Petition — Kwiek v. Board of Fire & Police Commissioners

: APR 19 1976

In THE

| MICHAEL RODAK, JR., » CLERK

Supreme Court of the Unitey States ——

Octroper Term, 1975

,

No. 75-1517

RAYMOND T. KWIEK,

Petitioner,

vas,

THE BOARD OF FIRE AND POLICE COMMISSIONERS OF

THE VILLAGE OF SCHAUMBURG, MARTIN J. CONIGLIO,

Chairman of the Board of Fire and Police Commissioners of the

Village of Schaumburg, FRED W. VOLKENING, Member, Board

of Fire and Police Commissioners of the Village of Schaumburg,

DONALD I. PETERSON, Member, Board of Fire and Police

Commissioners of the Village of Schaumburg, and MARTIN

J. CONROY, Chief of Police of the Village of Schaumburg,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE ILLINOIS APPELLATE COURT,

FIRST DISTRICT

EDWARD M. GENSON

THEODORE M. BECKER

J. SAMUEL TENENBAUM

134 N. LaSalle Street

Suite 300

Chicago, Illinois 60602

Telephone: (312) 726-9015

Attorneys for Petitioner

—— iii ieee ~

Midwest Law Printing Co., Chicago 60601, PInancial 6-3988

TABLE OF CONTENTS

B. Constitutional and Statutory Provisions In-

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PAGE

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> I EIITIITIIIIITIETTY -alinieshndnini stindciesbissispadeebaicnlidbitaiabiieasiaaiaetaiiadaticd, 2

QUESTIONS PRESENTED ..0..........ccccccccsccecccsssccscsecseeees 2

CONSTITUTIONAL AND STATUTORY PROVI-

I ia lated aiiaaii 2

STATEMENT OF THE CASBD .......c.cccccccccoccessccccsscccescsese 3

REASONS FOR GRANTING THE WRIT:

I.

The Trial And Appellate Courts Denied Petitioner

His Fourteenth Amendment Right To Due Process

By Failing To Consider The Constitutional Challenge

Made By Plaintiff To The Board Of Fire And Po.

lice Commissioners Of The Village Of Schaumburg’s

a TIT nsscicscennei riincisiiieelidensbiiatiatiihiaaciidiiiattta 8

II.

Paragraphs 20, 22 And 38 Of The Rules And Reg-

ulations Of The Village Of Schaumburg Police De-

partment, Which Limit A Police Officer’s Right To

Criticize Superiors, Are Unconstitutional Either On

Their Face Or As Applied To Petitioner ................ 9

GEUUIITIIIIIIIIITS ° sccssssdscnsersctetbiieasstesnssseniiseeubiieepensininbatabhibieeneiaiihitesians 14

APPENDICES:

A. Opinion and Judgment of Court of Appeals ... la

i

LIST OF AUTHORITIES CITED

Cases

Baker v. City of Fairbanks, 471 P.2d 386 (Alaska,

UTI lene: sel eeiehatcecineshnanhaanaseneamamndenadiainiaibiaabscinieibieadeiaamiapsiit 8

Brady v. Maryland, 373 U.S. 83 (1968) ......cccccccseeseees 13

Chaffin v. Styncheombe, 412 U.S. 17 (1973)... 8

DeGrazio v. Civil Service Commission, 31 I11.2d 482... 9

Flynn v. Giarrusso, 321 F.Supp. 1925 (B.D. La.

SITE crnensniasisencacessniapuihlbiesnsidiesaesnidiisminetaiainedseneincariteasaitaaias 10, 11

Goldberg v. Kelly, 397 U.S. 254 (1970) o.ccccccccceeeenes 8

Kelley v. Johnson, 44 U.S.L.W. 4469 (April 6, 1976) . 11

Keyishian v. Board of Regents, 385 U.S. 589 .............. 11

Matzner v. Davenport, 288 F.Supp. 636, aff’d. 410 F.

ee Ge Gh NE cecttnceintintentntneeenneniniies 8

Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970) .. 10, 11,13

Railroad Commission of California v. Pacific Gas and

Electric Co., 302 U.S. 388 (1938) ........ccscsssscsessreereree 8

Constitutional Provisions and Rules

ee CN Re Te x .siiciesanestetiiianienmepetieiliniadinibieiinas 10, 11, 4a

FO ene 10, 4a

Village of Schaumburg Board of Fire and Police

Commissioners’ Rules, Pars. 20, 22 and 38 ........ 4a, 5a

In Tue

Supreme Court of the United States

Ocroprr Term, 1975

No.

