Harrison v. Civil Service Commission , 347 Ill. App. 405 ( 1952 )

Mr. Justice Tuohy

delivered the opinion of the court.

Thomas Harrison, plaintiff, a captain of police in the City of Chicago, was tried before the Civil Service Commission of the City of Chicago on charges of violating certain rules and regulations of the department of police of the City of Chicago. From an order discharging him from the police department, plaintiff initiated proceedings under the Administrative Review Act (Ill. Rev. Stat. 1951, chap. 110, pars. 264-279) [Jones Ill. Stats. Ann. 104.094 (1)-104.094 (16)] to review the decision of the Civil Service Commission. The matter was heard in the superior court of Cook county upon the complaint of the plaintiff and the return of the defendants, the Civil Service Commission of the City of Chicago, and Stephen E. Hurley, President, and Albert W. Williams and Charles A. Lahey, members thereof. The court found the issues in favor of the plaintiff and ordered that the record of proceedings be quashed and that the finding and decision of the Civil Service Commission ordering the discharge and removal of the plaintiff be reversed and set aside. From this decision defendants appeal to this court.

Plaintiff was charged with a violation of rules and regulations of the department of police as follows:

“Rule 389, section 29. Receiving or accepting a reward or gift from a person for a service rendered, or pretended to be rendered, as a member of the department without the consent of the Commissioner of Police.”

“Rule 378. Other business prohibited: A member of the department shall devote his whole time and attention to his duties. He is expressly prohibited from following any other calling or occupation, or being engaged in any other business.”

“Rule 389, section 3. Conduct unbecoming a police officer or employee of the police department.”

The particular acts alleged in the complaint to constitute a violation of the aforesaid rules are: (1) that in the year of 1935 plaintiff, who in that year was promoted from sergeant to lieutenant of police, obtained a loan of $10,000 from one William Skidmore, described as “notoriously known to be engaged in gambling as a business or profession”; (2) that in the same year plaintiff obtained a loan of $2,500 from one John J. Lynch, described as “notoriously known to be engaged in the City of Chicago, in the business of printing and circulating racing and other information to bookmakers and gamblers” and “notoriously known as” or “generally reputed to be” a professional gambler; (3) that plaintiff acted as a shotgun guard for Nash Bros., a Chicago construction firm, during a period from 1923 to October 1935, and received $20 for each trip made with its payroll car; and (4) that plaintiff received or accepted a reward or a gift of $30,000 from Lynch in 1937 for service rendered or pretended to be rendered as a member of the department without the consent of the commissioner of police.

The majority of the Commission found: As to the Skidmore and Lynch loans, “although not unusual in form,” the loans “have lent themselves to unfavorable inferences, but this Commission may not, in the absence of definite proof, predicate disciplinary action upon imaginary grounds. Accordingly, these loans must be given the benefit of the presumption that they were the business transactions which they purported to be.” As to the service performed for Nash Bros, the Commission found that “even though the Commission might deprecate the respondent’s occasional employment as a shotgun guard, it seems hardly justifiable to make that employment first entered upon about 28 years ago, with the prior knowledge and consent of the then head ■ of the Chicago Police Department, a basis for L.is present discharge therefrom.”

These charges, upon which the Commission refused to predicate disciplinary action, are not before us on this appeal..

As to the $30,000 payment to plaintiff from Lynch the Commission found in part: “The conclusion from the respondent’s own statements and testimony is irresistible that the $30,000 payment by Lynch to him was made in recognition of the respondent’s long, faithful and extensive service as Lynch’s bodyguard, which service had the obvious and important purpose of protecting Lynch from another kidnapping or other harmful acts by his enemies or by any persons of evil intent. Service of this type coincides precisely with the function and duty of the respondent and all other Chicago policemen at all times to see to the safety of the people of this community. It was essentially a police duty which the respondent could and did, in all respects, most effectively perform as, while and because he was a member of the Chicago Police Department. Lynch was simply able to get from the respondent preferred and continuous attention and service of the sort ordinarily performed on occasion by police officers for any member of the community when the need therefor arises. The $30,000 payment was received and accepted by the respondent without disclosure thereof to the then Commissioner of Police and without his consent. ’ ’ It was thereupon ordered by the Commission that plaintiff be discharged and removed from his position as captain in the department of police and as a member of the department of police. Commissioner Lahey dissented from the finding and was of the opinion that the respondent should be restored to duty.

