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Lavin v. Civil Service Com.

APRIL 2, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.


This action was brought under the Administrative Review Act *fn1 to review an order of the Civil Service Commission approving the discharge of plaintiff as a safety inspector for the Division of Safety Inspection & Education, Department of Labor (hereafter the Department). The Circuit Court of Cook County reversed the order of the Commission, and defendants have taken this appeal. The issues presented for review are: (1) whether plaintiff received a fair hearing before the Commission; (2) whether the finding of the Commission, that plaintiff failed to leave inspection forms at five Chicago factories and thereby violated Department procedures, was against the manifest weight of the evidence; and (3) whether the trial judge reversed the order of the Commission without affording defendants an opportunity to be heard in argument.

On April 8, 1971, the Department initiated a discharge proceeding against plaintiff, charging him with failure to comply with the procedure of the Department by not submitting his inspection forms to the individual companies after his inspections, and with falsifying his reports concerning those inspections. Violations with regard to inspections at 10 companies were listed, and the last charge stated that plaintiff had been suspended for 29 days in August of 1967 for the same reasons.

At the hearing on June 10, 1971, the Department amended the charges by striking violations concerning four of the companies, and the hearing officer, on plaintiff's motion, struck the charge relating to the 1967 suspension, but granted the Department leave to introduce into evidence the record of the suspension as a consideration regarding the action that would be taken in the event plaintiff was found guilty of the charges. Plaintiff agreed to the foregoing.

The Department then immediately called plaintiff as an adverse witness. Plaintiff's counsel objected on the grounds that the Commission had not authorized the implementation of a rule similar to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 60), and that plaintiff had a right not to testify against himself. The hearing officer reserved his ruling on the objections raised and required plaintiff to testify. Plaintiff then testified that the last time he visited any of the plants named in the charges for the purpose of inspection was at least a month before the hearing. Counsel for defendants, an assistant Attorney General, was sworn in as a rebuttal witness over plaintiff's objection, and testified that he saw plaintiff at Acme Frozen Food Co., one of the plants mentioned in the charges, the day before the hearing.

Walter Kiltz, the chief state factory inspector, testified that he is plaintiff's supervisor. He stated that the duties of a factory inspector are to go into factories, make inspections and note any violations of the Health & Safety Act. The general procedure is for the inspector to contact a person at the plant, have that person or someone else accompany him during the inspection, discuss the violations noted on the inspection form, and ask for compliance before the violation form is signed. The inspector should then leave the original violation form at the factory and forward two copies to the Department. There is no written rule or regulation requiring the signatures of persons from the factories, but the obtaining of such signatures has been a policy and practice of the Department, and inspectors are informed that the violation form should be so signed. This general procedure was discussed at a monthly meeting of all inspectors, and plaintiff was present at the meeting. Kiltz also testified that plaintiff had been suspended for 29 days in 1967 for failing to submit violation forms to the factories inspected, and for falsifying his reports to the Department. A record of this disciplinary action, and copies of violation forms for the six companies mentioned in the current charges were introduced into evidence.

Evidence was presented as to the charges concerning each of the six companies. Plaintiff then testified as to his visit to each company. For the purpose of clarity, we will recite the evidence as to each charge. Testimony regarding falsification will be omitted since the hearing officer found plaintiff not guilty of falsification, and this finding is not before us for review. In addition, the hearing officer found that the charge with regard to one of the companies, Acme Frozen Food Co., was not supported by the evidence.

Henry Traum of Traum's Auto Body Shop & Repairs testified that he recognized his signature on a copy of a violation form. He stated that plaintiff was at his shop on February 23, 1971, but that he did not accompany plaintiff on the inspection, and that he signed a blank violation form before any violations were noted. Plaintiff did not leave the violation form with him, and he did not have a copy at his office. He employed only two full-time employees and one part-time employee other than himself. He did not think to look for the violation form after plaintiff departed and did not see it.

Plaintiff testified that following his inspection he placed the form on Traum's desk in Traum's office. The factory is small, and the office was located only 35 to 50 feet from where Traum was standing at that time. Plaintiff waved to Traum who was about 35 to 50 feet away and advised him that he was leaving the form on his desk and then departed.

Vincent Cherry, superintendent of Vischer Products, identified his signature on the violation form shown to him. He testified that he accompanied plaintiff on the inspection tour of the factory on March 5, 1971, and, when the inspection was completed, he signed the violation form. He accompanied plaintiff to the office and then reentered the plant. Plaintiff did not leave the form with him; but he did not look around the office to see whether the form was left there. To his knowledge, he never saw a violation form in the office.

Plaintiff testified that Cherry signed a blank form and accompanied him for part of the inspection, and then was called away. The company was moving equipment, and the factory was in disarray at the time of the inspection. He completed the form while at the plant, and left it on the left hand ledge of a work bench located near the entrance of the factory.

John Hahn, owner of the Usako Motor Service Co., testified that his signature appears on the factory inspection form shown to him, and that he recognized plaintiff as the person who inspected his plant on February 23, 1971. He accompanied plaintiff through his plant, and signed the violation form. The form was not left with him at the time of the inspection. However, on June 6, 1971, someone put a copy of the form on his desk. Hahn testified that he was sure the form was not put on his desk before June 6. On cross-examination Hahn testified that he rented one-half of the building space to a transmission repair company; he employed three other workers; and he was busy with customers at the time of the inspection.

Plaintiff testified that the factory was "messy" when he made his inspection, and that he did not know that two different companies did business there. He began the inspection with Hahn, but before it was completed, Hahn got in a car and drove away. The plant had two offices with two desks in each office and the offices were very "messy." Plaintiff completed the violation form and left it with an elderly Japanese person.

Alex Wolf, general manager of the building in which Hertzberg & Sons was located, identified his signature on the inspection form. On February 24, 1971, he and plaintiff began the inspection, and, approximately halfway through the tour, plaintiff asked Wolf to sign the form. Plaintiff told him that he would either leave the sheet in the office or mail it to him. Wolf never received the violation form. Wolf testified that other men from the Department of Labor had inspected his premises, and that the usual procedure was that the inspectors would complete the form and leave it or mail it to him.

Plaintiff testified that Wolf signed the form before they began the inspection. Wolf remained with him throughout the inspection, but left before plaintiff completed the form. Plaintiff then left it with a receptionist in the office, and told her he was leaving it for Wolf. There were three ...

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