Section 1790.100  Applicability

 

This Part shall apply to all administrative hearings concerning discretionary decertification, denials of reactivation, and emergency orders of suspension conducted under the jurisdiction of the Illinois Law Enforcement Training and Standards Board pursuant to Sections 6.3(h), 8.1(b), 8.2(b), and 8.3(c) of the Illinois Police Training Act [50 ILCS 705/6.3(h), 8.1(b), 8.2(b), and 8.3(c)].

 

Section 1790.120  Definitions

 

"Administrative Law Judge" or "ALJ" means an attorney licensed to practice law in the State of Illinois who has been retained by the Board for a term no greater than 4 years to conduct any hearings governed by this Part who has received Board training required by law relating to the subject matter of the hearings conducted under this Part.

 

"Board" means the Illinois Law Enforcement Training Standards Board as established pursuant to Section 3(a) of the Police Training Act. [50 ILCS 705/3].

 

"Charges of misconduct" means the violations alleged against an officer in a complaint, refusal of reactivation, or emergency order of suspension, as applicable.

 

"Complaint" means a formal complaint described in Section 6.3(g) of the Illinois Police Training Act [50 ILCS 705/6.3(g)].

 

"Complainant" means (i) the Board for hearings on formal complaints for decertification; or (ii) the officer or law enforcement agency contesting a refusal of reactivation or an emergency order of suspension.

 

"Day" means a calendar day.

 

"Director" means the Executive Director of the Illinois Law Enforcement Training Standards Board.

 

"Document" means pleading, notice, motion, affidavit, memorandum, brief, petition, or other paper or combination of papers required or permitted to be filed.

 

"Evidence" means documents, objects, testimony, and any other matter that is considered evidence under the Illinois Rules of Evidence [735 ILCS 5/Art. VIII].

 

"Hearing" means a formal proceeding in which the administrative law judge shall report any findings of fact, conclusions of law, and recommended disposition. [50 ILCS 705/6.3].

 

"IAPA" means the Illinois Administrative Procedure Act [5 ILCS 100].

 

"Panel" means the Illinois Law Enforcement Certification Review Panel as created by the Illinois Police Training Act [50 ILCS 705/3.1].

 

"Respondent" means: (i) the officer for hearings on formal complaints for decertification; or (ii) the Board for hearings contesting refusal of reactivation and emergency orders of suspension.

 

"Review Committee" means the Committee created under Section 3(a-5) of the Illinois Police Training Act [50 ILCS 705/3(a-5)].

 

"Statement" means a written statement made by a witness and signed or otherwise adopted or approved by the witness, or a stenographic, mechanical, electrical, or other recording, or a transcription of the recording that is a substantially verbatim recital of an oral statement made by the witness to an agent of the person obliged to produce the statement and recorded contemporaneously with the making of this oral statement. "Statement" does not include a statement of objection.

 

Section 1790.130  Burden and Standard of Proof

 

The complainant shall have the burden of proof. The standard of proof for any hearing conducted shall be by clear and convincing evidence.

 

Section 1790.140  Filing and Service

 

a)         All pleadings, motions, briefs, and documents shall be electronically filed with the Board in accordance with Supreme Court Rules 9 and 10, including complaints filed by the Panel, requests for hearings on refused reactivation filed by an officer or law enforcement agency, and requests for hearings on an emergency order of suspension filed by an officer. Service of such pleadings, motions, briefs, and documents shall be made in accordance with Supreme Court Rules 11 and 12 and subsection (c). For purposes of this Part, the word "filing" shall mean "electronic filing", and the parties are not required to file copies of any pleading, motion, brief or document that is electronically filed.

 

b)         The Panel shall cause a notice of the due date for an answer, the prehearing conference date, and the hearing date before the ALJ and, for a complaint, the additional notice requirements under Section 6.3(h)(1) of the Illinois Police Training Act to be served on the respondent in any manner authorized by the Code of Civil Procedure or by subsection (c).

 

c)         Service: 

 

1)         The Panel may serve a complaint on the respondent by personal service, email, or mail, postage fully prepaid:

 

A)        For mail, to the last known address of the respondent; or

 

B)        For email, to the last known email address of the respondent.

 

2)         The complainant for a request for a hearing on a denial of reactivation or emergency order of suspension may serve the Board by any of the means allowed under subsection (c)(1).

 

3)         The Panel's or non-Board complainant's certificate of mailing, emailing, or delivery, or other service affirmatively acknowledged by the respondent or counsel for the respondent, is sufficient proof of service.

 

Section 1790.150  Form of Documents Filed

 

a)         Documents shall clearly state a title for the proceedings in connection with which they are filed. Documents shall be filed electronically in letter-quality print on letter-sized paper and shall be signed by the party or by the party's authorized representative.

