McRay v. Ross et al

Filing 102

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the motion for partial summary judgment on administrative review 59 is granted in part and denied in part. The Board's decision to di scharge Plaintiff McRay is vacated because the criminal-association finding is against the manifest weight of the evidence. The decision is remanded to consider what discipline is appropriate based on the other rules violations. The Board must reconv ene to determine the appropriate discipline for those violations. In light of this summary judgment decision, the parties shall confer on what the next procedural step ought to be, and then file a Position Paper (disagreements on the next step may be set forth in the joint filing). It might be appropriate to enter a Rule 54(b) judgment on the state law administrative-review claim, which would trigger the vacatur and remand to the Board, even as the parties continue engaging in discovery on the f ederal claims. And it would make even more sense for the parties to engage in settlement negotiations in light of the decision. There are still a plethora of depositions to be taken, but rather than expend time, resources, and attorneys fees on discovery, creative minds and cooler heads should try to resolve this case. The Position Paper is due by 06/11/2018. Emailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILLIE MCRAY,
Plaintiff,
v.
THOMAS ROSS, et al.
Defendants.

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No. 17 C 01588
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
After he was fired from the Bolingbrook Police Department, Sergeant Willie
McRay brought suit against the police chief, the Village of Bolingbrook, and a host
of others, challenging the firing on a variety of state and federal law grounds.1 R.
18, Am. Compl.2 McRay’s fourteen-year career with the department ended after a
hearing in front of the Board of Fire and Police Commissioners, which determined
that he had violated a number of departmental rules. Am. Compl. Exh. A. The
primary disciplinary charge against McRay arose out of his relationship with his
young-adult son, Jeremy McRay. Admin. R. at 722, Hrg. Tr. at 83.3 Now, even as
the parties are engaged in discovery on the federal law claims, McRay moves for
summary judgment on the state administrative-review claim. R. 59, Pl. Br. The

1This

Court has subject matter jurisdiction over the case under 28 U.S.C. § 1331. As
explained in more detail below, see infra Section III.A, supplemental jurisdiction applies to
the state law administrative-review claim. 28 U.S.C. § 1367. See also City of Chi. v. Int’l
College of Surgeons, 522 U.S. 156, 169 (1997).
2Citations to the record are noted as “R.” followed by the docket number and the
page or paragraph number when applicable.
3Citations to the Administrative Record are noted as Admin. R. followed by both the
page number in the overall paginated record as well as the particular document cited to.

Defendants oppose the motion, arguing that this federal court is not the correct
forum for review and, even if it is, the Board’s decision should not be disturbed. R.
77, Def. Resp. at 8, 14-18. For the following reasons, McRay’s motion is granted. The
Board’s decision is vacated and remanded.
I. Background
In late 2003, the Village of Bolingbrook hired Willie McRay as a patrol officer,
and he eventually climbed the ranks to patrol sergeant in April 2014. Admin. R. at
1, Initial Charges at 1; Admin. R. at 721, Hrg. Tr. at 78. Before the events
culminating in the Board hearing, McRay had performed his duties satisfactorily, as
reflected in his performance evaluations for the preceding decade. Id. at 1130, Hrg.
Tr. at 1122; id. at 1223-24, Hrg. Tr. at 1259-63.
McRay’s troubles in the department began with his son’s June 2015
conviction for possession with intent to distribute a look-alike substance, a Class 3
Felony. Admin. R. at 2, Initial Charges at 2; id. at 347-50, Criminal Sentence Ord.
at 1-4. Jeremy McRay, who was 19- to 20-years-old during this time, struggled with
an addiction to prescription pills. Id. at 53-54, McRay Int. Tr. at 29-30; id. at 769,
Hrg. Tr. at 204-05. When Jeremy was again arrested in September 2015 and
charged, this time with felony burglary, he told the arresting officer that he lived
with his father, a police officer. Admin. R. at 2, Initial Charges at 2. During the
ensuing investigation, Bolingbrook detectives learned of Jeremy’s prior felony drug
conviction and overheard recorded telephone conversations between McRay and
Jeremy, including one where McRay mentioned that he had warned Jeremy about

