Hurst v. Board of the Fire and Police Commission ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Hurst v. Board of the Fire & Police Comm’n, 2011 IL App (4th) 100964
Appellate Court BILLY HURST, Plaintiff-Appellant, v. THE BOARD OF THE FIRE
Caption AND POLICE COMMISSION for the City of Clinton, an
Administrative Agency; and MICHAEL REIDY, Chief of Police for the
City of Clinton, Illinois, Defendants-Appellees.
District & No. Fourth District
Docket No. 4-10-0964
Argued June 7, 2011
Filed July 12, 2011
Rehearing denied August 8, 2011
Held An order of defendant Board of Fire and Police Commission
(Note: This syllabus discharging plaintiff from his employment as a police officer for
constitutes no part of the violating department rules and regulations by viewing pornography on
opinion of the court but an employer-owned mobile data terminal while on duty was affirmed
has been prepared by the over plaintiff’s contention that the eavesdropping statute was violated
Reporter of Decisions for when the chief of police monitored the pornography viewed by plaintiff,
the convenience of the since the department’s manual dictated that the data terminals were to
reader.) be used for law-enforcement purposes only and that they were not to be
used in any manner that would tend to discredit the department and
plaintiff had no reasonable expectation of privacy or confidentiality
with regard to his use of the terminals.
Decision Under Appeal from the Circuit Court of De Witt County, No. 09-MR-28; the
Review Hon. Chris E. Freese, Judge, presiding.
Judgment Affirmed.
Counsel on Shane M. Voyles (argued), of Police Benevolent Labor Committee, of
Appeal Springfield, for appellant.
Stephen R. Myers (argued), of Clinton, for appellee Board of Fire and
Police Commission.
Nick A. Cetwinski (argued), of Woodridge, for appellee Michael Reidy.
Panel JUSTICE POPE delivered the judgment of the court, with opinion.
Justices Turner and Steigmann concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Billy Hurst, appeals a circuit court order which dismissed his amended
complaint for declaratory judgment and administrative review. In his amended complaint for
administrative review, plaintiff sought reversal of an order of the Board of Fire and Police
Commission of the City of Clinton (Board) which discharged plaintiff from his employment
as a City of Clinton (Clinton) police officer. We affirm.
¶2 I. BACKGROUND
¶3 On January 30, 2009, Michael Reidy (Reidy), the Clinton chief of police, filed with the
Board written charges against plaintiff. Reidy alleged plaintiff viewed pornography on the
employer-owned mobile data terminal while on duty in violation of “certain rules and
regulations of the City of Clinton Police Department.”
¶4 On May 15, 2009, plaintiff filed a complaint against defendants for declaratory judgment
that (1) Reidy obtained evidence of plaintiff viewing pornography in violation of the
eavesdropping statute contained in the Criminal Code of 1961 (720 ILCS 5/14-1 through 14-
9 (West 2008)), and (2) the Board “must conduct a fair and impartial hearing.”
¶5 The Board held a hearing on the charges on August 13, 2009, and entered an order
discharging plaintiff from his position as a police officer on October 13, 2009.
¶6 On October 20, 2009, plaintiff filed his motion for leave to file an amended complaint
and an amended complaint, which included a count requesting administrative review of the
Board’s discharge order. The certificate of service shows the motion and the proposed
amendment were mailed to counsel for defendants on October 19, 2009. On December 16,
2009, the trial court granted plaintiff’s motion. (Although the motion to amend and the first
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amended complaint are file-stamped October 20, 2009, there is no contemporaneous docket
entry. Nevertheless, all parties agreed they received the motion and amended complaint on
or around October 20, 2009.)
¶7 In response, Reidy filed a motion to dismiss plaintiff’s amended complaint on December
28, 2009, arguing (1) plaintiff failed to file his action seeking administrative review in a
timely manner and, alternatively, (2) Reidy did not violate the eavesdropping statute (720
ILCS 5/14-1 through 14-9 (West 2008)) when he obtained evidence of plaintiff viewing
pornography on the employer-owned mobile data terminal while on duty. The Board filed
a motion to dismiss plaintiff’s amended complaint on December 30, 2009, alleging plaintiff
failed to file his action seeking administrative review in a timely manner. On November 17,
2010, the trial court granted defendants’ motions, dismissing with prejudice plaintiff’s
amended complaint.
