Scatchell v. Board of Fire & Police Commissioners for Melrose Park , 2022 IL App (1st) 201361 ( 2022 )

2022 IL App (1st) 201361SECOND DIVISION
September 30, 2022
No. 1-20-1361
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
)
JOHN SCATCHELL, ) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
) Cook County
)
v. ) 18-CH-16150
)
THE BOARD OF FIRE AND POLICE COMMISIONERS )
FOR THE VILLAGE OF MELROSE PARK; DIRECTOR )
SAMUEL PITASSI; DEPUTY CHIEF MICHAEL )
CASTELLAN; THE VILLAGE OF MELROSE PARK )
COMMISSIONER MICHAEL CAPUTO; )
COMMISSIONER PASQUALE ESPOSITO, )
and COMMISSIONER MARK RAUZI, ) Honorable
Defendants-Appellees. ) Pamela McLean Meyerson,
) Judge Presiding
)
_____________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court, with opinion.
Justices Howse and Cobbs concurred in the judgment and opinion.
OPINION
¶1 Plaintiff John Scatchell was a police officer for the Village of Melrose Park. In late
2017, he went on paid sick leave to recuperate from an injury to his neck, back, and arm he
suffered while on duty, which left him with pain and numbness. Shortly after he went on leave,
however, someone tipped off the Melrose Park Police Department that he was out hunting when
No. 1-20-1361
he should have been at home resting. The department began investigating if he was running afoul
of the sick leave policy. Later, an Illinois conservation police officer watched Scatchell and
several other men shooting shotguns while waterfowl hunting in a boat Scatchell owned.
¶2 One of those other men was Vito Scavo, the former Melrose Park police chief and a
convicted felon. When the boat came ashore, the conservation officer confronted Scatchell and
Scavo; the officer already knew that Scavo could not legally possess a gun. When the officer
asked Scatchell if he had seen Scavo shooting, Scatchell demurred; he said he could not say one
way or the other if Scavo held or fired a shotgun. Having watched Scatchell and Scavo shoot in
the same boat together for more than 90 minutes, the conservation officer did not believe him.
¶3 Neither did defendant here, the Board of Fire and Police Commissioners for the
Village of Melrose Park (Board). After the department brought disciplinary charges against
Scatchell, the Board held a multi-day hearing to determine if he had broken department policies.
When the department ordered Scatchell to testify at that hearing, he asserted his fifth amendment
right to remain silent and refused to take the stand, fearful that anything he said might be used to
criminally prosecute him for the incident with Scavo. See U.S. Const., amend. V. The
department added a charge of insubordination, and the Board later determined that he violated
numerous policies and terminated him.
¶4 Scatchell appealed to the circuit court of Cook County and argued, among other
things, that he was terminated because he relied upon his fifth amendment right. That court
upheld the Board’s decision, and Scatchell appealed. He again insists that he was fired because
he asserted his constitutional right to remain silent, but he fails to appreciate that he was immune
from criminal prosecution once the Village placed him in a situation where he had to answer its
questions or risk losing his job. While an officer cannot be fired for asserting his right to remain
2
No. 1-20-1361
silent, he risks being dismissed for insubordination when he refuses to answer questions about
his job duties, as long as those answers cannot be used to prosecute him. That is what happened
here, and because the evidence amply supports the Board’s findings that Scatchell violated other
departmental policies, we affirm.
¶5 BACKGROUND
¶6 John Scatchell joined the Melrose Park Police Department in 2012. In February 2015,
he was injured while on the job when he and another officer physically detained someone outside
Gottlieb Hospital. After the incident, he felt pain in his back and neck. The injury prevented
Scatchell from working for a while, but he returned to full duty in April that same year. In late
October 2017, the pain returned. Scatchell went to see Dr. Maryam Sandoval, his primary care
physician, who gave him a note advising him to rest at home. At that point, Scatchell went on
departmental paid sick leave to rest and recover.
¶7 The Village of Melrose Park (Village) prohibits officers on sick leave from
participating in activities “which may impede recovery from the injury or illness” that prompted
their leave. On November 14, 2017, a few days after Scatchell went on leave, someone slid a
note under Deputy Chief Michael Castellan’s office door. The note accused Scatchell of going
hunting while on sick leave and alleged that he was receiving preferential treatment because of
his family connections in the department. Melrose Park Police began to investigate Scatchell.
¶8 In late November 2017, Melrose Park Police Sgt. Anthony Caira called his
counterpart, Sgt. David Wollgast, at the Department of Natural Resources Conservation Police
Department. Caira told Wollgast he believed that Scatchell and Vito Scavo—the former police
chief in Melrose Park and a convicted felon—were going hunting in a nearby area. Wollgast told
one of his officers, William Bergland, to be on the lookout for both men.
3
No. 1-20-1361
¶9 On November 20, 2017, at about 7 a.m., Bergland saw Scatchell and Scavo together
in a boat with a duck blind, waterfowl hunting on a small lake near Oswego. From approximately
230 yards away, Bergland watched both men with a pair of binoculars for between 90 and 120
minutes. During that time, Bergland saw both Scavo and Scatchell shoot their shotguns several
times. The record indicates that they were with several other men at the time.
¶ 10 When Scavo and Scatchell came ashore, Bergland met with them. Bergland then
asked Scatchell if he had seen Scavo shooting; Scatchell responded that he “could not say
whether he did or not.” Bergland asked Scatchell the same question again, after telling him that
he had been watching the boat for a long time. Scatchell said something to the effect that “we’re
all law enforcement here” and again did not say if he had or had not seen Scavo firing a gun.
Although Scatchell was polite during the interview, Bergland did not believe he was telling the
truth. When Bergland asked Scavo if he had been firing a shotgun, however, Scavo admitted that
he had been.
¶ 11 The next day, November 21, Scatchell sent Dr. Sandoval an e-mail complaining of
continued pain and numbness in his neck and arm. A few days later, Scatchell sent another e-
mail, asking Sandoval to provide a note allowing him to stay off work but to allow him light
exercise.
¶ 12 In January 2018, department leadership, along with one of the Village’s attorneys,
interviewed Scatchell as part of an investigation in the incident with Scavo. But they first
provided Scatchell with this written warning:
“We received information that you may have been involved in a situation where a
felon was in possession of and used a firearm. We are conducting an investigation
into the allegations that were reported to us.
4
No. 1-20-1361
You are hereby advised that you are given immunity from criminal
prosecution on the basis of your answers to the questions you are asked today.
Stated another way, nothing you say in this investigation will be given to any
Illinois or federal law enforcement agents or offices.
Additionally, nothing that you say during the interrogation today can or
will be used against you in any criminal proceeding.
Your statements will not be disclosed to them at any time or in any
investigation or criminal proceeding.
Having been given immunity as set forth above, you are hereby warned
that because of that immunity, you may not refuse to answer the questions on the
ground that the answers may incriminate you. Accordingly, if you refuse to
answer the questions, you will be subject to discipline up to and including your
dismissal for failing to comply with our directive that you answer our questions
related to this investigation.”
¶ 13 Scatchell signed the bottom of the notice, acknowledging that he received and fully
understood it. The word “Garrity” is written on the top of the notice. After being given the
notice, Scatchell answered the Village attorney’s questions.
¶ 14 Scatchell said he was injured in 2015 but that the pain returned to his neck and arm in
October or November 2017. He went to see Dr. Sandoval, who wanted him to “play it cautious”
because of the prior injury. Despite his taking some medications, the pain and numbness
persisted, Scatchell said, so he went for further tests. Dr. Sandoval told him to rest at home.
Around November 9, 2017, he gave his supervising sergeant a note about the injury and went on
sick leave.
5
No. 1-20-1361
¶ 15 Scatchell said he did not believe he had to stay at home the entire time while on sick
leave, although he later heard “through the grapevine” that Castellan believed he was supposed
to. Instead, Scatchell interpreted Sandoval’s note as requiring resting but that he could “go about
my everyday normal life.”
¶ 16 Scatchell admitted he was an avid waterfowl hunter and normally went hunting most
days during the season, which ran in October and November. In November 2017, he did not tell
Sandoval he was going hunting because “it never came up in conversation.” In total, Scatchell
said he went hunting at least 5—and perhaps as many as 10—times in late 2017 after his neck
and back began to hurt.
¶ 17 Scatchell also acknowledged he was listed as a “guide” for a company called “IDecoy
Guide Services” (IDecoy), which was a company he started with Scavo. Scatchell described it as
“Scavo’s company” but said he was “in the capacity to guide with him.” He also admitted he did
not seek approval from the department to work with IDecoy. Scatchell stated that he did not
consider IDecoy employment to be “work” because he “didn’t make any revenue off of it.”
