O'Neill v. Rodriquez

Sixth Division
FILED: 08/07/98

No. 1-97-0611

JAMES L. O'NEILL, ) Appeal from the Circuit
) Court of Cook County
Plaintiff-Appellant, )
)
v. ) No. 95 CH 00079
)
MATT RODRIGUEZ, Superintendent of Police, )
City of Chicago, and THE POLICE BOARD )
OF THE CITY OF CHICAGO, ) Honorable
) Lester D. Foreman,
Defendants-Appellees. ) Judge Presiding.

JUSTICE ZWICK delivered the opinion of the court:

Defendant, the Police Board of the City of Chicago (Police Board) issued a
final administrative decision suspending plaintiff, James L. O'Neill, for a period of 30
days based upon violations of certain departmental rules. Plaintiff filed a complaint
for administrative review in the circuit court of Cook County. The circuit court
affirmed the decision of the Police Board, and plaintiff has appealed, contending (1)
the decision of the Police Board did not contain sufficient findings of fact to allow
judicial review, (2) the Police Board's decision was against the manifest weight of the
evidence, (3) the Police Board abused its discretion and acted arbitrarily in issuing the
30-day suspension, and (4) the investigation of plaintiff's conduct was improperly
initiated because it was predicated on an anonymous complaint.
The record establishes that from 1991 until 1993, plaintiff was a lieutenant for
the Police Department of the City of Chicago and served as the Commanding Officer
of the Personnel Investigative Section of the Personnel Division. In that capacity,
plaintiff was responsible for command of the unit which processed candidates,
including oversight of all pre-employment testing and background investigations. In
addition to his supervisory duties, plaintiff also personally conducted some background
investigations and performed follow-up on other investigations. Plaintiff was a 20-year
veteran with an exemplary service record.
The instant case centers on charges that plaintiff violated Rules 2 and 13 of the
Chicago police department, which prohibit the following behavior:
Rule 2: "[a]ny action or conduct which impedes the
Department's efforts to achieve its policy
and/or goals and/or brings discredit upon the
Department."
Rule 13: "[f]ailure to adequately secure and care for
Department property."
On June 10, 1992, an anonymous telephone complaint alleged that plaintiff had
submitted false overtime slips to the Department when, in fact, he was teaching at
DePaul University and frequenting a Halsted Street tavern. A second anonymous
complaint, this one in writing, was received on July 27, 1992, and charged that
plaintiff was an "habitual drunk driver" and had been involved in a traffic accident on
June 1, 1992, after he had been drinking.
These two complaints became the subject of an Internal Affairs investigation,
which revealed that at 1:45 a.m. on June 1, 1992, plaintiff was driving a department
vehicle westbound on I-90 west of Harlem Avenue. According to plaintiff, as he
moved from the center lane to the right lane of traffic, an unknown vehicle changed
lanes directly in front of him and caused him to swerve to the left in order to avoid an
accident. As a result, plaintiff's vehicle traveled across the center and left lanes and
struck a concrete median barrier. The accident caused damage to the department
vehicle driven by plaintiff which was estimated at more than $12,980. At the time of
the accident, the weather was clear and dry, and plaintiff was not asked to take a
breathalyzer test. The Illinois State Trooper who investigated the accident noticed that
plaintiff was nervous, but did not observe evidence that plaintiff had been drinking.
Chicago police sergeant James McKenna, who drove plaintiff to the police station,
back to the accident scene and then home, agreed with the State Trooper's assessment
that plaintiff had not been drinking. Plaintiff's superior, Commander Wedgbury,
concluded that the accident was "non-preventable."
Plaintiff explained that he was off duty at the time of the accident and was on
his way home after having dinner at the home of Gilberto Elizondo, another member
of the police department. Although his shift ended at 2 p.m. that day, plaintiff
returned to work to review materials. Plaintiff left the office between 7:30 p.m. and 8
p.m. that evening and then went to the home of Elizondo. Plaintiff denied that he had
been drinking alcohol at Dugan's Tavern prior to the accident, and he stated that he
had permission to use the department vehicle because he would be using the vehicle to
conduct interviews later that day. Plaintiff claimed that he does not drive his assigned
department vehicle for personal use.
