Dan Churney Jun. 22, 2016, 1:09pm

In a 2-to-1 decision, an Illinois appeals panel ruled the Chicago Police Board is not a rubber stamp, but has authority to override the police superintendent’s recommendation when it comes to disciplining officers in more serious cases of misconduct.  

The June 14 Illinois First District Appellate Court opinion was authored by Justice Michael Hyman, with concurrence from Justice P. Scott Neville, that affirmed a Cook County Circuit Court decision upholding the police board’s authority. Justice Daniel Pierce dissented, alleging the board has made a “power grab.” 

The case stems from Feb. 17, 2009. At 7:45 p.m. that day, Chicago Police Sgt. Steven Lesner and other officers responded to a call of an argument between a woman and her boyfriend at a North Side restaurant. The boyfriend was removed from the establishment and Lesner gave the apparently distraught woman, who lived nearby, a ride home. On the way, the woman asked Lesner to get her some wine, so Lesner entered a liquor store – on duty, in uniform – and bought wine, then proceeded to her apartment.  

Lesner helped her into her home, gave her his cell phone number and took her father and brother, who lived in her building, to retrieve her car. Later that night as Lesner’s shift was ending, the woman called Lesner and he agreed to visit her. On the trip to her apartment, Lesner bought more wine, as well as beer. At her place, Lesner removed his ankle holster gun and put it on the floor next to the loveseat in which he was sitting, because he said that with his feet up on a table, the holster looked “kind of stupid.” 

Lesner said he went to the bathroom at about 1:40 a.m. and while he was gone, the woman used his loaded gun to commit suicide. Lesner immediately called 911 and his commander, then waited for emergency personnel to arrive. 

In late 2013, Police Superintendent Garry McCarthy recommended Lesner be suspended 60 days, but after an administrative hearing, which can be conducted when more than 30 days’ suspension is on the table, the police board ruled unanimously Lesner should be fired. The board, made up of nine civilians, said Lesner “made a series of calculated and knowing decisions” that were “reprehensible” to exploit his position as an officer to “further a personal relationship” and “exhibited a complete lack of sound judgment.” 

Lesner then brought action in Cook County Circuit Court, asking the court to overturn the board’s decision and order his reinstatement, but Circuit Judge Kathleen Kennedy refused. Kennedy said that if she tossed the board’s decision, the superintendent would be empowered to “dictate the penalty, thereby usurping the Board’s authority.”

Lesner next contended on appeal the board has authority to approve, reverse, lessen or increase the period of suspension recommended by the superintendent, but cannot introduce a harsher and altogether different type of discipline. 

Justice Hyman said that may be true when the recommendation is for a suspension of 30 days or less, but when more than 30 days, including up to termination, is recommended, city and state municipal codes give the board the power to impose the discipline of its choosing, with the superintendent’s recommendation a “factor to be weighed,” carrying no more weight than that of a “suggestion.” 

“Any other interpretation would obviate the need for a hearing before the police board,” Hyman observed. 

Lesner further argued that even if the board has the right to fire him, such action was arbitrary and excessive, especially in light of his otherwise good record. However, Hyman brushed this aside, saying Lesner’s termination was commensurate with his wrongdoing. 

Justice Pierce dissented, asserting the board “overstepped its authority,” because the Chicago City Council created the board and the position of superintendent in 1960, investing the superintendent with the authority to discharge officers, with the board acting as a check on that authority. 

In Pierce’s view, the purpose of a hearing before the board is to provide due process to officers facing discipline of more than 30 days’ suspension. Pierce stressed the board’s only prerogative in such matters is to “instruct” the superintendent. 

According to Pierce, the board engaged in a “classic administrative agency power grab by declaring ‘a recommendation to the board is not binding upon it.’” 

Lesner has been represented by Thomas J. Pleines, a lawyer with the Police Benevolent and Protective Association in Chicago. The board has been represented by city attorneys.

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