author: JUSTICE SIMON JUSTICE GOLDENHERSH,

text:
    (No. 54855.
    ROBERT W. SUTTON, Appellee, v. THE CIVIL SERVICE COMMISSION et al., Appellants.

      Opinion filed June 18, 1982.

      GOLDENHERSH, J., dissenting.
    Tyrone C. Fahner, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Nehrt, Sachtleben & Fisher, of Chester (Edward J. Fisher and David R. Smith, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

The Department of Corrections filed the following charges in a discharge proceeding against plaintiff, Robert W. Sutton, a program supervisor at the Menard Correctional Center:

“Robert Sutton, employed by the Department of Corrections in the position of Activity Program Supervisor, is discharged for cause, that cause being conduct unbecoming a state employee, in that: On May 2, 1979 Mr. Sutton approached resident inmate Andrew Englesman (#A — 58057) at the Menard Correctional Center and asked inmate Englesman how much it would take (money) to get Warden Greer ‘killed off.’
Mr. Sutton also discussed with Englesman what location at the facility would be a good area for the above act to take place. This solicitation of an act of violence to be performed by a resident inmate against Warden Greer was admitted to by Mr. Sutton to Polygraph Examiner Dennis J. Smith and Internal Investigator Robert Verges on May 18, 1979.”

After a hearing, the Civil Service Commission’s hearing officer recommended that plaintiff be discharged; the hearing officer found that Sutton made all the statements attributed to him, and that although he did not actually intend for anyone to harm the warden, his statements were a serious indiscretion justifying discharge. The Commission adopted the hearing officer’s recommendation; it found that the charges preferred had been proved and that Sutton’s discharge was warranted. Sutton instituted an administrative review proceeding in the circuit court of Randolph County, and that court reversed the Commission’s order and directed Sutton’s reinstatement. The appellate court, in a split decision, affirmed the circuit court (94 Ill. App. 3d 134), and the State was granted leave to appeal to this court.

Our attention is directed by this appeal to two issues: First, were the Commission’s findings of fact, as both the circuit and appellate courts held, contrary to the manifest weight of the evidence? Second, if the circuit and appellate courts erred in so holding, was the Commission’s conclusion that the plaintiff’s conduct warranted discharge arbitrary, unreasonable or unrelated to the requirements of the service? See Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547.

Three witnesses testified at the Civil Service Commission hearing regarding the statements of the plaintiff which led to his discharge. Other witnesses testified to the plaintiff’s good character, his reputation as a peaceful, law-abiding citizen, and the meritorious service he had rendered in the Department of Corrections.

Inmate Englesman, who informed the prison authorities of the incident, was assigned to work in the recreational program of which plaintiff was in charge. He had gang associations and was serving a 6- to 20-year term for armed robbery. He testified that the plaintiff approached him and asked him how much it would cost to kill the warden. Unsure that the plaintiff was serious, he jokingly responded it would take a pack of cigarettes. The plaintiff commented that a certain location in the penitentiary would be a good place to do it and inmate Englesman agreed. After thinking about the conversation for two days and discussing it with a person he refused to identify, Englesman decided to report it to the prison authorities.

The second witness was Dennis J. Smith, an employee of the Department of Law Enforcement; he interviewed the plaintiff after the inmate informed the authorities of the plaintiff’s statements. Smith testified that the plaintiff stated he had been upset for a couple of weeks over threats by gang members and conflicts with the warden over his work. When Englesman came into his office one afternoon, he asked Englesman, without thinking, how much it would cost to get the warden killed. Smith asked the plaintiff what the inmate’s reply was, and he said he couldn’t recall. At that point, Smith called in another investigator and the plaintiff made the same admissions in his presence. Smith also testified that the plaintiff said that he did not intend to go through with the act.

Sutton himself testified. He admitted receiving a memorandum from the warden reprimanding him over his failure to carry on a boxing program in the prison and said that this angered him. While he was reading the memorandum Englesman came into his office and told him that some of the gang leaders in the prison had a hit out on the plaintiff for his life. A few minutes later he asked the inmate what it takes to get someone killed off in the prison and the inmate replied, “something about a pack of cigarettes or two packs.” The plaintiff’s testimony was that he did not remember ever mentioning the warden or his name. The plaintiff explained his remark to Englesman by the feelings of frustration and anger he was experiencing at the time. Plaintiff’s testimony was that he made the statement to the inmate without thinking, just as he might speak about his difficulties to a fellow employee.

Although not in direct conflict, there were variations between Sutton’s testimony and that of inmate Englesman. Englesman testified that Sutton specifically referred to the warden and that he commented that a particular location in the prison would be the best place to kill him. Sutton testified that he did not remember ever having said those things. The Commission apparently believed Englesman, and that belief was not contrary to the manifest weight of the evidence. This is particularly the case in view of the admonition of the Administrative Review Act that the “findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct” (Ill. Rev. Stat. 1979, ch. 110, par. 274). Basketfield v. Police Board (1974), 56 Ill. 2d 351, 358.

The testimony of Smith, the Department of Law Enforcement investigator who interviewed Sutton, corroborated Englesman’s testimony that Sutton specifically mentioned the warden. Thus, the Commission was fully justified in believing Englesman over Sutton on that point. Smith’s corroboration also lent more credibility generally to Englesman’s testimony and less to Sutton’s, since it appeared that Sutton was intentionally omitting substantial portions of what he had said. The Commission, therefore, was justified in believing that Sutton had spoken to Englesman about which location in the prison would be a good place to kill the warden. But, had the conversation ended with Englesman’s response that it would take a pack of cigarettes, the conversation up to that point would have been no less improper for a State employee in the prison system.

Sutton argues, however, that the charge with which he was faced was “solicitation of an act of violence” to be performed against Warden Greer and that the hearing officer concluded that Sutton was not soliciting a murder, but instead was giving vent to his feelings of anger and frustration. Sutton thus contends that the charge instituted against him was not proved. It is clear from a reading of the charge that the complaint against Sutton was not criminal solicitation. By using the words “solicitation of an act of violence” in the charge, the Department of Corrections was merely referring in a descriptive way to the statements of Sutton which both Smith’s and Englesman’s testimony established. The charge against Sutton was conduct unbecoming a State employee, and the evidence was sufficient to prove that charge.

The more difficult question is the proper sanction for Sutton’s transgression. Is discharge too harsh for what Sutton claims was his thoughtlessness and his “ordinary office banter” with one he regarded almost as a fellow employee?

We had occasion recently to discuss the standards which should guide us in determining whether there is sufficient cause for discharge of a State employee. In Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 551, we said:

“Due to the paucity of specific guidance, several appellate decisions in this State have held that the question of whether there is sufficient cause for discharge is generally for the agency to determine. [Citations.] Indeed, even the appellate court in this case recognized ‘the substantial deference that must be given to the Commission’s ruling on the question of cause.’ [Citation.] Some appellate opinions have found administrative penalties too severe and subject to reduction. [Citations.] These cases, however, make it clear that the Commission’s determination to discharge might be overturned only if its decision is arbitrary, unreasonable, or unrelated to the requirements of service.”

Cause for discharge has been defined as “some substantial shortcoming which renders continuance in his office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as a good cause for his not longer occupying the place.” Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360.

Sutton asks this court to consider his years of exemplary service in the Department, the extenuating circumstances of his frustration after being reprimanded, which caused him to make the statements attributed to him, and the fact that these statements were made thoughtlessly. The question, though, is not whether this court would decide upon a more lenient sanction than discharge were it to determine initially what discipline would be appropriate. Nor is it whether this court would conclude in view of the mitigating circumstances suggested by Sutton that a different penalty would be more appropriate. The question is whether, in view of the circumstances presented, this court can say that the Civil Service Commission, in opting for discharge, acted unreasonably or arbitrarily or selected a type of discipline unrelated to the needs of the service.

Common sense and experience tell us that anyone employed in a prison system is working in a volatile atmosphere. A suggestion by a guard to a convict which presents the possibility of the assassination of the prison warden, even if made in a joking or thoughtless manner, is obviously a statement fraught with potential for dangerous consequences. By the time the convict who heard it gets through relaying it to his fellow prisoners, it may be so completely distorted that instead of other convicts regarding it as “office banter,” as Sutton claims his statement was, they may conclude that guards in the prison are plotting to assassinate the warden. It seems clear that, to establish and maintain discipline in a penitentiary, the warden must command respect and be looked upon as a figure providing leadership for the institution. A remark such as Sutton’s undermines the authority that a prison warden must have if adequate discipline is to be preserved. This case is unlike Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, and Kreiser v. Police Board (1977), 69 Ill. 2d 27. This court held, in the former case, that the filing of a voluntary petition in bankruptcy and, in the latter, that taking approximately an extra hour for lunch without authority and covering this up by giving a false oral statement to a superior officer were not sufficiently substantial instances of misconduct by a police officer or so related to the performance of duty as to call for the maximum sanction of discharge.