RAYMOND T. KWIEK,

Petitioner,

vs.

THE BOARD OF FIRE AND POLICE COMMISSIONERS OF

THE VILLAGE OF SCHAUMBURG, MARTIN J. CONIGLIO,

Chairman of the Board of Fire and Police Commissioners of the

Village of Schaumburg, FRED W. VOLKENING, Member, Board

of Fire and Police Commissioners of the Village of Schaumburg,

DONALD I. PETERSON, Member, Board of Fire and Police

Commissioners of the Village of Schaumburg, and MARTIN

J. CONROY, Chief of Police of the Village of Schaumburg,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE ILLINOIS APPELLATE COURT,

FIRST DISTRICT

The Petitioner, Raymond Kwiek, respectfully prays

that a Writ of Certiorari issue to review the judgment

and opinion of the Illinois Appellate Court, First Dis-

trict.

OPINION BELOW

The opinion of the Illinois Appellate Court, First Dis-

trict, which is unreported, appears as Appendix A

hereto.

online

JURISDICTION

The judgment of the Illinois Appellate Court, First

District, was entered on September 23, 1975. A timely

filed Petition for Leave to Appeal to the Illinois

Supreme Court was denied on January 23, 1976. This

petition for Certiorari is filed within ninety days of that

date. This Court’s jurisdiction is invoked under 28

U.S.C. § 1257(3).

QUESTIONS PRESENTED

1. Whether Petitioner was denied his Fourteenth

Amendment right to due process where the trial and

appellate courts refused to consider his challenge to

the constitutional validity of the Village of

Schaumburg’s Board of Fire and Police Com-

missioners’ Rules 20, 22 and 38.

2. Whether the Village of Schaumburg Board of Fire

and Police Commissioners’ Rules 20, 22 and 338,

which limit a police officer’ right to criticize

superiors, violate the Firs and Fourteenth

Amendments.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The United States Constitution, Amendments One and

Fourteen, and Village of Schaumburg Board of Fire and

Police Commissioners’ Rules 20, 22 and 38 are involved

herein and are set forth in Appendix B.

a

STATEMENT OF THE CASE

_ Petitioner, Raymond T. Kwiek, had been a police of-

ficer with the Village of Schaumburg, Illinois, since

_ 1968. n February 1, 1972, the Chief of the Schaur--

burg Police Department, Martin J. Conroy, sent Kwiek,

by letter, a suspension order stating that the following

charges, inter alia, were being filed against Petitioner

with the Board of Fire and Police Commissioners of the

Village of Schaumburg (“Board”):

1. Paragraph 20 of the Schaumburg Police

Department Rules and Regulations referenced to in-

subordination whereby false information was given

to the Chief of Police in various areas of the Green-

field case in criticism regarding the Greco case

which involved the Greenfield letters and the Heidt

case;

2. Paragraph 22 of the Schaumburg Police

Department Rules and Regulations whereby

superiors were criticized in the handling of various

criminal cases and other cases within the Schaum-

burg Police Department;

3. Paragraph 38 of the Schaumburg Police

Department Rules and Regulations referenced con-

fidential information whereby confidential informa-

tion was released on a pending court matter.

