text:
    JEANNE KVIDERA, Plaintiff-Appellee and Cross-Appellant, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF SCHILLER PARK et al., Defendants-Appellants and Cross-Appellees.
    First District (3rd Division)
    Nos. 1—88—3170, 1—88—3183, 1—88—3490 cons.
    Opinion filed December 27, 1989.

      Harry J. Smith, Jr., of River Grove (Lawrence J. Czepiel, of counsel), for appellants.
    Thomas F. McGuire & Associates, Ltd., of Long Grove, for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Following an administrative hearing, the Board of Fire and Police Commissioners of the Village of Schiller Park (Board) found plaintiff, Jeanne Kvidera, guilty of violating various rules and regulations of the Schiller Park police department. Plaintiff was charged with 10 counts of misconduct and found guilty of using verbally abusive language to a civilian (count I), assisting in the composition of a letter which alleged marital infidelity of the husband of a candidate for the school board (count II), and attempting to impede the police department’s investigation of her involvement in those incidents (count III). The Board ordered plaintiff suspended for 30 days on each of the first two counts and discharged on the third count.

On administrative review, the circuit court sustained the Board’s findings of fact, but reversed the penalties imposed and remanded the case to the Board for the imposition of an “appropriate lesser sanction.” On remand, the Board reconsidered the charges and determined that the penalties which had originally been imposed were appropriate. The circuit court refused to confirm the penalties. Thereafter, the Board appealed the order of the circuit court and plaintiff cross-appealed. The appellate court, in dismissing both appeals, stated that in the absence of a contempt citation, in order to have an appealable order, the circuit court should either affirm or direct the Board to impose a specific sanction. (Kvidera v. Board of Fire & Police Commissioners (1988), 168 Ill. App. 3d 380, 522 N.E.2d 757.) The circuit court then remanded the case to the Board with orders to impose a maximum penalty, exclusive of termination, on all counts and to reinstate plaintiff in her position with the department. The Board complied with the order of the court and imposed a penalty of 30 days’ suspension, considered served, on all counts.

The Board appeals from this order, contending that the trial court erred by reversing its decision to discharge plaintiff for impeding an official investigation, and in the alternative, by not allowing it to impose a penalty of discharge on all three counts. Plaintiff cross-appeals, contending that (1) the Board did not have jurisdiction over her to conduct the hearing, (2) the Board’s findings of guilt were against the manifest weight of the evidence, and (3) the Board did not have authority to both suspend and discharge her. We affirm in part, reverse in part, and modify.

Plaintiff, a patrol officer with the Schiller Park police, testified that on August 28, 1985, she, Josephine Balgro and Nancy Selvaggio were at a restaurant in Glendale Heights. Balgro told plaintiff and Selvaggio that she was upset that a member of the Schiller Park school board, Irene Del Guidice, had told Balgro’s husband that she (Balgro) was having an extramarital affair. As a means of allowing Balgro to vent her feelings, the three ladies began to compose a letter. As the three of them developed ideas for the letter, Balgro wrote them down on a napkin. According to plaintiff, Balgro would decide what she wanted to say and plaintiff would then rephrase it. After the letter had been composed on the napkin, Balgro asked plaintiff if she would type it for her. Plaintiff refused; however, Selvaggio consented. Plaintiff testified that, on the night the letter was composed, the three of them talked about sending it to members of the school board, but there was no definite intent to mail it. In an earlier statement, which plaintiff made during the course of the police investigation, she stated that she knew that the letter would be sent to Del Guidice. The letter, which was included as a part of the record, alleged that the husband of Vicki Caliendo, a candidate for the Schiller Park school board, was having an extramarital affair. The letter also stated that because of Mr. Caliendo’s conduct, Vicki Caliendo was a poor choice for the school board, and that unless Del Guidice reconsidered sponsoring Caliendo as a member of the board, copies of the letter would be sent to the local newspaper. The concluding statement in the letter was that it would be sent to the other members of the school board. Plaintiff stated that on occasion, she had telephoned Balgro to inquire whether the letter had been mailed; however, she did not see the typewritten letter until after the police department had begun its investigation.

On September 4, 1985, at about 8:30 a.m., plaintiff was issuing parking tickets when Vicki Caliendo drove up to where she was standing. Caliendo indicated to plaintiff that she knew about the letter and that the “war was on.” When Caliendo persisted in yelling and screaming, plaintiff made verbally abusive comments to her. Plaintiff stated that she invited Caliendo to talk the matter over, but that Caliendo’s response was that she was going to get plaintiff on a charge of conduct unbecoming an officer and sped away. Plaintiff immediately reported the incident to her superior. She was subsequently informed that the Caliendos had lodged a formal complaint against her and had alleged her involvement in the letter to the school board.

Plaintiff stated that she told Balgro that she (Balgro) had gotten her into a lot of trouble with the letter and that there would be an investigation. She stated that she probably told Balgro to deny involvement in the letter in order to protect her (Balgro), since it was Balgro who had physically written it. Plaintiff did not remember telling Belgro that the police could not prove anything.

Balgro testified that it was plaintiff’s idea to write the letter for the purpose of “getting even with people.” It was agreed that the letter would be sent anonymously. While Balgro suggested that the letter be sent to the members of the school board, it was plaintiff who suggested that it be sent to Del Guidice. Balgro sent the letter to the seven members of the Schiller Park school board. She testified that from time to time, plaintiff would inquire of her as to whether she had mailed the letter, but that plaintiff did not encourage her to do so. Balgro also stated that on one occasion, when plaintiff asked whether the letter had been mailed, plaintiff remarked that it had been quiet and that she had not heard anything. According to Balgro, plaintiff told her to deny any knowledge of the letter because it was plaintiff’s job on the line; that if Balgro denied it, the police investigator would not know anything about it; and if Balgro would claim responsibility for the letter, then the police investigation would end.

Nancy Selvaggio testified that on the evening in the restaurant, it was plaintiff who brought up the extramarital affair of Caliendo’s husband. As plaintiff spoke, Balgro wrote down her statements. Selvaggio did not recall whether the plan to mail the letter was discussed at that time.

Vicki Caliendo testified that she, her husband and their eight-year-old daughter were residents of Schiller Park. On August 30, 1985, she received a copy of the letter which plaintiff had allegedly dictated. On September 4, Caliendo and her daughter drove up to where plaintiff was standing. After commenting to plaintiff concerning the letter, plaintiff verbally abused her. According to Caliendo, her daughter, who was in the front of the car, heard the exchange between her and plaintiff. Plaintiff was in uniform at the time of the incident. Caliendo also testified that her husband was a policeman in the Village of Franklin Park and that he had been a reserve officer in Schiller Park.

The Board found plaintiff guilty of three counts and imposed penalties of both suspension and discharge. On administrative review, the circuit court held that the findings of the Board were not against the manifest weight of the evidence; however, the court found the penalties to be excessive.

Initially, we address plaintiff’s contention, in her cross-appeal, that the Board lacked jurisdiction to conduct a hearing on the charges filed against her. Plaintiff first argues that the Board failed to commence the hearing within the time required by law. Section 10 — 2.1— 17 of the Illinois Municipal Code provides, in pertinent part:

“The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time.” (Ill. Rev. Stat. 1985, ch. 24, par. 10 — 2.1— 17.)

In the case at bar, the charges were filed on February 25, 1986, and the hearing was scheduled to commence on March 17, 1986. Plaintiff argues that the March 17 “hearing” was continued to March 29 at the request of the superintendent of police (complainant). Therefore, she maintains, the March 29 hearing, which commenced two days after the running of the statutory 30-day period, was improper. Plaintiff argued vigorously below that the March 17 proceeding was not a hearing.

