McCleary v. Board of Fire & Police Commissioners

622 N.E.2d 1257, 251 Ill. App. 3d 988, 190 Ill. Dec. 940
CourtAppellate Court of Illinois
DecidedNovember 2, 1993
Docket2-92-1409
StatusPublished
Cited by38 cases

This text of 622 N.E.2d 1257 (McCleary v. Board of Fire & Police Commissioners) 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
McCleary v. Board of Fire & Police Commissioners, 622 N.E.2d 1257, 251 Ill. App. 3d 988, 190 Ill. Dec. 940 (Ill. Ct. App. 1993).

Opinion

JUSTICE BOWMAN

delivered the opinion of the court:

The plaintiff, Michael J. McCleary, was discharged from the Woodstock police department by the defendant, the Board of Fire and Police Commissioners of the City of Woodstock (Board), on the basis of his violation of an order of protection and a domestic battery he committed upon his wife, Bonnie McCleary. The plaintiff filed a complaint for administrative review. On review, the trial court affirmed the Board’s decision. The plaintiff appeals, contending that (1) the Board’s decision was based upon prejudicial evidence which should not have been admitted; (2) the Board’s refusal to grant a stay of proceedings raised an irreconcilable constitutional dilemma; (3) the Board deprived the plaintiff of his right to due process of law by refusing to permit his witnesses to testify; (4) the defendant, Chief of Police Herbert J. Pitzman (Chief), failed to meet his burden of proof to sustain discharge of the plaintiff from the force; (5) the Board erred in failing to express the standard of proof it utilized in rendering its decision; and (6) the Board erred in rendering a harsher sanction against the plaintiff than it rendered against another police officer who allegedly committed a similar offense. We affirm.

At about 3 a.m. on January 21, 1992, the plaintiff went to his home located at 1400 Red Coach Lane in Algonquin. The residence was held in joint tenancy by plaintiff and his estranged wife, Bonnie McCleary. The McClearys were, at that time, separated and involved in litigation over their pending divorce. Bonnie McCleary had been staying at the couple’s jointly owned residence on Red Coach Lane, and the plaintiff had been staying at the home of a co-worker in Woodstock.

Although he had keys to the residence, the plaintiff rang the doorbell and knocked upon the door. Roused from sleep, Bonnie McCleary shortly thereafter arrived at the door. The plaintiff informed his wife that he wanted to come inside their house to use the washroom and to see the children. Bonnie McCleary refused to open the door for her husband, told him to leave, and threatened to call the police. The plaintiff instructed his wife to go ahead and call the police.

The plaintiff then walked to his car, used the garage door opener to open the garage door, walked to the door leading from the garage into the house, inserted his key into the lock, and began to enter the residence. Bonnie McCleary placed her body against the door and attempted to prevent the plaintiff from entering the house. The couple then involved themselves in a pushing contest wherein the plaintiff attempted to enter the house and Bonnie attempted to prevent the plaintiff from entering the house. Eventually, the plaintiff was successful in his attempt to get into his home; in the process, Bonnie Mc-Cleary was pushed down as the door was pushed open. Once inside the residence, the plaintiff went upstairs to check on his son and to use the washroom.

While the couple was involved in their struggle with the door, Bonnie McCleary was on the portable telephone calling the police. Shortly after the plaintiff had entered the residence and gone upstairs, the Algonquin police arrived at the home. The officers began their investigation by having the plaintiff come down from upstairs and go outside onto the porch with two officers. Another officer spoke with Bonnie McCleary inside the residence. Bonnie McCleary told the officers that an order of protection had been issued against the plaintiff. She also related that she had been pushed down when he forced his way in.

The Algonquin police officers contacted their dispatch center and were incorrectly informed that an order of protection had been issued and was enforceable against the plaintiff. Based upon their belief that an enforceable order of protection had been issued against the plaintiff, and based upon Bonnie McCleary’s representations to the police officers, the Algonquin police took the plaintiff into custody and transported him to the Algonquin police department. When the officers advised him that he was under arrest, the plaintiff offered no resistance and was escorted to one of the police vehicles. The plaintiff was charged with the violation of an order of protection and with domestic battery, with Bonnie McCleary as the the named complainant.

Also on January 21, 1992, the Chief, Herbert Pitzman, filed a complaint with the Board against the plaintiff. The complaint alleged the plaintiff had committed a violation of an order of protection and that he had committed a domestic battery upon Bonnie McCleary; both allegations were in violation of the Illinois revised statutes. The complaint also alleged that the plaintiff had violated certain departmental rules and regulations by allegedly committing the predicate statutory violations.

On the afternoon of February 19, 1992, in the 19th Judicial Circuit, McHenry County, a hearing was held with regard to defendant’s, Michael McCleary’s, motion to dismiss the criminal charge of “Violation of an Order of Protection.” As a result of that hearing, the court determined, as a matter of law, that Michael McCleary had not been served with the order of protection. The court reasoned that because he had not received the service of the order, he had no actual notice of the contents of the order, and since he had no knowledge of the contents of the order, he therefore lacked the requisite knowledge element required by the statute in order to be held civilly or criminally liable thereunder. The court granted Michael McCleary’s motion to dismiss the charge of “Violation of an Order of Protection” and entered an order in that regard. At that point the criminal domestic battery charge was pending.

Hearings into the administrative complaint against the plaintiff were held by the Board beginning on January 24, 1992. On the evening of February 19, 1992, the Board reconvened to continue hearings into the Chief’s administrative complaint. At that time, Michael Mc-Cleary filed with the Board a motion to dismiss count 4(b) of the administrative complaint. Count 4(b) related to Michael McCleary’s alleged criminal violation of the order of protection. The Board made several findings, one of which was that Michael McCleary committed a battery upon Bonnie McCleary in violation of section 12 — 3.2(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12— 3.2(a)(1) (now 720 ILCS 5/12-3.2(a)(l) (West 1992))). On March 23, 1992, the Board, in a two to one split decision, discharged the plaintiff from the Woodstock police department.

On April 27, 1992, the plaintiff filed his complaint for administrative review in the 19th Judicial Circuit, McHenry County. Following several months of pretrial procedural matters, on October 30, 1992, a hearing on the plaintiff’s complaint for administrative review was held. The trial court affirmed the decision of the Board. The plaintiff timely filed his appeal.

An appellate court’s proper function in reviewing administrative decisions is to ascertain if the agency’s findings are against the manifest weight of the evidence. (Burgett v. City of Collinsville Board of Fire & Police Commissioners (1986), 149 Ill. App.

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Bluebook (online)
622 N.E.2d 1257, 251 Ill. App. 3d 988, 190 Ill. Dec. 940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccleary-v-board-of-fire-police-commissioners-illappct-1993.