Appeal from the Circuit Court of Cook County; the Hon. Arthur
L. Dunne, Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 30, 1983.
The Board of Fire and Police Commissioners of Elk Grove Village, Illinois, appeals from the circuit court's reversal of its order discharging plaintiff Lawrence Diamond from his position as a police officer of the village. The administrative complaint against plaintiff which was brought before the board contained extensive references to the results of two polygraph examinations which were taken by plaintiff during the course of the investigation of the charges that led to his dismissal, but no evidence concerning those examinations was received by the board during the hearings on the complaint. Before this court, the board contends that: (1) the trial court erred in reversing its order because the order was supported by other competent evidence and the polygraph results were not admitted into evidence before the board, and (2) the trial court erred in remanding the case for a new hearing before a specially constituted board of fire and police commissioners.
On August 17, 1981, the police chief of Elk Grove Village filed a complaint against plaintiff before the Village Board of Fire and Police Commissioners. The complaint alleged that on June 27, 1981, plaintiff was on patrol in a squad car when he observed a large number of cars near the home of John Coffman. He stopped to speak with the person who was parking the cars in a vacant lot and was informed that the cars belonged to guests at a party at the Coffman house. He went to the Coffman house, where he encountered John Coffman in the front yard.
While speaking with Coffman, plaintiff heard music coming from the backyard. Plaintiff asked Coffman if he had an amplifier permit for the loudspeaker system, and Coffman asked if one was necessary. Plaintiff stated that one was, and said that he could take care of it. Coffman took a $20 bill from his pocket and gave it to plaintiff, who placed the bill in his pocket. Plaintiff then went back to his squad car. He never gave Coffman a permit or processed an application for one. Elk Grove Village does not require a permit for music played on loud-speakers on private property.
During the investigation of the charges summarized above, the police chief ordered plaintiff to submit to a polygraph examination. The results of the tests and the remarks of the examiners were included in the chief's complaint to the board. The complaint states that plaintiff took his first polygraph examination on August 6, 1981, and that the examiner's report stated that plaintiff engaged in "purposeful acts of non-cooperation" during the test and that "it has been the experience of this laboratory that when a subject attempts to distort his polygraph records by purposeful non-cooperation, he does so to avoid detection regarding one or more of the issues under investigation." The complaint states that plaintiff was ordered to submit to an examination by a different examiner, and quotes the second examiner's report to the effect that when plaintiff was questioned regarding whether he had solicited or received $20 from Coffman and whether he had told Coffman that an amplifier permit was required, plaintiff answered in the negative. The report states that there were emotional responses "indicative of deception" during the test, and that the examiner was of the opinion that plaintiff solicited and received the $20 from Coffman. The full report was attached to the complaint as an exhibit.
At the hearings on the complaint, plaintiff objected to the introduction of any testimony referring to the polygraph examinations. The objection was sustained by the village attorney, who stated that "* * * it would be my feeling that there would be no weight given to such testimony and no value to it. Therefore, on that basis, I believe the Board should sustain that objection."
Coffman was the only occurrence witness testifying against plaintiff. His testimony paralleled the allegations of the complaint regarding his encounter with plaintiff. Plaintiff testified that he had not solicited the money from Coffman and that he received no money from Coffman.
On October 6, 1981, the board rendered its findings and decision discharging plaintiff from employment as a police officer. Those findings make no reference to the polygraph results.
On administrative review, the circuit court reversed the order of the board, holding that the inclusion of the information concerning the results of the polygraph examinations fatally tainted the board's decision. The court noted that the board, which was composed of laymen, was never admonished not to consider the results of the tests and that there was no indication that the results were not considered by the board in making its decision. The court also expressed the opinion that the order was otherwise not against the manifest weight of the evidence. The circuit court remanded the case for a new hearing before a specially constituted board of fire and police commissioners.
On appeal to this court, the board contends that: (1) its order should not have been reversed because plaintiff's objections to the introduction of the polygraph-related evidence were sustained and the order was not against the manifest weight of the evidence which was received, and (2) the circuit court has no authority to order the appointment of a special board of fire and police commissioners to hear this case on remand.
During the pendency of this appeal, our supreme court handed down its decision in Kaske v. City of Rockford (1983), 96 Ill.2d 298. In that consolidated case, the plaintiffs, Robert Collura, John Kaske, and Paul Triolo, were all police officers who were ordered to submit to polygraph examinations as part of investigations of their activities which were being conducted by their respective chiefs of police. Kaske and Triolo refused to undergo the examinations and filed an action for declaratory judgment and injunction which sought to restrain their police chief from requiring the examinations. The circuit court dismissed the action and the appellate court affirmed. Collura took a polygraph examination, and the results were admitted into evidence before the Board of Fire and Police Commissioners through the testimony of the polygraph examiner. The board ordered that Collura be discharged from employment as a police officer, and that order was affirmed by the circuit court and the appellate court. Both appellate court orders were issued pursuant to Supreme Court Rule 23 (87 Ill.2d R. 23).
On appeal to our supreme court, the court first noted that there has been a split among the districts of the appellate court concerning the admissibility of polygraph results in administrative proceedings. Such results have been held to be admissible in the First District (see Washington v. Civil Service Com. (1981), 98 Ill. App.3d 49, 423 N.E.2d 1136), while they have been held to be inadmissible in the Third (see Manias v. Peoria County Sheriff's Department Merit Com. (1982), 109 Ill. App.3d 700, 440 N.E.2d 1269; Sommer v. Goetze (1981), 102 Ill. App.3d 117, 429 N.E.2d 901), and Fourth (see McGowen v. City of Bloomington (1981), 99 Ill. App.3d 986, 426 N.E.2d 328) districts. The court then reviewed its prior holdings that polygraph evidence is inadmissible in criminal trials even though it is stipulated to (see People v. Baynes (1981), 88 Ill.2d 225, 244-45, 430 N.E.2d 1070), and that polygraph evidence is inadmissible in death sentencing hearings despite the relaxation of the rules of evidence in those proceedings. See People v. Szabo (1983), 94 Ill.2d 327, 362-63.
The court held that, as to Collura, it was reversible error to receive the polygraph results into evidence before the board, and, as to Kaske and Triolo, that a police officer may not be ordered to submit to a polygraph examination and the refusal to take such an examination can not be the ...