DANIELS v. POLICE BOARD OF CITY OF CHICAGO

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Appellate Court of Illinois,First District, Fourth Division.

Serena DANIELS, Petitioner-Appellant, v. POLICE BOARD OF the CITY OF CHICAGO, Chicago Police Department, Terry Hillard, Superintendent of the Chicago Police Department, Demetrius E. Carney, Scott J. Davis, Victor GOnzalez, Phyllis L. Apelbaum, Patricia C. Bobb, William C. Kirkling, D.D.S., Rev. Johnny L. Miller, Art Smith, George M. Velcich, Mark Iris, Executive Director, and Thomas E. Johnson, Hearing Officer, Respondents-Appellees.

Carl Carter, Petitioner-Appellee, v. Police Board of the City of Chicago, Chicago Police Department, Terry Hillard, Superintendent of the Chicago Police Department, Demetrius E. Carney, Scott J. Davis, Victor Gonzalez, Phyllis L. Apelbaum, Patricia C. Bobb, William C. Kirkling, D.D.S., Rev. Johnny L. Miller, Art Smith, George M. Velcich, Mark Iris, Executive Director, and Thomas E. Johnson, Hearing Officer, Respondents-Appellants.

Nos. 1-01-2419, 1-01-2495.

    Decided: May 01, 2003

Law Offices of Joseph V. Roddy, Chicago (Joseph V. Roddy, Tamara L. Cummings, of counsel), for Petitioner-Appellant Serena Daniels and Petitioner-Appellee Carl Carter. Mara S. Georges, Corporation Counsel of the City of Chicago (Lawrence Rosenthal, Benna Ruth Solomon and Myriam Zreczny, of counsel), for Respondents-Appellees/Respondents-Appellants Police Board of the City of Chicago, Chicago Police Department, Terry Hillard, Superintendent of the Chicago Police Department, Demetrius E. Carney, Scott J. Davis, Victor Gonzalez, Phyllis L. Apelbaum, Patricia C. Bobb, William C. Kirkling, D.D.S., Rev. Johnny L. Miller, Art Smith, George M. Velcich, Mark Iris, Executive Director, and Thomas E. Johnson, Hearing Officer.

On June 4, 1999, Chicago police officer Serena Daniels fatally shot Latanya Haggerty following a car chase.   Chicago Police Department Superintendent Terry Hillard (the superintendent) filed charges with the Police Board of the City of Chicago (the Board) alleging that Daniels and three other police officers, Carl Carter, Michael Williams and Stafford Wilson, violated police department rules in connection with the chase and shooting.   The Board found the officers guilty of violating the department's rules and discharged Daniels, Williams and Wilson from their duties as police officers and suspended Carter from his duties for one year.   Upon administrative review, the trial court affirmed Daniels' discharge, reversed Carter's suspension, and remanded Wilson's and Williams' cases back to the Board for new hearings.   Daniels appeals from the trial court's order affirming the Board's decision to discharge her.   In a related case consolidated on appeal with Daniels' action, the superintendent appeals the trial court's order reversing the Board's decision to suspend Carter.

On appeal, Daniels argues that (1) the Board's findings that she was unjustified in her use of deadly force, disobeyed orders to terminate a chase, and failed to report that the officers fired their weapons in an earlier incident were against the manifest weight of the evidence;  and (2) the Board's consolidation of all four cases, negative pretrial publicity and failure of the Board members to attend the administrative hearing deprived her of her right to be tried fairly.   The superintendent argues that (1) the Board's findings that Carter failed to immediately report a weapon discharge incident, disregarded orders to terminate the chase, and falsely informed the police department that Smith had threatened officers with his vehicle were not against the manifest weight of the evidence;  and (2) the Board's decision to suspend Carter was not arbitrary, unreasonable or unrelated to the requirements of service.   We affirm the court's order affirming Daniels' discharge and reverse the court's order with regard to Carter and reinstate Carter's suspension.

FACTS

Outlined briefly, the facts are as follows.   On June 4, 1999, Raymond Smith picked Haggerty up after work and drove to the south side of Chicago.   At approximately 5 p.m., Smith stopped his car to speak to a friend standing on the sidewalk.   Sixth District police officer Daniels and her partner Williams pulled up beside Smith's car in their squad car (Beat 632).   Williams was driving and Daniels was in the passenger seat.   Daniels asked Smith for his driver's license and insurance certification.   Smith drove off without producing either document.

Beat 632 followed Smith's car and stopped it one block south.   Having checked the license plates on Smith's car, the officers knew that the plates were not registered to the car.   The officers reiterated their request for Smith's license and insurance information, but Smith again drove off without producing either.   Beat 632 pursued Smith's car.   After following Smith's car for approximately 15 blocks, Daniels notified the police department's Office of Emergency Communications (OEC) that Beat 632 was following Smith's vehicle.   When questioned by the OEC dispatcher, Daniels denied that Beat 632 was “chasing” Smith's car.

Beat 632 ultimately pursued Smith's car for 30 blocks to the intersection of 95th Street and Cottage Grove Avenue, where Smith's car finally stopped when it was cut off by Beat 634.   Beat 634 was driven by Carter.   Carter's partner, Wilson, was in the passenger seat.   Carter's police radio was broken, but he and Wilson heard Beat 632's report of the pursuit over Wilson's radio and decided to assist Beat 632.   After Smith stopped, the four officers exited their cars and approached Smith's car with their weapons drawn.   They ordered Smith to exit his car but he refused to do so.   Instead, he backed his car up between the two squad cars and, driving in reverse, fled westbound on 95th Street.   Officers Daniels, Williams and Wilson fired at the retreating car.   Although the officers would later claim that they fired their weapons because Smith tried to run them down, two independent witnesses standing close to the intersection stated that Smith's car never threatened the officers.   In contrast to the officers' testimony, the witnesses and Smith stated that the car never advanced toward the officers and that it drove backwards on 95th Street rather than in a forward direction.

