Jones v. Police Bd.

SECOND DIVISION
JUNE 30, 1998

1-97-0863

LONNIE JONES, ) APPEAL FROM
) THE CIRCUIT COURT
Plaintiff-Appellant, ) COOK COUNTY.
)
) No. 94 CH 1254
)
v. )
)
THE POLICE BOARD OF THE ) THE HONORABLE
CITY OF CHICAGO, and ) ARTHUR DUNNE
TERRY G. HILLARD, ) JUDGE PRESIDING.
Superintendent of Police, )
)
Defendants-Appellees. )

JUSTICE COUSINS delivered the opinion of the court:
Plaintiff, Lonnie Jones, appeals from a decision of the
circuit court affirming the decision of the Police Board (Board)
of the City of Chicago and Terry G. Hillard, superintendent of
police of the City of Chicago (City), to terminate his employment
as a police officer with the City's police force. On appeal,
Jones contends that: (1) the decision of the Board was against the
manifest weight of the evidence; (2) his conduct did not warrant
discharge; (3) he was prejudiced by an improper grant of a
continuance to the City; (4) the improper handling of reluctant
witnesses was contrary to law and prejudiced him; and (5) he did
not receive a fair and impartial hearing before the Board.
BACKGROUND
On January 12, 1994, Jones was discharged from his employment
with the City of Chicago's police department after the Board found
that he violated 10 police department rules during an incident
that occurred on June 19, 1992. At the hearing on the charges
Jones testified as follows. In the early morning hours of June 19,
1992, Jones was off duty and wearing civilian clothes. He had
spent an hour and a half in Dell's lounge at 815 East 79th Street.
While at the lounge,Jones became hungry so the owner of the lounge
phoned in a food order for Jones at a nearby Harold's Chicken
Shack (Harold's). About 10 minutes later, Jones left Dell's and
went to Harold's. Jones testified that he approached the counter.
Two men were standing behind the counter. When he asked the men
about his order, the men swore at him and told him to sit down
because they were talking. Jones sat down in the restaurant and
waited for 5 or 10 minutes. Jones testified that when he
approached the window a second time, Maurice Fleshman said, "Don't
you see me talking. Get the fuck away from the window. He will
get your fucking chicken when it's ready." Jones testified that
Fleshman then made a fist and pushed him. The push caused Jones
to back into a wall. Jones asked Fleshman why he had pushed him,
pulled out his badge and announced that he was a police officer.
At that point, another man standing by the counter, Derrick Ford,
came over to Jones and threatened him. The three men then began
to fight. Jones testified that the two men were on either side of
him and that they were feeling around his back. He believed they
were looking for his weapon. Jones attempted to push the men away
from him and Ford was pushed up against a table. Fleshman fell
near the door. Jones further testified that Fleshman moved his
right hand into his jacket as though he had a weapon so Jones
pulled out his weapon, pointed it toward the ground and asked
Fleshman to show him his hand. Fleshman then backed out of the
restaurant. Jones went over to Ford, grabbed him and took him
outside, where he told him that he was under arrest.
Once outside, Jones observed Fleshman outside the door by a
public telephone. He told both Ford and Fleshman to line up on
the wall and put their hands on the wall. Jones then flagged down
a passing squad car. Two uniformed police officers, Officer Daria
Peterson and Officer Andrea Dawson, arrived on the scene. The
officers yelled at Jones to drop his gun. Jones told the officers
that he was a police officer and showed them his badge. Jones
testified that he did not drop the gun because he feared it would
go off and hit a citizen. Eventually he placed the gun in his
waistband and tried to tell the officers that he was arresting the
two men for battery. Sergeant Charles Flynn arrived on the scene
and ordered Jones to get into the squad car with Officers Peterson
and Dawson. Jones testified that he did not obey the sergeant's
order. Jones was subsequently taken to the station and arrested
for battery and aggravated assault. Several weeks later, Jones
reported the incident in writing.
