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Rodriguez v. Bagnola

June 23, 1998

MATT RODRIGUEZ, SUPERINTENDENT OF POLICE OF THE CITY OF CHICAGO, PLAINTIFF-APPELLEE,
v.
JAMES BAGNOLA AND THE POLICE BOARD OF THE CITY OF CHICAGO, DEFENDANTS-APPELLANTS. JAMES BAGNOLA, PLAINTIFF-APPELLANT,
v.
MATT RODRIGUEZ, SUPERINTENDENT OF POLICE OF THE CITY OF CHICAGO, AND POLICE BOARD OF THE CITY OF CHICAGO, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Tully

Appeal from the Circuit Court of Cook County.

Honorable Edwin W. Berman & Lester D. Foreman, judges Presiding.

Matt Rodriguez, Superintendent of Police of the City of Chicago ("Superintendent"), filed administrative charges against James Bagnola ("Bagnola") seeking to discharge Bagnola from his position as a Chicago police officer for knowingly possessing cocaine. Initially, on March 11, 1993, the Police Board of the City of Chicago ("the Board") dismissed the charges and ordered that Bagnola be reinstated with back pay. The Superintendent brought a complaint for administrative review to the circuit court of Cook County, naming Bagnola and the Board as defendants. The circuit court vacated the Board's decision and remanded the matter for an administrative hearing. Bagnola filed a motion to dismiss the administrative review appeal, which the circuit court denied. Bagnola appealed to this court under docket number 1-96-1807. While the first appeal was pending, the Board found Bagnola guilty of the charges upon remand, and ordered him discharged. Bagnola appealed the Findings and Decision of the Board to the circuit court of Cook County, and the circuit court affirmed the Board's rulings. Subsequently, Bagnola appealed under docket number 1-97-0094. Both appeals were consolidated. Jurisdiction is vested in this court pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).

FACTUAL HISTORY

The pertinent facts are as follows. James Bagnola was a Chicago police officer since 1973. On July 19, 1991, the Chicago Police Department ("Department") received information from Bagnola's sister and wife that he was using cocaine on a daily basis and became "a maniac." Consequently, the Department ordered Bagnola to report to the Medical Services Section to submit two urine samples for a drug analysis. At that time, Bagnola was scheduled to begin a three-week vacation.

Bagnola reported to the Department's medical services section and submitted two urine specimens, one of which was immediately sent to SmithKline Beecham Clinical Laboratories ("the SKB lab"), which performs all the urinalysis for the Department. The specimens were taken 35 minutes apart because Bagnola needed to drink more fluids to get a second specimen. On July 20, 1991, the Department and Bagnola were informed that the first specimen tested positive for cocaine metabolite benzoylecgonine ("BZE") at a level of 111,372 ng/ml. According to Bagnola, an unidentified individual told him that he could send the second urine specimen to a laboratory of his choice for independent testing, but only if the laboratory were within a 60-mile radius of the City of Chicago and its results could be given to the Department within a 48-hour period. Out of three laboratories, only one, the SKB lab, could return the results within 48 hours. Therefore, in September 1991, Bagnola sent the second specimen to the SKB lab, which also tested positive for BZE at a level of 16,322 ng/ml. It is undisputed that Bagnola was not advised that he had the right to counsel nor was he advised of his administrative proceeding rights in writing.

The Superintendent filed charges against Bagnola on September 4, 1992 for violating the following rules:

"RULE 1: Violation of any law or ordinance.

RULE 2: Any action or conduct which impedes the Department's efforts to achieve its policy and goals or brings discredit upon the Department.

RULE 6: Disobedience of an order or directive, whether written or oral."

