dissenting:
I respectfully dissent for two reasons. First, the findings of the Board in regard to whether an emergency existed on August 14, 1987, are not against the manifest weight of the evidence.
Findings and conclusions of an administrative agency on questions of fact are to be held prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3—110.) Where an opposite conclusion is not clearly evident, the decision cannot be reversed; that an opposite conclusion might be reasonable is not sufficient. (Kvidera v. Board of Fire & Police Commissioners (1989), 192 Ill. App. 3d 950, 960, 549 N.E.2d 747, 753; Keen v. Police Board (1979), 73 Ill. App. 3d 65, 70, 391 N.E.2d 190, 194-95.) Moreover, conflicts in testimony and the credibility of witnesses are properly left for the Board to resolve. (Price v. Board of Fire & Police Commissioners (1985), 139 Ill. App. 3d 333, 339, 487 N.E.2d 673, 677.) The Board’s findings cannot be reversed unless we are able to say that ‘‘all reasonable and unbiased persons, acting within the limits prescribed by the law and drawing all inferences in support of the finding[s], would agree that the finding[s] [are] erroneous.” (Emphasis added.) Sheehan v. Board of Fire & Police Commissioners (1987), 158 Ill. App. 3d 275, 287, 509 N.E.2d 467, 476.
The majority holds today that there is insufficient evidence to support the findings in the Board’s order discharging the plaintiff. The contested findings include: paragraph 20 of the discharge order, which found that plaintiff abandoned his assigned post when “approximately nine (9) inches of rain fell on the City, resulting in a city-wide emergency”; paragraph 21, which finds that plaintiff “acknowledged that as a result of his conduct in abandoning his post on August 14, 1987, during a city-wide emergency, his fellow officers can no longer rely on him to carry out his assigned duties and to always be there when they need him”; and paragraph 9, which finds that plaintiff’s conduct brought the Des Plaines police department into disrepute “at the very time when officers were needed to handle a major disaster in the City of Des Plaines.”
The record contains substantial evidence in support of the Board’s finding that there was a city-wide emergency at the time plaintiff abandoned his post. Lieutenant Diehl’s testimony supports this finding. Plaintiff himself acknowledged that he left his post during an emergency. Plaintiff was aware that there was excessive rainfall and that a number of roadways were impassible as a result. Plaintiff was assigned to the complaint desk at 6:45 a.m., and the officers assigned to the desk were subsequently advised of the implementation of the City’s emergency traffic plan.
The police were barely able to keep up with flood-related calls; officers were unable to respond to the power outages and alarms that resulted from the flood conditions. The police were also unable to make outgoing calls and consequently could not call additional officers to duty except by driving out to their homes.
Nevertheless, plaintiff telephoned his wife three separate times that morning. The record also provides ample support for the inference that the reason plaintiff was concerned about his family was the flooding occurring in his neighborhood. Implicit in today’s decision is that the flooding was somehow a serious enough danger to justify plaintiff’s decision to abandon his assigned post, in defiance of the direct order of his superior, yet simultaneously not so obvious a danger as to allow the Board to find that plaintiff was aware of emergency conditions.
The evidence appearing in the record which suggests that an emergency did not exist is plaintiff’s testimony that in his opinion, there was no emergency at the time he left. This testimony is contrary not only to the testimony of Lieutenant Diehl, but also to plaintiff’s own acknowledgement that he left during a city-wide emergency. Plaintiff stated that there were five other persons who could have manned the switchboard following his departure, although the record reflects that plaintiff walked away from his duties as an officer during a situation where the police department sought more officers, not fewer.
The majority chooses to discount Lieutenant Diehl’s opinion that emergency conditions existed because he also stated that there had been no formal declaration of a “state of emergency.” The majority also discounts the expert testimony that plaintiff’s dereliction of his duties would adversely affect the police department because it was supposedly premised on the existence of a “state of emergency.” The record contains no evidence that the expert was referring only to situations where there was a formally declared “state of emergency.” The majority opinion finds that when plaintiff abandoned his post, “he was not informed of a declaration of emergency” (211 Ill. App. 3d at 554), but offers no suggestion of who would be required to issue such a declaration or what the declaration must encompass in order to support a finding that a “state of emergency” existed or that plaintiff was aware of it. (Cf. Ill. Rev. Stat. 1987, ch. 127, pars. 1104(b) (definition of “disaster”), 1108 (authorizing Governor to declare “disaster emergencies”), 1113 (authorizing principal executive officer of municipality to declare “local disaster emergencies”).) The majority further fails to cite any authority for the proposition that there must be a formal declaration of a “state of emergency” before the Board could find that the conditions which existed were such that plaintiff knew or should have known that it would be a severe dereliction of duty to leave his post.
Given this record, it is my opinion that a reasonable and unbiased person, drawing all inferences in favor of the findings, could find that emergency conditions existed and that plaintiff was aware of them when he abandoned his post for personal reasons. (Sheehan, 158 Ill. App. 3d at 287, 509 N.E.2d at 476.) At most, the evidence conflicted regarding the existence of emergency conditions and plaintiff’s knowledge of such at the time of his departure. The Board chose to resolve the conflicting evidence against plaintiff; we cannot choose otherwise. (Price, 139 Ill. App. 3d at 339, 487 N.E.2d at 677.) The majority’s contrary finding may be reasonable, but it does not warrant a reversal in this case. Kvidera, 192 Ill. App. 3d at 960, 549 N.E.2d at 753; Keen, 73 Ill. App. 3d at 70, 391 N.E.2d at 194-95.
