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Fagiano v. Police Board

OPINION FILED APRIL 27, 1984.

FRANK FAGIANO, APPELLANT,

v.

THE POLICE BOARD OF THE CITY OF CHICAGO ET AL., APPELLEES. RICHARD W. BASTIAN ET AL., APPELLEES,

v.

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



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

JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Fagiano, Bastian, Byttow and Green (employees), career service employees of the city of Chicago (the city), were discharged from employment following separate hearings before either the city police board (Fagiano) or the city personnel board (Bastian, Byttow and Green) regarding alleged violations of certain departmental rules predicated upon the city's residency requirement (Chicago Municipal Code (1977), ch. 25, sec. 30), which requires that "[a]ll officers and employees in the classified civil service of the City shall be actual residents of the City." The circuit court granted the employees' individual petitions for writ of certiorari requesting administrative review and, following arguments by each, entered orders sustaining Fagiano's dismissal and reversing the dismissals of Bastian, Byttow and Green. *fn1

On appeal, this court affirmed the circuit court's finding of unconstitutionality in the consolidated case of Bastian v. Personnel Board (1982), 108 Ill. App.3d 672, 439 N.E.2d 142, and, reversed the judgment of the circuit court as to Fagiano on the same ground of unconstitutionality. (Fagiano v. Police Board (1982), 108 Ill. App.3d 1205 (Rule 23 order.) *fn2 Pursuant to Supreme Court Rule 315 (87 Ill.2d R. 315), the Illinois Supreme Court granted the boards' petitions for leave to appeal and the motion to consolidate both decisions. Confronted solely with the constitutionality issue, the supreme court held that the residency requirement was not unconstitutionally vague, and, accordingly, vacated the judgments of the appellate court and remanded the cause to the appellate court for consideration of those issues not reached on the original appeals. Fagiano v. Police Board (1983), 98 Ill.2d 277, 456 N.E.2d 27.

On remand, the following issues are before this court: (1) each employee contends that the decisions of the boards were contrary to the manifest weight of the evidence; (2) Fagiano further claims that: (a) he was found guilty of the wrong charge by the police board; (b) the circuit court's findings were prejudicially inconsistent; and (c) the hearing officer erred in granting improper continuances which prejudiced his procedural due process rights; (3) Bastian further claims that: (a) he was denied his right to procedural due process during the hearing; and (b) a domicile requires more than the observance of an individual in a suburban community; and (4) Byttow further claims that the personnel board's order of discharge is invalid on the ground that it is void of findings of fact and articulated standards of proof. For the reasons that follow, we affirm the decisions of the police board and personnel board, affirm the judgment of the circuit court as to Fagiano, and reverse the judgment of the circuit court as to Bastian, Byttow and Green.

a. FRANK FAGIANO

Effective October 27, 1978, Frank Fagiano, Chicago police officer, was suspended from the police department for a minimum of 30 days after a determination by the superintendent of police that he had violated certain departmental rules, including the requirement "to actually reside within the corporate boundaries of the City of Chicago." (Rule 25.) Following the initial determination, charges were filed with the police board after which a hearing was conducted during which both sides were represented by counsel. At the hearing, Fagiano testified that since his remarriage in 1975 to the present, he and his wife have changed rental residences in Chicago eight times. In March 1975, Fagiano sublet his apartment on Elm Street to Janet Schart, a co-worker of his wife's. At that time, Schart helped move some of their clothing and personal belongings to Fagiano's parents' home in Bensenville. Shortly thereafter, on May 1, 1975, Fagiano moved to 2538 West Belmont where he lived for a few months behind a sandwich shop that he owned and operated in partnership with a fellow police officer. On August 30, 1975, Fagiano moved to a three-flat building owned by his in-laws on Winchester. Approximately two months later, he moved to a building on Superior where he leased an apartment from the parents of his business partner. In March 1976, Fagiano moved back to the Winchester building owned by his in-laws. A few months later, in July 1976, he moved again to an apartment on Clarendon where he remained for approximately three months, after which he moved to Wrightwood where he and his wife shared an apartment with his wife's girlfriend and the girlfriend's son. Four months later, Fagiano moved back to his in-law's building on Winchester. Evidence revealed that at all of the aforementioned addresses, the lease and utility bills were in Fagiano's name.

