Schlenkert Wins Unanimous Decision in Appellate Court

Bob Schlenkert

McHenry County Sheriff Keith Nygren

When I wrote the article yesterday on Deputy Sheriff Bob Schlenkert’s victory in the 2nd Appellate Court, I didn’t have the decision. Now, I do.

This decision came down three days after the oral arguments. I’m no student of appellate court decisions, but the one I won in Cook County took a lot more than three days to write.

The biggest question I had was whether the decision was a split vote.

It wasn’t.

The decision lays out the background that led McHenry County Sheriff Keith Nygren to want Schlenkert off the force, that

  • he was on medical leave for two years for panic and anxiety disorder
  • when doctors, including the Sheriff’s, cleared him to return to work Nygren decided to treat h im as a new recruit
  • Nygren ordered him to undergo remedial training, including completion of the Peace Officer Wellness Evaluation Report (“Power”) test and “scenario-based training” to test Schlenkert’s “emotional reaction to confrontational environments he might encounter on the road”
  • a waiver of the need to pass the “power” test was requested by the Sheriff’s training officer, identified as Sgt. Wagner to make the process easier
  • Schlenkert could not pass the “power” test and was sent home
  • the Sheriff could have chosen to send Schlenkert only to that part of the training to test his readiness for confrontational environments and, if he had, the “power” test would not have been required
  • that Nygren filed charges with his Merit Commission (which Nygren appoints) asking Schlenkert’s discharge
  • Schlenkert was dismissed for not following the order to pass the “power” test
  • Schlenkert filed for administrative review in circuit court
  • the circuit court reversed the Merit Commission
  • the Merit Commission and Nygren appealed.

We hold the circuit court correctly overturned the commission’s finding because the decision to discharge was arbitrary and unreasonable or unrelated to the requirements of service.

The decision points out that the McHenry County Sheriff did not question Schlenkert’s physical fitness to do the job and that the office did not have any physical fitness requirements.

The Appellate Court decision notes the definition for “cause” that it followed:

“’Cause’ has been defined as ‘some substantial shortcoming which renders continuance in his office or employment in some way detrimental to the discipline or efficiency of service and something which the law and sound public opinion recognize as a good cause for his no longer occupying the place.’”

And that an agency’s decision shall not be overturned unless it is “arbitrary and unreasonable or unrelated to the requirements of the service.”

The court held that Circuit Court Judge Maureen McIntyre’s “rationale to be particularly persuasive.”

The court pointed out that no dispute existed that Schlenkert had passed the “power” test during original training.

The court continued,

“…plaintiff was discharged because he attempted but did not pass a test that the Sheriff had deemed to be superfluous…the Sheriff’s attempt (though his Training Officer’s attempt) to obtain a waiver for the plaintiff shows that passing the test was unimportant to the retraining.”

“Plaintiff never refused to follow an order, unlike the discharged officers in the cases defendant cite.”

The Appellate Court judges agreed with McIntyre that Schlenkert’s failure to pass the “power” test “did not render him unfit for service as a police officer.” Also cited was her finding that failure to pass the “power” test was “trivial” and wasn’t “insubordination.”

The conclusion of the decision follows:

Adopting defendants’ position would lead to an absurd result: the Sheriff could create a pretext for discharging a deputy by ordering a completion (underlined in the original) of a task, not merely an attempt (underline in the original), regardless of the difficulty or importance of the order.

The legislature did not intend such a result.

Justices signing the decision were

  • Robert McLaren
  • John Bowman
  • Michael Burke

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