Appeal from the Circuit Court of Cook County No. 99 CR 16302 The Honorable Robert V. Boharic, Judge Presiding.
The opinion of the court was delivered by: Justice Cousins
Plaintiff, Vincent J. Krocka, was discharged from his position as a Chicago police officer by the Police Board of the City of Chicago (the Board) in October 1999. Krocka sought administrative review in the circuit court of Cook County. The court denied his petition for administrative review and affirmed the judgment of the Board. The issues presented for review are: (1) whether the Board's findings were against the manifest weight of the evidence; (2) whether the Board's decision to terminate Krocka was arbitrary or unreasonable; and (3) whether Krocka was denied a fair hearing and denied due process before the Board.
Vincent Krocka became a member of the Chicago police department in January 1980. He is also licensed to practice law in the State of Illinois. In 1990, Krocka was diagnosed with severe depression and began taking Prozac to alleviate his condition. In 1992, the Department discovered that Krocka was taking Prozac and after placing him on medical leave and evaluating that he was fit for continued duty, he was placed in the department's "Personnel Concerns Program."
In 1995, Krocka filed a federal law suit against the City of Chicago (the City) (Krocka v. City of Chicago, 203 F.3d 507 (7th Cir. 2000)), the Chicago police department (the Department), and several individual decision-makers under the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. §12101 et seq. (1994)), section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1994)), and state tort law. Krocka alleged that placing him in the Department's "Personnel Concerns Program" solely because he was taking Prozac was a violation of the ADA and that the blood test ordered by one of the Department's doctors to determine the level of Prozac in his blood was a violation of his fourth amendment rights that subjected the defendants to liability under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1994)). Krocka also filed a number of state law claims, including a claim for intentional infliction of emotional distress. The district court granted partial summary judgment in favor of each party on the ADA claim, granted summary judgment in favor of Krocka on the section 1983 claim, and dismissed Krocka's state law claim. A jury returned a verdict against Krocka and the district court entered judgment in favor of the defendants on the ADA claim. The federal appellate court affirmed. Krocka, 203 F.3d at 518.
During discovery in the federal case, the City of Chicago sought Krocka's medical records, including reports from Krocka's psychiatrist. On November 14, 1995, an agreed protective order was issued by the federal judge. The order provided:
"1. The Plaintiff, VINCENT J. KROCKA, will provide Defendant, CITY OF CHICAGO for inspection, a copy of all his medical records from 1990 to present ***.
2. The documents contained in Officer VINCENT KROCKA'S files constitute confidential material.
3. The confidential material (hereinafter 'Confidential Material') identified above, is for the exclusive use of the parties and attorneys of record and shall be used solely for the purpose of this litigation, and not for any other litigation or any other purpose.
4. The Confidential Material described above, and the information contained therein, shall in no way be disseminated, discussed, delivered, or disclosed by Defendants or their counsels ***."
The federal trial commenced on November 3 or 4, 1997. During cross-examination conducted by Donald Zoufal, Krocka testified that in October of 1990, he was prescribed Prozac for his depression. Krocka stated that on occasion in 1981, and 1992 or 1993, he and another officer went to a forest preserve to consume alcohol while on duty. He admitted that he called a female attorney "a cunt" during court proceedings in December 1995. He stated that years ago, he observed Officer Therese Hoffman discharge her gun but failed to report the incident. He also testified that he told his doctor that he patronized prostitutes while on duty as a police officer. Krocka further testified that he falsified his department health appraisal on at least one occasion.
