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Wagner v. Kramer





Appeal from the Circuit Court of Kane County; the Hon. John A. Krause, Judge, presiding.


Rehearing denied July 19, 1984.

Plaintiff, Sergeant David E. Wagner, Jr., a deputy sheriff of the Kane County Sheriff's Department, appeals the dismissal of his complaint for administrative review by the circuit court of Kane County. The court ruled that no extraordinary circumstances existed to authorize its review of a five-day disciplinary suspension. Plaintiff on appeal contends that the facts of his case constituted extraordinary circumstances authorizing judicial review. Defendants maintain that certain precautionary measures taken by the sheriff's department before giving plaintiff a direct order were established by the evidence and that the order was reasonable.

Plaintiff was suspended for a period of five days for violations of departmental standard operating procedures, regulation 6-3, sections 7-2 and 7-35:

Rule 7-2, Disobedience of Orders. "Failure to obey and fully execute any lawful orders, written or oral, given by a superior officer * * *."

Rule 7-35, Insubordination. "* * * Any failure or deliberate refusal to obey a lawful order given by a superior * * *."

On Tuesday, May 4, 1982, a writ for detention and quarantine was forwarded to the sheriff's office from the State's Attorney's office requiring transportation of an individual infected with tuberculosis from her Aurora home to the Aurora Mercy Center Hospital. The written order was shown to both duty sergeants, one of whom was plaintiff. Both men expressed some concern about ordering their men to handle this type of call.

Included in the Rule and Order of Quarantine and Isolation was the following language:

"[The patient] * * * is infected with Tuberculosis in a communicable state, and WHEREAS Tuberculosis in a communicable state is dangerous to the health of the public, as well as the individual, and, as a matter of protection of the public health, such communicable cases of Tuberculosis ought to be quarantined and confined. * * *"

No further action was taken on May 5 relative to the transportation of the patient or the actions of plaintiff since it was determined that the patient was unavailable that day in any event. On May 6 the sheriff's office received a call that the patient was at her home and was to be transported to the hospital. Plaintiff was then contacted by his superior officer, Lieutenant Grimes, and directed to follow, in his police vehicle, another officer and vehicle that were transporting the patient. He was to act as "back-up." He was advised that he would not have to leave his car unless there was trouble.

Plaintiff refused to obey the order. He was then told to go home.

On May 7 a disciplinary hearing was held by the sheriff's board of inquiry at which the charges were detailed for plaintiff and the basis for the charges was explained to him. Plaintiff explained that he felt the order in question was unjustifiable in that he was never trained to transport individuals with communicable diseases, "especially diseases for which there is no known cure or method of prevention available to assure him that he would not contact [sic] the disease." He further explained that he believed he was being asked to put himself, as well as his family and fellow officers, in a dangerous situation and that other alternatives should have been considered, especially since it was not an extreme emergency situation. He considered this type of order as calling for more than was required by his job description and that it was not an "ordinary police duty." Under these circumstances he believed that he was not in violation of a legal order.

During the hearing it was disclosed that plaintiff's superior officer had talked to the registered nurse who accompanied the patient during the transportation of the patient to the tuberculosis facility. The superior officer said he was advised by the nurse that the disease was not as communicable as had been publicized. He further stated the nurse at the TB clinic did inform him that the disease was communicable by means of saliva but that infected persons on medication are not contagious. In the present case, however, the individual was being returned to the clinic because she was found not to be taking her medication. The superior officer also added that he considered the possibility of transportation via ambulance, but the cost would have been charged to the department, and if the individual refused to cooperate with the ambulance personnel, the department would still have been responsible for execution of the court order.

The record fails to disclose that prior to refusing the order of Lieutenant Grimes, plaintiff was advised of the information provided Grimes by the registered nurse. Further, it does not appear in the record that the plaintiff was told of a letter written by the medical director of the Kane County Tuberculosis Clinic to the sheriff three weeks earlier dated April 14, 1982. Thus, plaintiff was not told by his superiors of Dr. Richard C. Bodie's statement that:

"[F]ortunately Tuberculosis is not a highly contagious infection. It is primarily and almost exclusively acquired by inhalation of organisms coughed out by the patient who had an active disease and whose sputum contains viable Tuberculous organisms. Generally the amount of contact needed to acquire Tuberculous infection is considerable. Casual contact is rarely a source of Tuberculous infection. Therefore in terms of contagion only those people who have been in close contact with an active case of Tuberculosis, primarily family Members [sic] are at any appreciable risk. * * * Tuberculosis is not acquired by handling ...

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