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Thornberry v. Civil Service Commission

JUNE 11, 1964.

FRED THORNBERRY, PLAINTIFF-APPELLEE,

v.

CIVIL SERVICE COMMISSION OF THE STATE OF ILLINOIS, AND THE DEPARTMENT OF FINANCIAL INSTITUTIONS OF THE STATE OF ILLINOIS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Brown County; the Hon. ROBERT S. HUNTER, Judge, presiding. Affirmed.

CROW, P.J.

The appellants appeal from the judgment of the Circuit Court of Brown County, which Court reversed a decision of the Civil Service Commission of the State of Illinois, discharging the plaintiff, Fred Thornberry, from the service of the Department of Financial Institutions of the State of Illinois. The Circuit Court judgment ordered plaintiff reinstated to his position, a certified employee under the Personnel Code, State of Illinois.

It is appellant's theory that the findings and decision of the Civil Service Commission discharging the plaintiff are amply supported by competent evidence, and should be affirmed.

On January 24, 1962, the Director of the Department of Financial Institutions instituted discharge proceedings against the plaintiff, Fred Thornberry, an Examiner II, based upon the following written charges:

"Travel vouchers and examination reports submitted are not in accord as to location and date of examination made. Days reported as making examinations show frequently only 3, 4, 5 and 5 1/2 hours worked, including travel time. Travel vouchers repeatedly show days spent at home to work on reports, which were not authorized by his supervisor. Other evidence indicates employee's travel time vouchers are incorrect and that he uses State's time for personal use."

The Civil Service Commission from the evidence taken before a Hearing Officer arrived at the following conclusions:

"The Respondent, Fred Thornberry, as charged herein, did utilize State time for personal use and to engage in personal endeavors and submitted incorrect travel vouchers (Petitioner's Exhibits, Nos 1 and 2) and is, therefore, guilty of failure to perform properly his duties as a Financial Institutions Examiner II.

"By reason of the finding of fact and guilt herein, cause exists for the discharge of Respondent, Fred Thornberry, from his position as Financial Institutions Examiner II and as an employee of Petitioner herein."

These conclusions were based on certain findings, Nos 15, 16, and 17, by the Commission and solely relied upon by the appellant to sustain the conclusions. These findings are as follows:

"15. John Frederick Moorman, a resident of Mt. Sterling, Illinois, was called as a witness on behalf of Petitioner, Department of Financial Institutions of the State of Illinois. He testified that on December 11, 1961, he saw Respondent emerge from his (Respondent's) home at Versailles, Illinois, at approximately 9:30 a.m. Respondent entered his automobile and after stopping at the post office and local diner, proceeded from Versailles to the Court House at Jacksonville, Illinois. The witness further testified that Respondent remained in Jacksonville, Illinois, approximately two and one-half to three hours, returning to Versailles about 1:30 or 2:00 p.m. on the aforesaid date. Respondent did not recall going to Jacksonville, Illinois on December 11, 1961. Travel vouchers submitted by Respondent to the Department of Financial Institutions relative to December 11, 1961, bear the notation `Ice on Roads. No Travel.' Witness Moorman further testified that on December 14, 1961, he again observed the activities of Respondent. On that date, Respondent proceeded from Versailles to the Court House at Pittsfield, Illinois, where he remained approximately thirty minutes. Respondent then returned to Versailles, arriving about 2:15 p.m. Respondent did not recall being in Pittsfield on December 14, 1961, but asserted that he did, on that date, go to Winchester and Jacksonville, Illinois. Travel vouchers submitted by Respondent to the Department of Financial Institutions, relative to December 14, 1961, show travel from Versailles to Winchester and Jacksonville.

"16. William McCartney, a resident of Pittsfield, Illinois was called as a witness on behalf of Petitioner, Department of Financial Institutions. Witness McCartney testified that on August 1, 1961, he held the position of Chairman of the Board of Review of Pike County, Illinois. On the aforesaid date, Mr. McCartney was present in the Pike County Court House; he testified that Respondent came into the Supervisor of Assessment's Office shortly after 10:00 o'clock a.m. and engaged him in conversation relative to the assessment of real estate owned by one Dennis. The land in question had no connection with any cemetery situated in Pike County. Respondent admits to being in Pittsfield on August 1, 1961, and appearing before the Board of Review on behalf of said Dennis, a personal friend of Respondent. Upon leaving Pittsfield, Respondent proceeded to Clayton, Illinois. As evidenced by that part of Petitioner's Exhibit No 2, which relates to the activities of Respondent on August 1, 1961, and by Respondent's testimony, the State of Illinois was charged for the meal in question on the aforesaid date despite the fact that Respondent's activities in Pittsfield, Illinois, on behalf of his friend, Dennis, were admittedly of a personal nature.

"17. On cross-examination, Respondent averred that mileage reported by him was true and correct, based upon speedometer readings. Examination of the mileage figures discloses no instance in which the number of reported miles does not end in either a five or a zero. Respondent testified that the mileage reported was sometimes an `understatement' but denies that such figures were ever `overstated.' He testified, in explanation, that `it was easier to add up those things with a zero and five, than it was in odd numbers.'"

Prior to the taking of testimony, the plaintiff, by his attorney, moved to strike the written charges and, particularly, the sentence that read "travel vouchers and examination reports submitted are not in accord as to locations and date of examination made," for the reason that it fails to specify with any degree of accuracy the charges that Thornberry is compelled to face and defend. The ruling was reserved by the Hearing Officer on this motion and the record does not show that it was ever affirmatively passed upon, although by implication it might be inferred that the hearing officer overruled this motion.

The plaintiff alleges in his complaint for review, filed in the Circuit Court of Brown County, that the defendant Civil Service Commission was heretofore created and was at the time herein mentioned and is presently operating by authority of the provisions of the "Personnel Code" of the State of Illinois (ch 127, §§ 63(b), 101 to 63(b) 118, Smith-Hurd Ill Rev Stats); that prior to the 1st day of July, 1958, plaintiff was employed by the office of the Auditor of Public Accounts as an Examiner in the Cemetery Care Division and that on or about said date the Cemetery Care Division aforesaid was transferred into and became a part of the Department of Financial Institutions, one of the defendants herein, pursuant to the laws of the State of Illinois and by such transfer the plaintiff became an employee of the Department of Financial Institutions; that plaintiff subsequently was certified pursuant to the provisions of the aforesaid Personnel Code as a Financial Institution Examiner I and as such became subject to the provisions of the Personnel Code. That since the date plaintiff was so certified as a Financial ...


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