At the first intersection, Smith turned his car forward and sped north with Beats 632 and 634 in active pursuit.   Daniels contacted OEC and informed the dispatcher of the pursuit and that shots had been fired and called out the intersections that Beat 632 passed during the beginning of the chase.   Daniels testified that she reported “police shots fired” or “632, 634 shots fired” but the dispatcher did not hear the “shots fired” report.   The other three officers did not report that shots had been fired or that they had discharged their weapons.   Therefore, neither the dispatcher nor the OEC supervisor, Sergeant Bednarek, was aware that shots had been fired or that Beat 634 was also involved in the pursuit.   Sergeant Bednarek ordered the dispatcher to inform Beat 632 to terminate the chase if the car was only wanted “for traffic,” i.e., a traffic violation.   The dispatcher conveyed the order to terminate to Beat 632 which Daniels acknowledged.

The transcripts of the taped OEC call show that the communications between Beat 632 and OEC were garbled, interrupted and hard to understand.   The transcript of the tape prepared by the department's Office of Professional Standards (OPS) notes “possibly ‘shots fired’ ” at the salient point in the transcript.   After listening to the tape of the call several times, the dispatcher acknowledged that, although he had not heard “shots fired” when the call came in, “shots fired” “could be” on the tape and that it “sounded like it.”   Sergeant Bednarek testified that, although he had listened to the taped response from Beat 632 at least four or five times, he really could not understand what was being said.   The salient portion of the OPS transcript shows the following communications:

“Dispatch:  Alright. 632 is following a car eastbound on 95th past Prairie at this time.   A male driver of a grey car is refusing to pull over at this time.

Bt. 620 [Sgt. Bednarek]:  Okay, 1-4 squad.  [W]here are they at now and what's he wanted for?

Dispatch:  Alright, 632 talk to 620. 632?

Bt. 632:  ( [G]arbled response.  [P]ossibly ‘shots fired’)

Dispatch:  632?

Bt. 632:  Westbound on Nine Five. Car went around down Langley on Nine Five.

Dispatch:  Okay, it went southbound on Langley from 95. 620 is requesting what is he wanted for?

Bt. 632:  ( [G]arbled response)

Dispatch:  That car is southbound on Langley from 95th Street, southbound on Langley from 95th St.

Bt. 632:  ( [G]arbled statements)

Bt. 620:  What's that car wanted for?   If it's just wanted for traffic and it's still going, tell them to stop chasing.

Dispatch:  632, you copy? 632, 620 said if it's for traffic only, cut it off.

Bt. 632 [Daniels]:  St. Lawrence ․ bound.

Dispatch:  Alright.   Alright.  Southbound on St. Lawrence.   I believe St. Lawrence is a one-way.

Bt. 632:  Eastbound 90th from St. Lawrence.

Dispatch:  Eastbound 90th from St. Lawrence. 632, 620 said terminate the․ Terminate it.

Bt. 632:  10-4.”

The dispatcher and Sergeant Bednarek believed that the pursuit was over because they heard no further communication from Beat 632.   However, although Daniels and Williams heard the termination order, they continued their pursuit.   Carter and Wilson also continued pursuit, subsequently claiming that they did not hear the termination order.   The pursuit continued for another four or five minutes and the chase left the boundaries of the 6th District and entered the 3rd District.   Daniels claimed to have continued broadcasting Beat 632's locations but no such communications are reflected on the transcripts of the tape.   The 3rd and 6th Districts do not share radio frequencies.   Therefore, even had Daniels continued broadcasting the pursuit locations, 3rd District personnel would not have been able to hear those communications and would not have known that a chase was in progress through their district.

Smith finally stopped his car at 64th Street and Dr. Martin Luther King Jr. Drive.   Carter and Williams removed Smith from the car and subdued him.   Daniels moved into position next to the rear driver side door of Smith's car, and Wilson stood to the rear of the passenger side of the car.   Daniels repeatedly ordered Haggerty, who was talking on a cell phone, to put the phone down, show her hands and exit the car.   Wilson also ordered Haggerty to let him see her hands.   Haggerty ignored the yelled instructions and continued to talk on the phone.   Daniels testified later that she saw a silver object slowly rising from between the side of the passenger door and Haggerty's thigh and that Haggerty turned toward her.   Thinking the silver object was a gun barrel, Daniels shot once.   The bullet pierced Haggerty's lungs, liver and heart and ultimately killed her.   No gun was found at the scene.   A silver padlock was found on the car floor in front of the front passenger seat.   Wilson later stated that, when he pulled Haggerty's body from the car, “something silver” fell from Haggerty's lap to the floor.   Wilson had not been able to see Haggerty's right hand from his position and had not seen Haggerty move except to tilt her head to the phone.

When police department supervisors and investigators arrived on the scene, Daniels, Carter, Williams and Wilson did not inform them that shots had been fired earlier at 95th Street and Cottage Grove Avenue.   Although Carter stated that he told Sergeant Bednarek and Commander Mark Davis at the scene at 64th Street about the earlier shootings at 95th Street, Bednarek and Davis denied this.   Not until the four officers were at Area 2 headquarters did they inform supervisors of what had occurred at 95th Street and Cottage Grove Avenue.

Following an investigation, the superintendent filed charges with the Board against Daniels, Wilson, Williams and Carter, charging Daniels with 18 counts and Carter with 14 counts of violating police department rules.   The Board held a hearing, presided over by a hearing officer, to investigate the charges against the four officers.   The Board members did not attend the hearing.   After the six-day hearing, the Board conferred with the hearing officer, examined the evidence presented during the hearing and adopted the hearing officer's findings.