 

b)         Exhibits, when possible, shall be reduced or enlarged to conform to the size requirements of subsection (a).  A party is not prohibited from enlarging an exhibit at hearing for demonstrative purposes as long as the exhibit is reduced to the size requirement in this subsection (b) for the record.

 

c)         All pleadings shall bear the business address, e-mail address, fax number, if any, and telephone number of the attorney filing the pleading or of the party who appears on his or her own behalf.

 

Section 1790.170  Prehearing Conference

 

a)         After an ALJ is assigned to the matter under Section 1790.450, a prehearing conference shall be scheduled within 60 to 90 days of the assignment.

 

b)         Upon the request of any party, the prehearing conference shall be conducted as a matter of record.

 

c)         The purposes of the prehearing conference include:

 

1)         Simplification of issues;

 

2)         Limitation of issues;

 

3)         Negotiating admissions or stipulations;

 

4)         Limitation of witnesses or evidence;

 

5)         Exchange of exhibits;

 

6)         Discussion of any other matter that may aid in efficient disposition of the case;

 

7)         Agreed dispositions; or

 

8)         Joinder.

 

d)         The parties shall be fully prepared to participate in a prehearing conference, which shall include:

 

1)         Presentation of any prehearing motions;

 

2)         Witness and exhibit lists that list only those witnesses the party in good faith intends to call;

 

3)         Disclosure of expert witnesses; and

 

4)         Any other materials directed by an ALJ.

 

e)         Any expert witnesses and expert opinions not listed or disclosed in the prehearing conference must be disclosed in accordance with Section 1790.410(b) and disclosed no later than 21 days before the hearing.

 

Section 1790.200  Notice of Prehearing Conference

 

a)         All Prehearing Conferences shall be initiated by the issuance of a written Notice of Prehearing Conference, which shall be served upon all known parties as provided in Section 1790.140. Hearings relating to discretionary decertification or an emergency order of suspension (see 50 ILCS 705/6.3 and 8.3) shall take priority over all other hearings.

 

b)         Service shall be complete when the Notice of Prehearing Conference is served on parties as provided in Section 1790.140.

 

c)         A Notice of Prehearing Conference served under this Section shall include:

 

1)         Time, place and nature of the Prehearing Conference;

 

2)         The legal authority and jurisdiction under which the hearing is to be held;

 

3)         A reference to the particular section of the statutes and rules involved; and

 

4)         A short and plain statement of the matters asserted, except when a more detailed statement is otherwise provided for by law.

 

Section 1790.210  Appearance

 

a)         A party may be represented by an attorney who is licensed in Illinois or by an attorney otherwise permitted by law to practice in the State.  Attorneys who appear in a representative capacity must file a written notice of appearance setting forth:

 

1)         The name, address, email address, telephone number and Attorney Registration and Disciplinary Commission number of the attorney;

 

2)         The name, address and email address of the party represented; and

 

3)         An affirmative statement indicating that the attorney is licensed in Illinois or is appearing pro hac vice.

 

b)         An attorney may withdraw upon written notice to the ALJ.

 

c)         A law student licensed under Supreme Court Rule 711 may appear on behalf of any party as permitted by Supreme Court Rule 711 and shall be subject to the same requirements as an attorney.

 

d)         Attorneys admitted to practice in states or jurisdictions other than the State of Illinois may appear and be heard in a specific hearing pro hac vice as authorized and in compliance with Supreme Court Rule 707.  The attorney's appearance shall include documentation as to his or her eligibility or qualification under Supreme Court Rule 707.

 

e)         Any party may appear on his or her own behalf.

 

f)         Once an appearance is filed, a copy of all future filings shall be served upon the counsel of record, unless that counsel has withdrawn.

 

g)         The standard of conduct shall be the same as before the Courts of Illinois. Attorneys appearing before the ALJ shall conform their conduct to the Illinois Rules of Professional Conduct.  Any failure to behave in a manner consistent with those standards of conduct or this Part authorizes an ALJ to take the following actions:

 

1)         Limitation of evidence;

 

2)         Substitution of written argument in place of oral argument; or

 

3)         If warranted, reporting an attorney's misconduct to the Attorney Registration and Disciplinary Commission of the Illinois Supreme Court.

 

h)         If any of the actions authorized by subsection (g) are taken by the ALJ, it shall be done as a matter of record, and the ALJ shall state for the record the specific reasons for the action.

 

i)          A party sanctioned under this Section may request the decision be reviewed by the Panel.

 

Section 1790.250  Failure to Appear

 

Absent a compelling reason, failure to appear at the time and place set for hearing shall be deemed a waiver of the right to present evidence unless otherwise reflected by order of the ALJ.  After presentation by the nondefaulting party of proof that the defaulting party was given proper notice and the nondefaulting party has been given an opportunity to present evidence that would have been presented at the hearing in which the default occurred, the ALJ shall make his or her decision as required under Section 1790.630.

