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08/18/89 Billy E. Johnson, v. the Department of

August 18, 1989





543 N.E.2d 847, 187 Ill. App. 3d 804, 135 Ill. Dec. 279 1989.IL.1274

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.


JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., and PINCHAM, J., concur.


Plaintiff sought administrative review of the decision of the Civil Service Commission (Commission) discharging him from employment with the Department of Corrections . The circuit court reversed the Commission's order of discharge and remanded the matter to the Commission for imposition of a penalty not to exceed suspension for 60 days. On remand, plaintiff was suspended for 60 days.

We affirm.

From March 4, 1984, until July 23, 1985, plaintiff, Billy E. Johnson, was employed by the DOC as a chief of security at the Stateville Correctional Center (Stateville), a certified civil service position under coverage of the Personnel Code (Ill. Rev. Stat. 1985, ch. 127, pars. 63b101 through 63b119c.1). On July 23, 1985, Johnson, at the request of the DOC, assumed the position of assistant warden at the Pontiac Correctional Center (Pontiac), a position exempt from coverage under the Personnel Code.

Johnson took a leave of absence in order to assume the position at Pontiac. We note, parenthetically, that such leaves to take exempt positions are authorized under section 303.155 of the Illinois Administrative Code (Administrative Code) (80 Ill. Adm. Code § 303.155 (1985)), the provisions of which implement, and are authorized by, the Personnel Code.

The Department of Central Management Services approved Johnson's request for leave on August 27, 1985. The request was applied retroactively to July 23, 1985. Johnson's leave was approved for one year and expired on July 23, 1986.

The record indicates Johnson sought to extend the leave of absence beyond its expiration as permitted under section 303.155 of the Administrative Code. In a hearing before the Commission following discharge, Johnson established that, in the spring of 1986, and prior to July 23, 1986, Kay McDougal, his secretary at Pontiac, prepared, at his instruction, a request for extension of the leave. In other testimony, Joann K. Simms, a personnel officer at Pontiac, corroborated that Johnson had sought an extension of his leave. Simms stated a clerk in the personnel office had asked her about the proper procedure respecting Johnson's request, and Simms had advised the clerk to forward the form to Stateville for approval by the warden there. Simms testified forwarding such requests was done as a courtesy to employees. Johnson further established that approximately one week following expiration of his leave on July 23, 1986, he spoke to Simms about his requested extension. Simms had indicated that approval would "take time."

During the period following the expiration of his leave of absence until his eventual discharge, Johnson continued to function as assistant warden at Pontiac.

On September 8, 1986, Johnson received a letter from James R. Berger, chief personnel officer of the DOC, informing Johnson that, because his leave of absence had expired on July 23, 1986, and was not "renewed," Johnson was subject to discharge pursuant to section 303.153 of the Administrative Code (80 Ill. Adm. Code § 303.153 (1985)). Section 303.153 authorizes discharge for the failure of an employee to return from leave within five days after its expiration date. Johnson subsequently received a formal notice of discharge which he appealed to the Commission.

The hearing before the Commission was held on October 15, 1986. The hearing officer determined the following undisputed facts were established by evidence presented: Johnson did not return to his position at Stateville within five days of expiration of his leave on July 23, 1986; Johnson's leave was never approved for extension; Johnson never checked with Stateville authorities to see if they had received his request for extension of his leave; no request for extension of the leave appeared in Johnson's personnel file; and, upon Johnson's termination as assistant warden at Pontiac, Johnson did not apply with the DOC for reinstatement as chief of security at Stateville as required by section 303.155 of the Administrative Code (80 Ill. Adm. Code 303.155 (1985)).

The hearing officer determined, however, that discharge was too severe a penalty under the facts of Johnson's case and recommended, instead, suspension for 60 days. Specifically, the hearing officer noted that Johnson had followed the same procedures in seeking an extension of the leave as he had in seeking leave initially and had relied on the courtesy of the Pontiac personnel department to properly forward his request for an extension of the leave. The hearing officer reasoned Johnson could not be reasonably held accountable for the request going "astray."

By order entered on December 17, 1986, the Commission adopted the hearing officer's findings of fact. However, the Commission rejected the recommended suspension and upheld Johnson's discharge. The Commission's decision stated discharge was warranted because Johnson's failure to diligently act on the extension ...

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