FIRE AND POLICE COMMISSION MEETING MINUTES
September 23, 2002
The meeting was called to order at 7:01 p.m. In attendance were Chairman Gene Ege, Commissioner Robert Johnston, Commissioner George Beasley, Police Chief Don Thomas, and City Attorney Peter Smith. Fire Chief Bill Riddle was absent.
Motion
A motion to approve the minutes from the open session of the August 6, 2002 meeting as presented was made by Commissioner Johnston and was seconded by Commissioner Beasley. No discussion.
Vote
Ayes – 3
Nays – 0
Abstain –0
Motion
A motion to approve the minutes from the closed session of the August 6, 2002 meeting as presented was made by Commissioner Johnston and was seconded by Commissioner Beasley. No discussion.
Vote
Ayes – 3
Nays – 0
Abstain – 0
COMMUNICATIONS
OLD BUSINESS
At the present time, the Commission is still waiting for Chief Riddle to get approval from the City Council to expand the number of full-time personnel in the Fire Department. We will proceed with background checks on the candidates after this approval is obtained. Commissioner Johnston said that he was under the impression that the Fire Department had already received the approval for two new hires. Chairman Ege explained that, while the salaries for two new positions were figured into the budget that went into effect on May 1, 2002, the actual hiring of the personnel is contingent upon where the City’s revenues stand after the first six months of the fiscal year. It was necessary to start the testing process before the six-month threshold was reached, since the current eligibility list expired before that time. Chairman Ege said that he was also told that one of the current full-time fighters has been called into active military duty for at least one year. Chairman Ege said that he notified this firefighter that he would need to formally request a leave of absence from the Commission. The request will keep his position open and lock in his seniority. Because the Department will be saving some of the salary paid to this firefighter while he is gone, Chief Riddle told Chairman Ege that he thought he would be in a good position financially at the six-month threshold. However, the City Council will still need to pass an Ordinance authorizing the hiring of two new firefighters.
Chairman Ege also said that he received confirmation from Chad Legel of I/O Solutions that they will be conducting the oral examinations at an estimated cost of $2500 for the Police Sergeant orals and $2500 for the Fire Lieutenant orals, for a total of $5000. Chairman Ege said that he requested some type of overview from Mr. Legel that would explain to the candidates what the promotional oral interviews would entail. Chairman Ege indicated that he had received this and it would be given out to the candidates on the day of the written test. He will also give each of the Commissioners and both of the Chiefs copies of the questions that will be asked at the oral interviews. The Police Sergeant oral interviews will be conducted on October 14, 2002, and the orals for Fire Lieutenant on October 15, 2002. On each day, the interviews will start at approximately 10:30 in the morning and will take 30 minutes per candidate. Chairman Ege indicated that, in the case of promotional testing, there will be no minimum score that a candidate needs to receive on the written test in order take the oral exams. I/O Solutions does not require a minimum score and the Commission has not set one.
Chairman Ege also indicated that it looks as though, overall, the Commission will remain within its budget of $15,000 for the year. The $25 application fee charged for the entry-level firefighter applicants helped to offset all of the testing costs for the written exam as well as a portion of the oral exam fee. Besides the testing fees, the only other outstanding items to be paid will be for the polygraph and psychological testing of the two entry-level firefighters who will be offered employment. Next year, the Commission will only incur bills for establishing a new entry-level police officer eligibility list.
NEW BUSINESS
Since Chief Riddle was not present at the meeting, there was no new business.
Chief Thomas presented a complaint to the Commissioners against Police Officer Mark Paul. The complaint consists of two counts. Chief Thomas also indicated that he had three requests concerning this complaint. City Attorney Peter Smith explained that, within the Fire and Police Commission’s Rules and Regulations, a written complaint must be filed in quintiplicate. Chief Thomas said that he had 4 copies of the complaint – one original and three copies, along with four copies of an attachment that goes with the complaint. The attachment references a special order in the complaint. He would have a fifth copy made and presented to the Commission. He said that a copy of the complaint had already been delivered to Officer Paul approximately two hours prior to the meeting. Attorney Smith explained that, procedurally, the Commission has the discretionary right to determine if there is probable cause for a hearing. The Commission can conduct informal hearings to make this determination, if they choose to do so. However, this is not mandatory. As a second pre-hearing procedure, the Commission has the right, if it desires or if it is requested, to suspend the Officer without pay, pending the hearing. These are two matters that are procedurally available to the Commission within their discretion. Attorney Smith asked the Chief what his requests are concerning the complaint. Chief Thomas said that he would elaborate on the counts after the Commissioners had read them. His requests were as follows:
Chief Thomas offered to elaborate on his request that the Commission suspend Officer Paul without pay. He also indicated that he had documents citing case law that supports the Commission’s statutory ability to suspend the officer without pay. Attorney Smith said that it would not be necessary for him to see these documents, since he knows that this matter is referenced specifically in the enabling statute as well as within the Commission’s own rules. It indicates in Section A that the Commission may suspend any member of the Police or Fire Department against whom charges have been preferred, not found guilty, pending a hearing of the charges by the Commission. However, the suspension cannot exceed 30 days without pay at any one time.