The Board found Daniels guilty of violating Rule 2 (any action or conduct that impedes the Department's efforts to achieve its policy or goals or brings discredit upon the Department) and Rule 6 (disobedience of an order or directive, whether written or oral) for:

(1) failing to report shots fired by police at 95th Street and Cottage Grove Avenue in violation of General Orders 99-01 V(A)(1)(a) and (V)(B)(1);

(2) violating a direct order to terminate a vehicle chase;

(3) firing her weapon without justification at a fleeing vehicle in violation of General Order 86-8 IV(E);

(4) shooting Haggerty without justification in violation of General Orders 86-8 III(A)(1), III(A)(2), III(A)(3) and III(B);  and

(5) with regard to the shooting at 95th and Cottage Grove Avenue, failing to make certain reports required following the discharge of a weapon in violation of General Orders 99-01 V(A)(3) and V(B)(1).

The Board also found Daniels guilty of violating Rule 2 and Rule 38, unlawful or unnecessary use or display of a weapon for:

(1) firing her weapon at a fleeing vehicle without justification thereby unlawfully or unnecessarily using or displaying her weapon;  and

(2) shooting Haggerty without justification resulting in a fatal gunshot wound.

The Board ordered that Daniels be discharged from her duties as a police officer.

The Board found Carter guilty of violating Rule 2 and Rule 6 for:

(1) failing to report shots fired by police at 95th Street and Cottage Grove Avenue in violation of General Order 99-01(V)(B)(1);

(2) violating a direct order to terminate a vehicle chase;  and

(3) with regard to the shooting at 95th and Cottage Grove Avenue, failing to make certain reports required following the discharge of a weapon in violation of General Order 99-01 V(B)(1).

The Board also found Carter guilty of violating Rule 2 and Rule 14 (making a false report, written or oral) for giving false information to his OPS when he stated that Smith used his vehicle as a weapon against the officers.   The Board ordered that Carter be suspended from his duties for one year.

The Board found Williams and Wilson guilty of assorted rules violations and ordered that they be discharged from their duties.

The trial court granted administrative review of the Board's decisions and affirmed Daniels' discharge, reversed Carter's suspension, and ordered that Wilson's and Williams' cases be remanded to the Board for new hearings.   The court made its orders regarding Daniels and Carter final and appealable.   Daniels timely appealed the court's order affirming her discharge and the superintendent timely appealed the court's order reversing Carter's suspension.   The trial court's order remanding Williams' and Wilson's cases to the Board for new hearings is not before us.

ANALYSIS

 As the reviewing court, we review the decision of the Board, not that of the trial court.  Krocka v. Police Board of the City of Chicago 327 Ill.App.3d 36, 46, 261 Ill.Dec. 8, 762 N.E.2d 577, 586 (2001).   Because it is an administrative agency, the Board's findings of fact “shall be held to be prima facie true and correct” on review (735 ILCS 5/3-110 (West 1998)) and should be sustained unless the reviewing court determines that those findings are contrary to the manifest weight of the evidence.  Ruther v. Hillard, 306 Ill.App.3d 997, 1005, 240 Ill.Dec. 85, 715 N.E.2d 772, 778 (1999);  Launius v. Board of Fire & Police Commissioners, 151 Ill.2d 419, 427, 177 Ill.Dec. 407, 603 N.E.2d 477, 481 (1992).   An agency decision is contrary to the manifest weight of the evidence 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.  S.W. v. Department of Children & Family Services, 276 Ill.App.3d 672, 681, 213 Ill.Dec. 280, 658 N.E.2d 1301, 1308 (1995);  Abrahamson v. Illinois Department of Professional Regulation, 153 Ill.2d 76, 88, 180 Ill.Dec. 34, 606 N.E.2d 1111, 1117 (1992).

UNJUSTIFIED USE OF FORCE BY DANIELS AT 95TH STREET

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We first address the Board's discharge of Daniels.   Daniels argues that the Board's finding that she was unjustified in her use of deadly force at 95th Street and Cottage Grove Avenue (95th Street) was not supported by the evidence.   Daniels asserts that the Board's acceptance of Smith's version of what transpired at 95th Street rather than crediting the officers' testimony of what occurred was incongruent given that the Board did not accept Smith's version of what transpired during the initial traffic stop which was also contradicted by the officers' testimony.

Issues regarding conflicting testimony or credibility of witnesses are determinations to be made by the agency and neither this court nor the trial court may reweigh the evidence nor substitute our judgment for that of the agency.  Haynes v. Police Board of the City of Chicago, 293 Ill.App.3d 508, 511-12, 228 Ill.Dec. 96, 688 N.E.2d 794, 797 (1997);  Launius, 151 Ill.2d 419, 427, 177 Ill.Dec. 407, 603 N.E.2d 477, 481.   A reviewing court is limited to considering the evidence submitted in the administrative hearing and may not hear additional evidence or conduct a de novo hearing.  Acevedo v. Department of Employment Security, 324 Ill.App.3d 768, 773, 258 Ill.Dec. 12, 755 N.E.2d 93, 97 (2001);  735 ILCS 5/3-110 (West 1998).   If the record contains any evidence supporting the agency's decision, the decision must be sustained on review.  S.W., 276 Ill.App.3d at 681, 213 Ill.Dec. 280, 658 N.E.2d at 1308;  Abrahamson, 153 Ill.2d at 88, 180 Ill.Dec. 34, 606 N.E.2d at 1117.