Our review of the record reveals that at the proceeding on March 17, the parties discussed complainant’s compliance with plaintiff’s discovery requests; plaintiff requested additional discovery to include proof of the Board’s 1960 publication of the rules which it had adopted in that year; the parties entered into a stipulation to admit evidence at a later time during the hearings; and plaintiff presented a written motion to dismiss. Plaintiff acknowledges that she presented the motion to complainant only 10 minutes prior to the commencement of the proceedings that evening. Complainant requested additional time to prepare a response to the motion. The proceeding was then continued to March 29. Plaintiff voiced no objection to the continuance. Witnesses, who had been subpoenaed and were present, were dismissed for the evening.

The proceeding was recommenced on March 29, at which time complainant sought to amend the complaint and moved to dismiss one of the counts against plaintiff. Plaintiff then presented an oral motion to dismiss on the grounds that the hearing had not commenced within the statutory mandated time frame. Plaintiff’s motion was denied.

The statutory 30-day limit, within which time the hearing is to commence, is mandatory, and failure of the Board to comply with the terms of the statute divests it of jurisdiction over the case. (Sullivan v. Board of Fire & Police Commissioners (1988), 170 Ill. App. 3d 255, 258, 524 N.E.2d 733; Carrigan v. Board of Fire & Police Commissioners (1984), 121 Ill. App. 3d 303, 459 N.E.2d 659.) However, where the delay in commencing the hearing within the 30-day period is not attributable to the Board, but rather to the plaintiff, the statute is not violated. Massingale v. Police Board (1986), 140 Ill. App. 3d 378, 381, 488 N.E.2d 1289; Riggins v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 126, 437 N.E.2d 327.

A delay has been found to be attributable to the plaintiff where the plaintiff has made a voluminous discovery request (Riggins, 107 Ill. App. 3d at 129), or where the plaintiff requests a continuance (Massingale, 140 Ill. App. 3d at 381). However, regardless of the exact cause, the relevant inquiry is whether the delay was the result of the plaintiff’s behavior or, in the alternative, whether it was attributable to the Board. Perez v. Civil Service Comm’n (1987), 153 Ill. App. 3d 176, 182, 505 N.E.2d 1067.

Here, the hearing was originally set to commence on March 17, a time well within the statutory time period. While the proceeding on the 17th most resembled a pretrial hearing on motions and other preliminary matters, we need not characterize it since that fact is not dispositive of the issue. Clearly, the Board required additional time to search out proof of the 1960 publication and complainant required time to adequately prepare a response to plaintiff’s motion. Plaintiff asserts that as evidence of the Board's dilatory conduct, by the time of the March 29 proceeding, complainant had not prepared a written response to the March 17 motion and that he was attempting to amend the complaint. These facts are, of no import. Our review of the record reveals that at the March 29 proceeding complainant stated that he was prepared to respond to plaintiff’s March 17 motion. Further, complainant’s proposed amendments to the complaint, which included correcting the date that plaintiff dictated the letter, were minor and would not have necessitated a delay in the proceedings. There is no indication in the record that, but for plaintiff’s eleventh-hour motion to dismiss, the hearing would have proceeded on March 17 as planned. We also note that plaintiff acquiesced in the decision to continue the matter. Moreover, the fact that the March 17 hearing was scheduled not more than 20 days after the charges were filed serves to further negate plaintiff’s contention that the Board was dilatory. We conclude that the delay, if any, in the commencement of the hearing was attributable to plaintiff and the Board properly retained jurisdiction over this dispute.

Plaintiff alludes to the fact that the hearing could have been rescheduled within the 30-day period, but the Board chose to continue it until two days beyond that period. Once a delay in the initial hearing date is occasioned by the actions of the plaintiff, the statute is silent as to when the next hearing date must be set. (Sullivan, 170 Ill. App. 3d at 261.) The Board must retain some control and flexibility over the scheduling of hearings once the 30-day mandate is waived by plaintiff’s actions. Sullivan, 170 Ill. App. 3d at 261.

As a further jurisdictional attack, plaintiff argues that attorney Nolan, who represented the superintendent of police at the March 17 proceeding, did so without legal authority. Therefore, she urges, any action taken by the Board as a result of his representation was a nullity. Plaintiff relies on section 10 — 2.1—25 of the Illinois Municipal Code, which provides, in pertinent part:

“Attorney for the Board. The municipal attorney, in the event there is a separate attorney designated as a prosecutor for such municipality, shall represent the board unless the board is authorized by the municipality to employ its own attorney, and such attorney shall handle prosecutions before the board, but in the event that the municipal attorney shall both represent the municipality and be prosecutor in such municipality, then and in such event the governing body is hereby authorized to employ an attorney of its own choosing to represent said board.” (Ill. Rev. Stat. 1985, ch. 24, par. 10 — 2.1—25.)

The plain meaning of the statute is that where the functions of the village attorney and the municipal attorney are performed by different attorneys, the municipal attorney shall represent the Board. The purpose of the statute is to avoid conflicts of interest where the attorney who represents the interests of the Board is the same person who presents the case against the respondent. (Finn v. Board of Fire & Police Commissioners (1981), 98 Ill. App. 3d 879, 424 N.E.2d 976; Mank v. Board of Fire & Police Commissioners (1972), 7 Ill. App. 3d 478, 485, 288 N.E.2d 49.) In the instant case, the Board was represented by separate counsel, and attorney Nolan represented the superintendent of police as the prosecutor in this matter. Plaintiff does not argue that she was prejudiced by attorney Nolan’s representation of the superintendent, nor does she argue that Nolan impermissibly acted as both prosecutor and judge. She argues only that since attorney Nolan was not the attorney for the municipality, he was the wrong attorney. Plaintiff claims that since the Village of Schiller Park is not a home rule municipality, and since there was no ordinance which superseded the State statute, the village was without authority to appoint attorney Nolan. Plaintiff relies on Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523, 343 N.E.2d 919, cert. denied (1976), 429 U.S. 832, 50 L. Ed. 2d 97, 97 S. Ct. 95, as support for her argument. Stryker is inapposite. Stryker concerned the authority of a home rule municipality to enact ordinances which would change the statutory qualifications for members of the board of fire and police commissioners, and give authority to the village manager to appoint the chief and deputy chiefs of police. (62 Ill. 2d 523.) The issue raised by plaintiff’s argument and framed by her reliance on section 10 — 2.1—25 is whether the substitution of attorney Nolan, as the prosecutor, was in compliance with the State statute, not whether the village had authority to enact ordinances.

Here, as plaintiff correctly argues, the village was bound to comply with the State statute. We fail to see how its decision to appoint attorney Nolan to prosecute contradicts the terms of the statute. Further, acceptance of plaintiff’s argument would mean that a village, bound by the statute, could at no time substitute or appoint other legal counsel, even in instances where the village prosecutor is absent, ill, unavailable, or is confronted with a conflict. We do not read the statute as either expressly or implicitly negating the authority of the municipality to substitute legal counsel, and absent statutory language so prohibiting, we decline to do so.

This very same argument was recently considered and rejected in O’Malley v. Board of Fire & Police Commissioners (1989), 182 Ill. App. 3d 1019, 1023, 538 N.E.2d 888. At oral argument, plaintiff distinguished O’Malley on the basis that the municipality in that case, unlike here, was a home rule unit. While plaintiff’s distinction may be accurate, we note that in its resolution of this issue, the court, in O’Malley, made no reference to the municipality there as being under home rule. Therefore, we believe that the issue in O’Malley did not turn on home rule status, but rather, on whether the actions of the village comported with due process and legislative intent. We believe that the Board here acted in compliance with the terms and the intent of the statute. It hired a separate attorney as its representative, and Nolan was given authority to represent the superintendent. Moreover, although Nolan was not the attorney for the municipality on the date that these proceedings were commenced, the village board subsequently ratified his employment as prosecutor for purposes of this hearing. Accord O’Malley, 182 Ill. App. 3d at 1023.

