A state appeals panel said an Aurora police officer can keep his job despite spying on his ex-wife.
Aurora Police Chief Kristen Ziman fired Daniel Wagner after looking into accusations he installed and monitored hidden surveillance cameras in the home he once shared with his ex-wife. Wagner was never charged with a criminal offense, and he and the Association of Professional Police Officers went through the grievance process and arbitration, resulting in the discipline being reduced to a one-year suspension.
As the union moved to modify the arbitrator’s award, wanting a specific declaration Wagner wasn’t likely to spy again, the city sought judicial review and the arbitrator decided he didn’t have jurisdiction to rule on the union’s motion. Kane County Circuit Court Judge David Akemann determined the arbitrator’s award was contrary to public policy and reinstated the termination.
Wagner and the union appealed Akemann’s ruling to the Illinois Second District Appellate Court, which issued its opinion Feb. 21. Justice Ann Jorgensen wrote the opinion; Justices Robert McLaren and Robert Spence concurred.
According to the panel, there is broad understanding concerning “a well-defined and dominant public policy in favor of holding police officers accountable for their off-duty conduct, as set forth in criminal statutes and police department rules, and against invasions of privacy, as set forth in our constitution and case law.”
Wagner and the union maintained the punishment should reflect his life circumstances, from his good work history to the emotions involved in a contentious divorce. They also said the police union contract doesn’t have a rule mandating termination, but favors progressive and corrective discipline, and cited other instances where courts have upheld arbitration findings that reinstate fired employees.
The city pointed out Wagner knew installing the cameras was illegal and continued to monitor them “longer after the divorce, until he was caught” according to Jorgensen. It further argued that fact undercut his assertion the cameras were only intended to protect him and his children during divorce proceedings.
The panel noted testimony that Wagner’s ex-wife made threats about his pension and that they did discuss their divorce in the bedroom. The justices also said Wagner hadn’t been previously disciplined for the same conduct, nor did his ex-wife give a statement or testify to dispute his account. Further, Wagner had frequent access to the home to help with children and chores, given credence to his assertion of heightened emotions that clouded his judgment.
Even though the panel agreed the arbitrator’s award didn’t violate public policy, it also addressed Wagner’s alternative request that the case should be remanded for a decision on the likelihood he would reoffend. Jorgensen explained the panel’s review of the case revealed the “arbitrator implicitly found that Wagner was unlikely to reoffend,” specifically highlighting his nine years as an Aurora police officer with good performance evaluation. Justices also noted, with the divorce resolved and the one-year suspension levied — during which time he wouldn’t amass seniority or pension credit — he “was unlikely to commit similar misconduct in the future.”
The panel also noted all parties agreed the arbitrator lost jurisdiction on a recidivism finding once the city sought judicial review, but that jurisdictional concern wasn’t relevant at the appellate level because the arbitrator had already sufficiently considered whether Wagner was likely to reoffend.