Chicago Police Department General Order 86-8 states that a police officer “is justified in using force likely to cause death or great bodily harm only when he or she reasonably believes that such force is necessary to prevent death or great bodily injury to the officer or to another person.”  (Emphasis in original) General Order 86-8 III(A)(1).   General Order 86-8 further states that a police officer may fire at a motor vehicle when an offender is using that vehicle as an instrument of deadly force but warns that “[t]he use of a firearm in any case is a last resort measure.”   General Order 86-8 IV(E), III(B).  If, as the officers claim, Smith was trying to run them over with his car, Daniels' shooting at the car might have been justified.   However, the Board did not credit the officers' testimony on this point and found that Smith did not threaten the officers with his car and that the officers' shooting at the car was an unjustified use of deadly force.

Although the Board did not accept Smith's version of what happened during the original traffic stop, they did appear to accept his latter testimony regarding his fleeing from 95th Street.   We do not find these determinations inconsistent given that each was supported by the evidence.   Smith's testimony was that he fled the traffic stop because Williams threatened him.   This evidence is contradicted by Williams' and Daniels' testimony that no such threat occurred.   The Board found Smith's testimony not credible given that Smith admitted he was in possession of marijuana at the time and was driving on a suspended license. 1  Based on this evidence, the Board concluded that he fled because of his criminal conduct and because he did not want to be arrested, rather than because he was afraid of Williams.   The Board, therefore, accepted the officers' version of what transpired during the traffic stop, a determination which could be inferred from the evidence and was well within the Board's purview.

Smith then testified that he fled the scene at 95th Street in reverse and did not attempt to run down the officers.   This evidence was contradicted by the officers' assertion that Smith drove forward and threatened them with his car.   Issues regarding conflicting evidence and credibility are for the Board to determine and here the Board chose not to believe the officers' version of the incident.   The Board did not, however, rely on Smith's version of events.   Rather it credited the testimony of two “neutral witnesses with no apparent incentive to compromise the truth,” Tarran Williams and Abdul Jebrin, whose version of events happened to corroborate Smith's.   The two witnesses testified that Smith's car never drove forward toward or threatened the officers.   Although a third witness, CTA bus driver Darryl Abner testified that he saw Smith's car jerk forward toward an officer, he admitted that he glanced back and forth at the scene and did not continuously witness what occurred.   The balance of Abner's testimony was so drastically different from even the officers' own version of events that the Board did not credit his evidence.   The Board also noted that one of Daniels' bullets was found lodged in the rear passenger-side hubcap, which supported Tarran Williams testimony that Daniels was standing to the side of Smith's car rather than, as Daniels claimed, behind it.

The Board determined that Tarran Williams and Abdul Jebrin's testimony directly impeached that of the officers and, therefore, did not credit the officers' testimony that Smith used his car as an instrument of deadly force against them.   We may not reweigh the evidence and, because there is evidence in the record to support the Board's determination that the officers' testimony regarding Smith's flight from the scene at 95th Street was not credible, we cannot overturn this finding.   The Board's two credibility determinations regarding Smith's and the officers' testimony were each supported by the record and, accordingly, those findings stand.

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 The Board's factual determinations that the officers were not in danger from being run over by Smith's car are supported by the record.   Having found that the officers were not in danger from Smith's car, the Board necessarily held that Daniels was unjustified in shooting at the car pursuant to General Order 86-8, thereby violating Rules 2, 6 and 38.   An unjustified shooting endangers citizens and discredits the department (violation of Rule 2), violates a written general order (violation of Rule 6) and results in the unnecessary use of a weapon (violation of Rule 38).   Accordingly, we affirm the Board's determination that Daniels' use of force at 95th Street was unjustified and a violation of Rules 2, 6, and 38.

UNJUSTIFIED USE OF FORCE BY DANIELS AT 64TH STREET

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Daniels next argues that the Board's findings that she was unjustified in her use of deadly force at 64th Street and Dr. Martin Luther King Jr. Drive (64th Street) was not supported by the evidence and that, looking at the totality of the circumstances confronting Daniels at 64th Street, the Board was compelled to find that Daniels' use of force was justified.   In order to determine whether Daniels' use of deadly force against Haggerty at 64th Street was justified, the totality of the circumstances confronting Daniels at 64th Street must be examined in order to determine whether her belief that such force was necessary was reasonable.   Daniels testified that Haggerty, after repeatedly ignoring instructions to put down the phone and show her hands, made a slight turn in Daniels' direction and that Daniels saw a silver object slowly being raised from between Haggerty's right thigh and the passenger door.   Daniels thought the object was a gun and fired.   The Board did not find Daniels' belief that such force was necessary to be reasonable given that witnesses did not see Haggerty move toward Daniels, Haggerty had not done anything threatening, Daniels had no reason to believe that Haggerty was armed, and the silver object was being raised slowly and was not pointed at anyone.   The Board noted that, pursuant to General Order 86-8 III(B), use of a firearm is a last resort measure and that Daniels did not exhaust all other reasonable means at her disposal to control Haggerty.

The witnesses' testimony supports the Board's finding that, under “all of the circumstances, there was simply no threat of immediate harm from Ms. Haggerty that justified the use of deadly force.”   Witnesses variously testified that Haggerty was getting out of the car, was opening the car door, or was turning to open the car door when she was shot.   No witness saw Haggerty's right hand or that she moved or turned toward Daniels, although Wilson and one other witness testified that Haggerty tilted her head slightly to the left toward the phone at her ear.   As the Board noted, the entry wound could indicate a slight left turn of Haggerty's body towards Daniels but, as Dr. Shaku Teas testified, the entry wound also showed that Haggerty was sitting in a north-south position when she was shot and was not twisted in her seat toward Daniels.   Dr. Teas explained that the slight turn of Haggerty's left shoulder toward Daniels would be consistent with Haggerty having reached with her right hand slightly forward to the passenger side door handle in order to open the passenger side door as testified to by witnesses.

