Haynes v. Police Board

FIRST DIVISION
December 8, 1997

No. 1-96-0150

CLYDE B. HAYNES,

Plaintiff-Appellant,

v.

POLICE BOARD OF THE CITY OF CHICAGO,

Defendant-Appellee.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

Honorable
Margaret S. McBride,
Judge Presiding.
 JUSTICE GALLAGHER delivered the opinion of the court:
Plaintiff was discharged from his duties as a Chicago police
officer by the defendant, the Police Board of the City of Chicago
(the Board), and filed an action for administrative review of the
decision. The circuit court affirmed the decision, and plaintiff
now appeals from that order.
Plaintiff has been employed by the Chicago police department
since July 14, 1986. In November 1993, allegations of sexual
assault were made against plaintiff. Based upon the facts and
circumstances surrounding the complaint, plaintiff was ordered to
undergo a psychological examination. Plaintiff refused to
undergo the examination, based upon his belief that the request
for the examination was wrong. The parties disagree as to
whether plaintiff requested counsel at the time of the
examination, but agree that plaintiff was being represented by
counsel for the complaint relating to sexual assault. The
parties also disagree as to the reason plaintiff refused to
submit to the exam, and the record indicates different reasons
given by the plaintiff at different points in time. It is
undisputed, however, that plaintiff refused to sign the form that
explained his administrative rights.
The superintendent of police filed charges against plaintiff
for violating two department rules. On October 31, 1994, the
Board discharged plaintiff. This decision was based in part upon
the findings of the hearing officer that plaintiff had violated
department rules by refusing to obey a direct order to undergo an
examination. The Board also considered plaintiff's past
disciplinary record, which included nine sustained charges
against him for various offenses, including excessive force,
neglect of duty/conduct unbecoming to an officer, misconduct
during the issuance of a traffic citation, verbal abuse,
insubordination, reporting late for duty, and medical roll abuse.
The Board's decision to discharge plaintiff was not arbitrary and
capricious.
The reasons for recommending the psychological examination
were set forth in a memorandum from Superintendent Raymond
Risley. The memorandum, which was put into evidence before the
Board, clearly noted that the psychological examination was
indicated to determine whether plaintiff was "fit to perform
required duties and/or if he should be referred for counseling."
The memorandum also clearly stated that the recommendation for a
psychological examination "in no manner, should be considered
part of the disciplinary process relative to" the investigation
of the incident relating to the original complaint of sexual
assault. Richard Wedgbury, the commander of the personnel
division, approved the request for a psychological examination.
Sergeant Town ordered the plaintiff to take the examination.
Plaintiff, at that point, refused to obey Sergeant Town's order.
There are two general orders relating to psychological and
physical examinations. A copy of each of these orders was marked
as an exhibit during the hearing before the Board. General Order
No. 90-5 sets forth the conditions in which mandatory physical
and/or psychological examinations will be required. That order
also states department policy as follows: "It is imperative that
all Department members have the physical stamina and
psychological stability to properly perform all required duties."
The order contains no language to support plaintiff's assertion
that it "was instituted to protect the rights of employees so
that they do not have to undergo improperly ordered psychological
and physical examinations." General Order No. 74-18, which sets
forth the department's medical policy, clearly states that the
"Superintendent of Police may order the psychiatric examination
of any member to determine fitness for duty."
Over objections of plaintiff's counsel, Sergeant Town
testified that the superintendent of police had designated the
director of personnel as the approving authority for all
psychological examinations. Plaintiff now contends that the
testimony was impermissible hearsay.
First of all, we do not believe that the testimony
necessarily referred to a "statement" but, rather, to an action
the superintendent had taken. Assuming, arguendo, that the
testimony was hearsay and assuming further that it was improperly
considered, this error would have been harmless. In Wohl v.
Yelen, 22 Ill. App. 2d 455, 459, 161 N.E.2d 339, 341 (1959), the
court stated:
"An agency cannot be proved by the statement of the
purported agent that he was the agent; but the conduct
of the purported agent, what he did with respect to the
subject matter of the transaction, his assumption of
authority, and his actions in relation to his supposed
principal, are all circumstances which may be put in
evidence."
Thus, this assumption of authority on the part of the director of
personnel was one of the circumstances properly put in evidence
to prove he had the authority, as was the fact that the
memorandum requesting the exam was sent to the director of
personnel and the fact that he then ordered the psychological
examination. Based upon the above factors alone, the Board could
easily find that Wedgbury had the authority to order the exam.
Furthermore, even if Wedgbury was acting without authority, any
