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Jenkins v. Univ. Civil Service Merit Bd.

OPINION FILED MAY 4, 1982.

GARY R. JENKINS, PLAINTIFF-APPELLEE,

v.

UNIVERSITIES CIVIL SERVICE MERIT BOARD OF THE STATE UNIVERSITIES CIVIL SERVICE SYSTEM ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Madison County; the Hon. PHILIP T. RARICK, Judge, presiding.

PRESIDING JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Defendants, the Board of Trustees of Southern Illinois University (Trustees) and the Universities Civil Service Merit Board (Merit Board), appeal from the judgment of the circuit court of Madison County reversing the Merit Board's decision to discharge plaintiff, Gary R. Jenkins, from the University Police Department. The issue raised on appeal is whether the trial court erred in holding that the findings and decision of the Merit Board were contrary to the manifest weight of the evidence.

On May 10, 1979, plaintiff was suspended, pending discharge, on charges of (1) drinking intoxicants in a State vehicle while on duty enroute to the Police Academy, (2) threatening a fellow officer with a handgun while under the influence, (3) conduct unbecoming of an officer in using abusive language toward a fellow officer, (4) violating a department policy by removing a handgun from its holster without just cause, (5) refusing to cooperate during an investigation of the University Police Department, and (6) conspiring with a fellow officer not to report an incident under investigation. A hearing was held and on February 19, 1980, the Merit Board found that the evidence supported the charges and established just cause for discharge. On administrative review of the Merit Board's decision, the circuit court of Madison County reversed, finding that the decision was against the manifest weight of the evidence.

Before addressing the issues raised by defendants on appeal, it is necessary to address plaintiff's arguments that the charges against him were insufficiently drawn, and that defendants are estopped from bringing charges (1) and (4).

• 1, 2 While charges in an administrative proceeding must be specific enough to allow the accused to prepare a defense, the charges need not be drawn with the same refinements and subtleties as a pleading in court. (Greco v. State Police Merit Board (1969), 105 Ill. App.2d 186, 245 N.E.2d 99.) In Greco, the complaint alleged that the plaintiff had violated a number of rules and regulations, but did not contain specific descriptions of the alleged misconduct, such as dates, places, times and names of individuals affected thereby. The complaint was found to be insufficient. Here, the charges specify the impropriety of which defendant is accused (e.g., drinking enroute to the Academy, threatening an officer with a firearm), the dates of the alleged occurrences, and other descriptive details to put defendant on notice of the alleged misconduct. Accordingly, the charges are drawn with sufficient clarity.

Plaintiff further alleges that defendants are estopped from claiming the right to discharge plaintiff based on charges (1) and (4) because plaintiff has been previously disciplined for the conduct alleged in charge (1); and the charges in (4), if proven, would constitute a safety violation, justifying suspension, but not discharge.

• 3 Charge (1) alleges that plaintiff drank intoxicants in a State vehicle while on duty enroute to the Police Academy. Former acting chief of police, Tom Lefflar, confronted plaintiff with regard to this incident, and plaintiff admitted he was guilty of drinking enroute to the Academy. Lefflar then informed plaintiff that it was not a very smart thing to do. No further action was taken. Such "oral reprimand" does not rise to the level of discipline, especially in light of substantial testimony that Lefflar and plaintiff are close friends. Accordingly, when the Trustee defendants were later made aware of plaintiff's conduct, no injustice resulted in asserting such conduct in the written charges against plaintiff. Plaintiff's estoppel argument as to charge (1) is thus without merit.

• 4 The same result is required with regard to charge (4). Plaintiff was charged with violating a department regulation by removing his handgun from its holster without just cause. Plaintiff argues that because the regulation states that it is "to set standards regulating the use and safety of handguns * * *" that it is necessarily a safety regulation for which the appropriate sanction is suspension. The regulation deals with a matter of gravest concern, proper handling of a firearm by a police officer. While not requiring that discharge be imposed for violation of the regulation, we find that such a sanction may be imposed by the Merit Board in appropriate circumstances.

