{ "id": 1472386, "name": "JOHN J. RESS, Plaintiff-Appellant, v. THE OFFICE OF THE STATE COMPTROLLER et al., Defendants-Appellees", "name_abbreviation": "Ress v. Office of the State Comptroller", "decision_date": "2002-03-29", "docket_number": "No. 1\u201400\u20143339", "first_page": "136", "last_page": "144", "citations": [ { "type": "official", "cite": "329 Ill. App. 3d 136" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "321 Ill. App. 3d 115", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132498 ], "year": 2001, "pin_cites": [ { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0115-01" ] }, { "cite": "309 Ill. App. 3d 129", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349562 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "143" }, { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0129-01" ] }, { "cite": "253 Ill. App. 3d 801", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5421605 ], "year": 1993, "pin_cites": [ { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/0801-01" ] }, { "cite": "151 Ill. 2d 419", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3291708 ], "year": 1992, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0419-01" ] }, { "cite": "27 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5358977 ], "year": 1963, "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0357-01" ] }, { "cite": "96 Ill. 2d 101", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3115527 ], "year": 1983, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0101-01" ] }, { "cite": "302 Ill. App. 3d 682", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352863 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "692" }, { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/0682-01" ] }, { "cite": "314 Ill. App. 3d 35", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140055 ], "year": 2000, "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0035-01" ] }, { "cite": "131 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5570132 ], "year": 1989, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0172-01" ] }, { "cite": "249 Ill. App. 3d 484", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5409034 ], "year": 1993, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/249/0484-01" ] }, { "cite": "274 Ill. App. 3d 769", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291626 ], "year": 1995, "pin_cites": [ { "page": "774", "parenthetical": "petitioner's failure to follow the opportunities to present his evidence before the commission does not indicate a denial of due process" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0769-01" ] }, { "cite": "296 Ill. App. 3d 314", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222641 ], "year": 1998, "pin_cites": [ { "page": "315-16" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0314-01" ] }, { "cite": "281 Ill. App. 3d 617", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150220 ], "year": 1996, "pin_cites": [ { "page": "623-24" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0617-01" ] }, { "cite": "323 Ill. App. 3d 526", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171618 ], "year": 2001, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0526-01" ] } ], "analysis": { "cardinality": 754, "char_count": 17227, "ocr_confidence": 0.727, "pagerank": { "raw": 1.28067894090181e-07, "percentile": 0.6174097408767847 }, "sha256": "1e08adfea50f0f09ba608c6ca9a2f89b72859565c0042709fcd0ab649504ef10", "simhash": "1:7da7299591577e40", "word_count": 2640 }, "last_updated": "2023-07-14T18:00:16.668960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN J. RESS, Plaintiff-Appellant, v. THE OFFICE OF THE STATE COMPTROLLER et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE O\u2019BRIEN\ndelivered the opinion of the court:\nPlaintiff, John J. Ress, appeals the order of the circuit court affirming the order of the office of the State Comptroller\u2019s 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 plaintiffs due process rights and engaged in impermissible ex parte consultations; and (3) the Commission\u2019s 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.\nPlaintiff 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.\nOn 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. Plaintiffs written response did not satisfy Mr. Hughes, who subsequently issued a memorandum to Susan Vespa, the director of human resources, in order to initiate plaintiffs 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 plaintiffs office.