On March 16, 1972, a hearing on the above related

charges was held by the Board. At the hearing the

following facts were developed:

Chief Conroy explained the various charges that had

been filed against the Petitioner. Chief Conroy further

explained to the Board what the “Heidt case”, the

“Greco affair”, and the “Greenfield letter” involved. The

“Heidt case” was a criminal case involving an alleged

a

theft from a Sears Roebuck store by one of Schaum-

burg’s police officers. The “Greco affair” concerned a

truck that had been stopped by members of the Schaum-

burg Police Department for possible overwidth

violations. A fracas ensued between the officers and the

truckers. After the truckers were arrested, the owner of

the Greco Company arrived at the station, and had a

conference with Chief Conroy, the police officers and the

truckers. Afterwards the Chief ordered that no charges

be placed. The “Greenfield letter” involved various in-

flammatory letters which were sent to the Mayor of

Schaumburg and various newspapers criticizing the

Chief of Police, Conroy, for his handling of the Greco

matter. Conroy further testified as to the basis for the

various charges filed against Petitioner and related a

number of statements which other officers had told him

that Petitioner had made.

Conroy also testified that he had placed an officer,

Tom Sultzer, on “special assignment”. Conroy described

the special assignment as being one in which the officer

was allegedly fired from his position and then told to go

and mingle with other officers and discuss their feelings

regarding Conroy and try to determine who had in-

stigated the “Greenfield letters” matter. Some of the

charges which Conroy filed against Kwiek resulted from

various statements made to this “officer on special

assignment” by Petitioner.

Further evidence resulted from convervations

overheard by two police officers, William Bartkvich and

Detective Barabas, while hiding in an attic of the house

of the police officer on special assignment. They

overheard Petitioner’s discussions regarding Chief Con-

roy with the special agent and the special agent’s father.

Furthermore, the evidence revealed that all of the com-

ments made by Petitioner were done in private, were

—§—

not publicly disseminated and, for the most part, were

made while Petitioner was off duty.

Petitioner testified on his own behalf that he had been

a Village of Schaumburg policeman for four years. He

had been suspended for one day on each of two prior oc-

- casions for failing to appear in court. These were the

only negative aspects of an otherwise good record.

Petitioner admitted criticizing Chief Conroy and other

police department officials in private conversations with

Tom Sultzer and noted that Sultzer and other police of-

ficers had criticized the Chief of Police.

After the hearing, the Board issued written findings

on April 17, 1972. The Board determined that Petitioner

should be discharged and removed from his position as a

patrolman with the Schaumburg Police Department. In

support thereof it made various findings of fact and law.

With regard to the specific facts of the case, the Board

made the following findings:

7. Respondent, as charged herein, and contrary

to the Rules and Regulations of the Police Depart-

ment of the Village of Schaumburg, was guilty of

insubordination, contrary to Paragraph 20 of Sec-

tion 1 of said Rules and Regulations, in that: A) he

did on numerous occasions, including October 10,

1971, October 28, 1971, and December 18, 1971,

make critical and derogatory statements about the

Chief of Police of the Village of Schaumburg which

statements were made to other members of the

Police Department of the Village of Schaumburg,

and thereby impugned the character of said Police

Chief; B) he refused to give information requested

of him by superior officers relative to a pending

criminal matter involving one William Heidt, when

such information was within the knowledge of

Respondent; C) he refused to recognize his obliga-

tion to give such information, claiming that he was

excused because such information was obtained

ey ,

_—

while he was off duty and not assigned to the case;

and D) he demonstrated divided loyalty as between

his duties as a police officer and to said William

Heidt.

8. Respondent, as charged herein, and contrary

to the Rules and Regulations of the Police Depart-

ment of the Village of Schaumburg, Illinois, in-

cluding Paragraph 22, Section 1, of said Rules and

Regulations, was guilty of: A) criticizing members

of the Police Department of the Village of Schaum-

burg, Illinois, namely, Police Chief Martin J. Con-

roy, Sgt. James J. Dillon, and Sgt. Daniel M.

Coursey, as to their background, character and con-

duct in general to such an extent as to bring the

character of such members of the department into

disrepute and to thereby bring the Police Depart-

ment into disrespect and disrepute: and B) as to

Police Chief Martin J. Conroy and Sgt. Daniel M.

