Roman v. Cook County Sheriff's Merit Board

Illinois Official Reports
Appellate Court
Roman v. Cook County Sheriff’s Merit Board, 2014 IL App (1st) 123308
Appellate Court GERALDO ROMAN, MANUEL HERRERA, MICHAEL DESENA,
Caption JOHN VERNER, FRANCISCO YERENA, HOWARD DAVIS, and
MICHAEL CERAMI, Plaintiffs-Appellants, v. COOK COUNTY
SHERIFF’S MERIT BOARD and THOMAS J. DART, Sheriff of
Cook County, Defendants-Appellees.
District & No. First District, Fifth Division
Docket Nos. 1-12-3308, 1-12-3309, 1-12-3310, 1-12-3311, 1-12-3312
cons.
Filed August 1, 2014
Held In a consolidated appeal from the trial court’s decision upholding
(Note: This syllabus rulings of the Cook County Sheriff’s Merit Board suspending or
constitutes no part of the terminating the employment of seven correctional officers based on
opinion of the court but their unauthorized secondary employment as security guards in
has been prepared by the establishments selling intoxicating liquor, the appellate court directed
Reporter of Decisions the Board to vacate the termination of one officer and reinstate him
for the convenience of retroactively and to vacate the terminations of two others and reduce
the reader.) the penalty to 180-day suspensions, and the balance of the Board’s
rulings were affirmed.
Decision Under Appeal from the Circuit Court of Cook County, Nos. 10-CH-8293,
Review 10-CH-7964, 10-CH-7968, 10-CH-7965, 10-CH-7961; the Hon.
Sophia Hall, Judge, presiding.
Judgment Affirmed in part; reversed in part; remanded with directions.
Counsel on Cass T. Casper, of Teamsters Local 700 Legal Department, of Park
Appeal Ridge, for appellants.
Baumann & Shuldiner, of Chicago (Deidre Baumann, of counsel), for
appellant Francisco Yerena.
Anita M. Alvarez, State’s Attorney, of Chicago (Patrick T. Driscoll,
Jr., James Pullos, and Karen Dimond, Assistant State’s Attorneys, of
counsel), for appellees.
Panel JUSTICE PALMER delivered the judgment of the court, with
opinion.
Justices McBride and Taylor concurred in the judgment and opinion.
OPINION
¶1 In these five consolidated cases, plaintiffs Geraldo Roman, Manuel Herrera, Michael
DeSena, John Verner, Francisco Yerena, Howard Davis and Michael Cerami appeal from an
order of the circuit court of Cook County affirming the rulings of the Cook County Sheriff’s
Merit Board (the Board) in which the Board suspended or terminated plaintiffs’ employment
as Cook County correctional officers on the basis that plaintiffs had, inter alia, engaged in
unauthorized secondary employment. On appeal, plaintiffs contend that the Board’s
decision-making procedures violated the Illinois Administrative Procedure Act (5 ILCS
100/1-1 et seq. (West 2008)), the Board’s findings were against the manifest weight of the
evidence and the imposed discipline was arbitrary and capricious. We affirm in part, reverse in
part and remand to the Board with instructions.
¶2 BACKGROUND
¶3 Plaintiffs were employed by the Cook County sheriff as officers with the Cook County
department of corrections (DOC). On June 3, 2009, following an investigation by the Sheriff’s
Office of Professional Review (OPR), Sheriff Thomas J. Dart (Sheriff) filed complaints with
the Board against plaintiffs, seeking suspension or termination of their employment. The
Sheriff charged that, in violation of assorted DOC general orders, sheriff’s orders and the
Board’s rules and regulations, plaintiffs worked in secondary jobs as security guards at
establishments in Berwyn and Cicero, Illinois. In the complaints, the Sheriff specified the
particular establishments at which each officer worked and asserted that all the establishments
had as their primary business the selling of intoxicating liquor. He charged that plaintiffs had
not requested permission from the DOC or the Sheriff’s office to engage in secondary
employment, had not obtained indemnity forms from their “secondary” employers for the
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security work they were performing and falsely reported to OPR investigators that they did not
work security for Mike Holmes, a DOC superintendent.1
¶4 The Sheriff also charged plaintiffs with assorted individual violations. Specifically, he
charged that Roman also worked secondary employment as an auxiliary police officer for the
Berwyn police department without permission. He charged that Herrera, by his own
admission, had failed to report to the Sheriff’s department or a supervisor that he had been
involved in an altercation at Tapas (an establishment serving food and liquor) while working
security there, four individuals were arrested as a result, he had signed criminal complaints and
had failed to appear in court on the complaints. The Sheriff charged that DeSena, while
assigned to OPR, had provided security services to the disc jockey (DJ) at Tapas, had also
worked at San Marcos (an establishment serving food and liquor) and had displayed his
Sheriff’s badge around his neck while doing so.
¶5 The Sheriff charged that Verner had used excessive force against and stolen from patron
Miguel Pineda while working as security at Guadalajara’s (an establishment serving food and
liquor) on August 25, 2007, and Pineda had filed a federal civil rights lawsuit against Verner as
a result. The Sheriff asserted that Verner failed to notify the Sheriff’s office of the lawsuit. He
also asserted that Verner falsely reported to OPR investigators that he had never worked at a
bar in Berwyn or Cicero, worked at Guadalajara’s, choked Pineda or stolen from Pineda.
¶6 The Sheriff charged that Yerena had “falsely reported” to OPR investigators that he did not
work security in bars in Cicero or Berwyn, he had never worked security in bars in Cicero or
Berwyn, he had never worked at Guadalajara’s, his badge was not displayed and he was not
compensated. The Sheriff charged that Davis had “falsely reported” to OPR investigators that
he did not work security in bars in Cicero or Berwyn and that he did not remember working
security at San Marcos on April 19, 2008, even though his signature was on a “victim’s
Refusal to Prosecute” form related to an altercation at San Marcos on that date.
¶7 The Sheriff charged that Cerami was working security at Guadalajara’s on August 25,
2007, was present when Verner used excessive force on and committed theft from Pineda and
himself used excessive force against Pineda. It charged that Cerami failed to notify a
supervisor in the sheriff’s office regarding the altercation or the sheriff’s legal department
regarding the lawsuit filed by Pineda as a result. The Sheriff asserted that, although Cerami
admitted to occasionally working at Guadalajara’s, he falsely reported to OPR investigators
that he did not remember working there on August 25, 2007, or on April 5 and 6, 2008.
¶8 Plaintiffs moved to dismiss, arguing that the establishments where they had worked were
licensed as restaurants and not as bars, and the primary business of the establishments was not
the sale of intoxicating liquor. The Board denied the motions and set the cases for a joint
hearing.
¶9 At the hearing, the Board heard testimony from Cook County Sheriff’s Department Chief
Michael Holmes. Holmes testified that he had run a security business in Berwyn and Cicero at
Tapas, San Marcos, La Quinta and three Guadalajara’s. He had started the business just prior
to New Year’s Eve in 2007 and ended it in August 2008, after OPR accused him of not filing
secondary employment forms and of official misconduct. Holmes stated he had started the
1
The Sheriff filed similar complaints against correction officers Benito Enriquez, Christopher
Dellutri and Eric King, which are not part of the instant appeal.
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business because “Berwyn Police for a number of years ran all the details in [Berwyn or
Cicero], and the guys that ran that had called [him] because they had taken on so many more
businesses that they didn’t have enough Berwyn policemen to fill all the spots.”
¶ 10 Holmes stated that approximately 15 people had worked security for him, providing
security “at restaurants[;] *** they were more used as a deterrent than anything else, checking
[identification cards (IDs)], and just making sure no problems happened at the place.” He
testified that his men typically worked Fridays and Saturdays, from 10 p.m. or 11 p.m. to
3 a.m. Asked whether he was personally working “some of these bars” himself, Holmes stated
he sometimes did.
¶ 11 With regard to scheduling the security staff, Holmes stated that “a guy by the name of
Tinoco was the one who organized everything” and who made sure that the security people
“show[ed] up” to work when they were supposed to. Holmes testified that he did not
personally recruit anyone to work security, explaining “[t]he best way I can explain it is when
Berwyn called me that they needed some guys to work, basically anyone I came in contact with
or–mainly it was Joe Tinoco that would get friends of his to come and work.” He stated that he
did not invite any of the officers named in the OPR investigation to work. Holmes admitted
that, although he did not recruit or schedule “the guys,” he received $2 per hour from
“Berwyn” for every hour his men worked, being paid for what Tinoco was doing. He did not
split the money with Tinoco. Holmes testified that he had no payroll or other records for the
business, it had no name and was not incorporated.
¶ 12 Holmes testified that the places employing his security staff were restaurants, but that IDs
were checked to make sure that anyone coming in for a drink was at least 21 years old. “Being
a restaurant, you had a mix of families and just regular people coming in to have a drink.”
Asked whether the establishments, although called restaurants, primarily served alcohol from
10 p.m. on, Holmes stated that the establishments “would serve alcohol but they had to have
the kitchen open to–for anyone to order to stay in with their license.”
¶ 13 Holmes testified that he was raised in the Berwyn/Cicero area and was familiar with the
assorted establishments where the security staff worked. He visited the establishments on
weekends “late at night,” two to three times a month. He would visit three establishments per
night, spending 15 to 20 minutes at each socializing with the patrons. Holmes stated that,
during the time that his “guys” were working security at the places, from 10 p.m. to 3 a.m., he
observed “more drinking” than people being served food. He had checked the licenses of the
restaurants and they were licensed as “restaurant first” and “entertainment second.” The
security officers were paid by the business owners at the end of the night and he would
sometimes collect the money from the owners and pay the officers for the night.
¶ 14 Holmes testified that, during his time working security, he had responded to incidents at
the named establishments. He explained security’s role in those situations as “[t]he main thing
would be escorting out people that were inebriated beyond the point of being able to handle
themselves, so the guys would be more proactive in removing them than getting into an
altercation.”
¶ 15 Holmes admitted that he did not have “approved secondary employment” for his security
work. He did not require any officers that were allegedly working for him to have secondary
employment forms approved. He testified that he would have been required to have approved
secondary employment forms for everybody working for him who performed security work
but he did not.
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¶ 16 Plaintiffs were present in the hearing room and Holmes identified each of them. He
testified that DeSena worked security for Holmes’s business at Tapas. Holmes stated that he
knew DeSena and, over the year and a half that Holmes had the security business, he saw
DeSena at Tapas on two occasions, including one where DeSena was “helping the DJ out in
some kind of business transaction they had.” He did not see DeSena wearing badge.
¶ 17 Holmes testified that Roman worked security for him at La Quinta. He knew Roman
worked there because, when he stopped at La Quinta to socialize, he would talk to Roman and
“[w]e had worked on a couple occasions at La Quinta together.” He saw Roman there 5 to 10
times over the year and a half that he owned the business. Holmes did not see Roman wearing
a badge, police equipment or indicia that he worked for the establishment or as security.
¶ 18 Holmes testified that Herrera worked for him at Tapas, the same location as DeSena. He
stated that he saw Herrera at Tapas “maybe a couple times,” when he went to Tapas to
socialize. On one occasion, he went to Tapas after receiving a phone call, either from Tapas’s
owner or from Herrera, when Herrera was involved in an altercation “and his head was split
open.” He responded as “a friend,” not in an official capacity. He stated that he did not have
personal knowledge that Herrera was working at Tapas at the time of the incident, but “the
Berwyn police came and they wrote him up as he was doing security in the bar.” Holmes
testified that Herrera neither wore indicia showing that he worked for Tapas or for security nor
displayed police equipment.
¶ 19 Holmes testified that Davis worked security for Holmes at San Marcos and that Verner,
Yerena and Cerami worked for him at Guadalajara. However, he did not have personal
knowledge regarding the officers working as security and had not seen any of them actually
working as such. He stated he knew Davis worked at San Marcos and Verner and Yerena
worked at Guadalajara from Tinoco.2
¶ 20 Holmes testified that he was participating in the hearing under a subpoena and not because
of a settlement agreement or compromise with the Sheriff regarding the allegations directed to
his involvement in the matter. As a consequence of the investigation, he had been demoted
from superintendent to chief, which meant a $5,000 reduction in salary, and had been
suspended for 60 days. He had already served the suspension at the time of the hearing. He
considered the suspension unfair because, in his experience, a suspension for working a
secondary job without approval was a three- to four-day suspension “with options.”
¶ 21 OPR investigator David Shilling testified that he began an investigation after “OPR had
received a complaint register signed by Chief Kushner of the Berwyn Police Department
alleging certain allegations against two correctional officers” and “[a]t approximately the same
time, we received a letter and a surveillance tape from the State’s Attorney’s office naming the
same officers.” He testified that, in conjunction with his investigation, he interviewed DeSena
regarding “secondary employment in Berwyn and Cicero.” Presented with a document titled
“typed statement memo,” Shilling identified it as the statement he typed while speaking with
DeSena. He stated that he typed up DeSena’s answers to his questions as he went along and
2
Holmes testified that Dellutri worked for him at San Marcos. He stated that he saw Dellutri at
San Marcos 5 to 10 times over the year and a half and knew Dellutri was working there because Dellutri
told him so or because Holmes was working with Dellutri. He did not see Dellutri wearing a uniform,
badge, police equipment or anything to indicate that he was part of a security staff.
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gave DeSena an opportunity to review and correct the statement. DeSena made no corrections,
initialed the statement at the bottom of each page and signed the last page.
¶ 22 Investigator Shilling testified similarly with regard to speaking with and taking statements
from Davis, Yerena, Roman, Herrera, Cerami, and Verner regarding the secondary
employment investigation. In the same investigation, he took statements from Eric King and
Christopher Dellutri. OPR investigator Eric Schroeder was present for all of the interviews
and, in some cases, the officer being interviewed had counsel or a union representative present.