The basis for the charges brought against plaintiff was a report made by the plaintiff himself to the then commissioner of police, John C. Prendergast, dated October 18,1950, in which plaintiff reported testimony given by him before a United States Senate Investigating Committee on organized crime. This report was read into the record on stipulation of the parties. Plaintiff was called to the stand on the hearing before the Civil Service Commission, and his undisputed testimony tends to establish the following facts:

John J. Lynch for a number of years prior to 1935 was a partner with one M. L. Annenberg of the General News Bureau. This company published a paper and circulated information concerning sporting events and was used by bettors and bookmakers throughout the United States. Plaintiff first met Lynch in 1931. Shortly before, Lynch had been kidnapped by parties unknown and held for $250,000 ransom. He paid $50,000 of the ransom money, and in order to secure his release, agreed to pay the additional money requested. Plaintiff was introduced to Lynch by Dr. Michael F. Howe, a dentist who had offices in a downtown loop building, who was described by the plaintiff as “sort of a police fan and a very good friend of mine. ’ ’ Plaintiff testified that at the time he met Lynch the latter was very “jittery” about the kidnapping, “and I was with him as often as I could be, so that it did not interfere with my police duties. I went around with him. I took him everywhere he wanted to go. Naturally, I was a police officer and I acted, probably, in the capacity of a body guard for him. However, I did not do anything wrong. I did not consider that I was doing work as a member of the Police Department at any time when I acted as a body guard. I got to know him very well. I got to know him well enough that I visited his home in Lake Geneva. He met my wife and I met his wife, and his wife came to my home and my wife went out to his home.”

In 1934 Lynch sold all his interest in the General News Bureau and received a final payment in 1935 which was almost a million dollars. In 1937, according to plaintiff’s testimony, there was some conversation between Lynch and himself about the latter going into business which Lynch offered to finance. Plaintiff stated that he would not want to go into business. Then appears the following testimony from plaintiff:

‘ ‘ So, two or three nights later I met him at the Drake Hotel, he and I together, and we had dinner at the Drake Hotel and he gave me an envelope with $30,000 in it in hundred dollar bills. He told me, ‘Here, buy some securities for your wife, yourself and your daughter ; in case you should get shot in the line of duty, they will have something, and if you don’t, you will have it for your older days.’ I said, ‘Jack, you know that anything I have done for you, I never expected to be repaid.’ He said, ‘I know that.’ I says, ‘From the way this envelope feels, there is plenty of money in there. ’ He said, ‘Yes, I have plenty more, so don’t worry about it and don’t worry about repaying it.’ ”

This payment by Lynch to plaintiff was admittedly never reported to the commissioner of police. Plaintiff continued to act as bodyguard for Lynch until the latter’s death in 1945. On May 10, 1938, plaintiff was promoted from lieutenant of police to the rank of captain.

The limitations placed by our Supreme Court upon reviews from administrative bodies have been variously defined. In City of Aurora v. Schoeberlein, 230 Ill. 496, our Supreme Court held in effect that administrative bodies, being executive in nature, cannot assume or exercise any part of the judicial power; that they are authorized by statute to remove an officer for cause after hearing and opportunity to make a defense and that authority implies the power to judge of the existence and sufficiency of the cause; but that there is no such thing as title or property in a public office and the removal of an officer is not the exercise of judicial power; that an appeal is a step in a judicial proceeding, and in legal contemplation there can be no appeal where there has been no decision by a judicial tribunal. The court in People v. City of Chicago, 234 Ill. 416, followed the Schoeberlein case, but suggested, without deciding, that for certain limited purposes courts might inquire into the good faith of the administrative body, using the following language (p. 421):

“Where acts and duties necessarily call for the exercise of judgment and discretion on the part of an officer, body or person at whose hands performance is required, mandamus will not lie to direct how such discretion shall be exercised. . . . Even granting that the courts have power, by mandamus, to review the findings of such civil service commissioners where their discretionary power has been grossly abused or exercised for selfish and unworthy motives or in an arbitrary or capricious manner, which we do not here decide, yet there is nothing in this record which tends to show that the discretion of the trial board . . . was not exercised in a proper manner.”