The Board remarked that police expert James Marsh testified that use of deadly force might be justified if the officer thought the suspect had a weapon and the suspect made a furtive movement toward the officer.   However, Marsh stated that this was only warranted if the suspect made the furtive movement after refusing to obey warnings from the officer to drop the weapon or “don't move or I'll shoot.”   Here, Daniels admits that she gave no such warnings.   The Board also noted Marsh's opinion that, in the entire context of what occurred during the Haggerty shooting, Daniels did not have a reasonable basis for using deadly force.   The record reflects Marsh's view that no extreme conditions existed at 64th Street that justified the shooting because Daniels had no basis for her belief that Haggerty was armed given that nothing in the previous stops or chase indicated that either Smith or Haggerty were armed;  no weapon was pointed at Daniels;  Daniels issued no warnings to Haggerty to drop the weapon;  Daniels was not in front of Haggerty but rather was to the rear and side of the car and could have shielded her position;  and, although a suspect turning toward an officer with what could be a weapon might justify shooting, here the alleged weapon was merely being raised rather than pointed at anyone and the shooting was premature.

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 The Board determined that, even if Daniels' testimony was fully credited, her use of deadly force against Haggerty was not warranted in light of all the evidence presented and her belief that it was warranted was not objectively reasonable.   Accordingly, the Board found Daniels' use of deadly force against Haggerty was in violation of General Order 86-8 because she shot Haggerty without justification, thereby violating Rules 2 (discrediting the department), 6 (violating a written order) and 38 (resulting in the unnecessary use of a weapon).   We affirm, finding these determinations supported by the record.

DANIELS' FAILURE TO TERMINATE THE CHASE AND TO REPORT SHOTS FIRED

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Daniels next argues that it was against the manifest weight of the evidence to find her guilty of disobeying the order to terminate the chase and of failing to report that shots had been fired at 95th Street given that radio communications were imperfect.   Daniels argues that the failure of the dispatcher and supervising sergeant to hear the crucial transmission that shots had been fired should not have been held against the officers.   As the previously quoted transcript of Daniels' communication with OEC shows, neither the dispatcher nor Sergeant Bednarek were aware that the chase involved anything other than a traffic related chase.   While we agree that the dispatcher's failure to hear Daniels' report that shots were fired cannot be held against the officers, the officers' failure to provide additional clarifying information which would have alerted OEC that more than a traffic violation was involved can.

General Order 99-01 V(A)(1)(a) provides that when an officer has discharged a weapon, the officer must, if physically capable, “notify the OEC immediately, and provide all relevant information.”  (Emphasis added.)   General Order 99-01 V(B)(1) states that an officer “who has been involved in a weapon discharge incident will provide an oral report to the person responsible for conducting the investigation without delay and outside the presence of any other individuals.”  (Emphasis added.)

The Board acknowledged that Daniels appeared to have reported “shots fired” immediately to OEC. However, the Board interprets General Order 99-01 as requiring much more than merely reporting the shots.   The Board states that when an officer has fired her weapon, she must “inform supervisory staff immediately as to who fired the shots, why the shots were fired, where they were fired, what crimes have been committed and how the situation was developing.”   On review, we generally defer to an agency's interpretation of its own rules and regulations because they arise from the agency's expertise and 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, 109 Ill.Dec. 422, 510 N.E.2d 43, 45 (1987);  Cook County State's Attorney v. Illinois State Labor Relations Board, 292 Ill.App.3d 1, 6, 225 Ill.Dec. 979, 684 N.E.2d 970, 973 (1997).   We find that Board's interpretation of the reporting requirements of General Order 99-01 reasonable.   It stands to reason that, in order to better understand and supervise a potentially dangerous situation, the supervisor must be apprized of all the circumstances attendant to a shooting.   In addition, immediate investigation into such incidents is vital in order to secure the scene and obtain witnesses.

The Board found that, besides reporting the shots fired, Daniels provided none of the other information required and that the other three officers made no effort to provide their supervisors with any information regarding the shooting at 95th Street.   The full transcript of the OEC call supports the Board's finding that the officers “failed to communicate any information for most of the chase and failed to communicate any of the most relevant information when there were transmissions being made.”   OPS, the Superintendent and defense counsel for the officers each presented a transcript of the OEC call.   Each of the three transcripts is essentially the same and reflects, at a minimum, all communications between OEC and the field from 5:18 p.m., when Beat 632 first called in that it was following Smith's car, until after Haggerty was shot and the emergency calls started.   The transcripts show all incoming communications, including those from unrelated beat cars and those too garbled to understand.   None of the transcripts reflects any communications from Beat 632 (Daniels and Williams) after Daniels 10-4'd the termination order at 5:22 p.m. until 5:34 p.m., when Sergeant Bednarek, responding to emergency calls regarding the Haggerty shooting and unaware that Beat 632 was involved, tells Beat 632 to meet him later to discuss the earlier pursuit.   Beat 632 responds to this order and requests a sergeant and watch commander at 64th Street.   Not until this communication did OEC become aware that Beat 632 was involved in the Haggerty shooting.   Even garbled communications from Beat 632 providing additional details of the chase and the streets passed after the chase was ordered terminated would be reflected on the transcripts.   They are not.   Therefore, the evidence clearly supports the Board's finding that it did not believe that Daniels made transmissions that were not reflected on the tape and that she violated General Order 99-01 by failing to communicate the requisite information.

The Board states that Sergeant Bednarek testified that, had the officers communicated exactly what had happened at 95th Street and that more than a traffic incident was involved, he would have terminated the chase anyway.   This categorical statement is not supported by the record because the transcript of Sergeant Bednarek's testimony shows that he actually testified that, if he had known that shots had been fired, he would have sought a lot more information from Beat 632 with direct radio contact and that, “overall, if a weapon was discharged during this incident,” he “would have allowed that chase to continue.”   He did subsequently state, however, that had he known that the chase had left the boundaries of the 6th District, he would have terminated it, thereby supporting the Board's determination that additional information regarding the continuing pursuit was essential, should have been provided, and would have changed the course of events.

