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Johnson v. Macon County Bd.





APPEAL from the Circuit Court of Macon County; the Hon. JAMES N. SHERRICK, Judge, presiding.


Plaintiff, Charles E. Johnson, appeals his removal as county superintendent of highways of Macon County. He was removed from office by the County Board of Macon County (Board) following a finding of neglect of duty and malfeasance in office. The conduct which led to Johnson's removal was a single incident of intoxication. Upon administrative review by the circuit court of Macon County, the court affirmed the Board's order of removal but did find that the Board was in error in finding the plaintiff guilty of malfeasance in office.

Such terms as "neglect of duty" and "malfeasance in office" remain an abstraction until viewed in the light of the circumstances of each case. Therefore, we must discuss in some detail the factual background of the case at bar. At the time of the county board hearing, plaintiff was 55 years old and in his second six-year term in office, having first been appointed in October 1971. Johnson testified that on Thursday afternoon, December 4, 1980, he left his office at around 3 o'clock to make some inspections, after which he intended to go home. It was his intent to take the following day off to do things around his house, and he signed himself out for the following day in a book kept on the secretary's desk for that purpose. After going home, Johnson received a telephone call which caused him to be "worked up," and he therefore wanted to talk to Donald Cole, a highway department foreman, about the call. Johnson tried to telephone Cole at his house but talked to Cole's wife who informed him that Cole was busy and would call him back. Cole did not return the call that evening, and Johnson and his wife left for a dinner dance. Johnson testified he had dinner, danced with his wife, and had four or five drinks but was home by midnight.

On the following morning, December 5, 1980, Johnson testified, he got up around 5:30 or 6 o'clock. He consumed some coffee but ate no breakfast and also took some medication for nephritis and hypertension. At about 7:30 a.m., Johnson left in a county car and met Donald Cole at the county highway depot. Johnson testified that he had a conversation with Cole at the depot; he told Cole that he was going to his office, then to make a final check on some guardrails, and then go home for the day. Johnson arrived at the county building at around 8 o'clock and chatted with the recorder of deeds for a few minutes before proceeding to his own office. According to Johnson, after getting to his office he received a telephone call from Cole who wanted to go with Johnson to examine the guardrails in case anything was wrong. Cole then informed Johnson that he would pick Johnson up in his car to go out to make the inspection. Cole then picked up Johnson at the county building, and they proceeded in Cole's county car out to the inspection site, where they made the inspection. Thereafter, Cole then informed Johnson that he wanted to take Johnson to Cole's home so that Johnson could talk to Cole's wife about the telephone call of the previous evening. Cole, according to Johnson, wanted it explained to Johnson that the reason Cole had neglected to return Johnson's call was that Cole's wife had failed to inform him that Johnson had called. After arriving at Cole's house, Johnson testified that he did not suggest having a drink to Cole, but that at Cole's house, Cole did serve him with a double shot of whiskey and a beer. Johnson testified that he had consumed no alcoholic beverages prior to that time on the day in question. After having two drinks at Cole's house, Johnson testified that he did not feel well and asked Cole to take him home. On the way to Johnson's home, Johnson testified that he either went to sleep or blacked out. After arriving home, Johnson went to sleep on the living room couch.

The testimony of Donald Cole differed substantially from that of Johnson. Cole testified that it was Johnson who called him to take him to the inspection site and, after examining the guardrail site, Cole testified that it was Johnson who mentioned a couple of times about having a drink. Cole did not want to go anywhere with Johnson to have a drink, so he took Johnson to his house. According to Cole, each had a double shot of whiskey, and Johnson asked for another drink. Johnson then drank one beer and asked for another. As they were leaving Cole's house, Johnson was carrying two cans of beer and stumbled and spilled one of them. During the drive to Johnson's house, Johnson passed out, and, in Cole's opinion, Johnson was intoxicated. After arriving at Johnson's house, Johnson fell into the bushes, and Cole had to help Johnson out of the bushes and into the house. Cole did not see Johnson again until later that afternoon.

