Scatchell v. Board of Fire & Police Commissioners for Melrose Park

2022 IL App (1st) 201361

SECOND DIVISION

September 30, 2022

No. 1-20-1361

_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________

)

JOHN SCATCHELL, ) Appeal from the

Plaintiff-Appellant, ) Circuit Court of

) Cook County

)

v. ) 18-CH-16150

)

THE BOARD OF FIRE AND POLICE COMMISIONERS )

FOR THE VILLAGE OF MELROSE PARK; DIRECTOR )

SAMUEL PITASSI; DEPUTY CHIEF MICHAEL )

CASTELLAN; THE VILLAGE OF MELROSE PARK )

COMMISSIONER MICHAEL CAPUTO; )

COMMISSIONER PASQUALE ESPOSITO, )

and COMMISSIONER MARK RAUZI, ) Honorable

Defendants-Appellees. ) Pamela McLean Meyerson,

) Judge Presiding

)

_____________________________________________________________________________

JUSTICE ELLIS delivered the judgment of the court, with opinion.

Justices Howse and Cobbs concurred in the judgment and opinion.

OPINION

¶1 Plaintiff John Scatchell was a police officer for the Village of Melrose Park. In late

2017, he went on paid sick leave to recuperate from an injury to his neck, back, and arm he

suffered while on duty, which left him with pain and numbness. Shortly after he went on leave,

however, someone tipped off the Melrose Park Police Department that he was out hunting when

No. 1-20-1361

he should have been at home resting. The department began investigating if he was running afoul

of the sick leave policy. Later, an Illinois conservation police officer watched Scatchell and

several other men shooting shotguns while waterfowl hunting in a boat Scatchell owned.

¶2 One of those other men was Vito Scavo, the former Melrose Park police chief and a

convicted felon. When the boat came ashore, the conservation officer confronted Scatchell and

Scavo; the officer already knew that Scavo could not legally possess a gun. When the officer

asked Scatchell if he had seen Scavo shooting, Scatchell demurred; he said he could not say one

way or the other if Scavo held or fired a shotgun. Having watched Scatchell and Scavo shoot in

the same boat together for more than 90 minutes, the conservation officer did not believe him.

¶3 Neither did defendant here, the Board of Fire and Police Commissioners for the

Village of Melrose Park (Board). After the department brought disciplinary charges against

Scatchell, the Board held a multi-day hearing to determine if he had broken department policies.

When the department ordered Scatchell to testify at that hearing, he asserted his fifth amendment

right to remain silent and refused to take the stand, fearful that anything he said might be used to

criminally prosecute him for the incident with Scavo. See U.S. Const., amend. V. The

department added a charge of insubordination, and the Board later determined that he violated

numerous policies and terminated him.

¶4 Scatchell appealed to the circuit court of Cook County and argued, among other

things, that he was terminated because he relied upon his fifth amendment right. That court

upheld the Board’s decision, and Scatchell appealed. He again insists that he was fired because

he asserted his constitutional right to remain silent, but he fails to appreciate that he was immune

from criminal prosecution once the Village placed him in a situation where he had to answer its

questions or risk losing his job. While an officer cannot be fired for asserting his right to remain

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silent, he risks being dismissed for insubordination when he refuses to answer questions about

his job duties, as long as those answers cannot be used to prosecute him. That is what happened

here, and because the evidence amply supports the Board’s findings that Scatchell violated other

departmental policies, we affirm.

¶5 BACKGROUND

¶6 John Scatchell joined the Melrose Park Police Department in 2012. In February 2015,

he was injured while on the job when he and another officer physically detained someone outside

Gottlieb Hospital. After the incident, he felt pain in his back and neck. The injury prevented

Scatchell from working for a while, but he returned to full duty in April that same year. In late

October 2017, the pain returned. Scatchell went to see Dr. Maryam Sandoval, his primary care

physician, who gave him a note advising him to rest at home. At that point, Scatchell went on

departmental paid sick leave to rest and recover.

¶7 The Village of Melrose Park (Village) prohibits officers on sick leave from

participating in activities “which may impede recovery from the injury or illness” that prompted

their leave. On November 14, 2017, a few days after Scatchell went on leave, someone slid a

note under Deputy Chief Michael Castellan’s office door. The note accused Scatchell of going

hunting while on sick leave and alleged that he was receiving preferential treatment because of

his family connections in the department. Melrose Park Police began to investigate Scatchell.

¶8 In late November 2017, Melrose Park Police Sgt. Anthony Caira called his

counterpart, Sgt. David Wollgast, at the Department of Natural Resources Conservation Police

Department. Caira told Wollgast he believed that Scatchell and Vito Scavo—the former police

chief in Melrose Park and a convicted felon—were going hunting in a nearby area. Wollgast told

one of his officers, William Bergland, to be on the lookout for both men.

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¶9 On November 20, 2017, at about 7 a.m., Bergland saw Scatchell and Scavo together

in a boat with a duck blind, waterfowl hunting on a small lake near Oswego. From approximately

230 yards away, Bergland watched both men with a pair of binoculars for between 90 and 120

minutes. During that time, Bergland saw both Scavo and Scatchell shoot their shotguns several

times. The record indicates that they were with several other men at the time.

¶ 10 When Scavo and Scatchell came ashore, Bergland met with them. Bergland then

asked Scatchell if he had seen Scavo shooting; Scatchell responded that he “could not say

whether he did or not.” Bergland asked Scatchell the same question again, after telling him that

he had been watching the boat for a long time. Scatchell said something to the effect that “we’re

all law enforcement here” and again did not say if he had or had not seen Scavo firing a gun.

Although Scatchell was polite during the interview, Bergland did not believe he was telling the

truth. When Bergland asked Scavo if he had been firing a shotgun, however, Scavo admitted that

he had been.

¶ 11 The next day, November 21, Scatchell sent Dr. Sandoval an e-mail complaining of

continued pain and numbness in his neck and arm. A few days later, Scatchell sent another e-

mail, asking Sandoval to provide a note allowing him to stay off work but to allow him light

exercise.

¶ 12 In January 2018, department leadership, along with one of the Village’s attorneys,

interviewed Scatchell as part of an investigation in the incident with Scavo. But they first

provided Scatchell with this written warning:

“We received information that you may have been involved in a situation where a

felon was in possession of and used a firearm. We are conducting an investigation

into the allegations that were reported to us.

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You are hereby advised that you are given immunity from criminal

prosecution on the basis of your answers to the questions you are asked today.

Stated another way, nothing you say in this investigation will be given to any

Illinois or federal law enforcement agents or offices.

Additionally, nothing that you say during the interrogation today can or

will be used against you in any criminal proceeding.

Your statements will not be disclosed to them at any time or in any

investigation or criminal proceeding.

Having been given immunity as set forth above, you are hereby warned

that because of that immunity, you may not refuse to answer the questions on the

ground that the answers may incriminate you. Accordingly, if you refuse to

answer the questions, you will be subject to discipline up to and including your

dismissal for failing to comply with our directive that you answer our questions

related to this investigation.”

¶ 13 Scatchell signed the bottom of the notice, acknowledging that he received and fully

understood it. The word “Garrity” is written on the top of the notice. After being given the

notice, Scatchell answered the Village attorney’s questions.

¶ 14 Scatchell said he was injured in 2015 but that the pain returned to his neck and arm in

October or November 2017. He went to see Dr. Sandoval, who wanted him to “play it cautious”

because of the prior injury. Despite his taking some medications, the pain and numbness

persisted, Scatchell said, so he went for further tests. Dr. Sandoval told him to rest at home.

Around November 9, 2017, he gave his supervising sergeant a note about the injury and went on

sick leave.

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¶ 15 Scatchell said he did not believe he had to stay at home the entire time while on sick

leave, although he later heard “through the grapevine” that Castellan believed he was supposed

to. Instead, Scatchell interpreted Sandoval’s note as requiring resting but that he could “go about

my everyday normal life.”

¶ 16 Scatchell admitted he was an avid waterfowl hunter and normally went hunting most

days during the season, which ran in October and November. In November 2017, he did not tell

Sandoval he was going hunting because “it never came up in conversation.” In total, Scatchell

said he went hunting at least 5—and perhaps as many as 10—times in late 2017 after his neck

and back began to hurt.

¶ 17 Scatchell also acknowledged he was listed as a “guide” for a company called “IDecoy

Guide Services” (IDecoy), which was a company he started with Scavo. Scatchell described it as

“Scavo’s company” but said he was “in the capacity to guide with him.” He also admitted he did

not seek approval from the department to work with IDecoy. Scatchell stated that he did not

consider IDecoy employment to be “work” because he “didn’t make any revenue off of it.”

