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Washington v. Civil Service Com.

OPINION FILED DECEMBER 22, 1983.

JOHN WASHINGTON, PLAINTIFF-APPELLANT,

v.

CIVIL SERVICE COMMISSION OF THE CITY OF EVANSTON ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 25, 1984.

Plaintiff, John Washington, was a police officer for the city of Evanston when this action was instituted. He appeals from the decision of the circuit court which set aside an Evanston Civil Service Commission (the Commission) decision suspending him for 120 days following a hearing on a three-count complaint. The judgment of the circuit court directed his discharge from the police force.

The issues on appeal are (1) whether the circuit court could properly entertain the cross-complaint filed by the city more than 35 days after the issuance of the Commission's decision; (2) whether the admission of the polygraph evidence was improper; (3) whether the police chief could properly order plaintiff to submit to blood and saliva tests; and (4) whether the circuit court acted improperly in reversing the Commission's findings and imposing a harsher sanction.

We reverse.

On February 6, 1981, three days of hearings began before the Commission hearing officer on charges brought against plaintiff by the chief of police of the Evanston Police Department. The charges consisted of three counts and sought discharge of plaintiff from his position as a police officer for the city.

Count I of the complaint alleged that plaintiff, through the use of threats and intimidation, coerced a female to engage in sexual intercourse with him following her arrest for a traffic violation. Count II alleged that plaintiff engaged a female motorist in a sexually suggestive and improper conversation following a routine traffic stop. Count III alleged that plaintiff disobeyed an official order to submit to blood and saliva tests in connection with the investigation of the allegations in count I. Following is a summary of the evidence adduced at the hearing.

Regarding count I, the complaining witness testified that late on the night of August 25, 1980, she was involved in an automobile accident in the city of Evanston. After investigating the accident, plaintiff arrested her and took her to the police station. When she was released later that evening, plaintiff drove her back to her car. A conversation ensued in which plaintiff threatened and/or made promises to her regarding the outcome of the charges facing her. As a result of the coercion, she had sexual intercourse with him in the back seat of her car, in an alley. Plaintiff was on duty and in uniform at the time of the occurrence.

Shortly after the occurrence, the complainant reported to the Evanston Police Department that she had been raped by plaintiff. She was taken to a hospital where she was examined by a physician. The physician testified that he examined the complainant about 4 a.m. on August 26, 1980, and at that time she stated to him that she had been assaulted. A specimen was taken from the vaginal area to determine the presence of human seminal material. A blood sample was also taken from the complainant.

A forensic expert testified that he examined the vaginal specimen taken from the complainant and it showed the presence of seminal material. Seminal material was also found in a pair of panties belonging to the complainant. The blood sample taken from the complainant was tested to determine blood group type. The expert stated that a saliva sample from the complainant and a blood and saliva sample from plaintiff were needed in order to make a comparison with the blood group test done on the seminal material. He emphasized that the blood and saliva samples were needed to perform certain tests which would show that plaintiff could either be included or excluded as having had sexual intercourse with the complainant. However, the tests were never concluded because no blood or saliva was ever received from plaintiff, and no saliva was received from the complainant.

It was disclosed that the complainant had been given a polygraph test in connection with her charges against plaintiff. The results of that test suggested that her allegation of being raped was untrue. The results of a second polygraph test suggested that the complainant was telling the truth when she recanted her earlier claim of being raped and claimed instead that she submitted to sexual intercourse with plaintiff under duress.

It was established that the complainant had previously engaged in prostitution, had been arrested for theft, and was a former narcotics addict.

Regarding the charges contained in count II, the second complaint, a 23-year-old woman, testified as follows: she was stopped by plaintiff while driving alone on Sheridan Road in Evanston, on or about August 15, 1980, at 5:30 a.m. After plaintiff stopped her, she got out of her car, as did he. She told him that she did not have her driver's license because she was "driving on a ticket." She showed plaintiff the ticket in lieu of her drivers's license.

Plaintiff engaged her in conversation and asked a number of personal questions. He also made a remark about getting into the back seat of the complainant's car. He inquired about her marital status and told her that because he was a nice guy he would not give her a ticket. He also asked her for a date. The complainant became fearful when plaintiff asked her to take a walk on the beach with him. She told him that she had to go home. She then got into her car and drove away. Plaintiff did not issue a traffic ticket to her, and she denied speeding prior to being stopped. The incident was not reported to the Evanston police until August 26, 1980, when complainant was at the police station to obtain a vehicle sticker. At that time, she gave a statement to an officer, describing the incident and physical characteristics of the officer who had stopped her on August 15. She stated at the hearing that she recognized plaintiff when he stopped her because he had been a security guard at her high school. She picked plaintiff's photograph out of a group of approximately 40 photographs of Evanston police officers.

The complainant later took a polygraph test which suggested that her allegations against plaintiff were true. The polygraph examiner testified that in his opinion complainant was truthful in her answers regarding the sexually suggestive comments made by plaintiff.

There was also testimony by the polygraph examiner who had administered a polygraph test to plaintiff. The examiner stated that in his opinion plaintiff was not truthful ...


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