Filed 11/1/10              NO. 4-09-0971

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE ILLINOIS DEPARTMENT OF JUVENILE     )    Appeal from
JUSTICE,                                )    Circuit Court of
           Plaintiff-Appellant,         )    Sangamon County
           v.                           )    No. 09MR434
THE ILLINOIS CIVIL SERVICE COMMISSION; )
CHRIS KOLKER, in His Official Capacity )
as Chairman of the Illinois Civil       )
Service Commission; RAYMOND W. EWELL,   )
BARBARA J. PETERSON, ARES G. DALIANIS, )
and BETTY BUKRABA, in Their Official    )
Capacities as Commissioners of the      )
Illinois Civil Service Commission; and )     Honorable
JOSIE DAY,                              )    Patrick W. Kelley,
           Defendants-Appellees.        )    Judge Presiding.
_________________________________________________________________

          JUSTICE STEIGMANN delivered the opinion of the court:

          In May 2009, an administrative law judge (ALJ) recom-

mended that codefendant, Josie Day, be discharged from her

employment based on Day's admission that she tape-recorded her

coworkers' conversations without their knowledge.   Two weeks

later, codefendants, the Illinois Civil Service Commission, Chris

Kolker, Raymond W. Ewell, Barbara J. Peterson, Ares G. Dalianis,

and Betty Bukraba (collectively, the Commission), adopted the

ALJ's factual findings but concluded that discharge of Day was

not warranted.   Instead the Commission determined that a 90-day

suspension constituted an appropriate sanction.

          In June 2009, plaintiff, the Illinois Department of

Juvenile Justice (Department), filed a complaint for administra-
tive review pursuant to section 3-108 of the Code of Civil

Procedure (Civil Code) (735 ILCS 5/3-108 (West 2008)), requesting

reversal of the Commission's decision to suspend Day instead of

terminating her employment.   Following a November 2009 hearing,

the circuit court affirmed the Commission's decision.

          The Department appeals, arguing that the Commission's

conclusion that cause to discharge Day did not exist was arbi-

trary and unreasonable.   We disagree and affirm.

                           I. BACKGROUND

        A. The Circumstances Surrounding the Department's
              Decision To Terminate Day's Employment

          In December 1986, Day began working for the Illinois

Department of Public Aid as an entry-level administrative clerk.

In early 1990, Day transferred to the Department of Corrections

(DOC), where she worked various clerical positions.    In November

1997, Day tendered her written resignation, citing her "medical

condition to smoke."   In particular, Day noted that because she

"found an ash tray on [her] desk with a cigarette butt and

numerous ashes in it," she "would no longer expose [herself] to

unnecessary smoke and stress."    (At her termination hearing in

this matter, Day testified that she resigned because of her

husband's death.)   In May 2004, DOC rehired Day as an Executive

Secretary II for the (1) school superintendent of its school

district and (2) chief of its medical services division.

          On July 1, 2006, the legislature transferred control of

                                 - 2 -
(1) juvenile offenders and (2) school district employees, includ-

ing Day, from DOC to the newly created Department.    Two weeks

before the transfer, the Department's acting director, who was

later appointed Department Director (hereinafter Director),

scheduled a two-day executive staff conference to coordinate the

transition.   Because the Director knew that Day was apprehensive

about the transition, he invited her to attend the conference to

meet the Department's executive staff and assuage her concerns.

Following the transition, Day worked at the Department's execu-

tive offices with three other employees.

          In spring 2007, Day complained to a union steward about

the disruptive noise level in her workplace, which she claimed

was caused by her coworkers' discussions concerning weekend

plans, birthdays, and "office chatter."    The union did not act on

Day's claim because it did not want to stifle social interaction

among employees.   In May 2007, Day again complained to the union

steward about the noise level.    The steward promptly scheduled a

meeting with the Department's acting deputy director for opera-

tions (deputy).    Following a June 2007 meeting, the deputy stated

that he would address Day's noise complaint.    Day later told the

union steward in casual conversation that the executive office

noise continued to be a problem.    In December 2007, Day again

complained to the union steward but stated that the "office

chatter" was now "personal."   The steward referred Day to the


                                 - 3 -
Department's equal-opportunity representative because he consid-

ered Day's claim similar to a hostile-work-environment complaint.

