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Derringer v. Civil Service Com.





APPEAL from the Circuit Court of Randolph County; the Hon. CARL H. BECKER, Judge, presiding.


Plaintiff-appellee Billie Derringer, an assistant warden in the State correctional system, appealed his transfer from the Menard Correctional Center to the Joliet Correctional Center, maintaining before the Civil Service Commission that the transfer was politically motivated. After a hearing, the Commission upheld the transfer. On administrative review, the Circuit Court of Randolph County found that the Commission's decision was against the manifest weight of the evidence and ordered that Derringer be reinstated to his former position at Menard. The Civil Service Commission and the Department of Corrections have appealed to this court.

• 1 It is not disputed, nor do we doubt, that a civil service employee cannot legally be transferred involuntarily from one geographical location to another for merely capricious or political reasons. Our courts> have so held with regard to the discharge of civil servants, and the logic of those decisions extends to geographical transfers. (Hacker v. Myers, 33 Ill. App.2d 322, 179 N.E.2d 404 (1st Dist. 1961); Burke v. Civil Service Com., 41 Ill. App.2d 446, 190 N.E.2d 841 (3d Dist. 1963); see also Farny v. Civil Service Com., 10 Ill. App.3d 80, 293 N.E.2d 450 (4th Dist. 1973).) As the hearing officer in the instant case recognized, a geographical transfer for partisan political purposes is clearly contrary to the stated aim of our Personnel Code, to achieve a system of personnel administration "based on merit principles and scientific methods." Ill. Rev. Stat. 1977, ch. 127, par. 63b102.

• 2 Section 11.01 of article XI of the Rules of the Civil Service Commission provides that an employee who appeals his geographical transfer to the Commission "shall have the burden of introducing sufficient, competent, and credible evidence showing that the transfer was unreasonable, unjust, or capricious and was not a bona fide attempt to serve the best interests of the operating agency." An involuntary geographical transfer based on political expediency is by its very nature unjust to the employee involved and not a good faith attempt to serve the best interests of the agency. Thus if a civil service employee can prove by a preponderance of the competent and credible evidence that his transfer was politically motivated, he has met his burden of proof, and his appeal should be allowed.

Appellants here rely heavily on the well-settled rule that a reviewing court should reverse the findings of an administrative agency only when they are against the manifest weight of the evidence. We are, of course, mindful of that rule. It does not require, however, that our stamp of approval must be placed on the decision of an administrative agency merely because the agency's hearing officer heard the witnesses and made the requisite findings. (Brown Shoe Co. v. Gordon, 405 Ill. 384, 91 N.E.2d 381 (1950); Burke v. Civil Service Com., 41 Ill. App.2d 446, 190 N.E.2d 841 (3d Dist. 1963).) Our duty in an administrative review case is precisely the same as that of the circuit court: to examine the entire record in order to ascertain whether or not the findings and decision of the administrative agency are against the manifest weight of the evidence. (Berwyn Savings & Loan Association v. Illinois Savings & Loan Board, 29 Ill. App.3d 965, 331 N.E.2d 254 (1st Dist. 1975); Smith v. O'Keefe, 9 Ill. App.3d 814, 293 N.E.2d 142 (5th Dist. 1973); Mitchell v. Sackett, 27 Ill. App.2d 335, 169 N.E.2d 833 (1st Dist. 1960).) Where an administrative order is contrary to the manifest weight of the evidence, it is the duty of the appellate court to affirm the action of the circuit court in setting the order aside, Gloss v. Board of Trustees, 132 Ill. App.2d 736, 270 N.E.2d 472 (1st Dist. 1971).

It is true, as appellants assert, that innumerable decisions of our courts> recite that it is not the proper function of a court to reweigh the evidence previously presented to an administrative decision-maker. (See, e.g., Board of Education v. Scott, 105 Ill. App.2d 192, 244 N.E.2d 821 (4th Dist. 1969).) But we could not perform our reviewing function at all without weighing the evidence. The distinction is that we do not reweigh the evidence as we would if we were the original decision-maker, attempting to decide in the first instance whether the party with the burden of proof has proved the material elements of his case by the preponderance of the evidence. Our weighing is done on different scales; our function is merely to decide whether the manifest weight of the evidence of record favors the party who did not prevail before the agency. If it does not, we must affirm, even if we think that the preponderance of the evidence is to the contrary. But if, after a review of all the evidence, we think it evident that the administrative decision was wrong, it is our duty to reverse.

With these considerations in mind, we turn to the evidence from which the hearing officer in this case concluded that Derringer had failed to meet his burden of proof.

Billie Derringer testified that he had worked at Menard since 1959 and had lived in the same home in the Chester area for 16 years. He was 54 years old. He had been reluctant to accept the promotion to assistant warden that he was offered in 1976 because he thought it would necessitate his living on State property at the institution. He only accepted the post after Mr. Rowe, the acting director of the Department of Corrections, assured him that that would not be necessary and that he could continue to live in his home. On June 2, 1977, he was summoned to Rowe's office in Springfield. Despite Derringer's protests, Rowe informed him that more security personnel were needed at Joliet and that he was to be transferred there, some 325 miles from his home. On June 8 he was told to report to Joliet on June 10. He never received any written transfer order. The transfer was a lateral one — that is, his pay and duties were the same as they had been at Menard. The transfer worked a hardship upon him because of the home he owned in the Chester area and because he was an outpatient at a hospital in St. Louis. His wife was also under medical care in Chester.

Ernest Morris, the warden at Menard when Derringer's transfer took place, testified that he did not participate in any way in the decision to transfer Derringer to Joliet. He never received any written notification of the transfer, was never consulted by the Department of Corrections or the Governor's office about the move, and was never given a reason for it.

Ralph Dunn, State Representative for the 58th District where Menard Correctional Center is located, was subpoenaed by plaintiff to testify. Pursuant to subpoena, Dunn produced a letter he had written to Governor Thompson on April 1, 1977, a contemporaneous press release, and a press release dated June 10, 1977. The handwritten letter referred to Dunn's previous communications with Governor Thompson about "doing something about Menard" and stated "I will appreciate it very much if you will follow through and change Rowe, Morris and Derringer."

The press release, which was also sent to the governor, stated that Dunn had asked Thompson to fire or transfer Charles Rowe, the acting director of the Department of Corrections, and Warden Ernest Morris and Assistant Warden Derringer at Menard. The release quoted Dunn as saying:

"Problems at Menard have been one of my chief concerns * * * and Thompson has done nothing about all the problems created by the Walker administration.

I fully realize that the Governor has only been in office three months but we're long past the time that the Walker appointees who have been destroying prison moral [sic] should be removed.

Residents of my district are in constant fear of escapees, riots and loss of life. It's time some changes were made and there's no better place to start than at the top with ...

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