APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
B. ENGELSTEIN, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
On January 18, 1973, the plaintiff, William D. Crowell, was discharged by the Chicago Police Board from his position as a patrolman for the Chicago Police Department. The dismissal was affirmed by the Circuit Court of Cook County on July 17, 1973, and by this court on September 18, 1975. Crowell v. Police Board (1975), 32 Ill. App.3d 552, 336 N.E.2d 573.
On March 10, 1977, Crowell filed a petition to vacate the order of the circuit court affirming his dismissal pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72). On July 21, 1977, the circuit court vacated the order and ordered Crowell reinstated as a member of the Chicago Police Department with full pay and allowances from the date of his suspension in 1972. The defendants filed a motion to reconsider the order, which was denied. It is from this order that the defendants appeal.
The plaintiff was found guilty of violating Rule 2 of the Chicago Police Department which prohibits "any action or conduct which impedes the Department's efforts to achieve its goals, or brings discredit upon the Department." The police board found that during the course of a departmental investigation into a complaint against the plaintiff by William K. Neal alleging solicitation of a bribe, Crowell attempted to obstruct the investigation by contacting Neal and attempting to persuade him not to cooperate with the investigation. The board determined that such conduct impeded the department's goal of maintaining honesty and integrity within the department.
The hearing on the charges was conducted by Garland W. Watt, hearing officer of the police board. The findings and decision of the board were signed by all five members of the board, one of whom was Morgan F. Murphy.
One of Crowell's superior officers, Deputy Chief William Murphy, was designated a possible witness at the hearing. William Murphy is the nephew of board member Morgan F. Murphy. Although William Murphy did not appear as a witness, there were several references to him by name during the hearing. Neal testified that he received a telephone call from William Murphy concerning his complaint against the plaintiff, and Crowell's attorney cross-examined Neal concerning this conversation. In addition, a copy of a statement made by Neal to Sergeant William Hines of the police department was presented as an exhibit at the hearing. This statement contained several references to Neal's conversation with William Murphy.
In his section 72 petition, the plaintiff alleged that William Murphy was "the chief moving force as regards the development of the charges" against him. He also made serious allegations concerning William Murphy's interest in his dismissal. Crowell asserted that because he refused to act as a confidential informant concerning corruption within the police department, Murphy attempted to transfer him and instigated unfair disciplinary action against him. In regard to the investigation concerning Neal's allegations, the plaintiff alleged that Murphy informed him:
"I have undertaken my own investigation and determined that you are guilty as charged in the complaint against you. I have requested that Deputy Superintendent Rochford allow me to conduct my own investigation but I have been ordered to turn it over to the I.A.D. [Internal Affairs Division]. I do not intend to let matters lie with the I.A.D. and will give this matter my personal attention."
Crowell's petition also stated that Illinois Supreme Court Rule 67 (Ill. Rev. Stat. 1975, ch. 110A, par. 67) provides that a judge shall disqualify himself in any case in which a close relative, including a nephew, is a party, has an interest, or appears as counsel. He claimed that in Mank v. Board of Fire & Police Commissioners (1972), 7 Ill. App.3d 478, 288 N.E.2d 49, this court held that this rule was applicable to members of a police board. In addition he asserted that he was unaware of the relationship between Morgan Murphy and William Murphy until approximately December 15, 1976.
The trial court denied the defendants' oral motion to dismiss the section 72 petition on the grounds that it was not timely filed. In granting Crowell's petition to vacate the judgment, it made the following findings of fact:
"1. That in 1972, the plaintiff's superior officer, responsible for instituting disciplinary action against him, was Deputy Chief William Murphy.
2. That in 1972, Deputy Chief William Murphy was instrumental in bringing Charges against the Plaintiff before the Chicago Police Board and was actively engaged in the investigation of and prosecution of said charges.
3. That Deputy Chief William Murphy's Uncle Morgan Murphy was a member of the Chicago Police Board which heard said charges and deliberated on the same and entered its decision dismissing Plaintiff ...