Scatchell also said he knew Scavo was a felon and that, as a felon, it was illegal for him to use a
firearm while hunting.
¶ 18 Scatchell said that in November 2017 he owned a boat with a duck hunting blind,
which conceals the shooter, built on it. He described the boat as approximately 21 feet long with
the blind and 6 feet wide. On November 20, 2017, he left his house at around 4 a.m. to go duck
hunting with some friends, including Scavo. When they arrived, the men got the boat ready,
loaded it up, and went out onto the lake to prepare for the day. The men—there were four of
them, including Scatchell and Scavo—and one boy then went hunting for an hour or two. When
asked if he saw Scavo shoot or possess a firearm, Scatchell repeatedly said, in one form or
6
No. 1-20-1361
another, “not to my knowledge, no.”
¶ 19 On March 27, 2018, Police Director Samuel Pitassi and Castellan filed 12 counts of
disciplinary charges against Scatchell with the Board. On May 10, 2018, Scatchell (through
counsel) filed an answer to the charges. He also attached a “true and correct copy” of the
transcript of his interrogation with investigators to the answer as an exhibit.
¶ 20 The Board held a multi-day evidentiary hearing into the charges, beginning on
October 2, 2018. The Village first called Dr. Sandoval to testify. She said that she began treating
Scatchell in 2017, though she was aware he had been injured in 2015. In October 2017, Scatchell
told her he had awakened one morning with severe pain on his right side that radiated down his
shoulder and to his arm. Shortly after seeing the doctor, Scatchell e-mailed her, requesting a
doctor’s note for his job. In that e-mail, Scatchell continued to complain of pain. Sandoval
provided him with a note saying he was in active treatment and told to rest at home.
¶ 21 Sandoval said she received another note on November 21, 2017, in which Scatchell
said he still had considerable pain and numbness. He told her he had not engaged in any activity
other than stretches and applying hot and cold compresses. A few days later, Sandoval prepared
another note for Scatchell, allowing him to remain off work but permitting him to resume light
exercise and walk outside his home.
¶ 22 The hearing was continued to October 22, 2018. At that hearing, the Village attorney
told the Board it intended to call Scatchell to testify. The following exchange occurred:
“MR FOWLER [(COUNSEL FOR THE VILLAGE)]: *** [W]e could
call Officer Scatchell.
MR COOPER [(COUNSEL FOR SCATCHELL)]: ***Officer Scatchell
has a right not to incriminate himself. So Officer Scatchell will not take the stand.
7
No. 1-20-1361
***
MR FOWLER: We call Officer Scatchell. And I would remind Officer
Scatchell that on January 9th, he was specifically given a Garrity warning where
he was required to answer questions, ordered to answer questions, and was given
the appropriate Garrity warning at the time. And I would ask Deputy Chief
Castellan to now verbally renew the Garrity warning that Officer Scatchell was
given on January 9th, 2018.
***
MR COOPER: So the Garrity has no applicability to an administrative
hearing. *** There is no applicability of Garrity to this proceeding. [Scatchell]
has a Fifth Amendment right not to incriminate himself. And the only party—or
let me rephrase it. The only one who can call him as a witness is me. Not Mr.
Fowler. I have yet to make a decision as to whether or not Officer Scatchell will
give testimony. But he will not take the stand at this point.
***
MR FOWLER: Deputy Chief Castellan, would you give Officer Scatchell
an order to take the stand and answer questions pursuant to his Garrity warning?
DEPUTY CHIEF CASTELLAN: John.
OFFICER SCATCHELL: Yes.
DEPUTY CHIEF CASTELLAN: I order you to take the stand and answer
all questions truthfully and honestly.
OFFICER SCATCHELL: At this time I assert my Fifth Amendment
right.”
8
No. 1-20-1361
¶ 23 The Board asked the parties to file written briefs discussing the consequences, if any,
of Scatchell’s refusal to testify.
¶ 24 Three days later, the hearing resumed. The Village sought to add a disciplinary
charge for insubordination because Scatchell refused to follow Castellan’s order.
¶ 25 Scatchell contended the charge was improper because Scatchell had a right not to
incriminate himself and, accordingly, could refuse to testify about the incident with Scavo. When
questioned by the Board, Scatchell’s attorney reiterated that, even if Castellan advised Scatchell
that the answers he gave could not be used against him in criminal proceedings, Scatchell still
would not answer questions and would continue to assert his fifth amendment privilege to remain
silent.
¶ 26 The Village, meanwhile, argued the order to testify was proper and that Scatchell had
immunity to testify, meaning he had no good reason not to take the stand. If he refused, the
Village argued, the Board could draw a negative inference against him. Scatchell agreed on this
last point but remained steadfast in his refusal to testify. The Board allowed the Village to add
the amended charge.
¶ 27 The Village rested its case, arguing that Dr. Sandoval’s testimony, Scatchell’s
admissions in his interrogation (which were attached to his answer), and the negative inference
the Board could draw against him proved he had violated department polices. Scatchell moved
for a directed finding, and the Board took his motion under advisement.
¶ 28 For his case, Scatchell first called James Paoletti, an expert on police procedures.
Paoletti opined that Scatchell may have violated two Department polices (the basis of counts 1
and 11 against him) but that he did not violate the remaining counts. Paoletti believed a 10- to
30-day suspension without pay was an appropriate punishment.
9
No. 1-20-1361
¶ 29 Scatchell’s next expert, Bruce Edenson, was a firearms expert who testified that a
shotgun would not have subjected Scatchell to severe recoil energy, suggesting that Scatchell’s
hunting would not have aggravated any existing injury. Scatchell also called Bergland, who
detailed the incident with Scavo and his interview with Scatchell.
¶ 30 The Village called David Lombardo in rebuttal, who said generally that a shotgun has
recoil.
¶ 31 The Board issued written findings and a decision on December 6, 2018. It found in
favor of Scatchell on three counts, and two counts were withdrawn. But the Board found
Scatchell guilty of eight counts. In a seven-page opinion, the Board concluded that Scatchell
(1) Abused the Department’s sick leave policy “by engaging in a hobby or
recreational activity which could impede [his] recovery from illness or injury”
because he went hunting on November 20, 2017, after Dr. Sandoval advised him to
rest at home and recover (the basis of count I);
(2) Violated Department policy in not reporting his contact with Bergland on
November 20 (count II);
(3) Was dishonest when he told the Department he gained 50 pounds because he
was inactive, which was contradicted by Dr. Sandoval’s testimony (count III);
(4) Gave false information to Bergland when he said he did not see Scavo firing a
shotgun on November 20 (count IV);
(5) Engaged in conduct unbecoming a law enforcement officer by abusing the
sick leave policy and being dishonest about the incident with Scavo (count VIII);
10
No. 1-20-1361
(6) Assisted Scavo in possessing a firearm on the November 20 hunting trip,
despite the fact that Scatchell knew Scavo was a convicted felon and could not legally
possess a firearm (count IX);
(7) Engaged in outside employment by operating a hunting guide business with
Scavo without first seeking the Department’s approval, which violated departmental
policies (count XI); and
(8) Was insubordinate and disobeyed a direct order when he refused to testify in
the hearing after Castellan commanded him to do so, despite being informed that any
answers he gave at the hearing were immune from prosecution (count XIII). On this
count, the Board noted that, once Scatchell was advised that his testimony could not
be used against him, the Village had a “right to inquire into the charges.” Scatchell’s
decision not to testify also frustrated the Board’s efforts as a factfinder.
¶ 32 The Board determined that cause existed to discharge Scatchell and ordered him
removed from office the next day.
¶ 33 Scatchell filed a complaint in the circuit court of Cook County for administrative
review. After the parties fully briefed the issues in the initial complaint, Scatchell sought leave to
amend the administrative record, which the circuit court denied. Scatchell later sought leave to
file an amended complaint, adding eight new counts and several new defendants. The circuit
court denied Scatchell leave to amend his complaint and affirmed the Board’s decision in full.
Scatchell now appeals.
¶ 34 ANALYSIS
¶ 35 This case comes to us on administrative review. Appeals from administrative hearings
are governed by the Administrative Review Law. See 735 ILCS 5/3-101 to 3-113 (West 2020).
