FOURTH DIVISION
May 1, 2003

JUSTICE KARNEZIS delivered the opinion of the court:

On June 4, 1999, Chicago police officer Serena Daniels fatally shot LatanyaHaggerty following a car chase. Chicago Police Department Superintendent TerryHillard (the superintendent) filed charges with the Police Board of the City of Chicago(the Board) alleging that Daniels and three other police officers, Carl Carter, MichaelWilliams and Stafford Wilson, violated police department rules in connection with thechase and shooting. The Board found the officers guilty of violating the department'srules and discharged Daniels, Williams and Wilson from their duties as police officersand suspended Carter from his duties for one year. Upon administrative review, thetrial court affirmed Daniels' discharge, reversed Carter's suspension, and remandedWilson's and Williams' cases back to the Board for new hearings. Daniels appeals fromthe trial court's order affirming the Board's decision to discharge her. In a related caseconsolidated on appeal with Daniels' action, the superintendent appeals the trial court'sorder reversing the Board's decision to suspend Carter.

On appeal, Daniels argues that (1) the Board's findings that she was unjustifiedin her use of deadly force, disobeyed orders to terminate a chase, and failed to reportthat the officers fired their weapons in an earlier incident were against the manifestweight of the evidence; and (2) the Board's consolidation of all four cases, negativepretrial publicity and failure of the Board members to attend the administrative hearingdeprived her of her right to be tried fairly. The superintendent argues that (1) theBoard's findings that Carter failed to immediately report a weapon discharge incident,disregarded orders to terminate the chase, and falsely informed the police departmentthat Smith had threatened officers with his vehicle were not against the manifest weightof the evidence; and (2) the Board's decision to suspend Carter was not arbitrary,unreasonable or unrelated to the requirements of service. We affirm the court's orderaffirming Daniels' discharge and reverse the court's order with regard to Carter andreinstate Carter's suspension.FACTS

Outlined briefly, the facts are as follows. On June 4, 1999, Raymond Smithpicked Haggerty up after work and drove to the south side of Chicago. Atapproximately 5 p.m., Smith stopped his car to speak to a friend standing on thesidewalk. Sixth District police officer Daniels and her partner Williams pulled up besideSmith's car in their squad car (Beat 632). Williams was driving and Daniels was in thepassenger seat. Daniels asked Smith for his driver's license and insurance certification. Smith drove off without producing either document.

Beat 632 followed Smith's car and stopped it one block south. Having checkedthe license plates on Smith's car, the officers knew that the plates were not registeredto the car. The officers reiterated their request for Smith's license and insuranceinformation, but Smith again drove off without producing either. Beat 632 pursuedSmith's car. After following Smith's car for approximately 15 blocks, Daniels notified thepolice department's Office of Emergency Communications (OEC) that Beat 632 wasfollowing Smith's vehicle. When questioned by the OEC dispatcher, Daniels deniedthat Beat 632 was "chasing" Smith's car.

Beat 632 ultimately pursued Smith's car for 30 blocks to the intersection of 95thStreet and Cottage Grove Avenue, where Smith's car finally stopped when it was cut offby Beat 634. Beat 634 was driven by Carter. Carter's partner, Wilson, was in thepassenger seat. Carter's police radio was broken, but he and Wilson heard Beat 632'sreport of the pursuit over Wilson's radio and decided to assist Beat 632. After Smithstopped, the four officers exited their cars and approached Smith's car with theirweapons drawn. They ordered Smith to exit his car but he refused to do so. Instead,he backed his car up between the two squad cars and, driving in reverse, fledwestbound on 95th Street. Officers Daniels, Williams and Wilson fired at the retreatingcar. Although the officers would later claim that they fired their weapons because Smithtried to run them down, two independent witnesses standing close to the intersectionstated that Smith's car never threatened the officers. In contrast to the officers'testimony, the witnesses and Smith stated that the car never advanced toward theofficers and that it drove backwards on 95th Street rather than in a forward direction.

