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Ress v. Office of the State Comptroller

March 29, 2002

JOHN J. RESS, PLAINTIFF- APPELLANT,
v.
THE OFFICE OF THE STATE COMPTROLLER, AND THE OFFICE OF THE STATE COMPTROLLER'S MERIT COMMISSION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 99 L 50234, Honorable John K. Madden, Judge Presiding.

The opinion of the court was delivered by: Justice O'brien

UNPUBLISHED

Plaintiff, John J. Ress, appeals the order of the circuit court affirming the order of the office of the State Comptroller's Merit Commission (Commission) discharging him. On appeal, plaintiff argues: (1) the Commission failed to set forth specific facts supporting its decision to discharge plaintiff; (2) the Commission violated plaintiff's due process rights and engaged in impermissible ex parte consultations; and (3) the Commission's findings of fact were against the manifest weight of the evidence and its decision to discharge plaintiff was arbitrary and unreasonable. We reverse and remand to the Commission.

Plaintiff worked in the cemetery care and burial trust department of the office of the State Comptroller (the Comptroller) for over 20 years. During the last 10 years of his employment, plaintiff held the position of auditor V, in which he supervised field auditing staff, reviewed the work papers of field auditors, followed up on audit findings and analyzed the business practices of funeral homes and cemeteries.

On or about July 6, 1998, plaintiff received a memorandum from Tom Hughes, the assistant Comptroller, asking plaintiff to audit Warren Mortuary and forward his assessments and recommendations to Mr. Hughes. Plaintiff's written response did not satisfy Mr. Hughes, who subsequently issued a memorandum to Susan Vespa, the director of human resources, in order to initiate plaintiff's discharge. In her proposed discharge notification letter to plaintiff, Ms. Vespa outlined the course of progressive discipline given to plaintiff in the past, including a December 1996 written warning, several oral and written warnings in April 1997, a 5-day suspension in May 1997, a 10-day suspension in August 1997, and a written warning in March 1998. After plaintiff was ordered to leave his office, Mr. Hughes and Ms. Vespa discovered uncashed checks, improperly filed papers and an unopened subpoena in plaintiff's office.

On July 30, 1998, Ms. Vespa issued a letter of approved charges to plaintiff specifying the reasons for discharge as "[i]nadequate work performance in the audit of the Warren Mortuary" and "a failure to perform basic functions of [plaintiff's] position" as evidenced by the papers found in plaintiff's office. Noting plaintiff's past disciplinary record, Ms. Vespa concluded that "continued application of corrective discipline will not be effective." Plaintiff was discharged effective July 31, 1998. Plaintiff appealed the Comptroller's decision to the Commission and the Commission appointed a hearing officer who held hearings on the matter.

On January 22, 1998, the hearing officer issued his proposal for decision. The hearing officer found that the testimony and evidence did not support the charge that plaintiff performed inadequately in the audit of Warren Mortuary. However, the hearing officer found that there was evidence that plaintiff failed to properly process checks and file documents.

Although he allowed the Comptroller to present evidence concerning all of plaintiff's prior disciplinary actions, the hearing officer subsequently interpreted sections 500.295(a) and (b) of the Illinois Administrative Code (80 Ill. Adm. Code §§500.295(a),(b)(2001))as precluding consideration of any written warnings given more than 12 months before the action triggering the discharge. Thus, the hearing officer found that the Comptroller improperly considered the December 1996 and April 1997 written warnings in its decision to discharge plaintiff. Noting plaintiff's long employment history and that plaintiff was not the only employee to mishandle documents, the hearing officer recommended a 30-day suspension without pay in lieu of the discharge. The Comptroller filed an exception to the hearing officer's proposal for decision; however, plaintiff did not file an exception.

On February 10, 1999, the Commission held a public meeting where it heard oral argument from the Comptroller's attorney and from the Comptroller's deputy legal counsel. Neither plaintiff nor plaintiff's counsel attended the meeting, having sent a letter beforehand to the Commission stating they "object to any oral argument."

The Commission subsequently issued an order rejecting the hearing officer's proposal and affirming the Comptroller's decision to discharge plaintiff. In the order, the Commission stated "that the [h]earing [o]fficer erroneously considered the Warren Mortuary incident in isolation without regard to the two year history of progressive disciplinary measures imposed upon [plaintiff]." The Commission concluded that plaintiff was discharged for cause; specifically, for "repeated poor work performance[,] *** fail[ure] to complete assignments, improper conduct, and fail[ure] to follow department procedures."

Plaintiff filed a timely complaint for administrative review in the circuit court. After the circuit court denied him relief, plaintiff filed a motion for entry of findings of fact and/or propositions of law. Plaintiff then filed a motion for reconsideration which the circuit court denied. Plaintiff filed this timely appeal.

First, plaintiff contends the Commission failed to set forth specific facts supporting its decision to affirm plaintiff's discharge. On appeal, we review the decision of the administrative agency, not the decision of the circuit court. Swoope v. Retirement Board of the Policemen's Annuity & Benefit Fund, 323 Ill. App. 3d 526, 529 (2001). Contrary to plaintiff's contention, the Commission need not make a specific "finding on each evidentiary fact or claim; rather, it is sufficient that its findings are specific enough to permit an intelligent review of its decision." City of Chicago v. Illinois Commerce Comm'n, 281 Ill. App. 3d 617, 623-24 (1996). Here, the Commission clearly stated in its order "that it cannot accept the [h]earing [o]fficer's interpretation of the law on the issue of progressive discipline." The Commission interpreted section 500.295(b) as permitting the consideration of "the totality of discipline imposed," and after reviewing plaintiff's record, it determined that further discipline would not improve his performance. Therefore, the Commission affirmed the Comptroller's discharge of plaintiff for "repeated poor work performance[,]*** fail[ure] to complete assignments, improper conduct, and fail[ure] to follow department procedures." As such, the Commission's findings are sufficient to allow review of its decision.

Second, plaintiff contends that he was denied due process when the Commission failed to give him a proposal for decision and an opportunity to file his exceptions or present oral argument. Plaintiff has waived this argument on review, as he received the hearing officer's proposal for decision but did not file an exception, nor did he raise the issue in his first amended complaint before the circuit court. See Jetson Midwest Maintenance v. Industrial Comm'n, 296 Ill. App. 3d 314, 315-16 (1998). Even if plaintiff had not waived the issue, he cannot claim that he was denied notice and an opportunity to be heard when he received the hearing officer's proposal for decision, chose not to file an exception to the decision with the Commission, and then issued a letter that he objected to any further oral argument before the Commission even though section 10-45 of the Illinois Administrative Procedure Act (5 ILCS 100/10-45 (West 1998)) permits oral argument. See Tate v. American General Life & Accident Insurance Co., 274 Ill. App. 3d 769, 774 (1995) (petitioner's failure to follow the opportunities to present his evidence before the commission does not indicate a denial of due process).

Plaintiff also contends that the Commission violated his due process rights and engaged in impermissible ex parte consultations when it heard oral argument from the Comptroller. The Commission's hearing of the Comptroller's oral argument does not amount to improper ex parte communication when plaintiff chose not to appear at the hearing and he had proper notice of the hearing. See Village of Montgomery v. Illinois Commerce Comm'n, 249 Ill. App. 3d 484, 495 (1993) ("[t]he ex parte rules of the [Illinois Administrative] Procedure Act expressly proscribe direct and indirect communications between agency members, employees or hearing ...


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