Ehlers v. Jackson County Sheriff's Merit Comm'n
State: Illinois
Court: 5th District Appellate
Docket No: 5-96-0488
Case Date: 06/26/1997
No. 5-96-0488
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
KATE EHLERS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Jackson County.
)
v. ) No. 95-MR-40
)
JACKSON COUNTY SHERIFF'S MERIT )
COMMISSION; RICHARD A. GREEN, )
Chairman, KENT PARRISH, and )
KENNETH GARRET, Members of the )
Jackson County Sheriff's Merit )
Commission; and WILLIAM KILQUIST, )
Sheriff of Jackson County, )
) Honorable
) E. Dan Kimmel,
Defendants-Appellees. ) Judge, presiding.
_________________________________________________________________
JUSTICE HOPKINS delivered the opinion of the court:
Kate Ehlers, plaintiff, appeals from an order of the Jackson
County circuit court affirming an order of the Jackson County
Sheriff's Merit Commission (Merit Commission), which terminated
plaintiff's employment as a jail officer and sergeant with the
Jackson County Sheriff's Department. In this administrative review
case, we consider whether Ehlers was entitled to request union
representation at an investigatory interview conducted by the
Jackson County sheriff, William Kilquist, plaintiff's employer. We
hold that, under the circumstances of this case, Ehlers had a right
to request union representation at the meeting in question and that
the Merit Commission acted arbitrarily by discharging Ehlers for
asserting her right in this regard.
FACTS
On January 7, 1995, Sheriff Kilquist suspended Ehlers without
pay and filed a complaint with the Merit Commission, requesting a
hearing on the following disciplinary charges against Ehlers:
"A) On or about Tuesday, January 3, 1995[,] not fully
and/or truthfully complying with the order of her Lieutenant
(Jacquot) to produce for the Complainant Sheriff a report as
to how many times her husband was at the Jackson County
Sheriff's Department, how long he had stayed, how many times
she was outside the Jail and the amount of times she was out
of the Jail while she was on duty on December 26, 1994[,] and
working a duty tour at the Jackson County Jail.
B) On or about Thursday, January 5, 1995, giving a less
than truthful and/or accurate typed report to the Complainant
Sheriff regarding how many times her husband had been to the
Jackson County Jail and the amount of time she was out of said
Jail while she was on duty and at the said Jail complex on
Monday, December 26, 1994, and further on said report writing
the words `I am making these statements under duress' and
further that the Respondent did deliver said January 5,
1995[,] document to the Complainant Sheriff while accompanied
by on[-]duty Jackson County Jail Officer George Schaefer
acting as a witness for Respondent as requested by Respondent.
C) On or about Thursday, January 5, 1995[,] at about
11:15 a.m. at or near the Complainant Sheriff's office and
immediately after Respondent had delivered to the office of
the Complainant Sheriff the report mentioned in (B) of this
writing, Respondent did refuse to obey the verbal order to her
by the Complainant Sheriff to stay and talk to the Complainant
Sheriff about the subject matter mentioned in (A) and (B) of
this writing and Respondent did further claim that she was
being harassed and did further state that she would not talk
to the Complainant Sheriff in the absence of the on[-]duty
Jackson County Jail Officer George Schaefer." (Emphasis added
in complaint.)
On February 2, 1995, the Merit Commission conducted a hearing
in which the following relevant evidence was presented: Ehlers
testified that she was working the day shift on December 26, 1994.
Her husband came to the jail in the afternoon, and they went
outside to smoke cigarettes. Ehlers estimated that they were
outside about 10 minutes. While outside, she was wearing her radio
and it was turned on so that someone inside the jail could reach
her if necessary. After the cigarette break, she came back in the
jail and went back to work. Other jail officers testified that it
was not unusual for jail officers to go outside the jail to smoke
cigarettes while on duty.
On January 3, 1995, Sergeant Ehlers' immediate supervising
officer, Lieutenant Earl Jacquot, told her that the sheriff wanted
a written statement from her about when her husband was at the jail
on December 26, how many times he was there, and how long he
stayed. In response to Jacquot's request, Ehlers submitted the
following statement to the sheriff:
"This statement is being made as per ordered by Sheriff
Kilquist and as advised to me by Lt. Earl Jacquot.
