1-3-12; Drug-abusing former police sergeant sadly loses his job and the reviewing courts affirm the termination was appropriate

Our Illinois Appellate Court confirmed the longstanding rule factual findings in administrative decisions should only be reversed if against the manifest weight of the evidence. In Gorski v. Board of Fire and Police Commissioners of the City of Woodstock, 2011 IL App 2d 100808 (December 22, 2011), the Appellate Court indicated the Circuit Court properly affirmed the Board of Fire and Police Commissioners' termination of a former city police sergeant for abuse of prescription narcotic drugs as it was not against the manifest weight standard since sufficient evidence showed the sergeant violated his return-to-work agreement as well as violating an agreement with his doctors to not abuse narcotics and to not use them on duty. It was further noted the former sergeant also failed to sufficiently refute the prima facie case.

Procedurally, the initial hearing before the Board of Fire and Police Commissioners of Woodstock (Board) resulted in a directed finding in favor of Gorski—however thereafter Woodstock Chief Lowen filed a complaint for administrative review in the Circuit Court, the Circuit Court reversed the Board’s decision and remanded—this resulted in the “termination” decision from which these appeals arose. At that first hearing, there were multiple confirmations former sergeant Gorski sought prescription drugs from multiple sources as well as used same while on duty and failed multiple drug screens as well as failing to comply with a return to work agreement and violated an agreement with the Illinois Pain Institute regarding his treatment with Suboxone because of “his overall pattern of overlapping use and abuse of prescription narcotic drugs.”

Issues had arisen according to Chief Lowen when he testified on February 13, 2006, he met with Gorski and told him he was concerned Gorski was abusing prescription drugs, told Gorski it was not appropriate to take Vicodin while performing his duties as a sworn police officer and referred Gorski to the employee assistance program. Chief Lowen testified nearly a year later, on April 12, 2007, he met with Gorski to discuss Gorski’s “sick record” and use of prescription drugs. Chief Lowen required Gorski to submit to a drug urine screen which came back positive. Gorski told Chief Lowen he knew the screen would come back positive because he had received medication at an emergency room from a Dr. Gallant. Chief Lowen placed Gorski on paid administrative leave so Gorski could “seek counseling for his drug use and get things straightened out.” Chief Lowen told Gorski before he could return to work he would have to pass a fit-for-duty test, which included a urine screen. Chief Lowen received a letter from Dr. Martin Fortier clearing Gorski to work as of June 5, 2007 and indicated Gorski had been off pain medication for at least 10 days. Chief Lowen also testified on June 7, 2007, he and Gorski scheduled the fit-for-duty test for June 11, 2007 and his urine screen came back positive for hydromorphone. Gorski told Chief Lowen, before the urine screen, he had taken two Vicodin pills left over from Dr. Fortier’s prescription. He also told Chief Lowen, after the urine screen, he had taken two more Vicodin pills from the same prescription.

Chief Lowen testified on June 18, 2007, he presented Gorski with a return-to-work agreement that prohibited him from using controlled substances other than those prescribed by a physician; required him to use any controlled substance only in a manner consistent with the prescription set forth by the prescribing physician; required him to provide the police department with documentation concerning any prescribed medication indicating the medication would not interfere with his duties as a police officer; and required him to submit to drug testing within one hour of any such request. Chief Lowen ordered Gorski to submit to a urine screen on July 3, 2007, but he did not submit to the screen because of illness. On July 11, 2007, at Chief Lowen’s request, Gorski submitted to a urine screen, which came back negative. On July 17, 2007, Gorski signed the return-to-work agreement, and he returned to work the following day. On July 18, his first day back to work, he submitted to a urine screen; the results would take nine days. Chief Lowen testified, on the way to provide the sample, Gorski said he was not taking Vicodin and he would not take it. As proof, Gorski gave Chief Lowen an empty prescription bottle from Dr. Fortier. Gorski submitted to another urine screen on July 26. The following day, Gorski’s July 18 urine screen came back positive. On August 9, the July 26 urine screen came back positive. Chief Lowen never received documentation from a physician that Gorski’s medications would not interfere with his duties as a police officer.

Chief Lowen testified Gorski told him the drugs he took before the July 18 positive screen came from Dr. Fortier and the drugs he took before the July 26 positive screen came from his father, Dr. Gorski. Gorski told Chief Lowen his father gave him the drugs without a prescription. Chief Lowen testified the integrity of the City of Woodstock was adversely affected by Gorski’s failure to refrain from using prescription drugs and he recommended Gorski be terminated—at the remand hearing, termination was the decision of the Board.

To confirm, former Sergeant Gorski failed drug screens on:

·         April 6, 2006—positive for hydrocodone and hydromorphone

·         April 12, 2007—positive for hydrocodone and hydromorphone

·         June 11, 2007—positive for hydromorphone

·         July 18, 2007—positive for oxymorphone

·         July 26, 2007—positive for hydrocodone, hydromorphone, oxycodone, and oxymorphone

Initially the Appellate Court noted Gorski failed to recognize, in administrative review proceedings, they review the administrative agency's decision and not the decision of the Circuit Court. The Appellate Court noted they would review both findings of the administrative agency since the initial directed finding which was reversed on remand was not a final decision. The Appellate Court noted a motion for a directed finding must be denied if the plaintiff has presented a prima facie case. They also noted the manifest weight standard applied in the determination of whether a decision should be reversed by the Circuit Court. The Appellate Court found the record revealed Chief Lowen established a prima facie case Gorski abused prescription narcotic drugs and, in doing so, he violated the rules and regulations of the police department, the return-to-work agreement, and agreements he had with Dr. Rana at the Institute and with Dr. Purdy regarding his drug dependence treatment with Suboxone. The evidence established Gorski violated agreements four times. The Appellate Court further noted nothing in the record indicates Gorski’s misconduct was substantially related to his back injury. In violation of agreements with the police department and doctors, Gorski obtained by deceptive means multiple prescriptions for narcotic medications from multiple doctors and took these medications while on duty. He failed to provide the police department with the required documentation he was taking medication prescribed by physicians and the medication would not affect his ability to perform his duties.

Finally while Gorski argued the termination on the second Board decision was a result of the Circuit Court’s first decision, which was against the manifest weight of the evidence standard, he not only failed to recognize the Appellate Court was not bound by the Circuit Court's decisions, he also failed to cite authorities or pages of the record relied upon. The Appellate Court determined he had forfeited that argument for not setting forth a factual bases for such with citation to the record.

There are several takeaways from this ruling, including the important distinction that a decision is not appealable until it is final. It is also important to note the Appellate Court demands very specific and detailed guidelines for creating and arguing your appeals. In their comments in this case, they made it very clear they will not sift the record to attempt to determine if arguments find support in the record if the drafting party does not cite the record for their contentions. Finally, this case is a good example of why a party should present all applicable evidence they have in support of their case as the bulk of the evidence presented provided the support for the affirmation of the decision. Maybe most important, it is the belief of this commentator that individuals in a position of public safety should be held to a high standard. In this case it appears the appropriate steps were taken to attempt to allow the individual to help himself and his inability to appropriately do so, as well as his attempts to avoid culpability for his own actions, resulted in a termination which may not have been acceptable to the individual but was appropriate to protect the public at large.