delivered the opinion of the court:
This аppeal is taken from an administrative review proceeding wherein the circuit court confirmed the defendant-Board’s discharge of plaintiff from his position as a Freeport patrolman.
. Plaintiff had been employеd by the police department for over one year when the Chief of Police entered a complaint against him. On March 25 and 26, 1971, there was a formal hearing on the second amended complaint charging plaintiff with five violations of the Freeport Municipal Code; he was found guilty on four of the five charges.
A single valid finding is sufficient to constitute the basis for entering the order of dismissal. (DeGrazio v. Civil Service Com.,
According to plaintiff’s testimony, an attempted marijuana purchase was set up under the direction of the department, such purchase to be made through plaintiffs informer. The purchase failed after certain members of the department talked about the plans to a friend of the anticipated seHer. Subsequently, plaintiff suppfied his own money and encouraged the informant to persist in attempting а purchase. A “brick” of marijuana was ultimately bought and dehvered to plaintiff but, feeling that the evidence would not hold up in court, that he would not be reimbursed for his cash outlay and that the department was not interested in the drug problеm, plaintiff later gave the drug to the informant, suggesting it be returned to the seller for the money.
Plaintiffs multiple contentions will be grouped for the purpose of this appeal.
The findings of the Board were conclusionary, the findings were against the manifest weight of the evidence, and discharge was an inappropriate penalty;
Plaintiff was found to have violated a criminal statute which has since been held unconstitutional;
The Board based its decision upon secret evidence and arguments outside plaintiffs presence, was prejudiced and biased against plaintiff, and erred in failing to grant subpoenas;
The circuit court erred in refusing to strike defendant’s answer.
A review of plaintiffs оwn testimony reveals that, without department knowledge or authority, he was in possession of marijuana, that he did not bring the matter to the attention of the appropriate officer or turn the evidence in to the department, and that he subsequenly had the “evidence” returned to the seller. Were we to determine that plaintiffs possession of the marijuana occurred within the scope of his duties, he would then have been in violation of the Code in rеturning the contraband to the seller. Conversely, were we to view such possession as being outside the scope of his duties, he would there be in violation of the criminal law. Under either finding, plaintiff was guilty of violating the Code and the Boаrd’s determination in this regard was not against the manifest weight of the evidence.
The findings stated that plaintiff had been found “guilty as charged.” Within the amended charges, the factual background for each of the accusations was set fоrth. While the requirements for administrative findings are more exacting than those relating to the findings of trial courts (Maywood Trotting Ass’n v. Racing Com.,
Under the provisions of section 10 — 2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1969, ch. 24, sec. 10 — 2.1—17), a police officer may be dischаrged for cause. Plaintiffs violation of the Code and his disregard for departmental procedures was sufficient cause for the Board to appropriately discharge him from the force.
Plaintiff does not directly attaсk the constitutionality of that portion of the Code charging him with, the violation which we here consider, namely, section 15 — 125—7, “* * * violation of any criminal law * * Rather, he directs his argument to the Code’s underlying criminal statute (Ill. Rev. Stat. 1969, ch. 38, sec. 22 — 3) which was held unconstitutional in People v. McCabe,
• 5 Prior to being held unconstitutional, a statute is an operative fact with consequences, (or potential consequences) which cannot be ignored. (Chicot County Drаinage Dist. v. Baxter State Bank,
During the formal hearing, plaintiff, by way of an offer of proof, submitted his affidavit which provided a narrative on the January 7th informal proceedings. He stated that at about 10:00 P.M. on that date, while on duty, he was orderеd to report to a business address. Arriving, he found two Board members and the Chief of Police already present. A large file was on a desk. One Board member commented that he had “heard a lot of bad things about” Reich. Plaintiff “assumed that the three * <* * had been discussing” him and his performance. During the one-half hour meeting, the Board members repeatedly advised him to resign. He was not permitted to look at the file, the Board declined to explain the nature of the “bad things” heard, and Reich was not advised of the specific charges against him.
