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05/10/89 David A. Bender, v. the Board of Fire and

May 10, 1989




Before proceeding to the merits of this appeal, we must determine the standard of review applicable to it. Defendant asserts that its findings and Conclusions of fact must be considered prima facie true and correct and cannot be reversed unless against the manifest weight of the evidence. (See, e.g., Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 498 N.E.2d 1148.) However, we believe that defendant's final administrative decision ultimately depended on a legal Conclusion that plaintiff's act of recording his conversation with Pfotenhauer constituted a violation of the eavesdropping statute, not on its finding that he did, in fact, record that conversation. It is well settled that a court of review is not bound by an administrative agency's Conclusions of law, such as the construction of a statute. Chemetco, Inc. v. Pollution Control Board (1986), 140 Ill. App. 3d 283, 488 N.E.2d 639.


539 N.E.2d 234, 183 Ill. App. 3d 562, 131 Ill. Dec. 881 1989.IL.702

Appeal from the Circuit Court of Cook County; the Hon. George M. Marovich, Judge, presiding.


PRESIDING JUSTICE FREEMAN delivered the opinion of the court. RIZZI and WHITE, JJ., concur.


Plaintiff, David Bender, brought a complaint for judicial review of the final administrative decision of defendant, the Board of Fire and Police Commissioners of the Village of Dolton, to discharge plaintiff from his position as a Dolton police officer. The circuit court of Cook County affirmed defendant's decision. Plaintiff appeals.

On March 3, 1986, plaintiff, who was on duty, had a conversation with the Dolton chief of police, George Pfotenhauer, in the latter's office at the Dolton police station. At that time, Pfotenhauer asked plaintiff some questions regarding his overtime and his ownership or operation of a security company. During their conversation, a cassette tape recorder which plaintiff had in his vest pocket made a beeping sound. According to Pfotenhauer, he then asked plaintiff whether he was recording their conversation. Plaintiff admitted he was and Pfotenhauer demanded that plaintiff surrender the tape. Plaintiff contended at the administrative hearing that he had not recorded his conversation with Pfotenhauer. However, on appeal, he does not dispute that he did so or that he refused Pfotenhauer's order to surrender the tape.

Pfotenhauer filed charges with defendant alleging plaintiff's violation of article 4, sections 2.1, prohibiting the violation of a criminal law, and 2.2, prohibiting the disobedience of a lawful order, of the rules and regulations of the Dolton police department. The first charge alleged a violation of section 14-2 of the Criminal Code of 1961, which prohibits eavesdropping. (Ill. Rev. Stat. 1985, ch. 38, par. 14-2.) The second charge alleged plaintiff's disobedience of Pfotenhauer's order to surrender the cassette tape. After an evidentiary hearing, defendant found plaintiff guilty of both charges. Regarding the first charge, defendant specifically found that plaintiff had committed the offense of eavesdropping in that he knowingly used an eavesdropping device to record all or part of his conversation with Pfotenhauer without Pfotenhauer's consent. Defendant thus found that cause existed to discharge plaintiff from the police department.

In the circuit court, the parties argued, inter alia, whether People v. Beardsley (1986), 115 Ill. 2d 47, 503 N.E.2d 346, was retroactively applicable to exonerate plaintiff's conduct of recording the conversation with Pfotenhauer. The trial court decided that Beardsley was not retroactively applicable to plaintiff's case on the basis of Reich v. Board of Fire & Police Commissioners (1973), 13 Ill. App. 3d 1031, 301 N.E.2d 501, and therefore affirmed plaintiff's discharge.

Beardsley held, in relevant part, that the eavesdropping statute did not prohibit the recording of a conversation by a party to the conversation. (People v. Beardsley (1986), 115 Ill. 2d 47, 56, 503 N.E.2d 346.) In Reich, the plaintiff police officer challenged his discharge for violating the statute prohibiting possession of marijuana on the ground that the statute was subsequently found unconstitutional. In rejecting the challenge, the Reich court held that retroactive application of the unconstitutionality of a statute must be limitedly applied. It also held that, as the statute was an operative fact when plaintiff was charged with its violation, he was bound to have obeyed it at that time. Reich v. Board of Fire & Police Commissioners (1973), 13 Ill. App. 3d 1031, 1035, 301 N.E.2d 501.


On appeal, plaintiff contends that, assuming that he did record the conversation with Pfotenhauer, such conduct did not constitute eavesdropping as a matter of law. In support, he cites People v. Klingenberg (1975), 34 Ill. App. 3d 705, 339 N.E.2d 456. *fn1 Klingenberg held that the videotaping of an interrogation after a drunk driving arrest did not violate the eavesdropping statute despite the fact that the defendant did not consent to it. The court reasoned that, since the defendant made his statements directly to the police and intended that they hear his statements, he had no expectation of privacy therein, there was no interception of a private communication, and the recording was not intended to obtain otherwise inaccessible information. Klingenberg, 34 Ill. App. 3d at 708.

Defendant does not directly respond to plaintiff's reliance on Klingenberg. Indirectly doing so, it argues that, assuming plaintiff did not commit the offense of eavesdropping, there is, nonetheless, a reasonable expectation of privacy in a superior's conversation with an employee that prohibits the repetition of their communications. This is especially true, defendant argues, in law enforcement, where confidential matters are routinely discussed and expected to remain undisclosed. Given that they occurred in the office of the chief of police while ...

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