Scatchell also said he knew Scavo was a felon and that, as a felon, it was illegal for him to use a

firearm while hunting.

¶ 18 Scatchell said that in November 2017 he owned a boat with a duck hunting blind,

which conceals the shooter, built on it. He described the boat as approximately 21 feet long with

the blind and 6 feet wide. On November 20, 2017, he left his house at around 4 a.m. to go duck

hunting with some friends, including Scavo. When they arrived, the men got the boat ready,

loaded it up, and went out onto the lake to prepare for the day. The men—there were four of

them, including Scatchell and Scavo—and one boy then went hunting for an hour or two. When

asked if he saw Scavo shoot or possess a firearm, Scatchell repeatedly said, in one form or

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another, “not to my knowledge, no.”

¶ 19 On March 27, 2018, Police Director Samuel Pitassi and Castellan filed 12 counts of

disciplinary charges against Scatchell with the Board. On May 10, 2018, Scatchell (through

counsel) filed an answer to the charges. He also attached a “true and correct copy” of the

transcript of his interrogation with investigators to the answer as an exhibit.

¶ 20 The Board held a multi-day evidentiary hearing into the charges, beginning on

October 2, 2018. The Village first called Dr. Sandoval to testify. She said that she began treating

Scatchell in 2017, though she was aware he had been injured in 2015. In October 2017, Scatchell

told her he had awakened one morning with severe pain on his right side that radiated down his

shoulder and to his arm. Shortly after seeing the doctor, Scatchell e-mailed her, requesting a

doctor’s note for his job. In that e-mail, Scatchell continued to complain of pain. Sandoval

provided him with a note saying he was in active treatment and told to rest at home.

¶ 21 Sandoval said she received another note on November 21, 2017, in which Scatchell

said he still had considerable pain and numbness. He told her he had not engaged in any activity

other than stretches and applying hot and cold compresses. A few days later, Sandoval prepared

another note for Scatchell, allowing him to remain off work but permitting him to resume light

exercise and walk outside his home.

¶ 22 The hearing was continued to October 22, 2018. At that hearing, the Village attorney

told the Board it intended to call Scatchell to testify. The following exchange occurred:

“MR FOWLER [(COUNSEL FOR THE VILLAGE)]: *** [W]e could

call Officer Scatchell.

MR COOPER [(COUNSEL FOR SCATCHELL)]: ***Officer Scatchell

has a right not to incriminate himself. So Officer Scatchell will not take the stand.

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***

MR FOWLER: We call Officer Scatchell. And I would remind Officer

Scatchell that on January 9th, he was specifically given a Garrity warning where

he was required to answer questions, ordered to answer questions, and was given

the appropriate Garrity warning at the time. And I would ask Deputy Chief

Castellan to now verbally renew the Garrity warning that Officer Scatchell was

given on January 9th, 2018.

***

MR COOPER: So the Garrity has no applicability to an administrative

hearing. *** There is no applicability of Garrity to this proceeding. [Scatchell]

has a Fifth Amendment right not to incriminate himself. And the only party—or

let me rephrase it. The only one who can call him as a witness is me. Not Mr.

Fowler. I have yet to make a decision as to whether or not Officer Scatchell will

give testimony. But he will not take the stand at this point.

***

MR FOWLER: Deputy Chief Castellan, would you give Officer Scatchell

an order to take the stand and answer questions pursuant to his Garrity warning?

DEPUTY CHIEF CASTELLAN: John.

OFFICER SCATCHELL: Yes.

DEPUTY CHIEF CASTELLAN: I order you to take the stand and answer

all questions truthfully and honestly.

OFFICER SCATCHELL: At this time I assert my Fifth Amendment

right.”

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¶ 23 The Board asked the parties to file written briefs discussing the consequences, if any,

of Scatchell’s refusal to testify.

¶ 24 Three days later, the hearing resumed. The Village sought to add a disciplinary

charge for insubordination because Scatchell refused to follow Castellan’s order.

¶ 25 Scatchell contended the charge was improper because Scatchell had a right not to

incriminate himself and, accordingly, could refuse to testify about the incident with Scavo. When

questioned by the Board, Scatchell’s attorney reiterated that, even if Castellan advised Scatchell

that the answers he gave could not be used against him in criminal proceedings, Scatchell still

would not answer questions and would continue to assert his fifth amendment privilege to remain

silent.

¶ 26 The Village, meanwhile, argued the order to testify was proper and that Scatchell had

immunity to testify, meaning he had no good reason not to take the stand. If he refused, the

Village argued, the Board could draw a negative inference against him. Scatchell agreed on this

last point but remained steadfast in his refusal to testify. The Board allowed the Village to add

the amended charge.

¶ 27 The Village rested its case, arguing that Dr. Sandoval’s testimony, Scatchell’s

admissions in his interrogation (which were attached to his answer), and the negative inference

the Board could draw against him proved he had violated department polices. Scatchell moved

for a directed finding, and the Board took his motion under advisement.

¶ 28 For his case, Scatchell first called James Paoletti, an expert on police procedures.

Paoletti opined that Scatchell may have violated two Department polices (the basis of counts 1

and 11 against him) but that he did not violate the remaining counts. Paoletti believed a 10- to

30-day suspension without pay was an appropriate punishment.

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¶ 29 Scatchell’s next expert, Bruce Edenson, was a firearms expert who testified that a

shotgun would not have subjected Scatchell to severe recoil energy, suggesting that Scatchell’s

hunting would not have aggravated any existing injury. Scatchell also called Bergland, who

detailed the incident with Scavo and his interview with Scatchell.

¶ 30 The Village called David Lombardo in rebuttal, who said generally that a shotgun has

recoil.

¶ 31 The Board issued written findings and a decision on December 6, 2018. It found in

favor of Scatchell on three counts, and two counts were withdrawn. But the Board found

Scatchell guilty of eight counts. In a seven-page opinion, the Board concluded that Scatchell

(1) Abused the Department’s sick leave policy “by engaging in a hobby or

recreational activity which could impede [his] recovery from illness or injury”

because he went hunting on November 20, 2017, after Dr. Sandoval advised him to

rest at home and recover (the basis of count I);

(2) Violated Department policy in not reporting his contact with Bergland on

November 20 (count II);

(3) Was dishonest when he told the Department he gained 50 pounds because he

was inactive, which was contradicted by Dr. Sandoval’s testimony (count III);

(4) Gave false information to Bergland when he said he did not see Scavo firing a

shotgun on November 20 (count IV);

(5) Engaged in conduct unbecoming a law enforcement officer by abusing the

sick leave policy and being dishonest about the incident with Scavo (count VIII);

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(6) Assisted Scavo in possessing a firearm on the November 20 hunting trip,

despite the fact that Scatchell knew Scavo was a convicted felon and could not legally

possess a firearm (count IX);

(7) Engaged in outside employment by operating a hunting guide business with

Scavo without first seeking the Department’s approval, which violated departmental

policies (count XI); and

(8) Was insubordinate and disobeyed a direct order when he refused to testify in

the hearing after Castellan commanded him to do so, despite being informed that any

answers he gave at the hearing were immune from prosecution (count XIII). On this

count, the Board noted that, once Scatchell was advised that his testimony could not

be used against him, the Village had a “right to inquire into the charges.” Scatchell’s

decision not to testify also frustrated the Board’s efforts as a factfinder.

¶ 32 The Board determined that cause existed to discharge Scatchell and ordered him

removed from office the next day.

¶ 33 Scatchell filed a complaint in the circuit court of Cook County for administrative

review. After the parties fully briefed the issues in the initial complaint, Scatchell sought leave to

amend the administrative record, which the circuit court denied. Scatchell later sought leave to

file an amended complaint, adding eight new counts and several new defendants. The circuit

court denied Scatchell leave to amend his complaint and affirmed the Board’s decision in full.

Scatchell now appeals.

¶ 34 ANALYSIS

¶ 35 This case comes to us on administrative review. Appeals from administrative hearings

are governed by the Administrative Review Law. See 735 ILCS 5/3-101 to 3-113 (West 2020).