On December 26, 1994, to the best of my knowledge and
recollection, my husband, Curt Ehlers, came to the Jail one
time during the afternoon hours."
Ehlers testified that the reason her first statement contained
so little information was that she did not recall how long her
husband had been at the jail on December 26. Ehlers testified that
Jacquot asked her to rewrite the report to provide the additional
details, but she told Jacquot that she did not remember. Jacquot
told her she had to write something anyway. Ehlers then submitted
the following as her second statement:
"On December 26, 1994, to the best of my knowledge and
recollection, my husband, Curt, came to the Jail one time
during the afternoon hours for a short period of time.
I was out of the Jail at 1255 hours and back in at 1305
hours and out at 1440 hours and back in at 1450 hours of the
26th of December, 1994, as is recorded in the Central Control
Officers log (see attached) on that date. I would note that
the portion of the log from which these times are taken has
been scribbled through several times."
After her signature, Ehlers wrote, "I am making these statements
under duress."
After drafting the second statement, Ehlers telephoned her
union representative, but he was not available. Ehlers testified
that she wanted to talk to the union representative because she
felt that some kind of disciplinary action was going to be taken
against her and she was concerned for her job. Jacquot testified
that before December 26, he told Ehlers that she was spending too
much time outside on cigarette breaks.
Sheriff Kilquist testified that on January 5, 1995, he
requested Ehlers to bring the second statement to his office.
Ehlers testified that when the sheriff called her, she told him she
felt she was being harassed, but the sheriff told her she was not
being harassed. Before Ehlers went to the sheriff's office, she
asked Officer George Schaefer to come with her as her union
representative. Ehlers testified that she felt she needed a union
representative present because she believed that her job was in
jeopardy.
Ehlers, Schaefer, and Sheriff Kilquist all testified about
this meeting, and their testimony is not contradictory. After
Ehlers and Schaefer arrived at the sheriff's office, Ehlers placed
the second report on the sheriff's desk. Sheriff Kilquist asked
Ehlers to stay and sit down because he wanted to talk to Ehlers,
but he told Schaefer to leave. Ehlers responded that she would
rather stand and that she wanted Schaefer present as her union
representative. Sheriff Kilquist again ordered Schaefer to leave.
Schaefer left. Ehlers told the sheriff again that she would not
talk to him without a union representative, and she turned to
leave. Sheriff Kilquist told Ehlers that if she left, he would
fire her. Ehlers left. The sheriff suspended Ehlers without pay
and filed the complaint seeking her dismissal.
The Merit Commission determined that the sheriff presented
insufficient evidence to sustain the allegations of paragraph A and
B of the sheriff's complaint, which alleged that Ehlers submitted
inaccurate or untruthful statements to the sheriff, but found that
paragraph C, concerning Ehlers' refusal to talk to the sheriff, was
sustained by the evidence.
On May 17, 1995, the Merit Commission held a hearing to
determine what type of discipline should be imposed upon Ehlers for
her refusal to talk to the sheriff. The Merit Commission found
that the sheriff lawfully ordered Ehlers to sit in his office and
talk to him and that Ehlers' refusal to obey the sheriff's order
amounted to insubordination. The Merit Commission decided to
discharge Ehlers from her employment effective January 7, 1995.
The Merit Commission made no finding regarding Ehlers' right to
have a union representative present at the January 5, 1995, meeting
with the sheriff.
On June 23, 1995, Ehlers filed a complaint for administrative
review, asking the Jackson County circuit court to overturn the
Merit Commission's decision terminating her employment. On July 1,
1996, the court entered an order affirming the Merit Commission's
decision, finding that it was not contrary to the manifest weight
of the evidence. In the order, the court stated, in relevant part,
as follows:
"In reviewing the Jackson County Merit Commission's
decision to discharge Plaintiff, the Court must affirm that
determination unless it was `arbitrary and unreasonable or
unrelated to the requirements of the service'. Launius v.
Board of Fire and Police Commissioners of Des Plaines, 151
Ill. 2d 419 [(1992)]. Discharge of Plaintiff for her direct
disobedience of Sheriff Kilquist's order cannot be
characterized as arbitrary or unreasonable, and the decision
of the Jackson County Sheriff's Merit Commission to discharge
Plaintiff is affirmed."