Coursey specifically with respect to their official ac-

tions in connection with the incident known as the

“Greco matter”, to such an extent as to bring the

character of such members of the department into

disrenute and to thereby bring the Police Depart-

ment into disrespect and disrepute; and C) he did

on numerous occasions, including on Qctober 10,

1971, October 28, 1971, and December 18, 1971,

make critical and derogatory statements about

Police Chief Martin J. Conroy, which statements

were made to other members of the Police Depart-

ment of the Village of Schaumburg, and thereby

impugned the character of said Police Chief and

brought the Department into disrespect and dis-

repute.

9. Respondent, as charged herein, and contrary

to the Rules and Regulations of the Police Depart-

ment of the Village of Schaumburg, Illinois, -in-,

cluding Paragraph 38, Section 1, of said Rules and

Regulations, was guilty of releasing information

covering the affairs, business or operation of the

said Police Department without the consent of the

Commanding Officer, in that during the pendency

calien

of the criminal case against said William Heidt,

Respondent did voluntarily telephone the attorney

for said William Heidt and informed him that he

had given a statement to the Police Chief relating to

his knowledge of the Heidt matter, all without the

consent, knowledge or authorization by the Com-

manding Officer of the Chief of Police.

A request for rehearing was made and subsequently

denied by the Board on ‘lay 20, 1972. On June 13, 1972,

Petitioner filed a complaint for administrative review in

the Circuit Court of Cook County, Illinois. Said com-

plaint for review challenged the constitutionality of

various sections of the Schaumburg Police Department

Rules and Regulations and also challenged the findings

of the Board. On November 13, 1972, after reviewing

the record before the administrative board, briefs of

counsel and argument, but without taking testimony,

Judge Robert Downing entered an order affirming the

findings and decision of the Board. In his order, Judge

Downing stated that, “without passing on the con-

stitutionality of paragraph 22 of the Rules and

Regulations”, (he) found and decreed that there was suf-

ficient evidence to support the findings of the Board and

that the findings and conclusions of the Board were not

against the manifest weight of the evidence. This order

was the sole finding of the Court. Petitioner filed a time-

ly Notice of Appeal, and prosecuted it in the Appellate

Court. On September 23, 1975, the Appellate Court af-

firmed Judge Downing (a copy of the order of the

Appellate Court appears as Appendix A to this Petition).

The Appellate Court, in its opinion, did not discuss the

constitutionality of Rule 22 of the Board’s Rules and

Regulations. In his Petition for Leave to Appeal to the

Illinois Supreme Court, Petitioner challenged the con-

stitutionality of paragraphs 20, 22 and 38 of the Board’s

Rules. That Petition was denied on January 23, 1976,

without opinion, and this petition follows.

afijun

REASONS FOR GRANTING THE WRIT

I.

THE TRIAL AND APPELLATE COURTS DENIED

PETITIONER HIS FOURTEENTH AMENDMENT

RIGHT TO DUE PROCESS BY FAILING TO CON-

SIDER THE CONSTITUTIONAL CHALLENGE MADE

BY PLAINTIFF TO THE BOARD OF FIRE AND

POLICE COMMISSIONERS OF THE VILLAGE OF

SCHAUMBURG’S RULES 20, 22, AND 38.

Ever since charges have been filed against Petitioner,

he has consistently attempted to raise the issue of the

constitutionality of various sections of the Rules and

Regulations of the Board, paragraphs 20, 22 and 39.

These Rules are set forth as Appendix B.

However, no court has attempted to resolve the issue

raised by Petitioner. The Board refused to hear the issue

and dispensed with it. The trial judge specifically stated

in his order that he was not considering the con-

stitutionality of the rule. The Appellate Court, other

than quoting the trial judge’s finding, made no ruling on

the issues raised. This failure to deal with the serious

issue, to wit: the constitutionality, both on their face

and as applied, of these rules, denies Petitioner fun-

damental due process in that he has a right to be heard.

See, e.g. Goldberg v. Kelly, 397 U.S. 254 (1970); Railroad

Commission of California v. Pacific Gas and Electric

Co., 302 U.S. 388 (1938); see also, Chaffin v.

