text:
    THE VILLAGE OF LELAND ex rel. GERARD BROUWER et al., Plaintiffs-Appellants, v. LELAND COMMUNITY SCHOOL DISTRICT NO. 1 et al., Defendants-Appellees (American Legion Post No. 570 et al., Defendants).
    Third District
    No. 3—88—0500
    Opinion filed May 2, 1989.
    Rehearing denied July 6, 1989.

      Gerard Brouwer, of Leland, for appellants.
    Gerald E. Dempsey, of Klein, Thorpe & Jenkins, Ltd., of Chicago (Scott F. Uhler, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Gerard and Henry Brouwer, filed suit against the defendants, Leland Community School District No. 1, John Scholfield (superintendent of schools of Leland Community School District No.l), American Legion Post No. 570, and four of its members. Plaintiffs purport to bring this action as taxpayers on behalf of the Village of Leland and the Leland Community School District No.l. The plaintiffs seek a variety of legal and equitable relief, including an accounting, a judgment for profits, imposition of a constructive trust, appointment of a receiver and an injunction.

The trial court granted defendants Leland Community Unit School District No.l and John Scholfield’s motion to dismiss pursuant to the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), the court finding, among other things, that plaintiffs do not have standing to bring this action.

Plaintiffs appeal from the trial court’s May 21 judgment, arguing the court erred in finding plaintiffs lacked standing to bring this cause of action. The remaining defendants are not involved in this appeal.

On May 19, 1982, the school board of Leland Community School District No. 1 voted to adopt the bylaws of the Ted Fisher Scholarship Fund (Fund) and a resolution placing $20,000 presented by American Legion Post No. 570 (the Post) under the control of the board of directors of the Fund. On that same date, the school board accepted a cash gift of $3,000 from the Post to present awards to a member or members of that year’s graduating class.

The purpose of the Ted Fisher Scholarship Fund is to annually award a sum of money to a Leland High School graduating senior attending college. The source of the funds used to establish the Fund and make the $3,000 cash gift was profits obtained by American Legion Post No. 570 through its operation of a tavern, the alleged prohibited sale by it of alcoholic liquors, and the operation of games of chance in the Village of Leland between 1970 and May 1982.

The bylaws of the Ted Fisher Scholarship Fund, which were written by John Scholfield, provide that the Fund be administered independently of the school district, the Fund directors making all decisions related to the Fund, with the district itself lacking any authority in administering or supervising the Fund. The monies comprising the Fund are invested at the discretion of the Fund’s board, and the signatory of the investment is the Fund’s chairman or vice-chairman. Five persons comprise the Fund’s board of directors, three being members of American Legion Post No. 570, one of these being John Scholfield, Fund board chairman.

The plaintiffs allege the school district’s actions in adopting the bylaws of the Ted Fisher Scholarship Fund, accepting money pursuant to the bylaws’ adoption and becoming involved in the administration of the scholarship fund are ultra vires as to the purposes of the school district. Plaintiffs also allege John Scholfield is personally liable for improperly paying out monies belonging to the Leland Community School District. For the reasons stated below, we agree with the trial court’s finding that plaintiffs lack standing to bring this action.

In their amended complaint, plaintiffs bring this action as “the plaintiff, Village of Leland ex rel. Gerard and Henry Brouwer.” The plaintiffs rely on their status as taxpayers to argue they possess standing to bring this cause of action.

The Illinois Municipal Code (Code) (Ill. Rev. Stat. 1987, ch. 24, par. 1—1—1 et seq.) provides standing for taxpayers to sue in certain circumstances. The Code provides as follows:

“A suit may be brought by any taxpayer, in the name and for the benefit of the municipality, against any person to recover any money or property belonging to the municipality, or for any money which may have been paid, expended, or released without authority of law.” Ill. Rev. Stat. 1987, ch. 24, par. 1—5—1.

The plaintiffs seek to somehow recover monies donated by the American Legion for the benefit of school children. These funds were derived from the alleged illegal sale of liquor. This action does not involve, as the statute requires, the recovery of “any money or property belonging to the municipality,” nor does it involve “any money which may have been paid, expended, or released” by the municipality. (See Ill. Rev. Stat. 1987, ch. 24, par. 1—5—1.) Section 1 — 5—1 is concerned with taxpayer monies that are collected and utilized by a municipality. The sale of liquor at the private American Legion Post No. 570 does not afford the plaintiffs the right to bring suit to recover monies held in and distributed through the Ted Fisher Scholarship Fund.

In addition, a simple allegation of taxpayer status is insufficient to assert a taxpayer suit. (Western Lion Limited v. City of Mattoon (1984), 123 Ill. App. 3d 381, 462 N.E.2d 891.) The taxpayer must further allege an illegal appropriation and that he or the taxpayers as a whole will suffer some financial injury as a result of the misappropriation. (Western Lion Limited v. City of Mattoon (1984), 123 Ill. App. 3d 381, 462 N.E.2d 891.) In this case neither financial injury to Leland taxpayers nor the illegal appropriation of public funds of the municipality is at issue.

Plaintiffs do allege that “the Village and its residents have been and are being defrauded and harmed” by the alleged illegal sale of liquor. A plaintiff has standing where he can show a real, legally protected interest in the subject matter of the lawsuit and “not merely that he will suffer in some indefinite way.” Goldstein v. Mitchell (1986), 144 Ill. App. 3d 474, 486, 494 N.E.2d 914.

Plaintiffs cannot rely upon their fraud allegation as a violation of a legally protected interest. It is an essential element of an allegation of fraud that the plaintiff show some “injury in fact to a legally recognized interest.” (Glazewski v. Coronet Insurance Co. (1985), 108 Ill. 2d 243, 254, 483 N.E.2d 1263.) The legally recognized interest protected by the common law of fraud is based upon actual injury in reliance on the defendant’s conduct. (Glazewski v. Coronet Insurance Co. (1985), 108 Ill. 2d 243, 483 N.E.2d 1263.) In the instant case the plaintiffs do not allege nor does the record indicate that they have suffered an actual injury in reliance upon the defendant’s conduct.