subsequent ratification of his actions by the superintendent
would relate back and supply the original authority to do the
act. Grebe v. Vacek & Co., 103 Ill. App. 2d 79, 86, 243 N.E.2d 438, 441 (1968). Therefore, the statement of Sergeant Town was
of no practical consequence.
The trial court applied the appropriate standard of review
of an administrative agency decision, which is to determine
whether the findings were against the manifest weight of the
evidence. Launius v. Board of Fire & Police Commissioners, 151 Ill. 2d 419, 427, 603 N.E.2d 477, 481 (1992). In order to make a
determination that an agency's decision was against the manifest
weight of the evidence, a court must conclude that all reasonable
and unbiased persons, acting within the limits prescribed by law
and drawing all inferences in support of the finding, would agree
that the finding is erroneous and that the opposite conclusion is
clearly evident. Jagielnik v. Board of Trustees of the Police
Pension Fund, 271 Ill. App. 3d 869, 875, 649 N.E.2d 527, 530
(1995).
In denying plaintiff's petition for administrative review,
the circuit court correctly noted that it was not sitting as a
trier of fact. "It is not the court's function to resolve
factual inconsistencies, nor is it the court's duty to weigh the
evidence and then determine where the preponderance of the
evidence lies." Launius, 151 Ill. 2d at 427-28, 603 N.E.2d at
481. On administrative review, neither this court nor the
circuit court can reweigh the evidence or the determination of
the credibility of the witnesses, which is to be made by the
agency. Doe v. Department of Children & Family Services, 265 Ill.
App. 3d 907, 911, 639 N.E.2d 149, 152 (1994); see also Illinois
State Police v. Illinois State Police Merit Board, 235 Ill. App.
3d 879, 884, 601 N.E.2d 966, 969 (1992)(evaluating the
credibility of witnesses and resolving conflicting evidence is
within the province of the administrative body).
We conclude that the trial court was correct in deciding
that the findings of the Board were not against the manifest
weight of the evidence. The Board heard testimony from Sergeant
Town that plaintiff refused to sign the form and also heard
testimony from Sergeant Town and Officer Kirby that plaintiff
refused to submit to the exam. The Board also heard testimony
from plaintiff, who was represented by counsel at the hearing.
"Because the weight of the evidence and the credibility of
the witnesses are uniquely within the province of the
administrative agency, there need only be some competent evidence
in the record to support its findings." Jagielnik, 271 Ill. App.
3d at 875, 649 N.E.2d at 530-31. Plaintiff acknowledged that he
was given the form listing his administrative rights. It is
undisputed that plaintiff refused to sign the form. The Board
also heard evidence that plaintiff did not ask for an attorney
after receiving the form. Plaintiff testified as to a variety of
reasons for his disobeying orders. Initially he stated that he
refused to take the exam because he believed it was improper,
later he stated that he had requested counsel and been refused.
He also stated that after being ordered to take the psychological
examination and thereafter receiving the form listing his
administrative rights, he thought it was too late too ask for
counsel, so he did not ask. After carefully reviewing the
record, we conclude the Board's decision was supported by
sufficient evidence.
None of plaintiff's arguments negate the fact that plaintiff
refused to sign the form nor do they justify his refusing to do
so. Plaintiff's refusal to sign the form, combined with his past
disciplinary record, would be sufficient for a rational trier of
fact to conclude what the Board concluded. For the same reasons
noted above, we conclude that the Board's decision to discharge
plaintiff was not arbitrary and capricious.
Plaintiff's refusal to obey a direct order was not justified
by his mistaken belief that he should not have to take a
psychological examination. A police officer does not have the
prerogative of actively disobeying an order from a superior while
the officer subjectively determines whether the order is lawful,
valid or reasonable because such a practice would thwart the
authority and respect which is the foundation of the effective
and efficient operation of a police force and destroy the
discipline necessarily inherent in a paramilitary organization
such as the police department. See Launius, 151 Ill. 2d at 436,
603 N.E.2d at 485; Krecek v. Board of Police Commissioners, 271
Ill. App. 3d 418, 425, 646 N.E.2d 1314, 1320 (1995); Renner v.
Grand Trunk Western R.R. Co., 263 Ill. App. 3d 547, 550, 641 N.E.2d 1, 3 (1994).
Plaintiff contends that he was not required to obey an
unlawful order. Even assuming the department did not follow its
own internal guidelines, that departure would not necessarily
make an order "unlawful." "[T]he violation of self-imposed rules
or internal guidelines *** does not normally impose a legal
duty." Morton v. City of Chicago, 286 Ill. App. 3d 444, 454, 676 N.E.2d 985, 992 (1997). In view of this principle and our
conclusion that the general orders were not instituted to protect
plaintiff's rights, but instead to assure that members "have the
physical stamina and psychological stability to properly perform
all required duties," any lack of strict compliance with the
guidelines created no legal right on the part of the plaintiff.
For the reasons stated, the judgment of the circuit court is
affirmed.
Affirmed.
CAMPBELL, P.J., and O'BRIEN, J., concur.