Neither can Sutton’s conduct be excused, as he suggests it should, by viewing it simply as some friendly office banter. Although Englesman was assigned to duty in the recreation department, he was neither an employee of that department nor a co-employee of Sutton. Contrary to what Sutton contends, it could be regarded as an aggravating factor reflecting on the soundness of Sutton’s judgment that Sutton did not distinguish between the type of conversation that would be acceptable with a fellow employee and conversation that would be appropriate with an inmate, although we do not believe that statements of the type made by Sutton could be sanctioned even if communicated to a fellow employee.

For these reasons, regardless of what decision we might have reached had we initially determined what sanction was appropriate, it would be an unwarranted reflection on the judgment of the Civil Service Commission for this court to overturn the discipline it decided upon in this case. In view of the substance of Sutton’s statements and the person to whom they were directed, his conduct was clearly irresponsible. Even if he had been expressing only feelings of hostility and resentment, he demonstrated that he lacked the self-control of his own anger and frustrations and the ability to think before he acted required for employment in as sensitive an environment as a penitentiary. As the hearing officer stated in expressing his conclusions, Sutton showed “a monumental error of judgment.” We cannot conclude that the Civil Service Commission, in directing discharge, acted in an unreasonable or arbitrary manner or that its discharge order was unrelated to the needs of the service.

The judgments of the appellate and circuit courts are reversed, and the Commission’s order of discharge is affirmed.

Judgments reversed; order affirmed.

JUSTICE GOLDENHERSH,

dissenting:

I dissent. I agree with the circuit and appellate courts that the occurrence upon which this charge was based was a single blot on an otherwise excellent record and that discharge is not warranted. The plaintiff has performed his duties well, and the importance of this single momentary aberration at a time of anger and frustration has been blown out of proportion. In view of the fact that three years have passed since the alleged occurrence, no further period of suspension is warranted, and I would order his immediate reinstatement.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH JUSTICE MORAN, JUSTICE SIMON,

license: Public Domain

text:
    (No. 55284.

      In re FRANK H. MASTERS, JR., Attorney, Respondent.

      Opinion filed June 18, 1982.

      RYAN, C.J., took no part.
    MORAN and SIMON, JJ., dissenting.

      Mary M. Conrad, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Sidney Z. Karasik and A. Bradley Eben, of Chicago, for respondent.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

On February 7, 1980, the Administrator of the Attorney Registration and Disciplinary Commission filed a complaint against respondent, Frank H. Masters, Jr., who was admitted to the practice of law on October 14, 1937. The complaint charged that respondent advised a client to comply with an extortion demand, volunteered to, and did, serve as intermediary in making the payments, and that by reason of such conduct respondent:

“(a) concealed or knowingly failed to disclose or come forward with information about the existence and commission of criminal activity in violation of Canon 7 D.R. 7 — 102(A)(3) of the Illinois Code of Professional Responsibility [(Illinois State Bar Association (1970))];
(b) counseled and knowingly assisted and participated in conduct which resulted in the furtherance of a crime in violation of Canon 7, D.R. 7 — 102(A)(7) of the Code;
(c) engaged in conduct involving fraud, deceit and moral turpitude, in violation of Canon 1, D.R. 1 — 102(A)(3 and 4) of the Code;
(d) engaged in conduct that is prejudicial to the administration of justice and that adversely reflects on his fitness to practice law in violation of Canon 1, D.R. 1 — 102(A) (5 and 6) of the Code;
(e) engaged in conduct involving the appearance of impropriety.”

A panel of the Hearing Board recommended that respondent be suspended for one year. Both the Administrator and respondent filed exceptions to the report of the hearing panel. The Review Board ordered that respondent be suspended for six months. Respondent filed exceptions to the report of the Review Board, and upon allowance of his petition filed pursuant to Rule 753(e) (73 Ill. 2d R. 753(e)), the Administrator also filed exceptions to the report.

The testimony at the hearing before the panel of the Hearing Board shows that in the early fall of 1969, William Griffin, an executive officer of Hoffman-Rosner Corporation, a construction company, came to respondent’s law firm for advice concerning an extortion demand made by Edward Arambasich, a business agent for the Iron Workers’ Union. Several years earlier Hoffman-Rosner Corporation had expanded its operations into Will County and on the recommendation of its Chicago counsel had become a client of respondent’s law firm. The partner who handled Hoffman-Rosner’s legal matters asked respondent to confer with Griffin about the extortion attempt.

Respondent testified that from 1952 to 1964 he served as State’s Attorney of Will County. During that period the office of State’s Attorney was not a full-time job and he was permitted to engage in the private practice of law. In 1977 he was appointed Special Assistant Attorney General, a post which he held at the time of the hearing. During his term as State’s Attorney respondent had become aware of Arambasich’s reputation for violence. Respondent related numerous incidents in which Arambasich and those associated with him were involved in union-related violence at job sites. As State’s Attorney respondent attempted to persuade several victims of Arambasich’s beatings and threats to prefer charges against him, but neither the victims nor anyone else respondent contacted was willing to testify. Respondent testified that his son, a college student, worked as an ironworker during the summers of 1967 through 1971 under the jurisdiction of Arambasich’s union. Respondent’s son had told him of incidents when Arambasich was observed at various job sites, exhibiting a gun and threatening contractors and other labor leaders. Other witnesses also testified to Arambasich’s reputation for violence.

Respondent testified that Griffin told him that Arambasich visited a Hoffman-Rosner job site at Bolingbrook and demanded an interview with the Hoffman-Rosner foreman. Arambasich had placed a gun on a desk and told the foreman that he wanted $1,000 every six months and that “he was going to shut down the job if it wasn’t paid, and indicated physical harm.” The foreman related the incident to Griffin. Respondent told Griffin that he was aware of Arambasich’s reputation for violence. He advised Griffin that this was obviously an extortion plot and that normally he would not advise a client to comply, but under the circumstances it would be in the best interest of the personnel of Hoffman-Rosner that the payments be made. Griffin told respondent that Arambasich told the foreman that he would not deal with anyone from Hoffman-Rosner and asked respondent if he would see that the payments were delivered to Arambasich. Respondent stated that he was willing to deliver the payments. Respondent explained to Griffin that he feared for the personal safety of the Hoffman-Rosner employees, as well as his own safety and that of his son. Respondent felt that in his small community if he advised Hoffman-Rosner not to make the payments word would get to Arambasich that it was respondent who “shut him off” and since he no longer had the protection of the State’s Attorney’s office he would be in danger of physical harm.

It is not clear from the testimony whether respondent was aware at the time of his initial consultation with Griffin that the Hoffman-Rosner executive board had decided to refuse to comply with Arambasich’s demand. Respondent testified that he was not told of the board’s decision to refuse payment. Griffin testified that he could not remember whether he had told respondent at their first meeting of the board’s decision, but he assumed that he had done so. Griffin testified that he informed the Hoffman-Rosner executive board of respondent’s opinion and that a few days after his initial meeting with respondent the board decided to follow respondent’s advice. Griffin testified that the decision to comply with the extortion demands was based primarily on respondent’s advice, although “we [the board] had conversations with [the foreman] after that and he was quite concerned about the situation on the project, the danger that personnel would be subjected to, particularly himself.” Griffin had personally been confronted by Arambasich on one occasion, at which time Arambasich had made threats against the company and against Griffin, demanding money. Griffin paid Arambasich $50 at that time from his pocket “to get out of there.” Griffin thought he had told the board members of this incident but was not certain when he had done so.

Respondent testified that several days after the consultation with Griffin he received a package from Hoffman-Rosner. Respondent did not open the package. He called Arambasich and told him that his law firm represented Hoffman-Rosner and that they were prepared to meet his demand. Arambasich told respondent he would meet him in front of his office. Arambasich drove up to the front of respondent’s office building and told respondent to get into his car. When respondent entered the automobile he saw a gun lying on the transmission hump. Arambasich drove around the block and stopped. He opened the package, which contained U.S. currency. He offered respondent $100, which he declined. Arambasich drove back to respondent’s office building, and respondent left the car and returned to his office. Respondent testified that viewing the gun had greatly frightened him. On nine additional occasions, approximately six months apart, respondent received a call from Arambasich, who said, “D.A. [indicating State’s Attorney], it’s about that time.” Respondent called Griffin and told him Arambasich had called. A day or two later a package from Hoffman-Rosner arrived at respondent’s office. Respondent called Arambasich, met him at the front of his office building, and handed the package to him. At these subsequent encounters respondent was not asked to enter Arambasich’s car and did not again do so.

