Presented by Charles E. Hervas - PowerPoint Presentation

Slide1

Presented by Charles E. Hervas

Police & Fire Disciplinary Process

Hervas

, Condon &

Bersani

, P.C.Slide2

Psychiatric/psychological disorders

Hearings Administrative Review

Cases

Rules

NoticeCounseling your client Interrogations

IntroductionSlide3

introduction

By Signature "

F.B

." (probably

Bildestein

) - "The Mascot" newspaper, 23 February, 1889 issue, via microfilm in New Orleans Public Library

https://commons.wikimedia.org/w/index.php?curid=49987344Slide4

Collective Bargaining Agreements

General Orders and PoliciesMunicipal Employee Handbooks

Fire District Board Rules

Statutes

Know the rulesSlide5

Firemen’s Disciplinary Act

50 ILCS

745/1,

et seq.

Uniform Peace Officers’ Disciplinary Act

50

ILCS

725/1,

et seq.

Statutory frameworkSlide6

Interrogations:

Place: at the facility to which the officer is assigned or where the incident occurred.

Time: a reasonable time of day while officer is on duty.

Duration: of reasonable duration.

Notice: both statutes have written notice provisions but those provisions differ.

Statutory frameworkSlide7

Interrogations:

Must be recorded and copy of recording must be provided to officer.

Not include professional or personal abuse or offensive language.

Include admonishment that admissions may be used as evidence against him/her (

Garrity).Officer has a right to counsel during interrogations.

Cannot require a polygraph test.

Statutory frameworkSlide8

Notice of an interrogation must:

Be in writing.Inform the officer “of the nature of the investigation.”

Include names of all complainants.

“The information shall be sufficient as to reasonably apprise the officer of the nature of the investigation.”

Uniform Peace Officers’ Disciplinary ActSlide9

Notice of interrogation must

:Be in writing.

Include “all allegations of misconduct.”

Inform whether those allegations, if proven, involve minor infractions or could “result in removal, discharge, or suspension from duty in excess of 24 duty hours.”

Notice before an administrative proceeding must also include: “the names of all complainants and all information necessary to reasonably apprise the fireman of the nature of the charges and the preparation of a defense.”

Firemen's Disciplinary ActSlide10

Less specific.

No notice of consequences required.

“The information shall be sufficient as to reasonably apprise the officer of the nature of the investigation.”

Police

More specific.

Possible consequences of allegations if proven

“All information necessary to reasonably apprise the fireman of the nature of the charges and the preparation of a defense.”

Firefighter

Notice under the statutesSlide11

Municipal Code, 65

ILCS 5/10-2.1-1, et seq.Fire Protection District Act, 70

ILCS

705/1,

et seq.Board of Fire and Police Commissioners.Public hearing.Decisions reviewed by circuit and appellate courts.Uniform Arbitration Act, 710

ILCS

5/1,

et seq

.

Collective bargaining agreements (CBAs).

Parties select arbitrator.

Arbitration hearing.

Not open to public.

Decisions usually not published.

Judicial review extremely limited.

Arbitration vs. CommissionsSlide12

1-5 day suspension.

But officer can always appeal to Commission.

Need Not File Charges With Commission

Termination.

Suspensions in excess of 5 days.

Must File Charges with Commission

Counseling your clientSlide13

Important for factual foundation of possible discharge.

Get the facts from the employee.Charge from superior officer: give full, complete, and truthful responses.

User a court reporter

Oath to tell the truth?

interrogationSlide14

Superior officer present during interrogation.

Can reinforce orders if problems occur.Interference from employee’s counsel representative.

Not a deposition.

Allow employee opportunity to make a statement or submit documentation.

interrogationSlide15

Admissions made under threat of termination of employment may be considered compelled admissions and unable to used in criminal proceedings.

Garrity

v. New Jersey

, 385 U.S. 493 (1967)

Advise employee that admissions made during interrogation will not be used in potential criminal proceedings.Employee is compelled to answer all questions by order of superior officer.If misconduct may be the subject criminal proceedings, discuss moving forward with state’s attorney.

Garrity

RuleSlide16

Walsh v. Bd. of Fire and Police Commissioners

, 96 Ill. 2d 101 (1983).Lynch v. City of Waukegan

, 363 Ill. App. 3d 1078 (2d Dist. 2006).

Hermesdorf

v. City of Naperville, 372 Ill. App. 3d 842 (2d Dist. 2007), after remand, Hermesdorf v. City of Naperville, 2013 IL App (2d) 120431-U.

Psychiatric/psychological disordersSlide17

Appeal of suspension less than 5 days.

Burden of proof is on employee.

Seeking discipline of more than 5 days or termination.

Burden of proof is on employer/chief.

hearingsSlide18

735 ILCS 5/3-110:

Actions to review any final administrative decision “extend to all questions of law and fact presented by the entire record before the court.”

“No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court.”

“The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.”

2 Steps:Whether finding of guilt is against the manifest weight of the evidence.Whether the factual findings provide sufficient basis for the discipline.

Administrative ReviewSlide19

Peterson v. Village of Oak Brook, 2013 IL App (2d) 130388-U

“…no amount of positive cooperation can overcome the poor judgment Stephen demonstrated in accepting the weapons and money from Drew, in failing to disclose the acceptance of those items until asked, and in continuing to insist that he did nothing wrong.”

CasesSlide20

Initial Board decision in

Peterson did not detail and fully support its conclusions.Court remanded case to Board for a more thorough and in depth finding.

Board decisionSlide21

Lalowski

v. City of Des Plaines, 789 F.3d 784 (7th Cir. 2015).

Cases

Brian

Stansberry

(photographer) (Own work)Slide22

City of San Diego v. Roe

, 543 U.S. 77 (2004)

Regulating Off duty conductSlide23

Valio

v. Bd. of Fire and Police Comm’rs

,

311 Ill. App. 3d 321 (2d Dist. 2000)

“Since one could reasonably find from the evidence that the plaintiff violated departmental rules when he lied during the investigation regarding following up at the hospital, the Board's decision was not against the manifest weight of the evidence and should have been sustained by the trial court.” Cases

Pinocchio by André

KoehneSlide24

McDermott v. City of Chicago

, 2016 IL App (1st) 151979

“the photograph depicted plaintiff and Officer Finnegan treating the African-American male ‘not as a human being but as a hunted animal,’ which was ‘disgraceful and shock[

ed

] the conscience.’”CasesSlide25

Wheeler v. Bd. of Fire & Police Comm’rs of Maywood,

2015 IL App (1st) 140453-U

CasesSlide26

Marigliano v. Bd. of Fire & Police Comm’rs of Lynwood,

2015 IL App (1st) 141954-U

CasesSlide27

Questions?

Chuck

Hervas

Hervas

, Condon & Bersani, P.C.

chervas@hcbattorneys.com

630-860-4340