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

OPINION FILED AUGUST 13, 1980.

MICHAEL GREEN, PLAINTIFF-APPELLANT,

v.

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



APPEAL from the Circuit Court of Rock Island County; the Hon. WILBUR S. JOHNSON, Judge, presiding.

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

Plaintiff Michael Green appeals from an order of the Circuit Court of Rock Island County affirming an order of discharge by the Board of Fire and Police Commissioners of the City of Rock Island (hereinafter Board). Plaintiff Green, a police officer for the city of Rock Island, was discharged following a hearing before the Board pursuant to section 10-2.1-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 10-2.1-17). Officer Green filed a complaint for administrative review in the circuit court against the Board, Ronald Hansen, chief of police, and the city of Rock Island. The circuit court affirmed, in its entirety, the decision of the Board to discharge Officer Green from his duties as a police officer. The issues, as framed by plaintiff Green, are (1) whether the Board erred in concluding that a personal animosity against Officer Green on the part of Chief Hansen was not a relevant factor in Hansen's decision to seek dismissal charges against Green, and (2) whether there was insubstantial evidence to support the Board's finding that Chief Hansen's suspension of Officer Green for the sleeping incident was a suspension "pending discharge" for that misconduct.

The record establishes that Chief Hansen filed formal charges against Officer Green on November 20, 1978, seeking his discharge from duty with the police department. Amended charges were filed in December 1978. Count I of the charges alleged that Officer Green was tardy for a scheduled court date. Count 2 alleged that Officer Green had engaged in destructive criticism of a fellow officer, contrary to departmental regulation. Count 3 alleged that Officer Green used profanity in circumstances contrary to departmental regulations. Count 4 alleged that Officer Green had not followed proper procedure when calling in sick. Counts 5 and 6, the principal focus on this appeal, alleged that Green neglected his duties by sleeping while on duty and that he failed to report to a superior officer after being so ordered during that same sleeping incident. Count 7 alleged that the cumulative effect of the actions set forth in counts 1 through 6 also formed a basis for discharge, in that they brought the department into disrepute and constituted conduct unbecoming an officer, such that Green's continued employment was detrimental to the discipline and efficiency of the public service.

Hearings on the complaint for discharge were held before the Board. At the conclusion of the hearings, the Board entered its order of discharge based solely upon the charges brought in counts 5 and 6 of the complaint. The basis for those two counts, and, therefore, the subsequent discharge, are incidents occurring on November 16-17, 1978. The findings of the Board, which are not disputed, are set forth below:

"5. Amended charges 5 and 6 relate to an incident occurring on November 16, 1978, and in connection with the evidence relating to that incident, the Board finds as follows:

a. Respondent did on November 16, 1978, remove his squad car from the public way and park it in a private driveway, among commercial buildings, at about 0130 hours where Respondent went to sleep. At about 0300 or 0330 hours the Police Radio Dispatcher at the Rock Island Police Department contacted Respondent by radio at which time Respondent was ordered to return to the Police Station. Respondent, contrary to that order, did not return to the Police Station until shortly after 0400. Respondent does not recall the radio transmission, but acknowledges that it could have been made; Respondent acknowledges that he did sleep on duty at the location described above without reporting his location to the Police Station.

b. Respondent's last contact with the Radio Dispatcher of the Rock Island Police Department, before going to sleep, was while checking Lincoln Park in his area of responsibility; by reason of having gone to sleep and failing to answer radio calls to him, Respondent caused other Police personnel to divert their efforts and attention from their regular and normal duties and assignments, required Station personnel to take time away from their investigation and work relating to their normal duties and to a fatality automobile accident, caused other Police Officer to be diverted from their areas of assignment to locate Respondent, and did cause the Rock Island Police Department to request the assistance of the Illinois State Police Radio Network in attempting to locate Respondent.

c. Respondent's conduct on the date of the incident deprived the City of Rock Island, and its citizens, of Police protection in Respondent's area of responsibility and did divert Police protection from other areas of the City.

d. The conduct of sleeping while on duty is not permissible. Departmental regulations forbade sleeping on duty and the consequences of sleeping on duty was the subject of roll call announcements, all of which Respondent knew or had reason to know before November 16, 1978.

e. Respondent's conduct of November 16, 1978, is cause for discharge in that it constitutes a substantial shortcoming, rendering the officer's continued employment a detriment to the discipline and efficiency of the Service and in law and sound public opinion is not conducive to Respondent's continuing to hold the position of Police Officer in the City of Rock Island."

The record contains ample evidence to support the findings with respect to Officer Green's conduct on the night of November 16, 1978. The record also establishes that as a result of his conduct while on duty that night, Officer Green received an emergency suspension from duty by the superior officer on duty during his shift. The following day, November 17, 1978, a notice from Chief Hansen informed Green that he was being suspended from his duties for a period of five days for his conduct in neglecting his duty and disobeying an order. The notice also informed Green that the chief intended to file, during the period of suspension, charges with the Board requesting his discharge.

The Board made other findings with respect to the other charges, upon which evidence had been taken. The Board found that charges 1, 2 and 4 pertained to separate incidents which had already been the subject of previous discipline and therefore inappropriate for the Board's consideration, and outside its jurisdiction, except as matters in aggravation. Similarly, charge 7, based upon the cumulative effect of the other charges, was not considered in the Board basis for discharge findings, but only as a factor in aggravation. Charge 3 was found to be inappropriate for consideration at all in the decision and it was dismissed by the Board. Thus, it is perfectly clear that the Board based its discharge of Officer Green upon his misconduct as alleged and found under charges 5 and 6 of the complaint.

• 1 The standards for appellate review over administrative decisions in this area are well established. We reviewed them at length in our opinion in Mihalopoulos v. Board of Fire & Police Commissioners (1978), 60 Ill. App.3d 590, 594-98, 376 N.E.2d 1105. We noted an appellate court's proper function in such review proceedings, quoting from DeGrazio v. Civil Service Com. (1964), 31 Ill.2d 482, 489, 202 N.E.2d 522:

"`On administrative review the court does not weigh the evidence and its function is limited to ascertaining if the findings and decision of the administrative agency are against the manifest weight of the evidence. In this type of proceeding involving the removal of a police officer, it is the function of the court to decide if the charges preferred against the officer are not so trivial as to be unreasonable or arbitrary, if the Commission acted on evidence that fairly tended to sustain the charges, and if its decision is related to the ...


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