\nOn July 30, 1998, Ms. Vespa issued a letter of approved charges to plaintiff specifying the reasons for discharge as \u201c[i]nadequate work performance in the audit of the Warren Mortuary\u201d and \u201ca failure to perform basic functions of [plaintiffs] position\u201d as evidenced by the papers found in plaintiffs office. Noting plaintiffs past disciplinary record, Ms. Vespa concluded that \u201ccontinued application of corrective discipline will not be effective.\u201d Plaintiff was discharged effective July 31, 1998. Plaintiff appealed the Comptroller\u2019s decision to the Commission and the Commission appointed a hearing officer who held hearings on the matter.\nOn 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.\nAlthough he allowed the Comptroller to present evidence concerning all of plaintiff\u2019s prior disciplinary actions, the hearing officer subsequently interpreted sections 500.295(a) and (b) of the Illinois Administrative Code (80 Ill. Adm. Code \u00a7\u00a7 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 plaintiffs 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\u2019s proposal for decision; however, plaintiff did not file an exception.\nOn February 10, 1999, the Commission held a public meeting where it heard oral argument from the Comptroller\u2019s attorney and from the Comptroller\u2019s deputy legal counsel. Neither plaintiff nor plaintiff\u2019s counsel attended the meeting, having sent a letter beforehand to the Commission stating they \u201cobject to any oral argument.\u201d\nThe Commission subsequently issued an order rejecting the hearing officer\u2019s proposal and affirming the Comptroller\u2019s decision to discharge plaintiff In the order, the Commission stated \u201cthat the [h]ear-ing [o]fficer erroneously considered the Warren Mortuary incident in isolation without regard to the two year history of progressive disciplinary measures imposed upon [plaintiff].\u201d The Commission concluded that plaintiff was discharged for cause; specifically, for \u201crepeated poor work performance^] *** fail[ure] to complete assignments, improper conduct, and fail[ure] to follow department procedures.\u201d\nPlaintiff 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.\nFirst, plaintiff contends the Commission failed to set forth specific facts supporting its decision to affirm plaintiffs 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\u2019s Annuity & Benefit Fund, 323 Ill. App. 3d 526, 529 (2001). Contrary to plaintiffs contention, the Commission need not make a specific \u201cfinding on each evidentiary fact or claim; rather, it is sufficient that its findings are specific enough to permit an intelligent review of its decision.\u201d City of Chicago v. Illinois Commerce Comm\u2019n, 281 Ill. App. 3d 617, 623-24 (1996). Here, the Commission clearly stated in its order \u201cthat it cannot accept the [h]earing [ojfficer\u2019s interpretation of the law on the issue of progressive discipline.\u201d The Commission interpreted section 500.295(b) as permitting the consideration of \u201cthe totality of discipline imposed,\u201d and after reviewing plaintiffs record, it determined that further discipline would not improve his performance. Therefore, the Commission affirmed the Comptroller\u2019s discharge of plaintiff for \u201crepeated poor work performance[,] *** fail[ure] to complete assignments, improper conduct, and fail[ure] to follow department procedures.\u201d As such, the Commission\u2019s findings are sufficient to allow review of its decision.\nSecond, 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\u2019s 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\u2019n, 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\u2019s 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 \u2014 45 of the Illinois Administrative Procedure Act (5 ILCS 100/10\u201445 (West 1998)) permits oral argument. See Tate v. American General Life & Accident Insurance Co., 274 Ill. App. 3d 769, 774 (1995) (petitioner\u2019s failure to follow the opportunities to present his evidence before the commission does not indicate a denial of due process).\nPlaintiff 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\u2019s hearing of the Comptroller\u2019s 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\u2019n, 249 Ill. App. 3d 484, 495 (1993) (\u201c[t]he ex parte rules of the [Illinois Administrative] Procedure Act expressly proscribe direct and indirect communications between agency members, employees or hearing examiners and any person or party, following notice of hearing in a contested case, except upon notice and opportunity for all parties to participate\u201d (emphasis added)).