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Secretary of State v. Kunz

OPINION FILED AUGUST 2, 1983.

SECRETARY OF STATE, STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

JACOB M. KUNZ, DEFENDANT-APPELLEE — (THE MERIT COMMISSION, STATE OF ILLINOIS, DEFENDANT).



Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.

PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

The Secretary of the State of Illinois (Secretary) appeals from an order of the circuit court of Sangamon County, sitting in administrative review (Ill. Rev. Stat. 1981, ch. 110, par. 3-101 et seq.), which affirmed an order of the Merit Commission for the Office of the Secretary of State (Commission) (Ill. Rev. Stat. 1981, ch. 124, par. 109). The Secretary sought discharge of the defendant Kunz, but the Commission, as affirmed by the circuit court, imposed a penalty of 75 days' suspension.

The case has had an anfractuous procedural history, some of which must be recited here in order better to understand the issues. Kunz was the facility supervisor for the office of the Secretary in Aledo, Illinois. The Secretary discharged him on February 22, 1979, on charges: (1) sleeping on the job; (2) allowing a driver's license applicant to take a practice written test; and (3) taking personal time off during working hours to get a haircut. Kunz sought and received a hearing before the Commission.

The evidence was not extensive. A clerk in the Aledo facility testified that Kunz took naps at work sometimes as frequently as twice a day for periods from 30 minutes to an hour; according to her testimony, Kunz placed three chairs together as a sort of bed. She also testified that during the fall of 1978 Kunz permitted a friend to review the written driver's examination as a practice test and that Kunz left the facility to get a haircut during working hours. Two officials from the Secretary's office testified that when confronted with the charges, Kunz admitted to them that he had done the things.

Kunz himself testified that he took naps only during coffee breaks; that he got the haircut during inclement weather when he could not administer road tests to applicants; and that he did not give his friend a practice test, he only showed him the format of the new test.

The hearing officer concluded that the charges had been proved and recommended discharge. The Commission agreed that the charges had been proved, but determined that the punishment should be only a 75-day suspension because of the Secretary's failure to apply a certain personnel rule, designated Rule 2-690, of his office which provided for corrective discipline (counselings, warnings, suspensions, or a combination of the three) prior to discharge.

The Secretary then appealed the Commission's order to the circuit court which remanded the case to the Commission holding that the Commission "was without authority to enter a finding that Personnel Rule 2-690 was being ignored or not followed by the Secretary of State, absent any evidence in the record supporting such conclusion."

A second hearing was then held. Almost all the evidence concerned the showing of the driver's test. Kunz again testified that he showed only a format of the new test and that before this proceeding he had received no reprimands from anyone in a supervisory capacity in the Secretary's office. A division administrator in drivers' services testified that the tests are not for the public's use and are kept in a safe. He testified, as at the first hearing, that Kunz admitted to him that he allowed a friend to take a practice test and that showing a test to an applicant was grounds for immediate discharge. A deputy director of the department of personnel of the secretary's office also testified that such a showing of a test was grounds for immediate discharge.

The hearing officer recommended a 75-day suspension, stating that the test disclosure did not warrant discharge. No reference in this second report was made to the other charges. The Commission concurred. The Secretary then appealed to the circuit court which reversed, holding that the test disclosure warranted discharge and that progressive or remedial discipline was unwarranted.

Kunz then appealed the circuit court's order to this court. However, the record was incomplete, and we remanded to the circuit court with directions to consolidate the records of the two hearings and to proceed with a hearing upon the consolidated record. The circuit court then affirmed the findings of the Commission and the 75-day suspension. It is this order which is the subject of the instant appeal by the Secretary.

The positions of the parties are clearly drawn. The Secretary asks us to reverse the Commission's order of suspension and remand with direction to enter an order of discharge. Kunz asks us simply to affirm, asserting that this court lacks the power to instruct the Commission to follow the Secretary's decision to discharge him.

• 1 The guidelines have been stated by the supreme court in Department of Mental Health & Developmental Disabilities v. Civil Service Com. (DuFrenne, appellant) (1981), 85 Ill.2d 547, 426 N.E.2d 885. The court described a two-step process for a reviewing court in dealing with an administrative agency's decision whether or not to discharge an employee: (1) to determine whether the agency's findings of fact are contrary to the manifest weight of the evidence, and next (2) to determine whether the findings of fact provide a sufficient basis for the conclusion that cause for discharge does or does not exist. The latter is not tested by the manifest weight of the evidence, but whether the decision is arbitrary, unreasonable or unrelated to the requirements of the service. Department of Mental Health & Developmental Disabilities v. Civil Service Com. (Mars, appellant) (1982), 103 Ill. App.3d 954, 431 N.E.2d 1330.

In the case at bar the first step is not really controverted. Kunz, although arguing that his conduct did not merit discharge, does not contest the findings of fact nor that the charges against him were proved. The second step is the pivotal issue in this case.

The attempts on the part of courts> to tinker with punishments meted out by administrative agencies has met with very little success. DuFrenne is a premier example. Others are collected in Mars. (103 Ill. App.3d 954, 431 N.E.2d 1330.) Obviously this stems from the deference which courts> are required to pay to the findings and the actions of the agencies. In a broad sense, it is the civil counterpart of the deference which a reviewing ...


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