{ "id": 2627688, "name": "GARY LYLES, Plaintiff-Appellee, v. THE DEPARTMENT OF TRANSPORTATION et al., Defendants-Appellants", "name_abbreviation": "Lyles v. Department of Transportation", "decision_date": "1989-05-25", "docket_number": "No. 4\u201488\u20140674", "first_page": "901", "last_page": "914", "citations": [ { "type": "official", "cite": "183 Ill. App. 3d 901" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "480 N.E.2d 160", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "134 Ill. App. 3d 341", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3636937 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0341-01" ] }, { "cite": "515 N.E.2d 248", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "250" }, { "page": "251-52" } ], "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 644", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3466182 ], "weight": 3, "pin_cites": [ { "page": "648" }, { "page": "649-50" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0644-01" ] }, { "cite": "338 N.E.2d 912", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 772", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5577354 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0772-01" ] }, { "cite": "129 N.E.2d 257", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "7 Ill. App. 2d 164", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5143300 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-2d/7/0164-01" ] }, { "cite": "399 N.E.2d 256", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "pin_cites": [ { "page": "258" } ], "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 74", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3233589 ], "year": 1955, "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0074-01" ] }, { "cite": "412 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476013 ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0268-01" ] }, { "cite": "452 N.E.2d 387", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "390" } ], "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 736", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3518795 ], "year": 1980, "pin_cites": [ { "page": "739" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0736-01" ] }, { "cite": "431 N.E.2d 1330", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 954", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5483922 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0954-01" ] }, { "cite": "477 N.E.2d 1372", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1374" } ], "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 753", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3441974 ], "pin_cites": [ { "page": "754" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0753-01" ] }, { "cite": "497 N.E.2d 984", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "989" } ], "opinion_index": 0 }, { "cite": "113 Ill. 2d 173", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173273 ], "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0173-01" ] }, { "cite": "325 N.E.2d 383", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "26 Ill. App. 3d 687", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2789386 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0687-01" ] }, { "cite": "331 N.E.2d 178", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "pin_cites": [ { "page": "179" } ], "opinion_index": 0 }, { "cite": "29 Ill. App. 3d 815", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2500363 ], "year": 1975, "pin_cites": [ { "page": "817" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0815-01" ] }, { "cite": "408 N.E.2d 1079", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "pin_cites": [ { "page": "1083" } ], "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 1022", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3187953 ], "year": 1975, "pin_cites": [ { "page": "1025" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/1022-01" ] }, { "cite": "364 N.E.2d 362", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "363" } ], "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 367", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5635704 ], "year": 1980, "pin_cites": [ { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0367-01" ] }, { "cite": "383 N.E.2d 1201", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1206" } ], "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 381", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3320971 ], "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0381-01" ] }, { "cite": "465 N.E.2d 1052", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "1058" } ], "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 376", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3631935 ], "year": 1978, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0376-01" ] }, { "cite": "269 