\nThird, plaintiff contends that the Commission\u2019s factual findings were against the manifest weight of the evidence. The reviewing court must sustain an agency\u2019s findings of fact unless they are against the manifest weight of the evidence. Zaderaka v. Illinois Human Rights Comm\u2019n, 131 Ill. 2d 172, 180 (1989). An agency\u2019s factual findings are against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Anderson v. Human Rights Comm\u2019n, 314 Ill. App. 3d 35, 49 (2000).\nHere, the hearing officer heard evidence that plaintiff was responsible for the improper filing of a \u201cvoluminous\u201d amount of paperwork in his office and for failing to process checks. The hearing officer also heard evidence concerning plaintiff\u2019s extensive prior disciplinary record and neither party disagreed that plaintiff had such a disciplinary record. The Commission concluded that plaintiff was discharged for \u201crepeated poor work performance[,] *** fail[ure] to complete assignments, improper conduct, and fail[ure] to follow department procedures.\u201d The evidence supports the Commission\u2019s findings; thus, the factual findings are not against the manifest weight of the evidence.\nFinally, plaintiff contends that the Commission\u2019s order discharging him was arbitrary and unreasonable. The reviewing court gives much deference to an administrative agency\u2019s finding of cause for discharge and it will sustain a discharge even if it considers another sanction more appropriate. County of Cook v. Illinois Local Labor Relations Board, 302 Ill. App. 3d 682, 692 (1998). \u201cCause\u201d is defined as \u201c \u2018 \u201csome substantial shortcoming which renders [the employee\u2019s] continuance in office or employment in some way detrimental to the discipline and efficiency of the service.\u201d \u2019 \u201d County of Cook, 302 Ill. App. 3d at 692, quoting Walsh v. Board of Fire & Police Commissioners, 96 Ill. 2d 101, 105 (1983), quoting Fantozzi v. Board of Fire & Police Commissioners, 27 Ill. 2d 357, 360 (1963). Upon review, the court will overturn an administrative agency\u2019s decision to discharge only if the determination is arbitrary or unreasonable. Launius v. Board of Fire & Police Commissioners, 151 Ill. 2d 419, 435 (1992).\nHere, the Commission interpreted sections 500.295(a) and (b) of the Illinois Administrative Code as permitting consideration of all of plaintiffs prior warnings when determining whether there was cause for discharge. The Administrative Code has the force and effect of law, and the rules of statutory construction apply when construing its provisions. Medcat Leasing Co. v. Whitley, 253 Ill. App. 3d 801, 803 (1993). The primary aim is to give effect to the drafters\u2019 intent. Nolan v. Hillard, 309 Ill. App. 3d 129, 143 (1999). The best indicator of this intent is the language of the rule, which is given its plain and ordinary meaning. Nolan, 309 Ill. App. 3d at 143. The reviewing court gives great deference to an agency\u2019s interpretation of its own rules, but we will not accord deference to an interpretation that is plainly erroneous- or contrary to the clear language of the provision. Marion Hospital Corp. v. Health Facilities Planning Board, 321 Ill. App. 3d 115, 127 (2001).\nSection 500.295(a) provides:\n\u201c(a) Progressive Corrective Discipline: Unless grounds clearly are present warranting immediate discharge or suspension pending decision on discharge, employees shall be subject to corrective discipline progressively applied utilizing counseling, warnings, and/or suspensions, as the 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 80 Ill. Adm. Code \u00a7 500.295(a) (2001).\nSection 500.295(b) provides:\n\u201c(b) Discipline \u2014 Written Warnings: A department head or designee may warn an employee either orally or in writing as a disciplinary measure. A copy of any written warning shall be placed in the employee\u2019s personnel file and it may be used in considering further discipline, demotion, withholding of salary increases, and other personnel transactions when such actions occur within twelve (12) months of the date of issuance of the written warning.\u201d 80 Ill. Adm. Code \u00a7 500.295(b) (2001).