11
No. 1-20-1361
We review the decision of the Board, not the circuit court. Marconi v. Chicago Heights Police
Pension Board, 225 Ill. 2d 497, 531 (2006). Our review extends to all questions of fact and law
the entire record presents, but judicial review is strictly limited to the administrative record. Id. at
531-32; 735 ILCS 5/3-110 (West 2020). We may not consider new or additional evidence
beyond what was originally presented to the Board. 735 ILCS 5/3-110 (West 2020); Marconi,
225 Ill. 2d at 532.
¶ 36 The “findings and conclusions of the administrative agency on questions of fact shall
be held to be prima facie true and correct.” 735 ILCS 5/3-110 (West 2020). It is within the
Board’s province to assign the appropriate weight to the evidence, resolve conflicts presented by
it, and determine the credibility of the witnesses. Prawdzik v. Board of Trustees of the Homer
Township Fire Protection District Pension Fund, 2019 IL App (3d) 170024, ¶ 36. We may not
reweigh the evidence or make an independent determination of the facts. Hoffman v. Orland
Firefighters’ Pension Board, 2012 IL App (1st) 112120, ¶ 18.
¶ 37 At the same time, our deference to the Board is not limitless. Ashmore v. Board of
Trustees of the Bloomington Police Pension Fund, 2018 IL App (4th) 180196, ¶ 41. There must
be competent evidence in the record to support the Board’s decision. Miller v. Board of Trustees
of the Oak Lawn Police Pension Fund, 2019 IL App (1st) 172967, ¶ 40. If the record contains
evidence that supports the Board’s factual conclusions, then we will not upset those findings,
even if an opposite conclusion is also reasonable. Robbins v. Board of Trustees of the
Carbondale Police Pension Fund, 177 Ill. 2d 533, 538 (1997); Abrahamson v. Illinois
Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992).
¶ 38 The applicable standard of review depends on the question presented. Marconi, 225
Ill. 2d at 532. We will reverse on a question of fact only if the conclusion the Board reached is
12
No. 1-20-1361
against the manifest weight of the evidence, meaning the opposite conclusion is clearly evident.
Id. On the other hand, we review pure questions of law de novo. Id. A question of mixed law and
fact is reviewed under the clearly erroneous standard. AFM Messenger Service, Inc. v.
Department of Employment Security, 198 Ill. 2d 380, 395 (2001).
¶ 39 I. The Factual Findings and Decision to Terminate Scatchell
¶ 40 Appellate review of an administrative agency’s decision to discharge an employee
generally has two stages. First, we determine if the agency’s factual findings are contrary to the
manifest weight of the evidence, as noted above. Siwek v. Police Board of Chicago, 374 Ill. App.
3d 735, 737-38 (2007). If the record supports the Board’s findings, we decide if those findings
provide a sufficient basis for the agency’s conclusion that cause exists to terminate the employee.
Id. It is not our job to determine if we would have been more lenient; instead, our review is
limited to whether the Board acted unreasonably or arbitrarily by selecting a type of discipline
that was inappropriate or unrelated to the needs of the service. Krocka v. Police Board of
Chicago, 327 Ill. App. 3d 36, 48 (2001).
¶ 41 A. Board’s Factual Findings
¶ 42 We first review the Board’s factual findings that Scatchell violated departmental
policies. The Board found against Scatchell on eight counts. We discuss them individually.
¶ 43 1. Count I: Abuse of Sick Leave
¶ 44 The Department’s rules forbade Scatchell from engaging in a hobby or recreational
activity while on sick leave that may impede his recovery. It is undisputed that Scatchell’s
injured neck and upper back prompted him to take sick leave to recuperate. His doctor, Dr.
Sandoval, advised him to stay at home and rest. The evidence is clear that, while on sick leave,
he went hunting numerous times, during which he fired a shotgun. While there was conflicting
13
No. 1-20-1361
expert evidence about whether firing a shotgun could exacerbate the injury, the Board was in the
best position to decide whom to believe. It concluded that firing a shotgun may have impeded
Scatchell’s recovery and, as such, it violated the department’s sick leave policy. We cannot say
that the opposite conclusion is clearly evident, and thus we must uphold that determination. See
Marconi, 225 Ill. 2d at 534.
¶ 45 2. Count II: Failure to Report Contact with Officer Bergland
¶ 46 Scatchell concedes that he did not inform his superiors about the incident on
November 20, 2017, when Officer Bergland confronted him for hunting with Scavo. He claims,
however, that since he was not the “target” of Bergland’s investigation, he had no duty to report
it to his department supervisor.
¶ 47 But the policy required Scatchell to report any contact with law enforcement that
might result in criminal prosecution; it was not limited to prosecutions of the officer himself. As
the Village notes, Scatchell knew that Scavo was a felon who was illegally possessing a firearm,
and he knew that the conservation officer thought Scavo had illegally fired the shotgun. So it was
obviously a contact with law enforcement that might lead to a criminal prosecution of Scavo, at a
minimum. The Board, then, had more than sufficient basis to find Scatchell in violation of the
rule requiring him to report this interaction to his employer.
¶ 48 3. Count III: Making False Statements During the Investigation
¶ 49 In his interrogation, Scatchell told the Village that he gained 50 pounds because he
was unable to do any kind of exercise. This claim is not contradicted in any way by the record.
The record thus does not support the Village’s accusation, and the Board’s finding, that
Scatchell’s statement was false. The Board’s finding on count III was against the manifest
weight of the evidence.
14
No. 1-20-1361
¶ 50 4. Count IV: Making False Statements to Officer Bergland
¶ 51 The evidence amply supports the Board’s finding that Scatchell lied to Bergland
during Bergland’s investigation of the incident on the boat. For at least 90 minutes, Bergland
watched Scatchell and Scavo hunt using shotguns. At the time, they were in Scatchell’s small
boat, which he described as being approximately 21 feet long and 6 feet wide. When Bergland
confronted Scatchell after he and Scavo came ashore, Scatchell told him that he “wasn’t sure” if
Scavo had held a gun.
¶ 52 Bergland did not believe him, and neither did the Board. We have no basis to
overturn the Board’s finding on this point; it is improbable—to put it mildly—that Scatchell did
not know if Scavo, standing only a few feet away from him in the small boat, was handling, if
not firing, a shotgun along with everyone else in the boat. The Board’s conclusion that Scatchell
made a false statement to Bergland is not against the manifest weight of the evidence.
¶ 53 5. Count VIII: Conduct Unbecoming an Officer
¶ 54 Department policies prohibit conduct that is “contrary to good order, efficiency or
morale, or tends to reflect unfavorably upon [the] department or its members.” The Board
concluded that Scatchell’s violation of the sick leave policy, coupled with his behavior
surrounding the incident with Scavo and Bergland, was conduct unbecoming an officer. For the
reasons already discussed, its conclusion is amply supported by the evidence.
¶ 55 6. Count IX: Violating Department Policies for Allowing Scavo to Fire a Shotgun
¶ 56 Scatchell admitted, in his interview, that he knew Scavo was a convicted felon. He
also knew, then, that it was illegal for Scavo to possess or fire a gun. Scatchell makes much of
the fact that Bergland said it was “100 percent not impossible” that Scatchell did not actually
know Scavo was shooting. But being within the realm of possibility is a lot different than being
15
No. 1-20-1361
likely or probable. The Board found that Scatchell did, in fact, know that Scavo was handling
and firing a shotgun—an obviously illegal act for a felon—and we are in no position to find that
the opposite conclusion is clearly evident. Indeed, the opposite conclusion—that Scatchell had
no idea whether another man in his rather small boat was using a shotgun over a period of 90
minutes to 2 hours—strikes us as far-fetched at best. We uphold this finding as well.
¶ 57 7. Count XI: Starting a Secondary Job Without Prior Approval
¶ 58 As for the claim that Scatchell had outside employment without Department approval,
Scatchell concedes that he was listed as a “guide” for IDecoy but claims there is no evidence he
provided guide services. He is mistaken. In his interrogation, he admitted that he and Scavo
accepted money on several dates. Scatchell said he did not consider it work because he did not
“make any revenue off of it.” But he admitted that the money collected went to “hunting
equipment.” That sounds like the way a normal business operates. Since Scatchell was listed as a
guide, the evidence supported the Board’s factual conclusion he was an employee of IDecoy.
¶ 59 Of course, Scatchell could have other employment, so long as it was approved by the
department. But Scatchell admitted he did not have approval to work for IDecoy. Scatchell’s
own expert, Paoletti, opined that he likely violated the secondary-employment policy. The Board
came to the same conclusion, and that finding was not manifestly erroneous.
