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Washington v. Civil Service Com.

OPINION FILED JULY 21, 1986.

JOHN WASHINGTON, PLAINTIFF-APPELLANT,

v.

CIVIL SERVICE COMMISSION OF THE CITY OF EVANSTON, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Kenneth Prince, Judge, presiding.

JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff, John Washington, appeals from the circuit court's affirmance of the decision of the civil service commission of the city of Evanston (the commission) discharging plaintiff as a police officer of Evanston because of his solicitation of sex from a woman on the night of June 16 and the early morning hours of June 17, 1982. Plaintiff contends that the commission lacked jurisdiction to discharge him because he had already been discharged for another offense. We affirm.

Twice before Washington has appealed to this court from adverse decisions concerned with his use of his position as a police officer to solicit sex from women. Washington v. Civil Service Com. (1981), 98 Ill. App.3d 49, 423 N.E.2d 1136 (1978 offense); Washington v. Civil Service Com. (1983), 120 Ill. App.3d 822, 458 N.E.2d 952 (1980 offense).

The record discloses the following as to the case at bar.

On June 16 and 17, 1982, Washington, while on duty and in uniform and using his position of authority, improperly attempted to solicit sex from a woman. On August 5, 1982, charges were filed against him and he was suspended. He was served with the charges and notice of suspension on August 10, 1982. Hearing was initially scheduled for September 30, 1982, but was continued several times. On March 25, 1983, Washington moved to dismiss for want of jurisdiction because he had already been discharged for a prior offense. The motion to dismiss was denied and the hearing was continued to April 13, 1983. On April 28, 1983, Washington filed a complaint for an injunction and restraining order. Both were denied the following day. Hearing was further continued and on August 3, 1983, the hearing officer issued his decision, ordering Washington discharged. On November 15, 1983, complaint for administrative review was filed.

Washington moved for judgment on the pleadings on May 3, 1984, to which defendant filed an answer on June 15, 1984. Washington's motion for judgment on the pleadings was denied July 23, 1984. The circuit court affirmed the discharge of Washington on September 4, 1984. This appeal followed.

Washington's claim of lack of jurisdiction because of his discharge for an earlier offense is based on the following.

On August 15, 1980, Washington engaged in sexually suggestive and unprofessional conversation with a woman motorist after making a traffic stop. After a hearing, the hearing officer on May 8, 1981, found against Washington. Following a hearing in aggravation and mitigation, in which the suspension for the 1978 offense was considered (Washington v. Civil Service Com. (1981), 98 Ill. App.3d 49, 423 N.E.2d 1136), the hearing officer on June 3, 1981, imposed a suspension of 120 days. On August 12, 1982, the circuit court on administrative review entered an order finding that the 120-day suspension was inappropriate and ordering the commission to discharge Washington.

The order specifically provided:

"In the event that my order directing Washington's discharge by the Commission is appealed and not affirmed, I separately affirm the 120-day disciplinary suspension issued to Officer Washington."

Washington's motion to vacate was denied and his discharge became effective October 20, 1982. He filed a notice of appeal on November 17, 1982, more than eight months before the hearing officer's decision in the case at bar on August 3, 1983, and one year before Washington's November 15, 1983, complaint for administrative review in the case at bar. On December 22, 1983, this court reversed his discharge and reinstated the 120-day suspension. Rehearing was denied on January 25, 1984. (Washington v. Civil Service Com. (1983), 120 Ill. App.3d 822, 458 N.E.2d 952.) This reversal was more than eight months before the circuit court's September 4, 1984, judgment affirming Washington's discharge in the case at bar.

Washington argues that his discharge in 1982 for the 1980 offense deprived the hearing officer and the commission of jurisdiction over him, because, he claims, that after that date he was no longer a member of the Evanston police department. We disagree.

Washington was on duty as a police officer on June 16 and 17, 1982, the time of the offense in the case at bar. The order of Judge Dunne directing discharge was entered on August 12, 1982. Washington was served with the discharge order on August 17, 1982. By reason of his subsequent motion to vacate the order of August 12, the actual dismissal order of Judge Dunne did not become effective until October 20, 1982. On August 10, 1982, Washington was served with charges which resulted in the administrative hearing now under review. The first date set for hearing of those charges was September 30, 1982. After numerous continuances at Washington's request, the objection to jurisdiction was made on March 25, 1983, during the pendency of the appeal of Judge Dunne's discharge which had been commenced on November 17, 1982, by the filing of a notice of appeal.

• 1 The filing of that notice of appeal constituted a continuation of the trial court action, not a new case (87 Ill.2d R. 301; Brooks v. Goins (1967), 81 Ill. App.2d 12, 225 N.E.2d 707.) This was a choice freely made by Washington. His appeal prevented ...


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