Later this doctrine began to yield to permit a weighing of the evidence by courts of review for the purpose of determining whether or not the administrative body abused its discretion. Liberty Foundries Co. v. Industrial Commission, 373 Ill. 146, 154; Brotherhood of Railroad Trainmen v. Elgin, J. & E. Ry. Co., 374 Ill. 60, 62-63. Finally, in the case of Drezner v. Civil Service Commission, 398 Ill. 219, the court laid down the following principle (p. 227):

“We have also held that it is not within the province of the court to disturb the findings of fact made by an administrative agency unless manifestly against the weight of the evidence, but, on the other hand, if the finding of the administrative agency is against the weight of the evidence, it is the duty of the court to set aside the decision of the administrative agency.

“While the Administrative Review Act does not purport to give a reviewing court the right to reweigh the evidence in the cause appealed from, still the courts have the power, as indicated by the decisions herein cited under other administrative acts, to consider the record to determine if the findings of the administrative agency are borne out by the evidence in the cause and whether or not the findings are against the manifest weight of the evidence or if there is substantia] evidence in the record to support the findings.”

We make no attempt to reconcile the above decisions. Whether the instant record is reviewed for the limited purpose of determining on the one hand whether the plaintiff had a legal hearing before the Civil Service Commission and the Commission was not guilty of bad faith or gross abuse of discretion, or, on the other hand, whether the record is reviewed for the purpose of determining whether the findings reached by the Civil Service Commission were against the manifest weight of the evidence, the result we have reached, whichever premise is adopted, would be the same.

Two important facts are undisputed in this record: first, that plaintiff admittedly received a substantial gift of $30,000 from a person for whom at the time he was performing the service of bodyguard, and second, that no consent for the acceptance of this gift was applied for or received from the commissioner of police. Plaintiff insists that he was not required to secure consent of the commissioner for the reason, as set forth in his brief, “that his association with Lynch was that of a personal friend; that he neither rendered nor pretended to render any services whatever to Lynch ‘as a member of the department’; that the gift from Lynch to plaintiff was neither given nor received ‘for services rendered as a member of the department’; and that, therefore, the reporting provisions of Departmental Rule 389 (29) were properly found by the lower court to have no application to the incident.”

As we analyze this theory, it seems to be implied that if the service in question was rendered by plaintiff to Lynch from motivations of friendship it necessarily was not rendered “as a member of the police department.” We do not think any such conclusion logically follows. Obviously one acting for another in the capacity of policeman may at the same time be motivated by feelings of friendship. The relationships of policeman and friend are not mutually exclusive. However, it is not the motive or feeling inspiring the service which is determinative of the fact as to whether or not the services were rendered as a member of the police department, but rather the nature of the services themselves and the circumstances surrounding their rendition. The capacity in which the services were rendered in this case must be determined, not by subjective, but by objective standards.

Furthermore, the assertion that the services performed were at all times motivated solely by friendship is challenged by the undisputed facts of record. In 1931, when Lynch was kidnapped by unnamed enemies and held for ransom, he had never met plaintiff, but a short time after this incident the two were introduced by a mutual friend who was a police fan. Thus at the time the bodyguard services commenced the two men were comparative strangers. The inference which the Civil Service Commission was entitled to draw from this circumstance, and it seems to us the only reasonable one that could be drawn from it, was that Lynch prior to and at the time of his first meeting with plaintiff was anxious to procure a proficient police guard, and his friend Howe, the police fan, in furtherance of that end introduced him to Howe’s police friend, the plaintiff. Plaintiff’s meeting with Lynch, it may reasonably be inferred, was not a casual one from which a friendship later developed, but was for the purpose of making an arrangement whereby he would provide protection, if the occasion arose, from enemies from whom Lynch feared physical violence. It is apparent from plaintiff’s testimony that he himself considered it within the legitimate scope of his duties as a police officer to afford Lynch protection the latter requested and that he was acting, at least at the beginning of this association, in the capacity of police officer. That a friendship later developed was practically inevitable. Being together in such an intimate association, it is a fair inference that they would either become friends or Lynch would seek a new bodyguard. Relationships where a policeman might render services to another which would not be in the nature of police duties would be those unrelated to the requirements of the police service. Such a one assisting in the building of a friend’s house or acting as best man at a friend’s wedding would not be so engaged in the capacity of police officer, but such services are clearly distinguishable from those of a bodyguard which are essentially a police function. No cases are cited tending to support plaintiff’s theory that plaintiff’s services were not rendered “as a police officer.” We are of the opinion that the conclusion of the Civil Service Commission that the services were performed as a police officer is supported by evidence and is not unreasonable or arbitrary.

