Rule 23 order filed	NO.  5-01-0911

February 21, 2003;

Motion to publish granted	IN THE

April 9\\\_______________, 2003.

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

________________________________________________________________________

MATTHEW DUNCAN,				)  Appeal from the

							)  Circuit Court of

	Plaintiff-Appellee,				)  Madison County.

							)

v.  							)  No. 00-MR-598

							)

THE CITY OF HIGHLAND BOARD OF 	)

POLICE AND FIRE COMMISSIONERS and 	)

POLICE CHIEF MICHAEL D. KING, 		)  Honorable

							)  Thomas W. Chapman,

	Defendants-Appellants.			)  Judge, presiding.

________________________________________________________________________

	JUSTICE MAAG delivered the opinion of the court:	

	Following an administrative hearing, the City of Highland Board of Police and Fire

Commissioners (the Board) discharged Matthew Duncan from his position as a Highland

police officer for violating department rules.  Duncan sought judicial review of the Board's

decision.  On review, the Madison County circuit court reversed the Board's decision and

ordered it to reinstate Duncan and to impose the maximum penalty short of discharge.  On

appeal, the Board contends that its findings and conclusions regarding the violation are

supported by the evidence and that the misconduct warrants a discharge.  The Board asks this

court to reverse the decision of the circuit court and to affirm the Board's decision to

discharge Duncan.

	The basic facts are not in dispute.  On the evening of September 28, 2000, Duncan

went to Cutter's bar in Belleville, Illinois.  He was not on duty at that time.  While at the bar,

Duncan became acquainted with a woman named Barbara.  Sometime during the evening,

Barbara had learned that Duncan was a Highland police officer.  Just before "last call", Barbara willingly accompanied Duncan to his car for the purpose of engaging in sexual

relations.  Duncan's car was parked in the rear of Cutter's parking lot near a line of trees. 

Duncan covered the windows of his car with sun screens so that they could not be seen.  He

and Barbara then engaged in consensual sexual acts.  Duncan and Barbara exited the car and

again engaged in sexual acts on the parking lot behind the car.  Both were partially clothed. 

Duncan's pants were at his ankles.  At that time, a group of approximately five people was

standing in the parking lot.  One or two from the group knew Barbara and began to joke with

her while she was behind Duncan's car.  Based on the banter, it was evident that at least

some people were aware that Duncan and Barbara were engaging in sexual relations.

	Someone reported Duncan's conduct to Michael D. King, Highland's police chief. 

Chief King instituted an investigation.  Following the investigation, Duncan was charged

with violating two department rules: "unbecoming conduct" and "immoral conduct".

	On November 10, 2000, the Board conducted an evidentiary hearing on the charges. 

During the hearing, the Board had the opportunity to read the investigative reports and to

listen to the testimony of Barbara, Duncan, Chief King, and character witnesses called on

behalf of Duncan.  The witnesses' accounts of the basic facts did not conflict.  The Board

also had the opportunity to consider Duncan's personnel file.  The personnel filed included

information regarding hiring, awards, and incident reports.  According to documents in the

file, Duncan had been appointed as a Highland police officer in January 1995.  Prior to his

appointment, Duncan served five years as a military police officer in the Missouri National

Guard.  Duncan received commendations for his service as a member of the National Guard

and as a Highland police officer.  Duncan had also been the subject of a few complaints

arising from his work as a Highland police officer.  One incident resulted in a one-day

suspension.  In that case, Duncan admitted that he had presented a false identification card

to an airline attendant so that he could use a nontransferable and nonrefundable airline ticket which had been issued in the name of an acquaintance.  The individual could not use the

ticket and offered it to Duncan.  No criminal prosecution arose from the incident.

	At the close of the hearing, the Board took the matter under submission.  It issued its

decision on December 6, 2000.  In its decision, the Board found that Duncan had engaged

in a sex act on a public parking lot while others were present and that there was a reasonable

expectation that others would view the act.  The Board determined that by participating in

such acts, Duncan engaged in unbecoming conduct and immoral conduct in violation of

department rules.  The Board concluded that Duncan's conduct reflected unfavorably on the

department, brought the department into disrepute, discredited the department's integrity, and

discredited his own integrity.  After considering the present incident and the prior

suspension, the Board determined that there was cause for discharge.  The Board ordered that

Duncan be removed and discharged from his position as a Highland police officer.

	Duncan filed a timely petition for judicial review of the Board's decision in the

Madison County circuit court.  After considering the administrative record and the briefs of

the parties, the circuit court remanded the case to the Board for "reconsideration of sanctions

short of discharge".  The court found that there had been no showing that Duncan's continued

employment would be detrimental to the discipline and efficiency of service or that the

infraction was "sufficiently substantial or related to the performance of his duties" to justify

discharge.  The order was issued September 25, 2001.

