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Rule 23 order filed
February 21, 2003;
Motion to publish granted
April 9, 2003.

JUSTICE MAAG delivered the opinion of the court:

Following an administrative hearing, the City of Highland Board of Police and FireCommissioners (the Board) discharged Matthew Duncan from his position as a Highlandpolice officer for violating department rules. Duncan sought judicial review of the Board'sdecision. On review, the Madison County circuit court reversed the Board's decision andordered it to reinstate Duncan and to impose the maximum penalty short of discharge. Onappeal, the Board contends that its findings and conclusions regarding the violation aresupported by the evidence and that the misconduct warrants a discharge. The Board asksthis court to reverse the decision of the circuit court and to affirm the Board's decision todischarge Duncan.

The basic facts are not in dispute. On the evening of September 28, 2000, Duncanwent to Cutter's bar in Belleville, Illinois. He was not on duty at that time. While at the bar,Duncan became acquainted with a woman named Barbara. Sometime during the evening,Barbara had learned that Duncan was a Highland police officer. Just before "last call",Barbara willingly accompanied Duncan to his car for the purpose of engaging in sexualrelations. Duncan's car was parked in the rear of Cutter's parking lot near a line of trees. Duncan covered the windows of his car with sun screens so that they could not be seen. Heand Barbara then engaged in consensual sexual acts. Duncan and Barbara exited the car andagain engaged in sexual acts on the parking lot behind the car. Both were partially clothed. Duncan's pants were at his ankles. At that time, a group of approximately five people wasstanding in the parking lot. One or two from the group knew Barbara and began to jokewith her while she was behind Duncan's car. Based on the banter, it was evident that at leastsome people were aware that Duncan and Barbara were engaging in sexual relations.

Someone reported Duncan's conduct to Michael D. King, Highland's police chief. Chief King instituted an investigation. Following the investigation, Duncan was chargedwith violating two department rules: "unbecoming conduct" and "immoral conduct".

On November 10, 2000, the Board conducted an evidentiary hearing on the charges. During the hearing, the Board had the opportunity to read the investigative reports and tolisten to the testimony of Barbara, Duncan, Chief King, and character witnesses called onbehalf of Duncan. The witnesses' accounts of the basic facts did not conflict. The Boardalso had the opportunity to consider Duncan's personnel file. The personnel filed includedinformation regarding hiring, awards, and incident reports. According to documents in thefile, Duncan had been appointed as a Highland police officer in January 1995. Prior to hisappointment, Duncan served five years as a military police officer in the Missouri NationalGuard. Duncan received commendations for his service as a member of the National Guardand as a Highland police officer. Duncan had also been the subject of a few complaintsarising from his work as a Highland police officer. One incident resulted in a one-daysuspension. In that case, Duncan admitted that he had presented a false identification cardto an airline attendant so that he could use a nontransferable and nonrefundable airline ticketwhich had been issued in the name of an acquaintance. The individual could not use theticket and offered it to Duncan. No criminal prosecution arose from the incident.

At the close of the hearing, the Board took the matter under submission. It issued itsdecision on December 6, 2000. In its decision, the Board found that Duncan had engagedin a sex act on a public parking lot while others were present and that there was a reasonableexpectation that others would view the act. The Board determined that by participating insuch acts, Duncan engaged in unbecoming conduct and immoral conduct in violation ofdepartment rules. The Board concluded that Duncan's conduct reflected unfavorably on thedepartment, brought the department into disrepute, discredited the department's integrity, anddiscredited his own integrity. After considering the present incident and the priorsuspension, the Board determined that there was cause for discharge. The Board orderedthat Duncan be removed and discharged from his position as a Highland police officer.

Duncan filed a timely petition for judicial review of the Board's decision in theMadison County circuit court. After considering the administrative record and the briefs ofthe parties, the circuit court remanded the case to the Board for "reconsideration of sanctionsshort of discharge". The court found that there had been no showing that Duncan'scontinued employment would be detrimental to the discipline and efficiency of service orthat the infraction was "sufficiently substantial or related to the performance of his duties"to justify discharge. The order was issued September 25, 2001.