Shilling testified that after each interview, he had the officer review his statement (hereinafter,
OPR statement) in order to make any corrections. He stated none of the officers made any
changes to their statements. Each signed the last page of their respective statement and some
initialed every page. The hearing officer barred Shilling from testifying regarding the content
of the statements or his conversations with the officers but admitted the statements into
evidence.
¶ 23 Shilling testified that, as part of his investigation, he “looked into” an August 25, 2007,
incident at Guadalajara’s for which his office had obtained a Berwyn police report. He learned
that the victim named in the report was “Mr. Pineda” and a civil suit had been filed against
Verner and Cerami as a result of the incident. Shilling stated that Verner and Cerami had an
obligation to report the legal action to the Sheriff’s department and his “office” determined that
neither had done so. Shilling testified that he did not know whether Verner and Cerami had
been served with the lawsuit at the time of their interviews.3
¶ 24 The hearing officer admitted into evidence a copy of a first amended complaint filed by
Miguel Pineda against Verner, Cerami and Guadalajara restaurant in the United States District
Court for the Northern District of Illinois. The complaint charged that, on either the late night
of August 24, 2007, or the early morning of August 25, 2007, Verner and Cerami forcibly
removed Pineda from Guadalajara’s and variously put him in a choke hold, threw him down a
flight of stairs, and punched, stomped and beat him. Pineda asserted Verner then stole $300
from him. He asserted that Verner and Cerami “were working as security staff at Guadalajara’s
Restaurant, but were also wearing black shirts that stated the word ‘police’ on the shirts in
white lettering.” Pineda sought compensatory damages for the injuries he suffered as a result of
Verner’s and Cerami’s actions, asserting claims for battery and for use of excessive force in
violation of his rights under the fourth and fourteenth amendments of the United States
Constitution.
¶ 25 Copies of two affidavits of personal service show that the process server personally served
the federal complaint and summons on Cerami on November 24, 2008, and on Verner on
November 25, 2008. The process server averred that Verner “became verbally hostile with
[him], and made several remarks using profanity and racial epithets, in which [the process
server] believed the remarks were an indication of potentially receiving physical harm from the
defendant.”
3
In fact, Verner and Cerami had not been served with the complaint at the time Investigator Shilling
interviewed them. Shilling interviewed Verner on September 19, 2008, and on November 6, 2008. He
interviewed Cerami on October 20, 2008. The affidavits of personal service show that Cerami was
served with the complaint on November 24, 2008, and Verner was served on November 25, 2008, after
the Shilling interviews.
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¶ 26 Shilling testified that OPR is “the Sheriff’s Department’s version of an internal affairs
investigative unit.” He stated that he had worked for OPR for four years and had done between
30 to 50 investigations. When he completed an investigation, he compiled a report and
submitted it to his director, who would then recommend a disciplinary action for the
investigated officer. Shilling testified that he had previously investigated “cases of failure to
ask permission to work secondary employment” and in only one case had the recommended
disciplinary action been close to a 40-day or more suspension, “but there [were] other factors
involved.” In his experience, the duration of suspension recommended in the past for “one
count of secondary employment request” ranged “from three to five days.” He stated he had
never investigated secondary employment in “a prohibited establishment” or “where one of the
allegations that was sustained was not being truthful in their internal affairs interview.”
Shilling testified that he had done investigations where the allegations concerned “submitting
false reports” and that “past practice” with regard to disciplinary action recommended for such
an offense was “merit board separation.”
¶ 27 In the statements taken by Shilling, Roman, Herrera, DeSena and Cerami admitted to
working secondary jobs without having filled out the requisite authorization form. Verner,
Yerena and Davis denied working the secondary jobs.
¶ 28 In Roman’s statement, he denied working for Holmes in “bar or lounges in Berwyn and
Cicero” but admitted he worked security for Holmes as a volunteer at an event “for a
firefighter.” Roman told Investigator Shilling that he did not remember whether he was
working at Serenatas on 5 April, 2008, or at San Marcos in Cicero on either April 13, 2008, or
April 19, 2008. He did not remember an incident in which a person got hurt at San Marcos on
April 19, 2008. Roman stated that he had worked security for “restaurants,” specifically
La Quinta, from January 2008 through June 2008. He had not submitted a secondary
employment request for 2007 or 2008. Asked who employed him, he stated “[t]hey were
Berwyn coppers had the account and I filled in when needed. The restaurant owners [sic].” He
stated that the restaurant owners “mostly” did the scheduling and he was paid in cash. Roman
told Shilling that he carried his badge around his neck, usually backwards and inside his shirt.
Asked whether he was armed while working security in Berwyn and Cicero, he answered “I
may have been.” Roman admitted that he was rehired as an auxiliary police officer by the
Berwyn police department after he came to the Sheriff’s office.
¶ 29 In Herrera’s statement, he told Investigator Shilling that he was working security at Tapas
on December 20, 2007, for the owner when he “got jumped,” was injured and had to go to the
hospital. He stated that the police report regarding the incident was accurate to the best of his
knowledge and criminal complaints against four offenders were filed. Herrera told Shilling
that he did not notify a supervisor that he had been involved in an altercation and that the
subjects had been arrested. He stated that he worked security at Tapas “once or twice a month
depending on the help needed for about 6-8 months” and that his job was “[c]heck ID.’s and
always stand where the DJ’s were.” He did not know who did the scheduling, explaining that
“[t]he owner would call” him. He was compensated in cash and the night of the incident was
his last night there. While “working security in Berwyn and Cicero,” his badge was not
displayed and he was not armed. He had not submitted a secondary employment request for
2007 or 2008. Asked to explain his involvement or working relationship with Holmes as a
security person in the bars or lounges in Berwyn and Cicero, he responded that he “just” knew
Holmes as superintendent in “the department.”
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¶ 30 In DeSena’s statement, he admitted to working security at San Marcos and “at other bars in
Berwyn or Cicero,” including at Tapas. He told Investigator Shilling that he was employed by
“Joe,” a Berwyn police officer, to maintain order for “Elias,” a disc jockey. He stated that he
did not submit a secondary employment request. When asked about Holmes, DeSena
responded that Holmes was a friend of his and, to his knowledge, Holmes “doesn’t work or
schedule security.” He stated he did not work for Holmes but for Elias. Elias would ask him
whether he could work and give him dates and times. DeSena stated that he was compensated
“by favors” because Elias was a handyman and came to DeSena’s house and worked for him
there. Asked about an incident at San Marcos on April 13, 2008, when the Cicero police
arrived, DeSena responded that he was there but not involved in the incident. He told Shilling
that, while he worked at San Marcos, his badge was hanging around his neck, “where I always
have it,” but he was not armed while working security. When OPR started investigating, he
stopped working a secondary job because he did not know it was a violation. He identified “Joe
in Div. 11, Ron in EXOPS,” as also working “various locations in Berwyn and Cicero.”
¶ 31 Investigator Shilling took two statements from Verner. In the first, Verner stated he was
not working security at Guadalajara in Cicero on April 4-5, 2008, and did not work security at
any other bars in Berwyn or Cicero. He stated he did not recall any incident in which his badge
was displayed, was not armed in any bar in Berwyn or Cicero and had never submitted a
secondary employment form “because I don’t work security.” Asked to explain his
involvement or working relationship with Holmes as a security person in the bars or lounges in
Berwyn and Cicero, Verner stated “there is none” and he had no knowledge of Holmes
operating security in bars in Berwyn and Cicero. Verner stated that he thought there was
“political motivation” behind the investigation of him because he had supported a particular
candidate in an upcoming mayoral election and because his wife was “100% Hispanic.”
¶ 32 In Verner’s second statement, he averred that he had told the truth in his first statement. He
stated that he might have been at Guadalajara’s on July 25, 2008, but had not been working
security. He denied ever picking up any money from any bar owner to be paid to security
workers. Asked about a Berwyn police report regarding an incident at Guadalajara’s on August
25, 2007, Verner stated he was at the establishment but he was not working. He stated he was
with his wife, “drinking and *** dancing.” He denied knowing or choking “Miguel Pineda”
and taking money from his wallet. He stated he did not know how the Berwyn police got his
wrong badge number and “they assumed I was working there.” He restated his assertion that
the investigation was politically and racially motivated.
¶ 33 In Yerena’s statement, he denied working security at Guadalajara’s or “at any other bars in
Berwyn or Cicero.” He told Investigator Shilling that he had no involvement with Holmes as a
security person and was not working at Guadalajara in Cicero on July 25, 2008. Yerena
responded “no,” when asked why his badge was displayed at Guadalajara and whether he was
armed at Guadalajara. He stated he did not submit a secondary employment request form for
2007 and/or 2008, never worked security for Holmes, was not compensated for security work
and did not pay taxes on his security pay because “I don’t work security.” Told a uniformed
Berwyn police officer came into the bar on July 25, 2008, and asked him to fill out a report,
Yerena stated that he did not remember and “[n]o one ask me nothing.”
¶ 34 In Davis’s statement, he denied that he “ever worked security in bars in Berwyn or Cicero”
and denied that he ever worked security at San Marcos. He told Investigator Shilling that he
had no relation with Holmes and did not remember an incident at San Marcos on April 19,
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2008, when the Cicero police responded. Presented by Shilling with a Cicero “Victim’s
Refusal to Sign Complaint” report of an incident occurring on April 19, 2008, he admitted the
signature on the form was his but stated he did not remember the incident. He stated his badge
was not displayed when he was in San Marcos and, when he ate lunch there, he had his gun and
handcuffs. Davis stated that he did not work a secondary employment job, had not submitted a
secondary employment request for 2007 or 2008, had a working relationship with Holmes
“with the County” and did not know anything about Holmes.
¶ 35 In Cerami’s statement, he admitted to working at Guadalajara’s as a security person,
“approximately 3-6 time[s] with in [sic] a year.” He stated he was employed by the bar owner
to “keep an eye on things,” was paid in cash and did not work security at “any other bars in
Berwyn or Cicero.” With regard to scheduling his security work, he stated that he “would be
there socially and they would ask me to stay.” Cerami did not recall working at Guadalajara’s
on April 5-6, 2008, or on August 25, 2007. He did not recall being involved in an incident at
Guadalajara’s on August 25, 2007, and did not notify a supervisor that he was involved in an
off duty incident. He did not display his badge while working at Guadalajara’s and was not
armed. He had not submitted a secondary employment request form. Asked to explain his
involvement or working relationship with Holmes as a security person in the bars or lounges in
Berwyn and Cicero, he responded that his relationship with Holmes was “strictly
professional.”
¶ 36 The hearing officer next heard testimony from OPR investigator Eric Schroeder. Schroeder
testified that, as part of his and Investigator Shilling’s investigation regarding officers working
secondary employment in Berwyn and Cicero, he conducted surveillance. On July 25, 2008, he
conducted surveillance at “Guadalajara’s on Ogden and Harlem in the town of Berwyn.” He
and Shilling were in a minivan outside the entrance to Guadalajara’s at 9 p.m. and were there
for approximately 1½ hours. He did not notice anyone in particular coming in or out. He “then
went inside the bar, on [sic] the main level bar, and sat at the bar for approximately 30
minutes.”
¶ 37 Investigator Schroeder testified that, for those 30 minutes, he observed “two people
standing at the door to the second level checking I.D.’s.” He identified Verner and Yerena as
the people checking identifications and stated that they would ask to see a patron’s
identification before they would allow the patron upstairs. He observed Verner and Yerena
check “15 to 20” people. Schroeder testified that he was at the first-level bar, approximately 20
feet from Verner and Yerena, who were standing at the entrance to the stairs to the second
level. He did not speak to them. Verner and Yerena were not wearing shirts with “police” or
“security” on them, did not have their badges around their necks, were not in uniform, did not
have handcuffs exposed and, as far as he could tell, were not armed. Schroeder testified that,
after 30 minutes, he returned to the van and then took a photograph of Yerena standing in the
doorway to Guadalajara’s. Schroeder testified that he conducted surveillance several nights
from June to August 2008 at the Guadalajara’s but did not see Verner or Yerena there on any of
those nights.
¶ 38 Retired police officer Michael Spagnolo testified that he was a police officer with the
Berwyn police department for 30 years and had recently retired. He had been permanently
assigned to work the “midnight shift,” from 11 p.m. to 7 a.m. While on duty on August 25,
2007, at 1:10 a.m., he responded to a call regarding a disturbance at the Guadalajara restaurant
on Harlem Avenue. He was familiar with Guadalajara’s because he had occasionally gotten
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calls from there. He was also familiar with a place called La Espanola Tapas, Guadalajara’s
“on Cermak” and “La Quinta restaurants.” Spagnolo estimated that fights would erupt during
the night shift at “those locations *** probably maybe two to three times every weekend.” He
said that, although he did not necessarily respond to the calls, he knew from talking with other
officers in his department that “those were the calls received.” Spagnolo testified that, from his
own experience and from the experiences of his fellow officers, he considered the
establishments to be “bars serving alcohol” from “approximately 10:00 o’clock on a Friday
and Saturday night till they close at 3:00 o’clock in the morning.”
¶ 39 Spagnolo testified that, in this instance, a victim in the parking lot of Guadalajara’s told
him he was the victim of theft and battery and wanted to make a complaint. Spagnolo stated
that he spoke with Guadalajara employees at the scene and “[s]ome were police
personnel–believed to be police personnel. They had black shirts on with the word ‘Police’ on
them in white lettering.” Spagnolo stated they were not Berwyn police officers but were
working at Guadalajara’s “as security.” He did not see them display badges or ask to see a
badge. He did not recall if they were displaying weapons or handcuffs.