At the first intersection, Smith turned his car forward and sped north with Beats632 and 634 in active pursuit. Daniels contacted OEC and informed the dispatcher ofthe pursuit and that shots had been fired and called out the intersections that Beat 632passed during the beginning of the chase. Daniels testified that she reported "policeshots fired" or "632, 634 shots fired" but the dispatcher did not hear the "shots fired"report. The other three officers did not report that shots had been fired or that they haddischarged their weapons. Therefore, neither the dispatcher nor the OEC supervisor,Sergeant Bednarek, was aware that shots had been fired or that Beat 634 was alsoinvolved in the pursuit. Sergeant Bednarek ordered the dispatcher to inform Beat 632to terminate the chase if the car was only wanted "for traffic," i.e., a traffic violation. Thedispatcher conveyed the order to terminate to Beat 632 which Daniels acknowledged.

The transcripts of the taped OEC call show that the communications betweenBeat 632 and OEC were garbled, interrupted and hard to understand. The transcript ofthe tape prepared by the department's Office of Professional Standards (OPS) notes"possibly 'shots fired'" at the salient point in the transcript. After listening to the tape ofthe call several times, the dispatcher acknowledged that, although he had not heard"shots fired" when the call came in, "shots fired" "could be" on the tape and that it"sounded like it." Sergeant Bednarek testified that, although he had listened to thetaped response from Beat 632 at least four or five times, he really could not understandwhat was being said. The salient portion of the OPS transcript shows the followingcommunications:

"Dispatch: Alright. 632 is following a car eastbound on 95th past Prairieat this time. A male driver of a grey car is refusing to pull over at this time.

Bt. 620 [Sgt. Bednarek]: Okay, 1-4 squad. [W]here are they at now andwhat's he wanted for?

Dispatch: Alright, 632 talk to 620. 632?

Bt. 632: ([G]arbled response. [P]ossibly 'shots fired')

Dispatch: 632?

Bt. 632: Westbound on Nine Five. Car went around down Langley onNine Five.

Dispatch: Okay, it went southbound on Langley from 95. 620 isrequesting what is he wanted for?

Bt. 632: ([G]arbled response)

Dispatch: That car is southbound on Langley from 95th Street,southbound on Langley from 95th St.

Bt. 632: ([G]arbled statements)

Bt. 620: What's that car wanted for? If it's just wanted for traffic and it'sstill going, tell them to stop chasing.

Dispatch: 632, you copy? 632, 620 said if it's for traffic only, cut it off.

Bt. 632 [Daniels]: St. Lawrence . . . bound.

Dispatch: Alright. Alright. Southbound on St. Lawrence. I believe St.Lawrence is a one-way.

Bt. 632: Eastbound 90th from St. Lawrence.

Dispatch: Eastbound 90th from St. Lawrence. 632, 620 said terminatethe .... Terminate it.

Bt. 632: 10-4."

The dispatcher and Sergeant Bednarek believed that the pursuit was overbecause they heard no further communication from Beat 632. However, althoughDaniels and Williams heard the termination order, they continued their pursuit. Carterand Wilson also continued pursuit, subsequently claiming that they did not hear thetermination order. The pursuit continued for another four or five minutes and the chaseleft the boundaries of the 6th District and entered the 3rd District. Daniels claimed tohave continued broadcasting Beat 632's locations but no such communications arereflected on the transcripts of the tape. The 3rd and 6th Districts do not share radiofrequencies. Therefore, even had Daniels continued broadcasting the pursuit locations,3rd District personnel would not have been able to hear those communications andwould not have known that a chase was in progress through their district.

Smith finally stopped his car at 64th Street and Dr. Martin Luther King Jr. Drive. Carter and Williams removed Smith from the car and subdued him. Daniels moved intoposition next to the rear driver side door of Smith's car, and Wilson stood to the rear ofthe passenger side of the car. Daniels repeatedly ordered Haggerty, who was talkingon a cell phone, to put the phone down, show her hands and exit the car. Wilson alsoordered Haggerty to let him see her hands. Haggerty ignored the yelled instructionsand continued to talk on the phone. Daniels testified later that she saw a silver objectslowly rising from between the side of the passenger door and Haggerty's thigh and thatHaggerty turned toward her. Thinking the silver object was a gun barrel, Daniels shotonce. The bullet pierced Haggerty's lungs, liver and heart and ultimately killed her. Nogun was found at the scene. A silver padlock was found on the car floor in front of thefront passenger seat. Wilson later stated that, when he pulled Haggerty's body fromthe car, "something silver" fell from Haggerty's lap to the floor. Wilson had not beenable to see Haggerty's right hand from his position and had not seen Haggerty moveexcept to tilt her head to the phone.

