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10/25/95 ERIC SINDERMANN v. CIVIL SERVICE

October 25, 1995

ERIC SINDERMANN, PLAINTIFF-APPELLANT,
v.
THE CIVIL SERVICE COMMISSION OF THE VILLAGE OF GURNEE; ITS COMMISSION MEMBERS MICHAEL HUGHES, STANLEY MILLER AND VALERIE BOETTLE CECKOWSKI; JOHN WARD, FORMER CHIEF OF POLICE OF THE VILLAGE OF GURNEE, AND HENRY SCHWARZ, INTERIM CHIEF OF POLICE OF THE VILLAGE OF GURNEE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 94-MR-210. Honorable William D. Block, Judge, Presiding.

Petition for Leave to Appeal Denied January 31, 1996.

The Honorable Justice Bowman, delivered the opinion of the court: Thomas and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendants John Ward, former Chief of Police of the Village of Gurnee, and Henry Schwarz, Gurnee's Interim Chief of Police of the Village of Gurnee (Chief), filed charges of misconduct before defendant Civil Service Commission of the Village of Gurnee (Commission) against plaintiff Eric Sindermann, a Gurnee police officer. Defendants Michael Hughes, Stanley Miller, and Valerie Boettle Ceckowski are members of the Commission (commissioners). After conducting a hearing, the Commission found plaintiff guilty of misconduct and discharged him. Plaintiff then brought this complaint for administrative review against defendants pursuant to the Administrative Review Law (Review Law) (735 ILCS 5/3-101 et seq. (West 1994)). The trial court affirmed the findings and conclusions of the Commission in all respects, and plaintiff appealed to this court. We affirm.

BACKGROUND

The following summary of the facts is taken from the record. In November 1986, the Illinois Department of Transportation (IDOT) hired plaintiff as a full-time seasonal snowplow operator. IDOT employs such operators each year from November 16 through March 31. Plaintiff worked at least 40 hours per week while he was employed by IDOT. Apparently in late December 1986, plaintiff, while fueling an IDOT truck at an IDOT facility, drove away from the fuel pump before removing the nozzle of the pump from the gas tank. The pump was pulled out of its base and rendered inoperable. Plaintiff's actions did not cause any injury or fire. On February 17, 1987, IDOT sent a letter to plaintiff stating: "This is to advise you that your services with the Illinois Department of Transportation will be terminated on February 20, 1987, at the close of business due to careless equipment operation." Plaintiff did not work for IDOT after February 20, 1987.

On October 19, 1989, plaintiff filled out a written employment application for the position of probationary patrol officer with the police department of the Village of Gurnee (department). The first paragraph of the application form stated:

"Read every question carefully and ANSWER EACH QUESTION ACCURATELY. An applicant may be disqualified from further processing if he/she intentionally makes a false statement of a material fact, practices or attempts to practice any deception or fraud in his/her application, examination of appointment. Any false statements on this application will be considered sufficient cause for dismissal. *** If space provided is not sufficient for complete answers or if you wish to provide additional information, show on the reverse side of the application and number answers to correspond with questions."

Question 17 asked the applicant to list his past work record. In response to question 17, plaintiff listed two past employers, North Loop Heating and the Gurnee fire department. For North Loop Heating, plaintiff listed his dates of employment as June 1984 to the date of the application. For the Gurnee fire department, plaintiff listed his dates of employment as October 1987 to February 1989. Question 19 asked the applicant if he had ever been discharged or asked to resign from any employment. In response to this question, plaintiff checked the space labelled no. Plaintiff also signed an affidavit attached to the employment application. This affidavit stated, in part, that "I have personally read and answered each and every applicable question herein, and do solemnly swear that each and every answer is whole and correct in every respect." Plaintiff was subsequently hired as a police officer.

Plaintiff was a Gurnee police officer for approximately three years when he became involved in what the parties refer to as "the Cerone incident." On June 18, 1993, between 3 and 5 p.m., plaintiff responded to a call concerning a fight between two teenagers. While en route to the scene, plaintiff was informed over the radio that the youths involved in the altercation were fleeing and that one of the suspects in the altercation was "Mark Cerone." Plaintiff knew where the Cerone residence was located and proceeded directly there. While en route, plaintiff observed an individual matching the description of "Mark Cerone" running in the direction of the house. He lost sight of this individual, however, direction of the house. He lost sight of this individual, however, and never observed anyone actually enter the Cerone residence. Upon his arrival at the house, he walked into the garage, walked up the stairs leading to the kitchen door, opened the door and entered the house. Plaintiff did not have a search warrant. Plaintiff located Michael Cerone inside the residence and escorted him outside. Soon thereafter, additional officers arrived on the scene.

In late June 1993, Commander Terry Mors interviewed plaintiff about the incident, but plaintiff was not disciplined. Meanwhile, sometime in the spring of 1993, the department received an anonymous tip that plaintiff had worked for IDOT. By the fall of 1993, the department had confirmed that IDOT had employed plaintiff.

On September 21, 1993, the department placed plaintiff on paid administrative leave. On October 2, 1993, plaintiff was interviewed about the Cerone incident and about his employment application. On October 26, 1993, Chief Ward filed charges with the Commission seeking plaintiff's discharge. The charges stated that "[a] summary of Officer Sindermann's disciplinary record is set forth as Attachment A to this Notice." Attachment A contained a summary of plaintiff's disciplinary record. On November 29, 1993, the Chief filed amended charges with the Commission. Like the first set of charges, the amended charges included a summary of plaintiff's disciplinary record. On January 3, 1994, the Chief filed a final amended set of charges. These charges accused plaintiff of misconduct based on (1) plaintiff's falsification of his employment application with the department; and (2) plaintiff's violation of departmental rules and constitutional requirements in the Cerone incident. The final set of charges stated that "the Department will offer Officer Sindermann's performance and disciplinary record with the Department in aggravation of the charges."

