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Mccoy v. Kamradt





Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding. PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

The plaintiff, Michael McCoy, an officer in the village of Hanover Park police department (the department) was charged by the department with improper use of a firearm, substandard performance of duties and lack of maintenance of good physical/mental condition. Prior to the administrative hearing the plaintiff filed a motion requesting the defendants, James Kamradt, James Lewis and Robert Cover, the members of the board of fire and police commissioners (the board) to disqualify themselves from the instant hearing on the basis of their prejudice against the plaintiff. The board denied the motion. Following the hearing, the board discharged the plaintiff from his position as a police officer.

Upon administrative review, the circuit court affirmed the board's ruling with regard to the issue of prejudice but remanded the cause for the board's reconsideration regarding the sanction of discharge. The board was instructed to reconsider the discharge in light of two recent Illinois Supreme Court cases. (Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill.2d 101, 449 N.E.2d 115; Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill.2d 252, 449 N.E.2d 845.) In its response to remand, the board distinguished Walsh and Kloss and affirmed the discharge. Subsequently, the circuit court also affirmed. The plaintiff now appeals contending that he was denied a fair and impartial hearing, that discharge was an inappropriate sanction, and that he was improperly suspended pending his hearing.

In making its findings, the board considered the plaintiff's conduct during the occurrence of five particular incidents and the medical testimony of five psychiatrists and psychologists.

The first incident occurred on April 8, 1980. As described by the plaintiff, on that day he answered a complaint regarding a boy that appeared to be beaten up followed by some other boys with rifles. When the plaintiff arrived at the scene, which were railroad tracks, the boys fled. The plaintiff then returned to the complainant's house, which was adjacent to the tracks, in order to wait for the boys. Shortly thereafter, the plaintiff saw the boys on the tracks, waited until they were approximately 100 yards away, then exited the house with his gun drawn at a 30-degree angle from his body and pointed downward. He then yelled, "Drop those rifles" as he approached the boys. The complainant stated that he thought that the plaintiff did a good job. Further, a police instructor stated that the plaintiff used the proper police procedure regarding the use of a weapon given the circumstances as described by the plaintiff.

However, the department in presenting its case at the hearing, provided a somewhat different scenario of the incident. The department contended that when the plaintiff requested permission to investigate, he reported that "there were three kids down by the signal light, with a BB gun, a long arm of some type." Thus, it appears that the plaintiff was aware of the nature of the gun from the start. Further, the boys stated that when the plaintiff appeared from the house and approached them, he was running at them with his gun drawn and pointed directly at them yelling, "Stop, put up your hands and throw the BB guns down, the rifle down." It was also revealed that the plaintiff never filed a report regarding this incident.

The next two incidents involved DuComm, a control dispatch center that services the village of Hanover Park police department. Regarding the first occurrence with DuComm, on April 19, 1980, the plaintiff called in and requested that a matron be sent to the scene of an arrest in order to search a female shoplifter. The dispatcher then notified the plaintiff that no matron was currently available, to which the plaintiff responded that he never requested a matron and that he (the dispatcher) better get his act together or the plaintiff would file a complaint. Pursuant to established procedure, the dispatcher filed a report of the incident, the first such report the dispatcher had to file in his approximate three years of employment with DuComm.

As to the second incident involving a dispatcher, on May 15, 1980, the plaintiff was at home on his lunch hour when he received a call from the dispatcher regarding a fight in progress. The department's policy regarding lunch hours is that an officer is still on duty and is subject to assignment if the dispatcher deems it necessary. In this instance, the dispatcher felt it was a priority call, so he contacted both the plaintiff and a backup unit. In response to the call, the plaintiff asked if he could put his spoon down from his lunch break. The backup officer stated that when the plaintiff arrived at the scene, he was visibly disturbed with the dispatcher. The plaintiff then called the dispatcher and proceeded to berate him for taking the plaintiff off his lunch break.

