Appeal from the Circuit Court of Du Page County; the Hon.
Robert D. McLaren, Judge, presiding.
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Defendant, board of fire and police commissioners of the village of Oak Brook, appeals from an order of the circuit court which reversed the decision of the board that plaintiff, Benjamin Savaglio, be discharged from his employment as a police officer and ordered his reinstatement with back pay. The board contends (1) that its findings and conclusion in the administrative hearing were not contrary to the manifest weight of the evidence, as determined by the trial court; (2) that the introduction of polygraph evidence at the administrative hearing was not reversible error; and (3) that the trial court exceeded its authority in ordering plaintiff reinstated and awarding him back pay. The board also appeals from an order of the trial court which awarded plaintiff attorney fees incurred in pursuit of a rule to show cause against the board for its alleged contempt in failing to comply with the order of reinstatement.
On December 28, 1981, charges were filed by the chief of police with the board against plaintiff which stated that on October 14, 1981, while on duty, plaintiff, without authority, entered a vehicle parked on private property, thus committing criminal trespass to a vehicle (Ill. Rev. Stat. 1981, ch. 38, par. 21-2); tampering with a motor vehicle (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 4-102(a)(2)); and official misconduct (Ill. Rev. Stat. 1981, ch. 38, par. 33-3). It was also charged that plaintiff's unauthorized entry of the vehicle violated certain rules and regulations of the village of Oak Brook police department.
In hearings conducted by the board, it was disclosed that Christopher Higgins owned an inoperable 1978 Ford van which he stored on the parking lot of his employer, Champion Auto Parts Rebuilders in Oak Brook. Higgins worked on the van in his spare time using his employer's tools, and it had been parked on the lot for about 10 months. On October 13, Higgins worked on the van from 5 until 7:30 p.m., and he testified that he left three sets of socket wrenches in the unlocked van. He stated that when he returned the next day after 5 p.m., the wrenches were missing and that they were valued at about $250. As there had been numerous thefts in and around the premises, the parking lot was surveyed by video cameras which, at intervals, recorded views of the area. Higgins viewed the tape for the night of October 13, and it revealed that an Oak Brook squad car had appeared in the parking lot at 1:10 a.m., 1:21 a.m., 3:10 a.m. and 5:58 a.m. On two of the observations of the squad car it had its headlights out and on one occasion it stopped near the van for about a minute. The quality of the tape was not good, and it did not show anyone enter or go near the van that night. The tape did show several other persons and vehicles around the van during the day; the tape was removed about 2:30 p.m. on October 14 and no further surveillance was done until after discovery of the alleged theft.
Higgins called the police and filed a theft report. He expressed the opinion that a policeman must have stolen the tools because a squad car was observed to have stopped near the van with its lights out. Lieutenant Janik interviewed all officers working the 11 p.m. October 13 to 7 a.m. October 14 shift and determined the only officer in the lot during that period was plaintiff.
On October 22, plaintiff was called to Lieutenant Janik's office and questioned whether he had made patrol trips to the lot and if he had done so at any time without headlights. Plaintiff responded that he had patrolled the lot and did drive through it with his headlights off and stopped next to a white van. Plaintiff stated that he looked inside the van and saw an engine, parts and some tools. He told Lieutenant Janik that he took nothing out of the van and inquired what was wrong. Lieutenant Janik then advised plaintiff that he had a video tape which had been reviewed by the victim who claimed he was missing tools from the van; he did not ask plaintiff why he had entered the van. Janik testified at the hearing that plaintiff's demeanor was not "normal" during the interview and he had determined that plaintiff should be ordered to take a polygraph examination. Plaintiff first declined to submit to it, but after being advised by the police chief that he would be terminated if he refused, the test was conducted. At the hearing, the polygraph examiner testified it was his opinion there was evidence of a purposeful non-cooperation by plaintiff throughout the test which indicated that he was not telling the truth.
Lieutenant Janik also testified that the police radio logs for the shift in question did not show a report by plaintiff of any unusual incidents at Champions' lot which, Janik stated, would be the proper practice for an officer upon leaving his vehicle to investigate or to enter a suspicious car. Lieutenant Janik stated that police department procedure regarding searches of or entry into motor vehicles requires that an officer transmit that information to the commanding officer in the police station. He noted that plaintiff also failed to file a written report. Other officers testified that it was customary to call the base on the radio if action was to be taken with regard to an incident and that a written report would thereafter be made.