The hearing on the charges consisted of testimony taken on several days spread over a four-month period. Before testimony began, plaintiff moved the Commission to appoint a special officer to hear the charges, because the attachments to the charges, which summarized his disciplinary record, prejudiced his right to a fair hearing. The Commission denied the motion. [The following material is nonpublishable under Supreme Court Rule 23.] [The preceding material is nonpublishable under Supreme Court Rule 23.]

At the hearing, plaintiff testified as an adverse witness. Plaintiff testified that IDOT terminated his employment after the fuel pump incident. Plaintiff could not specifically recall why he had been terminated, but he knew it was related to the fuel pump incident. Also, plaintiff could not initially recall if he had received a letter from IDOT advising him of his termination. However, once the February 17, 1987, letter of discharge was shown to him, plaintiff admitted receiving it. Plaintiff also admitted that he failed to list three additional employers other than IDOT in response to question 17 of the employment application form.

[The following material is nonpublishable under Supreme Court Rule 23.]

[The preceding material is nonpublishable under Supreme Court Rule 23.]

On April 26, 1994, the Commission issued its findings and decision. The Commission found that plaintiff knowingly failed to disclose on his employment application that IDOT had employed and discharged him and that plaintiff's testimony on this matter was internally inconsistent, evasive, and not credible. The Commission also found that plaintiff's warrantless entry into the Cerone residence violated the Cerone family's constitutional rights.

[The following material is nonpublishable under Supreme Court Rule 23.] [The preceding material is nonpublishable under Supreme Court Rule 23.]

After considering aggravating and mitigating factors, the Commission concluded that plaintiff's failure to report his employment and discharge by IDOT "demonstrated a substantial shortcoming which renders continuance in employment in someway detrimental to the discipline and efficiency of the Police Department of the Village of Gurnee and something which the law and sound public opinion recognize as cause for the officer no longer occupying his position." The Commission then ordered plaintiff discharged as a police officer. The Commission noted, however, that plaintiff's actions at the Cerone residence, viewed in isolation, were insufficient grounds for dismissal. The Commission therefore considered plaintiff's actions at the Cerone residence as an aggravating factor of the charges against plaintiff.

Plaintiff brought a complaint for administrative review against defendants pursuant to the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 1994)). The trial court affirmed the findings and conclusions of the Commission. Plaintiff then filed this timely appeal pursuant to Supreme Court Rule 301 (Official Reports Advance Sheet No. 26 (December 22, 1993), R. 301, eff. February 1, 1994) and section 3-112 of the Review Law (735 ILCS 5/3-112 (West 1994)).

ARGUMENT(S)

On appeal, plaintiff contends (1) the Commission should have appointed a special officer to hear the charges; (2) the Chief was barred from filing charges against plaintiff as a result of the Cerone incident; (3) plaintiff's entry into the Cerone residence was constitutional; (4) plaintiff's failure to include his prior employment by IDOT on his employment application was a de minimis violation and unrelated to his duties as a police officer; and (5) the admission into evidence of plaintiff's disciplinary record violated the Personnel Record Review Act (820 ILCS 40/0.01 et seq. (West 1994)).

Before addressing the contentions, however, it is appropriate to explain the standard of review. Section 10-1-45 of the Civil Service in Cities Act (65 ILCS 5/10-1-45 (West 1994)) provides that judicial review of the Commission's decision shall be in accordance with the Review Law (735 ILCS 5/3-101 et seq. (West 1994)). Section 3-110 of the Review Law provides that our review "extend[s] to all questions of law and fact presented by the entire record before the court." (735 ILCS 5/3-110 (West 1994).) Our review is limited to the record before us--we may not hear new or additional (735 ILCS 5/3-110 (West 1994).) Moreover, "the findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct." 735 ILCS 5/3-110 (West 1994).

Given these statutory guidelines, a reviewing court's function is to ascertain whether the findings and decisions of the agency are against the manifest weight of the evidence. ( Abrahamson v. Illinois Department of Professional Regulation (1992), 153 Ill. 2d 76, 88, 180 Ill. Dec. 34, 606 N.E.2d 1111.) A finding is against the manifest weight of the evidence only if an opposite conclusion is clearly evident. ( Abrahamson, 153 Ill. 2d at 88.) The mere fact that an opposite conclusion is reasonable or that the reviewing court might have ruled differently will not justify reversal of the agency's findings. Abrahamson, 153 Ill. 2d at 88.

I.

We now turn to the merits of the appeal. Plaintiff first contends that the Commission should have appointed a special officer to hear the charges filed against plaintiff. As explained above, the original and amended charges contained attachments summarizing plaintiff's disciplinary history with the department. According to plaintiff, the inclusion of these attachments destroyed the Commission's ability to impartially judge the charges levied against him, thus denying him his right to due process of law guaranteed by the Illinois and Federal constitutions.

The due process clauses of the Illinois and Federal constitutions prohibit the State from depriving any person of life, liberty, or property, without due process of law. (See U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I, § 2.) "Due process is a flexible concept and requires only such procedural protections as fundamental principles of justice and the particular situation demand." ( Abrahamson, 153 Ill. 2d at 92.) Although fundamental principles of due process apply to administrative proceedings ( Abrahamson, 153 Ill. 2d at 92; Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 369, 101 Ill. Dec. 640, 498 N.E.2d 1148), procedural due process in an administrative ...


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