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Burke v. Civil Service Commission

JUNE 4, 1963.

CHARLES ESTEL BURKE, PLAINTIFF-APPELLANT

v.

CIVIL SERVICE COMMISSION, STATE OF ILLINOIS, JOHN J. MCCARTY, HENRY TENNEY AND LIONEL G. THORSNESS, COMMISSIONERS OF THE CIVIL SERVICE COMMISSION, STATE OF ILLINOIS, DEPARTMENT OF PUBLIC SAFETY, STATE OF ILLINOIS, AND JOSEPH E. RAGEN, DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY, STATE OF ILLINOIS, DEPARTMENT OF PERSONNEL, STATE OF ILLINOIS, AND MAUDE MYERS, DIRECTOR OF THE DEPARTMENT OF PERSONNEL, STATE OF ILLINOIS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Sangamon County; the Hon. DeWITT S. CROW, Judge, presiding. Reversed.

ROETH, JUSTICE.

This appeal is taken from a judgment of the Circuit Court of Sangamon County affirming the decision of the Civil Service Commission of the State of Illinois discharging plaintiff from his job as Prison Agricultural Foreman IV at the Illinois State Penitentiary, Pontiac branch, Pontiac, Illinois. The case was before the Circuit Court on administrative review.

Plaintiff was employed as farm manager at the Pontiac Penitentiary and certified under the Personnel Code. On February 28, 1961, the Director of the Department of Public Safety filed charges with the Department of Personnel. The charges were approved and plaintiff's discharge ordered on March 7, 1961. The charges were:

"(1) Officer Burke refuses to comply with an Order issued by Officer Lexaus C. Jones to have a bar screen in a sewer cleaned out. As a result, water in the sewer backed up into the institution and an overflow passed into the sewer. A complaint was made by the Mayor of Pontiac to the Warden.

(2) Failure to comply with an Order of Assistant Warden Haskel D. Alvey to remove rubbish and junk around Tower No. 5 and Tower No. 2.

(3) Maintained one mare and a colt on the State property at State expense."

Plaintiff properly requested a hearing which was subsequently conducted and resulted in a favorable decision for plaintiff insofar as the first and third charges were concerned. The Civil Service Commission, however, found that the plaintiff failed to comply with an order of the assistant warden of the prison, charge 2 above, and ordered his discharge and removal from his position.

The only question here for determination is the propriety of the ruling of the Circuit Court in affirming the discharge of plaintiff based upon charge 2.

While the question is not before the court we feel comment should be made on the fact that the record is completely devoid of any infractions of rules or orders with reference to the first and third charges. The very presence of these charges in this case casts a shadow of suspicion on the entire proceeding and warrants re-enunciation of the purpose of the Civil Service Act. In Hacker v. Myers, et al., 33 Ill. App.2d 322, 179 N.E.2d 404, the court said:

"The purpose of the Civil Service Act is to insure a competent civil service for governmental bodies, and in furtherance of that end employees are assured of tenure in their positions provided they meet certain qualifications. They cannot legally be discharged for political or capricious reasons, but neither can they claim the right to be continued in their positions if they are incompetent."

The Personnel Code itself provides that no employee under the jurisdiction of the Code shall be removed or discharged "except for cause." It is the court's opinion, shared most certainly by the legislature, that no employee shall be discharged for capricious or political reasons.

With this in mind we now consider the evidence relating to the alleged disobedience on the part of the plaintiff. A total of five witnesses testified with relation to charge 2. Four were called by the defendants and plaintiff testified on his own behalf. The defendants called Haskel Alvey, the assistant warden, Lexaus Jones, chief engineer, Daniel Clutts, a penitentiary employee who was under plaintiff's supervision, and Milford Schlosser, formerly a gardener under plaintiff's supervision and now acting superintendent, having taken over plaintiff's former position.

Alvey testified that two days after he took over as assistant warden he attended a staff meeting with the warden and among other people present were Jones and the plaintiff. This was on January 19, 1961, and the meeting can best be described as a policy meeting. He testified that at that time he told plaintiff, "the housekeeping conditions on the honor farm were very poor, and that the farm machinery was scattered all around and piled up near junk and trash located near Tower 2 outside the wall, scattered all over the grounds and there was garbage at the base of Tower 5, paper boxes and everything blown over the wall, and in this meeting I directed him to get this cleaned up." He testified that he noted the condition described remained the same when he rode around the honor farm with the warden the following evening and two or three days later he visited the farm, took plaintiff in his car and drove out to the area. On the ride he ordered the plaintiff to clean up the area. He testified that plaintiff agreed with him on the unsightliness of the area and plaintiff suggested a place on the farm away from the view of the public where the trash and junk could be placed.

Alvey further testified that the junk was not cleaned away until about the 1st of March when Schlosser cleaned it up. He also testified that he talked the matter over with plaintiff some time between the middle and last part of February. From the record it appears that this latter meeting took place after plaintiff had been asked to resign and had been relieved of his duties. Schlosser's testimony was that he took over as acting farm superintendent on February 9, 1961. Defendant introduced photographs of ...


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