¶ 60 8. Count XIII: Disobeying a Direct Order
¶ 61 That brings us to the final—and perhaps most contentious—count, insubordination
for disobeying a direct order from a superior officer. Scatchell contends that he was fired, at least
in part, because he refused to waive his fifth amendment privilege against self-incrimination
when the Village called him to testify at the administrative hearing. The Village disagrees,
saying that Scatchell was given an order to answer questions about his job after being told that
16
No. 1-20-1361
any answers he gave would not be used to prosecute him, refused that order, and then was fired
(among other reasons) for insubordination.
¶ 62 The Board ultimately concluded that Scatchell had immunity and accordingly that the
Village could force him to testify. Because whether the Village could legally order Scatchell to
testify is a question of pure law, our review of this issue is de novo. Marconi, 225 Ill. 2d at 532.
¶ 63 The fifth amendment states that “[n]o person *** shall be compelled in any criminal
case to be a witness against himself.” U.S. Const., amend. V. This privilege is not absolute,
however; witnesses can be granted immunity to compel their testimony. When the government
grants a witness immunity from using compelled testimony and evidence derived from it in a
criminal prosecution against them, the privilege the fifth amendment affords the witness is
satisfied, and the government can force that person to testify even to self-incriminating
statements. See Kastigar v. United States, 406 U.S. 441, 448 (1972). This is known as “use and
derivative use immunity.” (Internal quotation marks omitted.) Id. at 443.
¶ 64 A grant of immunity seeks to reconcile the right of the government to compel
testimony with the constitutional privilege against self-incrimination. People v. Gaines, 188 Ill.
App. 3d 451, 455 (1989). Use and derivative-use immunity leaves the witness in substantially the
same position as if the witness had claimed the fifth amendment privilege. Id. A grant of
immunity must afford protection commensurate with the protection the fifth amendment
privilege against self-incrimination provides. Id.¶ 65 For example, state law allows the State to grant a witness immunity from prosecution
in exchange for truthful testimony. See 725 ILCS 5/106-1 to 106-3 (West 2018). Once their
testimony is immunized, it cannot be used as the basis of a prosecution against the witness. That
is to say, once the witness has been given immunity, “the reason for the rule permitting a witness
17
No. 1-20-1361
to refuse to give evidence or to be a witness against himself is destroyed, and such privilege
cannot be claimed.” Halpin v. Scotti, 415 Ill. 104, 108 (1953). Immunity statutes appear both at
the state and federal level and have long been upheld. See, e.g., Brown v. Walker, 161 U.S. 591(1896); Ullmann v. United States, 350 U.S. 422 (1956).
¶ 66 However, there are other forms of immunity. Relevant here is a unique kind of
immunity for government employees who are being investigated for misconduct by their public
employer, originating in Garrity v. New Jersey, 385 U.S. 493 (1967). There, the United States
Supreme Court held that, when the government forces police officers to answer questions or give
a statement regarding a matter under investigation, the fifth and fourteenth amendments prohibit
the government from using any such statements in a subsequent criminal proceeding against
those officers. Id. at 500.
¶ 67 In Garrity, police officers suspected of fixing traffic tickets were summoned to an
inquiry before the attorney general. Id. at 494. They were warned that, if they did not answer
questions from investigators, they would be dismissed, but if they did answer questions, anything
they said might be used against them later in criminal proceedings. Id. Facing the prospect of
losing their jobs if they kept quiet, the officers answered the questions; their answers were later
used as the basis of a criminal prosecution against them. Id. at 495. The Supreme Court held that,
when placed in a position where the officers had to choose between incriminating themselves or
being fired, any statement they made was coerced and could not be used in a criminal proceeding
against them. Id. at 500.
¶ 68 A year later, a similar situation occurred in Gardner v. Broderick, 392 U.S. 273(1968). There, a policeman was being investigated by his employer, who wanted to question him
about potential misconduct. Id. at 274. The government ordered the officer to testify and to
18
No. 1-20-1361
waive any immunity he might have under the law. Id. at 274, 278. The officer refused to do so
and was fired for that action. Id. at 274-75. The Court, relying on Garrity, reversed the
termination, as the combination of compelling the officer both to testify and waive his Garrity
protection left the officer with the choice of asserting his right against self-incrimination or
losing his job—a notion that obviously ran counter to the principles in Garrity. Id. at 278-79; see
also id. at 277 (referring to officer in that situation facing “Hobson’s choice between self-
incrimination and forfeiting his means of livelihood”).
¶ 69 But the Supreme Court also noted that, if the officer “had refused to answer questions
specifically, directly, and narrowly relating to the performance of his official duties, without
being required to waive his immunity ***, the privilege against self-incrimination would not
have been a bar to his dismissal.” (Emphasis added.) Id. at 278.
¶ 70 From this, a principle developed: the government has every right to investigate
allegations of misconduct, even criminal, and force employees to answer questions about the
investigation, so long as the employee has immunity from criminal prosecution on the basis of
their answers. Atwell v. Lisle Park District, 286 F.3d 987, 990 (7th Cir. 2002). Some courts refer
to this as “Garrity immunity.” See, e.g., People v. Haleas, 404 Ill. App. 3d 668, 672-75 (2010).
¶ 71 In Kammerer v. Board of Fire & Police Commissioners of Lombard, 44 Ill. 2d 500,
506 (1970), our supreme court distilled the meaning of this immunity, summarizing the United
States Supreme Court’s decisions in Garrity and Gardner as follows:
“The net of these decisions, as we understand them, is that if a public employee
refuses to testify as to a matter concerning which his employer is entitled to inquire,
he may be discharged for insubordination, but if he does testify his answers may not
be used against him in a subsequent criminal prosecution.” (Emphasis added.)
19
No. 1-20-1361
¶ 72 The federal courts helpfully break this general concept into two: First, if an employer
threatens adverse employment action for failure to answer, it then follows as a matter of law that
the employee’s statements and their fruits may not be used in subsequent criminal proceedings.
This is best understood as the “application of Garrity immunity.” (Internal quotation marks
omitted.) Sher v. United States Department of Veterans Affairs, 488 F.3d 489, 503 (1st Cir.
2007). Second, having been afforded protection against self-incrimination by this immunity, the
employee may be subject to adverse employment action if they remain silent. This is the
“consequences of Garrity immunity.” (Internal quotation marks omitted.) Id.¶ 73 Although Garrity does not expressly describe what kind of immunity it bestows, our
courts have put it on par with use and derivative-use immunity. Haleas, 404 Ill. App. 3d at 674-
76 (“Because the use of compelled testimony in the Garrity context also directly implicates the
individual’s fifth amendment right against self-incrimination, we agree that the protections
afforded by Kastigar are available to defendants whose statements have been suppressed under
Garrity.”). The federal circuits agree. See, e.g., Sher, 488 F.3d at 501-02; In re Grand Jury
Proceedings, 45 F.3d 343, 348 (9th Cir. 1995); In re Grand Jury Subpoenas, 40 F.3d 1096,
1102-03 (10th Cir. 1994).
¶ 74 As with the well-known Miranda rights that police must provide the suspect of a
crime before questioning (see Miranda v. Arizona, 384 U.S. 436 (1966)), employees who are
being investigated are sometimes given “Garrity warnings” before an interrogation. The
warnings are meant to inform them that the answers they give or the fruits thereof cannot be used
against them in a criminal prosecution but that, if they refuse to answer questions, they may be
punished by their employer, including being terminated. See, e.g., People v. Smith, 399 Ill. App.
3d 534 (2010); Haleas, 404 Ill. App. 3d at 673-74.
20
No. 1-20-1361
¶ 75 Here, Scatchell received written Garrity warnings on January 9, 2018, immediately
before he was interviewed by Village investigators about his possible misconduct. Scatchell
signed the written warning sheet, then answered the investigator’s questions. Once the Village
formally charged him with misconduct, the matter proceeded to a hearing before the Board.
¶ 76 On October 22, 2018, the Village announced its intention to call Scatchell to the
stand, as it had the previous April when the hearing initially commenced before a continuance. In
the presence of the Board and Scatchell (with counsel present), the Village called Scatchell to the
stand and acknowledged that the warnings he was given in January still applied. Scatchell’s
counsel argued, however, that Garrity did not apply at the administrative hearing and informed
the court that Scatchell would not take the stand. When Deputy Chief Castellan ordered him to
testify, Scatchell asserted his fifth amendment right and refused to testify. This refusal to testify,
as noted earlier, led to the amended charge of insubordination.
¶ 77 Before us, Scatchell claims that he was fired not for insubordination but for asserting
his fifth amendment right, placing him in Gardner’s protective ambit. But he misreads Gardner.