Stynchcombe, 412 U.S. 17 (1973); Matzner v. Davenport,

288 F.Supp. 636, aff'd. 410 F.2d 1376 (2d Cir. 1968);

Baker v. City of Fairbanks, 471 P. 2d 386 (Alaska, 1970).

No court has, as yet, heard this issue, and their failure

to consider or decide this most important issue, which

has ramifications for many police departments

throughout the nation, is a violation of the trust placed

e!S?S =)

adie

in them. This Court as the Supreme Court of the United

States, has the obligation to rule on questions of con-

stitutional magnitude. The failure of the lower state

courts to resolve this question leaves Petitioner with his

sole recourse now in this Court. State courts should not

readily abrogate to the federal courts their duty and

responsibility to decide constitutional questions. The

complete abrogation which has occurred here should not

be allowed to go on and should not be condoned.

By failing to consider this issue, the state courts have

merely encouraged further litigation rather than acting

to definitively determine the issues raised. This inactivi-

ty creates a strain on the judicial system and denies

Petitioner his right to be heard.

il.

PARAGRAPHS 20, 22 AND 38 OF THE RULES AND

REGULATIONS OF THE VILLAGE OF SCHAUM-

BURG POLICE DEPARTMENT, WHICH LIMIT A

POLICE OFFICER’S RIGHT TO CRITICIZE

SUPERIORS, ARE UNCONSTITUTIONAL EITHER ON

THEIR FACE OR AS APPLIED TO PETITIONER.

As stated in DeGrazio v. Civil Service Commission, 3i

Ill. 2d 482, at 485:

The rules of a police department are administrative

regulations and have the force and effect of law

(Harrison v. Civil Service Co., 1 Ill. 2d 187).

Therefore, they must be construed by the same

standards governing the construction of statutes (2

Am. Jur. 2d, Administrative Law, Sec. 298 p. 125).

A statute which either forbids or requires the doing

of an act in terms so vague that men of common in-

telligence must necessarily guess at its meaning

and differ as to its application, violates the first es-

sential of due process of law. (Baggett v. Bullitt, 377

U.S. 360, 12 L.Ed. 2d 377, 84 S.Ct. 1316; Hershey

Mfg. Co. v. Adamowski, 22 Ill. 2d 36).

==

It is apparent from a reading of Paragraphs 20, 22

and 38 of the Rules and Regulations of the Schaumburg

Police Department that each is, on its face, vague and

overbroad, in violation of the First and Fourteenth

Amendments of the Constitution of the United States.

Although this challenge was not determined by the

Board or the Courts, if the sections are unconstitutional,

then Petitioner was significantly prejudiced in that most

of the Board’s hearing concerning the critical comments

about Chief Conroy and served to bias the Board.

In Muller v. Conlisk, 429 F. 2d 901 (7th Cir. 1970), the

Court ruled on the validity of the Chicago Police Depart-

ment Rule 31, which, similar to Paragraphs 20, 22 and

38, prohibited “any activity, conversation, deliberation,

or discussion which is derogatory to the Chicago Depart-

ment...” 429 F. 2d at 908. The Court found:

. it is clear beyond dispute that the rule is over-

broad. In substance, it prohibits all criticism by

policemen of the department. It may no longer be

seriously asserted that policemen, have no right to

criticize their employer.

** * &

. it is clear that the First Amendment would

reach and protect some speech by policemen which

would be considered ‘derogatory to the department’.

Rule 31 on its face prohibits all such speech, even

private conversation, and is for that reason un-

avoidably overbroad ... (429 F.2d at 9038-904).

(emphasis supplied),

on also Flynn v. Giarrusso, 321 F. Supp. 1925 (E.D. La.

971).

The regulations under scrutiny in the case at bar, like

the regulations held invalid in Muller and Giarrusso,

are too broad. They encompass without exception all

criticism and derogatory statements regardless of the

context in which such statements are made (Paragraphs

20 and 22); and the dissemination of any “information”

concerning the “affairs, business or operation of the

Police Department” regardless of how innocuous the in-

formation might be, and without reference to any stan-

‘dard to determine if such information ought justifiably

be classified as confidential (Paragraph 38). All three

regulations are so broad and sweeping that they suf-

focate the First Amendment rights of the Petitioner,

which rights he did not waive by chosing to become a

policeman.*

Moreover, the operative language found in

Paragraphs 20, 22 and 88 is impermissibly vague.