Plaintiff next contends that the Board’s findings on each of the charges were against the manifest weight of the evidence. The scope of review of an administrative agency’s decision is a two-step process. (Carrigan, 121 Ill. App. 3d at 308.) Initially, the court must determine whether the agency’s findings of fact are against the manifest weight of the evidence. The court must then determine whether the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge does or does not exist. (Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 550-51, 426 N.E.2d 885.) Findings of an administrative agency on questions of fact are to be held prima facie true and correct (Ill. Rev. Stat. 1985, ch. 110, par. 3—110), and where an opposite conclusion is not clearly evident, the decision cannot be reversed (Everly v. Chicago Police Board (1983), 119 Ill. App. 3d 631, 637, 456 N.E.2d 992; Keen v. Police Board (1979), 73 Ill. App. 3d 65, 391 N.E.2d 190). That an opposite conclusion might be reasonable is not sufficient. (Keen, 73 Ill. App. 3d at 70.) Further, conflicts in testimony and the credibility of witnesses are properly left for the Board to resolve. (Price v. Board of Fire & Police Commissioners (1985), 139 Ill. App. 3d 333, 339, 487 N.E.2d 673.) In order to reverse the Board’s findings as being against the manifest weight of the evidence, we must be able to say that “all reasonable and unbiased persons, acting within the limits prescribed by law and drawing all inferences in support of the finding[s], would agree that the finding[s] [are] erroneous.” Sheehan v. Board of Fire & Police Commissioners (1987), 158 Ill. App. 3d 275, 287, 509 N.E.2d 467.

Plaintiff urges several points to support her argument that the Board’s findings were against the manifest weight of the evidence. However, we believe that her testimony alone was sufficient to support the Board’s findings. Plaintiff admitted her involvement in the charged misconduct. It is clear from the record that she verbally abused Caliendo. The fact that Caliendo might have been acting in an uncontrolled manner and that she had been exposed to abusive language in the past neither negates nor excuses plaintiff’s management of the situation. Also, from the testimony, the Board could have found that, even though plaintiff did not physically mail the letter, she had some interest, other than Balgro’s need to vent, to see that the letter was mailed. Additionally, plaintiff admitted that she asked Balgro to deny her (plaintiff’s) involvement in the incident. Finally, we are not persuaded by plaintiff’s testimony that her advice to Balgro to deny knowledge of the letter was for the benefit of Balgro. Based on this evidence, we cannot conclude that the Board’s findings were against the manifest weight of the evidence.

Prior to our examination of the reasonableness of the penalties imposed, we will address plaintiff’s final argument that the Board did not have authority to both suspend and to discharge her. Plaintiff relies on Burton v. Civil Service Comm’n (1979), 76 Ill. 2d 522, 394 N.E.2d 1168, and Le Desma v. Village of Burr Ridge Board of Fire & Police Commissioners (1978), 60 Ill. App. 3d 768, 377 N.E.2d 319, as support for this argument. The case at bar is distinguishable from both Burton and Le Desma. In Burton, our supreme court held that the discharge of the plaintiff was not permissible where a 10-day suspension, which was intended as the final disciplinary action, had already been imposed. (Burton, 76 Ill. 2d at 526-27.) The court held that where the entire course of misconduct was known to the department head when the penalty was initially decided, and the final determination was based on all of that misconduct, the Board could not subsequently modify or enhance the penalty by dividing the conduct into component parts. (Burton, 76 Ill. 2d at 523-28.) Likewise, in Le Desma, the chief of police imposed the penalty of a five-day suspension without pay, which was intended as a final disciplinary determination. (Le Desma, 60 Ill. App. 3d at 774.) The police commission was subsequently precluded from imposing other, more substantial, penalties for the same conduct which had been considered in deciding the initial penalty. (Le Desma, 60 Ill. App. 3d at 774.) In the instant case, the Board sought to impose separate sanctions for each of the three different incidents of misconduct. In Burton and Le Desma, there was an attempt to impose additional penalties on the plaintiffs for conduct which had previously been considered in the determination of a penalty. Here, there was no later attempt to reconsider, modify or to enhance a prior disciplinary action.

In this court’s earlier opinion in Burton v. Civil Service Comm’n (1978), 57 Ill. App. 3d 835, 844, 373 N.E.2d 765, aff’d (1979), 76 Ill. 2d 522, 394 N.E.2d 1168, we left this issue unresolved. We note that while the language in the supreme court’s opinion affirming Burton concerned the division of conduct into component parts, we do not interpret that language to imply that the Board, after a hearing and upon finding a plaintiff guilty of multiple charges, has authority to impose a separate 30-day suspension and discharge for each of the charges. The conduct sought to be avoided, and addressed in the narrow holding of Burton, was the imposition of additional penalties for conduct for which penalties had already been imposed.

The Board maintains that its authority to both suspend and to discharge plaintiff for each of the separate acts of misconduct is provided by statute. The relevant portion of the statute states:

“In case an officer or member is found guilty, the board may discharge him, or may suspend him not exceeding 30 days without pay.” (Ill. Rev. Stat. 1985, ch. 24, par. 10—2.1—17.)

The parties have not cited to any authority construing this particular portion of the statute and our research has revealed none. Thus, we must rely on the rules of statutory construction to determine the extent of the Board’s authority.

The primary rule of statutory construction is that the intent of the legislature should be determined and given effect. (Sullivan v. Board of Fire & Police Commissioners (1988), 170 Ill. App. 3d 255, 261, 524 N.E.2d 733.) The language of the statute must be given its plain and ordinary meaning (People v. Pettit (1984), 101 Ill. 2d 309, 313, 461 N.E.2d 991), and the sole function of the court is to interpret the law as it was enacted by the legislature (In re Estate of Swiecicki (1985), 106 Ill. 2d 111, 120, 477 N.E.2d 488). It is not the function of the court to annex new provisions or to substitute different ones, or to read into statutes exceptions, limitations or conditions which depart from its plain meaning. (Sullivan, 170 Ill. App. 3d at 261.) Further, the court must be mindful that the legislature, in passing legislation, did not intend absurdity, inconvenience, or injustice. Donnelly v. Edgar (1987), 117 Ill. 2d 59, 66, 509 N.E.2d 1015.

The language of section 10 — 2.1—17 is clear. The penalty, based upon a finding of guilt, may either be suspension or discharge, but not both. We believe that it was the intent of the legislature to design a scheme of disciplinary actions whereby misconduct of a serious nature would result in the more severe punishment of discharge, and less serious infractions would warrant suspension. We do not read the statute as giving authority for piecemeal imposition of disciplinary action beyond the limits as set by the statute. Had the legislature so intended, they could have included language that for each violation, included within a course of misconduct, suspensions and discharge may be imposed. Assuming, arguendo, as in the case at bar, that the Board is permitted to impose a penalty of suspension followed by discharge, the practical effect of such a scheme of punishment would be to impose a constructive discharge at the moment the suspension is effected.

We also decline to accept that the legislature intended to permit the imposition of more than one 30-day suspension as a final disposition for a course of misconduct. We note that a 30-day suspension without benefit of pay is a harsh penalty. To permit the imposition of consecutive 30-day suspensions effectively defeats the statutory limitation. (See Cappitelli v. Rodewald (1988), 171 Ill. App. 3d 875, 525 N.E.2d 1037 (120-day suspension of fireman not permitted by statute for act of misconduct).) We believe that plaintiff’s acts of misconduct, though necessarily considered separately for purposes of making a determination of guilt, must be considered in the aggregate to determine which of the alternative sanctions is warranted based on the findings.

Having determined that only one disciplinary action is permissible, we must decide the effect of the Board’s attempt to impose both sanctions. The Board urges that if only one sanction is permissible, then it should be discharge. Plaintiff argues, relying on Burton, that when the Board suspended her, that was the extent of the punishment allowed and the subsequent termination was a nullity. We disagree. It is clear from the record that the Board did not intend that plaintiff return to her position with the police department. The Board’s attempt to impose the suspension, followed immediately by discharge, effectively discharged her; thus, only one penalty was imposed for the total of her misconduct.

