## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

Hurst v. Board of the Fire & Police Comm’n , 2011 IL App (4th) 100964

Appellate Court Caption BILLY H URST, P laintiff -Appella nt, v. THE

BOARD O F THE FI

RE AND POLICE COMMISSION for the City of Clinton, an Administrative Ag en cy; and MICHAEL REIDY, Chief of Police for the City of Clinton, Illin ois, Defe ndants-A ppellee s.

District & No. Fourth District Docket No. 4-10-0964

Argued Filed Rehearing denied June 7, 2011 July 12, 2011 August 8, 2011

Held ( Note: Thi s syllabus constitutes no part

of the opinion of the court but has been prepared by th e Reporter of Decisions for the conveni en ce of the reader. ) An order of defendant Boar d of Fir e and Police Commission discharging plaintiff from his employment as a police off icer for violating department rules and regulations by

viewing pornography

on
an emplo yer-owned mobile data terminal while on duty w as affirmed over plaintiff’s contentionthat the e avesdro pping sta tute was violated when the chief of police monitored the pornography

viewedby plaintiff, since the department’s manual dictated that the data terminal s were to be used for law-enforcement purposes only and that they were

not to be used in any manner tha

t would tend to di scre dit the department and plain tiff had no re asonable expectat ion of pri vacy

or confi dentialit

y with reg ard to hisuse of the terminal s.

Decision Under Review Appeal from the Circuit Court of De Witt County, No. 09-MR-28; the Hon. C hris E . Frees e, Ju dge, pr esidi ng.-2-

Judgment Affirmed.

Counsel on Appeal Shane M. Voyles (ar gued), of Police Benevolent Labor Committee, of Springf ield, for appella nt.

Stephen R. Myers (ar

gued), of Clinton, for

appellee Board of Fire a

nd Police Commission.

Nick A. Cetwinski (argued), of Wo od ri dg e, fo r a pp el le e M ic ha el Re id y.

Panel JUSTICE POPE delivered the judgment of the court, with opinion. Justices Turner and

Steigmann concurred in the judgment and opinion.

OPINION ¶ 1 Plaintiff, Billy Hurst, ap

peals a c ircuit

court order which dismissed his amended complaint for declaratory

judgment and administrative review. I n his amended complaint for administrative review, plaintiff sought reversal of an order of the Board of Fire and Police Commission of the City of Clinton (Board) which discharged plaintiff from his employment as a City of Clinton ( Clinton) po lice off icer. We affirm.

¶ 2 I. BACKGROUND ¶ 3 On January 30, 2009, Michael Reidy (Reidy ), the Clin ton chief of police , filed with the Board written charges aga

inst plaintiff. Reidy alleged plaintiff viewed pornography on the employer-owned mobile data terminal while on duty in violation of “c ertain rul es and regulations of the City

of Clinton Police Department.” ¶ 4 On May 15, 2009, pla intiff fil ed a comp laint ag ainst def endants for declaratory

judgment that (1) Reidy obtained e

vidence of plaintiff viewing po r nography in violation of the eavesdropping statute contained in the Criminal Code of 1961 (720 IL CS 5/14-1 throu gh 14- 9 (West 2008)), and (2) the Board “must conduct a f air and impartial hearing.” ¶ 5 The Board held a hearing on the c harges on August 13, 2009, and entered an order discharging plaintiff from his position as a police office r on October 13, 2009. ¶ 6 On October 20, 2009, plaintiff filed his motion for leave to file an amended complaint and an amend

ed compla

int, which included a count requesting administrative review of the Bo ard’s discharge order. The ce rtificate of service shows the motion and the pr opose d amendment

were mailed to counsel for defendants on October 19, 2009. On December 16, 2009, the trial court granted plaintiff’s motion. (Although the motion to amend and the f irst-3-

amended complaint are file-stamped October 20, 2009, there is no contemporaneous docket

en tr y. Nevertheless, all parties agreed they received the motion and amended complaint on or around October 20, 2009.) ¶ 7 In response, Reidy filed a motion to dismiss plaintiff’s amended complaint on December 28, 2009, arguing (1) plaintiff failed to file his a ction seeking admini strative review in a timely manner a nd, alter natively , (2) Reid

y di d not vi olate the eavesdropping statute (720 IL CS 5/14-1 through 14-9 (West 2008)) when he obtained evidence of plaintiff viewing pornography

on the employer- owned mobile data terminal while on duty. The Board filed

a motion to dismiss plaintiff’s amended complaint on December 30, 2009, alleging pla intiff failedto file his action seeking administrative review in a timely ma nner. On November 17, 2010, the trial court granted defenda nts’ motions, dismissing with pr ejudi ce plaintiff’s amended complain t.