Plaintiff argues that because he received a civil service promotion after the alleged violation of the departmental rule he cannot be discharged for such prior violation. At the time of the acceptance of the gift in 1937 plaintiff was a lieutenant of police, and in May of 1938 he was promoted to the rank of captain. Plaintiff relies upon the case of Rosenfelder v. Huttoe, 156 Fla. 682, 24 So. (2d) 108, where the defendant had been appointed to the police force as a patrolman in 1930, and in January of 1936 was promoted to the rank of detective. In November of 1936 he was promoted to the rank of detective sergeant, and in July of 1940 was promoted to detective,lieutenant, which position he held until dismissed by the. director of public safety. He was charged, among other things, with having-taken part in several political campaigns in violation of the civil service rules prior to his promotions. Plaintiff relies upon language in the opinion to the effect that when one is re-elected or reappointed to an office or position he is not subject to removal for offenses previously committed. We think that the distinction between this and other cases cited by plaintiff and the instant case is that in the former the original offenses were open and notorious, whereas in the instant case the transgression was surreptitious. So far as the record shows, the only persons having any knowledge of the gift were plaintiff and Lynch, it having been delivered in cash in a sealed envelope at a time when and place where there were no witnesses. We are not impressed with the argument that any transgression in the past life of a civil service employee must be discovered by the Civil Service Commission prior to promotion else the Civil Service Commission is powerless to discipline an employee for offenses secretly committed, concealed, and discovered only after promotion. We feel that such a rule would be violative of sound public policy and has no support in any authority in this State. On the contrary, in People ex rel. Sweitzer v. Gill, 291 Ill. App. 321, it was held that one could be removed from public office for acts previously committed in another public office.

Plaintiff further argues that there is no proof that the $30,000 gift was for services rendered. It is true that plaintiff testified that he told Lynch he did not expect any compensation for services rendered, but the fact remains that he had rendered valuable and important police service over a long period of time, and it was not unreasonable for the Civil Service Commission to conclude that the payment made to plaintiff .was a gift for this service admittedly performed. Indeed, plaintiff’s own reaction at the time the $30,000 was handed to him would seem to create an inference that he considered it in recognition of services rendered, as indicated by his statement: “Jack, you know that anything I have done for you, I never expected to be repaid.”

The Civil Service Commission having lawfully determined that plaintiff violated section 29 of rule 389, he became subject to discipline. The Civil Service Commission pronounced the discipline to be enforced as dismissal from the police force. The Civil Service Act (Ill. Rev. Stat. 1951, chap. 24½, par. 51) [Jones Ill. Stats. Ann. 23.052] provides that a municipal civil service employee may not be removed “except for cause, upon written charges and after an opportunity to be heard in his own defense. ’ ’ The hearing here was regular and in conformity with law in all respects. In the case of Kammann v. City of Chicago, 222 Ill. 63, which involved the removal of an employee in civil service for cause, after an investigation of written charges before the Civil Service Commission, the court pointed out that the statute is silent as to what constitutes cause, saying: “Manifestly the right to determine that question is left with the civil service commission. ’ ’ To the same effect are our holdings in Drury v. Hurley, 339 Ill. App. 33, and Joyce v. Board of Education, 325 Ill. App. 543. In view of our conclusion it is unnecessary to decide whether plaintiff’s conduct was violative of the other rules referred to in the complaint. We hold that the trial court erred in vacating the order' of discharge entered by the Civil Service Commission, and said judgment of the Superior Court of Cook County is reversed.

Judgment reversed.