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Brown v. Civil Service Com.

OPINION FILED MAY 2, 1985.

HENRY BROWN, JR., PLAINTIFF-APPELLEE,

v.

THE CIVIL SERVICE COMMISSION, DEFENDANT (THE INDUSTRIAL COMMISSION, DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, a court reporter with the Industrial Commission, was charged with violating section 16 of the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.16) by intentionally overbilling for transcripts in 13 instances. Adopting the findings of the hearing officer, the Civil Service Commission found plaintiff guilty and discharged him from his position.

On judicial review, the circuit court of Cook County found the sanction of discharge too severe and remanded the case to the Commission with instructions to reinstate plaintiff and to impose a lesser sanction. On remand, the Commission ordered plaintiff reinstated and imposed a penalty of 120 days' disciplinary suspension. The circuit court affirmed the modified penalty, and the Commission now appeals.

We affirm the decision of the circuit court.

BACKGROUND

Plaintiff, Henry Brown, Jr., has been employed as a court reporter by defendant, Illinois Industrial Commission (Commission), since June 1979. In April 1984, defendant initiated discharge proceedings against plaintiff, charging that plaintiff had intentionally overbilled for transcripts in 13 instances during the months of September, October, November and December 1981, in direct violation of section 16 of the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.16). Section 16 provides that an official court reporter shall take and furnish a transcript of proceedings "upon payment to him at the rate of $1.00 per page for the original and 35 cents per page for each copy of such transcript." The statute further provides that photostatic copies of exhibits shall be extra.

A hearing on plaintiff's discharge began on May 4, 1982, and concluded on August 30, 1982. Plaintiff testified that he understood the statutory rates to be guidelines which he used as a base rate. In addition to the base rate, he would add his actual costs for Xeroxing and typing. He would also add additional charges, when appropriate, for postage or for an interim or expedited transcript. Plaintiff never denied throughout the hearing his knowledge that the addition of costs to his bills was in excess of the statutory rate, and he admitted that in each case he included the cost of preparing the transcript. When confronted with the allegations of overbilling, plaintiff apologized, stated that he knew now that it was wrong and that he would not do it again.

Other testimony adduced at the disciplinary hearing revealed that at the time plaintiff was hired in 1979, the situation regarding billing by court reporters was "deplorable." There were no manuals or written directives instructing on employee procedures or court reporter billing procedures. There was no established policy regarding charges for expedited transcripts or interim transcripts, for which many of the reporters charged an additional amount. When plaintiff was hired, he was given verbal directions about the page rate and was informed as to the lack of policy regarding charging for exhibits. Plaintiff received information about the customary, on-going billing practices from other court reporters, notably one of whom later resigned prior to the instigation of discharge proceedings based on overbilling.

Jack Ellis, the supervisor for all court reporters employed by the Illinois Industrial Commission, testified that he was appointed in 1979 to put a halt to the abuses in the court reporting system. After investigating the billing practices of nearly every court reporter in Illinois, Ellis concluded that reporters were charging other than the statutory rate for expedited transcripts; some reporters were charging more than the suggested rate for exhibits; and, based thereon, other court reporters had been and would be disciplined. He further concluded that many reporters "just practically did whatever they wanted to do." During and after the investigation prompted by plaintiff's conduct, Ellis issued memoranda to the court reporters providing guidelines for rates in excess of those set by statute or policy.

Mollie Goodman, a personnel officer employed by the Industrial Commission, testified that the position held by plaintiff was covered by a collective bargaining agreement and governed by the Department of Personnel Rules, both of which call for a system of progressive discipline. Goodman stated that the normal procedure for disciplinary actions is oral reprimand for the first infraction, written reprimand for the second, suspension for the third, and discharge for the fourth. She stated that prior to the instant matter, she had received no complaints about plaintiff and that he had received no disciplinary action prior to the institution of discharge proceedings.

Rebecca Schneiderman, the chairman of the Illinois Industrial Commission and the person who ultimately made the decision to discharge plaintiff, testified that when she confronted plaintiff with the charges of overbilling, he told her that another court reporter had been doing it, that he did not realize it was wrong, and that he would not do it again. Schneiderman acknowledged that there are no provisions in the statute regarding exhibits, expedited transcripts, or interim transcripts. She further stated that for some time, the Commission had been receiving a number of complaints from attorneys representing both workers and employers about the billing practices of court reporters. The complaints were wide-ranging and included assertions that the reporters were overcharging the per-page rate and charging a large amount for the Xeroxing of exhibits. She stated that the complaints "continued and continued" until a full scale investigation was initiated, which investigation included the Attorney General's office and several other agencies throughout the State.

In her report, the hearing officer for the Civil Service Commission notes that there were no guidelines established by the Commission regarding what procedures should be taken with expedited or interim transcripts until November 1981, and at that time the only guidance given was that a particular fee arrangement with an attorney should be in writing. She further noted that respondent claimed that he had been given an insufficient amount of guidance and orientation as to permissible billing rates when he began his employment with the Commission. She stated that the Commission did not, however, apparently become aware of the "practice of overbilling" until recently, and that there therefore would have been no reason for the supervisor of the court reporters to feel that an indoctrination was necessary.

After acknowledging plaintiff's assertion that he should be subject to the policy of progressive discipline, the hearing officer nevertheless concluded that plaintiff's discharge should be upheld. The Civil Service Commission adopted the findings and recommendations of the hearing officer and discharged plaintiff.

Plaintiff filed a complaint in the circuit court of Cook County for judicial review of the administrative decision. The trial judge found that while the record supported the charges brought against plaintiff, and the findings of the hearing officer were not against the manifest weight of the evidence, plaintiff's conduct was not of such a nature as to warrant discharge rather than suspension. The trial court noted that the Commission had in place a policy of progressive discipline and that this instance was the first blemish on the plaintiff's employment record. The court concluded that ...


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