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05/26/94 STEVEN SCHINKEL v. BOARD FIRE AND POLICE

May 26, 1994

STEVEN SCHINKEL, PLAINTIFF-APPELLANT,
v.
BOARD OF FIRE AND POLICE COMMISSION OF THE VILLAGE OF ALGONQUIN, FRANK FREYRE, JOHN D. KONITZER, KATHIE DERON AND DONALD BREWER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McHenry County. No. 90-MR-0137. Honorable Michael J. Sullivan, Judge, Presiding.

Released for Publication June 27, 1994. Petition for Leave to Appeal Denied October 6, 1994.

PECCARELLI, Quetsch, Colwell

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Plaintiff, Steven Schinkel, appeals from an order of the circuit court of McHenry County which affirmed the decision of defendant, the Board of Fire and Police Commission (Board) of the Village of Algonquin (Village), to terminate plaintiff's employment as a lieutenant in the Algonquin police department (APD). In addition to the Board and its individual members, plaintiff's complaint for administrative review named Village president, Donald Brewer (hereinafter the Mayor), as a defendant.

On appeal, plaintiff contends that: (1) the Board lacked jurisdiction to hear or decide the complaint against plaintiff because the Mayor filed the complaint rather than the APD chief (Chief) as required by the Algonquin Police Commission Rules and Regulations (Rules); (2) the Board erred when it based certain findings on the wrong standard of proof in violation of the Rules; and (3) the circuit court erred when it denied plaintiff's motion for sanctions.

BACKGROUND

An incident which occurred on March 17, 1990, precipitated the complaint against plaintiff who was a 17-year veteran of the APD at the time, and second in command to the Chief. On that date, Molly Hudson (Hudson), who was 20 years old, committed suicide in plaintiff's residence by shooting herself in the head with plaintiff's gun while plaintiff was in a nearby room. Shortly after Hudson's death, a citizen's committee, which called itself "Concerned Citizens for Algonquin Police Reform," began documenting alleged incidents of Algonquin police wrongdoing. The committee viewed the incident involving Hudson as the "last straw" in a series of incidents of police wrongdoing.

On June 13, 1990, the committee presented 27 allegations of police wrongdoing to the Board. The committee also presented the Board with petitions signed by approximately 800 area citizens and a letter from the committee demanding that the police commission make immediate changes to improve the APD. The letter stated that the committee acted because it wanted to express a general concern about improper conduct by APD officers.

The allegations of police wrongdoing presented to the Board involved several APD officers, including plaintiff. On July 6, 1990, the Mayor filed a seven-count complaint against plaintiff with the Board. The counts in the complaint were based on some of the committee's allegations involving plaintiff. The Mayor subsequently amended count V of the complaint and added count VIII.

Each of the eight counts in the amended complaint against plaintiff described conduct which allegedly satisfied the "cause" clause of the Board of Fire and Police Commissioners Act (Act) (65 ILCS 5/10-2.1-1 et seq. (West 1992)). The cause clause provides, in relevant part: "No officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense." 65 ILCS 5/10-2.1-17 (West 1992).

Each of the eight counts also charged plaintiff with the violation of one or more APD rules or regulations (police rules). These alleged violations included: conduct unbecoming a police officer; inattention to duty; and incapacity or inefficiency in the service.

Count I of the complaint against plaintiff alleged that plaintiff failed immediately to notify the Chief after plaintiff learned that in December 1988 Hudson, while employed as an APD dispatcher, took another APD officer's gun without that officer's permission and that Hudson used the gun in an unsuccessful attempt to commit suicide. Count I also alleged that plaintiff allowed Hudson to continue working as an APD dispatcher after this incident.

Count II alleged that in the summer of 1989 plaintiff, while driving an unmarked APD vehicle, stopped the car of an off-duty APD probationary patrolman shortly after the probationary patrolman had seen Hudson socially. Count II implied that plaintiff improperly used his position as a lieutenant in the APD to influence the probationary patrolman not to date Hudson when he told the probationary patrolman that the patrolman had a "serious f///--- problem."

Count III alleged that in May 1989, in a bar, plaintiff made physical contact of an insulting or provoking nature with Hudson by screaming at her and poking her in the chest. Count III charged that this conduct, in addition to violating the cause clause of the Act and police rules, violated the following assault and battery provisions of the Criminal Code: Ill. Rev. Stat. 1991, ch. 38, par. 12-1 (now 720 ILCS 5/12-1 (West 1992)); Ill. Rev. Stat. 1991, ch. 38, par. 12-3 (now 720 ILCS 5/12-3 (West 1992)).

Count IV alleged that in January 1989, in a business establishment in Algonquin, plaintiff allowed Hudson to possess and to be under the influence of an alcoholic beverage although Hudson was under the age of 21 years.

Count V alleged that in the fall of 1988, in a business establishment in Schaumburg, plaintiff purchased an alcoholic drink for Hudson who was under the age of 21 years, and offered to purchase an alcoholic drink for another female who was also under the age of 21 years.

Count VI alleged that on numerous occasions during 1988 and 1989, at a business establishment in Carpentersville, plaintiff purchased alcoholic drinks for Hudson who was under the age of 21 years.

Count VII alleged that on March 17, 1990, plaintiff allowed Hudson to have access to his home and his gun and that Hudson used plaintiff's gun to commit suicide when plaintiff was aware that Hudson had previously taken another gun and attempted to commit suicide with it, as alleged in count I.

Count VIII alleged that in May or June of 1989, in a business establishment in East Dundee, plaintiff purchased an alcoholic beverage for Hudson who was under the age of 21 years, and allowed Hudson to be in possession of alcohol. Count VIII charged that in addition to violating the cause clause of the Act and police rules plaintiff's conduct also violated a section of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1991, ch. 43, par. 93-9 et seq. (now 235 ILCS 5/1-1 et seq. (West 1992))) which provides, in relevant part:

"No person, after purchasing or otherwise obtaining alcoholic liquor, shall sell, give or deliver such alcoholic liquor to another person under the age of 21 years, except in the performance of a religious ceremony or service. Whoever violates the provisions of this paragraph of this subsection (a) is guilty of a Class A misdemeanor." Ill. Rev. Stat. 1991, ch. 43, par. 131(a) (now 235 ILCS 5/6-16(a) (West 1992)). (We note that the complaint cited this provision as "Illinois Revised Statutes, chapter 43, section 121(a)," which appears to be a scrivener's error.)

The Board conducted a hearing on the complaint against plaintiff. The hearing consisted of multiple sessions over a three-day period. At the hearing, various witnesses, including plaintiff, testified and were subjected to cross-examination. After the hearing, the Board found that the Mayor had proved counts I, II, III, VII, and VIII by a preponderance of the evidence. After an additional hearing to consider factors in aggravation and mitigation, the Board ordered plaintiff's termination from his employment with the APD, effective August 31, 1990.

On September 27, 1990, plaintiff filed a complaint in the circuit court for administrative review of the Board's decision. Plaintiff sought review under the Administrative Review Act (Ill. Rev. Stat. 1991, ch. 110, par. 3-101 et seq. (now ...


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