Derrick Ford also testified at the hearing. On June 19,
1992, Ford was at Harold's with Craig Jackson and Maurice
Fleshman. The three men were sitting at a booth in the restaurant
and were eating. Ford testified that he heard someone come into
the restaurant and then heard people arguing. Jackson kicked Ford
under the table and told him to turn around. When Ford turned
around and looked, he saw Jones. Jones was "nudging" Fleshman by
pushing him with his shoulders. Ford started to get out of the
booth and said, "hey." Ford testified that, at that point, Jones
grabbed him by the throat and slammed him onto the table. Ford
stated that he knew that his hands were on the table when Jones
came over to him because he was holding a piece of chicken. With
one hand around Ford's neck, Jones pulled out his pistol and held
it about four inches away from Ford's face. Then Jones pulled out
his badge and told Ford that he was a police officer. Two other
men in the restaurant asked Jones what he was doing. When Jones
turned around to tell them that he was a police officer, he moved
his gun away from Ford. Ford then got off the table and walked out
of the restaurant.
Outside the restaurant, Ford saw Maurice Fleshman at a
telephone booth. Two female police officers arrived on the scene.
Jones came out of the restaurant. He still had the gun in his
hand and was pointing it at the ground. The female officers
identified themselves and told Jones to put down his gun, but
Jones pointed at Ford and Fleshman and told the officers to arrest
them. Ford and Fleshman were taken to the police station but they
were not charged with anything and were soon released. On cross-
examination, Ford admitted that he had been drinking that night.
Maurice Fleshman also testified at the hearing. Fleshman
testified that he was standing in line when Jones entered
Harold's. Jones came up to the front of the line and stood next
to Fleshman. Jones was talking to the people who were working
behind the counter about his order. Jones then bumped into
Fleshman and told him, "Don't touch me." Fleshman moved away from
Jones. Jones then pulled out his gun and pointed it at Fleshman.
Fleshman put his hands up and backed out of the restaurant.
Fleshman testified that, at this point, Ford stood up with a piece
of chicken in his hand. Jones grabbed Ford and threw him onto the
table. Fleshman then went outside to the pay phone and called
911. Then Officers Peterson and Dawson arrived.
Albert Parks, a cook who was working at Harold's on the night
of the incident, also testified at the hearing. Parks testified
that he did not see what happened after he told Jones that his
chicken was not ready. Parks testified that he only saw when Jones
had Ford on the table and had his gun pointed on him.
Earlean Scott testified that she was a cashier at Harold's
and was working on the night of the incident. She also testified
that she saw Jones standing over a man who was lying on a table
on his back. Jones had one hand on the man on the table and
another hand on his gun, which he held up in the air.
Officer Daria Peterson testified at the hearing. Officer
Peterson stated that, as she arrived at the scene at Harold's, she
saw a crowd gathering outside the restaurant by the telephone.
Officer Peterson testified that, as they pulled up to the scene,
Jones reached into his waistband and pulled out a gun. The
officers yelled at Jones to drop his gun. Jones told the officers
that he wanted the two men who were standing by the telephone
arrested. The officers kept telling Jones to drop his gun but he
did not. Finally, Jones placed the gun in his other hand and told
the officers that he was a police officer. Then Jones showed
Officer Peterson his badge, but did not show her his
identification card. Officer Peterson further testified that
Jones was "hollering" and was "very loud, physically upset [and]
agitated." Jones kept telling the officers that he wanted Ford
and Fleshman arrested. Officer Peterson then left Jones and
walked over to Ford and Fleshman, who were standing near the
telephone. Ford and Fleshman were yelling that they wanted Jones
arrested.
A crowd started to gather so the officers decided to go to
the sixth district police station. Officer Peterson told Jones
that they were going to the police station in order to take the
incident off the street. Jones became angrier and stated that he
wanted to sign complaints there. Then Sergeant Charles Flynn
arrived on the scene. Sergeant Flynn spoke with Officers Peterson
and Dawson and then spoke with Jones. Sergeant Flynn also
testified at the hearing and stated that he could smell alcohol on
Jones' breath. After speaking with Ford, Fleshman and Jones,
Sergeant Flynn decided to take everyone to the police station.
When Jones learned that he was going to the station, he began to
call the officers names and curse at them. He also told them that
they did not know their jobs. At times, Officer Peterson
testified, Jones was "in [her] face." Officer Peterson also
testified that she could smell alcohol on Jones' breath.
