{ "id": 1336143, "name": "PAUL RUTHER, Plaintiff-Appellee, v. TERRY G. HILLARD, Superintendent of Police, et al., Defendants-Appellants", "name_abbreviation": "Ruther v. Hillard", "decision_date": "1999-08-06", "docket_number": "No. 1-98-0775", "first_page": "997", "last_page": "1006", "citations": [ { "type": "official", "cite": "306 Ill. App. 3d 997" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "498 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "\"where credibility is a determining factor in a case, we believe the presiding administrative law judge must participate in the decision\"" } ], "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 497", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3604798 ], "year": 1986, "pin_cites": [ { "page": "500", "parenthetical": "\"where credibility is a determining factor in a case, we believe the presiding administrative law judge must participate in the decision\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0497-01" ] }, { "cite": "435 N.E.2d 761", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 93", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3033134 ], "year": 1982, "pin_cites": [ { "page": "98-99" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0093-01" ] }, { "cite": "655 N.E.2d 1005", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "275 Ill. App. 3d 259", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 906752 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "266" }, { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/275/0259-01" ] }, { "cite": "357 N.E.2d 785", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "65 Ill. 2d 115", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5436215 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "128" }, { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0115-01" ] }, { "cite": "307 N.E.2d 371", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "56 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405346 ], "year": 1974, "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0351-01" ] }, { "cite": "606 N.E.2d 1111", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "153 Ill. 2d 76", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738801 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "88" }, { "page": "88" }, { "page": "88" }, { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0076-01" ] }, { "cite": "603 N.E.2d 477", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "151 Ill. 2d 419", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3291708 ], "year": 1992, "pin_cites": [ { "page": "427-28" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0419-01" ] } ], "analysis": { "cardinality": 873, "char_count": 20441, "ocr_confidence": 0.754, "pagerank": { "raw": 1.2011131112694313e-07, "percentile": 0.5936790137185605 }, "sha256": "914cc833c4090325c42b17f4a297b361bed26a50caaa1c60348bcf93178ba2c3", "simhash": "1:cac7410d0fa9c1c5", "word_count": 3193 }, "last_updated": "2023-07-14T19:16:55.452164+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "GREIMAN and THEIS, JJ., concur." ], "parties": [ "PAUL RUTHER, Plaintiff-Appellee, v. TERRY G. HILLARD, Superintendent of Police, et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nFollowing an administrative hearing, the Police Board of the City of Chicago (Board) discharged plaintiff Paul Ruther from the Chicago police department (Department) for violating certain departmental rules and regulations. On administrative review, the circuit court reversed the Board\u2019s decision, finding it against the manifest weight of the evidence. The Board appeals, contending that the circuit court erred in reweighing the hearing officer\u2019s and the Board\u2019s credibility determinations.\nOn January 7, 1994, the Chicago police department superintendent of police filed charges with the Board against Ruther, a Chicago police detective, alleging that, on November 23, 1993, Ruther solicited a bribe. Also charged at this time with violations of departmental rules and regulations was Sergeant Chris Zaglifa, one of Ruther\u2019s superiors.\nEvidence adduced at Ruther\u2019s hearing established that, on November 13, 1993, Ruther was assigned to investigate a report of illegal dumping of waste barrels on the west side of Chicago. His investigation revealed that several of the barrels involved were owned by Javo-Mex Corporation, a manufacturer of detergents and solvents. On November 15, 1993, Ruther spoke with employees at Javo-Mex and learned how the company disposed of the barrels. According to two Javo-Mex employees, when the barrels were empty, they were stored on the premises until another company, Jakacki Bag & Barrel (Jakacki), removed those barrels for reconditioning. Determining that the Javo-Mex facility \u201clooked secure,\u201d Ruther continued his investigation at Jakacki. A few days later, Ruther received a call from the owner of Jakacki, who told Ruther that someone named \u201cMike\u201d also may have received barrels from Javo-Mex. Ruther documented his investigation in several police reports.