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O'Keefe v. State Police Merit Bd., No. 1-98-3471

1st District, May 26, 2000

SIXTH DIVISION

Justice BUCKLEY delivered the opinion of the court:

On February 17, 1995, defendant, the Illinois State Police (ISP), indefinitely suspended plaintiff, Trooper Daniel O'Keefe,without pay and pending a termination proceeding before the Merit Board (Board) pursuant to section 14 of the State PoliceAct (the Act) (20 ILCS 2610/14 (West 1998)). On June 16, 1995, ISP filed a 10-count complaint before the Board, allegingvarious instances of misconduct by O'Keefe. On September 24, 1996, a hearing officer found that ISP had proven 9 of the10 counts. On October 31, 1996, the Board unanimously adopted the hearing officer's findings and discharged O'Keefe. Onreview, the circuit court affirmed the Board in part and reversed in part. O'Keefe now appeals to this court, arguing that: (1)the hearing officer erred in denying his motion to suppress his statements to investigators and his drug-test results; and (2)that ISP's investigation violated a collective bargaining agreement. ISP cross-appeals, arguing that the circuit court erred infinding that O'Keefe was entitled to pay while the Board hearing was pending. We affirm.

I. BACKGROUND

Paula Barrows testified at an evidence deposition that she is a special agent with the Federal Bureau of Investigation andthat she formerly worked for ISP. Barrows further testified that, On February 17, 1995, she became involved in aninvestigation regarding O'Keefe. According to Barrows, an informant, John Hernandez, had been arrested on drug chargesand told investigators that O'Keefe had been supplying him with confidential information in exchange for cocaine.Hernandez met with Barrows that same day and, according to Barrows, stated that he had been supplying O'Keefe withcocaine for over five years. In exchange for the cocaine, O'Keefe gave Hernandez confidential information relating to policecode words, planned drug busts, and license plate information. According to Barrows, O'Keefe also gave Hernandez an"EPIC book." Barrows explained that an "EPIC book" contains intelligence information involving narcotics traffickingthroughout the United States and probably the world, including information regarding current narcotics investigations.

To corroborate Hernandez' story, Barrows instructed Hernandez to call O'Keefe and ask him to run a particular license-platenumber. Barrows and other investigators watched Hernandez dial O'Keefe's telephone number, saw O'Keefe's numberappear on the display of Hernandez' cellular telephone, and shared the telephone with investigators so that they could hearthe conversation and identify O'Keefe's voice. Later that day, O'Keefe called back and provided the information Hernandezrequested. Barrows verified through an ISP telecommunicator that, while O'Keefe was off duty that day, he had in factcalled in a request for information regarding the same license-plate number. Also that day, Barrows and three other officerssearched O'Keefe's squad car. Inside, they found several Penthouse magazines, individual photographs of a naked woman,and a set of brass knuckles. ISP prohibits troopers from having any such items in their patrol cars.

Arthur Sebek, a squad supervisor in the ISP internal investi-gations division, testified that he was also present whenHernandez called O'Keefe, that he could identify O'Keefe's voice, and that he heard O'Keefe provide the license-plateinformation. Later that evening, O'Keefe was instructed to report to police headquarters. Sebek testified that, when O'Keefearrived, and before Sebek could say anything, O'Keefe stated that he had known Hernandez for several years and thatHernandez was involved in drugs. According to Sebek, O'Keefe admitted, without being asked, that he ran a license platefor Hernandez and that he knew it was a mistake. Sebek testified that he cut O'Keefe off and instructed him to complete aurinalysis test. Sebek accompanied O'Keefe to the testing center and then returned to police headquarters with O'Keefe.When the pair returned, O'Keefe's commander informed O'Keefe that he was suspended without pay. O'Keefe's urinalysisresults indicated that he had cocaine in his system.

On June 16, 1995, the ISP Director filed a 10-count complaint with the Board, alleging numerous instances of officialmisconduct and requesting that O'Keefe be discharged. On February 1, 1996, O'Keefe filed a motion to quash hissuspension and be reinstated or, alternatively, to be suspended with retroactive pay. O'Keefe also filed a motion to suppressthe urinalysis test's results. On May 16, 1996, a hearing officer denied O'Keefe's motions.

