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Nolting v. Civil Service Commission

SEPTEMBER 20, 1955.

WALTER G. NOLTING, APPELLEE,

v.

CIVIL SERVICE COMMISSION OF CITY OF CHICAGO, STEPHEN E. HURLEY, PRESIDENT, AND ALBERT W. WILLIAMS, MEMBER OF CIVIL SERVICE COMMISSION OF CITY OF CHICAGO, APPELLANTS.



Appeal from the Circuit Court of Cook county; the Hon. HARRY M. FISHER, Judge, presiding. Judgment reversed.

PER CURIAM.

Plaintiff, a patrolman in the Department of Police, brought this suit under the Administrative Review Act to review an order of the Civil Service Commission of the City of Chicago which had found him guilty of misconduct and ordered him discharged from his position. The trial court found that the Commission's decision was harsh and unwarranted and therefore (sic) contrary to the manifest weight of the evidence. Upon plaintiff's agreeing in open court to waive all back salary as a condition precedent, the court ordered his immediate reinstatement. We later consider and find this "agreement to waive salary" improper and irrelevant, but it should be noted that in his brief plaintiff says that not having been reinstated immediately and having been put to the expense of an appeal, he will make claim for all his back pay.

Defendants contend that the Commission's findings of fact were fully supported by the evidence; that the misconduct charged against plaintiff and supported by the evidence was of sufficient gravity to constitute cause for discharge; that the Commission has no power to suspend, but only the power to discharge; that where misconduct warrants a penalty other than discharge, the statute vests such disciplinary power in the appointing officer, not in the Commission. Plaintiff contends that under the Administrative Review Act the court has power to affirm or reverse a decision in whole or in part and that the order in question was in effect a reversal in part; that the ruling of the Commission was harsh and not warranted by the evidence; that the loss of back pay was sufficient punishment for a minor infraction of rules of the Police Department; that the Commission had the power to suspend and that the punishment of discharge was cruel, unusual and contrary to the Federal Constitution.

The Commission's findings of fact are fully supported by the evidence. Eleven witnesses testified in support of the charges. Plaintiff was the only witness in his own behalf. No complaint is made with respect to the fairness of the hearing. The charges were based on plaintiff's abandoning his beat without permission, getting his automobile and driving it while he was supposed to be on duty, striking a parked automobile and doing damage which cost $485 to repair, failing to ascertain the extent of the damages, to leave his name and address, to report the accident, or to respond to final roll call or to calls from his superior officers. When found, plaintiff gave two highly conflicting accounts of his escapade. He finally relied, as he does here, on what he says was a blackout induced by high blood pressure. From our examination of the abstract and testimony, the Commission was warranted in not giving credence to his testimony.

It is not necessary to examine the evidence further because the order of the court below was not based on a consideration of the evidence to determine whether the findings were against the manifest weight. The court simply felt that the punishment of discharge was too severe. In other words, what the court measured was not the evidence but the gravity of the charge against the severity of the punishment. Having decided that the punishment did not fit the offense, the court did not remand the case to the Commission but required plaintiff to waive his back salary and ordered his immediate reinstatement. This was the equivalent of suspension. In People ex rel. Kennedy v. Hurley, 348 Ill. App. 265 (petition for leave to appeal denied 414 Ill. 629) we held there was no legal basis for such an agreement and that the authority of an attorney to enter into it was questionable. Bergman v. Rhodes, 334 Ill. 137; Chicago & Vicinity Hungarian Benevolent Society v. Chicago & Suburb Hungarian Aid Society, 283 Ill. 99; Fessler v. Weiss, 348 Ill. App. 21. What the court did in the instant case was to substitute suspension for discharge in consideration of a waiver of claim for salary. That claim may be no claim at all because the right of plaintiff to recover was limited to the difference between what he earned during the period of his layoff and his back salary (Kelly v. Chicago Park District, 409 Ill. 91). On this the record is silent. There is no precedent and no statute which supports such a judgment.

The question then arises whether the cause should be remanded for further action. This depends on whether there was adequate cause for discharge, whether the Commission has the power to enter any order other than discharge, and whether, assuming the Commission has the power to suspend, the court has the power to review the judgment of the Commission with respect to the degree of punishment.