When police department supervisors and investigators arrived on the scene,Daniels, Carter, Williams and Wilson did not inform them that shots had been firedearlier at 95th Street and Cottage Grove Avenue. Although Carter stated that he toldSergeant Bednarek and Commander Mark Davis at the scene at 64th Street about theearlier shootings at 95th Street, Bednarek and Davis denied this. Not until the fourofficers were at Area 2 headquarters did they inform supervisors of what had occurredat 95th Street and Cottage Grove Avenue.

Following an investigation, the superintendent filed charges with the Boardagainst Daniels, Wilson, Williams and Carter, charging Daniels with 18 counts andCarter with 14 counts of violating police department rules. The Board held a hearing,presided over by a hearing officer, to investigate the charges against the four officers. The Board members did not attend the hearing. After the six-day hearing, the Boardconferred with the hearing officer, examined the evidence presented during the hearingand adopted the hearing officer's findings.

The Board found Daniels guilty of violating Rule 2 (any action or conduct thatimpedes the Department's efforts to achieve its policy or goals or brings discredit uponthe Department) and Rule 6 (disobedience of an order or directive, whether written ororal) for:

(1) failing to report shots fired by police at 95th Street and Cottage GroveAvenue in violation of General Orders 99-01 V(A)(1)(a) and (V)(B)(1);

(2) violating a direct order to terminate a vehicle chase;

(3) firing her weapon without justification at a fleeing vehicle in violation ofGeneral Order 86-8 IV (E);

(4) shooting Haggerty without justification in violation of General Orders86-8 III(A)(1), III(A)(2), III(A)(3) and III(B); and

(5) with regard to the shooting at 95th and Cottage Grove Avenue, failingto make certain reports required following the discharge of a weapon in violationof General Orders 99-01 V(A)(3) and V(B)(1).

The Board also found Daniels guilty of violating Rule 2 and Rule 38 (unlawful orunnecessary use or display of a weapon for:

(1) firing her weapon at a fleeing vehicle without justification therebyunlawfully or unnecessarily using or displaying her weapon; and

(2) shooting Haggerty without justification resulting in a fatal gunshotwound.

The Board ordered that Daniels be discharged from her duties as a police officer.

The Board found Carter guilty of violating Rule 2 and Rule 6 for:

(1) failing to report shots fired by police at 95th Street and Cottage GroveAvenue in violation of General Order 99-01 (V)(B)(1);

(2) violating a direct order to terminate a vehicle chase; and

(3) with regard to the shooting at 95th and Cottage Grove Avenue, failingto make certain reports required following the discharge of a weapon in violationof General Order 99-01 V(B)(1).

The Board also found Carter guilty of violating Rule 2 and Rule 14 (making a falsereport, written or oral) for giving false information to his OPS when he stated that Smithused his vehicle as a weapon against the officers. The Board ordered that Carter besuspended from his duties for one year.

The Board found Williams and Wilson guilty of assorted rules violations andordered that they be discharged from their duties.

The trial court granted administrative review of the Board's decisions andaffirmed Daniels' discharge, reversed Carter's suspension, and ordered that Wilson'sand Williams' cases be remanded to the Board for new hearings. The court made itsorders regarding Daniels and Carter final and appealable. Daniels timely appealed thecourt's order affirming her discharge and the superintendent timely appealed the court'sorder reversing Carter's suspension. The trial court's order remanding Williams' andWilson's cases to the Board for new hearings is not before us.

ANALYSIS

As the reviewing court, we review the decision of the Board, not that of the trialcourt. Krocka v. Police Board of the City of Chicago 327 Ill. App. 3d 36, 46, 762 N.E.2d577, 586 (2001). Because it is an administrative agency, the Board's findings of fact"shall be held to be prima facie true and correct" on review (735 ILCS 5/3-110 (West1998)) and should be sustained unless the reviewing court determines that thosefindings are contrary to the manifest weight of the evidence. Ruther v. Hillard, 306 Ill.App. 3d 997, 1005, 715 N.E.2d 772, 778 (1999); Launius v. Board of Fire & PoliceCommissioners, 151 Ill. 2d 419, 427, 603 N.E.2d 477, 481 (1992). An agency decisionis contrary to the manifest weight of the evidence only if, after viewing the evidence inthe light most favorable to the agency, we conclude that no rational trier of fact couldhave agreed with the agency's decision and an opposite conclusion is clearly evident. S.W. v. Department of Children & Family Services, 276 Ill. App. 3d 672, 681, 658 N.E.2d1301, 1308 (1995); Abrahamson v. Illinois Department of Professional Regulation, 153Ill. 2d 76, 88, 606 N.E.2d 1111, 1117 (1992).