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decoy cars and undercover units. Id. at 351, Internal Investig. Memo. at 1; id. at
723, Hrg. Tr. at 87. Based on the recorded conversations, Public Safety Director
Tom Ross launched a formal investigation, but the investigation ultimately
concluded that any allegation of misconduct was unfounded. Id. at 351, Internal
Investig. Memo. at 1. But the investigation into the recordings brought Jeremy’s
larger problems to Director Ross’s attention. Id. at 722, Hrg. Tr. at 84.
After learning of the felony conviction in September 2015, Ross approached
McRay to discuss Jeremy’s criminal history. Admin. R. at 723, Hrg. Tr. at 86-87.
During that meeting, Director Ross said that McRay’s relationship with Jeremy
violated a departmental rule against certain associations set forth in a specific
departmental order, General Order 12. Id., Hrg. Tr. at 88-89. General Order 12
contains a list of various offenses that can subject a police officer to departmental
discipline. Among those is a ban on relationships with persons who have criminal
histories or who are under investigation:
[R]egular or continuous associations or dealings with persons [Employees]
know, or should know, are persons under criminal investigation or
indictment, or who have a reputation in the community or the Department
for present involvement in felonious or criminal behavior.
Admin. R. at 13, General Order No. 12, § VII, ¶ 8(B). Paragraph 8(B) also contains
exceptions, including:
Exceptions: when as necessary to the performance of official duties, or where
unavoidable because of other family or personal relationships of the
employees’.
Id. Finally, the rule requires an officer to notify the Chief of Police if a family or
personal relationship is the basis for an exception to the ban:
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If such family or personal relationships exist, then the employee shall make
notification to the Chief of Police, via memorandum.
Id, General Order No. 12, § VII, ¶ 8(C).4
When confronted with the policy, McRay told his supervisors that his son did
not live with him, and in late September 2015, he submitted a memo to the Director
making that representation. Admin. R. at 2, Initial Charges at 2; id. at 723-24, Hrg.
Tr. at 89-91; id. at 1269, McRay Memo. at 1. Ross responded with a memo of his
own, acknowledging McRay’s written notice, and advising him that the association
restriction, General Order No. 12, § VII, ¶ 8(B) and (C), applied to his situation. Id.
at 3, Initial Charges at 3; id. at 724, Hrg. Tr. at 92-93; id. at 1270, Ross Memo. at 1.
Ross’s memo also asked McRay to keep Ross “advised of all changes and updates.”
Id. at 1270, Ross Memo. at 1. When asked later (at the Board hearing) what he
meant by this, Ross answered, “the document speaks for itself.” Id. at 725, Hrg. Tr.
at 94. Director Ross testified that he told McRay only that the rule applied to his
situation. Id. at 726, Hrg. Tr. at 100. According to Ross, “it was not an explicit
order” that McRay stay away from his son. Id.
After the September 2015 memo exchange between McRay and Ross, Jeremy
had several other run-ins with the police. In July 2016 (at that time, Jeremy was on
pretrial release for the pending burglary charge), the Naperville police department
had a 911 call come from Jeremy’s cell phone. Admin. R. at 784, Hrg. Tr. at 263.
When emergency services dialed back, Jeremy did not pick-up, and GPS was traced

4As

the Director of Public Safety, Tom Ross acted as both the Chief of Police and the
Chief of the Fire Department in Bolingbrook, Illinois. See Admin. R. at 725, Hrg. Tr. at 9697.

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back to McRay’s Bolingbrook address, where Jeremy was found. Id. at 833, Hrg. Tr.
at 377. According to McRay, Jeremy had gotten a flat tire the day before, and
McRay let him spend the night at his Bolingbrook home—which was closer than his
usual home at his mother’s Plainfield residence—so it could be fixed in the morning.
Id. at 527, McRay 7/13/16 Memo. at 1; id. at 728, Hrg. Tr. 108-09.
The whole situation came to a head in August 2016. McRay, away in Arizona
on vacation, asked Jeremy to go to McRay’s Bolingbrook home to check on his dogs.
Admin. R. at 41-42, McRay Int. Tr. at 17-18. Unbeknownst to McRay, Jeremy
hosted a party at the house that night. At the party, a woman reported being
sexually assaulted and numerous items were stolen from McRay’s house. Id. at 3,
Initial Charges at 3; id. 729-30, Hrg. Tr. at 113-15. After the thefts, Director Ross
claimed McRay had failed to file police reports with the department and had not
been forthcoming with information about the incident. Id. at 730, Hrg. Tr. at 11415. McRay eventually filed police reports stating that his badge and hat shield had
been stolen. Id. at 646, Board Ord. at 5. At that point, Ross initiated a formal
complaint against McRay, beginning the investigation that would end in McRay’s
eventual discharge. Id. at 730, Hrg. Tr. at 116; id. at 1274, Serv. Complaint at 1.
McRay was put on administrative leave from the Bolingbrook Police Department,
but was ordered to contact his Patrol Commander by 9 a.m. on the days he was
scheduled to work; he failed to do that on two days in September 2016. Id. at 4,
Initial Charges at 4; id. at 822, Hrg. Tr. at 332-33.

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After

McRay

was

served

paperwork

of

the

Department’s

internal

investigation into his conduct, fellow Bolingbrook officers searched his locker and
desk at the department. Admin. R. at 341, Hess Timeline Memo. at 2. They found a
bottle of prescription Hydrocodone, prescribed to Jeremy, in McRay’s desk. Id. at
341, 343, Hess Timeline Memo. at 2, 4. The officers confiscated the pills. Id. at 741,
Hess Timeline Memo. at 2.
Another incident happened in around October 2016. McRay’s dog was
involved in a fight with a neighbor’s dog. Admin. R. at 603, Am. Charges at 4.
Under Bolingbrook ordinances, McRay’s dog should have been impounded, but
McRay refused to turn his dog over to the Village. Id. at 604, Am. Charges at 5.
McRay testified that he had moved the dog out of town, because his house was for
sale and McRay refused to build a fence that would be necessary to release his dog
from impoundment. Id. at 646, Board Ord. at 5.
Eventually, the Department notified McRay that Director Ross brought
disciplinary charges against him before the Bolingbrook Fire and Police
Commission. See Admin. R. at 1-9, Initial Charges at 1-9. The list of accusations
included: failure to obey orders; possession of a controlled substance; association
with restricted persons under criminal investigation; failure to cooperate with a
police investigation; failure to comply with general orders; insubordination; failure
to report the loss of municipal property; failure to maintain a working knowledge of
the regulations of the police department; and failure to maintain conduct expected
of an officer. Id.

