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02/16/89 Donald L. Robinson, v. the Secretary of State Et

February 16, 1989

DONALD L. ROBINSON, PLAINTIFF-APPELLANT

v.

THE SECRETARY OF STATE ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

534 N.E.2d 1071, 179 Ill. App. 3d 761, 128 Ill. Dec. 626 1989.IL.193

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

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and SPITZ, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

Defendant Secretary of State of the State of Illinois (Secretary) laid off plaintiff Donald L. Robinson (Robinson), his certified employee holding the position title of executive IV, effective January 31, 1983. On February 8, 1983, Robinson filed an appeal from the layoff order with the Merit Commission (Commission) of the office of the Secretary of State (Ill. Rev. Stat. 1981, ch. 124, par. 108) pursuant to provisions of section 9a of the Secretary of State Merit Employment Code (Code) (Ill. Rev. Stat. 1981, ch. 124, par. 109a) and Commission rules. The Commission dismissed the appeal, holding it did not set forth the prima facie case required by section 9a. On administrative review, the circuit court of Sangamon County reversed the decision of the Commission and remanded the case to the Commission with directions to hear the matter on its merits.

Hearings were conducted before a Commission hearing officer. On June 30, 1987, the hearing officer filed with the Commission his findings and recommendation that Robinson's appeal be denied. Prior to the recommendation, the document concluded with the expression by the hearing officer of an opinion that Robinson had "failed to sustain his burden of proof that his layoff was a subterfuge for discharge as is required for relief" under Commission rules. On July 15, 1987, the Commission entered an order adopting the findings and recommended decision of the hearing officer and denying the appeal.

Robinson again took administrative review to the circuit court of Sangamon County. On February 5, 1988, that court affirmed, ruling that (1) the Commission's determination that subterfuge had not been proved was not contrary to the manifest weight of the evidence; and (2) plaintiff was not deprived of procedural due process. Robinson has appealed to this court. We reverse.

On appeal, Robinson maintains: (1) the purported lack of funds, upon which the Secretary seeks to justify the layoff, did not exist; (2) the layoff violated his seniority rights; (3) that violation was intentional; (4) the procedures used by officers involved in the layoff violated the classification plan of the Code; (5) the emergency legislation, upon which the Secretary's contention of lack of funds was partially based, does not authorize permanent layoff of employees; and (6) the layoff was made in bad faith and was a breach of discretion. The major thrust of Robinson's contentions is twofold. One is that the procedures involved here were such that when taken together, an employee can too easily be laid off and eventually terminated without proper consideration given to seniority and work performance. The other is that the layoff here was a subterfuge to get rid of Robinson.

We conclude that a fatal flaw existed in the procedures used here in regard to the basic requirement that the layoff be based upon a lack of funds. We need not consider the issue of whether the layoff was subterfuge. The evidence in that regard was circumstantial, and the Commission, whose hearing officer saw and heard the witnesses, determined that subterfuge was not proved. We could set aside that factual determination only if it was contrary to the manifest weight of the evidence. Garland v. Department of Labor (1984), 104 Ill. 2d 383, 472 N.E.2d 434.

In order to explain our decision, some of the evidence must be considered. Most of that evidence on the issue we deem to be dispositive was undisputed. After having worked in the governor's office and with the department of personnel for the Code department, Robinson began working in June 1977 for the then Secretary in that officer's department of personnel holding the title personnel executive I. His duties primarily involved labor and employee relations. In the spring of 1979, he became deputy director of that department and became responsible for the labor and employee relations program. His duties then included negotiations of contracts, grievance resolutions, and contract administration as well as other matters. He was involved in the implementation of the Code and the personnel rules for the Secretary. On July 16, 1981, Robinson's title was changed to executive IV, a lesser position than those previously held with the Secretary, and Robinson's salary was "frozen" at its existing rate. His duties were changed but he continued to perform some labor relations work together with that concerning staff development.

Robinson remained in the executive IV status until his layoff in January 1983. Then, as now, section 10b.13 of the Code authorized the department of personnel to provide by rule approved by the Commission for "layoffs by reason of lack of funds or work." (Ill. Rev. Stat. 1981, ch. 124, par. 110b.13.) Pursuant thereto, Rule 2-540 of the department of personnel rules was duly enacted, approved, and in existence at the time of Robinson's layoff. It stated:

"LAYOFFS AND REEMPLOYMENT

LAYOFF PROCEDURE: A department may request the layoff of an employee because of lack of funds, material change in duties or organization, or lack of work, or the abolition of a position for any of these reasons. Based on class, department, county or other designation, layoffs shall be within organizational units ...


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