 

Section 1790.260  Amendment and Withdrawal of Complaints and Requests

 

a)         The complaint may be amended at any time, except in the course of the hearing without leave or approval of the ALJ. If an amended complaint is filed during the course of the hearing, it shall also be presented to the opposing party and ALJ. A continuance shall be granted whenever the amendment materially alters the complaint and when the respondent demonstrates that he or she would otherwise be unable to properly prepare an answer to the amended complaint. Documents received pursuant to 50 ILCS 705/ 9.2 may not be publicly disclosed except as provided by law.

 

b)         The Board may withdraw a complaint or a complainant may withdraw a request for a hearing on an emergency order of suspension or denial of recertification at any time prior to the hearing.  After a hearing has begun, a complaint or a request for a hearing may be withdrawn only with leave of the ALJ.

 

Section 1790.300  Answer

 

a)         Any party receiving a complaint and Notice of Hearing shall file a written answer to the complaint no later than 30 days after receiving the complaint and Notice of Hearing.  The respondent shall specifically admit, deny or explain each of the facts alleged in the complaint. However, if the respondent is without knowledge, the respondent shall so state and that statement operates as a denial. All allegations in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the answer states that the respondent is without knowledge, shall be deemed to be admitted to be true and shall be so found by the ALJ, unless good cause to the contrary is shown.

 

b)         The answer shall be filed with the ALJ and Panel.  Immediately upon the filing of the answer, the responding party shall serve a copy on the Director and the other party. A party who is not represented by an attorney shall sign his or her answer and state his or her address. Except when otherwise specifically provided by rule or statute, an answer need not be verified or accompanied by affidavit. The signature of the attorney or non-attorney party constitutes a certificate by him or her that he or she has read the answer; that, to the best of his or her knowledge, information and belief, there is good ground to support it; and that it is not interposed for delay. If an answer is not signed or is signed with intent to defeat the purpose of this Section, it may be stricken as a sham and false and the action may proceed as though the answer had not been served.

 

c)         The ALJ before whom the hearing is scheduled may by written order extend the time within which the answer shall be filed.

 

Section 1790.310  Motions

 

a)         All motions made before or during a hearing shall be made to the ALJ and, unless made orally on the record during a hearing or unless the ALJ directs otherwise, a motion shall be in writing and shall be accompanied by any affidavits or other evidence relied upon and, when appropriate, by a proposed order. 

 

b)         Within 14 days after service of a written motion or other document, or other period as the ALJ may allow, a party may electronically file a response in support of or in opposition to the motion and, if necessary, accompanied by affidavits or other evidence.  A party filing a motion has the right to request from the ALJ leave to file a reply to a response.

 

c)         A written brief may be electronically filed with a motion or an answer to a motion stating the arguments and authorities relied upon.  The brief may not be longer than 15 pages in length unless, prior to the filing date, leave is granted to file a brief greater than 15 pages.

 

d)         A written motion filed prior to a hearing shall be disposed of by written order and on notice of all parties, except for motions made at or after the opening of a hearing, in which case the ALJ shall announce his or her ruling orally on the record at the hearing.  All motions, rulings and orders shall become a part of the record, except that ruling on motions to quash subpoenas shall become a part of the record only upon the request of the party aggrieved.  Rulings by the ALJ on motions or objections, and orders in connection with those motions or objections, shall not be appealed directly to the Panel but shall be considered by the Panel in reviewing the record if exception to the ruling or order is included in a statement of objection filed with the Panel no later than 15 days after the date of the ALJ decision.

 

e)         The ALJ shall rule upon all motions, except that the ALJ shall have no authority to dismiss or decide a hearing on the merits without granting all parties to the proceeding a right to be heard in accordance with the procedures for motions in this Section, which shall constitute the record.

 

f)         Unless otherwise ordered, the filing of an answer or motion shall not stay the proceeding or extend the time for the performance of any act.

 

g)         A party has a right to file an emergency motion setting forth why an emergency exists and the ALJ can deny the emergency motion solely on the basis that the motion did not demonstrate that an emergency exists.

 

Section 1790.320  Joinder of Complaints

 

If two or more instances of conduct that would be deemed a violation of the Illinois Police Training Act for decertification are known to the Board at the time of the filing of a complaint with the Panel, then all known instances of conduct that would be deemed a violation of the Illinois Police Training Act shall be included in the formal complaint filed with the Panel and heard in a single hearing.

 

Section 1790.330  Postponement or Continuance of Hearing

 

A hearing may be postponed or continued for due cause by the ALJ upon his or her own motion or upon the motion of a party to the hearing. A motion by a party shall set forth facts demonstrating that the request for continuance is not for the purposes of delay. Examples of due cause include the unavailability of the ALJ, a witness, or a party due to an accident, illness, or other circumstances beyond the person's control. Notice of any postponement or continuance shall be given in writing to all parties to the hearing within a reasonable time in advance of the previously scheduled hearing date. All parties involved in a hearing shall attempt to avoid undue delay caused by repetitive postponements or continuances so that the subject matter of the hearing may be resolved expeditiously.

