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Nudell v. Forest Preserve District of Cook County

August 19, 2002

MICHAEL NUDELL, PLAINTIFF-APPELLEE,
v.
FOREST PRESERVE DISTRICT OF COOK COUNTY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 99 CH 17400 The Honorable Ellis E. Reid, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

UNPUBLISHED

After an evidentiary hearing, the Civil Service Commission of Cook County (Commission) issued findings and a decision sustaining sexual harassment and insubordination charges made by a female Cook County Forest Preserve District (District) police officer, Cynthia Spina, against police officer Michael Nudell. The Commission ordered that Nudell be terminated as a police officer. On March 25, 1998, the Commission served its decision by mailing a copy of it to Nudell's attorney. Nudell's attorney received the decision on April 6, 1998.

\Nudell filed a complaint for administrative review on May 5, 1998. The District moved to dismiss the action as untimely. The circuit court denied the District's motion to dismiss. Upon administrative review, the circuit court held that the charges against Nudell were "vague and overbroad while others [were] completely without support in the record." However, the circuit court held that the charge of insubordination was supported by the record. The circuit court remanded the case for further proceedings.

On remand, following another hearing, the Commission issued its findings and decided that the sexual harassment and insubordination charges against Nudell had been sustained and warranted his termination. Nudell sought administrative review. The Commission's holding was reversed by the circuit court.

The Commission now presents the following issues upon appeal: (1) whether Nudell's initial complaint for administrative review was timely and properly before the circuit court; (2) whether the circuit court abused its discretion by deciding the case based on a due process argument that Nudell had not made before the Commission or the circuit court, and thus had waived; (3) whether the charges against Nudell violated due process; (4) whether there is evidence in the record that supports the Commission's findings against Nudell; and (5) whether the Commission's decision to discharge Nudell for insubordination and sexual harassment was arbitrary, unreasonable, or unrelated to the requirements of the service.

BACKGROUND

Michael Nudell began working as a police officer for the District in October 1987. A female police officer alleged that, beginning in 1995, Nudell engaged in ongoing sexual harassment. The District conducted an internal investigation and pre-disciplinary hearing. On June 12, 1997, Nudell was suspended for 29 days, pending a hearing before the Commission regarding charges of ongoing sexual harassment of a fellow officer and insubordination to her authority. On June 20, 1997, district general superintendent Joseph Nevius provided a written request that the Commission remove Nudell from service.

On January 27, 1998, the Commission conducted a hearing on the charges against Nudell. On March 3, 1998, the Commission decided to terminate Nudell's employment. On March 25, 1998, the Commission served its decision by mailing a copy of it to Nudell's attorney at the office the District had on file for him (Gary L. Bailey, Staff Attorney, Illinois Fraternal Order of Police, 6345 W. Joliet Road, Countryside, Illinois 60525). Nudell's attorney received the decision on April 6, 1998. In a letter dated April 27, 1998, Nudell's attorney informed the Commission that Nudell would appeal the Commission's decision and that the correspondence was intended as a request to prepare his civil service hearing record for appeal. On May 5, 1998, Nudell filed a complaint for administrative review.

On June 9, 1998, the District filed a motion to dismiss Nudell's motion for administrative review under sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1998)), asserting that the Counties Code (55 ILCS 5/3-14001 et seq. (West 1998)) did not adopt the provisions of the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 1998)). The District further asserted that if the claim was properly brought under administrative review, Nudell failed to file his complaint within 35 days from the date that a copy of the decision sought to be reviewed was served upon him. On July 23, 1998, the circuit court dismissed the District's motion to dismiss.

On March 5, 1999, upon administrative review, the circuit court reversed and remanded the case back to the Commission for further proceedings. In its written order, the circuit court noted that the Commission, using the Manual of Rules and Regulations of the Department of Law Enforcement (Manual of Rules), charged Nudell with several violations of the rules. The court reasoned that some of the charges were "vague and overbroad while others are completely without support in the record." The court held that absent a published policy on sexual harassment, "supporting the decision below becomes problematic." Relative to the single charge of insubordination, the court noted that the Manual of Rules clearly defined what constituted insubordination and the record supported the Commission's finding that Nudell did commit the act. However, the court stated that it "would need more information to uphold a decision to discharge Nudell on the basis of the single incident of insubordination chronicled in this record."

Nudell filed a complaint in the United States District Court for the Northern District of Illinois, Eastern Division (Nudell v. Nevius, No. 98-C-3719 (N.D. Ill. April 5, 1999)), based on the circuit court's focus on due process and equal protection issues. The federal case was stayed pending the resolution of the state court proceedings.

On May 25, 1999, the Commission conducted a hearing pursuant to the circuit court's March 1999 remand. Several officers testified, including the female officer that was allegedly subjected to the sexual harassment, Nudell's supervisor, and Nudell, himself.

In its November 5, 1999, written order, the Commission held that Nudell "clearly violated departmental rules relating to lack of courtesy, wilful maltreatment of a person and maintaining a professional demeanor, as well as other rules cited by [the District]." The Commission found that the District maintained a specific sexual harassment policy and that Nudell's "outrageous and recurring conduct" violated that policy. The Commission held that the sexual ...


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