It is true, as he argues, that Gardner stands for the proposition that a police officer may not be
fired solely for asserting his fifth amendment right against self-incrimination. But Gardner
involved a scenario where that was precisely the situation the officer faced: he was ordered to
both testify and waive any immunity for testifying, at the risk of losing his job if he refused to do
either. See Gardner, 392 U.S. at 274, 278. In other words, he was forced to testify without the
protections afforded by Garrity, leaving him with the “Hobson’s choice” (id. at 277) of
answering questions that could be used against him in a criminal prosecution, on the one hand, or
losing his job, on the other. The Supreme Court refused to allow this end-run around Garrity
protection.
21
No. 1-20-1361
¶ 78 That is not what happened here. Neither the Board nor the Village ordered Scatchell
to waive his Garrity immunity; to the contrary, they repeatedly told him that he would be
protected by Garrity immunity and thus had no fear of self-incrimination if he testified before
the Board. Scatchell’s right against self-incrimination was never in doubt; it remained intact
because of the immunity afforded him. That, obviously, is the very point of the use or derivative-
use immunity provided by Garrity—to compel officers to truthfully answer questions about their
conduct without the fear that the testimony will be used against them in a criminal prosecution.
Scatchell, then, was found insubordinate because he refused to answer conduct-related questions
even after receiving immunity, just as a witness in a criminal case could be punished for
contempt for refusing to testify after being given immunity for that testimony. See, e.g., People
v. McPherson, 2018 IL App (2d) 170966, ¶ 23.
¶ 79 Scatchell insists that Garrity immunity did not attach for various reasons. For one, he
argues without citation, as he did below, that “it is unclear whether Garrity immunity applies at
the administrative hearing level.” We are not sure why he finds this question unclear; our
supreme court’s seminal decision on this issue, Kammerer, concerned an officer’s refusal to
answer substantive questions at a hearing before the village board of fire and police
commissioners, just as here. See Kammerer, 44 Ill. 2d at 501, 504-05.
¶ 80 Scatchell also complains that the Garrity warnings afforded him were inadequate to
begin with (when he was originally questioned) and were not re-stated at the hearing. But
Garrity is self-executing, attaching as a matter of law when a police officer is ordered by his
public employer to answer questions about his conduct that could incriminate him. See Blunier v.
Board of Fire & Police Commissioners of Peoria, 190 Ill. App. 3d 92, 104 (1989) (“[Garrity]
use immunity attaches automatically as a matter of law and the statements cannot be used,
22
No. 1-20-1361
regardless of whether immunity has expressly been granted.”); Uniformed Sanitation Men Ass’n
v. Commissioner of Sanitation of New York, 426 F.2d 619, 626 (2d Cir. 1970) (“[T]he very act
*** in telling the witness that he would be subject to removal if he refused to answer was held to
have conferred such immunity.”); United States v. Veal, 153 F.3d 1233, 1239 n.4 (11th Cir.
1998) (noting that Garrity immunity “is Supreme Court-created and self-executing; it arises by
operation of law; no authority or statute needs to grant it”), overruled in part on other grounds by
United States v. Chafin, 808 F.3d 1263 (11th Cir. 2015); Gulden v. McCorkle, 680 F.2d 1070,
1075 (5th Cir. 1982) (under Garrity, “It is the very fact that the testimony was compelled which
prevents its use in subsequent proceedings, not any affirmative tender of immunity.”).
¶ 81 We could imagine a scenario where an officer, without counsel, might face
questioning from his employer and not understand that he is protected by Garrity; after all, most
everyone knows about the right against self-incrimination, but fewer know about Garrity
immunity. We could imagine a scenario where an individual might not know that his testimony
would be immunized and thus would assert the fifth amendment without realizing his or her full
panoply of rights, leading to his or her termination. See Atwell, 286 F.3d at 990 (noting that
unrepresented individuals, unaware of Garrity immunity, “may instinctively ‘take the Fifth’ and
by doing so unknowingly set themselves up to be fired without recourse”). That scenario might
raise other questions of fairness and even constitutional concerns.
¶ 82 But that scenario is not before us. Scatchell was represented by counsel, and the
question of Garrity immunity was the elephant in the room, the topic that dominated the first
October hearing, forcing an adjournment so that the parties could brief the issue, followed by
more argument on this topic when the parties reconvened. Scatchell could not possibly complain
that he was caught off-guard or unaware of the issue, even if his lawyer’s stated understanding of
23
No. 1-20-1361
Garrity was incorrect.
¶ 83 Simply put, Scatchell was not given the choice between keeping his job or making
statements that could be used against him in a criminal prosecution, like the officer in Gardner.
He was given the choice between truthfully answering questions while enjoying immunity from
the use of his answers, on the one hand, versus refusing to testify (even though given immunity)
and facing the job-related consequences for doing so, on the other. He chose the latter. The
Board properly followed the law, and its factual finding that Scatchell disobeyed the deputy
chief’s direct order was not against the manifest weight of the evidence. We uphold the Board’s
decision on this charge.
¶ 84 B. Cause for Termination
¶ 85 Having upheld the Board’s findings on all but one of the eight charges under review,
we next determine whether those findings provide a sufficient basis for the Board’s conclusion
that cause existed to terminate Scatchell. Siwek, 374 Ill. App. 3d at 737-38.
¶ 86 Cause is “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 cause for his no longer holding the position.”
(Internal quotation marks omitted.) Department of Mental Health & Developmental Disabilities
v. Civil Service Comm’n, 85 Ill. 2d 547, 551 (1981). In our review, “we may not consider
whether we would have imposed a more lenient disciplinary sentence”; instead, our review “is
limited to a determination of whether the Board acted unreasonably or arbitrarily by selecting a
type of discipline that was inappropriate or unrelated to the needs of the service.” Krocka, 327
Ill. App. 3d at 48.
¶ 87 The record amply supports the Board’s conclusion that Scatchell’s behavior was
24
No. 1-20-1361
tantamount to cause to fire him. In fact, many of Scatchell’s individual violations alone would
have been enough to establish cause supporting his termination.
¶ 88 Police departments, as paramilitary organizations, require disciplined officers to
properly function, and it is appropriate for those departments to punish officers who violate rules,
regulations, or orders. Siwek, 374 Ill. App. 3d at 738. The Board concluded that Scatchell abused
the department’s sick time policy by going hunting while on leave to heal an injury to his neck
and arm. While there was conflicting evidence about how much recoil a shotgun could create,
the Board was in the best position to decide if Scatchell risked aggravating his injury, and they
concluded he did.
¶ 89 Further, Scatchell engaged in a business with Scavo, moonlighting as a hunting guide
without the department’s approval. Whether Scatchell thought himself an “employee” is
ultimately irrelevant; the Board concluded that he was involved in the business without having
sought the required approval to be. That alone has been enough to terminate someone in a similar
position before. See Weisenritter v. Board of Fire & Police Commissioners of Burbank, 67 Ill.
App. 3d 799, 802 (1978) (affirming dismissal of firefighter who engaged in outside employment
without department’s consent). Violating the Department’s polices on moonlighting and sick
leave is detrimental to the discipline and efficiency of the service and ample cause to terminate
Scatchell.
¶ 90 But more egregiously, Scatchell not only went hunting with a shotgun—he went with
a man he knew was a convicted felon. Then, caught red-handed, he was less than forthcoming to
Bergland, the conservation officer, saying that he could not say “one way or the other” if he saw
Scavo shooting a gun. He said the same thing to investigators who interviewed him about the
incident later. Bergland thought Scatchell was lying, and ultimately so did the Board. We have
25
No. 1-20-1361
previously held that an officer who lies to his employer can be discharged. See Slayton v. Board
of Fire & Police Commissioners of Streamwood, 102 Ill. App. 3d 335, 338-39 (1981). The key
factor is the matter of the lie and, more specifically, how it directly relates to a police officer’s
duty to the public. Kupkowski v. Board of Fire & Police Commissioners of Downers Grove, 71
Ill. App. 3d 316, 324 (1979).
¶ 91 Police officers, as guardians of the laws, are expected to act with integrity, honesty,
and trustworthiness. Sindermann v. Civil Service Comm’n of Gurnee, 275 Ill. App. 3d 917, 928
(1995). But Scatchell’s actions here are devoid of all three. While the Board recognized that he
had a close relationship with Scavo, that does not change the fact that Scatchell knew Scavo was
a felon and could not have a gun. Despite that, Scatchell took Scavo hunting with him in his
boat. That decision helped empower—at the least—Scavo’s violation of the law. When Bergland
caught and confronted Scatchell about it, he did not own up to his error in judgment.