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After an evidentiary hearing, the Board found McRay guilty of each offense
except the failure to report the theft of municipal property. It found that McRay’s
misconduct constituted a “substantial shortcoming” that prevented him from
holding a sergeant’s position. Then, the Board ordered that McRay be discharged
from the Bolingbrook Police Department. Admin. R. at 687-88, Suppl. Board Ord. at
1-2.
II. Standard of Review
The Illinois Administrative Review Law provides for judicial review of
administrative agency decisions. 735 ILCS 5/3-110. Factual findings are presumed
“to be prima facie true and correct,” id.; Richard’s Tire Co. v. Zehnder, 692 N.E.2d
360, 366 (1998), which means that the findings remain intact unless they are
against the manifest weight of the evidence, Roman v. Cook Cty. Sheriff’s Merit
Board, 17 N.E.3d 130, 153 (Ill. App. Ct. 2014). The manifest-weight standard is not
satisfied “merely because an opposite conclusion might be reasonable.” Id. But even
under the manifest-weight standard, the deference given to the agency’s decisions is
not “boundless.” Kouzoukas v. Retirement Board of the Policemen’s Annuity &
Benefit Fund, 917 N.E.2d 999, 1011 (Ill. 2009) (quoting Wade v. City of N. Chi.
Police Pension Board, 877 N.E.2d 1101, 1114 (2007)). The review “cannot amount to
a rubber stamp of the proceedings below.” Bowlin v. Murphysboro Firefighters
Pension Board of Trustees, 857 N.E.2d 777, 782 (Ill. App. Ct. 2006). Although a
decision may be “supported by some evidence, which if undisputed would sustain
the administrative finding, it is not sufficient if upon a consideration of all the

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evidence, the finding is against the manifest weight.” Id. A reviewing court should
not “hesitate to grant relief” when a record lacks the “evidentiary support for the
agency’s determination.” Id.
An agency’s decision on a question of law is reviewed de novo. Richard’s Tire
Co., 692 N.E.2d at 366. The agency’s decisions on mixed questions of law and fact
get some deference, with reversals reserved for those that are “clearly erroneous”—
that is, when the reviewing court, on the entire record, is “left with the definite and
firm conviction that a mistake has been committed.” AFM Messenger Serv., Inc. v.
Dep’t of Emp’t Sec., 763 N.E.2d 272, 280-81 (Ill. 2001) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)).
III. Analysis
A. Subject Matter Jurisdiction
In a federal case, it is always the first order of business to make sure that
subject matter jurisdiction applies. Here, McRay’s administrative-review claim is
covered by supplemental jurisdiction. 28 U.S.C. § 1367(a). Defendants halfheartedly “question” whether supplemental jurisdiction applies, arguing that
precedent is “somewhat murky” on whether § 1367 authorizes a federal court to
review a state administrative decision. Def. Resp. at 8. But Supreme Court case law
is clear: it matters not, for jurisdictional purposes, that a state administrative
decision is the subject of the supplemental claim. Section 1367 “generally confers”
supplemental jurisdiction over “all other claims” in the same “case or controversy as
a federal question, without reference to the nature of review.” City of Chi. v. Int’l

8

College of Surgeons, 522 U.S. 156, 169 (1997). International College of Surgeons
interpreted a prior case, Chi. R.I. and P.R. Co. v. Stude, 346 U.S. 574, 582 (1954)
(cited by Def. Resp. at 8), to mean only that a litigant cannot split a challenge to a
state administrative decision by bringing a federal-court action for damages while
the underlying substantive decision was still under review in state court. 522 U.S.
at 169-70. “There is nothing in the text of § 1367(a) that indicates an exception to
supplemental jurisdiction for claims that require on-the-record review of a state or
local administrative determination.” Id. at 169. So there is nothing in § 1367(a) that
would prevent the Illinois Administrative Review Law claim from being premised
on supplemental jurisdiction.
It is possible (subject to the Supremacy Clause) that a state law could
prohibit other courts from hearing the merits of a state-law claim, but Illinois’s
Administrative Review Law does not do that. See 735 ILCS 5/3-101 et seq. To be
sure, in pertinent part, the jurisdictional provision states: “Jurisdiction to review
final administrative decisions is vested in the Circuit Courts …” 735 ILCS 5/3-104.
And the statute refers to “Circuit Court[s]” in describing what judicial review
comprises when evaluating an administrative decision. 735 ILCS 5/3-111(a). But
there is no textual command that the jurisdiction grant is exclusive to Illinois state
trial courts—and neither party contends otherwise. This statutory framework is
similar to the Illinois Human Rights Act, which states that aggrieved parties “may
commence a civil action in an appropriate Circuit Court … .” 775 ILCS 5/10102(A)(1). Again, there is no reference to federal courts, but Illinois Human Rights

