Brock v. POLICE BD. OF CITY OF CHICAGO

563 N.E.2d 970, 205 Ill. App. 3d 1035, 150 Ill. Dec. 843, 1990 Ill. App. LEXIS 1704
CourtAppellate Court of Illinois
DecidedNovember 7, 1990
Docket1-89-3291
StatusPublished
Cited by11 cases

This text of 563 N.E.2d 970 (Brock v. POLICE BD. OF CITY OF CHICAGO) 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
Brock v. POLICE BD. OF CITY OF CHICAGO, 563 N.E.2d 970, 205 Ill. App. 3d 1035, 150 Ill. Dec. 843, 1990 Ill. App. LEXIS 1704 (Ill. Ct. App. 1990).

Opinion

JUSTICE HARTMAN

delivered the opinion of the court;

Petitioner, Jasper Brock, appeals from the circuit court’s order affirming his discharge as a Chicago police officer by respondents, Police Board of the City of Chicago (Board). Petitioner was found guilty of violating Chicago Police Department Rules 1, 2 and 6 in that analysis of his urine specimen revealed a quantity of cocaine metabolite. Petitioner raises as issues for review whether respondents’ decision was against the manifest weight of the evidence and whether he was afforded a full and fair due process hearing. No issue is raised as to the propriety of discharge as the result of rules’ violations.

On March 18, 1987, the Chicago police superintendent charged petitioner with breaking Chicago Police Department Rules 1 (“violation of any law or ordinance”); 2 (“any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department”); and 6 (“disobedience of any order or directive, whether written or oral”). Petitioner pled not guilty and was represented by counsel. Respondents’ hearing officer, William H. Hall, conducted administrative hearings commencing on February 10, 1988. The following evidence was presented at the hearings and recorded in written transcripts subsequently presented to respondents for consideration and decision.

Called by the Chicago police department (Department), the following witnesses testified. James Walsh, an employee of American Institute for Drug Detection (AIDD), operated an EMIT instrument used for drug screening. On February 26, 1986, he ran a test on petitioner’s urine specimen, which indicated the presence of cocaine in the sample. The parties stipulated to the specimen’s chain of custody. Walsh did not run a second test on the specimen. The EMIT test has a 5% false positive rate.

Joyce Mah, employed by AIDD as an administrative supervisor, calibrated the subject EMIT machine on February 26, 1986, at 7 a.m. She performed a gas chromatography and mass spectrometer (gc/ms) test on petitioner’s urine specimen on February 27, which confirmed the presence of cocaine metabolite.

Jan Johnson, senior toxicologist at AIDD, personnel supervisor, reviewer and certifier of all data results generated in the lab, explained that the EMIT test detects the presence of drugs or chemicals in the specimen. The gc separates chemicals by properties of molecular weight and polarity, while the ms fragments molecules and measures the intensity of the ions produced from that fragmentation. Based on the graphs and data taken from the tests run on petitioner’s specimen, Johnson stated that both the EMIT and the gc/ms machines were properly calibrated. The results showed that cocaine metabolite was present in the specimen. The gc/ms test is used as a confirmation test because the EMIT test has a 5% margin of error.

Petitioner testified as an adverse witness. He joined the Chicago police department on February 27, 1978, and was on suspension at the time of the hearing. He provided a urine specimen on February 15,1986.

The Department thereafter rested its case. Petitioner’s motion for a finding in his favor was taken under advisement.

In his own behalf, petitioner testified that his first police assignment was as a patrolman in the first district, where he worked for three years. He was then transferred to Cabrini Green and subsequently reassigned to the public housing unit south. He did not use cocaine prior to February 15, 1986, and had never used it. He admitted, however, that at the time of testing he had had a drinking problem and “would blackout because I was drinking and *** taking medicine for my headaches.” During this period, petitioner drank a pint of cognac a day and was taking over-the-counter medicines. Also, he drank three different types of herbal tea.

Prior to the suspension, petitioner stopped drinking. The parties stipulated that on February 16, 1986, petitioner went to Michael Reese Hospital and had another drug test conducted, which was negative for the presence of cocaine.

Following argument by counsel representing both parties, the hearing officer took the case under advisement.

Transcripts of the hearing were forwarded to respondent members, who subsequently found petitioner guilty on each charge and ordered his discharge on April 15, 1988. Petitioner thereafter sought administrative review (111. Rev. Stat. 1987, ch. 110, par. 3 — 103) in the circuit court.

On June 28, 1988, petitioner moved for remand, alleging that newly discovered evidence existed relative and material to the charges against him. Attached to the motion was the sworn statement of one Cornell Smith. Assertedly, Smith put cocaine in a drink accidentally consumed by petitioner at the funeral of a mutual family friend. The court granted the motion. Respondents’ hearing officer Hall held another hearing on November 29,1988.

At the November hearing, Smith testified that he had been a narcotics user from 1971 through 1986. He had been arrested numerous times and was convicted three times. Smith knew petitioner for over 30 years. Petitioner was a friend of Smith’s younger brother, Larry. On February 13, 1986, Smith attended services at a funeral home on 79th and Wabash. After the service, Smith, who had been drinking that day, went out to the parking lot and drank some more whiskey with approximately 10 other men, including petitioner. The men drank from disposable cups, which all looked alike. Smith had a half gram of what he believed to be cocaine with him that night, and he put some in his drink because he did not want anyone to know he was doing it. After taking a sip, he put the drink down on the hood of a car, and others followed suit. Petitioner, who was talking with someone, put his cup down next to Smith’s cup and then picked up Smith’s cup by mistake. Smith did not tell petitioner that he had the wrong cup “because by him drinking whiskey the way he was and doing cocaine, I didn’t think it was going to hurt him. I said I will sit back and watch him trip.” Petitioner went home shortly after the incident.

During the next two years, Smith sought drug abuse treatment. He did not see petitioner again until May 1988, when the two met by chance on the street. Smith had heard that petitioner’s wife had been killed and extended condolences. Smith had also heard that petitioner had been fired by the police department, but did not know the circumstances surrounding the termination. He then told petitioner about the incident at the funeral home because, as part of his drug treatment, he had to apologize to “those he had wronged.” Petitioner became angry and told Smith to contact his lawyer.

Dr. John Ambre, associate professor of internal medicine at Northwestern University, reviewed the data from petitioner’s drug test, which revealed the presence of a very small amount of cocaine. In his opinion, the ingestion of cocaine in a drink as claimed could produce the results which were reflected in petitioner’s records. If another test was conducted the next day, the test may not register positive. On cross-examination, Dr.

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Bluebook (online)
563 N.E.2d 970, 205 Ill. App. 3d 1035, 150 Ill. Dec. 843, 1990 Ill. App. LEXIS 1704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brock-v-police-bd-of-city-of-chicago-illappct-1990.