Sergeant Flynn told Jones that Officers Peterson and Dawson
would take him to the police station in their squad car. Jones
responded that he wanted to drive himself to the station and
crossed the street to his car. Sergeant Flynn followed Jones
across the street and gave him a direct order to ride to the
station in a squad car. Jones refused to get into a squad car and
told the sergeant that he was making a mistake and would regret
it. Jones also said that he had an uncle who was a deputy and
that Sergeant Flynn could be in trouble. At that point, Sergeant
Flynn arrested Jones and took him to the police station. At the
station, Jones told Officer Peterson that she would get hers or
something to that effect. He also told her "something pertaining
to keeping the punk police" in the sixth district where officers
"don't know how to treat police."
The Board found Jones guilty of violating 10 of the Chicago
police department's rules and regulations in connection with the
June 19, 1992, incident. Specifically, the Board found that Jones
violated Rule 1, which prohibits a police officer from "violating
any law or ordinance"; and Rule 2, which prohibits an officer from
taking any action or engaging in conduct that "impedes the
Department's efforts to achieve its policy and goals or brings
discredit upon the Department." The Board also found Jones
violated Rule 2 by disobeying oral orders given by Sergeant Flynn
and Officers Peterson and Dawson and by verbally abusing Officers
Peterson and Dawson. Jones was also found guilty of violating
Rule 6, which prohibits an officer from disobeying an order or
directive, whether written or oral, because, without
justification, he threatened to use deadly force against Ford and
used nondeadly force against Fleshman in violation of police
department general orders. Furthermore, the Board found Jones
guilty of violating Rule 7, which prohibits an officer from
committing an act of insubordination or disrespect toward a
supervisory officer, on or off duty, by refusing to comply with
Sergeant Flynn's orders and by using improper language in Sergeant
Flynn's presence. The Board also found Jones guilty of violating
Rule 8, which prohibits an officer from disrespecting or
maltreating any person, while on or off duty, and Rule 9, which
prohibits an officer from engaging in any unjustified verbal or
physical altercation with any person, while on or off duty, by
battering Ford and Fleshman, putting his gun to Ford's head,
pointing his gun at Fleshman and disobeying and verbally abusing
Sergeant Flynn and Officers Peterson and Dawson. With respect to
Rule 14, which prohibits an officer from making a false report,
whether written or oral, the Board found Jones guilty because he
provided a statement concerning the June 19, 1992, incident that
was not true. The Board also found Jones guilty of violating Rule
15, which prohibits a police officer from becoming intoxicated on
or off duty, because he was intoxicated during the June 19, 1992,
incident. The Board further found Jones guilty of violating Rule
37, which prohibits a police officer, whether on or off duty, from
not correctly identifying himself, because he failed to identify
himself to Officers Peterson and Dawson. Finally, with respect to
Rule 38, which prohibits any unlawful or unnecessary use or
display of a weapon, the Board found Jones guilty because he
unnecessarily placed a gun to Ford's head, pointed it at Fleshman
and displayed it in the presence of Officers Dawson and Peterson.
On January 12, 1994, the Board ordered that Jones be
discharged as a police officer. The Board acknowledged that Jones
had presented evidence that he went through alcohol
rehabilitation, but rejected his request to mitigate the
punishment in the event that he was found guilty of the charges.
On February 8, 1994, Jones filed a petition for administrative
review in the circuit court, challenging the Board's decision. On
December 21, 1994, the circuit court entered an order affirming
the findings of the Board but reversing the sanction of discharge
and remanding the matter to the Board for imposition of a sanction
less than discharge if Jones successfully completed a program of
alcoholic treatment and a psychological evaluation.
At a hearing on May 19, 1995, Jones' sponsor at Alcoholic
Anonymous (AA) testified on behalf of Jones and stated that Jones
had been consistently sober since 1993. Jones also testified that
he had been sober and had been attending AA meetings. On July 6,
1995, the Board issued an order providing that Jones would have
until September 30, 1995, to comply with the circuit court's order
of December 21, 1994, by presenting documentation of successful
completion of an alcoholic evaluation and treatment in a certified
program and a psychological evaluation.
