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06/12/87 Timothy Sheehan, v. the Board of Fire and


June 12, 1987

TIMOTHY SHEEHAN, PLAINTIFF-APPELLEE

v.

THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF DES PLAINES ET AL., DEFENDANTS-APPELLANTS

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

509 N.E.2d 467, 158 Ill. App. 3d 275, 108 Ill. Dec. 771 1987.IL.811

Date Reported: Original Opinion of May 1, 1987 at 158 Ill. App. 3d 275.

APPELLATE Judges:

PRESIDING JUSTICE SULLIVAN delivered the opinion of the court. LORENZ and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

Plaintiff has filed a lengthy petition for rehearing in which he alleges that our opinion is flawed by numerous inaccuracies and misstatements of fact. This supplemental opinion is our response to those allegations.

The Amendment to the Charges

We stated in our opinion that the second amended statement of charges filed on February 26, 1985, did not add any new charges but merely made minor changes in the amended statement of charges previously filed on February 2, 1985. Although plaintiff questions the accuracy of this statement, we note that his argument is based on a copy of the amended statement of charges from which one page (page 9) is missing.

Page 9, which was included in volume III of the record on appeal, contains the eight paragraphs which plaintiff erroneously claims were added in the second amended statement of charges. (See Appendix "A attached.) Those paragraphs specified the departmental rules and general order plaintiff allegedly violated. The second amended statement of charges did not allege any additional charges of misconduct. This is evident not only from a comparison of the two sets of charges, but also from an examination of the motion to amend the amended statement of charges and the argument thereon.

It is immaterial that the board may have set February 20, 1985, as the last date on which to file amended charges against plaintiff. No new charges were filed.16

Plaintiff also persists in arguing that he was compelled to proceed with the evidentiary hearing only a few minutes after he had received the second amended statement of charges. As we stated in our opinion, however, plaintiff's attorney admitted on February 26, 1985, that he had been served wih a copy of the motion to amend the amended statement of charges on February 22, 1985. (C. 172, C. 175.) Except for two typographical errors in the numerical designation for the departmental rule requiring obedience to laws and regulations, which were corrected on February 26, 1985, the second amended statement of charges merely incorporated the changes proposed in the motion to amend which plaintiff's attorney received four days earlier. Those changes, as we said in our opinion, were minor.

Moreover, contrary to the repeated assertions in his petition for rehearing, plaintiff's attorney did decline the Board's offer of a continuance. C. 176-78, C. 190-92.

"Mr. McGuire [counsel for the board]: Now, Mr. Moss, do you wish a continuance of this matter?

Mr. Moss: Only if my client will be reinstated in the meantime." C. 177.

The board denied counsel's motion to reinstate plaintiff on active duty or to suspend him with pay and granted Commissioner Connolly's motion to continue plaintiff's suspension without pay. (C. 191.) Counsel for the board then inquired:

"Now, Mr. Moss, the question the Board would like you to address is do you wish a continuance of this matter?

Mr. Moss: No, I do not.

Mr. McGuire: Are you ready to proceed then?

Mr. Moss: I have a couple of preliminary motions and then yes." C. 191-92.

The Violation of the Discovery Order

Plaintiff disputes our finding that his time cards from the high school (including the card on the back of which Captain Kozenczak noted details of his surveillance of plaintiff on December 17, 1984) were made available to his attorney during a discovery conference on February 3, 1985. We note, however, that plaintiff's attorney acknowledged at that conference that he had received the time cards requested in his motion for discovery. (C. 140-41.) It would appear from the comments of the attorney for the chief of police on February 28, 1985, and March 9, 1985, that plaintiff's attorney was given an opportunity to review the original cards at the discovery conference on February 12, 1985, and was provided with copies thereof. C. 267, C. 304, C. 478.

