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SIXTH DIVISION

October 6, 2000

No. 1-99-2746

JUSTICE BUCKLEY delivered the opinion of the court:

In September 1995, the Secretary of State (SOS) Department ofVehicles Services (DVS) suspended plaintiff Sandra Zaremba, withoutpay. In October 1995, plaintiff received an official notice ofdischarge and filed a written request for a hearing before theMerit Commission (Commission). The Commission determined that thedischarge was proper. In October 1998, plaintiff sought judicialreview in the circuit court. In June 1999, the circuit court rejected the Commission's decision, finding that it was against themanifest weight of the evidence and that it was arbitrary andcapricious. DVS appeals, arguing that (1) the Commission's decis-ion was not against the manifest weight of the evidence; and (2)sufficient cause existed to terminate plaintiff's employment. Weaffirm.

I. BACKGROUND

Plaintiff began working at DVS in February 1975. Sinceapproximately 1989, plaintiff worked as a "fleet cashier" or "feeclerk." As such, she processed bulk work submitted by professionalremitters on behalf of car dealers, currency exchanges, fleetowners, and similar processors of large quantities of vehicle titleand registration documents. She worked with three or four otherfleet cashiers at the Charles Chew facility in Chicago. Fleetcashiers do not serve the general public but, rather, work withseven or eight professional remitters. A remitter's duties includeretrieving title and license applications from currency exchangesand automobile dealerships and taking them to the Secretary ofState for processing by the fleet cashiers. Although remitters arenot DVS employees, they generally work closely with the same fleetcashiers all day every day. The record indicates that fleetcashiers do not interact with the general public. Additionally,their duties are not discretionary but, rather, administrative innature. Aside from the instant controversy, no evidence exists inthe record indicating that plaintiff has been a bad employee.

Michael and Sheila Davis (married) worked as remitters at theChew facility. In early 1995, SOS discovered that Michael wascheating the State by changing the dates on applications to takepersonal advantage of a fee change. The State prosecuted Michaelbut accepted a plea agreement. Pursuant to the agreement, Michaelwould assist SOS in investigating allegations that fleet workerswere accepting bribes. The record does not indicate whether thoseallegations came from Michael or another source. In any case, SOSassigned one of its police officers, Craig Moss, to work undercoverin the Chew facility. In March or April 1995, Michael brought Mossto the Chew facility and introduced him as Sheila's cousin. Michael told everyone that Moss was down on his luck and that hedecided to give Moss a job in his remitting business.

Moss spent six months conducting an investigation at the Chewfacility. In September 1995, based on Moss' investigation, DVSformally suspended plaintiff without pay, alleging that sheaccepted $175 from Moss (spread over eight separate occasionsbetween April 1995 and June 1995), knowing or reasonably believingsuch money was tendered as an inducement to perform her normal workduties. Specifically, DVS alleged that, by accepting money fromMoss, plaintiff violated several provisions of the Secretary ofState's Policy Manual. The pertinent provisions include:

"Employees and contractors of the Secretary of State in performance of their duties,execute a public trust which requires theiradherence to the highest possible standards ofethical conduct. Adherence to such conductwill promote the courteous, efficient, professional and lawful delivery of service to thecitizens of Illinois. Furthermore, the specific standards are to be followed by allemployees of the office. Violations of anystandards are grounds for disciplinary actionsand possible discharge." Policy Manual, ch.1, no. 1, Code of Ethical Conduct.

"Employees and contractors of the Secretary of State shall: (a) obey all laws,ordinances, rules and regulations *** and (d)not use their respective official positions orknowledge acquired through such officialpositions for personal gain." Policy Manual, art. 4, Lawfulness.

"The following specific acts of conductmay result in discipline up to and includingdischarge: *** (b) any conduct or actiontaken to use the employee's official positionfor personal gain or influence *** and (m)soliciting or accepting any gratuity, gift,present or reward or other thing of value inreturn for the performance of the employees'official duties, or as a condition for notperforming such duties." Policy Manual, art.5, Standards."

