Wilson v. Board of Fire & Police Commissioners

563 N.E.2d 941, 205 Ill. App. 3d 984, 150 Ill. Dec. 814
CourtAppellate Court of Illinois
DecidedNovember 2, 1990
Docket1-89-1074, 1-89-2743 cons.
StatusPublished
Cited by25 cases

This text of 563 N.E.2d 941 (Wilson 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
Wilson v. Board of Fire & Police Commissioners, 563 N.E.2d 941, 205 Ill. App. 3d 984, 150 Ill. Dec. 814 (Ill. Ct. App. 1990).

Opinion

JUSTICE MURRAY

delivered the opinion of the court:

After separate but related hearings before the Board of Fire and Police Commissioners of the City of Markham (Board), two City of Markham police officers, Sergeant Henry Wilson (Wilson) and patrolman Ralph Tolbert (Tolbert), were found to have violated certain police department rules and regulations in conjunction with an incident that had transpired between these two officers. Wilson was ordered suspended for 30 days from his duties as a police sergeant for the City of Markham. Tolbert was ordered discharged from the Markham police force. Both parties filed complaints for administrative review with the circuit court of Cook County, and the complaints were heard by two separate trial courts. Each trial court affirmed the actions of the Board in the case that was before it. Both parties appealed, each contending that the Board’s decision was improper and against the manifest weight of the evidence. Because the cases were related, we consolidated the cases after oral argument was heard in Wilson’s case.

We affirm the Board’s conclusion that both officers were guilty of violating rules of conduct. However, because of the gross disparity in the sanctions levied against the two parties, we reverse the trial court’s order in both cases and remand the matter to the Board for a new hearing on the issue of sanctions only.

Both of the cases on appeal stem from an incident that took place between Wilson and Tolbert, on December 7, 1988, in the Markham police department. The evidence presented to the Board indicates that when Tolbert reported for duty that morning he was confronted by Wilson prior to roll call. Wilson called Tolbert into an office to question him concerning a letter authored by a Markham alderman, which was critical of Wilson’s ability as a police officer. An argument followed. Wilson claimed that “there was cursing on both sides,” although Tolbert testified that only Wilson was cursing. At the close of this discussion, Wilson ordered Tolbert to leave the police station.

Rather than leave the station, Tolbert went to the squad room at the back of the station and began typing on a sheet of paper, presumably to lodge a complaint against Wilson. Wilson entered the squad room and noticed Tolbert sitting behind the counter at a typewriter. He approached Tolbert, repeated that he was to leave the station and told him that he was suspended. Tolbert ignored Wilson’s direction, so Wilson pulled the paper out of the typewriter that Tolbert was using. Tolbert grabbed for the paper and the paper tore.

What happened next is disputed. Wilson claimed that Tolbert came charging at him and that he merely grabbed Tolbert in an attempt to restrain him for his own defense. However, an eyewitness, Officer Mattie King, testified that Tolbert came around the counter that separated him from Wilson and stated, “What do you think you’re doing?” At the same time he had his arms raised. Wilson then pushed Tolbert into the counter. In response, Tolbert swung at Wilson and an altercation ensued, which was later terminated by the intercession of other police officers. According to Tolbert, during the course of this altercation, he hit his head on some overhead pipes, causing him to suffer a nondepressed skull fracture.

After the incident, on December 13, 1988, Tolbert was given a five-day suspension by the Markham chief of police, Ted Clayton. In addition, Clayton filed charges against Tolbert with the Board of Fire and Police Commissioners, calling for his discharge from the Markham police force. At the same time, on December 22, 1988, Tolbert filed charges with the Board against Wilson.

Rather than consolidating the two cases for hearing, the Board first proceeded with the case against Tolbert on January 10 and 17, 1989. The Board reconvened on January 26, 1989, and, after denying Wilson’s request for a continuance, heard the case against Wilson. At the close of this hearing the Board made its findings with regard to both cases, ruling that both Tolbert and Wilson were guilty of misconduct. Specifically, the Board found that Wilson was guilty of (1) conduct unbecoming an officer for yelling at Officer Tolbert and snatching a paper from the typewriter; and (2) disobedience of orders for committing a battery against Tolbert by pushing him and causing him to strike his head. Tolbert was found guilty of (1) conduct unbecoming an officer for using loud and profane language toward Wilson; (2) disobedience of orders for committing a battery against Wilson by punching and kicking him; (3) disobedience of orders for breaking a polished stone washroom partition in the course of the struggle; and (4) conduct unbecoming an officer for engaging in a verbal and physical altercation with his superior officer, Wilson.

On appeal Wilson contends that the hearing he received was unfair because of the Board’s denial of his request for a continuance. He further claims that the determination reached by the Board, including the sanction imposed, was against the manifest weight of the evidence. Tolbert questions whether his five-day suspension barred the filing and hearing of charges for dismissal. In addition, he, too, questions whether the Board’s findings and the sanction imposed were against the manifest weight of the evidence. Before addressing the correctness of the Board’s findings and penalties, we shall address the preliminary matters raised by the parties.

With respect to Wilson’s claim, the only unfairness that Wilson points to is the Board’s refusal to postpone his hearing until such time as the Board reached a determination on the charges lodged against Tolbert and the Board’s failure to provide him with a transcript of Tolbert’s hearing prior to his own hearing. Wilson’s position is based upon the erroneous conclusion that his own culpability was somehow contingent upon Tolbert’s guilt and that the Board’s denial of his motions for continuance and discovery limited his ability to adequately prepare his own defense.

We find no indication that Wilson was prejudiced by the Board’s decision to deny his requests. Administrative agencies are given broad discretion to grant or deny continuances. (Martich v. Ellis (1981), 100 Ill. App. 3d 1098, 427 N.E.2d 876.) Absent some showing that additional evidence would have been discovered which could have affected the outcome of the hearing or the penalty imposed, we cannot say that the Board abused its broad discretion in denying Wilson’s requests. As required by law (Ill. Rev. Stat. 1987, ch. 24, par. 10—2.1—17), Wilson was informed of the charges against him in writing. He attended Tolbert’s hearing and was fully cognizant of the circumstances surrounding the altercation which was being reviewed by the Board. Under these circumstances we find that Wilson was given the fair and impartial hearing to which he was entitled.

We note, too, that the Administrative Review Law grants the court jurisdiction to remand a cause back to the administrative agency so that additional evidence may be taken if it appears that such action is necessary and just. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — Ill.(7).) Wilson has made no such request, nor does he suggest any evidence that might be forthcoming if such action were taken.

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Bluebook (online)
563 N.E.2d 941, 205 Ill. App. 3d 984, 150 Ill. Dec. 814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-board-of-fire-police-commissioners-illappct-1990.