¶ 8 II. AN ALYS IS ¶ 9 A. Jurisdiction ¶ 10 Defendants argue the trial court was without jurisdiction to consider plaintiff’s amended complaint because plaintiff failed

to file hisaction seeking a dministra tive review in

a timely

manner. We review an order granting a section 2-619 motion to dismiss d e novo

. DeLuna v. Burciaga , 223 Ill. 2d 49, 59, 857 N.E.2d 229, 236 (2006). ¶ 11 Section 3- 103 of the Administra

tive Revie

w La w provide s as follow s: “Every action to review a final administrative decision shall be commenced

by the filing of a compla int and the

issuance of summonswithin

35 days from the da

te that a copy of th e decision

sought to be revie wed was s erved up on the par ty a ffecte d by the deci sio n ***.” 735 IL

CS 5/3-103 (West 2008). ¶ 12 Section 10 -2.1-17 o f the I llinois Muni cipal Code

providesas follow s: “The provisions of the Administrative Review Law, and a ll amend m ents and modifications thereof, and the rules adopted pursuant thereto, shall apply to and g overn all proceedings for the

judicial review of

final administrative decisions of the board of fire and police commissioners hereunder.” 65 I LCS 5/10-2.1-17 (West 2008). ¶ 13 On October 20, 2009, seven day s after the Board’s decision issued , plaintiff filed his motion for lea

ve to file an amend

ed compla

int and an amended complain t, which included

a count re questing

administ ra tive review. Defendants admit the amended complaint was sufficient to vest the

trial cou rt with sub

ject-ma tter juri sdiction under the Adminis t rative Review Law. See King v. Ryan , 153 Ill. 2d 449, 455, 607 N.E.2d 154, 157 (1992). However, defenda nts argue the co

unt seeking admin

istrative review w as not timely

filed because the trial court did not grant leave to file the amended c omplaint until December 16, 2009. ¶ 14 In Fischer v. Senior Liv ing Prope rties, L.L.C

. , 329 Ill. App. 3d

551, 553, 771 N.E.2d 505, 508 (2002), the last day to f ile an action was December 29, 2000. On December 27, 2000, plaintiff’s attorney filed a motion fo r leave

to file an amended complain

t instanter

and a proposedorder granting leave to file the amended complaint. By December 29, however, the judge had not signed the order. Fischer , 329 Ill. App. 3d at 553, 771 N.E.2d at 508. The-4-

majority of this court held “the fi ling o f an amended complaint where the judge has not signed the order granting

leave” did not, by itself, ground a successful statute-of-limitations defense. Fischer , 329 Ill. App. 3d at 556, 771 N.E.2d at 511. Although a dissent by Justice McCul lough d iffe red as to the result on the specific facts prese nted, even he agreed the statute of limitations would be tolled where, as here, before theexpiration of the limitations period, plaintiff (1) filed his motion to amend accompanied by a c opy of the proposed amended complaint; (2) provided notice to all parties already in the case of the motion; (3) in a letter to the circuit

clerk dated October 30, 2009, “sought assistanc e *** as to advancing this cause”; and

(4) obtained

an order allowing amendment at the ea rliest convenience of the trial court. Fischer , 329 Ill . App. 3d at 5 61, 77 1 N.E. 2d at 5 15 (Mc Cull ough, P .J. d issen ting) Ac co rd in gl y, plaintiff’s amended complaint, filed together with plaintiff’s motion for lea ve to fi le th e a me nd ed co mp la in t, wa s t im el y.

¶ 15 B. Alleg ed Violat ion of Eav esdropping Statut e ¶ 16 Plaintiff

ass erts the Board “unlawfully considered evidence p rohibited by the eavesdropping statute.” Plaintiff argues Reidy violated th e eavesdropping statute by installing “surveillance software” as an e avesdropping device to intercept, record, and monitor electro nic transfer of

data by computer. Plaintiff see ks a “definitive ruling” as to whether or notReidy’s evidence

was lawf ully admissible. Plaintiff admits his amended complaint for declaratory

judgment and administrative review is “somewhat redunda nt.” ¶ 17 We review the Board’s decision, not the circuit cour t’s. See Cinkus v. Village of Stickney Municipal

Officers Electora l Board , 228 Ill. 2d 200, 212, 886 N.E.2d 1011, 10 19 (2008 ). The scope of judicial review of administrative decisions “extend[s] to all questions of law and fact presented by

the entire record before

the court.” 735 IL

CS 5/3-110 (West 2008). A court may encounte

r three type s of questions on administrative review of an agency decision: questions of fact, questions of law, and mixed questions of law and fact. Cinkus , 228 Ill. 2d at 210, 886 N.E.2d at 101 8. Because an administrative agency ’s findings of fact are presumedtrue, “a

reviewing cour

t is limited t

o ascertaining whether such finding s of fact are agains tthe manifest weight of the evidence.” Cinkus , 228 Ill. 2d at 210, 886 N.E.2d at 1018;

see also 735 ILCS 5 /3-11 0 (Wes t 200 8) (“Th e find ings and conclusions of the administrative agency on questio ns of fac

t shallbe held to be prima facie true and corr ect.”) . “I n contra st,

an agency ’s de cision on a question of law is not binding on a reviewing court,”and we review such a decision de novo