The plaintiffs do allege that a statutory violation has occurred. In Lynch v. Devine (1977), 45 Ill. App. 3d 743, 748, 359 N.E.2d 1137, this court enunciated the applicable rule of standing where a violation of statute is alleged:

“Where the suit alleges injury due to violation of a statute, the doctrine of standing requires that the plaintiff be one of the class designed to be protected by the statute, or for whose benefit the statute was enacted, and to whom a duty of compliance is owed. [Citations.] The object of the statute, the nature of the duty imposed by it, and the benefits resulting from its performance dictate what persons are entitled to sue thereunder.”

Plaintiffs contend that American Legion Post No. 570 improperly applied for and was erroneously granted a liquor license. However, the mere existence of a statutory regulatory procedure, here the Illinois Liquor Control Act of 1934 (Ill. Rev. Stat. 1987, ch. 43, par. 93.9 et seq.), does not create a private cause of action in all individuals for any violation of the act. The injury due to a violation of a statute must be demonstrated. (Cardinal Glass Co. v. Board of Education (1983), 113 Ill. App. 3d 442, 447 N.E.2d 546.) The alleged violation of a licensing act does not establish a direct, ascertainable, protectable interest of the plaintiffs that has been violated. In addition, the statute the defendants have allegedly violated is subject to the Administrative Review Act (Ill. Rev. Stat. 1987, ch. 110, par. 3—101 et seq.; see Ill. Rev. Stat. 1987, ch. 43, par. 163(c)), which provides individuals a complete mechanism for challenging liquor licensing violations, including judicial review.

In summary, this court agrees with the trial court’s finding that the plaintiffs lack standing both as taxpayers and as individual residents of the Village of Leland to bring a direct action in the circuit court for the alleged licensing violation under the Illinois Liquor Control Act.

For the foregoing reasons the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

WOMBACHER, P.J., and HEIPLE, J., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL D. GUDGEL, Defendant-Appellant.
    Fourth District
    No. 4—88—0675
    Opinion filed May 11, 1989.
    Modified on denial of rehearing June 30, 1989.

      J. Steven Beckett, of Beckett & Crewell, of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a jury trial, defendant was convicted of criminal trespass to land, in violation of section 21 — 3(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 3(a)). The circuit court of Champaign County ordered defendant to serve 30 days in the Champaign County Correctional Center. Defendant appeals his conviction. We affirm. The pertinent facts follow.

Defendant was initially charged with aggravated battery and battery, in addition to criminal trespass to land. The charges were based on an incident which occurred at Elmer’s Bar in Urbana. Defendant had gone to Elmer’s Bar on the evening of February 29, 1988, and was seated at a table with some friends. Defendant and one of the men seated with him, Bill Aiken, decided to leave and go to another bar. As they walked toward the door, Aiken bumped into Harvey Treat. Treat turned and punched Aiken. A shouting match ensued between Aiken and defendant on one side, and Treat and Frank Sowers on the other.

The bartender, David Lariviere, testified that he gave the four men a general notice that they should leave the bar by saying: “I think it’s about time everybody went home.” The four men did not leave, and their shouting match appeared to get more heated. The police were called and, upon their arrival, Lariviere asked them to make sure the four men left and did not return. Aiken and Treat left almost immediately, but Sowers and defendant were reluctant to leave. Although defendant and Sowers had initially been on opposite sides, they were apparently friends of many years. Both men had been drinking, and they appeared to focus their remaining feelings at the police officers.

Officer Lynn Callaghan testified that she responded to the call from Elmer’s Bar. When she arrived, she spoke with Lariviere. Lariviere told her to make sure defendant and Sowers left and did not return. Callaghan testified that she told the two men several times that the bartender had asked them to leave and that the two men should leave. After several minutes of discussion, the two men moved outside.

Defendant and Sowers moved no further than the parking lot. Callaghan testified that the officers, at least three by now, told the two men that they would have to leave the premises entirely, and that included the parking lot. Again, the reason was stated that the men had been asked to leave by the owners of the bar. Officer Allen Johnston testified at the trial and corroborated Callaghan’s testimony. Johnston added that he warned defendant several times that if defendant remained, he would be arrested for trespassing.

During this discussion outside in the parking lot, defendant and Sowers made an offer to leave by driving away in defendant’s car. The officer told the men they would have to find other means because they were too intoxicated to drive. At one point, defendant asked the officers to call a cab for them. The officers, in turn, asked the men to produce cab fare first. The men produced but $2, and the discussions continued.

Both officers testified that defendant and Sowers spoke privately for a few moments. Defendant then faced the officers and announced that he was going back to the bar to have a beer. Johnston intercepted defendant, and the two men ended up grappling with one another. The aggravated battery and battery charges stemmed from these latter moments. Defendant testified at his trial and denied that he was ever told by Lariviere or the police officers to leave the bar and remain away from the premises.

The sole issue raised by defendant on appeal is whether he received notice from an owner or occupant to leave the premises. Section 21 — 3(a) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 21— 3(a)) states, in pertinent part:

“Whoever *** remains upon the land or in a building, other than a residence, of another after receiving notice from the owner or occupant to depart, commits a Class C misdemeanor.”

Notice is defined in subsection (b):

“A person has received notice from the owner or occupant within the meaning of Subsection (a) if he has been notified personally, either orally or in writing ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 21-3(b).)

The State alleged in the indictment that defendant had received notice from Lariviere, the bartender at Elmer’s Bar, to depart from the “land.” Defendant argues the statements Lariviere made to the four men in the bar were too general to serve as personal notice to defendant within the meaning of subsection (b) of section 21.3. We agree.

Defendant further argues that the statements to defendant by the police officers cannot serve as notice under the statute. Defendant contends the statements are insufficient because the indictment did not include the fact that police officers had been used to convey the notice to depart. Here we disagree with defendant. While disputed by defendant, the State presented evidence that Lariviere told the police officers defendant and Sowers were unwanted and should be told to leave. Two officers testified that they repeatedly told defendant and Sowers to leave because the bartender had requested the departure of the two men. We find this is sufficient to serve as notice under the statute. (See People v. Thompson (1978), 56 Ill. App. 3d 557, 563, 372 N.E.2d 117, 121.) In situations such as occurred in the instant case, it would be prudent to summon police and have them remove belligerent patrons rather than attempting to remove them personally. This would be especially wise in situations involving drinking establishments, where alcohol can fuel already aroused emotions.