The court did not determine whether Ehlers was entitled to
have union representation at the January 5, 1995, meeting with the
sheriff. This appealed followed.
ANALYSIS
On appeal, Ehlers argues that the sheriff's order that she
remain in his office and talk to him without union representation
was an unlawful order and that she cannot be discharged for failure
to follow an unlawful order. We agree.
Under the Sheriff's Merit System Law (55 ILCS 5/3-8014 (West
1992)), Ehlers could not be "removed, demoted or suspended except
for cause, upon written charges filed with the Merit Commission by
the sheriff." "Cause" under this statute and other similar
statutes has been defined as "some substantial shortcoming" which
renders the employee's continuance in his office or employment "in
some way detrimental to the discipline and efficiency of the
service and something which the law and a sound public opinion
recognize as a good cause" for the officer's discharge. Launius v.
Board of Fire & Police Commissioners of Des Plaines, 151 Ill. 2d
419, 435 (1992).
Our review of a decision involving the discharge of an
employee, entered by an administrative body such as the Merit
Commission, is a two-step process. First, we must determine
whether the Merit Commission's finding that Ehlers refused to talk
to the sheriff on January 5, 1995, is contrary to the manifest
weight of the evidence. Walsh v. Board of Fire & Police
Commissioners of Orland Park, 96 Ill. 2d 101, 106 (1983). In this
case, the first step is simple. The evidence is clear that Ehlers
refused to talk to the sheriff.
The second step of the inquiry is to "determine if the
findings of fact provide a sufficient basis for the agency's
conclusion that cause for discharge does or does not exist."
Walsh, 96 Ill. 2d at 106. The Merit Commission's determination of
cause for Ehlers' discharge is not prima facie true or correct, as
are its findings of fact, and its decision regarding cause is not
entitled to the same deference as its findings of fact. Styck v.
Iroquois County Sheriff's Merit Comm'n, 253 Ill. App. 3d 430, 438
(1993). The Merit Commission's finding in regards to cause is to
be respected by the court and should be overturned only if it is
"arbitrary and unreasonable or unrelated to the requirements of the
service." Launius, 151 Ill. 2d at 435.
We next consider whether Ehlers was entitled to union
representation at the January 5, 1995, meeting with Sheriff
Kilquist. Section 6(a) of the Illinois Public Labor Relations Act
provides in pertinent part:
"Employees of the State and any political subdivision of the
State *** have, and are protected in the exercise of, the
right of self-organization, and may form, join or assist any
labor organization, *** to engage in other concerted
activities not otherwise prohibited by law for the purposes of
collective bargaining or other mutual aid or protection, free
from interference, restraint or coercion." (Emphasis added.)
5 ILCS 315/6(a) (West 1992).
The parties agree that Ehlers is an employee covered under
this statute. Where the parties differ is in their interpretation
of the statute's grant of the right "to engage in other concerted
activities *** for the purpose[] of *** other mutual aid or
protection." 5 ILCS 315/6(a) (West 1992). Ehlers argues that the
Illinois State Labor Relations Board (the Labor Relations Board)
has construed this language to provide employees like Ehlers with
"the right to refuse to submit to an investigatory interview
without union representation where the employee reasonably fears
that the interview might result in discipline." State of Illinois
(Departments of Central Management Services and Corrections) and
Gerald Morgan, 1 Pub. Employee Rep. (Ill. Ed.) 2020 (1985). The
sheriff argues vehemently that the Morgan case does not apply, but
even if it does, it is not binding upon this court, and we should
reject it as contrary to Illinois law. The sheriff's arguments are
without merit.
The right referred to in the Morgan case is known as the
"Weingarten right," in reference to the United States Supreme Court
case, National Labor Relations Board v. J. Weingarten, Inc., 420
U.S. 251, 43 L. Ed. 2d 171, 95 S. Ct. 959 (1975). In the Morgan
case, the Labor Relations Board determined that section 6
guarantees employees covered under the Illinois Public Labor
Relations Act (Illinois Act) the same rights enjoyed by private
employees under section 7 of the National Labor Relations Act
(National Act) (29 U.S.C.A. 157 (West 1973)) and discussed in
Weingarten. The sheriff argues that Weingarten and the provisions
of the National Act are inapplicable to this case, since the
National Act applies only to private employees, whereas the
Illinois Act applies only to public-sector employees.
