Albert v. Board of Fire & Police Commission

425 N.E.2d 1158, 99 Ill. App. 3d 688, 54 Ill. Dec. 941, 1981 Ill. App. LEXIS 3212
CourtAppellate Court of Illinois
DecidedAugust 20, 1981
Docket80-2109, 80-2132 cons.
StatusPublished
Cited by10 cases

This text of 425 N.E.2d 1158 (Albert v. Board of Fire & Police Commission) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Albert v. Board of Fire & Police Commission, 425 N.E.2d 1158, 99 Ill. App. 3d 688, 54 Ill. Dec. 941, 1981 Ill. App. LEXIS 3212 (Ill. Ct. App. 1981).

Opinion

Mr. JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Robert Albert, appeals a finding of the circuit court of Cook County under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) in which the court confirmed the Schiller Park Board of Fire and Police Commission (Board) findings of guilty of violating four general orders but set aside the Board’s finding on two general orders and set aside the Board’s decision to discharge Albert. The Board cross-appeals, seeking reversal. The parties raise the following issues for review: (1) whether Albert received a fair and impartial hearing as required by the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 10 — 2.1—17); (2) whether the Board’s findings of guilty were contrary to the manifest weight of the evidence; (3) whether the Board’s decision to terminate Albert as a police officer after 10 years of service was contrary to the manifest weight of the evidence; and (4) whether the Board’s findings constitute sufficient cause to discharge Albert.

We reverse the circuit court and reinstate the findings and decision of the Board.

On September 17,1979, hearings began before the Board. Albert had been charged by the superintendent of police with violations as follows: General Order 203 — General Behavior; General Order 206 — Sickness, Illness and Disability; General Order 207 — Absent without Proper Leave; General Order 215 — Relations with the Public; General Order 232 — Use of Alcohol; General Order 233 — Disorderly Conduct; General Order 238 — Court Appearance; General Order 252 — Training; General Order 257 — Punctuality; and General Order 260 — Cruel Treatment of Persons.

After hearing testimony of various witnesses and the testimony of Albert, the Board concluded that Albert had violated the following: General Order 203 in that Albert’s behavior on July 25, 1979, was such as to bring discredit upon himself and the police department. It was found that Albert, while intoxicated, was involved in'an altercation at a tavern. General Order 207 in that Albert was absent from duty and such absence was due to Albert’s indulgence in alcohol and/or a total disregard of his duty. Albert was scheduled to work on the evening that he was intoxicated and had failed to report for duty. General Order 232 — Use of Alcohol. Though Albert was not in uniform or on duty, he was found to violate that portion of the rule which stated “members whether on duty or off duty, if found intoxicated, publicly, shall be subject to disciplinary action.” General Order 233 in that Albert’s public conduct was such as to be considered disorderly. The testimony was that the altercation occurred after Albert had consumed 15-30 alcoholic drinks, namely, Screwdrivers. In addition, Albert drove himself to the police station while intoxicated. General Order 238 in that Albert failed to appear for a scheduled court appearance without valid reason. On July 23, seven cases were on the docket for Albert. He failed to appear. General Order 257 in that Albert violated the rule on punctuality on numerous dates between the period May 1,1979, to July 26, 1979. The evidence was that out of a total of 87 working days for that period, Albert had 20 regular days off and had taken 14 days of vacation, 4 days absence without an excuse, 2 days absence for personal reasons, 1 day suspension, and 20 days tardy.

In the decision rendered February 1, 1980, the Board discharged Albert. It was the Board’s belief that Albert’s continued service with the department would be detrimental to discipline and efficiency.

Albert filed an action for administrative review in the circuit court of Cook County. Albert contended that he was denied a fair and impartial hearing when the Board quashed subpoenas on grounds of relevancy and timeliness. Albert had subpoenaed the records of other officers to show that the superintendent employed a double standard. Albert also requested the originals of his timecard records. The Board stated that Albert’s time records were made available at the October 29, hearing. Albert further contended that the findings that he had violated general orders and the decision to discharge him were arbitrary, capricious, and contrary to the manifest weight of the evidence.

The circuit court confirmed the Board findings that Albert had violated General Orders 203, 207, 232 and 238. The court set aside the rulings on violation of General Orders 233 and 257. The court further remanded the matter for consideration of a penalty less than termination. In a motion for reconsideration, the Board pointed out that the statute (Ill. Rev. Stat. 1977, ch. 24, par. 10 — 2.1—17) limited the penalties that the Board could impose to suspension up to 30 days or termination. The court denied the motion.

Albert appeals the continuance of his violation of General Orders 203, 207, 232 and 238. Defendant Board appeals the setting aside of findings on General Orders 233 and 257. Their separate appeals have been consolidated for review.

Plaintiff contends that denial of access to the records of other officers deprived him of a fair hearing. He contends the superintendent used a double standard when selecting his time records for disciplinary action. The trial court agreed that the Board should have permitted plaintiff to have access to the time records. But, plaintiff has failed to show how or why noncompliance by other officers should excuse his noncompliance. (Davern v. Civil Service Com. (1970), 47 Ill. 2d 469, 474, 269 N.E.2d 713, 715.) The record shows that of 53 scheduled working days plaintiff had been absent from work 7 days and tardy on 20 days. Plaintiff had access to his records and testified that on one or two occasions he was late less than 15 minutes. Plaintiff also testified that on some occasions he forgot to punch in until late into his shift. We do not see how tardiness or absences of other officers would be relevant to the charges brought against plaintiff.

The standard of review under the Administrative Review Act provides that agency findings on questions of fact are “prima facie true and correct.” (Ill. Rev. Stat. 1979, ch. 110, par. 274.) This provision has been construed to limit the function of the reviewing court to ascertaining whether the findings and decisions of the administrative agency are against the manifest weight of the evidence. (Davern, at 471; accord, Mihalopoulos v. Board of Fire & Police Commissioners (1978), 60 Ill. App. 3d 590,595, 376 N.E.2d 1105, 1108; Taylor v. Police Board (1978), 62 Ill. App. 3d 486, 491, 378 N.E.2d 1160, 1165.

A reviewing court may not judge the credibility of witnesses (Taylor v. Police Board (1978), 62 Ill. App. 3d 486, 491, 378 N.E.2d 1160, 1165), or substitute its judgment for that of the administrative agency. (Davern v. Civil Service Com. (1970), 47 Ill. 2d 469, 472, 269 N.E.2d 713

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Bluebook (online)
425 N.E.2d 1158, 99 Ill. App. 3d 688, 54 Ill. Dec. 941, 1981 Ill. App. LEXIS 3212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albert-v-board-of-fire-police-commission-illappct-1981.