We further find the statements by the officers fulfilled the notice requirement in spite of the failure to specifically mention the officers’ intervention in the indictment. The better practice is to specifically describe the allegations of wrongdoing in the charging instrument. Here, however, defendant was not surprised or prejudiced by the failure. Defendant was not surprised by the officers’ testimony. The testimony was expected as defendant had to defend against the other charges of aggravated battery and battery stemming from his wrestling bout with Officer Johnston. Also, defendant was not prejudiced. His defense was that he was never told to leave during the entire incident by either the bartender or the police officers. In order to vitiate a trial, a variance between the allegations in a criminal complaint and the proof at trial must be material and be of such character as may mislead the accused in making his defense, or expose him to double jeopardy. People v. Davis (1980), 82 Ill. 2d 534, 539, 413 N.E.2d 413, 416.

Finally, defendant argues he showed an intention to leave when, during the discussions in the parking lot, he stated he and Sowers were going to drive away. We find defendant’s argument without merit in view of the officers’ testimony concerning the following: defendant had been repeatedly told for some 15 to 20 minutes that he and Sowers would have to leave the premises, including the parking lot; defendant never left the premises; and he was arrested after he asserted his intention to return to the bar for another drink, but was only prevented from doing so by the intervention of Officer Johnston. In light of this testimony, the jury could reasonably conclude defendant intended to and did remain on the premises following notice from the officers to depart.

For the reasons stated above, the order of the circuit court of Champaign County is affirmed.

Affirmed.

KNECHT and GREEN, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH JUSTICE GREEN,

text:
    PONTIAC TOWNSHIP HIGH SCHOOL DISTRICT NO. 90, Plaintiff-Appellant, v. THE REGIONAL BOARD OF SCHOOL TRUSTEES FOR LIVINGSTON COUNTY et al., Defendants-Appellees.
    Fourth District
    No. 4—88—0586
    Opinion filed June 1, 1989.

      GREEN. J., dissenting.
    Thomas R. Miller, of Miller, Tracy, Braun & Wilson, Ltd., of Monticello, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee Regional Board of School Trustees for Livingston County.
    Everett E. Nicholas, Jr., and Heidi A. Katz, both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellee Board of Education of Dwight Township High School.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Pontiac Township High School District No. 90 (Pontiac) appeals the circuit court’s affirmance of the decision of the Regional Board of School Trustees of Livingston County (Board). On January 4, 1988, the Board granted a petition filed pursuant to section 7 — 6 of the School Code (Code) (Ill. Rev. Stat. 1985, ch. 122, par. 7—6) and ordered the detachment of 7,354.85 acres from Pontiac for annexation to Dwight Township High School District No. 230 (Dwight). Pontiac contends the granting of the detachment was erroneous because no pupils reside in the detachment area as required by statute. Pontiac also argues that even if the existence of pupils in the detachment area is not required, the decision of the Board is against the manifest weight of the evidence. We agree and reverse.

Two separate petitions pursuant to section 7 — 6 of the Code were filed with the Board, seeking detachment of a total of 7,354.85 acres from Pontiac for annexation to Dwight. The first petition, filed on June 30, 1987, and referred to as petition No. 82, was signed by the 13 registered voters living on the 2,041.67 acres which were the subject of petition No. 82. No children resided on this property, which has an assessed valuation of $302,144. The second petition, filed on October 20, 1987, and referred to as petition No. 86, was signed by two-thirds of the registered voters living on the 5,313.18 acres subject to this petition. One school-aged child, a high school senior, resided on this property, which has an assessed valuation of $800,075.

As of July 1, 1987, Pontiac’s total assessed valuation was $103,054,753. This figure includes property detached from Odell Community High School District No. 160 (Odell) and annexed to Pontiac on July 1, 1987, and property detached from Saunemin Community Consolidated School District No. 438 (Saunemin) and annexed to Pontiac on July 1, 1987. After the Odell and Saunemin properties were annexed to Pontiac, five petitions, excluding Nos. 82 and 86, were filed before the Board to detach certain territory from Pontiac for annexation to Dwight (four petitions) and Prairie Central Community Unit School District No. 8 (one petition). Pontiac did not oppose these five petitions, which were later granted. The total assessed valuation of the property in the five petitions was $2,673,800. The corresponding loss of tax revenue to Pontiac for these five petitions was $42,638 annually.

The 1987 overall tax rate for Pontiac is 1.696%. Pontiac is levying the maximum rate in all operating funds except the transportation fund. The tax rate for Dwight is 1.9689% and it is levying the maximum authorized rate in all funds. The total potential loss in assessed valuation to Pontiac, including all seven petitions, is $3,776,019 or 3.67% of its total assessed valuation. The corresponding loss in tax revenue to Pontiac is $60,227 annually.

Five of the petitioners who signed the petitions concerned in this appeal testified before the Board. Their testimony can be summarized as follows:

(1) Each lived 41/2 to 10 miles distant from Dwight and from 12 to 22 miles distant from Pontiac.
(2) Two petitioners did business in Pontiac; the majority of the petitioners testifying shopped and banked in Dwight; two petitioners banked in Dwight and Odell; two petitioners attended church in Dwight.
(3) One petitioner had two preschool children, one of whom was attending a private school in Odell and he testified that both of his children would attend this school through the eighth grade.
(4) Three petitioners had lived on their property for at least 24 years and had never petitioned to annex their property to another school district.
(5) None had school-age children.

The superintendent for Dwight schools, Larry Copes, also testified before the Board. He stated the Pontiac and Dwight school districts were equal in terms of accreditation and recognition, though the American College Testing (ACT) scores for Dwight students were below State averages and Pontiac’s were at or slightly better than State averages. He reported there was only one student in the detachment area at the time of the hearing and she was a senior at Pontiac High School. He stated he supported the detachment because of the financial benefits to Dwight. He also testified regarding the courses Dwight schools offer to benefit the adult population in the attachment area. He stated that the possible future enrollment of pupils in Dwight schools provided an educational advantage for Dwight.

The superintendent for Pontiac, Ronald Yates, testified before the Board in opposition to the petitions. He stated that the lost revenue to Pontiac, if. the petitions Nos. 82 and 86 were granted, would be $17,589 annually.

The principal of Pontiac High School testified regarding the extracurricular offerings at Pontiac and student participation in these programs. The assistant principal for Pontiac High School testified regarding the curricula at Pontiac, including special education and vocational courses and the professional qualifications of Pontiac teachers.