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Act claims are routinely brought in federal court under the aegis of § 1367(a)
supplemental jurisdiction, see, e.g., Naeem v. McKesson Drug Co., 444 F.3d 593, 600
(7th Cir. 2006), or even directly under diversity jurisdiction, see, e.g., Richards v.
U.S. Steel, 869 F.3d 557, 562 (7th Cir. 2017). The similar provisions of the Illinois
Administrative Review Law ought to have the same result: supplemental
jurisdiction does apply to McRay’s claim for administrative review.
B. Due Process
Moving on from subject matter jurisdiction, McRay first contends that the
Board’s findings must be reversed because the charges against him were
“unconstitutionally vague and ambiguous.” Pl. Br. at 8. Both the federal and state
due process clauses require a sufficiently definite charge, adequate notice, and a fair
and impartial hearing. Burns v. Police Bd. of City of Chi., 432 N.E.2d 1300, 1303
(Ill. App. Ct. 1982). In an administrative proceeding, the charges need not be drawn
with the “same precision required of pleadings in judicial proceedings.” Id. In
Burns, the Illinois Appellate Court held that administrative pleadings violated due
process when the charges informed the supposed offender only of the date of his
alleged wrongful actions and a vague description of the transgression—the
document was devoid of any information on location, time frame, or victim. Id.
Here, McRay contends that the Amended Charges were not “sufficiently written” to
notify him of the “charges against him” or allow him to “prepare a defense.” Pl. Br.
at 9.

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A review of the document shows otherwise. The Amended Charges detail
McRay’s alleged conduct, with specific dates and time frames, as well as his son’s
contact with the Police Department, all leading up to McRay’s evidentiary hearing.
Admin. R. at 600-08, Am. Charges at 1-9. Over the course of several pages, the
allegations are divided into paragraphs, asserting pertinent facts that call into
question McRay’s conduct as a police officer. The charges do much more than
merely list the rules that McRay allegedly broke by associating with his son—the
document sets forth extensive factual detail. Id. It then describes the alleged
violations of the Department’s rules, contained in General Order 12, that could lead
to McRay’s discipline. Id. at 604-05, Am. Charges at 5-6. To be sure, the charging
document does not always draw direct lines from McRay’s specific actions to the
particular subsections of General Order 12, id., but the factual details and the
particular rules are all contained in the Amended Charges. The charges levied
against him are not vague or ambiguous.5
C. Manifest Weight of the Evidence
An agency’s decision to discharge an employee for “cause” is entitled to
deference. See Walsh v. Board of Fire and Police Com’rs of Village of Orland Park,
449 N.E.2d 115, 117 (Ill. 1983). Judicial review of a discharge decision comprises
two steps. Walker v. Dart, 30 N.E.3d 426, 435 (Ill. App. Ct. 2015). The first step is to

It is worth nothing that McRay also had the benefit of legal representation
throughout the administrative process, from his pre-hearing interview to the
evidentiary hearing itself. His counsel never challenged the sufficiency of the
charges or raised any arguments about perceived vagueness. See generally Admin.
R.
5

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determine whether the agency’s “findings of fact are contrary to the manifest weight
of the evidence.” Id. (quoting Marzano v. The Cook County Sheriff’s Merit Board,
920 N.E.2d 1205, 1208 (Ill. App. Ct. 2009)); see Walsh, 449 N.E.2d at 117
(determining whether “the agency’s finding of guilt is contrary to the manifest
weight of the evidence”). The second step is to evaluate whether the agency’s
“findings of fact provide a sufficient basis for its conclusion that cause for discharge
exists.” Walker, 30 N.E.3d at 435. “Cause” for a firing must be “some substantial
shortcoming” that renders an officer’s continuing employment “in some way
detrimental to the discipline and efficiency of the service” and that the “law and a
sound public opinion recognize as a good cause.” Marzano, 920 N.E.2d at 1208
(quoting Walsh, 449 N.E.2d at 117). Generally speaking, the Board itself is in the
best position to determine the effect of an officer’s conduct on the department.
Hermesdorf v. Wu, 867 N.E.2d 34, 43 (Ill. App. Ct. 2007). So it is afforded
“considerable deference” to its discharge finding, and it will be overturned only if it
is “arbitrary and unreasonable or unrelated to the requirements of the service.”
Marzano, 920 N.E.2d at 1208.
Here, the Board determined that McRay violated eight different sections of
General Order 12, including: continuing a prohibited association; possessing a
controlled substance; failing to cooperate with a police investigation; disobeying
orders and insubordination; failing to read, comply, and maintain knowledge of the
department rules; and engaging in conduct adversely affecting the morale of the
department. Admin. R. at 679-84, Am. Board Ord. at 1-6; id. 11-19, General Order

