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Kenneth Promisco v. Thomas J. Dart

November 28, 2012

KENNETH PROMISCO,
PLAINTIFF-APPELLEE,
v.
THOMAS J. DART, SHERIFF OF COOK COUNTY COOK COUNTY SHERIFF'S MERIT BOARD; JAMES P. NALLY, CHAIRMAN;
MICHAEL CAREY, VICE CHAIRMAN;
ARTHUR WADDY, SECRETARY; MARYNELL GREER,
ROBERT HOGAN, DONALD J. STORINO, JR., DANIEL J. LYNCH,
BRIAN J. RIORDON AND BYRON BRAZIER, MEMBERS,
DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 2010 CH 49995 Consolidated with 2010 CH 49436 HONORABLE PETER FLYNN, JUDGE PRESIDING.

The opinion of the court was delivered by: Presiding Justice Hoffman

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

Justices Karnezis and Cunningham concurred in the judgment and opinion.

OPINION

¶ 1 The Sheriff of Cook County, Thomas J. Dart (Sheriff), filed charges with the Cook County Sheriff's Merit Board (Board) seeking to discharge the plaintiff, Kenneth Promisco, from his employment as a lieutenant in the Sheriff's Court Services Department for violating, inter alia, the Sheriff's Drug-Free Work Policy (Drug Policy). Following a hearing, the Board found that the plaintiff had violated the Drug Policy and ordered his discharge. On administrative review of the Board's decision, the Circuit Court of Cook County entered an order setting aside the Board's decision and ordering the plaintiff reinstated to his prior position of employment with full back pay and benefits. The Sheriff, the Board, and the members of the Board have appealed the circuit court's order, and, for the reasons which follow, we affirm the judgment of the circuit court.

¶ 2 The following factual recitation is taken from the evidence adduced at the plaintiff's discharge hearing before the Board. At all times relevant, the plaintiff was employed as a lieutenant in the Sheriff's Court Services Department and was assigned to the 3rd District court facility in Rolling Meadows, Illinois. On January 5, 2010, the plaintiff was directed by his supervisor to report to the drug testing unit for a random drug test pursuant to the Drug Policy. The plaintiff reported to the drug testing unit as ordered and submitted a urine sample for testing to Sharon Diver, a technician in the drug testing unit. Diver acknowledged that the plaintiff was not asked whether he was taking any medication. The sample was picked up by a UPS carrier for overnight delivery to Pharmatech, Inc. (Pharmatech), a laboratory in San Diego, California, for analysis. Pharmatech performed both an initial test upon the sample and a gas chromatography/mass spectrometry (GCMS) test. Approximately one day after the plaintiff submitted his urine specimen, the Sheriff received a report by Vladimer Aban, a technician employed by Pharmatech, stating that the plaintiff's specimen had tested positive for 46 nanograms per milliliter of marijuana metabolites.

¶ 3 Several days later, the plaintiff was ordered to appear at the Sheriff's Office of Professional Review. At that time, he was informed of his positive drug test, de-deputized, and suspended from work without pay.

¶ 4 On February 25, 2010, the Sheriff filed charges against the plaintiff with the Board, alleging that the plaintiff had violated various rules and regulations and general orders of the Sheriff's Court Services Department, including, but not limited to, the Drug Policy, which provides, in relevant part, as follows:

"The unlawful involvement with drugs; the presence in an employee's system of drugs or controlled substances, or their metabolites; the use of cannabis or non-prescribed controlled substances; or the abuse of legally prescribed drugs or controlled substances by sworn personnel, at any time, while on or off duty are strictly prohibited."

The Sheriff also charged the plaintiff with violating Article X, Paragraph B, of the Board's Rules and Regulations, which provides that:

"No Police Officer of the Cook County Sheriff's Police Department, nor any Correctional Officer of the Cook County Department of Corrections, nor any Deputy Sheriff of the Cook County Sheriff's Court Services Department will:

1. Violate any law or statute of any State or of the United States of America.

2. Violate any ordinance of a County or Municipal Government.

3. Violate any of the general orders, special orders, directives, or rules and regulations of the Cook County Sheriff's Office."

In the complaint which the Sheriff filed with the Board, he requested that the Board order the plaintiff removed from the Cook County Sheriff's Office.

On June 23, 2010, a hearing was held on the Sheriff's complaint before James P. Nally, the Board's Commissioner. In his case-in-chief, the Sheriff presented the testimony of three witnesses: Driver; Peggyann Hynes; and Kenneth Kodama. Driver and Hynes, both employees in the Cook County Drug Testing Unit, described the procedures that unit follows for collecting, maintaining, and transporting drug testing samples. They testified ...


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