\nSeveral days later, on November 23, 1993, at 10 a.m., Ruther and Zaglifa went to Javo-Mex. There, they waited for two hours before speaking with the owner of Javo-Mex, Joseph Cuevas, in Cuevas\u2019 office. It was during this meeting that the bribe demand allegedly occurred. Although Ruther denied being present for any discussions relating to the bribe, Cuevas testified that Ruther explicitly requested $10,000 to halt the investigation into illegal dumping.\nAccording to Cuevas, while in his office, Zaglifa advised him that he had \u201cserious\u201d problems regarding the dumping of Javo-Mex barrels. Zaglifa then told Cuevas that, because he was his \u201cfriend\u201d he would \u201csquash\u201d the investigation, but it would be expensive. Zaglifa left the room momentarily, telling Cuevas that Ruther would discuss that matter further. While Zaglifa was gone, Ruther took out a piece of paper and wrote \u201c$10,000\u201d on it, passing it to Cuevas. Cuevas then asked what it meant and Ruther responded that \u201cthis is what it would cost *** to dispose of the case.\u201d Cuevas attempted to keep the piece of paper, but Ruther took it from him, explaining that he did \u201cnot want this to be floating around as evidence.\u201d\nWhen Zaglifa returned to the office, Cuevas remarked that \u201cthis guy wants $10,000,\u201d to which Zaglifa responded, \u201cno shit.\u201d Although expressing surprise, Zaglifa explained the high cost, stating that he had \u201cto take care of a lot of people.\u201d During the meeting, Ruther left the office several times. Cuevas then told Zaglifa that he needed time to think about it and would call him later. Zaglifa told Cuevas not to discuss the matter with anyone; he and Ruther then left Cuevas\u2019 office. Sometime later that afternoon, Ruther called Cuevas, but Cuevas told him that he preferred to deal with Zaglifa and would call him later.\nBefore calling Zaglifa, Cuevas spoke to three long-time employees who advised him to contact Javo-Mex\u2019s attorneys. Those attorneys, in turn, advised Cuevas to contact the Chicago police department, which he did shortly thereafter. As a result of Cuevas\u2019 information, an internal investigation was instituted by the police and State\u2019s Attorney\u2019s office.\nWith Cuevas\u2019 permission, Sergeant Steven Jackson of the Chicago police department internal affairs division (IAD) listened to telephone conversations between Zaglifa and Cuevas in November 1993. During a November 29, 1993, telephone call, Cuevas and Zaglifa confirmed a planned November 30, 1993, meeting and Zaglifa told Cuevas that the \u201cnumbers\u201d (or bribe amount) \u201cwould have to stay the same.\u201d Sergeant Jackson\u2019s affidavit, containing information relayed to him by Cuevas and also a synopsis of the content of the telephone calls, was then prepared by the State\u2019s Attorney\u2019s office to obtain an order for a confidential overhear (COH).\nThe November 30, 1993, meeting between Zaglifa and Cuevas took place in Cuevas\u2019 office and was audiotaped pursuant to the COH order; the content of the tape was admitted at Ruther\u2019s hearing. At that meeting, Cuevas brought $10,000 and gave it to Zaglifa. Zaglifa then explained to Cuevas that he was getting none of the money; rather, 17 or 18 people in the \u201cbig wheel\u201d were getting the bribe money. When Cuevas asked about the whereabouts of \u201chis buddy\u201d (Ruther) and expressed his concern because he did not know Ruther, Zaglifa stated that Ruther was \u201cat a meeting with the Environmental Protection people\u201d and told Cuevas to \u201ctrust\u201d him and not \u201cworry\u201d about Ruther. Zaglifa further stated that he was the man in charge and Cuevas had to trust only him. Zaglifa then began a lengthy discussion of his desire to return to his previous security job at Javo-Mex. Zaglifa and Cuevas also briefly discussed \u201cMike.\u201d\nAfter Cuevas\u2019 testimony, Ruther testified to a significantly different scenario. According to Ruther, after he had begun his investigation and had discovered the possible involvement of \u201cMike\u201d in the dumping, Zaglifa approached Ruther and told him to put his investigation \u201con hold until he had a chance to look into it.\u201d Ruther made a note of Zaglifa\u2019s request and placed it in his investigative file. The undated, unsigned \u201cnote\u201d stated, \u201cI was instructed to put this part of the investigation on hold by Sgt. Big.\u201d\nOn November 23, 1993, Zaglifa approached Ruther after roll-call and asked Ruther to accompany him to Javo-Mex that morning. Although Ruther did not want to go because he was preparing to leave on vacation that evening, he had \u201cno choice.\u201d Ruther testified that he and Zaglifa arrived at Javo-Mex at 10 a.m. and waited until noon to see Cuevas. The three went to Cuevas\u2019 office where they spoke for approximately two hours.