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Mcgowen v. City of Bloomington

OPINION FILED SEPTEMBER 9, 1981.

ROBERT MCGOWEN, PLAINTIFF-APPELLEE,

v.

THE CITY OF BLOOMINGTON ET AL., DEFENDANTS-APPELLANTS. — (BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF BLOOMINGTON ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of McLean County; the Hon. JAMES A. KNECHT, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Defendants appeal from an order of the circuit court of McLean County sitting in administrative review (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) which reversed an order of the Board of Fire and Police Commissioners of the City of Bloomington (Board). The Board's order discharged plaintiff from his position as a police officer for the city.

The principal issue on appeal concerns the use of polygraph examinations and the results thereof in administrative hearings.

The facts giving rise to the litigation are these. Shortly before 6 a.m. on May 5, 1979, a burglary was discovered at a restaurant at the Bloomington-Normal airport. Evidence before the Board established that plaintiff had been in the area about 5 a.m. on the same date on routine patrol. Two other officers, Rouse and Aikin, arrived at about 5:15 a.m., also on routine inspection, and observed plaintiff's squad car parked near the scene of the break-in. One of them testified that at that time he saw nothing amiss with the door, which was later found to have been forced open by breaking the dead bolt on it. None of the three officers present in the area at the time observed one another. Rouse and Aikin returned to the stationhouse to run a license check on another automobile which they observed in the airport parking lot next to plaintiff's squad car.

All three officers, plaintiff, Rouse, and Aikin, were present in the stationhouse when the burglary was reported at about 6 a.m., and Rouse and Aikin were detailed to the scene. Plaintiff, who was not detailed, also went back to the airport and discussed the crime with the restaurant owner. He also examined the restaurant office where an unsuccessful attempt had been made to open a safe, took some measurements, and left before the end of his shift at 7 a.m. A detective, requested by Rouse and Aikin, arrived between 7:10 and 7:15 a.m.

Rouse and Aikin became suspicious of plaintiff and reported their suspicions to Harold Bosshardt, Bloomington police chief and defendant herein. After some investigation, the chief, who became concerned about rumors of a police officer being involved in the burglary, requested Rouse, Aikin, and plaintiff to submit to polygraph examinations. He testified before the Board that he hoped by means of the polygraph to disprove the rumors. These first examinations were conducted by Robert Abson, later deceased.

Nothing further appears in the record concerning the examinations of Rouse and Aikin and it may therefore be assumed that the chief was satisfied with those results. However, he ordered plaintiff to be re-examined by Abson and later by Harry Lockhard, another polygraph operator of Champaign, Illinois. Subsequently, Bosshardt ordered plaintiff, Rouse, and Aikin to submit written reports to him concerning the incident and to answer specific questions posed by him.

Bosshardt informed plaintiff that he had become "disenchanted" with the results of plaintiff's polygraph examinations and requested plaintiff's resignation. Upon plaintiff's refusal, the chief then filed charges against him of neglect of duty and inefficiency, and alternatively, failure to report a burglary and making a false report concerning the burglary. The Board suspended plaintiff pending a hearing.

After a continuance, the Board held a hearing on November 16, 1979. Various witnesses, including Rouse, Aikin, Bosshardt and plaintiff, as well as persons connected with the restaurant and the airport, testified. The Board also heard evidence concerning the polygraph examinations. The parties stipulated as to the qualifications of the examiners and the proper conduct of the examinations. However, plaintiff's counsel objected to the results of the tests on the basis of reliability. Ruling on the objection was reserved.

Abson himself was dead at the time of the hearing, but his first report showed that he believed that plaintiff was not being truthful at his first examination. His report of the second examination indicated that he believed that plaintiff was deliberately distorting the polygraph and that it had been his experience that when one distorts in such a manner, he is doing so to avoid detection.

Lockhard testified that he had tested plaintiff, and, in his opinion, plaintiff was not being truthful.

On December 3, 1979, the Board issued its order disposing of pending motions, making findings of fact, and directing the dismissal of plaintiff. The order overruled plaintiff's objection to the polygraph results together with his motion to exclude them and stated inter alia:

"* * * With the admission of the test results, the Board is satisfied that the charges are substantiated by a clear preponderance of the evidence. Without the admission of the test results, the Board is satisfied that the charges are not substantiated by a clear preponderance of the evidence. * * *"

Plaintiff timely moved the Board to reconsider and to reopen for additional evidence. The motion was allowed and at a supplemental hearing held February 25, 1980, evidence was received from three additional polygraph examiners, Jenkins, Floyd, and Bowers. While the record is less than absolutely clear on the point, there is a prima ...


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