text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRANDON EDWARDS, Defendant-Appellant.
    Fourth District
    No. 17558
    Opinion filed June 3, 1982.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Michael M. McFatridge, State’s Attorney, of Paris, for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

After a trial by jury in the circuit court of Edgar County, defendant, Brandon Edwards, was convicted on June 2, 1981, of the offenses of attempt murder and conspiracy to commit murder. He was subsequently given a single indeterminate sentence of 5 to 35 years’ imprisonment. He appeals asserting: (1) The attempt murder charge was barred by the statute of limitations (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 5(b)); (2) the trial judge’s refusal to recuse himself from hearing defendant’s motion for substitution of judge voided further proceedings; (3) the denial of the foregoing motion was error; (4) the giving of an instruction with reference to a confession was plain error; (5) the conspiracy to commit murder charge was erroneous and void; (6) defendant’s guilt of the foregoing charge was not proved beyond a reasonable doubt; (7) the sentence was an abuse of discretion; and (8) the conspiracy offense was an included offense of attempt murder.

Defendant testified at trial admitting the participation in the shooting of the victim, Glenn Nicholson, but stating that he did not intend to kill Nicholson. He further testified that in the spring of 1977, when he was 18 years old, he was recruited by Dorothy Stuck, with whom he was in love and whom he later married, and Greg Lange to kill Nicholson. Defendant related the following sequence of events to have occurred June 15, 1977: (1) Stuck drove him to the Nicholson residence; (2) he took a shotgun from the trunk of the car and aimed it at Nicholson who was in the house and visible through a window; (3) he aimed at Nicholson but as he pulled the trigger he “swiveled” the gun intending to hit a dresser that would stop the shots; (4) he fired because he was afraid of Lange and in love with Stuck; and (5) he hoped to satisfy Lange by firing the gun and still not kill Nicholson.

The information charging attempt murder was filed January 9,1981. As the alleged offense occurred on June 15, 1977, more than 3/2 years earlier, the charge was obviously barred by the three-year limitation period of section 3 — 5(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 3 — 5(b)) unless a sufficient portion of that period was tolled by the provisions of section 3 — 7(a) of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 3 — 7(a)). Section 3 — 7(a) provides that the period of limitations does not include time in which “[t]he defendant is not usually and publicly resident within this State.”

In support of defendant’s motion to dismiss the attempt murder charge on the theory that it was barred because it was not brought timely, the following undisputed facts were shown: (1) Defendant and Stuck left the State of Illinois shortly after the date of the alleged offense and were married in South Carolina; (2) they returned to Illinois less than four weeks later; (3) thereafter, defendant lived and worked in Edgar County Illinois until October 1979 when he joined the United States Navy and left the State; (4) he continually served in the navy since his enlistment and was stationed in California and Connecticut; (5) he was granted leave twice and on both occasions returned to Edgar County; and (6) he filed Illinois tax returns in 1979 and 1980 and had an Illinois driver’s license. Defendant asserted it was always his intention to return to Edgar County community after serving in the armed forces.

Relying upon the precedent of People v. Carman (1943), 385 Ill. 23, 52 N.E.2d 197, the trial court denied the motion to dismiss. The State cites Carman in support of its position that the charges against defendant were not barred because the statute of limitations was tolled while defendant was absent from the State of Illinois. In Carman, that defendant’s legal residence was in Chicago, Illinois. While visiting his father in Kentucky he was extradited to the State of Missouri where he was convicted of armed robbery and imprisoned for more than 2/2 years. Subsequently, an indictment charging him with another armed robbery was returned in Illinois more than three years after the commission of the offense. The robbery in Illinois was alleged to have been committed shortly before defendant’s arrest in Kentucky. That defendant claimed that the statute of limitations barred his prosecution. He claimed that the statute of limitations was not tolled during his involuntary absence from the State of Illinois and at no time did his residence change from Chicago, Illinois.

At the time of Carman, the statute also provided that the time for bringing criminal charges was tolled while the accused was not “usually and publicly resident within the State.” (Ill. Rev. Stat. 1941, ch. 38, par. 632.) The Carman court stated that continued legal residency was not sufficient to keep the limitation period running. Rather, the court deemed the test to be whether the accused continued to use a place of inhabitance within the State and to do so in an open and notorious way. Obviously, one confined in a penal institution elsewhere could not do so.

Some courts in other jurisdictions have held that the statute of limitations for crime is not tolled when an accused is out of the State while serving in the military. (State v. Fowler (1963), 56 Del. 519,194 A.2d 558; People v. Guariglia (1947), 272 App. Div. 784, 69 N.Y.S.2d 759; Commonwealth v. Shimpeno (1946), 160 Pa. Super. 104, 50 A.2d 39.) On the other hand, in State v. Wyman (1967), 198 Kan. 666, 426 P.2d 26, the question of whether service in the armed forces outside the State tolled the running of the limitation period was held to be a question of fact. We consider the reasoning in Carman to be just as applicable to an accused whose absence from the State resulted from military service as it is applicable to one whose absence results from incarceration.

Although the defendant returned to Edgar County twice on leaves during his tour of service, it was not his usual place of inhabitance. Although he filed State income tax returns in Illinois during this period and maintained an Illinois driver’s license, these factors did not give the open and notorious quality to his relationship to the State that his usual presence here would have given. We determine the situation here to be analogous to that in Carman and the precedent of that case to be binding on us here. The trial court properly denied the defense motion to dismiss based upon the statutory period of limitations.

Judge Ralph Rearman, who later tried the case, heard the foregoing motion to dismiss and entered his order denying the motion on March 3, 1981. On March 11,1981, defendant filed a general motion for substitution of Judge Rearman from the case. The motion was intended to cover both the provisions of section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(a)) concerning substitution as a matter of right and section 114 — 5(c) of that Code (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(c)) concerning substitution for cause. Judge Rearman heard arguments on the portion of the motion directed to section 114 — 5(a). He denied the substitution on the basis that the motion was untimely because it was made after his ruling on the motion to dismiss which he deemed to be a ruling of substance. The request under section 114 — 5(c) was assigned to another judge who later heard and denied the request.