            In March 2008, Day contacted the union steward, re-

questing to file a grievance regarding "excessive noise level,"

which she claimed was dangerous to her health.      One week later,

Day, the union steward, and the deputy met to discuss Day's

concerns.    At the meeting, Day provided the deputy with a typed

log, chronicling, in explicit detail, her coworkers' conversa-

tions and activities over 11 business days (March 6, 2008,

through March 21, 2008).    After the meeting, the deputy read the

following entry from Day's log, dated March 18, 2008:

                 "1:55   Billie returned from lunch and

            she and Lisa entered the back door chattering

            and laughing loudly.    The atmosphere was

            [sic] now again very noisy.    I turned on the

            tape recorder to caught [sic] some of it."

            (Emphasis added.)

            Thereafter, the deputy (1) informed the Director about

Day's log entry and (2) scheduled another meeting with Day and

the union steward.    At the meeting, Day admitted that she had

tape-recorded her coworkers' conversations.      The deputy asked Day

to (1) file an incident report regarding the recording and (2)

provide him the tape and Department-issued tape recorder she used

to make the recordings.    Thereafter, the deputy gave the tape


                                   - 4 -
recording to the Director.   The Director later listened to the

recording and discovered that along with recording her coworkers'

conversations during March 2008, Day had also recorded about 60

to 90 minutes of the June 2006 transition conference.

          In July 2008, the Department referred Day to an

employee-review hearing for violating Department standard-of-

conduct rules regarding (1) employee actions that reflect poorly

on the Department and (2) compliance with federal, state, and

local laws.   After a hearing held later that month, the hearing

officer provided the Director his written report in which he (1)

found that Day's conduct was not criminal but, instead, employee

misconduct and (2) recommended a 60-day suspension.

          The Director rejected the hearing officer's suspension

recommendation, opting instead for suspension pending discharge.

The Director noted that the alleged rule violations had been

substantiated based, in part, on Day's admission that she tape-

recorded her coworkers without their knowledge.   In August 2008,

the State of Illinois Central Management Services (CMS) approved

the Department's discharge recommendation.   Day later timely

filed a written request for hearing pursuant to section 11 of the

Personnel Code (20 ILCS 415/11 (West 2008)).

               B. The Evidence Presented to the ALJ

          Over a seven-month period (September 2008 through March

2009), the following evidence, which included the aforementioned


                               - 5 -
background, was presented by the parties to the ALJ.

     1. The June 2006 Recording of the Transition Conference

            Day explained that prior to her transition to the

Department, her clerical duties with DOC included typing minutes

of school board and medical service meetings.     Day initially

tape-recorded the school board meetings but later transcribed

them by hand prior to typing them.      Day continued to tape-record

subsequent medical services meetings because the attendees

frequently used medical terms that she wanted to accurately

reflect in her typed minutes.    Day estimated that she had tape-

recorded six medical services meetings--five of which she re-

corded and transcribed at the request of DOC's chief of medical

services.

            On June 15, 2006, Day attended the transitional meet-

ing, which was already in progress.     Day entered, found a seat at

the conference table, and retrieved her planner and Department-

issued tape recorder from her purse.     Day placed her purse on the

floor, turned on the tape recorder, and placed it on the confer-

ence table.    Day then placed her planner on the conference table

and began taking notes.

            Day stated that because she did not know what her

duties would be within the new Department, she wanted to tran-

scribe the transitional information related to the school dis-

trict accurately.    Day later listened to, typed, and filed the


                                - 6 -
minutes of the conference based on the tape recording, which she

planned to disseminate to the new school district superintendent

when that position was filled.    (The record shows that during

Day's employment with the Department, the school district super-

intendent position remained vacant.)     Day surmised that because

DOC's school district superintendent and medical services chief

had previously given her permission to tape-record their respec-

tive meetings, she could also tape the transitional conference.

