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Parsons v. Civil Service Com.

OPINION FILED JUNE 29, 1977.

JOHN W. PARSONS, PLAINTIFF-APPELLEE,

v.

THE CIVIL SERVICE COMMISSION ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. PRESIDING JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

The portion of the Personnel Code (Ill. Rev. Stat. 1973, ch. 127, par. 63b111) considered in this appeal provides:

"No officer or employee under jurisdiction B, relating to merit and fitness, who has been appointed under the rules and after examination, shall be removed or discharged, demoted or suspended for a period of more than 30 days, except for cause, upon written charges approved by the Director of Personnel, and after an opportunity to be heard in his own defense if he makes written request to the Commission within 15 days after the serving of the written charges upon him. Upon the filing of such a request for a hearing, the Commission shall grant a hearing within 30 days." (Emphasis added.)

John W. Parsons, an employee of the Industrial Commission of this State, was notified that written charges of the Industrial Commission seeking Parsons' discharge had been approved by the State Director of Personnel. Within the 15-day period provided by the statute, Parsons made a written request to the Civil Service Commission (Commission) for a hearing upon the charges. The Commission set the hearing for November 16, 1973, within 30 days of the request for the hearing as specified in the statute. On November 2, 1973, Richard H. Schnadig, special assistant to the Director of the Department of Personnel, wrote to the executive secretary of the Commission on the letterhead of the Department of Personnel. A copy of this letter was sent to Parsons' attorney. It stated that Mr. Schnadig expected to be appointed a Special Attorney General to handle the case. On that assumption, he requested a continuance because of other commitments he had for the time the hearing was set.

By letter dated November 14, 1973, the Commission advised Parsons that pursuant to the request of the Industrial Commission the hearing was continued to January 3, 1974, a date which was more than 30 days after Parsons' request for a hearing. On December 6, 1973, Mr. Schnadig wrote another letter requesting a second postponement and the Commission then continued the matter to January 24, 1974, when the hearing commenced.

Parsons presented a motion to the Commission's hearing officer to dismiss the charges because of the Commission's failure to hold a hearing within 30 days of his request. This motion was denied by the hearing officer. His ruling was approved by the Commission, which concluded that sufficient grounds for Parsons' discharge had been established. Parsons filed a complaint for administrative review in the circuit court. The court held the Commission failed to grant Parsons a hearing within 30 days of his request and this deprived the Commission of jurisdiction of the matter. The Commission appeals that ruling.

Two issues are presented for review. The first is whether the statutory requirement that the Commission grant a hearing within 30 days of the employee's request is satisfied by scheduling a hearing within the 30-day period and then, on application of the State, postponing the commencement of the hearing beyond the 30-day period. The second issue is whether Parsons waived his objection to the failure of the Commission to hold a hearing within 30 days from his request.

For precedent we look to three cases recently decided by this court which interpret and apply the portion of the statute quoted above, which provides, "Upon the filing of such a request for hearing, the Commission shall grant a hearing within 30 days." (Emphasis added.) In all three cases no hearing was held within the 30-day period and the court held the charges against the employee should for that reason have been dismissed.

McReynolds v. Civil Service Com. (1974), 18 Ill. App.3d 1062, 311 N.E.2d 308, involved a hearing scheduled initially more than 30 days after the employee's request. This court held the 30-day provision was mandatory rather than directory and the requirement of the statute had not been satisfied. *fn1

The factual situation presented by this case — the scheduling of a hearing within 30 days followed by its postponement at the State's request so that no hearing was actually held within the 30-day period — was considered in two later cases, Jackson v. Civil Service Com. (1976), 41 Ill. App.3d 87, 353 N.E.2d 331 and Kahn v. Civil Service Com. (1976), 40 Ill. App.3d 615, 352 N.E.2d 231. In Jackson, the Commission scheduled a hearing for December 24, 1973, which was within 30 days of the receipt of the employee's request. After the employee was notified of the hearing to be held on December 24, the Governor declared that date a holiday for State employees, and the Commission then rescheduled the hearing to a date beyond the 30-day period. The court held that the Commission exceeded its authority in resetting the hearing for a date beyond the 30-day period, explaining that the phrase "shall grant a hearing" as used in the statute is not the equivalent of "shall schedule a hearing." The rationale of the Jackson decision was that the word "grant" required the Commission to provide a hearing within the period specified in the statute.

The Commission set a hearing in Kahn within the 30-day period. Then on application of the State Department which instituted the charges, the Commission continued the hearing to a date 62 days after the employee's request. The Kahn court construed "grant a hearing" as used in the statute to mean "hold a hearing." At the same time, relying on Horan v. Foley (1963), 39 Ill. App.2d 458, 188 N.E.2d 877, the Kahn court observed that for good cause shown, continuances may be granted which extend the hearing to a time beyond the 30-day period, but concluded good cause had not been shown.

In the case before us, the Commission emphasizes the observation in Kahn that continuances beyond the 30-day period could be granted for good cause; however, we do not interpret the statute to permit such a continuance even for good cause. We disagree for two reasons with the observation in the Kahn opinion on which the Commission relies to justify the continuance granted in this case. First, a continuance beyond the 30-day period is inconsistent with the Kahn court's own construction of the phrase "grant a hearing." Second, Horan, the Kahn court's authority for its observation, dealt with a different statute applicable to employees of a sanitary district. The words "grant a hearing" did not appear in the statute interpreted by the Horan court.

• 1 We adhere to the view expressed in Jackson that to permit a continuance beyond the 30-day period could circumvent one of the objectives of the statute which is to "`provide a timely hearing and a speedy adjudication of disciplinary charges.'" (41 Ill. App.3d 87, 93.) We agree with Jackson that the State could defeat that objective merely by scheduling a hearing for a date within the 30-day period and then continuing the matter indefinitely. As the court did in Jackson, we reject the suggestion that a continuance beyond the 30-day period might sometimes satisfy the statute. The conclusion we reach is that the statute governing the proceedings of the Commission requires that the hearing commence within the 30-day period. The Commission's action in postponing the hearing at the State's request beyond the 30-day limit did not satisfy the statutory requirement.

• 2 Even if, as Kahn suggests, the statute permits a continuance beyond the 30-day period for good cause provided a hearing is initially scheduled for a date within the 30-day period, the State has failed to show good cause for the postponement granted in this case. In choosing a special assistant to the Attorney General to present this case, the State designated an attorney who, even before he was officially assigned to this case, acknowledged that he would not be able to comply with the date the Commission had already set for the hearing because of his other commitments. Instead of selecting Mr. Schnadig to represent ...


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