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03/08/94 RONALD IVY v. ILLINOIS STATE POLICE AND

March 8, 1994

RONALD IVY, PLAINTIFF-APPELLANT,
v.
ILLINOIS STATE POLICE AND THE ILLINOIS STATE POLICE MERIT BOARD, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ALBERT GREEN, JUDGE PRESIDING.

As Modified on Denial of Rehearing June 27, 1994. Released for Publication July 14, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Campbell, O'connor, Jr., Manning

The opinion of the court was delivered by: Campbell

MODIFIED ON DENIAL OF REHEARING

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Following an administrative hearing, plaintiff, Ronald Ivy, was discharged from his position as an Illinois State Trooper by the Illinois State Police Merit Board (Merit Board) for violations of Department policy. Ivy sought administrative review in the circuit court of Cook County, naming the Merit Board and the Illinois State Police (Department) as defendants. The circuit court affirmed the hearing officer's decision. On appeal, Ivy contends that: (1) the hearing officer improperly prevented him from calling witnesses on his behalf at the administrative hearing; (2) the charges against him must be dismissed because they are based on the same conduct and allegations from which he was previously cleared; (3) the hearing officer's findings of fact and Conclusions of law are contrary to the manifest weight of the evidence; (4) the hearing officer failed to make and report findings of fact on material issues in his favor; and (5) the Merit Board erred in determining that the hearing officer's findings of fact provided a sufficient basis for his discharge. For the following reasons, we reverse the judgment of the circuit court, and remand this matter for further proceedings consistent with this opinion.

The record sets forth the following relevant facts. On May 10, 1987, Ivy was on duty patrolling Interstate 94 at Route 394 in a marked police squad car. At approximately 3 p.m., Ivy stopped Messenger, who was driving a Toyota Forerunner truck, for failure to wear a seat belt and for an expired license registration.

Messenger, age 19, told Ivy that the truck belonged to his father and that he was not aware of any problem with the registration. Ivy informed Messenger that because he was driving the truck, he would receive the citations. Because Messenger was driving on a previous traffic citation and had neither his license, a bond card, nor $50 to post bond, Ivy informed Messenger that he would have to be processed at the police station. Ivy initially agreed to take Messenger to Messenger's father to get the bond money, but then changed his mind and proceeded to the Sauk Village Police Station. Ivy allowed Messenger to ride in the front seat of the squad car, and did not place Messenger in handcuffs.

At approximately 3:30 p.m., Ivy led Messenger into the bookingroom at the Sauk Village Police Station to be processed and incarcerated pending the posting of bond. During the booking process, an altercation ensued between Ivy and Messenger, wherein Ivy punched Messenger in the eye. The record indicates that the injury required five stitches.

Following the incident, Messenger filed a personnel complaint against Ivy with the State Police. On October 1, 1987, following an investigation into the complaint, Colonel L.A. Nargelenas, Superintendent of the State Police, Division of State Troopers, issued a short memorandum in which he stated that Ivy acted properly under the circumstances, and that he did not wish to seek disciplinary action. Nargelenas concluded by ordering that the case be closed.

In January 1988, Messenger filed a three-count complaint in the U.S. District Court against the Department, Ivy and Master Sergeant Salinas, Ivy's immediate commander, for "abuse, coercion, brutality, and unusual punishment;" civil rights violations under U.S.C. Section 1983; and assault and battery. Messenger sought the same damages for each count: compensatory damages from each defendant, jointly and separately, in the amount of $1,100; punitive damages against each party in the amount of $100,000; and costs. The record indicates that all three defendants were represented by the Office of the Illinois Attorney General, and that sometime on or before October 26, 1988, an Assistant Attorney General settled the civil action. Documents relating to the settlement and the terms of the settlement are not included in the record on appeal. *fn1

On June 9, 1989, the Director of State Police filed a two count complaint with the Merit Board charging Ivy with violating Department policy based on the May 10, 1987, incident. At Ivy's request, a hearing on the sufficiency of the Merit Board's charges proceeded before hearing officer Terry C. Chiganos, on January 8, 1990, concluding on January 10, 1990.

Ivy was charged by the Merit board with two counts of alleged violations of the Rules of Conduct of the Department of State Police. In count I, the Merit Board alleged violations of the Illinois State Police Rules of Conduct, (Rules of Conduct) paragraph 1-6, Unbecoming Conduct, paragraph 1-36, Treatment of Persons in Custody, andparagraph 1-37, Use of Force. In count II, the Merit Board alleged violations of the Rules of Conduct, paragraph 1-31, Abuse of Process, and paragraph 1-39, Arrest, Search, and Seizure.

The record shows that the booking room was monitored by a video camera, and that all activity taking place in the room was recorded on video tape. A copy of the video tape and a transcript of the audio portion of the tape were introduced into evidence at the hearing. The hearing officer considered the video tape to be the best evidence of the events that transpired in the Sauk Village booking room, and the basis of the charges and alleged violations of the Rules of Conduct against Ivy.

Following the hearing, the hearing officer submitted a written report containing the following findings of fact and Conclusions of law. Ivy testified to the events surrounding the traffic stop, as stated previously. Ivy further stated that although Messenger was not disrespectful to him in the squad car, he was very "verbal." Messenger testified that Ivy was not courteous and used harsh language and profanity toward him from the outset of the incident.

Once in the booking room, Ivy told Messenger to sit on the "prisoners" bench, and Messenger complied. Sauk Village police officer Kevin Koliboski, testified that the bench was wobbly and wooden, approximately one foot wide, and two feet high. Ivy sat at the desk in the center of the room and called his headquarters. During the telephone call, Ivy referred to Messenger as a "snot smart kid." Ivy admitted during the hearing that this comment constituted conduct unbecoming an officer.

Messenger informed Ivy that he had a telephone number where his father could be reached, and then gave Ivy a telephone number. Ivy dialed the number and hung up after 14 seconds. Ivy asked Messenger for another telephone number, claiming that he had let the telephone ring nine times without getting any answer. Messenger and Ivy argued about whether Ivy let the telephone ring long enough. Ivy then told Messenger to "sit over there and shut up." Messenger persisted that Ivy did not let the telephone ring long enough, and that he was allowed one telephone call.

Ivy then told Messenger to empty his pockets, take his belt off and sit down on the bench. Ivy then left the room, and reentered with Officer Koliboski. Koliboski told Messenger to take the shoelaces out of his shoes, while Messenger continued to request a ...


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