Day later turned off the tape recorder after she determined that

the information being conveyed at the conference no longer

pertained to the school district.

          Day admitted that at the June 2006 transitional confer-

ence (1) she did not (a) announce to the attendees that she would

be recording or (b) obtain permission to record the conference,

(2) no one asked her to make the recording, and (3) she did not

see anyone else recording the conference.

          The Director and one of Day's coworkers who attended

the transitional conference both noted that after Day entered the

conference, she placed her purse on the conference table.    Day

then sat back in her chair approximately two feet away from the

conference table, taking notes on a pad of paper that she placed

on her lap.   The Director and coworker both stated that (1) Day

did not ask for permission to tape the conference and (2) they

did not see a tape recorder on the conference room table.    The


                                 - 7 -
deputy testified that when he listened to the recording of the

conference, he did not hear the participants discuss any school-

board-district issues.

          The DOC medical services chief testified that Day was

her part-time clerical assistant for less than a year prior to

Day's transition to the Department.    During that time, the chief

asked Day to attend one quarterly medical services meeting for

the sole purpose of transcribing and preparing minutes of that

meeting for her review.   The chief (1) could not recall whether

Day had (a) tape-recorded that meeting or (b) attended other

quarterly meetings and (2) did not believe that Day took notes at

any other medical services meetings because she only disseminated

minutes Day prepared from that quarterly meeting.

          Another of Day's coworkers stated that after an exhaus-

tive search of Day's paper and computer files, she could not find

the June 2006 transition-conference minutes Day claimed to have

prepared and filed.   The coworker acknowledged that she was not

trained in computer forensics and had not previously performed a

computer search for electronic media.   In rebuttal, Day testified

that the Department had issued her a new computer in late 2007

but also admitted that the computer technicians had transferred

her old computer files to her new computer.

         2. The March 2008 Recording of Day's Coworkers

          After the transition, Day shared office space with


                               - 8 -
three other women in the Department's executive offices, where

they each had their own office cubicle.    Day described her work

environment as "stressful" and that it was "extremely difficult

to perform some of [her] functions" because the office was

"extremely loud" and her coworkers were "out of control."     Day

recounted that in November 2007, the office noise was so exces-

sive that she felt as if she was having a "panic attack."     Day

stated that she sought medical care for that particular incident

but acknowledged that she neither filed a Department report

documenting that event, nor mentioned it in her grievance.

          Day stated that the purpose of constructing the daily

log of her coworkers' activities was to document her work envi-

ronment, which she reiterated consisted of yelling, hollering,

and chatter.   Day admitted that she recorded her coworkers

without their knowledge but that (1) she did so because she

wanted to determine whether the tape recorder would capture the

office noise and (2) no one ever informed her that recording

personal conversations was prohibited.    Day estimated that she

taped her coworkers for a few minutes and that the recorder was

in plain view on her office desk.

          Two coworkers who worked regularly with Day, the union

steward, and several other employees who would routinely travel

through the executive offices testified that they did not notice

any excessive office noise.   Day's coworkers further described


                               - 9 -
the executive office as a standard office environment, noting

that the noise volume never rose to a level that interfered with

their respective job performances.     Another Department supervisor

who worked in another building testified that he would come to

the Department's executive offices "when he needed to get away

from the distractions."   The supervisor explained that the

executive offices were "significantly" quieter than his work

environment.

        C. The Administrative Law Judge's Recommendation

          In May 2009, the ALJ issued, in pertinent part, the

following written recommendations:

               "[T]he preponderance of the evidence

          indicates that on two different occasions

          (June 15, 2006 and March 18, 2008)[,] Day

          intentionally and secretly tape[-]recorded

          her co[]workers[] without their consent.    Day

          made the recordings intentionally and volun-

          tarily and she did so without permission

          and/or authorization from a superior.    ***

          Despite 15 years of service ***, positive

          performance evaluations, and no prior disci-

          plinary history, Day's violations of the

          eavesdropping statute not only offend basic

          notions of workplace decency[,] but [also]


                              - 10 -
          fall precisely into the definition of a 'sub-

          stantial shortcoming' rendering Day's contin-

          uance in her position 'detrimental to the

          discipline and efficiency of the service and

          which the law and sound public opinion recog-

          nize as good cause for the employee no longer

          holding the position.'   For these reasons,

          discharge is the appropriate discipline."