The fourth instance of alleged misconduct occurred on April 22, 1980, when the plaintiff attempted to serve an arrest warrant on George Tash for disorderly conduct. On that day, Jack Pavlo and a friend were sitting on Pavlo's back patio, which is surrounded by a 6-foot fence, when the plaintiff believing Pavlo's residence to be the one listed on the arrest warrant, yelled over the fence for George Tash. When Pavlo responded that he was not Tash nor knew of him, the plaintiff began to shake and bang the fence. The plaintiff yelled that he had a warrant and that he would use force to get in. A neighbor, hearing the plaintiff yell, came out of her patio and explained to the plaintiff that the person behind the fence was Jack Pavlo and that he had the wrong address. At no time did the plaintiff identify himself as a police officer.

The final incident involved a situation between the plaintiff and the plaintiff's supervisor, Sergeant Don Wood. A conflict between the two men began, when, following an inquiry of Wood by a mother of one of the boys in the BB gun incident of April 1980, Wood asked the plaintiff for his written report of that incident. The plaintiff refused to prepare one. In the following months, the plaintiff's performance diminished and Wood's evaluation of the plaintiff so reflected. During this period, while under Wood's supervision, the plaintiff, on four separate occasions, attempted to engage Wood in a physical confrontation. Also, the plaintiff was critical of Wood's performance regarding a situation where Wood, suspecting a suicide was being committed, did not enter the premise on the basis of believing that he had no legal authority to do so. The person inside later hanged himself. In that context, the plaintiff was heard to have said, "Sergeant Wood makes decisions that kill."

Also at the hearing, medical testimony was received regarding psychiatric and psychological examinations of the plaintiff. On April 10, 1980, Dr. Avrum Mendelsohn, a registered psychologist with 15 years of experience in police psychology, examined the plaintiff. Based on the examination, Dr. Mendelsohn opined that "[the plaintiff] has an exceptionally high potential to act in a negative, aggressive belligerent manner towards people." As to personality characteristics, Dr. Mendelsohn stated that there was an extremely high lack of temper control and that "if [the plaintiff] felt that another person was attacking his credibility or his authority, his position, he would have a high potential to physically act out, exceptionally high potential to verbally act out." He further stated that the plaintiff should not be allowed to carry a firearm. In conclusion, Dr. Mendelsohn recommended that:

"For the welfare of the community [the plaintiff] not be placed in any situation where he is forced to come in contact with the general public and in addition, his contact with other village employees should be kept to a minimal level."

On May 29, 1980, Dr. Clifton Rhead, a certified psychiatrist and a member of the psychiatric board to the chief surgeon of the Chicago police department, examined the plaintiff. At the hearing, he testified that he found the plaintiff to be an individual with a "severe personality disorder, characterized by poor impulse control, defective judgment, poor relationships to authority and a tendency to repeat his psychological conflicts in his relations to his environment." Dr. Rhead concluded that "[t]hose characteristics make [the plaintiff's] ability to function effectively as a police officer questionable at best; it can be anticipated that the problems which have so far been encountered in his career will be repeated in future circumstances."

The plaintiff had three doctors testify on his behalf; Dr. Richard A. Malek, a certified psychiatrist; Dr. Ralph M. Mesenbrink, a clinical and consulting psychologist; and Dr. Robert C. Filice, a doctor engaged in the general practice of psychiatry. Dr. Malek testified that in his opinion, the plaintiff was not mentally ill. He did indicate that the plaintiff had some problems with impulse control and judgment but that the plaintiff was not dangerous to the safety and well being of the public and his fellow officers. Dr. Filice stated that the plaintiff did not suffer from any psychotic, neurotic or personality disorder and that the plaintiff "present[ed] no danger to himself, the men who worked with him, or to the community." Finally, Dr. Mesenbrink stated generally that no personality test which is scientifically valid can predict aggressive or future behavior.

Based on all the above factual testimony, the board concluded that the plaintiff had personality disorders and that he had violated the rules of regulation of the department and that these findings of facts were sufficient ...

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