Appeal from the Circuit Court of Du Page County; the Hon. John
Teschner, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Plaintiff Robert Collura (Collura) appeals from an order of the circuit court of Du Page County affirming the decision of the Itasca board of fire and police commissioners (board) discharging Collura from the Itasca police department. Collura asserts five bases for reversal of the trial court order: (1) a board member's failure to recuse herself and the board's failure to disqualify her denied Collura a fair and impartial hearing; (2) the board's termination decision was contrary to the manifest weight of the evidence; (3) the board erred in refusing to admit as judicial admissions closing argument statements made by the attorney for Stanley J. Rossol, the chief of police of the village of Itasca (chief) during the first hearing; (4) the board violated Collura's due process rights by using the finding of probable cause made prior to his first hearing as the basis for conducting the second hearing; and (5) the trial court erred in denying his motion for findings of fact and conclusions of law. Because we find no reversible errors, we affirm.
This case involves a second appeal filed by Itasca police officer Collura concerning his discharge from the Itasca police department. A brief recitation of the procedural history of the case will facilitate disposition of the issues presented. On January 26, 1980, the chief filed charges before the board against Collura. The chief's complaint alleged that Collura while on duty had on the evening of December 27, 1979, made improper physical contact with Alicia Martinez (Martinez).
During the investigation of Martinez' allegations, Collura was ordered to submit to a polygraph examination or face disciplinary action. The results of Collura's test were admitted at the hearing before the board and the polygraph examiner was called as an expert witness. The board found Collura guilty of the charges and ordered his discharge. Collura sought administrative review of the board's order and both the circuit and appellate courts affirmed the decision discharging Collura. On appeal, the supreme court reversed the decision of the appellate court, concluding that the admission of the polygraph results and expert testimony concerning the polygraph procedure necessitated remandment for a new hearing. See Kaske v. City of Rockford (1983), 96 Ill.2d 298.
On January 26, 1983, the board held a meeting at which the parties presented argument on the proper scope of the remandment hearing. At this meeting, Collura filed a motion for immediate reinstatement and/or for a probable cause hearing to determine whether formal charges should be refiled against Collura. The board denied the motion and allowed the chief leave to file an amended complaint.
On February 21, 1983, the board considered a petition filed by Collura for the recusal or disqualification of board commissioner Nancy Fedor (Fedor) because of her membership on the board during Collura's first hearing, at which the polygraph results were admitted into evidence. After argument, Fedor refused to recuse herself from the hearing and the board denied the motion for disqualification.
The second hearing was held on March 21, 1983. The testimony consisted principally of four witnesses: Collura, Martinez, Officer Hansen, and Officer Mickow, all of whom were at the scene of the incident during at least a portion of the relevant time period on the night in question. At the completion of the testimony, the board entered its decision discharging Collura as a police officer of the village of Itasca.
On May 2, 1983, Collura filed a complaint for administrative review, and on February 23, 1984, the trial court affirmed the board's decision noting "that while it may have been the better course of action that Commissioner Fedor recuse herself from hearing the matter on remandment, the decision of the Defendant Board is not contrary to the manifest weight of the evidence." Collura thereafter filed a motion for a hearing on his earlier request for findings of fact and conclusions of law upon which the court's judgment was based. The trial court denied Collura's motion on March 13, 1984, and he thereafter filed a timely notice of appeal.
• 1 The first argument raised by Collura is that Fedor's refusal to recuse herself from the second hearing and the board's refusal to disqualify her denied him his due process right to a fair and impartial hearing. In Illinois, the results of a polygraph examination are inadmissible to prove the guilt or innocence of a party in a criminal case. (People v. Baynes (1981), 88 Ill.2d 225; Cleary & Graham, Illinois Evidence 150-51 (4th ed. 1984).) Such results are also inadmissible in administrative hearings. (Kaske v. City of Rockford (1983), 96 Ill.2d 298, cert. denied (1983), 464 U.S. 960, 78 L.Ed.2d 335, 104 S.Ct. 391; Manias v. Peoria County Sheriff's Department Merit Com. (1982), 109 Ill. App.3d 700, 440 N.E.2d 1269.) Because Fedor was a member of the original board which was exposed to the polygraph results, Collura contends, she was required to recuse herself and her failure to do so necessitates remandment for a new hearing.
