APPEAL from the Circuit Court of Sangamon County; the Hon.
SIMON L. FRIEDMAN, Judge, presiding.
MR. JUSTICE HUNT DELIVERED THE OPINION OF THE COURT:
This case comes on appeal from a circuit court decision reversing a decision of the Illinois Civil Service Commission (hereinafter Commission). The issue on appeal is whether the decision of the Commission was against the manifest weight of the evidence.
Billie Hargett was employed as a lieutenant at Menard Penitentiary. On January 24, 1975, Hargett was discharged. Five charges were made against him and a hearing was held. The hearing officer made extensive findings and found Hargett guilty only of charge 4; he recommended a 10-day suspension. On August 20, 1975, the Commission entered an order adopting the findings of the hearing officer. The Commission held that all five charges had been proved and affirmed the discharge. Hargett filed a complaint for administrative review in Sangamon County Circuit Court on September 19, 1975. The trial court reversed the Commission as to charges 1, 2, 3, and 5 as against the manifest weight of the evidence. The court found sufficient evidence to sustain charge 4, but held that the action of the Commission was arbitrary and reversed on charge 4 as well.
• 1 In reviewing actions of administrative agencies, a reviewing court may not reweigh the evidence or make an independent determination of fact. The findings of the agency may be set aside only if they are against the manifest weight of the evidence. Harrison v. Civil Service Com. (1953), 1 Ill.2d 137, 115 N.E.2d 521; Colaw v. University Civil Service Merit Board (1975), 37 Ill. App.3d 857, 341 N.E.2d 719.
Charge 1 accused Hargett of making racially derogatory remarks to or in front of black residents at Menard. Sergeant Marlen Happell testified that he heard Hargett direct a racial epithet toward an inmate named Claygett. Hargett denied that he made the remark. Further evidence seriously impeached Happell's testimony and revealed that Happell disliked Hargett.
Charge 1 also included evidence that on one occasion Hargett allegedly uttered a racial slur concerning an inmate who was maced. No evidence was presented at the hearing that Hargett made the statement. We find the decision of the Commission was against the manifest weight of the evidence as to charge 1.
Charge 3 accused Hargett of discriminatory activities in that he allowed white, but not black, inmates to wear contraband clothing; that he wrote a disproportionate amount of disciplinary tickets on black inmates; and that he harassed certain black inmates by writing a disproportionate number of disciplinary tickets on them.
All testimony relating to charge 3 indicated that Hargett strictly enforced the clothing regulations on all inmates, regardless of their race. No evidence on the number of tickets written by Hargett on either black or white inmates was presented.
The evidence relating to harassment involves two inmates named Reed and Patterson. On occasion, Patterson would obtain a pass to go from the cellhouse to see a counselor. The evidence indicates that Hargett simply followed Patterson, who was en route to the counselor's office. Clearly it is a guard's basic duty to watch inmates. Nothing in the record points to any harassment of Patterson.
There is a rule at Menard that requires all inmates to attend all meals except on weekends and holidays. Sergeant Happell had been instructed by Hargett to comply with this rule, but Happell permitted inmate Reed to miss breakfast so Reed could help Happell clean up the cellhouse. When Hargett found Reed away from breakfast call, he began to issue a disciplinary ticket on him, but did not do so when he found out that Happell was responsible for the incident. This certainly does not constitute harassment. All Hargett was doing was enforcing the prison rules. The Commission's decision on count 3 was against the manifest weight of the evidence.
Charge 5 accused Hargett of membership in a "white extremist organization." There is no evidence whatsoever in the record to sustain charge 5, and defendants' brief does not argue the matter. The Commission's finding on count 5 was against the manifest weight of the evidence.
Charge 2 alleged that, in December of 1973, Hargett carried a knife inside Menard in violation of Regulation 400. Regulation 400 was amended on May 15, 1974, to include the following:
"No weapon of any kind shall be carried by officers in the normal operation of ...