N.E.2d 713", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "47 Ill. 2d 469", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905836 ], "pin_cites": [ { "page": "471-72" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0469-01" ] }, { "cite": "494 N.E.2d 1257", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1259-60" } ], "opinion_index": 0 }, { "cite": "144 Ill. App. 3d 1105", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3498911 ], "pin_cites": [ { "page": "1108-09" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/1105-01" ] }, { "cite": "457 N.E.2d 512", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "515" } ], "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3594522 ], "pin_cites": [ { "page": "5" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0001-01" ] }, { "cite": "467 N.E.2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "637" } ], "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 999", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3597404 ], "year": 1983, "pin_cites": [ { "page": "1003" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0999-01" ] }, { "cite": "472 N.E.2d 434", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "437" } ], "opinion_index": 0 }, { "cite": "104 Ill. 2d 383", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146286 ], "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0383-01" ] }, { "cite": "426 N.E.2d 885", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "887" }, { "page": "887" }, { "page": "887" } ], "opinion_index": 0 }, { "cite": "85 Ill. 2d 547", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469434 ], "weight": 3, "pin_cites": [ { "page": "551" }, { "page": "551" }, { "page": "551-52" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0547-01" ] } ], "analysis": { "cardinality": 1216, "char_count": 29746, "ocr_confidence": 0.79, "pagerank": { "raw": 1.1320352542155416e-07, "percentile": 0.5760743193908217 }, "sha256": "dd6d5e369e813d5a4ec4cb10d33cab78a39af337f77793ce191686ba87a040f4", "simhash": "1:a22778c4bec32cc6", "word_count": 4754 }, "last_updated": "2023-07-14T17:15:47.196010+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GARY LYLES, Plaintiff-Appellee, v. THE DEPARTMENT OF TRANSPORTATION et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE SPITZ\ndelivered the opinion of the court:\nThe 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 \u2014 101 et seq.), and the circuit court of Jersey County reversed the Commission, reasoning:\n\u201cThe 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.\u201d\nOn appeal, the Commission and the Department seek reinstatement of the Commission\u2019s 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\u2019s discharge from employment.\nI\nThis 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\u2019s 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.\nThe 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.\nOn 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 \u2014 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.\nAt the conclusion of the employee interviews, DOT formulated written charges as to the various employees, listing the items of \u201cState equipment\u201d the employee \u201cadmitted to taking\u201d 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.\nPlaintiff 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.\nAn 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:\n\u201c60. The employees at the yards were also given a green book entitled, \u2018Personnel Policies and Procedures Manual\u2019 and a yellow book entitled \u2018Work Rules for Maintenance and Traffic Negotiated personnel.\u2019 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.\n***\n62. 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\u2019s consent were allowed to remove items placed in the trash pile.\u201d\nThe hearing officer found as follows:\n\u201c64. In general, it was the employees\u2019 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.\n65. 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.\n66. [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\u2019] residence and [Lyles] gave him Petitioner\u2019s Exhibit 1, which is a garden tractor battery.\n67. [Lyles] testified that on December 10, 1985 he gave Officer Barrett the battery introduced as Petitioner\u2019s 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\u2019s 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.\n68. 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\u2019] 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\u2019s Exhibit 1 which states that the battery was new in September of 1985. Accordingly, [Lyles] is found guilty of this charge.