¶ 40 Spagnolo testified that he spoke to the security personnel about “them handling this
individual that was making this complaint about the battery and the theft.” He did not ask them
whether they were working there but stated, “I believe they were working there.” The men told
Spagnolo their names. Refreshing his memory from the report he prepared regarding the
incident, Spagnolo testified that the men told him their names were Verner, Cerami and Torres.
At his request, they told him their Cook County corrections officer “star numbers.” Spagnolo
could not identify any of the officers in the hearing room as the men who were at Guadalajara’s
that night.
¶ 41 Berwyn police sergeant Earl W. Briggs testified that, on August 25, 2007, he received a
call in the early morning hours to Guadalajara’s on Harlem Avenue. He responded to the scene,
where he spoke with “three of their security guards.” He knew one by name, Verner, and
identified him in the hearing. Briggs stated that he knew “they were security guards”
“[b]ecause they were dressed in black with I believe they had ‘Police’ on their shirts.” He
testified, “I believe they had handcuffs,” but that he did not observe any weapons, mace,
radios, stars or badges on them. He stated “they worked at the bar,” although Verner was also a
Cook County corrections officer. Briggs testified that “they said they were working security at
the bar,” and “[t]hey said they worked security; they said they were there.” He thought Verner
told him this but he was not sure. Briggs did not recollect whether Verner told him that the men
worked security and saw nothing in the police report showing such.
¶ 42 Sergeant Briggs testified that, in his experience as a sergeant on the midnight shift,
La Quinta, Guadalajara’s North and La Espanola Tapas (establishments serving food and
liquor) were, on Friday and Saturday nights, “frequent stops,” with “at least one bar fight a
night there.” Because “[a] supervisor had to respond to all bar-related calls,” he or another
supervisor would respond to these calls to supervise the preliminary investigations. Briggs was
asked whether, in his experience as a police officer responding to those calls on Friday and
Saturday nights from 10 p.m. until the establishments closed, the restaurants “would be serving
food primarily or they would be serving alcohol as a bar.” He responded “[a]lcohol as a bar.”
Briggs testified that, although Guadalajara had “a restaurant license that could dispense
alcohol,” from his personal knowledge working the midnight shift, “after 11:00 o’clock their
primary business is to dispense alcohol.”
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¶ 43 Sergeant Briggs identified Roman as being an auxiliary Berwyn police officer in August
2007 but did not know whether he was on the date of the Guadalajara incident. He testified that
Verner was also at some point an auxiliary Berwyn police officer but did not recall when.
¶ 44 Cicero police detective Eddie Perez testified that, while on duty at 1:30 a.m. on April 19,
2008, he responded to a call regarding a battery at the San Marcos tavern. He identified Davis
in the hearing room and stated that Davis was the victim of the battery. Perez testified that,
during the course of his investigation, Davis told him that Davis was a Cook County
correctional officer and “was outside the lounge working off-duty detail and an individual tried
to sneak into the bar which [Davis] stopped him.” He stated Davis was wearing plain clothes,
did not display a star or police identification and was not carrying a weapon or radio. Perez
spoke with the restaurant owner but did not ask him whether Davis was working security.
Perez identified a “Victim’s Refusal to Sign Complaint” report, and stated that Davis had
signed the form because he did not want to sign a complaint against the two alleged
perpetrators of the battery. The form was admitted into evidence. Prepared by Perez on April
19, 2008, and signed by Davis, it identified Davis as the complaining witness and/or victim and
reported that he “[did] not wish to prosecute *** for the offense of criminal trespass and
battery and will not sign a complaint.” The report further stated Davis requested that no action
be taken because he “[did] not wish to press charges in behalf of San Marcos [sic] wish for
individual to band [sic] off the property.
¶ 45 Following Detective Perez’s testimony, the Sheriff rested his case. The parties stipulated
that the OPR investigation was initiated on March 21, 2008, and completed on January 21,
2009. Plaintiffs did not call any witnesses and the defense rested.
¶ 46 On January 27, 2010, the Board issued its decisions, finding plaintiffs violated assorted
rules, regulations and general orders. It issued seven decisions, one for each officer. Each
decision contains (1) a “background” section synopsizing the allegations in the complaint; (2)
the Board’s “findings of fact,” which are essentially recitations of the evidence presented at the
hearing; and (3) a “resolution” section in which the Board stated:
“Based on the evidence presented and after assessing the credibility of the witness
[sic] and the weight to be given the evidence in the record, the Board finds respondent
did violate the following [litany of the rules, regulations, DOC general orders and
Sheriff’s orders the particular officer violated].”
The decisions contain no analysis applying the findings of fact to the charges.
¶ 47 In the Roman decision, the Board listed the following findings of fact:
Holmes testified:
–he knew Roman and knew that he worked at La Quinta,
–he identified Roman at the hearing,
–he did not personally recruit, schedule or pay Roman to work at La Quinta but
knew of his employment from Tinoco,
–he had seen Roman at La Quinta on a few occasions, and
–he had worked with Roman there “a few times.”
In Roman’s statement to OPR Investigator Shilling, Roman acknowledged:
–working at La Quinta,
–working as an auxiliary Berwyn police officer,
–not submitting a secondary employment request in 2007 or 2008, and
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–wearing his badge around his neck, backwards and inside his shirt.
Officer Briggs testified:
–he knew Roman as an auxiliary Berwyn police officer, and
–he identified Roman at the hearing.
As of December 2008, Roman had no record of discipline in the prior 12 to 18
months.
¶ 48 In the Herrera decision, the Board listed the following findings of fact:
Holmes testified:
–he knew Herrera and knew that he worked at Tapas,
–he identified Herrera at the hearing,
–he did not personally recruit, schedule or pay Herrera to work at Tapas but
knew of his employment from Tinoco,
–he had seen Herrera at Tapas on a few occasions, and
–he was at Tapas on December 30, 2007, when Herrera was involved in an
altercation.
In Herrera’s statement to OPR Investigator Shilling, he acknowledged:
–working at Tapas,
–while working at Tapas, he was “jumped” by four Tapas patrons on December
30, 2007,
–he signed criminal complaints against the patrons,
–he did not appear in court because he was never notified of the court date,
–he did not notify anyone from the Sheriff’s Department about the incident,
–he did not submit a secondary employment request in 2007, and
–he stopped working security after the December 2007 incident.
As of December 2008, Herrera had no record of discipline in the prior 12 to 18
months.
¶ 49 In the DeSena decision, the Board stated the following findings of fact:
Holmes testified:
–he knew DeSena and knew that he worked at Tapas,
–he identified DeSena at the hearing,
–he did not personally recruit, schedule or pay DeSena to work at Tapas but
knew of his employment from Tinoco, and
–he had seen DeSena in Tapas on a few occasions “helping the DJ” while
wearing a sweatshirt with the DJ’s logo.
In DeSena’s statement to OPR Investigator Shilling, he acknowledged:
–working at Tapas and San Marcos,
–while working at San Marcos, wearing his badge “hanging from his neck
where he always wears it,”
–not submitting a secondary employment request in 2007 or 2008, and
–stopping his secondary employment.
As of December 2008, DeSena had no record of discipline in the prior 12 to 18
months.
¶ 50 In the Verner decision, the Board stated the following findings of fact:
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Holmes testified:
–he knew Verner and knew he worked at Guadalajara’s,
–he identified Verner at the hearing,
–he did not personally recruit, schedule or pay Verner to work at Guadalajara’s,
but knew of his employment from Tinoco, and
–Verner did and did not [the Board noted the contradiction] collect money from
bar owners to pay security workers.
In Verner’s first statement to OPR Investigator Shilling, he:
–denied working security “at Guadalajara’s or any other bars in Berwyn or
Cicero,”
–stated he had no relationship with Holmes working as a security person in the
bars or lounges in Berwyn and Cicero,
–stated he knew no other correctional officers or sheriff’s employees employed
at various locations in Berwyn and Cicero,
–stated he never submitted a secondary employment request because he did not
work security, and
–stated the charges were politically and racially motivated.
In Verner’s second statement to OPR Investigator Shilling, he:
–averred the veracity of his first statement,
–denied working at Guadalajara’s on July 25, 2008, but acknowledged he might
have been there that night,
–denied picking up money from bar owners to pay security workers,
–denied working security at Guadalajara’s on August 25, 2008, but
acknowledged he might have been there that night,
–denied any knowledge of Michael Pineda,
–stated he had no knowledge as to why the Berwyn police department had the
wrong badge number for him, and
–restated his assertion that the charges were politically and racially motivated.
OPR Investigator Schroeder testified:
–he conducted surveillance at Guadalajara’s on July 25, 2008, and saw two
people standing at the bottom of the stairs to the second level “bar” checking
patrons’ identifications and
–the two people were Yerena and Verner, and
–a photograph Schroeder took of Yerena at Guadalajara’s was entered into
evidence.
Officer Spagnolo testified:
–he responded on August 25, 2007, at 1 a.m. to a call regarding a battery and
theft at Guadalajara’s,
–he spoke to three individuals at the scene wearing black shirts with “Police” on
them in white letters; he believed they were working security,
–he believed two men who identified themselves as Verner and Cerami and
gave him their badge numbers to be Cook County correctional officers, and
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–he identified Verner at the hearing.4
Sergeant Briggs testified:
–he responded to the August 25, 2007, call to Guadalajara’s,
–he saw three individuals in black shirts with “Police” on them who said they
were working security, and
–he did not identify Verner at the hearing.5
¶ 51 In the Yerena decision, the Board made the following findings of fact:
Holmes testified:
–he knew Yerena and knew he worked at Guadalajara’s,
–he identified Yerena at the hearing, and
–he did not personally recruit, schedule or pay Yerena to work at Guadalajara’s,
but knew of his employment from Tinoco.
In Yerena’s statement to OPR Investigator Shilling, he:
–denied working security at Guadalajara’s “or any other bars in Berwyn or
Cicero.”
OPR Investigator Schroeder testified:
–he conducted surveillance at Guadalajara’s on July 25, 2008, and saw two
people standing at the stairs to the second level “bar” checking patron’s
identification,
–he identified the two people as Yerena and Verner, and
–he took a photograph of Yerena that was entered into evidence.
¶ 52 In the Davis decision, the Board found as follows:
Holmes testified:
–he knew Davis and knew he worked at San Marcos,
–he identified Davis at the hearing, and
–he did not personally recruit, schedule or pay Davis to work at San Marcos,
but knew of his employment from Tinoco.
In Davis’s statement to OPR Investigator Shilling, he:
–denied working security at any bars in Berwyn or Cicero, “including
San Marcos,”
–stated he had no relationship with Holmes,
–stated he does not remember an April 18-19, 2008, incident at San Marcos,
–acknowledged he did not submit a secondary employment request in 2007 or
2008, and
–acknowledged his signature on a Cicero police report “which indicates [him]
as a security person at San Marcos and a Refusal to Prosecute, but does not
remember the incident.”
4
This is an inaccurate reflection of Officer Spagnolo’s testimony. Spagnolo did not identify Verner
at the hearing. He testified that he could not identify any of the men present for the hearing as being
“there that night.”
5
This is an inaccurate reflection of Sergeant Briggs’s testimony. Briggs did identify Verner at the
hearing.
- 14 -
Officer Perez testified:
–he responded to a battery call at “San Marcos tavern” at 1:30 a.m. on April 19,
2008,
–he identified Davis as the victim of the battery,
–he was told by Davis that he (Davis) was a Cook County correctional officer
working an off-duty detail, and
–Davis signed the “Victim’s Refusal to Sign Complaint” which was entered
into evidence.
¶ 53 Finally, in the Cerami decision, the Board stated the following findings of fact:
Holmes testified:
–he knew Cerami and knew that he worked at Guadalajara’s,
–he identified Cerami at the hearing, and
–he did not personally recruit Cerami but knew of Cerami’s employment from
Tinoco.
In Cerami’s statement to OPR Investigator Shilling, he:
–acknowledged working at Guadalajara’s three to six times a year,
–did not remember working on August 25, 2007,
–did not recall the incident on August 25, 2007, in which the Berwyn police
were called,
–denied working security “at other bars in Berwyn and Cicero,”
–denied displaying his badge while working security,
–denied being armed while working security,
–admitted he did not file a secondary employment request in 2007 or 2008, and
–stated that he worked at Guadalajara’s only “for the money” and regretted
doing so.
Officer Spagnolo testified:
–he responded on August 25, 2007, at 1 a.m., to a call regarding a battery and
theft at Guadalajara’s,
–he spoke to three individuals at the scene wearing black shirts with “Police” on
them in white letters; he believed they were working security,
–he believed the two men who identified themselves as Verner and Cerami and
gave him their badge numbers to be Cook County correctional officers, and
–he did not identify Cerami at the hearing.
Sergeant Briggs testified:
–he responded to the August 25, 2007, call to Guadalajara’s,
–he saw three individuals in black shirts with “Police” on them who said they
were working security, and
–he did not identify Cerami at the hearing.
¶ 54 In each decision, after reciting Holmes’s testimony regarding the particular officer, the
Board noted its finding that “[i]n general, Holmes was not credible.” It also stated that former
and current Berwyn police officers Spagnolo and Briggs or “two members of the Berwyn
Police Department” testified that, from approximately 10 p.m. until closing on Friday and
Saturday nights, “the primary activity of the establishments in question was the sale of
intoxicating liquor.” In the Verner and Cerami decisions, the Board added that “[Spagnolo and
Briggs] testified that there were frequent police calls to these establishments on Friday and
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Saturday nights, from approximately 10:00 p.m. to closing.”
