The opinion
JUSTICE REINHARD, concurring in part and dissenting in part:
While I agree with the majority that the jurisdictional issues raised are without merit and that the decision of the Board of Fire and Police Commissioners of the village of Mundelein that plaintiff, Gerard Kloss, violated certain provisions of the Board’s rules was not against the manifest weight of the evidence, I dissent from that portion of the opinion which holds that Kloss’ misconduct did not constitute sufficient cause for discharge. Recently, our supreme court in Sutton v. Civil Service Com. (1982), 91 Ill. 2d 404 , considered the role of the court when reviewing a decision of an administrative agency which found cause for discharge. In Sutton, the court stated:
“The question, though, is not whether this court would decide upon a more lenient sanction than discharge were it to determine initially what discipline would be appropriate. Nor is it whether this court would conclude in view of the mitigating circumstances suggested by Sutton that a different penalty would be more appropriate. The question is whether, in view of the circumstances presented, this court can say that the Civil Service Commission, in opting for discharge, acted unreasonably or arbitrarily or selected a type of discipline unrelated to the needs of the service.” ( 91 Ill. 2d 404, 411 .)
From my review of the record, I am unable to conclude that the Board in discharging Kloss acted “unreasonably or arbitrarily or selected á type of discipline unrelated to the needs of the service.”
The Board found Kloss guilty of pointing a gun at Sergeant Sindles and threatening to kill him, and found him guilty of other serious misconduct, including kicking doors, fighting with police officers, and yelling and screaming profanities at police officers and others. Although Kloss was off-duty at the time of this incident, a police officer must exercise sound judgment and realize his responsibility to the department and the public at all times. (Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill. App. 3d 864 , 278 N.E.2d 212 .) I consider Kloss’ display of a gun toward a superior officer and his fighting and resisting other officers under the circumstances a substantial shortcoming which constitutes sufficient cause for discharge. The majority finds Walsh v. Board of Fire & Police Commissioners (1981), 103 Ill. App. 3d 635 , 431 N.E.2d 1099 , appeal allowed (Docket No. 56217, May 28, 1982), 91 Ill. 2d 566 , analogous. With all due respect, I find Walsh, which involved an officer who was on medical disability suspension at the time of the incident at issue, distinguishable factually and unpersuasive legally. In that case Walsh’s conduct was found by the appellate court to be a manifestation of the very psychological problems for which he was on disability suspension. Here Kloss was not on suspension, but merely off-duty. Moreover, the court in Walsh was without the benefit of our supreme court’s recent decision in Sutton v. Civil Service Com., which requires that substantial deference be given to the administrative agency’s decision to discharge. Kloss’ conduct was not an insubstantial instance of misconduct which has been held not to warrant discharge (see Kreiser v. Police Board (1977), 69 Ill. 2d 27 , 370 N.E.2d 511 ; Fantozzi v. Board of Fire & Police Commissioners. (1963), 27 Ill. 2d 357 , 189 N.E.2d 275 ; Humbles v. Board of Fire & Police Commissioners (1977), 53 Ill. App. 3d 731 , 368 N.E.2d 1049 ), but constituted á serious incident involving physical and abusive conduct toward his fellow officers, a superior officer, and use of a weapon which all relate to his proper performance as a police officer. (See Jenkins v. University Civil Service Merit Board (1982), 106 Ill. App. 3d 215 , 435 N.E.2d 804 .) I would affirm the entire decision of the Board.