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Cherniavsky v. Dept. of Labor

OPINION FILED JULY 30, 1979.

NICK CHERNIAVSKY, PLAINTIFF-APPELLANT,

v.

THE DEPARTMENT OF LABOR ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Sangamon County; the Hon. JAMES T. LONDRIGAN, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Upon administrative review the circuit court affirmed the determination of the Civil Service Commission (Commission) that plaintiff was not a certified employee under the Personnel Code and the Rules of the Department of Personnel and that the Commission did not have jurisdiction to hold a hearing upon his discharge. Plaintiff appeals.

Section 4a of the Code (Ill. Rev. Stat. 1975, ch. 127, par. 63b104a), provides:

"There are hereby created three separate areas of jurisdiction of the Department, as follows:

(1) * * *

(2) Jurisdiction B, with respect to the positions in the State service to which persons must hold appointments on a basis of merit and fitness.

(3) * * *."

Section 11 of the Personnel Code (Ill. Rev. Stat. 1975, ch. 127, par. 63b111), 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, * * * 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 * * *."

Rule 2-625 of the Department provides:

"For purpose of rules respecting discipline and discharge, `certified employee' shall mean any employee who has satisfactorily completed a required period of probation and attained certified status in any position during the employee's most recent period of continuous state service."

It is substantially undisputed that on July 16, 1975, plaintiff was appointed a labor conciliator in the Illinois Department of Labor with an exempt status for purposes of Jurisdiction B. While the record does not clearly disclose the actual development of the exempt status, it appears that seven labor conciliators filled appointments that had been declared exempt by the Commission under section 4d(3) of the Personnel Code (Ill. Rev. Stat. 1975, ch. 127, par. 63b104d(3)), while three appointments were classified nonexempt. In the record the varying result appears to arise from an increase of the number of appointments to that position and a change in the organization of the Department of Labor. It is contended that plaintiff was appointed to one of the three nonexempt positions. It is not contended that plaintiff was unaware that his original appointment was designated as exempt from Jurisdiction B or that he acted in reliance upon a certified status following such appointment.

In October 1976, the Commission placed all appointments as labor conciliator under Jurisdiction B as provided in section 4b of the Code. By reason of the Commission order of October 20, 1976, plaintiff became subject to examination and his employment status was changed to provisional. Plaintiff took and passed the examination. On April 18, 1977, plaintiff was placed upon six months probation. On August 6, 1977, with the consent of the Director of Personnel, plaintiff was discharged for failure to perform his duties. On August 10, 1977, plaintiff requested a hearing before the Civil Service Commission to require showing cause for discharge. A scheduled hearing was postponed when plaintiff requested discovery and plaintiff's attorney agreed to waive a statutory requirement that a hearing be held within 30 days.

The defendant entered a special and limited appearance before the Commission contesting the jurisdiction to hold a hearing upon the discharge, contending that plaintiff was a probationary employee who ...


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