UNJUSTIFIED USE OF FORCE BY DANIELS AT 95TH STREET

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The Board's factual determinations that the officers were not in danger from beingrun over by Smith's car are supported by the record. Having found that the officers werenot in danger from Smith's car, the Board necessarily held that Daniels was unjustified inshooting at the car pursuant to General Order 86-8, thereby violating Rules 2, 6 and 38.An unjustified shooting endangers citizens and discredits the department (violation ofRule 2), violates a written general order (violation of Rule 6) and results in theunnecessary use of a weapon (violation of Rule 38). Accordingly, we affirm the Board'sdetermination that Daniels' use of force at 95th Street was unjustified and a violation ofRules 2, 6, and 38.

UNJUSTIFIED USE OF FORCE BY DANIELS AT 64TH STREET

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The Board determined that, even if Daniels' testimony was fully credited, her useof deadly force against Haggerty was not warranted in light of all the evidence presentedand her belief that it was warranted was not objectively reasonable. Accordingly, theBoard found Daniels' use of deadly force against Haggerty was in violation of GeneralOrder 86-8 because she shot Haggerty without justification, thereby violating Rules 2(discrediting the department), 6 (violating a written order) and 38 (resulting in theunnecessary use of a weapon). We affirm, finding these determinations supported bythe record.

DANIELS' FAILURE TO TERMINATE THE CHASE AND TO REPORT SHOTS FIRED

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The record supports the Board's determination that Daniels was guilty ofdisobeying the order to terminate the chase and of failing to communicate all relevantinformation regarding the shots fired at 95th Street and the concomitant violations ofRules 2 and 6. We affirm the Board's findings on these counts.

DANIELS' SANCTION

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The Board's findings of fact with regard to Daniels were not against the manifestweight of the evidence and those findings were sufficient to warrant Daniels' discharge. Accordingly, we affirm the decision of the trial court with regard to Daniels' discharge.

BOARD'S FINDINGS REGARDING CARTER

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Given Carter's failure to follow a direct order to terminate a chase and hisviolation of a written order to report a shooting without delay, a one-year suspensionfrom duty is entirely reasonable given the seriousness of his conduct and itsconsequences. We reinstate his suspension.

DUE PROCESS

Notwithstanding the petitioners' arguments to the contrary, we do not find that theBoard's consolidation of the four officers' cases, the pretrial publicity accorded theHaggerty case and the failure of any of the Board members to attend the administrativehearing deprived either Daniels or Carter of his or her right to be tried fairly.

1. Consolidation

Due process requirements differ in judicial and administrative proceedingsbecause administrative proceedings are simpler and less formal and technical thanjudicial proceedings. Desai v. Metropolitan Sanitary District of Greater Chicago, 125 Ill.App. 3d 1031, 1033, 466 N.E.2d 1045, 1047 (1984). Due process in an administrativeproceeding is satisfied by a "'procedure that is suitable and proper to the nature of thedetermination to be made and conforms to fundamental principles of justice.'" Comito v.Police Board of the City of Chicago 317 Ill. App. 3d 677, 687, 739 N.E.2d 942, 949(2000), quoting Telcser v. Holzman, 31 Ill. 2d 332, 339, 201 N.E.2d 370, 374-75 (1964). That procedure must include impartial rulings on the evidence, an opportunity to beheard, and the right to cross-examine adverse witnesses. Comito, 317 Ill. App. 3d at687, 739 N.E.2d at 949, citing Abrahamson, 153 Ill. 2d at 95, 606 N.E.2d at 1120. Anadministrative body has broad discretion in conducting its hearings but that discretionmust be exercised judiciously and not arbitrarily. Comito, 317 Ill. App. 3d at 687, 739N.E.2d at 949.