In October 1995, plaintiff received her official notice of dis-charge and filed a written request for a hearing before theCommission.

In June 1998, the Commission conducted a hearing on plaintiff's case. At the hearing, the administrative law judge (ALJ)granted DVS' motion to amend the charges against plaintiff to addthat (1) on May 2, 1995, plaintiff was offered money to make up fora cash shortage in her drawer and, while she did not accept themoney, she failed to report the incident as an attempted bribe; and(2) on May 26, 1995, plaintiff failed to report an attempted bribeof $40. Also at the hearing, the parties stipulated that the Stateindicted plaintiff for her alleged misconduct and that she wasacquitted.

Moss testified at the hearing and described plaintiff'sconduct on each of the eight occasions on which he gave her money. According to Moss, on April 18, 1995, plaintiff asked Michael Daviswhether he would buy lunch that day. Davis gave plaintiff $30 andtold her to "buy the girls lunch with it." Plaintiff testifieddifferently. She claimed that Moss offered her money that day butshe declined. She further stated:

"He said, 'Sandra, you did a really greatjob.' He had the money, and I looked at him. I grabbed him by the arm and took him toMichael. I said, 'Michael, [Moss] is lookingfor you. He was about to give me some moneyfor doing a good job. Would you tell him thatwe can't accept money for doing our jobs?'

I told him, '[Moss], you told us to eatpizza the other day, but we all bought thatpizza together. We are friends here. Michaeland I were friends for a long time, and we eata lot together sometimes.' I said, '[y]ou arewelcome to be a part of that if you want; butif you feel like paying me to do my job, thendon't offer me anything.' "

According to plaintiff, she did not really believe that Moss wastrying to bribe her. Rather, she merely thought he was beinggrateful. She also testified that she later told her supervisor,Darneather Murph-Heath, about the incident.

Moss also testified that, on April 25, 1995, he gave plaintiff$20 and told her that it was "to buy the cashier's breakfast." Hetold her to "split it up amongst the girls." Plaintiff testifiedthat she had already been taking orders for breakfast and collecting money when she asked Moss if he wanted anything. Moss told herthat he and Michael wanted to buy breakfast for everyone. Plaintiff further testified that she then returned the money shehad collected from the others, including that belonging toremitters.

Moss next testified that, on May 2, 1995, he gave plaintiff$10. She "just laughed and thanked [him]." However, plaintiffdenied this incident. Also, according to Moss, later that dayplaintiff had a cash shortage in her drawer and Moss offered her$20 to make up for the shortage. Plaintiff told Moss not to worryabout it and to go home. Plaintiff testified that she refused themoney because she did not know whether she had made an error or,alternatively, whether he had failed to pay for a motorcycle plate. She also stated that she thought it was probably her error andthat, in that case, she did not want to accept money for hermistake.

Moss also testified that, on May 16, 1995, Michael Davis askedplaintiff if she would work through lunch if Moss paid her. According to Moss, plaintiff

"[t]old us that we can't give her money andsay, '[h]ere, take this.' That would be abribe. And that we would just have to basically offer it. And I basically said,'[w]ell, what is the difference?' She saidthere is a lot of difference between ***'[h]ere, take this,' and, you know, '[d]o youwant this?'"

Moss also testified that, later that day, he gave plaintiff $20"[f]or doing our work." However, Moss did not actually tellplaintiff the reason for the gift. He simply told plaintiff to"[u]se it and buy the crew some drinks tonight" at a retirementparty.

Moss next testified that, on May 23, 1995, he gave plaintiff$20 for "processing the work." Again, Moss admitted that he didnot actually tell plaintiff the money was for doing the work but,rather, he simply told plaintiff that the money was for lunch. Plaintiff recalled this transaction and explained:

"I was the one that was going to pick [lunch]up and he would give [money] to me and said hewas paying for the chicken; and the rest ofthe month it was given to me by the othercashiers who paid for side dishes, lots ofdifferent side dishes. He would say that hewas paying for the chicken."

