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FIFTH DIVISION

August 2, 2002

MODIFIED UPON DENIAL OF REHEARING

JUSTICE QUINN delivered the opinion of the court:

Plaintiff Joseph Fedanzo filed a petition for writ ofcertiorari in the circuit court seeking review of therecommendation and decision of the Personnel Board of the City ofChicago (Personnel Board) and the City of Chicago (City) toterminate him from his employment with the City. The trial courtdenied the petition. On appeal, plaintiff seeks reinstatement,contending: (1) that the Chicago residency requirement isunconstitutional; (2) that the decision of the Personnel Boardwas against the manifest weight of the evidence; and (3) that thehearing officer erred in denying his motions to suppressevidence. For the reasons set forth below, we affirm thejudgment of the trial court.

BACKGROUND

In early 1991, plaintiff accepted a position with the City'sdepartment of water. He later worked as an electrical mechanicwith the City's department of aviation at O'Hare InternationalAirport (O'Hare). In a change of address form completed on July3, 1996, plaintiff changed his Chicago address from 5371 NorthDelphia to 4623 North Chester Avenue. Acting on an anonymous tipit received in November 1997, the City's inspector general'soffice (IGO) began an investigation into plaintiff's residency. This investigation ultimately led to plaintiff's termination fromhis employment with the City effective April 12, 1999. Thisaction was based upon plaintiff's violation of various personnelrules, all relating to his failure to actually reside in theCity. Plaintiff sought a hearing on the termination decision.

Prior to his hearing, plaintiff filed a motion to suppressstatements he made to investigators, claiming provisions of hisunion collective bargaining agreement had been violated. He alsofiled a motion to suppress all evidence gathered after six monthsfrom when the IGO's investigation began, based upon its failureto inform the mayor, as required by City ordinance, of thecontinued investigation. Additionally, plaintiff filed a motionto vacate the City's order terminating him on the ground theresidency requirement violated his procedural and substantive dueprocess rights as guaranteed by the United States and IllinoisConstitutions. All of these motions were denied.

At the hearing, Daniel Hintz testified that he was the leadinvestigator with the IGO on plaintiff's residency case. Basedupon the most recent address information plaintiff had provided,his address was 4623 North Chester Avenue, unit 108W, which is aone-bedroom condominium owned by plaintiff. The Chester Avenuecondominium was part of four buildings, each covering a cityblock, and surrounded by Chester, Commons, Leland and Wilson. OnDecember 3, 1997, February 18, 1998, March 20, April 3, April 13and June 1, 1998, Hintz conducted surveillance on plaintiff'sChester Avenue address, with each beginning about 2:30 a.m. andending around 7 a.m. Plaintiff was usually scheduled to be atwork by 7 a.m. Hintz did not observe plaintiff during any of hissurveillances. On cross-examination, Hintz testified thatbecause there were multiple entrances into the buildings, he wasunable to see them all at once and admitted that plaintiff couldhave left the property without being seen by Hintz.

When Hintz called the telephone number registered to theChester Avenue address on October 30, 1998, an answering machinewith a female voice picked up, stating that the "Donohoresidence" had been reached. On November 25, 1998, when Hintzcalled the number again, the answering machine, still in a femalevoice, stated that the "Fedanzo/Donoho residence" had beenreached.

Between June and September 1998, Hintz conductedsurveillance numerous times on 248 North Harvard Street, asingle-family home, in Villa Park, Illinois, owned by plaintiff,his wife Natalie, and his father. In June 1998, Hintz conductedsurveillance on this home on three occasions and saw plaintiffleave the home between 6:15 a.m. and 6:30 a.m. twice. In July1998, Hintz conducted surveillance on four occasions. On threeof those dates, plaintiff was seen leaving the Villa Parkresidence around 6:30 a.m.

In August 1998, Hintz had the Villa Park residence undersurveillance four times and saw plaintiff leave the premisesaround 6:30 a.m. three times. During both of his surveillancetimes in September 1998, Hintz saw plaintiff leave the Villa Parkhome around 6:30 a.m.