• 10, 11 Finally, the Board contends that the trial court erred in reversing its decision to discharge plaintiff based on the finding of guilt that she impeded an official investigation. In the alternative, the Board argues that the court erred in not permitting it to decide on a penalty of discharge in consideration of plaintiff’s guilt on all three charges. Contrarily, plaintiff argues that the decisions to suspend and to discharge were arbitrary and capricious. A police officer may only be discharged for cause. (Ill. Rev. Stat. 1985, ch. 24, par. 10—2.1—17.) Cause has been defined as 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 reason for his no longer holding that position. (Kreiser v. Police Board (1976), 40 Ill. App. 3d 436, 441, 352 N.E.2d 389, aff'd (1977), 69 Ill. 2d 27, 370 N.E.2d 511; Schlobohm v. Rice (1987), 157 Ill. App. 3d 90, 510 N.E.2d 43.) While the Board is afforded considerable discretion in determining what constitutes cause for discharge (Westby v. Board of Fire & Police Commissioners (1977), 48 Ill. App. 3d 388, 394, 362 N.E.2d 1098), its determination is subject to judicial review (Burgett v. Collinsville Fire & Police Commissioners (1986), 149 Ill. App. 3d 420, 424, 500 N.E.2d 951). Where the Board’s findings are so trivial as to be unreasonable or arbitrary or are so unrelated to the requirements of the service, reversal is warranted. (See, e.g., Christenson v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 472, 404 N.E.2d 339 (discharge reversed where plaintiff found to have driven his vehicle outside city limits for nonofficial purpose and subsequently lied regarding the improper use); Humbles v. Board of Fire & Police Commissioners (1977), 53 Ill. App. 3d 731, 368 N.E.2d 1049 (discharge reversed where police officer found to have failed to tell his superior that his reason for attending court related to a personal matter and for failure to obey his superior’s command); Burgett, 149 Ill. App. 3d 420 (discharge reversed where officer found guilty of secreting himself and patrol car outside city limits and for failure to perform his patrol duties for a three-hour period).) Under this rule, the Board’s decision will stand even if the court considers another sanction more appropriate. Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252, 258, 449 N.E.2d 845.

While we have found no cases in which the conduct warranting discharge directly parallels the facts in the present case, our review of cases with some similar acts of misconduct has provided some guidance. In Nation v. Board of Fire & Police Commissioners (1976), 40 Ill. App. 3d 384, 352 N.E.2d 464, the plaintiff was found guilty of the unauthorized entry into a co-worker’s locker. In the locker, among other things, the plaintiff found a black book which contained allegations against him and some other officers. (Nation, 40 Ill. App. 3d at 385.) The plaintiff also found letters of a personal nature written to the co-worker from a married woman. Plaintiff made copies of the letters and arranged for them to be delivered to the woman’s husband. (Nation, 40 Ill. App. 3d at 385.) In affirming the Board’s order of discharge, the appellate court stated that the plaintiff had failed to uphold the high standards and duties of his office and that the scandal which his actions helped to create could easily undermine public confidence in the police force and decrease its effectiveness. Nation, 40 Ill. App. 3d at 387-88.

In Crowell v. Police Board (1975), 32 Ill. App. 3d 552, 553-54, 336 N.E.2d 573, the plaintiff’s discharge was upheld where there was a finding that he had solicited a bribe from a traffic violator and subsequently attempted to persuade the witness to abandon his charges and to change his story. The plaintiff also requested that the witness write a letter to the police department to say that the plaintiff was not the officer involved. (Crowell, 32 Ill. App. 3d at 552.) On administrative review, the court held that the Board’s finding that the plaintiff’s conduct impeded the police department’s efforts of “achieving its goals of maintaining honesty and integrity within the [department” and its order to discharge him were neither improper nor inappropriate. Crowell, 32 Ill. App. 3d at 557.

We do not equate plaintiff’s conduct here with that of the plaintiffs in Nation and in Crowell; however, we do believe that, taken all together, plaintiff’s conduct could have the effect of undermining the public confidence in the Schiller Park police department and impeding the department’s efforts to maintain honesty and integrity. Plaintiff argues that there was no evidence that the private use of the abusive words to Caliendo was inconsistent with the image of a police officer or that Caliendo had any less respect for plaintiff as a result of this encounter; that her conduct in composing the letter was done when she was off-duty; and that there was no evidence that her conduct resulted in disrespect by the public for the department or that the public confidence in the department was impaired. We find plaintiff’s arguments to be unpersuasive. The Board responds that the Schiller Park community is small and that these incidents caused some notoriety. The Board maintains that plaintiff’s conduct had a tendency to destroy public respect and to adversely affect the lives of many individuals. We agree.

Plaintiff’s remarks to Caliendo were intended to be harsh and offensive. We do not think that it would be unreasonable for the police department to expect that a trained police officer, dealing with emotionally charged situations, such as the one presented here, would exercise some degree of restraint. Further, plaintiff’s participation in the development of the letter and her subsequent interest in its distribution created a situation which caused public embarrassment to the individuals named therein. Her attempts to silence Balgro during the course of the police investigation raise serious questions concerning her integrity and trustworthiness. These acts of misconduct by a police officer are not to be lightly taken.

Plaintiff cites this court to several cases wherein the court has found discharge to be an excessive punishment. Specifically, plaintiff cites to Kreiser (69 Ill. 2d 27, 370 N.E.2d 511) and to Christenson (83 Ill. App. 3d 477, 404 N.E.2d 339), where the reviewing court held that discharge was not required for a police officer having given a false statement. We note, as did the trial court, that the conduct in these cases, and others cited by plaintiff, involved members of the police department, but not the public. While we agree that the use of the abusive language and the participation in the composition of the letter standing alone might not warrant dismissal, we believe that plaintiff’s conduct as a whole was not such a trivial matter as to be unreasonable and arbitrary grounds for her discharge.

For the foregoing reasons, we affirm that part of the circuit court’s decision regarding the Board’s jurisdiction and its findings that the evidence was not against the manifest weight of the evidence. We reverse the court’s order to the Board to impose a penalty exclusive of termination and, consistent with this opinion, we modify the Board’s disciplinary decision to impose a penalty of discharge.

Affirmed in part; reversed in part and modified.

WHITE and CERDA, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
    GAIL HANSON KING et al., as Co-Ex’rs, Respondents-Appellants, v. EDITH MAE HANSON, Claimant-Appellee.
    First District (3rd Division)
    No. 1—88—3284
    Opinion filed December 27, 1989.

      Rosenfield, Kaplan & Halperin, of Chicago, for appellants.
    Daniels & Sheen, Ltd., of Elmhurst (Terence M. Sheen, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

This appeal originated as a result of a judgment on a claim filed by Edith Mae Hanson (claimant) against the estate of Fritz G. Hanson (decedent).

The facts of this case are not in dispute. Claimant was married to the decedent in June 1925. The couple divorced in Minnesota in 1945. The Minnesota divorce decree provided that the decedent was to pay claimant the monthly sum of $125 for alimony and support of the minor children born out of their union. In 1946, decedent left Minnesota and relocated to Illinois. In 1952, claimant also moved to Illinois, and for a period of time, resided across the street from the decedent. Claimant moved to Florida in 1974. Decedent made no payments on the judgment for the past 10 years, and claimant has made no demand for the past-due payments since about 1951. Decedent died in Illinois in 1987.