\n* * *\n82. [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\u2019s Exhibit [1] cannot be classified as junk or discarded property. [Lyles\u2019] story that this was a gift from his supervisor during the course of his workday is not believable. It is the Hearing Officer\u2019s finding that this offense constitutes cause for discharge and discharge is so ordered.\u201d\nRespondent 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 \u201csaid partially proven charges warrant the discharge of the Respondent Gary Lyles, from his position as a Highway Maintenance Lead Worker with the Department.\u201d Plaintiff sought administrative review, the circuit court reversed the Commission\u2019s order, and this appeal followed.\nII\nA court\u2019s scope of review of an administrative agency\u2019s decision on discharge is a two-step process. First, the court must determine if the agency\u2019s 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 \u2014 110.) The second step in the court\u2019s analysis is to determine whether the findings of fact provide a sufficient basis for the conclusion that \u201ccause\u201d for discharge exists. Department of Mental Health & Developmental Disabilities v. Civil Service Comm\u2019n (1981), 85 Ill. 2d 547, 551, 426 N.E.2d 885, 887 (DuFrenne, appellant) (hereinafter cited as DuFrenne).\nA\nOn appeal, the Commission and DOT first argue the Commission\u2019s determination that Lyles took State-owned property, a tractor battery, was not against the manifest weight of the evidence.\nThe agency\u2019s findings and conclusions on questions of fact will not be disturbed on review unless contrary to the manifest weight of the evidence. (Garland v. Department of Labor (1984), 104 Ill. 2d 383, 392, 472 N.E.2d 434, 437.) A finding is against the manifest weight of the evidence only if an opposite conclusion is \u201cclearly evident.\u201d (Burnham City Hospital v. Human Rights Comm\u2019n (1984), 126 Ill. App. 3d 999, 1003, 467 N.E.2d 635, 637; Thompson v. Board of Review (1983), 120 Ill. App. 3d 1, 5, 457 N.E.2d 512, 515 (and cases cited therein); Komarec v. Illinois Department of Labor (1986), 144 Ill. App. 3d 1105, 1108-09, 494 N.E.2d 1257, 1259-60.) The courts will not reweigh the evidence, but rather are limited to a determination of whether the final decision of the administrative agency is just and reasonable in light of the evidence presented. Neither the appellate court nor the circuit court may substitute its judgment for that of the administrative agency. (Davern v. Civil Service Comm\u2019n (1970), 47 Ill. 2d 469, 471-72, 269 N.E.2d 713, 714 (and cases cited therein).) If the issues merely involve conflicting testimony and the credibility of the witnesses, the agency\u2019s determination should be upheld. (Gregory v. Bernardi (1984), 125 Ill. App. 3d 376, 383, 465 N.E.2d 1052, 1058.) Similarly, conflicting evidence is not grounds for reversing the Commission\u2019s findings of fact. Fox v. Illinois Civil Service Comm\u2019n (1978), 66 Ill. App. 3d 381, 388, 383 N.E.2d 1201, 1206.\nIn the instant case, the circuit court found the hearing officer\u2019s finding that Lyles was guilty of theft was against the manifest weight of the evidence. As Lyles argued in his objections to the hearing officer\u2019s report, in his brief in support of his petition for administrative review, and now on appeal, since the State charged him with theft of State property it must prove theft.\nHe claims the evidence does not support the hearing officer\u2019s conclusion that theft was proved. In support of this argument, plaintiff looks, first, to the statutory definition of theft: \u201cA person commits theft when he knowingly: (a) obtains or exerts unauthorized control over property of the owner; *** and (1) Intends to deprive the owner permanently of the use or benefit of the property.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 16 \u2014 1(a)(1).) Second, he argues proof that one other than the accused either owned or has a superior possessory interest in the property allegedly stolen is an essential element of the offense of theft, relying on People v. Cowan (1977), 49 Ill. App. 3d 367, 368, 364 N.E.2d 362, 363; People v. Mick (1980), 86 Ill. App. 3d 1022, 1025, 408 N.E.2d 1079, 1083; People v. Sims (1975), 29 Ill. App. 3d 815, 817, 331 N.E.2d 178, 179; People v. Traylor (1975), 26 Ill. App. 3d 687, 325 N.E.2d 383 (abstract of opinion). He contends the State\u2019s ownership of the battery was not proved. Third, plaintiff points to the hearing officer\u2019s first finding: \u201cAt the outset of the case the State stipulated that it does not have receipts for any of the State\u2019s property allegedly misappropriated by [Lyles].