Attorney Smith suggested that, in order to take the procedural matters in some order, the Commissioners should first consider whether or not they want to conduct a probable cause hearing. They should then consider whether or not they would want to act to suspend the Officer without pay. They should then schedule the hearing. If a hearing is scheduled, it is then necessary to notify Officer Paul, either by certified, return receipt requested, mail, or by personal delivery, both the formal complaint as filed with the Commission and the notice of the hearing date. If there is a suspension without pay, an order suspending without pay also needs to be sent to Officer Paul, either by certified, return receipt requested, mail or by personal delivery. Chairman Ege asked if it could all be delivered in the same envelope; Attorney Smith said that it could. Chairman Ege asked if Attorney Smith would be acting on behalf of the Commission to put together all of the necessary information if they decide to go forward with the suspension and the hearing. Attorney Smith indicated that he would. Attorney Smith explained that he had already given the Commissioners a copy of the Board of Fire and Police Commissioner Act Statute 65ILCS as well as a copy of the Fire and Police Commission Rules and Regulations to look over when addressing the complaint. Chairman Ege asked if the deliberations concerning what course of action the Commission will follow should be done in open or closed session. Attorney Smith answered that, while any discussion could be conducted in closed session, any action would have to be taken in open session. Although it is a personnel matter, it is because it is a complaint that all of the actions and decisions by the Commission must be conducted in open session. The Commission is thus also required to give appropriate Open Meetings Act notices to everyone as they go through this. Attorney Smith explained that, while the Commission’s deliberations can be in closed session, since the deliberations on this matter are basically procedural and not being conducted for a final decision after hearing evidence, they could also be done in open session.
Commissioner Beasley inquired as to Officer Paul’s current status. Attorney Smith explained that Officer Paul was currently on administrative suspension with pay. Chief Thomas said that this leave became effective on August 25, the day after Officer Paul’s arrest. Commissioner Beasley asked if the first step in this process would then be to suspend Officer Paul’s pay. Attorney Smith explained that the first step is actually for the Commission to decide if it wishes to conduct a probable cause hearing. The probable cause hearing would be conducted to determine if there is some evidence to indicate that it is probable that these offenses occurred and that this person committed these offenses. Based upon the strength of the complaint, the Commission may or may not feel that a probable cause hearing is necessary. The Commission does not have to conduct a probable cause hearing; it is discretionary. While the Commission has the right to conduct the probable cause hearing, it does not have to. Commissioner Johnston asked what jurisdiction made the arrest. Chief Thomas answered that Rudi Ziegler of the DeKalb County Sheriff’s Department was the arresting officer. Chairman Ege asked if the Commission would just act upon Chief Thomas’ request if they chose not to conduct the probable cause hearing. Attorney Smith explained that the next step would then be the procedural matter of suspending Officer Paul without pay, pending the final hearing. Chairman Ege asked if there would still be a hearing in this case. Commissioner Johnston said yes, there would be a hearing in order to hear the evidence and make a final determination. Attorney Smith explained that, in a probable cause hearing, all that happens is that literally someone comes in and states what they heard happened. It is used to make a low level determination that something might have happened and that this person might have done it. It is not used to determine guilt or innocence. Commissioner Johnston asked if the final hearing is then used to weigh the preponderance of evidence and then determine what penalty should be assessed that is consistent with that offense – whether there is cause for dismissal or if disciplinary action should be taken. Attorney Smith said this was correct and further explained that the Commission would also be responsible for deciding what type of disciplinary action should be taken. The Commission could do everything from suspending the Officer for a period of time without pay for up to 30 days all the way through discharge. Commissioner Beasley asked if Officer Paul could still perform his duties with a DUI. Attorney Smith answered that this is one of the questions that the Commission will have to address. Commissioner Johnston asked if any of these standards of conduct that Officer Paul has breached have been applied or tested at the Sycamore Police Department. Chief Thomas answered that these standards of conduct have been in effect for several years, prior to his arrival as Chief of Police. In fact, some of the standards have been applied to a recent suspension that was similar in nature. Commissioner Johnston asked if the Fire and Police Commission has taken action against any other Police Officer for the same offense, specifically arrested for being under the influence while not on duty. Chief said that he was not aware of any. Commissioner Johnston asked if the Commission would be allowed to discuss the counts. Attorney Smith answered that the Commissioners need to remember that they are only in a preliminary phase to determine probable cause. Commissioner Johnston asked the Chief to verify, in the counts against Officer Paul, that he issued a policy on July 24th about the securing of firearms. One month later on August 24th , Officer Paul was arrested for driving under the influence, and then two weeks later, the Sycamore Police Department responded to a domestic disturbance at Officer Paul’s residence that was called in by his wife. Upon Mrs. Paul’s request that Officer Paul’s firearm be removed from the residence, the responding officers discovered that the firearm was not secured and there were children present in the house. Chief Thomas responded that all of this was true. Commissioner Johnston asked if it was acceptable at this time for the Commissioners to ask Chief Thomas what Officer Paul has said about these counts. Attorney Smith suggested that it would be best to leave this for the full hearing on this matter.