In August 1995, the Board received a letter from the senior
program counselor of a 10-day alcoholic treatment program at
Columbus Hospital which stated that Jones had completed that
program on August 8, 1995. The Board also received a written
psychological evaluation in which clinical psychologists Drs. Eric
Ostrov and James Janik of the Center for Applied Psychology and
Forensic Studies concluded that Jones was unfit to return to duty
as a police officer. On November 17, 1995, the Board issued its
second findings and decision after remand in which it reinstated
its previous order of discharge based on Jones' alleged failure to
comply with the Board's July 6, 1995, order and the Board's
findings that he had violated 10 police department rules.
Jones appealed the Board's second findings in the circuit
court. Specifically, he asked the court to reverse the order and
remand the case to the Board again in order to allow him to cross-
examine the psychologists who had authored the evaluation finding
him unfit. On February 6, 1996, the circuit court reversed the
Board's November 17, 1995, decision and remanded the case to the
Board with directions to conduct a hearing de novo on the issue of
Jones' psychological fitness for duty.
On September 25, 1996, the Board held a hearing at which the
City and Jones called their respective experts to testify. Dr.
James Janik testified for the City and testified that Jones was
unfit for duty. Dr. Jack Arbit testified on behalf of Jones and
testified that he believed Jones was able to return to his duties
as a police officer as long as he remained sober. On December 6,
1996, the Board issued its third findings and decision after
remand in which it found Jones psychologically unfit for duty
based on the testimony and reports of Dr. Janik. The circuit
court affirmed the Board's third findings and decision. This
appeal followed.
We affirm.
ANALYSIS
Initially, we address Jones' motion to strike the
supplemental appendix, which was ordered taken with the case.
Jones objects to the City's brief, which includes a transcript of
the proceedings in the criminal trial of People v. Lonnie Jones,
92 M1 266846 in its appendix. Supreme Court Rule 308(c) requires
an application for leave to appeal to be accompanied by a copy,
certified by the clerk of the trial court, of the order appealed
from and of the other parts of the trial court record necessary
for the determination of the application. 134 Ill. 2d R. 308(c).
Those documents not certified and attached to the application are
therefore not part of the record on appeal and need not be
considered. Regal Package Liquor, Inc. v. J.R.D., Inc., 125 Ill.
App. 3d 689, 691, 466 N.E.2d 409 (1984). This result is not
changed by the inclusion of documents in the appendices to the
parties' briefs, because attachments to briefs not otherwise
before the reviewing court cannot be used to supplement the
record. Regal, 125 Ill. App. 3d at 691. See also Tomlen Group,
Ltd. v. Goldfarb, 101 Ill. App. 3d 154, 157, 427 N.E.2d 1047
(1981) (Attachments to briefs not otherwise of record are not
properly before the reviewing court and cannot be used to
supplement the record). Accordingly, we are unable to consider the
City's attachment of the transcript to Jones' criminal trial
because the transcript is not contained in the record before this
court. Ahn Brothers, Inc. v. Buttitta, 143 Ill. App. 3d 688, 690-
91, 493 N.E.2d 384 (1986).
Jones also filed a motion to strike all the footnotes
contained in the City's brief. This motion was also taken with
the case. Jones cites Supreme Court Rule 341(a), which provides
that footnotes "if any, shall be used sparingly," and Supreme
Court Rule 344(b), which provides that footnotes are "discouraged"
in copies of briefs and abstracts filed with the court. (134 Ill.
2d Rs 341(a), 344(b)). The City's brief is 61 pages and includes
32 footnotes. However, after reviewing the brief as a whole, we
see no reason to strike the City's footnotes.
Jones contends that the Board's findings are against the
manifest weight of the evidence, but first complains that the
Board's findings are unreviewable because, in specifying the
conduct that constitutes the rule violations, the Board used the
words "and/or" to connect the various acts that violated each
rule. Jones' argument is unpersuasive. Such findings are fully
capable of review. There is no statutory requirement for detailed
and specific findings of fact by an administrative agency; where
the testimony before the agency is preserved for review, specific
findings of fact are unnecessary to obtain judicial review.
