Appeal from the Circuit Court of Du Page County; the Hon.
Robert D. McLaren, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendant, the Board of Fire and Police Commissioners of the village of Glendale Heights, Illinois (Board), appeals from an order of the circuit court of Du Page County entered on administrative review reversing the Board's decision to discharge plaintiff, Daniel Carrigan, from the village of Glendale Heights police department for violations of departmental rules and regulations. The basis of the court's decision was that the Board's finding that plaintiff was guilty of the charge of reckless conduct, one of several charges filed by the chief of police, was contrary to the manifest weight of the evidence. The trial court did find, however, that the findings of the Board that plaintiff violated the rules and regulations of the department on the remaining charges were not against the manifest weight of the evidence, but that these remaining findings did not constitute conduct that was sufficiently substantial or significantly related to the performance of the plaintiff's police duties to establish cause for discharge. The trial court further ordered that the cause be remanded to the Board for determination of the proper penalty to be imposed consistent with the findings of the trial court.
The Board appeals from this order and contends that the trial court erred in determining that (1) the Board's finding that plaintiff was guilty of reckless conduct was against the manifest weight of the evidence; and (2) the Board's findings on the remaining charges did not constitute lawful grounds for discharge. Plaintiff cross-appeals from a part of the trial court's order which found that the Board had jurisdiction over the plaintiff to conduct a hearing and render a finding because plaintiff had waived the statutory requirement that a hearing be conducted within 30 days of the filing of the charges.
Plaintiff, a sergeant, shift commander, and 12-year veteran of the police department of the village of Glendale Heights, testified that he informed his chief, who was called to his home, that he had been out with his wife on the evening of September 10, 1981, while off duty, and had consumed seven or eight alcoholic drinks at the Cloverleaf Restaurant located in the village of Bloomingdale, Illinois. Plaintiff and his wife then drove back to their home in Glendale Heights at approximately 2 a.m., September 11. Thereafter plaintiff and his wife were seated downstairs in the lower level family room of their residence when they began to argue. Plaintiff's wife left the room, went upstairs to the kitchen and began to roll what appeared to be a marijuana cigarette. Upon discovering this, plaintiff grabbed the bag of marijuana and went downstairs whereupon his wife followed him. She then grabbed the bag out of his hand and ran upstairs toward the bathroom. Plaintiff stated that he became enraged and, though not knowing why, grabbed a snub-nose .38-caliber revolver which he kept under his stereo and ran upstairs after his wife. Plaintiff encountered his wife in their bathroom where she was in the process of flushing the marijuana down the toilet. Plaintiff then fired one shot into the toilet. Plaintiff stated that he was one foot from the toilet at the time of the shot and his wife "was close, but I don't recall seeing her, but I know she was close." Plaintiff defined "close" as perhaps three or four feet away from him. He could not recall where she was in relation to the toilet, but probably she was in back of him, maybe in the hallway. He could not recall whether she was in the bathroom, but she may have been just in back of him. Plaintiff's wife then left the home and plaintiff stated that he assumed he threw the gun back on the stereo and went out to look for his wife. Upon his arrival back home about 15 or 20 minutes later, plaintiff found Chief McCollum of the Glendale Heights police department and two police officers outside of his residence and his wife in the back seat of one of the squad cars. Shortly thereafter Chief McCollum questioned plaintiff as to the location of the .38-caliber weapon. Plaintiff was unable to find it at that time but stated that he subsequently located it two days later under the stereo.
Later that morning plaintiff gave a statement to Chief McCollum which he said was substantially the same as related earlier that morning to Chief McCollum. Upon questioning by his own attorney, plaintiff related that he and his wife lived alone in the home and his wife was still residing with him there. He stated that the toilet was to the right front as one stood in the bathroom doorway and about three feet away. He was a foot away from the toilet when he discharged the weapon. The bathroom is small and there is a foyer immediately adjacent to the bathroom. He had never seen his wife use marijuana before or seen it in his home.
Chief McCollum testified that when he arrived at the home he found a shattered toilet, green plant material strewn about the floor, particles from the toilet on the floor, and some black residual materials that looked similar to powder burns. When he spoke with plaintiff, he was told by him that "he caught his wife with some marijuana. He lost control and he shot the toilet upstairs." Plaintiff said he did not know where he placed the gun, and a search of the home did not reveal it although two other guns were found. He described plaintiff at that time as coherent, cooperative, and passive. Plaintiff told him at least three times that "he lost his head, he lost control." He talked with plaintiff again that morning in his office. Plaintiff also related then that he had consumed seven alcoholic drinks that evening and morning, that his wife was approximately four feet from the firearm when it was discharged, and that he did it because he lost control, and when she tried to flush marijuana down the toilet he just shot the toilet. Plaintiff told him that he did not recognize the possibility of a ricochet at the time.