Terms such as “critically or derogatorily” (Paragraph

20), “discuss or criticize” (Paragraph 22), and “informa-

tion” (Paragraph 38) are the kind of terms which have

traditionally been viewed by the Courts with disap-

proval unless their use is accompanied by clear

definitions regarding what is meant thereby. See Muller

supra, Giarrusso, supra. Such language leaves it to the

policeman to guess what conduct will violate the

prohibition encompassed by the regulations, and what

conduct will not. When one must guess what conduct or

utterance might lose him his position the pronibition

cannot stand. Keyishian v. Board of Regents, 385 U.S.

589.

But even assuming, arguendo, that Paragraphs 20, 22

and 88 are not unconstitutional on their face, the record

discloses that each was applied in the instant case in a

fashion which unreasonably and_ unconstitutionally

abridged Petitioner's First Amendment rights.

* In Kelley v. Johnson, 44 U.S.L.W. 4469 (April 6, 1976), this

Court recently discussed the rights of police officers to wear

their hair in a certain manner. This Court did not, however,

reach the question of the extent to which police departments

can limit the free speech of their employees.

entities

The Board found that Petitioner violated Paragraphs

20 and 22, by speaking critically and derogatorily of

Chief Conroy and other members of the police depart-

ment. The Board’s finding was based on testimony con-

cerning a series of conversations between Petitioner and

other police officers. Those conversations were admitted-

ly private in nature and took place while Petitioner was

off duty. Also, the statements were made to a spy that

Conroy had ordered to discover various types of informa-

tion, were overheard by officers who were in hiding and

had many indicia of acts of entrapment. Further, by

Chief Conroy’s own admission, what was said by

Petitioner did not impair the efficiency or discipline of

the Police Department. Petitioner respectfully submits

that if Paragraphs 20 and 22 are to be construed in a

fashion which does not violate First Amendment

freedoms, then at the very least the prohibitions con-

tained in those paragraphs must be interpreted as (1)

applying only to public statements of police officers

which are (2) likely to affect the discipline and efficiency

of the Department. And under such an interpretation,

the evidence heard by the Board would certainly not

support a guilty finding.

The Board found that Petitioner violated Paragraph

38 in that he “voluntarily telephoned the attorney for

. . . William Heidt and informed him that he had given

a statement to the Police Chief relating to his knowledge

of the Heidt matter . . . without the consent, knowledge

or authorization lof]. . . the Commanding Officer or the

Chief of Police.” (A. 12 BR p). To hold that Paragraph 38

encompasses this alleged activity is to give Paragraph

38 a construction which clearly goes well beyond

legitimate boundaries. The Heidt case was pending in

the Circuit Court of Cook County at the time the alleged

statement by Petitioner was given and was, therefore, of

enfiiicn

public record. The existence of a statement relative to a

pending criminal case cannot rationally be interpreted

as constituting a matter which is germane to the “af-

fairs, business or operation of the Police Department”.

Rather, it is a matter which is relevant to the pending

litigation and is discoverable by the defense under the

‘ Rules of The Supreme Court of Illinois. The Schaum-

burg Police Department would, accordingly, have no

right to treat the statement as confidential or to

withhold the fact of its existence. Moreover, the dis-

covery of the statement might well have been mandated

by Brady v. Maryland, 373 U.S. 83 (1963), and to

attempt to hide the existence of such a statement would

be a much more serious violation of a police officer’s

duty. Also, the contents of the statement were not dis-

closed. Hence, assuming Petitioner did tell the attorney

for Officer Heidt that Petitioner had given a statement

that act on the part of Petitioner cannot reasonably be

held to fall within the prohibition of Paragraph 38.