Fagiano v. Police Board, 123 Ill. App. 3d 963, 982-83, 463 N.E.2d 845 (1984). Accordingly, the Board's findings are reviewable.
The review of an administrative agency's decision regarding
discharge is a two-step process. Walsh v. Board of Fire & Police
Commissioners, 96 Ill. 2d 101, 105, 449 N.E.2d 115 (1983). The
court must first determine whether the agency s finding of guilt
is contrary to the manifest weight of the evidence. Second, it
must determine if the findings of fact provide a sufficient basis
for the agency's conclusion that there is cause for discharge.
Walsh, 96 Ill. 2d at 105. The record in the instant case
demonstrates that the findings of the Board were not against the
manifest weight of the evidence.
Ford and Fleshman both testified that Jones pointed his gun
at them without any justification and Ford testified that Jones
grabbed him by the throat and slammed him onto a table, also
without justification. Parks then testified that he saw Jones
pointing his gun at Ford. This testimony sustains findings that
Jones violated six department rules, specifically, Rule 1, which
prohibits a police officer from "violating any law or ordinance";
Rule 2, which prohibits an officer from taking any action or
engaging in conduct that "impedes the Department's efforts to
achieve its policy and goals or brings discredit upon the
Department"; Rule 6, which prohibits violation of police
department general orders prohibiting excessive use of force; Rule
8, which prohibits an officer from disrespecting or maltreating
any person, while on or off duty; Rule 9, which prohibits an
officer from engaging in any unjustified verbal or physical
altercation with any person, while on or off duty; and Rule 38,
which prohibits any unlawful or unnecessary use or display of a
weapon. Sergeant Flynn and Officers Peterson and Dawson all
testified and Jones admitted that he refused to get into the
officers' squad car even after being ordered to do so. This
conduct constitutes a violation of Rule 7, which prohibits an
officer from committing an act of insubordination or disrespect
toward a supervisory officer, on or off duty. Furthermore,
testimony that Jones smelled as if he had been drinking and
breathalyzer evidence that established that Jones was intoxicated
during the incident supported the Board's finding that he violated
Rule 15, which prohibits a police officer from becoming
intoxicated on or off duty. Additionally, we note that Officers
Peterson and Dawson both testified that Jones refused to show his
identification card when they asked for it. This conduct violated
Rule 37, which prohibits a police officer, whether on or off duty,
from not correctly identifying himself.
After reviewing the record on appeal, we conclude that the
Board's findings that Jones violated various police department
rules were not against the manifest weight of the evidence. We
believe the evidence, taken in its entirety, is sufficient to find
that Jones conduct was violative of the City's rules and
regulations regarding the conduct of police officers.
We further conclude that the findings provide sufficient
cause for the Board's decision to terminate Jones' employment. An
administrative agency's "determination of cause demands the
respect of the court and is only to be overturned if it is
arbitrary and unreasonable or unrelated to the requirements of
service." Swanson v. Board of Police Commissioners, 197 Ill. App.
3d 592, 606, 555 N.E.2d 35 (1990). "The question is not whether
the court would decide upon a more lenient sanction than discharge
were it to make the initial determination. The question is
whether the Board acted arbitrarily or unreasonably." Swanson,
197 Ill. App. 3d at 606, citing Sutton v. Civil Service Comm'n, 91 Ill. 2d 404, 411, 438 N.E.2d 147 (1982).
In our view, the Board's decision to terminate Jones was not
arbitrary or unreasonable. A summary of the findings against
Jones shows that, while intoxicated, Jones acted below
professional standards in assaulting two people, disrespected
fellow officers and a superior officer, and grossly misused his
weapon. Taken as a whole, these findings provide a sufficient
basis to terminate Jones' employment.
Jones argues that the City did not prove that he was
psychologically unfit for duty because the City's expert testified
that he could not render an opinion on of the day of hearing,
September 25, 1996, as to whether Jones was psychologically fit to
return to work. The City contends that Dr. Janik's testimony was
properly admitted.
In Illinois, a physician may not testify at trial regarding
his opinion of a patient's prognosis unless that prognosis was
based on a recent examination. Marchese v. Vincelette, 261 Ill.