The distinction between private employees covered under the
National Act and public employees covered under the Illinois Act is
not controlling. Section 6 of the Illinois Act mirrors section 7
of the National Act. Section 7 of the National Act provides that
employees covered under that act "shall have the right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection ***."
(Emphasis added.) 29 U.S.C.A. 157 (West 1973). "The [Illinois
Act] was passed based on the [National Act] and, thus, where
similar in language, can be interpreted in conformity with Federal
decisions." County of Kane v. Illinois State Labor Relations
Board, 165 Ill. App. 3d 614, 620 (1988).
The sheriff is correct that Federal labor law decisions such
as Weingarten are not binding on Illinois courts interpreting
Illinois statutes, but Federal court decisions and National Labor
Relations Board decisions are often illuminating. County of Cook
v. Illinois Local Labor Relations Board, 266 Ill. App. 3d 53, 58
(1994). The same is true for the Morgan case, which was not
appealed to the appellate court, and so is not binding upon this
court or the trial court, but which is illuminating and persuasive
nonetheless.
In the Morgan case, a correctional officer, Gerald Morgan,
refused to answer, without a union representative present, an
investigator's questions about an incident involving Morgan and two
other officers. After the interview was terminated, Morgan was
discharged from his job, in part, for his refusal to cooperate with
the investigation. The Labor Relations Board found that Morgan had
the right to refuse to submit to the interview, and the Board based
its decision upon the Supreme Court's decision in Weingarten. We
find the following excerpt from the Labor Relations Board's
decision in Morgan persuasive:
"[T]he Weingarten right[] arises because the employee, in
seeking the assistance of his union representative, seeks
`mutual aid or protection' against a perceived threat to his
employment security. The union representative is therefore
present to safeguard not only the individual employee's
interest, but also the interests of all members of the
bargaining unit, by ensuring that the employer does not
initiate or continue a practice of unjustly imposing
punishment. We find that the right arises only where the
employee specifically makes such a request, and the
representative's role is limited to assisting the employee,
clarifying the rights and suggesting other employees who may
have knowledge of the facts.
We also conclude that the Employer is not obligated to
automatically provide union representation upon request. The
employer may deny the request, discontinue the interview and
proceed to obtain information from other sources. *** [I]f
the employee requests representation and the request is
denied, the employer cannot continue the interview without
violating the [Illinois Act]. If it disciplines the employee
for refusing to continue in the absence of representation the
employer is, in effect, retaliating against the employee
because he has engaged in protected concerted activity, and
such conduct is clearly violative of section 10(a)(1) [of the
Illinois Act (5 ILCS 315/10(a)(1) (West 1992))]." (Emphasis
in original.) Morgan, 1 Pub. Employee Rep. (Ill. Ed.) 2020,
at VIII-120 (1985).
We find that the procedure and rationale expressed above is
supported by Weingarten and the cases following it, such as
National Labor Relations Board v. Illinois Bell Telephone Co., 674
F.2d 618 (1982). Therefore, we hold that the Merit Commission
acted arbitrarily and unreasonably in deciding to discharge Ehlers
for requesting union representation at the meeting with Sheriff
Kilquist.
Sheriff Kilquist did not present any evidence to indicate that
Ehlers' chosen union representative had compelling duties elsewhere
such that his attendance at the interview would have endangered the
operation of the jail. Nor did the sheriff terminate the interview
and collect information concerning Ehlers' activities through other
means, even though, at the hearing before the Merit Commission, he
presented a substantial amount of evidence about Ehlers' activities
from sources other than Ehlers.
