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Haverly v. Boys





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


This appeal is taken by plaintiff Arthur Haverly from dismissal of a petition for a writ of mandamus to compel his compensation as a State employee for the period of time he was suspended from his position pending a hearing on his discharge, to the time of his discharge. For the reasons hereinafter stated, we affirm.

Haverly was a nonprobationary employee of the Illinois Bureau of Employment Security. He had been previously suspended several times in 1977: from March 24 to March 30; and from June 6 to June 19. He received notice of certification of charges seeking his suspension for a period of more than 30 days on October 21, and was again suspended from October 24 to November 4. When he returned to work on November 7, he was sent home to await notification of further charges against him. His compensation was terminated November 9. On or before November 17 he received notice of charges seeking his discharge.

The hearings before the Civil Service Commission on the charges against Haverly began on December 29, 1977. During the course of the hearings, he questioned the legality of his removal prior to the completion of the hearings, but was advised by the hearing officer that this issue was beyond the scope of the ongoing hearings and should be the subject matter of court litigation. The hearings concluded with a recommendation of the hearing officer that Haverly be discharged. On July 20, 1978, approximately 250 days after Haverly was initially sent home, the Civil Service Commission acted on the hearing officer's recommendation, and Haverly was discharged, effective that date.

In the meantime, Haverly filed a petition for a writ of mandamus in the circuit court of Cook County, on March 8, 1978, naming as defendants Illinois State officials William Boys, Director of Personnel, William Bowling, Director of Labor, Donald R. Smith, Treasurer, Michael J. Bakalis, Comptroller, and C. Thomas Ross, Employment Security Administrator. Haverly alleged that he had repeatedly demanded of defendants that they pay him his salary, but they had refused to do so, and that the termination of his compensation was illegal because defendants' authority to interrupt his compensation was limited to a period of 30 days per year. He asked that the court compel resumption of his compensation. Defendants filed a motion to dismiss based on sections 45 and 48 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, pars. 45 and 48), which was granted on May 11, 1978. It is from that order that this appeal ensues.

Defendants maintain and the circuit court held that State employees may be displaced from their positions without pay pending hearings on their discharges. Haverly contends that such a practice is expressly barred by section 11 of the Personnel Code (Ill. Rev. Stat. 1977, ch. 127, par. 63b111), which states in part:

"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. * * *"

Plaintiff argues this provision clearly means that certified State employees may not be removed from their jobs for more than 30 days except after a hearing, particularly under the so-called "plain meaning rule" (see City of Nameoki v. Granite City (1950), 408 Ill. 33, 95 N.E.2d 920). Defendants, however, contend that this language has been authoritatively assigned a contrary construction and that the theory proposed by Haverly would conflict with section 11b of the Personnel Code (Ill. Rev. Stat. 1977, ch. 127, par. 63b111b), dealing with compensation of employees who are reinstated after suspension or discharge.

• 1 The language in question has been the subject of appellate court analysis in three recent cases. In Brewton v. Civil Service Com. (1969), 115 Ill. App.2d 460, 253 N.E.2d 504, essentially identical language, which appeared in section 10-1-18.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1967, ch. 24, par. 10-1-18.1), was construed as preventing the termination of the compensation of a library employee where no hearing was held before he was sent home to await a discharge hearing and he had already been suspended for the 30-day maximum period within the previous 12-month time frame. In Brewton, no suspension beyond the initial 30-day period was ordered, however. Five years later, in People ex rel. Cotter v. Conlisk (1974), 17 Ill. App.3d 346, 308 N.E.2d 1, the court expressed "disagreement" with Brewton and held that a police officer suspended pending a discharge hearing was not entitled to interim compensation. Plaintiff seeks to distinguish Cotter or, in the alternative, to persuade this court to reject that decision. The only distinctions to be drawn between Cotter and the present case are that the language governing Cotter was contained in the Municipal Code rather than the Personnel Code, and Cotter was a policeman, whereas plaintiff was an office worker. Because the language in the two statutes is virtually identical in its substantive aspects, we do not regard the fact that it appears in different statutes as significant. To the contrary, because of the similarity of language appearing in the State Personnel Code and the Illinois Municipal Code, these provisions must be considered from the same public policy perspective. (See Kropel v. Conlisk (1975), 60 Ill.2d 17, 25, 322 N.E.2d 793; Bart v. Department of Law Enforcement (1977), 52 Ill. App.3d 487, 492, 367 N.E.2d 773.) As for the type of work done by the suspended employee, neither statute provides any basis for holding that employees would be afforded different treatment according to the nature of their work.

More recently, in Hoban v. Rochford (1979), 73 Ill. App.3d 671, 392 N.E.2d 88, Cotter was cited with approval and followed in a case involving the suspension and discharge of a Chicago police captain who maintained his residence beyond the city limits. The appellate court there found that Hoban could properly be suspended indefinitely pending a hearing and disposition of charges against him without violating the terms of section 10-1-18.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 10-1-18.1), or due process, or Hoban's right to equal protection of the law, stating (73 Ill. App.3d 671, 678-79):

"Our construction of the statute is supported by our decision in People ex rel. Cotter v. Conlisk (1974), 17 Ill. App.3d 346, 308 N.E.2d 1. There a Chicago policeman was indefinitely suspended pending a hearing and disposal of charges against him. Ultimately the officer was discharged and he sought payment of his salary for the period beginning 30 days after his suspension and ending when he was notified of his discharge following a hearing. The officer contended that under section 10-1-18.1 he could not be suspended without pay for more than 30 days while awaiting disposition of the charges against him. We held:

`Such an interpretation could not have been intended by the Legislature. To do so would require the police department to either continue someone on the job who was of doubtful character or competence, or suspend the man and continue paying him for not working. In the case of Clark v. Morris (1968), 99 Ill. App.2d 24, 31, [240 N.E.2d 515,] the court stated:

"* * * it would be incongruous to conclude that the Legislature would provide a form of discipline which would propel this Court into conferring that which many individuals might deem a happy boon and a favor, i.e., pay without work. The status of being `without pay' is an incident of suspension."

Similarly, it would be incongruous in the instant case for a police officer under charges for taking advantage of his office to be paid while ...

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