Illinois Department of Juvenile Justice v. Illinois Civil Service Commission

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State: Illinois

Court: 4th District Appellate

Docket No: 4-09-0971 Rel

Case Date: 11/01/2010

Preview:Filed 11/1/10

NO. 4-09-0971 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

THE ILLINOIS DEPARTMENT OF JUVENILE ) Appeal from JUSTICE, ) Circuit Court of Plaintiff-Appellant, ) Sangamon County v. ) No. 09MR434 THE ILLINOIS CIVIL SERVICE COMMISSION; ) CHRIS KOLKER, in His Official Capacity ) as Chairman of the Illinois Civil ) Service Commission; RAYMOND W. EWELL, ) BARBARA J. PETERSON, ARES G. DALIANIS, ) and BETTY BUKRABA, in Their Official ) Capacities as Commissioners of the ) Illinois Civil Service Commission; and ) Honorable JOSIE DAY, ) Patrick W. Kelley, Defendants-Appellees. ) Judge Presiding. _________________________________________________________________ JUSTICE STEIGMANN delivered the opinion of the court: In May 2009, an administrative law judge (ALJ) recommended that codefendant, Josie Day, be discharged from her employment based on Day's admission that she tape-recorded her coworkers' conversations without their knowledge. Two weeks

later, codefendants, the Illinois Civil Service Commission, Chris Kolker, Raymond W. Ewell, Barbara J. Peterson, Ares G. Dalianis, and Betty Bukraba (collectively, the Commission), adopted the ALJ's factual findings but concluded that discharge of Day was not warranted. Instead the Commission determined that a 90-day

suspension constituted an appropriate sanction. In June 2009, plaintiff, the Illinois Department of Juvenile Justice (Department), filed a complaint for administra-

tive review pursuant to section 3-108 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/3-108 (West 2008)), requesting reversal of the Commission's decision to suspend Day instead of terminating her employment. Following a November 2009 hearing,

the circuit court affirmed the Commission's decision. The Department appeals, arguing that the Commission's conclusion that cause to discharge Day did not exist was arbitrary and unreasonable. We disagree and affirm. I. BACKGROUND A. The Circumstances Surrounding the Department's Decision To Terminate Day's Employment In December 1986, Day began working for the Illinois Department of Public Aid as an entry-level administrative clerk. In early 1990, Day transferred to the Department of Corrections (DOC), where she worked various clerical positions. In November

1997, Day tendered her written resignation, citing her "medical condition to smoke." In particular, Day noted that because she

"found an ash tray on [her] desk with a cigarette butt and numerous ashes in it," she "would no longer expose [herself] to unnecessary smoke and stress." (At her termination hearing in

this matter, Day testified that she resigned because of her husband's death.) In May 2004, DOC rehired Day as an Executive

Secretary II for the (1) school superintendent of its school district and (2) chief of its medical services division. On July 1, 2006, the legislature transferred control of - 2 -

(1) juvenile offenders and (2) school district employees, including Day, from DOC to the newly created Department. Two weeks

before the transfer, the Department's acting director, who was later appointed Department Director (hereinafter Director), scheduled a two-day executive staff conference to coordinate the transition. Because the Director knew that Day was apprehensive

about the transition, he invited her to attend the conference to meet the Department's executive staff and assuage her concerns. Following the transition, Day worked at the Department's executive offices with three other employees. In spring 2007, Day complained to a union steward about the disruptive noise level in her workplace, which she claimed was caused by her coworkers' discussions concerning weekend plans, birthdays, and "office chatter." The union did not act on

Day's claim because it did not want to stifle social interaction among employees. In May 2007, Day again complained to the union The steward promptly scheduled a

steward about the noise level.

meeting with the Department's acting deputy director for operations (deputy). Following a June 2007 meeting, the deputy stated Day later told the

that he would address Day's noise complaint.

