with public donations, and had been delivered to the station by ambulance crew. To his knowledge, however, nobody was ever authorized to drink the wine at the station, and it was not customary to do so. He asked the men in Hall's crew to put all the wine bottles on the table. They counted all the bottles, and found that one bottle of "Cold Duck" was missing. The men said that they had drunk that bottle around dinner time. He and Captain Bulow, Hall's immediate superior, went upstairs to the sleeping quarters. Hall's locker door was wide open, and on the bottom of it was a half-empty fifth of blackberry brandy. They went back downstairs and saw that Hall was still in the station. He told Hall that he was relieved of duty and instructed him to leave. Hall began to argue that Harker couldn't tell him to leave. Harker went into the kitchen, talked to the four men there and returned. Hall was still there, and he gave Hall a direct order to leave the station. Hall refused, and said something to the effect that Harker could not make him leave. As they talked, he noticed that Hall could not talk clearly or coherently, his breath smelled like alcohol, he was rocking back and forth and his eyes were watery and out of focus. He told Hall that if he didn't leave immediately, he would call the police for a squad to come over. Hall made no effort to leave, so, after a few minutes, he began to dial the police department. As he did this, he noticed that Hall was leaving the station with Lieutenant Buckley. In his opinion, when he saw Hall at the house at 9609 South Marion, Hall was definitely not in condition to act as an officer on the Oak Lawn Fire Department.
On cross-examination he denied having any personal dislike for Hall. He conceded that he has not heard any citizen complaints about the fire department's performance on the alarm at 9609 South Marion. He admitted that he did not tell the ambulance crew that delivered the gift bottles of wine that nobody was supposed to drink the wine while on duty or store it at the fire stations, even though he knew that those acts were against the rules. He stated that he did not know whether Hall had a drinking problem or insomnia. He acknowledged that on January 1, 1976, after speaking with Eugene Lyons, the Chairman of the Board of Fire and Police Commissioners, he served on Hall a notice which was signed by him, suspending Hall without pay pending a hearing. He acknowledged that only Mr. Lyons, as chairman of the Board of Commissioners, could have ordered such a suspension. He conceded that Hall is competent in fire-fighting techniques. He stated that as far as he was concerned, the rule against storing liquor in the fire station could be "bent" to the extent that the men could store the gift bottles of wine there overnight and take them home the next morning. He acknowledged that if the fire fighters "are out in freezing weather on a fire and somebody really gets cold or wet, I don't think it would be frowned on if he had a shot of whiskey to warm up." He further acknowledged that it was cold on the night in question. He does not know if Hall had a cold on the date in question.
He has served under Jerry Hall's command in Company No. 4 of the Oak Lawn Fire Department since March of 1975. On December 23, 1975, he and Robert McKee were assigned to ambulance 6. They went to Company No. 1, picked up boxes containing bottles of wine, and delivered them to companies #2, 3 and 4. At the evening meal that the men had together at the station, a bottle of "Cold Duck" wine was consumed. He had a cup of the wine, but did not actually see anyone else, including Lieutenant Hall, drink any. He heard a rumor on the morning of December 23 that Chief Harker was mad at Hall because the men of Company No. 4 were putting a muffler on Robert McKee's car and Harker was not informed.
On cross-examination, he admitted that rumors are common around the station and that it was rumored that Harker and Hall didn't get along. He acknowledged that when he picked up the gift bottles of wine, Chief Harker did not give him any warnings about drinking the wine on duty or storing it at the station. He stated that he thought that all the men knew that drinking the "Cold Duck" was against the rules. He stated that he was not in any way under the influence of intoxicating liquor when the company answered the call on Marion Street, and nothing improper was done in dealing with the alarm. He noticed that Hall's speech was slurred, but did not smell Hall's breath and doesn't know if he was intoxicated. Prior to that evening he had not seen Lieutenant Hall drinking or under the influence of intoxicating liquor while on duty.
On December 23, 1974, he was on duty and was second in command of Company No. 4 under Lieutenant Jerry Hall. At dinner that evening the men shared one of the bottles of "Cold Duck" that had been delivered that day. He and the men, other than Lieutenant Hall, later received a one-day suspension for drinking that wine. When the call came in directing them to 9609 South Marion, he went downstairs and talked to Lieutenant Hall. He noticed that Hall's eyes were "blurry," his speech was "slurry," and he appeared to have been drinking. He told Hall, "I think you ought to stay back," but Hall insisted on going. He later agreed to take a breathalizer test, although one was not given.
On cross-examination he admitted that he was aware of rumors that shortly before December 23, Harker and Hall had "personality clashes" which had no relation to drinking on duty. Prior to the evening in question he had never seen Hall under the influence of any alcohol while on duty. He acknowledged hearing that he should have gotten more than a one-day suspension because he was second in command and because he didn't turn Hall in. He acknowledged that he did not observe Hall having any trouble walking, driving or communicating on the night in question.
He is a lieutenant in the Oak Lawn Fire Department. In the late evening and early morning of December 23 and 24, 1975, he and Deputy Chief Harker went to 9609 Marion, and met with Captain Bulow. He then went down to the basement and saw Jerry Hall, apparently intoxicated, standing in six to eight inches of water and swaying back and forth. When he asked Hall what he was doing, Hall just looked at him. Hall later told Deputy Chief Harker and Chief Vogelsanger that he had not had anything to drink and refused to obey Harker's order to take a breathalizer test. Harker later ordered Hall to leave the station house, but Hall ...