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05/25/89 Gary Lyles, v. the Department of

May 25, 1989

GARY LYLES, PLAINTIFF-APPELLEE

v.

THE DEPARTMENT OF TRANSPORTATION ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

539 N.E.2d 833, 183 Ill. App. 3d 901, 132 Ill. Dec. 270 1989.IL.799

Appeal from the Circuit Court of Jersey County; the Hon. Thomas G. Roady, Jr., Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

The Civil Service Commission (Commission) upheld the discharge of Gary Lyles from his position as highway maintenance lead worker with the Department of Transportation of the State of Illinois (Department or DOT). Plaintiff brought this action in administrative review (Ill. Rev. Stat. 1987, ch. 110, par. 3-101 et seq.), and the circuit court of Jersey County reversed the Commission, reasoning:

"The finding of the examiner that [Lyles] was guilty of theft is against the manifest weight of the evidence. The Court further finds that the dismissal of [Lyles] from employment was contrary to the rules for discharge and discipline of the Civil Service Commission in effect at the time of the hearing."

On appeal, the Commission and the Department seek reinstatement of the Commission's decision, arguing the decision is supported by the evidence and the discharge was neither arbitrary nor capricious. We reverse and reinstate the order of the Commission approving plaintiff's discharge from employment. I

This case arose as a result of a criminal investigation late in 1985, involving operations in District Eight of DOT, which included its highway maintenance facilities in Jerseyville and Carrollton. The top administrator over the facilities was James Langston, the field technician in charge. Langston's office was at the Jerseyville facility, and he gave instructions to plaintiff Lyles, the Jerseyville lead worker, to Richard Woolsey, the lead worker for the Carrollton facility, and to George Lorsbach, the lead lead worker.

The general work of the employees at the facilities involved highway maintenance, including driving trucks, mowing along the side of the highway, cutting brush and trees, patching concrete and blacktop, and putting gravel on the edge of the roads.

On December 5 and 6, 1985, investigative interviews were conducted at the Jerseyville and Carrollton transportation yards by the Illinois State Police at the request of DOT. William Barrett, along with other State police officers and DOT administrators, conducted individual interviews with the employees to obtain information on property employees had obtained through their work for DOT. Thereafter, employees brought the items back to DOT or the State police went to their residences to obtain the property. As the items were brought back to the DOT facility, agents were responsible for receiving the evidence, labelling the items received -- alphabetically identified to the employee returning items and numbered sequentially as to items received. Barrett was thereafter in charge of taking recovered property to a rented storage area in Alton, Illinois, where it was stored under lock.

At the Conclusion of the employee interviews, DOT formulated written charges as to the various employees, listing the items of "State equipment" the employee "admitted to taking" and returned to law enforcement agents. On December 11, 1985, predisciplinary hearings were held at DOT District Eight headquarters and employees were confronted with charges. Employees were thereafter advised of DOT sanctions from suspension through discharge imposed as a result of the investigation.

Plaintiff was employed by the Department on February 20, 1975, as a highway maintenance equipment operator. He was thereafter promoted to the position of lead worker. Based on statements of plaintiff and other employees during the investigation, plaintiff was charged with having admitted theft involving State property, i.e., a used battery taken for his personal use, a new battery for his personal use, as well as four used tires and two 55-gallon drums. He was also charged with misuse of time and with purchasing violations involving State credit cards registered to off-road vehicles.

An administrative hearing was held December 7, 1987. The hearing officer thereafter found the evidence supported the charge that in August or September 1985, Lyles took a new battery for his personal use, but found the evidence insufficient to support other charges. He found the conduct warranted discharge. The hearing officer referred to the employment policies applicable to DOT employees:

"60. The employees at the yards were also given a green book entitled, 'Personnel Policies and Procedures Manual' and a yellow book entitled 'Work Rules for Maintenance and Traffic Negotiated personnel.' The employees are required to sign receipts for each book. Page 36 of the green book provides that employees may not consume State property or equipment for personal use nor are they permitted to remove from State premises any property belonging to the State without State authorization. The booklet also addresses disposal of moveable property in that such property which is to be sold or otherwise disposed of must be arranged for disposal through the district or bureau property control officer and the proceeds must be deposited with the State Treasurer. Moveable property, according to the rule, means all property of every kind including but not limited to scrap metal, soda cans and bottles but not including real property. On page 3 of the yellow booklet it provides that the unauthorized use of State property such as State-owned vehicles, equipment, credit cards or State vouchers, the use or consumption of State property for private purposes . . . will be grounds for disciplinary action in the form of discharge, suspension, or warning.

62. The Department showed that there were memoranda and work rules which detailed the procedures by which property either classified as found, surplus or trash is to be disposed of. However, there was a practice under Langston whereby men with Langston's consent were allowed to remove items placed in the trash pile."