Section 114 — 5(a) states in part: “Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion.” Defendant maintains that because Judge Rearman heard arguments with reference to these aspects of the motion, any subsequent ruling by him was void. In People v. Speck (1968), 41 Ill. 2d 177, 242 N.E.2d 208, after the case had been assigned to Judge Herbert C. Paschen for trial, the defendant made a motion for substitution of judge under section 114 — 5(a). Judge Paschen heard the motion and denied it on grounds that such a motion has always been held to be untimely when made after the judge to be disqualified has ruled on a matter of substance. On review in the supreme court the action of the trial judge was held to have been proper. Judge Rearman determined that his order on the motion to dismiss was a ruling of substance. We have previously held that a ruling on a motion to dismiss is a ruling on a motion of substance. People v. Evans (1979), 75 Ill. App. 3d 949, 394 N.E.2d 710.

Defendant argues that the statement in section 114 — 5(a) that upon the filing of the motion, “the court shall proceed no further” makes void any subsequent ruling by the judge against whom the motion was directed. No case is cited which so held when the respondent judge properly denied the motion. The precedent of Speck is to the contrary. The quoted language appears to be written in contemplation of the usual situation where the right to the substitution is automatic. The language is in contrast to that of section 114 — 5(c), which contains a direct statement that the judge against whom the motion is made shall not hear the motion. Because of our conclusion that the precedent of Speck supports our ruling here, we need not consider whether the failure to follow statutory procedure by a judge of the circuit court, a court of plenary jurisdiction, could render the order of the judge void. See In re T.E. (1981), 85 Ill. 2d 326, 423 N.E.2d 910.

Citing People v. Ehrler (1969), 114 Ill. App. 2d 171, 252 N.E.2d 227, defendant maintains that the prior ruling by Judge Pearman was merely a procedural ruling and not a substantive one. In Ehrler, the prior ruling was as to the defendant’s competency to stand trial. Here, had the court granted defendant’s requested relief and had the ruling been upheld, further prosecution of defendant would have been barred.

Judge Pearman acted with jurisdiction and ruled properly.

Defendant raises for the first time on appeal the trial court’s instruction to the jury of Illinois Pattern Instruction, Criminal, No. 3.07 (1968), which stated,

“You have before you evidence that the defendant confessed that he committed the crime charged in the information. It is for you to determine what weight should be given to the confession. In determining the weight to be given to a confession, you should consider all the circumstances under which it was made.”

When the instruction was offered, defense counsel stated he had no objection and the giving of the instruction was not cited as error in the post-trial motion. Defendant maintains the giving of the instruction was plain error because no statement of defendant admitted he shot at the victim with the mental state of an intent to kill required for attempt murder. People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28.

The instruction was based on evidence that defendant had given a pretrial statement to law enforcement officers. It set forth that after discussion with Stuck and Lange about killing Nicholson and Stuck explaining to him things Lange might do if defendant did not kill Nicholson, he and Stuck drove to Nicholson’s house where defendant took a shotgun, aimed it at Nicholson and fired. The statement contained no direct admission by defendant that he intended to kill Nicholson, but it did not contain defendant’s explanation, given at trial, that he attempted to avoid killing Nicholson. A statement constitutes a confession if it contains an admission of facts which necessarily or directly imply all of the necessary elements of the offense in issue. (People v. Mireles (1979), 79 Ill. App. 3d 173, 199, 398 N.E.2d 150, 169.) The intent to kill was clearly implied by the statement defendant gave to the officers. The giving of the instruction was proper.

The count charging defendant with conspiracy to murder alleged that the offense occurred on or about October of 1979. The prosecution proved no acts occurring after the incident of June 15, 1977, which could have been in furtherance of any such conspiracy. Because of this discrepancy between pleading and proof, defendant claims the information insufficient and void. Defendant maintained at trial that the charge was barred by the statute of limitations but did not claim that the charge was otherwise faulty. Insufficiency in the charge can be raised for the first time on appeal only if the charge fails (1) to allow the defendant to prepare a defense, or (2) to form a sufficient basis for a plea of double jeopardy if the defendant were charged again with the same offense. (People v. Gilmore (1976), 63 Ill. 2d 23, 344 N.E.2d 456; People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437.) The charge was sufficient on its face to do this. No case has been called to our attention holding that the sufficiency of a charge can be challenged for the first time on appeal merely because of a variance between allegation and proof. In any event, if defendant were again charged with an offense arising out of the conduct occurring on June 15, 1977, a plea of double jeopardy could be supported by the record in this case. (See People v. Nickson (1978), 58 Ill. App. 3d 470, 374 N.E.2d 804.) The conspiracy charge was sufficient to defeat the attack now made by defendant.

Defendant cannot now challenge the sufficiency of the evidence to support his conviction on the conspiracy count because he did not raise the issue in his post-trial motion. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

Defendant is not correct in his argument that conspiracy to commit murder is an included offense of attempt murder. The former offense requires the element of an agreement which is not a necessary element of attempt murder. Thus, it cannot be an included offense. People v. Foust (1980), 82 Ill. App. 3d 516, 401 N.E.2d 1329.

In imposing sentence, the trial court stated that defendant had shown a great deal of rehabilitation and would be unlikely to again respond to similar pressures placed on him by committing a similar offense. Nevertheless, the court stated it felt that placing defendant on probation would have an adverse effect on the community. Section 5 — 6—1(a)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, eh. 38, par. 1005 — 6—1(a)(2)) states that belief by the court that probation would deprecate the seriousness of an offender’s conduct is a justifiable reason for denying probation. We deem any statement to the contrary in People v. Knowles (1979), 70 Ill. App. 3d 30, 388 N.E.2d 261, to have been overruled by People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541. We conclude that the sentence imposed here meets the requirements of Cox.

We affirm both convictions and the single sentence imposed.

Affirmed.