After the hearings, the Board unanimously voted on January 4, 1988, to grant the petitions. Among its findings of fact, the Board concluded:

(1) The equalized assessed valuation (valuation) of Pontiac, excluding the previous five petitions, was $100,380,952.
(2) The valuation of Dwight, including the four previous petitions, was $45,251,500.
(3) The valuation of the area in petitions Nos. 82 and 86, totaling $1,102,219, would result in a 1.10% decrease to Pontiac’s valuation.
(4) The valuation of the area in petitions Nos. 82 and 86 would result in a 2.44% increase in Dwight’s valuation.
(5) There are no students which would be affected by any change in boundaries.
(6) Dwight would gain, in total revenue, an additional $21,701.59 per year if the petitions were granted.
(7) Pontiac would lose $17,589 in revenue per year if the petitions were granted.
(8) The granting of the petitions would have no significant effect on either district’s ability to meet statutory standards of recognition prescribed by the State Board of Education.
(9) Pontiac is not levying the maximum authorized tax rate in all funds, while Dwight is levying the maximum rate in all funds.
(10) The financial detriment to Pontiac from detachment is minimal and a financial benefit to Dwight from annexation is minimal.
(11) The benefit to Dwight outweighs the detriment to Pontiac and the surrounding community as a whole.

On January 20, 1988, Pontiac filed a complaint for administrative review in the circuit court for Livingston County. On July 14, 1988, the circuit court dismissed Pontiac’s complaint, finding the Board’s decision was supported by the evidence.

Pontiac urges that because section 7 — 6 of the Code mandates that “the educational welfare of the pupils” be considered by the Board, there must first be students residing in the detachment area. Since there were no students in the detachment area, the petitions should have been denied. Pontiac contends the Board’s decision is contrary to the requirements of section 7 — 6 because there was no evidence before the Board regarding the educational welfare of the students in the detachment area.

Dwight argues that the Board’s decision is supported by the evidence and conforms to the accepted standards governing these petitions under section 7 — 6.

Section 7 — 6 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 7—6) governs petitions for detachment. Section 7 — 6 provides that the regional board of school trustees to whom the petition is presented shall:

“[H]ear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the State Board of Education, and shall take into consideration the division of funds and assets which will result from the change of boundaries and shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils that such change in boundaries be granted.” Ill. Rev. Stat. 1985, ch. 122, par. 7 — 6.

The supreme court in Oakdale Community Consolidated School District No. 1 v. County Board of School Trustees (1957), 12 Ill. 2d 190, 194, 145 N.E.2d 736, 738, stated that section 4B — 4 (Ill. Rev. Stat. 1953, ch. 122, par. 4B — 4), predecessor to section 7 — 6, authorizes the Board to grant a petition:

“[0]nly if the division of funds and assets will not jeopardize the educational resources of existing districts and if the change will serve the best interests of the pupils in the entire area. School districts are not to be changed, therefore, solely by the shopping, banking or school preferences of those residing in particular segments thereof.”

The Oakdale court also stated:

“The welfare of the affected districts and their pupils as a whole must control rather than the wishes of a few, and such petitions [sic] granted only where the benefit derived by the annexing and affected areas clearly outweighs the detriment resulting to the losing district and the surrounding community as a whole.” Oakdale, 12 Ill. 2d at 193-94, 145 N.E .2d at 737.

In Board of Education of Golf School District No. 67 v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 433 N.E.2d 240, the supreme court again discussed the statutory considerations under section 7 — 6. In Golf, the supreme court embraced the “whole child” and “community of interest” factors utilized by the Board in Golf when it ascertained whether the benefit to the annexing and affected areas clearly outweighed the detriment to the losing district and the surrounding community as a whole.

The “whole child” concept recognizes that extracurricular participation in social, religious, and even commercial activities is important in a child’s development as a beneficial supplement to the child’s academic involvement. (Golf, 89 Ill. 2d at 397, 433 N.E.2d at 243.) The “community of interest” notion takes into consideration whether the petitioning area is identified with the school district and community to which annexation is requested. (Golf, 89 Ill. 2d at 397-98, 433 N.E.2d at 243.) The “community of interest” factor figures importantly with the “whole child” concept in determining the benefits and detriments to the school districts involved in a section 7 — 6 detachment petition.

Pontiac raises a threshold issue which has been previously addressed by the appellate court: Whether the existence of pupils in the detachment area is a prerequisite to consideration of a section 7 — 6 petition.

Pontiac relies on Board of Education of Springfield School District No. 186 v. Scott (1969), 105 Ill. App. 2d 192, 244 N.E.2d 821. In Scott, parcels of land in other school districts were annexed to a special charter district pursuant to section 7 — 2.1 of the School Code, which has since been repealed. (Ill. Rev. Stat. 1965, ch. 122, par. 7— 2.1.) The school district in which the parcels were located prior to the annexation appealed, contending the decision was not in the best inter: ests of the schools of the area and the educational welfare of the pupils therein. There were no students residing in the territory annexed. The Scott court held the annexation was erroneous and stated:

“On this record, we are of the opinion that the evidence is not sufficient to support the order *** [t]here being no pupils in the annexed territory, no testimony possibly could be produced, nor was any produced, to meet the consideration and test of the educational welfare of the pupils.
*** Each annexation or detachment must be examined in the light of the facts then existing, and for that purpose we believe it impermissible to speculate as to the effect of future and wholly contingent annexations or detachments.” Scott, 105 Ill. App. 2d at 201, 244 N.E.2d at 825-26.

Dwight contends that Pontiac’s position — “no children, no detachment” — should be rejected because under section 7 — 6 “educational welfare of pupils” includes the welfare of students who attend school in the respective districts but do not live in the detachment area. Dwight points out that all students in Dwight would benefit if the detachment order were affirmed because the district is “financially pinched.” Dwight further states that the Board has a duty to consider whether the detachment would foster the educational welfare of future students and cites to City National Bank v. Schott (1983), 113 Ill. App. 3d 388, 447 N.E.2d 478, and Rhinehart v. Board of Education of Bloomington School District No. 87 (1971), 132 Ill. App. 2d 1078, 271 N.E.2d 104, in support of this argument.