The hearing officer conducted a hearing on ISP's complaint, spread over several dates between May 21, 1996, and July 30,1996. On May 23, 1996, O'Keefe filed a supplemental motion to repress the urinalysis test's results, arguing that newevidence appeared indicating that an external chain-of-custody error had occurred. On September 24, 1996, after hearingtestimony from several witnesses, including O'Keefe, Hernandez, Sebek, several physicians, and several ISP officials, thehearing officer denied O'Keefe's supplementary motion to suppress and submitted her proposed findings of facts andconclusions of law. The hearing officer found that O'Keefe knowingly associated with drug traffickers, had observed illegaldrug use but failed to report it to ISP, divulged confidential information to drug traffickers (including license plate and drugenforcement information) in exchange for cocaine, used cocaine while on or off duty, and had sexually explicit materialsand unauthorized weapons in his patrol car. Further, the hearing officer found that ISP met its burden in proving 9 of the 10counts in its complaint. On October 31, 1996, the Board unanimously adopted the hearing officer's findings of fact andconclusions of law, and ordered that O'Keefe be removed and discharged from ISP.

On November 27, 1996, O'Keefe filed a petition for administrative review before the circuit court. O'Keefe argued that theinvestigation and suspension violated section 14 of the Act and the collective bargaining agreement between ISP and theFraternal Order of Police (FOP), and that the Board improperly relied on his urinalysis test results despite procedural andcustodial errors. On August 1, 1997, the circuit court found that ISP violated section 14 of the Act by suspending O'Keefewithout pay and pending the hearing, and the court entered an order remanding the matter to the Board for payment of backpay. According to the transcript, the court also found that ISP violated section 14 of the Act by questioning O'Keefe withoutsufficient notice, and that evidence obtained from such questioning should have been suppressed pursuant to section 14a ofthe Act (20 ILCS 2610/14a (West 1998)), but that sufficient evidence nevertheless existed to support the Board's finding.Further, the circuit court refused to disturb the Board's findings with respect to O'Keefe's chain-of-custody argument andwhether ISP violated the collective bargaining agreement. On August 22, 1998, O'Keefe advised the circuit court that hereceived his back pay, and the court entered a final order disposing of all matters before it. On September 11, 1998, O'Keefefiled the instant appeal.

On appeal before this court, O'Keefe again argues that ISP's investigation and suspension violated section 14 of the Act andthe collective bargaining agreement between ISP and the FOP, and that the Board improperly relied on his urinalysis testresults despite procedural and custodial errors. O'Keefe does not dispute the Board's factual findings or other conclusions oflaw.

II. ANALYSIS

A. Motion to Suppress O'Keefe's Statements

O'Keefe first argues that ISP failed to advise him on February 17, 1995, that he had a right to counsel and that hisstatements could be used against him, as required under section 14 of the Act. Section 14 of the Act reads in pertinent partas follows:

"Before any such officer may be interrogated or examined ***, the results of which *** may be the basis for filingcharges seeking his or her suspension for more than 15 days or his or her removal or discharge, he or she shall beadvised in writing as to what specific improper or illegal act he or she is alleged to have committed; he or she shall beadvised in writing that his or her admissions made in the course of the hearing, interrogation or examination may beused as the basis for charges seeking his or her suspension, removal or discharge; and he or she shall be advised inwriting that he or she has a right to counsel of his or her choosing, who may be present to advise him or her at anyhearing, interrogation or examination." 20 ILCS 2610/14 (West 1998).

Further, under section 14a of the Act (20 ILCS 2610/14a (West 1998)), "statements or admissions obtained during thecourse of any hearing or interrogation not conducted in accordance with this Act may not be utilized against the officer inany subsequent disciplinary proceeding." Therefore, O'Keefe argues, the hearing officer erred by denying his motion tosuppress his statement with regard to running license plates for Hernandez.