Johnson's further testimony was that about 2:30 in the afternoon, he got up from the couch and telephoned Cole to take him to the county building to pick up his county car. Johnson also called his secretary and asked whether a certain piece of mail that he had been waiting to receive had arrived. While waiting for Cole, Johnson had another drink. As Johnson and Cole then proceeded to the county building in Cole's county car, they passed the chairman of the transportation committee of the county board. Cole had informed the chairman earlier in the day that Johnson had been drinking that morning. The chairman of the transportation committee then proceeded to the county building and waited for Cole and Johnson to arrive. The chairman testified that he observed Johnson slumped in the seat of the car with his head hung to one side. He could tell from the way Johnson was sitting and the red condition of his face that Johnson had been drinking that day. The chairman then testified that he informed Johnson that he was suspended until further notice.

Johnson then went to his office in the county building in order to look at his mail. He testified he was in his office only for about 10 or 15 minutes and then drove directly home. According to Johnson's secretary, Johnson was slumped at his desk and very red faced. He was sitting at his desk trying to read the mail but had great difficulty in using the dater stamp and would drop it on the floor. The chairman of the transportation committee then came into his office and again ordered him to go home.

Basing their decision upon the foregoing chain of events, the chairman and members of the transportation committee of the Macon County Board brought a written petition before the Board charging the plaintiff with neglect of duty and malfeasance in office. The petition alleged that Charles E. Johnson was "guilty of neglect of duty and malfeasance in office in the following manner:

A. THAT on or about 7:30 a.m. of the said day and date, the said Charles E. Johnson drove a county highway vehicle to the county highway depot on 2400 North Woodford, Decatur, Illinois, and pulled his automobile into the drive to said depot preventing vehicles from entering or leaving said premises and engaged in a dispute with Don Cole, Foreman of the County Highway Garage, while under the influence of intoxicating liquor.

B. THAT at a later time, around 9:00 a.m., the said Charles Johnson had Donald Cole, the Macon County Highway Foreman, take him in a Macon County Highway car to the home of Don Cole and asked him to provide him with alcoholic beverages, which he did and which he drank and which eventually caused him to pass out and otherwise become further under the influence of intoxicating liquor, making him unfit to continue his duties that day.

C. THAT the said Donald Cole then delivered Mr. Johnson to his residence and was later called by Mr. Johnson to pick him up and return him to the County Building so that Mr. Johnson could bring home the county vehicle assigned to him, which was parked behind the County Building by Mr. Johnson that morning, and that at the time that Mr. Cole picked him up, he was in the process of consuming alcoholic beverages and consumed additional intoxicating beverages prior to returning to the County Building with Mr. Cole, all of which rendered him unfit to conduct his duties as County Superintendent of Highway.

D. THAT upon arriving at the Macon County Building, although in a state of intoxication, and having been ordered by the Chairman of the County Highway Committee not to take the county highway car, but to permit Donald Cole to drive him home, the said Charles Johnson did drive the county vehicle to his home, while under the influence of intoxicating liquor.

E. THAT during the time after he arrived at the Macon County Building, Charles Johnson attempted to conduct county business while in a state of intoxication and attempted to supervise other persons in his office while not in a condition to do so at said date, time and place."

On January 28, 1981, the Board convened and heard the preceding evidence on the petition. Following the testimony of the witnesses, it was moved by a board member to remove Johnson as superintendent of highways. It was also moved that one vote should be taken as to whether all the subparagraphs had been proved alleging the neglect of duty and malfeasance in office. That motion was then amended to remove subparagraph (a) of the petition as it was believed that there was no testimony verifying that Johnson was intoxicated at 7:30 a.m. the morning of December 5, 1980. The motion to dismiss Johnson as superintendent carried by a margin of one vote. The plaintiff then filed a complaint for administrative review in the circuit court. On May 21, 1981, the circuit court entered a written order finding that the Board's order of dismissal was not against the manifest ...

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