In October 1998, Hintz conducted surveillance on eightoccasions. During each surveillance that month, Hintz sawplaintiff leave the Villa Park residence between 6:20 a.m. and6:40 a.m. In November, Hintz conducted surveillance three timesand saw plaintiff leaving the Villa Park house on each occasionaround 6:30 a.m. Throughout his investigation, each time Hintzsaw plaintiff, he was driving a 1995 GMC Jimmy having licenseplate "SPU 225," which is registered to plaintiff's father.

During Hintz's cross-examination, plaintiff's counselbrought out that most of the reports completed by Hintz regardinghis surveillance were identical, except for the dates. Hintzstated this was "purposeful." Hintz admitted that from where hemaintained surveillance, he could not actually see plaintiffleave the residence at 248 North Harvard, but he included thatinformation in his reports because it was the "only logical placefor [plaintiff] to come from."

Hintz also testified that he and Beth Fikar, anotherinvestigator, interviewed Thomas Kehoe, who lived at 236 NorthHarvard, regarding who lived at 248 North Harvard. Hintz deniedspeaking with anyone else in the Kehoe family regardingplaintiff.

Plaintiff testified at the hearing as an adverse witness. Plaintiff stated that he was married in August 1990 and had neverdivorced or legally separated from his wife. Plaintiff and hiswife have two children, a daughter, Danielle, born December 1,1990, and a son, Michael, born May 31, 1997. Plaintiff testifiedthat Danielle attended school in Lombard, Illinois, which is nearVilla Park. He testified that the 248 North Harvard property waspurchased in the fall of 1995. At that time, plaintiff's wifeand daughter moved into the home.

Plaintiff testified that he had lived at 4623 North Chester"[s]ince probably fall of 1990." He did not know how many unitsper level were in the building. At the hearing, plaintiff knewthe streets surrounding the condominium but did not know all ofthem when interviewed earlier by representatives of the IGO. Atthe hearing, plaintiff knew the number of the parking spot forhis Chester Avenue residence but did not know it previously wheninterviewed. Regarding an interview he had with the IGO,plaintiff was asked at the hearing, "During the interview, youknew the importance of telling the truth; isn't that right?" Plaintiff responded, "No."

Plaintiff stated that while working for the City, it was hispractice to give his paychecks to his wife. Plaintiff testifiedthat he paid the taxes on the Chester Avenue residence, but hisfather paid the mortgage. He also testified that neither hiswife nor his children had ever been to his Chester Streetcondominium and stated that a woman named Ricki Donoho livedthere, but "[n]ot all the time." Donoho kept clothes there andwould "come and go" from the property as she pleased. Plaintiffexplained that she was a friend to him and his father and thatshe slept in the condominium's only bedroom when she stayedthere.

Plaintiff stated that the electric bill for the ChesterAvenue property was in both his and Donoho's name. Regarding thetelephone number assigned to the Chester Avenue condominium,plaintiff stated that on October 30 and November 25, 1998, he didnot have an answering machine at the number, but Donoho did. Adocument filed with plaintiff's condominium association showedthat a burgundy Ford Escort was listed as being assigned to hisparking space. Plaintiff stated that he did not own such a carand had never driven one. On cross-examination, plaintiff statedthat Donoho owned a burgundy Ford Escort.

As for the house in Villa Park, plaintiff, who is a drummerin several bands, stated he had a music studio built in thebasement soon after it was purchased. The studio was originallybuilt as an eight-track recording studio, but plaintiffsubsequently "[p]umped it up to a 16." Plaintiff had a key tothe Villa Park residence at the time of the hearing and also in1998. He kept some clothes at the house in Villa Park andfurther stated that during most of October and all of November of1998 he stayed there. He did not recall how often he stayedthere prior to September 1998. The tax bill for the Harvardresidence was in the name of plaintiff, his wife and his father. Plaintiff admitted to receiving "junk" mail at the Harvardresidence.

On cross-examination by his counsel, plaintiff stated thathis wife was five months pregnant when they married in August1990, which was the reason for the marriage. A short time later,the two stopped living together. Plaintiff explained thatbecause of religious beliefs, he and his wife did not divorce. Plaintiff testified that bills relating to the condominium werepaid from funds in a joint account plaintiff had with his father. Plaintiff also testified that he received mail, includingcorrespondence from the City, at his Chester Avenue address.