Even assuming, however, that the December 17, 1984, time card was not among those submitted at the discovery conference, it is undisputed that plaintiff's attorney became aware of Captain Kozenczak's written notation 10 days before the captain testified, which plaintiff concedes was ample time to prepare his cross-examination. Plaintiff's present claim that the notation was not disclosed in time for him to prepare his defense is disingenuous. Plaintiff did not begin to present his defense until 10 days after the notation was discovered and he never requested a continuance. Moreover, plaintiff has failed to explain how the disclosure of the notation unil after he had been called as an adverse witness by the chief of police could have resulted in any prejudice.

Admissibility of the Exhibits

In his petition for rehearing, plaintiff challenges our finding that the attorney for the chief of police laid an adequate foundation for the admission of his exhibits as business records, past recollection recorded or written admissions of a party-opponent.

The evidentiary basis for admission of the exhibits as business records may be found in the testimony of Garry Vande Vusse (C. 328-60), Sergeant Ronald Diehl (C. 381-84A), Sergeant Kenneth Randolph (C. 393-400), Lieutenant William Kuta (C. 405-10), Lieutenant John Storm C. 425-30), Sergeant Robert Neil (C. 436-41), Eldon Burk (C. 486-87, 494-505), Beverly Tednes (C. 531-38A, C. 541-42) and Captain (now chief of police) Joseph Kozenczak (C. 547-51, C. 553-56). Although plaintiff testified that he could not identify any of the exhibits shown to him at the hearing, he did not question their authenticity and admitted that they appeared to be the type of records that normally would have been made in the regular course of business. C. 214-24, C. 227-32, C. 269-324.

An independent basis for admission of certain exhibits from the Des Plaines police department as past recollection recorded may be found in the cross-examination of Sergeant Diehl (C.386-88), Sergeant Randolph (C. 400), Lieutenant Kuta (C. 409), and Sergeant Neil (C. 441), when considered together with their testimony on direct examination.

Garry Vande Vusse, the security director for the First National Bank of Des Plaines, testified that plaintiff's signature appeared on seven sign-in sheets for the security desk at the bank. (C. 336-41, C. 343-45, C. 347-48, C. 351-52, C. 355-57, C. 358-59. There was unimpeached, uncontradicted testimony that Vande Vusse was familiar with plaintiff's signature. (C. 337-39, C. 341, C. 344, C. 356, C. 372-73.) Based on this testimony, the board was entitled to make its own comparisons between those exhibits and other exhibits on which plaintiff's signature appeared. (Ill. Rev, Stat. 1985, ch. 110, par. 8 -- 1501; Cook v. Moecker (1920), 217 Ill. App. 479.) Exhibits relevant to issues in the hearing were properly admitted as the written admissions of a party-opponent where there was a basis on which the board could determine their authenticity.

Closing Argument

At page 16 of our opinion we stated:

"We also find no support for the court's finding that the board forced plaintiff's attorney to present his closing argument 'after 16 straight hours of hearing' and restricted him to only 15 minutes of argument. The record does not reflect how long the board was in session it does show that plaintiff's attorney stated that he was prepared to go forward with his argument and did not want a continuance." 158 Ill. App. 3d at 286.

Plaintiff characterizes this as "the most blatantly inaccurate statement as to what is contained in the Record" and attributes it to "a haphazard reading of the Record." This criticism is intemperate and gratuitous.

The record does not support the circuit court's finding that there were "16 straight hours of hearing" on March 9, 1985. The evidentiary hearing resumed at 9 a.m. (C. 468.) The board recessed once before lunch for 10 minutes (C. 530), and later adjourned for lunch until 2 p.m. (C. 638). The length of the lunch break is not indicated. The board again was in recess while plaintiff's attorney reviewed the exhibits with his client (C. 718), and recessed briefly six more times while it considered plaintiff's motions for directed findings. (C. 725, C. 729, C. 736, C. 738, C. 743, C. 745.) The board adjourned for dinner from 6:30 until 7:45 p.m. (C. 746), and thereafter went into four short recesses to complete its consideration of plaintiff's motions for directed findings (C. 750, C. 752, C. 759, C. 766). The board took two more short recesses before hearing closing arguments. (C. 824, C. 900.) The record does disclose that after plaintiff's attorney complained of the board's limitation on the length of closing argument, the attorney for the board informed him that he could have as much time as he needed. C. 906-07.