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No. 12. Despite the myriad violations, the Board’s decision really boils down to four
factual findings: (1) McRay’s continued contact with his son Jeremy; (2) possession
of Jeremy’s prescription medication; (3) failure to report stolen items from McRay’s
household; and (4) resistance to impounding his dog. The Court examines each
finding in turn.
1. Association with Son
Starting with the charge that sparked the entire investigation, McRay’s
relationship with his son serves as the foundation for many of the allegations. The
Board sustained the charge that McRay violated the rule against association with
criminal suspects. Admin. R. at 680, Am. Board Ord. at 2. Specifically, the rule
requires that officers avoid “regular and continuous” associations with people under
criminal investigation or who have a reputation for criminal behavior. Id. at 680,
Am. Board Ord. at 2; id. at 13, General Order No. 12, § VII, ¶ 8(B). The Board based
its conclusion that McRay violated this rule on the following findings: (1) Jeremy
was a convicted felon with involvement in other criminal behavior; (2) McRay was
aware of the rule; (3) the rule applied to McRay’s relationship with Jeremy without
exception; and (4) McRay had regular and consistent associations with Jeremy,
because Jeremy lived with McRay. Id. at 680-81, Am. Board Ord. at 2-3. The Board
also found that McRay violated a direct order to provide reports about his
relationship with his son. Id. at 681, Am. Board Ord. at 3. For the reasons detailed
below, the Court concludes that, even giving the Board the considerable deference

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owed to it, the Board committed clear error in finding that Ross correctly applied
the rule to McRay’s relationship with Jeremy.
To unpack this, start with the undisputed fact that Jeremy did have a felony
conviction as of September 2015. After Director Ross learned of that criminal
history and also learned that Jeremy was facing another felony charge (this time for
car burglary), Ross met with McRay to question him about the extent of McRay and
Jeremy’s contact. Admin. R. at 723, Hrg. Tr. at 86-89. The focus of the questioning
was where Jeremy lived. Id. McRay explained that Jeremy primarily lived with his
mother, McRay’s ex-wife Diana, in Plainfield, Illinois. Id. At that point, Ross told
McRay that “General Order 12 applied to him,” which meant (at least to Ross’s way
of thinking) that McRay’s relationship with Jeremy was covered by the rule. Id.
After that meeting, two key documents come into play: McRay’s memo to
Director Ross, and Ross’s responsive memo. Admin. R. at 1269, McRay Memo. at 1;
id. at 1270, Ross Memo. at 1. Remember that the exception to the criminalassociation ban allows for associations that are “unavoidable because of other family
or personal relationships,” id. at 13, General Order No. 12, § VII, ¶ 8(B), but the
officer “shall make notification to the Chief of Police, via memorandum,” id., § VII,
¶ 8(C).6 McRay’s memo focused primarily on Jeremy’s living arrangements,
explaining that, before his arrest, Jeremy lived with his mother “a majority of the
time,” but had been “temporarily staying” with McRay due to a fight between
Jeremy and his mother. Admin. R. at 1269, McRay Memo. at 1. In the memo,
6The

rule does not dictate a timeline for submitting the memo, and there is no
reason to believe that its submission was untimely. See Admin. R. at 13, General Order 12
§ VII, ¶ 8(C).

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McRay stated that Jeremy would not “permanently reside at my Bolingbrook
residence.” Id.7 Ross responded that same day—in a succinct, three-sentence
memo—simply repeating his viewpoint that McRay’s relationship with Jeremy
“does fall within General Order 12, § VII, ¶ 8, parts B & C.” Id. at 1270, Ross Memo.
at 1. Ross’s response also stated, “please keep me advised of all changes and
updates”—but the memo did not explain specifically what that meant. Id.
The Board committed clear error in finding that this series of events
amounted to a violation of the criminal-association ban or an order from Ross (or a
combination of both). The rule contains an explicit exception: “where unavoidable
because of other family or personal relationships of the employees.” Admin. Tr. at
13, General Order No. 12, § VII, ¶ 8(C). So McRay’s family relationship with Jeremy
qualified for the exception. The rule requires McRay to notify the Chief of Police “via
memorandum.” Id. He did that. Yet Ross’s only written response was to simply say
that the relationship “does fall within General Order 12, § VII, paragraph 8, parts B
& C.” Admin. R. at 1270, Ross Memo. at 1. Part C is the exception to the criminalassociation ban, so what was McRay to make of that statement? Ross’s memo did
not further explain how the rule applied; did not assert that McRay’s relationship
was outside the family-relationship exception; and did not describe what “changes

7This

was after Ross had already approached McRay about Jeremy’s criminal
history, so it is inconsequential that McRay did not rehash that history. Nor does the rule
specifically prescribe what the memo must include. Admin. R. at 13, General Order No. 12,
§ VII, ¶ 8(C); see Jackson v. Board of Educ. of City of Chi., 53 N.E.3d 381, 389 (Ill. App. Ct.
2016) (holding termination against the manifest weight of the evidence, because omission of
discharge on job application was not intentional when application did not require
disclosure). The memo described the living situation, which was what Ross focused on in
the meeting. See Admin. R. at 1269, McRay Memo. at 1.

