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Murbach v. Anderson

OPINION FILED MAY 18, 1981.

ROBERT MURBACH, PLAINTIFF-APPELLEE,

v.

DAVID ANDERSON ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 22, 1981.

Robert Murbach (plaintiff) sought a position as fireman in the village of Schiller Park, Illinois. The Board of Police and Fire Commissioners of the village (defendants) refused to appoint him. After administrative review, the trial court ordered defendants forthwith to appoint and certify plaintiff to the position. Defendants appeal. For brevity we will not detail the commencement of this litigation in which plaintiff first sought a change in his position on the village eligibility list. We will simply consider the matter from the point of view of the administrative review hearing and the result.

On December 28, 1978, plaintiff filed his application for appointment as fireman. At that time he was employed by the village as a paramedic. In the application plaintiff answered questions as follows:

"Do you use alcohol? No If so, to what extent? Frequently ____ Moderately ____ Occasionally ____. Any drugs: No Narcotics No."

Thereafter plaintiff appeared before the defendants for an oral test. The record contains oral test rating sheets filled in by each of the defendants. The sheets contain boxes for check marks to indicate rating of the applicant as excellent, passable, fair, or poor. These ratings pertain to subjects such as "Appearance," "Manner," "Emotions," etc. In all, each defendant graded plaintiff on 20 varying subjects. One subject, under the heading "Perception," includes "Drugs, alcohol, sex and morals." All defendants rated plaintiff "Passable" on this topic. In all of the remaining situations all of the defendants rated plaintiff in the group marked "passable." However, each defendant rated plaintiff, "Excellent" as regards "Physique" and thoughts on more schooling. The oral statements plaintiff made to the defendants in this test are not before us. Plaintiff was also interviewed by the village fire department and passed his physical examination.

On December 14, 1979, almost one year later, plaintiff, at request of defendants, appeared for a professionally administered polygraph test. Plaintiff filled in a lengthy questionnaire and submitted to a lie detector test. The questionnaire reflects written responses by plaintiff to a series of questions including past employment, personal history, etc. Concerning the area "Medical and Social History" the question is asked, "Have you ever taken any of the following without advice of a doctor? If yes, please check." Ten various drugs are then listed with a small box after each name. Plaintiff struck out all of the listings except he placed an "X" in the boxes after cocaine, marijuana, and hashish.

On December 14, 1979, an official report of the polygraph examination was sent to defendants. The examiner described five categories in which plaintiff's answers were described as truthful. The following two paragraphs are:

"(6) Denied using marijuana more than ten times in the last year. (TRUTHFUL) The subject said he has smoked marijuana about ten times in the last year. The last time he smoked marijuana was six months ago.

(7) Denied using narcotics or dangerous drugs illegally more than two times in the last year. (INDEFINITE) The subject said he has used cocaine two times in the last year. The last time the subject used cocaine was five to six months ago."

The letter closed with a statement that when the plaintiff was advised of the results of his examination he stated "he was thinking about the drugs he administers to people in his job as a Paramedic." The letter also stated, "An analysis of this subject's Reid Report indicates his attitude is ACCEPTABLE."

On January 4, 1980, defendants wrote plaintiff a letter which "disqualified" him for appointment. The letter advised plaintiff's sworn application stated he did "not use any drugs nor narcotics." Plaintiff's oral interview reaffirmed this. On the contrary, plaintiff's statement to the polygraph examiner admitted plaintiff "took cocaine, marijuana and hashish."

On April 15, 1980, after a hearing by the defendants, defendants wrote plaintiff a letter in which denial of his appointment was reaffirmed. The defendants stated the answers given by plaintiff concerning use of controlled substances were "misstatements and in fact, falsehoods" and no evidence was presented by plaintiff to "controvert or mitigate" these matters. The letter stated a person who uses "such substances" should not be placed in a "position of responsibility" with the village fire department.

In this court, defendants urge their decision was not contrary to the manifest weight of the evidence, but the record clearly supports the making of false statements of material fact by plaintiff and his disqualification. Defendants also urge the trial court had no authority to certify plaintiff as a fireman. Plaintiff responds there is no ...


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