\nPursuant to section 500.295(a), the Comptroller applied progressive corrective disciplin\u00e9 to plaintiff, including giving him a written warning in December 1996, 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. Plaintiffs work-related conduct remained unacceptable after the application of the progressive corrective discipline, so the Comptroller discharged plaintiff effective July 31, 1998. In affirming the Comptroller, the Commission considered the December 1996 and April 1997 written warnings, which were issued more than 12 months prior to plaintiffs discharge. The Commission erred in considering those warnings. Under section 500.295(a), where an employee\u2019s work remains unacceptable after the application of progressive corrective discipline, he may only be discharged in accordance with the \u201cappropriate rules below.\u201d 80 Ill. Adm. Code \u00a7 500.295(a) (2001). In the present case, the appropriate rule is contained in section 500.295(b). Under section 500.295(b), a copy of a written warning may be used in considering further discipline (here, discharge) only when the written warning was issued within 12 months of the discharge. Therefore, we reverse and remand to the Commission to review plaintiffs discharge without considering the December 1996 and April 1997 written warnings.\nFor the foregoing reasons, we reverse and remand to the Commission for further proceedings consistent with this opinion.\nReversed and remanded.\nGALLAGHER, EJ., concurs.", "type": "majority", "author": "JUSTICE O\u2019BRIEN" }, { "text": "JUSTICE BUCKLEY,\ndissenting:\nI concur in the majority\u2019s reversal of the cause but write separately to dissent from its remanding for further proceedings.\nThe record shows that the specific charge that triggered the appellant\u2019s discharge was deficient work product on the Warren Mortuary assignment. As to that charge the hearing officer concluded that \u201cthere is no reasonable evidence in the record relating to the Warren Mortuary assignment\u201d and that \u201cthe Controller has failed to meet its burden of proving charge #1 by a preponderance of the evidence.\u201d\nA second charge was a failure to open a letter containing a subpoena requiring appellant to appear in a pending proceeding in Feoria, Illinois. It was undisputed at the hearing that he had not only opened the subpoena but actually testified in Peoria on behalf of the government pursuant to the subpoena.\nWhat can be described as a third charge was the alleged finding of documents, including uncashed checks, in the office he was required to vacate. As to this charge, the hearing officer found substantial and credible evidence that (1) many of the documents were moved into the appellant\u2019s office when two credenzas were placed there; (2) other employees of the Comptroller, including the Department\u2019s director and his secretary, were not only aware of the location of the documents but were, in fact, responsible for placing many of the documents into the files located in his office; and (3) the evidence of the uncashed checks showed that most of them were found in 1996 or 1997 when another employee left the office and that only two of them might be imputed to the appellant and that the problem was widespread.\nThe Commissioners\u2019 final order rejected the hearing officer\u2019s interpretation of the statute (which we today have upheld) and found that the discharge based upon \u201cthe totality of discipline imposed\u201d was appropriate.\nI submit that when the hearing officer found that the evidence of the three major grievances was insufficient, the only remaining evidence was that which we have found to have been improperly considered and the findings of the hearing officer were not against the manifest weight of the evidence and the decision to discharge was therefore arbitrary and unreasonable. What is there for the Comptroller to come up with upon remand?", "type": "dissent", "author": "JUSTICE BUCKLEY," } ], "attorneys": [ "Law Offices of Pengtian Ma, of Chicago (Pengtian Ma, of counsel), for appellant.", "James E. Ryan, Attorney General, of Chicago (Jerald S. Post, Assistant Attorney General, of counsel), and Altheimer & Gray, of Chicago (Iain D. Johnson, of counsel), for appellees." ], "corrections": "", "head_matter": "JOHN J. RESS, Plaintiff-Appellant, v. THE OFFICE OF THE STATE COMPTROLLER et al., Defendants-Appellees.\nFirst District (6th Division)\nNo. 1\u201400\u20143339\nOpinion filed March 29, 2002.\nRehearings denied May 1, 2002, and May 3, 2002.\nBUCKLEY, J., dissenting.\nLaw Offices of Pengtian Ma, of Chicago (Pengtian Ma, of counsel), for appellant.\nJames E. Ryan, Attorney General, of Chicago (Jerald S. Post, Assistant Attorney General, of counsel), and Altheimer & Gray, of Chicago (Iain D. Johnson, of counsel), for appellees." }, "file_name": "0136-01", "first_page_order": 154, "last_page_order": 162 }