Cartwright v. Civil Service Commission

• Decision Date: 28 January 1980
• Docket Number: No. 79-83,79-83
• Citation: 80 Ill.App.3d 787,36 Ill.Dec. 161,400 N.E.2d 581
• Parties: , 36 Ill.Dec. 161 Donald CARTWRIGHT, Plaintiff-Appellee, v. CIVIL SERVICE COMMISSION, State of Illinois, and Department of Corrections, State of Illinois, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 581

400 N.E.2d 581

80 Ill.App.3d 787, 36 Ill.Dec. 161

Donald CARTWRIGHT, Plaintiff-Appellee, v. CIVIL SERVICE COMMISSION, State of Illinois, and Department of Corrections, State of Illinois, Defendants-Appellants.

No. 79-83.

Appellate Court of Illinois, First District, First Division.

Jan. 28, 1980.

William J. Scott, Atty. Gen. of the State of Illinois, Joseph D. Keenan, III, Asst. Atty. Gen., Chicago, for defendants-appellants.

Jacob Pomeranz, Cornfield & Feldman, Chicago, for plaintiff-appellee.

McGLOON, Justice:

Defendants Civil Service Commission, State of Illinois, and Department of Corrections, appeal from a complaint for administrative review that reversed the Commission's decision to discharge plaintiff Donald Cartwright. Plaintiff was in charge of security at the Stateville Correctional Center and was discharged, after a hearing, for failing to reprimand a guard who placed a choke hold on an unruly resident of the institution. The Commission discharged plaintiff even though the hearing officer recommended a 60 day suspension. On administrative review, the trial court ordered that plaintiff be reinstated with no loss of benefits. Defendants appealed.

On appeal, defendants argue that the trial court erred in concluding (1) that plaintiff should have appeared before the Employee Review Board rather than the Inquiry Board; (2) that Charge IV was not written with sufficient clarity to inform plaintiff of the charge against him; (3) that plaintiff's discharge was not warranted; and (4) that the hearing officer's conclusion that plaintiff was not guilty of Charge III was contrary to the manifest weight of the evidence.

We affirm.

Plaintiff Donald Cartwright was the chief of security II at the Stateville Correctional Center in Joliet from July 1, 1975 to June 10, 1977. As chief of security, plaintiff was responsible for security within the cell blocks.

During January of 1977, Stateville was the scene of prisoner unrest and violence. On January 10, two prison guards were stabbed; one fatally. As a result, Warden Brierton placed the institution under "lock up". Further disturbances occurred, precipitating a decision to transfer some of the more troublesome inmates to other institutions. The transfer was scheduled for January 16.

On January 16, the inmates to be transferred were taken from their cells and brought to a staging area on the ground floor. There they were placed in a line and moved into waiting buses. Overseeing the transfer were Warden Brierton, Assistant Wardens Kapture and Wallenstein, and plaintiff.

The first inmate brought to the staging room was John Withers. He was upset at being transferred. After being handcuffed to the transfer chain, he began strenuously objecting. After several minutes of such conduct, Warden Brierton ordered that Withers be taken off the chain and placed in the washroom located in the room. Captain Stokes removed Withers from the chain, placed a "choke hold" on him, and placed him in the washroom. Witnessing the incident were Warden Brierton, Assistant Warden Kapture, plaintiff, and others.

Exactly what transpired inside the washroom is disputed. Assistant Warden Kapture later testified that plaintiff walked into the washroom and struck Withers with an open palm. Plaintiff denied ever striking Withers. Warden Brierton testified that he did not observe plaintiff strike Withers, although there was evidence that he did not have a clear view of the washroom.

Subsequently, an investigation was conducted in connection with alleged inmate beatings that occurred during the January 10-16, 1977 period. On June 10, 1977, plaintiff was presented with the following written charges:

"1. On January 15, 1977, Chief of Security Cartwright did use unnecessary force against resident Delbert Wooten. In that, Chief of Security struck resident Wooten with a Black Jack without proper justification. This is in violation of Administrative Regulation # 803.

"2. On January 15, 1977, Chief of Security Cartwright did use unnecessary force against resident Reginald Mosby. In that, Chief of Security Cartwright entered the resident's cell and struck the resident without proper justification. This action is in violation of Administrative Regulation # 803.

"3. On January 16, 1977, Chief of Security Cartwright did use unnecessary force against Residents John Withers and Noffey Hollands. In that, while resident Withers was physically restrained by other staff, Chief of Security Cartwright struck the resident in the area of the head. In addition, Chief of Security Cartwright struck resident Hollands during the same incident. Both incidents were without proper justification and is in violation of Administrative Regulation # 803.