Although plaintiff's attorney expressed concern about proceeding with closing argument at 1 a.m., he stated that he would be prepared to give his argument after a brief recess. (C. 907.) When the board reconvened, however, counsel requested an opportunity to present instanter a motion for a directed finding on each of the charges and stated that he was physically unable to deliver a closing argument. (C. 908-09.) The board, acting through its attorney, denied counsel's request to present his motions, explaining that if counsel was "prepared to go forward with argument on the [motions], then he is adequately prepared to go forward with the closing argument." C. 909.

Under the circumstances, we believe that this was a reasonable ruling by the board. Moreover, notwithstanding his protestations of fatigue, plaintiff's attorney twice denied that he wanted a continuance to prepare his closing argument:

"And since this hearing began 16 hours ago, I have discussed this with my client. I am trying to read through my notes. And in all honesty, there are things in here that I can't read that I really can't correlate with other testimony. And as much as I do not want a continuance and I want a decision as soon as possible, I cannot service my client by attempting to give a closing argument after being on trial in this matter for 16 hours straight with a break for lunch and a break for dinner and breaks in between." (Emphasis added.) C. 908.

"I am not physically able to argue tonight competently for my client. And for this reason, although I do not want a continuance, and I would like the shortest date possible to conclude this; however, as I said, that may be obviated by this Board hearing motions for directed findings at the close of all the evidence." (Emphasis added.) C. 909.

The board denied, not request for a continuance, which was never made, but a request to present motions for directed findings at the close of all of the evidence. (C. 909.) This is apparent from the following colloquy between the attorney for the chief of police and the attorney for the board:

"Mr. Jentsch: I understand he [Mr. Moss] has certain motions.

Mr. McGuire: His request to present the motion for directed finding has been denied." C. 910.

We believe that it is reasonable to assume that if plaintiff's counsel was capable of presenting and arguing a separate motion for a directed finding on each of the remaining counts in the second amended statement of charges "after 16 straight hours of hearing," that he also was capable of delivering his closing argument. Indeed, counsel stated at one point that he was prepared to go forward with his argument (C. 907, and he gave a coherent argument.

In his petition for rehearing, plaintiff renews his attack on the conduct of the attorney for the board, Thomas McGuire, alleging that McGuire improperly participated in the board's deliberations. This allegation distorts the record.

On April 2, 1985, the chairman of the board of fire and police commissioners announced that the board had asked McGuire to explain an appellate court decision relating to one of the issues before the board. (C. 944.) There was nothing improper about the board's consulting its legal advisor about the interpretation of a court decision. The case in question had been discussed during the hearing and there is not a scintilla of evidence that McGuire "participated in the deliberations," as plaintiff now suggests, or that he had offered any advice to the board during the course of its deliberations on any matter other than the one mentioned by the chairman.

In light of plaintiff's accusation in his brief that McGuire usurped the board's powers, it is not inappropriate to point out that immediately prior to announcing the board's decision, its chairman stated that the board had reviewed McGuire's rulings and had reaffirmed them. C. 944.

The Manifest Weight of the Evidence

Plaintiff's argument in his petition for rehearing regarding the manifest weight of the evidence merely restates what he said in his brief and at oral argument and does not require further comment.

The Denial of Plaintiff's Petition for Rehearing

In our opinion, we described the "new evidence" offered in support of plaintiff's petition for rehearing as "extremely vague representations that several other police officers on the department would testify that they substituted for plaintiff as a security guard on various unspecified dates in 1984." Although plaintiff vigorously disputes this characterization, the affidavits attached to the petition for rehearing speak for themselves.

In the final paragraph of his affidavit, Officer Erik Helgesen stated:

"That one of the times and dates for which I worked for Timothy Sheehan at First National Bank of Des Plaines more likely than not included February 2, 1984 from 9:00 to 11:00 p.m." (Emphasis added.) D. 44.