The final payment was made in the spring of 1974. Respondent conferred with Griffin, and it was decided that the time had come to stop the payments. Respondent called Arambasich and told him that “it ought to stop.” Arambasich agreed. Subsequent to the termination of payments respondent retained counsel and told them of the extortion experience. He requested that they advise the United States Attorney’s office concerning the situation.

At about the time of the termination of payments the business affairs of Hoffman-Rosner were being investigated by the Internal Revenue Service in connection with an unrelated matter. Respondent testified that at the time of his decision to stop payment he was unaware of any government investigation into the affairs of HoffmanRosner. Griffin testified that the investigation was a part of the reason for Ho ffman-Rosner’s decision to stop payment, but he was not certain that he had told respondent of the investigation.

The United States Attorney’s office began investigating the activities of Arambasich in late 1974 or early 1975, and a grand jury investigation was initiated. A subpoena was issued to Hoffman-Rosner, but no subpoena was issued to respondent. At the request of one of respondent’s attorneys, the Department of Justice authorized an order granting immunity for respondent, and he testified at Arambasich’s trial. Arambasich was found guilty of extortion and sentenced to several 10-year concurrent sentences based on his extortion of Hoffman-Rosner and other extortion cases. As the result of respondent’s testimony at the trial the Executive Committee of the United States District Court for the Northern District suggested to the District Attorney that respondent’s conduct should be investigated. Citing respondent’s cooperation and testimony and taking the position that neither HoffmanRosner nor respondent was guilty of any crime, the United State’s Attorney’s office declined to take any steps to discipline respondent. The matter was referred to the Attorney Registration and Disciplinary Commission, and this proceeding was initiated.

The hearing panel, stating that it was not persuaded that respondent’s fear for his personal safety was justified, noted that his experience as State’s Attorney and Special Assistant Attorney General “was more persuasive to the contrary, i.e., he should ‘go to the authorities and expose the corruption.’ ” The panel also dismissed respondent’s fear for the safety of his son, stating that a more reasonable course of events would have been for the son to give up his summer employment and thereby alleviate this fear. The panel concluded that respondent’s conduct could not be justified on the ground that he acted out of fear for his client, noting that Hoffman-Rosner had initially decided to refuse payments.

Without holding that respondent had violated D.R. 7 — 102(A)(3) or D.R. 7 — 102(A)(7), the panel found that, on this record, respondent’s fear could not serve as a defense to a violation of these rules. It pointed out that respondent’s decision to terminate payment was not based on any significant change in the situation which allegedly prompted the payments, and also pointed out his failure, even then, to notify the authorities. The panel, stating that “as an officer of the court, a lawyer has an obligation not only to his client but to the People of the State of Illinois,” found that respondent had violated D.R. 1 — 102(A)(3) and D.R. 1-102(A)(4). Although it made no reference to D.R. 1 — 102(A)(5) it also found that “respondent’s conduct was a breach of our standards and prejudicial to the administration of justice.”

In recommending a sanction the panel found that respondent’s misconduct was analogous to that of the respondents in In re Rosenthal (1978), 73 Ill. 2d 46. The panel found, however, that the cases were distinguishable due to the circumstances in aggravation and mitigation. It contrasted respondent’s full cooperation with authorities with the attempt, in Rosenthal, to deceive the Federal agents. It also contrasted respondent’s frank manner of testifying with the spurious defense of fear of breach of client confidentiality in Rosenthal. It noted the testimony and affidavits of the many outstanding persons concerning respondent’s honesty, integrity and service to the community. It acknowledged that respondent’s disruptive family life had caused him emotional anguish. Finally, it noted that no significant personal benefit had accrued to either respondent or his law firm by reason of respondent’s participation in the extortion scheme. ($225 in legal fees paid over a four-year period.) The panel recommended that respondent be suspended from the practice of law for one year, rather than the disbarment recommended by the Administrator.

The Review Board made no finding of any specific violation of the Code of Professional Responsibility, but concluded that respondent “counseled and assisted his client in an illegal activity. In participating in the extortion scheme, [respondent] compromised and prejudiced the administration of justice. Such conduct warrants discipline.” The Board, stating that there were mitigating circumstances that the hearing panel did not fully weigh in considering the measure of discipline to be imposed, recommended that respondent be suspended for six months. The Board stated, “As respondent has pointed out, he did not aid the perpetrator of the extortion, but was making a good faith, if faulty, judgment that the best interests of his client/victim would be served by making the requested payments. Respondent had a legitimate basis for his fears of retaliation against both his client, himself, and his family.” The Board noted respondent’s acquaintance with the acts of violence by Arambasich and stated that respondent’s position in the scheme was also mitigated by his family situation. The Board particularly noted that respondent had indicated that his judgment in the matter was clouded by his family situation and the threat he felt to his son’s safety. As a final note, the Board pointed out that in the United States District Court respondent had testified fully and completely regarding the extortion scheme and as a result of that testimony Arambasich was serving a 10-year sentence in a Federal penal institution. The Board noted further that as a result of his testimony against Arambasich threats were made on respondent’s life and well-being.

Respondent contends that his advice, given in good faith, to cooperate with the extortion demand under the threat of injury or death, and his conduct in not reporting the matter to the authorities under the circumstances here, should not subject him to any professional discipline. Respondent argues that the Administrator failed to prove that his alleged misconduct violated any legal duty or canon of ethical conduct. In attempting to refute the specific allegations of violations of the Illinois Code of Professional Responsibility, respondent relies on expert opinions contained in offers of proof made at the hearing and contends that the Hearing Board erred in excluding the testimony.

In the hearing before the hearing panel respondent offered the testimony of two law professors. After proof of their background and qualifications respondent made offers of proof in which the professors analyzed the charges against respondent and by way of response to hypothetical questions concluded that his conduct constituted neither a crime nor a violation of a canon or rule of ethical conduct. The hearing panel sustained the Administrator’s objections to the opinions.

Both the Hearing and Review Boards concluded that the expert testimony offered was unnecessary to the decision of this case. As shown by the offers of proof, the testimony consisted of an analysis of the specific disciplinary rules and ethical canons referred to in the complaint in terms of the evidence which was summarized in a hypothetical question. According to this testimony there was no violation of the specifically charged provisions of the Code. The hearing panel found no fault with the qualifications of the witnesses but refused to admit the testimony on the ground that it considered itself to be a body of experts and well able to resolve the issues before it. The panel stated that the standards to be applied in disciplinary cases are those standards of conduct acceptable to members of the bar in general rather than standards acceptable to a small group of lawyers who hold themselves “beyond and above the level of the Bar, in general, in the matter of professional conduct. ” An additional reason given for the exclusion was that expert testimony would place an excessive and unnecessary economic burden on both sides in disciplinary matters. The panel distinguished these costs from those incurred where questions of a scientific nature are involved on the ground that the economic burden could not be avoided in those situations, whereas “legal” persons considering “legal” conduct do not require outside expertise. The Review Board concluded that the expert testimony was properly refused, stating: “[E] Xpert testimony on the legal ethics was not essential for a proper disposition of the matter. Illinois courts have ruled that unless expert testimony is required, it should not be used.”

Citing In re Friedman (1979), 76 Ill. 2d 392, and In re Kutner (1979), 78 Ill. 2d 157, respondent contends that expert testimony has been sanctioned as appropriate in disciplinary cases. In reference to the contention that the Hearing and Review Boards, as experts, have no need of expert opinions, respondent points out that the ABA Code of Judicial Conduct, Canon 3, Rule A(4) (1977), provides that a judge may obtain the advice of an expert “on the law applicable to a proceeding before him.” Respondent urges the court to adopt the approach taken in Lentino v. Fringe Employee Plans, Inc. (3d Cir. 1979), 611 F.2d 474, and use the same criteria in determining whether expert testimony is admissible in professional disciplinary cases as in any other matter involving a standard of care, and that expert testimony should be admissible when the witness offered as an expert possesses peculiar knowledge or experience not common to the ordinary layman which renders his testimony an aid to the trier of fact.