¶ 55 Based on its findings of fact, the Board found plaintiffs violated the rules, regulations and
general orders summarized in the following chart:
Charge Text of General Order, Rule or Regulation6 Board
Found
Violation
by
DOC Employees will obey all federal, state, county and Verner
General order municipal laws
3.8(III)(A)(1)
3.8(III)(A)(4) Employees will comply with lawful departmental All
rules, written procedures, directives, bulletins, and
verbal orders issued by the proper authorities
3.8(III)(A)(5) Employees will respect and protect the civil and Verner
legal rights of all individuals
3.8(III)(B)(16) Sworn staff will not wear his/her uniform in bars, DeSena
nightclubs or Establishments whose primary
business includes the serving of alcoholic
beverages
3.8(III)(B)(17) Sworn employees will not work secondary All
employment in business entities whose primary
business includes the serving of alcoholic
beverages
3.8(III)(D)(1) Employees will refrain from the use of abusive or None
obscene language, threats, and coercion
3.8(III)(D)(6) Employees will maintain professional demeanor Verner
while on duty and will refrain from engaging in Davis
off-duty behavior that would reflect negatively on Cerami
the department
6
The text of the general orders, Sheriff’s orders and Board’s rules and regulations is taken from the
briefs and record.
- 16 -
Charge Text of General Order, Rule or Regulation Board
Found
Violation
by
3.8(III)(G) It shall be the responsibility of every employee to DeSena
immediately report to their divisional Super- Verner
intendent/Unit Head and the department Internal Davis
Investigations Unit verbally and in writing, any Cerami
fact or situation which may give rise to or be
construed as corrupt, illegal or unethical behavior
and/or a possible conflict of interest. This shall
include, but not be limited to, reporting anything
which could impair the employee’s performance of
their duties in a fair and impartial manner
3.17(III)(A) A member wishing to engage in any outside All
employment (including self-employment) shall
complete a secondary employment request form in
an original along with three copies and submit all
copes to the Director’s office through the chain of
command at least seven days prior to its intended
effective date
3.17(III)(B) The requesting officer’s Superintendent or Unit All
Supervisor shall review his request for secondary
employment and shall indicate his approval or
disapproval, sign and date the form. The signer
shall then forward all copies, through the chain of
command, to the Directors’ officer. If the
secondary employment involves any type of
security work, an indemnity form must be signed
by the employer and submitted with the secondary
employment form
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Charge Text of General Order, Rule or Regulation Board
Found
Violation
by
3.17(IV)(D) A request for secondary employment shall be All
denied under any of the following conditions:
When the secondary employment is in an
establishment where the primary business is the
sale of intoxicating liquor or gambling. In no
instance will a Department employee be permitted
to be an owner of, or to serve as a bartender to
dispense intoxicating liquor, or to serve as a
cocktail waiter/waitress
3.17(IV)(E) A request for secondary employment shall be All
denied under any of the following conditions:
When the secondary employment or the place
where it is performed, brings either the Department
or the member into disrespect or disfavor, or
involve the member in violations of Department
rules and regulations, order or laws
3.17(V)(A)(1) The member shall ensure that his secondary All
employment request is accurate and up-to-date at
all times
4.1(III)(A)(5) Guidelines for SERIOUS MISCONDUCT include, Verner
but are not limited to:
***
[f]ailure to observe all Federal, State and local laws
4.1(III)(A)(17) Guidelines for SERIOUS MISCONDUCT include, Verner
but are not limited to: Davis
*** Cerami
[e]ngage in any conduct unbecoming to an
employee of the Cook County Department of
Corrections which tends to reflect discredit on the
Department of Corrections or Sheriff’s Office
- 18 -
Charge Text of General Order, Rule or Regulation Board
Found
Violation
by
4.1(III)(A)(18) Guidelines for serious misconduct include, but are Verner
not limited to: Yerena
Davis
Making a false report, either oral or written
Sheriff’s Order Prior to accepting or commencing any secondary All
05-01(V)(A) employment, permission must be obtained through
the chain of command from the Department Head.
Applicants must complete a Secondary
Employment Request form and submit the
completed document to their immediate supervisor
at least fourteen (14) days prior to the effective
date of employment
05-01(V)(B) CCSO members applying for approval of All
secondary employment in any security, traffic
control or law enforcement related employment
shall, in addition to fulfilling all of the
requirements pertaining to secondary employment,
provide an Indemnity Agreement signed by the
prospective employer and accompanied by proof
of insurance or self-insurance, assuring
performance of the Indemnity Agreement by such
secondary employer. No security related secondary
employment shall be approved or permitted under
any circumstances until properly executed
Indemnity Agreement and proof of insurance is
received by the affected Department Head. An
officer of the business or government agency
authorized to enter into such an agreement must
execute the Indemnity Agreement
- 19 -
Charge Text of General Order, Rule or Regulation Board
Found
Violation
by
05-01-(VI)(F)(1) Secondary Employment is prohibited under the
following conditions unless expressly authorized
in writing by the appropriate Department Head or
designee.
When the secondary employment is in an
establishment where the primary business is the
sale of intoxicating liquor or gambling and:
The employment is security related
05-01(VI)(F)(4) Secondary Employment is prohibited under the All
following conditions unless expressly authorized
in writing by the appropriate Department Head or
designee.
When the secondary employment is in an
establishment where the primary business is the
sale of intoxicating liquor or gambling and:
The CCSO deems that the employment will bring
discredit upon the department
Sheriff’s Merit No Police Officer of the Cook County Sheriff’s Verner
Board Rules & Police Department, Correctional Officer of the
Regulations Cook County Department of Corrections or
Art. X, par. B. 1 Deputy Sheriff of the Cook County Sheriff’s Court
Services Department will:
violate any Law or Statute of any State or of the
United States of America
- 20 -
Art. X, par. B. 3 No Police Officer of the Cook County Sheriff’s All
Police Department, Correctional Officer of the
Cook County Department of Corrections or
Deputy Sheriff of the Cook County Sheriff’s Court
Services Department will:
violate any of the general orders, special orders,
directives, or rules and regulations of the Cook
County Sheriff’s Department
¶ 56 The Board suspended Roman and Herrera for 40 days, DeSena for 45 days and Cerami for
180 days, effective June 3, 2009. It ordered that Verner, Yerena and Davis be “separated” from
employment with the DOC, effective June 3, 2009.
¶ 57 Plaintiffs filed complaints for administrative review of the Board’s decisions in the circuit
court of Cook County. Roman, Herrera and DeSena filed a joint action. The court did not
consolidate the cases.
¶ 58 On November 4, 2011, the court issued orders in each of the five cases. In each decision,
the court stated that, after reviewing the evidence, it found the Board’s decision “that the
officers were engaged in secondary employment at the respective bars without obtaining
permission” was not against the manifest weight of the evidence. However, having reviewed
the testimony of Holmes, Briggs and Spagnolo, the court agreed with plaintiffs’ assertions that
the Board’s implied findings that the establishments’ primary business was the sale of
intoxicating beverages were against the manifest weight of the evidence. The court found “the
testimony insufficient to support a finding as to each establishment.” In each decision, the
court went through the testimony in some detail and concluded that, although the testimony
showed that overly intoxicated people were at the establishments, it did not show that the
establishments were functioning primarily as bars during the time periods that the officers
responded to calls at the bars. Nevertheless, the court found the suspensions and separations
from employment were not arbitrary, unreasonable or unrelated to the needs of the Sheriff’s
department.
¶ 59 Plaintiffs moved to reconsider the court’s decisions. They requested that the court remand
the cases to the Board with directions for further proceedings consistent with the court’s
determinations that the Board’s decisions finding the primary business of the establishments to
be the service of alcohol were against the manifest weight of the evidence. Plaintiffs asserted
that only the Board could determine the impact of the court’s decision on the penalties
imposed. The Sheriff responded that the evidence did support the Board’s finding that the
primary business of the establishments was the service of alcohol. It also pointed out that the
court had not addressed the Board’s finding that the primary business of the establishments
“includes” the serving of alcohol, which was supported by the evidence. On February 8, 2012,
the court issued an order in each case remanding the cases to the Board “in light of the Court’s
November 4, 2011[,] order for reconsideration of the penalty imposed.”
¶ 60 At the Board’s suggestion, the parties submitted written memoranda “in support of no or
lesser penalties and requesting an evidentiary hearing” to the Board. On May 17, 2012, the
Board issued a decision “on remand” in each of the seven cases. In each decision, it denied the
- 21 -
request to reopen the proofs. It stated that it had reviewed the record and the parties’
submissions and determined that the original penalties were appropriate. In each case, the
Board held:
“The discipline imposed by the Cook County Sheriff’s Merit Board in this cause
was appropriate regardless of whether the Respondent was found to have been working
at an establishment that was primarily serving alcohol. Ample evidence in the record
supports the additional findings of violations of the general orders and rules and
regulations set forth in the January 27, 2010[,] Merit Board decision that Respondent
was engaged in secondary employment without approval from the Sheriff’s office as
required by the general orders [and] failed to obtain an indemnification form for
secondary employment.”
¶ 61 The Board further found “ample evidence” to support its earlier “additional findings of
violations” that Roman and DeSena each “displayed his Cook County Sheriff’s badge while
engaged in secondary employment, Roman “gave a false report to [OPR] regarding his
activities” and Herrera “failed to inform the Sheriff or appear in court in relation to an
altercation that took place while engaged in secondary employment.”7
¶ 62 It also found ample evidence to support its earlier findings of violations that Verner,
Yerena and Davis each “failed to notify the Sheriff of an altercation that took place while he
was working at the premises, and “gave a false report to the [OPR] regarding his activities,”
Verner and Yerena “failed to notify the Sheriff of being named in a civil suit [arising from the
incident]” and Cerami “failed to notify the Sheriff of an altercation arising from his secondary
employment, and failed to notify the Sheriff of being named in a civil suit arising from this
employment.”
¶ 63 Plaintiffs filed motions with the circuit court seeking review of the Board’s decisions on
remand. They asserted that the Board did not conduct a bona fide reconsideration of the
penalties and, therefore, did not comply with the court’s orders. On October 4, 2012, the court
issued orders stating that it had reviewed the Board’s decisions after remand and found that the
Board’s orders satisfied the court’s February 2, 2012, remand order. The court affirmed the
Board’s decisions.
¶ 64 Plaintiffs timely appealed the court’s orders. Roman, Herrera and DeSena filed a joint
appeal, docketed by this court as appeal No. 1-12-3308. Verner’s appeal is No. 1-12-3309,
Yerena’s is No. 1-12-3310, Davis’s is No. 1-12-3311 and Cerami’s is No. 1-12-3312. Each
7
Contrary to the Board’s statement that it had earlier decided that Roman committed a violation by
displaying his badge while engaged in secondary employment, it had not made such a finding. In its
original decisions, the Board found only DeSena violated general order 3.8(III)(B)(16) (sworn staff will
not wear his/her uniform in bars, nightclubs or establishments whose primary business includes the
serving of alcoholic beverages) for wearing his badge. No such finding was made against Roman.
Similarly, the Board had not made a previous finding that Roman committed a violation by giving a
false report to OPR. The Board previously found only that Verner, Yerena and Davis had violated
general order 4.1(III)(A)(18) (making a false report, oral or written), not Roman.
Lastly, the Board had not previously found that Herrera committed a violation by failing to inform
the Sheriff of an altercation that took place while engaged in secondary employment. The Board
previously found only that DeSena, Verner, Davis and Cerami violated general order 3.8(III)(G)
(failure to report an incident).
- 22 -
appeal has been separately briefed, except that Verner, Cerami, Davis, Roman, Herrera and
DeSena filed a joint reply brief. Yerena filed his own reply brief. We consolidated the five
cases on appeal. Where necessary, we address separately any claims relating specifically to an
individual plaintiff.
¶ 65 ANALYSIS
¶ 66 In an administrative review case, we review the decision of the agency, not that of the
circuit court. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 531 (2006).
We are limited to considering the evidence submitted in the administrative hearing and may
not hear additional evidence for or against the agency’s decision. Marconi, 225 Ill. 2d at 532.
The standard of review we use to consider administrative decisions depends on the question
presented. Marconi, 225 Ill. 2d at 532; City of Belvidere v. Illinois State Labor Relations
Board, 181 Ill. 2d 191, 205 (1998). Under any standard of review, the burden of proof in an
administrative proceeding lies with the plaintiff in the proceeding, here the Sheriff. Marconi,
225 Ill. 2d at 532-33.
¶ 67 We review an agency’s purely factual determinations under the manifest weight of the
evidence standard of review. Marconi, 225 Ill. 2d at 534. Under this standard, we take the
agency’s finding of fact as prima facie true and correct and will reverse a factual finding only
if, after viewing the evidence in the light most favorable to the agency, we conclude that no
rational trier of fact could have agreed with the agency’s decision and an opposite conclusion is
clearly evident. Marconi, 225 Ill. 2d at 534; S.W. v. Department of Children & Family
Services, 276 Ill. App. 3d 672, 681 (1995); Abrahamson v. Illinois Department of Professional
Regulation, 153 Ill. 2d 76, 88 (1992). We will not reverse an agency’s finding of fact merely
because an opposite conclusion might be reasonable or we might have ruled differently.
Marconi, 225 Ill. 2d at 534. If the record contains evidence to support the agency’s decision,
we must affirm that decision. Marconi, 225 Ill. 2d at 534.