Gilberto Elizondo stated that plaintiff had dinner at his home on the evening of
May 31, 1992. According to Elizondo, plaintiff arrived at his home after 7 p.m., and
he stayed until well after midnight. Elizondo stated that plaintiff did not consume any
alcoholic beverages at his home that night.
The investigation also revealed that plaintiff had been involved in an automobile
accident 15 months earlier while he was off duty. This accident occurred at 12:55
a.m. on March 16, 1991, while plaintiff was traveling northbound on Kedzie Avenue
at the intersection with Bryn Mawr. Plaintiff's car was in the intersection when it
stalled because of mechanical problems. A second vehicle, traveling eastbound,
entered the intersection when the light changed and struck plaintiff's vehicle.
Commander Wedgbury also found that this accident was "non-preventable." The cost
of repair to plaintiff's vehicle was approximately $1,753.
The police officer who was first to the scene described plaintiff as "disoriented
from the collision," but stated that there was no indication that he was intoxicated. A
police captain who was called to the scene interviewed plaintiff and noted "no
impairments." However, the driver and passenger of the second car involved in the
collision stated that plaintiff appeared to be intoxicated after the accident. The driver,
David Flapan, explained that he had not informed the investigating officer of his belief
that plaintiff was intoxicated because "it was obvious by the way he was acting. He
couldn't even drive his car off the street." The passenger, Teddy Wallace,
characterized plaintiff as "really, really drunk *** extremely bombed *** totally
inebriated on liquor." He also described plaintiff as stumbling and suffering from
slurred speech, and Wallace stated that plaintiff had shouted obscenities at Flapan and
him. Wallace further stated that he had told one of the officers at the scene that
plaintiff was intoxicated.
Plaintiff explained that although he was off duty at the time of the accident, he
was on his way to the 20th District station to pick up computer equipment that was
stored in his locker. Plaintiff stated that he intended to transport the equipment from
the 20th District Station to his office at 11th and State Street. However, plaintiff was
north of the 20th District station and was traveling north at the time of the accident.
The investigation of plaintiff's actions also included surveillance conducted on
August 5, 1992, which revealed that shortly after 7 p.m., plaintiff drove a department
vehicle to the area of Dugan's Tavern at 128 South Halsted Street in Chicago.
Plaintiff entered the tavern, where the investigating officer observed him consume
three alcoholic drinks. Sergeant Henry Barsch was called to the tavern at
approximately 9:15 p.m., and plaintiff admitted to Barsch that he had been drinking.
The two then agreed that plaintiff should not drive the department vehicle home from
the bar.
Plaintiff explained that he had worked from 11 a.m. until 7 p.m. on that day
and that he had permission to take the department vehicle home that evening. Plaintiff
stated that he stopped at Dugan's Tavern on his way home because he wanted to speak
with one of the managers of the bar about tickets to a ball game. Plaintiff did not
recall consuming any alcohol while in the bar, but he remembered drinking several
non-alcoholic beverages.
Pursuant to this investigation, plaintiff was served on August 26, 1992, with
charges that he had "driven a department vehicle beyond the scope of his employment
and after frequenting a tavern," that he had engaged in secondary employment, and
that he had submitted false time records. Based upon these charges, the Internal
Affairs Division conducted an investigation that resulted in certain findings with regard
to each of the allegations and a recommendation that plaintiff be suspended for 30
days. On August 3, 1994, the Superintendent issued an order that plaintiff be
suspended for 30 days based upon the determination that plaintiff had violated Chicago
Police Department Rule 2 (three counts) and Rule 13 (two counts).
Thereafter, plaintiff requested a hearing before the Complaint Review Panel,
which consisted of three departmental members. Upon review of the Internal Affairs
investigation, the review panel concurred with the finding that plaintiff had violated
department rules. However, two of the three members recommended a suspension of
shorter duration. Thereafter, the Superintendent notified plaintiff that he would be
suspended for 30 days. Plaintiff exercised his right to appeal the Superintendent's
decision to the Police Board. On December 20, 1994, the Police Board issued its final
administrative decision, sustaining the 30-day suspension of plaintiff.