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We review the decision of the Board, not the circuit court. Marconi v. Chicago Heights Police

Pension Board, 225 Ill. 2d 497, 531 (2006). Our review extends to all questions of fact and law

the entire record presents, but judicial review is strictly limited to the administrative record. Id. at

531-32; 735 ILCS 5/3-110 (West 2020). We may not consider new or additional evidence

beyond what was originally presented to the Board. 735 ILCS 5/3-110 (West 2020); Marconi,

225 Ill. 2d at 532.

¶ 36 The “findings and conclusions of the administrative agency on questions of fact shall

be held to be prima facie true and correct.” 735 ILCS 5/3-110 (West 2020). It is within the

Board’s province to assign the appropriate weight to the evidence, resolve conflicts presented by

it, and determine the credibility of the witnesses. Prawdzik v. Board of Trustees of the Homer

Township Fire Protection District Pension Fund, 2019 IL App (3d) 170024, ¶ 36. We may not

reweigh the evidence or make an independent determination of the facts. Hoffman v. Orland

Firefighters’ Pension Board, 2012 IL App (1st) 112120, ¶ 18.

¶ 37 At the same time, our deference to the Board is not limitless. Ashmore v. Board of

Trustees of the Bloomington Police Pension Fund, 2018 IL App (4th) 180196, ¶ 41. There must

be competent evidence in the record to support the Board’s decision. Miller v. Board of Trustees

of the Oak Lawn Police Pension Fund, 2019 IL App (1st) 172967, ¶ 40. If the record contains

evidence that supports the Board’s factual conclusions, then we will not upset those findings,

even if an opposite conclusion is also reasonable. Robbins v. Board of Trustees of the

Carbondale Police Pension Fund, 177 Ill. 2d 533, 538 (1997); Abrahamson v. Illinois

Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992).

¶ 38 The applicable standard of review depends on the question presented. Marconi, 225

Ill. 2d at 532. We will reverse on a question of fact only if the conclusion the Board reached is

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against the manifest weight of the evidence, meaning the opposite conclusion is clearly evident.

Id. On the other hand, we review pure questions of law de novo. Id. A question of mixed law and

fact is reviewed under the clearly erroneous standard. AFM Messenger Service, Inc. v.

Department of Employment Security, 198 Ill. 2d 380, 395 (2001).

¶ 39 I. The Factual Findings and Decision to Terminate Scatchell

¶ 40 Appellate review of an administrative agency’s decision to discharge an employee

generally has two stages. First, we determine if the agency’s factual findings are contrary to the

manifest weight of the evidence, as noted above. Siwek v. Police Board of Chicago, 374 Ill. App.

3d 735, 737-38 (2007). If the record supports the Board’s findings, we decide if those findings

provide a sufficient basis for the agency’s conclusion that cause exists to terminate the employee.

Id. It is not our job to determine if we would have been more lenient; instead, our review is

limited to whether the Board acted unreasonably or arbitrarily by selecting a type of discipline

that was inappropriate or unrelated to the needs of the service. Krocka v. Police Board of

Chicago, 327 Ill. App. 3d 36, 48 (2001).

¶ 41 A. Board’s Factual Findings

¶ 42 We first review the Board’s factual findings that Scatchell violated departmental

policies. The Board found against Scatchell on eight counts. We discuss them individually.

¶ 43 1. Count I: Abuse of Sick Leave

¶ 44 The Department’s rules forbade Scatchell from engaging in a hobby or recreational

activity while on sick leave that may impede his recovery. It is undisputed that Scatchell’s

injured neck and upper back prompted him to take sick leave to recuperate. His doctor, Dr.

Sandoval, advised him to stay at home and rest. The evidence is clear that, while on sick leave,

he went hunting numerous times, during which he fired a shotgun. While there was conflicting

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expert evidence about whether firing a shotgun could exacerbate the injury, the Board was in the

best position to decide whom to believe. It concluded that firing a shotgun may have impeded

Scatchell’s recovery and, as such, it violated the department’s sick leave policy. We cannot say

that the opposite conclusion is clearly evident, and thus we must uphold that determination. See

Marconi, 225 Ill. 2d at 534.

¶ 45 2. Count II: Failure to Report Contact with Officer Bergland

¶ 46 Scatchell concedes that he did not inform his superiors about the incident on

November 20, 2017, when Officer Bergland confronted him for hunting with Scavo. He claims,

however, that since he was not the “target” of Bergland’s investigation, he had no duty to report

it to his department supervisor.

¶ 47 But the policy required Scatchell to report any contact with law enforcement that

might result in criminal prosecution; it was not limited to prosecutions of the officer himself. As

the Village notes, Scatchell knew that Scavo was a felon who was illegally possessing a firearm,

and he knew that the conservation officer thought Scavo had illegally fired the shotgun. So it was

obviously a contact with law enforcement that might lead to a criminal prosecution of Scavo, at a

minimum. The Board, then, had more than sufficient basis to find Scatchell in violation of the

rule requiring him to report this interaction to his employer.

¶ 48 3. Count III: Making False Statements During the Investigation

¶ 49 In his interrogation, Scatchell told the Village that he gained 50 pounds because he

was unable to do any kind of exercise. This claim is not contradicted in any way by the record.

The record thus does not support the Village’s accusation, and the Board’s finding, that

Scatchell’s statement was false. The Board’s finding on count III was against the manifest

weight of the evidence.

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¶ 50 4. Count IV: Making False Statements to Officer Bergland

¶ 51 The evidence amply supports the Board’s finding that Scatchell lied to Bergland

during Bergland’s investigation of the incident on the boat. For at least 90 minutes, Bergland

watched Scatchell and Scavo hunt using shotguns. At the time, they were in Scatchell’s small

boat, which he described as being approximately 21 feet long and 6 feet wide. When Bergland

confronted Scatchell after he and Scavo came ashore, Scatchell told him that he “wasn’t sure” if

Scavo had held a gun.

¶ 52 Bergland did not believe him, and neither did the Board. We have no basis to

overturn the Board’s finding on this point; it is improbable—to put it mildly—that Scatchell did

not know if Scavo, standing only a few feet away from him in the small boat, was handling, if

not firing, a shotgun along with everyone else in the boat. The Board’s conclusion that Scatchell

made a false statement to Bergland is not against the manifest weight of the evidence.

¶ 53 5. Count VIII: Conduct Unbecoming an Officer

¶ 54 Department policies prohibit conduct that is “contrary to good order, efficiency or

morale, or tends to reflect unfavorably upon [the] department or its members.” The Board

concluded that Scatchell’s violation of the sick leave policy, coupled with his behavior

surrounding the incident with Scavo and Bergland, was conduct unbecoming an officer. For the

reasons already discussed, its conclusion is amply supported by the evidence.

¶ 55 6. Count IX: Violating Department Policies for Allowing Scavo to Fire a Shotgun

¶ 56 Scatchell admitted, in his interview, that he knew Scavo was a convicted felon. He

also knew, then, that it was illegal for Scavo to possess or fire a gun. Scatchell makes much of

the fact that Bergland said it was “100 percent not impossible” that Scatchell did not actually

know Scavo was shooting. But being within the realm of possibility is a lot different than being

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likely or probable. The Board found that Scatchell did, in fact, know that Scavo was handling

and firing a shotgun—an obviously illegal act for a felon—and we are in no position to find that

the opposite conclusion is clearly evident. Indeed, the opposite conclusion—that Scatchell had

no idea whether another man in his rather small boat was using a shotgun over a period of 90

minutes to 2 hours—strikes us as far-fetched at best. We uphold this finding as well.

¶ 57 7. Count XI: Starting a Secondary Job Without Prior Approval

¶ 58 As for the claim that Scatchell had outside employment without Department approval,

Scatchell concedes that he was listed as a “guide” for IDecoy but claims there is no evidence he

provided guide services. He is mistaken. In his interrogation, he admitted that he and Scavo

accepted money on several dates. Scatchell said he did not consider it work because he did not

“make any revenue off of it.” But he admitted that the money collected went to “hunting

equipment.” That sounds like the way a normal business operates. Since Scatchell was listed as a

guide, the evidence supported the Board’s factual conclusion he was an employee of IDecoy.

¶ 59 Of course, Scatchell could have other employment, so long as it was approved by the

department. But Scatchell admitted he did not have approval to work for IDecoy. Scatchell’s

own expert, Paoletti, opined that he likely violated the secondary-employment policy. The Board

came to the same conclusion, and that finding was not manifestly erroneous.