In both Schott and Rhinehart, a petition for disconnection was filed pursuant to section 7 — 2.6 of the School Code (see Ill. Rev. Stat. 1987, ch. 122, par. 7 — 2.6), which concerns special charter districts. In both cases, the appellate court found the petitions should be granted, despite the absence of school-age children, because the evidence before the Board in these cases did address the educational welfare of future children whose presence in the area was immediately foreseeable. The court in Rhinehart also stated:

“Nothing suggests a statutory intent that the single fact that there were no pupils in a territory would preclude a showing of the benefits and detriments to an immediately potential student population.” (Emphasis added.) Rhinehart, 132 Ill. App. 2d at 1083, 271 N.E.2d at 108.

The Board cites three other cases upholding detachment where no children were present in the area. In Granfield v. Regional Board of School Trustees (1982), 108 Ill. App. 3d 703, 439 N.E.2d 497, Zejmowicz v. County Board of School Trustees (1971), 133 Ill. App. 2d 735, 272 N.E.2d 783, and Board of Education, Troy Consolidated School District No. 30 C v. Will County Board of School Trustees (1971), 132 Ill. App. 2d 947, 271 N.E.2d 87, the courts found detachment was proper.

In Granfield and Zejmowicz, there was evidence before the Board concerning the educational programs of the school districts involved as well as evidence of the identification of the detachment area with the annexing district. Thus, detachment was proper. The Troy case did not involve an issue concerning educational welfare of students and, thus, that case provides no authority for Dwight’s or the Board’s position.

After reviewing the cases cited by the parties, we conclude that the mere lack of pupils in a detachment area is not fatal to a petition pursuant to section 7 — 6. In those cases where no children were residing in the detachment areas, some evidence was presented to the Board so that it could determine the educational welfare of present or immediately foreseeable pupils. Therefore, the detachment was proper. While we find the existence of pupils in the area is not required under the statute, in the case before us, the Board received no evidence regarding the educational welfare of pupils. For this reason, we must reverse the order of the Board.

We recognize the Board is the fact finder in those cases brought pursuant to section 7 — 6 and its determinations and decisions will not be set aside on administrative review unless they are shown to be contrary to the manifest weight of the evidence. (Golf 89 Ill. 2d at 396, 433 N.E.2d at 242.) As stated by the supreme court in School Directors of School District No. 82 v. Wolever (1962), 26 Ill. 2d 264, 268, 186 N.E.2d 281, 283:

“When the entire record indicates *** that the board has considered the applicable statutory standards and is supported in its conclusion by substantial evidence, its determination must be affirmed.”

Pontiac urges the Board’s decision of January 4, 1988, to grant the petitions was primarily based on finding No. 16:

“That the detachment area residents strongly identify with the Village of Dwight, Livingston County, Illinois, and Dwight Township High School District No. 203, *** and that the residents favor detachment because of physical proximity which causes them to naturally identify with and gravitate to the Dwight community, notwithstanding the fact that there will be an increased tax rate.”

Pontiac argues that this finding evidences a consideration of the “community of interests” factor as set forth in Golf but ignores the “whole child” factor, which is so closely intertwined. Pontiac cites to two recent cases, Fixmer v. Regional Board of School Trustees (1986), 146 Ill. App. 3d 660, 497 N.E.2d 152, and Dresner v. Regional Board of School Trustees (1986), 150 Ill. App. 3d 765, 501 N.E.2d 983, where the court affirmed the Board’s denial of a detachment petition because there was no evidence regarding the educational welfare of students.

We find Fixmer and Dresner persuasive authority for the case before us. In Fixmer, the evidence of educational welfare was found to be conflicting at best, and in Dresner, there was virtually no evidence regarding the welfare of the children but only evidence of the desires of the adults involved. In affirming the Board’s denial of the petition, the Dresner court stated:

“Although the wishes or conveniences of petitioning parents and their children are to be considered, more than the personal preference of petitioners must be shown to warrant a change in district boundaries.” Dresner, 150 Ill. App. 3d at 779, 501 N.E.2d at 993, citing Golf, 89 Ill. 2d at 400, 433 N.E.2d at 244.

In the case before us, we conclude that the entire evidence before the Board concerned the “community of interests” of the petitioners, who have no school-age children. One petitioner, Earl Blair, testified he lives closer to Dwight and spends most of his time there. He statéd that he hoped one day his grandchildren will live near him and if so, it would be closer for them to go to Dwight schools. Another petitioner, Earl Hoegger, also testified he lives closer to Dwight and shops and banks in Dwight. Similar testimony was received from petitioners Howard Verdun, Jerry Legner, and Mrs. Theodore Hubert.

The Board contends that it could have reasonably considered the interests of the two preschool children residing in the area were better served if they could eventually go to a high school closer to their home and participate in extracurricular activities. While the Board may be correct, the fact remains that the Board’s own findings establish that it did not consider these two preschoolers. Significantly, one of the Board’s findings was that no children would be affected by the change in boundaries.

Dwight argues that the annexation to Dwight promotes the safety of future pupils and points to the two findings of the circuit court on review:

“In predominantly rural counties such as Livingston County, transportation to and from schools, particularly in times of inclement weather is a significant factor to be considered by the Regional Board. Although there are presently no children attending either the Pontiac or Dwight High Schools from the territory in question, at such time as such school attendance would occur, the distance factor gains considerable significance. It appears that children with the longest bus rides in question would be travelling a distance of approximately 17 miles round trip to Dwight High School as opposed to 44 miles round trip to Pontiac High School.
The increased safety and savings in transportation costs and time together with the identification of the affected area with the Village of Dwight as opposed to the City of Pontiac could well result in increased participation in school activities by the child and his parents depending upon which school district they are thrust into.”

This argument is not supported by the record. There was no evidence before the Board regarding safety concerns or increased participation in school activities if the detachment was granted. Indeed, the Board made no such finding.

Dwight also states that “all of the available evidence indicates that future students will gravitate naturally to the annexing district.” There is no evidence in the record that this was established before the Board.

In summary, a careful review of the record indicates that the Board did not have any evidence before it regarding the educational welfare of the children of the area. This is required by the statute.

Pontiac next argues that the Board’s finding that the financial impact on Pontiac was minimal is erroneous. Because we conclude the Board did not consider the statutory factors in granting the petitions, and that its order granting the petitions was erroneous, we need not address this issue.

For the foregoing reasons, we conclude the decision of the Board was erroneous. Accordingly, the orders of the circuit court and the Regional Board of School Trustees for Livingston County allowing the detachment are reversed.