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and updates” Ross wanted to know about. Indeed, at the evidentiary hearing in
front of the Board, when asked what the “changes and updates” request meant,
Ross answered only that the “document speaks for itself.” Id. at 725, Hrg. Tr. at 94.
No, it does not.
Moving on from the rule itself and Ross’s memo, the Board argues that, at the
September 2015 meeting, Ross verbally advised McRay that the family-relationship
exception did not apply to McRay. But the exception plainly does apply: the text of
the provision says that the criminal-association ban does not apply “where
unavoidable because of other family or personal relationships of the employees.”
Admin. R. at 13, General Order No. 12, § VII, ¶ 8(C). Ross’s interpretation of the
exception made no sense. Indeed, at the evidentiary hearing, Ross explained what
he tried to convey in his response memo by citing to Paragraphs 8(B) and 8(C):
McRay “can’t associate with a known felon. He can’t associate with someone under
criminal investigation or somebody under indictment.” Admin. R. at 724, Hrg. Tr. at
93. To say that McRay “can’t associate with a known felon” would mean that McRay
could never spend time with his son, because Jeremy was (and always will be) a
“known felon.” Yet the rule does not even specifically ban associating with someone
just because they have been convicted of a felony in the past. Rather, it prohibits
contact with people “under criminal investigation or indictment, or who have a
reputation in the community or the Department for present involvement in felonious
or criminal behavior.” Admin. Tr. at 13, General Order No. 12, § VII, ¶ 8(B)
(emphasis added); see Walker, 30 N.E.3d at 436 (highlighting the importance of the

16

restrictions described in the actual text of the “general orders and rules” governing
officers when determining violations). The Board clearly erred in affirming Ross’s
interpretation and application of the criminal-association ban and the familyrelationship exception.
To make matters worse, Ross in fact never directly ordered McRay not to
associate with Jeremy and never told McRay the limits of the association. Admin. R.
at 726, Hrg. Tr. at 99-100 (Q. Did you order Sergeant McRay to not associate with
Jeremy except where unavoidable? A. I told Sergeant McRay that General Order 12,
that specific section applied to him and that he needed to keep me apprised of any
changes or any updates. So it was not an explicit order.”); id. at 769, Hrg. Tr. 204-05
(“There are a lot of reasons why you might have to have contact with your son, but
they’re severely limited …”). When asked at the hearing why the familyrelationship exception did not apply, Ross resorted to ipse dixit, answering:
The exception doesn’t apply because—and it’s a case by case interpretation,
but when I say it doesn’t apply, it doesn’t apply. It’s an interpretive general
order … . I was asked if it could apply. I told him it didn’t apply. The
exception doesn’t apply. It’s not unplanned. It’s not incidental. Done.
Admin. R. at 838, Hrg. Tr. at 398 (emphasis added). At best, without any textual
support in the rule and its exception, Ross is saying that any “unplanned” contact
between McRay and Jeremy would violate the association ban. At worst, Ross is
saying that whatever he says, goes.
In trying to defend Ross’s interpretation, the Board cites cases that affirmed
discharges where officers began romantic relationships with (and later married)
persons with criminal histories. Def. Resp. at 12-13; see Merrifield v. Ill. State Police
17

Board, 691 N.E.2d 191, 199 (Ill. App. Ct. 1998) (upholding Board’s termination
decision where officer married a felon, even after the police department brought the
felony to the officer’s attention and forbade the relationship); Bautista v. County of
Los Angeles, 118 Cal. Rptr. 3d 714, 717 (Cal. Ct. Appl. 2010) (upholding firing where
officer moved in with, and later married, a well-known heroin addict and sex
worker). Those cases are different from McRay’s, because it is possible to not start a
romantic relationship or friendship with a criminal, but McRay’s family relationship
with Jeremy was not a matter of choice. The evidence does not support that
McRay’s relationship with Jeremy falls outside of the family-relationship exception,
or that McRay otherwise violated a rule or directive. The Board committed clear
error in affirming this basis for the firing. And several other grounds for the firing
were premised on the flawed finding: failing to “understand or comply” with all
“rules and regulations, general and special orders, policies and procedures of the
Department,” Admin. R. at 15, General Order 12 § VII, ¶ 22; id. at 682, Am. Board
Ord. at 48; being insubordinate by failing to “obey a lawful order given by a
supervisor,” Admin. R. at 17, General Order 12 § VII, ¶ 36; id. at 683, Am. Board
Ord. at 59; engaging in conduct “which adversely affect[ed] the morale or efficiency

8The

Board also found this violation related to the possession of a controlled
substance and the failure to cooperate with a police investigation. Admin. R. at 682, Am.
Board Ord. at 4. The findings for those events are not against the manifest weight of the
evidence.
9Like the failure to understand and comply with the rule, the Board also sustained
the insubordination violation related to the possession of a controlled substance and the
failure to cooperate with a police investigation. Admin. R. at 682, Am. Board Ord. at 4. The
findings for the failure to cooperate are not against the manifest weight of the evidence.
The insubordination charge for the controlled substance possession is discussed later in the
Opinion.