¶ 92 If that were not enough, the nature of his false statements is extremely concerning. As
an officer of the peace, it is his duty to enforce and uphold the law. Despite that duty, Scatchell
started a business without permission and went hunting with a known felon while on paid sick
leave. This was, as already discussed, disreputable. However, lying about it later to try to cover
up a crime and his own misdeeds makes it inexcusable, and Scatchell acted in an irresponsible
and dishonest manner. Id. at 929.
¶ 93 Last, there is Scatchell’s refusal to testify. We have already explained he was
mistaken when he believed he could assert his right to remain silent without fear of adverse job
action. But our supreme court has also been clear that an officer who has criminal immunity but
refuses to answer questions about his job performance “may be discharged for insubordination.”
Kammerer, 44 Ill. 2d at 506.
26
No. 1-20-1361
¶ 94 Scatchell emphasizes that he had served as an officer for six years without incident
and continued to serve for an additional 11 months while this case was pending. But this was for
the Board to consider; as noted, even if we were inclined to impose a more lenient sentence—
which we need not decide—we only ask if the Board acted unreasonably or arbitrarily or if the
type of discipline selected was inappropriate or unrelated to the needs of the service. Siwek, 374
Ill. App. 3d at 738. The decision to terminate Scatchell was neither unreasonable nor arbitrary,
and we believe it was appropriate considering the nature and scope of Scatchell’s misconduct.
¶ 95 II. Department’s Alleged Violations of Policies and CBA
¶ 96 Scatchell also claims the Department violated its own policies and the collective
bargaining agreement (CBA) it had with his union, as well as levies several other procedural
challenges. None, however, have any merit.
¶ 97 To begin, Scatchell contends that the investigation into his misconduct violated the
Uniform Peace Officers’ Disciplinary Act (50 ILCS 725/1 et seq. (West 2018)). When Scatchell
was employed, the Act required that, prior to a peace officer being subject to an interrogation,
anyone who filed a complaint against that officer must have the complaint supported by a sworn
affidavit. Id. § 3.8. Since the anonymous note that Deputy Chief Castellan found in his office
was unsworn, it could not be the basis of the investigation into his conduct, Scatchell believes.
¶ 98 The Uniform Peace Officers’ Disciplinary Act requires that, if officers are to be
disciplined, certain procedures must be followed. Sherwood v. City of Aurora, 388 Ill. App. 3d
754, 759 (2009). Section 3.8 requires that a person making a complaint against an officer sign a
sworn affidavit verifying the contents of the complaint. 50 ILCS 725/3.8(b) (West 2018).
However, this section only applies when “an officer is subjected to an interrogation within the
meaning of this Act.” (Emphasis added.) Id. § 3 (noting that sections 3.1 and 3.8 only apply
27
No. 1-20-1361
when officer is interrogated).
¶ 99 It does not apply in the situation here, where the anonymous tip prompted Melrose
Park police to begin investigating Scatchell. See Roman v. Cook County Sheriff’s Merit Board,
2014 IL App (1st) 123308, ¶ 98. Only after Bergland, the conservation officer, saw Scatchell
hunting and shooting a shotgun with Scavo, a convicted felon, did investigators decide to
question Scatchell. At the beginning of Scatchell’s interrogation, he signed a warning that stated
the Village was investigating Scatchell for being “involved in a situation where a felon was in
possession of and used a firearm. We are conducting an investigation into the allegations that
were reported to us.” It was not the anonymous tip that prompted police to interrogate Scatchell;
it was Bergland. Since Scatchell does not challenge Bergland’s actions here, there was no
violation of the Uniform Peace Officers’ Disciplinary Act.
¶ 100 Scatchell also claims the investigation violated his constitutional rights because the
department “never had reasonable suspicion” to justify an internal investigation. But this is easily
discarded; the fourth amendment (which we presume Scatchell is trying to use, he does not
specify) protects two types of expectations, one involving “searches,” the other “seizures.” See
Soldal v. Cook County, 506 U.S. 56, 63 (1992). To “search” means to look for that which is
concealed, thereby infringing upon someone’s expectation of privacy. People v. Raibley, 338 Ill.
App. 3d 692, 699 (2003) (citing Soldal, 506 U.S. at 63).
¶ 101 The department did not need to have “reasonable suspicion” to begin investigating
Scatchell, because an investigation is not a search. Of course, an investigation may include a
search and often does. But one is not the other. To the extent the department “searched” for
anything, all Bergland did was look to see if Scatchell was hunting in an open area while he was
on sick leave, only to find that he was—and with Scavo, a convicted felon. It is well established
28
No. 1-20-1361
that “the special protection accorded by the Fourth Amendment to the people in their ‘persons,
houses, papers, and effects,’ is not extended to the open fields.” Hester v. United States, 265 U.S.
57, 59 (1924) (quoting U.S. Const., amend. IV); Oliver v. United States, 466 U.S. 170, 176
(1984).
¶ 102 Accordingly, we also decline Scatchell’s suggestion to apply the exclusionary rule
(United States v. Calandra, 414 U.S. 338, 347 (1974)) to this case. Even if there was a fourth
amendment violation here (there is not), we have found no authority, and Scatchell has not cited
any, where the exclusionary rule was applied in an administrative proceeding. To the contrary,
the weight of precedent suggests the rule would not apply in these kinds of cases. See, e.g.,
Grames v. Illinois State Police, 254 Ill. App. 3d 191, 199-201 (1993) (discussing cases and
holding that exclusionary rule should not apply to officer misconduct proceedings: “The damage
to the operation of an effective State Police force would far outweigh any benefit which would
result from application of the exclusionary rule.”).
¶ 103 Next, Scatchell alleges the investigation into his abuse of the department’s sick leave
violated the CBA between the Village and the Fraternal Order of Police lodge of which Scatchell
is a member. He argues that section 5.3 of the CBA (which Scatchell has included in the
appendix to his brief) does not allow any inquiries into an officer’s sick leave until after the
officer has been on leave for at least one month. Since the investigation into his abuse of the sick
leave policy began before that 30-day clock ran, he suggests the whole investigation is void.
However, the Board’s authority—derived from statute—cannot be arrogated by a collective
bargaining agreement. Parisi v. Jenkins, 236 Ill. App. 3d 42, 52 (1992). Even if the CBA applied
here, it could not trump the Board’s ability to investigate and adjudicate potential misconduct.
¶ 104 Scatchell also complains that the Department violated its standard operating
29
No. 1-20-1361
procedures during its investigation into his misconduct. But this argument is thrice forfeited; it
was not raised before the Board or in the trial court, and before us, Satchell does not cite any
evidence in the record that supports this argument. See Keeling v. Board of Trustees of the Forest
Park Police Pension Fund, 2017 IL App (1st) 170804, ¶ 45 (party forfeits administrative review
of issues and defenses not placed before administrative agency); People v. Universal Public
Transportation, Inc., 2012 IL App (1st) 073303-B, ¶ 50 (party that fails to cite pages in record in
support of contentions in brief forfeits argument). “A reviewing court is entitled to have issues
clearly defined with pertinent authority cited and cohesive arguments presented [citation], and it
is not a repository into which an appellant may foist the burden of argument and research
[citation]; it is neither the function nor the obligation of this court to act as an advocate or search
the record for error [citation].” Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993).
¶ 105 III. Violation of Open Meetings Act
¶ 106 Next, Scatchell ask us to void the Board’s decision because, he believes, the Board
violated the Open Meetings Act (5 ILCS 120/1 et seq. (West 2018)). Section 2 of the act requires
that meetings of public bodies be held in public, subject to certain exceptions. See id. § 2.
¶ 107 The record here reveals that, on December 4, 2018, the Board posted a public notice
of a hearing on Scatchell’s matter two days later, on December 6. The Board’s written findings
and decision to terminate Scatchell were entered on that date. However, there is nothing else in
the record about what transpired at the December 6 meeting.
¶ 108 That also means, however, there is no indication the meeting was not open to the
public. To prove it was not, Scatchell asks us to take judicial notice of a Freedom of Information
Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)) response from the Village, which he has attached
to the appendix of his brief. That response indicates there were five pages of records relevant to
30
No. 1-20-1361
the request, but Scatchell has attached only the handwritten minutes of the meeting. Those
minutes show the Board adjourned to executive session to discuss the charges against Scatchell.
In his eyes, this proves the Board made the decision to terminate him privately, not publicly.
¶ 109 Rule 201 of the Illinois Rules of Evidence permit a court to take notice of
“adjudicative facts.” Ill. R. Evid. 201(a) (eff. Jan. 1, 2011). A judicially noticed fact must be one
not subject to reasonable dispute, in that it must either be (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned. Ill. R. Evid. 201(b) (eff. Jan.