Kathleen Kehoe, who lived at 236 North Harvard in VillaPark, testified that she was interviewed by two employees of theIGO and told them she did not know who plaintiff was. BrianKehoe, Kathleen's son, testified that investigators showed him apicture of plaintiff but he was unable to identify him. Afterseeing the picture, Brian stated that he saw plaintiff on a"sporadic" basis on the weekends at 248 North Harvard.

Beth Fikar, an investigator with the IGO, testified that sheconducted surveillance of the Harvard Street property on fivedates in October 1998. She usually began her surveillance about2:15 p.m. and ended it around 11 p.m. On each of theseoccasions, Fikar saw plaintiff outside the residence. On four ofthe five dates, she saw plaintiff arrive at the house driving theGMC Jimmy.

Evidence was also presented at plaintiff's hearing that IGOinvestigators Brandon Bielke, William Engel, Kenneth Fry andAnthony Zito conducted surveillance of the Chester Avenue addressin October and November of 1998. Most times, the property wasunder surveillance from about 2:30 p.m. to 7 a.m. the followingmorning. Often times two investigators were stationed so thatall entrances to the Chester Avenue property could be viewedsimultaneously. During the eight times in October and five timesin November plaintiff's residence in the City was undersurveillance, plaintiff was not seen.

Testimony of IGO investigators Christopher Zawarus andRichard Lehr was also presented establishing that plaintiff wasseen numerous times in October and November at the Villa Parkresidence. This is the same time period plaintiff admitted tostaying there.

John Gasiorowski testified that he was a supervisor with theIGO and that he interviewed plaintiff on October 29, 1998, with acourt reporter present. During this interview, plaintiff wasallowed to confer with his union representative, who was hisfather. During the interview, plaintiff stated that at the timehe was not registered to vote, but he had applied using hisChester Avenue address and was waiting to hear back. When askedhow long he had lived at that address, plaintiff stated fiveyears. The interview ended when plaintiff stated that he wantedan attorney present.

Gasiorowski testified that plaintiff was also interviewed onNovember 23, 1998. During this interview, plaintiff had a lawyerwith him. When questioned about Ricki Donoho, plaintiff statedthat she was a friend of his father's and did housekeeping. Plaintiff also told Gasiorowski that when Donoho stayed all nightat his condominium, she slept with him. He characterized theirrelationship as being "extremely close friends." When asked howmany bedrooms were in the house in Villa Park in which he waspart owner, plaintiff stated that he "barely spent time there. Ithink three."

In the hearing officer's lengthy report to the PersonnelBoard, he commented that investigators had been "successfullycross-examined" regarding reports they had generated and issueshad been raised at to the manner in which they conductedsurveillance, but he found that the City had met its burden ofproof by a preponderance of the evidence with respect to eachalleged violation. The hearing officer also found Hintz'stestimony with respect to his speaking with the Kehoe family "tobe at best misleading," but this was insufficient to render allof Hintz's testimony incredible.

As for plaintiff's testimony, the hearing officer noted thatplaintiff testified that he did not know the importance oftelling the truth when being interviewed by the IGO. Based uponthis statement, the hearing officer questioned whether plaintiffknew the importance of telling the truth during his hearing. Thehearing officer addressed many inconsistencies in plaintiff'stestimony including the nature of his relationship with RickiDonoho and that he had lived at the Chester Avenue condominiumsince 1990, whereas his residency affidavits showed otherwise. The hearing officer found plaintiff's presentation of documentssuch as his union card, driver's license and voters registration"self-serving." The hearing officer found plaintiff's testimony"to not be credible" with respect to the court-reportedstatements made to the IGO. He also found other aspects ofplaintiff's testimony "not credible" including that, despitebeing a one-third owner of the home in Villa Park, plaintiff didnot live there, yet he built a recording studio there, which waslater "pumped to a 16 track," even though he was the only memberof his family who played in a band.

The trial court denied plaintiff's petition for writ ofcertiorari. Plaintiff now appeals to this court.

ANALYSISI. Constitutionality of the Residency Requirement

Pursuant to the Chicago Municipal Code:

"All officers and employees in the classifiedcareer service of the city, including allemployees of the Chicago Board of Education,shall be actual residents of the city. Anyofficer or employee in the classified careerservice of the city, including all employeesof the Chicago Board of Education, who shallfail to comply with the provisions of thissection shall be discharged from the serviceof the city ***." Chicago Municipal Code