18

of the Department … or has a tendency to destroy public respect for the employee
and/or Department,” Admin. R. at 16, General Order 12 § VII, ¶ 22; id. at 682, Am.
Board Ord. at 4; and failing to “establish and maintain a working knowledge of
laws, rules and regulations, policies and procedures … of the Bolingbrook Police
Department,” Admin. R. at 19, General Order 12 § VII, ¶ 22; id. at 683, Am. Board
Ord. at 5.10
2. Possession of Prescription Medication
Moving on to the rules violations that did not hinge on McRay’s family
relationship with Jeremy, the General Order disallows the “possession and/or use of
controlled substances or medications.” Admin. R. at 12, General Order 12, § VII,
¶ 4. The reason for such a rule is obvious: officers under the influence of controlled
substances could “impair[] or compromise[] the efficiency and integrity of the
Department.” Id.
When officers searched McRay’s work desk in September 2016, they
recovered a bottle of hydrocodone (a narcotic) prescribed to Jeremy. Admin. R. at
997-98, Hrg. Tr. 764-765. Even if McRay was holding onto the medication to keep it
away from his drug-addicted son, McRay admitted that he did not report the
possession to his supervisor. Admin. R. at 815-16, Hrg. Tr. at 307-08; id. at 998,
Hrg. Tr. at 765. And it is irrelevant that McRay never took or was accused of
ingesting

any

of

the

controlled

substance—the

rule

unequivocally

bans

unauthorized “possession.” Id. at 12, General Order 12, § VII, ¶ 4. The Board’s
10The

Board did not make any factual findings with regard to this specific charge. It
merely found the “charge sustained based upon the facts discussed herein.” Admin. R. at
683, Am. Board Ord. at 5.

19

finding that McRay violated this provision is affirmed. On remand, the Board may
consider what discipline (including termination) is warranted by this violation.
But the Board’s additional finding that McRay was insubordinate with
regard to the possession is against the manifest weight of the evidence. The Board
did not describe any way in which McRay “failed or deliberately refused to obey a
lawful order given by a supervisor.” Admin. R. at 17, General Order 12, § VII, ¶ 36
(cleaned up).11 And the record does not suggest insubordination with regard to the
possession. So the consideration of discipline on remand must be limited to the
possession itself.
3. Failure to Cooperate with Police Investigation
After Jeremy held his unauthorized party at the Bolingbrook home while
McRay was out of town, either Deputy Chief of Police Ken Teppel or Commander
Dennis Hess informed McRay of the party and the thefts from his home. Admin. R.
at 818, Hrg. Tr. at 316-17. A number of McRay’s personal items had been stolen
from the house, including several television sets, watches, syringes, a guitar, a
handgun magazine, ammunition, and shoes. See Admin. R. at 967-69, Hrg. Tr. at
730-35; id. at 995-96, Hrg. Tr. at 756-58. Teppel asked McRay to file a police report
on the theft. Id. at 819, Hrg. Tr. at 320. Although McRay did eventually write a
memo about the stolen property, he never filed a police report on the personal items

11This

opinion uses (cleaned up) to indicate that internal quotation marks,
alterations, and citations have been omitted from quotations. See, e.g., United States v.
Reyes, 866 F.3d 316, 321 (5th Cir. 2017).

20

stolen from his home.12 At the evidentiary hearing before the Board, McRay
reasoned that the department was already aware of the thefts, and that he “knew
the director was out to get me, that’s why I didn’t file it.” Id. at 969, Hrg. Tr. at 736;
id. at 996, Hrg. Tr. at 760.
That explanation does not justify refusing to file the police report, or at least
the Board did not commit clear error in finding the violation. The General Order
requires officers “to fully cooperate with a police investigation.” Admin. R. at 13,
General Order No. 12, § VII, ¶ 9. McRay’s superiors in the police department asked
him to file a police report about the stolen items. At that time, there was an ongoing
investigation, not only into the thefts, but into a sexual assault alleged to have
taken place during the party. Id. at 1002-03, Hrg. Tr. at 784-85. So a police
investigation was ongoing. Whatever McRay’s reasons for not wanting to file a
report, his defiance amounted to a refusal to cooperate in the investigation. And
even though he reported some items missing, he did not file the police report on his
personal items—so he did not “fully cooperate” with the investigation. Admin. R. at
13, General Order No. 12, § VII, ¶ 9. The Board had sufficient evidence to find that
McRay failed to fully cooperate with a police investigation, so that charge is
sustained, and the Board may consider it on remand.

12The

Board did not sustain charges that McRay had failed to report the loss of
municipal property or equipment. Admin. R. at 683, Am. Board Ord. at 5. McRay did, in
fact, report the badge and hat shield stolen. Id. at 968-69, Hrg. Tr. at 734-35; id. at 1275,
McRay Missing Items Memo. at 1. He also confirmed that his other badges and uniforms
were accounted for, complying with Deputy Chief Teppel’s request. Id. at 1049, Hrg. Tr. at
892-93.

