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People Ex Rel. Polen v. Hoehler





APPEAL from the Superior Court of Cook County; the Hon. JOSEPH A. GRABER, Judge, presiding.


Rehearing denied March 20, 1950.

On September 2, 1947, the petitioner, Betty E. Polen, filed her petition for writ of mandamus in the superior court of Cook County in the name of the People against Cassius Poust, Director of the Department of Public Welfare, et al., requiring that she be reinstated and reassigned as an institutional worker at the Illinois Soldiers' and Sailors' Children's School at Normal, Illinois, and for an order that she be paid her regular salary for the period she was illegally prevented from performing her duties. The defendants are the Director of the Department of Public Welfare, the Superintendent of the Illinois Soldiers' and Sailors' Children's School at Normal, the members of the Illinois State Civil Service Commission, the Auditor of Public Accounts and the Treasurer of the State of Illinois. Since the commencement of the suit Fred K. Hoehler, the present Director of the Department of Public Welfare, has been made a party, as a successor to Cassius Poust, the Director at the time the suit was started, as likewise have various of the State officers, the substitution having been brought about by the change in the administration.

The defendants answered the petition for mandamus, denying the allegations in part, but principally relying upon a rule adopted by the Civil Service Commission as justification for the discharge of petitioner. After a hearing before the court a writ of mandamus was issued on July 8, 1949, ordering that the petitioner be reinstated in her position, and reassigned to duty, and that she be paid her regular salary from July 1, 1947. The defendants appeal directly to this court because the People are a party to the litigation.

The errors assigned are: (1) That the trial court erred in holding the discharge of the petitioner was not authorized under a rule of the Civil Service Commission, and (2) that the court improperly ordered the petitioner's salary to be paid from July 1, 1947, because the biennial appropriation for 1947 expired September 30, 1949.

Betty Polen was a worker at the above-named institution, having successfully passed the civil service examinations, and was receiving a salary of $145 per month. On May 19, 1947, she was requested to attend her sister in Oklahoma because of illness, and also to attend the commencement exercises in which one of her nephews was participating as a graduate. The petitioner attempted to call the superintendent of the institution, and also her immediate superior, but was unable to get in touch with either of them because they were absent, and she then called a Mr. Minton, requesting that he inform Miss Hallam, the supervisor, that she had five days coming to her on her vacation allowance, and that she would be back on the Monday following. Minton said he would deliver the message, and she went on her trip. She had sent similar messages by the same person, which had been accepted, and she had been excused and her absence charged against her sick leave or her vacation time. She reported back to work on May 26, and was told by the superintendent that she had been "fired" because she had not notified her supervisor of her intended absence, as she was required to do by the rule.

The rule under which she was discharged is as follows: "Absence Without Permission Deemed Resignation — An employee absent from duty without leave for a period of three successive days or longer, without proper written notice to and approval by his superior officer of the reason for such absence, shall be considered to have resigned."

Application was made by the petitioner to the commission for a hearing, which was denied because it was considered petitioner had resigned by reason of said rule. A petition for rehearing was made to the Director of the Department of Public Welfare in order to afford her an opportunity to show the discharge was illegal and improper, but this was also denied. It is not claimed that the petitioner ever had a hearing of any kind. She was not able to obtain a hearing, and no notice of any kind was given to her prior to the notice she received upon returning to work advising her that she had been discharged, and no charges of any character were made against her. The sole justification for the discharge is that her absence for more than three days, under the above rule, amounted to an automatic discharge.

The Civil Service Commission is a statutory body, and its powers and duties are regulated by statute. (Ill. Rev. Stat. 1947, chap. 24 1/2, pars. 1 to 37.) The material parts of section 12, (par. 14,) entitled "Removals, etc. — Hearing — Review," are as follows:

"Any appointing authority may remove, discharge or demote any officer or employee in the classified civil service of the State for just cause. The term `just cause' as herein used means any cause which is detrimental to the public service.

"An appointing authority in making a removal, discharge or demotion shall set forth the cause therefor in writing, which shall be signed by him and made in duplicate upon forms furnished by the Civil Service Commission. One copy of such statement shall forthwith be personally delivered to the employee or sent by registered mail, postage prepaid, to his last known address and the other copy filed in the office of the Commission with a notation thereon showing the method, time and place of service of the statement upon the employee.

"Any employee who has been so removed, discharged or demoted may file with the Commission, within ten days after the filing of the statement of the reasons for his removal, discharge or demotion, a statement in writing alleging that his removal, discharge or demotion was without just cause and that he believes upon a hearing he will be able to establish such a fact. Upon the filing of such an instrument, the commission shall grant a hearing within sixty (60) days. The time and place of the hearing shall be fixed by the Commission and due notice thereof given the appointing officer and the employee. The hearing shall be conducted by the Civil Service Commission or by some officer or board appointed by it. For the purpose of such hearing each member of the Civil Service Commission or board or officer appointed by the Commission may administer oaths and secure by subpoena both the testimony of witnesses and the production of books and papers which are deemed relevant to such investigation."

Inspection discloses that the statutory provisions require that any employee in the classified civil service of the State (1) may be discharged for just cause; (2) that the appointing authority making removal, discharge or demotion shall set forth the cause in writing; (3) that one copy shall forthwith be delivered to the employee, or sent by registered mail to his last known address; (4) that any employee who has been discharged, after the filing of a statement of the reason of his removal, may file a statement with the commission stating that he is discharged, removed or demoted without just cause; and (5) that a hearing must be had upon such application within sixty days.

It has been repeatedly held that the State Civil Service Commission exercises purely statutory powers, and must find within the statute its warrant for the exercise of any authority which it claims. (People ex rel. Baird v. Stevenson, 270 Ill. 569; People ex rel. Mosby v. Stevenson, 272 Ill. 215.) No case is cited by appellant to the contrary. In 272 Ill. 215, the court among other things said: "Under the Civil Service act there are but two ways by which the commission may obtain jurisdiction of the question whether an employee should be discharged, one being an investigation upon its own motion and the other upon charges filed with the commission. The commission, alone, may discharge an employee under the classified civil service, and then only for cause, upon written charges and after an opportunity to be heard in his own defense is given the party." The statute also expressly provides, as observed ...

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