Upon plaintiff's complaint for administrative review, the circuit court of Cook
County, remanded the matter to the Police Board, requiring the Board to make
"sufficient and appropriate" findings in support of its decision.
On September 30, 1996, the Police Board issued a three-page "Order After
Remand," which sustained its prior decision suspending plaintiff for a period of 30
days. Thereafter, the circuit court considered plaintiff's complaint for administrative
review and affirmed the decision of the Police Board. Plaintiff now appeals the ruling
of the circuit court.
We initially consider plaintiff's claim that the decision of the Police Board did
not contain sufficient findings of fact to allow judicial review.
The record reveals that upon remand from the circuit court, the Police Board
entered an "Order After Remand,"[fn1] which stated as follows:
"3. There is sufficient evidence to support the Superintendent's
allegation that Lieutenant O'Neill violated Rule 2, inter alia, by using
Department vehicles for activities outside of the scope of his employment
duties, and while doing so, being involved in traffic accidents on March
16, 1991, and June 1, 1992. He also used a Department vehicle for
activities outside the scope of his employment duties on August 5, 1992
to drive to Dugan's, a tavern located at 128 South Halsted, Chicago,
Illinois, where he consumed alcoholic beverages.
"4. There is sufficient evidence to support the Superintendent's
allegation that Lieutenant O'Neill violated Rule 13 by being involved in
traffic accidents on March 16, 1991 and June 1, 1992 while using
Department vehicles for activities outside the scope of his employment
duties."
It is well established that the purpose of an agency's findings in an
administrative proceeding is to permit orderly and efficient judicial review. Telcser v.
Holzman, 31 Ill. 2d 332, 338, 201 N.E.2d 370 (1964); Jim M'Lady Olds, Inc. v.
Secretary of State, 162 Ill. App. 3d 959, 963-64, 516 N.E.2d 346 (1987). Where such
findings are sufficient to permit the reviewing court to make an intelligent decision,
the standard is met. Jim M'Lady Olds, Inc., 162 Ill. App. 3d at 964; Bodine v. Civil
Service Comm'n, 134 Ill. App. 3d 341, 344, 480 N.E.2d 160 (1985). Where the
testimony before the administrative agency is preserved for review in the record,
specific findings of fact by the agency are not necessary for judicial review. Mahonie
v. Edgar, 131 Ill. App. 3d 175, 178, 476 N.E.2d 474 (1985).
The evidence regarding plaintiff's violations of Rule 2 and Rule 13 is preserved
in the record for review by the court, and the above findings which were specifically
included in the Board's "Order After Remand," were sufficient to permit orderly and
efficient judicial review. Therefore, we find that reversal of the circuit court's decision
is not warranted on this basis.
We next address plaintiff's assertion that the Police Board's decision was against
the manifest weight of the evidence.
In order to determine whether findings and conclusions of an administrative
agency are against the manifest weight of the evidence, the court must conclude that
all reasonable and unbiased persons, acting within the limits prescribed by the 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
(1995). The fact that an opposite conclusion is reasonable or that the reviewing court
might have ruled differently based upon the same evidence will not justify a reversal
of the findings of an administrative agency. Abrahamson v. Illinois Department of
Professional Regulation, 153 Ill. 2d 76, 89, 606 N.E.2d 1111 (1992); Antonelli v.
Board of Trustees of the Hillside Police Pension Board, 287 Ill. App. 3d 348, 353, 678 N.E.2d 773 (1997). Determinations as to the weight of evidence and the credibility of
witnesses are uniquely within the province of the agency (Hahn v. Police Pension
Fund, 138 Ill. App. 3d 206, 209, 485 N.E.2d 871 (1985)), and a court will not
substitute its judgment for that of the agency on such matters (Abrahamson, 153 Ill. 2d
at 89). Where the findings of the agency are supported by competent evidence in the
record, its decision should be affirmed. Commonwealth Edison Co. v. Property Tax
Appeal Board, 102 Ill. 2d 443, 467, 468 N.E.2d 948 (1984).