            D. The Commission's Findings and Decision

          Two weeks after the ALJ provided its recommendation,

the Commission issued the following decision:

               "The [Commission], having read the rec-

          ommended decision of the [ALJ] ***, hereby

          amend[s] and adopt[s] said decision and [cer-

          tifies] it to [CMS] for enforcement.

               FINDING[S]:    It is hereby determined

          that the written charges for discharge ap-

          proved by the director of [CMS] have been

          proven, but do not warrant discharge due to

          Day's 15 years of continuous service with no

          prior discipline.   Furthermore, there is no

          evidence that Day's action in tape recording

          her co-workers was premeditated or done with

          the requisite level of malicious intent.


                               - 11 -
                 DECISION: The [Commission] recommend[s]

            a 90-day suspension in lieu of discharge."

                   E. The Circuit Court's Judgment

            In June 2009, the Department filed a complaint for

administrative review pursuant to section 3-108 of the Civil Code

(735 ILCS 5/3-108 (West 2008)), seeking to reinstate the ALJ's

discharge determination.    Following a November 2009 hearing, the

circuit court affirmed the Commission's decision to suspend Day

for 90 days in lieu of discharge.

            This appeal followed.

               II. THE COMMISSION'S DISCHARGE DECISION

                      A. The Standard of Review

            We first note that the appellate court’s role is to

review the administrative conclusion, not the circuit court's

decision.    Metro Developers, LLC v. City of Chicago Department of

Revenue, 377 Ill. App. 3d 395, 397, 877 N.E.2d 785, 788 (2007).

"In discharge cases, '[t]he scope of review of an administrative

agency's decision regarding discharge is generally a two-step

process involving first, a manifest-weight standard, and second,

a determination of whether the findings of fact provide a suffi-

cient basis for the agency's conclusion that cause for discharge

does or does not exist.'"    Department of Human Services v.

Porter, 396 Ill. App. 3d 701, 718, 921 N.E.2d 367, 380 (2009),

quoting Brown v. Civil Service Comm'n, 133 Ill. App. 3d 35, 39,


                               - 12 -
478 N.E.2d 541, 544 (1985).

           Initially, an administrative agency's findings and

conclusions on questions of fact shall be held to be prima facie

true and correct.   735 ILCS 5/3-110 (West 2006); American Federa-

tion of State, County & Municipal Employees, Council 31 v.

Illinois State Labor Relations Board, State Panel, 216 Ill. 2d

569, 577, 839 N.E.2d 479, 485 (2005).   In examining an adminis-

trative agency's factual findings, this court will not weigh the

evidence or substitute its judgment for that of an administrative

agency.   City of Belvidere v. Illinois State Labor Relations

Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295, 302 (1998).    In-

stead, this court is limited to ascertaining whether such find-

ings of fact are against the manifest weight of the evidence.

City of Belvidere, 181 Ill. 2d at 204, 692 N.E.2d at 302.

           An administrative agency's discharge determination is

subject to judicial review and "'will not be reversed unless it

is arbitrary, unreasonable, or unrelated to the requirements of

service.' [Citation.]"   Porter, 396 Ill. App. 3d at 726, 921

N.E.2d at 386.   A reviewing court may reverse a sanction imposed

by an administrative agency when that agency, in opting for a

particular sanction, acted unreasonably.   Brown, 133 Ill. App. 3d

at 39, 478 N.E.2d at 544.

    B. The Department's Claim That the Commission's Decision
                 Was Arbitrary and Unreasonable

           The Department argues that the Commission's conclusion

                              - 13 -
that cause to discharge Day did not exist was arbitrary and

unreasonable.   Specifically, the Department contends that the

Commission's decision to reduce the ALJ's discharge recommenda-

tion to a 90-day suspension was "wholly conclusory" in that it

provided "little analysis why it chose to reduce Day's discipline

from discharge to a mere 90-day suspension."   We disagree.