\u201d Plaintiff contends purchase records for the property, if it was purchased by the State, must exist and, if so, would be within the control of the State of Illinois. From this, he argues the legal effect of the failure of the State to produce such evidence is to permit the inference that the evidence would be adverse to that party, citing Illinois Pattern Jury Instructions, Civil, No. 5.01, at 42 (2d ed. 1971).\nPlaintiff contends there was no evidence presented to indicate batteries of the type introduced against him were ever purchased or owned by the State, he testified he never saw this type of battery at the Jerseyville facility, and that there is no testimony in the record the State ever purchased batteries for lawn mowers. He maintains the only evidence supporting such a finding is the testimony of Officer Anders asserting plaintiff made admissions to him, and that this testimony is insufficient support, particularly where the hearing officer specifically found testimony from Anders on other material issues, i.e., purchasing violations and irregular use of time, insufficient to support those charges.\nPlaintiff argues no finding that the battery was State property can stand. We disagree. This was not a criminal proceeding. That the State did not present evidence documenting purchase of this particular battery does not preclude the fact finder from concluding it was State property which was misappropriated. While presentation of evidence substantiating the State\u2019s purchase of this battery or purchase and use of similar batteries would have made a clearer case, the Department may have considered Lyles\u2019 admissions sufficient.\nThe parties agree the proper standard of proof applicable to discipline and discharge proceedings, including those where conduct that might constitute a crime is charged, is the preponderance of the evidence standard. (Board of Education v. State Board of Education (1986), 113 Ill. 2d 173, 186, 497 N.E.2d 984, 989 (Kimbrough, appellee).) There had only to be evidence from which it could be concluded that it was \u201cmore likely than not\u201d the battery was State property. There was.\nEvidence was offered to support the hearing officer\u2019s findings with respect to the battery, as summarized by his decision at paragraph Nos. 66 through 68. Officer Barrett identified the battery he received from Lyles and marked as N \u2014 1, and produced at trial, and testified Lyles indicated this was \u201cthe battery\u201d that had been \u201cgiven to him by Lorsbach.\u201d Barrett testified, \u201cThat is the same battery that was transferred to me or given to me by Mr. Lyles on December 10, 1985, as the property of the State of Illinois.\u201d Determining the weight and credibility of the witnesses\u2019 testimony and the inferences to be drawn therefrom was a matter particularly within the purview of the hearing officer.\nAs to the objections of plaintiff\u2019s counsel, they were not interposed when Barrett was questioned about Lorsbach\u2019s statements about misuse of State property by Lyles, but when questioning went on to misuse of State time and purchasing irregularities, based on the hearsay nature of such statements. The hearing officer, at paragraph Nos. 11, 13, and 15 of his decision, specifically found in plaintiff\u2019s favor as to those matters.\nB\nAs to the second step of the analysis, the Commission and DOT argue Lyles\u2019 discharge was neither arbitrary nor capricious and should be upheld. Lyles argues (1) imposition of discharge was arbitrary, unreasonable, and unrelated to the requirements of DOT, and (2) the Commission failed to follow its own rules, which require progressive discipline.\nThe Commission\u2019s rules provide:\n\u201cUnless grounds clearly are present warranting immediate discharge or suspension pending decision on discharge, employees shall be subject to corrective discipline progressively utilizing counseling, warnings, and/or suspension, as facts and circumstances dictate, prior to discharge. If an employee\u2019s work or work-related conduct remains unacceptable after the application of progressive corrective discipline, such employee may be discharged in accordance with the appropriate rules below.\u201d (Emphasis added.) (80 Ill. Adm. Code \u00a7302.626, at 9478 (1985).)\nThe Commission contends theft of State property is grounds for immediate discharge.\nSection 11 of the Personnel Code prohibits discharge of employees except \u201cfor cause.\u201d (Ill. Rev. Stat. 1987, ch. 127, par. 63b111.) There is no statutory definition of cause. Cause has been judicially defined as \u201c \u2018some substantial shortcoming which renders the employee\u2019s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.\u2019 \u201d (DuFrenne, 85 Ill. 2d at 551, 426 N.E.2d at 887.) The question of whether there is sufficient cause for discharge is generally for the agency to determine. DuFrenne, 85 Ill. 2d at 551-52, 426 N.E.2d at 887; Department of Driver Services, Secretary of State v. Secretary of State Merit Comm\u2019n (1985), 132 Ill. App. 3d 753, 754, 477 N.E.2d 1372, 1374 (Smock, appellant).