MILLS and LONDRIGAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
    EL SOMBRERO CORPORATION, Plaintiff-Appellee, v. MIKE BOLIVAR, Defendant-Appellant.
    Fourth District
    No. 17620
    Opinion filed June 3,1982.
    Sorling, Northrup, Hanna, Cullen, & Cochran, Ltd., of Springfield (R. Gerald Barris and Elizabeth A. Evans, of counsel), for appellant.

      Leahy & Leahy, of Springfield, and John J. Zimmermann, of Mt. Prospect (Mary Lee Leahy and Andrew J. Leahy, of counsel), for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant Mike Bolivar appeals from a judgment of the circuit court of Sangamon County which cancelled a service mark registration issued to Bolivar and declared plaintiff the owner of the mark at issue. We affirm the order of the trial court granting plaintiff summary judgment.

The facts relevant to the ownership of the disputed service mark “El Sombrero” reflect that in 1974 defendant and one Leo Enriquez formed a corporation known as “El Sombrero” to operate a restaurant in Des Plaines. Defendant, who had emigrated from México in 1965, was employed as the chief cook of the restaurant. Prior to the corporation’s formation, defendant had conceived of the logo “El Sombrero” and had paid $600 to an artist to design a picture of a sombrero with a Mexican man and woman embracing beside it, and the words “El Sombrero” on the picture. The original El Sombrero corporation used this logo on restaurant menus, cards, and the corporate checking account. Within the first year of the original El Sombrero’s existence, Robert Vasquez, who became the principal stockholder of the plaintiff corporation, purchased a one-third interest therein and became co-owner with Boliver and Enriquez. Several months later, Vasquez and defendant purchased Enriquez’s one-third, each becoming one-half owners of the corporation’s stock.

In 1977, defendant and Vasquez sold the assets of the El Sombrero Restaurant and subsequently dissolved the original corporation. The proceeds of the sale were reinvested by defendant and Vasquez in a new restaurant operated in Mount Prospect, Illinois, and a new corporation, G.B.M., Ltd., was chartered as the instrumentality of operation for this business. After some dispute as to the respective interests of the parties in G.B.M., Ltd., Vasquez ended up with a 70% interest along with his wife, and Bolivar the remainder. This new restaurant also operated under the name “El Sombrero” and used the logo on business supplies and accounts.

In February of 1978, defendant applied to the Secretary of State of the State of Illinois for the issuance of a certificate of registration for this service mark pursuant to section 3 of “An Act to provide for the registration and protection of trade-marks, service marks and trade-names e ° *” (hereinafter Act) (Ill. Rev. Stat. 1979, ch. 140, par. 10). The registration application sworn to by Bolivar stated, in part:

“In compliance with the requirements of an Act of the General Assembly entitled ‘An Act to Provide for the Registration and Protection of Trade-Marks, Service Marks and Trade names, etc.’ * * * the undersigned applicant has adopted and is using a mark in this State for the purposes provided in said Act ° #

The certificate of registration was issued to Bolivar on March 24, 1978. There is no dispute between the parties, however, that it was the original El Sombrero Corporation that had first adopted and used the mark and that at the time of the registration it was the G.B.M., Ltd., corporation which had adopted and was using the mark.

In 1979, Boliver sold his 30% interest to Vasquez, not mentioning to him the fact of the registration of the mark in his name. According to Vasquez, the rights to the service mark were never discussed at the time of the sale. Subsequently, G.B.M., Ltd., amended its corporate charter to commence operations as the El Sombrero Corporation. In the same year Bolivar was convicted of a criminal offense and sentenced to a short term of incarceration, but before he commenced to serve the sentence, he contributed $73,000 to a Mexican restaurant in Park Forest, Illinois, operated by Manuel’s, Inc. This restaurant presently operates under the name “El Sombrero” and uses that name on its menus and on a sign advertising the restaurant.

The complaint for declaratory judgment filed in the instant cause by plaintiff prayed for the cancellation of the defendant’s certificate of registration and a declaration that plaintiff was the owner of the service mark. In the complaint, plaintiff alleged that defendant was not using the mark at the time the application was filed; that the allegation in the application for registration, to wit: “That no other person has the right, in the State of Illinois to use such mark in the identical form 0 ° was false and known to be so at the time of the registration. Following the defendant’s responses to questions at a discovery deposition, plaintiff moved for summary judgment to cancel the mark on the ground that the registrant had not used the mark prior to application for certification. On November 5, 1981, the trial court granted plaintiff’s motion for summary judgment declaring the mark was fraudulently issued, cancelling the same, and decreeing plaintiff to be the owner thereof.

We first address Bolivar’s contention that the trial , court erred in cancelling his service mark. In ruling on a motion for summary judgment, it is fundamental that the motion should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show that there is no genuine issue as to material fact, and that the movant is entitled to the judgment as a matter of law. (Ill. Rev. Stat. 1979, ch. 110, par. 57.) Viewed in the light of this standard, we hold that the trial court correctly granted plaintiff’s motion for summary judgment.

Ownership of a service mark is acquired by the adoption and use of the mark in the individual’s or entity’s business. (See Estate of Presley v. Russen (D. N.J. 1981), 513 F. Supp. 1339; 3 Callmann, The Law of Unfair Competition, Trademarks and Monopolies secs. 68.1, 76.1 (3d ed. 1969); Ill. Rev. Stat. 1979, ch. 140, par. 8(a).) The function of a mark is to identify the business in which it is used and to protect the goodwill which is symbolized by the mark. (General Baking Co. v. Goldblatt Bros., Inc. (7th Cir. 1937), 90 F. 2d 241.) Unlike a trademark whose purpose is to identify the origin and quality of a particular item, the service mark is used primarily as a guarantee of identity of services.

Once ownership has been established, the mark can be registered under both Federal law (15 U.S.C. secs. 1051 through 1127 (1976)) and State law (Ill. Rev. Stat. 1979, ch. 140, par. 10). Thus, one of the threshold requirements for registration under the Illinois Act is the necessity of adoption and use of the mark by the applicant. Section 3 of the Act provides in part:

“Subject to the limitations set forth in this Act any person who adopts and uses a mark in this State may file in the Office of the Secretary of State * * * an application for registration of that mark * * (Ill. Rev. Stat. 1979, ch. 140, par. 10.)

