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04/14/88 Robert D. Kutz, v. Merit Commission

April 14, 1988

ROBERT D. KUTZ, PLAINTIFF-APPELLANT

v.

MERIT COMMISSION, OFFICE OF THE SECRETARY OF STATE, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

522 N.E.2d 794, 168 Ill. App. 3d 508, 119 Ill. Dec. 132 1988.IL.534

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

APPELLATE Judges:

PRESIDING JUSTICE GREEN delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

In a letter dated January 29, 1986, defendant William Rolando, Director of the Department of Personnel of the Office of the Secretary of State (Department), informed plaintiff Robert D. Kutz that he was being suspended from his position with the Department for a period of 29 days from February 6, 1986, to March 7, 1986. Plaintiff filed an "Appeal of Suspension" before the defendant Merit Commission of the Secretary of State (Merit Commission) on March 24, 1986, and on March 25, 1986, he was informed by the Merit Commission his appeal did not meet its jurisdictional requirements. On May 13, 1986, the Merit Commission entered an order dismissing the appeal.

Plaintiff filed a complaint for administrative review in the circuit court of Sangamon County on June 9, 1986. On July 14, 1987, that court dismissed the complaint on the theory that, if the Merit Commission had no jurisdiction to hear the matter, the court had no jurisdiction to pass on the Merit Commission's order of dismissal. On appeal to this court, plaintiff maintains the circuit court should not have dismissed the complaint but should have heard the matter, determined the Merit Commission had jurisdiction to hear his "Appeal of Suspension" and remanded to the Merit Commission to do so. We agree the circuit court should have heard the administrative review complaint but hold that the circuit court should have affirmed the action of the Merit Commission in dismissing plaintiff's appeal. We will discuss the question of whether the complaint for administrative review should have been dismissed after determining whether the Merit Commission had jurisdiction of plaintiff's appeal to it.

The Department's Personnel Rules (rules) provide that an employee who receives a suspension totaling 30 days or more in any 12-month period may obtain a hearing before the Merit Commission (Ill. Rev. Stat. 1985, ch. 124, par. 108c(6)). A final determination of the Merit Commission is subject to administrative review in the circuit court (Ill. Rev. Stat. 1985, ch. 124, par. 109b). The thrust of plaintiff's argument on appeal recognizes that, because his suspension was for only 29 days, he does not come within the express terms of the foregoing rule and statute. Nevertheless, he maintains that, under the precedent of Wagner v. Kramer (1985), 108 Ill. 2d 413, 484 N.E.2d 1073, and Kropel v. Conlisk (1975), 60 Ill. 2d 17, 322 N.E.2d 793, due process requires that he be permitted to proceed before the Merit Commission. In those cases, the court held that persons receiving suspensions from work of 5 days and 30 days, respectively, were entitled to proceed before a civil service body statutorily stated to have jurisdiction only over suspensions in excess of 30 days, when those suspended had no other avenue of fair review of their suspensions. The court reasoned those bodies must be assumed to have jurisdiction of those lesser suspensions in order for the civil service statutes involved to meet the requirements of due process.

Plaintiff also maintains he is entitled to have administrative review and have some kind of a hearing on his suspension even if he had sufficient avenues of review other than before the Merit Board, because the Department did not follow those procedures.

We conclude plaintiff did have a sufficient avenue to obtain review of his suspension through the grievance procedure set forth in the rules (80 Ill. Adm. Code 420.310) (1985)). Accordingly, we are not compelled to draw the inference that the rules permit him to proceed before the Merit Commission.

In Kropel a city police officer had been suspended for 30 days at a time when no review of the suspension, either within the police department, by other administrative agencies or by the courts, was expressly stated by statute to be available, while a statute expressly provided for contest of suspensions longer than 30 days in length before a reviewing board. In Wagner, a deputy sheriff was suspended for five days after a hearing in regard to his alleged misconduct before a board of inquiry set up by the sheriff for whom the deputy worked. At that time, legislation expressly provided that the sheriff could impose a suspension longer than 30 days without first proving grounds for the suspension before a statutorily created sheriff's merit board. The Wagner court deemed the review available to the officer suspended for five days inadequate while distinguishing the situation there from that in McCoy v. Brown (1981), 100 Ill. App. 3d 988, 427 N.E.2d 619, decided by this court. In McCoy, a deputy sheriff receiving a five-day suspension, too short to enable him to seek review before the statutorily prescribed sheriff's department merit commission, was held to have been afforded sufficient review because of a right to be heard before a departmental review board created by the sheriff.

Defendant maintains that unlike in Kropel and Wagner, and as in McCoy, a sufficient review procedure existed in regard to plaintiff's suspensions through the Department's Personnel Rules. Section 420.295(c) of those rules stated in regard to the suspension of an employee for less than 30 days:

"Unless delay in the imposition of discipline will result in clear harm or damage to a department, the employee shall be informed in writing of the proposed suspension and the reasons therefore at least four (4) working days prior to the effective date of the proposed suspension and be provided with copies of pertinent documents on which the proposed suspension is based. The employee shall have two (2) working days after being informed of the proposed suspension within which to address to the department director or designee written rebuttal of the reasons given for the suspension. . . .

. . . Written notice of any suspension imposed with the reasons therefore must be served upon the employee by the Director of Personnel on or before the effective date of the suspension in person or by certified mail, return receipt requested, at the employee's last address appearing in the personnel file. Notice of such suspension imposed must also ...


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