union steward in casual conversation that the executive office noise continued to be a problem. In December 2007, Day again

complained to the union steward but stated that the "office chatter" was now "personal." The steward referred Day to the - 3 -

Department's equal-opportunity representative because he considered Day's claim similar to a hostile-work-environment complaint. In March 2008, Day contacted the union steward, requesting to file a grievance regarding "excessive noise level," which she claimed was dangerous to her health. One week later,

Day, the union steward, and the deputy met to discuss Day's concerns. At the meeting, Day provided the deputy with a typed

log, chronicling, in explicit detail, her coworkers' conversations and activities over 11 business days (March 6, 2008, through March 21, 2008). After the meeting, the deputy read the

following entry from Day's log, dated March 18, 2008: "1:55 Billie returned from lunch and

she and Lisa entered the back door chattering and laughing loudly. The atmosphere was I turned on the

[sic] now again very noisy.

tape recorder to caught [sic] some of it." (Emphasis added.) Thereafter, the deputy (1) informed the Director about Day's log entry and (2) scheduled another meeting with Day and the union steward. At the meeting, Day admitted that she had The deputy asked Day

tape-recorded her coworkers' conversations.

to (1) file an incident report regarding the recording and (2) provide him the tape and Department-issued tape recorder she used to make the recordings. Thereafter, the deputy gave the tape - 4 -

recording to the Director.

The Director later listened to the

recording and discovered that along with recording her coworkers' conversations during March 2008, Day had also recorded about 60 to 90 minutes of the June 2006 transition conference. In July 2008, the Department referred Day to an employee-review hearing for violating Department standard-ofconduct rules regarding (1) employee actions that reflect poorly on the Department and (2) compliance with federal, state, and local laws. After a hearing held later that month, the hearing

officer provided the Director his written report in which he (1) found that Day's conduct was not criminal but, instead, employee misconduct and (2) recommended a 60-day suspension. The Director rejected the hearing officer's suspension recommendation, opting instead for suspension pending discharge. The Director noted that the alleged rule violations had been substantiated based, in part, on Day's admission that she taperecorded her coworkers without their knowledge. In August 2008,

the State of Illinois Central Management Services (CMS) approved the Department's discharge recommendation. Day later timely

filed a written request for hearing pursuant to section 11 of the Personnel Code (20 ILCS 415/11 (West 2008)). B. The Evidence Presented to the ALJ Over a seven-month period (September 2008 through March 2009), the following evidence, which included the aforementioned - 5 -

background, was presented by the parties to the ALJ. 1. The June 2006 Recording of the Transition Conference Day explained that prior to her transition to the Department, her clerical duties with DOC included typing minutes of school board and medical service meetings. Day initially

tape-recorded the school board meetings but later transcribed them by hand prior to typing them. Day continued to tape-record

subsequent medical services meetings because the attendees frequently used medical terms that she wanted to accurately reflect in her typed minutes. Day estimated that she had tape-

recorded six medical services meetings--five of which she recorded and transcribed at the request of DOC's chief of medical services. On June 15, 2006, Day attended the transitional meeting, which was already in progress. Day entered, found a seat at

the conference table, and retrieved her planner and Departmentissued tape recorder from her purse. Day placed her purse on the

floor, turned on the tape recorder, and placed it on the conference table. Day then placed her planner on the conference table

and began taking notes. Day stated that because she did not know what her duties would be within the new Department, she wanted to transcribe the transitional information related to the school district accurately. Day later listened to, typed, and filed the - 6 -

minutes of the conference based on the tape recording, which she planned to disseminate to the new school district superintendent when that position was filled. (The record shows that during

Day's employment with the Department, the school district superintendent position remained vacant.) Day surmised that because