"[T]he consolidation of separate causes for trial is discretionary with the trial courtand our courts have found no abuse of discretion where the separate causes are of thesame nature, arise from the same act, event or transaction, involve the same or likeissues, and depend largely or substantially upon the same evidence, and when a jointtrial will not give one party an undue advantage or prejudice the substantial rights of anyparty." Peck v. Peck 16 Ill. 2d 268, 275, 157 N.E.2d 249, 254 (1959), citing Black HawkMotor Transit Co. v. Illinois Commerce Comm'n, 383 Ill. 57, 66-67, 48 N.E.2d 341, 346(1943). Similarly, administrative bodies performing quasi-judicial functions have thediscretion to consolidate cases for hearing and, unless that discretion is abused,reviewing courts will not interfere with an agency's decision regarding consolidation. Black Hawk Motor Transit Co., 383 Ill. at 66, 48 N.E.2d at 346. If an abuse of discretionif found, the reviewing court must then determine "whether the result was injurious orprejudicial to appellant's right to a fair and impartial hearing." Black Hawk Motor TransitCo., 383 Ill. at 66, 48 N.E.2d at 346.

In this case, the same incidents gave rise to the charges against all four officers,many of the same charges were raised against each officer, the same witnesses wouldlikely testify in all four cases and the four officers would be called to testify against eachother given that they confronted shared circumstances. There is no evidence that anyofficer was denied the right to cross-examine any of the witnesses or an opportunity tobe heard. In fact, having examined the report of proceedings for the entire six-dayhearing, it is clear that each officer had ample opportunity to examine each witness andto present his or her case. Moreover, all four officers were represented by the sameattorney and their defenses were not inconsistent. Given the common issues of law andfact, we find no abuse of discretion in the Board's decision to consolidate the cases.

As Daniels correctly states, each officer's perception of the facts confronting themwas unique. However, whether an officer's perception of the facts was reasonable canonly be determined by looking at the entirety of the circumstances confronting thatofficer. This totality of circumstances can only be determined by examining not only theofficer's testimony but that of any other witnesses to the incident, including the testimonyof other officers present. At any given point in time, the facts confronting each officerwere shared by anyone else present at that moment in time; they were not unique to thatofficer. Although each witness's perceptions of the facts might vary, each witness'saccount of the same factual scenario should be considered.

Consolidation of the cases did not prejudice Carter and Daniels due to anydisparities in the evidence that confronted each officer. "Without a showing to thecontrary, State administrators 'are assumed to be men of conscience and intellectualdiscipline, capable of judging a particular controversy fairly on the basis of its owncircumstances.'" Scott v. Department of Commerce & Community Affairs, 84 Ill. 2d 42,55, 416 N.E.2d 1082, 1089 (1981), quoting United States v. Morgan, 313 U.S. 409, 421, 85 L. Ed. 1429, 1435, 61 S. Ct. 999, 1004 (1941). As the hearing officer noted, a Boardhearing is more akin to a bench trial than a jury trial and the Board is more than capableof sorting the evidence and applying it to whichever officer is relevant.

The Board is presumed to be able to judge each case on the basis of theevidence uniquely applicable to each case, and Daniels and Carter have presented noevidence that the Board did not do so or that they were prejudiced in any way. Danielsargues that the Board based its finding that she was unjustified in her use of force inshooting Haggerty on Wilson's testimony rather than on her own. However, credibility ofthe officer is always an issue and all factual evidence must be considered, not just thetestimony of the officer being charged. Moreover, the Board clearly stated that, evengiving full credit to Daniels' testimony, her use of deadly force was not justified because"there was simply no threat of imminent harm from Ms. Haggerty." Daniels was clearlynot prejudiced by the consolidated hearings.

Carter states that he was found guilty of failing to report shots fired at 95th Streetdespite the fact that he fired no shots and his radio was not operating, and he assertsthat he should not have been tried under the same circumstances as the other officersbecause he did not fire his weapon. As discussed previously, General Order 99-01requires that an officer report shots fired by any other officer. The Board found thatCarter did not do so, either during the pursuit via Wilson's radio or in person at 64thStreet. Moreover, the Board took Carter's failure to discharge his weapon into account,stating that Carter's culpability was less than the other officers because he did notdischarge his weapon at either location. It, therefore, ordered only a one-yearsuspension, rejecting the superintendent's request that Carter be discharged. Carterwas clearly not prejudiced by the consolidated hearings.