¶ 60 8. Count XIII: Disobeying a Direct Order

¶ 61 That brings us to the final—and perhaps most contentious—count, insubordination

for disobeying a direct order from a superior officer. Scatchell contends that he was fired, at least

in part, because he refused to waive his fifth amendment privilege against self-incrimination

when the Village called him to testify at the administrative hearing. The Village disagrees,

saying that Scatchell was given an order to answer questions about his job after being told that

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any answers he gave would not be used to prosecute him, refused that order, and then was fired

(among other reasons) for insubordination.

¶ 62 The Board ultimately concluded that Scatchell had immunity and accordingly that the

Village could force him to testify. Because whether the Village could legally order Scatchell to

testify is a question of pure law, our review of this issue is de novo. Marconi, 225 Ill. 2d at 532.

¶ 63 The fifth amendment states that “[n]o person *** shall be compelled in any criminal

case to be a witness against himself.” U.S. Const., amend. V. This privilege is not absolute,

however; witnesses can be granted immunity to compel their testimony. When the government

grants a witness immunity from using compelled testimony and evidence derived from it in a

criminal prosecution against them, the privilege the fifth amendment affords the witness is

satisfied, and the government can force that person to testify even to self-incriminating

statements. See Kastigar v. United States, 406 U.S. 441, 448 (1972). This is known as “use and

derivative use immunity.” (Internal quotation marks omitted.) Id. at 443.

¶ 64 A grant of immunity seeks to reconcile the right of the government to compel

testimony with the constitutional privilege against self-incrimination. People v. Gaines, 188 Ill.

App. 3d 451, 455 (1989). Use and derivative-use immunity leaves the witness in substantially the

same position as if the witness had claimed the fifth amendment privilege. Id. A grant of

immunity must afford protection commensurate with the protection the fifth amendment

privilege against self-incrimination provides. Id.

¶ 65 For example, state law allows the State to grant a witness immunity from prosecution

in exchange for truthful testimony. See 725 ILCS 5/106-1 to 106-3 (West 2018). Once their

testimony is immunized, it cannot be used as the basis of a prosecution against the witness. That

is to say, once the witness has been given immunity, “the reason for the rule permitting a witness

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to refuse to give evidence or to be a witness against himself is destroyed, and such privilege

cannot be claimed.” Halpin v. Scotti, 415 Ill. 104, 108 (1953). Immunity statutes appear both at

the state and federal level and have long been upheld. See, e.g., Brown v. Walker, 161 U.S. 591

(1896); Ullmann v. United States, 350 U.S. 422 (1956).

¶ 66 However, there are other forms of immunity. Relevant here is a unique kind of

immunity for government employees who are being investigated for misconduct by their public

employer, originating in Garrity v. New Jersey, 385 U.S. 493 (1967). There, the United States

Supreme Court held that, when the government forces police officers to answer questions or give

a statement regarding a matter under investigation, the fifth and fourteenth amendments prohibit

the government from using any such statements in a subsequent criminal proceeding against

those officers. Id. at 500.

¶ 67 In Garrity, police officers suspected of fixing traffic tickets were summoned to an

inquiry before the attorney general. Id. at 494. They were warned that, if they did not answer

questions from investigators, they would be dismissed, but if they did answer questions, anything

they said might be used against them later in criminal proceedings. Id. Facing the prospect of

losing their jobs if they kept quiet, the officers answered the questions; their answers were later

used as the basis of a criminal prosecution against them. Id. at 495. The Supreme Court held that,

when placed in a position where the officers had to choose between incriminating themselves or

being fired, any statement they made was coerced and could not be used in a criminal proceeding

against them. Id. at 500.

¶ 68 A year later, a similar situation occurred in Gardner v. Broderick, 392 U.S. 273

(1968). There, a policeman was being investigated by his employer, who wanted to question him

about potential misconduct. Id. at 274. The government ordered the officer to testify and to

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waive any immunity he might have under the law. Id. at 274, 278. The officer refused to do so

and was fired for that action. Id. at 274-75. The Court, relying on Garrity, reversed the

termination, as the combination of compelling the officer both to testify and waive his Garrity

protection left the officer with the choice of asserting his right against self-incrimination or

losing his job—a notion that obviously ran counter to the principles in Garrity. Id. at 278-79; see

also id. at 277 (referring to officer in that situation facing “Hobson’s choice between self-

incrimination and forfeiting his means of livelihood”).

¶ 69 But the Supreme Court also noted that, if the officer “had refused to answer questions

specifically, directly, and narrowly relating to the performance of his official duties, without

being required to waive his immunity ***, the privilege against self-incrimination would not

have been a bar to his dismissal.” (Emphasis added.) Id. at 278.

¶ 70 From this, a principle developed: the government has every right to investigate

allegations of misconduct, even criminal, and force employees to answer questions about the

investigation, so long as the employee has immunity from criminal prosecution on the basis of

their answers. Atwell v. Lisle Park District, 286 F.3d 987, 990 (7th Cir. 2002). Some courts refer

to this as “Garrity immunity.” See, e.g., People v. Haleas, 404 Ill. App. 3d 668, 672-75 (2010).

¶ 71 In Kammerer v. Board of Fire & Police Commissioners of Lombard, 44 Ill. 2d 500,

506 (1970), our supreme court distilled the meaning of this immunity, summarizing the United

States Supreme Court’s decisions in Garrity and Gardner as follows:

“The net of these decisions, as we understand them, is that if a public employee

refuses to testify as to a matter concerning which his employer is entitled to inquire,

he may be discharged for insubordination, but if he does testify his answers may not

be used against him in a subsequent criminal prosecution.” (Emphasis added.)

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¶ 72 The federal courts helpfully break this general concept into two: First, if an employer

threatens adverse employment action for failure to answer, it then follows as a matter of law that

the employee’s statements and their fruits may not be used in subsequent criminal proceedings.

This is best understood as the “application of Garrity immunity.” (Internal quotation marks

omitted.) Sher v. United States Department of Veterans Affairs, 488 F.3d 489, 503 (1st Cir.

2007). Second, having been afforded protection against self-incrimination by this immunity, the

employee may be subject to adverse employment action if they remain silent. This is the

“consequences of Garrity immunity.” (Internal quotation marks omitted.) Id.

¶ 73 Although Garrity does not expressly describe what kind of immunity it bestows, our

courts have put it on par with use and derivative-use immunity. Haleas, 404 Ill. App. 3d at 674-

76 (“Because the use of compelled testimony in the Garrity context also directly implicates the

individual’s fifth amendment right against self-incrimination, we agree that the protections

afforded by Kastigar are available to defendants whose statements have been suppressed under

Garrity.”). The federal circuits agree. See, e.g., Sher, 488 F.3d at 501-02; In re Grand Jury

Proceedings, 45 F.3d 343, 348 (9th Cir. 1995); In re Grand Jury Subpoenas, 40 F.3d 1096,

1102-03 (10th Cir. 1994).

¶ 74 As with the well-known Miranda rights that police must provide the suspect of a

crime before questioning (see Miranda v. Arizona, 384 U.S. 436 (1966)), employees who are

being investigated are sometimes given “Garrity warnings” before an interrogation. The

warnings are meant to inform them that the answers they give or the fruits thereof cannot be used

against them in a criminal prosecution but that, if they refuse to answer questions, they may be

punished by their employer, including being terminated. See, e.g., People v. Smith, 399 Ill. App.

3d 534 (2010); Haleas, 404 Ill. App. 3d at 673-74.

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¶ 75 Here, Scatchell received written Garrity warnings on January 9, 2018, immediately

before he was interviewed by Village investigators about his possible misconduct. Scatchell

signed the written warning sheet, then answered the investigator’s questions. Once the Village

formally charged him with misconduct, the matter proceeded to a hearing before the Board.

¶ 76 On October 22, 2018, the Village announced its intention to call Scatchell to the

stand, as it had the previous April when the hearing initially commenced before a continuance. In

the presence of the Board and Scatchell (with counsel present), the Village called Scatchell to the

stand and acknowledged that the warnings he was given in January still applied. Scatchell’s

counsel argued, however, that Garrity did not apply at the administrative hearing and informed

the court that Scatchell would not take the stand. When Deputy Chief Castellan ordered him to

testify, Scatchell asserted his fifth amendment right and refused to testify. This refusal to testify,

as noted earlier, led to the amended charge of insubordination.

¶ 77 Before us, Scatchell claims that he was fired not for insubordination but for asserting

his fifth amendment right, placing him in Gardner’s protective ambit. But he misreads Gardner.