DOC's school district superintendent and medical services chief had previously given her permission to tape-record their respective meetings, she could also tape the transitional conference. Day later turned off the tape recorder after she determined that the information being conveyed at the conference no longer pertained to the school district. Day admitted that at the June 2006 transitional conference (1) she did not (a) announce to the attendees that she would be recording or (b) obtain permission to record the conference, (2) no one asked her to make the recording, and (3) she did not see anyone else recording the conference. The Director and one of Day's coworkers who attended the transitional conference both noted that after Day entered the conference, she placed her purse on the conference table. Day

then sat back in her chair approximately two feet away from the conference table, taking notes on a pad of paper that she placed on her lap. The Director and coworker both stated that (1) Day

did not ask for permission to tape the conference and (2) they did not see a tape recorder on the conference room table. - 7 The

deputy testified that when he listened to the recording of the conference, he did not hear the participants discuss any schoolboard-district issues. The DOC medical services chief testified that Day was her part-time clerical assistant for less than a year prior to Day's transition to the Department. During that time, the chief

asked Day to attend one quarterly medical services meeting for the sole purpose of transcribing and preparing minutes of that meeting for her review. The chief (1) could not recall whether

Day had (a) tape-recorded that meeting or (b) attended other quarterly meetings and (2) did not believe that Day took notes at any other medical services meetings because she only disseminated minutes Day prepared from that quarterly meeting. Another of Day's coworkers stated that after an exhaustive search of Day's paper and computer files, she could not find the June 2006 transition-conference minutes Day claimed to have prepared and filed. The coworker acknowledged that she was not

trained in computer forensics and had not previously performed a computer search for electronic media. In rebuttal, Day testified

that the Department had issued her a new computer in late 2007 but also admitted that the computer technicians had transferred her old computer files to her new computer. 2. The March 2008 Recording of Day's Coworkers After the transition, Day shared office space with - 8 -

three other women in the Department's executive offices, where they each had their own office cubicle. Day described her work

environment as "stressful" and that it was "extremely difficult to perform some of [her] functions" because the office was "extremely loud" and her coworkers were "out of control." Day

recounted that in November 2007, the office noise was so excessive that she felt as if she was having a "panic attack." Day

stated that she sought medical care for that particular incident but acknowledged that she neither filed a Department report documenting that event, nor mentioned it in her grievance. Day stated that the purpose of constructing the daily log of her coworkers' activities was to document her work environment, which she reiterated consisted of yelling, hollering, and chatter. Day admitted that she recorded her coworkers

without their knowledge but that (1) she did so because she wanted to determine whether the tape recorder would capture the office noise and (2) no one ever informed her that recording personal conversations was prohibited. Day estimated that she

taped her coworkers for a few minutes and that the recorder was in plain view on her office desk. Two coworkers who worked regularly with Day, the union steward, and several other employees who would routinely travel through the executive offices testified that they did not notice any excessive office noise. Day's coworkers further described - 9 -

the executive office as a standard office environment, noting that the noise volume never rose to a level that interfered with their respective job performances. Another Department supervisor

who worked in another building testified that he would come to the Department's executive offices "when he needed to get away from the distractions." The supervisor explained that the

executive offices were "significantly" quieter than his work environment. C. The Administrative Law Judge's Recommendation In May 2009, the ALJ issued, in pertinent part, the following written recommendations: "[T]he preponderance of the evidence indicates that on two different occasions (June 15, 2006 and March 18, 2008)[,] Day intentionally and secretly tape[-]recorded her co[]workers[] without their consent. Day

made the recordings intentionally and voluntarily and she did so without permission and/or authorization from a superior. ***