Claimant filed a claim for $15,000 against the decedent’s estate for arrearages of alimony and support accrued from 1977 until decedent’s death. The Minnesota decree has never been modified and has remained in full force and effect. Respondents admitted to the existence of the Minnesota judgment and agreed to proceed on the claim under the Illinois Probate Act (Ill. Rev. Stat. 1985, ch. 1101/2, par. 18—1 et seq.). After an evidentiary hearing and consideration of memorandum of law, the trial court held that the Minnesota judgment was entitled to full faith and credit and that enforcement of the divorce decree was governed by Minnesota law. Accordingly, the court entered a judgment against the decedent’s estate for $15,000. Respondent appeals, contending that the trial court erred by finding that Illinois was bound to give the Minnesota judgment full faith and credit. We modify the judgment and affirm.

Respondents first contend that the Minnesota judgment was not entitled to full faith and credit. They argue that because the judgment was subject to modification, it was not final, and therefore, it was not entitled to be given credit in Illinois. The full faith and credit clause of the Constitution compels recognition of valid, nonmodifiable judgments of sister States. (Sistare v. Sistare (1910), 218 U.S. 1, 54 L. Ed. 905, 30 S. Ct. 682; Griffin v. Griffin (1945), 327 U.S. 220, 90 L. Ed. 635, 66 S. Ct. 556.) Full faith and credit requires that a judgment be given the same conclusive effect in the forum State as it has in the rendering State, and the judgment is subject only to such pleas and defenses as would be permissible in the State where the judgment was rendered. (Haas v. Haas (1969), 282 Minn. 420, 165 N.W.2d 240, overruled on other grounds, Matson v. Matson (Minn. 1981), 310 N.W.2d 502.) It is well settled that the forum State must apply the laws of the rendering State to determine the extent of modification of a judgment. (Sullivan v. Sullivan (1981), 98 Ill. App. 3d 928, 932, 424 N.E.2d 957.) Minnesota courts have held that so long as a judgment for alimony and support in installments is absolute in its terms and remains unmodified, or at least until an application for modification has been made, it is final as to installments which have accrued and is entitled to full faith and credit in the courts of a sister State in an action founded upon it. Tell v. Tell (Minn. 1986), 383 N.W.2d 678; Dent v. Casaga (1973), 296 Minn. 292, 296, 208 N.W.2d 734, 737; Holton v. Holton (1922), 153 Minn. 346, 190 N.W. 542, overruled on other grounds, Matson v. Matson (Minn. 1981), 310 N.W.2d 502.

The current Minnesota statute concerning modification of maintenance and support orders provides, in pertinent part:

“Subd. 1. After an order for maintenance or support money temporary or permanent, or for the appointment trustees to receive property awarded as maintenance or support money, the court may from time to time, on petition of either of the parties or on petition of the public authority responsible for support enforcement, modify the order respecting the amount of maintenance or support money, and the payment of it *** except as herein otherwise provided.
Subd. 2. Modification. *** A modification of support or maintenance may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion on the responding party. (Minn. Stat. §518.64 (1989).)

Prior to April 1988, a modification to decrease support or maintenance would be retroactive only with respect to any period during which the support obligor had a motion pending for modification. A modification which would increase support or maintenance would not be retroactive unless the obligor had not substantially complied with the previous order. (Minn. Stat. Ann. §518.64 (West 1969).) Claimant argues that since the judgment was never modified, it was not subject to modification. We cannot agree with claimant’s reasoning. The fact that the judgment was not modified does not automatically convert it to nonmodifiable status. Our reading of the current statute is that installments which have accrued prior to the filing of a petition to modify are not subject to retroactive modification. Prior to April 1988, and at the time this action was commenced, petitions to increase support or maintenance did not preclude retroactive modification of past-due installments. Only modifications which decreased support limited the extent of modification.

Sistare stands for the proposition that full faith and credit requires the forum State to recognize installments accrued under the decree of the rendering State unless accruals are subject to retrospective modification in the rendering State. (218 U.S. at 16-17, 54 L. Ed. at 910-11, 30 S. Ct. at 686.) This proposition is grounded on the assumption that finality is a prerequisite to full faith and credit. Under Minnesota law, even though the decree may be subject to modification, it is treated as final. Thus, under Sistare the judgment is entitled to be given full faith and credit.

However, even if we were not bound under Sistare to give credit to the judgment, we believe that the decision in Light v. Light (1958), 12 Ill. 2d 502, 147 N.E.2d 34, would require it. In Light the Illinois Supreme Court held that a Missouri alimony decree was entitled to full faith and credit with respect both to unpaid accrued installments and to modifiable future installments regardless of whether it was subject to retroactive modification. The Light court placed great reliance on the language in Justice Jackson’s concurring opinion in Barber v. Barber (1944), 323 U.S. 77, 89 L. Ed. 82, 65 S. Ct. 137, that the full faith and credit clause neither requires finality nor, for that matter, even mentions judgments. Therefore, even if the judgment is modifiable, under Light, Illinois will give it full faith and credit.

Respondents argue that the policy reasons which supported the Light decision are not present in the instant case, and therefore, full faith and credit need not be given to the judgment. In Light, the court stated that full faith and credit was required lest the States “become sanctuaries within which obligations which have been fully and fairly adjudicated in another jurisdiction may be escaped.” (Light, 12 Ill. 2d at 510.) We agree that the court there was concerned with a somewhat different situation than exists in the present case. However, we see no reason why the decedent should be permitted to escape through death that which he was legally bound to do when he was living. We conclude that the trial court was correct in deciding that full faith and credit should be given to the Minnesota judgment.

Respondents’ second contention on appeal is that Illinois law should govern enforcement of the Minnesota judgment and that under Illinois law, enforcement would be barred by the statute of limitations, laches, and equitable estoppel. Claimant contrarily argues that Minnesota law governs and that under Minnesota law, equitable defenses are not available to defeat a claim for accrued alimony and support. Respondent’s argument, which is premised on the argument that the claim should not be given full faith and credit, must fail. As was noted above, the effect of giving full faith and credit to a sister State’s judgment is to permit only those defenses to enforcement which the rendering State would permit. The Minnesota courts have consistently held that equitable defenses are not available in an action based on accrued payments due under a divorce decree. Miller v. Miller (Minn. 1985), 370 N.W.2d 481; Ryan v. Ryan (1974), 300 Minn. 244, 219 N.W. 912.

Respondent argues that claimant has been silent for 42 years and that she should not now be permitted to collect on her judgment. The record clearly demonstrates that claimant is not attempting to recover payments for the 42 years since the entry of the judgment. She seeks only to recover those payments which have accrued for the 10 years preceding the death of the decedent. In Minnesota, each installment for support is treated separately and recovery is allowed for those payments which accrue within 10 years from the date of the commencement of the action. Dent, 292 Minn. at 297, 208 N.W.2d at 737.

In the case at bar, the claim to recover accrued support payments was filed on October 28, 1987. Therefore, only those installments which accrued from and after October 28, 1977, until July 21, 1987, when decedent died, would be recoverable. Neither party raises as an issue the correctness of the amount of the judgment. However, we note that the trial court incorrectly rendered a judgment on payments within the 10-year period, inclusive of a two-month period after the death of the decedent. This court, sua sponte, reduces the judgment to reflect the correct amount. Accordingly, the judgment of the trial court is reduced from $15,000 to $14,750.

Respondents also argue that since the claim was filed in Illinois, that was tantamount to the registration of a foreign judgment and therefore the laws of Illinois should govern. We disagree. We note that the procedural formalities which are attendant to the registration of a foreign judgment are not present here. Further, respondents admitted to the existence of the Minnesota decree and in order to “obviate [claimant’s] problem in enrolling the Minnesota judgment [respondents] said [they] would admit it.” The Minnesota judgment was valid and “final.” Respondents point to no valid reason which would lead this court to find that recognition and enforcement of the judgment was improper.

For the foregoing reasons we modify the judgment of the circuit court and affirm.

Affirmed as modified.

WHITE and CERDA, JJ., concur.


author: JUSTICE CERDA

text:
    FREDERICK SILER, Plaintiff-Appellee, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellants (Unemployment Cost Control Service, Inc., Defendant).
    First District (3rd Division)
    No. 1—89—0149
    Opinion Filed December 27, 1989.