 

Section 1790.400  Remote Proceedings

 

a)         By order of the ALJ, any status hearing or prehearing may be conducted remotely, either by teleconference or videoconference.  The parties shall be provided instructions for accessing the teleconference or videoconference system for the date and time of the scheduled status hearing or prehearing.

 

b)         The parties may agree that a hearing will be conducted in its entirety by teleconference or videoconference or that a part or parts of the hearing will be conducted by teleconference or videoconference, including the testimony of a particular witness or witnesses.  These agreements are subject to the approval of the ALJ by entry of an order. Absent such agreement, the hearings shall be conducted in person at the Board's office.

 

Section 1790.410  Discovery

 

a)         The parties may exchange known documents, including any written statements or expert opinions, before the prehearing conference or as otherwise required by the ALJ under subsection (b)(1); however, general discovery (e.g., depositions, interrogatories, or requests to produce or admit) is not permitted.

 

b)         Disclosure of the following shall be required in accordance with the time periods set forth in this subsection (b) unless otherwise modified by the ALJ in the order issued pursuant to the prehearing conference:

 

1)         Unless otherwise ordered by the ALJ at least 21 days prior to the commencement of the hearing, each party shall provide the other party with a copy of any document and disclose other evidence that the party may offer into evidence, including any statements as defined by Section 1790.120.  This subsection (b)(1) does not require any party to provide copies of documents already provided or disclose evidence already disclosed.  Each party shall provide newly discovered documents or disclose other evidence to the opposing party as they become known to the party intending to introduce the document or introduce the other evidence.

 

2)         Unless otherwise ordered by the ALJ at least 21 days prior to the commencement of the hearing, each party shall provide the other party with a list containing the name and address of any witness who may be called to testify. Each party shall provide newly discovered witnesses as they become known to the party intending to call the witness.

 

Section 1790.420  Subpoenas

 

a)         The Director shall, on the written application of any party, issue subpoenas to a party allowing that party to require the attendance and testimony of witnesses and the production of any evidence, including books, records, correspondence or documents. Applications for subpoenas shall be filed with the Director and the opposing party. The subpoena shall show on its face the name and address of the party at whose request the subpoena was issued.

 

b)         Subpoenas may be served by personal delivery, by certified mail with return receipt signed by private delivery service, or by U.S. regular mail, postage prepaid.  Any person served with a subpoena, whether ad testificandum (for witness testimony) or duces tecum (for document production), who does not intend to comply with the subpoena, shall, within 10 days after the date of service of the subpoena, motion in writing to quash the subpoena. The date of service for purposes of computing the time for filing a petition to quash shall be the date the subpoena is received. All motions to quash subpoenas shall be served on the party at whose request the subpoena was issued. The motion to quash, if made prior to or during the hearing, shall be filed with the ALJ.

 

c)         The ALJ, upon motion made promptly and, in any event, at or before the time specified in the subpoena for compliance, may quash or modify the subpoena if it is unreasonable, is oppressive, or requests material that is irrelevant. The ALJ shall rule upon motions to quash or modify material requested in the subpoena. The ALJ may deny, limit, or condition the production of information when necessary to prevent undue delay, undue expense, harassment, or oppression. The ALJ can take these actions if the subpoena does not describe with sufficient particularity the evidence whose production is required or if, for any other reason sufficient in law, the subpoena is otherwise invalid. The ALJ can also take these actions to protect materials from disclosure consistent with a protective order issued by the ALJ pursuant to Section 1790.560(b). If the request for subpoena is denied or modified, the ALJ shall proceed to conduct the hearing, and the specific reasons for denying or modifying the request shall be made part of the record.

 

d)         If a party or organization within control of a party fails to obey a subpoena, and the ALJ finds the subpoena to have been validly served and the material requested to be relevant and material, the ALJ may impose such sanctions as are appropriate, including, but not limited to: prohibiting testimony by the party who has refused to comply with the subpoena; drawing an adverse inference against the party required to comply; or recognizing the evidence required by the subpoena but not produced as establishing the truth of the position of the party who subpoenaed the document.  If a nonparty fails to obey a subpoena, the party seeking enforcement shall be responsible for preparing an application for enforcement and shall file it in circuit court.

 

e)         Witnesses summoned before the ALJ, other than employees of the Board, shall be paid the same fees and mileage that are paid witnesses in the court of the county where the hearing is being held.  Witness fees and mileage shall be paid by the party at whose instance the witnesses appear.