Despite 15 years of service ***, positive performance evaluations, and no prior disciplinary history, Day's violations of the eavesdropping statute not only offend basic notions of workplace decency[,] but [also] - 10 -

fall precisely into the definition of a 'substantial shortcoming' rendering Day's continuance in her position 'detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for the employee no longer holding the position.' For these reasons,

discharge is the appropriate discipline." D. The Commission's Findings and Decision Two weeks after the ALJ provided its recommendation, the Commission issued the following decision: "The [Commission], having read the recommended decision of the [ALJ] ***, hereby amend[s] and adopt[s] said decision and [certifies] it to [CMS] for enforcement. FINDING[S]: It is hereby determined

that the written charges for discharge approved by the director of [CMS] have been proven, but do not warrant discharge due to Day's 15 years of continuous service with no prior discipline. Furthermore, there is no

evidence that Day's action in tape recording her co-workers was premeditated or done with the requisite level of malicious intent. - 11 -

DECISION: The [Commission] recommend[s] a 90-day suspension in lieu of discharge." E. The Circuit Court's Judgment In June 2009, the Department filed a complaint for administrative review pursuant to section 3-108 of the Civil Code (735 ILCS 5/3-108 (West 2008)), seeking to reinstate the ALJ's discharge determination. Following a November 2009 hearing, the

circuit court affirmed the Commission's decision to suspend Day for 90 days in lieu of discharge. This appeal followed. II. THE COMMISSION'S DISCHARGE DECISION A. The Standard of Review We first note that the appellate court's role is to review the administrative conclusion, not the circuit court's decision. Metro Developers, LLC v. City of Chicago Department of

Revenue, 377 Ill. App. 3d 395, 397, 877 N.E.2d 785, 788 (2007). "In discharge cases, '[t]he scope of review of an administrative agency's decision regarding discharge is generally a two-step process involving first, a manifest-weight standard, and second, a determination of whether the findings of fact provide a sufficient basis for the agency's conclusion that cause for discharge does or does not exist.'" Department of Human Services v.

Porter, 396 Ill. App. 3d 701, 718, 921 N.E.2d 367, 380 (2009), quoting Brown v. Civil Service Comm'n, 133 Ill. App. 3d 35, 39, - 12 -

478 N.E.2d 541, 544 (1985). Initially, an administrative agency's findings and conclusions on questions of fact shall be held to be prima facie true and correct. 735 ILCS 5/3-110 (West 2006); American Federa-

tion of State, County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board, State Panel, 216 Ill. 2d 569, 577, 839 N.E.2d 479, 485 (2005). In examining an adminis-

trative agency's factual findings, this court will not weigh the evidence or substitute its judgment for that of an administrative agency. City of Belvidere v. Illinois State Labor Relations In-

Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295, 302 (1998).

stead, this court is limited to ascertaining whether such findings of fact are against the manifest weight of the evidence. City of Belvidere, 181 Ill. 2d at 204, 692 N.E.2d at 302. An administrative agency's discharge determination is subject to judicial review and "'will not be reversed unless it is arbitrary, unreasonable, or unrelated to the requirements of service.' [Citation.]" N.E.2d at 386. Porter, 396 Ill. App. 3d at 726, 921

A reviewing court may reverse a sanction imposed

by an administrative agency when that agency, in opting for a particular sanction, acted unreasonably. at 39, 478 N.E.2d at 544. B. The Department's Claim That the Commission's Decision Was Arbitrary and Unreasonable The Department argues that the Commission's conclusion - 13 Brown, 133 Ill. App. 3d

that cause to discharge Day did not exist was arbitrary and unreasonable. Specifically, the Department contends that the

Commission's decision to reduce the ALJ's discharge recommendation to a 90-day suspension was "wholly conclusory" in that it provided "little analysis why it chose to reduce Day's discipline from discharge to a mere 90-day suspension." We disagree.

1. The Applicable Civil Service Commission Rule Section 1.170 of Title 80 of the Administrative Code-pertaining to cause for discharge--provides as follows: "a) Cause for discharge consists of some substantial shortcoming which renders the employee's continuance in his position in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for the employee no longer holding the position. b) In determining the appropriate penalty for an offense of which the employee is found guilty, the Commission shall consider the employee's performance record and the employee's length of continuous service unless the offense would warrant immediate discharge." 80 Ill. Adm. Code

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