The hearing officer found as follows:

"64. In general, it was the employees' explanation that the property that they took was either junk, trash, or rubbish with little or no value thrown away by the Department and was taken with the permission of their lead worker, George Lorsbach, or the maintenance technician, James Langston.

65. The State of Illinois sought indictments against a number of employees before a Grand Jury. However, all of the statements and admissions given by the individual employees were suppressed by the Judges assigned to the case on the evident basis that the employees were not given their Constitutional warnings and were subjected to unlawful self-incrimination. Therefore, none of the employees were tried on theft of property charges. The parties to the Commission hearing stipulated that three employees were questioned and disciplined. They were David Bray, Rick Hagen, and Wesley Foiles. Foiles received a 30-day suspension for taking six guardrails, one battery, one can of starter fluid, one 55-gallon barrel, three gallon containers of oil, and one spotlight. He was also guilty of unauthorized use of time. Rick Hagen was given a five-day suspension for taking two Goodyear tires, two Goodyear snow tires, and one-half day of unauthorized use of time. Bray was given a five-day suspension for taking two 55-gallon drums, one battery, and 31 junk regular tires. A number of other employees were discharged, five of whom appealed to the Illinois Civil Service Commission. The five who appealed included [Lyles], John Kraut, who was employed as the mechanic at the Jerseyville yard, George Lorsbach, the lead lead worker over the Jerseyville and Carrollton yards, Richard Woolsey, a lead worker at the Carrollton yard, and Clifton Cunningham, a highway maintainer.

66. [Lyles] was charged with the theft of a battery. Officer Anders testified that when he interviewed [Lyles] on December 5, 1985, [Lyles] told him that the battery that he took was new although he had asked for a used battery. According to [Lyles], Lorsbach who was the lead lead worker had given him a new battery. Lorsbach testified that he never told Officer Barrett that he gave a State battery to [Lyles]. Officer Barrett testified that Lorsbach told him during the investigatory interview that he gave a new battery to [Lyles] which was used by [Lyles] in his lawn mower. Barrett then went to [Lyles'] residence and [Lyles] gave him Petitioner's Exhibit 1, which is a garden tractor battery.

67. [Lyles] testified that on December 10, 1985 he gave Officer Barrett the battery introduced as Petitioner's Exhibit 1. [Lyles] claimed that he did not know where the battery came from. He had asked Lorsbach for a used battery. Either Hagen or Lorsbach then told him later at work that a battery has been placed in his truck. [Lyles] testified that he did not know if the battery was Lorsbach's battery or was from the State of Illinois. [Lyles] said that when he asked Lorsbach for a battery he was asking that Lorsbach personally give him one and not that he be given a battery from the State. [Lyles] testified that he was given the battery in August or September of 1985. He installed it in his lawn mower at his residence but it would not turn over the engine.

68. The evidence does support the charge that in August or September of 1985 [Lyles] had taken a new battery for his personal use from the Illinois Department of Transportation. There is [Lyles'] admission to Officer Anders on December 5, 1985 that the battery he received was a new battery. It is difficult to conclude that Lorsbach merely gave [Lyles] a gift of a new battery. There was no testimony of why Lorsbach should bestow such a gift upon [Lyles], nor did Lorsbach ever testify that he did make a gift of a new battery to [Lyles]. [Lyles] testified that he received the battery while at work. He had asked Lorsbach, who had access to State batteries, for a battery. It is simply not believable that [Lyles] could have been so naive as to not believe that the battery in question was a State-owned battery. The Conclusion that the battery was new is supported by the limited warranty label on Petitioner's Exhibit 1 which states that the battery was new in September of 1985. Accordingly, [Lyles] is found guilty of this charge.

82. [Lyles] did hold a responsible position of lead worker at the Jerseyville shed. [Lyles] has had no past discipline of record . . .. The issue is whether the taking of a new battery from a State garage by an employee without authorization for his own personal use is cause for discharge. The Hearing Officer cannot find that the Department has wrongfully discharged [Lyles] for this offense. The battery in evidence as Petitioner's Exhibit

Respondent was notified of the findings and recommended decision of the hearing officer and filed objections. Thereafter, the Commission adopted the decision of the hearing officer and certified it for enforcement, concluding the written charges had been partially proved and that "said partially proven charges warrant the discharge of the Respondent Gary Lyles, from his position as a Highway Maintenance Lead Worker with the Department." Plaintiff sought administrative review, the circuit court reversed the Commission's order, and this appeal followed. II

A court's scope of review of an administrative agency's decision on discharge is a two-step process. First, the court must determine if the agency's findings of fact are contrary to the manifest weight of the evidence. The findings and Conclusions of an administrative agency on questions of fact are held to be prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3-110.) The second step in the court's analysis is to determine whether the findings of fact provide a sufficient basis for the Conclusion that "cause" for discharge exists. Department of Mental Health & ...


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