      Neil E Hartigan, Attorney General, of Springfield (Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Ron Fritsch, of Legal Aid Bureau, of Chicago, for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

This appeal is taken from an administrative review action in which the circuit court overturned the Board of Review’s (Board’s) determination that plaintiff was ineligible for unemployment benefits because of “misconduct connected with his work.” The Board contends that the circuit court committed reversible error in overturning its ruling.

On January 22, 1988, the BBR Chicago Youth Center fired plaintiff, who had been employed there for 71/a years as a maintenance engineer. Plaintiff was found to be eligible for unemployment benefits by a claims adjudicator in February 1988. His former employer appealed the decision.

At a hearing in March 1988, plaintiff’s former supervisor, Delores Bader, testified by telephone that she gave plaintiff several verbal and written notices warning plaintiff of his failure to perform certain aspects of his work properly and that she put him on 90 days’ probation in September 1987. The Youth Center provides programs for 1,000 children. Although only two of the written warnings are included in the record on appeal, Bader testified that her complaints against plaintiff included that the second- and third-floor rooms were not properly done, that a workman’s equipment was not secured, that a rusty vent valve caused a radiator to leak, and that there were dirty windows, windowsills and carpeting in several of the rooms. Bader’s report also stated that plaintiff had failed to note in his log certain repairs that were needed and failed to order supplies when needed. Bader sent plaintiff a termination notice on January 20, 1988. This notice commented that plaintiff’s performance had improved during the first 20 days of probation, but deteriorated during October and November.

Plaintiff testified in person that he did not recall receiving a warning in September 1987 nor did he remember any other verbal warnings, except one final warning regarding bubble gum found on the floor. Plaintiff testified that he had called Bader’s supervisor to complain of her treatment of him. Plaintiff testified that the building was under rehabilitation and that is “why stuff was on the carpet,” and that he was doing his job. He also said the radiator leaked because a sump pump got backed up.

Bader countered that plaintiff’s performance had deteriorated over the last V-fe years and that she had no personal animosity toward plaintiff.

Both the referee and the Board of Review of the Illinois Department of Employment Security held that the Youth Center discharged plaintiff for “misconduct connected with his work,” in violation of section 602(A) of the Illinois Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 432(A)). The referee and the Board found that the plaintiff’s job performance began to deteriorate a year and a half prior to his discharge and that plaintiff had been given warnings that resulted in his probation. It was further found that plaintiff was discharged after he failed to improve and continued to disregard the safety and sanitary requirements of the Youth Center. The circuit court reversed the Board of Review.

Under section 602(A) of the Unemployment Insurance Act, a former employee is ineligible for benefits if he has been discharged for “misconduct connected with his work.” Plaintiff contends that his inadequate performance did not amount to “misconduct.” When a court considers a matter on administrative review, a court may not resolve conflicts in testimony, reweigh the evidence, or determine the credibility of witnesses. (Peterson v. Board of Trustees (1973), 54 Ill. 2d 260, 262-63, 296 N.E.2d 721.) On administrative review a court should determine whether the findings of the agency are contrary to the weight of the evidence. (Walthall v. Department of Labor (1986), 146 Ill. App. 3d 701, 703, 497 N.E.2d 782.) That the court might have reached a different conclusion, or that an opposite conclusion might be reasonable, is not sufficient to set aside the agency’s decision. O'Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 456 N.E.2d 998.

The Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 300 et seq.) provides insurance benefits to alleviate the economic hardship occasioned by involuntary unemployment. However, the employee claimant bears the burden of establishing his entitlement to benefits under the Act. (Clark v. Board of Review (1984), 126 Ill. App. 3d 559, 467 N.E.2d 950.) If a person is discharged because of his own misdeeds, the Act does not provide benefits. Popoff v. Department of Labor (1986), 144 Ill. App. 3d 575, 494 N.E.2d 1266.

Prior to January 1, 1988, Jackson v. Board of Review (1985), 105 Ill. 2d 501, 475 N.E.2d 879, had defined “misconduct” under the Act as

“conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.” (Emphasis added.) 105 Ill. 2d at 511-12.

Thus, either wilful or wanton conduct or carelessness or negligence could constitute “misconduct” under the prior Act.

The present definition of “misconduct” was added to section 602(A) of the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 432(A)) effective January 1, 1988, prior to the trial of this case. The Act states:

“For the purposes of this subsection, the term ‘misconduct’ means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit.” Ill. Rev. Stat. 1987, ch. 48, par. 432(A).

There is no reference to “carelessness or negligence” in the new definition of misconduct. “Deliberate and wilful” misconduct is required in order to render a person ineligible for benefits.

The legislature left out of the new definition of “misconduct” any mention of carelessness or negligence of any degree. This indicated that the legislature intended that persons discharged for incapacity, inadvertence, negligence or inability to perform assigned tasks should receive unemployment benefits.

Neither the referee nor the Board of Review made a finding that the plaintiff deliberately and wilfully violated the instructions of his employer. The referee’s decision in this case was as follows:

“In the instant appeal, there was direct conflict in the testimony between the parties as to whether the claimant was following correct procedures of which he was aware. The Referee finds the employer to be the most credible. It appears that the claimant disregarded the employer’s requirements as to safety and sanitation. His conduct was in disregard of rules of which he was aware and constituted misconduct. The claimant is subject to disqualification under Section 602(A) of the Act.”

Merely not “following correct procedures” or disregarding “the employer’s requirements as to safety and sanitation” does not suffice to comply with the new Act. Even if we deem the conclusion or findings of the referee as sufficient to comply with the new Act, the evidence presented had to be sufficient to meet the manifest weight of the evidence standard. Although plaintiff’s behavior in performing his duties may have been in violation of his superior’s orders, it did not constitute a deliberate and wilful violation of a rule or policy. The Board of Review’s decision was against the manifest weight of the evidence. A reviewing court will look at all the evidence in support, as well as against, a challenged finding. Gee v. Board of Review (1985), 136 Ill. App. 3d 889, 483 N.E.2d 1025.

Affirmed.

FREEMAN, P.J., and RIZZI, J., concur.


author: JUSTICE McNAMARA

text:
    SIX-BROTHERS KING DRIVE SUPERMARKET, INC., Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    First District (3rd Division)
    No. 1—87—2745
    Opinion filed December 27, 1989.

      Burke & Smith, Chartered, of Chicago (Raymond J. Smith, Mary Patricia Burns, and John H. Wickert, of counsel), for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Shawn M. Denney, Solicitor General, and Bret A. Rappaport, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court;

Plaintiff, Six-Brothers King Drive Supermarket, sought judicial review of final tax assessments made by defendant Illinois Department of Revenue (the Department). The trial court dismissed the cause for want of jurisdiction due to plaintiff’s failure to file the required appeal bond, and the court entered judgment in defendant’s favor. Plaintiff appeals.

On December 2, 1981, the taxpayer was issued a notice of tax liability for retailers’ occupation and municipal retailers’ occupation tax deficiencies of $325,703, civil fraud penalty of $65,140.60 and interest computed through December 31, 1982, in the amount of $130,677.23. The notice covered the period of September 1979 through December 1981, showing a total liability of $521,520.83 with additional accumulated interest.

On December 19, 1986, a hearing was held by an administrative law judge of the Department of Revenue. In opening statements, the attorneys indicated the liability was based on the lack of books and records and the disallowance of deductions. The Department proceeded with its case in chief. In regard to whether the taxpayer had previously seen the original and reaudit reports, a brief recess was held so that the taxpayer’s attorneys could confer with its corporate president, Khalil Sweilem. Sweilem’s attorney then informed the ALJ that he had just learned that the taxpayer’s records and books were now available. In addition, Sweilem no longer wished that attorney to represent the taxpayer. The Department objected to counsel’s motion to withdraw as taxpayer’s counsel, due to the age of the case, the untimeliness of the motion, and the fact that the auditor had repeatedly requested records.

