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Ress v. Office of the State Comptroller

Case Date: 03/29/2002
Court: 1st District Appellate
Docket No: 1-00-3339 Rel

SIXTH DIVISION
March 29, 2002


No. 1-00-3339


JOHN J. RESS,

             Plaintiff-Appellant,

v.

THE OFFICE OF THE STATE COMPTROLLER,
and THE OFFICE OF THE STATE
COMPTROLLER'S MERIT COMMISSION,

             Defendants-Appellees.

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) 		Appeal from the
Circuit Court of
Cook County.

No. 99 L 50234



Honorable
John K. Madden,
Judge Presiding.


JUSTICE O'BRIEN delivered the opinion of the court:

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

Plaintiff worked in the cemetery care and burial trust department of theoffice of the State Comptroller (the Comptroller) for over 20 years. During thelast 10 years of his employment, plaintiff held the position of auditor V, inwhich he supervised field auditing staff, reviewed the work papers of fieldauditors, followed up on audit findings and analyzed the business practices offuneral 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 forwardhis assessments and recommendations to Mr. Hughes. Plaintiff's written responsedid not satisfy Mr. Hughes, who subsequently issued a memorandum to Susan Vespa,the director of human resources, in order to initiate plaintiff's discharge. Inher proposed discharge notification letter to plaintiff, Ms. Vespa outlined thecourse of progressive discipline given to plaintiff in the past, including aDecember 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 awritten warning in March 1998. After plaintiff was ordered to leave his office,Mr. Hughes and Ms. Vespa discovered uncashed checks, improperly filed papers andan unopened subpoena in plaintiff's office.

On July 30, 1998, Ms. Vespa issued a letter of approved charges to plaintiffspecifying the reasons for discharge as "[i]nadequate work performance inthe audit of the Warren Mortuary" and "a failure to perform basicfunctions of [plaintiff's] position" as evidenced by the papers found inplaintiff's office. Noting plaintiff's past disciplinary record, Ms. Vespaconcluded that "continued application of corrective discipline will not beeffective." Plaintiff was discharged effective July 31, 1998. Plaintiffappealed the Comptroller's decision to the Commission and the Commissionappointed 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 thecharge that plaintiff performed inadequately in the audit of Warren Mortuary.However, the hearing officer found that there was evidence that plaintiff failedto properly process checks and file documents.

Although he allowed the Comptroller to present evidence concerning all ofplaintiff's prior disciplinary actions, the hearing officer subsequentlyinterpreted sections 500.295(a) and (b) of the Illinois Administrative Code (80Ill. Adm. Code