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

Presented by Charles E. Hervas

POLICE & FIRE DISCIPLINARY PROCESS

Hervas, Condon & Bersani, P.C.

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

INTRODUCTION

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

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

KNOW THE RULES

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

STATUTORY FRAMEWORK

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

• f the investigation.”

UNIFORM PEACE OFFICERS’ 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

• f 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 ACT

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 STATUTES

 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. COMMISSIONS

 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 CLIENT

 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.

INTERROGATION

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
• fficer.
• If misconduct may be the subject criminal proceedings, discuss moving

forward with state’s attorney.

GARRITY RULE

 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 DISORDERS

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.

HEARINGS

 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 REVIEW

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.”

CASES

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 DECISION

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

CASES

Brian Stansberry (photographer) (Own work)

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

REGULATING OFF DUTY CONDUCT

 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

• f the evidence and should have been sustained by the trial court.”

CASES

Pinocchio by André Koehne

 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

CASES

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