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McRay v. Ross

United States District Court, N.D. Illinois, Eastern Division

May 30, 2018

WILLIE MCRAY, Plaintiff,
v.
THOMAS ROSS, et al. Defendants.

          MEMORANDUM OPINION AND ORDER

          Edmond E. Chang, Judge

         After he was fired from the Bolingbrook Police Department, Sergeant Willie McRay brought suit against the police chief, the Village of Bolingbrook, and a host of others, challenging the firing on a variety of state and federal law grounds.[1] R. 18, Am. Compl.[2] McRay's fourteen-year career with the department ended after a hearing in front of the Board of Fire and Police Commissioners, which determined that he had violated a number of departmental rules. Am. Compl. Exh. A. The primary disciplinary charge against McRay arose out of his relationship with his young-adult son, Jeremy McRay. Admin. R. at 722, Hrg. Tr. at 83.[3] Now, even as the parties are engaged in discovery on the federal law claims, McRay moves for summary judgment on the state administrative-review claim. R. 59, Pl. Br. The Defendants oppose the motion, arguing that this federal court is not the correct forum for review and, even if it is, the Board's decision should not be disturbed. R. 77, Def. Resp. at 8, 14-18. For the following reasons, McRay's motion is granted. The Board's decision is vacated and remanded.

         I. Background

         In late 2003, the Village of Bolingbrook hired Willie McRay as a patrol officer, and he eventually climbed the ranks to patrol sergeant in April 2014. Admin. R. at 1, Initial Charges at 1; Admin. R. at 721, Hrg. Tr. at 78. Before the events culminating in the Board hearing, McRay had performed his duties satisfactorily, as reflected in his performance evaluations for the preceding decade. Id. at 1130, Hrg. Tr. at 1122; id. at 1223-24, Hrg. Tr. at 1259-63.

         McRay's troubles in the department began with his son's June 2015 conviction for possession with intent to distribute a look-alike substance, a Class 3 Felony. Admin. R. at 2, Initial Charges at 2; id. at 347-50, Criminal Sentence Ord. at 1-4. Jeremy McRay, who was 19- to 20-years-old during this time, struggled with an addiction to prescription pills. Id. at 53-54, McRay Int. Tr. at 29-30; id. at 769, Hrg. Tr. at 204-05. When Jeremy was again arrested in September 2015 and charged, this time with felony burglary, he told the arresting officer that he lived with his father, a police officer. Admin. R. at 2, Initial Charges at 2. During the ensuing investigation, Bolingbrook detectives learned of Jeremy's prior felony drug conviction and overheard recorded telephone conversations between McRay and Jeremy, including one where McRay mentioned that he had warned Jeremy about decoy cars and undercover units. Id. at 351, Internal Investig. Memo. at 1; id. at 723, Hrg. Tr. at 87. Based on the recorded conversations, Public Safety Director Tom Ross launched a formal investigation, but the investigation ultimately concluded that any allegation of misconduct was unfounded. Id. at 351, Internal Investig. Memo. at 1. But the investigation into the recordings brought Jeremy's larger problems to Director Ross's attention. Id. at 722, Hrg. Tr. at 84.

         After learning of the felony conviction in September 2015, Ross approached McRay to discuss Jeremy's criminal history. Admin. R. at 723, Hrg. Tr. At 86-87. During that meeting, Director Ross said that McRay's relationship with Jeremy violated a departmental rule against certain associations set forth in a specific departmental order, General Order 12. Id., Hrg. Tr. at 88-89. General Order 12 contains a list of various offenses that can subject a police officer to departmental discipline. Among those is a ban on relationships with persons who have criminal histories or who are under investigation:

[R]egular or continuous associations or dealings with persons [Employees] know, or should know, are persons under criminal investigation or indictment, or who have a reputation in the community or the Department for present involvement in felonious or criminal behavior.

Admin. R. at 13, General Order No. 12, § VII, ¶ 8(B). Paragraph 8(B) also contains exceptions, including:

Exceptions: when as necessary to the performance of official duties, or where unavoidable because of other family or personal relationships of the employees'.

Id. Finally, the rule requires an officer to notify the Chief of Police if a family or personal relationship is the basis for an exception to the ban:

If such family or personal relationships exist, then the employee shall make notification to the Chief of Police, via memorandum.

Id, General Order No. 12, § VII, ¶ 8(C).[4]

         When confronted with the policy, McRay told his supervisors that his son did not live with him, and in late September 2015, he submitted a memo to the Director making that representation. Admin. R. at 2, Initial Charges at 2; id. at 723-24, Hrg. Tr. at 89-91; id. at 1269, McRay Memo. at 1. Ross responded with a memo of his own, acknowledging McRay's written notice, and advising him that the association restriction, General Order No. 12, § VII, ¶ 8(B) and (C), applied to his situation. Id. at 3, Initial Charges at 3; id. at 724, Hrg. Tr. at 92-93; id. at 1270, Ross Memo. at 1. Ross's memo also asked McRay to keep Ross “advised of all changes and updates.” Id. at 1270, Ross Memo. at 1. When asked later (at the Board hearing) what he meant by this, Ross answered, “the document speaks for itself.” Id. at 725, Hrg. Tr. at 94. Director Ross testified that he told McRay only that the rule applied to his situation. Id. at 726, Hrg. Tr. at 100. According to Ross, “it was not an explicit order” that McRay stay away from his son. Id.