 

Section 1790.450  Administrative Law Judge

 

a)         The Board shall retain a panel of at least three attorneys licensed to practice law in Illinois to serve as ALJs. Attorneys shall be listed alphabetically and assigned to oversee hearings on a rotating basis. Any attorney retained to serve as an ALJ shall serve a term of no greater than 4 years but may be reappointed to the panel of attorneys at the expiration of that term. The terms shall be staggered.

 

b)         Attorneys retained to serve as ALJs must have at least eight years of experience practicing law in Illinois, at least five years of experience as a litigator, and be

in good standing with the Illinois Supreme Court's Attorney Registration and Disciplinary Commission.

 

c)         Attorneys who meet any of the following criteria are ineligible to serve as an ALJ:

 

1)         were employed or retained by any law enforcement agency, department or entity in the preceding five years;

 

2)         were employed or retained by a law any enforcement collective bargaining entity in the preceding five years; or

 

3)         are currently employed by the Board.

 

d)         The ALJ is bound by the Administrative Law Judge Code of Professional Conduct. The Administrative Law Judge Code of Conduct is hereby incorporated by reference. This document is published in the “Administrative Law Reform Report” (July 31, 2017), CMS Bureau of Administrative Hearings, 502 Stratton Office Building, Springfield, IL 620706; and available at: https://administrativehearings.illinois.gov/content/dam/soi/en/web/ibah/documents/End_of_PilotReport7-31-2017.pdf.

 

Section 1790.500  Authority of Administrative Law Judge

 

An ALJ presiding over a hearing has all powers necessary and appropriate to conduct a full, fair, and impartial hearing, including the following:

 

a)         To administer oaths and affirmations;

 

b)         To rule upon offers of proof and receive relevant evidence;

 

c)         To issue subpoenas as provided in Section 1790.420;

 

d)         To rule on issues relating to document exchanges;

 

e)         To regulate the course of the hearing and the conduct of the parties and their counsel;

 

f)         To consider and rule upon procedural requests;

 

g)         To hold conferences for the settlement or simplification of the issues;

 

h)         To examine witnesses and direct witnesses to testify, limit the number of times any witness may testify, limit repetition or cumulative testimony, and set reasonable limits on the amount of time each witness may testify; and

 

i)          To make decisions in accordance with the appropriate laws and rules, including this Part and the Illinois Administrative Procedure Act.

 

Section 1790.510  Ex Parte Communications

 

a)         No party may engage in any ex parte communication with an ALJ or with any member of the Board regarding matters pending before an ALJ.  However, a party not represented by an attorney or attorney for a party may engage in communications with the other party (if not represented by an attorney) or the attorney for a party outside the presence of the ALJ.

 

b)         The ALJ shall not initiate ex parte communications, directly or indirectly, in any matter in connection with any substantive issue, with any interested person or party. If the ALJ receives any such ex parte communication, including any documents, he or she shall inform the other party of the substance of any such oral communication or documents. The other party shall be given an opportunity to review any such ex parte communication.

 

c)         Nothing shall prevent the ALJ from communicating ex parte about routine matters, such as requests for continuances, as long as all parties are informed of the substance of the ex parte communication. The date and type of communication, the persons involved, and the results of such routine communications shall be part of the record. The ALJ and Board staff may communicate in order for Board staff to provide administrative support to the ALJ, such as making copies, technical matters, and other such administrative matters.

 

Section 1790.520  Disqualification of Administrative Law Judge

 

a)         At any time prior to the issuance of the ALJ's decision or recommendations, a party may move to disqualify the ALJ on the grounds of bias or conflict of interest. The motion shall be made in writing, shall be accompanied by an affidavit signed and dated by the party or party’s attorney, shall be filed according to Section 1790.190, and shall set out the specific instances of bias or conflict of interest.  The Panel shall assign the matter for a determination to an ALJ not challenged in the motion.  The case shall be suspended until a neutral ALJ rules on the motion.

 

b)         Prior adverse rulings against a party or its attorney in other matters shall not, in and of themselves, constitute grounds for disqualification.  The ALJ’s retention as an ALJ by the Board is not, in and of itself, a conflict of interest. On satisfactory evidence submitted by the party in support of the motion to disqualify, the reviewing ALJ shall remove the original ALJ and provide for the reassignment of the case to another ALJ to continue the hearing, including himself or herself.  An ALJ may voluntarily disqualify himself or herself upon determining that bias or conflict of interest exists.  Grounds for disqualification of an ALJ shall include, but not be limited to:

 

1)         Financial interest or pecuniary benefit derived from any result of a hearing;

 

2)         Personal friendship with any of the parties, witnesses, or attorneys involved;

 

3)         Past representation of any of the parties or witnesses involved; or

 

4)         Demonstrable predisposition on the issues.