Two other officers testified that plaintiff was not intoxicated, that he said he lost his head, that plaintiff's wife was intoxicated, and that the toilet was completely shattered.
The written charges filed by Chief McCollum against plaintiff arising out of this incident specified violations of certain rules and regulating of the Glendale Heights police department relevant to firearms use/display, law enforcement code of ethics, neglect of duty, conduct unbecoming an officer, and violations of law. The violations of law were later particularized as a violation of the Criminal Code of the offense of reckless conduct and a violation of a village ordinance of discharge of a firearm within the village. The written findings and decision of the Board found the plaintiff's conduct in violation of the department's rules and regulations as charged and constituted a substantial shortcoming that continued employment would be detrimental to the police department. Plaintiff was discharged by the Board and filed for administrative review in the circuit court.
In its order finding the Board's decision that plaintiff was guilty of reckless conduct was contrary to the manifest weight of the evidence, the trial court stated that the record established that plaintiff discharged the firearm in his own home and his wife was standing behind him and at least three feet from the point of impact of the bullet. The court further found that the record did not establish that plaintiff's wife was in the line of fire nor was there a probability that she would be placed in any harm. All other findings of the Board that plaintiff violated department rules and regulations were found by the trial court to be not against the manifest weight of the evidence. However, the court determined that these findings did not constitute conduct sufficiently substantial or significantly related to performance of plaintiff's duties to establish cause for discharge.
• 1 We address initially plaintiff's contention in his cross-appeal that he was not given a hearing on the charges filed against him within the time required by law. In this regard, plaintiff points out that section 10-2.1-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 10-2.1-17) provides that a hearing on the charges must be commenced "within 30 days of the filing thereof." He further contends that the charges were filed with the Board on September 12, 1981, a hearing was not held until October 29, 1981, and consequently, not commenced within the statutory 30-day period.
The record reveals that written charges against plaintiff were filed with the Board on September 12, 1981. On September 14 plaintiff was served with a copy of the charges and notice that the Board ordered a hearing on October 2. On the date scheduled for the hearing plaintiff appeared pro se and requested a continuance so he could confer with counsel whom he had previously contacted and told of the scheduled hearing, and who had not appeared. Before the Board allowed the matter to be continued, counsel for the chief of police stated that charge No. 2 had listed plaintiff's actions violated a certain police department rule and regulation set forth as "188.8.131.52 violation of law," and he wanted to specify what law that was. Counsel thereafter stated the first law was reckless conduct, a statute, and read to plaintiff that offense, and the second was a village ordinance entitled discharge of weapons, and he also read that ordinance to plaintiff. He was instructed by the Board chairman to send a letter to plaintiff's attorney containing these specified charges. The hearing date was then continued to October 16. On October 16 plaintiff appeared with his attorney, who requested another continuance because he had just been retained. The continuance was granted and the matter set for a hearing on October 29, which was thereafter held as scheduled.
The statutory 30-day time limit to commence a hearing as provided in section 10-2.1-17 of the Illinois Municipal Code is mandatory, and a failure of the Board to commence a hearing within that time period causes the Board to lose jurisdiction of the case. (Bridges v. Board of Fire & Police Commissioners (1980), 83 Ill. App.3d 190, 403 N.E.2d 1062.) However, where the delay in commencing the hearing until after the 30-day period is not attributable to the Board, but rather occasioned by the plaintiff, the statute is not violated. (Riggins v. Board of Fire & Police Commissioners (1982), 107 Ill. App.3d 126, 129-30, 437 N.E.2d 327; Finin v. Board of Fire & Police commissioners (1981), 98 Ill. App.3d 879, 882-83, 424 N.E.2d 976.) Here, the hearing was originally scheduled for October 2 within the 30-day period, but was continued on that date at the specific request of the plaintiff to allow him to confer with his attorney who had failed to appear for the hearing.
Plaintiff maintains, however, that the continuance "was as much for the convenience of the Board and the Chief as it was the plaintiff," and the delay should not be attributable to him. While it does appear that certain charges against plaintiff were clarified on October 2 by referring to specific statute and village ordinance violations, and the hearing was continued to October 16 when the Board could next meet as an entire body, the fact remains that plaintiff first requested the continuance and elected not to commence the hearing on the October 2 scheduled date. We conclude that the delay in the commencement of the hearing beyond the statutory 30-day period was attributable to plaintiff and the Board did not lose jurisdiction under these circumstances.
• 2 Focusing next on the Board's appeal, we must first address the contention by the Board that the trial court erred in finding that the Board's decision that plaintiff was guilty of the charge of reckless conduct was contrary to the manifest weight of the evidence. The basis of the trial court's ruling was its opinion that the record established plaintiff discharged the firearm in his own home and his wife was standing behind him and at least three feet from the point of impact of the bullet. Therefore, the court found she was not in the line of fire nor was there a probability she would be placed in any ...