Police Board Can Increase Disciplinary Penalty

Where public safety employees do not have “at-will” status, there are three ways of appealing discipline: to arbitration, to court, or to some form of police, fire or civil service board. Those unused to this third option may find it surprising that the hearing boards may have the ability to actually increase the discipline imposed by the employer.

And so it was in the case of Chicago police officer Steven Lesner. On February 17, 2009, Lesner and two officers in a beat car responded to a call of an argument between Catherine Weiland and her boyfriend at a restaurant on Chicago’s north side. The officers removed Weiland’s boyfriend from the restaurant. Weiland lived nearby and had a car. Lesner thought Weiland seemed distraught and offered to drive her home in his police car.

On the way, Weiland asked Lesner to stop and buy a bottle of wine. Lesner agreed. In uniform, Lesner went into a store and bought wine. When they arrived at Weiland’s apartment, Lesner helped Weiland carry her things inside. He stayed for about 40 minutes and talked to Weiland and to her brother and father, who lived in separate units in the three-flat building. Weiland and her brother were concerned about Weiland’s car. Lesner agreed to drive them to the restaurant to retrieve it. Before returning to patrol duty, Lesner gave Weiland his card on which he wrote his personal cell phone number.

When Lesner’s shift ended, he received a call from Weiland inviting him out for a drink. Lesner declined but accepted her invitation to come to her apartment for a drink and watch television. Weiland asked Lesner to buy more wine on the way. Before leaving the station, Lesner put his duty firearm in his locker and strapped his auxiliary firearm to his ankle. On his way over to Weiland’s apartment, Lesner bought Weiland some wine and a six-pack of beer for himself.

At the apartment, Lesner removed his auxiliary weapon from his ankle holster and placed both on the floor next to his seat. Lesner testified that he took off the gun when he thought Weiland wasn’t looking, because he had his feet on a table and “it looks kind of stupid.” About an hour later, Weiland said she needed to take her medication, left the room, and returned with a large pill box. Lesner, who had drunk three or four beers, excused himself to use the bathroom. Weiland picked up Lesner’s gun and shot herself in the head.

Lesner was not immediately disciplined but given other police duties for a few weeks. On March 1, 2011, Lesner returned to patrol duties, where he remained for 2½ years, until the Superintendent filed disciplinary charges against him on September 11, 2013. The Superintendent and Lesner negotiated a stipulation under which Lesner would accept the 60-day suspension. The stipulation would have no effect should the Police Board reject the agreed upon suspension.

Chicago’s Police Board rejected the stipulation and ordered Lesner’s termination. The Board’s decision was upheld by the Illinois Court of Appeals.

The Court noted that “the Chicago Police Board is an independent board of nine civilians responsible for deciding the most serious police disciplinary cases. The Police Board has the task of making ‘findings and decisions,’ which ‘when approved by the Board, shall be certified to the superintendent and shall forthwith be enforced by the superintendent.’

“One could argue that the Police Board hearing determines only if the recommended suspension is too harsh rather than not harsh enough, but the remainder of the City’s code and relevant state statutes refutes that assertion. A reasonable construction of the words of the statute and ordinance give the superintendent authority to recommend discipline and the Police Board authority to hold a hearing, make its own findings of fact, and issue a decision, which the superintendent is charged with enforcing. Although the Police Board may accept the supervisor’s or the hearing officer’s recommendation, this does not preclude the Police Board from rejecting the recommendation and taking disciplinary action that imposes a more onerous penalty or a lesser penalty than the one recommended.

“Based on our review of the record and the Police Board’s rationale for its decision to discharge Lesner, we cannot say the Police Board’s decision was unreasonable, arbitrary, or unrelated to the requirements of service. Safety precautions in handling, safekeeping, cleaning, transporting, and firing his or her weapon is a basic responsibility of every police officer. Although the officer may be off duty at the time of the improper use of his or her weapon, case law does not draw on this distinction in regard to the seriousness of the misconduct. As the Police Board concluded, Lesner ignored several department rules and exhibited a complete lack of judgment by purchasing alcohol while in uniform for a woman who was distraught over a domestic dispute, using his position to further a personal relationship with her, and leaving a loaded gun in her presence, which resulted in her death.”

Lesner v. Police Board, 2016 IL App (1st) 150545 (Ill. App. 2016).