Second, I dissent because plaintiff’s discharge is legally supportable regardless of whether a “state of emergency” had been declared or existed. In reviewing police discharges, the question for the appellate court is whether the sanction is unreasonable, arbitrary or unrelated to police service, not whether this court would have levied a lesser sanction. (See Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252, 258, 449 N.E.2d 845, 849.) The wisdom, necessity or propriety of any action regarding the administration of a police force is the province of the municipality and will not be reversed unless a manifest and palpable abuse of discretion is shown. (Braje v. Board of Fire & Police Commissioners (1985), 139 Ill. App. 3d 90, 487 N.E.2d 91.) This court has long held that an officer who disobeys a proper order of a superior may be discharged. E.g., Zinser v. Board of Fire & Police Commissioners (1961), 28 Ill. App. 2d 435, 172 N.E.2d 33.
The cases the majority classifies as involving “actions which reflect dishonesty or a flaw in integrity or character” (211 Ill. App. 3d at 557) are not distinguishable from the instant appeal on those grounds. For example, in Coursey v. Board of Fire & Police Commissioners (1967), 90 Ill. App. 2d 31, 234 N.E.2d 339, there was evidence that an officer attempted sexual misconduct with minors, but the board made no finding concerning that alleged attempt. (Coursey, 90 Ill. App. 2d at 41, 234 N.E.2d at 343.) In Bokowski v. Civil Service Comm’n (1971), 1 Ill. App. 3d 174, 273 N.E.2d 625, an officer was charged with neglect of duty, being absent from duty without permission and entering a place where liquor was sold while on duty for reasons unrelated to service. There was no charge alleging improper conduct concerning a fight or a women’s washroom. In Green v. Board of Fire & Police Commissioners (1980), 87 Ill. App. 3d 183, 408 N.E.2d 1187, this court upheld the discharge of an officer who slept for two hours on patrol and disobeyed an order to return to the station. As in Green, a diversion of police resources was required by the plaintiff’s behavior in this case. Moreover, Green did offer an excuse, though it was rejected as “no defense” by this court. Green, 87 Ill. App. 3d at 187, 408 N.E.2d at 1191.
The majority likens this case to Christenson v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 472, 404 N.E.2d 339, and Humbles v. Board of Fire & Police Commissioners (1977), 53 Ill. App. 3d 731, 368 N.E.2d 1049. These comparisons must rely on the supposed requirement of a “state of emergency.” In Christenson, the officer tried to stay in radio contact with the station and “[h]is presence was not compelled by any emergency.” (Christenson, 83 Ill. App. 3d at 477, 404 N.E.2d at 342.) The record here does not indicate that plaintiff tried to stay in contact with the station.
In Humbles, there was no indication that the officer’s action would lower police morale or undermine public confidence in the police. (Humbles, 53 Ill. App. 3d at 735, 368 N.E.2d at 1051.) In this case, the Board heard expert testimony on the issue, testimony the majority rejects as falsely premised.
The majority alternatively finds sufficient evidence regarding the conduct of another officer to indicate that the Board’s penalty regarding plaintiff was arbitrary and unreasonable. The conduct of the other officer is not before this court. Sufficient cause for discharge may exist regardless of whether another officer received different treatment. (Sheehan, 158 Ill. App. 3d at 287, 509 N.E.2d at 476.) Moreover, one could logically conclude that the lesser sanction in the other case militates as much in favor of the lesser sanction being unreasonable. The majority also finds the circuit court’s reliance on testimony that the off-duty officer was “hemmed-in” by water inconsistent with its finding that plaintiff should have returned to the station after checking on his family. Yet this supposed inconsistency would be justified if the finder of fact decided that the other officer was in fact “hemmed-in” and plaintiff was not. This court is not the finder of fact. Furthermore, it would appear that a similar inconsistency would then be manifest in finding that the flooding in plaintiff’s neighborhood was severe enough to justify abandoning his post, but not severe enough in the other parts of the city to find that emergency conditions existed.
In sum, today’s decision does not give sufficient weight to the reality that the police department is a paramilitary organization with a chain of command. (Martin v. Matthys (1986), 149 Ill. App. 3d 800, 501 N.E.2d 286.) A rule permitting each officer to subjectively determine whether he believes an order to be lawful and reasonable would destroy the discipline necessarily inherent in a paramilitary organization such as the police department (Phillips v. Hall (1983), 113 Ill. App. 3d 409, 447 N.E.2d 418; Williams v. Police Board (1972), 8 Ill. App. 3d 345, 290 N.E.2d 669; Coursey, 90 Ill. App. 2d 31, 234 N.E.2d 339) and would thwart the authority and respect which is the foundation of the effective and efficient operation of a police force. (See Myers v. Cook County Police & Corrections Merit Board (1978), 67 Ill. App. 3d 223, 384 N.E.2d 805.) Plaintiff’s conduct cannot be excused. The discipline imposed was clearly related to the needs of the Des Plaines police department, given the facts and circumstances of this case.
For all of the aforementioned reasons, I would affirm the judgment of the Board and the circuit court.