. Cinkus , 228 Ill. 2d at 210, 886 N.E.2d at 1018. ¶ 18 Mixed questions of law and fact “are questions in which the historical facts are admitted

or established, the rule of law is undisputed, and theissue is *** whether the rule of law as applied to the established facts is or is not violate d.” (Internal quotation marks omitted.) American Federation of State , County &

Municipa l Employe es, Counc il 31 v. Ill inois State Labor Relations Board, State Panel , 21 6 Il l. 2d 5 69, 577, 839 N.E.2d 479, 485 (2005). Decisions of mixed questions of law and fact are reversible

only if they are cle arly

errone ous. Cinku s , 228 Ill. 2d at 211, 886 N.E.2d at 1018. The clear ly errone ous standard i s “signif icantly deferential.” LeaderTrek

s, Inc. v. Departmen t of Revenue , 385 Ill. App. 3d 442, 446, 895 N.E.2d 683, 687 (2008); see also Provena Covenant Medical Center v. Department-5-

of Revenue , 236 Ill. 2d 368, 387 n.9, 925 N.E.2d 1131, 1143 n.9 (2010) (courts accord deference to administrative decisions “in recognition of the fact that agencies make informed judgmen ts on the issues based upon their experience and expertise and serve as an informed

source for ascertaining the legislature’s intent”). “A decision is clearly erroneous when the reviewing court is left wi th the def in ite and firm conviction that a mistake has been committed.” (Int

ernal qu otation ma

rks omit ted.) American Federation of State, County & Municipal

Employees , 216 Ill. 2d at 577-78, 839 N.E.2d at 485. Th e case b efore u s presen

ts a mixed que stion of la

w and fa ct. ¶ 19 Plaintiff

claims Reidy violated the eave sdropping statute by using the employer-owned mobile data t ermin al, an d the s oftwa re ther eon, a s an eav esdro ppin g d evice to “ secret ly monitor” pornography

viewing by

plaintiff. Under the terms of the eave sdropping

statute, in order for a communication to constitute a protected “electronic communication,” both the sending and rec eiving p arties mu st intend it to

be private under circumstances justify ing such expectation. 720 IL

CS 5/14-1(e) (West 2008). Further, an individual ca n “implied

ly c onsent” to the monitoring of his communications for purposes of the eavesdropping statute. People

v. Ceja , 204 Ill. 2d 332, 347, 789 N.E.2d 1 228, 12 39 (2003).” The circumstances releva nt to an implication of consent will vary f romcase to case, but wi ll ord inari ly inclu de lan guage
or acts that tend to pr

ove that a party knows of, or assen

ts to, encroachments on the routine expectation that

[communications] are private.” Ceja , 204 Ill. 2d at 350, 789 N.E.2d at 1241. ¶ 20 Nothing in the record before this court sug gests the “sending *** parties” of the various p ornogr aphic images intended to keep them private; thus, the images w ere not electroni c communications according to the statute. Beca use they wer

e not electro nic communic ations, plaintiff ’s claimed error

is without me

rit. ¶ 21 Mo re ov er , a Cl in to n P ol ic e D ep ar tm en t P ol ic y a nd Procedures Manu al (Manu al) dictated the mobile data terminals were to be used fo r l aw -e nf or ce me nt pu rp os es on ly, and, further, that office rs would n ot use the

mobile da

ta termin als in

anymanner t

hat would

tend to di scredit t he police

departm ent. The Manual di sclosed m

essage s sent on th

e mobile d ata terminal were “retrievable.” B ecause plaintiff was aware of the terms of t

he Manua l, he did not have a

reasonable expectation of privacy in his communications after the Manual went into effect. As the Board noted in its decision, plaintiff had no re asonable expe ctation of privacy or confidentiality with reg ard to his use of city-owned computers during th e perfor mance of his offic ial duties

. ¶ 22 Applying

the above

interpre ta tion of eavesdropping, we find no violation of the eavesdropping statute occurred when Reidy monitored pornog raphy viewed by

plaintiff on the employer-owned mobile data terminal. P la intiff makes no argument rega rding the

corre ctness of the Board’s decision in the event this court rules the admission of evidenc e was proper.

¶ 23 II I. CONCL

USION ¶ 24 For

the reasons stated, we affirm the Board’s decision to admit the evidence concerning the pornography . T he evid ence presented overwhelmingly supported the Board’s decision to discharge plaintiff.-6-

¶ 25 Affirmed.