\nAttempts on the part of courts to tinker with punishments meted out by administrative agencies have met with very little success. DuFrenne is a premier example. Others are collected in Department of Mental Health & Developmental Disabilities v. Illinois Civil Service Comm\u2019n (1982), 103 Ill. App. 3d 954, 431 N.E.2d 1330 (Mars, appellant), Justice Stamos writing for the court. Obviously this stems from the deference which courts are required to pay to the findings and the actions of the agencies. In a broad sense, it is the civil counterpart of the deference which a reviewing court must pay to a trial court\u2019s criminal sentence. Secretary of State v. Kunz (1983), 116 Ill. App. 3d 736, 739, 452 N.E.2d 387, 390, citing People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.\nThe hearing officer detailed the sanctions imposed on other employees at paragraph No. 65 of his recommended decision. As pointed out by the Commission, the stipulation as to these employees fails to disclose the facts surrounding the charges, including whether the items taken were new or removed from the trash bin or in a yard cleanup. The absence of such facts precludes meaningful comparison of the sanctions imposed on these employees in relation to Lyles\u2019 discharge.\nLangston, who supervised both the Carrollton and Jerseyville facilities, received a 30-day suspension for permitting employees to take material from the trash. The parties also stipulated to the inclusion of testimony of certain employees, which included the following:\nEmployee Infractions Discipline\nDuane Barnes\n1 50-gallon drum of used oil, 3 batteries, some culvert metal, 1 old tire\n1 day without pay\nRalph Becker\n5 truck tires given to him during a cleanup of the yard, and 2 days off without leave\n3-day suspension\nJohn Collins\n1 battery, some metal, 2 55-gallon drums\ndischarged\nSteven Bret Schmieder\n1 log chain from trash pile, 1 shovel which was being discarded, and a battery\n3-day suspension\nWe note Collins\u2019 testimony about the battery he received:\n\u201cQ. While you were working for the Department of Transportation there at Jerseyville, did you ever have occasion to take a used battery?\nA. Yes, once.\nQ. And how did that occur?\nA. I had a battery go dead on my truck, and they had a battery they had taken out of a truck, at Jerseyville shed, and the mechanic seemed to think that it was, wasn\u2019t nothing wrong with the battery, but they wanted to replace it anyhow. So he said they had to have it back for a trade-in to get a new battery. They said as long as they had a battery, they could, there was no big deal. So I give him my old battery and I took theirs. As I told you earlier, come to find out, that battery wasn\u2019t no good either.\u201d\nCollins was also discharged. A number of other employees were discharged; the hearing officer named five who appealed to the Commission. On this record, we cannot find plaintiff\u2019s discharge arbitrary, capricious, or unrelated to the needs of the service.\nMoreover, as was stated in Jones v. Civil Service Comm\u2019n (1979), 80 Ill. App. 3d 74, 76, 399 N.E.2d 256, 258, sufficient cause for a plaintiff\u2019s discharge may exist regardless of whether other employees had received different treatment. See McCaffery v. Civil Service Board (1955), 7 Ill. App. 2d 164, 129 N.E.2d 257; Strobeck v. Illinois Civil Service Comm\u2019n (1979), 70 Ill. App. 3d 772, 338 N.E.2d 912.\nPlaintiff was a lead worker and obtained a new battery under circumstances which cannot be condoned. Public policy requires a high degree of integrity in government employees. An employee\u2019s misconduct may be detrimental to the agency itself and to the public as a whole inasmuch as, although the position may not be one of great notoriety, it is a position involving a degree of trust. Highway maintainers are not subject to constant supervision, which necessitates an additional degree of trust. In that trust lies a responsibility, and employees must be prevented from denigrating that trust and undermining public confidence. Clearly, the Department had a legitimate interest in dismissing those employees who take State property for their own personal use and benefit.