Under the Act, a service mark is defined as “anything adopted and used by a person to identify services rendered by him or with his authorization and which distinguishes them from services rendered by others.” (Ill. Rev. Stat. 1979, ch. 140, par. 8(a).) A person under the Act includes an individual, firm, partnership, corporation, association, union, or other organization. Ill. Rev. Stat. 1979, ch. 140, par. 8(b).

At the time of the registration of the service mark and prior thereto, the record is clear that Bolivar, individually, had never adopted and used the trademark in a business of his own. Rather, the mark was created in 1974 and initially used by the first El Sombrero corporation of which Bolivar and Enriquez were shareholders. This lack of personal use and adoption by the defendant was the primary point advanced by plaintiff in its summary judgment motion and formed a part of the basis of the trial court’s order of cancellation.

Pursuant to section 9 of the Act (Ill. Rev. Stat. 1979, ch. 140, par. 16), the Secretary of State is required to cancel any registration concerning which the circuit court finds, inter alia, that the registrant is not the owner of the mark, that the registration was granted contrary to the Act, or that the registration was obtained fraudulently. Though the circuit court premised its conclusion on the ground of fraud, it also found two additional reasons for its order. We choose not to affirm on the issue of the fraudulent procurement, but find ample reasons to affirm the judgment below, most significantly the defendant’s lack of ownership of the mark and its certification contrary to the Act.

Defendant argues we should disregard the fact of the original corporation’s use inasmuch as the original corporation was owned by only two shareholders and not by numerous individuals. Defendant believes we should treat the corporation’s use of the service mark as his use.

Defendant has not produced any authority for this position, and in the three cases we have discovered, all held contrary on precisely the same issue. (See Daytona Automotive Fiberglass v. Fiberfab, Inc. (W.D. Pa. 1979), 475 F. Supp. 33; Smith v. Coahoma Chemical Co. (C.C.P.A. 1959), 264 F.2d 916; Welscraft, Inc. v. Dougherty (1969), 164 U.S.P.Q. 31 (BNA).) All of these cases held that the use of a trademark in its business by a corporation held substantially by the registrant did not inure to the individual registrant’s benefit. These cases obviously are not controlling, but we believe the rule established to be persuasive. Defendant and the initial El Sombrero Corporation were not a single entity, and the goodwill developed and protected by this mark cannot be traced solely to him. To pierce the corporate veil used by Bolivar and treat its business as that of Bolivar disregards not only the terms of the Act requiring use by the applicant, but also ignores the function of the mark as an indicator of origin. Bolivar may have been responsible for developing the goodwill attributable to the original corporation, but this responsibility was shared by other individuals. We believe the trial court was correct in granting plaintiff’s motion for summary judgment and cancelling the certificate of registration for the trademark issued in defendant’s name.

The second issue defendant raises regarding the ownership of the mark and the trial court’s declaration thereof was correctly decided by the trial judge. There is no dispute that El Sombrero, Inc., formerly G.B.M., Ltd., had adopted and was using the name in connection with its business in Mount Prospect and that such adoption and use confers ownership rights to the mark. (See Estate of Presley; Callmann; Ill. Rev. Stat. 1979, ch. 140, par. 8(a).) Defendant’s argument that he had merely assigned his rights to G.B.M., Ltd., and his citation of authority to cases involving assignment and transfer are irrelevant since, as we have indicated, defendant had no interest to assign.

For the foregoing reasons, the order of the trial court granting plaintiff summary judgment on its complaint seeking the cancellation of the mark and a declaration of ownership is affirmed.

Affirmed.

GREEN, P. J., and WEBBER, J., concur.


author: JUSTICE LONDRIGAN

text:
    DR. JOHN WARGO, JR., et al., Plaintiffs-Appellees, v. STATE UNIVERSITIES RETIREMENT SYSTEM, Defendant-Appellant.—(THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Plaintiff-Appellee, v. STATE UNIVERSITIES RETIREMENT SYSTEM, Defendant-Appellant.)
    Fourth District
    No. 17358
    Opinion filed June 7, 1982.
    Tyrone C. Fahner, Attorney General, of Chicago (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellant.
    Billington & Billington, of Springfield, Franklin, Flynn & Palmer, of Champaign, and James J. Costello, University Counsel for the University of Illinois, of Urbana (Charles L. Palmer, of counsel), for appellees.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

The Board of Trustees of the State Universities Retirement System (SURS) decided that the four personal plaintiffs, Wargo, Sledge, Sullivan, and Moomey, are not eligible to participate in that pension fund and ordered that their service and earnings credits be erased, that their contributions be refunded, and that no future contributions be accepted from them. Wargo, Sledge, Sullivan, Moomey, and their nominal employers, the University of Illinois and Illinois State University, sought administrative review. The circuit court reversed, holding that the Board did not have the authority to make those decisions, and ordered that the four be reinstated as participants in the fund. We affirm.

The four personal plaintiffs serve as directors of two organizations, the Illinois Association of School Administrators and the Illinois Principals Association, that have affiliated themselves with the University of Illinois and Illinois State University respectively. The directors hold positions on the university faculties. The universities pay their salaries arid provide their fringe benefits; all these costs are reimbursed by the associations. The Board decided that Wargo, Sledge, Sullivan, and Moomey are not eligible to participate in SURS because they work fulltime for their associations and their associations determine the compensation and term for each position and control the work.

Article 15 of the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. 10812, pars. 15 — 101 through 15 — 196) is the statutory source of the State Universities Retirement System. Illinois State University, a regency university, and the University of Illinois are employers as defined by article 15. (Ill. Rev. Stat. 1979, ch. 108M, par. 15 — 106.) The Board argues that Wargo, Sledge, Sullivan, and Moomey are not properly classifiable as employees because they devote all their time to association business rather than to teaching and other traditional faculty duties; the Board believes that its statutory powers include the authority to decide whether a person is an employee of an article 15 employer.