2. Publicity

As in judicial proceedings, due process requires that an impartial tribunaladjudicate in administrative proceedings. Collura v. Board of Police Commissioners,113 Ill. 2d 361, 369, 498 N.E.2d 1148, 1152 (1986). Daniels argues that the Board wasnot impartial given the adverse pretrial publicity her case received. However, "[a] merepossibility of prejudice is insufficient to show that a board, or any of its members, wasbiased." Collura, 113 Ill. 2d 361, 370, 498 N.E.2d 1148, 1152 (1986). In Grissom v.Board of Education of Buckley-Loda Community School District No. 8 , 75 Ill. 2d 314,388 N.E.2d 398 (1979), our supreme court held:

"'Mere familiarity with the facts of a case gained by an agency in the performanceof its statutory role does not, however, disqualify a decisionmaker. [Citations.] Noris a decisionmaker disqualified simply because he has taken a position, even inpublic, on a policy issue related to the dispute, in the absence of a showing thathe is not "capable of judging a particular controversy [fairly] on the basis of itsown circumstances." ' " Grissom v. Board of Education of Buckley-LodaCommunity School Dist. No. 8, 75 Ill. 2d 314, 320, 388 N.E.2d 398, 400 (1979),quoting Hortonville Joint School District No. 1 v. Hortonville Education Ass'n, 426U.S. 482, 493, 49 L. Ed.2d 1, 9, 96 S. Ct. 2308, 2314 (1976), quoting UnitedStates v. Morgan, 313 U.S. 409, 421, 85 L. Ed. 1429, 1435, 61 S. Ct. 999, 1004(1941).

If a decisionmaker is deemed qualified to judge a controversy wherein he has taken apolicy position or of which he knows the facts prior to the hearing , it is highly unlikelythat a board's exposure to pretrial publicity would suffice to disqualify a board or itsmembers from judging a particular case. As discussed previously, without a showing tothe contrary, state administrators such as the Board's members are assumed to be

" 'capable of judging a particular controversy fairly on the basis of its owncircumstances.' " Scott, 84 Ill. 2d at 55, 416 N.E.2d at 1089, quoting Morgan, 313 U.S.at 421, 85 L. Ed. at 1435, 61 S. Ct. at 1004. Daniels and Carter made no such showinghere.

3. Failure to Attend Hearing

In order for due process to be satisfied in administrative proceedings, absentexpress statutory language to the contrary, the agency members making the finaldecision need not be present when the evidence is taken as long as they consider theevidence in the report of proceedings before the hearing officer and base their findingsand recommendations thereon. Abrahamson, 153 Ill. 2d at 95-96, 606 N.E.2d at 1120;Homefinders, Inc. v. City of Evanston, 65 Ill. 2d 115, 128, 357 N.E.2d 785, 791 (1976). If the evidence before a hearing officer is in such conflict that the weight and credibility ofthe witnesses' testimony is the determining factor in the case, due process may requirethat the hearing officer participate in the Board's decision by submitting a report of hisconclusions and impressions. Ruther v. Hillard, 306 Ill. App. 3d 997, 1005, 715 N.E.2d772, 778 (1999); Serio v. Police Board of the City of Chicago, 275 Ill. App. 3d 259, 266,655 N.E.2d 1005, 1010 (1995).

The Board stated in its "Findings and Decision":

"[T]he members of the Police Board read and reviewed the certified transcript ofthe proceedings of the hearing, as well as all of the exhibits admitted intoevidence. Thomas E. Johnson, Hearing Officer, made an oral report andconferred with the Police Board about the evidence and the credibility of thewitnesses before the Board rendered its decision."

Due process requirements were clearly met here because the Board heard an oralreport from the hearing officer; conferred with the hearing officer; discussed witnesscredibility with him; reviewed the evidence in the case; and, as shown by the 15-pagefactual analysis in the Board's written decision, based its findings on all of thisinformation. Accordingly, the Board members' absence from the hearing did not denyDaniels and Carter due process of law. See Ruther, 306 Ill. App. 3d at 1005, 715N.E.2d at 778.

For the reasons stated above, we affirm the trial court's decision with regard toDaniels and, accordingly, the Board's decision to discharge Daniels. We reverse thedecision of the trial court with regard to Carter and reinstate the Board's decision tosuspend Carter from his duties for one year.

Affirmed in part; reversed in part.

THEIS, P.J., and HARTMAN, J., concur.