dissenting:
For the reasons stated below, I disagree with the majority’s holding that Giampa’s privilege against self-incrimination was not violated.
The amended charge on which Giampa’s discharge was based accused him of inducing, aiding, abetting, and encouraging a minor in the taking of alcoholic substances or other intoxicating drugs. Proof that Giampa induced, aided, abetted, or encouraged Rosa-Linda Blanchard would necessarily include evidence that he affirmatively encouraged her to take or approved of her taking the intoxicating substance.
The evidence presented at the hearing indicated that Giampa left Schneider’s home with Rosa-Linda at 11:30 a.m., that Rosa-Linda was then in normal physical condition, that when she returned home 31z hours later, she was ill, and that her blood contained 92 mg% ethanol. The evidence also revealed that Giampa had taken Rosa-Linda shopping that afternoon. No other evidence regarding the events which transpired while Giampa was with Rosa-Linda on the afternoon in question was produced.
Evidently, the hearing officer based her findings that Giampa induced, aided, and abetted Rosa-Linda on Giampa’s silence in the face of specific questions dealing with the events which occurred that day. In essence, Giampa’s discharge was based entirely upon his refusal to answer questions which called for incriminating responses.
The majority, relying in part on Baxter v. Palmigiano (1976), 425 U.S. 308, 47 L. Ed. 2d 810, 96 S. Ct. 1551, concluded that the hearing officer properly considered Giampa’s silence in reaching her findings. In Baxter, the United States Supreme Court held that the fifth amendment did not forbid the drawing of adverse inferences against an inmate for failure to testify at a prison disciplinary hearing. In reaching its conclusion, the court enunciated the following principles:
“[T]he Fifth Amendment ‘not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’ Lefkowitz v. Turley, 4.14 U.S. 70, 77 (1973). Prison disciplinary hearings are not criminal proceedings; but if inmates are compelled in those proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered ‘whatever immunity is required to supplant the privilege’ and may not be required to ‘waive such immunity.’ Id,., at 85; Garrity v. New Jersey, 385 U.S. 493 (1967); Gardner v. Broderick, 392 U.S. 273 (1968); Sanitation Men v. Sanitation Commr, 392 U.S. 280 (1968).” (425 U.S. 308, 316, 47 L. Ed. 2d 810, 820, 96 S. Ct. 1551, 1557.)
However, these principles were not transgressed in Baxter because no criminal proceedings were pending against Palmigiano and the finding of guilt was not an automatic consequence of his silence.
Generally, I agree that adverse inferences may be drawn from silence at disciplinary hearings. However, in this case, Giampa was under indictment for crimes based on the same occurrence for which his discharge was sought. Also, as noted above, Giampa’s silence was the only basis for the finding that he induced, aided, and abetted. Hence, I believe that the principles stated in Baxter were violated in this case and would therefore hold that the adverse finding was erroneous.
I also disagree with the majority’s holding that the hearing officer properly denied Giampa’s request for a continuance in order to subpoena Rosa-Linda. The presence of Rosa-Linda was irrelevant as to the initial charges because they were based solely on Giampa’s undisputed arrest and indictment. It was not until the amended charge was filed that her testimony became relevant. Defense counsel received notice of this charge only three days before the hearing commenced. The amended charge was not approved until the day before the hearing. Also, counsel’s contact with Miss Blanchard was restricted by the court in the simultaneously pending criminal case. Recause of the substantial difference in the nature of the charges, the short time period counsel had to prepare for the amended charge and the restrictions placed on counsel by the criminal court, the failure to contact Rosa-Linda cannot be attributed to lack of diligence.
Furthermore, it was reasonable to assume that the Attorney General would call Rosa-Linda, the alleged victim, to prove the amended charge. The Attorney General’s request that the testimony of Rosa-Linda be taken in a particular manner rendered the assumption that she could be called as a witness more valid. Upon the failure to call Rosa-Linda defense counsel justifiably could claim surprise. Surprise is a basis for granting a continuance. See People v. Lott (1977), 66 Ill. 2d 290, 362 N.E.2d 312.
Admittedly, an administrative body has broad discretion in granting or denying a motion for a continuance. (Brown v. Air Pollution Control Board (1967), 37 Ill. 2d 450, 227 N.E.2d 754.) However, its discretion must be exercised judiciously and not arbitrarily, and a refusal to allow a continuance clearly required by the ends of justice is an abuse of discretion warranting reversal. (Brown.) Administrative due process requires, in part, adequate notice and a full, fair and impartial hearing. (Lavin v. Civil Service Com. (1974), 18 Ill. App. 3d 982, 310 N.E.2d 858, citing Smith v. Department of Registration & Education (1952), 412 Ill. 332, 106 N.E.2d 722.) Included within these rights is the opportunity to procure the attendance of a witness vital to the case. Lindeen v. Illinois State Police Merit Board (1962), 25 Ill. 2d 349, 185 N.E.2d 206.
Without question, Rosa-Linda was a vital witness in this case. In denying the requested continuance, the hearing officer effectively denied Giampa the right to refute the charges against him, thereby depriving him of a full, fair hearing. Consequently, I find that the hearing officer abused her discretion.
Abuse of discretion alone does not require reversal of a board’s decision; however, when a decision is against the manifest weight of the evidence, reversal is a proper remedy. (Lindeen v. Illinois State Police Merit Board (1962), 25 Ill. 2d 349, 185 N.E.2d 206.) As noted previously, the Attorney General presented no evidence indicating that Giampa aided, abetted, induced, or encouraged Rosa-Linda to take an intoxicating substance. Hence, the decision of the board was against the manifest weight of the evidence and the denial of the continuance constituted reversible error.
For the above stated reasons, I would reverse the judgment of the trial court.