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Burton v. Civil Service Com.





APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.


Plaintiff, Donald Burton, brought this action pursuant to the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.) seeking to review the order of the defendant, Illinois Civil Service Commission (Commission), dismissing him from employment with the defendant, Illinois Department of Revenue (Department). The circuit court reversed that order and reinstated plaintiff, and it is from that judgment that this appeal is taken. We affirm. The pertinent facts follow.

There is no dispute concerning the misconduct which lead to plaintiff's attempted discharge. Plaintiff is a Security Fraud Investigator II with the Department. On January 22, 1976, plaintiff was present in court where a continuance was granted in a matter involving the investigation of a taxpayer by the name of Michael Dix, who was charged with violating the withholding provisions of the Illinois tax law. The Dix matter was assigned to Investigator Archie McDonald, who was also present in court on January 22.

In the afternoon of that same day, plaintiff approached McDonald in the latter's office and placed a $20 bill on his desk. McDonald recalled that plaintiff stated: "This is from Dix. Well don't worry about it, Dix is going to plead guilty anyway." McDonald reported the incident to his supervisor, Jake Lynn and Harold Sellyer. Plaintiff was then summoned into Sellyer's office and questioned regarding the incident. Plaintiff admitted giving McDonald the money but stated that there must have been a misunderstanding. He had given McDonald the money to pay off a football bet plaintiff had lost to Anthony Weeditz, a fellow employee.

After this meeting plaintiff approached Weeditz and asked him to verify that he had won $20 from plaintiff on a football bet, if anyone asked him. Later, plaintiff's supervisor, Edward Neafsey, asked Weeditz about the bet and Weeditz responded as plaintiff had asked him. That night, plaintiff called Weeditz and explained the reason for his earlier request. Weeditz recalled that plaintiff told him the $20 came from a taxpayer that he had known for a number of years. This taxpayer was being prosecuted and had given plaintiff $20 to give to McDonald, the investigator on the case, for some small favors McDonald had done for him during the course of the investigation. Plaintiff explained the coverup story he had fabricated to explain the passing of the $20 to McDonald. After hanging up, Weeditz called Neafsey and reported the conversation he had just had with plaintiff.

Following these events plaintiff took some personal leave time that he had accumulated. Upon his return to work on February 10, 1976, he was confronted by Sellyer with the fact that additional information indicated his earlier explanation of the incident was untrue. Plaintiff then recanted his prior statements and stated that the truth was that he was only transferring money from Dix to McDonald. Dix had stated that McDonald had been very considerate during the investigation and he wanted to show his appreciation by having McDonald take his wife to dinner on the money provided by Dix. Plaintiff stated that, in fact, Dix had only given him $8 and that he had made up the difference out of his own pocket.

On February 13, plaintiff was served with a 10-day suspension, which ran from February 18 to February 27. At this point the investigation was complete and the report was forwarded to the Director of the Department of Revenue, Robert Allphin, on or about February 16. The 10-day suspension notice listed "accepting a gratuity from a taxpayer" as the reason for the disciplinary action.

On February 25, Allphin concluded that plaintiff should be discharged. Subsequently, a notice of suspension pending discharge was served on plaintiff which listed the reason for suspension as:

"During the course of the suspension immediately prior to this Suspension Pending Discharge, investigation revealed that Mr. Burton violated Department of Revenue policy in that he accepted a gratuity from a taxpayer and attempted to cause another employee to accept same and provided false information to agency staff in an attempt to cover up his wrongdoing."

In addition, in his written statement of charges for the discharge of plaintiff, Allphin stated:

"Donald G. Burton, a Security and Fraud Investigator II with the Department of Revenue, did willfully accept a gratuity from a taxpayer on January 22, 1976. For this act, which constitutes unethical conduct and a violation of departmental and state policy forbidding same, Mr. Burton was suspended for a period of ten days February 18 through 27, 1976.

Our investigation and subsequent review of the above cited act lead to the discovery of two additional improper acts of Mr. Burton which constitute cause for discharge:

(1) Mr. Burton attempted to cause a fellow employee to commit an unethical act by giving said employee the gratuity referred to in paragraph one above.

(2) Mr. Burton willfully provided false information to investigative staff conducting an official investigation into the incidents cited above. Provision of such false information constitutes ...

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