ISP disagrees, arguing that O'Keefe was never interrogated or examined. Instead, ISP argues, O'Keefe volunteered theinformation about Hernandez without being asked. Sebek testified that, before he had a chance to say anything, O'Keefevoluntarily admitted that he ran license-plate information for Hernandez. O'Keefe further admitted to Sebek that he knew itwas a mistake and that he should not have done it. ISP Investigator Anthony Rapacz also testified that O'Keefe made thisadmission voluntarily. Rapacz further testified that he reminded O'Keefe that he was an FOP trustee, that they had acontract, and that he had rights. However, O'Keefe waved Rapacz off and continued to state that he should not have done it.According to Rapacz, O'Keefe said that he was sorry for putting the other officers in such an awkward position. O'Keefehimself even admitted that he immediately told Sebek and the officers that he "knew what this was about" and thenproceeded to tell them what he thought it was about, namely, running the license plate for Hernandez. O'Keefe also admitsin his brief that ISP never conducted an interrogation or examination.

We need not determine whether ISP violated section 14 of the Act because O'Keefe has waived this issue. While the recordindicates that O'Keefe indeed filed a motion to suppress, O'Keefe fails to cite where, nor does review of the record indicatethat, he raised the matter again during the proceedings. Rulings on motions to suppress are not final and may be changed orreversed at any time prior to final judgment. See People v. Brooks, 187 Ill. 2d 91, 127, 718 N.E.2d 88, 109 (1999). Failureto ask the court or administrative body to reconsider the motion when that evidence is introduced at trial results in waiver ofthat issue on appeal. See Brooks, 187 Ill. 2d at 128, 718 N.E.2d at 109.

Even if we were to reach the merits of O'Keefe's claim and conclude that O'Keefe's statements should have been excluded,such error would be harmless. The gist of O'Keefe's statement was that he knew Hernandez, he knew Hernandez wasinvolved with drugs, and that he ran a license plate for Hernandez earlier that day. O'Keefe's February 17, 1995, statementswere cumulative and merely duplicated other testimony. Sebek, Barrows, and others testified that they heard Hernandez askO'Keefe to run a particular license plate, and that they heard O'Keefe supply the information that Hernandez requested.Hernandez testified that O'Keefe often ran license plates for him. Carroll Gibbs, a telecommunicator with ISP, testified thatO'Keefe called her on February 17, 1995, and asked her to run the same license-plate number that Hernandez requested.O'Keefe himself testified during the hearing that he ran the license plate for Hernandez. Under these facts, even if theasserted error occurred, it would be harmless. See People v. Wilkerson, 87 Ill. 2d 151, 157, 429 N.E.2d 526, 528 (1981)(finding that error is harmless when "the evidence is cumulative or merely duplicates properly admitted evidence").

B. Violation of the Collective Bargaining Agreement

O'Keefe next argues that his suspension violated the collec-tive bargaining agreement between ISP and the FOP. Article 7of the collective bargaining agreement provides in pertinent part:

"b. No internal investigation will be conducted and no discipline may be issued unless a file initiation report has beencompleted."

O'Keefe contends that ISP violated the collective bargaining agreement by failing to complete the file initiation report untilafter O'Keefe's suspension and that such failure requires that this court reverse the Board's finding.

This argument lacks merit. Assuming, arguendo, that ISP in fact violated article 7 of the collective bargaining agreement,we find that the Board lacked jurisdiction to hear such a claim or provide a remedy for such a violation.

Section 8 of the Act (20 ILCS 2610/8 (West 1998)) provides in pertinent part that the "Board shall exercise jurisdiction overthe certification for appointment and promotion, and over the discipline, removal, demotion and suspension of Departmentof State Police officers." O'Keefe fails to cite any authority indicating that the Board has authority to provide a remedy for aviolated labor agreement. Further, the plain language of section 8 indicates that the Board has no such power. Because theBoard is a creature of statute, its powers are generally limited to those conferred upon it by statute. See Schalz v. McHenryCounty Sheriff's Department Merit Comm'n, 113 Ill. 2d 198, 202, 497 N.E.2d 731, 732-33 (1986). The Board's authorityarises either from the Act's express language or by fair implication and intendment of the Act's express provisions as anincident to achieving the objectives for which the Board was created. See Schalz, 113 Ill. 2d at 202-03, 497 N.E.2d at 733.Section 8 of the Act clearly limits the Board's jurisdiction to disciplinary actions regarding an officer's conduct. O'Keefe'sarguments relate not to his conduct but, rather, to ISP's alleged failure to adhere to a labor contract. We further note that,assuming the collective bargaining agreement is relevant here, article 8 of the agreement sets forth a separate procedureunder which employees may file union grievances for agreement violations.