Section 15 — 107 (Ill. Rev. Stat. 1979, ch. 108/2, par. 15 — 107) defines “employee” and says in part:

“ ‘Employee’: Any member of the educational, administrative, secretarial, clerical, mechanical, labor or other staff of an employer whose employment is permanent and continuous or who is employed at one-half time or more in a position in which services are expected to be rendered on a continuous basis for at least one school year, who (a) receives payment for the performance of personal services on a warrant issued pursuant to a payroll voucher certified by an employer and drawn by the State Comptroller upon the State Treasurer or by an employer upon trust, federal or other funds, or (b) is on a leave of absence without pay.”

Section 15 — 107 goes on to list exceptions and qualifications to the quoted rule; none of them are relevant here.

Article 15 does not define “employment” or “personal services”; “service” is defined (Ill. Rev. Stat. 1979, ch. 108/2, par. 15 — 113), but only with reference to calculating service credits and periods of employment.

Wargo, Sledge, Sullivan, and Moomey are paid their salaries by the universities. Illinois State University pays Sullivan and Moomey from a trust fund that was established by the agreement affiliating the Illinois Principals Association with that university; the University of Illinois follows the same approach, and the money is deposited by the Illinois Association of School Administrators in an account with the university. These procedures satisfy section 15 — 107 on the method of paying employees. The contracts between the universities and the four association directors are renewed annually; the universities send them annual notices of their appointments to the faculties; the positions are fulltime although not permanent. This satisfies the clause in section 15 — 107 regarding persons “employed at one-half time or more in a position in which services are expected to be rendered on a continuous basis for at least one school year.” Wargo, Sledge, Sullivan, and Moomey are therefore employees within the meaning of section 15 — 107.

The pension board relies on sections 15 — 159, 15 — 160, 15 — 163, and 15 — 168 (Ill. Rev. Stat. 1979, ch. 108M, pars. 15 — 159, 15 — 160, 15 — 163, 15 — 168) as granting it authority to determine who is eligible to participate in SURS. Section 15 — 159 simply creates a board of trustees to govern the fund. Section 15 — 160 grants the Board “the powers and duties stated in Sections 15 — 161 to 15 — 177, inclusive, in addition to the other powers and duties herein provided.” Section 15 — 163 says:

“To consider and pass on all applications for annuities and benefits; to authorize the granting of annuities and benefits; and to limit or suspend any payment or payments, all in accordance with this Article.”

Section 15 — 168 says:

“To require such information as shall be necessary for the proper operation of the system from any participant, beneficiary or from any officer, department head or other person or persons in authority, as the case may be, of any employer.”

These sections do not address the problem here, the Board’s power to decide whether a person is an employee. Section 15 — 163 pertains to the calculation of benefits and the disbursement of money; Wargo, Sledge, Sullivan, and Moomey, however, seek to contribute to the fund, not withdraw from it. Section 15 — 168 enables the Board to obtain information on salaries and periods of employment; we do not interpret it as expanding the Board’s powers and duties beyond those expressly stated elsewhere in the article. Nowhere does article 15 say that the Board may decide whether a person is an employee; the general provisions in the Pension Code (Ill. Rev. Stat. 1979, ch. 10812, pars. 1 — 101 through 1 — 111, 23 — 101 through 23 — 103) are also silent on this question.

The provisions governing contributions to and participation in SURS do not support the Board’s argument that it may decide who is an employee. An employer’s duties are limited to supplying the Board with vouchers, in the case of persons paid by State money, or checks, in the case of persons paid from Federal or trust funds, for the necessary contributions. (Ill. Rev. Stat. 1979, ch. 108*2, par. 15 — 181.) An employee must become a participant in SURS by the end of three years of employment; he may elect to participate when he begins his job or after his first or second year of work. (Ill. Rev. Stat. 1979, ch. 108/*2, par. 15 — 134.) Section 15 — 134 also says:

“A person who becomes a participant shall continue to be a participant until the date he becomes an annuitant, dies or accepts a refund of his contributions.”

None of the three methods of ceasing participation authorized the Board’s actions here. An annuitant is defined as “[a] person receiving a retirement, reversionary, survivors or beneficiary annuity from this System” (Ill. Rev. Stat. 1979, ch. 108M, par. 15 — 119); none of the four personal plaintiffs are annuitants. Death too is inapplicable here. Section 15 — 154 (Ill. Rev. Stat. 1979, ch. 108)2, par. 15 — 154), regarding refunds, the third method of ceasing participation, says in part:

“A participant whose status as an employee is terminated, regardless of cause, or who has been on lay off status for more than 120 days, is entitled to a refund of contributions upon application therefor if he is not on leave of absence.
A participant who terminates his status as an employee and elects to waive service credit under Section 15 — 194, shall be entitled to a refund 0 ”

We construe the phrase, “whose status as an employee is terminated,” to refer to action taken by the employer rather than by the Board. Thus, once a person becomes a participant in SURS the Board cannot interfere with his continued participation in the fund.

If the legislature had wanted the Board to have this power, the statutes would have expressed that. For example, article 4 of the Pension Code (Ill. Rev. Stat. 1979, ch. 108)2, pars. 4 — 101 through 4 — 143), on pension funds for firemen employed by cities of 500,000 or fewer persons, contains a provision on qualifications for participation in the funds. Article 15, SURS, does not contain a similar provision. In Gordan v. Board of Trustees (1966), 77 Ill. App. 2d 234, 222 N.E.2d 28, the Board denied the plaintiff’s application for enrollment in the fund. The plaintiff had been appointed as a fireman by the Joliet fire department and argued that enrollment in the pension fund was a ministerial act. Then as now section 4 — 107 said that applicants must “[b]e found upon a medical examination by a duly licensed physician selected by the Board to be then physically and mentally fit to perform the duties of a fireman.” (Ill. Rev. Stat. 1979, ch. 108)2, par. 4 — 107(b)(3).) In Gordan the Board denied the plaintiff’s application for enrollment on the basis of a doctor’s report that the plaintiff had a weak back but was otherwise fit. In upholding the Board’s decision the court said:

“The power and duty of determining whether an applicant for enrollment in the Firemen’s Pension Fund is qualified for enrollment is vested in the Board of Trustees of the Fund. The language of the Act does not confer the power of determining whether such applicant is so qualified on a physician selected by the Board but that determination is left to the Board itself.” 77 Ill. App. 2d 234, 238, 222 N.E.2d 28, 30.