 

c)         The moving party has the burden of proof to show actual prejudice by a preponderance of the evidence. If the motion to disqualify an ALJ is denied, the other ALJ shall set forth in writing the reasons for the denial and the original ALJ shall proceed with the hearing. The motion to disqualify the ALJ and the reasons for the denial of the motion are part of the administrative record in the appeal of a final administrative decision upon conclusion of the hearing.

 

Section 1790.530  Willfully Disobedient Conduct

 

a)         Willfully Disobedient conduct at any hearing before the ALJ shall be grounds for exclusion from the hearing.

 

b)         If a witness or a party refuses to answer a question after being directed to do so or refuses to obey an order to provide documents, the ALJ may make orders with regard to the refusal as are just and appropriate, including, but not limited to, excluding the testimony of witnesses, entering an order of default, entering an order that certain facts are deemed admitted for purpose of the proceeding, or entering an order denying the application or complaint of a party.

 

Section 1790.540  Victim Notice and Impact Statement

 

The Director shall cause written notification of the date, time, and place of the hearing to any individuals or entities that were affected by the respondent’s alleged misconduct, including to any person who submitted a Notice of Violation.  An affected individual or entity shall be informed that they may attend the complaint hearing and shall be offered an opportunity to either provide oral testimony or a written statement about the impact of the misconduct that will become part of the official record of the proceedings.

 

Section 1790.545  Settlement Agreements

 

The ALJ may not change, amend, or modify a settlement agreement of the parties to the proceeding.

 

Section 1790.550  Conduct of Hearings

 

a)         All hearings shall be open to the public unless required by statute to be otherwise.

 

b)         The sequence to be followed for all cases is as follows:

 

1)         Prehearing Conference.  The purpose is to set a date on which all parties expect to be prepared to proceed with their cases, and to rule on any preliminary motions that are presented.

 

2)         Hearings.

 

A)        Preliminary Matters – Motions, attempts to narrow issues or limit evidence.

 

B)        Opening Statements – The party bearing the burden of proof proceeds first.

 

C)        Case in Chief – Evidence is presented by the party bearing the burden of proof.  Once a witness' direct testimony is completed, that witness is subject to cross-examination and redirect.

 

D)        Defense – Evidence may be presented by the opposing party in the same manner as the case in chief.

 

E)        Closing Statements – The party bearing the burden of proof proceeds first, then the opposing party, then a final word by the party bearing the burden of proof.

 

c)         After the hearing is concluded, the ALJ shall prepare a written decision, including findings of fact, conclusions of law, and recommended disposition to the Panel as provided in Section 1790.630.

 

d)         Documents received pursuant to 50 ILCS 705/9.2 shall be submitted under seal and may not be publicly disclosed except as provided by law.

 

e)         An attorney, licensed in Illinois, shall represent the Board in all hearings and be employed or retained by the Board.

 

Section 1790.560  Rules of Evidence

 

a)         The Illinois Rules of Evidence shall apply to the extent practicable unless, by such application, the ALJ determines that application of the rule would be an injustice or preclude the introduction of evidence of the type commonly relied upon by a reasonably prudent person in the conduct of his or her affairs.  The ALJ must state on the record his or her reasons for that determination.  Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence, may be stated orally, accompanied by a short statement of the grounds for the objection, and included in the record. No objection shall be deemed waived by further participation in the hearing.

 

b)         The ALJ may at any time on his or her own initiative, or on motion of any party or witness, enter a protective order, as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression or to prevent exposure in the public domain of records or other information that is of a sensitive or confidential nature. As used in this subsection, "information that is of a sensitive or confidential nature" means information or facts expected and intended to be kept private or protected by an existing privilege in the Code of Civil Procedure.

 

c)         The ALJ may, upon proper objection, exclude evidence that is irrelevant, immaterial, or unduly repetitious. Evidence may be presented in the form of testimony, exhibits, or stipulations. Testimonial evidence shall be taken only on oath or affirmation.

 

d)         If the evidence is otherwise admissible pursuant to subsection (a):

 

1)         evidence of any misconduct is admissible for its bearing on any matter to which it is relevant, including the officer's history of conduct as described in 50 ILCS 705/6.3(b); and

 

2)         evidence from investigations shared by law enforcement agencies with the Board is admissible for its bearing on any matter to which it is relevant.  Such information that the law enforcement agency must share with the Board that may be admissible includes, but is not limited to, information obtained by subpoena, witness interviews, and reports concerning the officer and investigation.

 

Section 1790.570  Official Notice

 

Official notice may be taken of any material fact not appearing in evidence in the record if the Circuit Courts of this State could take judicial notice of the fact.  In addition, notice may be taken of generally recognized technical facts within the Board's specialized knowledge, such as the date that an officer was certified and training records.  Parties shall be notified of the taking of official notice either before or during the hearing or by reference in preliminary reports or otherwise of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the facts noticed. The Board's expertise, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence.