It is true, as he argues, that Gardner stands for the proposition that a police officer may not be

fired solely for asserting his fifth amendment right against self-incrimination. But Gardner

involved a scenario where that was precisely the situation the officer faced: he was ordered to

both testify and waive any immunity for testifying, at the risk of losing his job if he refused to do

either. See Gardner, 392 U.S. at 274, 278. In other words, he was forced to testify without the

protections afforded by Garrity, leaving him with the “Hobson’s choice” (id. at 277) of

answering questions that could be used against him in a criminal prosecution, on the one hand, or

losing his job, on the other. The Supreme Court refused to allow this end-run around Garrity

protection.

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¶ 78 That is not what happened here. Neither the Board nor the Village ordered Scatchell

to waive his Garrity immunity; to the contrary, they repeatedly told him that he would be

protected by Garrity immunity and thus had no fear of self-incrimination if he testified before

the Board. Scatchell’s right against self-incrimination was never in doubt; it remained intact

because of the immunity afforded him. That, obviously, is the very point of the use or derivative-

use immunity provided by Garrity—to compel officers to truthfully answer questions about their

conduct without the fear that the testimony will be used against them in a criminal prosecution.

Scatchell, then, was found insubordinate because he refused to answer conduct-related questions

even after receiving immunity, just as a witness in a criminal case could be punished for

contempt for refusing to testify after being given immunity for that testimony. See, e.g., People

v. McPherson, 2018 IL App (2d) 170966, ¶ 23.

¶ 79 Scatchell insists that Garrity immunity did not attach for various reasons. For one, he

argues without citation, as he did below, that “it is unclear whether Garrity immunity applies at

the administrative hearing level.” We are not sure why he finds this question unclear; our

supreme court’s seminal decision on this issue, Kammerer, concerned an officer’s refusal to

answer substantive questions at a hearing before the village board of fire and police

commissioners, just as here. See Kammerer, 44 Ill. 2d at 501, 504-05.

¶ 80 Scatchell also complains that the Garrity warnings afforded him were inadequate to

begin with (when he was originally questioned) and were not re-stated at the hearing. But

Garrity is self-executing, attaching as a matter of law when a police officer is ordered by his

public employer to answer questions about his conduct that could incriminate him. See Blunier v.

Board of Fire & Police Commissioners of Peoria, 190 Ill. App. 3d 92, 104 (1989) (“[Garrity]

use immunity attaches automatically as a matter of law and the statements cannot be used,

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regardless of whether immunity has expressly been granted.”); Uniformed Sanitation Men Ass’n

v. Commissioner of Sanitation of New York, 426 F.2d 619, 626 (2d Cir. 1970) (“[T]he very act

*** in telling the witness that he would be subject to removal if he refused to answer was held to

have conferred such immunity.”); United States v. Veal, 153 F.3d 1233, 1239 n.4 (11th Cir.

1998) (noting that Garrity immunity “is Supreme Court-created and self-executing; it arises by

operation of law; no authority or statute needs to grant it”), overruled in part on other grounds by

United States v. Chafin, 808 F.3d 1263 (11th Cir. 2015); Gulden v. McCorkle, 680 F.2d 1070,

1075 (5th Cir. 1982) (under Garrity, “It is the very fact that the testimony was compelled which

prevents its use in subsequent proceedings, not any affirmative tender of immunity.”).

¶ 81 We could imagine a scenario where an officer, without counsel, might face

questioning from his employer and not understand that he is protected by Garrity; after all, most

everyone knows about the right against self-incrimination, but fewer know about Garrity

immunity. We could imagine a scenario where an individual might not know that his testimony

would be immunized and thus would assert the fifth amendment without realizing his or her full

panoply of rights, leading to his or her termination. See Atwell, 286 F.3d at 990 (noting that

unrepresented individuals, unaware of Garrity immunity, “may instinctively ‘take the Fifth’ and

by doing so unknowingly set themselves up to be fired without recourse”). That scenario might

raise other questions of fairness and even constitutional concerns.

¶ 82 But that scenario is not before us. Scatchell was represented by counsel, and the

question of Garrity immunity was the elephant in the room, the topic that dominated the first

October hearing, forcing an adjournment so that the parties could brief the issue, followed by

more argument on this topic when the parties reconvened. Scatchell could not possibly complain

that he was caught off-guard or unaware of the issue, even if his lawyer’s stated understanding of

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Garrity was incorrect.

¶ 83 Simply put, Scatchell was not given the choice between keeping his job or making

statements that could be used against him in a criminal prosecution, like the officer in Gardner.

He was given the choice between truthfully answering questions while enjoying immunity from

the use of his answers, on the one hand, versus refusing to testify (even though given immunity)

and facing the job-related consequences for doing so, on the other. He chose the latter. The

Board properly followed the law, and its factual finding that Scatchell disobeyed the deputy

chief’s direct order was not against the manifest weight of the evidence. We uphold the Board’s

decision on this charge.

¶ 84 B. Cause for Termination

¶ 85 Having upheld the Board’s findings on all but one of the eight charges under review,

we next determine whether those findings provide a sufficient basis for the Board’s conclusion

that cause existed to terminate Scatchell. Siwek, 374 Ill. App. 3d at 737-38.

¶ 86 Cause is “some substantial shortcoming which renders the employee’s continuance in

office in some way detrimental to the discipline and efficiency of the service and which the law

and sound public opinion recognize as good cause for his no longer holding the position.”

(Internal quotation marks omitted.) Department of Mental Health & Developmental Disabilities

v. Civil Service Comm’n, 85 Ill. 2d 547, 551 (1981). In our review, “we may not consider

whether we would have imposed a more lenient disciplinary sentence”; instead, our review “is

limited to a determination of whether the Board acted unreasonably or arbitrarily by selecting a

type of discipline that was inappropriate or unrelated to the needs of the service.” Krocka, 327

Ill. App. 3d at 48.

¶ 87 The record amply supports the Board’s conclusion that Scatchell’s behavior was

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tantamount to cause to fire him. In fact, many of Scatchell’s individual violations alone would

have been enough to establish cause supporting his termination.

¶ 88 Police departments, as paramilitary organizations, require disciplined officers to

properly function, and it is appropriate for those departments to punish officers who violate rules,

regulations, or orders. Siwek, 374 Ill. App. 3d at 738. The Board concluded that Scatchell abused

the department’s sick time policy by going hunting while on leave to heal an injury to his neck

and arm. While there was conflicting evidence about how much recoil a shotgun could create,

the Board was in the best position to decide if Scatchell risked aggravating his injury, and they

concluded he did.

¶ 89 Further, Scatchell engaged in a business with Scavo, moonlighting as a hunting guide

without the department’s approval. Whether Scatchell thought himself an “employee” is

ultimately irrelevant; the Board concluded that he was involved in the business without having

sought the required approval to be. That alone has been enough to terminate someone in a similar

position before. See Weisenritter v. Board of Fire & Police Commissioners of Burbank, 67 Ill.

App. 3d 799, 802 (1978) (affirming dismissal of firefighter who engaged in outside employment

without department’s consent). Violating the Department’s polices on moonlighting and sick

leave is detrimental to the discipline and efficiency of the service and ample cause to terminate

Scatchell.

¶ 90 But more egregiously, Scatchell not only went hunting with a shotgun—he went with

a man he knew was a convicted felon. Then, caught red-handed, he was less than forthcoming to

Bergland, the conservation officer, saying that he could not say “one way or the other” if he saw

Scavo shooting a gun. He said the same thing to investigators who interviewed him about the

incident later. Bergland thought Scatchell was lying, and ultimately so did the Board. We have

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previously held that an officer who lies to his employer can be discharged. See Slayton v. Board

of Fire & Police Commissioners of Streamwood, 102 Ill. App. 3d 335, 338-39 (1981). The key

factor is the matter of the lie and, more specifically, how it directly relates to a police officer’s

duty to the public. Kupkowski v. Board of Fire & Police Commissioners of Downers Grove, 71

Ill. App. 3d 316, 324 (1979).

¶ 91 Police officers, as guardians of the laws, are expected to act with integrity, honesty,

and trustworthiness. Sindermann v. Civil Service Comm’n of Gurnee, 275 Ill. App. 3d 917, 928

(1995). But Scatchell’s actions here are devoid of all three. While the Board recognized that he

had a close relationship with Scavo, that does not change the fact that Scatchell knew Scavo was

a felon and could not have a gun. Despite that, Scatchell took Scavo hunting with him in his

boat. That decision helped empower—at the least—Scavo’s violation of the law. When Bergland

caught and confronted Scatchell about it, he did not own up to his error in judgment.