         1. The Applicable Civil Service Commission Rule

          Section 1.170 of Title 80 of the Administrative Code--

pertaining to cause for discharge--provides as follows:

                "a) Cause for discharge consists of some

          substantial shortcoming which renders the

          employee's continuance in his position 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 the employee no longer holding the

          position.

                b) In determining the appropriate pen-

          alty for an offense of which the employee is

          found guilty, the Commission shall consider

          the employee's performance record and the

          employee's length of continuous service un-

          less the offense would warrant immediate

          discharge."   80 Ill. Adm. Code §1.170, as


                              - 14 -
          amended by 19 Ill. Reg. 12451, 12464-65 (eff.

          August 21, 1995).

      2. The Basis of the Department's Contention That the
          Commission's Decisions Was "Wholly Conclusory"

          In support of its contention that the Commission's

suspension decision was "wholly conclusory" and, thus, arbitrary

and unreasonable, the Department cites Austin v. Civil Service

Comm'n, 247 Ill. App. 3d 399, 617 N.E.2d 349 (1993), and Bell v.

Civil Service Comm'n, 161 Ill. App. 3d 644, 515 N.E.2d 248

(1987), for the proposition that when the Commission fails to (1)

reject the ALJ's findings of fact or (2) make findings of fact

inconsistent with those of the ALJ, its decision is arbitrary and

unreasonable.   However, under the facts of this case, Austin and

Bell do not offer the Department any support.   As we explain

later, this case is distinguishable.

                       a. The Bell Decision

          In Bell, 161 Ill. App. 3d at 645, 515 N.E.2d at 249, an

administrative agency sought to discharge Bell after an audit

revealed that Bell, who was a real-estate investigator, credited

time she spent on general administrative matters to specific

real-estate cases.   The evidence presented at a subsequent

hearing showed that (1) the agency had recently implemented new

time-reporting procedures, (2) Bell and other agency employees

received training on the new reporting procedures, (3) Bell's

supervisor (a) informed her that she should credit her adminis-

                              - 15 -
trative time to specific cases and (b) approved each of her time

sheets, and (4) several other agency employees had difficulties

with the new time-reporting procedures.    Bell, 161 Ill. App. 3d

at 646-47, 515 N.E.2d at 249-50.   Based on this evidence, the

hearing officer recommended (1) reversal of the agency's dis-

charge decision and (2) that Bell receive a 30-day suspension.

Bell, 161 Ill. App. 3d at 648, 515 N.E.2d at 250.

          The Commission adopted the hearing officer's recommen-

dation "'to the extent not inconsistent with their comments.'"

Bell, 161 Ill. App. 3d at 648, 515 N.E.2d at 250.   The Commission

then stated that Bell's discharge was "'warranted because of the

serious consequences of the failure to properly account.'"    Bell,

161 Ill. App. 3d at 648, 515 N.E.2d at 250.   After the circuit

court affirmed the Commission's decision, Bell appealed.     Bell,

161 Ill. App. 3d at 648, 515 N.E.2d at 251.

          The First District Appellate Court reversed, concluding

that the "Commission's findings were *** merely conclusory and

insufficient" because it failed to "set forth specific findings

of fact or conclusions of law in support of [its] decision not to

follow the hearing officer's recommendation."    Bell, 161 Ill.

App. 3d at 649-50, 515 N.E.2d at 251-52.

                     b. The Austin Decision

          In Austin, 247 Ill. App. 3d at 401, 617 N.E.2d at 351,

DOC charged Austin, a corrections officer, with negligence and


                             - 16 -
improper handling of a contraband incident.     DOC suspended Austin

pending discharge, which CMS later approved.     Austin, 247 Ill.