On those occasions, the remitters, as well as the cashiers, parti-cipated in the common meal.

Moss also testified that, on May 26, 1995, he gave plaintiff$25. He thanked plaintiff and "all the girls" stating, "[t]his isfor lunch. You and the girls get lunch." Moss also claimed that,later that day, he offered plaintiff another $40. He stated thatplaintiff declined, explaining that she had already accepted $25that day and that she split it with the other girls as he asked. However, plaintiff denied that Moss ever made the second offer.

According to Moss, on June 9, 1995, and again on June 23,1995, he offered plaintiff money and thanked her for her work. Sheaccepted the money and thanked him.

Plaintiff's testimony indicates that she believed thesetransactions arose from a social relationship. She stated that thefleet cashiers and remitters working at the Chew facility enjoyeda collegial atmosphere. They regularly bought each other lunch orbreakfast. Other times, the fleet cashiers and remitters pooledmoney or brought food from home to share as common meals. She alsostated that she often shared or offered to share food with hercoworkers, including Moss. She further testified that she had aparticularly close relationship with the Davis family. They oftenmet outside of work and socialized at weddings, parties, and ineach others' homes. Plaintiff also testified that socialrelationships among the fleet cashiers and remitters was sopervasive that one cashier held her wedding ceremony in the fleetroom. According to plaintiff, all the cashiers and remitterscontributed to purchase refreshments for the wedding celebration. In sum, the gist of plaintiff's testimony was that she believedMoss' offers were simply in accord with the close relationship sheand her coworkers enjoyed.

Tina Prose also testified at the hearing. She stated that sheis the director of the department of personnel for the Secretary ofState. Under the SOS' policy manual, if an employee uses his orher official position for personal gain, he or she may bedischarged. However, Prose admitted that the manual does notprohibit employees from accepting gifts from friends, relatives,neighbors or coworkers. The SOS policy manual similarly does notprohibit employees from sharing lunches or meals with remitters.

Plaintiff's supervisor, Darneather Murph-Heath, testified atthe criminal trial of plaintiff's coworker, Carissa Thomas. Atplaintiff's hearing before the Commission, the parties stipulatedto Murph-Heath's testimony. According to Murph-Heath, plaintiffhad no control over which remitter she worked with on a given day. Rather, Murph-Heath and her assistant assigned cashiers to aremitter. Also, Murph-Heath testified that remitters regularlycontributed, along with cashiers, to "a community lunch thing." She further testified that she sometimes participated in thesecommunity lunches and "put money in for that purpose." She alsowitnessed her supervisor, James Harris, participate in suchlunches.

Murph-Heath also testified that she was familiar with the SOSpolicy manual. She opined that accepting money from a remitter forthe purposes of buying shared food, or accepting money for lateruse at a party, did not constitute a violation. She further opinedthat lunch did not constitute a gift or gratuity within the meaningof the policy manual.

James Harris also testified at Carissa Thomas' criminal trial. Again, the parties in this case stipulated that Harris wouldprovide similar testimony before the Commission. Harris is themanager of the vehicle service department at the Chew facility. Hetestified that he observed remitters and cashiers eating mealstogether. He further testified that no remitter ever complainedabout having to buy meals for the cashiers. To his knowledge, thecashiers sometimes bought the remitters lunch, and conversely, theremitters sometimes bought the cashiers lunch. Harris admittedthat a remitter giving a cashier $20 to buy lunch could constitutea policy violation. However, Harris added, "its been a practice inthe past."

In August 1998, the ALJ issued a recommended decision. TheALJ found that plaintiff violated the SOS policy manual byaccepting money on eight dates in exchange for doing her job. TheALJ opined:

"[Plaintiff] may have convinced herself thatshe could accept the money if it was for lunchrather that for doing her job, but the hearingofficer is not convinced. The only reason shewas receiving 'lunch money' was that she wasprocessing Moss' work. Even if she actuallyused the money to buy lunch, she was using herposition for profit, since the only reason shewas given money to buy lunch was that she wasworking at the Secretary of State's officeprocessing remitters' work. She is notpermitted to receive money from the public forprocessing work, because it calls intoquestion the public trust and gives rise tothe appearance of impropriety even if noneactually exists. That is the purpose of thepolicy against gratuities."

