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Van Winkle v. Dep't of Law Enforcement

OPINION FILED JUNE 13, 1983.

DALE E. VAN WINKLE, PETITIONER-APPELLEE,

v.

THE DEPARTMENT OF LAW ENFORCEMENT ET AL., RESPONDENTS-APPELLANTS.



Appeal from the Circuit Court of Sangamon County; the Hon. Richard J. Cadagin, Judge, presiding.

PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 8, 1983.

Petitioner Van Winkle, a State trooper, was given a disciplinary suspension of 12 days by the Superintendent of the State Police for violation of certain rules and regulations of that organization regarding secondary employment. He petitioned the Department of Law Enforcement Merit Board (Merit Board) for review of that decision. A hearing officer for that board conducted an evidentiary proceeding, following which he was issued findings of fact and conclusions of law which essentially affirmed the superintendent's action. The Merit Board adopted the hearing officer's report. Van Winkle then obtained from the circuit court of Sangamon County a common law writ of certiorari to review the Merit Board's decision. That court, by docket entry, found the decision to be arbitrary and capricious and reversed. The Department of Law Enforcement appeals.

It appears that for several years prior to the case at bar, at least as far back as 1971, the Department of Law Enforcement, Division of State Police (Department), had regulations governing secondary employment of State police officers. Such employment was not prohibited, but prior approval of the appropriate officials of the Department was required. These regulations, as issued and superseded from time to time, contained restrictions. The latest ones, dated October 1, 1978, and designated in the record as "PER 4," are at issue here. PER 4, like its predecessors, required prior approval of secondary employment and contained the following as paragraph 4-5:

"NON-ACCEPTABLE SECONDARY EMPLOYMENT

Officers will not engage in secondary employment which is in violation of Department rules, or which:

(a) If performed would create an appearance of impropriety or reflect unfavorably upon the officer or the Department.

(b) Would involve the employee in a conflict of interest

(c) Would require collecting obligatory, delinquent or arrearage accounts of any kind.

(d) Would involve employment in a tavern or other establishment where the primary business is the sale of liquor.

(e) Because of exhaustive physical or mental activity, would impair employee efficiency or capability to carry out official assignment of duties.

(f) Would involve any activity in connection with bail bond agencies.

(g) Would involve operation of any motor carrier which would make the employee unavailable during emergency situations."

The stipulated facts and the evidence before the hearing officer reveal that Van Winkle in 1972 received approval for "Ownership of Standard Bred Horses for Racing purposes at non-wagering County and State Fairs." The approval was renewed in 1973. In 1974 it was rescinded for reasons not pertinent here. In 1975 approval was given for "Owner-trainer-driver of standard bred race horses." This included "fairs as well as parimutuel tracks." From ...


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