App. 3d 520, 525, 633 N.E.2d 877 (1994). In Marchese, the
appellate court held that an examination that was taken 15 months
prior to trial, although not altogether recent, was properly
admitted because the opinion was reached after a course of
treatment that extended over a period of years. Marchese, 261
Ill. App. 3d at 525-26. The appellate court quoted the trial
court, which had stated, "I believe that it [the expert's
testimony] is relevant or there is a sufficient basis for it in
the testimony and the observations *** to back up this
conclusion." 261 Ill. App. 3d at 526.
In the case sub judice, the City's expert, Dr. Janik,
testified on September 25, 1996, regarding his examination of
Jones. It was Dr. Janik's conclusion, in July 1995, that Jones
was unfit for duty. Dr. Janik testified that the job of a police
officer required an individual with a great deal of "balance,
reserve and control." He further stated that he thought it was "a
great concern to the department that excessive force and deadly
force be used only when absolutely necessary." However, Dr. Janik
concluded that Jones was "an individual with difficulties in the
area of control, of angry impulses." Dr. Janik further stated that
Jones had coped with his anger by drinking alcohol and that now
that he was not drinking, he "continued to be at risk for
manifestation of these impulses." Although Dr. Janik testified at
the hearing that he could not offer an opinion as to Jones'
fitness at that time, he stated that he stood by his July 1995
opinion. At the hearing, the following colloquy occurred:
"Q. In July of 1995, what was your opinion as to
whether Officer Jones was to a reasonable degree of
psychological certainty fit to return to work?
A. My opinion at that time was that he was not fit to
[sic] -- recommended that he not return to work.
Q. Do you stand by that opinion today?
A. Yes. I've reviewed the psychological report and
underlying material that Dr. Arbit [Jones' testifying expert
examined Jones in March 1996] conducted some six months after
and there's nothing in that material that would change my
mind at this point."
In our view, the hearing officer properly allowed Dr. Janik's
testimony, even though it was based on an examination that took
place 14 months earlier. Dr. Janik's testimony was relevant and
his conclusions were supported by other testimony and
observations. Moreover, we note that assessments of witness
credibility are within the province of the agency hearing
testimony (see Collura v. Board of Police Commissioner, 113 Ill. 2d 361, 373, 498 N.E.2d 1148 (1986)) and the same rules of weight
and credibility that are applicable to other witnesses are used to
judge the testimony of experts. Hall v. National Freight, Inc.,
264 Ill. App. 3d 412, 423, 636 N.E.2d 791 (1994). Thus, we cannot
say that the Board erred in relying on Dr. Janik's opinion that
Jones was psychologically unfit for duty. Jones also argues
that the City acted improperly because it failed to inform Jones
of the results and recommendations made by Dr. Janik and because
he was never told by Dr. Janik that a short period of counselling
would render him fit for duty. However, Jones misconstrues the
record. Our review of the record indicates that Dr. Janik did not
testify that counselling would render Jones fit for duty. At
trial during direct examination, Dr. Janik testified as follows:
"Q. In order for Jones to resolve some of [his]
issues, what would it take on Jones' part?
A. I would [sic] -- psychotherapy probably in the
range of three to six, seven months in which he actively
participated in self-analysis and analysis of his attitudes."
On cross-examination, Dr. Janik testified as follows:
"Q. Now, that [sic] you may have had certain
recommendations regarding he [sic] should undergo treatment,
psychotherapy, I think you said three to seven months. If,
in fact, he underwent that type of treatment, are you stating
that he may be able to go back to the police department, he
may be fit for duty or you don't believe he will ever be fit?
A. It will depend on the variables like his
participation, his activity level and his willingness to
examine aggressively the aspects of himself, those kinds of
things. If he was successful in the psychotherapy that would
certainly argue towards [sic] his returnability." (Emphasis
added.)
The record clearly shows that Dr. Janik did not testify that
counseling would render Jones fit for duty. Thus, Jones' argument
that, had he only been informed of such recommendations, he could
have completed any course of therapy and proven his fitness is
meritless. Moreover, Jones ignores the fact that he was not
terminated from employment with the police department solely on
the basis of his psychological evaluation. Rather, he was also
terminated because he violated several police department rules of
conduct.