Under article 15, however, the employers decide who their employees are, and that decision determines eligibility to participate in the pension fund; we find no provision in the Pension Code granting that power to the Board of Trustees of SUES.

Affirmed.

WEBBER and MILLS, JJ., concur.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES DeSPAIN, Defendant-Appellant.
    Fourth District
    No. 17601
    Opinion filed June 7, 1982.
    Brown, Hawkins, Basola & Mattingley, of Decatur (Gregory A. Mattingley, of counsel), for appellant.

      Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was arrested and incarcerated by virtue of an information filed by the State’s Attorney of Macon County alleging the offense of being a fugitive from justice (Ill. Rev. Stat. 1979, ch. 60, par. 30). In due course of time, a requisition warrant was received by the Governor of Illinois from the Governor of Arizona, and the Governor of Illinois thereupon issued his rendition warrant which was served upon defendant. Pursuant to section 10 of the Uniform Criminal Extradition Act (Act) (Ill. Rev. Stat. 1979, ch. 60, par. 27), defendant filed in the circuit court of Macon County a petition for a writ of habeas corpus. By agreement a hearing on the petition was set for October 30, 1981. Bond was fixed and defendant posted bail on October 28, 1981.

On the allotted date, October 30, the trial court heard argument on the validity of the Governor’s rendition warrant and over objection by the defendant continued the hearing for one week to allow the State to supply what appeared to be a missing document in support of the rendition warrant. On November 6, 1981, the hearing was reconvened and the trial court denied the prayer of the habeas corpus petition.

On appeal defendant maintains that the rendition warrant was fatally defective and that the trial court erred in granting the continuance. We disagree and affirm.

Section 3 of thé Act provides as follows:

“No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under Section 6, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the Executive Authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the Executive Authority making the demand.” Ill. Rev. Stat. 1979, ch. 60, par. 20.

It is at once apparent that the Act provides three alternatives: the demand must be accompanied by (1) a copy of an indictment or an . information supported by affidavit, or (2) a copy of an affidavit made before a magistrate together with a copy of any warrant issued thereon, or (3) a copy of a judgment of conviction or of sentence imposed in execution thereof, together with the statement of the demanding authority concerning escape or violation of parole.

In the instant case a copy of the Governor’s rendition warrant is attached to the petition and it recites that “The Governor of the State of Arizona * * * has produced and laid before me a copy of an Complaint, Warrant [sic] * ” Attached to the warrant are copies of instruments as follows:

1. Two copies of an Arizona Executive Department warrant for the arrest of defendant.
2. A requisition warrant from the Governor of Arizona to the Governor of Illinois.
3. A verified application for requisition to the Governor of Arizona from the County Attorney of Pinal County, Arizona.
4. An unverified statement of an investigator of the Department of Corrections of the Arizona State Prison that defendant was an inmate of the prison and escaped.
5. A copy of a warrant of arrest for defendant issued by a Justice of the Peace of Arizona, supported by an affidavit of that officer stating that he has compared “the foregoing copies of the Complaint and Warrant” with the originals on file in his office and that the copies are true and correct.
6. Authentication of the signature and office of the Justice of the Peace by the Clerk of the Superior Court of Pinal County, Arizona, and Judge of the Superior Court of Pinal County, Arizona.

Although the Governor’s rendition warrant recites that a “Complaint, Warrant” had been laid before him, no complaint appeared in the documents attached to it when served upon defendant. He therefore argued at the hearing of October 30 that the warrant was fatally defective and that he was entitled to be discharged. The trial court ruled in substance that the omission of the complaint was only a clerical error and continued the cause for one week to give the State the opportunity to supply the omission.

At the hearing of November 6 the State did supply a copy of a complaint verified before the justice of the peace alleging escape from a correctional facility in violation of Arizona law. It was accompanied by a certification of the justice of the peace and the same affidavit described as item No. 5 above was again attached.

Defendant first argues that the only documents resembling affidavits attached to the warrant are the application of the county attorney and the statement of the Department of Corrections investigator and that neither of these was executed before a magistrate as required by the Act. This argument misses the mark. While the record is somewhat muddled, it appears that the authorities were attempting to comply with alternative No. 1, a copy of an indictment or information, not with alternative No. 2, affidavits made before a magistrate. Alternative No. 1 proceeds under the requirements of section 111 — 3(b) of the Code of Criminal Procedure of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. Ill — 3(b)), which provides that an indictment shall be signed by the foreman of the grand jury and that an information shall be sworn to by the State’s Attorney. Alternative No. 2 proceeds under section 107 — 9 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 107 — 9), which provides for the issuance of a warrant upon verified complaint before a magistrate. The differences are further spelled out in sections 111 — 1 and 111 — 2 of the Code. Ill. Rev. Stat. 1979, ch. 38, pars. 111 — 1,111—2.

Some of the confusion has doubtless arisen from what appears to be a difference in terminology between Arizona and Illinois. The charging instrument, as finally produced, is entitled “Complaint (Felony)” and is signed by a complainant before a magistrate. Such a complaint would not be valid under Illinois law since all felonies are required to be prosecuted by indictment or information. (Ill. Rev. Stat. 1979, ch. 38, par. 111 — 2(a).) However, it is apparent that a “complaint” in Arizona is the generic equivalent of an information in Illinois.

