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Hardaway v. Civil Service Commission





APPEAL from the Circuit Court of Sangamon County; the Hon. SIMON L. FRIEDMAN, Judge, presiding.


This is an appeal from the Circuit Court of the Seventh Judicial Circuit of Illinois (Sangamon County) brought pursuant to the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.). The trial court had affirmed the discharge of plaintiff Olamae Hardaway, by defendant Civil Service Commission, from her position as mental health supervisor at the Kankakee State Hospital.

Plaintiff contends that her right to a timely hearing was violated, that the grounds for her dismissal were insufficient, and that the Commission erroneously admitted evidence of a prior rule infraction.

On February 22, 1975, plaintiff was assigned to work on the night shift as a mental health supervisor in Ward 100A of the Kankakee State Hospital. The duties of a night shift supervisor include writing the daily ward report, making rounds to ascertain that everything is satisfactory with the patients, registering by periodically phoning the operator to report the existing conditions, and arranging for the employees to awaken the patients.

With her supervisor's permission, plaintiff reported late for work on February 22 at approximately 3 a.m. Plaintiff, thereupon, fell asleep and remained asleep from approximately 3:30 to 5:30 a.m.

On March 28, 1975, defendant, Department of Mental Health and Developmental Disabilities, sent notice of charges to plaintiff, informing her that she had been discharged for the incident of February 22, 1975, specifically, inter alia, for sleeping on duty and for neglect of duty. On April 2, 1975, plaintiff requested a hearing before the defendant Commission. A 1-hour 45-minute hearing was held on the afternoon of May 1, 1975. The proceedings were continued to and concluded on May 22, 1975. The Commission determined that plaintiff was properly discharged for cause based on its findings of guilt of sleeping on duty and neglect of duty.

Plaintiff first contends that, pursuant to section 11 of the Personnel Code (Ill. Rev. Stat. 1975, ch. 127, par. 63b111), the proceeding for discharge should have been dismissed for failure of the Commission to hold a hearing within 30 days from plaintiff's request.

Section 11 provides in pertinent part:

"Upon the filing of such a request for a hearing, the Commission shall grant a hearing within 30 days. The time and place of the hearing shall be fixed by the Commission, and due notice thereof given the appointing officer and the employee. The hearing shall be public, and the officer or employee is entitled to call witnesses in his own defense and to have the aid of counsel. The finding and decision of the Commission, or the approval by the Commission of the finding and decision of the officer or board appointed by it to conduct such investigation, shall be rendered within 60 days after the receipt of the transcript of the proceedings." Ill. Rev. Stat. 1975, ch. 127, par. 63b111.

Plaintiff, citing McReynolds v. Civil Service Com. (1974), 18 Ill. App.3d 1062, 311 N.E.2d 308, and Jackson v. Civil Service Com. (1976), 41 Ill. App.3d 87, 353 N.E.2d 331, contends that section 11 gave her the right to have more than a perfunctory commencement of a hearing within 30 days and that the Commission lost jurisdiction over the case by not conducting a timely hearing.

In McReynolds, the First District Appellate Court determined that the Commission lost jurisdiction to review the discharge of a State employee where the hearing was scheduled and held by the Commission more than 30 days after the employee's request for it. In Jackson, the same result was reached where, although the Commission had initially scheduled a hearing within the statutory 30-day period, the Commission had on two occasions unilaterally rescheduled the entire proceeding with no prior notice to the employee to dates beyond the 30-day period and the hearing did not convene within 30 days of the employee's request. Both McReynolds and Jackson held that the 30-day limit was a mandatory, not a directory, provision.

• 1 The holding of McReynolds and Jackson are inapposite here. Unlike their factual situations, in the instant case, the May 1, 1975, hearing was held within 30 days of plaintiff's written notice. After hearing witnesses from 2:30 to 4:15 p.m., and with both sides having more witnesses to call, the hearing officer directed that the hearing be continued. This was no subterfuge beginning but a bona fide hearing on the merits. Our supreme court has recognized that a need for continuances may arise in practice before the Commission. (See Lindeen v. Illinois State Police Merit Board (1962), 25 Ill.2d 349, 185 N.E.2d 206.) The mandate of section 11 is that a hearing must be granted, scheduled and started within 30 days of the written notice. (Horan v. Foley (1963), 39 Ill. App.2d 458, 188 N.E.2d 877.) It does not state that the hearing must be completed within that time. Such a conclusion would permit the person charged to offer evidence for a length of time so to extend the hearing beyond the 30 days and thereby nullify the entire proceeding. If the delay or continuance is not for good cause or is unreasonable, the circuit court can so find. If, however, the delay or continuance is for good cause and reasonable, the Commission would retain jurisdiction. (See Kahn v. Civil Service Com. (1976), 40 Ill. App.3d 615, 352 N.E.2d 231.) Consequently, in light of the facts and circumstances of the instant case, the Commission retained jurisdiction over the cause.

Plaintiff next contends that the findings that she was asleep while on duty and neglected her duty do not warrant or support her discharge.

Grounds for discharge of those employees who hold appointments in the State service on the basis of merit and fitness (Ill. Rev. Stat. 1975, ch. 127, par. 63b104a) are provided for in ...

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