¶ 68 Although we afford considerable weight to an agency’s factual and credibility
determinations, nonetheless “ ‘[e]ven under the manifest weight standard applicable in this
instance, the deference we afford the administrative agency’s decision is not boundless.’ ”
Kouzoukas v. Retirement Board of the Policemen’s Annuity & Benefit Fund, 234 Ill. 2d 446,
465 (2009) (quoting Wade v. City of North Chicago Police Pension Board, 226 Ill. 2d 485, 507
(2007)).
“[O]ur review cannot amount to a rubber stamp of the proceedings below merely
because the Board heard witnesses, reviewed records, and made the requisite findings.
[Citations.] Even when the decision is supported by some evidence, which if
undisputed would sustain the administrative finding, it is not sufficient if upon a
consideration of all the evidence the finding is against the manifest weight.” Bowlin v.
Murphysboro Firefighters Pension Board of Trustees, 368 Ill. App. 3d 205, 211-12
(2006).
“When reviewing an administrative agency’s decision, we may put aside any findings which
are clearly against the manifest weight of the evidence.” Kouzoukas, 234 Ill. 2d at 465.
¶ 69 We review strict questions of law de novo. Branson v. Department of Revenue, 168 Ill. 2d
247, 254 (1995). Under the de novo standard, we afford little or no deference to the agency’s
ruling. Branson, 168 Ill. 2d at 254.
- 23 -
¶ 70 We review mixed questions of law and fact, questions that require the interpretation of an
ordinance, statute, rule or regulation and application of disputed facts to that interpretation,
under the clearly erroneous standard. Marconi, 225 Ill. 2d at 532; Rose v. Board of Trustees of
the Mount Prospect Police Pension Fund, 2011 IL App (1st) 102157, ¶ 69. Under this
standard, we afford some deference to the agency’s experience and expertise and must accept
the agency’s findings unless, after reviewing the record, we are left with the “ ‘definite and
firm conviction that a mistake has been committed.’ ” AFM Messenger Service, Inc. v.
Department of Employment Security, 198 Ill. 2d 380, 391-95 (2001) (quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948)). We limit our review to “determining
whether the board’s interpretation of its own rules had a reasonable basis in law.” Schlobohm v.
Rice, 157 Ill. App. 3d 90, 93-94 (1987); Cook County State’s Attorney v. Illinois State Labor
Relations Board, 292 Ill. App. 3d 1, 6 (1997). Although this standard is largely deferential, it
does not require a reviewing court to “blindly defer to the agency’s decision.” AFM
Messenger, 198 Ill. 2d at 395.
¶ 71 To determine the standard of review, we look at the questions presented. Plaintiffs present
the following three arguments: (I) the Board’s decision making procedures violated the Illinois
Administrative Procedure Act and are inadequate for our review, (II) the Board’s findings of
fact were against the manifest weight of the evidence and (III) the disciplinary suspensions and
terminations imposed on plaintiffs were arbitrary and capricious.
¶ 72 I. Board’s Decision Making Procedures
¶ 73 Plaintiffs argue that the Board’s decisions are void, or alternatively, should be remanded
with directions, because (A) the Board’s decision making procedures violated the Illinois
Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West 2008)) and (B) the Board’s
decisions are otherwise so vague as to make judicial review unreasonably difficult. There
being no disputed facts regarding these issues, we review the questions of law de novo.
¶ 74 A. Illinois Administrative Procedure Act
¶ 75 Plaintiffs argue that the Board’s decision making procedures violate the Illinois
Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West 2008)) and are, therefore, void.
Specifically, they complain that, in violation of the Illinois Administrative Procedure Act, the
Board’s decisions failed to “include findings of fact and conclusions of law, separately stated”
(5 ILCS 100/10-50(a) (West 2008)) and that “[f]indings of fact, if set forth in statutory
language, shall be accompanied by a concise and explicit statement of the underlying facts
supporting the findings” (5 ILCS 100/10-50(a) (West 2008)). However, the actual language of
the Illinois Administrative Procedure Act establishes that it does not apply to the Board’s
decision making procedures.
¶ 76 By its own terms, the Illinois Administrative Procedure Act applies to every “agency” as
defined therein. Gounaris v. City of Chicago, 321 Ill. App. 3d 487, 494 (2001); 5 ILCS 100/1-5
(West 2008). It defines “agency” in relevant part as follows:
“each officer, board, commission, and agency created by the Constitution, whether in
the executive, legislative, or judicial branch of State government, but other than the
circuit court; each officer, department, board, commission, agency, institution,
authority, university, and body politic and corporate of the State; each administrative
unit or corporate outgrowth of the State government that is created by or pursuant to
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statute, other than units of local government and their officers, school districts, and
boards of election commissioners; and each administrative unit or corporate outgrowth
of the above and as may be created by executive order of the Governor.” 5 ILCS
100/1-20 (West 2008).
¶ 77 The Board does not meet this definition of “agency.” First, it was not created by the state
constitution. Instead, it was created by section 3-7002 of the Counties Code (55 ILCS 5/3-7002
(West 2008)).
¶ 78 Second, the Board is not a “body politic and corporate of the State,” a legislatively created
“administrative unit or corporate outgrowth of the State government” created pursuant to
statute, or an “administrative unit or corporate outgrowth of the above and as may be created
by executive order of the Governor.” 5 ILCS 100/1-20 (West 2008). Instead, it is an agency of
a unit of local government, specifically of the Cook County Sheriff. The Board’s jurisdiction is
limited to issues regarding deputy sheriffs in the Cook County police department, employees
of the county department of corrections and full-time deputy sheriffs not employed as county
police or county corrections officers.8 55 ILCS 5/3-7002 to 3-7012 (West 2008). For example,
the Board is to promulgate rules and regulations governing employee conduct, establish a
classification of ranks for these employees, set standards for each rank, propose a range of
compensation to the Cook County board of commissioners, make certifications for promotions
and prescribe disciplinary measures as punishment of infractions of the rules and regulations.
55 ILCS 5/3-7002 to 3-7012 (West 2008). The Board is clearly an agency of a unit of county
government, not of the State.
¶ 79 As the Board is an agency of local government, not state government, it does not meet the
definition of “agency” under the Illinois Administrative Procedure Act. In fact, the Illinois
Administrative Procedure Act specifically excludes “units of local government and their
officers” from its purview. (Emphasis added.) 5 ILCS 100/1-20 (West 2008). Since the Board
is not an “agency” under the Illinois Administrative Procedure Act, the act’s provisions do not
apply to the Board. See Gounaris, 321 Ill. App. 3d at 494 (Illinois Administrative Procedure
Act does not apply to proceedings before the Local Liquor Control Commission of the City of
Chicago because commission is a unit of local government within the meaning of the Illinois
Administrative Procedure Act, with its jurisdiction “strictly local and *** limited to the
corporate boundaries of the City of Chicago”); Carver v. Nall, 186 Ill. 2d 554, 561-62 (1999)
(Illinois Administrative Procedure Act does not apply to Adams County sheriff’s merit
commission because commission was created by county board rather than legislature, thereby
making it an agency of county and not state), overruled on other grounds, Nudell v. Forest
Preserve District, 207 Ill. 2d 409 (2003); Guse v. Board of Trustees of the Public School
Teachers’ Pension & Retirement Fund, 203 Ill. App. 3d 111, 115 (1990) (Illinois
Administrative Procedure Act does not apply to the Board of Trustees of the Public School
Teachers’ Pension and Retirement Fund of Chicago because board was not created by
constitution and is separate and apart from state government); Bethune v. Larson, 188 Ill. App.
3d 163, 170 (1989) (Illinois Administrative Procedure Act does not apply to Montgomery
County board of health because board “is an agency of a unit of local government” and “not an
8
“Although the term ‘jurisdiction’ is not strictly applicable to an administrative body, it is used to
designate the authority of the administrative body to act.” Armstead v. Sheahan, 298 Ill. App. 3d 892,
894-95 (1998).
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‘agency’ of the State”; therefore, cannot be “an ‘agency’ ” as defined by the Illinois
Administrative Procedure Act). Given that the provisions of the Illinois Administrative
Procedure Act do not apply to the Board, the Board’s failure to comply with those provisions
cannot serve to invalidate its decisions.
¶ 80 B. Meaningful Judicial Review
¶ 81 Citing Medina Nursing Center, Inc. v. Health Facilities & Services Review Board, 2013 IL
App (4th) 120554, plaintiffs argue alternatively that remand is warranted because the Board’s
decisions are so vague as to make judicial review unreasonably difficult. In Medina, the court
remanded to the defendant agency, the Health Facilities and Services Review Board (Review
Board), finding it could not conduct a meaningful review of the agency’s decision because the
agency had stated few findings of fact and did not adequately explain its decision. Medina
Nursing Center, Inc., 2013 IL App (4th) 120554, ¶ 27. Stating that administrative agencies are
to “adequately *** articulate the bases of their action, showing a rational connection between
the facts found and the choice made,” the court “decline[d] to supply a theoretical justification
of the [Review] Board’s decision, even at the invitation of the [Review] Board’s attorneys.”
(Internal quotation marks omitted.) Id. ¶¶ 24, 26. It explained, “[w]e provide reasons for our
decisions, a salutary practice that not only helps the public to have confidence in what we do
but also guards against arbitrariness. *** Likewise, the [Review] Board should provide
reasons for its decisions.” (Emphasis in original.) Id. ¶ 27. In order that “the [Review] Board
issue a reasoned opinion so as to make possible a meaningful judicial review,” the court
remanded to the Review Board “with directions that the [Review] Board provide, in writing, a
reasoned explanation for its decision in this case, complete with ‘findings and conclusions.’ ”
Id. (quoting 735 ILCS 5/3-110 (West 2010)).
¶ 82 We agree with the Medina court that an agency should adequately articulate the bases for
its action, showing a rational connection between the facts found and the choice made, in order
that we may conduct a meaningful review of the issues. We also agree with plaintiffs that the
Board’s decisions are inadequate for our review of some of the issues. Plaintiffs assert the
decisions are “vague.” Given that the Board failed to provide any analysis or explanation
whatsoever in its initial decisions, let alone one adequately articulating the bases for their
action, “vague” is too kind a word.
¶ 83 Nevertheless, we decline to remand to the Board and further prolong this litigation. The
Board did provide some small amount of analysis in its decisions on remand. Therefore, we
will lay any inadequacy of the Board’s decisions squarely where it belongs by holding those
inadequacies against the Board. We recognize that, as noted above, when applying the
manifest weight of the evidence standard of review, we must view the evidence in the light
most favorable to the agency. Nevertheless, if, due to the inadequacy of the Board’s decisions
that evidence is unclear, we will hold it against the Board.
¶ 84 As a result, we will not consider any of Holmes’s testimony regarding plaintiffs’ secondary
employment. In each original decision, the Board listed Holmes’s testimony relevant to the
particular officer under review but then stated, without explanation, “[i]n general, Holmes was
not credible.” Presumably, given this credibility determination, the Board disregarded some or
most of Holmes’s testimony. Credibility determinations are for the Board to determine and we
will defer to the Board’s determinations. Kouzoukas, 234 Ill. 2d at 465. However, that
deference is not boundless. Id. Here, the Board did not elucidate what it did or did not believe
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of Holmes’s testimony. Therefore, although we are prepared to defer to the Board’s credibility
findings, we do not know what those findings are regarding Holmes’s testimony. Due to the
inadequacy of the Board’s decisions, we cannot know how much of Holmes’s testimony the
Board considered in making its decisions and will, therefore, disregard all of his testimony
except as it relates to Holmes himself and the discipline imposed on him as a result of his
“security” business.
¶ 85 We will address any other inadequacies in the Board’s decisions as they arise below.
¶ 86 II. Board’s Finding of Fact
¶ 87 Plaintiffs next argue that the Board’s findings of fact were against the manifest weight of
the evidence. Plaintiffs each raise numerous issues, often overlapping in content. We have
consolidated the issues into four main categories: (A) the admissibility of the OPR statements,
(B) the Board’s findings regarding the nature of the establishments in which plaintiffs
allegedly worked, (C) Holmes’s alleged verbal approval of plaintiffs’ secondary employment
and (D) the violations found against each officer, within which section we will address the
charges against each officer separately.
¶ 88 A. Admissibility of OPR Statements
¶ 89 Plaintiffs argue that their statements to the Office of Professional Review investigators
(OPR statements) were taken in violation of the Uniform Peace Officers’ Disciplinary Act (50
ILCS 725/1 et seq. (West 2008)) (the Act) and, therefore, should not be permitted into
evidence. Any admissions or confessions obtained from an officer during the course of an
interrogation not conducted in accordance with the Act cannot be used in any subsequent
disciplinary proceeding against the officer. 50 ILCS 725/3.10 (West 2008). Therefore, if the
Act applies to plaintiffs and the OPR investigators did not comply with the Act in taking
plaintiffs’ statement, the statements cannot come into evidence before the Board. We find that
the Act does apply to plaintiffs but that the investigators complied with the provisions of the
Act.
¶ 90 Section 2 of the Act defines “officer” as follows:
“For the purposes of this Act, unless clearly required otherwise, the terms defined in
this Section have the meaning ascribed herein:
(a) ‘Officer’ means any peace officer, as defined by Section 2-13 of the
Criminal Code of 1961, as now or hereafter amended, who is employed by any unit
of local government or a State college or university, including supervisory and
command personnel, and any pay-grade investigator for the Secretary of State as
defined in Section 14-110 of the Illinois Pension Code, including Secretary of State
sergeants, lieutenants, commanders, and investigator trainees. The term does not
include crossing guards, parking enforcement personnel, traffic wardens or
employees of any State’s Attorney’s office.” (Emphasis added.) 50 ILCS 725/2
(West 2008).