         After the September 2015 memo exchange between McRay and Ross, Jeremy had several other run-ins with the police. In July 2016 (at that time, Jeremy was on pretrial release for the pending burglary charge), the Naperville police department had a 911 call come from Jeremy's cell phone. Admin. R. at 784, Hrg. Tr. at 263. When emergency services dialed back, Jeremy did not pick-up, and GPS was traced back to McRay's Bolingbrook address, where Jeremy was found. Id. at 833, Hrg. Tr. at 377. According to McRay, Jeremy had gotten a flat tire the day before, and McRay let him spend the night at his Bolingbrook home-which was closer than his usual home at his mother's Plainfield residence-so it could be fixed in the morning. Id. at 527, McRay 7/13/16 Memo. at 1; id. at 728, Hrg. Tr. 108-09.

         The whole situation came to a head in August 2016. McRay, away in Arizona on vacation, asked Jeremy to go to McRay's Bolingbrook home to check on his dogs. Admin. R. at 41-42, McRay Int. Tr. at 17-18. Unbeknownst to McRay, Jeremy hosted a party at the house that night. At the party, a woman reported being sexually assaulted and numerous items were stolen from McRay's house. Id. at 3, Initial Charges at 3; id. 729-30, Hrg. Tr. at 113-15. After the thefts, Director Ross claimed McRay had failed to file police reports with the department and had not been forthcoming with information about the incident. Id. at 730, Hrg. Tr. at 114-15. McRay eventually filed police reports stating that his badge and hat shield had been stolen. Id. at 646, Board Ord. at 5. At that point, Ross initiated a formal complaint against McRay, beginning the investigation that would end in McRay's eventual discharge. Id. at 730, Hrg. Tr. at 116; id. at 1274, Serv. Complaint at 1. McRay was put on administrative leave from the Bolingbrook Police Department, but was ordered to contact his Patrol Commander by 9 a.m. on the days he was scheduled to work; he failed to do that on two days in September 2016. Id. at 4, Initial Charges at 4; id. at 822, Hrg. Tr. at 332-33.

         After McRay was served paperwork of the Department's internal investigation into his conduct, fellow Bolingbrook officers searched his locker and desk at the department. Admin. R. at 341, Hess Timeline Memo. at 2. They found a bottle of prescription Hydrocodone, prescribed to Jeremy, in McRay's desk. Id. at 341, 343, Hess Timeline Memo. at 2, 4. The officers confiscated the pills. Id. at 741, Hess Timeline Memo. at 2.

         Another incident happened in around October 2016. McRay's dog was involved in a fight with a neighbor's dog. Admin. R. at 603, Am. Charges at 4. Under Bolingbrook ordinances, McRay's dog should have been impounded, but McRay refused to turn his dog over to the Village. Id. at 604, Am. Charges at 5. McRay testified that he had moved the dog out of town, because his house was for sale and McRay refused to build a fence that would be necessary to release his dog from impoundment. Id. at 646, Board Ord. at 5.

         Eventually, the Department notified McRay that Director Ross brought disciplinary charges against him before the Bolingbrook Fire and Police Commission. See Admin. R. at 1-9, Initial Charges at 1-9. The list of accusations included: failure to obey orders; possession of a controlled substance; association with restricted persons under criminal investigation; failure to cooperate with a police investigation; failure to comply with general orders; insubordination; failure to report the loss of municipal property; failure to maintain a working knowledge of the regulations of the police department; and failure to maintain conduct expected of an officer. Id.

         After an evidentiary hearing, the Board found McRay guilty of each offense except the failure to report the theft of municipal property. It found that McRay's misconduct constituted a “substantial shortcoming” that prevented him from holding a sergeant's position. Then, the Board ordered that McRay be discharged from the Bolingbrook Police Department. Admin. R. at 687-88, Suppl. Board Ord. at 1-2.

         II. Standard of Review

         The Illinois Administrative Review Law provides for judicial review of administrative agency decisions. 735 ILCS 5/3-110. Factual findings are presumed “to be prima facie true and correct, ” id.; Richard's Tire Co. v. Zehnder, 692 N.E.2d 360, 366 (1998), which means that the findings remain intact unless they are against the manifest weight of the evidence, Roman v. Cook Cty. Sheriff's Merit Board, 17 N.E.3d 130, 153 (Ill.App.Ct. 2014). The manifest-weight standard is not satisfied “merely because an opposite conclusion might be reasonable.” Id. But even under the manifest-weight standard, the deference given to the agency's decisions is not “boundless.” Kouzoukas v. Retirement Board of the Policemen's Annuity & Benefit Fund, 917 N.E.2d 999, 1011 (Ill. 2009) (quoting Wade v. City of N. Chi. Police Pension Board, 877 N.E.2d 1101, 1114 (2007)). The review “cannot amount to a rubber stamp of the proceedings below.” Bowlin v. Murphysboro Firefighters Pension Board of Trustees, 857 N.E.2d 777, 782 (Ill.App.Ct. 2006). Although a decision may be “supported by some evidence, which if undisputed would sustain the administrative finding, it is not sufficient if upon a consideration of all the evidence, the finding is against the manifest weight.” Id. A reviewing court should not “hesitate to grant relief” when a record lacks the “evidentiary support for the agency's determination.” Id.

         An agency's decision on a question of law is reviewed de novo. Richard's Tire Co., 692 N.E.2d at 366. The agency's decisions on mixed questions of law and fact get some deference, with reversals reserved for those that are “clearly erroneous”- that is, when the reviewing court, on the entire record, is “left with the definite and firm conviction that a mistake has been committed.” AFM Messenger Serv., Inc. v. Dep't of Emp't Sec., 763 N.E.2d 272, 280-81 (Ill. 2001) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

         III. ...


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