The Appellate Court upheld the Circuit Court and the Board of Fire and Police Commission of the City of Clinton order discharging plaintiff police officer. Hurst v. The Board of the Fire and Police Commission, No. 4-10-0964 (July 12, 2011). The chief of police filed written charges with the Board alleging Plaintiff viewed racy materials while on duty on a mobile data terminal owned by the department. Plaintiff filed a complaint against the chief and the Board seeking declaratory relief that the chief obtained the evidence in violation of the eavesdropping statute. (720 ILCS 5/14-1 through 14-9 (West 2008)).
Subsequently the Board held a hearing on the charges and discharged Plaintiff. Plaintiff sought leave to amend his complaint to request administrative review of the Board’s discharge order. The Chief and Board filed respective motions to dismiss which were granted.
On appeal the Court held Plaintiff’s amended complaint filed together with his motion for leave to file the amended complaint were timely and went on to discuss the alleged violation of the eavesdropping statute. Plaintiff argued the Board “unlawfully considered evidence prohibited by the eavesdropping statute.” He claimed the police chief violated the statute by using the employer-owned data terminal, and software thereon, as an eavesdropping device.
The Court noted “under the terms of the eavesdropping statute, in order for a communication to constitute a protected "electronic communication," both the sending and receiving parties must intend it to be private under circumstances justifying such expectation.” 720 ILCS 5/14–1(e) (West 2008). As nothing in the record suggested the sending parties of the various racy images intended to keep them private the Court held the images were not electronic communications under the statute.
The police procedures manual dictated the data terminals were only to be used for law-enforcement purposes and not in any manner which would discredit the police department. The manual further stated any messages sent on the terminal were “retrievable.” As such, the Court determined Plaintiff had no reasonable expectation of privacy or confidentiality with regard to his use of the terminal while performing his work duties.
According to the Court, as there was no violation of the eavesdropping statute the Board’s decision to admit the evidence was affirmed and such evidence overwhelmingly supported the Board’s decision to discharge the Plaintiff.
Quick internet research uncovered several articles which point to an increase in inappropriate content, being viewed by employees at work. This decision indicates the viewing of such content can be grounds for discharge and the gathering of evidence will not violate the eavesdropping statute. This article was researched and written by Matthew Ignoffo, J.D. Please do not hesitate to contact Matt about it at firstname.lastname@example.org.