Reversed.

LUND, J., concurs.

JUSTICE GREEN,

dissenting:

The thrust of the testimony in support of the petition was that (1) the detachment area was much farther from Pontiac than from Dwight; (2) persons residing in the area tended to shop or bank in Dwight rather than in Pontiac; and (3) the petitioners felt strongly enough about detachment from one district and annexation to another that they were willing to be subjected to a higher real-property tax rate to obtain the change. Where, as here, other factors are neutral in regard to change, common sense would seem to permit the Board, acting within its discretion, to authorize such a change. However, the lack of pupils residing in the area involved is a special factor which must be given special consideration.

The majority properly recognizes the deference to be given to the administrative decision of the Board and that the “mere lack of pupils in the detachment area is not fatal to a petition” of the nature here. The case of City National Bank v. Schott (1983), 113 Ill. App. 3d 388, 447 N.E.2d 478, is the most recent of the cases holding that lack of pupils in the area involved is not determinative. There, in holding a regional board of school trustees erred in denying detachment of an area without pupils, the court held that in determining the effect of boundary changes on educational welfare of pupils, the “whole child” and “community of interest” factors pronounced in Board of Education of Golf School District No. 67 v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 433 N.E.2d 240, should be given substantial consideration. Schott, 113 Ill. App. 3d at 394, 447 N.E.2d at 482.

This case is unlike Fixmer v. Regional Board of School Trustees (1986), 146 Ill. App. 3d 660, 497 N.E.2d 152, and Dresner v. Regional Board of School Trustees (1986), 150 Ill. App. 3d 765, 501 N.E.2d 983. There, the reviewing courts upheld decisions of boards of school trustees denying change when no evidence was presented regarding educational advantages which would result from change of boundaries. Here, the majority overturns a decision of school trustees in the face of some substantial evidence of educational advantage. The Board found a “community of interest” to exist in regard to Dwight. This was shown not only by the shopping and banking habits of residents of the detachment area but also by the testimony of much greater traveling distance to Pontiac than to Dwight from various domiciles in the area. One petitioner stated that the respective distances were 5 and 19 miles. Another said 6 and 12, while a third testified to 41/2 and 17 miles.

The Golf court considered the “community of interest” factor and that of the “whole child” to be closely related. The latter factor includes the concept that a student’s participation in extracurricular activities is a significant part of the student’s education. That court stated a pupil is much more likely to participate in extracurricular activities if the pupil identifies with the place in which the school is located. The court deemed this aspect to be even more significant than the safety or convenience aspect of attending a school nearer the place of residence.

The majority correctly points out that no direct evidence was presented indicating traveling to school in Dwight would be safer than traveling to Pontiac. Such evidence is seldom available in cases of this nature unless traveling in one direction involves the crossing of a hazardous bridge or railroad. However, the disparities in distance to be traveled is some circumstantial evidence of greater safety as traveling shorter distances generally creates less exposure to collision than traveling longer distances. Moreover, the necessity to travel the longer distances involves a greater inconvenience. Most extracurricular activities take place after school and no bus service is available to take the pupils home. Thus, many times, a parent is required to make a round-trip automobile drive to provide that transportation. The longer that trip the more likely that parent is to prohibit or discourage that pupil’s participation in after-school activities.

While, if the Board had denied detachment, I would have difficulty in overturning that ruling, I deem the evidence here sufficient to support the Board’s ruling allowing detachment and annexation. It is difficult to imagine a set of circumstances stronger than that here supporting detachment when no substantial difference in the quality of classes offered at the two schools is shown and the area involved is not very close to the base community of either district. Denial of detachment should not be required under such circumstances. The majority is properly concerned because the Board made no specific finding in regard to the “whole child” factor. Under the circumstances, I would not reverse merely for that reason.

Where the findings of an administrative agency are insufficient, a reviewing court may remand the cause to the agency for findings. (Reinhardt v. Board of Education of Alton Community Unit School District No. 11 (1975), 61 Ill. 2d 101, 329 N.E.2d 218.) Here, unlike in Reinhardt, the administrative agency did make some extended findings, including that in regard to the “community of interest” factor, but I do not interpret the lack of findings as to the “whole child” factor to be a rejection of that factor as bearing on this case. The “whole child” factor is closely related to the “community of interest” factor but is a more expanded concept. Under all the circumstances here, I would remand to the Board for findings in that respect.

Accordingly, I dissent from the decision of the majority to reverse. I would merely remand to the Board with directions (1) to consider, without further evidence, the issue of the “whole child” concept; (2) to make findings in regard to its application here; and (3) to certify those findings to this court. We should then consider the matter in light of those findings.


author: JUSTICE GREEN

text:
      In re MARRIAGE OF DEBRA JEAN BERGMAN, Petitioner, and JON PHILIP BERGMAN, Respondent-Appellee (The Department of Public Aid, Intervening Petitioner-Appellant).
    Fourth District
    No. 4—88—0767
    Opinion filed June 1, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On August 19, 1988, the circuit court of Pike County adopted as its order a stipulation of the parties that, as of June 30, 1988, respondent Jon Philip Bergman was in arrears in child support in the amount of $916.11 and would pay that amount at a specified monthly rate. However, the court denied intervening petitioner Illinois Department of Public Aid’s (Department’s) motion for the immediate issuance and service of a withholding order on respondent and, on September 21, 1988, further denied the Department’s motion to reconsider that denial. The Department now appeals, and we reverse and remand.

Section 706.1(B) of the Illinois Marriage and Dissolution of Marriage Act (Act) contains in pertinent part the following provisions:

“(1) Upon entry of any order for support on or after January 1, 1984, the court shall enter a separate order for -withholding which shall not take effect unless the obligor becomes delinquent in paying the order for support ***; except that the court may require the order for withholding to take effect immediately.
* * *
(7) Notwithstanding the provisions of this subsection, if the court finds at the time of any hearing that an arrearage has accrued in an amount equal to at least one month’s support obligation ***, the court shall order immediate service of the order for withholding upon the payor.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 40, pars. 706.1(B)(1), (B)(7).)

The Act defines “arrearage” as “the total amount of unpaid support obligations” and “delinquency” as “any payment under an order for support which becomes due and remains unpaid after an order for withholding has been entered under subsection (B).” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 40, pars. 706.1(A)(2), (A)(3).