In relevant part, section 2-13 of the Criminal Code of 1961 (720 ILCS 5/2-13 (West 2008))
(the Code) defines “peace officer” as follows:
“ ‘Peace officer’ means (i) any person who by virtue of his office or public employment
is vested by law with a duty to maintain public order or to make arrests for offenses,
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whether that duty extends to all offenses or is limited to specific offenses, or (ii) any
person who, by statute, is granted and authorized to exercise powers similar to those
conferred upon any peace officer employed by a law enforcement agency of this State.”
720 ILCS 5/2-13 (West 2008).
¶ 91 Citing Kelley v. Sheriff’s Merit Comm’n, 372 Ill. App. 3d 931, 932 (2007), the Sheriff
argues that the Act does not apply to correctional officers because they are not peace officers.
In Kelley, the plaintiff, a Kane County corrections officer, was suspended without pay for 120
days for insubordination because she refused to comply with a superior officer’s order that she
submit to a polygraph examination. She had argued to the Sheriff’s Merit Commission of Kane
County that she was entitled to the protection of section 3.11 of the Act, which prohibits use of
a polygraph test without the officer’s written consent. Noting that the provision applied only to
“peace officers” within the meaning of section 2-13 of the Criminal Code of 1961, the court
stated, without further comment or analysis, that the “[p]laintiff’s duties as a corrections
officer do not accord her the status of a peace officer.” Kelley, 372 Ill. App. 3d at 932. We do
not find Kelley dispositive. First, Kelley is addressed to the status of Kane County sheriff’s
correctional officers, not Cook County correctional officers. Second, Kelley provides no
explanation whatsoever for its determination that the plaintiff correctional officer was not a
peace officer. Accordingly, we accord Kelley no weight.
¶ 92 In order to show that they are peace officers covered by the Act, plaintiffs request that we
take judicial notice of section 15.1 of the collective bargaining agreement between the Sheriff
of Cook County and Teamsters Local 700, which provides in part:
“The Employer shall not take any disciplinary action against an employee without
cause. Employees who are to be or may be disciplined are entitled to Representation
and rights consistent with the Illinois Uniform Peace Officers’ Disciplinary Act
‘Illinois Police Officer’s Bill of Rights’, as amended from time to time in the Illinois
Compiled Statutes.”
Pursuant to the agreement, the Sheriff agreed to be bound by the provisions of the Act. The
Board is an agency of the Sheriff and also bound by the provisions of the Act. The Act,
therefore, applies to protect plaintiffs in proceedings before the Board.
¶ 93 Further, the Sheriff’s general orders show that, just like police officers, Cook County
correctional officers have arrest powers (general order 3.24(III)(A)(F)), have a duty to protect
the public from unlawful activity (general order 3.8(III)(B)(4)), and are considered “peace
officers” by the Sheriff (general order 9.16, which sets forth the Sheriff’s policy, guidelines
and procedure for use of force by a “Peace Officer,” and general order 3.14(II)(A), which
defines “deputized” as “[a]ll sworn members that hold a Peace Officer status within the
department and are authorized to carry a weapon having completed the Firearms Training
Course”)). Accordingly, correctional officers are peace officers as defined in the Act and the
Act, therefore, affords plaintiffs the protections of the Act.
¶ 94 Given that the Act applies, the question then becomes whether, as plaintiffs argue, OPR
investigators failed to comply with the requirements of the Act when they obtained plaintiffs’
statements. “Admissions or confessions obtained during the course of any interrogation not
conducted in accordance with this Act may not be utilized in any subsequent disciplinary
proceeding against the officer.” 50 ILCS 725/3.10 (West 2008). Therefore, if the OPR
investigators did not comply with the Act, the statements they obtained from plaintiffs should
not have come into evidence before the Board.
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¶ 95 The Act provides that, “[w]henever an officer is subjected to an interrogation within the
meaning of this Act, the interrogation shall be conducted pursuant to Sections 3.1 through 3.11
of this Act.” 50 ILCS 725/3 (West 2008). It defines “interrogation” as follows:
“ ‘Interrogation’ means the questioning of an officer pursuant to the formal
investigation procedures of the respective State agency or local governmental unit in
connection with an alleged violation of such agency’s or unit’s rules which may be the
basis for filing charges seeking his or her suspension, removal, or discharge. The term
does not include questioning (1) as part of an informal inquiry or (2) relating to minor
infractions of agency rules which may be noted on the officer’s record but which may
not in themselves result in removal, discharge or suspension in excess of 3 days.” 50
ILCS 725/2(d) (West 2008).
There is no dispute that Shilling’s interviews with plaintiffs were such interrogations.
¶ 96 Plaintiffs argue that the interrogations violate section 3.2 of the Act, which provides:
“No officer shall be subjected to interrogation without first being informed in writing
of the nature of the investigation. If an administrative proceeding is instituted, the
officer shall be informed beforehand of the names of all complainants. The information
shall be sufficient as to reasonably apprise the officer of the nature of the
investigation.” 50 ILCS 725/3.2 (West 2008).
They also assert the interrogations violated section 3.8(b), which provides:
“Anyone filing a complaint against a sworn peace officer must have the complaint
supported by a sworn affidavit.” 50 ILCS 725/3.8(b) (West 2008).
¶ 97 Plaintiffs assert that, although OPR received a “complaint register” signed by Berwyn
police department Chief Kushner against two correctional officers (as shown by Investigator
Shilling’s testimony), administrative charges were filed against nine officers, including the
seven plaintiffs here. They assert there is, therefore, no evidence that complaints were filed
against plaintiffs, that plaintiffs were told the names of any complainants against them (as
required by section 3.2), that any complaint filed was supported by sworn affidavit (as required
by section 3.8(b)) or even that Chief Kushner filed two affidavits.
¶ 98 Sections 3.2 and 3.8 do not apply to the complaints at issue here. Although Chief
Kushner’s “complaint register” brought possible misconduct by correctional officers to the
Sheriff’s attention, the charges brought herein resulted from the Sheriff’s internal
investigation. As a result of that investigation, the Sheriff then filed the complaints against
plaintiffs. The Sheriff, not Kushner or any other third party, filed the complaints. Therefore, we
find that sections 3.2 and 3.8 do not apply to the complaints at issue here.
¶ 99 Plaintiffs also argue that, in violation of section 3.2 of the Act, OPR’s notices of the
allegations could not reasonably apprise anyone of the subject matter of the investigation,
because plaintiffs’ signed statements merely state: “THIS STATEMENT IS RELATIVE TO:
Conduct Unbecoming a Correctional Officer[,] Unauthorized Secondary Employment[,]
Failure to notify the Proper Authority” and list the dates of occurrence as “2007-2008.” They
assert this notice includes nothing regarding the wearing of badges while at the disputed
establishments, being in altercations, working as auxiliary police officers and working security
in places primarily serving alcohol. They argue the written allegation on the statements is too
vague to have any meaning whatsoever, let alone sufficient to “reasonably apprise the officer
of the nature of the investigation” as required by section 3.2 of the Act.
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¶ 100 We find plaintiffs were sufficiently informed of the charges against them to comply with
section 3.2. The notification at the top of each of the OPR statements notified plaintiffs that the
investigations concerned alleged conduct unbecoming a correctional officer, unauthorized
secondary employment and failure to notify the proper authority. The statements reasonably
apprised plaintiffs of the major charges against them and, therefore, of the nature of the
investigations. A guilty finding on any of these charges, standing alone, would provide a
sufficient basis for suspension of their employment. Further, in plaintiffs’ respective signed
statements, each acknowledged receiving a “notification of allegations form.” Asked during
oral argument before this court regarding these forms, plaintiffs were unable to explain how
the “notification of allegations” forms were deficient in notifying plaintiffs of the nature of the
investigations. Accordingly, we find that the information plaintiffs received was sufficient to
reasonably apprise them of the nature of the investigation in compliance with section 3.2 of the
Act.
¶ 101 The interrogations did not violate the requirements of the Act and the OPR statements
were, therefore, properly before the Board.
¶ 102 B. Nature of the Establishments
¶ 103 Plaintiffs argue that no evidence established the nature of the establishments at which
plaintiffs were accused of working, specifically that no evidence supports the Board’s implied
findings that the “primary business” of the establishments “is the sale of intoxicating liquor”
(used in general order 3.17(IV)(D) and Sheriff’s orders 05-01(VI)(F)(1) and 05-01(VI)(F)(4))
or “includes the serving of alcoholic beverages” (used in general orders 3.8(III)(B)(16) and
3.8(III)(B)(17)).9 We would review these questions of fact under the manifest weight of the
evidence standard.
¶ 104 However, the trial court agreed with plaintiffs that the Board’s implied findings that the
primary business of the establishments is the sale of intoxicating liquor were against the
manifest weight of the evidence, noting that it found “the testimony insufficient to support a
finding as to each establishment.” It vacated those findings and remanded to the Board for
reconsideration of the suspensions and terminations in light of the court’s decision. Ultimately,
after remand, the trial court entered a final order affirming the Board’s decisions on remand,
which retained the original suspensions and terminations.
¶ 105 At that point, the court’s decisions regarding the Board’s findings became final and
appealable. However, the Sheriff did not appeal the court’s holdings that the Board’s findings
that the primary business of the establishments is the sale of intoxicating liquor were against
the manifest weight of the evidence. Accordingly, we have no jurisdiction to consider a
challenge to these findings and they stand.10
9
The Board made no specific findings regarding the nature of the establishments. However, given
that the Board found plaintiffs committed violations of the orders prohibiting secondary employment in
establishments that either primarily sell intoxicating beverages or include the serving of alcoholic
beverages in their primary business, the Board necessarily must have found that the establishments
meet those qualifications.
10
The court’s determination that the Board’s findings regarding the primary business of the
establishments being the sale of intoxicating liquor were against the manifest weight necessarily
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¶ 106 The trial court, however, did not address whether the Board’s implied findings that the
primary business of the establishments “includes the serving of alcoholic beverages” (as used
in general orders 3.8(III)(B)(16) and (B)(17)) were against the manifest weight of the
evidence. Addressing this question, we find that the evidence supports such findings. Copies of
the business licenses for the various establishments show that the establishments are
restaurants licensed to serve liquor and the testimony of Holmes and Officers Spagnolo and
Briggs supports finding that the primary business of the establishments actually did include the
serving of alcoholic beverages. The Board’s findings that the establishments’ primary business
includes the serving of alcoholic beverages were not against the manifest weight of the
evidence. We will address the relevance of this determination below, as pertinent to each
individual officer.
¶ 107 C. Failure to File Secondary Employment Request and Indemnity Forms
¶ 108 The Board found plaintiffs violated assorted DOC general orders and Sheriff’s orders
requiring an employee wishing to work secondary employment to (a) submit a secondary
employment request in order to obtain approval for the secondary employment and (b) if
working security, submit an indemnity form with the secondary employment request. Plaintiffs
argue that, assuming arguendo that they were working security as secondary employment,
their employment was approved by the Sheriff through the actions of then-superintendent
Michael Holmes and they were, therefore, excused from submitting secondary employment
request and indemnity forms. Even assuming arguendo that Holmes had given plaintiffs verbal
permission to work secondary employment, they were not excused from complying with the
requirements of the DOC general orders and Sheriff’s orders.
¶ 109 The general orders and Sheriff’s orders set forth very specific requirements for obtaining
approval for secondary employment. Pursuant to general order 3.17(III)(A), an officer wishing
to engage in secondary employment must complete a secondary employment request form and
submit the original plus three copies “to the Director’s office through the chain of command.”
Under general order 3.17(III)(B), a superintendent or supervisor must approve and sign the
secondary employment request and then forward it to the director’s office. It also requires that,
if the secondary employment “involves any type of security work,” the officer must submit an
indemnity form signed by the secondary employer along with the secondary employment
request form. Lastly, general order 3.17(V)(A)(1) requires that the officer must ensure his or
her secondary employment request is accurate and up-to-date at all times. Sheriff’s orders
encompassed finding that the Board’s findings that plaintiffs violated the following orders and rules
were against the manifest weight of the evidence:
–DOC general order 3.17(IV)(D) (secondary employment prohibited in an establishment
where the primary business is the sale of intoxicating liquor or gambling);
–Sheriff’s order 05-01(VI)(F)(1) (unless expressly authorized in writing by department
head or designee, secondary employment prohibited in an establishment where the primary
business is the sale of intoxicating liquor or gambling and employment is security related); and
–Sheriff’s order 05-01(VI)(F)(4) (unless expressly authorized in writing by department
head or designee, secondary employment prohibited in an establishment where the primary
business is the sale of intoxicating liquor or gambling and Sheriff’s office deems the
employment will bring discredit upon the department).
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05-01(V)(A) and 05-01(V)(B) provide similarly, requiring that permission to work secondary
employment be obtained “through the chain of command from the Department Head” through
submission of a secondary employment request form to the officer’s immediate supervisor and
an indemnity agreement signed by the prospective employer and accompanied by proof of
insurance or self-insurance must be provided if the request is for security related secondary
employment.
¶ 110 The DOC general orders and Sheriff’s orders plainly state that approval for secondary
employment can only be obtained upon submission of a written secondary employment
request and written approval by the officer’s supervisor or department head, as appropriate.
Further, if the secondary employment involves security work, such approval cannot be
obtained unless an indemnity form signed by the secondary employer accompanies the
secondary request. It is clear that plaintiffs did not obtain written approval from Holmes or
anyone else for their secondary employment. Even if Holmes was plaintiffs’ supervisor or
department head and had verbally approved their secondary employment, such verbal approval
would not meet the requirements of the DOC general orders and Sheriff’s orders. Nothing in
the DOC general orders and Sheriff’s orders excuses an officer from complying with these
requirements. Therefore, if the evidence supports the Board’s findings that plaintiffs were
working security as secondary employment, their failure to obtain written approval for that
employment by filing secondary employment request and indemnity forms was in violation of
the DOC general orders and Sheriff’s orders.