Commissioner Beasley asked Commissioner Johnston if he thought there is enough cause just with the DUI charge stemming from Officer Paul’s motorcycle accident, without involving the firearms matter. Commissioner Johnston said that he did. Commissioner Beasley said that this is what he is basing his decision on. Chief Thomas said that, for the limited purpose of supporting his request for the suspension of Officer Paul without pay, he has a 62-page transcript of an interview that he conducted with Officer Paul. A court reporter was present at this interview. Officer Paul was represented by counsel and by an Fop representative. Chief Thomas was represented by his own counsel as well. Chief Thomas said that he did the questioning and Officer Paul himself answered the questions. If necessary, Chief Thomas said that he was ready to submit this transcript into evidence for the limited purpose of supporting his request for suspension without pay. Chief Thomas feels that these are very serious charges and that he has what actually establishes an admission to these all of the charges on the part of Officer Paul. Attorney Smith stated that a hearing was not yet scheduled. Commissioner Beasley said that he did not think that it was necessary to use the transcript at this point, since he feels that there is a finding for probable cause without it. Commissioner Johnston agreed. Commissioner Beasley said that, at this point, he was willing to make a motion to suspend Officer Paul immediately without pay for the recommended 30 days, based upon the documents that were presented to the Commission. Commissioner Beasley wondered if thirty was the maximum numbers of days the officer could be suspended. Attorney Smith verified that 30 days was the maximum allowed and the Commission must also hold a hearing within 30 days of the date of the charges.
Motion
A motion to suspend Officer Mark Paul immediately without pay for up to thirty days from the date of the charges or until a determination is made by the Fire and Police Commission as a result of a hearing, whichever comes sooner, was made by Commissioner Beasley and was seconded by Commissioner Johnston. No further discussion.
Vote
Ayes – 3
Nays – 0
Abstain –0
Chairman Ege asked if a roll call vote was needed. Attorney Smith said that it was not necessary.
Chief Thomas also requested that a date for the hearing be set. He indicated that he had a list of preferred dates for the hearing, as these were times that both he and his attorney would be available. The dates listed were October 9th, October 18th, or October 21, 2002. He pointed out that all three of these dates fell within the 30 days in which the Commission was required to conduct the hearing. Commissioners Johnston and Beasley indicated that they were available on October 9th or October 21st, with Commissioner Beasley adding that he would prefer the 9th. Chairman Ege said that he also preferred the 9th, as the City Council meets on October 21st. Chairman Ege said that the hearing would need to be conducted in a larger room, such as the Council Chambers, since it would be open to the public. Chief Thomas said that, if the Commission chooses to hold the hearing on October 21st, he would assist them in finding a facility in which to meet. Attorney Smith said he would also be available on October 9th or October 21st, but pointed out that the 21st would be 28 days from the date of the charges. Commissioner Beasley wondered if October 9th would be the best date. Chairman Ege said that he was concerned that this may be too soon, and that Officer Paul’s attorney would ask for a continuance. He pointed out that, by the time Attorney Smith delivered the hearing notice to Officer Paul, the officer would have less than two weeks to prepare for the hearing. Attorney Smith said that he would prepare the documents on the following morning and that they would be ready for delivery and will be mailed by noon. Commissioner Johnston asked if the members of the Commission needed to sign the documents. Attorney Smith said they did not, but if for some reason he did need a signature, he could ask Chairman Ege, as his would be the only one that is required. Chief Thomas said that Officer Paul had told him several times that he would like the hearing to be conducted as soon as possible, since he will be suspended without pay. Chief Thomas said that he did, however, understand the Commissioners concerns about giving Officer Paul enough notice. Commissioner Beasley said that he would agree with whatever Chairman Ege thought was best. Chairman Ege said that he would like to hold the hearing on October 9th and that, if Officer Paul needed a continuance, he could then request one. Chairman Ege thought that 7:00 p.m. would be a good time to start the hearing. Chairman Ege asked if Peter Smith would be sending out the Public Notice. Attorney Smith said that he would take care of it.