The admissibility of expert testimony was not at issue in Friedman or Kutner. Although expert testimony may have been admitted and considered in those cases, they are not, as contended by respondent, authority for the proposition that when the ethical problem under consideration is unusual and fairly debatable expert testimony concerning the canons is admissible. In Lentino the court held that in bench trials of legal malpractice claims expert testimony was required to establish the relevant standard of conduct, and whether the defendants had complied with that standard, except where the matter under investigation was “so simple, and the lack of skill so obvious, as to be within the range of the ordinary experience and comprehension of even non-professional persons.” (611 F.2d 474, 481.) The rationale of the decision was that no practical standard existed which would take into account the trial judge’s knowledge. The court stated that such a subjective standard, which would permit the trial judge, if he were familiar with the appropriate standard of conduct, to use his own knowledge, would effectively change a question of fact finding into one of discretion, and would require appellate courts to undertake the unwanted task of evaluating the trial judge’s personal knowledge.

In contrast to legal malpractice cases, the standards of ethical conduct pertinent to disciplinary proceedings are set out in the Code of Professional Responsibility (79 Ill. 2d R. 1-101 et seq.). The expert testimony was offered here for the purpose of establishing the meaning of the disciplinary rules and the ultimate conclusion that no provision of the Code had been violated. Although opinions of qualified writers and amicus briefs are considered by this court, they are not an appropriate subject of expert testimony.

It is respondent’s contention that the suggestion to the Executive Committee of the United States District Court for the Northern District that respondent’s conduct be examined, and from which this proceeding emanated, was based on the erroneous impression that his conduct constituted the offense of misprision of felony. He argues, correctly, that under the authorities, the offense of misprision requires more than mere silence or inaction concerning knowledge of the actual commission of a felony, and must be accompanied by “an affirmative act of concealment.” (See United States v. Daddano (7th Cir. 1970), 432 F.2d 1119, 1124; United States v. Hodges (9th Cir. 1977), 566 F.2d 674.) He argues that absent the violation of a statute there can be no violation of D.R. 7 — 102(A)(3).'He argues that there was no violation of D.R. 7 — 102(A)(7), which provides that a lawyer shall not “counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.” He points out that he was the agent for the victim, not the perpetrator, and quotes one of his expert witnesses to the effect that “It’s not a crime to be a victim.” He argues, too, that the Administrator failed to establish corrupt motive for his conduct.

It is the Administrator’s position that our decision in In re Rosenthal (1978), 73 Ill. 2d 46, supports a finding of professional misconduct and the sanction of disbarment. Respondent argues that Rosenthal is clearly distinguishable. He points out that the lawyers there actively participated in negotiations that resulted in the bribe of a public official and sought assurances that in paying the bribe their client would receive what he “bargained for.” Here the client unwillingly paid the extortionist’s demands for something to which it was already entitled, freedom from physical assault and economic reprisal. Respondent states that the claim of duress was apparently rejected in Rosenthal due to lack of evidence, noting that the threats came after the bribery scheme had commenced, whereas duress, under the circumstances here, has been acknowledged by both the Hearing and Review Boards. Respondent contends that the motives of the respondents differ in that the respondents in Rosenthal participated in the scheme in order to save a business deal for their client, thereby protecting their own fee, whereas respondent here acted out of fear for the safety of himself, his family and others. He points out, too, that the fees paid to respondent’s firm in relation to respondent’s activities were nominal. Respondent further points out that it is apparent from reading the decision in Rosenthal that this court was highly skeptical of the respondents’ cooperation and truthfulness in dealing with the authorities, whereas he has repeatedly been commended by prosecutorial authorities. He points to the fact that he instructed his attorneys to come forward and report the extortion scheme to the United States authorities without a subpoena having been issued for his appearance. Respondent asks that the court recognize that he acted as an agent for the victim of the extortion, and that the conduct and motive of the extortionist cannot be attributed to him.

The Code of Professional Responsibility (79 Ill. 2d R. 1-101 et seq.), which states the minimum level of conduct acceptable from a member of the legal profession, provides that a lawyer shall not “engage in conduct that is prejudicial to the administration of justice” (79 Ill. 2d R. 1-102(a)(5)). Assuming, arguendo, that at the time of the first payment to Arambasich there was a basis for respondent’s fear of harm to his son, his client’s personnel or himself, it is difficult to explain the failure to report the extortion for more than four years. As did the hearing panel, we note the evidence shows no change of circumstances which diminished the alleged danger. As an attorney, former State’s Attorney, and in his capacity of Special Assistant Attorney General, respondent was certainly aware of the fact that the proper course of conduct was to report the extortion demand to the appropriate authorities. For a lawyer of respondent’s demonstrated ability and standing at the bar to serve as the conduit through which funds were passed from the alleged victim to the extortionist was unprofessional and unseemly and served to bring the legal profession into disrepute. Although we are not aware of any decision that a rule similar to Rule 1 — 102(a)(5) was violated in circumstances that did not involve a pending or contemplated legal proceeding, we are of the opinion that its scope is not so limited. We agree with the hearing panel that respondent’s conduct “was a breach of our standards” and with both the panel and the Review Board that it was “prejudicial to the administration of justice.”

The determination of the appropriate sanction to be imposed is not without difficulty. Unprofessional conduct may result in sanctions even though “a corrupt motive and moral turpitude are not clearly shown.” (In re Ahern (1961), 23 Ill. 2d 69, 74; see also In re Chapman (1978), 69 Ill. 2d 494; In re Levin (1979), 77 Ill. 2d 205.) Many of the circumstances which aggravated the original offense in Rosenthal are not shown here. Nevertheless, there is no question that for a period of approximately four years respondent participated in activities which enabled an extortionist to continue his illegal conduct. This court has consistently held that one of the purposes of a disciplinary proceeding is to maintain the integrity of the legal profession. The effectuation of that purpose requires that respondent be suspended from the practice.

We are aware of respondent’s standing at the bar of the community in which he has practiced law and of the high esteem in which is held by the many individuals who testified or filed statements in his behalf. We have duly noted the difficult period in respondent’s personal life resulting from the illness and death of his wife. We agree with the hearing panel and the Review Board that these served to mitigate the seriousness of his unprofessional conduct. In our opinion the hearing panel accorded proper weight to these mitigating circumstances and the appropriate sanction to be imposed is that respondent be suspended for a period of one year.

Respondent suspended.

RYAN, C.J., took no part in the consideration or decision of this case.

JUSTICE MORAN,

dissenting:

Today’s opinion states that “[a] s an attorney, former State’s Attorney, and in his capacity of Special Assistant Attorney General, respondent was certainly aware of the fact that the proper course of conduct was to report the extortion demand to the appropriate authorities. For a lawyer of respondent’s demonstrated ability and standing at the bar to serve as the conduit through which funds were passed from the alleged victim to the extortionist was unprofessional and unseemly and served to bring the legal profession into disrepute.” (91 Ill. 2d at 427.) Despite this broad and warranted condemnation of respondent’s behavior, the majority concludes that suspension for one year is an appropriate sanction. Because I believe that the discipline imposed is inconsistent with this court’s holding in In re Rosenthal (1978), 73 Ill. 2d 46, cert. denied (1979), 440 U.S. 961, 59 L. Ed. 2d 775, 99 S. Ct. 1505, and does not adequately consider the severity of respondent’s misconduct, I must respectfully dissent.

In In re Rosenthal, respondents, Camow and Rosenthal, negotiated and participated in a bribery scheme perpetrated against their client by a public official. Rosenthal’s corroborated testimony at the disciplinary hearing indicated that he initially advised his client to reject the attempted bribe or he would withdraw from the case. Ultimately, however, he did not withdraw and instead facilitated the bribery consisting of one $20,000 payment. Although Camow was, at first, untruthful to Federal agents investigating the transaction, he and Rosenthal subsequently obtained immunity from prosecution in exchange for their testimony against the public official. The latter was later convicted of extortion and income tax evasion.

During the disciplinary hearing in that case, numerous witnesses appeared on respondents’ behalf and attested to their good reputation and service to the community. Also offered in mitigation was Rosenthal’s testimony that they did not withdraw from the case and disclose the crime because of fear of economic, political and physical reprisal against themselves or their client, and because of the attorney-client confidentiality requirement. Carnow additionally asserted that he was under emotional stress at the time of the transaction.

This court duly considered the factors offered in mitigation but found them unpersuasive and insufficient to warrant a sanction less than disbarment. Now, in the instant case, which parallels Rosenthal in a number of particulars, the majority concludes that a one-year suspension is justified. It apparently so holds because “[m] any of the circumstances which aggravated the original offense in Rosenthal are not shown here.” 91 Ill. 2d at 428.