¶ 111 D. Individual Violations
¶ 112 We next consider whether the specific evidence against each officer supported the Board’s
ultimate conclusions regarding plaintiffs’ violations of the DOC general orders, Sheriff’s
orders and Board rules and regulations. Taking into account our earlier determinations, we will
disregard any of Holmes’s testimony directed to plaintiffs’ secondary employment but will
consider plaintiffs’ OPR statements, which were admitted through Investigator Shilling’s
testimony and properly before the Board. We now turn to the remaining violations found
against each officer.
¶ 113 1. Roman
¶ 114 Roman admitted in his OPR statement that he worked security at La Quinta and had not
submitted a secondary employment request. Given that Roman admitted working security and
failing to submit a secondary employment request, he necessarily also did not submit the
indemnity form that is to be submitted with the secondary request form when the secondary
employment concerns security work. Roman’s admissions support the Board’s implied
findings that Roman worked security as secondary employment without having submitted the
requisite secondary employment request form and had no permission from his supervisors for
the employment. These findings are not against the manifest weight of the evidence.
Accordingly, we affirm the Board’s findings that Roman violated the following general orders,
order and regulations:
–DOC general order 3.8(III)(A)(4) (failure to comply with lawful departmental
rules, written procedures, directives),
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–DOC general order 3.17(III)(A) (member wishing to engage in outside
employment shall complete secondary employment request form and submit original
plus three copies “to the Director’s office through the chain of command”),
–DOC general order 3.17(III)(B) (superintendent or supervisor must approve and
sign secondary employment request and forward to director’s office; if secondary
employment “involves any type of security work,” officer must submit indemnity form
signed by secondary employer with secondary employment request form),
–DOC general order 3.17(V)(A)(1) (officer must ensure secondary employment
request is accurate and up-to-date at all times),
–Sheriff’s order 05-01(V)(A) (permission to work secondary employment must be
obtained “through the chain of command from the Department Head,” through
submission of secondary employment request form to immediate supervisor),
–Sheriff’s order 05-01(V)(B) (request for approval of secondary employment in
security, traffic control or law enforcement related employment must also provide
indemnity agreement signed by prospective employer and accompanied by proof of
insurance or self-insurance), and
–Sheriff’s Merit Board Rules and Regulations article X, paragraph B. 3
(correctional officer will not “violate any of the general orders, special orders,
directives, or rules and regulations of the Cook County Sheriff’s Department”).
¶ 115 Further, given our previous determination that the evidence supports the Board’s implied
finding that the primary business of the establishments “includes the serving of alcoholic
beverages,” we also affirm the Board’s findings that Roman violated general order
3.8(III)(B)(17) (secondary employment prohibited in business entities whose primary business
includes the serving of alcoholic beverages) and general order 3.17(IV)(E) (secondary
employment prohibited when “the secondary employment or the place where it is performed,
brings either the Department or the member into disrespect or disfavor, or involve the member
in violations of Department rules and regulations, order or laws”).
¶ 116 2. Herrera
¶ 117 Herrera’s admissions in his OPR Statement that he worked security at Tapas checking IDs
and did not submit a secondary employment request in 2007 support the Board’s implied
findings that Herrera worked security at Tapas as secondary employment in an establishment
whose primary business includes the serving of alcoholic beverages, without having submitted
the requisite secondary employment request form and indemnity form in order to secure
permission from his department head. These findings are not against the manifest weight of the
evidence. Accordingly, as with Roman, we affirm the Board’s findings that Herrera violated
DOC general orders 3.8(III)(A)(4), 3.8(III)(B)(17), 3.17(III)(A), 3.17(III)(B), 3.17(IV)(E),
and 3.17(V)(A)(1); Sheriff’s orders 05-01(V)(A) and 05-01(V)(B); and Sheriff’s Merit Board
Rules and Regulations article X, paragraph B. 3.
¶ 118 3. DeSena
¶ 119 DeSena’s admissions in his OPR statement that he worked security at Tapas, San Marcos
and other bars in Berwyn/Cicero and that he did not submit a secondary employment request in
2007 or 2008 support the Board’s implied findings that he worked security as secondary
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employment in establishments whose primary business includes the serving of alcoholic
beverages, without having submitted the requisite secondary employment request form and
indemnity form in order to secure permission from his department head. These findings are not
against the manifest weight of the evidence. Accordingly, we affirm the Board’s findings that
DeSena violated DOC general orders 3.8(III)(A)(4), 3.8(III)(B)(17), 3.17(III)(A), 3.17(III)(B),
3.17(IV)(E), and 3.17(V)(A)(1); Sheriff’s orders 05-01(V)(A) and 05-01(V)(B); and Sheriff’s
Merit Board Rules and Regulations article X, paragraph B. 3.
¶ 120 In his OPR statement, DeSena also admitted that he wore his badge while working security
at the establishments. Given our earlier conclusion that the evidence supports the Board’s
finding that the establishments’ primary business includes the serving of alcoholic beverages,
we affirm the Board’s finding that DeSena violated general order 3.8(III)(B)(16) (sworn staff
will not wear his/her uniform in bars, nightclubs or establishments whose primary business
includes the serving of alcoholic beverages).
¶ 121 The Board’s finding that DeSena violated DOC general order 3.8(III)(G) (employee must
immediately report to his divisional superintendent/unit head and the department Internal
Investigations Unit “verbally and in writing, any fact or situation which may give rise to or be
construed as corrupt, illegal or unethical behavior and/or a possible conflict of interest,”
including, “but not be limited to, reporting anything which could impair the employee’s
performance of their duties in a fair and impartial manner”) is against the manifest weight of
the evidence. DeSena admitted that he was at San Marcos on April 13, 2008, when Cicero
police arrived but stated he was not involved in the incident. The parties do not mention the
incident in the briefs and the Board does not mention it in its findings of fact. In fact, the
Board’s decision states no findings of fact that could arguably sustain finding this violation and
our review of the evidence does not disclose any. Therefore, because we do not know what the
incident was or whether it is relevant, we will assume the Board had no basis on which to find
DeSena violated general order 3.8(III)(G) and vacate that finding.
¶ 122 4. Verner
¶ 123 In his OPR statements, Verner denied working security at the bars and restaurants in
Berwyn and Cicero. He stated he had not filed a secondary request because he did not work
security. Verner told Investigator Shilling that, although he might have been at Guadalajara’s
on July 25, 2008, and was there on August 25, 2008, with his wife, he was not working security
there. Investigator Schroeder testified that he saw Verner at Guadalajara’s on July 25, 2008,
checking patron’s identifications. But he also testified that he did not speak to Verner and that
Verner was not wearing a shirt or other indicia to show that he was working as police or
security. Standing alone, Schroeder’s testimony is insufficient to show that Verner was
working security as a secondary employment at Guadalajara’s. Schroeder could have asked
Verner what he was doing or asked the restaurant owner or manager whether Verner was
working. He did neither and his testimony is, therefore, insufficient to show that Verner was
working security as secondary employment.
¶ 124 However, Officers Spagnolo’s and Briggs’s testimony, taken together with Schroeder’s
testimony, is sufficient to support such a finding. Spagnolo and Briggs testified that Verner
was at Guadalajara’s on August 25, 2007, wearing a shirt with “police” on it and that Briggs
was told, he thought by Verner, that the men were working security. While Spagnolo only
testified that an individual identified himself as Verner and gave a badge number, Briggs
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actually identified Verner at the hearing. Taken together, this testimony supports the Board’s
implied findings that Verner worked security at Guadalajara’s as secondary employment in an
establishment whose primary business includes the serving of alcoholic beverages, without
having submitted the requisite secondary employment request form and indemnity form in
order to secure permission from his department head. These findings are not against the
manifest weight of the evidence. Accordingly, we affirm the Board’s findings that he violated
DOC general orders 3.8(III)(A)(4), 3.8(III)(B)(17), 3.17(III)(A), 3.17(III)(B), 3.17(IV)(E),
and 3.17(V)(A)(1); Sheriff’s orders 05-01(V)(A) and 05-01(V)(B); and Sheriff’s Merit Board
Rules and Regulations article X, paragraph B. 3.
¶ 125 In his OPR statement, Verner told Investigator Shilling that he did not work security at
Guadalajara’s. Given that the evidence supports a finding that Verner did work security at
Guadalajara’s as secondary employment, his statement to Shilling was false. Accordingly, the
evidence supports the Board’s finding that Verner violated general order 4.1(III)(A)(18)
(“Guidelines for SERIOUS MISCONDUCT include, but are not limited to: Making a false
report, either oral or written”). Therefore, we affirm this finding.
¶ 126 The Board also found Verner violated the following general orders and regulation:
–DOC general order 3.8(III)(A)(1) (employees will obey all federal, state, county
and municipal laws),
–DOC general order 3.8(III)(A)(5) (employees will respect and protect the civil and
legal rights of all individuals),
–DOC general order 3.8(III)(D)(6) (employees will maintain professional
demeanor while on duty and will refrain from engaging in off-duty behavior that would
reflect negatively on the department),
–DOC general order 4.1(III)(A)(5) (guidelines for serious misconduct include, but
are not limited to: failure to observe all federal, state and local laws),
–DOC general order 4.1(III)(A)(17) (guidelines for serious misconduct include, but
are not limited to: engage in any conduct unbecoming to an employee of the DOC
which tends to reflect discredit on the DOC or Sheriff’s office), and
–Sheriff’s Merit Board Rules and Regulations, article X, paragraph B. 1 (Cook
County corrections officers are prohibited from violating “any Law or Statute of any
State or of the United States of America”).
The only evidence in any way relevant to these charges is Pineda’s federal complaint, in which
he accused Verner of violating his civil rights and battery. However, there is no evidence to
show that the charges were proven, that Verner actually violated the law by committing battery
against Pineda or by violating Pineda’s civil rights. Therefore, there is no evidence to support
the Board’s findings that Verner violated DOC general orders 3.8(III)(A)(1), 3.8(III)(A)(5),
3.8(III)(D)(6), 4.1(III)(A)(5) and 4.1(III)(A)(17) and article X, paragraph B. 1 of the Board’s
rules and regulations. We vacate these findings as against the manifest weight of the evidence.
¶ 127 We affirm the Board’s finding that Verner violated DOC general order 3.8(III)(G), which
requires employees to report, “verbally and in writing, any fact or situation which may give
rise to or be construed as corrupt, illegal or unethical behavior and/or a possible conflict of
interest. This shall include, but not be limited to, reporting anything which could impair the
employee’s performance of theft [sic] duties in a fair and impartial manner.” The evidence
shows that, on August 25, 2007, Guadalajara patron Pineda called police and reported that
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Verner had committed theft and battery against him and that he wanted to file a complaint.
Investigator Shilling searched the Sheriff’s records to determine if Verner had made any report
regarding Pineda’s subsequent lawsuit related to the incident and found no such report,
arguably because Verner had not been served with the lawsuit until after Shilling’s interview.11
¶ 128 However, Verner was not only under an obligation to “immediately” report the lawsuit but
also to “immediately” report the underlying incident. Regardless of his awareness of the filing
of the lawsuit, Verner was aware that police were called to Guadalajara’s on August 25, 2007,
and that a citizen complained about his conduct. The incident was clearly a “situation which
may give rise to or be construed as corrupt, illegal or unethical behavior” and Verner,
therefore, should have “immediately” reported it to his supervisor and the Sheriff’s internal
investigations unit. Giving “immediately” its commonly understood meaning, it means that
Verner should have reported the incident right away. Shilling interviewed Verner on
September 19, 2008, and November 6, 2008, more than a year after the incident. Verner’s
failure to report the incident within a year’s time was clearly a violation of the requirement that
he report it immediately. The Board’s finding that Verner violated general order 3.8(III)(G) is,
therefore, not against the manifest weight of the evidence and we affirm the finding.
¶ 129 5. Yerena
¶ 130 The evidence is insufficient to support the Board’s findings that Yerena violated any of the
general orders, sheriff’s orders or Board’s rules and regulations. Given that we will not
consider Holmes’s testimony regarding any of the officers, the only evidence that might
arguably support a finding that Yerena was working secondary employment is Investigator
Schroeder’s testimony that he saw Verner and Yerena checking patron’s identifications for a
half hour on July 25, 2008, at Guadalajara’s. As noted above with regard to Verner,
Schroeder’s testimony standing alone does not support a finding that the men were working
security as secondary employment. Schroeder did not verify with Yerena or anyone else that
Yerena was, in fact, working, when he was checking the identifications and the photograph
showing Yerena outside Guadalajara’s does little to support a finding that he was working
security there that night.
¶ 131 In his OPR statement, Yerena denied working security at Guadalajara’s “or any other bars
in Berwyn or Cicero” and denied working at Guadalajara’s on July 25, 2008. At oral argument,
his counsel posited the innocent explanation that he could have been volunteering for a private
party on this one occasion. We will not cast about for all possible innocent explanations for
Yerena’s presence at Guadalajara’s on that one night. The reason for his presence could easily
have been determined by Investigator Shilling. In the face of Schroeder’s observations and
Yerena’s statement to Shilling that he was not working at Guadalajara’s on July 25, 2008,
Shilling should have asked Yerena what he was doing there that night or why he was checking
identifications. Inexplicably, he did not do so. Accordingly, there is no support for the Board’s
finding that Yerena committed the violations. The finding is against the manifest weight of the
evidence and we, therefore, vacate all violations found against Yerena.