The record also supports the Board's finding that, when Daniels had the opportunity to report what happened at 95th Street and during the subsequent chase directly to her supervisors at the scene at 64th Street, she did not do so, again violating General Order 99-01.   Sergeants Bednarek, Wilkins and O'Donnell all testified that none of the officers informed them of what happened at 95th Street while at 64th Street, thus supporting this determination.

Daniels acknowledges hearing the order to terminate the chase but states that she thought it was conditional, i.e. terminate the chase if the suspect was only wanted for a traffic offense.   Although the Board states that the termination order was unconditional the second time the dispatcher conveyed it, we do not agree.   The transcripts reflect that, in context, the second terminate order was clearly related to a traffic violation.   This is supported by Sergeant Bednarek's acknowledgment that he intended that the chase be terminated if the offense involved was only a traffic violation.

Although Daniels' testified that Smith was being pursued for attempted murder for allegedly attempting to run down the officers with his car, as discussed above, the Board did not believe that this was true.   Accordingly, Daniels was merely pursuing Smith for a traffic violation and should have obeyed the order to terminate the chase.

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 The record supports the Board's determination that Daniels was guilty of disobeying the order to terminate the chase and of failing to communicate all relevant information regarding the shots fired at 95th Street and the concomitant violations of Rules 2 and 6. We affirm the Board's findings on these counts.

DANIELS' SANCTION

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Once a court has reviewed an agency's factual findings, it must determine whether those findings provided a sufficient basis for the sanction imposed by the agency.  Schlobohm, 157 Ill.App.3d at 94, 109 Ill.Dec. 422, 510 N.E.2d at 45;  Abrahamson, 153 Ill.2d at 99, 180 Ill.Dec. 34, 606 N.E.2d at 1122.   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, 180 Ill.Dec. 34, 606 N.E.2d at 1122.

Clearly, having found that Daniels was not justified in her use of force against Haggerty or in shooting at Smith's car, the Board's decision to discharge Daniels was not unreasonable or arbitrary.  “ ‘Cause’ for discharge is ‘some substantial shortcoming which renders the employee's continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.” ’  Schlobohm, 157 Ill.App.3d at 94, 109 Ill.Dec. 422, 510 N.E.2d at 45-46, quoting Kreiser v. Police Board of the City of Chicago, 40 Ill.App.3d 436, 441, 352 N.E.2d 389, 394 (1976) aff'd 69 Ill.2d 27, 12 Ill.Dec. 707, 370 N.E.2d 511 (1977).   Although an administrative 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 of the City of Chicago, 324 Ill.App.3d 862, 868, 257 Ill.Dec. 965, 755 N.E.2d 67, 72 (2001).

Unjustified use of force by a police officer is alone misconduct substantial enough to warrant discharge.   In this case, however, the Board also found that Daniels disobeyed a direct order when she did not terminate the chase, failed to report the shots fired at 95th Street in violation of a written order and unnecessarily displayed her weapon, all instances of misconduct which are far from trivial and which could lead to a serious breakdown in the efficiency of and the public's trust in the police department if this behavior is allowed to continue.   The totality of Daniels' conduct “is clearly detrimental to the discipline and efficiency of the department and undermines its reputation” and makes her discharge an entirely appropriate sanction.  McCloud v. Rodriguez, 304 Ill.App.3d 652, 663, 237 Ill.Dec. 614, 710 N.E.2d 37, 44-45 (1999).

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 The Board's findings of fact with regard to Daniels were not against the manifest weight of the evidence and those findings were sufficient to warrant Daniels' discharge.   Accordingly, we affirm the decision of the trial court with regard to Daniels' discharge.

BOARD'S FINDINGS REGARDING CARTER

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We next address the superintendent's contention that the trial court erred in reversing the Board's suspension of Carter.   The superintendent argues that the Board's findings that Carter failed to immediately report a weapon discharge incident, disregarded a direct order to terminate a motor vehicle pursuit and falsely informed OPS that Smith threatened the officers with his car were not against the manifest weight of the evidence.

As provided in General Order 99-01 V(B)(1), as an officer “who has been involved in a weapon discharge incident,” Carter was required to “provide an oral report to the person responsible for conducting the investigation without delay and outside the presence of any other individuals.”   He did not do so.   Carter admitted that he failed to report to OEC that shots had been fired at 95th Street.   The Board accepted Carter's contention that his radio was not working but noted that his partner Wilson had a radio.   The Board found that it was Carter's duty to make sure he or his partner made the requisite report that a weapon had been discharged, “particularly where none of the other officers on the scene made an adequate report of the weapons discharge.”   Although Carter testified that he reported what happened at 95th Street to Sergeant Bednarek and Commander Davis while at 64th Street, both those officers testified that he did not and the Board found them credible, a determination which was the Board's to make.   Accordingly, the record supports the Board's determination that Carter failed to report the shooting without delay in violation of General Order 99-01 V(B)(1) and thereby violated Rules 2 and 6.

With regard to the termination order, Carter stated that he did not hear the order because his own radio was inoperative and the noise generated inside the squad car during the chase by the squad's siren and air horn overwhelmed his partner's radio.   The Board concluded that the three separate termination orders should have been heard and found him guilty of violating the order to terminate the chase.   This determination is supported by the evidence given that Carter acknowledged hearing previous communications between Beat 632 and OEC, prior to the chase.   As discussed above with regard to Daniels, the Board did not believe that Smith threatened the officers with his car.   Accordingly, the officers were pursuing Smith for a traffic violation and should have obeyed the order to terminate the chase.   We affirm the Board's finding on this count and the concomitant violation by Carter of Rules 2 and 6.