¶ 92 If that were not enough, the nature of his false statements is extremely concerning. As

an officer of the peace, it is his duty to enforce and uphold the law. Despite that duty, Scatchell

started a business without permission and went hunting with a known felon while on paid sick

leave. This was, as already discussed, disreputable. However, lying about it later to try to cover

up a crime and his own misdeeds makes it inexcusable, and Scatchell acted in an irresponsible

and dishonest manner. Id. at 929.

¶ 93 Last, there is Scatchell’s refusal to testify. We have already explained he was

mistaken when he believed he could assert his right to remain silent without fear of adverse job

action. But our supreme court has also been clear that an officer who has criminal immunity but

refuses to answer questions about his job performance “may be discharged for insubordination.”

Kammerer, 44 Ill. 2d at 506.

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¶ 94 Scatchell emphasizes that he had served as an officer for six years without incident

and continued to serve for an additional 11 months while this case was pending. But this was for

the Board to consider; as noted, even if we were inclined to impose a more lenient sentence—

which we need not decide—we only ask if the Board acted unreasonably or arbitrarily or if the

type of discipline selected was inappropriate or unrelated to the needs of the service. Siwek, 374

Ill. App. 3d at 738. The decision to terminate Scatchell was neither unreasonable nor arbitrary,

and we believe it was appropriate considering the nature and scope of Scatchell’s misconduct.

¶ 95 II. Department’s Alleged Violations of Policies and CBA

¶ 96 Scatchell also claims the Department violated its own policies and the collective

bargaining agreement (CBA) it had with his union, as well as levies several other procedural

challenges. None, however, have any merit.

¶ 97 To begin, Scatchell contends that the investigation into his misconduct violated the

Uniform Peace Officers’ Disciplinary Act (50 ILCS 725/1 et seq. (West 2018)). When Scatchell

was employed, the Act required that, prior to a peace officer being subject to an interrogation,

anyone who filed a complaint against that officer must have the complaint supported by a sworn

affidavit. Id. § 3.8. Since the anonymous note that Deputy Chief Castellan found in his office

was unsworn, it could not be the basis of the investigation into his conduct, Scatchell believes.

¶ 98 The Uniform Peace Officers’ Disciplinary Act requires that, if officers are to be

disciplined, certain procedures must be followed. Sherwood v. City of Aurora, 388 Ill. App. 3d

754, 759 (2009). Section 3.8 requires that a person making a complaint against an officer sign a

sworn affidavit verifying the contents of the complaint. 50 ILCS 725/3.8(b) (West 2018).

However, this section only applies when “an officer is subjected to an interrogation within the

meaning of this Act.” (Emphasis added.) Id. § 3 (noting that sections 3.1 and 3.8 only apply

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when officer is interrogated).

¶ 99 It does not apply in the situation here, where the anonymous tip prompted Melrose

Park police to begin investigating Scatchell. See Roman v. Cook County Sheriff’s Merit Board,

2014 IL App (1st) 123308, ¶ 98. Only after Bergland, the conservation officer, saw Scatchell

hunting and shooting a shotgun with Scavo, a convicted felon, did investigators decide to

question Scatchell. At the beginning of Scatchell’s interrogation, he signed a warning that stated

the Village was investigating Scatchell for being “involved in a situation where a felon was in

possession of and used a firearm. We are conducting an investigation into the allegations that

were reported to us.” It was not the anonymous tip that prompted police to interrogate Scatchell;

it was Bergland. Since Scatchell does not challenge Bergland’s actions here, there was no

violation of the Uniform Peace Officers’ Disciplinary Act.

¶ 100 Scatchell also claims the investigation violated his constitutional rights because the

department “never had reasonable suspicion” to justify an internal investigation. But this is easily

discarded; the fourth amendment (which we presume Scatchell is trying to use, he does not

specify) protects two types of expectations, one involving “searches,” the other “seizures.” See

Soldal v. Cook County, 506 U.S. 56, 63 (1992). To “search” means to look for that which is

concealed, thereby infringing upon someone’s expectation of privacy. People v. Raibley, 338 Ill.

App. 3d 692, 699 (2003) (citing Soldal, 506 U.S. at 63).

¶ 101 The department did not need to have “reasonable suspicion” to begin investigating

Scatchell, because an investigation is not a search. Of course, an investigation may include a

search and often does. But one is not the other. To the extent the department “searched” for

anything, all Bergland did was look to see if Scatchell was hunting in an open area while he was

on sick leave, only to find that he was—and with Scavo, a convicted felon. It is well established

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that “the special protection accorded by the Fourth Amendment to the people in their ‘persons,

houses, papers, and effects,’ is not extended to the open fields.” Hester v. United States, 265 U.S.

57, 59 (1924) (quoting U.S. Const., amend. IV); Oliver v. United States, 466 U.S. 170, 176

(1984).

¶ 102 Accordingly, we also decline Scatchell’s suggestion to apply the exclusionary rule

(United States v. Calandra, 414 U.S. 338, 347 (1974)) to this case. Even if there was a fourth

amendment violation here (there is not), we have found no authority, and Scatchell has not cited

any, where the exclusionary rule was applied in an administrative proceeding. To the contrary,

the weight of precedent suggests the rule would not apply in these kinds of cases. See, e.g.,

Grames v. Illinois State Police, 254 Ill. App. 3d 191, 199-201 (1993) (discussing cases and

holding that exclusionary rule should not apply to officer misconduct proceedings: “The damage

to the operation of an effective State Police force would far outweigh any benefit which would

result from application of the exclusionary rule.”).

¶ 103 Next, Scatchell alleges the investigation into his abuse of the department’s sick leave

violated the CBA between the Village and the Fraternal Order of Police lodge of which Scatchell

is a member. He argues that section 5.3 of the CBA (which Scatchell has included in the

appendix to his brief) does not allow any inquiries into an officer’s sick leave until after the

officer has been on leave for at least one month. Since the investigation into his abuse of the sick

leave policy began before that 30-day clock ran, he suggests the whole investigation is void.

However, the Board’s authority—derived from statute—cannot be arrogated by a collective

bargaining agreement. Parisi v. Jenkins, 236 Ill. App. 3d 42, 52 (1992). Even if the CBA applied

here, it could not trump the Board’s ability to investigate and adjudicate potential misconduct.

¶ 104 Scatchell also complains that the Department violated its standard operating

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procedures during its investigation into his misconduct. But this argument is thrice forfeited; it

was not raised before the Board or in the trial court, and before us, Satchell does not cite any

evidence in the record that supports this argument. See Keeling v. Board of Trustees of the Forest

Park Police Pension Fund, 2017 IL App (1st) 170804, ¶ 45 (party forfeits administrative review

of issues and defenses not placed before administrative agency); People v. Universal Public

Transportation, Inc., 2012 IL App (1st) 073303-B, ¶ 50 (party that fails to cite pages in record in

support of contentions in brief forfeits argument). “A reviewing court is entitled to have issues

clearly defined with pertinent authority cited and cohesive arguments presented [citation], and it

is not a repository into which an appellant may foist the burden of argument and research

[citation]; it is neither the function nor the obligation of this court to act as an advocate or search

the record for error [citation].” Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993).

¶ 105 III. Violation of Open Meetings Act

¶ 106 Next, Scatchell ask us to void the Board’s decision because, he believes, the Board

violated the Open Meetings Act (5 ILCS 120/1 et seq. (West 2018)). Section 2 of the act requires

that meetings of public bodies be held in public, subject to certain exceptions. See id. § 2.

¶ 107 The record here reveals that, on December 4, 2018, the Board posted a public notice

of a hearing on Scatchell’s matter two days later, on December 6. The Board’s written findings

and decision to terminate Scatchell were entered on that date. However, there is nothing else in

the record about what transpired at the December 6 meeting.

¶ 108 That also means, however, there is no indication the meeting was not open to the

public. To prove it was not, Scatchell asks us to take judicial notice of a Freedom of Information

Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)) response from the Village, which he has attached

to the appendix of his brief. That response indicates there were five pages of records relevant to

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the request, but Scatchell has attached only the handwritten minutes of the meeting. Those

minutes show the Board adjourned to executive session to discuss the charges against Scatchell.

In his eyes, this proves the Board made the decision to terminate him privately, not publicly.

¶ 109 Rule 201 of the Illinois Rules of Evidence permit a court to take notice of

“adjudicative facts.” Ill. R. Evid. 201(a) (eff. Jan. 1, 2011). A judicially noticed fact must be one

not subject to reasonable dispute, in that it must either be (1) generally known within the

territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be questioned. Ill. R. Evid. 201(b) (eff. Jan.