¶8 II. ANALYSIS
¶9 A. Jurisdiction
¶ 10 Defendants argue the trial court was without jurisdiction to consider plaintiff’s amended
complaint because plaintiff failed to file his action seeking administrative review in a timely
manner. We review an order granting a section 2-619 motion to dismiss de novo. DeLuna
v. Burciaga, 223 Ill. 2d 49, 59, 857 N.E.2d 229, 236 (2006).
¶ 11 Section 3-103 of the Administrative Review Law provides as follows:
“Every action to review a final administrative decision shall be commenced by the filing
of a complaint and the issuance of summons within 35 days from the date that a copy of
the decision sought to be reviewed was served upon the party affected by the decision
***.” 735 ILCS 5/3-103 (West 2008).
¶ 12 Section 10-2.1-17 of the Illinois Municipal Code provides as follows:
“The provisions of the Administrative Review Law, and all amendments and
modifications thereof, and the rules adopted pursuant thereto, shall apply to and govern
all proceedings for the judicial review of final administrative decisions of the board of
fire and police commissioners hereunder.” 65 ILCS 5/10-2.1-17 (West 2008).
¶ 13 On October 20, 2009, seven days after the Board’s decision issued, plaintiff filed his
motion for leave to file an amended complaint and an amended complaint, which included
a count requesting administrative review. Defendants admit the amended complaint was
sufficient to vest the trial court with subject-matter jurisdiction under the Administrative
Review Law. See King v. Ryan, 153 Ill. 2d 449, 455, 607 N.E.2d 154, 157 (1992). However,
defendants argue the count seeking administrative review was not timely filed because the
trial court did not grant leave to file the amended complaint until December 16, 2009.
¶ 14 In Fischer v. Senior Living Properties, L.L.C., 329 Ill. App. 3d 551, 553, 771 N.E.2d 505,
508 (2002), the last day to file an action was December 29, 2000. On December 27, 2000,
plaintiff’s attorney filed a motion for leave to file an amended complaint instanter and a
proposed order granting leave to file the amended complaint. By December 29, however, the
judge had not signed the order. Fischer, 329 Ill. App. 3d at 553, 771 N.E.2d at 508. The
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majority of this court held “the filing of an amended complaint where the judge has not
signed the order granting leave” did not, by itself, ground a successful statute-of-limitations
defense. Fischer, 329 Ill. App. 3d at 556, 771 N.E.2d at 511. Although a dissent by Justice
McCullough differed as to the result on the specific facts presented, even he agreed the
statute of limitations would be tolled where, as here, before the expiration of the limitations
period, plaintiff (1) filed his motion to amend accompanied by a copy of the proposed
amended complaint; (2) provided notice to all parties already in the case of the motion; (3)
in a letter to the circuit clerk dated October 30, 2009, “sought assistance *** as to advancing
this cause”; and (4) obtained an order allowing amendment at the earliest convenience of the
trial court. Fischer, 329 Ill. App. 3d at 561, 771 N.E.2d at 515 (McCullough, P.J. dissenting)
Accordingly, plaintiff’s amended complaint, filed together with plaintiff’s motion for leave
to file the amended complaint, was timely.
¶ 15 B. Alleged Violation of Eavesdropping Statute
¶ 16 Plaintiff asserts the Board “unlawfully considered evidence prohibited by the
eavesdropping statute.” Plaintiff argues Reidy violated the eavesdropping statute by installing
“surveillance software” as an eavesdropping device to intercept, record, and monitor
electronic transfer of data by computer. Plaintiff seeks a “definitive ruling” as to whether or
not Reidy’s evidence was lawfully admissible. Plaintiff admits his amended complaint for
declaratory judgment and administrative review is “somewhat redundant.”
¶ 17 We review the Board’s decision, not the circuit court’s. See Cinkus v. Village of Stickney
Municipal Officers Electoral Board, 228 Ill. 2d 200, 212, 886 N.E.2d 1011, 1019 (2008).