The Board found that Carter violated Rules 2 and 14 when he gave a false statement to OPS that Smith had threatened the officers with his car.   In his brief, the superintendent acknowledges that there is no evidence in the record that Carter ever gave a statement to OPS and that the Board's finding, therefore, cannot stand.   The superintendent argues, however, that setting aside this finding does not require that Carter's sanction be altered because it has no bearing on Carter's culpability given that the Board had clearly determined that the officers' version of events was fabricated and its findings that Carter disregarded the terminate order and failed to immediately report the shots fired were supported by the evidence. We agree and affirm Carter's suspension.

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 Given Carter's failure to follow a direct order to terminate a chase and his violation of a written order to report a shooting without delay, a one-year suspension from duty is entirely reasonable given the seriousness of his conduct and its consequences. We reinstate his suspension.

DUE PROCESS

Notwithstanding the petitioners' arguments to the contrary, we do not find that the Board's consolidation of the four officers' cases, the pretrial publicity accorded the Haggerty case and the failure of any of the Board members to attend the administrative hearing deprived either Daniels or Carter of his or her right to be tried fairly.

1. Consolidation

 Due process requirements differ in judicial and administrative proceedings because administrative proceedings are simpler and less formal and technical than judicial proceedings.  Desai v. Metropolitan Sanitary District of Greater Chicago, 125 Ill.App.3d 1031, 1033, 81 Ill.Dec. 243, 466 N.E.2d 1045, 1047 (1984).   Due process in an administrative proceeding is satisfied by a “ ‘procedure that is suitable and proper to the nature of the determination to be made and conforms to fundamental principles of justice.’ ”  Comito v. Police Board of the City of Chicago 317 Ill.App.3d 677, 687, 251 Ill.Dec. 9, 739 N.E.2d 942, 949 (2000), quoting Telcser v. Holzman, 31 Ill.2d 332, 339, 201 N.E.2d 370, 373-74 (1964).   That procedure must include impartial rulings on the evidence, an opportunity to be heard, and the right to cross-examine adverse witnesses.   Comito, 317 Ill.App.3d at 687, 251 Ill.Dec. 9, 739 N.E.2d at 949, citing Abrahamson, 153 Ill.2d at 95, 180 Ill.Dec. 34, 606 N.E.2d at 1120.   An administrative body has broad discretion in conducting its hearings but that discretion must be exercised judiciously and not arbitrarily.  Comito, 317 Ill.App.3d at 687, 251 Ill.Dec. 9, 739 N.E.2d at 949.

 “[T]he consolidation of separate causes for trial is discretionary with the trial court and our courts have found no abuse of discretion where the separate causes are of the same nature, arise from the same act, event or transaction, involve the same or like issues, and depend largely or substantially upon the same evidence, and when a joint trial will not give one party an undue advantage or prejudice the substantial rights of any party.”  Peck v. Peck 16 Ill.2d 268, 275, 157 N.E.2d 249, 254 (1959), citing Black Hawk Motor Transit Co. v. Illinois Commerce Comm'n, 383 Ill. 57, 66-67, 48 N.E.2d 341, 346 (1943).   Similarly, administrative bodies performing quasi-judicial functions have the discretion to consolidate cases for hearing and, unless that discretion is abused, reviewing courts will not interfere with an agency's decision regarding consolidation.  Black Hawk Motor Transit Co., 383 Ill. at 66, 48 N.E.2d at 346.   If an abuse of discretion is found, the reviewing court must then determine “whether the result was injurious or prejudicial to appellant's right to a fair and impartial hearing.”  Black Hawk Motor Transit Co., 383 Ill. at 66, 48 N.E.2d at 346.

In this case, the same incidents gave rise to the charges against all four officers, many of the same charges were raised against each officer, the same witnesses would likely testify in all four cases and the four officers would be called to testify against each other given that they confronted shared circumstances.   There is no evidence that any officer was denied the right to cross-examine any of the witnesses or an opportunity to be heard.   In fact, having examined the report of proceedings for the entire six-day hearing, it is clear that each officer had ample opportunity to examine each witness and to present his or her case.   Moreover, all four officers were represented by the same attorney and their defenses were not inconsistent.   Given the common issues of law and fact, we find no abuse of discretion in the Board's decision to consolidate the cases.

As Daniels correctly states, each officer's perception of the facts confronting them was unique.   However, whether an officer's perception of the facts was reasonable can only be determined by looking at the entirety of the circumstances confronting that officer.   This totality of circumstances can only be determined by examining not only the officer's testimony but that of any other witnesses to the incident, including the testimony of other officers present.   At any given point in time, the facts confronting each officer were shared by anyone else present at that moment in time;  they were not unique to that officer.   Although each witness's perceptions of the facts might vary, each witness's account of the same factual scenario should be considered.

 Consolidation of the cases did not prejudice Carter and Daniels due to any disparities in the evidence that confronted each officer.  “Without a showing to the contrary, State administrators ‘are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.’ ”  Scott v. Department of Commerce & Community Affairs, 84 Ill.2d 42, 55, 48 Ill.Dec. 560, 416 N.E.2d 1082, 1089 (1981), quoting United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 1004, 85 L.Ed. 1429, 1435 (1941).   As the hearing officer noted, a Board hearing is more akin to a bench trial than a jury trial and the Board is more than capable of sorting the evidence and applying it to whichever officer is relevant.

The Board is presumed to be able to judge each case on the basis of the evidence uniquely applicable to each case, and Daniels and Carter have presented no evidence that the Board did not do so or that they were prejudiced in any way.   Daniels argues that the Board based its finding that she was unjustified in her use of force in shooting Haggerty on Wilson's testimony rather than on her own.   However, credibility of the officer is always an issue and all factual evidence must be considered, not just the testimony of the officer being charged.   Moreover, the Board clearly stated that, even giving full credit to Daniels' testimony, her use of deadly force was not justified because “there was simply no threat of imminent harm from Ms. Haggerty.”   Daniels was clearly not prejudiced by the consolidated hearings.

