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O'Keefe v. Illinois State Police Merit Board

May 26, 2000

DANIEL T. O'KEEFE, PLAINTIFF-APPELLANT/ CROSS-APPELLEE,
v.
ILLINOIS STATE POLICE MERIT BOARD AND TERRANCE W. GAINER, DIRECTOR, ILLINOIS STATE POLICE, DEFENDANTS-APPELLEES/ CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County. No. 96 CH 13037 The Honorable Thomas P. Durkin, Presiding Judge.

The opinion of the court was delivered by: Justice Buckley

On February 17, 1995, defendant, the Illinois State Police (ISP), indefinitely suspended plaintiff, Trooper Daniel O'Keefe, without pay and pending a termination proceeding before the Merit Board (Board) pursuant to section 14 of the State Police Act (the Act) (20 ILCS 2610/14 (West 1998)). On June 16, 1995, ISP filed a 10-count complaint before the Board, alleging various instances of misconduct by O'Keefe. On September 24, 1996, a hearing officer found that ISP had proven 9 of the 10 counts. On October 31, 1996, the Board unanimously adopted the hearing officer's findings and discharged O'Keefe. On review, the circuit court affirmed the Board in part and reversed in part. O'Keefe now appeals to this court, arguing that: (1) the hearing officer erred in denying his motion to suppress his statements to investigators and his drug-test results; and (2) that ISP's investigation violated a collective bargaining agreement. ISP cross-appeals, arguing that the circuit court erred in finding that O'Keefe was entitled to pay while the Board hearing was pending. We affirm.

I. BACKGROUND

Paula Barrows testified at an evidence deposition that she is a special agent with the Federal Bureau of Investigation and that she formerly worked for ISP. Barrows further testified that, On February 17, 1995, she became involved in an investigation regarding O'Keefe. According to Barrows, an informant, John Hernandez, had been arrested on drug charges and told investigators that O'Keefe had been supplying him with confidential information in exchange for cocaine. Hernandez met with Barrows that same day and, according to Barrows, stated that he had been supplying O'Keefe with cocaine for over five years. In exchange for the cocaine, O'Keefe gave Hernandez confidential information relating to police code words, planned drug busts, and license plate information. According to Barrows, O'Keefe also gave Hernandez an "EPIC book." Barrows explained that an "EPIC book" contains intelligence information involving narcotics trafficking throughout the United States and probably the world, including information regarding current narcotics investigations.

To corroborate Hernandez' story, Barrows instructed Hernandez to call O'Keefe and ask him to run a particular license-plate number. Barrows and other investigators watched Hernandez dial O'Keefe's telephone number, saw O'Keefe's number appear on the display of Hernandez' cellular telephone, and shared the telephone with investigators so that they could hear the conversation and identify O'Keefe's voice. Later that day, O'Keefe called back and provided the information Hernandez requested. Barrows verified through an ISP telecommunicator that, while O'Keefe was off duty that day, he had in fact called in a request for information regarding the same license- plate number. Also that day, Barrows and three other officers searched O'Keefe's squad car. Inside, they found several Penthouse magazines, individual photographs of a naked woman, and a set of brass knuckles. ISP prohibits troopers from having any such items in their patrol cars.

Arthur Sebek, a squad supervisor in the ISP internal investigations division, testified that he was also present when Hernandez called O'Keefe, that he could identify O'Keefe's voice, and that he heard O'Keefe provide the license-plate information. Later that evening, O'Keefe was instructed to report to police headquarters. Sebek testified that, when O'Keefe arrived, and before Sebek could say anything, O'Keefe stated that he had known Hernandez for several years and that Hernandez was involved in drugs. According to Sebek, O'Keefe admitted, without being asked, that he ran a license plate for Hernandez and that he knew it was a mistake. Sebek testified that he cut O'Keefe off and instructed him to complete a urinalysis test. Sebek accompanied O'Keefe to the testing center and then returned to police headquarters with O'Keefe. When the pair returned, O'Keefe's commander informed O'Keefe that he was suspended without pay. O'Keefe's urinalysis results indicated that he had cocaine in his system.