App. 3d at 401-02, 617 N.E.2d at 351.    After Austin filed a

request for a hearing, the hearing officer concluded that al-

though Austin's initial actions were not negligent, he used poor

judgment during the incident, which resulted in a dangerous

situation.     Austin, 247 Ill. App. 3d at 402, 617 N.E.2d at 351.

The hearing officer (1) recommended Austin's suspension for 90

days in addition to the period of suspension DOC imposed pending

his discharge and (2) found that Austin's actions did not warrant

discharge.     Austin, 247 Ill. App. 3d at 402, 617 N.E.2d at 351.

           As in Bell, the Commission adopted the hearing offi-

cer's decision "'to the extent not inconsistent with the comments

set forth.'"     Austin, 247 Ill. App. 3d at 402, 617 N.E.2d at 351-

52.   The Commission then rejected the hearing officer's "'analy-

sis of the incident,'" finding that the "'seriousness of the

incident,'" viewed in its totality, warranted Austin's discharge.

Austin, 247 Ill. App. 3d at 403, 617 N.E.2d at 352.    On appeal,

the circuit court reversed the Commission's sanction as too harsh

and remanded for the determination of an appropriate penalty.

Austin, 247 Ill. App. 3d at 403, 617 N.E.2d at 352.    On remand,

the Commission ordered Austin suspended from duty for 90 days in

addition to its original suspension-pending-discharge decision.

Austin, 247 Ill. App. 3d at 403, 617 N.E.2d at 352.


                                - 17 -
           On appeal from the circuit court's final order, the

First District Appellate Court concluded that the Commission's

initial discharge decision was conclusory and, thus, arbitrary

and unreasonable because it failed to support its findings that

the seriousness of the incident warranted Austin's discharge.

Austin, 247 Ill. App. 3d at 404-05, 617 N.E.2d at 353.   Specifi-

cally, the appellate court noted that "[a] reader of the commis-

sion's decision is left to divine which portion of the hearing

officer's decision it found to be inconsistent with its conclu-

sion."   Austin, 247 Ill. App. 3d at 404, 617 N.E.2d at 353.     The

court also noted that the Commission neither rejected nor made

any finding inconsistent with those of the hearing officer.

Austin, 247 Ill. App. 3d at 404, 617 N.E.2d at 353.

            3. The Commission's Decisions in This Case

           We first note that as framed by the Department's

argument, our review involves the Commission's determination to

impose a 90-day suspension in lieu of discharge because the

Commission determined that cause to discharge Day did not exist.

The question before us is not whether this court would have

imposed a harsher or more lenient penalty.   Instead, the question

before us is whether, in opting for a suspension in lieu of

discharge--in contradiction to the ALJ's recommendation--the

Commission substantiated its decision or whether its departure

was arbitrary, unreasonable, or unrelated to the requirements of


                              - 18 -
service.

           In this case, although the Commission's written deci-

sion (1) adopted the ALJ's decision and thus, by default, its

findings of fact and (2) agreed with the ALJ that Day had vio-

lated the Department's standards of conduct by recording her co-

workers, it also amended the ALJ's decision with regard to the

appropriate penalty that should be imposed based on Day's actions

and admissions.   Specifically, the Commission disagreed with the

ALJ's determination that Day's violation was a "substantial

shortcoming," which was "detrimental to the discipline and

efficiency" of the Department, requiring her immediate discharge

for cause pursuant to section 1.170(a) of Title 80 of the Admin-

istrative Code.   80 Ill. Adm. Code §1.170(a), as amended by 19

Ill. Reg. 12451, 12464 (eff. August 21, 1995).

           However, unlike Bell and Austin, the cases previously

discussed and upon which the Department relied in support of its

contention that the Commission's determination was "wholly

conclusory," the Commission here explained why its decision that

a 90-day suspension in lieu of discharge was the appropriate

level of discipline by specifically placing greater emphasis than

did the ALJ on Day's 15 years of service without any disciplinary

infractions.   See Davis v. City of Evanston, 257 Ill. App. 3d

549, 557, 629 N.E.2d 125, 131 (1993) (an employee's disciplinary

records has a bearing on the issue of cause for discharge); see


                              - 19 -
also Brown, 133 Ill. App. 3d at 41, 478 N.E.2d at 546 (employment

history has a bearing on the issue of cause for discharge).

