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Sutton v. Civil Service Com.

OPINION FILED JUNE 18, 1982.

ROBERT W. SUTTON, APPELLEE,

v.

THE CIVIL SERVICE COMMISSION ET AL., APPELLANTS.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Randolph County, the Hon. Carl H. Becker, Judge, presiding.

JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

The Department of Corrections filed the following charges in a discharge proceeding against plaintiff, Robert W. Sutton, a program supervisor at the Menard Correctional Center:

"Robert Sutton, employed by the Department of Corrections in the position of Activity Program Supervisor, is discharged for cause, that cause being conduct unbecoming a state employee, in that: On May 2, 1979 Mr. Sutton approached resident inmate Andrew Englesman (#A-58057) at the Menard Correctional Center and asked inmate Englesman how much it would take (money) to get Warden Greer `killed off.'

Mr. Sutton also discussed with Englesman what location at the facility would be a good area for the above act to take place. This solicitation of an act of violence to be performed by a resident inmate against Warden Greer was admitted to by Mr. Sutton to Polygraph Examiner Dennis J. Smith and Internal Investigator Robert Verges on May 18, 1979."

After a hearing, the Civil Service Commission's hearing officer recommended that plaintiff be discharged; the hearing officer found that Sutton made all the statements attributed to him, and that although he did not actually intend for anyone to harm the warden, his statements were a serious indiscretion justifying discharge. The Commission adopted the hearing officer's recommendation; it found that the charges preferred had been proved and that Sutton's discharge was warranted. Sutton instituted an administrative review proceeding in the circuit court of Randolph County, and that court reversed the Commission's order and directed Sutton's reinstatement. The appellate court, in a split decision, affirmed the circuit court (94 Ill. App.3d 134), and the State was granted leave to appeal to this court.

Our attention is directed by this appeal to two issues: First, were the Commission's findings of fact, as both the circuit and appellate courts> held, contrary to the manifest weight of the evidence? Second, if the circuit and appellate courts> erred in so holding, was the Commission's conclusion that the plaintiff's conduct warranted discharge arbitrary, unreasonable or unrelated to the requirements of the service? See Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill.2d 547.

Three witnesses testified at the Civil Service Commission hearing regarding the statements of the plaintiff which led to his discharge. Other witnesses testified to the plaintiff's good character, his reputation as a peaceful, law-abiding citizen, and the meritorious service he had rendered in the Department of Corrections.

Inmate Englesman, who informed the prison authorities of the incident, was assigned to work in the recreational program of which plaintiff was in charge. He had gang associations and was serving a 6- to 20-year term for armed robbery. He testified that the plaintiff approached him and asked him how much it would cost to kill the warden. Unsure that the plaintiff was serious, he jokingly responded it would take a pack of cigarettes. The plaintiff commented that a certain location in the penitentiary would be a good place to do it and inmate Englesman agreed. After thinking about the conversation for two days and discussing it with a person he refused to identify, Englesman decided to report it to the prison authorities.

The second witness was Dennis J. Smith, an employee of the Department of Law Enforcement; he interviewed the plaintiff after the inmate informed the authorities of the plaintiff's statements. Smith testified that the plaintiff stated he had been upset for a couple of weeks over threats by gang members and conflicts with the warden over his work. When Englesman came into his office one afternoon, he asked Englesman, without thinking, how much it would cost to get the warden killed. Smith asked the plaintiff what the inmate's reply was, and he said he couldn't recall. At that point, Smith called in another investigator and the plaintiff made the same admissions in his presence. Smith also testified that the plaintiff said that he did not intend to go through with the act.

Sutton himself testified. He admitted receiving a memorandum from the warden reprimanding him over his failure to carry on a boxing program in the prison and said that this angered him. While he was reading the memorandum Englesman came into his office and told him that some of the gang leaders in the prison had a hit out on the plaintiff for his life. A few minutes later he asked the inmate what it takes to get someone killed off in the prison and the inmate replied, "something about a pack of cigarettes or two packs." The plaintiff's testimony was that he did not remember ever mentioning the warden or his name. The plaintiff explained his remark to Englesman by the feelings of frustration and anger he was experiencing at the time. Plaintiff's testimony was that he made the statement to the inmate without thinking, just as he might speak about his difficulties to a fellow employee.

Although not in direct conflict, there were variations between Sutton's testimony and that of inmate Englesman. Englesman testified that Sutton specifically referred to the warden and that he commented that a particular location in the prison would be the best place to kill him. Sutton testified that he did not remember ever having said those things. The Commission apparently believed Englesman, and that belief was not contrary to the manifest weight of the evidence. This is particularly the case in view of the admonition of the Administrative Review Act that the "findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct" (Ill. Rev. Stat. 1979, ch. 110, par. 274). Basketfield v. Police Board (1974), 56 Ill.2d 351, 358.

The testimony of Smith, the Department of Law Enforcement investigator who interviewed Sutton, corroborated Englesman's testimony that Sutton specifically mentioned the warden. Thus, the Commission was fully justified in believing Englesman over Sutton on that point. Smith's corroboration also lent more credibility generally to Englesman's testimony and less to Sutton's, since it appeared that Sutton was intentionally omitting substantial portions of what he had said. The Commission, therefore, was justified in believing that Sutton had spoken to Englesman about which location in the prison would be a good place to kill the warden. But, had the conversation ended with Englesman's response that it would take a pack of cigarettes, the conversation up to that point would have been no less improper for a State employee in the prison system.

Sutton argues, however, that the charge with which he was faced was "solicitation of an act of violence" to be performed against Warden Greer and that the hearing officer concluded that Sutton was not soliciting a murder, but instead was giving vent to his feelings of anger and frustration. Sutton thus contends that the charge instituted against him was not proved. It is clear from a reading of the charge that the complaint against Sutton was not criminal solicitation. By using the words "solicitation of an act of violence" in the charge, the Department of Corrections was merely referring in a descriptive way to the statements of Sutton which both ...


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