The ALJ recommended that the Commission find DVS proved the chargesof plaintiff accepting gratuities on the eight dates specified inthe original charges. However, the ALJ further recommended thatthe Commission find that DVS failed to prove the two additionalcharges (i.e., that plaintiff accepted money as a bribe and that shefailed to report a bribe). The ALJ also concluded that plaintiff'sconduct constituted grounds for discharge. In September 1998, theCommission adopted the ALJ's recommendation.

In October 1998, plaintiff sought judicial review in thecircuit court. In June 1999, the circuit court rejected the Com-mission decision, finding that it was against the manifest weightof the evidence and that it was arbitrary and capricious. Thecourt found that DVS failed to demonstrate that plaintiff acceptedmoney knowing or believing that it was tendered as an inducement toperform her work or that it was a financial reward for performingsuch work. Rather, the court found, the evidence suggested thatsuch money was simply a friendly gift to be used for "grouplunches." The court further deemed discharge a harsh penalty andfound that "a more reasonable approach would have been a warningbefore discipline," particularly because plaintiff's supervisorsdid not believe she violated the policy manual. DVS and theCommission appeal from the circuit court's decision.

II. ANALYSIS

Our review of an administrative agency's decision to dischargean employee requires two steps. We must consider: (1) whether theagency's findings of fact are contrary to the manifest weight ofthe evidence; and (2) whether the findings of fact provide asufficient basis for discharge or, rather, whether the decision wasarbitrary, unreasonable, or unrelated to the requirements of theservice. Whipple v. Department of Corrections, 164 Ill. App. 3d902, 911-12 (1987); Sutton v. Civil Service Comm'n, 91 Ill. 2d 404,407 (1982).

DVS first argues that the Commission's decision was notagainst the manifest weight of the evidence. We disagree.

In examining an administrative agency's factual findings, areviewing court does not weigh the evidence or substitute itsjudgment for that of an administrative agency. See Abrahamson v.Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88(1992). Instead, a reviewing court is limited to ascertainingwhether such findings of fact are against the manifest weight ofthe evidence. Abrahamson, 153 Ill. 2d at 88. An administrativeagency's factual determinations are contrary to the manifest weightof evidence where the opposite conclusion is clearly evident. SeeAbrahamson, 153 Ill. 2d at 88.

The facts of this case do not support the Commission'sdecision. As the ALJ noted:

"Moss stated that his intent, for giving themoney, was to either get [plaintiff] to do hiswork or to get [plaintiff] to do his workfaster. It is clear that Moss did not pay[plaintiff] every day, and it is also clearthat he never told [plaintiff] that he wantedher to work faster. The evidence was alsoclear that she could not be induced to workfor him, because all of her work was assignedby a supervisor. There was no evidence that[plaintiff] ever slowed or speeded up her workflow in response to financial offers or forany other reason." (Emphasis added.)

The ALJ, however, concluded that the foregoing was notdispositive. As noted above, the ALJ opined that "the only reasonshe was receiving 'lunch money' was that she was processing Moss'work" and that such money constituted an improper gratuity inexchange for doing her job. The circuit court disagreed, finding:

"[I]t is clear that there was no proof that[plaintiff] ever personally kept the fundsknowing or believing that they were tenderedfor inducement to perform her work duties oras a financial reward for a job well done. There was only evidence that she used thefunds for lunches in keeping with a longstanding practice. The ALJ misses the point*** that the money was used for group luncheswhich all participated in--cashiers, otherpersonnel, [and] remitters."