\nRuther denied ever soliciting a bribe or even speaking with Cuevas about money. Instead, he testified that he left the office five or six times, making phone calls, returning pages, and arranging his travel plans for later that evening. Ruther further denied calling Cuevas that afternoon. Ruther acknowledged that he did not document or even mention this meeting in his reports.\nRuther then presented the testimony of three present and two former Chicago police officers who had known Ruther from 1 to 11 years; they each described Ruther\u2019s truthfulness and integrity.\nAt the close of the evidence, the hearing officer made her recommendation to the Board. After the hearing officer \u201cmade an oral report of the evidence adduced and the credibility of the witnesses and conferred with the *** Board,\u201d the Board found Ruther guilty of violating departmental rules and regulations. Specifically, the Board found that Ruther violated Rules 1 (\u201cViolation of any law or ordinance\u201d), 2 (\u201cAny action or conduct which impedes the Department\u2019s efforts to achieve its policy and goals or brings discredit on the Department\u201d) and 4 (\u201cAny conduct or action taken to use the official position for personal gain or influence\u201d) in that \u201cRuther solicited a $10,000 bribe.\u201d The Board then \u201cseparated and discharged\u201d Ruther from his position as a detective in the Department.\nRuther filed a complaint for administrative review of the Board\u2019s decision. The circuit court heard argument and reviewed the transcript of the hearing, after which it found that \u201ca review of Mr. Cuevas\u2019 testimony raises serious questions of his credibility.\u201d The court further characterized Cuevas\u2019 testimony as \u201cevasive, vague, and contradictory.\u201d Noting that the transcript from the audiotape of the November 30, 1993, meeting between Zaglifa and Cuevas contained only \u201cpassing\u201d reference to Ruther, the court found that the tape \u201craises questions about Mr. Cuevos\u2019 [sic] prior dealing with [Zaglifa], and these questions further erode the credibility of\u2019 Cuevas. Finding that the totality of the evidence failed to support the conclusion reached by the Board, the court held that \u201cthe findings of the Police Board are against the manifest weight of the evidence because an opposite conclusion *** is clearly evident.\u201d The Board appeals the court\u2019s order reversing its decision.\nInitially, the Board maintains that the circuit court erred because it substituted its judgment of the credibility of witnesses for that of the hearing officer and Board. In response, Ruther asserts the evidence adduced at the hearing did not support the Board\u2019s finding and, therefore, that finding was against the manifest weight of the evidence.\nThe Board is an administrative agency whose findings of fact on review \u201cshall be held to be prima facie true and correct.\u201d 735 ILCS 5/3 \u2014 110 (West 1996). On administrative review, a circuit court inquires only as to whether the findings are against the manifest weight of the evidence; its purpose is not to resolve factual inconsistencies, nor to reweigh the evidence to determine where the preponderance of the evidence lies. Launius v. Board of Fire & Police Commissioners, 151 Ill. 2d 419, 427-28, 603 N.E.2d 477 (1992). An administrative agency\u2019s decision is against the manifest weight of the evidence \u201conly if the opposite conclusion is clearly evident.\u201d Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111 (1992). The fact that a contrary conclusion is reasonable or the court would have ruled differently does not authorize reversal of the agency\u2019s decision. Abrahamson, 153 Ill. 2d at 88. The court must not substitute its judgment for that of the administrative agency; rather, if the record contains evidence to support the agency\u2019s findings, its decision should be affirmed. Abrahamson, 153 Ill. 2d at 88.\nIn the instant case, the hearing testimony consisted primarily of two witnesses \u2014 Cuevas and Ruther \u2014 who offered two different versions of the events of November 23,1993. According to Cuevas, Ruther told him that it would cost $10,000 \u201cto dispose of the case.\u201d Ruther, on the other hand, denied soliciting a bribe on November 23, 1993, but instead maintained that he left the office numerous times and was preoccupied with his upcoming vacation. He further testified that he never heard Cuevas or Zaglifa discuss a bribe while in the office.\nAlthough the hearing officer and the Board found Cuevas\u2019 testimony credible, the circuit court reversed the Board\u2019s finding, discounting Cuevas\u2019 testimony as \u201cevasive, vague, and contradictory.