Further, assuming that the agreement is relevant here, O'Keefe has failed to cite any persuasive evidence in the record toindicate that the agreement was even broken. Barrows testified that she completed the report but that she could not recallwhether she completed it on February 17, 1995, or February 20, 1995. Even if we were to make such a factualdetermination (see Folbert v. Department of Human Rights, 303 Ill. App. 3d 13, 26, 707 N.E.2d 590, 599 (1999) (statingthat "it is not the function of the reviewing court to resolve factual disputes")), O'Keefe has failed to explain how a delay ofone business day prejudiced him.

C. Motion to Suppress Drug Test

Dr. Robert DuPont testified that O'Keefe's sample indicated that he had used cocaine within two or three days of the test.Dr. DuPont further testified that O'Keefe's sample contained an unusually high level of cocaine. ISP also presentedevidence that a second facility also tested O'Keefe's sample and that it reached similar conclusions.

However, O'Keefe contends that the Board erred by considering his urinalysis results. Specifically, O'Keefe argues thatsuch evidence should have been excluded due to an external custodial chain error that was identified when the urine samplereached the toxicology center. According to an affidavit filed by Carmen Mitelescu, a lab worker, the sample was sent tothe laboratory in a taped box, but that the tape "broke in transit." This discrepancy, according to O'Keefe, was so significantthat the Board should have granted his motion to suppress. We disagree.

The hearing officer found O'Keefe's argument unconvincing and determined that ISP established a sufficient custodialchain. Reviewing courts will not disturb the Board's ruling on the sufficiency of a custodial chain absent an abuse ofdiscretion. Williamson v. Police Board, 182 Ill. App. 3d 304, 310, 537 N.E.2d 1058, 1061 (1989). To support the Board'sdetermination, the record must indicate that ISP took reasonable protective measures to ensure that the sample taken fromO'Keefe was indeed the same sample tested in the laboratory. Williamson, 182 Ill. App. 3d at 310, 537 N.E.2d at 1061. Toprevail, O'Keefe must present tangible suggestion of tampering, alteration or substitu-tion. See Williamson, 182 Ill. App. 3dat 310, 537 N.E.2d at 1061. Mere speculation that the sample could have been altered is insufficient to undermine acustodial chain's adequacy. Williamson, 182 Ill. App. 3d at 310, 537 N.E.2d at 1061.

We find that sufficient evidence exists to support the Board's determination. Dr. Mohamad Rahmanian testified that, whena urine sample is collected, the sample is divided between two bottles. The bottles are then wrapped lengthwise withtamper-resistant tape and identified with a control number. The sample provider's initials and the date are also written onthe tape. The bottles are then placed in a sealed bag, and the bag is placed inside a box. The box is then sealed with securitytape baring the same control number. Dr. Rahmanian stated that the outer tape is designed to be fragile to preventtampering. However, the tape is so fragile that it may be damaged during shipping. According to Dr. Rahmanian, suchdamage would not undermine the test's integrity so long as the bottles remain sealed. Dr. Donald Frederick testified onO'Keefe's behalf. Dr. Frederick similarly admitted that the box's seal does not necessarily affect the sample's integrity.O'Keefe does not dispute that, while the tape on the outer box was damaged, the seal on the bottles themselves remainedintact. We further note that several doctors, including Frederick, testified that the tape on the outer boxes commonly breaks.Under these facts, we find that the broken tape on the outer box did not break the custodial chain.