11
Shilling testified that he did not know whether Verner had been served with the lawsuit at the time
of the interview. He had not. Shilling interviewed Verner on September 19, 2008, and November 6,
2008. Verner was served thereafter, on November 25, 2008.
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¶ 132 6. Davis
¶ 133 Officer Perez’s testimony and the “Victim’s Refusal to Sign Complaint” are sufficient to
support the Board’s implied findings that Davis worked security at San Marcos. Perez testified
that he responded to a battery call at “San Marcos tavern” at 1:30 a.m. on April 19, 2008, and
identified Davis in the hearing as the victim of the battery. He stated that Davis had signed a
“Victim’s Refusal to Sign Complaint” form. In the form, prepared by Perez and signed by
Davis, it identified Davis as the complaining witness and/or victim and reported that he “[did]
not wish to prosecute *** for the offense of criminal trespass and battery and will not sign a
complaint.” The form further stated Davis requested that no action be taken because he “[did]
not wish to press charges in [sic] behalf of San Marcos [sic] wish for individual to band [sic]
off the property.” Perez testified that he had not asked the bar owner whether Davis was
working security but Davis had told him that he was a Cook County correctional officer and
“was outside the lounge working off-duty detail” when he tried to stop someone from
“sneaking in.” We cannot interpret Davis’s statement to Perez that he was working “off-duty”
in any way other than that Davis was working a second job. Moreover, in his refusal to sign
form, Davis specifically stated that he did not wish to press charges on “behalf of San Marco,”
in other words, that he represented San Marcos.
¶ 134 In Davis’s OPR statement, he denied working security at any bars in Berwyn/Cicero,
including San Marcos but acknowledged he did not submit a secondary employment request in
2007 or 2008. He stated he did not remember an April 18-19, 2008, incident at San Marcos
when Cicero police responded but acknowledged his signature on the Cicero police report
noting his refusal to prosecute, although he again stated that he did not remember the incident.
Taken together, Perez’s testimony, the “refusal to sign complaint” form and Davis’s OPR
statement are sufficient to support the Board’s implied findings that Davis worked security at
San Marcos as secondary employment in an establishment whose primary business includes
the serving of alcoholic beverages, without having submitted the requisite secondary
employment request form and indemnity form in order to secure permission from his
department head. These findings are not against the manifest weight of the evidence.
Accordingly, we affirm the Board’s findings that he violated DOC general orders
3.8(III)(A)(4), 3.8(III)(B)(17), 3.17(III)(A), 3.17(III)(B), 3.17(IV)(E) and 3.17(V)(A)(1);
Sheriff’s orders 05-01(V)(A) and 05-01(V)(B); and Sheriff’s Merit Board Rules and
Regulations article X, paragraph B. 3.
¶ 135 Given that the evidence supports finding Davis worked security at San Marcos as
secondary employment, his statement to Investigator Shilling that he did not work there was
false. Accordingly, the evidence supports the Board’s finding that Davis violated general order
4.1(III)(A)(18) by making the false statement and we affirm this finding.
¶ 136 The Board also found that Davis violated the following general orders:
–DOC general order 3.8(III)(D)(6) (employees will maintain professional
demeanor while on duty and will refrain from engaging in off-duty behavior that would
reflect negatively on the department),
–DOC general order 3.8(III)(G) (every employee must “immediately report to
[their] divisional Superintendent/Unit Head and the department Internal Investigations
Unit verbally and in writing, any fact or situation which may give rise to or be
construed as corrupt, illegal or unethical behavior and/or a possible conflict of interest.
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This shall include, but not be limited to, reporting anything which could impair the
employee’s performance of [their] duties in a fair and impartial manner”), and
–DOC general order 4.1(III)(A)(17) (guidelines for serious misconduct include, but
are not limited to: engage in any conduct unbecoming to an employee of the DOC
which tends to reflect discredit on the DOC or Sheriff’s office).
Given the lack of analysis in the Board’s decision, we presume that it based these findings on
the evidence that Davis was the victim of a battery while working at San Marcos. It is the only
evidence at all relevant to these violations. Without more, there is nothing to explain how being
a battery victim reflects negatively or discredits the DOC or Sheriff’s Office. Nothing explains
how being a victim may give rise to or be construed as corrupt, illegal or unethical behavior
and/or a possible conflict of interest or how the incident could impair Davis’s performance of
his duties in a fair and impartial manner. Accordingly, we find no support for the Board’s
findings that Davis violated DOC general order 3.8(III)(G) by failing to report the incident,
engaged in conduct unbecoming in violation of general order 4.1(III)(A)(17) and engaged in
off-duty behavior reflecting negatively on the DOC in violation of general order 3.8(III)(D)(6).
These findings are against the manifest weight of the evidence. We, therefore, vacate the
Board’s findings that Davis violated DOC general orders 3.8(III)(G), 4.1(III)(A)(17) and
3.8(III)(D)(6).
¶ 137 7. Cerami
¶ 138 In his OPR statement, Cerami admitted working security at Guadalajara’s three to six times
in a year and that he did not file a secondary employment request in 2007 or 2008. Cerami’s
admissions are sufficient to support the Board’s implied findings that Cerami worked security
at Guadalajara’s as secondary employment in an establishment whose primary business
includes the serving of alcoholic beverages, without having submitted the requisite secondary
employment request form and indemnity form in order to secure permission from his
department head. As with Verner above, Officers Spagnolo’s and Briggs’s testimony that
Cerami was at Guadalajara’s on August 25, 2007, wearing a shirt with “police,” that he
identified himself to the officers and gave them a badge number and that Briggs was told the
men were working security also support these findings. Accordingly, the Board’s findings that
Cerami violated DOC general orders 3.8(III)(A)(4), 3.8(III)(B)(17), 3.17(III)(A), 3.17(III)(B),
3.17(IV)(E) and 3.17(V)(A)(1); Sheriff’s orders 05-01(V)(A) and 05-01(V)(B); and Sheriff’s
Merit Board Rules and Regulations article X, paragraph B. 3 are not against the manifest
weight of the evidence and we affirm.
¶ 139 Pineda’s federal complaint accused Cerami of violation of his civil rights and battery.
However, as noted previously in regard to the Board’s findings against Verner, no evidence
shows that the charges in the complaint were proven and there is, therefore, no evidence to
support the Board’s finding that Cerami violated DOC general order 4.1(III)(A)(17). We
vacate this finding as against the manifest weight of the evidence.
¶ 140 Given the lack of evidence that Cerami engaged in the charged behavior, we also vacate the
Board’s finding that Cerami violated DOC general order 3.8(III)(D)(6) (employees will refrain
from engaging in off-duty behavior that would reflect negatively on the department).
¶ 141 As with Verner, the August 25, 2007, incident at Guadalajara’s in which Pineda accused
Cerami of theft and battery clearly gave rise to a situation that could “be construed as corrupt,
illegal or unethical behavior.” Cerami was aware that police had been called and that a citizen
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had complained that Cerami had committed battery against him. Therefore, regardless of
whether he was actually guilty of attacking Pineda, Cerami should have “immediately”
reported the incident to the appropriate authorities pursuant to DOC general order 3.8(III)(G).
Investigator Shilling’s testimony shows that Cerami had not reported the incident as of the date
of Shilling’s interview with him on October 20, 2008, more than a year after the incident.
Cerami’s failure to report the incident within a year’s time was clearly a violation of the
requirement that he report it immediately. Accordingly, the Board’s finding that Cerami
violated general order 3.8(III)(G) is not against the manifest weight of the evidence and we
affirm.
¶ 142 III. Suspensions and Terminations
¶ 143 Having concluded our review of the Board’s factual findings, we must now determine
whether the findings provided a sufficient basis for the sanctions imposed by the Board.
Abrahamson, 153 Ill. 2d at 99. A Sheriff’s correctional officer may not “be removed, demoted
or suspended except for cause, upon written charges filed with the Board by the Sheriff and a
hearing before the Board thereon,” where the officer has the right to present evidence and
argument. 55 ILCS 5/3-7012 (West 2008). “ ‘Cause’ is a substantial shortcoming that renders
continuance in office detrimental to the discipline and efficiency of the service, or something
that the law and sound public opinion recognize as good cause for no longer occupying office.”
Malinowski v. Cook County Sheriff’s Merit Board, 395 Ill. App. 3d 317, 322 (2009). A
reviewing court will defer to the agency’s experience and expertise in determining what
sanction is appropriate to protect the public interest. Abrahamson, 153 Ill. 2d at 99. We review
the Board’s findings that the officers’ guilt was a sufficient cause for discharge and reverse
only if its findings were arbitrary and unreasonable or was unrelated to the requirements of the
service. Malinowski, 395 Ill. App. 3d at 322-23.
¶ 144 With regard to Roman, Herrera, DeSena and Cerami, it is their burden to establish that their
suspensions were unwarranted, i.e., that the Board’s conclusions as to discipline were
arbitrary, unreasonable or unrelated to the requirements of the service. Calanca v. Board of
Fire & Police Commissioners, 140 Ill. App. 3d 408, 411 (1986); Chambers v. Flota, 191 Ill.
App. 3d 603, 606 (1989).
¶ 145 Verner, Yerena and Davis must show similarly that their terminations were unwarranted.
“It is axiomatic that an officer’s violation of a single rule may constitute a sufficient basis for
discharge.” Malinowski, 395 Ill. App. 3d at 322. However, although an agency has broad
discretion in determining what constitutes a proper cause for discharge, the discharge must be
based upon substantial misconduct or incapacity which “does not include conduct which is so
trivial as to be unreasonable and arbitrary.” Holden v. Police Board, 324 Ill. App. 3d 862, 868
(2001).
¶ 146 In making the following determinations, we have taken into consideration that we have
vacated numerous of the Board’s findings. We have also considered Investigator Shilling’s
testimony that, in his experience, the usual discipline imposed for an officer’s unauthorized
secondary employment is a three- to five-day suspension. Holmes’s testimony, although found
to be generally not credible, supported this assertion.
¶ 147 Lastly, we have taken into account the discipline imposed on Holmes and on correctional
officer Miguel Saucedo. While we recognize that Holmes’s sanction was not under the
purview of the Board, we find that, given Holmes’s central role in this enterprise, the penalties
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meted out to plaintiffs are grossly disproportionate to the penalty imposed on Holmes. Holmes,
by his admission, was the person who, with Tinoco, put the entire enterprise into place and
worked security himself. He was a ranking officer in the Sheriff’s department who ignored all
the orders and regulations in effect regarding secondary employment and recruited his
subordinates to participate in the scheme and yet was only suspended for 60 days and given a
temporary reduction in rank. Holmes’s role is generally referred to as the “hub” in an illicit
conspiracy. It is the hub that usually garners the harshest sanction, not the spokes.
¶ 148 With regard to Saucedo, the Board found Saucedo violated general orders 3.8(III)(D)(6)
(refrain from engaging in off-duty behavior that would reflect negatively on the department),
4.1(III)(A)(17) (engage in conduct unbecoming a DOC employee) and 4.1(III)(A)(18) (make a
false official report) and sentenced him to 180 days’ suspension. The Board based its findings
on testimony showing that Saucedo frequented a bar/tavern owned by a friend where he often
assisted in calming or removing unruly customers, he took his handcuffs and weapon into the
bar and he told OPR that he did not bring his handcuffs and weapon into the bar. There was
also testimony from a bar patron that Saucedo had assaulted and beaten him at the bar, from a
responding police officer who thought Saucedo was working security for the tavern and from
the bar’s owner, who testified that Saucedo helped in calming unruly patrons but was never on
his payroll. In Saucedo’s OPR statements, he admitted he frequented the establishment and
assisted in removing unruly customers but asserted that he was not employed there and never
took his handcuffs or weapon into the bar.
¶ 149 Based on the foregoing, we direct the Board to reduce the suspensions of Roman and
Herrera to 15 days and DeSena to 20 days. With a baseline of a 3- to 5-day suspension for
unauthorized secondary employment, the additional violations found against these officers do
not justify 40- and 45-day suspensions.
¶ 150 With regard to Cerami, taking into account that he admitted his unauthorized secondary
employment but failed to report the Pineda incident, we direct the Board to reduce his
suspension to 90 days.
¶ 151 Given that all findings against Yerena are vacated, the Board is directed to vacate his
termination and reinstate him retroactively.
¶ 152 With regard to Verner and Davis, while we certainly cannot condone being less than
forthright in the investigation, absent any other aggravating factors and taking into account all
of the above, we find discharge was a grossly disproportionate sanction, especially when
considering the leniency with which Holmes and Saucedo were treated. We are hard-pressed to
understand why Holmes’s egregious conduct was not a substantial shortcoming rendering
continuance in office detrimental to the discipline and efficiency of the service while Verner’s
and Davis’s lesser conduct was such substantial misconduct or incapacity that discharge was
warranted. Similarly, although Saucedo routinely manhandled patrons at a bar and handcuffed
them, albeit as a favor to a friend rather than as a paid employee, and lied to the OPR
investigator regarding taking his handcuffs and weapon into the bar, he was only given a
180-day suspension. Contrast this with Verner, who was terminated even though no battery
charges had been proven against him, and Davis, who was terminated even though he was the
victim of a battery, not the aggressor. Accordingly, we direct the Board to vacate the
terminations of Verner and Davis, reinstate Verner and Davis retroactively and reduce the
penalty imposed on them to a 180-day suspension.
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¶ 153 CONCLUSION
¶ 154 For the reasons stated above, we affirm in part and reverse in part the decisions of the trial
court. And remand to the Board with directions.
¶ 155 Affirmed in part and reversed in part; cause remanded with directions.
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