In response, Bagnola filed a motion to dismiss based on a failure to comply with the requirements contained in section 10-1-18.1 of the Illinois Municipal Code (Ill. Rev. Stat.1991, ch. 24, par. 10-1-18.1 (now 65 ILCS 5/10-1-18.1 (West 1996))) and section 2-84-030 of the Chicago Municipal Code (Chicago Municipal Code §2-84-030 (1990)). The Board dismissed the charges on March 11, 1993 based on the appellate court's ruling in Corgiat v. Police Board of the City of Chicago, 241 Ill. App. 3d 1, 612 N.E.2d 1343 (1992), which held that a police officer must be advised of statutory administrative rights, including the right to counsel, before a police officer submits a urine sample. The Superintendent filed a complaint for administrative review in the circuit court of Cook County, naming Bagnola and the Board as defendants. While that matter was pending, the Illinois Supreme Court reversed the Corgiat decision, and held that administrative warnings do not have to be issued before an officer is ordered to submit a urine sample, nor will a urinalysis test be considered an examination. Corgiat v. Police Board of the City of Chicago, 155 Ill. 2d 384, 612 N.E.2d 1232 (1993). Based on that ruling, the circuit court vacated the Board's ruling and remanded for an administrative hearing on the merits. Bagnola filed a motion to dismiss the administrative review appeal, which the circuit court denied. Bagnola appealed.

At the evidentiary hearing, the chain of custody was established. Sergeant Thomas Tranckitello of the Internal Affairs Department went with Bagnola to the Random Drug Testing Unit to take a drug screening test. Officer Anna Hanley was working at the unit and checked Bagnola's identification. Sergeant Tranckitello took Bagnola to the restroom and witnessed Bagnola provide the urine specimen, and give it to Officer Hanley. Officer Hanley completed the paperwork, placed the urine sample into a bottle and sealed it with tape. She then placed the bottle into a tamper proof bag, sealed it and labeled it. Bagnola signed an affidavit stating that he had witnessed Officer Hanley's procedure, and then initialed and dated the bag. The urine specimen was sent to the SKB lab.

Officer Hanley informed Bagnola that another sample was needed and to get something to drink. Half an hour later, Bagnola provided another specimen and went through the entire procedure again. Tranckitello never lost sight of Bagnola while he was providing the samples and witnessed the whole procedural paperwork.

The first specimen ("Sample A") arrived at the SKB lab, where it was received by Maryellen Stickling, a SKB employee. She testified that she checked the accuracy of the date, checked the identification numbers on the paperwork and on the bottle, ensured that the seal on the bottle of Sample A was intact and that no tampering had occurred. Once Stickling finished checking these items, she fully logged in all the information into a computer. Stickling then opened the bottle and poured a small amount into a vial and handed it to a technician to perform the actual drug screening test. The remaining Sample A was placed in temporary storage.

The Superintendent offered other witnesses to testify in regard to the chain of custody. Erin McCourt Omori stated that she had reviewed and verified the test results and the chain of custody for the EMIT test screening of Sample A. The EMIT screening test is a qualitative test and any positive result from it is presumptive for the drug that it screened for. The EMIT screen for Sample A was positive for both opium and cocaine. Regina Coleman testified that she was an SKB specimen processor and performed the confirmation testing on Sample A. Next, Junko Otte, a certified scientist at SKB who has five years of experience in certifying the results of specimen tests, reviewed the litigation package for Sample A, which contained documents such as the chain of custody forms, information on the Gas Chromatography Mass Spectroscopy (GC/MS) machine for calibration and quality control, and the test results. Otte certified that Sample A's test result was positive for BZE at a level of 111,372 ng/ml. She explained that any amount above 150 ng/ml would be positive. Carol Trojan was offered as an expert in toxicology. Trojan is a certified scientist at SKB for four years and testified that she had reviewed Sample A's litigation package, reviewed the initial test results and the confirmation test results. She explained EMIT screening tests were conducted to detect whether the urine contained certain substances. Trojan had found that Sample A tested positive for BZE and codeine.

Trojan further testified that Sample B was received by SKB on September 13, 1991. An EMIT screening and a GC/MS test were performed, and both yielded a positive result for cocaine metabolites and opiates at a level of 16,322 ng/ml of BZE and 773 ng/ml of codeine. She explained that the results differed because the samples were from different voids, or two separate acts of urination approximately 30 minutes apart on the same day. Other witnesses who testified in regard to Sample B were Sergeant Wayne Hovland and Sergeant Christine Kolman. Sergeant Hovland worked at the Random Drug Testing Unit and was contacted by Bagnola to have the second specimen ...


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