Based on his conversations with three other Des Plaines police officers, plaintiff concluded in his affidavit:

"That if Patrolmen Ohlson, Greco and Childs are subpoenaed, I believe [that] they would testify that they may have worked in my stead on various dates enumerated in various Counts for which I was found guilty." (Emphasis added.) D. 46.

These affidavits obviously lack the specificity that would require a rehearing. We reaffirm our finding that "[none] of this proposed testimony would have contradicted the board's findings and the petition for rehearing was properly denied." We also reiterate that plaintiff could have subpoenaed these officers and requested the board to order them to testify if they had refused.

The Sanction of Discharge

In a footnote to our opinion, we stated that "[the] record does not permit an informed comparison between the conduct for which plaintiff was discharged and the conduct for which other officers were merely suspended." Plaintiff argues that he cannot be blamed for the present state of the record because the board denied his request that "all of the stipulations and the complaints for all the other officers involved in this situation be made part of this record. (C. 958-60.) We note, however, that plaintiff never made an offer of proof to preserve this issue. In the absence of such an offer, we cannot conclude that the board erred in denying plaintiff's motion. (See Lukas v. Lightfoot (1985), 131 Ill. App. 3d 566, 569, 476 N.E.2d 1.) Plaintiff's petition for rehearing cannot serve as a substitute for a proper offer of proof.

Moreover, as we stated in our opinion, sufficient cause for plaintiff's discharge existed regardless of whether other officers in the department may have received different treatment. (Jones v. Civil Service Com. (1979), 80 Ill. App. 3d 74, 76, 399 N.E.2d 256; Strobeck v. Illinois Civil Service Com. (1979), 70 Ill. App. 3d 772, 778, 388 N.E.2d 912. But see Olshock v. Village of Skokie (N.D.Ill. 1976), 411 F.Supp. 257, aff'd (7th Cir. 1976), 541 F.2d 1254.) We adhere to our opinion that the board's decision to discharge plaintiff was not arbitrary, unreasonable or unrelated to the requirements of service.

For the foregoing reasons, plaintiff's petition for rehearing is denied.

APPENDIX "A"

65. That the acts described in Counts I through XIV constitute a violation of Rule 310.24 of the Police Department of the City of Des Plaines which requires obedience to the laws of the State of Illinois.

66. That the acts described in Counts I through XIV constitute unbecoming conduct by a police officer of the City of Des Plaines in violation of Rule 310.02 of the Police Department of the City of Des Plaines.

67. That the acts described in Count XV constitute a violation of General Order 78 -- 9 of the Police Department of the City of Des Plaines which prohibits Police Officers from leaving their post without permission.

68. That the acts described in Count XV constitute attempted theft in violation of Section 8-4(a) of the Criminal Code of the State of Illinois (Ill. Rev. Stat., 1983, Ch. 38, par. 8-4(a)).

69. That the acts described in Count XV constitute a violation of Rule 310.24 of the Police Department of the City of Des Plaines which requires obedience to the State of Illinois.

70. That the acts described in Count XV constitute unbecoming conduct by a police officer of the City of Des Plaines in violation of Rule 310.02 of the Police Department of the City of Des Plaines.

71. That the acts described in Counts I through XV constitute a substantial shortcoming which renders his continuance in office to be detrimental to the order, discipline and efficiency of the Police Department and good reason for the removal of TIMOTHY SHEEHAN as a Police Officer of the City of Des Plaines.

72. WHEREFORE, LEROY A. ALFANO, requests that TIMOTHY SHEEHAN be removed as a Police Officer of the City of Des Plaines in accordance with the provisions of Section 10.2.1-17 of the Board of Fire and Police Commissioners Act (Ill. Rev. Stat., 1983, Ch. 24, par. 10-2.1-17) and that TIMOTHY SHEEHAN be suspended without pay pending a hearing before the Board in accordance with the provisions of Section 10.1.1-17 of said Act.

CASE RESOLUTION

For the foregoing reasons, plaintiff's petition for rehearing is denied.


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