21

4. Violation of Ordinance
The final set of events leading to McRay’s discharge arose from an altercation
between McRay’s and his neighbor’s dogs. As previously discussed, McRay’s dog
broke through the fence separating McRay’s house from his neighbor’s, and the dog
got into a fight with the neighbor’s dog. Admin. R. at 874, Hrg. Tr. at 445. At the
evidentiary hearing, Bolingbrook’s Animal Control Supervisor testified about the
various Village ordinances on pets. Id. at 873, Hrg. Tr. at 443. She explained that
when a dog seriously injures another one, that dog normally is impounded under
the dangerous-animal ordinance. Id. at 874, Hrg. Tr. at 447; see id. at 1282-86,
Animal Ordinance at 3-7. When Animal Control tried to impound McRay’s dog, he
refused to turn the animal over, arguing that he did not believe the dog was vicious
and explaining that he had given it to a friend outside of Bolingbrook. Id. at 875,
Hrg. Tr. at 450. Even when told that the ordinance applied to his dog, McRay
refused to comply. See id. at 883, Hrg. Tr. at 482.
McRay asserts that he was not informed specifically about the dangerousanimal ordinance. Instead, McRay testified that he was told that the dog’s
impoundment was only necessary until his fence was fixed—but McRay was selling
his house and had no intention of fixing the fence. Admin. R. at 1117-18, Hrg. Tr. at
1071-73. So rather than turn over the dog to be impounded, McRay moved it to
another location to get around the fencing problem. Id. But in light of the deference
owed to administrative decisions, the Board was entitled to find that McRay did not
satisfactorily comply with the dangerous-animal ordinance. Id. at 682-83, Am.

22

Board Ord. at 4-5. Under the ordinance, Animal Control cited McRay for owning a
“vicious dog” (and McRay paid the citation). Id. at 1117-18, Hrg. Tr. at 1071-73.
Under the ordinance, a dog that is “found to be a vicious dog and which is not
confined to an enclosure shall be impounded.” Id. at 1285, Animal Ordinance at 6,
§ 21-110(D). It was not clearly erroneous for the Board to find that McRay violated
the ordinance by refusing to submit the dog for impoundment. Based on that
outright refusal to comply with the ordinance, the Board reasonably found, given
the deference owed to the Board, that McRay engaged in conduct that “adversely
affects the morale” of the department and “destroy[s] public respect” for the
department. Admin. R. at 16, General Order No. 12, § VII, ¶ 33. The charge is
sustained, and on remand, the Board may consider that charge for discipline.
5. Discharge Decision
With an important pillar of the Board’s discharge decision vacated, the next
question is whether the affirmed findings provide “cause” for the firing. See Walker,
30 N.E.3d at 435; Harder v. Village of Forest Park, 2008 WL 4561631, at *7-8 (N.D.
Ill. May 2, 2008); Roman, 17 N.E.3d at 170. But rather than deciding that in the
first instance, however, the Court will exercise its discretion under the Illinois
Administrative Review Act and remand to the Board to give it the first chance to
decide whether the vacatur of the criminal-association finding leaves enough to fire
McRay. Under the Act, the reviewing Court has the authority to remand:
(5) to affirm or reverse the decision in whole or in part;
(6) where a hearing has been held by the agency, to reverse and remand the
decision in whole or in part, and, in that case, to state the questions requiring
23

further hearing or proceedings and to give such other instructions as may be
proper … .
735 ILCS 5/3-111(a)(5), (6). Here, the Court has found that the most important
finding against McRay was against the manifest weight of the evidence. The
question now is whether the remaining violations constitute a “substantial
shortcoming” rendering his continued employment as an officer “detrimental to the
discipline and efficiency of the service.” Marzano, 920 N.E.2d at 1208 (quoting
Walsh, 449 N.E.2d at 117); see also Roman, 17 N.E.3d at 169-71. It is better for the
Board to decide that in the first instance.
D. Other Constitutional Claims
As a final note: McRay urges the Court to dive into the constitutionality of
the Department’s prohibition on relationships with persons under criminal
investigation or engaged in criminal behavior. Pl.’s Br. at 10-14. Specifically, McRay
argues that the ban on associating with his son violated his due process rights and
that the rule itself is unconstitutionally vague and ambiguous. Pl.’s Br. at 10, 14.
But there is no need to decide those issues, because the Court has already held that
the finding on the criminal-association rule is against the manifest weight of the
evidence. See Walker, 30 N.E.3d at 439 (“Since we have held that the Merit Board’s
decision was against the manifest weight of the evidence, we need not reach the
remaining issues on appeal, including whether the drug policy is unconstitutionally
vague ... .”). And the lion’s share of McRay’s federal claims rests on these same
questions, so it would be premature to decide those issues before the conclusion of
discovery on the federal claims.
24

IV. Conclusion
For the foregoing reasons, the motion for partial summary judgment is
granted in part and denied in part. The Board’s decision to discharge McRay is
vacated because the criminal-association finding is against the manifest weight of
the evidence. But the decision is remanded to consider what discipline is
appropriate based on the other rules violations. The Board must reconvene to
determine the appropriate discipline for those violations.
In light of this summary judgment decision, the parties shall confer on what
the next procedural step ought to be, and then file a Position Paper (disagreements
on the next step may be set forth in the joint filing). It might be appropriate to enter
a Rule 54(b) judgment on the state law administrative-review claim, which would
trigger the vacatur and remand to the Board, even as the parties continue engaging
in discovery on the federal claims. And it would make a lot of sense for the parties
to engage in settlement negotiations in light of the decision. There are still a
plethora of depositions to be taken, but rather than expend time, resources, and
attorney’s fees on discovery, creative minds and cooler heads should try to resolve
this case. The Position Paper is due by June 11, 2018.

ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: May 30, 2018
25