"4. On January 16, 1977, Chief of Security Cartwright did condone the use of unnecessary force against residents John Withers and Noffey Hollands. In that, Chief of Security Cartwright, who was the chief security officer at the institution, did not restrain and/or attempt to restrain subordinate staff from striking the residents while knowing these actions were in violation of Administrative Regulation # 803."

On June 13, 1977, plaintiff requested a hearing before defendant Civil Service Commission to determine whether cause existed for his discharge. On June 21, 1977, plaintiff filed a motion to dismiss the charges. He argued that contrary to administrative rule 220, he had not been accorded a hearing before the Employee Review Board prior to the issuance of the charges against him. Defendant Commission replied that plaintiff was provided, however, with an opportunity to answer the charges before the newly created Inquiry Board, even though the regulation creating the Board had not yet become effective at the time of plaintiff's appearance. Subsequently, plaintiff's motion to dismiss was denied and a hearing was held.

On March 2, 1978 the hearing officer issued his findings. Of the four charges, he found only Charge IV to have been proved. Specifically, he found that:

"(7) The evidence is sufficient to persuade the Hearing Officer that Respondent Cartwright did fail in his duty to reprimand or otherwise take appropriate disciplinary action against Captain Stokes for his unjustified application of force against resident Withers on January 16, 1977. The evidence shows that Stokes used excessive and unjustifiable force against resident Withers when Stokes used a choke hold against the handcuffed smaller man to take him from the chain to the washroom."

As appropriate punishment, the hearing officer recommended that plaintiff be suspended for 60 days. Defendant Commission, however, discharged plaintiff instead.

Plaintiff then filed a complaint for administrative review. After hearing argument, the trial court reversed the Commission's decision and ordered plaintiff reinstated with no loss of benefits. Defendants appeal.

On appeal, defendants first argue that the trial court erred in concluding that plaintiff should have been accorded a hearing before the Employee Review Board prior to the issuance of the charges against him. Defendants argue that plaintiff suffered no prejudice as a result of his appearance before the Inquiry Board and that, therefore, the order for discharge should have been upheld.

We do not feel that the alleged error was sufficient to warrant a reversal. The Inquiry Board was specifically created to replace the Employee Review Board. This was deemed necessary because members of the Employee Review Board might include employees who were also the subject of the same investigation as plaintiff. So that impartiality would be achieved, the Inquiry Board was created. Its membership was limited to employees from other institutions within the state. However, relying on Service v. Dulles (1957), 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 and noting that plaintiff appeared before the Inquiry Board 13 days before the regulation creating it became effective, the trial court concluded that the Inquiry Board was without authority to hear the case.

In Sun Oil Co. v. Federal Power Comm. (5th Cir. 1958), 256 F.2d 233, the court stated:

" * * * an administrative agency is not a slave to its rules. National Labor Relations Board v. Grace Co., 8 Cir., 1950, 184 F.2d 126. Ad hoc changes may be made and, in proper cases, may be applied retroactively. National Labor Relations Board v. National Container Corp., 2 Cir., 1954, 211 F.2d 525. In a particular case an administrative agency may relax or modify its procedural rules and its action in so doing will not be subjected to judicial interference in the absence of a showing of injury or substantial prejudice." (256 F.2d at 239.)

See also Saint Francis Memorial Hospital v. Weinberger (1976), D.C., 413 F.Supp. 323. Among the other considerations that enter into the resolution of whether to grant retroactive effect to a newly adopted administrative regulation are: whether the case is one of first impression, whether the regulation represents an abrupt departure from well-established practice, the extent to which the party against whom the new regulation is applied relied on the former regulation, and the degree of burden imposed on that party. (Retail, Wholesale and Department Store Union, AFL-CIO v. N.L.R.B. (1972), 151 U.S.App.D.C. 209, 466 F.2d 380; Lodges 743 and 1746, Intern'l Ass'n of Machinists and Aerospace Workers, AFL-CIO v. United Aircraft Corp. (1975), 534 F.2d 422.) Further modification of administrative regulation is particularly appropriate when prompted by unique or emergency situations. In American Farm Lines v. Black Ball Freight Service (1970), 397 U.S. 532, 90 S.Ct. 1288, 25 L.Ed.2d 547, the Supreme Court enunciated the general rule that:

" * * * (i)t is always within the discretion of a court or an administrative agency to...