\u201d Supporting its finding, the court noted that, during their November 30, 1993, meeting, Zaglifa and Cuevas made only \u201cpassing\u201d reference to Ruther. The court further emphasized Cuevas\u2019 \u201cprior dealing\u201d with Zaglifa. Likewise, the court pointed to Zaglifa\u2019s telephone conversation with Cuevas on November 29, 1993 (overheard by Sergeant Jackson), in which Zaglifa \u201cconfirmed the amount of the bribe\u201d; the court then found that Zaglifa\u2019s confirmation of the bribe \u201ccontradicts the Board\u2019s contention and Mr. Cuevos\u2019 [sic] testimony [that] Detective Ruther requested $10,000.\u201d Additionally, the court pointed to the testimony of Sergeant Jackson of the IAD, noting that no phone records were produced to prove that Ruther called Cuevas after allegedly requesting the bribe and that Sergeant Jackson\u2019s affidavit did not document that call.\nIn contradistinction to its negative perception of Cuevas\u2019s credibility, the circuit court emphasized Ruther\u2019s unblemished career with the Department. The court further noted that Ruther had documented Zaglifa\u2019s request to put his investigation \u201con hold,\u201d supposing that the \u201conly reason [Ruther] stops [his investigation] is because [Zaglifa] tells him to stop, so it seems *** there is no hard evidence produced linking Detective Ruther to the alleged misconduct.\u201d\nIn so finding, however, the circuit court erroneously reweighed the evidence before the Board, making contrary credibility determinations. Here, despite the court\u2019s explicit finding, a conclusion opposite the Board\u2019s is not clearly evident. On the contrary, the evidence presented at the hearing supports the Board\u2019s finding and, therefore, that finding is not against the manifest weight of the evidence.\nThe circuit court discounted Cuevas\u2019 testimony because of his \u201cdealings\u201d with Zaglifa. Although it could be inferred that Cuevas\u2019 prior relationship with Zaglifa might motivate him to somehow protect Zaglifa, it is unclear how these prior dealings would cause Cuevas to falsely accuse Ruther. In any event, Cuevas clearly implicated both Zaglifa and Ruther, not just Ruther.\nNevertheless, Ruther suggests that Cuevas falsely implicated him in order to stall the investigation regarding Javo-Mex. For support, Ruther points to the undisputed fact that Javo-Mex was no longer under investigation and that Sergeant Jackson worked as the new security chief for Javo-Mex. How these facts, however, give rise to Cuevas\u2019 alleged motivation to lie about Ruther\u2019s involvement is unclear. When Cuevas initially identified both Zaglifa (by name) and Ruther (by description) to IAD, he did not know Ruther and there is no evidentiary basis to suggest that Cuevas could have known or expected that by implicating two police officers, as opposed to just Zaglifa, the investigation into illegal dumping would stop.\nRuther characterizes his own testimony as \u201cthe only credible and verifiable evidence,\u201d but in so doing ignores the fact that Cuevas\u2019 testimony that Ruther asked for $10,000 to halt the investigation was never contradicted by any extrinsic evidence other than Ruther\u2019s own testimony. Although he points to numerous portions of the record where he suggests that Cuevas \u201chad something to hide,\u201d \u201cobfuscated\u201d and was \u201cless than forthcoming,\u201d the record also reveals that much of Cuevas\u2019 defensiveness was due to defense counsel arguing with him; in fact, counsel was admonished numerous times to refrain from arguing with the witness.\nAt most, the evidence conflicted regarding what occurred in Cuevas\u2019 office during the November 23, 1993, meeting. Cuevas\u2019 testimony was not, however, \u201ctotally discredited\u201d nor was its acceptance against the manifest weight of the evidence. See, e.g., Basketfield v. Police Board, 56 Ill. 2d 351, 359, 307 N.E.2d 371 (1974). Cuevas implicated both Ruther and Zaglifa (his \u201cfriend\u2019s\u201d son). Both Ruther and Zaglifa went to Javo-Mex for approximately four hours on November 23, 1993, and met with Cuevas in his office from noon until approximately 2 p.m. Ruther did not prepare a report of this meeting. Cuevas immediately spoke to his employees, attorneys and the police after the meeting, implicating both Zaglifa and Ruther. Seven days later, Cuevas presented Zaglifa with the $10,000. The circuit court, therefore, erred in finding that the Board\u2019s decision was against the manifest weight of the evidence.\nRuther also claims that he was denied due process of law because the hearing officer did not specifically document the reason why she presumably determined that Cuevas was more credible than Ruther. Ruther insists that the hearing officer\u2019s report and the Board\u2019s findings are unreviewable because neither states the basis for its findings.