1, 2011).
¶ 110 The Administrative Review Law allows review of all questions of fact or law
presented by the entire record. 735 ILCS 5/3-110 (West 2018). That said, the statute specifically
limits judicial review to the administrative record, so we may not hear new or additional
evidence in support of, or opposition to, the decision of the administrative agency. Id.; Marconi,
225 Ill. 2d at 532.
¶ 111 We cannot find any case, and Scatchell has not cited one, where a court took judicial
notice of a FOIA response. Rather, the Village’s FOIA response is the kind of “new or additional
evidence” the law forbids us from considering in an administrative review case. Robbins, 177 Ill.
2d at 538. We also will not supplement the record on appeal with documents one of the parties
has attached to their brief in the appendix with no stipulation between the parties or motion to
supplement the record. See Pikovsky v. 8440-8460 North Skokie Boulevard Condominium Ass’n,
2011 IL App (1st) 103742, ¶ 16. Accordingly, we will not take judicial notice of the FOIA
response when reviewing this claim.
¶ 112 Turning back to the question at hand, Scatchell has not established that the Board
31
No. 1-20-1361
violated the Open Meetings Act. The record reveals that a notice of the meeting was posted two
days before it was held. The agenda included notice the Board would adjourn to a closed
executive session to discuss a matter of employee discipline, which the Open Meetings Act
allows it to do. See 5 ILCS 120/2(c)(1) (West 2018). Then the Board would reconvene in open
session. The record suggests the meeting was open and, if Scatchell wanted to attend, he could.
Moreover, the Board’s final action was reduced to writing and signed by all three Board
members.
¶ 113 If that was not enough, the Open Meetings Act grants courts wide discretion in
deciding what relief, if any, is appropriate for a violation. Id. § 3(c). In other words, even if the
Board did violate the act (and to be clear, we are not saying it did), it does not automatically
mean the vote must be set aside. Powell v. East St. Louis Electoral Board, 337 Ill. App. 3d 334,
338-39 (2003). Even assuming the Board here had violated the act, Scatchell has not given us a
sufficient reason to nullify its decision. See Betts v. Department of Registration & Education,
103 Ill. App. 3d 654, 664 (1981).
¶ 114 IV. Claims of Procedural Violations at Hearing
¶ 115 Scatchell’s next arguments are procedural in nature. For one, after the department
rested its case against him, Scatchell moved for a directed finding of not guilty of all charges.
The Board took the motion under advisement, and Scatchell presented evidence in his case. He
now argues the Board should have ruled on his motion when he made it, because the Department
had not established a prima facie case against him. The Board’s refusal to rule prejudiced him,
he claims, because it forced him to present a defense when, as a matter of law, he should have
been acquitted.
¶ 116 Administrative hearings, like judicial proceedings, are governed by fundamental
32
No. 1-20-1361
principles and requirements of due process of the law. Village of South Elgin v. Pollution
Control Board, 64 Ill. App. 3d 565, 567-68 (1978). However, an administrative hearing does not
require the strict procedures of a judicial proceeding to satisfy due process. Id. at 568. Instead,
administrative hearings may incorporate a form of procedure that is suitable and proper to the
nature of the determination to be made and that conforms to the fundamental principles of
justice. Id. That procedure must include impartial rulings on the evidence, an opportunity to be
heard, and the right to cross-examine adverse witnesses. Daniels v. Police Board of Chicago, 338
Ill. App. 3d 851, 860 (2003).
¶ 117 As such, the Code of Civil Procedure does not apply to administrative proceedings.
Desai v. Metropolitan Sanitary District of Greater Chicago, 125 Ill. App. 3d 1031, 1033 (1984).
Administrative procedures are simpler and less formal and technical than judicial procedures. Id.The administrative body has broad discretion in conducting its hearings. South Elgin, 64 Ill. App.
3d at 568. An administrative agency abuses that discretion only when it acts arbitrarily or
capriciously. Village of Stickney v. Board of Trustees of the Police Pension Fund of Stickney, 347
Ill. App. 3d 845, 852 (2004).
¶ 118 The Board’s decision to take Scatchell’s motion under advisement was well within its
discretion, and that decision was not arbitrary or capricious. Its choice to wait until the evidence
was complete was proper to the nature of this hearing, and the hearings conformed to the
fundamental principles of justice and due process. It did not limit Scatchell’s ability to plead his
case or cross-examine adverse witnesses, and the Board acted impartially because it also took the
Village’s motion for a directed finding under advisement. We find no error here.
¶ 119 Along those same lines, Scatchell also claims the Board improperly allowed the
Department to amend its charges and add count XIII, which alleged he was insubordinate and
33
No. 1-20-1361
disobeyed a direct order to testify in the hearing on October 22. On the hearing’s next date,
October 25, the Board allowed the Department to amend the complaint and add the additional
charge.
¶ 120 In administrative hearings, due process of law specifically requires a definite charge,
adequate notice, and a full and impartial hearing. Ellison v. Illinois Racing Board, 377 Ill. App.
3d 433, 444-45 (2007). That said, charges in administrative proceedings do not need to be as
precisely worded as the pleadings in a judicial proceeding, provided the respondent is adequately
advised of the charges so that he may intelligently prepare a defense. Giampa v. Illinois Civil
Service Comm’n, 89 Ill. App. 3d 606, 610-11 (1980). And again, as the administrative body in
charge of the proceedings, the Board had broad discretion to conduct its hearings as it saw fit, so
long as the hearings satisfied due process concerns. South Elgin, 64 Ill. App. 3d at 568.
¶ 121 In Giampa, the respondent faced a charge from the Illinois Civil Service Commission
related to sexual crimes against a minor. Before the administrative hearing, the hearing officer
granted the Commission’s motion to add a second charge, made three days before the hearing,
for conduct unbecoming a state employee. Giampa, 89 Ill. App. 3d at 609. This court rejected the
respondent’s due process claim, as the second charge was based on the facts of the first incident
and the respondent made no showing that he was unable to intelligently prepare his defense due
to the lack of notice. Id. at 611.
¶ 122 Scatchell is in a similar position here. While the facts of count XIII were not based on
the incident that gave rise to the other counts, he and his attorney were present for the events that
precipitated the Department’s allegations in count XIII. And he had plenty of time to
intelligently prepare a defense to the charge; in fact, he filed a comprehensive memorandum of
law on the topic, and the Board granted him a two-week continuance to prepare his case after the
34
No. 1-20-1361
additional charge was filed. Because he had ample time to prepare a defense and was aware of
the conduct that underpinned the claim, any due process concerns were fully addressed.
¶ 123 In one last challenge to the administrative hearing, Scatchell argues that the Board
erred when it refused to allow him to call Director Pitassi as a witness and further erred when it
refused to allow him to make an offer of proof regarding Pitassi’s anticipated testimony.
Scatchell claims Pitassi was critical to his defense because he would testify to how the
department treated other officers who violated department policies, thereby highlighting the
“arbitrary and selective” enforcement of department polices to his detriment.
¶ 124 To his complaint that he was denied the opportunity to make an offer of proof in the
moment, it ultimately does not matter. The purpose of an offer of proof is to disclose to the court
and opposing counsel the nature of the offered evidence and to allow a reviewing court to
determine whether that exclusion was proper. Kim v. Mercedes-Benz U.S.A., Inc., 353 Ill. App.
3d 444, 451 (2004). The record is replete with Scatchell’s filings highlighting what he contends
were other incidents where Melrose Park police officers broke departmental policies. Based on
his filings and his attorney’s statement at the hearing, it is clear he intended to question Pitassi
about these incidents. He adequately explained the nature of his proposed evidence for the circuit
court and us to review, so any further offer of proof was unnecessary.
¶ 125 In any event, an officer may not hide behind the misconduct of others, which is
irrelevant to whether that officer was guilty of misconduct. There may be sufficient cause to fire
a particular officer in a case, regardless of whether other officers had received different
treatment. See Davis v. City of Evanston, 257 Ill. App. 3d 549, 560 (1993). Even if Scatchell
could prove he was treated differently—we take no position on that question—it is irrelevant to
whether he broke the rules. As already noted, the Board has wide discretion in how it operates its
35
No. 1-20-1361
hearings, and it did not abuse it when it refused to allow Scatchell to question Pitassi on these
topics.