Petitioner requests that this Court grant his Petition

so as to clarify the standards which govern police of-

ficers in terms of their rights to criticize their superiors,

to attempt to uncover wrongdoing on the part of those

superiors and to fulfill various obligations under the

Constitution of the United States. Moreover, this Court

must resolve the differences created by the instant case

and various lower federal court cases. Compare Muller,

supra.

The events in this case took place prior to “Watergate”

and before the “Post-Watergate” morality became band-

ied about. However, there is no difference in morality

just because a certain point in time has been reached.

Nothing that the Petitioner in this case did was wrong

or required his dismissal. The utilization of rules such as

those at issue here by the police department and the

Board constitute a serious infringement upon this police

officer’s rights, and every police officer who is subject to

these or similar rules.

CONCLUSION

For these reasons, Petitioner Raymond T. Kwiek

respectfully requests that a writ of certiorari issue to

review the judgment and opinion of the Illinois

Appellate Court, First District.

Respectfully submitted,

EDWARD M. GENSON

THEODORE M. BECKER

J. SAMUEL TENENBAUM

134 N, LaSalle Street

Suite 300

Chicago, Illinois 60602

Telephone: (312) 726-9015

Attorneys for Petitioner

- a a

—la—

APPENDIX A

ILLINOIS APPELLATE COURT

FIRST DISTRICT

“No. 58640

RAYMOND T. KWIEK,

Plaintiff-Appellant,

Vv,

THE BoarRD OF FIRE AND POLICE COMMISSIONERS OF

THE VILLAGE OF SCHAUMBURG, MARTIN J. CONIGLIO,

Chairman of the Board of Fire and Police Com-

missioners of the Village of Schaumburg, FRED W.

VOLKENING, Member, Board of Fire and Police Com-

missioners of the Village of Schaumburg, DONALD I.

PETERSON, Member, Board of Fire and Police Com-

missioners of the Village of Schaumburg and MARTIN

: . Conroy, Chief of Police of the Village of Schaum-

urg.

Defendants-A ppellees.

ORDER

This was a suit by which plaintiff-appellant Raymond

T. Kwiek sought administrative review of the findings

and decision of the Board of Fire and Police Com-

missioners of the Village of Schaumburg. Kwiek asked

the trial court to reverse the Board’s discharge of him as

a policeman on the Schaumburg police force.

Pursuant to Ill. Rev. Stat. 1971, ch. 110, § 272 (a),

plaintiff-appellant was required, on motion of

defendants-appellees, to file a specification of the errors

on which he relied for reversal. He did so and stated

that his claimed errors were that the findings of the

Board were not ——— by the evidence or were not

substantiated by the record. In the only specification

that differed from the others, plaintiff-appellant

—2a—

referred to the fact that his counsel had raised the con-

stitutionality of a paragraph of the rules and regulations

of the Schaumburg Police Department which he had

been accused of violating.

The trial court, proceeding under the administrative

review act, Ill. Rev. Stat. 1971, ch. 110, §§ 264, et seq.,

considered the pleadings, the record made before the

Board, the memoranda of the parties, the arguments of

counsel, and stating that it was not “* * * passing on the

constitutionality of paragraph 22 of the rules and

regulations * * *,” found that there was sufficient

evidence in the record to support the Board’s findings

and decision. The court ruled that the findings and deci-

sion were not against the manifest weight of the

evidence and should be affirmed. It appears, therefore,

that in this appeal the only issue before this court is

whether the findings and decision of the Board of Fire

and Police Commissioners of the Village of Schaumburg

were against the manifest weight of the evidence.

This issue, in cases just like this one, has been resolved

many times by reviewing courts of this state. In review-

ing the findings and decision of an administrative agen-

cy like the Board in this case, the function of the trial

court was limited to ascertaining if the findings and

decision were against the manifest weight of the

evidence (Rizzo v. Board of Fire and Police Com-

missioners, 131 Ill. App. 2d 229, 233, 267 N.E. 2d 7;

DeGrazio v. Civil Service Commission of Chicago, 31 Il.