          We note that in opting for suspension in lieu of

discharge, the Commission's consideration of Day's years of

service and disciplinary record was (1) mandated by section

1.170(b) of Title 80 of the Administrative Code (80 Ill. Adm.

Code §1.170(b), as amended by 19 Ill. Reg. 12451, 12465 (eff.

August 21, 1995)) and (2) supported by the record.   In addition,

without reaching the merits of the propriety of its decision

(because that issue is not before us), the Commission further

explained its departure from the ALJ's recommendation by conclud-

ing that even though Day had violated the Department's standards

of conduct when she recorded her coworkers' conversations--an

issue neither party disputes--the evidence presented did not show

that her conduct was "premeditated or done with the requisite

level of malicious intent."

          Therefore, because the Commission sufficiently substan-

tiated its determination to depart from the ALJ's discharge

recommendation, we reject the Department's contention that the

Commission's decision was "wholly conclusory."   Accordingly, we

conclude that the Commission's determination to suspend Day in

lieu of discharge was not arbitrary, unreasonable, or unrelated

to the requirements of service.

                          III. EPILOGUE


                              - 20 -
          In closing, we note that since its creation in 1905,

the Commission's role has changed from that of a central person-

nel agency responsible for examining and appointing applicants to

state government positions to its self-proclaimed "watchdog"

status, ensuring "that the employees and citizens of the State of

Illinois are afforded the rights and protections set forth in the

Personnel Code [(20 ILCS 415/1 through 25 (West 2008))]."

http://www.icsc.il.gov/History.htm (visited October 14, 2010)

(Illinois Civil Service Commission Web site).   Given the consti-

tutional and legal protections now available to all employees of

this state, we question whether public policy is furthered by the

Commission's continued expenditure of scarce state resources in

cases like this one.

          In Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547,

565, 96 S. Ct. 2673, 2689 (1976), and Branti v. Finkel, 445 U.S.

507, 519, 63 L. Ed. 2d 574, 584, 100 S Ct. 1287, 1295 (1980), the

United States Supreme Court held that the first amendment to the

United States Constitution (U.S. Const., amend. I) prohibits

governmental officials from discharging public employees solely

on the basis of political party affiliation.    In Rutan v. Repub-

lican Party of Illinois, 497 U.S. 62, 79, 111 L. Ed. 2d 52, 69,

110 S. Ct. 2729, 2739 (1990), the Supreme Court extended its

holding in Burns and Branti to "promotion, transfer, recall, and

hiring decisions based on party affiliation."


                             - 21 -
          Similarly, although Illinois courts have adhered to the

proposition that an employer may discharge an at-will employee

for any reason or for no reason, such an action is prohibited

when the discharge violates various antidiscrimination laws.    We

note that none of these laws nor the aforementioned Supreme Court

decisions attaching constitutional protections to employment

decisions existed 105 years ago when the General Assembly created

civil-service protections for state employees.

          Here, we earlier concluded--based on our standard of

review--that the Commission's determination to suspend Day in

contravention of the ALJ's recommendation was not arbitrary or

unreasonable.   Nonetheless, we cannot imagine a private-sector

employer continuing to employ Day based upon her misconduct,

which the record before us makes abundantly clear.   A private-

sector employer would not tolerate the inevitably toxic office

environment that her continued presence would create.

          Although we note the Commission's valid responsibili-

ties with regard to classification, merit, pay, and enforcement

of its other personnel rules, perhaps the time has come for the

General Assembly to reconsider whether the Commission should also

duplicate the constitutional and statutory protections all state

employees currently enjoy from being the victims of invidious

discrimination, particularly when viewed in light of the costs

imposed, as this case amply demonstrates.


                              - 22 -
                           IV. CONCLUSION

            For the reasons stated, we affirm the Commission's

judgment.

            Affirmed.

            KNECHT and McCULLOUGH, JJ., concur.




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