Plaintiff testified on his own behalf at the hearing that he had observed the van on the lot for over six months and had checked its license and registration 4 1/2 months previous to the night in question. He stated that as the Champion company had suffered a number of burglaries and thefts, its lot was regularly patrolled by police. While on his second check of the lot on October 14 he thought he saw a movement of shadows or figures out of the corner of his eye in the vicinity of the van. He made a quick right turn and turned off his headlights and then thought he saw movement from the rear of the van. Plaintiff stated he got out of his squad car to check and first looked through the van's windshield. He observed an engine, some tools and a lumpy black tarp and considered someone could be hiding under the tarp. Plaintiff saw that the door was unlocked and opened it, put his head in and, when he didn't see anyone, closed the door and left. He testified he took nothing from the van and only put his head inside. On his third cruise of the lot later that morning he again turned his headlights off. Plaintiff stated he was not aware of any department procedure which would require calling in before opening a vehicle door.
In its decision, the board found plaintiff to be guilty of criminal trespass to a motor vehicle for entering the van without authority and guilty of official misconduct for entering the vehicle without consent. In addition, the board found plaintiff guilty of violating rules and regulations of the village police department by entering the van without the owner's consent and failing to submit a report regarding the entry. In reaching its decision, the board noted that it placed great weight upon the video tape, the immediate report of the theft of tools by Higgins, plaintiff's failure to call in, and found that plaintiff's conduct when questioned by Lieutenant Janik was not consistent with his innocence. The board specifically noted that in making its findings it gave no legal consideration to the testimony of the polygraph operator. The board concluded that plaintiff's continuance in office would be detrimental to the department and ordered his immediate discharge.
On administrative review, the circuit court found that the polygraph test was incompetent and prejudicial and by itself sufficient to require a reversal of the findings and order of the board. The trial court also found that the competent evidence contained in the record of the hearings before the board did not support its findings which were against the manifest weight of the evidence as to all charges for which the board found plaintiff guilty. The court thereupon reversed the order of the board and remanded the cause to it with directions to reinstate plaintiff with back pay. The board appeals.
In arguing that its decision was not contrary to the manifest weight of the evidence heard by it, the board contends that the trial court improperly reweighed the evidence submitted at the administrative hearing and the credibility of the witnesses, substituting its judgment for that of the board.
• 1 It is well settled that the scope of judicial inquiry of factual determinations made by an administrative agency is limited to determining whether the agency's decision was contrary to the manifest weight of the evidence. (Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill.2d 101, 105, 449 N.E.2d 115; Basketfield v. Police Board (1974), 56 Ill.2d 351, 358-59, 307 N.E.2d 371.) While the agency findings are considered prima facie true and correct, they must be based upon facts established by competent evidence. (Kaske v. City of Rockford (1983), 96 Ill.2d 298, 309, 450 N.E.2d 314, cert. denied (1983), 464 U.S. 960, 78 L.Ed.2d 335, 104 S.Ct. 391.) Where a crime is charged in an administrative proceeding, the requisite burden applicable to prove such crime is by clear and convincing evidence. (Drezner v. Civil Service Com. (1947), 398 Ill. 219, 227, 75 N.E.2d 303; Shallow v. Police Board (1981), 95 Ill. App.3d 901, 908, 420 N.E.2d 618, appeal denied (1981), 85 Ill.2d 575.) An administrative agency's decision will not be disturbed unless the opposite conclusion is clearly evident and the trial court may not reweigh the evidence. DeGrazio v. Civil Service Com. (1964), 31 Ill.2d 482, 489, 202 N.E.2d 522.
In making its findings, the board noted it placed great weight on certain evidentiary matters:
The video tape of portions of the night of October 13-14, however, offers no evidence of misconduct on the part of plaintiff. While it shows a police vehicle in the lot, plaintiff advised Lieutenant Janik he had patrolled there during that night and he did so before he had been told of the tape or accused of misconduct. Plaintiff's presence in the lot was in routine performance of his police duties; the record discloses one visit was in response to a false burglar alarm that night. The tape establishes nothing contrary to plaintiff's account of his ...