On June 16, 1995, the ISP Director filed a 10-count complaint with the Board, alleging numerous instances of official misconduct and requesting that O'Keefe be discharged. On February 1, 1996, O'Keefe filed a motion to quash his suspension and be reinstated or, alternatively, to be suspended with retroactive pay. O'Keefe also filed a motion to suppress the urinalysis test's results. On May 16, 1996, a hearing officer denied O'Keefe's motions.

The hearing officer conducted a hearing on ISP's complaint, spread over several dates between May 21, 1996, and July 30, 1996. On May 23, 1996, O'Keefe filed a supplemental motion to repress the urinalysis test's results, arguing that new evidence appeared indicating that an external chain-of-custody error had occurred. On September 24, 1996, after hearing testimony from several witnesses, including O'Keefe, Hernandez, Sebek, several physicians, and several ISP officials, the hearing officer denied O'Keefe's supplementary motion to suppress and submitted her proposed findings of facts and conclusions of law. The hearing officer found that O'Keefe knowingly associated with drug traffickers, had observed illegal drug use but failed to report it to ISP, divulged confidential information to drug traffickers (including license plate and drug enforcement information) in exchange for cocaine, used cocaine while on or off duty, and had sexually explicit materials and unauthorized weapons in his patrol car. Further, the hearing officer found that ISP met its burden in proving 9 of the 10 counts in its complaint. On October 31, 1996, the Board unanimously adopted the hearing officer's findings of fact and conclusions of law, and ordered that O'Keefe be removed and discharged from ISP.

On November 27, 1996, O'Keefe filed a petition for administrative review before the circuit court. O'Keefe argued that the investigation and suspension violated section 14 of the Act and the collective bargaining agreement between ISP and the Fraternal Order of Police (FOP), and that the Board improperly relied on his urinalysis test results despite procedural and custodial errors. On August 1, 1997, the circuit court found that ISP violated section 14 of the Act by suspending O'Keefe without pay and pending the hearing, and the court entered an order remanding the matter to the Board for payment of back pay. According to the transcript, the court also found that ISP violated section 14 of the Act by questioning O'Keefe without sufficient notice, and that evidence obtained from such questioning should have been suppressed pursuant to section 14a of the Act (20 ILCS 2610/14a (West 1998)), but that sufficient evidence nevertheless existed to support the Board's finding. Further, the circuit court refused to disturb the Board's findings with respect to O'Keefe's chain-of-custody argument and whether ISP violated the collective bargaining agreement. On August 22, 1998, O'Keefe advised the circuit court that he received his back pay, and the court entered a final order disposing of all matters before it. On September 11, 1998, O'Keefe filed the instant appeal.

On appeal before this court, O'Keefe again argues that ISP's investigation and suspension violated section 14 of the Act and the collective bargaining agreement between ISP and the FOP, and that the Board improperly relied on his urinalysis test results despite procedural and custodial errors. O'Keefe does not dispute the Board's factual findings or other conclusions of law.

II. ANALYSIS

A. Motion to Suppress O'Keefe's Statements O'Keefe first argues that ISP failed to advise him on February 17, 1995, that he had a right to counsel and that his statements could be used against him, as required under section 14 of the Act. Section 14 of the Act reads in pertinent part as follows:

"Before any such officer may be interrogated or examined ***, the results of which *** may be the basis for filing charges seeking his or her suspension for more than 15 days or his or her removal or discharge, he or she shall be advised in writing as to what specific improper or illegal act he or she is alleged to have committed; he or she shall be advised in writing that his or her admissions made in the course of the hearing, interrogation or examination may be used as the basis for charges seeking his or her suspension, removal or discharge; and he or she shall be advised in writing that he or she has a right to counsel of his or her choosing, who may be present to advise him or her at any hearing, interrogation or examination." 20 ILCS 2610/14 (West 1998).

Further, under section 14a of the Act (20 ILCS 2610/14a (West 1998)), "statements or admissions obtained during the course of any hearing or interrogation not conducted in accordance with this Act may not be utilized against the officer in any subsequent disciplinary proceeding." Therefore, O'Keefe argues, the hearing officer erred by denying ...


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