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

OPINION FILED APRIL 30, 1979.

DANIEL D. KUPKOWSKI, PLAINTIFF-APPELLANT,

v.

THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF DOWNERS GROVE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Du Page County; the Hon. JOHN J. BOWMAN, Judge, presiding.

MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

This case involves the firing of plaintiff, Daniel Kupkowski, from his position as a police officer of the Village of Downers Grove. The Board of Fire and Police Commissioners of the village discharged Kupkowski on the basis of five findings reached after a hearing. Kupkowski filed suit under the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.), to seek review of the decision of the Board. The trial court found that two of the board's findings were supported by substantial evidence and were therefore valid but that three of the board's findings were contrary to the manifest weight of the evidence. The matter was remanded to the board for reconsideration of whether Kupkowski should be discharged on the basis of the two violations which had been sustained. On remand the board reaffirmed its earlier order of discharge and the trial court refused to further review the decision. Kupkowski appeals and the board cross-appeals.

On the night of November 18-19, 1976, Kupkowski was on patrol in a squad car. While driving on the private property of Schaub Magnatrol Corporation he accidentally drove 10 to 12 feet up on a grassy embankment and hit a retaining wall made up of two railroad ties. After the collision Kupkowski reversed his auto, backed it down off the embankment and waited approximately one minute to monitor its operation. He then left the scene and drove back onto a public street. A few minutes later the squad car stalled and its radio and electrical systems became inoperative. Kupkowski used his portable radio to call for assistance, stating that the car had suffered an electrical system failure. Within five minutes his immediate superior, Officer David Rechenmacher, arrived at the scene. Rechenmacher repeatedly asked Kupkowski whether he had hit anything and Kupkowski denied that he had. Rechenmacher then traced the trial of antifreeze that had leaked from the punctured radiator of Kupkowski's car to the scene of the accident. At that point Kupkowski admitted that he had indeed had an accident.

Kupkowski's squad car had been extensively damaged. The frame was bent and the left front fender strut was broken, the hood cable was snapped and the radiator had been pushed back into and perforated by the fan. The total cost to the village of repairing the squad car was over $800. The upper railroad tie of the retaining wall had been knocked 2-3 feet out of position. There had been no significant damage to the tie itself or to the embankment. Subsequently Kupkowski, while admitting the accident, denied both orally to the chief of police and in writing that he had knowledge that either the retaining wall or his squad car had been substantially damaged.

On December 30, 1976, the Downers Grove chief of police filed four charges against the defendant. On February 15, 1977, the board began a hearing on the charges, at which Kupkowski, through counsel, had the opportunity to cross-examine all witnesses against him. At the conclusion of the case against Kupkowski his counsel requested that the hearing be recessed in order to permit him to prepare a defense on "questions that I did not directly anticipate." The board permitted Kupkowski's counsel an additional two days to prepare his defense. On February 17, 1977, the hearing reconvened and evidence in defense of Kupkowski was heard. On March 8, 1977, the board found Kupkowski guilty of committing five violations of the board's rules and regulations:

"16(a) Conduct prejudicial to good order and discipline, in that respondent, having been involved in a collision with squad 119, denied to his superior officer three times that any collision had occurred, knowing said statements to be false.

16(b) Conduct prejudicial to good order and discipline, in that respondent knew at or about the time of said collision that squad 119 had been substantially damaged, but denied to his superior officer, denied to the Chief of Police of the Village and has in the course of this hearing denied under oath to the Board, that he knew of said damage at or about the time of the collision and prior to inspection of the vehicle on Belmont Road approximately 5 to 10 minutes thereafter.

16(c) Neglect of duty, in that respondent failed to report property damage to squad 119, in violation of Section 11d of the Standard Operating Procedures of the Village.

16(d) Neglect of duty, in that respondent moved squad 119 after being involved in said collision and without authorization to do so from the officer writing the accident report, in violation of Section 11b of the Standard Operating Procedures of the Village.

16(e) Violation of an applicable criminal law, in that respondent, having been involved in a collision resulting in damage to other property, failed to remain at the scene of said accident until providing his name, address and registration number of the vehicle he was driving or attaching securely in a conspicuous place on the property struck, written notice thereof, in violation of the applicable statute."

As the defendant points out, four of the findings relate to the counts against the defendant but the defendant was not charged with the violation resulting in finding 16(b).

Counsel for Kupkowski attached an affidavit to his reply brief to the trial court, denying that he "actually knew" he was defending a fifth charge. The board successfully moved to strike the affidavit.

The trial court then affirmed findings 16(a) and (b) but held findings 16(c), (d) and (e) to be invalid. Kupkowski appeals from the trial court's affirmation of findings 16(a) and (b) as an adequate basis for his discharge. He also appeals from the order striking the affidavit. The board cross-appeals the invalidation of findings 16(c), (d) and (e).

Kupkowski contends that: (1) with regard to finding 16(b), he did not receive notice of the charges in accordance with various constitutional, statutory and administrative protections relating to notice; (2) the trial court erred in striking the affidavit of his counsel with regard to whether he had actual knowledge of the violations found in finding 16(b); (3) the valid findings of the board do not ...


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