After further review, the Board stood on its decision to discharge Duncan. In thedecision issued October 19, 2001, the Board noted that police officers are in positions oftrust and responsibility in the community and are held to a higher standard than privatecitizens, that Duncan's conduct demonstrated a propensity to disregard the law, that theHighland police department was a small police department which required cooperationamong its officers, that Duncan's continued employment would severely impair the integrityof the department, and that any discipline short of discharge would have a negative impacton the citizens of Highland.

In a motion filed October 23, 2001, Duncan asked the circuit court to clarify itsSeptember 25, 2001, order or, alternatively, to find the Board in wilful contempt for failingto comply with the order. Duncan claimed that the order required the Board to impose asanction less severe than a discharge and that the Board had misconstrued the order. OnOctober 25, 2001, the Board filed a motion to reconsider the September 25, 2001, order andto affirm its findings and decision. The motions were considered during a hearing heldNovember 1, 2001. On November 2, 2001, the circuit court entered an order denying themotion to reconsider and granting the motion for clarification. In its order, the court directedthat the Board "institute the maximum penalty exclusive of discharge authorized by 65 ILCS5/10-1-18[] and that the officer be reinstated to his position within the department".

On appeal, the Board contends that Duncan's conduct violated the law and thepolicies of the Highland police department and that this conduct, when considered with aprior incident and suspension, justified the discipline of discharge. Duncan contends thatthe Board's decision was unreasonable because his conduct was not related to his work asa Highland police officer. In support of his argument, Duncan argues that he was not onduty and not in uniform, that he did not use his position to influence the woman toparticipate, that the conduct occurred outside of the Highland community, and that theconduct did not adversely impact the integrity of the Highland police department.

The standard of review of an administrative agency's decision regarding dischargerequires a two-part analysis. See Kloss v. Board of Fire & Police Commissioners of theVillage of Mundelein, 96 Ill. 2d 252, 257, 449 N.E.2d 845, 848 (1983); Department ofMental Health & Developmental Disabilities v. Civil Service Comm'n, 85 Ill. 2d 547, 550,426 N.E.2d 885, 887 (1981). Initially, a court must determine whether the findings areagainst the manifest weight of the evidence. Department of Mental Health &Developmental Disabilities, 85 Ill. 2d at 550, 426 N.E.2d at 887. Because the Board is anadministrative agency, its findings and conclusions are held to be prima facie true andcorrect. See 735 ILCS 5/3-110 (West 1998).

In this case, the Board's findings are based upon facts that are largely undisputed. During the hearing, the primary fact in dispute was whether the sexual activity wasperformed "in public". The Board found that Duncan had engaged in a sex act on a publicparking lot while others were present and that there was a reasonable expectation that otherswould view the public sex act. The finding is supported by evidence presented during thehearing. It is not against the manifest weight of the evidence.

The second step is to determine whether the findings of fact provide a sufficient basisfor the agency's conclusion that a cause for discharge exists. Department of Mental Health& Developmental Disabilities, 85 Ill. 2d at 551, 426 N.E.2d at 887; Kappel v. Police Boardof the City of Chicago, 220 Ill. App. 3d 580, 589, 580 N.E.2d 1314, 1320 (1991). Theagency's decision will not be reversed unless it is arbitrary, unreasonable, or unrelated to therequirements of service. Department of Mental Health & Developmental Disabilities, 85Ill. 2d at 552, 426 N.E.2d at 887.

According to the Illinois Municipal Code (Code), a police officer may not bedischarged without cause. See 65 ILCS 5/10-1-18 (West 1992). Though the term "cause"is not defined in the Code, it has been judicially construed to mean "some substantialshortcoming" that renders the employee's continuance in office in some way detrimental tothe discipline and efficiency of the service and that the law and sound public opinionrecognize as a good cause for his no longer holding his position. See Launius v. Board ofFire & Police Commissioners of the City of Des Plaines, 151 Ill. 2d 419, 435, 603 N.E.2d477, 484 (1992); Nation v. Board of Fire & Police Commissioners of the City of Taylorville,40 Ill. App. 3d 384, 387, 352 N.E.2d 464, 467 (1976); Davenport v. Board of Fire & PoliceCommissioners of the City of Peoria, 2 Ill. App. 3d 864, 869, 278 N.E.2d 212, 215 (1972).