\nPlaintiff cites Bell v. Civil Service Comm\u2019n (1987), 161 Ill. App. 3d 644, 515 N.E.2d 248, as supporting the need for progressive corrective discipline. In that appeal, the plaintiff challenged the sanction of discharge imposed by the Commission over the recommendation of the hearing officer that she be suspended for 30 days. There, although the employer department proved discrepancies existed in the employee\u2019s time reports in case files, used to record how investigators used their time, the hearing officer concluded the employer department had not proved the employee intentionally falsified the reports. The technical time report used was subsequently changed after the audit to incorporate areas of time spent working on a case that would not necessarily generate a report. The hearing officer recommended the discharge be reversed and plaintiff be given a 30-day suspension. The Commission, in its findings, however, merely adopted the hearing officer\u2019s decision \u201c \u2018to the extent not inconsistent with [its] comments,\u2019 \u201d but its comments only stated, \u201c \u2018it is our judgment that the charges were proved. Discharge is warranted because of the serious consequences of the failure to properly account. We, therefore, uphold discharge and order respondent discharged from her position ***.\u2019 \u201d (Bell, 161 Ill. App. 3d at 648, 515 N.E.2d at 250.) The specific findings of the hearing officer were never rejected. Although the circuit court affirmed the Commission, the appellate court reversed, stating:\n\u201cThe Commission did not set forth specific findings of fact or conclusions of law in support of their decision not to follow the hearing officer\u2019s recommendation that plaintiff be suspended for 30 days. There is, however, substantial evidence in the record to support the hearing officer\u2019s finding that the Department failed to prove that the plaintiff intentionally falsified documents as charged. The evidence also supports the hearing officer\u2019s more reasonable conclusion that the plaintiff misunderstood the instructions on allocating her time.\nSection 14 of the Illinois Administrative Procedure Act states in pertinent part:\n\u2018A final decision or order adverse to a party (other than the agency) in a contested case shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be [accompanied] by a concise and explicit statement of the underlying facts supporting the findings.\u2019 (Ill. Rev. Stat. 1983, ch. 127, par. 1014.)\n*** The Commission\u2019s findings were however, merely conclusory and insufficient. They therefore fail to meet the standards and requirements necessary to support the Commission\u2019s conclusion that discharge was warranted. Bodine v. Civil Service Comm\u2019n (1985), 134 Ill. App. 3d 341, 480 N.E.2d 160.\nSince the Commission failed to set forth reasonable support of their decision to discharge the plaintiff, their decision was arbitrary and unreasonable.\nThe Commission neither rejected nor made any finding inconsistent with the hearing officer\u2019s findings of facts. The Commission\u2019s \u2018findings\u2019 were not sufficiently specific to support their conclusion, which was contrary to the hearing officer\u2019s conclusion.\nConsidering the length of plaintiff\u2019s service as a State employee, her overall performance, and the failure of the Commission to meet the requirements of section 14 of the Code, we conclude that plaintiff\u2019s conduct was not such that the discipline and efficiency of the Department would be undermined if plaintiff was not discharged. Plaintiff\u2019s actions were not sufficiently substantial or related to her performance duties to call for the maximum sanction of discharge. Clearly, the evidence does not justify imposition of \u2018industrial capital punishment.\u2019 We therefore conclude that the evidence concerning the charges, which the hearing officer found unproven, was insufficient as a matter of law to support the ultimate sanction of discharge.\u201d (Bell, 161 Ill. App. 3d at 649-50, 515 N.E.2d at 251-52.)\nIt was in this context that the Bell court thereafter discussed the Commission\u2019s rules on progressive discipline. We find Bell inapposite to the case before us.\nThe Commission\u2019s assessment of the proper penalty here cannot be said to be arbitrary, unreasonable, or unrelated to the needs of the service.\nAccordingly, for the reason herein stated, the order of the circuit court of Jersey County is reversed and the order of the Commission is affirmed and reinstated.\nReversed; Commission\u2019s order affirmed and reinstated.\nMcCULLOUGH, P.J., and KNECHT, J., concur.", "type": "majority", "author": "JUSTICE SPITZ" } ], "attorneys": [ "Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellants.", "Tom Schanzle-Haskins, of Giffin, Winning, Cohen & Bodewes, P.C., of Springfield, for appellee." ], "corrections": "", "head_matter": "GARY LYLES, Plaintiff-Appellee, v. THE DEPARTMENT OF TRANSPORTATION et al., Defendants-Appellants.\nFourth District\nNo. 4\u201488\u20140674\nOpinion filed May 25, 1989.\nNeil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellants.\nTom Schanzle-Haskins, of Giffin, Winning, Cohen & Bodewes, P.C., of Springfield, for appellee." }, "file_name": "0901-01", "first_page_order": 923, "last_page_order": 936 }