Find Legal Information

JUSTICE SOUTH delivered the opinion of the court:

On July 19, 1982, plaintiff became a member of the Chicago police department as apolice officer, and a detective approximately eight years later. While employed by the policedepartment, plaintiff attended and graduated from law school. After passing the bar exam in1991, plaintiff opened a private practice. Plaintiff met Alderman Jesse Evans (Evans) after hebegan practicing law and eventually became Evans' family attorney, handling various familymatters for him.

On January 5, 1996, while at the hospital witnessing the birth of his child, plaintiff saw atelevision newscast concerning Evans' possible involvement in the Operation Silver Shovelcorruption probe. He immediately telephoned Evans to inquire about the investigation. Plaintiffspoke with Evans' wife, who informed him that Evans was not home. Plaintiff told her that ifthere was anything he could do to help, she should let him know. On January 6, 1996, plaintiffvisited Evans' home and spoke with him regarding the investigation.

On January 8, 1996, plaintiff arranged a meeting between Evans and three prospectiveattorneys - Michael Koch, Michael Monico, and retired judge George Leighton - to assess theirabilities and experience for possible representation of Evans. Plaintiff was present at each ofthese meetings to assist Evans and also sought advice on whether there would be any conflict ofinterest should he chose to represent Evans in any future matters concerning the federalgovernment's investigation. Plaintiff also contacted Lieutenant Matula of the Chicago policedepartment and an attorney from the city's attorney's office concerning possible conflicts ofinterest. Both Matula and the attorney told plaintiff that he should investigate the matter himself. After these meetings Evans decided to retain Monico as his attorney.

On August 10, 1998, the superintendent of police filed charges of misconduct againstplaintiff with the Police Board of the City of Chicago (the Board) for allegedly failing to notifythe department of information he received from Evans regarding his illegal activities, forproffering incredible testimony in the United States District Court, for failing to answer questionsasked by Sergeant Karen Rowan during an interview in December 1997, and for failing tocooperate with Federal Bureau of Investigations (FBI) Agent Joseph Karmik's investigation. Thecharges were for violation of Rules 2, 3, 6 and 21 of the police department.⁽¹⁾ The superintendentrequested that the Board discharge plaintiff from his duties with the police department as a resultof these violations.

The hearings for plaintiff's discharge were held on February 17 and 18, 1999. Koch,Sergeant Rowan and Agent Karmik testified on behalf of the superintendent against plaintiff.

Koch testified that he received a telephone call from plaintiff prior to January 8, 1996,requesting that he meet with plaintiff and Evans. He testified that plaintiff asked him if he wasfamiliar with Operation Silver Shovel and that he had a close friend who was going to beindicted and wanted to speak with him concerning this issue. During the January 8 meetingplaintiff, according to Koch, was very comforting toward Evans and Evans wanted plaintiff toremain with him during this meeting because he seemed very emotionally distraught. Kochtestified that it was his opinion that no attorney-client relationship existed between plaintiff andEvans due to his presence in the room. Koch stated that plaintiff told him that he was present atthe interview as a friend and that he might be a potential character witness.

Koch further testified that in this meeting and in plaintiff's presence Evans admitted totaking illegal bribes. Evans informed Koch generally of his meeting with the FBI, and theydiscussed a videotape the FBI possessed of Evans taking bribes. Koch discussed the federalsentencing guidelines with Evans and possible variations of sentencing that could be imposed onhim. Evans then requested that Koch meet with David Rosenbloom from the United StatesAttorney's office concerning a possible plea bargain.

Koch testified that while Evans and plaintiff were still in his office, he calledRosenbloom and set up a meeting to discuss a possible plea. Rosenbloom informed him of theconversation he had with Evans.

Koch took one page of notes during this meeting, which was considered by the Board. Itincluded notations regarding the attorney-client privilege, a possible plea bargain and sentencingcategories. The Board also considered a letter from Koch to an assistant United States Attorney,dated November 22, 1996, which stated that he had met with Evans and plaintiff, that heinformed them that any assertion of privilege might have been waived due to the presence of athird party, and that Evans acknowledged that the conversation was not privileged and requestedthat plaintiff remain in the room. In the letter, Koch declined to discuss the contents of themeeting and refused to produce his notes due to the possibility that the attorney-client privilegemight be asserted.

