Affirmed in part, and reversed in part and remanded.
Mr. JUSTICE O'CONNOR delivered the opinion of the court:
Plaintiff, Oliver Christenson, was discharged from his position as a captain in the Oak Forest Police Department (department) after a hearing before the Board of Fire and Police Commissioners of the City of Oak Forest (board). Christenson filed a complaint for administrative review against the board and Alvin E. Lexow, as department police chief, in the circuit court of Cook County. (Ill. Rev. Stat. 1977, ch. 110, pars. 264-279.) The circuit court reversed the board's order as to the penalty of discharge and remanded the cause. Defendants appeal seeking reinstatement of the board's ruling.
The board adjudged Christenson guilty of these charges and found:
On January 23, 1979, the circuit court entered an order:
On February 5, 1979, the circuit court stayed its order pending appeal. On February 20, 1979, defendants appealed from that portion of the circuit court order reversing Christenson's termination as being against the manifest weight of the evidence. Christenson did not cross-appeal.
Accordingly, the question of whether the board's factual findings were contrary to the manifest weight of the evidence is not before us. The sole issue is whether these findings constitute sufficient cause to discharge Christenson.
A more detailed recitation of the facts surrounding the incident is necessary to resolve this issue.
On June 5, 1977, at about noon, Mrs. Wanda Christenson received a phone call from the Christensons' horse trainer. He reported that something was wrong with their horses, particularly concerning their
They arrived at the track at about 1:30 p.m. and discovered that one horse was bleeding from underneath the throat. All the horses had a yellow substance all over their bodies and their eyes were closed. Christenson discovered that the horses had been sprayed with a chemical fire extinguisher substance. He bathed the horses to eliminate the substance and discovered one horse's eyes were swollen shut. At this point, his daughter unsuccessfully attempted to contact a veterinarian.
The family returned home so that Christenson could begin his shift as watch commander. Chief Lexow was not on duty, so Christenson was the senior officer in command. He began his shift at 3:30 p.m. and around 6 p.m. told Officer Holba that he would be out of town on an emergency, that he had to see an eye doctor, and that he was borrowing a squad car. He appointed Holba watch commander until his return.
Christenson then proceeded to his residence, picked up his wife and children, and returned to the track. According to Christenson, he used a squad car for the trip because of mechanical problems with his van, and to assure his speedy response to any emergency calls. They arrived at the track at about 6:45 p.m., where Christenson administered medication prescribed by a veterinarian to the horses' eyes. Christenson also discovered an empty fire extinguisher buried under manure.
Christenson took the extinguisher to the station to examine for fingerprints, returning between 8 and 8:15 p.m. He checked the log for that night and noticed that there had been no emergencies. Christenson claimed that he maintained radio contact with the station while out of town, could hear transmissions, but received no calls. He stayed about an hour past the end of his shift to assure everything was all right.
On June 22, 1977, Christenson submitted answers to written questions propounded by Chief Lexow pursuant to an internal investigation of the incident. The investigation was initiated because two officers had observed Christenson and his family in a squad car heading southbound on I-57 near Route 30, while Christenson was on duty. Christenson indicated that he was on I-57 near Route 30 because he was transporting his wife and children to her car that had broken down. He was able to get her car operating and followed her home in the squad car.
On August 26, 1977, Christenson took a polygraph test in connection with the incident. During a pretest interview, he admitted the falsity of his June 22 statements. He related an accurate account of his second trip to the track substantially as recounted above. In the opinion of the examiner,
Finally, Lieutenant William Busse testified that as part of the internal investigation he drove to Balmoral to determine whether radio communication was possible. Busse was unable to raise the department on his radio. Balmoral was 21 miles from the city. However, Busse had been able to receive, but could not effectively send, radio communications from Joliet, which is 23 or 24 miles from the city. Busse also stated that he had previously transmitted over 23 miles and that transmission distance depended upon the atmospheric conditions.
• 1, 2 Under these facts, we find no just cause for discharge. In Illinois, a public employee can only be discharged for "cause." (Fox v. Civil Service Com. (1978), 66 Ill.App.3d 381, 383 N.E.2d 1201; Ill. Rev. Stat. 1977, ch. 24, par. 10-1-18.) Cause has been defined as:
Generally, whether a charge is sufficient cause for discharge is for the board to determine. (Caliendo v. Goodrich (1975), 34 Ill.App.3d 1072, 340 N.E.2d 560; Joyce v. Board of Education (1945), 325 Ill.App. 543, 60 N.E.2d 431, cert. denied (1946), 327 U.S. 786, 90 L.Ed. 1013, 66 S.Ct. 702.) However, unlike agency findings of fact, determinations of cause are not prima facie true and correct and are subject to judicial review. (Caliendo v. Goodrich.) It remains the function of reviewing courts to determine if the charges brought are so trivial as to be unreasonable or arbitrary, if the agency acted on evidence that fairly tended to sustain the charges, and if its decision is related to the requirements of the service. DeGrazio v. Civil Service Com. (1964), 31 Ill.2d 482, 202 N.E.2d 522; Parkhill v. Illinois Civil Service Com. (1978), 58 Ill.App.3d 291, 374 N.E.2d 254.
Christenson's employment history with the department also has bearing upon the issue of cause. (Kreiser v. Police Board; Fox v. Civil Service Com.) The fact that Christenson served the department for 23 years and as a captain for 9 years without previous discipline infractions militates against his discharge. Defendants' contention that Christenson's work record serves as a factor in aggravation is supported by neither law nor reason.
• 4 We next turn to the question of whether Christenson's added misconduct of lying to a superior officer justified dismissal. We are guided by Kupkowski v. Board of Fire & Police Commissioners (1979), 71 Ill.App.3d 316, 389 N.E.2d 219. There, an officer on duty in a squad car negligently damaged property and lied to a superior officer about the accident. The appellate court noted (71 Ill.App.3d 316, 324-25) that:
(See also Mihalopoulos v. Board of Fire & Police Commissioners (1978), 60 Ill.App.3d 590, 376 N.E.2d 1105, as an example of dishonesty in connection with official functions — lying to an IBI agent during an official investigation.) Christenson lied about attending to personal business while on duty. Accordingly, this case is analogous to Humbles and Kreiser.
Defendants attempt to characterize Christenson's misconduct as repeated and premeditated lying. They contend that he lied (1) on June 22, 1977, when he gave the chief his written statements; (2) on August 26, 1977, when he gave a statement to the polygraph examiner; and (3) on August 29, 1977, when he notarized his August 26, 1977, statement and attested to its veracity.
In our view, Christenson's dishonesty involved a single incident. In his statement to the polygraph examiner, Christenson neglected to mention his first off-duty visit to the racetrack. However, he was not specifically questioned about that timespan. Rather, his statement concerned the period he was absent from duty. Accordingly, we view Christenson's statements to the polygraph examiner as a renouncement of his earlier subterfuge and essentially truthful in nature. Results of the polygraph examination support this view.
For all of the aforementioned reasons, we affirm the circuit court's determination that Christenson's misconduct was not so serious as to warrant the most severe sanction of discharge. We reverse, however, that portion of its order remanding the cause to the board with directions to reconsider any sanction it deems appropriate "other than discharge or suspension for a period of more than 120 days." Adhering to the supreme court's holding in Kreiser v. Police Board (1977), 69 Ill.2d 27, 31, 370 N.E.2d 511, that the proper disposition to make here is "to remand the matter to the Board for consideration of what action, if any, should be taken," we remand the cause to the board for further proceedings consistent with the views here expressed.
Affirmed in part, reversed in part and remanded with directions.
McGLOON and CAMPBELL, JJ., concur.