\nAn administrative proceeding is governed by the principles of due process; however, procedural due process in an administrative hearing does not require a proceeding in the nature of a judicial proceeding. Abrahamson, 153 Ill. 2d at 92. Administrative proceedings may be conducted by hearing officers who refer the case for final determination to a decision-making board which has not heard the evidence in person. Homefinders, Inc. v. City of Evanston, 65 Ill. 2d 115, 128, 357 N.E.2d 785 (1976). Absent a statute to the contrary, due process is satisfied \u201cif the decision-making board considers the evidence contained in the report of proceedings before the hearing officer and bases its determinations thereon.\u201d Homefinders, 65 Ill. 2d at 128. Due process, however, may require that the hearing officer participate in the Board\u2019s decision by submitting a report of her conclusions and impression \u201c \u2018if the evidence before a hearing officer or examiner is in such conflict that the weight and credibility to be given the testimony of various witnesses is the determining factor.\u2019 \u201d Serio v. Police Board, 275 Ill. App. 3d 259, 266, 655 N.E.2d 1005 (1995), quoting American Welding Supply Co. v. Department of Revenue, 106 Ill. App. 3d 93, 98-99, 435 N.E.2d 761 (1982); see also Quincy Country Club v. Human Rights Comm\u2019n, 147 Ill. App. 3d 497, 500, 498 N.E.2d 316 (1986) (\u201cwhere credibility is a determining factor in a case, we believe the presiding administrative law judge must participate in the decision\u201d).\nRuther acknowledges that the hearing officer \u201cmade an oral report of the evidence adduced and the credibility of the witnesses and conferred with the Police Board before it rendered its decision.\u201d Moreover, the record is clear that the Board reviewed all the evidence, including the transcript of proceedings of the hearing. Nevertheless, he insists that due process was violated because the hearing officer did not provide a written justification for her determinations. He contends that, because neither the hearing officer nor the Board \u201cprovided any reviewable facts, statements, impressions, opinions, conclusions, inferences or anything at all to support the credibility determination they obviously made,\u201d the circuit court \u201cwas precluded from any meaningful analysis of the factual basis for the credibility determination.\u201d We disagree.\nDue process was provided where the Board conferred with the hearing officer and reviewed all the evidence and the transcript of proceedings. Both the hearing officer and the Board provided a written order containing the findings and decision. This order, coupled with the evidence and transcript of proceedings, was sufficient for review both in the circuit court and in this court. This record reveals that Ruther received all the process that was due him. See Serio, 275 Ill. App. 3d at 266.\nFor the forgoing reasons, we reverse the judgment of the circuit court and reinstate the decision of the Board.\nReversed.\nGREIMAN and THEIS, JJ., concur.\nAt the time of the charges, Ruther had been employed by the Department since 1971: the first six years as an officer and the remaining years as a detective. During those years, Ruther earned 2 commendations and 25 honorable mentions and never had been disciplined by the Department; further, prior to the bribe allegation, no complaints ever had been lodged against him.\nZaglifa was charged with both soliciting and accepting a bribe. Prior to his case being heard by the Board, Zaglifa resigned from his position with the Chicago police department.\nCuevas had known Zaglifa for several years. Zaglifa\u2019s father was one of Cuevas\u2019 friends and Zaglifa had once worked as head of security for Javo-Mex to supplement his police income. Zaglifa\u2019s employment with Javo-Mex had been terminated, however, when the company hired an outside security firm.\nAlthough Sergeant Jackson testified that Cuevas had told him about Ruther\u2019s telephone call in the late afternoon on November 23, 1993, his affidavit did not mention that call; Sergeant Jackson described that absence as an \u201coversight.\u201d Further, no telephone records were admitted corroborating the call.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Mara S. Georges, Acting Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Carole Silver, Assistant Corporation Counsel, of counsel), for appellants.", "Collins & Bargione, of Chicago (Gregory A. Bedell, of counsel), for appellee." ], "corrections": "", "head_matter": "PAUL RUTHER, Plaintiff-Appellee, v. TERRY G. HILLARD, Superintendent of Police, et al., Defendants-Appellants.\nFirst District (5th Division)\nNo. 1\u201498\u20140775\nOpinion filed August 6, 1999,\nnunc pro tunc June 4, 1999.\nRehearing denied July 28, 1999.\nMara S. Georges, Acting Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Carole Silver, Assistant Corporation Counsel, of counsel), for appellants.\nCollins & Bargione, of Chicago (Gregory A. Bedell, of counsel), for appellee." }, "file_name": "0997-01", "first_page_order": 1015, "last_page_order": 1024 }