O'Keefe further argues that Dr. DuPont improperly examined O'Keefe's specimen and verified the positive result beforeinvestigating the alleged custodial-chain error. ISP procedure requires that Dr. DuPont, as the ISP medical review officer,"receive all pertinent information" prior to making such a determination, and O'Keefe contends that this omission requiredthat the Board suppress his drug-test results. While Dr. DuPont admitted that he indeed examined O'Keefe's sample beforeinvestigating the broken tape, this argument nevertheless lacks merit. As previously stated, the seals on the bottlesthemselves remained intact. Dr. DuPont testified that, in verifying that proper procedures were utilized, his concern is notfor the tape on the box but, rather, the integrity of the specimen bottle. We further note that Dr. DuPont regularly contactsthe provider of a positive sample to ask a series of questions that might establish an alternative reason for the positive result.Dr. DuPont left such a message for O'Keefe, but O'Keefe did not return his call. Citing People v. Slaughter, 149 Ill. App.3d 183, 500 N.E.2d 662 (1986), O'Keefe next argues that the testing facility improperly stored his sample in an unlockedrefrigerator. Failure to store the sample securely, O'Keefe contends, violated ISP procedures and constituted a break in thecustodial chain. We find that Slaughter's facts are inapposite to the instant case. In Slaughter, the State acknowledged thatthe evidence at issue, an envelope containing two hand-rolled marijuana cigarettes, was handled in a lackadaisical manner.Slaughter, 149 Ill. App. 3d at 186, 500 N.E.2d 665. Further, the court noted:

"[T]he testimony is wholly inadequate to 'match' the description of the envelope ***. [The corrections officer] did nottestify to the color, or the size, of the envelope into which he put the cigarettes he found ***. He also did not state thathe ever sealed the envelope, marked, labelled, or identified the envelope, or that he inventoried the envelope. Furthermore, the evidence *** is insufficient to trace the individuals who did have access to the envelope, or thenumber of persons who could have had access to it. ***

In addition, the record does not establish the degree to which access was restricted to the correctional facility's safe.[The officer] stated that he himself 'dropped' the envelope into the safe. He also stated that the safe was accessible totwo persons, the lieutenant and the facility's accountant. Because [the officer's] access to the safe enabled him to dropthe envelope into the safe, we cannot determine the degree to which access to the safe was permitted, beyond the twopersons *** specified at the hearing. Also, although [the officer] testified that the safe was of the type which is lockedby a key, he did not state that it was locked ***.

***

The record is also inconclusive with respect to whether access was restricted to the correctional facility's safe in whichthe guard placed the envelope containing the cannabis. We therefore determine that the State failed to establish aproper chain of custody of the cannabis evidence it presented at the revocation hearing." Slaughter, 149 Ill. App. 3d at186-87.

The veritable litany of errors identified by the court in Slaughter simply does not exist in this case. In Slaughter, the courtrelied on numerous factors, including the fact that the record failed to adequately show whether others had access to the safeand whether the envelope had been sealed. Here, access is not a dispositive issue because the fact remains that thecontainer's inner seals remained intact and, therefore, the sample was in fact not disturbed. Carmen Mitulescu testified thatshe collected O'Keefe's sample and placed in a triple-sealed container. Mitulescu wrote the date, O'Keefe's initials, and acontrol number on the seals. That the inner seals remained intact negates the conclusion that someone tampered with thesample.

D. Cross-Appeal

On cross-appeal, ISP argues that the circuit court misinter-preted section 14 of the Act and erred in finding that the Boardshould have granted O'Keefe's motion to quash his unpaid suspension. We disagree. Statutory construction is a matter oflaw and is considered de novo. Branson v. Department of Revenue, 168 Ill. 2d 247, 254, 659 N.E.2d 961, 965 (1995). Thecardinal rule of statutory construction is to ascertain and give effect to the legislature's intent. Solich v. George & AnnaPortes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 81, 630 N.E.2d 820, 822 (1994). To determine thelegislature's intent, courts first look to the statute's language. Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359,368-69, 695 N.E.2d 853, 858 (1998). Statutory provisions relating to the same subject matter should be construedharmoniously where possible. Rawles v. Hartman, 172 Ill. App. 3d 931, 936, 527 N.E.2d 680, 682 (1988). The relevantportion of section 14 of the Act states as follows:

"Except as is otherwise provided in this Act, no Department of State Police officer shall be removed, demoted orsuspended except for cause, upon written charges filed with the Board by the Director and a hearing before the Boardthereon upon not less than 10 days' notice at a place to be designated by the chairman thereof. At such hearing, theaccused shall be afforded full opportunity to be heard in his or her own defense and to produce proof in his or herdefense." (Emphasis added.) 20 ILCS 2610/14 (West 1998).

