DISCIPLINARY PROCESS Hervas, Condon & Bersani, P.C. - PowerPoint PPT Presentation

POLICE & FIRE Presented by Charles E. Hervas DISCIPLINARY PROCESS Hervas, Condon & Bersani, P.C.

INTRODUCTION  Rules  Psychiatric/psychological disorders  Notice  Hearings  Counseling your client  Administrative Review  Interrogations  Cases

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=49987344

KNOW THE RULES  Collective Bargaining Agreements  General Orders and Policies  Municipal Employee Handbooks  Fire District Board Rules  Statutes

STATUTORY FRAMEWORK Uniform Peace Officers’ Disciplinary Act Firemen’s Disciplinary Act 50 ILCS 725/1, et seq. 50 ILCS 745/1, et seq.

STATUTORY FRAMEWORK  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 FRAMEWORK  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.

UNIFORM PEACE OFFICERS’ DISCIPLINARY ACT  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.”

FIREMEN'S DISCIPLINARY ACT  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.”

NOTICE UNDER THE STATUTES Police Firefighter  More specific.  Less specific.  Possible consequences of  No notice of consequences allegations if proven required.  “All information necessary to  “The information shall be reasonably apprise the sufficient as to reasonably fireman of the nature of the apprise the officer of the nature of the investigation.” charges and the preparation of a defense.”

ARBITRATION VS. COMMISSIONS  Uniform Arbitration Act, 710  Municipal Code, 65 ILCS 5/10- ILCS 5/1, et seq . 2.1-1, et seq.  Collective bargaining  Fire Protection District Act, 70 agreements (CBAs). ILCS 705/1, et seq.  Parties select arbitrator.  Board of Fire and Police Commissioners.  Arbitration hearing.  Public hearing.  Not open to public.  Decisions reviewed by circuit  Decisions usually not and appellate courts. published.  Judicial review extremely limited.

COUNSELING YOUR CLIENT Must File Charges with Need Not File Charges With Commission Commission  Termination.  1-5 day suspension.  Suspensions in excess of 5  But officer can always appeal to days. Commission.

INTERROGATION  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?

INTERROGATION  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.

GARRITY RULE  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.

PSYCHIATRIC/PSYCHOLOGICAL DISORDERS  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.

HEARINGS  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.

ADMINISTRATIVE REVIEW  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.

CASES  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.”

BOARD DECISION  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.

CASES  Lalowski v. City of Des Plaines , 789 F.3d 784 (7th Cir. 2015). Brian Stansberry (photographer) (Own work)

REGULATING OFF DUTY CONDUCT  City of San Diego v. Roe , 543 U.S. 77 (2004)

CASES  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.” Pinocchio by André Koehne

CASES  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.’”

CASES  Wheeler v. Bd. of Fire & Police Comm’rs of Maywood, 2015 IL App (1st) 140453-U

CASES  Marigliano v. Bd. of Fire & Police Comm’rs of Lynwood, 2015 IL App (1st) 141954-U

QUESTIONS? Chuck Hervas Hervas, Condon & Bersani, P.C. chervas@hcbattorneys.com 630-860-4340