We agree with the circuit court and conclude that theCommission's decision contradicts the manifest weight of theevidence. While Moss testified as to his subjective reason forgiving plaintiff money (e.g., "to do her work"), he nevercommunicated this reason to plaintiff. As Moss admitted, he neverexpressly offered plaintiff money to induce her to do her work. Cf. People v. Wright, 105 Ill. App. 3d 187, 190 (1982) (statingthat a defendant must accept or agree to accept money knowing thatit was offered with the intent to influence).

We also conclude that an insufficient basis exists to findthat plaintiff should have known the reason for Moss' gift. Plaintiff contends that she believed these transactions arose froma social relationship. The ALJ rejected plaintiff's argument onthis point, noting that a social relationship with Sheila Davis didnot constitute a social relationship with Moss. However, the ALJfailed to consider the evidence in its entirety. The recordindicates that plaintiff had a social relationship with the officeas a whole and that Moss contributed to that atmosphere. Therecord also indicates that Moss bought meals for other people inthe office, including remitters (who performed no work for him). Further, ample evidence exists in the record suggesting that thoseworking at the Chew facility regularly shared meals and boughtmeals for one another. This "treating" did not solely consist ofremitters buying lunch for the cashiers--it also consisted ofcashiers buying meals for remitters. We also note that some ofMoss' transactions with plaintiff occurred on days when plaintiffwas not even assigned to process his work. Therefore, we find thatthe Commission's decision contradicted the manifest weight of theevidence.

DVS also argues that the Commission properly determined thatsufficient cause for discharge existed. We disagree and find thatthe Commission's decision was arbitrary and capricious.

"Cause" is often defined as "some substantial shortcomingwhich renders continuance in his office or employment in some waydetrimental to the discipline and efficiency of the service andsomething which the law and a sound public opinion recognize as agood cause for his not longer occupying the place." Ehlers v.Jackson County Sheriff's Merit Comm'n, 183 Ill. 2d 83, 89 (1998).

The circuit court rejected DVS' argument, finding:

"[T]he record reflects the fact that neither[plaintiff], her supervisor Murph-Heath[,] norHarris, the chief Secretary of Stateadministrator at the facility, had actuallyread the entire [p]olicy [m]anual. The[c]ourt notes that the severity of[plaintiff's] discipline is extraordinarilyharsh given the state of affairs at the ChewFacility--where even her supervisors believedthat [plaintiff] was not doing anything inviolation of the [p]olicy [m]anual. Giventhat the *** [p]olicy [m]anual provides forprogressive disciplinary action, a morereasonable approach would have been a warningbefore discipline. The record is clear thatthe supervisors and cashiers at the Chew[f]acility were totally unaware that theiractions could be a violation of the [p]olicy[m]anual, yet [DVS] chose not to advise theChew [f]acility supervisors of their[misconception and] instead set up aninvestigation to ensnare personnel so as tojustify discharge. Given the myriad ways inwhich [DVS] could have dealt with thissituation, and based upon a review of therecord, the decision to terminate [plaintiff]for her participation in 'shared lunches' wasarbitrary and capricious."

Even if we were to find that plaintiff improperly acceptedMoss'offers of lunch money, we would agree with the trial court'sconclusion that termination constituted an unusually harsh measureunder these facts. This conclusion is particularly evident whenone considers that plaintiff's supervisors believed that she actedin accordance with the policy manual. In fact, Tina Prose, thedirector of the department of personnel for the Secretary of State,testified that the policy manual does not prohibit employees fromsharing lunches or accepting gifts from friends or coworkers. Therefore, we find that the Commission's decision was arbitrary andcapricious.

III. CONCLUSION

In summary, we find that the Commission's decision was againstthe manifest weight of the evidence. We further find that, underthese unusual facts, termination constituted an extraordinarilyharsh measure. We wish to stress, however, that we do not condoneplaintiff's actions or the office culture existing at the Chewfacility. Often, the line between proper and improper conduct isfine. Had we examined these issues under other circumstances, wemight have reached a different result.

Based on the foregoing, we affirm the circuit court'sdetermination.

Affirmed.

Campbell, P.J., and Gallagher, J., concur.