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02/04/94 JOSEPH WASHINGTON III v. POLICE BOARD CITY

February 4, 1994

JOSEPH WASHINGTON III, PLAINTIFF-APPELLEE,
v.
POLICE BOARD OF THE CITY OF CHICAGO, DEFENDANT, AND MATT RODRIGUEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Lester D. Foreman, Judge Presiding.

Released for Publication March 18, 1994. As Corrected May 26, 1994. Petition for Leave to Appeal Denied June 2, 1994.

Giannis, McNAMARA, Rakowski

The opinion of the court was delivered by: Giannis

JUSTICE GIANNIS delivered the opinion of the court:

Following an administrative hearing the Police Board of the City of Chicago (the board or the Police Board) issued a decision discharging plaintiff-appellee, Joseph Washington (plaintiff), from his position as a Chicago police officer. The board based its ruling upon a finding that plaintiff had possessed and used cocaine in violation of Chicago Police Department rules. On administrative review, the circuit court reversed the board's findings on the ground that the Chicago Police Department (the department) had failed to advise plaintiff of his rights before it ordered him to submit to a urine test. The Superintendent of Police, Matt Rodriguez, now appeals the decision of the circuit court. We have jurisdiction under Supreme Court Rule 301 and 303 (134 Ill. 2d R. 301, R. 303).

On February 28, 1989, the department instituted an investigation into allegations that plaintiff had obtained Tylenol #3 (with codeine) through the use of a forged prescription. Pursuant to this investigation, plaintiff's supervisors informed him that he was required to go with them to the department's Medical Section for a drug test. Plaintiff was not informed of any rights he may have had at this time with regard to the testing.

At the Medical Section plaintiff produced a urine sample. The laboratory chosen by the department to test the sample returned a result that indicated the presence of both codeine and cocaine. The results were negative for the presence of phencyclidine, amphetamine, barbiturates, methadone, benzodiazepines (valium and librium), cannabinoids (marijuana metabolite), methaqualone and propoxyphene. Plaintiff was criminally charged regarding the false prescriptions. See Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1406(b), now codified at 720 ILCS 570/406(b) (West 1992).

On May 17, 1990, plaintiff pled guilty to one count of misdemeanor attempt. Judgment was entered on the plea and defendant was sentenced to on year conditional discharge.

On August 3, 1990, the Superintendent of Police filed charges before the Police Board with regards to plaintiff's admitted violation of the law (misdemeanor attempt). A hearing was held before the Police Board and plaintiff was suspeded without pay for 90 days.

Previously, on September 11, 1990, the Superintendent had filed a separate case before the Police Board regarding allegations that plaintiff had illegally possessed and/or used both codeine and cocaine. A second proceeding on these charges began May 21, 1991. At these proceedings plaintiff stated that he watched as his sample was placed into an empty bottle, numbered and sealed. When examined by his own attorney, plaintiff stated that he was under the care of a physician at the time of the drug test and that his doctor had given him a prescription for Tylenol #3 with codeine. Plaintiff denied that he ever used cocaine "while he was a police officer" and denied that the sample he produced tested positive because he was "a user of cocaine on March 8, 1989."

Detective George Brown testified that he transported Plaintiff's urine sample transported to the laboratory on March 14, 1989. He stated that some 600 samples were taken to the laboratory that day in multiple cars but that plaintiff's sample was one of four samples that he personally transported.

The proceedings before the Police Board were continued until approximately a month later on June 24, 1991. The department again called plaintiff to the witness stand as an adverse witness. Once again plaintiff testified that he did not use drugs while he was a member of the department. When he was asked if he had ever told anyone that he used drugs while a member of the department, however, plaintiff answered that he had done so. The department asked plaintiff if he had ever told Dr. Anderson Freeman on July 20, 1989, that he used drugs while a member of the department. Plaintiff's counsel objected and argued that what plaintiff said on July 20, 1989, several months after the charges had been initiated, was not relevant to the pending charges. Counsel for the department answered that he was asking the question for impeachment purposes only and that he could "prove it up." The hearing officer noted that plaintiff had just admitted that he told someone that he had used drugs while a member of the department so that the question was not impeaching. The objection was sustained.

The department next asked plaintiff if, "in the Spring of 1989," he was in a 12-step program for drug abuse. Plaintiff answered "yes." Plaintiff then admitted that he was, at that time and while a member of the police force, being treated for cocaine abuse. When asked why he had answered earlier in the proceedings that he did not use cocaine while a member of the police force, plaintiff stated that he believed the question only pertained to whether he used drugs while on active duty. Plaintiff then admitted that he used cocaine in March of 1989.

Doyle Lonski, Dr. Vinod Soni and Dr. Krishan Kaista each testified as to how plaintiff's urine was tested for various substances through the use of both an EMIT and GCMS test. Lonski stated that when he received the sample it appeared intact and was without any signs of tampering. Lonski and Soni calculated the calibration values for the EMIT testing device and Lonski testified that he set up the GCMS testing device for use on plaintiff's sample. The department offered testimony from each of these men as to how the tests were conducted and how the machines were calibrated. Kaista testified that he was the certifying chemist for the ...


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