Section 13 of the Act also provides for suspensions and states in pertinent part as follows:

"Disciplinary measures prescribed by the Board for Department of State Police officers may be taken by the Directorfor the punishment of infractions of the rules and regulations of the respective divisions as promulgated by theDepartment. Such disciplinary measures may include suspension of any such officer for a reasonable period, notexceeding 30 days." (Emphasis added.) 20 ILCS 2610/13 (West 1998).

Construing sections 13 and 14 together, we find that the Director may impose disciplinary measures, including suspension,on officers for a reasonable period not exceeding 30 days. Illinois courts have upheld such suspensions even if they wereunpaid. See, e.g., Scott v. Illinois State Police Merit Board, 222 Ill. App. 3d 496, 584 N.E.2d 199 (1991); Clark v. Morris,99 Ill. App. 2d 24, 31, 240 N.E.2d 515, 518 (1968). However, before ISP may suspend an officer beyond 30 days, it musthave cause, must file written charges with the Board, and must hold a hearing, to which officers must receive not less than10 days' notice. The record indicates that ISP suspended O'Keefe without pay for approximately four months before filingwritten charges and providing him with the hearing required under section 14 of the Act.

ISP contends that section 14 does not apply here, arguing that "it did not file a complaint with the Merit Board seeking thesuspension of O'Keefe in this case, but rather his discharge." ISP asserts that two types of suspensions exist. According toISP, "O'Keefe's suspension pending discharge was not a disciplinary suspension but rather an administrative suspension"intended to remove a corrupt officer from the street pending a hearing. O'Keefe disagrees, arguing that the Act's plainlanguage makes no such distinction. While the hearing officer agreed with ISP, the circuit court rejected ISP's argument,finding:

"[Section] 14 of the Police Act could hardly be clearer in its requirement that written charges be filed with the boardbefore any disciplinary action takes place. Here, it is undisputed that no such charges were filed until June 16, 1995,four months after O'Keefe was indefinitely suspended. *** The hearing officer found that the requirements [of section14] were followed. *** The court finds that the hearing officer's construction of [section 14] were erroneous and,consequently, rejects the result reached by the hearing officer [with respect to O'Keefe's motion to quash]."

We find the circuit court's interpretation of section 14 persuasive. Courts must accord a statute's language with its plain andcommonly understood meaning. R.L. Polk & Co. v. Ryan, 296 Ill. App. 3d 132, 140, 694 N.E.2d 1027, 1033 (1998). Ourreview of section 14 indicates that it makes no distinction between administrative and disciplinary suspensions and we mustnot depart from its plain language by reading into it exceptions, limitations, or conditions that the legislature did notexpress. See Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189, 561 N.E.2d 656, 291 (1990). While we agree with ISP's assertionthat it "should not be put in the position of *** permitting an officer of dubious character to remain on duty pendingdischarge proceedings," we do not agree that it may place an officer on unpaid suspension while it drags its feet for nearlyfour months before filing written charges and providing the accused officer with the hearing to which he or she is entitledunder section 14. Had ISP wished to avoid providing O'Keefe with "a happy boon and a favor, i.e., pay without work," itshould have filed charges and granted his hearing more promptly. We further reject ISP's argument that a four-monthsuspension without pay is acceptable because, had the Board exonerated O'Keefe, he would have been entitled to back pay,interest, and benefits pursuant to section 14 of the Act. Officers exonerated after four months of unpaid suspension,followed by a hearing and then another four months awaiting a determination, will have sustained severe financial harm thatcannot necessarily be remedied by back pay with interest.

We find that ISP had authority to suspend O'Keefe without pay for 30 days pursuant to section 13 of the Act. Had ISPfound it necessary to suspend O'Keefe for a period exceeding 30 days, it was required under section 14 to file writtencharges and provide him with a hearing.

III. CONCLUSION

For the foregoing reasons, we affirm the circuit court's determination.

Affirmed.

Zwick, P.J., with Campbell, J., concur.