1, 2011).

¶ 110 The Administrative Review Law allows review of all questions of fact or law

presented by the entire record. 735 ILCS 5/3-110 (West 2018). That said, the statute specifically

limits judicial review to the administrative record, so we may not hear new or additional

evidence in support of, or opposition to, the decision of the administrative agency. Id.; Marconi,

225 Ill. 2d at 532.

¶ 111 We cannot find any case, and Scatchell has not cited one, where a court took judicial

notice of a FOIA response. Rather, the Village’s FOIA response is the kind of “new or additional

evidence” the law forbids us from considering in an administrative review case. Robbins, 177 Ill.

2d at 538. We also will not supplement the record on appeal with documents one of the parties

has attached to their brief in the appendix with no stipulation between the parties or motion to

supplement the record. See Pikovsky v. 8440-8460 North Skokie Boulevard Condominium Ass’n,

2011 IL App (1st) 103742, ¶ 16. Accordingly, we will not take judicial notice of the FOIA

response when reviewing this claim.

¶ 112 Turning back to the question at hand, Scatchell has not established that the Board

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violated the Open Meetings Act. The record reveals that a notice of the meeting was posted two

days before it was held. The agenda included notice the Board would adjourn to a closed

executive session to discuss a matter of employee discipline, which the Open Meetings Act

allows it to do. See 5 ILCS 120/2(c)(1) (West 2018). Then the Board would reconvene in open

session. The record suggests the meeting was open and, if Scatchell wanted to attend, he could.

Moreover, the Board’s final action was reduced to writing and signed by all three Board

members.

¶ 113 If that was not enough, the Open Meetings Act grants courts wide discretion in

deciding what relief, if any, is appropriate for a violation. Id. § 3(c). In other words, even if the

Board did violate the act (and to be clear, we are not saying it did), it does not automatically

mean the vote must be set aside. Powell v. East St. Louis Electoral Board, 337 Ill. App. 3d 334,

338-39 (2003). Even assuming the Board here had violated the act, Scatchell has not given us a

sufficient reason to nullify its decision. See Betts v. Department of Registration & Education,

103 Ill. App. 3d 654, 664 (1981).

¶ 114 IV. Claims of Procedural Violations at Hearing

¶ 115 Scatchell’s next arguments are procedural in nature. For one, after the department

rested its case against him, Scatchell moved for a directed finding of not guilty of all charges.

The Board took the motion under advisement, and Scatchell presented evidence in his case. He

now argues the Board should have ruled on his motion when he made it, because the Department

had not established a prima facie case against him. The Board’s refusal to rule prejudiced him,

he claims, because it forced him to present a defense when, as a matter of law, he should have

been acquitted.

¶ 116 Administrative hearings, like judicial proceedings, are governed by fundamental

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principles and requirements of due process of the law. Village of South Elgin v. Pollution

Control Board, 64 Ill. App. 3d 565, 567-68 (1978). However, an administrative hearing does not

require the strict procedures of a judicial proceeding to satisfy due process. Id. at 568. Instead,

administrative hearings may incorporate a form of procedure that is suitable and proper to the

nature of the determination to be made and that conforms to the fundamental principles of

justice. Id. That procedure must include impartial rulings on the evidence, an opportunity to be

heard, and the right to cross-examine adverse witnesses. Daniels v. Police Board of Chicago, 338

Ill. App. 3d 851, 860 (2003).

¶ 117 As such, the Code of Civil Procedure does not apply to administrative proceedings.

Desai v. Metropolitan Sanitary District of Greater Chicago, 125 Ill. App. 3d 1031, 1033 (1984).

Administrative procedures are simpler and less formal and technical than judicial procedures. Id.

The administrative body has broad discretion in conducting its hearings. South Elgin, 64 Ill. App.

3d at 568. An administrative agency abuses that discretion only when it acts arbitrarily or

capriciously. Village of Stickney v. Board of Trustees of the Police Pension Fund of Stickney, 347

Ill. App. 3d 845, 852 (2004).

¶ 118 The Board’s decision to take Scatchell’s motion under advisement was well within its

discretion, and that decision was not arbitrary or capricious. Its choice to wait until the evidence

was complete was proper to the nature of this hearing, and the hearings conformed to the

fundamental principles of justice and due process. It did not limit Scatchell’s ability to plead his

case or cross-examine adverse witnesses, and the Board acted impartially because it also took the

Village’s motion for a directed finding under advisement. We find no error here.

¶ 119 Along those same lines, Scatchell also claims the Board improperly allowed the

Department to amend its charges and add count XIII, which alleged he was insubordinate and

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disobeyed a direct order to testify in the hearing on October 22. On the hearing’s next date,

October 25, the Board allowed the Department to amend the complaint and add the additional

charge.

¶ 120 In administrative hearings, due process of law specifically requires a definite charge,

adequate notice, and a full and impartial hearing. Ellison v. Illinois Racing Board, 377 Ill. App.

3d 433, 444-45 (2007). That said, charges in administrative proceedings do not need to be as

precisely worded as the pleadings in a judicial proceeding, provided the respondent is adequately

advised of the charges so that he may intelligently prepare a defense. Giampa v. Illinois Civil

Service Comm’n, 89 Ill. App. 3d 606, 610-11 (1980). And again, as the administrative body in

charge of the proceedings, the Board had broad discretion to conduct its hearings as it saw fit, so

long as the hearings satisfied due process concerns. South Elgin, 64 Ill. App. 3d at 568.

¶ 121 In Giampa, the respondent faced a charge from the Illinois Civil Service Commission

related to sexual crimes against a minor. Before the administrative hearing, the hearing officer

granted the Commission’s motion to add a second charge, made three days before the hearing,

for conduct unbecoming a state employee. Giampa, 89 Ill. App. 3d at 609. This court rejected the

respondent’s due process claim, as the second charge was based on the facts of the first incident

and the respondent made no showing that he was unable to intelligently prepare his defense due

to the lack of notice. Id. at 611.

¶ 122 Scatchell is in a similar position here. While the facts of count XIII were not based on

the incident that gave rise to the other counts, he and his attorney were present for the events that

precipitated the Department’s allegations in count XIII. And he had plenty of time to

intelligently prepare a defense to the charge; in fact, he filed a comprehensive memorandum of

law on the topic, and the Board granted him a two-week continuance to prepare his case after the

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additional charge was filed. Because he had ample time to prepare a defense and was aware of

the conduct that underpinned the claim, any due process concerns were fully addressed.

¶ 123 In one last challenge to the administrative hearing, Scatchell argues that the Board

erred when it refused to allow him to call Director Pitassi as a witness and further erred when it

refused to allow him to make an offer of proof regarding Pitassi’s anticipated testimony.

Scatchell claims Pitassi was critical to his defense because he would testify to how the

department treated other officers who violated department policies, thereby highlighting the

“arbitrary and selective” enforcement of department polices to his detriment.

¶ 124 To his complaint that he was denied the opportunity to make an offer of proof in the

moment, it ultimately does not matter. The purpose of an offer of proof is to disclose to the court

and opposing counsel the nature of the offered evidence and to allow a reviewing court to

determine whether that exclusion was proper. Kim v. Mercedes-Benz U.S.A., Inc., 353 Ill. App.

3d 444, 451 (2004). The record is replete with Scatchell’s filings highlighting what he contends

were other incidents where Melrose Park police officers broke departmental policies. Based on

his filings and his attorney’s statement at the hearing, it is clear he intended to question Pitassi

about these incidents. He adequately explained the nature of his proposed evidence for the circuit

court and us to review, so any further offer of proof was unnecessary.

¶ 125 In any event, an officer may not hide behind the misconduct of others, which is

irrelevant to whether that officer was guilty of misconduct. There may be sufficient cause to fire

a particular officer in a case, regardless of whether other officers had received different

treatment. See Davis v. City of Evanston, 257 Ill. App. 3d 549, 560 (1993). Even if Scatchell

could prove he was treated differently—we take no position on that question—it is irrelevant to

whether he broke the rules. As already noted, the Board has wide discretion in how it operates its

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hearings, and it did not abuse it when it refused to allow Scatchell to question Pitassi on these

topics.