Defendant further argues that there is a contradiction between the Governor’s rendition warrant, which recites that a complaint has been laid before him, and the supporting documents, which contain no such complaint. He cites People ex rel. Ritholz v. Sain (1962), 24 Ill. 2d 168, 180 N.E.2d 464, but that case is inapposite. In it the rendition warrant recited that it was based upon a complaint and warrant, while the supporting documents showed a judgment of conviction. The supreme court held the variance to be fatal. In the instant case there was no variance. When the document was ultimately supplied, it was a complaint. Furthermore, Ritholz has been strongly criticized by the supreme court in People ex rel. Brown v. Jackson (1971), 49 Ill. 2d 209, 213, 274 N.E.2d 17, 19, wherein the court labeled Ritholz as “a derelict on the body of the extradition law.”

The weight of authority is that deficiencies in the documents supporting the rendition warrant may be satisfied at a later time. In Jackson the supreme court said:

“In People ex rel. Hackler v. Lohman, 17 Ill. 2d 78, wherein we reviewed the law pertaining to extradition, at pages 88 and 89, we stated: ‘The real issue in a habeas corpus proceeding is whether the prisoner is illegally restrained. In an extradition proceeding, the initial inquiry is whether' the rendition warrant is prima facie sufficient to justify the detention. (People ex rel. Poncher v. Toman, 371 Ill. 275.) By the weight of authority, however, legal deficiencies in the rendition warrant may be cured, in habeas corpus proceedings for the discharge of the fugitive, by including with the return of the sheriff or producing at the hearing the papers on which the warrant was issued which show on their face that they are in due legal form and that the warrant was justified. 22 Am. Jur., par. 51, page 289; 89 A.L.R. 599.’ ” 49 Ill. 2d 209, 213, 274 N.E.2d 17, 19.

In the instant case the Governor’s rendition warrant is prima facie evidence by its recitals that a “complaint, warrant” had been laid before him and no contrary evidence was introduced. Therefore, the State’s prima facie case stood unrebutted,’ and the defendant was not entitled to be discharged. People ex rel. Hernandez v. Elrod (1981), 86 Ill. 2d 453, 427 N.E.2d 1209.

Defendant further argues that the trial court abused its discretion in sua sponte continuing the hearing for one week to afford the State the opportunity to provide the missing document. The trial court characterized the omission as a clerical error. Defendant cites Mann v. People (1981), 98 Ill. App. 3d 448,424 N.E.2d 883, as authority for the proposition that granting a continuance without the affidavit required by Supreme Court Rule 231(a) (73 Ill. 2d R. 231(a)) is error. We disagree.

In Mann the motion was made by the State and under a strict application of the rule the affidavit was required. In the instant case it was the court’s own motion which is governed by subparagraph (e) of Rule 231. (73 Ill. 2d R. 231(e).) That portion of the Rule provides:

“The court may on its own motion 000 continue a cause for trial to a later day.”

Undoubtedly, in the instant case, more careful attention to detail by the State was much to be desired, but all signs pointed to nothing more than a clerical error. The warrant recited that a complaint had been laid before the Governor of Illinois and the affidavit of the justice of the peace of Arizona stated that he had compared the copy of the complaint with the original. The authorities which we have already discussed demonstrate that the documentation need not be attached to the warrant but may be supplied at a later stage of the proceedings. The trial court took the obvious course to save time and effort on the part of the judiciary, the executive departments of both States, and the defendant.

The order of the circuit court of Macon County denying the relief requested and quashing the writ of habeas corpus is affirmed.

Affirmed.

MILLS and LONDRIGAN, JJ., concur.


author: JUSTICE MILLS

text:
    ROBERT W. THOMAS et al., Plaintiffs-Appellees, v. CITY OF SPRINGFIELD CIVIL SERVICE COMMISSION et al., Defendants-Appellants.
    Fourth District
    No. 17690
    Opinion filed June 7,1982.
    James K. Zerkle, Assistant Corporation Counsel, of Springfield, for appellants.
    Costello, Young & Metnick, of Springfield, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

Is a municipal employee who is laid off by the city because of budgetary and financial constraints entitled to a hearing?

No.

Reversed.

During March 1981, the City of Springfield abolished numerous employment positions by not funding those positions. Plaintiffs Thomas and Lambert were among those employees whose positions were abolished.

On March 17, 1981, the commissioner of the Department of Public Health and Safety informed plaintiffs that their respective positions as plumbing and building inspectors had been abolished. The commissioner sent a letter to each plaintiff informing him that due to budgetary constraints imposed by the city council certain positions were eliminated and that the decision to eliminate his job was not reflective on his abilities or performance, but dealt only with the tasks assigned to his job. Department of Personnel separation forms for the plaintiffs were filed on March 25, 1981, with the Springfield Civil Service Commission (the Commission), pursuant to Commission Rule 11.02, stating that the job abolishments and layoffs were due to budgetary status. On March 26, 1981, the director of personnel for the City of Springfield informed plaintiffs that a layoff plan had been filed with the commissioner. The director told plaintiffs that they would be placed on the reemployment list for call-back if another position became available.

Plaintiffs filed a complaint for wrongful discharge on May 15, 1981, before the Commission. They alleged that their termination was the result of their refusal to contribute to a political fund-raiser for the commissioner of their department and of their activities in negotiating wages and benefits for employees. One of the plaintiffs alleged that his layoff was additionally motivated by racial discrimination and personal animosity. The City of Springfield filed a motion to dismiss the complaint for lack of jurisdiction and the Commission granted the motion. The basis of the motion was that the Commission had no authority to grant hearings on the necessity of economic job abolishments. Plaintiffs then filed a complaint for administrative review in the circuit court. The court reversed the decision of the Commission and ordered the Commission to take jurisdiction and hold a hearing on the complaint.

Although plaintiffs do not contest that their jobs were actually abolished, they maintain that they were illegally discharged as a result of improper motives. Accordingly, plaintiffs maintain that they were entitled to a hearing before the Commission pursuant to section 10 — 1—18 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 1—18)— which provides that no employee in the classified service of any municipality may be removed, discharged, or suspended except for cause upon written charges, and after an opportunity to be heard in his own defense.

