{ "id": 12145522, "name": "ROBERT MURBACH, Plaintiff-Appellee, v. DAVID ANDERSON et al., Defendants-Appellants", "name_abbreviation": "Murbach v. Anderson", "decision_date": "1981-05-18", "docket_number": "No. 80-1755", "first_page": "1015", "last_page": "1020", "citations": [ { "type": "official", "cite": "96 Ill. App. 3d 1015" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "329 N.E.2d 869", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "29 Ill. App. 3d 233", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2496490 ], "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0233-01" ] }, { "cite": "79 Ill. 2d 609", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "390 N.E.2d 492", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 877", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5581409 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "880-81" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0877-01" ] }, { "cite": "367 N.E.2d 684", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "67 Ill. 2d 276", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5812461 ], "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0276-01" ] }, { "cite": "91 S. Ct. 2229", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "29 L. Ed. 2d 695", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "403 U.S. 918", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12032961, 12032903, 12032748, 12032461, 12032813, 12032495, 12032529, 12032595, 12032863, 12032696, 12032639 ], "opinion_index": 0, "case_paths": [ "/us/403/0918-11", "/us/403/0918-10", "/us/403/0918-07", "/us/403/0918-01", "/us/403/0918-08", "/us/403/0918-02", "/us/403/0918-03", "/us/403/0918-04", "/us/403/0918-09", "/us/403/0918-06", "/us/403/0918-05" ] }, { "cite": "269 N.E.2d 713", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "47 Ill. 2d 469", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905836 ], "year": 1971, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0469-01" ] } ], "analysis": { "cardinality": 645, "char_count": 11617, "ocr_confidence": 0.903, "pagerank": { "raw": 1.7926593805397283e-07, "percentile": 0.7152218140903196 }, "sha256": "d874f4f31e70c1a1a9e20d26c40c9d7ff38221ac2418be6734380b19fa9dc25c", "simhash": "1:b9e7e68eb3667450", "word_count": 1843 }, "last_updated": "2023-07-14T16:31:40.709125+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McGLOON and O\u2019CONNOR, JJ., concur." ], "parties": [ "ROBERT MURBACH, Plaintiff-Appellee, v. DAVID ANDERSON et al., Defendants-Appellants." ], "opinions": [ { "text": "Mr. JUSTICE GOLDBERG\ndelivered the opinion of the court:\nRobert Murbach (plaintiff) sought a position as fireman in the village of Schiller Park, Illinois. The Board of Police and Fire Commissioners of the village (defendants) refused to appoint him. After administrative review, the trial court ordered defendants forthwith to appoint and certify plaintiff to the position. Defendants appeal. For brevity we will not detail the commencement of this litigation in which plaintiff first sought a change in his position on the village eligibility list. We will simply consider the matter from the point of view of the administrative review hearing and the result.\nOn December 28,1978, plaintiff filed his application for appointment as fireman. At that time he was employed by the village as a paramedic. In the application plaintiff answered questions as follows:\n\u201cDo you use alcohol? No. If so, to what extent? Frequently-Moderately_Occasionally__Any drugs: .No Narcotics No .\u201d\nThereafter plaintiff appeared before the defendants for an oral test. The record contains oral test rating sheets filled in by each of the defendants. The sheets contain boxes for check marks to indicate rating of the applicant as excellent, passable, fair, or poor. These ratings pertain to subjects such as \u201cAppearance,\u201d \u201cManner,\u201d \u201cEmotions,\u201d etc. In all, each defendant graded plaintiff on 20 varying subjects. One subject, under the heading \u201cPerception,\u201d includes \u201cDrugs, alcohol, sex and morals.\u201d All defendants rated plaintiff \u201cPassable\u201d on this topic. In all of the remaining situations all of the defendants rated plaintiff in the group marked \u201cpassable.\u201d However, each defendant rated plaintiff, \u201cExcellent\u201d as regards \u201cPhysique\u201d and thoughts on more schooling. The oral statements plaintiff made to the defendants in this test are not before us. Plaintiff was also interviewed by the village fire department and passed his physical examination.\nOn December 14, 1979, almost one year later, plaintiff, at request of defendants, appeared for a professionally administered polygraph test. Plaintiff filled in a lengthy questionnaire and submitted to a lie detector test. The questionnaire reflects written responses by plaintiff to a series of questions including past employment, personal history, etc. Concerning the area \u201cMedical and Social History\u201d the question is asked, \u201cHave you ever taken any of the following without advice of a doctor? If yes, please check.