While it is true that in Rosenthal respondents actually negotiated the bribery payment, they also initially advised against their client’s involvement in the transaction. In the instant case, the respondent counseled his client from the very beginning to meet the extortionist’s demands and, as in Rosenthal, delivered the payments himself. He contends that he so advised his client because he knew of Arambasich’s propensity for violence and feared for the safety of his client and son, as well as his own. However, the attorney’s fear of reprisal did not persuade this court to enter a sanction less than disbarment in Rosenthal. While there the threats did not occur until after the bribery payment, nevertheless, if fear of reprisal is not considered sufficient to conceal an illegal payment, it certainly should not be a sufficient justification for making the payment. Respondent’s fear for the safety of his son could have been avoided by the son’s obtaining other summer employment. Finally, in this regard, respondent eventually did disclose to the authorities the illegal transactions. As noted by the majority, “the evidence shows no change of circumstances which diminished the alleged danger.” 91 Ill. 2d at 427.

Respondent points out that, in Rosenthal, the attorneys participated in the bribery scheme to protect a client’s business interests, whereas, in the instant case, the payment was allegedly made to protect the client’s safety. Inasmuch as bribery is reprehensible conduct which cannot be countenanced to protect a client, the particular “interest” involved is irrelevant. Regardless of what prompts a bribery attempt, an attorney’s proper response is to disclose that attempt to the appropriate authorities. D.R. 7 — 102(A)(3), (A)(7).

In both cases, respondents submitted mitigating circumstances. While it is true that an additional aggravating circumstance in Rosenthal was respondent’s initial lack of candor in dealing with the authorities, this factor is more than offset in the instant case by respondent’s repeated transgressions. We are not dealing with an isolated instance of misconduct such as the single bribery payment at issue in Rosenthal, and in cases where suspension was deemed an appropriate sanction. (See In re Porcelli (1979), 77 Ill. 2d 473; In re Kien (1977), 69 Ill. 2d 355; In re Kayne (1973), 53 Ill. 2d 410.) Nor is a question of negligence or lack of care involved, which conduct “ *** would justify imposition of a sanction less than disbarment. ***’ ” (In re Hopper (1981), 85 Ill. 2d 318, 324, quoting In re Saladino (1978), 71 Ill. 2d 263, 276.) Rather, respondent intentionally participated in an extortion scheme on 10 separate occasions over a period of five years. (Cf. In re Feldman (1982), 89 Ill. 2d 7 (disbarment warranted in conversion cases where intentional improper acts extended over a period of time); In re Fumo (1972), 52 Ill. 2d 307 (same principle involving fraudulent activity).) It is anomalous that the administration of justice should be obstmcted for five years, while a perpetrator thereof is suspended for one. This is particularly unfortunate because, assuming Arambasich’s character is as reprehensible as we are led to believe, respondent’s failure to report his activities undoubtedly caused other members of the public to suffer the extortionist’s demands. The only fact more clear than respondent’s obligation in this case was his failure to live up to it.

“Corruption within government could not, in most instances, thrive but for those few attorneys, who, like [respondent], are willing to tolerate such illegal activity if it will benefit their client. The practice of law is a privilege and demands a greater acceptance of responsibility and adherence to ethical standards than [respondent has] demonstrated.” In re Rosenthal (1978), 73 Ill. 2d 46, 56, cert. denied (1979), 440 U.S. 961, 59 L. Ed. 2d 775, 99 S. Ct. 1505.

For these reasons, I believe that disbarment is the appropriate sanction.

JUSTICE SIMON,

also dissenting:

I cannot agree that discipline is warranted in this case, and I therefore dissent.

The record shows that Frank Masters did nothing worse than protect his client, an innocent victim of a criminal extortion, in the only way he believed was realistically available. He advised his client to submit to the demands of an extortionist rather than risk the safety of its employees. At the client’s request he agreed to act as a go-between for the purpose of delivering the funds, since the extortionist refused to deal directly with the client. There is nothing in the record to suggest that his conduct was motivated by anything other than a legitimate concern for the safety of his client’s employees, as well as his son and himself. As such, he did nothing illegal, immoral or unethical. Under the circumstances, his course of action may well have been the only reasonable one available. To discipline Frank Masters for his conduct would be to punish a man for refusing to sacrifice the safety of his client’s employees for the sake of a pristine professional image.

Although the majority opinion explains the circumstances surrounding the extortion, a little more detail is needed to understand that Masters’ conclusion that compliance was the only safe course of action for his client was a reasonable one. When William Griffin, an executive officer of the Hoffman-Rosner Corporation, came to Masters in 1969 and told him of Arambasich’s armed threats against his company and its employees, Masters could not have been too surprised. As a former State’s Attorney, Masters was fully aware of Arambasich’s propensity for violence. He knew, for example, that Arambasich and some fellow members of the ironworkers union had engaged in a “jurisdictional dispute” with members of the carpenters-joiners union at a job site a few years back. Arambasich himself pistol-whipped a carpenter foreman. When Masters tried to persuade the carpenter foreman to prefer charges against Arambasich, the carpenter responded, “Mr. Masters, I’m hurt, but I’m not dead. No, thank you.” Masters also knew that, on another occasion, Arambasich and others invaded a construction site armed with clubs. At least one man was severely beaten. Again, out of fear, no one was willing to press charges. The same man was later beaten again. On still another occasion, Arambasich and others appeared at the manager’s office of a Mobil Oil Company refinery and shot holes in the ceiling.

Masters’ son, who worked summers as an ironworker under the jurisdiction of Arambasich’s union, gave him further reason to fear Arambasich. He told his father that he had seen Arambasich at various job sites shouting at contractors or other labor leaders while holding a handgun. He also told his father that a relative of Arambasich had told him that during World War II, while guarding six POWs, Arambasich shot and killed them all after one of them spit on him.

In my opinion, Masters had every reason to believe Arambasich would make good on his threats. As a former State’s Attorney, he was also aware that victims of Arambasich’s violence had not always been adequately protected from further violence in the past. In fact, it would be very difficult to guarantee protection to the large group of potential victims in this case. Unfortunately, the law is not always able to act fast enough or effectively enough to protect and reassure victims of extortion, and his professional experience taught Masters to be aware oh this shortcoming.

Several witnesses corroborated Masters’ impression of Arambasich. One witness testified to an incident involving a confrontation between Arambasich and a building contractor during which Arambasich pulled a gun from his briefcase and said, “Now, let’s negotiate.”

The Review Board itself noted, “Respondent had a legitimate basis for his fears of retaliation against both his client, himself and his family. ” This was borne out by the fact that when Masters did come forward to cooperate with the United States attorney in 1974, he received two threats on his life.

The majority, however, seems unwilling to believe that Masters remained silent for four years out of concern for the safety of his client’s employees, his son and himself. After assuming arguendo that Masters’ fear was reasonable at the time of the first payment, my colleagues state that they find it difficult to explain his failure to report the extortion until it had gone on for four years. Immediately after that statement, the majority notes that the evidence presented showed no change of circumstances which diminished the alleged danger.

The majority’s argument can be interpreted two ways. First, although the Administrator may have failed to prove lack of reasonableness initially, the court was not satisfied Masters had reasonable grounds for fear at the time of the later payments. Overlooking questions of burden of proof, if that is the majority’s argument, it has answered its own question by noting that circumstances did not change between the first payments and later payments. As far as Masters knew, Arambasich was just as likely to harm someone if the later payments were unpaid as he would have been earlier. Reporting the crime to the police at a later date could very well- prove to be an inadequate safeguard.

The majority’s argument might also be interpreted to mean that since, in 1974, Masters did report the crime even though circumstances had not changed significantly, the initial assumption that he originally acted out of fear of great bodily harm must be unfounded. If Masters was not originally acting out of fear of great bodily harm to his client’s employees, himself and his son, I see no logical explanation for what he did. It obviously did not benefit him in any way to advise and assist his client in handing over money to a man he had been trying to prosecute for years. No evidence was presented that indicates any other motive. Moreover, even a cursory view of the evidence shows his fear was eminently reasonable. The fact that Masters later discontinued the payments and no reprisals occurred is not evidence to the contrary. He decided to test the water. He called Arambasich on the telephone and told him he thought the extortion should stop, and Arambasich agreed. He sensed the danger had played itself out and decided to take the risk. He was lucky, because he was right.

The court is then faced with the question of whether a charge of a breach of ethics can be sustained under such circumstances.