¶ 126 V. Claims of Error by Circuit Court

¶ 127 Moving his complaints to the circuit court, Scatchell raises two arguments. First,

Scatchell argues the trial court erred when it refused to allow him to amend the administrative

law record. This is a bit of an end-around: his real grievance is that he believes the Board

members engaged in improper ex parte communications with Pitassi, the police director, and

Castellan, the deputy chief. These communications biased the Board against him, Scatchell

believes, and denied him a fair hearing before an impartial board. See 65 ILCS 5/10-2.1-17

(West 2018) (Board must conduct fair and impartial hearing on charges). He sought to amend the

administrative law record to present these claims, but the circuit court denied his efforts. That

decision also scuttled his claim that the Board was biased.

¶ 128 We do not know why the circuit court denied Scatchell’s motion to amend the

administrative record; the transcript from the date of the hearing is not a part of the record. The

circuit court denied Scatchell’s motion to supplement the record on August 14, 2020, “for

reasons stated on the record in Court.” The circuit court also ordered Scatchell to file a copy of

the transcript from the day’s hearing with the clerk. That did not happen. (The record only

contains the transcript of the August 18, 2020, hearing, where the parties argued on the

administrative review complaint.)

¶ 129 It is well established that the appellant has the burden to present a sufficiently

complete record of the proceedings in the trial court to support a claim of error. Foutch v.

O’Bryant, 99 Ill. 2d 389, 391-92 (1984). If the record is missing key pieces, we will presume that

the order entered by the trial court conformed with the law and was supported by a sufficient

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factual basis. Id. We resolve any doubts arising from the record’s incompleteness against the

appellant. Id. at 392. Here, the trial court’s order denying leave to amend the record specifically

referenced the findings it made at that hearing. Since Scatchell has not provided a transcript of

that hearing to us—despite the circuit court order requiring him to—we will assume the court’s

order was amply supported by the facts and conformed to the law. We thus reject this challenge.

¶ 130 Next, Scatchell argues that the court abused its discretion when it refused to allow

him to file an amended complaint. In the proposed amendment—which was more than 60 pages

long—Scatchell alleged a complicated web of conspiracy and bias against him; he sought to add

counts of retaliation and bias, as well as adding new parties to the suit. Among other things, he

alleged the Department investigated him because his father filed a complaint against the Village,

accusing it of racial discrimination.

¶ 131 First, some context on the timeline. The complaint for administrative review was filed

in December 2018. Full briefing on the complaint was completed in December 2019. But he did

not seek leave to file this amendment to the complaint until March 2020.

¶ 132 At any time before final judgment, parties may seek to amend their pleadings on “just

and reasonable terms.” 735 ILCS 5/2-616(a) (West 2020). To determine if the court abused its

discretion when it refused to let Scatchell amend his complaint, we look at four factors:

(1) whether the proposed amendment would cure a defective pleading, (2) whether other parties

would sustain prejudice or surprise by virtue of the proposed amendment, (3) whether the

proposed amendment is timely, and (4) whether there were previous opportunities to amend the

pleading. Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992). We will

only reverse the trial court’s decision if it manifestly abused its discretion. Id. at 273-74. A court

abuses its discretion when no reasonable person would take the position the trial court adopted.

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Taylor v. County of Cook, 2011 IL App (1st) 093085, ¶ 23.

¶ 133 The circuit court here directly addressed the Loyola factors, which makes our job

easy. First, it concluded that the proposed amendment added new claims instead of curing

defective ones. Needless to say, adding pages of new claims and allegations, often completely

unrelated to the administrative proceeding underlying the initial action, is not curing existing

defective claims. Second, the court found the amended complaint untimely since it was brought

after briefing was complete on the initial administrative review complaint. And last, it concluded

that adding new parties, claims, and arguments so late in the game would prejudice the existing

defendants and those Scatchell sought to add to the case. There is nothing arbitrary or

unreasonable about those conclusions.

¶ 134 The court also noted that Scatchell had tried—unsuccessfully—to bring most of his

new proposed claims in other cases both in federal and state court. In February 2018, before the

Board heard this case and terminated him, he filed a complaint in the circuit court of Cook

County alleging that his rights were being violated.

¶ 135 Notably, in June 2018, Scatchell filed a complaint for injunctive relief to stop the

Board proceedings, alleging, among other things, the Board’s “lack of impartiality,” based

primarily on phone records showing conversations between the Board chair, the mayor, the

police chief, the deputy police chief, and the Village attorney. That same month, he filed suit

attacking the Board’s jurisdiction to hear the charges at all. (This court eventually rejected that

claim in Scatchell v. Village of Melrose Park, 2020 IL App (1st) 191414-U.) In January 2019,

Scatchell then sought leave to join a federal civil rights lawsuit where his father was the plaintiff,

though leave was denied.

¶ 136 As defendants here note, if Scatchell was citing phone records that he claimed

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showed the Board’s bias back in June 2018, the trial court could not possibly have abused its

discretion in deeming untimely a proposed amendment to the administrative-review action, an

amendment first submitted in March 2020—nearly two years later and only after full briefing on

the administrative-review claims had been completed.

¶ 137 Though we could stop there, we also note another lawsuit filed originally in state

court, before it was removed to federal court. On January 24, 2020, plaintiff filed suit in the

circuit court of Cook County against the Board and other parties—a lawsuit that was then

removed to federal court. See Scatchell v. Village of Melrose Park, No. 20 C 1045, 2021 WL

2291072, at *1 (N.D. Ill. June 4, 2021). The federal court, Judge Feinerman, stayed that case

pending the outcome of the appeal under review here. Id. at *6.

¶ 138 In granting the stay, Judge Feinerman repeatedly emphasized that the claims raised in

the federal action mirrored the claims that Scatchell sought to raise in his proposed amendment

to the administrative-review complaint. See, e.g., id. at *1 (noting that “Scatchell moved to

amend his complaint in the administrative review action to add (1) the defendants (Serpico and

Caira) named in this suit but not in the administrative review action and (2) the federal and state

claims asserted in this suit”); id. at *6 (noting “Scatchell’s ongoing effort to add to the

administrative review action the claims he brings in this suit”).

¶ 139 At oral argument before us, Scatchell argued that a grave injustice will occur if he is

not allowed to amend his complaint for administrative review to include these federal claims,

that he will never have his day in court, so to speak, over these claims of bias. We have trouble

accepting this argument for several reasons.

¶ 140 For one, Scatchell could have made this administrative-review action his original

forum for raising these claims. He could have raised them when he filed his original

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administrative-review complaint; as noted above, he was raising claims of bias as early as June

2018. But he did not. Instead, he first tried federal court—joining his father’s lawsuit—and then

filed another action in state court raising these claims, the one that was removed to federal court,

now pending before Judge Feinerman. That case contains all the same claims Scatchell wishes to

add in his proposed amendment to this administrative-review action. Indeed, that was the

principal reason Judge Feinerman stayed the federal action until we decided this appeal. See id.

at *3 (“if the state appellate court reverses the state trial court’s order denying Scatchell leave to

amend, all claims in the present lawsuit will become part of the administrative review action”).

¶ 141 True, defendants are challenging that federal action with arguments of claim-splitting

(see id. at *1, *6), and Scatchell would like to at least try to avoid that problem by simply

amending the administrative-review complaint here. But the fact remains that Scatchell will have

his “day in court” on these claims of bias—federal court, before Judge Feinerman. Whether he

prevails certainly cannot be the decisive factor for us.

¶ 142 Given that the claims of bias, so heavily emphasized by Scatchell at oral argument,

were the basis of a lawsuit as early as June 2018 and considering that the very claims and parties

that Scatchell tried to add in his amendment to the administrative-review complaint are pending

before Judge Feinerman, we could not possibly find that the court abused its discretion in

deeming the proposed amendment untimely, nor do we find that any prejudice or injustice to

Scatchell would occur. We find no error in the court’s denial of leave to amend.

¶ 143 CONCLUSION

¶ 144 The judgment of the circuit court, affirming the final decision of the Board, is

affirmed.

¶ 145 Affirmed.

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Scatchell v. Board of Fire & Police Commissioners for Melrose Park,

2022 IL App (1st) 201361

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CH-

16150; the Hon. Pamela McLean Meyerson, Judge, presiding.

Attorneys Gianna R. Scatchell and Cass T. Casper, of Disparti Law Group,

for P.A., of Chicago, and Christopher Cooper, of Law Office of

Appellant: Christopher Cooper, Inc., of Griffith, Indiana, for appellant.

Attorneys Jeffrey S. Fowler, of Laner Muchin, Ltd., and Patrick H.

for O’Connor, of Hartigan & O’Connor P.C., both of Chicago, for

Appellee: appellees.

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