 Carter states that he was found guilty of failing to report shots fired at 95th Street despite the fact that he fired no shots and his radio was not operating, and he asserts that he should not have been tried under the same circumstances as the other officers because he did not fire his weapon.   As discussed previously, General Order 99-01 requires that an officer report shots fired by any other officer.   The Board found that Carter did not do so, either during the pursuit via Wilson's radio or in person at 64th Street.   Moreover, the Board took Carter's failure to discharge his weapon into account, stating that Carter's culpability was less than the other officers because he did not discharge his weapon at either location.   It, therefore, ordered only a one-year suspension, rejecting the superintendent's request that Carter be discharged.   Carter was clearly not prejudiced by the consolidated hearings.

2. Publicity

 As in judicial proceedings, due process requires that an impartial tribunal adjudicate in administrative proceedings.   Collura v. Board of Police Commissioners, 113 Ill.2d 361, 369, 101 Ill.Dec. 640, 498 N.E.2d 1148, 1152 (1986).   Daniels argues that the Board was not impartial given the adverse pretrial publicity her case received.   However, “ [a] mere possibility of prejudice is insufficient to show that a board, or any of its members, was biased.”  Collura, 113 Ill.2d 361, 370, 101 Ill.Dec. 640, 498 N.E.2d 1148, 1152 (1986).   In Grissom v. Board of Education of Buckley-Loda Community School District No. 8, 75 Ill.2d 314, 26 Ill.Dec. 683, 388 N.E.2d 398 (1979), our supreme court held:

“ ‘Mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not, however, disqualify a decisionmaker.  [Citations.]  Nor is a decisionmaker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not “capable of judging a particular controversy [fairly] on the basis of its own circumstances.” ’ ”   Grissom v. Board of Education of Buckley-Loda Community School Dist. No. 8, 75 Ill.2d 314, 320, 26 Ill.Dec. 683, 388 N.E.2d 398, 400 (1979), quoting Hortonville Joint School District No. 1 v. Hortonville Education Ass'n, 426 U.S. 482, 493, 96 S.Ct. 2308, 2314, 49 L.Ed.2d 1, 9 (1976), quoting United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 1004, 85 L.Ed. 1429, 1435 (1941).

If a decisionmaker is deemed qualified to judge a controversy wherein he has taken a policy position or of which he knows the facts prior to the hearing, it is highly unlikely that a board's exposure to pretrial publicity would suffice to disqualify a board or its members from judging a particular case.   As discussed previously, without a showing to the contrary, state administrators such as the Board's members are assumed to be “ ‘capable of judging a particular controversy fairly on the basis of its own circumstances.’ ”  Scott, 84 Ill.2d at 55, 48 Ill.Dec. 560, 416 N.E.2d at 1089, quoting Morgan, 313 U.S. at 421, 61 S.Ct. at 1004, 85 L.Ed. at 1435.   Daniels and Carter made no such showing here.

3. Failure to Attend Hearing

 In order for due process to be satisfied in administrative proceedings, absent express statutory language to the contrary, the agency members making the final decision need not be present when the evidence is taken as long as they consider the evidence in the report of proceedings before the hearing officer and base their findings and recommendations thereon.  Abrahamson, 153 Ill.2d at 95-96, 180 Ill.Dec. 34, 606 N.E.2d at 1120;  Homefinders, Inc. v. City of Evanston, 65 Ill.2d 115, 128, 2 Ill.Dec. 565, 357 N.E.2d 785, 791 (1976).   If the evidence before a hearing officer is in such conflict that the weight and credibility of the witnesses' testimony is the determining factor in the case, due process may require that the hearing officer participate in the Board's decision by submitting a report of his conclusions and impressions.  Ruther v. Hillard, 306 Ill.App.3d 997, 1005, 240 Ill.Dec. 85, 715 N.E.2d 772, 778 (1999);  Serio v. Police Board of the City of Chicago, 275 Ill.App.3d 259, 266, 211 Ill.Dec. 622, 655 N.E.2d 1005, 1010 (1995).

The Board stated in its “Findings and Decision”:

“[T]he members of the Police Board read and reviewed the certified transcript of the proceedings of the hearing, as well as all of the exhibits admitted into evidence.   Thomas E. Johnson, Hearing Officer, made an oral report and conferred with the Police Board about the evidence and the credibility of the witnesses before the Board rendered its decision.”

Due process requirements were clearly met here because the Board heard an oral report from the hearing officer;  conferred with the hearing officer;  discussed witness credibility with him;  reviewed the evidence in the case;  and, as shown by the 15-page factual analysis in the Board's written decision, based its findings on all of this information.   Accordingly, the Board members' absence from the hearing did not deny Daniels and Carter due process of law.   See Ruther, 306 Ill.App.3d at 1005, 240 Ill.Dec. 85, 715 N.E.2d at 778.

For the reasons stated above, we affirm the trial court's decision with regard to Daniels and, accordingly, the Board's decision to discharge Daniels.   We reverse the decision of the trial court with regard to Carter and reinstate the Board's decision to suspend Carter from his duties for one year.

Affirmed in part;  reversed in part.

FOOTNOTES

1.   Smith was driving on a suspended license, an offense f or which he previously had been arrested.   He was also in possession of marijuana.   Smith had been arrested for felony possession of marijuana with intent to distribute less than a month earlier and, at the time of the incident, was out on bond under the condition that he commit no further criminal acts.

Justice KARNEZIS delivered the opinion of the court:

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