\u201d Ten various drugs are then listed with a small box after each name. Plaintiff struck out all of the listings except he placed an \u201cX\u201d in the boxes after cocaine, marijuana, and hashish.\nOn December 14, 1979, an official report of the polygraph examination was sent to defendants. The examiner described five categories in which plaintiff\u2019s answers were described as truthful. The following two paragraphs are:\n\u201c(6) Denied using marijuana more than ten times in the last year. (TRUTHFUL) The subject said he has smoked marijuana about ten times in the last year. The last time he smoked marijuana was six months ago.\n(7) Denied using narcotics or dangerous drugs illegally more than two times in the last year. (INDEFINITE) The subject said he has used cocaine two times in the last year. The last time the subject used cocaine was five to six months ago.\u201d\nThe letter closed with a statement that when the plaintiff was advised of the results of his examination he stated \u201che was thinking about the drugs he administers to people in his job as a Paramedic.\u201d The letter also stated, \u201cAn analysis of this subject\u2019s Reid Report indicates his attitude is ACCEPTABLE.\u201d\nOn January 4, 1980, defendants wrote plaintiff a letter which \u201cdisqualified\u201d him for appointment. The letter advised plaintiff\u2019s sworn application stated he did \u201cnot use any drugs nor narcotics.\u201d Plaintiff\u2019s oral interview reaffirmed this. On the contrary, plaintiff\u2019s statement to the polygraph examiner admitted plaintiff \u201ctook cocaine, marijuana and hashish.\u201d\nOn April 15, 1980, after a hearing by the defendants, defendants wrote plaintiff a letter in which denial of his appointment was reaffirmed. The defendants stated the answers given by plaintiff concerning use of controlled substances were \u201cmisstatements and in fact, falsehoods\u201d and no evidence was presented by plaintiff to \u201ccontrovert or mitigate\u201d these matters. The letter stated a person who uses \u201csuch substances\u201d should not be placed in a \u201cposition of responsibility\u201d with the village fire department.\nIn this court, defendants urge their decision was not contrary to the manifest weight of the evidence, but the record clearly supports the making of false statements of material fact by plaintiff and his disqualification. Defendants also urge the trial court had no authority to certify plaintiff as a fireman. Plaintiff responds there is no evidence of falsity in his application and no evidence plaintiff is a regular user of drugs.\nRegarding the issue of the weight of the evidence, the guiding principles are clear. The findings by an administrative body are prima facie correct. (Ill. Rev. Stat. 1979, ch. 110, par. 274.) On administrative review the court will not reweigh the evidence but will seek to determine whether the decision of the administrative body \u201cis just and reasonable in light of the evidence presented.\u201d Davern v. Civil Service Com. of the City of Chicago (1970), 47 Ill. 2d 469, 471, 269 N.E.2d 713, cert. den. (1971), 403 U.S. 918, 29 L. Ed. 2d 695, 91 S. Ct. 2229.\nThe supreme court has stated the converse of the above proposition (Monsanto Co. v. Pollution Control Board (1977), 67 Ill. 2d 276, 289, 367 N.E.2d 684):\n\u201cNonetheless, if the factual determinations of the Board, or of any administrative agency, are contrary to the manifest weight of the evidence, the reviewing court is empowered to reverse the agency\u2019s findings. [Citations.]\u201d\nIn the case before us, it is difficult to determine whether the decisive issue is factual or whether it is legal. In our view we need not solve this problem as demonstrated by the following.\nAs shown, plaintiff\u2019s employment application was made to defendants on December 25, 1978. On that date plaintiff stated in writing and under oath that he did not \u201cuse\u201d alcohol or any drugs or narcotics. However, statements which plaintiff made in the polygraph test on December 14, 1979, which specifically applied only to the \u201cprevious year,\u201d could not show this employment statement was false. Consequently, a finding by defendants that plaintiff told an untruth in his employment application would be totally unsupported by the evidence.\nIn addition, as plaintiff contends, the employment application was in the present tense and asked plaintiff whether he uses drugs. The questionnaire pertaining to the polygraph test used the verb \u201cto take\u201d and asked plaintiff whether he had taken certain drugs. The dictionary defines the word \u201ctake\u201d with reference to eating or drinking as \u201cto introduce or receive into one\u2019s body.\u201d (Webster\u2019s Third New International Dictionary 2330 (1971).) On the contrary, the dictionary defines \u201cuse\u201d as \u201cto consume or take (as liquor or drugs) regularly.