The court dissolved the marriage of respondent and petitioner Debra Jean Bergman on May 2, 1985, and awarded custody of the parties’ two minor children to petitioner. In the judgment of dissolution of marriage, the court ordered respondent to pay child support in the amount of $62.50 per week per child. The court further entered an order for withholding as required by statute. Ill. Rev. Stat. 1985, ch. 40, par. 706.1.

On January 31, 1986, respondent petitioned the court for a modification of the judgment for dissolution. In it, he claimed the circumstances of the parties had materially and substantially changed and the judgment should be modified to conform to the changed circumstances. Petitioner responded to the petition and further petitioned the court for a money judgment on the amount of child support for which respondent was currently in arrears.

The Department intervened in the matter on January 8, 1988, by filing a petition for rule to show cause why respondent should not be held in contempt of court for failure to comply with the child-support order previously entered. It asked the court to enter a judgment in the amount of the arrearage and to issue an order for withholding immediately.

On June 30, 1988, the court granted respondent’s petition for modification and reduced his total child-support obligation to $183 per month, retroactive to the date of respondent’s petition. As noted previously, the court subsequently entered an order on August 19, 1988, on stipulation of the parties that respondent was in arrears in child support in the amount of $916.11. The court required him to pay the arrearage in installments of $36 per month, said amount to be paid in addition to his current support obligation.

With regard to the Department’s request for the immediate issuance and service of an order for withholding, the court noted such an order was to take effect “when the obligor [became] delinquent and the arrearage [was in] an amount equal to at least one month’s child support.” However, upon examining the dictionary definition of. the term “delinquency,” which focused on the existence of a dereliction of duty, the court concluded respondent’s arrearage was not “predicated on delinquency,” since it was “due to [an] understandable miscalculation.” The court further noted respondent had never missed a payment date. It denied the Department’s motion for issuance of the order.

The Department asked the court to reconsider its ruling and to issue an immediate order for withholding. In its order of September 21, 1988, the court stated an “aura of culpability” pervaded section 706.1 of the Act. The court emphasized the lack of culpability on the part of respondent and its finding that he was not delinquent. Relying on the statement in section 706.1(BX1) of the Act that an order for withholding did not take effect until the obligor became delinquent in paying support, the court refused to reconsider its previous order.

We note initially that respondent has failed to file an appellee’s brief in this cause. While we recognize we are permitted to summarily reverse due to such failure (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493), we choose instead to decide this case on its merits.

In its brief, the Department argues the instant situation does not require the existence of a “delinquency” in order for the Department to be entitled to the relief it requests. The Department maintains section 706.1(B)(7), and not section 706.1(B)(1), controls. We agree. Section 706.1(8)(7) mandates a court to order the immediate issuance and service of an order for withholding once it finds an obligor is in arrears in child support and the arrearage exceeds one month’s obligation. No reference is made to the words “delinquencies” or “delinquency.”

The Department argues in the alternative, that, if section 706.1(8)(1) applies, the court here incorrectly interpreted that provision as providing it with discretion to refuse to issue an order for withholding where a delinquency has occurred through no fault of the obligor. The plain language of section 706.1(B)(1) reveals no intent by the legislature to vest a trial court with the discretion to refuse to issue an order for withholding once an obligor becomes delinquent. If a court determines an obligor has become delinquent as that term is defined by statute, section 706.1(B)(1) directs the court to immediately order the service of the order for withholding. Section 706.1(A)(3) of the Act defines the term “delinquency,” except under circumstances not involved here, as “any payment under an order of support which remains unpaid” after a withholding order has been entered. (Ill. Rev. Stat. 1987, ch. 40, par. 706.1(A)(3).) Thus, clearly a party required to pay support need not be culpable in order to be “delinquent.”

Our foregoing conclusions are strengthened by the legislative statement regarding section 102(5) of the Act that it is to be “liberally construed” to “make reasonable provision for spouses and minor children *** after litigation.” Ill. Rev. Stat. 1987, ch. 40, par. 102(5).

Here, respondent was clearly both in arrears within the meaning of section 706.1(B)(7) of the Act and delinquent within the meaning of section 706.1(B)(1) of the Act. The parties, apparently, do not dispute that, on August 19, 1988, respondent was in arrears in his payment of child support in the amount of $916.11. Furthermore, such amount had remained unpaid following entry of the initial order for withholding on May 2, 1985. The circuit court erred in refusing to order the immediate issuance of the order for withholding as requested by the Department.

For the reasons stated, the judgment of the circuit court is reversed, the case is remanded, and the court is directed to order the immediate issuance of the order of withholding upon respondent.

Reversed and remanded with directions.

KNECHT and SPITZ, JJ., concur.


author: JUSTICE SPITZ

text:
    GARY LYLES, Plaintiff-Appellee, v. THE DEPARTMENT OF TRANSPORTATION et al., Defendants-Appellants.
    Fourth District
    No. 4—88—0674
    Opinion filed May 25, 1989.

      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.
   JUSTICE SPITZ

delivered the opinion of the court:

The 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 — 101 et seq.), and the circuit court of Jersey County reversed the Commission, reasoning:

“The 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.”

On appeal, the Commission and the Department seek reinstatement of the Commission’s 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’s discharge from employment.

I

This 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’s 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.

The 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.

On 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 — 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.

At the conclusion of the employee interviews, DOT formulated written charges as to the various employees, listing the items of “State equipment” the employee “admitted to taking” 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.

Plaintiff 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.

An 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:

“60. The employees at the yards were also given a green book entitled, ‘Personnel Policies and Procedures Manual’ and a yellow book entitled ‘Work Rules for Maintenance and Traffic Negotiated personnel.’ 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.
***
62. 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’s consent were allowed to remove items placed in the trash pile.”

The hearing officer found as follows:

“64. In general, it was the employees’ 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.
65. 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.
66. [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’] residence and [Lyles] gave him Petitioner’s Exhibit 1, which is a garden tractor battery.
67. [Lyles] testified that on December 10, 1985 he gave Officer Barrett the battery introduced as Petitioner’s 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’s 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.
68. 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’] 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’s Exhibit 1 which states that the battery was new in September of 1985. Accordingly, [Lyles] is found guilty of this charge.
* * *
82. [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’s Exhibit [1] cannot be classified as junk or discarded property. [Lyles’] story that this was a gift from his supervisor during the course of his workday is not believable. It is the Hearing Officer’s finding that this offense constitutes cause for discharge and discharge is so ordered.”

