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Giampa v. Civil Service Com.

OPINION FILED OCTOBER 6, 1980.

JOHN R. GIAMPA, PLAINTIFF-APPELLANT,

v.

ILLINOIS CIVIL SERVICE COMMISSION ET AL., DEFENDANTS-APPELLEES.



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

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff, John R. Giampa, was employed as a Community Services Supervisor I by the Illinois Commission on Delinquency Prevention. After a charge was made against him, plaintiff requested a hearing. Prior to the hearing and over plaintiff's objection, the Illinois Civil Service Commission (Commission) made, and the hearing officer allowed, a motion to add a second charge. After a hearing, the hearing officer made extensive findings and found that both charges had been proved and recommended that plaintiff be discharged. On February 15, 1979, the Commission entered an order adopting the hearing officer's findings holding that the charges had been proved and that such charges warranted discharge of plaintiff from his position. On administrative review, the trial court reversed the Commission as to the first charge, but upheld plaintiff's discharge based on the second charge.

Plaintiff appeals, contending that (1) the second charge and the rule upon which that charge is based are unconstitutionally vague and overbroad; (2) the hearing officer erred in allowing the filing of the second charge; (3) plaintiff was denied a hearing where the hearing officer denied plaintiff's motion for a continuance sought in order to enable him to subpoena Rosa-Linda Blanchard, the complainant-victim, as a witness; (4) the hearing officer improperly admitted in evidence the results of a blood test; (5) the hearing officer improperly considered, along with other evidence, the fact that plaintiff invoked the fifth amendment privilege against self-incrimination even though criminal charges based upon the same alleged occurrences were then pending; and (6) the decision to discharge plaintiff was against the manifest weight of the evidence.

On October 23, 1978, the Director of the Department of Personnel approved the following charges filed with the Commission:

"September 25, 1978, John Giampa was arrested and charged with rape and indecent liberties. October 18, he was indicted by a Cook County Grand Jury on one charge of rape; three charges of indecent liberties with a child; one charge of indecent sexual assault; and one charge of intimidation. Due to the nature of Mr. Giampa's position and work, which brings him in contact with juveniles, according to Personnel Rule 2-785, discharge is initiated as there is reasonable doubt concerning his suitability for continued Commission [Illinois Commission on Delinquency Prevention] employment."

On October 30, 1978, plaintiff requested a hearing, which was scheduled for November 30, 1978. On November 22, 1978, the Attorney General filed a motion with the Commission to add the following charge:

"Conduct unbecoming a state employee dealing with juveniles in that on September 24, 1978, John Giampa induced, aided, abetted or encouraged a minor in the taking of alcoholic substances or other intoxicating drugs."

Plaintiff's counsel received a copy of the second charge on November 27, 1978. The Director of the Department of Personnel approved the second charge on November 29, 1978.

At the hearing on November 30, 1978, Saddie Schneider, Rosa-Linda Blanchard's godmother, testified that Rosa-Linda, age 13, was in a good frame of mind and normal condition when plaintiff left with her from Schneider's home at about 11:30 a.m. on September 24, 1978, to go shopping. Schneider testified that when plaintiff returned about 3 1/2 hours later, he told Schneider that he could not get Rosa-Linda out of the car and he was worried about the vomit in the car. Schneider then telephoned Rosa-Linda's putative mother, Mrs. Linda Blanchard.

Mrs. Linda Blanchard testified that on September 24, 1978, at about 2:35 p.m., she received a telephone call from Schneider informing her that Rosa-Linda looked like she was dead. Mrs. Linda Blanchard ran over to plaintiff's car, where she found Rosa-Linda "out like a light" and detected the odor of alcohol along with that of vomit.

Dr. Ahuad Abdale and Margaret Gentile, a nurse, both testified that when Rosa-Linda was admitted to the emergency room of Belmont Community Hospital she was in a semiconscious and semilethargic condition.

Floyd H. Johnson testified that he is a technologist employed by Clinical Bio-Tex Laboratories, Inc., which performs quantitative testing of biological samples submitted by Belmont Community Hospital. At 9 p.m., on September 24, 1978, he performed a quantitative blood alcohol test on a blood sample bearing the name of Rosa-Linda Blanchard as well as an erroneous laboratory case number. This was the only blood sample submitted on September 24, 1978, from Belmont Community Hospital for which blood alcohol quantitation was requested. Johnson's analysis revealed that Rosa-Linda's blood contained 92 mg% ethanol. The normal blood content of the human body is zero. Plaintiff objected to the admission of Johnson's testimony regarding the results of the test and the lab report which was admitted for the purpose of clarification of his testimony.

Plaintiff was called as an adverse witness, but he claimed the fifth amendment privilege against self-incrimination to all questions except those concerning his name, address and social security number. The hearing officer advised plaintiff of his fifth amendment privilege and told plaintiff that his failure to testify would be considered along with the other evidence.

At the conclusion of the hearing, plaintiff requested a continuance in order to subpoena Rosa-Linda Blanchard. The hearing officer denied this request.

On January 30, 1979, the hearing officer issued her decision finding that the charges had been proved and, on February 15, 1979, the Commission adopted the hearing officer's decision. The circuit court upheld plaintiff's discharge based on the second charge and this appeal followed.

Plaintiff contends that the second charge lodged against him and the rule upon which that charge is based are unconstitutionally vague and overbroad. The second charge, set out above, was found by the circuit court to establish a basis for plaintiff's discharge. That ...


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