Discipline procedures under the Code (sec. 15 — 127 et seq.) provide that, upon receipt of a complaint, the Commission shall tentatively detеrmine the appropriate penalty and may call the accused member before it, inform him of the complaint and advise that he may waive hearing, plead guilty and accept the proposed penalty. Shоuld he not plead guilty, the matter shall proceed, without prejudice, to a formal hearing and, toward that end, the Commission shall direct that corporation counsel prepare formal written charges, a copy оf which shall be served upon the accused. In formal hearing, the accused shall have the right to be present with counsel, to cross-examine witnesses and present evidence.
Plaintiff alleges that the Board heard secret evidence outside his presence, referring first to the occasion of the January 7th meeting. There, he contends, the Chief imparted information to the Board members prior to Reich’s arrival. Such action is specificаlly allowed under the Code provisions for preliminary hearings and is permissible for the purpose of determining probable cause. Seneca v. Board of Fire & Police Comm’rs,
Plaintiff aEudes to secret, aside meetings and whispered confеrences, but has faffed to show that any extraneous evidence the Board may have at any time heard affected its decision. Evidence introduced during the formal hearing substantiaEy proved the validity of the charge brought against plaintiff and, under these circumstances, reversal is not required. Rizzo v. Board of Fire & Police Comm’rs,
It is contended that the Board predetermined plaintiff’s case, that it exhibited bias and hostility against plaintiff and his attorney, and that, upon plaintiff’s motion, it should have resigned. Largely, this argument is also based upon the January 7th meeting. We have already established that that meeting was a preliminary proceeding permitted under the Code and that, as part of that proceeding, the Board was to reach a preliminary determination as to the proposed penalty and offer the accused the opportunity to resign. No conclusion of bias or prejudice can be drawn from the Board’s adherence to the procedures required by the Code.
Plaintiff’s allegations are conclusionary and unsubstantiated; the record reveals no merit to his assertions. We cannot conclude that the Board should have resigned.
• 9 Plaintiff complains that the Board denied his motion for subpoenas which requested, in part, that the department be required to produce his duty reports, his service file and the file viewed by the Board during the January 7th meeting. The Boаrd stated that it would rule on the relevancy of these documents during the course of the hearing and there held them irrelevant. He contends that the Board erred by refusing to issue the subpoenas, by imposing a precondition of a showing of materiality before ordering production of the documents, and by ruling them irrelevant, arguing that the documents sought would have shown his diligence while on the force, how he gained knowledge of the drug traffic in Freeport, and that there was no action by his superiors on several of his offense reports. There is no contention that the documents would have refuted the evidence on the charges against him.
The statute provides that, “the board shaE have power to secure by its subpoena 005 the production of books and papers relevant to the hearing.” (IE. Rev. Stat. 1969, ch. 24, sec. 10 — 2.1—17.) Since plaintiff established no relevancy, it was not. error for the Board to deny die subpoenаs.
In arguing that the trial court should have granted his motion to strike defendant’s answer, plaintiff first contends that defendant’s answer was defective because a copy of the transcript of proceedings (filed with the circuit court) wаs not served on him. He cites no case to substantiate this position. The section of the Administrative Review Act relative to pleadings provides that, “* * 9 the * * ° agency shall file an answer which shall consist of the original or a certifiеd copy of the entire record of proceedings under review * * (Ill. Rev. Stat. 1969, ch. 110, see. 272(b).) Our construction of that statute indicates that the agency, as an answer, need only file the record with the court clerk.
Plaintiff also cоntends that the record was incomplete because it did not contain all proceedings held before the Board. In this respect, plaintiff again refers to the fact that there is no report of the informal meeting of January 7. It is clear, however, that no transcript was made of those proceedings. At the formal hearing, the chairman of the Board gave a statement as to what had transpired during that meeting. Plaintiff’s affidavit concerning those еvents was also included in the record. We do not consider the record incomplete merely because a transcript of those preliminary proceedings is not included.
The record sustains plaintiff’s guilt of the violations set forth herein and reveals no error having occurred in the course of such determination. We affirm the decision of the circuit court confirming the order of discharge.
Order affirmed.
GUILD, P. J., and SWANSON, J., concur.