 

Section 1790.580  Hostile or Adverse Witnesses

 

a)         If the ALJ determines that a witness is hostile, unwilling, or adverse, he or she may be examined by the party calling him or her as if under cross-examination.

 

b)         The party calling an occurrence witness, upon the showing that he or she called the witness in good faith and is surprised by his or her testimony, may impeach the witness by proof of prior inconsistent statements.

 

Section 1790.590  Documents

 

a)         Business records are admissible in a hearing.  A business record must be:

 

1)         Relevant;

 

2)         A memorandum, report, record, or data compilation;

 

3)         Made by a person with first-hand knowledge of the facts or from information transmitted by a person with knowledge of those matters;

 

4)         Made at or near the time of the facts;

 

5)         Made as part of the regular practice of the activity; and

 

6)         Kept in the course of regularly conducted activity.

 

b)         Any party may prove elements (a)(3) through (a)(6) by presentation of a sworn statement by an individual responsible for making or keeping those records. 

 

c)         Any party seeking introduction of a document shall be allowed to offer a mechanical reproduction or photocopy of the original without any showing that the original is unavailable, upon representation of the party or attorney that the copy is a fair and accurate copy of the original.

 

Section 1790.600  Default

 

Failure of a party to appear at the hearing or failure to proceed as ordered by the ALJ shall constitute a default.  The ALJ shall enter the appropriate default order and make his or her decision as provided in Section 1790.630; if the default occurred at a hearing, the ALJ shall make his or her decision after review of any evidence presented as provided in Section 1790.250.

 

Section 1790.610  Record in Cases

 

a)         A full and complete record shall be kept of all proceedings. The record shall consist of the following:

 

1)         All pleadings, motions, and briefs, including all notices and responses to those pleadings, motions, and briefs;

 

2)         An electronic recording of all the proceedings in front of the ALJ, a transcript of the hearing under Section 1790.550(b)(2), and all evidence received, except that the ALJ may issue a protective order preventing public release of any recording, transcript, or evidence as provided in Section 1790.560(b).  The Board shall furnish, upon request, one copy of an electronic recording of any proceeding and one copy of the transcript of the hearing under Section 1790.550(b)(2) at no charge to a non-Board complainant or respondent;

 

3)         A statement of matters officially noticed;

 

4)         Any offers of proof, objections to that proof, and rulings on that proof;

 

5)         Any proposed findings and conclusions;

 

6)         Any decision, opinion, or recommendations by the ALJ; and

 

7)         Any ex parte communication prohibited by Section 10-60 of the IAPA, but those communications shall not form the basis for any finding of fact.

 

b)         The record shall also contain the following:

 

1)         Subpoenas;

 

2)         Requests for Subpoenas;

 

3)         Cover letters;

 

4)         Notices of Filing;

 

5)         Certificates of mailing for regular mail and return receipts for certified mail; and

 

6)         Statements of objection filed pursuant to Section 1790.310(d).

 

c)         The Board shall be the official custodian of the records of administrative hearings held by the Board.

 

Section 1790.620  Briefs

 

The ALJ may require or allow parties to submit written briefs to the ALJ within 15 days after the close of the hearing or other reasonable time as the ALJ shall determine.  Briefs shall be limited to 15 pages, unless permission is granted by the ALJ.

 

Section 1790.630  Administrative Law Judge's Decision

 

a)         No later than 60 days following the hearing, the ALJ shall issue a decision in writing and include findings of fact, conclusions of law, and recommended disposition to the Panel.  The findings of fact shall be based exclusively on the evidence presented at hearing or known to all parties, including matters officially noticed. A copy of the recommendation shall be delivered or mailed to the Panel, each party of record, and to each attorney of record.

 

b)         If the ALJ finds that no allegations supporting one or more charges of misconduct are proven by clear and convincing evidence, then the ALJ shall recommend to the Panel that the complaint be dismissed, recommend to the Panel reactivation of the officer, or recommend to the Panel that an emergency order of suspension be reversed or reduced. If the ALJ finds that the allegations supporting one or more charges of misconduct are proven by clear and convincing evidence, then the ALJ shall recommend decertification, recommend no reactivation, or sustain the emergency order of suspension.

 

Section 1790.645  Illinois Law Enforcement Certification Review Panel

 

a)         Upon receipt of the ALJ's finding of fact, conclusions of law, and recommended disposition, and any submitted objections from the officer or Board, the Panel shall call for a certification review meeting or, after receiving the ALJ's decision on an emergency order of suspension, a meeting relating to the emergency order of suspension.

 

b)         The Panel shall consider the hearing officer's findings of fact, conclusions of law, recommended disposition, and any submitted objections and may deliberate on all evidence and testimony received and may consider the weight and credibility to be given to the evidence received. No new or additional evidence may be presented to the Panel.