\u201d Webster\u2019s Third New International Dictionary 2524 (1971).\nA statement plaintiff did not use alcohol, drugs, or narcotics made as of December 25, 1978, is not inconsistent with plaintiff\u2019s statement of December 14, 1979, that he had taken cocaine, marijuana, and hashish. The polygraph report shows plaintiff had used marijuana about 10 times during the preceding year, and his last use was some six months prior to that date of the report. Thus, the finding by defendants in this regard is unsupported by the evidence.\nDefendants\u2019 letter to plaintiff dated January 4,1980, stated plaintiff\u2019s oral interview restated and reaffirmed his application for employment dated December 28, 1978. However, the record does not contain the questions put by defendants in the oral interview or responses made by plaintiff. As shown, the record reflects mere generalities concerning this entire matter. No additional evidence regarding the oral interview appears in the record.\nThe letter of January 4,1980, also stated the polygraph questionnaire submitted by plaintiff was contrary to the application of December 1978. As shown, this apparent conflict did not actually exist. It was predicated upon confusion between the verbs \u201cto use\u201d and \u201cto take.\u201d Thus, treating the letters of January 4,1980, and of April 15,1980, as findings of fact, we conclude they are unsupported by the evidence.\nDefendants urge strongly the use of controlled substances is detrimental to others and to the operation of the village fire department. In our opinion the defendants are to be commended for this point of view. It stems properly from their laudable desire to give their constituents the best possible service as regards fire fighting and other municipal responsibilities. However, this court is obliged to add one more aspect to this salutary point of view. It is our duty to protect the rights of applicants for employment and to make certain that denial of employment is predicated upon proper legal principles.\nThe pertinent statute provides applicants for positions in fire or police departments of a municipality \u201cshall be subject to reasonable limitations as to residence, health, habits and moral character.\u201d (Ill. Rev. Stat. 1979, ch. 24, par. 10 \u2014 2.1\u20146.) The same section of the statute lists a number of crimes, including misdemeanors, which disqualify the applicant from a police or fire appointment. Violations regarding controlled substances are not included in this enactment.\nThus, the possession of less than 2.5 grams of marijuana, hashish, or cannabis is presently a Class C misdemeanor. (Ill. Rev. Stat. 1979, ch. 56%, par. 704(a).) But, that misdemeanor is not listed among the statutory causes for denial of employment.\nThe denial of employment to plaintiff was thus contrary to the evidence and contrary to law.\nDefendants raise a fine point regarding the language of the order appealed from. The order provided defendants \u201cshall forthwith appoint and certify the plaintiff as a firefighter in the Schiller Park Fire Department effective June 15,1980.\u201d This litigation commenced as a mandamus case but the final order dismissed the mandamus count in plaintiff\u2019s complaint. Thus, we are not dealing here with a situation in which the court has intermingled the relief sought in mandamus and in administrative review. (Compare Basketfield v. Daniel (1979), 71 Ill. App. 3d 877, 390 N.E.2d 492, appeal denied (1979), 79 Ill. 2d 609.) In an administrative review case, such as we have before us, the circuit court had legal power \u201cto affirm or reverse the decision in whole or in part.\u201d (Ill. Rev. Stat. 1979, ch. 110, par. 275(1) (e).) The able trial judge properly exercised that power by reversing the administrative decision. In our opinion the trial court had full authority to direct appointment and certification of plaintiff as he did. Compare Basketfield, 71 Ill. App. 3d 877, 880-81; see also Sola v. Clifford (1975), 29 Ill. App. 3d 233, 237, 329 N.E.2d 869.\nThe order appealed from is affirmed.\nOrder affirmed.\nMcGLOON and O\u2019CONNOR, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE GOLDBERG" } ], "attorneys": [ "Law Office of Harry J. Smith, Jr., of River Grove (Harry J. Smith, Jr., and Lawrence J. Czepiel, of counsel), for appellants.", "Cotton, Watt, Jones, King & Bowlus, of Chicago (John M. Bowlus and Stephen D. Froikin, of counsel), for appellee." ], "corrections": "", "head_matter": "ROBERT MURBACH, Plaintiff-Appellee, v. DAVID ANDERSON et al., Defendants-Appellants.\nFirst District (1st Division)\nNo. 80-1755\nOpinion filed May 18, 1981.\nRehearing denied June 22, 1981.\nLaw Office of Harry J. Smith, Jr., of River Grove (Harry J. Smith, Jr., and Lawrence J. Czepiel, of counsel), for appellants.\nCotton, Watt, Jones, King & Bowlus, of Chicago (John M. Bowlus and Stephen D. Froikin, of counsel), for appellee." }, "file_name": "1015-01", "first_page_order": 1037, "last_page_order": 1042 }