The Merit Commission found that the sheriff's first two
charges of misconduct were unfounded by the evidence. The third
charge, which the Merit Commission sustained, alleged only that
Ehlers refused to talk to the sheriff outside the presence of the
union representative. The Merit Commission did not make any
finding about the reasonableness of Ehlers' fear that the interview
might end in discipline against her, so we are not overturning any
factual findings of the Merit Commission by finding that Ehlers'
fear in this regard was reasonable under the circumstances. Those
circumstances include the fact that Jacquot told Ehlers before
December 26, 1994, that she was spending too much time outside the
jail on cigarette breaks and that the request for the reports from
Ehlers was unusual and unexplained. Under these circumstances, we
find that the Merit Commission should not have discharged or
disciplined Ehlers for asserting her right to union representation
at the January 5, 1995, meeting with Sheriff Kilquist.
The sheriff also argues that the Uniform Peace Officers'
Disciplinary Act (50 ILCS 725/1 et seq. (West 1992)) (the
Disciplinary Act) applies to this case. According to the sheriff's
argument, under the Disciplinary Act, Ehlers was not entitled to
have union representation, because union representation is allowed
only for formal interrogations, not for informal inquiries such as
the one initiated by the sheriff on January 5, 1995. We agree that
Ehlers is covered by the terms of the Disciplinary Act but disagree
that it deprives Ehlers of her right to union representation under
the facts of this case.
The Disciplinary Act defines an informal inquiry as "a meeting
by supervisory or command personnel with an officer upon whom an
allegation of misconduct has come to the attention of such
supervisory or command personnel, the purpose of which meeting is
to *** discuss the facts to determine whether a formal
investigation should be commenced." 50 ILCS 725/2(b) (West 1992).
A formal investigation is "the process of investigation ordered by
a commanding officer during which the questioning of an officer is
intended to gather evidence of misconduct which may be the basis
for filing charges seeking his or her removal, discharge or
suspension in excess of three days." 50 ILCS 725/2(c) (West
1992). Under section 3.9 of the Disciplinary Act, the officer who
is the subject of a formal investigation has a right to have an
attorney present, and if "a collective bargaining agreement
requires the presence of a representative of the collective
bargaining unit during investigations, such representative shall be
present during the interrogation, unless this requirement is waived
by the officer being interrogated." (Emphasis added.) 50 ILCS
725/3.9 (West 1992).
The sheriff argues that when he asked Ehlers to talk to him,
this was only an informal interview, not a formal interrogation.
The sheriff testified that when he asked Ehlers to talk to him, he
had no intention of firing or disciplining her but wanted only to
find out what happened on December 26, 1994. The sheriff claims
that since the interview was not a formal interrogation under the
statutory definition, Ehlers was not entitled to union
representation and her refusal to talk to him was insubordination
serious enough to warrant discharge. We agree that under the terms
of the Disciplinary Act, the interview Sheriff Kilquist requested
was more in the nature of an informal inquiry than a formal
investigation under the statutory definitions. However, we
disagree that Ehlers had no right to union representation, even at
this informal interview.
Under the terms of section 3.9 of the Disciplinary Act, a
covered officer is guaranteed union representation at a formal
interrogation, if the applicable collective bargaining agreement
provides for it and the officer does not waive the right. In
contrast, under Weingarten as construed in Morgan, a union employee
has a right to request union representation if the employee
reasonably believes that discipline may result from the interview.
The standard announced in Weingarten and adopted in Morgan is
different from and in addition to the guaranteed right of union
representation set forth in section 3.9 of the Disciplinary Act.
The Disciplinary Act does not subtract Ehlers' Weingarten right to
union representation upon request in an informal inquiry but merely
adds an additional guarantee of union representation in formal
investigations. See Weingarten, 420 U.S. at 267, 43 L. Ed. 2d at
184, 95 S. Ct. at 968-69.
CONCLUSION
For all of the reasons stated, we reverse the circuit court's
affirmance of the Merit Commission's decision discharging Ehlers
for cause. The only basis for Ehlers' discharge was that she
asserted her right to union representation, a right which we find
protected under the circumstances of this case. Therefore,
pursuant to Supreme Court Rule 366(a)(5) (155 Ill. 2d R. 355(a)(5))
we order that Ehlers be restored to her former employment status,
with the same benefits she would have had if she had not been
discharged by the Merit Commission, as of the effective date of her
discharge, and we remand for further proceedings consistent with
this opinion.
Reversed and remanded.
CHAPMAN, J., and GOLDENHERSH, J., concur.
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