Respondent 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 “said partially proven charges warrant the discharge of the Respondent Gary Lyles, from his position as a Highway Maintenance Lead Worker with the Department.” Plaintiff sought administrative review, the circuit court reversed the Commission’s order, and this appeal followed.

II

A court’s scope of review of an administrative agency’s decision on discharge is a two-step process. First, the court must determine if the agency’s 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 — 110.) The second step in the court’s analysis is to determine whether the findings of fact provide a sufficient basis for the conclusion that “cause” for discharge exists. Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 551, 426 N.E.2d 885, 887 (DuFrenne, appellant) (hereinafter cited as DuFrenne).

A

On appeal, the Commission and DOT first argue the Commission’s determination that Lyles took State-owned property, a tractor battery, was not against the manifest weight of the evidence.

The agency’s 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 “clearly evident.” (Burnham City Hospital v. Human Rights Comm’n (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’n (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’s 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’s findings of fact. Fox v. Illinois Civil Service Comm’n (1978), 66 Ill. App. 3d 381, 388, 383 N.E.2d 1201, 1206.

In the instant case, the circuit court found the hearing officer’s 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’s 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.

He claims the evidence does not support the hearing officer’s conclusion that theft was proved. In support of this argument, plaintiff looks, first, to the statutory definition of theft: “A 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.” (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 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’s ownership of the battery was not proved. Third, plaintiff points to the hearing officer’s first finding: “At the outset of the case the State stipulated that it does not have receipts for any of the State’s property allegedly misappropriated by [Lyles].” 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).

Plaintiff 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.

Plaintiff 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’s purchase of this battery or purchase and use of similar batteries would have made a clearer case, the Department may have considered Lyles’ admissions sufficient.

The 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 “more likely than not” the battery was State property. There was.

Evidence was offered to support the hearing officer’s 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 — 1, and produced at trial, and testified Lyles indicated this was “the battery” that had been “given to him by Lorsbach.” Barrett testified, “That 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.” Determining the weight and credibility of the witnesses’ testimony and the inferences to be drawn therefrom was a matter particularly within the purview of the hearing officer.

As to the objections of plaintiff’s counsel, they were not interposed when Barrett was questioned about Lorsbach’s 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’s favor as to those matters.

B

As to the second step of the analysis, the Commission and DOT argue Lyles’ 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.

The Commission’s rules provide:

“Unless 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’s 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.” (Emphasis added.) (80 Ill. Adm. Code §302.626, at 9478 (1985).)

The Commission contends theft of State property is grounds for immediate discharge.

Section 11 of the Personnel Code prohibits discharge of employees except “for cause.” (Ill. Rev. Stat. 1987, ch. 127, par. 63b111.) There is no statutory definition of cause. Cause has been judicially defined as “ ‘some substantial shortcoming which renders the employee’s 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.’ ” (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’n (1985), 132 Ill. App. 3d 753, 754, 477 N.E.2d 1372, 1374 (Smock, appellant).

Attempts 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’n (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’s 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.

The 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’ discharge.

Langston, 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:

Employee Infractions Discipline

Duane Barnes

1 50-gallon drum of used oil, 3 batteries, some culvert metal, 1 old tire

1 day without pay

Ralph Becker

5 truck tires given to him during a cleanup of the yard, and 2 days off without leave

3-day suspension

John Collins

1 battery, some metal, 2 55-gallon drums

discharged

Steven Bret Schmieder

1 log chain from trash pile, 1 shovel which was being discarded, and a battery

3-day suspension

We note Collins’ testimony about the battery he received:

“Q. While you were working for the Department of Transportation there at Jerseyville, did you ever have occasion to take a used battery?
A. Yes, once.
Q. And how did that occur?
A. 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’t 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’t no good either.”

Collins 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’s discharge arbitrary, capricious, or unrelated to the needs of the service.

Moreover, as was stated in Jones v. Civil Service Comm’n (1979), 80 Ill. App. 3d 74, 76, 399 N.E.2d 256, 258, sufficient cause for a plaintiff’s 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’n (1979), 70 Ill. App. 3d 772, 338 N.E.2d 912.

Plaintiff 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’s 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.

Plaintiff cites Bell v. Civil Service Comm’n (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’s 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’s decision “ ‘to the extent not inconsistent with [its] comments,’ ” but its comments only stated, “ ‘it 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 ***.’ ” (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:

“The Commission did not set forth specific findings of fact or conclusions of law in support of their decision not to follow the hearing officer’s recommendation that plaintiff be suspended for 30 days. There is, however, substantial evidence in the record to support the hearing officer’s finding that the Department failed to prove that the plaintiff intentionally falsified documents as charged. The evidence also supports the hearing officer’s more reasonable conclusion that the plaintiff misunderstood the instructions on allocating her time.
Section 14 of the Illinois Administrative Procedure Act states in pertinent part:
‘A 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.’ (Ill. Rev. Stat. 1983, ch. 127, par. 1014.)
*** The Commission’s findings were however, merely conclusory and insufficient. They therefore fail to meet the standards and requirements necessary to support the Commission’s conclusion that discharge was warranted. Bodine v. Civil Service Comm’n (1985), 134 Ill. App. 3d 341, 480 N.E.2d 160.
Since the Commission failed to set forth reasonable support of their decision to discharge the plaintiff, their decision was arbitrary and unreasonable.
The Commission neither rejected nor made any finding inconsistent with the hearing officer’s findings of facts. The Commission’s ‘findings’ were not sufficiently specific to support their conclusion, which was contrary to the hearing officer’s conclusion.
Considering the length of plaintiff’s 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’s conduct was not such that the discipline and efficiency of the Department would be undermined if plaintiff was not discharged. Plaintiff’s 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 ‘industrial capital punishment.’ 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.” (Bell, 161 Ill. App. 3d at 649-50, 515 N.E.2d at 251-52.)

It was in this context that the Bell court thereafter discussed the Commission’s rules on progressive discipline. We find Bell inapposite to the case before us.

The Commission’s assessment of the proper penalty here cannot be said to be arbitrary, unreasonable, or unrelated to the needs of the service.

Accordingly, 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.

Reversed; Commission’s order affirmed and reinstated.

McCULLOUGH, P.J., and KNECHT, J., concur.