The ALJ requested that the auditor testify. Auditor Juricek testified regarding the written and verbal requests for the records. The ALJ then informed Sweilem that his law firm could withdraw if he wished, but there would be no continuance and Sweilem could not represent the corporate taxpayer. Sweilem, however, dismissed his attorneys. He asked for a new attorney, while acknowledging that he had signed a power of attorney contained in the original audit report appointing his previous attorneys. Sweilem insisted he had never been told about the request for records. The request for a continuance was denied, as was the Department’s request for additional time to produce documentary evidence in support of the civil fraud penalty. Following Juricek’s testimony, the hearing was closed, and the matter proceeded to judgment.

In a subsequent written decision, the ALJ found that the inconvenience to the parties, witnesses and judge required that a continuance request be supported by grave reasons once a case reaches the trial stage (Schneider v. Seibutis (1972), 3 Ill. App. 3d 323, 279 N.E.2d 37), and that here the taxpayer “failed to give any explanation for the sudden availability of previously unavailable records, and so continuance on the ground of new evidence is unjustified.” Similarly, substitution of attorney after the trial has begun is up to the discretion of the judge (In re Marriage of Milovich (1982), 105 Ill. App. 3d 596, 434 N.E.2d 811), and was denied here because the taxpayer “gave no compelling reason for the seemingly last minute decision to change attorneys,” which appeared to be nothing more than a delay tactic. Moreover, the ALJ refused to permit the corporate president to act on behalf of the corporation pursuant to section 2— 416 of the Code of Civil Procedure, which provides that a corporate officer may represent the corporation in court only where the action was “for money not in excess of $2,500, exclusive of interests and costs, or for collection of taxes not in excess of that amount.” Ill. Rev. Stat. 1985, ch. 110, par. 2—416.

The ALJ concluded that the notice of tax liability should be reduced in accordance with the reaudit results and finalized as amended, and that the civil fraud penalty would stand.

On January 26, 1987, following the administrative hearing, defendant assessed over $300,000 of unpaid State and municipal retailers’ occupation and use taxes against plaintiff. On March 13, 1987, plaintiff filed a complaint for administrative review. Defendant filed a motion to dismiss the complaint for failure to post an administrative review bond as required by statute. The trial court granted the motion to dismiss without reaching the merits of the appeal and entered judgment for defendant.

The taxpayer contends no meaningful hearing was given because the ALJ denied the taxpayer’s request for a continuance after its president declared that he now had, and would give to the Department, all the requested records and books, and also wished to obtain new counsel. The result, it maintains, was an unfair hearing because final judgment was entered without review of the taxpayer’s books and records.

The hearing was attended by Sweilem, represented by Messrs. William E. Borenstein and Ira M. Burman. Borenstein objected when the Department introduced exhibit 13, 90 pages of audit workpapers, and asked for a brief recess because his client had not seen those papers. After the recess, and no further objections by counsel, exhibit 13 was admitted. Sweilem then stated, “I have [an] objection.” The ALJ replied, “I’m sorry, sir. You’re represented by counsel.”

Borenstein ■ again objected when the Department introduced group exhibit 14, the reaudit workpapers. Borenstein explained that the auditor’s comments and backup materials had never been sent to taxpayer’s counsel. After an off-the-record discussion, Borenstein stated:

“Your Honor, I have conferred with Mr. Sweilem, president of the Taxpayer, who advises me that he’s in possession of the books and records of the corporation for the audit period in question.
As counsel for the Department realizes from the audit workpapers, there were no books and records made available to the auditor at the time of the initial audit and the reaudit, and he based his assessment and reductions of tax liability upon certain estimates and supplier information which, pursuant to his own comments, is incomplete.
As a result of the existence of these records and the statements by the Taxpayer’s principal officer that he no longer wishes us to represent him, we would request and motion to this court that we be granted leave to withdraw as counsel for the Taxpayer and this matter be set over for a time when Mr. Juricek [Department’s auditor] can review the records in question for purposes of arriving at an assessment based on the actual books and records.”

The ALJ indicated she would like to examine the auditor regarding the request for books and records. The ALJ also found that neither a motion for a continuance nor for new counsel was timely. Borenstein asked the court for direction as to how to proceed. The court stated: “Well, I’ll leave that up to the client. He can either allow you to finish representing him today, or he can allow me to make my decision on the evidence that’s already been put into the record.”

The Department then called Michael Juricek, its auditor, who testified that he had repeatedly requested, in writing and verbally, the books and records of the taxpayer. The ALJ asked Borenstein if he was going to cross-examine.

“BORENSTEIN: Your Honor, I don’t know whether I’m employed by the client at the moment.
THE JUDGE: I understand.
BORENSTEIN: Okay.
THE JUDGE: Is your attorney, Mr. Borenstein, employed by you at this point in time, sir?
SWEILEM: This is first time I met him here. I never talked to him.
THE JUDGE: That’s not what I asked you, sir.
Is he your attorney at this point in time?
BORENSTEIN: Excuse me. Is Mr. Burman your attorney?
SWEILEM: Yes.
BORENSTEIN: All right.
THE JUDGE: Mr. Burman, would you like to cross-examine?
BURMAN: Mr. Borenstein is with my firm, so they hired me and they also hired Mr. Borenstein. If we are still representing the client, then Mr. Borenstein can proceed.
THE JUDGE: Sir?
BORENSTEIN: Is that all right with you?
SWEILEM: What, to stay on? No, I feel I’m not well represented. I need another lawyer.”

The court then granted the motion to withdraw. The ALJ admonished Sweilem that he was a corporate officer, and had no law degree or license. Sweilem responded:

“No. I am asking you, your Honor, to give me another chance, honestly to have a — hire a lawyer and to go back to all records and books and work it out, see the difference in good faith.
I’m willing, you know, and I deserve a second chance as anybody, honest, because I didn’t have this the first time.”

The ALJ referred to Juricek’s testimony that he repeatedly requested the records, which Sweilem denied having. Sweilem stated he could not remember if he was president at that time.

“SWEILEM: This is before this arbitrary, you know, case, and I can’t remember what is being done on this time.
THE JUDGE: All right.
SWEILEM: But can I ask, you know—
THE JUDGE: All right.
SWEILEM: —a couple of questions?
THE JUDGE: No, sir.
SWEILEM: I can’t?
THE JUDGE: You’re not an attorney.
SWEILEM: Okay.
THE JUDGE: I can’t let you represent a corporation.
SWEILEM: Then I am entitled to have an attorney. You know what I mean?
THE JUDGE: Well, I don’t think your motion for substitution of attorneys is timely, and you fired the first two attorneys you had.
SWEILEM: I didn’t fire them. I said I’m not well represented.
I need time to think about what’s being done because they surprised me, you know, with these things here. I didn’t know the guy, just here in this room.
THE JUDGE: But you did know Mr. Burman, did you not, Ira Burman?
SWEILEM: Yes, I knew him.
THE JUDGE: You knew him and retained him, and you waited till the morning of trial—
SWEILEM: He never told me about, you know, they asking about records and books. I never know [sic] about it.
THE JUDGE: All right, sir.
SWEILEM: He never told me to make them available to him,—
THE JUDGE: All right.
SWEILEM: —and he never asked me for them.
THE JUDGE: It’s my interpretation of the existing law that I cannot permit you to represent the corporation, and your attorneys are no longer with us. Therefore, we’re going to close the hearing at this time.”

The Department asked to reoffer the reaudit report, and the ALJ admitted Department’s exhibit 14. The Department asked for time to obtain a copy for the civil fraud penalty. The ALJ refused, but permitted the Department to call Juricek on that file. The two pages of transcript show that the Department asked only a few questions about the basis of the civil fraud penalty imposed by the auditor. The ALJ then stated, “This matter is now closed.”