First it should be emphatically noted that Masters has committed no crime. The majority acknowledges that Masters is not guilty of misprision of felony, as the Federal judge who recommended that his conduct be investigated apparently thought. Misprision of felony requires an affirmative act of concealment. (See United States v. Daddano (7th Cir. 1970), 432 F.2d 1119, 1124.) Nor is he guilty of aiding and abetting an intimidation on the grounds that he delivered the funds. Masters was acting on behalf of the victim, and a victim cannot be guilty of aiding and abetting an intimidation. (Ill. Ann. Stat., ch. 38, par. 5-2 & Committee Comments, at 288 (Smith-Hurd 1972).) It would be absurd to hold a person in Masters’ position, whose purpose is to protect the victim of an intimidation by acting as a buffer rather than to promote the interests of the extortionist, guilty of aiding and abetting the intimidation, and no one has suggested it.

The majority apparently adopts a rule, based on its interpretation of Rule 1 — 102(a)(5), that attorneys have a special duty to report or prevent crimes and not to become involved in them in any way that facilitates the crime no matter what their motivation. The nature of this new duty is not completely detailed. It is unclear whether the court considers the advice of silent compliance, or Masters’ involvement in the crime as the deliveryman, or both together, to constitute the violation. It is also unclear whether an attorney should report such a crime even over his client’s express instructions to the contrary. Careful lawyers are given no guidance. Rule 1 — 102(a)(5) does not give that guidance. That rule only provides that a lawyer shall not “engage in conduct that is prejudicial to the administration of justice.” (79 Ill. 2d R. 1-102(a)(5).) Previously the rule has been applied only in cases in which the conduct complained of related directly to a pending or contemplated legal proceeding. The majority extends the rule for the first time here.

Whatever the merits of a rule of conduct that requires an attorney to report or prevent any crimes he becomes involved in and prohibits him from facilitating them, it should not be applied in this case. Here the attorney was motivated by his concern for the safety of his client’s employees, himself and, for a time, his son. His conduct was based on the reasonable belief that any other course of action would result in serious physical harm to them. Such conduct is not only not blameworthy, it must be encouraged, for however unacceptable we find lawyers who counsel their clients to allow themselves to be victimized, they are considerably more acceptable than attorneys who permit their clients to suffer physical injury. A disciplinary rule that forces an attorney to choose between his innocent client’s safety and his career is unrealistic. How should we judge a lawyer counseling the parents of a kidnaped child to pay ransom rather than risk the loss of the child at the hands of a kidnaper who has threatened death if the authorities are notified?

One of the most disturbing aspects of the majority’s opinion is the effect it may have on the ability of persons in distress to consult a lawyer. Usually a lawyer is the one person one can expect to be able to speak openly with and be assured of confidentiality. Under the majority’s opinion, a person in the position of Hoffman-Rosner could consult anyone he chose for advice on what to do, except a lawyer, because lawyers alone may be required to inform the authorities, regardless of the danger to clients.

The majority cites In re Rosenthal (1978), 73 Ill. 2d 46, to support its contention that discipline is warranted here. That case involved the bribery of a public official who told the two lawyers involved that unless they paid him they would not receive the zoning changes that they believed their client was entitled to. Paying a city official to obtain a zoning change is a criminal offense, and a lawyer may not counsel or assist his client in committing a crime. In contrast, there is nothing illegal about paying someone not to shoot you. In addition, although the lawyers in Rosenthal argued that they were forced by threats of violence to comply with the employee’s demands, this court found that no threat of any kind occurred until well after the two lawyers had become deeply involved in the extortion/bribery case. Moreover, the court was wholly unconvinced that any real threat occurred at all. The court stated, “[R] equiring the extortionist to produce proof of his misdeeds as a condition of payment does not seem the likely act of individuals acting under duress. Rather, it appears to be the act of persons seeking a guarantee that their client has received the service for which they had bargained.” In re Rosenthal, in my reading of it, has nothing to say on the critical issues of the instant case.

I would not discipline the respondent here.


author: JUSTICE MORAN

text:
    (No. 55484.
    PPG INDUSTRIES, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ronald L. Griffith, Appellee).

      Opinion filed June 18, 1982.

      Hull, Campbell, Robinson & Gibson, of Decatur (Jon D. Robinson, of counsel), for appellant.
    Scheele, Serkland & Boyle, Ltd., of Chicago (James C. Serkland, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

PPG Industries, Inc. (PPG), appeals an order of the circuit court of Macon County which confirmed the decision of the Industrial Commission dismissing its review as untimely filed.

The facts, which are not in dispute, indicate that the claimant, Ronald Griffith, filed an application for adjustment of a claim alleging that he suffered certain injuries during the course of his employment as a laborer at PPG. The arbitrator issued his original decision on July 20, 1979. He concluded, inter alia, that the claimant suffered an industrial injury and was entitled to receive $198.80 per week for 17 weeks as compensation for temporary total incapacity. The decision was filed with the Commission on July 25, 1979. PPG concedes that it received the decision on July 30 and alleges that on the same day it mailed a petition for review to the Commission.

On August 3, the Commission sent a letter to the parties, indicating that the arbitrator was recalling his original decision due to a clerical error. The corrected decision, issued on August 7, and filed with the Commission on August 8, provided that the claimant was entitled to compensation for temporary total incapacity for a period of 262/? weeks instead of the 17 weeks originally ordered. PPG states that it returned its copy of the original decision as requested and received the corrected decision on August 16, 1979. It did not file a new petition for review with the Commission or amend its original petition subsequent to the issuance of the corrected decision.

After oral arguments, the Commission dismissed PPG’s appeal as “premature and not in accordance with the statute.” The arbitrator’s corrected decision was affirmed by the Commission. PPG then filed a petition for a writ of certiorari in the circuit court, and the claimant filed a special and limited appearance contesting the court’s jurisdiction. The court confirmed the Commission’s decision, ruling that it was “not contrary to the facts or law.” PPG appeals directly to this court pursuant to Supreme Court Rule 302(a) (73 Ill. 2d R. 302(a)).

The sole issue presented concerns the propriety of the Commission dismissing PPG’s review on the grounds that it was not filed in accordance with the applicable statute.

Section 19(f) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(f)) provides:

“The decision of the Commission acting within its powers *** shall, in the absence of fraud, be conclusive unless reviewed as in this paragraph hereinafter provided. However, the Arbitrator or the Commission may on his or its own motion, or on the motion of either party, correct any clerical error or errors in computation within 15 days after the date of receipt of any award by such Arbitrator or any decision on review of the Commission and shall have the power to recall the original award on arbitration or decision on review, and issue in lieu thereof such corrected award or decision. Where such correction is made the time for appeal or review herein specified, shall begin to run from the date of the receipt of the corrected award or decision.” (Emphasis added.)

PPG initially contends that the arbitrator’s corrected decision is “void” because it was not “issued” within 15 days from submission of the original decision. This contention is without merit. It has been held that “[s]ection 19(f) *** [is] consistent with accepted procedural practice only if [it is] interpreted to provide (1) that the arbitrator, the Commission or either party must submit any motion to correct clerical or computational errors within 15 days after the receipt of the arbitrator’s findings ***.” (International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, 188.) The 15-day limitation applies to the time an original opinion must be recalled and not to the time in which the corrected decision must be “issued.” Here, PPG received the arbitrator’s original findings on July 30. It was informed by the Commission’s letter dated August 3 that the decision was recalled. This was well within the 15-day period allowed under the section.

PPG argues that, even if the arbitrator’s corrected decision is valid, the section should not be construed so as to deprive it of review on the merits before the Commission where a petition was timely filed following the original decision of the arbitrator. This court has held “that the right to review the decision of the arbitrator by the Industrial Commission is entirely statutory and the party desiring the review must follow the statute strictly.” (Cooke v. Industrial Com. (1930), 340 Ill. 309, 312, citing Benton Coal Mining Co. v. Industrial Com. (1926), 321 Ill. 208; Gould Construction Co. v. Industrial Com. (1924), 311 Ill. 472; Gregory v. Industrial Com. (1923), 310 Ill. 409; Oelsner v. Industrial Com. (1922), 305 Ill. 158; cf. Berry v. Industrial Com. (1973), 55 Ill. 2d 274, 277 (parties seeking review of the Commission’s decision must comply with all the statutory conditions).) The emphasized portion of section 19(f), quoted above, applies to recalled decisions of the arbitrator or Commission. We construe the provision to mean that a party seeking review must file a petition within the times specified after receipt of the corrected decision.