Jones further argues that he was prejudiced when the hearing
officer granted the City a continuance. We disagree. The record
establishes that, on the second day of Jones' hearing, counsel for
the City advised the hearing officer that two of its witnesses,
Maurice Fleshman and Craig Jackson, had not shown up. The City
requested a continuance so that it could seek enforcement of
subpoenas directing Fleshman and Jackson to appear at the hearing
to testify. Jones objected to the continuance. Jones now argues
that the continuance should not have been granted because no
evidence was offered to show that "one of the potential witnesses"
had been served with a subpoena. When the hearing resumed,
Fleshman testified against Jones. Jones relies on section 10-1-
18.1 of the Illinois Municipal Code, which provides that "[n]o
continuance may be granted after a hearing has begun unless all
parties to the hearing agree thereto." 65 ILCS 5/10-1-18.1 (West
1996). Jones also relies on Rule III(A) of the Board's rules of
procedures, which provides that no continuance shall be granted to
any party for the failure of a witness to appear unless that
witness had been previously served with a subpoena to appear.
An administrative agency possesses broad discretion in
determining whether to grant a continuance. Bickham v. Selcke,
216 Ill. App. 3d 453, 459, 576 N.E.2d 975 (1991). Such
discretion, however, must be exercised judiciously and not
arbitrarily so as to satisfy the ends of justice. Bickham, 216
Ill. App. 3d at 459.
The record in the instant case indicates that, at the
hearing, counsel for the City showed opposing counsel copies of
subpoenas for Fleshman and Jackson. Counsel for Jones contested
only the subpoena for Jackson. The hearing officer then overruled
the objection relative to Fleshman and "tentatively" overruled the
objection as to Jackson. The hearing officer allowed Jones to put
on the remainder of his witnesses, allowed the City to seek
enforcement of its subpoenas and continued the matter for another
day at which time the City could call Fleshman and Jackson.
We cannot say that the hearing officer erred in allowing the
continuance. The record indicates that Fleshman, a key witness to
the charges against Jones, was properly served with a subpoena.
The record is unclear as to whether Jackson was properly served.
However, Jackson did not testify. Accordingly, the continuance
was properly granted in the interests of justice to allow
enforcement of the subpoena that was properly sought against
Fleshman.
Jones also contends that witnesses were handled improperly.
Specifically, Jones points to the reluctance of both Fleshman and
Ford to testify before the hearing officer. The record indicates
that, during direct examination, Fleshman stated, "I would just
like to go home." The hearing officer responded that he
understood, but that Fleshman had been subpoenaed. The officer
asked Fleshman to please try and answer the questions.
Thereafter, Fleshman continued to answer the questions posed to
him on direct, cross-examination and redirect. During the course
of direct examination, Ford asked, "Can I drop this complaint
right now?" The hearing officer explained to Ford that he was
only allowed to speak when a question was posed to him. Ford
stated, "I just want to say one thing." The City objected because
there was no question pending. However, on cross-examination,
counsel for Jones asked Ford what he had wanted to say. Ford
responded, " I wouldn't be sitting here right now if he had
apologized that night. *** I don't see the point in going on with
this." Thereafter, Ford was excused.
Jones cites no case law to support his argument that both
Fleshman and Ford were "coerced" by the hearing officer and
counsel for the City. We see no error. Both Fleshman and Ford
continued to testify freely even after they expressed a desire to
discontinue. Moreover, Ford explained his reluctance during
cross-examination. We cannot say that Jones was prejudiced by
Ford's and Fleshman's hesitancy to testify.
Finally, we reject Jones' contention that he did not have a
fair and impartial hearing. Under the fourteenth amendment (U.S.
Const., amend. XIV), the opportunity to be heard should not be
arbitrarily limited and fair consideration of an individual's
objections should be included. Mahonie v. Edgar, 131 Ill. App. 3d
175, 179, 476 N.E.2d 474 (1985). We believe Jones was afforded
ample opportunity to present and cross-examine witnesses, examine
evidence and make arguments on his behalf and that he received a
fair and impartial hearing.
For the foregoing reasons, the judgment of the circuit court
is affirmed.
Affirmed.
McNULTY, P.J., and RAKOWSKI, J., concur.