	After further review, the Board stood on its decision to discharge Duncan.  In the

decision issued October 19, 2001, the Board noted that police officers are in positions of

trust and responsibility in the community and are held to a higher standard than private

citizens, that Duncan's conduct demonstrated a propensity to disregard the law, that the

Highland police department was a small police department which required cooperation

among its officers, that Duncan's continued employment would severely impair the integrity of the department, and that any discipline short of discharge would have a negative impact

on the citizens of Highland.

	In a motion filed October 23, 2001, Duncan asked the circuit court to clarify its

September 25, 2001, order or, alternatively, to find the Board in wilful contempt for failing

to comply with the order.  Duncan claimed that the order required the Board to impose a

sanction less severe than a discharge and that the Board had misconstrued the order.  On

October 25, 2001, the Board filed a motion to reconsider the September 25, 2001, order and

to affirm its findings and decision.  The motions were considered during a hearing held

November 1, 2001.  On November 2, 2001, the circuit court entered an order denying the

motion to reconsider and granting the motion for clarification.  In its order, the court directed

that the Board "institute the maximum penalty exclusive of discharge authorized by 65 ILCS

5/10-1-18[] and that the officer be reinstated to his position within the department".

	On appeal, the Board contends that Duncan's conduct violated the law and the policies

of the Highland police department and that this conduct, when considered with a prior

incident and suspension, justified the discipline of discharge.  Duncan contends that the

Board's decision was unreasonable because his conduct was not related to his work as a

Highland police officer.  In support of his argument, Duncan argues that he was not on duty

and not in uniform, that he did not use his position to influence the woman to participate, that

the conduct occurred outside of the Highland community, and that the conduct did not

adversely impact the integrity of the Highland police department.

	The standard of review of an administrative agency's decision regarding discharge

requires a two-part analysis.  See Kloss v. Board of Fire & Police Commissioners of the Village of Mundelein, 96 Ill. 2d 252, 257, 449 N.E.2d 845, 848 (1983); Department of Mental Health & Developmental Disabilities v. Civil Service Comm'n, 85 Ill. 2d 547, 550, 426 N.E.2d 885, 887 (1981).  Initially, a court must determine whether the findings are against the manifest weight of the evidence.  Department of Mental Health & Developmental Disabilities, 85 Ill. 2d at 550, 426 N.E.2d at 887.  Because the Board is an administrative agency, its findings and conclusions are held to be prima facie true and correct.  See 735 ILCS 5/3-110 (West 1998).  

	In this case, the Board's findings are based upon facts that are largely undisputed. 

During the hearing, the primary fact in dispute was whether the sexual activity was

performed "in public".  The Board found that Duncan had engaged in a sex act on a public

parking lot while others were present and that there was a reasonable expectation that others

would view the public sex act.  The finding is supported by evidence presented during the

hearing.  It is not against the manifest weight of the evidence.

	The second step is to determine whether the findings of fact provide a sufficient basis

for the agency's conclusion that a cause for discharge exists.  Department of Mental Health & Developmental Disabilities, 85 Ill. 2d at 551, 426 N.E.2d at 887; Kappel v. Police Board of the City of Chicago, 220 Ill. App. 3d 580, 589, 580 N.E.2d 1314, 1320 (1991).  The agency's decision will not be reversed unless it is arbitrary, unreasonable, or unrelated to the

requirements of service.  Department of Mental Health & Developmental Disabilities, 85 Ill. 2d at 552, 426 N.E.2d at 887.

	According to the Illinois Municipal Code (Code), a police officer may not be discharged without cause.  See 65 ILCS 5/10-1-18 (West 1992).  Though the term "cause"

is not defined in the Code, it has been judicially construed to mean "some substantial

shortcoming" that renders the employee's continuance in office in some way detrimental to

the discipline and efficiency of the service and that the law and sound public opinion

recognize as a good cause for his no longer holding his position.  See Launius v. Board of Fire & Police Commissioners of the City of Des Plaines, 151 Ill. 2d 419, 435, 603 N.E.2d 477, 484 (1992); Nation v. Board of Fire & Police Commissioners of the City of Taylorville, 40 Ill. App. 3d 384, 387, 352 N.E.2d 464, 467 (1976); Davenport v. Board of Fire & Police Commissioners of the City of Peoria, 2 Ill. App. 3d 864, 869, 278 N.E.2d 212, 215 (1972).