There is competent evidence in the record to support the findings of the Police
Board in the instant case. The surveillance report which documented plaintiff's
conduct on August 5, 1992, established that plaintiff drove a department vehicle to a
tavern where he remained for over two hours and consumed several alcoholic drinks.
In addition, competent evidence was presented to establish that plaintiff had on more
than one occasion used a department vehicle for personal use between 10 p.m. and 2
a.m. Plaintiff's authorized use of departmental vehicles beyond normal duty hours did
not extend to social or leisure activities of this type. Rather, the evidence indicated
that he was authorized to use department vehicles only to conduct background
investigations on candidates, to transport materials and equipment to support
processing of candidates, or to administer necessary examinations to incumbent
officers. Based upon the record before us, we hold that the decision of the Police
Board was not against the manifest weight of the evidence.
Plaintiff also contends that the Police Board abused its discretion and acted
arbitrarily in issuing the 30-day suspension.
A reviewing court will not interfere with an agency's decision to impose
sanctions unless the agency acted unreasonably or arbitrarily or chose a sanction which
is unrelated to the purpose of the statute. Department of Mental Health &
Developmental Disabilities v. Civil Service Comm'n, 85 Ill. 2d 547, 552, 426 N.E.2d 885 (1981); Ballin Drugs, Inc. v. Department of Registration and Education, 166 Ill.
App. 3d 520, 531, 519 N.E.2d 1151 (1988). The determination of the appropriate
sanction is one to be made by the administrative agency and not the courts. Momney
v. Edgar, 207 Ill. App. 3d 26, 29, 565 N.E.2d 246 (1990). A court of review should
defer to the administrative agency's expertise and experience in determining the
appropriate sanction to protect the public interest. Abrahamson, 153 Ill. 2d at 99.
We find that the 30-day suspension imposed upon plaintiff was well within the
discretion of the Police Board and was not unreasonable, arbitrary, or unrelated to the
purpose of the statute. It was justified by the fact that on at least three occasions,
plaintiff used department vehicles for personal use beyond normal duty hours without
authorization. Plaintiff's violation of department rules undermines the police
department and its ability to enforce the law. In addition, a 30-day suspension was an
appropriate sanction to protect the public interest. Consequently, the penalty imposed
by the Police Board is affirmed.
Finally, we consider plaintiff's claim that the investigation of his conduct was
improperly initiated because it was predicated on an anonymous complaint. In support
of this claim, plaintiff relies upon section 2-84-330(D) of the Municipal Code of the
City of Chicago, which provides that "[n]o anonymous complaint made against an
officer shall be made the subject of a complaint register investigation unless the
allegation is of a criminal nature." (Emphasis added). Chicago Municipal Code 2-
84-330(D) (1990).
We find that the investigation of plaintiff's conduct did not violate the above
ordinance. The initiation of the investigation was proper where both of the anonymous
complaints included allegations of criminal conduct (theft by deception for falsification
of time records and violation of the Vehicle Code for driving while under the
influence of alcohol). The initiation of the investigation complied with the
requirements of section 2-84-330(D), and the ordinance does not preclude investigation
of other behavior once an inquiry has been commenced. In this case, it was
appropriate for the department to open a complaint register based upon the allegations
contained in the anonymous complaints against plaintiff, and the results of that
investigation revealed that plaintiff had violated certain departmental rules. The Police
Board acted within its authority to impose an appropriate sanction for plaintiff's
violations of those rules.
For the foregoing reasons, the judgment of the circuit court of Cook County is
affirmed.
AFFIRMED.
CAMPBELL, P.J., and QUINN, J., concur.
[fn1] We note that the Police Board's "Order After Remand," indicated that no
findings should be required for suspensions less than thirty days. However, this
statement was wholly irrelevant to the case at bar because plaintiff was suspended for
30 days and not for a lesser period. In addition, the Board's position is not consistent
with the rule requiring findings which are sufficient to allow judicial review.