 

c)         If a simple majority of the Panel finds that no allegations supporting one or more charges of misconduct are proven by clear and convincing evidence, then the Panel shall recommend to the Board that the complaint be dismissed, recommend to the Board reactivation of the officer, or reverse or reduce the emergency order of suspension. If a simple majority of the Panel finds that the allegations supporting one or more charges of misconduct are proven by clear and convincing evidence, then the Panel shall recommend decertification, recommend no reactivation, or sustain the emergency order of suspension.

 

d)         The Panel shall prepare a summary report as soon as practicable after the completion of the meeting, but no later than 30 days following the certification review meeting or meeting relating to the emergency order of suspension. The summary report shall include the hearing officer's findings of fact, conclusions of law, recommended disposition, and the Panel's order.

 

e)         The summary report of the Panel relating to an emergency order of suspension is a final decision and is not subject to Board approval or appeal to the Committee. (See 50 ILCS 705/8.3(d)). The Panel shall notify the law enforcement officer and employing agency within 7 days of the issuance of the summary report.

 

Section 1790.650  Final Action by the Board

 

Upon receipt of the Panel's order and recommendation relating to a complaint or a reactivation refusal and upon the Board, by majority vote, finding that no allegations supporting one or more charges of misconduct are proven by clear and convincing evidence, the Board shall order the complaint be dismissed or reactivation of the officer. If the Board, by majority vote, finds that the allegations supporting one or more charges of misconduct are proven by clear and convincing evidence, then the Board shall issue a final written decision confirming the decertification or denial of reactivation indicating the Board's reasoning for its decision. If the Board makes a final decision contrary to the recommendations of the Panel, the Board shall set forth a final written decision with specific reasons for not following the Panel's recommendations. A copy of the Board's final decision also shall be delivered to the last employing law enforcement agency, the complainant (if not the Board), and the Panel.

 

Section 1790.660  Reconsideration of Board's Decision

 

a)         Within 30 days after service of the Board's final decision under Section 1790.650, the Panel or the law enforcement officer may file a written motion for reconsideration and supporting brief with the Review Committee. The motion for reconsideration shall specify the particular grounds for reconsideration.

 

b)         The non-moving party may respond to the motion for reconsideration within 21 days. The Review Committee shall only address the issues raised by the parties.

 

c)         Briefs. Each brief shall:

 

1)         Set forth specifically the questions of procedure, fact, law or policy to which objection is made;

 

2)         Identify that part of the ALJ's decision to which objection is made;

 

3)         Designate by precise citation of page the portions of the record relied on;

 

4)         Concisely state the grounds for the objection;

 

5)         Be limited to 15 pages, except that a party may file a motion with the ALJ who presided over the hearing to allow additional pages in the party's motion for reconsideration to the Review Committee;

 

6)         Include a specification of the questions involved and to be argued, together with a reference to the specific objections to which they relate; and

 

7)         Include an argument, presenting clearly the points of fact and law relied on in support of the position taken on each question, with specific page reference to the record and the legal or other material relied on.

 

d)         Any objection to a ruling, finding, conclusion, or recommendation that is not specifically stated shall be deemed to have been waived. Any brief in support of an objection that fails to comply with subsection (c) may be disregarded. Any brief in support of objections shall not refer to any matter not included within the scope of the objections and shall contain, in the recommendation indicated, a clear and concise statement of the case, containing all that is material to the consideration of the questions presented.

 

e)         The answering brief to the objections shall be limited to the questions raised in the objections and in the brief in support of the objections. It shall present clearly the points of fact and law relied on in support of the position taken on each question. When objection has been taken to a factual finding of the ALJ and the objection is proposed to support that finding, the answering brief should specify those pages of the record that, in the view of the party filing the brief, support the ALJ's finding.

 

f)         Requests for extension of time to file an answering brief to the motion for reconsideration shall be in writing and copies shall be served promptly on the other party.

 

g)         Any matter not included in the motion for reconsideration may not thereafter be raised to the Review Committee or in any further proceeding and is deemed waived in all related proceedings before the Board.

 

h)         The Review Committee may deny the motion for reconsideration, or it may grant the motion in whole or in part and issue a new final decision in the matter. In either case, the Review Committee must indicate the Review Committee's reasoning for its decision. The Review Committee must notify the law enforcement officer and their last employing law enforcement agency within 14 days of a denial and state the reasons for denial.

 

Section 1790.665  Written Materials of Hearing Process

 

The Board shall develop and publish written materials for law enforcement agencies and officers to explain the rights and processes related to this Part.

 

Section 1790.670  Judicial Review

 

a)         Actions for judicial review under this Part shall be filed where the hearing proceedings took place, which is in the circuit court of either Cook County or Sangamon County.

 

b)         For decisions relating to decertification or denials of reactivation, the Board's final decision, or the decision of the Review Committee if timely appealed, is the final administrative decision.  For decisions relating to emergency orders of suspension, the Panel’s summary report is the final administrative decision.