Motion
A motion to hold a public hearing on October 9, 2002 at 7:00 p.m. in the City Council Chambers concerning the charges brought against Officer Mark Paul by Chief of Police Don Thomas was made by Commissioner Beasley and was seconded by Commissioner Johnston.
Vote
Ayes – 3
Nays – 0
Abstain –0
Ms. Tritle clarified that the hearing will still take place on October 9th, even if the Council Chambers are unavailable that night. Chairman Ege confirmed that the hearing would take place that evening, but may be moved to a different location if the need arises.
Attorney Smith said that, in light of the decisions made by the Commissioners at this meeting, as their attorney, he will send out by registered or certified mail, return receipt requested, or personally have delivered to Officer Paul, a copy of the complaint in its entirety and a notice of the time and place of the hearing on the charges. He will also notify Officer Paul of the entry of an Order of Suspension by the Commission. The Order will also be sent out by registered or certified mail, return receipt requested, or personally delivered to Officer Paul. Procedurally, all of the requirements have now been covered.
Chairman Ege said that there was no need for a closed session at this meeting, since all items were covered in the open session. He asked Chief Thomas if he had anything else to add. Chief Thomas said that he would like to share something that was public knowledge about this case. At the same time that Chief Thomas put Officer Paul on administrative leave with pay, he was sent for a psychological evaluation regarding alcohol abuse. He was sent to a doctor that the Chief had chosen, and there was no confidentiality between the doctor and Officer Paul, as it was understood that the doctor was acting as the Chief’s agent for the purpose of evaluation as well as for the purpose of recommending a treatment plan, if the evaluation disclosed that one was necessary. Chief Thomas stressed that this was made clear to Officer Paul and that he would be meeting with Officer Paul on Friday, along with his counsel and FOP representative. The Chief’s counsel would also be present. The purpose of this meeting is to let Officer Paul know what professional course of action he could take for any medical, emotional, or psychological problems that he is having. This will a part of the City’s Employee Assistance Program. The Chief indicated that he intends to make it clear to Officer Paul that anything that results from this treatment plan, as well as any cooperation extended on his part, will be brought forward at the appropriate phase during the hearing process. The Chief said that everyone in his department knows the direction that he is taking with Officer Paul, and he felt it was important to also pass this information along to the Commissioners.
Attorney Smith verified with Chief Thomas that, for purposes of proper notification, his counsel is Thomas McGuire from Long Grove, Illinois. Chief Thomas verified that the local representative from the FOP assisting Officer Paul is Officer Michael Larmon, and Attorney John R. Roche, Jr. is representing the Illinois Fraternal Order of Police Labor Council. Attorney Roche is located at 5600 South Wolf Road, Western Springs, IL, 60558. Chief Thomas said that he believes Officer Paul has different representation for his criminal charge. Attorney Smith asked Chief Thomas if any other individuals have been involved on behalf of Officer Paul. Chief Thomas said no.
Chairman Ege asked if the Commission needed to meet again before the hearing in order to approve the minutes of tonight’s meeting. Attorney Smith said no. Chairman Ege asked Chief Thomas if it was standard procedure for law enforcement agencies with regards to DUI cases that charges are brought for termination of the officer’s employment. Chief Thomas answered it is standard that charges be brought and, in most cases, termination is the initial recommendation. Chief Thomas pointed out that Officer Paul’s case is exacerbated by another count.
Commissioner Johnston asked if Officer Paul, or the FOP on his behalf, has filed a grievance on the action taken thus far. Chief Thomas said no, as the only action he has taken thus far was placing Officer Paul on administrative leave with pay. Chief Thomas said that he would not allow Officer Paul to remain on administrative leave with pay due to the serious nature of the charges; he does not want this to amount to a paid vacation for the officer while he is awaiting his hearing. He said that Officer Paul’s actions at the time of his arrest, as well as his actions since then, point to his judgment, his discretion, and to officers’ safety. Chief Thomas said he couldn’t have Officer Paul working in the department until the Commission has had a chance to consider these charges. Chairman Ege asked if, once the complaint comes to the Commission, it is not longer a grieveable offense. Attorney Smith said that was correct. It goes through the Commission’s hearing and determination and if there is to be any further proceeding, it would go through the Illinois Administrative Procedures Act. Chief Thomas verified that Officer Paul has not filed any grievances with his labor group on any of the counts.
ADJOURNMENT
Motion
A motion to adjourn the meeting was made by Commissioner Beasley and was seconded by Commissioner Johnston.
Vote
Ayes – 3
Nays – 0
Abstain –0
The meeting was adjourned at 7:45 p.m.
Minutes accepted by:
_______________________________
Gene Ege, Chairman Date
Attest:
_______________________________
Jean Tritle, Recording Secretary Date