2d 482, 202 N.E. 2d 522.) In such a case, it is for the ad-

ministrative agency, not the courts, to determine the

credibility of witnesses, resolve conflicts in the

testimony, and determine the questions of fact. See

Davenport v. Board of Fire and Police Commissioners,

2 Ill. App. 3d 864, 278 N.E. 2d 212. Our function in such

a case like this one, is to determine whether the trial

court ruled correctly when it concluded that the ad-

ministrative record showed there was evidence that suf-

ficiently supported the findings of the Board; and that

the findings and decision were not against the manifest

weight of the evidence. Zinser v. Board of Fire and

——

Police Commissioners, 28 Ill. App. 2d 435, 437, 172 N.E.

2d 33.

We have examined the record and conclude that the

testimonial and physical evidence heard by the Board

support its findings and decision. In our view, and that

of the trial court, the findings and decision of the Board

-were not against the manifest weight of the evidence.

An opinion in this case will have no precedential value.

The question presented by plaintiff-appellant is not sub-

stantial. In the context of the facts before us, the ques-

tion is not a fairly debatable one; it has been answered

before. See Crowell v. Daley, etc., et al., ..... Ill. App. 3d

paints tale N.E. 2d ..... (No. 60677); Kelly v. Police Board of

the City of Chicago, 25 Ill. App. 3d 559, 323 N.E. 2d 624;

Coursey v. Board of Fire and Police Commissioners, 90

Ill. App. 2d 31, 234 N.E. 2d 339; compare Petraitis v.

Board of Fire and Police Commissioners of the City of

Palos Hills, ..... ee | eae N.E. 2d ..... (No.

61089). These answers were expressed in extensive

written opinions. A substantial question is one that is

fairly debatabie. Compare Ortiz v. Greyhound Corpora-

tion (D.C. Md. 1959), 192 F. Supp. 903, 905; United

States v. Stephenson (D.C. Alaska 1953), 110 F. Supp.

623, 627. In our judgment, a question is not fairly

debatable if it has been answered in written opinions of

other reviewing courts of this state. Therefore, we dis-

pose of this appeal on the authority of Supreme Court

Rule 23, Ill. Rev. Stat. 1975, ch. 110A, par. 23 (amended

effective July 1, 1975). The judgment is affirmed.

/s/ John J. Stamos, Justice

/s/ George N. Leighton, Justice

/s/ John C. Hayes, Justice

Dated: September 23, 1975

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APPENDIX B

U.S. Const. Amend. 1:

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof:

or abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

U.S. Const. Amend. XIV:

SECTION I. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any

law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Village of Schaumburg Board of Fire and Police

Commissioners’ Rules:

Paragraph 20 provides:

INSUBORDINATION. Members and employees of the

Police Department shall treat their superior officers

with respect, and in their demeanor toward other

associates in the department shall be courteous and con-

siderate, guarding themselves against jealousy and other

unfriendly feeling. It is their duty to inform their

superior officers of any neglect or disobedience of orders

that may come to their knowledge. Members and

employees shall not, under any circumstances, or in any

manner whatsoever, speak critically or derogatorily to

any member of the department, or to any person outside

the department regarding the orders or instructions

issued by a superior officer; provided, however, in any

case where there is a sound reason to believe that such

orders or instructions are inconsistent or unjust it is the

—5da—

right and duty of any member or employee to appeal to

higher authority.

Paragraph 22 provides:

CRITICIZING. Members of the Department shall not

discuss or criticize publicly or privately the personal

habits, character or conduct, or the official action of

‘other members of the Department unless it be a viola-

tion of the rules and regulations, in which case the same

should be reported to their superior officers.

Paragraph 38 provides:

CONFIDENTIAL INFORMATION. No member of the

Department shall give out or release any information

covering the affairs, business or operation of the Police

Department without the consent of the Commanding Of-

ficer. Members and employees of the Police Department

shall not deliver addresses in meetings concerning the

work of the Police Department, nor shall they make

statements for publication concerning plans, policies or

affairs of the Police Department unless authorized to do

so by the Chief of Police.