• 5 Plaintiff asserts that defendants are, nevertheless, estopped from asserting charge (4) as a grounds for discharge because plaintiff was disciplined for violation of the regulation when given a 30-day suspension on January 5, 1979. However, the testimony establishes that plaintiff agreed that his suspension be held in abeyance pending reinvestigation of the incident. The reinvestigation brought out additional evidence unfavorable to plaintiff, and the Trustee defendants initiated discharge proceedings against plaintiff. Plaintiff cannot now be heard to say that the defendants are estopped from using plaintiff's misuse of a firearm as a ground for discharge, when he agreed that the incident could be reinvestigated and his suspension terminated.

Defendants first contend that the trial court erred in holding that the findings and decision of the Merit Board were against the manifest weight of the evidence. The Merit Board found against plaintiff on each of the six charges.

• 6 The Administrative Review Act provides that "[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct." (Ill. Rev. Stat. 1979, ch. 110, par. 274.) A reviewing court's inquiry is limited to deciding whether there is evidence fairly tending to support the agency's findings, or whether a contrary result is clearly evident. Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill. App.3d 864, 278 N.E.2d 212.

Regarding charge (1), there is testimony that plaintiff admitted to having consumed intoxicants in a State vehicle enroute to the Police Academy. Further, the officer who accompanied plaintiff to the Academy testified that plaintiff was drinking. The plaintiff and defendants are in disagreement as to whether plaintiff was "on duty" or "off duty" at the time. In Davenport, the court stated, "It has long been settled in our state that there is no distinction between `off duty' and `on duty' misconduct by a police officer. Should a police officer engage in misconduct which is detrimental to the service it would be absurd to say that he is clothed with a cloak of immunity if such misconduct occurred during `off duty' hours." (Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill. App.3d 864, 870, 278 N.E.2d 212, 216.) Drinking in a State vehicle while enroute to the Police Academy could result in the loss of public confidence in the police, thereby causing detriment to the service. The record discloses that plaintiff was drinking enroute to the Academy. Even assuming plaintiff was off duty at the time, a decision exonerating him of the misconduct alleged in charge (1) is not clearly required. Accordingly, the trial court erred in holding the Merit Board's decision was against the manifest weight of the evidence.

In charge (2), plaintiff is accused of threatening a fellow officer with a drawn weapon while under the influence of intoxicants. The officer, Steve Clemons, testified that plaintiff's car had been stopped for speeding by Officer Marvin Strode; and when Clemons arrived at the scene, he jokingly remarked, "Boy, you're in a heap of trouble." Plaintiff answered Clemons by pulling his handgun, pointing it at Clemons and saying, "No, boy, you're in a heap of trouble." Marvin Strode, the officer who initially stopped plaintiff, testified that plaintiff pulled his gun and pointed it at Clemons. Even plaintiff admitted removing his revolver from its holster, although he denies having pointed it at Clemons. Plaintiff also testified that he had been drinking that evening, was drinking while driving, and believed he had four to six drinks that evening. In light of the foregoing, the Merit Board's decision that plaintiff threatened a fellow officer with a handgun while under the influence of intoxicants is not against the manifest weight of the evidence. The trial court erred in so holding.

Regarding charge (3) that plaintiff engaged in conduct unbecoming an officer in using abusive language in public toward a fellow officer, plaintiff admits that he used the word "nigger" in referring to a fellow officer. Plaintiff argues, however, that it was not in public, nor abusive, because it occurred among a small group of men who are used to relating to one another in such a manner. However, two officers, who are black, testified that they did find the language to be abusive, but that they did not register their objections because they believed plaintiff to be close friends with the then acting chief of police, Tom Lefflar. Thus, the evidence is sufficient to find plaintiff guilty of conduct unbecoming ...


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