• 2 Members of an administrative agency, however, are not disqualified as decision makers merely because of their familiarity with the facts of the case gained by performance of their statutory roles. (Hortonville Joint School District No. 1 v. Hortonville Educational Association (1976), 426 U.S. 482, 49 L.Ed.2d 1, 96 S.Ct. 2308.) Relying on the above-cited rule and Diamond v. Board of Fire & Police Commissioners (1983), 115 Ill. App.3d 437, 450 N.E.2d 879, the board and the chief contend the trial court's ruling that recusal was not required is correct. In Diamond, the administrative complaint contained extensive references to the results of two polygraph examinations of the officer subject to discharge. Finding that the inclusion of the results in the complaint without curative admonishments tainted the administrative proceedings, the trial court reversed the officer's dismissal. On appeal, the appellate court affirmed the trial court's ruling reversing the police officer's dismissal. However, the appellate court in Diamond reversed the order that a specially constituted board be established to hear the cause on remand, and instead directed that on remand the hearing be held before the same board.
In concluding that the inclusion of the results in the administrative complaint was error, the Diamond court expressly noted that the board was not admonished to ignore the results and that such an admonishment, if given, would have cured the prejudice. (Diamond v. Board of Fire & Police Commissioners (1983), 115 Ill. App.3d 437, 444, 450 N.E.2d 879, 885.) The Diamond court emphasized the absence of an admonishment to distinguish its facts from those in Austin v. City of East Moline Board of Fire & Police Commissioners (1972), 7 Ill. App.3d 537, 288 N.E.2d 113, where the court concluded that admonishments were effective to cure the board members' knowledge of polygraph test results. In Austin, the officer was accused of taking a rifle from the wall of an office building while on duty and was required to submit to a polygraph examination during the investigation. While the members of the board had knowledge both of the examination and of its results, they were admonished at least five times to ignore the results in rendering their decision. The admonishments, the Austin court ruled, cured any reversible error resulting from the board members' awareness of the officer's test results. Although no admonishments were given in Diamond, the court apparently agreed with the result reached in Austin.
"A simple and strongly worded admonition would have cured the prejudice resulting from the board's extraneous knowledge of the polygraph examination." 115 Ill. App.3d 437, 444, 450 N.E.2d 879, 885.
• 3 The record indicates that the board members here did receive an adequate admonishment. Laurence Traeger, trial counsel for the board, stated in the record of the proceedings before the board after remand that copies of the supreme court's decision in Kaske were distributed to each of the board members prior to the second hearing. In that decision, the supreme court stated:
"We remand Officer Collura's cause to the board of fire and police commissioners of the village of Itasca for a new hearing, in which any results of the police officer's polygraph examination, any opinions offered by the polygraph examiner, or any references to the polygraph examinations are inadmissible as evidence." (Kaske v. City of Rockford (1983), 96 Ill.2d 298, 311-12.)
Counsel for the chief also admonished the board not to consider the polygraph results. These admonitions were clear, emphatic and sufficient to cure any prejudice resulting from knowledge of the test results.
• 4 Collura asserts that Diamond is distinguishable because that case requires the board to be admonished at the time of its exposure to the inadmissible evidence. The admonishment of Fedor in the instant case, Collura emphasizes, occurred upon remand, more than three years after she was initially exposed to the inadmissible test results. Collura interprets the admonishment requirement in Diamond too restrictively. While the facts in Diamond focus the court's attention on the curative effect of an admonishment given contemporaneous with the exposure to the inadmissible evidence, Diamond should not be read as precluding an admonishment given upon rehearing at the earliest moment after a judicial determination is made that certain evidence is inadmissible. Furthermore, we reject Collura's contention that the admonishment given in the instant case is less effective than the admonishment suggested in Diamond. Here, Fedor stated, the intervening three years had dimmed her memory of the facts and issues involved in the first hearing. An admonishment not to consider test results and evidence only faintly recalled can be no less effective than an admonishment not to consider evidence recently introduced to the fact finder. Therefore, Collura's effort to distinguish Diamond on the basis of the timing of the admonishment is unpersuasive.
• 5 The Diamond court recognized the potential conflict inherent in a remand to the same board which had been exposed initially to the test results, but rejected the contention that the board could not properly hear the case upon remand.
"It is true that there is a possibility that plaintiff will be prejudiced by a new hearing before the board members who are already aware of the polygraph results. However, that prejudice can be cured by admonishing the board that those results are not to be considered. At any rate, the remedy for any unfairness which may result on rehearing is not the appointment of a special board, but an administrative review of that rehearing." (Diamond v. Board of Fire & Police Commissioners (1983), 115 Ill. App.3d 437, 445, 450 N.E.2d 879, 886.)
Judicial review of the second hearing record, and not recusal of Fedor, therefore, is the ...