Department of Driver Services v. Secretary of State Merit Com'n, 4-84-0042

• Decision Date: 06 May 1985
• Docket Number: No. 4-84-0042,4-84-0042
• Citation: 132 Ill.App.3d 753,87 Ill.Dec. 844,477 N.E.2d 1372
• Parties: , 87 Ill.Dec. 844 DEPARTMENT OF DRIVER SERVICES, Secretary of State, State of Illinois, Plaintiff-Appellee, v. SECRETARY OF STATE MERIT COMMISSION, State of Illinois, Defendant, and Earl Smock, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1372

477 N.E.2d 1372

132 Ill.App.3d 753, 87 Ill.Dec. 844

DEPARTMENT OF DRIVER SERVICES, Secretary of State, State of Illinois, Plaintiff-Appellee, v.SECRETARY OF STATE MERIT COMMISSION, State of Illinois, Defendant and Earl Smock, Defendant-Appellant.

No. 4-84-0042.

Appellate Court of Illinois Fourth District.

May 6, 1985.

Rehearing Denied June 4, 1985.

Manion, Janov, Edgar, Devens & Fahey, Ltd., Hoopeston, (Paul T. Manion, of counsel), for defendant-appellant.

Stratton & Nardulli, Springfield, for plaintiff-appellee.

TRAPP, Justice:

Defendant Smock appeals from an order of the circuit court of Sangamon County, sitting in administrative review (Ill.Rev.Stat.1983, ch. 110, par. 3-101 et seq.), which reversed the order of the Secretary of State Merit Commission of the State of Illinois(Commission) suspending him from his position with plaintiffDepartment of Driver Services of the Illinois Secretary of State(Department) for 90 days.This suspension was in addition to a suspension previously imposed by the Department, and constituted the maximum suspension the Commission could permissibly impose under section 9 of the Secretary of State Merit Employment Code (Ill.Rev.Stat.1983, ch. 124, par. 109).The circuit court ordered Smock's discharge from employment consistent with the Department's position.The discharge order has been stayed pending this appeal.

The issue before this court is the propriety of the circuit court's reversal of the Commission's decision.

The guidelines have been stated by the supreme court in Department of Mental Health & Developmental Disabilities v. Civil Service Com. (DuFrenne, appellant)(1981), 85 Ill.2d 547, 55 Ill.Dec. 560, 426 N.E.2d 885.The court described a two-step process for a reviewing court in dealing with an administrative agency's (here, the Commission's) decision whether or not to discharge an employee: (1) to determine whether the agency's findings of fact are contrary to the manifest weight of the evidence, and (2) to determine whether the findings of fact provide a sufficient basis for the conclusion that cause for discharge does or does not exist.The latter is not tested by manifest weight of the evidence, but whether the decision is arbitrary, unreasonable, or unrelated to the requirements of the service.Sutton v. Civil Service Com.(1982), 91 Ill.2d 404, 63 Ill.Dec. 409, 438 N.E.2d 147;Department of Mental Health & Developmental Disabilities v. Civil Service Com. (Mars, appellant), (1982), 103 Ill.App.3d 954, 59 Ill.Dec. 573, 431 N.E.2d 1330;Secretary of State v. Kunz(1983), 116 Ill.App.3d 736, 739, 72 Ill.Dec. 262, 264, 452 N.E.2d 387, 389.

Section 11 of the Personnel Code prohibits the discharge of employees except "for cause".(Ill.Rev.Stat.1983, ch. 127, par. 63b111.)There is no statutory definition of "cause.""Cause" has been judicially defined as " 'some substantial shortcoming which renders the employee's continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public policy recognize as good cause for his no longer holding the position.' "((DuFrenne, appellant)(1981), 85 Ill.2d 547, 551, 55 Ill.Dec. 560, 562, 426 N.E.2d 885, 887.)As this court stated in Parkhill v. Illinois Civil Service Com.(1978), 58 Ill.App.3d 291, 292, 15 Ill.Dec. 819, 374 N.E.2d 254, 256, such shortcoming need not be directly connected with the performance of the work; however, it must not be trivial, arbitrary, or unreasonable.The question of whether cause for discharge exists should be determined by the administrative agency (here, the Commission), and the agency's decision as to cause will not be reversed unless it is arbitrary, unreasonable, or unrelated to the requirements of service.DuFrenne.

With these general precepts in mind, we consider the facts which were before the Commission in rendering its determination on the issue of cause for discharge in this case.

In the case at bar, the first step is not controverted.The parties do not contest the findings of fact nor that the charges against Smock were proved.Hence, the second step of the analysis is the determinative issue in this case.