Donald R. Zoufal, in his capacity as general counsel to the superintendent, sent a memorandum dated November 6, 1997, to Michael W. Hoke, assistant deputy superintendent of the internal affairs division. That memorandum stated:
"While serving as a Special Assistant Corporation Counsel in the civil case of Krocka v[.] City of Chicago, 95 C 0627, which is currently pending in the United States District Court for the Northern District of Illinois, the undersigned had occasion to cross-examine Police Officer Vincent J. Krocka #12756, 16th District. During that cross-examination, P.O. Krocka admitted to several rule violations which were not the subject of prior CR [complaint register] investigations. Those infractions included:
1. Drinking while on duty in 1981 and 1992.
2. Patronizing prostitutes while on and off duty prior to 1990.
3. Falsifying official Department records (Health Appraisals) in 1987, 1991, 1992, and 1993.
4. Failing to report a firearms discharge allegedly committed by Police Officer (now Sergeant) Therese A. Hoffman in connection with a vehicle pursuit occurring in 1982.
5. Calling an Assistant Corporation Counsel a 'cunt' in open court in December, 1995."
In a second memorandum dated November 6, 1997, and signed by Zoufal, he wrote: "While it is the belief of the undersigned that P.O. Krocka fabricated his account of the shooting, there is no choice but to open this CR against Sgt. Hoffman. However, I recommend that a separate CR be opened and the investigation be expedited so that this Sgt[.] can clear her name in as quick a time as is possible."
On May 15, 1997, case number 236799 was opened against Krocka alleging that Krocka failed to obey an order given by a supervisor to move away from a department vehicle. It was also alleged that during that same incident, Krocka informed a police lieutenant that he was acting as the attorney for a police officer involved in a shooting and improperly advised that officer not to make any statements.
Case numbers 241413 and 241414 were opened on November 10, 1997. On November 11, 1997, Officer Bennet Klauba was assigned to investigate case number 241413. Case number 241413 involved charges against Krocka, including accusations of past misconduct "going back as far as 1981." The allegations did not involve Sergeant Therese Hoffman.
On November 11, 1997, Sergeant Joseph Fivelson was assigned to investigate case number 241414, which involved Hoffman's alleged discharge of her firearm in 1982, 1983, or 1984 and whether Krocka and Hoffman failed to report the weapon discharge.
Case numbers 241413, 241414, and 236799 were eventually combined to form one case before the Board.
Krocka was notified in writing of the charges against him in case number 241413 and informed of his administrative hearing rights via documents dated January 12, 1998. The documents alleged that between November 4 and 6, 1997, in the United States District Court, Krocka admitted to: drinking alcoholic beverages while on duty during 1981 and 1992; patronizing prostitutes while on duty prior to 1990; falsifying official department health documents; and engaging in an "unjustified verbal altercation on 12/22/95" in the district court when he called an assistant corporation counsel a "cunt" in open court.
Krocka filed a motion to enjoin the City of Chicago from using the confidential materials that were the subject of the federal court protective order. In July 1998, the federal court judge heard argument in support of and in opposition to Krocka's motion to enjoin. The federal court judge denied the injunction, ruling that, "[O]nce [confidential materials] are received in open court as exhibits, or testimony, without a request that the public record, which-- it's then a public record-- be sealed, as counsel for the City says, it becomes a matter of public record; it is outside of the protection of the protective order."
In November 1998, Krocka filed a motion in limine with the Board alleging, in part:
"2. The Department's evidence concerning these alleged violations, in large part, of sworn testimony Respondent gave during a lawsuit he filed, 95 C 627, in Federal Court in the Northern District of Illinois, charging that his rights under the Americans With Disabilities Act had been violated. At that time he was cross-examined by the General Counsel to the Superintendent of the Chicago Police Department concerning the alleged violations and made certain admissions in responding to the interrogation of the General Counsel.
3. Although the General Counsel, having reviewed extensive deposition transcripts of Respondent's deposition, knew some of the precise areas he intended to question Respondent about, he did not provide any warning to Respondent as required by 65 ILCS 5/10-1-18.1.
7. At the time that he was cross-examined by the General Counsel, there was in effect a protective order that provided that certain 'confidential material' was to be used only for the ADA litigation and 'not for any other litigation or any other purpose.' The cross-examination was based, in large part, on 'confidential material' provided to City Counsel about communications ...