The Board is charged with the duty to determine whether there is a cause for thedischarge of one of its officers. Nation, 40 Ill. App. 3d at 387, 352 N.E.2d at 467. TheBoard's decision will stand even if a court considers another sanction more appropriate. SeeKappel, 220 Ill. App. 3d at 590, 580 N.E.2d at 1321. This is because the Board is in the bestposition to determine the effect of the officer's conduct on the proper operation of thedepartment. Kappel, 220 Ill. App. 3d at 590, 580 N.E.2d at 1321. The Board's finding of"cause" is to be respected by the court, and it should only be overturned if it is arbitrary andunreasonable or unrelated to the requirements of the service. See Launius, 151 Ill. 2d at 435,603 N.E.2d at 485; Sutton v. Civil Service Comm'n, 91 Ill. 2d 404, 411, 438 N.E.2d 147, 151(1982). Stated differently, during the review of an administrative agency's decisions, a courtmay not reverse a finding of cause unless the finding is so unrelated to the requirements ofservice or so trivial that it is unreasonable or arbitrary. See Flynn v. Board of Fire & PoliceCommissioners of the City of Harrisburg, 33 Ill. App. 3d 394, 399, 342 N.E.2d 298, 302(1975).

In this case, the Board's finding of a cause for discharge is supported by the evidencein the record. The undisputed evidence shows that Duncan engaged in sexual intercoursein a public place. There was evidence that the citizens of Highland were aware of Duncan'sconduct. Highland Police Chief Michael King testified that Duncan's conduct was anembarrassment to the department. The Board expressed concern that the citizens ofHighland would lose respect for the department if Duncan was permitted to continue as apolice officer. There was also evidence that during his tenure as a Highland police officer,Duncan had occasion to enforce a Highland ordinance which prohibits persons fromengaging in sexual intercourse in a public place. Duncan's willingness to engage in conductin a nearby jurisdiction, when he is aware that such conduct would be improper if it occurredin Highland, indicates a disregard of the law. A police officer who freely disregards lawsthat he has sworn to uphold impairs the discipline and efficiency of his entire departmentand undermines the authority of every officer on the street. See Kappel, 220 Ill. App. 3d at591, 580 N.E.2d at 1321-22.

According to the record, this is not Duncan's first instance of misconduct. A fewmonths prior to the incident in Cutter's parking lot, Duncan was suspended for thepossession and use of a false government identification card. There is evidence that Duncanfailed to uphold the high standards and duties of his office on more than one occasion. Thenature of these incidents and the fact that they were committed only a few months apart raiseconcerns about Duncan's ability to serve as a police officer. The incidents demonstrate alack of good judgment and a lack of respect for the law. Taken together, these incidentssupport the Board's findings that Duncan has exhibited substantial shortcomings as a policeofficer and that his continued employment as a police officer may have a substantial,detrimental impact on the discipline and efficiency of the Highland police department. SeeEaley v. Board of Fire & Police Commissioners of the City of Salem, 188 Ill. App. 3d 111,118, 544 N.E.2d 12, 17 (1989).

On this record, we cannot say that the Board's decision to discharge Duncan wasunrelated to the requirements of service as a police officer or otherwise unreasonable orarbitrary. The circuit court erred in ordering the Board to modify its disciplinary sanction.

Accordingly, the judgment of the circuit court is reversed, and the decision of theBoard is reinstated and affirmed.

Reversed; Board's decision reinstated.

CHAPMAN and DONOVAN, JJ., concur.

Rule 23 Order Filed: February 21, 2003

Motion to Publish Granted: April 9, 2003

Opinion Filed: April 9, 2003

Justices: Honorable Gordon E. Maag, J.

Honorable Melissa A. Chapman, J., and

Honorable James K. Donovan, J.,

Concur

Attorneys George E. Marron III, Johannes & Marron, P.C., 1320 Broadway, Highland, IL

for 62249 (for The City of Highland Board of Police and Fire Commissioners)

Appellants

Thomas Scott Stewart, Beth A. Bauer, Burroughs, Hepler, Broom, MacDonald,

Hebrank & True, 103 West Vandalia Street, Suite 300, Edwardsville, IL 62025-

0515 (for Police Chief Michael D. King)

Attorneys Mark C. Scoggins, Clay B. St. Clair, Crowder & Scoggins, Ltd., 121 West Legion

for Avenue, P.O. Box 167, Columbia, IL 62236

Appellee