Smock supervised the Department's driver facility in Hoopeston, Illinois.During the requisite time period, the staff of the small facility included Mr. Bane from October 1974 through May 1979, Ms. Parsons beginning in May 1978, and Ms. Shore beginning in September 1974.Smock worked at the facility as an examiner beginning in 1974, and was promoted to the position of supervisor in June 1976.Smock also served as mayor of Hoopeston and chairman of the Vermilion County Democraticparty.

On June 15, 1981, the Department initiated discharge proceedings against Smock following a 29-day suspension from May 19 to June 16, 1981.The charges (1) alleged operation of a city office from the Department's facility during business hours, including installation of a city phone at the facility and conduct of political affairs there during business hours; (2) alleged operation of a political office from the Department's facility during business hours, including installation of a political headquarters' phone at the facility, conduct of political affairs and registration of voters there, attendance at political meetings on state time, and maintaining a political file at the facility; and (3) misuse of state employees in conducting city and political business on state time.

As no specific rules of conduct were placed in evidence, the hearing officer considered Smock's alleged conduct as against general standards of reasonableness and the specific prohibitions of "An Act to define and regulate political activity by merit employees of the State and to repeal an Act herein named"(Act)(Ill.Rev.Stat.1983, ch. 24 1/2, pars. 38s-38v).

The hearing officer found that the evidence proved 12 allegations of the bill of particulars filed in support of the Department's charges.

First, around December 21, 1979, a telephone line registered to the political party was installed in Smock's office at the Department facility.This line was answered by state employees on state time per Smock's instructions.(According to the testimony, employees were directed to answer this phone "Vermilion County Democratic chairman's office.")This phone line was removed around November 10, 1980.

Second, around March 9, 1978, a phone line registered to the mayor's office was installed in Smock's office at the Department facility.Department employees answered this phone on state time at Smock's direction.(According to the testimony, employees were directed to answer this phone "the Mayor's office.")This phone line was removed around April 22, 1981.Mr. Graves, Smock's superior, testified the line was removed after he learned of its existence when Hoopeston police were picketing the Department facility.The hearing officer opined that installation of these phone lines went well beyond the realm of reasonableness in keeping personal business from interfering with that of the Department, and that Smock knew that he was not to use state employees to conduct personal business, as he had previously been disciplined for such conduct.Smock testified that he had previously been suspended for one week without pay for use of a state employee for non-Secretary of State business.

Third, from around May 3, 1977, until January 6, 1981, when removed by another employee, Smock maintained political files in the Department facility.The hearing officer found that the political files were maintained by Department employees at Smock's order, and that a number of the documents, typed by facility employee Parsons, contained violations of the Act.

Fourth, with regard to a motorcycle purchased to be raffled for the benefit of the Vermilion County Democraticparty, between May 30, 1980, and July 16, 1980, Smock sold, and ordered facility employees Shore and Parsons to sell raffle tickets at the facility on state time for the benefit of the political party.The hearing officer found this was a clear violation of the Act.

Fifth, around Saturday, March 21, 1981, Smock ordered facility employee Shore to appear at his house to stuff envelopes with materials related to political or mayoral activity on state time.The hearing officer found that this amounted to a blatant abuse of authority and a violation of the Act.

Sixth, around April 19, 1981, Smock ordered facility employee Shore to handwrite a letter regarding a precinct committee meeting and make photocopies of it on state time.The hearing officer found that this was a clear violation of the Act.

Seventh, in April 1981, Smock sent a facility employee, Shore, to photocopy jingles to be used by political callers for the upcoming election.The hearing officer found this was abuse of authority over a subordinate.

Eighth, during the week of March 30, 1981, Smock ordered facility employees Shore and Parsons to write "Sorry I missed you," on the back of his political and mayoral brochures on state time at the facility.The hearing officer found that this was both an abuse of authority and a violation of the Act.

Ninth, Smock ordered facility employee Parsons to type political and mayoral material for him at the facility using state equipment and on state time, of which more than a dozen examples were placed into evidence.The hearing officer found this was an abuse of authority and that some of the documents were in violation of the Act.

Tenth, while at the facility and during office hours, Smock sold facility employee Shore a "silver card" dated 1979 for a $25 contribution to the Democratic party.The hearing officer found this was a violation of the Act.

Eleventh, around March 28, 1978, Smock ordered facility employee Shore, while at the facility and on state time, to prepare a list of Democratic precinct committeemen.The hearing officer found that Smock's admission that he had asked Shore to...