Several hours after plaintiff and Evans left Koch's office, plaintiff called Koch and toldhim that they had chosen another attorney to represent Evans. Koch later testified against Evanson behalf of the federal government.

Agent Karmik testified that he conducted an interview of plaintiff on November 1, 1996. During that interview, Agent Karmik stated that plaintiff informed him that he was notrepresenting Evans in an attorney-client capacity and had never represented him due to a possibleconflict of interest. Agent Karmik stated that when he questioned plaintiff about the substance ofhis conversations with Evans, plaintiff refused on five different occasions to divulge thisinformation based upon attorney-client privilege. Agent Karmik testified to plaintiff'sunwillingness to disclose what Evans had told him during their meeting, citing attorney-clientprivilege. Agent Karmik also testified that plaintiff stated that Evans never admitted to him thathe had taken any bribes or committed any crime of any type. Agent Karmik further testified thatthe content of the conversations between plaintiff and Evans was necessary for the government'sinvestigations.

In December 1997 and February 1998, Sergeant Rowan of the Internal Affairs Division ofthe Chicago police department testified that she questioned plaintiff regarding his involvement inthe Silver Shovel investigation with Evans. Sergeant Rowan sought to determine whetherplaintiff had obtained any information concerning Evans' wrongdoings in derogation of his dutiesto the police department. When Sergeant Rowan asked plaintiff questions regarding any possibleadmissions Evans might have made, plaintiff stated that his conversations were protected byattorney-client privilege and refused to answer.

Sergeant Rowan also testified that she was present during plaintiff's live testimony beforethe United States District Court to determine whether Koch would be called to testify in Evans'trial.⁽²⁾ She stated that when she was investigating plaintiff, she relied upon the United StatesDistrict Court's ruling that plaintiff's conversations with Evans were not privileged. SergeantRowan testified that due to plaintiff's incredulous and embarrassing testimony, he had breachedRule 2 of the police department.

Monico testified that he met with plaintiff on January 8, 1996, and believed plaintiff wasrepresenting Evans at this meeting and that the attorney-client relationship between Evans andplaintiff did exist and it had not been waived. Monico stated that it was his understanding thatplaintiff was the referring attorney and that he, Monico, was subsequently retained by Evans.

Plaintiff testified that when he initially met with Evans on January 6, 1996, it was anattorney-client meeting. He stated that he maintained this attorney-client relationship during hismeetings with the three prospective attorneys, all of which took place on January 8, 1996. Plaintiff testified that he made sure that all three attorneys chosen had significant criminal lawexperience and that he knew that bribery was a crime.

Plaintiff testified that the meeting with Koch lasted approximately 15 minutes and thatprior to the meeting he knew that potentially there could be a conflict of interest with respect tohis employment. During his testimony before the district court, which the Board considered,plaintiff testified that prior to January 1996, he had an attorney-client relationship with Evans andthat he did inform Koch of this relationship at their meeting with Evans. Plaintiff stated that atno time did Koch inform him that Koch's presence in the room would destroy plaintiff's attorney-client relationship with Evans. Plaintiff also testified that Evans never authorized Koch to enterinto any negotiations with the federal government on his behalf. Plaintiff represented Evans as afamily attorney up until the time he realized that there would be a conflict of interest. In thebeginning, prior to Evans' indictment, he did not realize that this was a criminal matter. Approximately one week after plaintiff met with Evans, he realized that he could not representhim in the indictment and informed Evans of this fact.

Plaintiff also testified that at no time did Evans ever admit to him that he had committedany criminal activities or had taken any bribes. Furthermore, Evans never admitted to anythingin Koch's presence regarding any criminal activity.

Plaintiff testified that his meeting with Monico lasted for 45 minutes and that afterwardshe realized that he could not represent Evans anymore.

During the questioning with Agent Karmik, plaintiff answered many of his questions butcould not answer questions that he considered to be privileged.

During his interview with Sergeant Rowan, plaintiff was unable to answer questionsbecause they were privileged in his opinion.

On May 5, 1999, the Board unanimously found plaintiff guilty on all counts. However,instead of discharging plaintiff, as the superintendent had requested, the Board suspended himwithout pay for a period of one year, which was to end on August 10, 1999.