¶ 126 V. Claims of Error by Circuit Court
¶ 127 Moving his complaints to the circuit court, Scatchell raises two arguments. First,
Scatchell argues the trial court erred when it refused to allow him to amend the administrative
law record. This is a bit of an end-around: his real grievance is that he believes the Board
members engaged in improper ex parte communications with Pitassi, the police director, and
Castellan, the deputy chief. These communications biased the Board against him, Scatchell
believes, and denied him a fair hearing before an impartial board. See 65 ILCS 5/10-2.1-17
(West 2018) (Board must conduct fair and impartial hearing on charges). He sought to amend the
administrative law record to present these claims, but the circuit court denied his efforts. That
decision also scuttled his claim that the Board was biased.
¶ 128 We do not know why the circuit court denied Scatchell’s motion to amend the
administrative record; the transcript from the date of the hearing is not a part of the record. The
circuit court denied Scatchell’s motion to supplement the record on August 14, 2020, “for
reasons stated on the record in Court.” The circuit court also ordered Scatchell to file a copy of
the transcript from the day’s hearing with the clerk. That did not happen. (The record only
contains the transcript of the August 18, 2020, hearing, where the parties argued on the
administrative review complaint.)
¶ 129 It is well established that the appellant has the burden to present a sufficiently
complete record of the proceedings in the trial court to support a claim of error. Foutch v.
O’Bryant, 99 Ill. 2d 389, 391-92 (1984). If the record is missing key pieces, we will presume that
the order entered by the trial court conformed with the law and was supported by a sufficient
36
No. 1-20-1361
factual basis. Id. We resolve any doubts arising from the record’s incompleteness against the
appellant. Id. at 392. Here, the trial court’s order denying leave to amend the record specifically
referenced the findings it made at that hearing. Since Scatchell has not provided a transcript of
that hearing to us—despite the circuit court order requiring him to—we will assume the court’s
order was amply supported by the facts and conformed to the law. We thus reject this challenge.
¶ 130 Next, Scatchell argues that the court abused its discretion when it refused to allow
him to file an amended complaint. In the proposed amendment—which was more than 60 pages
long—Scatchell alleged a complicated web of conspiracy and bias against him; he sought to add
counts of retaliation and bias, as well as adding new parties to the suit. Among other things, he
alleged the Department investigated him because his father filed a complaint against the Village,
accusing it of racial discrimination.
¶ 131 First, some context on the timeline. The complaint for administrative review was filed
in December 2018. Full briefing on the complaint was completed in December 2019. But he did
not seek leave to file this amendment to the complaint until March 2020.
¶ 132 At any time before final judgment, parties may seek to amend their pleadings on “just
and reasonable terms.” 735 ILCS 5/2-616(a) (West 2020). To determine if the court abused its
discretion when it refused to let Scatchell amend his complaint, we look at four factors:
(1) whether the proposed amendment would cure a defective pleading, (2) whether other parties
would sustain prejudice or surprise by virtue of the proposed amendment, (3) whether the
proposed amendment is timely, and (4) whether there were previous opportunities to amend the
pleading. Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992). We will
only reverse the trial court’s decision if it manifestly abused its discretion. Id. at 273-74. A court
abuses its discretion when no reasonable person would take the position the trial court adopted.
37
No. 1-20-1361
Taylor v. County of Cook, 2011 IL App (1st) 093085, ¶ 23.
¶ 133 The circuit court here directly addressed the Loyola factors, which makes our job
easy. First, it concluded that the proposed amendment added new claims instead of curing
defective ones. Needless to say, adding pages of new claims and allegations, often completely
unrelated to the administrative proceeding underlying the initial action, is not curing existing
defective claims. Second, the court found the amended complaint untimely since it was brought
after briefing was complete on the initial administrative review complaint. And last, it concluded
that adding new parties, claims, and arguments so late in the game would prejudice the existing
defendants and those Scatchell sought to add to the case. There is nothing arbitrary or
unreasonable about those conclusions.
¶ 134 The court also noted that Scatchell had tried—unsuccessfully—to bring most of his
new proposed claims in other cases both in federal and state court. In February 2018, before the
Board heard this case and terminated him, he filed a complaint in the circuit court of Cook
County alleging that his rights were being violated.
¶ 135 Notably, in June 2018, Scatchell filed a complaint for injunctive relief to stop the
Board proceedings, alleging, among other things, the Board’s “lack of impartiality,” based
primarily on phone records showing conversations between the Board chair, the mayor, the
police chief, the deputy police chief, and the Village attorney. That same month, he filed suit
attacking the Board’s jurisdiction to hear the charges at all. (This court eventually rejected that
claim in Scatchell v. Village of Melrose Park, 2020 IL App (1st) 191414-U.) In January 2019,
Scatchell then sought leave to join a federal civil rights lawsuit where his father was the plaintiff,
though leave was denied.
¶ 136 As defendants here note, if Scatchell was citing phone records that he claimed
38
No. 1-20-1361
showed the Board’s bias back in June 2018, the trial court could not possibly have abused its
discretion in deeming untimely a proposed amendment to the administrative-review action, an
amendment first submitted in March 2020—nearly two years later and only after full briefing on
the administrative-review claims had been completed.
¶ 137 Though we could stop there, we also note another lawsuit filed originally in state
court, before it was removed to federal court. On January 24, 2020, plaintiff filed suit in the
circuit court of Cook County against the Board and other parties—a lawsuit that was then
removed to federal court. See Scatchell v. Village of Melrose Park, No. 20 C 1045, 2021 WL
2291072, at *1 (N.D. Ill. June 4, 2021). The federal court, Judge Feinerman, stayed that case
pending the outcome of the appeal under review here. Id. at *6.
¶ 138 In granting the stay, Judge Feinerman repeatedly emphasized that the claims raised in
the federal action mirrored the claims that Scatchell sought to raise in his proposed amendment
to the administrative-review complaint. See, e.g., id. at *1 (noting that “Scatchell moved to
amend his complaint in the administrative review action to add (1) the defendants (Serpico and
Caira) named in this suit but not in the administrative review action and (2) the federal and state
claims asserted in this suit”); id. at *6 (noting “Scatchell’s ongoing effort to add to the
administrative review action the claims he brings in this suit”).
¶ 139 At oral argument before us, Scatchell argued that a grave injustice will occur if he is
not allowed to amend his complaint for administrative review to include these federal claims,
that he will never have his day in court, so to speak, over these claims of bias. We have trouble
accepting this argument for several reasons.
¶ 140 For one, Scatchell could have made this administrative-review action his original
forum for raising these claims. He could have raised them when he filed his original
39
No. 1-20-1361
administrative-review complaint; as noted above, he was raising claims of bias as early as June
2018. But he did not. Instead, he first tried federal court—joining his father’s lawsuit—and then
filed another action in state court raising these claims, the one that was removed to federal court,
now pending before Judge Feinerman. That case contains all the same claims Scatchell wishes to
add in his proposed amendment to this administrative-review action. Indeed, that was the
principal reason Judge Feinerman stayed the federal action until we decided this appeal. See id.
at *3 (“if the state appellate court reverses the state trial court’s order denying Scatchell leave to
amend, all claims in the present lawsuit will become part of the administrative review action”).
¶ 141 True, defendants are challenging that federal action with arguments of claim-splitting
(see id. at *1, *6), and Scatchell would like to at least try to avoid that problem by simply
amending the administrative-review complaint here. But the fact remains that Scatchell will have
his “day in court” on these claims of bias—federal court, before Judge Feinerman. Whether he
prevails certainly cannot be the decisive factor for us.
¶ 142 Given that the claims of bias, so heavily emphasized by Scatchell at oral argument,
were the basis of a lawsuit as early as June 2018 and considering that the very claims and parties
that Scatchell tried to add in his amendment to the administrative-review complaint are pending
before Judge Feinerman, we could not possibly find that the court abused its discretion in
deeming the proposed amendment untimely, nor do we find that any prejudice or injustice to
Scatchell would occur. We find no error in the court’s denial of leave to amend.
¶ 143 CONCLUSION
¶ 144 The judgment of the circuit court, affirming the final decision of the Board, is
affirmed.
¶ 145 Affirmed.
40
No. 1-20-1361
Scatchell v. Board of Fire & Police Commissioners for Melrose Park,
2022 IL App (1st) 201361Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CH-
16150; the Hon. Pamela McLean Meyerson, Judge, presiding.
Attorneys Gianna R. Scatchell and Cass T. Casper, of Disparti Law Group,
for P.A., of Chicago, and Christopher Cooper, of Law Office of
Appellant: Christopher Cooper, Inc., of Griffith, Indiana, for appellant.
Attorneys Jeffrey S. Fowler, of Laner Muchin, Ltd., and Patrick H.
for O’Connor, of Hartigan & O’Connor P.C., both of Chicago, for
Appellee: appellees.
41