The scope of judicial review of administrative decisions “extend[s] to all questions of law
and fact presented by the entire record before the court.” 735 ILCS 5/3-110 (West 2008). A
court may encounter three types of questions on administrative review of an agency decision:
questions of fact, questions of law, and mixed questions of law and fact. Cinkus, 228 Ill. 2d
at 210, 886 N.E.2d at 1018. Because an administrative agency’s findings of fact are
presumed true, “a reviewing court is limited to ascertaining whether such findings of fact are
against the manifest weight of the evidence.” Cinkus, 228 Ill. 2d at 210, 886 N.E.2d at 1018;
see also 735 ILCS 5/3-110 (West 2008) (“The findings and conclusions of the administrative
agency on questions of fact shall be held to be prima facie true and correct.”). “In contrast,
an agency’s decision on a question of law is not binding on a reviewing court,” and we
review such a decision de novo. Cinkus, 228 Ill. 2d at 210, 886 N.E.2d at 1018.
¶ 18 Mixed questions of law and fact “are questions in which the historical facts are admitted
or established, the rule of law is undisputed, and the issue is *** whether the rule of law as
applied to the established facts is or is not violated.” (Internal quotation marks omitted.)
American Federation of State, County & Municipal Employees, Council 31 v. Illinois State
Labor Relations Board, State Panel, 216 Ill. 2d 569, 577, 839 N.E.2d 479, 485 (2005).
Decisions of mixed questions of law and fact are reversible only if they are clearly erroneous.
Cinkus, 228 Ill. 2d at 211, 886 N.E.2d at 1018. The clearly erroneous standard is
“significantly deferential.” LeaderTreks, Inc. v. Department of Revenue, 385 Ill. App. 3d 442,
446, 895 N.E.2d 683, 687 (2008); see also Provena Covenant Medical Center v. Department
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of Revenue, 236 Ill. 2d 368, 387 n.9, 925 N.E.2d 1131, 1143 n.9 (2010) (courts accord
deference to administrative decisions “in recognition of the fact that agencies make informed
judgments on the issues based upon their experience and expertise and serve as an informed
source for ascertaining the legislature’s intent”). “A decision is clearly erroneous when the
reviewing court is left with the definite and firm conviction that a mistake has been
committed.” (Internal quotation marks omitted.) American Federation of State, County &
Municipal Employees, 216 Ill. 2d at 577-78, 839 N.E.2d at 485. The case before us presents
a mixed question of law and fact.
¶ 19 Plaintiff claims Reidy violated the eavesdropping statute by using the employer-owned
mobile data terminal, and the software thereon, as an eavesdropping device to “secretly
monitor” pornography viewing by plaintiff. Under the terms of the eavesdropping statute, in
order for a communication to constitute a protected “electronic communication,” both the
sending and receiving parties must intend it to be private under circumstances justifying such
expectation. 720 ILCS 5/14-1(e) (West 2008). Further, an individual can “impliedly consent”
to the monitoring of his communications for purposes of the eavesdropping statute. People
v. Ceja, 204 Ill. 2d 332, 347, 789 N.E.2d 1228, 1239 (2003).” The circumstances relevant
to an implication of consent will vary from case to case, but will ordinarily include language
or acts that tend to prove that a party knows of, or assents to, encroachments on the routine
expectation that [communications] are private.” Ceja, 204 Ill. 2d at 350, 789 N.E.2d at 1241.
¶ 20 Nothing in the record before this court suggests the “sending *** parties” of the various
pornographic images intended to keep them private; thus, the images were not electronic
communications according to the statute. Because they were not electronic communications,
plaintiff’s claimed error is without merit.
¶ 21 Moreover, a Clinton Police Department Policy and Procedures Manual (Manual) dictated
the mobile data terminals were to be used for law-enforcement purposes only, and, further,
that officers would not use the mobile data terminals in any manner that would tend to
discredit the police department. The Manual disclosed messages sent on the mobile data
terminal were “retrievable.” Because plaintiff was aware of the terms of the Manual, he did
not have a reasonable expectation of privacy in his communications after the Manual went
into effect. As the Board noted in its decision, plaintiff had no reasonable expectation of
privacy or confidentiality with regard to his use of city-owned computers during the
performance of his official duties.
¶ 22 Applying the above interpretation of eavesdropping, we find no violation of the
eavesdropping statute occurred when Reidy monitored pornography viewed by plaintiff on
the employer-owned mobile data terminal. Plaintiff makes no argument regarding the
correctness of the Board’s decision in the event this court rules the admission of evidence
was proper.
¶ 23 III. CONCLUSION
¶ 24 For the reasons stated, we affirm the Board’s decision to admit the evidence concerning
the pornography. The evidence presented overwhelmingly supported the Board’s decision
to discharge plaintiff.
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¶ 25 Affirmed.
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