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Kendor v. Department of Corrections

OPINION FILED AUGUST 10, 1984.

LOSAY KENDOR, PLAINTIFF-APPELLANT,

v.

THE DEPARTMENT OF CORRECTIONS ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Arthur Dunne, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff Losay Kendor appeals from a circuit court order which affirmed the decision of defendant Civil Service Commission (Commission) to discharge him from employment with defendant Department of Corrections (Department). Plaintiff maintains that the Commission erred in receiving certain evidence and that the Commission's decision was contrary to the manifest weight of the evidence. The following facts taken from the administrative record are material to our decision.

Plaintiff was employed as a parole counselor for 10 years prior to his discharge on June 21, 1980. A parolee under plaintiff's charge, Jamie Soto, contacted the Cook County State's Attorney's office in April of 1980 to report that plaintiff had solicited a bribe. R.B. Sonneveld, an investigator for the Illinois Department of Law Enforcement (IDLE), was assigned to investigate the charge, and on May 6, 1980, he directed Soto to call plaintiff and arrange a meeting. The initial call ended inconclusively, and Sonneveld waited for plaintiff's return call, but finally left Soto's apartment. Soto called Sonneveld later that day and said that the meeting was set for the next day. Sonneveld requested and received $150 from the State's Attorney's office.

On May 7, 1980, Sonneveld and another agent went to Soto's apartment, where Sonneveld gave Soto $100 to place in a windowed envelope and $50 to put in his pocket. When plaintiff's car approached, Sonneveld and the other agent secreted themselves in a closet. Sonneveld heard Soto say that he had the money and ask whether they were finished; plaintiff replied yes, they were finished, and asked if Soto would accompany him out of the apartment.

The IDLE agents placed plaintiff under arrest, searched him and read him his rights. Plaintiff possessed the envelope containing $100 of the funds obtained from the State's Attorney's office. The agents recovered from Soto his parole discharge papers, dated October 4, 1979, as well as the remaining $50. Sonneveld testified that plaintiff claimed to be in the process of arresting Soto, but he recalled that the conversation occurred en route to the station rather than at the scene, as plaintiff believed.

On cross-examination, counsel for plaintiff asked Sonneveld to relate what Soto had said concerning his release from parole. Sonneveld stated:

"Mr. Soto had a telephone conversation with Mr. Kendor. In that phone conversation Mr. Kendor told Mr. Soto that he had gotten Mr. Soto off of parole or got him discharged from parole. He then asked Mr. Soto where he was employed and how much he made and he told him. Mr. Soto responded he worked at AT&T I believe and he made $159 a week and I believe the response from Mr. Kendor was `It will cost you $150 for your discharge papers.'"

Plaintiff's supervisors, Gerald Gist and Eriberto Campos, testified that plaintiff had spoken to them about bribes in the weeks preceding May 7, 1980. Gist advised plaintiff to document any bribe offer and suggested that plaintiff prepare a letter describing the circumstances, mail it to himself, and then retain the sealed letter. In a second conversation between plaintiff and Gist, plaintiff mentioned "a guy from Texas" who had offered a bribe. Campos recalled that he and plaintiff had discussed an incident involving a parole officer who had been arrested for bribery. Also, Campos stated that plaintiff came into his office in late April or early May and asked what Campos would do if offered a bribe; Campos said he would call the State's Attorney's office to have the person arrested. Both supervisors stated that parole discharge papers could be delivered either in person or by mail, and Gist stated that when an arrest was planned in advance, "normal procedure" was to arrange for more than one agent to participate in the arrest.

Plaintiff testified that he received Soto's discharge papers in November of 1979, after Soto had departed for Michigan pursuant to a travel permit. Plaintiff was aware that such papers could be mailed to parolees, but explained that he had been unable to locate Soto. Although he testified in his criminal trial that he had tried to contact Soto by mail and by telephone, at the administrative hearing plaintiff could not recall mailing anything to Soto in Michigan. Plaintiff stated that Soto offered the bribe during the first telephone conversation between the two after Soto's return from Michigan, despite the fact that plaintiff notified Soto in the same conversation that he had already been discharged from parole.

Plaintiff testified further that he had earned an associate's degree in law enforcement, a bachelor's degree in criminal justice and political science, a master's degree in criminal justice, and he had been taught the importance of documenting a criminal investigation. He expected the cashier's check or money order which he had requested of Soto to serve as documentation, but he did not examine the envelope containing cash before the arrest. Plaintiff stated that he had been trained to seek guidance from his superiors when he was uncertain, and for this reason, he initiated several conversations concerning bribery. However, plaintiff's recollection of these conversations differed markedly from that of Gist and Campos: he recalled that Gist advised placing the proceeds of the bribe in an envelope to be mailed to himself, and Campos said if he was offered a bribe, he would effect the arrest personally. Plaintiff also recalled mentioning Soto's name several times, but said that he was sketchy about the details because he did not trust anyone in the parole office.

Although an administrative subpoena had been served upon Soto, he did not appear on the initial hearing date, September 23, 1980, and the Department of Corrections was granted a continuance over plaintiff's objection in order to secure Soto's attendance. The Attorney General filed a petition to enforce the subpoena, and the circuit court issued an order in October of 1980 commanding Soto to obey the subpoena. Hearing dates of November 21 and December 30, 1980, were continued due to illness of the hearing officer. The hearing was rescheduled for January 9, 1981, and Soto received notice of the new date by certified mail, but again failed to appear. Counsel for the Department of Corrections represented to the hearing officer that the Attorney General's office had received a message indicating that Soto was ill; the hearing was continued to February 6, 1981, again over plaintiff's objection, and Soto was again notified by certified mail.

When Soto failed to appear for the February 6 hearing, the Department of Corrections moved to admit the transcript of Soto's testimony from plaintiff's criminal trial into evidence to become part of the administrative record. Counsel for the Department stated that the person who answered Soto's phone said that he was out of town and then hung up. After accepting briefs and argument, the hearing officer ruled that the transcript should be received into evidence.

The hearing officer found that clear and convincing evidence indicated plaintiff solicited and accepted a bribe, and recommended that plaintiff be discharged. The Civil Service Commission adopted the findings of the hearing officer and rendered its final decision in accordance with the recommendation on April 16, 1981. On April 26, 1983, in an action brought by plaintiff under the ...


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