On June 7, 1999, the superintendent requested administrative review of the Board'sdecision to impose a punishment of suspension without pay instead of discharge. Plaintiff filed areply and counterclaim against the superintendent. In plaintiff's request for administrativereview, plaintiff asserted that the Board's findings should be reversed and that thesuperintendent's request for discharge should be denied.

On February 23, 2000, the trial court denied both petitions for administrative review andupheld the decision of the police board.

The only issue on appeal is whether the findings of the Board that plaintiff violated fourCity of Chicago police department rules were against the manifest weight of the evidence.

Since the police board is an administrative agency, its findings of fact on review shall beheld to be prima facie true and correct. 735 ILCS 5/3-110 (West 1998); Marion Power ShovelCo. v. Department of Revenue, 42 Ill. 2d 13, 17, 244 N.E.2d 598, 601 (1969). As a reviewingcourt, it is not our function to resolve factual inconsistencies or to weigh the evidence anddetermine where the preponderance of the evidence lies. Launius v. Board of Fire & PoliceCommissioners, 151 Ill. 2d 419, 427-28, 603 N.E.2d 477, 481 (1992), citing Collura v. Board ofPolice Commissioners, 113 Ill. 2d 361, 372-73, 498 N.E.2d 1148, 1153 (1986). We may notinterfere with the Board's expertise and authority unless that authority is exercised in an arbitraryand capricious manner. Murdy v. Edgar, 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088 (1984).

"Only if, after reviewing the evidence in a light most favorable to the Board, wedetermine that no rational trier of fact could have reached the conclusion reached by the Boardare we able to overturn a decision under this standard." Chief Judge of the Circuit Court v.American Federation of State, County & Municipal Employees Council 31, 153 Ill. 2d 508, 514,607 N.E.2d 182, 185 (1992). Broad discretion is accorded an administrative agency indetermining what constitutes a proper cause for suspension, but it is essential to the validity ofsuch suspension that it be based upon substantial misconduct or incapacity. Zinser v. Board ofFire & Police Commissioners, 28 Ill. App. 2d 435, 439, 172 N.E.2d 33, 34 (1961). The conceptof misconduct must be rooted in substantial shortcomings and does not include conduct which isso trivial as to be unreasonable and arbitrary. Hruby v. Board of Fire & Police Commissioners,22 Ill. App. 3d 445, 453, 318 N.E.2d 132, 138 (1974). Given our limited power of review, wecannot say that the police board's decision was against the manifest weight of the evidence.

Plaintiff first argues that the Board's findings that plaintiff failed to answer questionspresented to him by Sergeant Rowan was against the manifest weight of the evidence because shefailed to follow the procedures for questioning outlined under the form called the"Administrative Proceedings Rights." According to this document, once an officer is asked aquestion and refuses to answer, he must be ordered by the superior officer to answer the questionbefore he can be charged with misconduct. Plaintiff asserts that during his questioning, SergeantRowan never gave him the requisite order to answer before attempting to discipline him.

The Board responds that this argument has been waived because it was never raisedbefore the Board. It further argues that, waiver aside, the sergeant's failure to give this directiveis harmless error at best due to plaintiff's awareness of his obligations as a police officer. Wefind this issue waived for purposes of appeal.

"The waiver rule specifically requires first raising the issue before the administrativetribunal rendering a decision from which an appeal is taken to the courts." Smith v. Departmentof Professional Regulation, 202 Ill. App. 3d 279, 287, 559 N.E.2d 884, 889 (1990). Plaintiff'sattempts to raise the issue for the first time in the circuit court does render the waiver ruleinoperable. See Caauwe v. Police Board, 216 Ill. App. 3d 313, 317, 576 N.E.2d 1078, 1081(1991), citing Smith, 202 Ill. App. 3d at 287, 559 N.E.2d at 889 (plaintiff's argument that hepreserved the issue by raising it in the circuit court is meritless).

Additionally, plaintiff has failed to file a reply brief, thereby failing to address thearguments raised by the superintendent and the Board on the issue of waiver. "While a replybrief is not required under the rules of the court, it is helpful in that it enables the reviewing courtto have before it a full and complete presentation of all material questions of law and factinvolved in the case." Investors Commercial Corp. v. Metcalf, 13 Ill. App. 2d 99, 105, 140N.E.2d 924, 927 (1957).