There are now pending in this Division similar cases involving five other policemen. Upon appeal, the court below in each instance, although entering different types of findings, ordered immediate reinstatement. In Foreman v. Civil Service Commission of Chicago, 7 Ill. App.2d 122, the court found that the findings of fact of the Commission were not contrary to the manifest weight of the evidence and put his order of reinstatement squarely on the proposition that discharge was too harsh. In Martin and Topinka v. Civil Service Commission of Chicago, 7 Ill. App.2d 128, a case involving two police officers charged with an offense having to do with money taken from a man charged with sexual offenses, the court held that the findings and decision of the Commission were not supported by the record and were against the manifest weight of the evidence, but before entering judgment stated that the penalty of discharge "is so severe that I would regard it as cruel punishment." The evidence supported the Commission's findings and the real basis for the court's decision was that the court considered the punishment too severe. In Watkins v. Civil Service Commission of Chicago, 7 Ill. App.2d 140, there was little controversy over the facts. The court simply disagreed with the Commission as to the duties and responsibilities of a policeman charged with permitting an accused person to escape. There is also pending the case of McCaffery v. Civil Service Board of Chicago Park District, 7 Ill. App.2d 164, in which a policeman was charged with accepting a bribe. The court first held that the case should be remanded because of the admission of hearsay evidence. Upon remandment a further hearing was had by the Board for the purpose of eliminating hearsay evidence and it again found the plaintiff guilty as charged. Upon review, the court below again reversed the order of the Civil Service Board and found that the charges against the plaintiff had not been proved by clear and convincing evidence.

It appears to us that these judgments were based on the erroneous assumption that courts have general jurisdiction over orders of the Civil Service Commission and that they may consider the severity of the punishment or matters in mitigation and may enter such orders as appear kind and merciful. These proceedings do not involve contests between litigants over civil rights but are, in effect, appeals from orders of public officials in the executive department to public officials in the judicial department. It is easy in such cases for courts to fall into the error of assuming their function to be charismatic and to take on the character of a supercommission or superchief of police. That there is a marked difference of understanding between the appellate courts and the original reviewing courts with respect to the limitations of review in this class of cases appears to be supported by information collected in an article published in the Northwestern University Law Review, Vol. 47, pp. 660, 673 (1952-1953), entitled "Civil Service Discharge Procedure in Illinois." It is therefore necessary that we review the limitations imposed upon courts in this type of litigation.

We will first consider whether the Civil Service Commission has the power to enter an order of suspension if the cause should be remanded to it. If the Commission has no power to suspend, the court cannot find that it was erroneous for it to fail to exercise that power, because the court's function is that of review. The Commission has such powers as are conferred by the Cities Civil Service Act, and no others. Section 4 of the Act provides that the Commission shall make rules to carry out the purposes of the Act, and for examinations, appointments and removals in accordance with its provisions. (Ch. 24 1/2, par. 42, sec. 4, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 23.043].) Section 12 of the Act recites that no employee in the classified civil service shall be removed or discharged except for cause, upon written charges and after an opportunity to be heard. It then provides:

"Nothing in this Act shall limit the power of any officer to suspend a subordinate for a reasonable period, not exceeding thirty days."

The legislative policy thus established is clear. Two types of punishment are provided for — suspension not exceeding thirty days to be administered by the appointing officer, and discharge to be inflicted only after charges have been filed and a hearing had before the Commission. Appointing officials and others are not permitted to impose longer periods of suspension. This is protection for employees as well as for the good of the service. If the offense deserves a penalty greater than suspension for thirty days, the penalty of discharge must be imposed.

A case not strictly analagous but strongly in point is People ex rel. Hurley v. Graber, 405 Ill. 331 (1950). There it was held that the power to remove did not include the power to demote. The court said (p. 343):

"The City Civil Service Act contains no provision granting power to the civil service commission to reconsider an appointment or to demote for cause after the employment or appointment is completed. . . . The city civil service commission exercises a limited or statutory jurisdiction, no presumption of jurisdiction obtains in ...


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