APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
510 N.E.2d 43, 157 Ill. App. 3d 90, 109 Ill. Dec. 422 1987.IL.772
Appeal from the Circuit Court of Cook County; the Hon. Charles Freeman, Judge, presiding.
JUSTICE HARTMAN delivered the opinion of the court. SCARIANO, P.J., and STAMOS, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN
Plaintiff's appeal from the circuit court's affirmance upon administrative review of the Chicago police board's (board's) termination of his employment asserts that the decision was against the manifest weight of the evidence and that he was improperly charged.
Plaintiff, a 16-year veteran of the Chicago police department (department), was directed by the department to submit to a drug screening test on December 8, 1983. He reported to Medical Section Lt. Arthur Wirkus at sometime after 4 p.m. that day and requested that he be allowed to provide two urine samples, one of which would be tested by the department and a second, which would be retained by the department but would be available for independent or confirmatory testing if necessary. It was agreed that a second sample would be taken, which would be released only upon the approval of the personnel director or deputy police chief.
Plaintiff provided the requested specimen, which the lab assistant split, placing one-half in an unsealed, prelabeled lab bottle with a black cap and the other one-half in a bottle which plaintiff then labeled and sealed. The department specimen was transported to the Illinois Department of Alcoholism and Substance Abuse lab the next day, December 9, 1983, and was tested on December 21, 1983. The sample was initially subjected to an "emit test" (spectophotometer) which indicated the presence of the cocaine metabolite benzoyl ecgonine. The emit test was characterized as "very, very reliable" and as 98% to 99% accurate. Subsequently a "thin layer test" (chromotography) was conducted to confirm the presence of the cocaine metabolite. Both tests were positive for the presence of the cocaine metabolite, indicating cocaine ingestion or injection within 48 to 72 hours of the specimen acquisition.
On January 24, 1984, plaintiff was interviewed by police officers assigned to personnel investigations. He denied any cocaine use. The interviewing officers and plaintiff signed a transcript of that interview.
Subsequently, an attorney, apparently retained by the Fraternal Order of Police, contacted Lt. Wirkus concerning how he could have plaintiff's second specimen tested. Lt. Wirkus directed him to the personnel director or the deputy chief.
On May 8, 1984, plaintiff was charged by the Chicago superintendent of police with violations of department Rules 1, 2 and 14. Rule 1 prohibited the "[violation] of any law or ordinance." Rule 2 prohibited "[any] action or conduct which impedes the Department's efforts to achieve its policy and goals or brings discredit upon the Department." Rule 14 prohibited "[making] a false report, written or oral."
In February 1985, in anticipation of 200 to 300 drug screenings for police academy applicants, Lt. Wirkus discarded plaintiff's sample, apparently in the belief that the IDASA lab was still holding the other sample, which already had been consumed by the testing. Wirkus stated that it was his sole decision to throw out plaintiff's bottle; he was then aware of the charges pending against plaintiff. He allegedly attempted to call plaintiff but was unable to reach him and failed to contact his attorney, whom he knew. There is no indication in the record that the specimen was ever actually requested by plaintiff before that time.
On August 14, 1985, after proceedings before a board hearing officer, plaintiff was found guilty of using cocaine premised entirely on the urinalysis and of lying to the department about his drug use. The hearing officer recommended plaintiff's separation and discharge and on September 26, 1985, the board adopted his findings and ordered plaintiff discharged.
Plaintiff filed suit for administrative review in the circuit court on October 25, 1985, which affirmed the board on May 20, ...