Fagiano's parents purchased their home in Bensenville in 1969 and hold title in joint tenancy. All utilities for the Bensneville residence are in the father's name. From 1975 to the present, Fagiano has regularly visited his parents' home three or four times per week, and he and his wife have stayed overnight there as often as possible. Occasionally, Fagiano leaves for work directly from the Bensenville residence. Fagiano's three children from his first marriage reside in Melrose Park with their mother and visit Fagiano at the Bensenville residence. Because he moves so frequently, Fagiano uses the Bensenville address as his mailing address.

Janet Schart testified that she has visited Fagiano and his wife at the Bensenville residence three or four times. On cross-examination, Schart admitted that she had purchased furniture from Fagiano and that there remains a controversy as to the amount due and owing which has resulted in a bitter feud between Schart and the Fagianos. In February 1976, Schart wrote the letter to the internal affairs division of the Chicago police department which notified them of Fagiano's alleged violation of the residency requirement. When no action was taken immediately, she wrote a follow-up letter in January 1977. Fagiano presented an offer of proof intended to impeach Schart's credibility and both Fagiano and his wife testified as to Schart's bad reputation for truth and veracity.

Joanna Fitzgerald, former co-worker of Mrs. Fagiano, testified that when she visited the Bensenville residence with Mrs. Fagiano in August 1975, she observed clothing belonging to Fagiano and his wife, including a police officer's uniform. On cross-examination, Fitzgerald stated that she and Mrs. Fagiano had had an altercation and were no longer friends. She was, however, a friend of Janet Schart. Both Fagiano and his wife testified as to Fitzgerald's bad reputation for truth and veracity.

Leroy Dorff and Paul Bendis, Chicago police officers, testified that during their surveillances of the Bensenville address, they had observed Fagiano leaving the residence on three separate occasions in an automobile registered to him. Two of the surveillances had been made in the early morning hours on days that Fagiano was on duty. The third surveillance had been made in the afternoon. The record is unclear as to whether Fagiano had been on duty the day of the third surveillance. On a separate occasion, in February 1977, Officer Bendis and another officer accompanied Fagiano to his alleged residence on Wrightwood in order to view the premises. Although the apartment appeared to be lived in, Fagiano had no police uniforms there, and, with the exception of one pair of blue jeans on the bed, had no civilian clothing in the apartment.

b. RICHARD W. BASTIAN

Bastian, a career service firefighter employed by the Chicago fire department, was charged with violating the residency requirement and certain rules and regulations of the Chicago fire department "in that on or about September 19, 1979, and prior thereto, he was not an actual resident of Chicago."

At the personnel board hearing, Bastian testified that in 1969 he built a house in Niles as a business venture. He and his estranged wife still hold title to the house as joint tenants. Shortly after the house was built, Bastian and his wife unofficially separated, and were legally separated six years later. Mrs. Bastian and their four children have remained in the Niles residence while Bastian has rented apartments in Chicago, most recently on Lincoln Avenue. Mrs. Bastian is unemployed and Bastian pays all maintenance costs, taxes and mortgage payments on the Niles residence. He and his wife file joint tax returns. The Bastian children either attended or still attend Niles schools. Bastian admitted to staying overnight in Niles on occasion, but had no idea how often he had done so. Approximately one week prior to the hearing, Bastian and his wife reconciled and moved together to an apartment on East River Road in Chicago. Those children not currently in college continue to reside in the Niles home. Bastian's automobile is registered in Chicago, he banks and last voted in Chicago, and has phone bills, credit cards, and insurance policies in his name which all bear a Chicago address.

Thomas Pleines, investigator for the Chicago fire department, testified that he had conducted early morning residency surveillances of the Niles residence on three separate days that Bastian was scheduled to be on duty. On one occasion, Pleines had observed Bastian leaving the Niles residence in a brown Datsun. On another occasion, when the Datsun was parked one block over from the Niles residence, he observed Bastian cut through the back yards from the direction of the Niles residence, enter the car and drive away. On the third occasion, Pleines had observed Bastian driving out of the Niles driveway. Within a week or two of the surveillances, Pleines had conducted a canvas of the Niles neighborhood at which time he talked with several of the neighbors. Three neighbors had recognized a photograph of Bastian, and two of the three had indicated where he lived.