	The Board is charged with the duty to determine whether there is a cause for the

discharge of one of its officers.  Nation, 40 Ill. App. 3d at 387, 352 N.E.2d at 467.  The Board's decision will stand even if a court considers another sanction more appropriate.  See Kappel, 220 Ill. App. 3d at 590, 580 N.E.2d at 1321.  This is because the Board is in the best position to determine the effect of the officer's conduct on the proper operation of the

department.  Kappel, 220 Ill. App. 3d at 590, 580 N.E.2d at 1321.  The Board's finding of "cause" is to be respected by the court, and it should only be overturned if it is arbitrary and

unreasonable or unrelated to the requirements of the service.  See Launius, 151 Ill. 2d at 435, 603 N.E.2d at 485; Sutton v. Civil Service Comm'n, 91 Ill. 2d 404, 411, 438 N.E.2d 147, 151 (1982).  Stated differently, during the review of an administrative agency's decisions, a court

may not reverse a finding of cause unless the finding is so unrelated to the requirements of

service or so trivial that it is unreasonable or arbitrary.  See Flynn v. Board of Fire & Police Commissioners of the City of Harrisburg, 33 Ill. App. 3d 394, 399, 342 N.E.2d 298, 302 (1975).

	In this case, the Board's finding of a cause for discharge is supported by the evidence

in the record.  The undisputed evidence shows that Duncan engaged in sexual intercourse in

a public place.  There was evidence that the citizens of Highland were aware of Duncan's

conduct.  Highland Police Chief Michael King testified that Duncan's conduct was an

embarrassment to the department.  The Board expressed concern that the citizens of

Highland would lose respect for the department if Duncan was permitted to continue as a

police officer.  There was also evidence that during his tenure as a Highland police officer,

Duncan had occasion to enforce a Highland ordinance which prohibits persons from

engaging in sexual intercourse in a public place.  Duncan's willingness to engage in conduct in a nearby jurisdiction, when he is aware that such conduct would be improper if it occurred

in Highland, indicates a disregard of the law.  A police officer who freely disregards laws

that he has sworn to uphold impairs the discipline and efficiency of his entire department and

undermines the authority of every officer on the street.  See Kappel, 220 Ill. App. 3d at 591, 580 N.E.2d at 1321-22.

	According to the record, this is not Duncan's first instance of misconduct.  A few

months prior to the incident in Cutter's parking lot, Duncan was suspended for the possession

and use of a false government identification card.  There is evidence that Duncan failed to

uphold the high standards and duties of his office on more than one occasion.  The nature

of these incidents and the fact that they were committed only a few months apart raise

concerns about Duncan's ability to serve as a police officer.  The incidents demonstrate a

lack of good judgment and a lack of respect for the law.  Taken together, these incidents

support the Board's findings that Duncan has exhibited substantial shortcomings as a police

officer and that his continued employment as a police officer may have a substantial,

detrimental impact on the discipline and efficiency of the Highland police department.  See Ealey v. Board of Fire & Police Commissioners of the City of Salem, 188 Ill. App. 3d 111, 118, 544 N.E.2d 12, 17 (1989).

	On this record, we cannot say that the Board's decision to discharge Duncan was

unrelated to the requirements of service as a police officer or otherwise unreasonable or

arbitrary.  The circuit court erred in ordering the Board to modify its disciplinary sanction. 

	Accordingly, the judgment of the circuit court is reversed, and the decision of the

Board is reinstated and affirmed.

	Reversed; Board's decision reinstated.  

	CHAPMAN and DONOVAN, JJ., concur.

                                     	NO. 5-01-0911

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________________

MATTHEW DUNCAN,				)  Appeal from the

							)  Circuit Court of

	Plaintiff-Appellee,				)  Madison County.

							)

v.  							)  No. 00-MR-598

							)

THE CITY OF HIGHLAND BOARD OF 	)

POLICE AND FIRE COMMISSIONERS and 	)

POLICE CHIEF MICHAEL D. KING, 		)  Honorable

							)  Thomas W. Chapman,

	Defendants-Appellants.			)  Judge, presiding.

___________________________________________________________________________________

Rule 23 Order Filed:			February 21, 2003

Motion to Publish Granted:		April 9__________,, 2003

Opinion Filed:				JAprilJapril Aprkil 9l __________, 2003

___________________________________________________________________________________

Justices:	Honorable Gordon E. Maag, J.

	Honorable Melissa A. Chapman, J., and

	Honorable James K. Donovan, J.,

	Concur

___________________________________________________________________________________

Attorneys	George E. Marron III, Johannes & Marron, P.C., 1320 Broadway, Highland, IL 

for	62249 (for The City of Highland Board of Police and Fire Commissioners)

Appellants	

	Thomas Scott Stewart, Beth A. Bauer, Burroughs, Hepler, Broom, MacDonald, 

	Hebrank & True, 103 West Vandalia Street, Suite 300, Edwardsville, IL 62025-

	0515 (for Police Chief Michael D. King)

___________________________________________________________________________________

Attorneys	Mark C. Scoggins, Clay B. St. Clair, Crowder & Scoggins, Ltd., 121 West Legion

for	Avenue, P.O. Box 167, Columbia, IL 62236

Appellee	

___________________________________________________________________________________