Court panel: Aurora cop who spied on ex-wife should get job back

 
 
Updated 2/26/2019 7:18 PM

An Aurora cop who was fired for using his department cellphone to access three hidden cameras he planted in his ex-wife's Sugar Grove house to spy on her after their divorce should get his job back, an appellate court panel has ruled.

The three-judge panel's 32-page ruling overturned a Kane County court's decision in spring 2018 to uphold the termination of Dan Wagner, a nine-year department veteran, and affirmed an arbitrator's decision to suspend him for a year.

                                                                                                                                                                                                                       
 

The appellate panel ruled last week the arbitrator did not violate public policy by ordering Wagner's reinstatement after a year off the police force.

"There was no contractual provision mandating termination of police officers for off-duty misconduct and the arbitrator, in our view, made a rational finding that Wagner was amenable to discipline," read part of the ruling.

The panel concluded Wagner's case was different from past instances of police officers being fired for misconduct because he was not previously disciplined for the same offense, and his ex-wife didn't testify at a disciplinary hearing to refute his story.

Wagner's now ex-wife found a hidden camera in her house in September 2016 and called police to investigate.

Officers found a total of three cameras. Records show she had filed for divorce in 2015, and Wagner installed the cameras during the divorce proceedings and reactivated them after it was final.

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Aurora Police investigated, Chief Kristen Ziman recommended Wagner's termination and Wagner was fired Jan. 18, 2017. The police union took the matter to an arbitrator, who ruled after an October 2017 hearing that firing Wagner was "too harsh" because he was highly emotional as a result of the pending divorce and had received positive performance reviews in the past.

In text messages to his law enforcement friend, Wagner acknowledged he committed felony eavesdropping and was worried he'd lose his pension, according to court records.

The Kane County state's attorney's office reviewed the case at the time and decided charges were not warranted.

The union argued he should be reinstated Jan. 18, 2018 after a one-year suspension. The city sued to put the reinstatement on hold and now-retired Kane County Judge David Akemann upheld the firing.

"It is difficult to construe a greater violation of privacy than a continuous livestream of audio and visual of a person's bed and bedroom without that person's knowledge or consent," Akemann, also a former state's attorney, wrote in his 2018 decision. "This activity, which (Wagner) knew to be unlawful and in derogation of his sworn oath, ran largely unabated for 5-6 months."

The appellate court's decision reverses Akemann's ruling. It wrote the arbitrator "implicitly found that Wagner was unlikely to reoffend" and agreed with the arbitrator's ruling that Wagner's contentious divorce clouded his judgment.

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