Even if we were to address this issue, we would reach the determination that a rationaltrier of fact could have reached the conclusion reached by the Board. The Board's determinationthat plaintiff had violated the police department's rules was not only based upon his interviewwith Sergeant Rowan but also upon his violation of Rule 2 for failing to notify the department ofinformation received from Evans regarding his illegal activities and for proffering "incredible"testimony to the United States District Court. He was charged in violation of Rule 3 for failingto cooperate with Sergeant Rowan and for failing to report information of Evans' illegal conductto the department, for giving unbelievable testimony in the United States District Court and forengaging in secondary employment in representing Evans in a criminal matter. Rule 6 wasviolated by plaintiff's failure to answer Sergeant Rowan's questions and for representing Evans ina criminal matter. Finally, plaintiff was found in violation of Rule 21 for his failure to reportEvans' illegal activity. Therefore, even if waiver did not apply, the record indicates that theBoard considered everything that was presented to it during the hearing, including Rowan'sinterview report. As such, plaintiff's assertion that Rowan's failure to order him to answerquestions during her interview rendered the Board's findings against the manifest weight of theevidence is without merit.

Plaintiff also argues that the Board's finding that he failed to cooperate with AgentKarmik, in violation of Rule 2; that his alleged failure to notify the department of information hereceived from Evans regarding his criminal activities, in violation of Rules 2, 3 and 21; and thathe committed misconduct based upon the United States District Court's evaluation of histestimony, in violation of Rules 2 and 3, are all against the manifest weight of the evidence.

Once again, in making its determination, the Board considered plaintiff's involvement inEvans' case in its entirety.

The underlying principles of the Board regarding secondary employment is at the core ofthese violations. The department's general order 89-8 specifically prohibits department membersfrom engaging in secondary employment which "would result at any time in a conflict of interest"between the duties and responsibilities owed to the department and the responsibilities owed tothe secondary employer. In addition, and more importantly, this order prevents police officerswho are also attorneys from representing individuals who are targets of criminal investigations,no matter who that individual may be. Although the facts are conflicting as to whether plaintiffwas really representing Evans, plaintiff continually asserts that he did represent him. Hemaintains that this was not a violation of the departmental rules, however, because when he didrepresent Evans, he had not yet been charged or indicted for any crime. Plaintiff admits,however, that as early as January 5, 1996, he was aware that Evans was being investigated forpossible bribery charges in the Operation Silver Shovel corruption probe. He also admits, in hisown testimony, that he knows that bribery is a crime. Given this information, it was notunreasonable for the Board to determine that plaintiff's asserted representation of Evans created aconflict of interest in derogation of his primary responsibility to the Chicago police department.

Throughout the entire investigation, plaintiff continually asserted attorney-client privilegewhen asked questions concerning his conversations with Evans. Before the Board, thesuperintendent argued this attorney-client privilege never existed because the manifest weight ofthe evidence showed that the privilege had been waived. Plaintiff argued that it did exist becausehe continually represented Evans up until the point that attorney Monico was appointed torepresent Evans, which was on January 8, 1996, and that that privilege was never waived becauseEvans, the only person who could waive the attorney-client privilege, never did so. However,once again, it is not our function to resolve factual inconsistencies or to reweigh the evidence anddetermine where the preponderance of the evidence lies. Launius, 151 Ill. 2d at 427-28, 603N.E.2d at 481. We must take the findings of the Board as prima facie correct and true.

We do find, however, that whether an attorney-client privilege exists is of noconsequence to the Board's determination of whether plaintiff violated the department's rules. Itis true that if in fact an attorney-client relationship existed, plaintiff's assessment that he wascaught in a "catch 22" is correct. However, as previously stated, this "catch 22" should havenever occurred. The record is clear that plaintiff became a police officer prior to becoming anattorney. The general order 89-8 concerning secondary employment clearly states in pertinentpart:

"III. Policy

1. The Chicago Police Department has the right to restrictsecondary employment for good cause. The duties and obligationsof the Chicago Police Department take priority over any otheremployment. Department members who engage in secondaryemployment are reminded that their primary responsibility is to theChicago Police Department ***.

2. Any conflict of interest will be resolved in favor of the ChicagoPolice Department." (Emphasis added.) Chicago PoliceDepartment General Order 89-8 (eff. August 16, 1989).