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O'boyle v. Personnel Board

OPINION FILED NOVEMBER 23, 1983.

WILLIAM J. O'BOYLE, PLAINTIFF-APPELLEE,

v.

PERSONNEL BOARD OF THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff-appellee, William O'Boyle, filed a complaint and a writ of certiorari *fn1 in the Cook County Circuit Court for review of an order of defendant-appellant, Personnel Board of the City of Chicago et al. (Personnel Board), finding him in violation of the city's residency ordinance and suspending him for 60 days from his duties as a lieutenant with the Chicago Fire Department. The circuit court reversed the decision of the Personnel Board, holding that there were inadequate findings of fact to support the suspension and that the record did not justify a finding of non-residency.

On appeal, the Personnel Board claims that its finding that plaintiff violated the residency ordinance was not against the manifest weight of the evidence. We agree.

We reverse the decision of the circuit court and affirm the decision of the Personnel Board.

FACTS

Plaintiff, a Chicago fire department lieutenant since 1977, was charged by the fire department with violating the city's residency ordinance, which requires that "[a]ll officers and employees in the classified career service of the city * * * shall be actual residents of the city." Municipal Code of Chicago, 1979, ch. 25, par. 25-30.

Prior to September 1979, employees of the fire department against whom evidence of non-residence was brought were given an undetermined period in which to comply with the ordinance by moving into the city. On August 15, 1979, the fire commissioner issued an order, stiffening the established policy:

"Effective September 1, 1979, any member found in violation of the residency requirement of the City of Chicago and the Chicago Fire Department will be suspended by the Commissioner for thirty (30) days and charges will be filed with the Personnel Board of the City of Chicago seeking said members discharge."

The charges, issued against plaintiff on October 25, 1979, stated that "on or about September 18, 1979, he [plaintiff] was not an actual resident of the City." The matter was heard before a board-appointed hearing officer on November 30, 1979. The hearing officer submitted a report of his findings and recommendations along with the transcript of proceedings of the hearing to the Personnel Board for a final decision. Included in the evidence before the Personnel Board was the following adduced testimony.

Plaintiff testified that he has been married to his wife, Annette, since 1965. In 1972, the couple, as joint tenants, purchased a home in Palos Hills, Illinois. Plaintiff admitted to residing there with his wife and two children from 1972 to 1975. On May 10, 1976, a year after plaintiff allegedly moved out of his Palos Hills home and filed for legal separation, due to his wife's refusal to move into the city, plaintiff's third child was born. Annette and the three children continued to reside in Palos Hills, where the children attended school, until November 16, 1979, when plaintiff and his family moved into their new home at 9015 South Hamilton in Chicago.

Annette O'Boyle testified that in September 1975, plaintiff asked her to move back into the city and that she refused to do so. Plaintiff filed for a legal separation, which Mrs. O'Boyle neither agreed to nor wanted. On September 21, 1976, a judgment was entered by the circuit court, permitting plaintiff to maintain a separate residence from his wife. The court did not, however, make any adjudication as to plaintiff's obligation for support because Annette had not filed a petition or complaint for separate maintenance or for support. Despite the absence of any such adjudication, plaintiff gave his wife approximately $700 to $750 each month, thereby providing the sole means of maintaining the Palos Hills home throughout the entire "separation" period. Mrs. O'Boyle testified that plaintiff gave her money "whatever-whenever" she needed it.

Plaintiff testified that, upon leaving the Palos Hills home, he moved in with his parents at 7949 South Richmond in Chicago. Plaintiff's father, Wilbert O'Boyle, testified that his son came to live with him in September 1975 because he "wanted a place to live in Chicago." Mr. O'Boyle stated that plaintiff brought only his clothes when he moved in. When asked whether plaintiff visited his wife and children in Palos Hills during this period, Mr. O'Boyle stated that "all the time he [plaintiff] lived with me he would go out there to see them," on an average of once a week. Mr. O'Boyle testified that plaintiff stayed overnight on these occasions.

Plaintiff testified that in July 1978, he was summoned by Captain James Ryan, director of internal affairs of the Chicago fire department. According to Captain Ryan, he met with plaintiff to inform him of the numerous residency complaints that had been lodged against him and to discuss his residency status. Plaintiff informed Captain Ryan that he had been seeing his family five or six times a month. When Captain Ryan admonished that the city requirements only permitted such visits twice a year, plaintiff declared that he was "going to see [his] kids." He stated, "If I can see my kids seven days a week, I'm going to try to see them as much as I could." Ryan informed plaintiff that if he wanted to continue to see his wife, she would have to move into the city, and he would have to sell the Palos Hills property. Ryan warned him that he could not have "dual residencies."

Plaintiff informed the hearing officer that in September 1977, he and his father purchased a building at 2535 West 59th Street in Chicago and that he moved into this building in July 1978. He maintained a second-floor, one-bedroom apartment in the building until he moved with his family into their new home in November 1979.

Captain Ryan testified that during 1978 and 1979, he received numerous complaints concerning plaintiff's residency status. In March and April of 1979, Ryan received between 10 and 15 complaints from the mayor's office, the office of professional review and the fire commissioner's office. By September 1979, Captain Ryan had received from 25 to 35 complaints about plaintiff's residency. An investigation of plaintiff's residence status ensued.

Donald McGreal, an investigator with the internal affairs division of the Chicago fire department, conducted a surveillance of the Palos Hills Home. McGreal testified that he observed plaintiff exiting the Palos Hills residence at approximately 5:45 a.m. on four separate occasions, and at approximately ...


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