We agree with the taxpayer that what transpired before the ALJ did not constitute a meaningful hearing. Illinois courts have a duty to ensure that due process and impartial hearings were afforded in administrative hearings. (Lee v. City of Peoria (7th Cir. 1982), 685 F.2d 196.) An administrative body possesses broad discretion in conducting its hearings, but that discretion must be exercised judicially and not arbitrarily. (Brown v. Air Pollution Control Board (1967), 37 Ill. 2d 450, 227 N.E.2d 754; Montgomery v. Department of Registration & Education (1986), 146 Ill. App. 3d 222, 496 N.E.2d 1100.) Under the fourteenth amendment, the opportunity to be heard should not be arbitrarily limited and fair consideration of an individual’s objections should be included. Mahonie v. Edgar (1985), 131 Ill. App. 3d 175, 476 N.E.2d 474.

The ALJ here denied the taxpayer’s request for a continuance. An administrative agency possesses broad discretion in determining whether or not to grant a continuance. (Phillips v. Civil Service Comm’n (1988), 172 Ill. App. 3d 278, 526 N.E.2d 549.) However, a motion for a continuance should be granted by a hearing officer whenever justice requires it. (Joliet Sand & Gravel Co. v. Pollution Control Board (1987), 163 Ill. App. 3d 830, 516 N.E.2d 955.) The denial of the motion for a continuance here resulted in injustice for two reasons.

First, the refusal to continue the hearing meant that the Department could not review the books and records which were now available. Hearings before an administrative agency should be investigatory proceedings instituted for the purpose of ascertaining and making findings of facts. (Lavin v. Civil Service Comm’n (1974), 18 Ill. App. 3d 982, 310 N.E.2d 858.) Hearings are not meant to be partisan, with the agency pitted against the individual. (Goranson v. Department of Registration & Education (1980), 92 Ill. App. 3d 496, 415 N.E.2d 1249.) In effect, the taxpayer handed the Department the documents which would best serve the Department’s function of ascertaining the truth, and the Department refused to look at the documents. We acknowledge the fact that numerous requests had been made and the taxpayer had previously failed to turn over the documents; however, other appropriate means should be used to sanction such actions by a taxpayer. Cf. Puleo v. Department of Revenue (1983), 117 Ill. App. 3d 260, 453 N.E.2d 48 (court dismisses argument that taxpayer’s books and records were ignored where taxpayer never produced any records and stated that he never kept sales records).

Second, the refusal to continue the hearing meant that the taxpayer could not be represented either by its corporate officer or by an attorney of its choice. The Retailers’ Occupation Tax Act provides that all hearings conducted by the Department are governed by the Administrative Procedure Act (Ill. Rev. Stat. 1987, ch. 127, par. 1001 et seq.). (Ill. Rev. Stat. 1987, ch. 120, par. 450a.) The Administrative Procedure Act provides that a party has the right to be represented by counsel and the right to respond to and present evidence and argument. (Ill. Rev. Stat. 1987, ch. 127, par. 1010(b).) Due process of law presupposes a fair and impartial hearing. (Brown v. Air Pollution Control Board (1967), 37 Ill. 2d 450, 227 N.E.2d 754.) Procedural due process requires that every person be given the opportunity to be heard before being deprived of his property. (George J. Priester Aviation Service, Inc. v. American School of Aviation, Inc. (1981), 95 Ill. App. 3d 703, 420 N.E.2d 615.) Here, the Department denied the taxpayer the opportunity to represent itself, to offer any witnesses or documentary evidence, or to cross-examine the auditor. Basic notions of fair play require that parties have an opportunity to cross-examine, explain or refute facts which form the basis for an administrative agency’s adjudication. Caterpillar Tractor Co. v. Pollution Control Board (1977), 48 Ill. App. 3d 655, 363 N.E.2d 419.

We recognize that the absence of counsel for the taxpayer was the fault of Sweilem, and not the result of an emergency. (Cf. Ullmen v. Department of Registration & Education (1978), 67 Ill. App. 3d 519, 385 N.E.2d 58 (continuance should be granted where attorney’s wife became seriously ill; no charge that the claim of illness was untrue, made in bad faith, or could have been presented earlier); State v. Crank (Tex. 1984), 666 S.W.2d 91 (no abuse of discretion, in refusing to grant continuance of dentist’s disciplinary hearing where dentist fired his attorney on the morning of the hearing due to “philosophical differences,” and reaffirmed discharge after continuance request denied, and two previous continuances had been granted).) However, unique circumstances are presented here due to the inability of a corporate officer to represent the corporation in an action involving over $2,500. (Ill. Rev. Stat. 1987, ch. 110, par. 2—416.) Thus, the taxpayer was prevented from any type of representation at all, and the hearing became an ex parte proceeding, with Sweilem required to sit mute and watch.

The right to counsel has been interpreted to mean the right to counsel of one’s own choice. (Great Lakes Screw Corp. v. N.L.R.B. (7th Cir. 1969), 409 F.2d 375, citing Backer v. Commissioner of Internal Revenue (5th Cir. 1960), 275 F.2d 141.) By denying the taxpayer its statutory right to counsel of its choice, administrative due process has been violated under the facts before us here. Cf. Puleo v. Department of Revenue (1983), 117 Ill. App. 3d 260, 453 N.E.2d 48 (no right to counsel during initial investigatory stages in administrative proceeding); see also City of Chicago v. Birnbaum (1971), 49 Ill. 2d 250, 274 N.E.2d 22 (court finds no absence of procedural due process where, in hearing regarding building code violations, defense counsel is given leave to withdraw and defendant, an attorney, proceeds with his own defense at trial and makes no objection to the continuation of trial without additional counsel).

We sympathize with the inconvenience caused by the taxpayer’s conduct, and with the Department’s goal of attempting to achieve a prompt and economical determination on the merits. However, this alone does not justify denial of a continuance under the unique facts presented here. Where an administrative body must choose between justice and speed, it must pick the side of justice. (See Ullmen v. Department of Registration & Education (1978), 67 Ill. App. 3d 519, 385 N.E.2d 58.) Thus, upon careful consideration of the allegations of unfairness and a review of the record, we determine that precepts of fair play and due process require a reversal and remand of this cause to the Department for a new hearing. We emphasize that the circumstances presented here are highly unusual, and we do not suggest that an agency should routinely grant continuances when a party discharges his attorney after the hearing begins. (See Brown v. Air Pollution Control Board (1967), 37 Ill. 2d 450, 227 N.E.2d 754.) We make no finding, of course, on whether or not the assessment and judgment of the Department might otherwise be justified on the merits.

In view of our holding, we need not address the taxpayer’s contention that the bond requirement is unconstitutional as applied under Boddie v. Connecticut (1971), 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780. We note, however, that the statutory bond requirement, or alternative lien requirement, is jurisdictional. (Ill. Rev. Stat. 1987, ch. 120, par. 451; Meyer Steel Drum, Inc. v. Department of Revenue (1987), 152 Ill. App. 3d 84, 504 N.E.2d 148; Piasa Motor Fuels, Inc. v. Illinois Department of Revenue (1985), 138 Ill. App. 3d 422, 486 N.E.2d 379.) In this case, however, the court retains jurisdiction to answer the question of whether or not a meaningful hearing took place. To hold otherwise would be placing procedure over substance. See Meyer Steel Drum, Inc. v. Department of Revenue (1987), 152 Ill. App. 3d 84, 504 N.E.2d 148.

For the foregoing reasons, the judgment of the circuit court of Cook County dismissing the complaint for administrative review for lack of jurisdiction and entering judgment in favor of defendant is reversed, and the cause is remanded for further proceedings consistent with the views contained herein.

Judgment reversed and remanded.

FREEMAN, P.J., and RIZZI, J., concur.

       Justice McNamara participated in this appeal prior to his transfer to the sixth division.