Parties that adhere to the prescribed review procedures will not be deprived of a hearing on the merits. They are accorded specified periods to file a petition from the date of receipt of the corrected decision. (Ill. Rev. Stat. 1977, ch. 48, pars. 138.19(b), (f).) In an appropriate case, depending upon the circumstances, it may only be necessary to amend a petition for review filed prior to the issuance of a corrected decision.

Further, we believe that the decision in International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, although not directly in point, supports our interpretation of section 19(f). There the employer filed a motion with the Commission, pursuant to the section, requesting a correction in the Commission’s original decision. While the petition was still pending, the employer filed a petition for a writ of certiorari in the circuit court. The Commission subsequently entered an order denying the petition, after which the employer failed to file another petition for a writ of certiorari. It was held that the claimant’s motion to dismiss the action, on the ground that the court lacked jurisdiction, should have been granted. In so holding, the court stated “that, upon the timely submission of [a motion to correct errors], the arbitrator or the Commission shall retain exclusive jurisdiction over the cause until said motion is finally resolved; and *** that any petition for a writ of certiorari filed prior to the resolution of a motion to correct such errors is premature, in that it is based on a decision which is not final and appealable.” (71 Ill. 2d 180, 188; see also Wilson-Raymond Constructors Co. v. Industrial Com. (1980), 79 Ill. 2d 45, 56 (same principle by implication); Zbilski v. Industrial Com. (1971), 48 Ill. 2d 131, 134.) While International Harvester involved an appeal from the Commission’s decision, consistency requires the same result in a review of the arbitrator’s decision, since section 19(f) does not distinguish between procedures provided for review of an arbitrator’s award or for appeal of a decision of the Commission.

PPG places great emphasis on the dissenting opinions in International Harvester. It should be noted that the primary facts relied upon in the dissents are not present in the instant case. In International Harvester, the petition to correct an error was denied. Therefore, the original decision from which the employer appealed was not altered, and the dissents believed that the sentence in section 19(f), providing for appeals of corrected awards, was not applicable. In the instant case, the arbitrator’s decision was corrected, and the relevancy of section 19(f) is even more clear under this circumstance.

Further, the employer in International Harvester requested that the Commission correct its decision to reflect that $3,576 had been paid to the claimant through a nonoceupational group insurance plan. The dissents concluded that this request for a credit was not a clerical or computational error within the meaning of section 19(f). In the instant case, the arbitrator corrected the number of weeks upon which the rate of compensation payable was determined. This is clearly an error in computation to which section 19(f) applies.

For the reasons stated, we hold that PPG’s petition for review to the Commission was premature and thus did not conform to the applicable statutory requirement. Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.


author: JUSTICE SIMON

text:
    (No. 55057.
    LILLIAN BENSON, Appellee, v. THE INDUSTRIAL COMMISSION et al. (The Board of Education of the City of Chicago, Appellant).

      Opinion filed June 1, 1982.
    Rehearing denied October 1, 1982.

    Michael J. Murray and Patricia J. Whitten, of Chicago (Reginald D. Taylor, of counsel), for appellant.
    J. Michael Madda, of Chicago (Charles Wolff, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

At 1 p.m. on Monday, September 13, 1976, an ordinary workday, Jack Benson collapsed and fell to the floor while at work cleaning a disc with a steel brush and kerosene. Artificial resuscitation failed to revive him, and he died shortly after being taken to a hospital. No autopsy was performed, and the precise cause of his death remained uncertain throughout this litigation. His widow brought a claim for workmen’s compensation. The arbitrator concluded that the injury was compensable, but the Industrial Commission reversed, finding no causal connection between Benson’s employment and his death. The circuit court of Cook County, hearing the case on writ of certiorari, reversed the decision of the Industrial Commission and reinstated the arbitrator’s award. The Chicago board of education, Benson’s employer, appealed to this court pursuant to Rule 302(a)(2) (73 Ill. 2d R. 302(a)(2)).

At the time of his death, Jack Benson was 55 years old and had been employed steadily by the board of education as an engineer-custodian for approximately 17 years. His tasks were multifarious and apparently included whatever had to be done to put the premises of the Mayfair School, to which he was assigned at the time of his death, in order. The Mayfair School building consisted of a basement and three floors and occupied half a city block, with the school grounds occupying the other half. The building did not have elevators, so that anyone going from one floor to another had to use the stairs. Benson’s wife, while not an employee of the board of education, nonetheless followed the practice of accompanying her husband to work and helping him with his job. She was with him on the day of his death.

On the morning of his death Benson and his wife arrived at the school at 8 a.m. Benson’s first task that morning was to walk around the perimeter of the premises and inspect the property for vandalism; this took almost half an hour. Next he inspected the interior of the building, traversing each of the four floors. This took another half hour. Then he went to the basement to remove and clean nine discs in the boiler. The discs were only two inches in diameter and half an inch thick, but it took a fair amount of force to remove them from the boiler, according to Mrs. Benson’s testimony, and could only be removed by using a heavy wrench.

While Benson was working to remove the discs, a newly appointed janitor reported for work, and Benson spent the next hour showing him around upstairs and explaining what he was to do. He then resumed his task of removing the discs but was interrupted again by a second new janitor, whom he also showed around upstairs. Benson took a half-hour lunch break at noon, eating with his wife in the school basement, and then went back to cleaning the discs, a task which involved removing encrusted deposits and polishing the discs. Each disc took about 20 minutes to clean and required vigorous scrubbing with sandpaper, a steel brush and kerosene. As Benson sat on a stool scrubbing the discs, he collapsed to the floor with no warning. He died that day, apparently without regaining consciousness.

Benson was 5 feet 5 inches tall at the time of his death, weighed 220 pounds, and had no history of any heart disorders. The medical evidence shows, however, that he was hospitalized for treatment for a hiatal hernia in 1968, at which time he was off work for a week. Benson received periodic treatment for an inguinal hernia thereafter, and wore a truss for an unspecified period of time. The only other piece of tangible medical history derives from one of several visits Benson made to the Portes Cancer Prevention Clinic in 1974, two years before his death. The clinic’s report stated that Benson felt occasional dull chest pains which lasted for several minutes, occurred mostly at night, and were accompanied by an awareness of heartbeat. This had been going on for slightly more than three years. The report noted, however, that the heartbeat felt abnormally rapid on only two occasions, and it indicated that Benson’s blood pressure and weight were generally normal. The report further stated that the chest pains often occurred after Benson had eaten a big meal or consumed "gassy foods,” and it noted other kinds of discomforts, among them inguinal hernia, hiatus hernia and ulcers. In addition, the report noted one episode of syncope, or sudden loss of consciousness.

Two medical experts testified at the arbitration hearing, one for each side. Claimant’s witness, Dr. Stanley B. Wissner, gave his opinion in response to a hypothetical question that Benson was suffering from congestive heart failure at the time of his death and that the actual cause of death was a heart attack. He based this conclusion on the Portes Clinic reports of recurring chest pain and fast heartbeat, which he diagnosed as tachycardia, and of syncope, which he ascribed to cardiac rather than to intercerebral sources because the electroencephalogram in the wake of the syncope was normal. He further offered the opinion that the heart attack “could well” have been precipitated by Benson’s exertion on the job. On cross-examination, he admitted that the normality of the electroencephalogram did not necessarily rule out the possibility of an intercerebral disorder at the time of either the earlier syncope or the later attack, and that walking or any other form of exertion could conceivably cause death to a person with the cardiac condition he diagnosed Benson as having had, although light exertion was less likely to cause death than strenuous exertion. He also conceded on cross-examination that obesity could have been a factor in Benson’s heart failure, as he weighed over 200 pounds, and Dr. Wissner admitted that he did not know how much force was actually necessary to remove and polish the discs on which Benson was working at the time of his death.