Edmund Beauregard, investigator in the internal affairs division of the Chicago fire department, stated that, pursuant to information gleaned from Bastian's personnel file, the 1978 real estate tax bill on the Niles residence was in Bastian's name, the Niles phone number is listed in Mrs. Bastian's name, and Bastian's Datsun is registered to him at the Lincoln Avenue address. Beauregard also testified that on four separate occasions, while conducting early morning residence surveillances of the Niles address, he had observed Bastian leave the house and drive away in the Datsun. It was later verified that Bastian was at work on those days. On a fifth occasion, Beauregard had observed Bastian leave the Niles residence at 6:20 a.m. and proceed to load the hatchback. Beauregard never observed the Lincoln Avenue address.

Captain James J. Ryan, Director of the Bureau of Inspectional Services for the Chicago fire department, testified that he had conducted early morning residence surveillances at the Lincoln Avenue address on two occasions and had never observed Bastian enter or leave the building. It was later verified that Bastian had been at work those days.

Marion Bastian, plaintiff's wife, testified that, pursuant to the separation decree, Bastian is obligated to maintain the Niles residence and to pay all expenses. However, the utility bills are in her name only. Mrs. Bastian stated that plaintiff did not have a key to the residence and had not stayed overnight during the period from January to September 1979. She recalled telephoning her husband in the early morning on occasion to ask him to stop by to repair something. However, she did not recall how often she had made such requests, or at what time.

In support of his motion to dismiss at the conclusion of the city's case, Bastian attached 25 affidavits, all allegedly attesting to the fact that he resided at the Lincoln Avenue address. The affidavits were form documents on which the affiants circled those statements to which they could swear and then signed the documents. Pursuant to the affidavits, each affiant stated that: (a) he was duly sworn; (b) he had personal knowledge of Bastian's domicile on Lincoln Avenue in Chicago, which knowledge was obtained by personally visiting him, by being aware of where he voted, and by seeing his personal check; and (c) Bastian was separated and living apart from his wife. However, when the affiants testified at the hearing, it was revealed that none of them had been duly sworn or had had their signatures properly notarized, that only five had actually been inside Bastian's apartment, only four had ever seen Bastian's personal checks, and none had personal knowledge as to where Bastian voted.

c. NORMAN C. BYTTOW

Byttow, fire engineer for the Chicago fire department, was charged with violating the residency requirement as well as related Chicago fire department rules and regulations "in that on or about September 4, 1979, he was not an actual resident of the City of Chicago."

At the personnel board hearing, Byttow testified that he owns and resides in a four-flat on Langley Avenue in Chicago that he had purchased in joint tenancy with his wife and another couple, the Hameetmans, in 1964. Before retiring from his job as a Chicago firefighter, Hameetman had shared the same unit in the four-flat with Byttow. The wife and children of both Hameetman and Byttow lived in the suburbs. When Hameetman retired, he sold his interest in the four-flat to another firefighter and joined his wife and children in Peotone. In 1969, Byttow and his wife, as joint tenants, purchased a home in Dolton, Illinois. Byttow never "fully" moved into the Dolton residence, but lived "between" his Chicago address and the Dolton residence until he and his wife were separated in 1974.

Byttow's three children and his estranged wife currently reside in Dolton. All of the Byttow children either attended or still attend Dolton-area schools. Although his wife works as an automobile salesperson, Byttow pays her $500 per month plus he pays the mortgage, all household maintenance costs and all other bills. In addition to his firefighting duties, Byttow is self-employed as a carpenter and maintains his business office at the Dolton address. The business office has a separate entrance and is equipped with its own washroom, bar and daybed. Because his office is in Dolton, Byttow can be found at the Dolton residence at various times. He often drives to the office as early as 5:30 or 6 a.m. to pick up supplies or to do paper work before starting his firefighter job. On or about September 4, 1979, he was at the Dolton address nearly every day because of a big remodeling job on which he was working. Byttow estimated that he had spent an average of two hours ...


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