Dr. William B. Buckingham, the school board’s witness, gave his opinion that the specific cause of Benson’s death was impossible to determine on the basis of the known facts, and that the work Benson did on the day of his death bore no relationship to any of the possible causes of death. The possible causes enumerated were a cerebral hemorrhage, a dissecting aneurysm of the aorta, or a ventricular tachycardia and fibrillation; only the latter two of these were heart related, but all of them, the witness asserted, were possible diagnoses given the medical history of Benson and the fact that he died without any premonitory symptoms of an attack. Dr. Buckingham stated that a cerebral hemorrhage could not be precipitated by the work Benson performed, and this assertion was not challenged on cross-examination. When cross-examined on his statement that it was unlikely that Benson’s exertion on the day he died could have precipitated his death if it was caused by an aneurysm or by ventricular fibrillation, he stated that a person with a congenital defect or a preexisting degeneration of the media of the aorta could work as a janitor and do the work Benson did on the day of his death without adverse consequences. He said that whether there was a correlation between blood pressure and the rupture of a defective wall of the aorta could not be answered “yes” or “no,” that climbing three flights of stairs of a school building could either raise or lower a person’s blood pressure, and that he could not tell whether an increase in blood pressure might render an individual more vulnerable to rupture of a dissecting aneurysm without knowing what the blood pressure had been both before and after it rose. He reiterated his doubts that physical activity alone could cause ventricular fibrillation. However, he said it is theoretically possible that increased demand for oxygen by the heart muscle can cause ventricular fibrillation, and this in turn might be brought on by an increase in physical exertion. While he expressed no opinion as to whether Benson’s activity could have led to such an increase in demand for oxygen, he agreed that “[i]f the work activity of the heart [is] two to three times the resting work activity and the onset [of the attack] occurred during the increased activity, ***” he might conclude that there was a relationship between the two, but he noted that this would depend on the circumstances of the individual.

The issue before us on this appeal is whether the Industrial Commission’s decision that the claimant had failed to demonstrate a connection between Benson’s death and his employment was against the manifest weight of the evidence. The arbitrator’s conclusion and the circuit court’s differed, of course, from that of the Industrial Commission. However, the test of whether the Commission’s decision was supported by the manifest weight of the evidence is not whether the reviewing court or any other tribunal might reach the opposite conclusion on the same evidence, but whether there was sufficient factual evidence in the record to support the Commission’s decision (A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240).

In this case the medical evidence was so sparse that the Industrial Commission could have concluded that the cause of death had not been proved. No autopsy was performed, and there was no clear evidence that Benson did or did not have any physical disorder other than a hernia before he fell dead. The medical evidence raises the possibilities that Benson at the time of his death was suffering from congestive heart disease, an aortic aneurysm, a non-congestive disorder relating to the heart muscle, a cerebral condition unrelated to the heart but leading to the danger of hemorrhage, hernias, a combination of any of the above problems, or no disorder at all. Against this background, the two medical experts presented different interpretations of what had happened, one claiming that Benson had most likely died of a heart attack, but saying nothing more specific, while the other stated that it was impossible to tell whether heart, circulatory or cerebral failure caused the death. If the Industrial Commission chose to agree with Dr. Buckingham that the cause of death could not be determined on the basis of the available evidence, or at least was not clearly a heart or circulatory disorder, we cannot say that the weight of the evidence does not support its choice. On the basis of that conclusion, claimant would not be entitled to compensation, since all her attempts to prove a connection between the death and her husband’s work revolved around proof that the exertion it required caused or precipitated a heart or circulatory failure. The Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.2) requires at a minimum that claimant show that the injury arose out of the employment (County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, 30; A. O. Smith Corp. v. Industrial Com. (1965), 33 Ill. 2d 510, 513) and that it was attributable to a “definite *** cause” (Laclede Steel Co. v. Industrial Com. (1955), 6 Ill. 2d 296, 300). The Commission could have concluded that the evidence offered by the claimant failed to prove either, and its conclusion that there was no causal connection shown between Benson’s employment and his death was supported by the evidence. For that reason we reverse the circuit court’s judgment and affirm the order of the Industrial Commission.

Judgment reversed; order affirmed.


author: JUSTICE UNDERWOOD

text:
    (No. 54946.
    FREDRICK A. SIMPSON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Martin-Marietta Corporation, Appellee).

      Opinion filed June 1, 1982.
    Rehearing denied October 1, 1982.

      Elmo E. Koos, of Peoria, for appellant.
    Heyl, Royster, Voelker & Allen, of Peoria (Rex K. Linder and Robert E. Nesemann, of counsel), for appellee.
    Harold A. Katz, Jerome Schur, Warren E. Eagle, and David E. Rapoport, of Katz, Friedman, Schur & Eagle, of Chicago, for amicus curiae James L. Wright.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

In this workmen’s compensation case (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) claimant, Fredrick A. Simpson, appeals under Rule 302(a) (73 Ill. 2d R. 302(a)) from a judgment of the circuit court of Peoria County confirming the Industrial Commission’s award of compensation for 85% loss of the use of his right arm. While he argues that error was committed by the Commission in reducing the arbitrator’s award, jurisdictional defects preclude our reaching the merits of those arguments.

The case was twice earlier before both the Industrial Commission and the circuit court. The circuit court initially remanded to the Commission to determine whether a health and safety ■ regulation, promulgated by the Commission pursuant to the Health and Safety Act (Ill. Rev. Stat. 1975, ch. 48, par. 137.1 et seq.), had been violated. The arbitrator had awarded penalties under section 19(m) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(m)), apparently for such a violation, but the Commission had set the penalty aside, without comment, in its original decision on review, and the particular regulation was not in the record. Following that remand the Commission affirmed its earlier injury award but held that on June 30, 1975, its authority to enforce the Illinois Health and Safety Act was effectively preempted by the Federal Occupational Safety and Health Act (29 U.S.C. sec. 651 et seq. (1976).) The circuit court confirmed this second decision, and it is that judgment from which this appeal was taken.

On the 21st day following his receipt of the Commission’s first decision (the 20th day being a Sunday), claimant’s counsel filed a motion captioned:

“Motion to Vacate Decision on Review to Reconsider Portions Thereof; To Amend and Increase the Amounts of Disability Therein, Including Penalty; and For Rehearing.”

The motion contained seven paragraphs. The first three recited that the arbitrator had made an award under section 19(m) for violation of a safety regulation and through “scrivener’s error or inadvertence” the Commission’s opinion did not mention it. The other paragraphs dealt with other aspects of the arbitrator’s award and stated that the Commission’s decision on review was contrary to the evidence and the law. Respondent moved to dismiss or deny, urging that no authority for such motion existed. The Commission denied the motion, and claimant filed a request for certiorari in the circuit court.

Section 19(f) provides the only method of recalling or correcting a Commission decision. (Wilson-Raymond Constructors Co. v. Industrial Com. (1980), 79 Ill. 2d 45, 56.) It provides:

“(f) The decision of the Commission acting within its powers, according to the provisions of paragraph (e) of this Section shall, in the absence of fraud, be conclusive unless reviewed as in this paragraph hereinafter provided. However, the Arbitrator or the Commission may on his or its own motion, or on the motion of either party, correct any clerical error or errors in computation within 15 days after the date of receipt of any award by such Arbitrator or any decision on review of the Commission and shall have the power to recall the original award on arbitration or decision on review, and issue in lieu thereof such corrected award or decision. Where such correction is made the time for appeal or review herein specified shall begin to run from the date of the receipt of the corrected award or decision.” (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(f).)

Claimant’s motion does characterize as a “scrivener’s error” the omission from the Commission order of any mention of the arbitrator’s award under section 19(m). However, if, despite its caption and content, that motion could somehow be construed as proper under section 19(f), it must fail because it was not filed within the specified 15-day time frame.

Claimant argues that the motion was filed under section 19(e) (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(e)) and “was predicated primarily on the fact that the first Decision on Review was contrary to the law and the facts.” In support of this theory he offers as his only authority the fact that the Commission, rather than dismissing his motion, denied it. Section 19(e), however, contains no provision for recalling a Commission decision or for rehearing. It does provide that a party may submit up to five questions of law or fact to the Commission and request findings thereon, and also affords a method for obtaining an authenticated transcript of evidence of the proceedings before the Commission. Nothing therein suggests that the time for seeking certiorari, a 20-day period running from receipt of the decision on review (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(f)(1)), is tolled under its provisions. Only a section 19(f) motion results in such tolling. International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180.

Since claimant’s motion, even if considered to qualify under section 19(f), was filed too late, it was a nullity and did not serve to toll the time for filing a petition for writ of certiorari. (Wilson-Raymond Constructors Co. v. Industrial Com. (1980), 79 Ill. 2d 45, 56.) Consequently at the expiration of the 20-day period computed from petitioner’s receipt of the decision on review, that decision became conclusive under section 19(f), and the circuit court had no jurisdiction to issue the writ. (Boalbey v. Industrial Com. (1977), 66 Ill. 2d 217; see also Perusky v. Industrial Com. (1978), 72 Ill. 2d 299, 301.) Since the circuit court never acquired jurisdiction to review the initial decision of the Commission, it became final and conclusive and the proceedings subsequent thereto were nullities.

Accordingly, respondent’s motion to dismiss this appeal, which was taken with the case, is granted.

Appeal dismissed.