In Fitzsimmons v. O’Neill (1905), 214 Ill. 494, 73 N.E. 797, the plaintiff’s position as a foreman of the repair shop of the Chicago Police Department was abolished when the city council made no appropriation for the position. The plaintiff filed in the circuit court for a writ of mandamus directing the superintendent of police to reinstate the plaintiff to his former position. The Civil Service Act, which was substantially similar to the present act, provided that no employee could be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. The plaintiff maintained that the abolition of his job was illegal because he had not been given notice and had no opportunity to be heard. The court stated:

“We are of the opinion that section 12 of the Civil Service act has no application to a case like the present. That section refers to cases where an officer or employe is removed for some reason personal to himself. His right to be heard in his defense upon written charges, as specified in section 12, implies that the cause of his removal is some dereliction, or neglect of duty, or incapacity to perform duty, or some delinquency, which affects his fitness for the position occupied by him. The provision in question does not apply to a case where the incumbent is dismissed for want of funds, or in order to reduce expenses, and when at the time of the dismissal, as was the fact in the case at bar, he has notice of that fact.” 214 Ill. 494, 503, 73 N.E. 797, 799.

In an analogous situation, involving the State Civil Service Commission, the Illinois Supreme Court determined that the Commission had no jurisdiction to hold hearings for plaintiffs who had been laid off when their jobs were abolished. In Chestnut v. Lodge (1966), 34 Ill. 2d 567, 216 N.E.2d 799, the plaintiffs commenced actions in mandamus in the circuit court for the purpose of contesting their layoffs as employees of the Department of Conservation. The plaintiffs claimed that their layoffs were reviewable by the Commission under the Personnel Code. Section 11 of the Personnel Code (Ill. Rev. Stat. 1963, ch. 127, par. 63b 111) provided for hearings for employees who had been removed, discharged, demoted or suspended for cause upon written charges approved by the director of personnel. The court stated that section 11 afforded plaintiffs no right to a hearing for there had been no discharge or disciplinary action for cause, and that section 11 dealt only with relief from such administrative action.

The Chestnut court, citing Fitzsimmons, observed that “[w]e do not believe that the layoffs in the present case can be considered the same as discharges for cause or job allocations, and the review provision governing the latter are not applicable to layoffs.” (34 Ill. 2d 567,570,216 N.E.2d 799, 802.) The court rejected the appellate court’s suggestion that the plaintiffs should have proceeded under the Administrative Review Act by first presenting their complaints before the Commission. The supreme court stated:

“Since [the Administrative Review Act] is an exclusive method of review in the proper case, the areas of its applicability must be clearly defined. Under the Personnel Code, the Administrative Review Act is only applicable to decisions of the Civil Service Commission. Since we find no clear right in these plaintiffs to obtain a review of their layoffs by the Commission, we hold the Administrative Review Act is inapplicable.” 34 Ill. 2d 567, 571-72, 216 N.E.2d 799, 802.

There is no language in the Municipal Code which grants to plaintiffs a right to a hearing before the Commission to review their layoff. Furthermore, our supreme court has held that neither the State nor a city civil service commission has jurisdiction to conduct hearings involving layoffs for economic reasons. (Fitzsimmons; Chestnut.) Plaintiffs maintain that the Commission should hold a hearing to determine whether the layoff was in good faith or merely a subterfuge to conceal an illegal discharge. However, in both Fitzsimmons and Chestnut, the plaintiffs had alleged that their layoffs were in bad faith, yet the supreme court held that the respective commissions did not have jurisdiction to hear the complaints.

We note, finally, that the Personnel Code has recently been amended to authorize the State Civil Service Commission to hear appeals of layoffs filed by employees if the basis for the appeal is that the provisions of the Personnel Code or of the rules of the Department of Personnel relating to the layoff have not been complied with. (Ill. Rev. Stat. 1979, ch. 127, par. 63bll0(12).) This amendment confirms the supreme court’s holding in Chestnut that, prior to the amendment, the State Civil Service Commission lacked jurisdiction in this area. No analogous provisions have been enacted with respect to city civil service commissions acting pursuant to the Municipal Code. Therefore, the rule established in Fitzsimmons and Chestnut is still applicable to the present case.

Reversed.

GREEN, P. J., and TRAPP, J., concur.


author: JUSTICE GOLDBERG

text:
    BOARD OF EDUCATION OF BERWYN SCHOOL DISTRICT NO. 100, COOK COUNTY, Plaintiff-Appellant and Cross-Appellee, v. GEORGE METSKAS et al., Defendants-Appellees and Cross-Appellants.
    First District (1st Division)
    No. 81-1097
    Opinion filed March 29, 1982.
    Opinion modified May 10, 1982 and rehearing petitions denied May 10,1982 and June 7,1982.

      Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago (Everett E. Nicholas, Jr., and S. Rennet Rodick, of counsel), for appellant.
    Hirsh & Schwartzman, P. C., of Chicago (Wayne Schwartzman and Janet Harris Wolf, of counsel), for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

The Board of Education of Berwyn School District No. 100 in Cook County (plaintiff), acting under section 24 — 1 et seq. of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 1 etseq.), dismissed George Metskas (defendant) from his position of orchestra teacher. A hearing officer of the State Board of Education ordered reinstatement. On administrative review this order was affirmed. Plaintiff appeals.

The evidence shows defendant was first employed in 1952. His duties pertained largely to the school orchestral program. He received salary increases from time to time as provided in the collective bargaining agreement between plaintiff and the South Berwyn Educational Association. In addition to regular teaching duties, defendant rendered additional services such as his special work with the student orchéstra.

Defendant’s compensation took into account his extra services in connection with teaching and rehearsals with the members of the school orchestra. For some years defendant received a 15% addition to salary and a 5% addition for participation with the orchestra in an annual competition sponsored by a parents’ club in the area. These additions were in the amount of approximately $2,500. However, the contract tendered defendant for the school year 1977-1978 shows a reduction in this additional salary for extra duties to $1,000. This step was unilaterally taken by the plaintiff. Defendant had no knowledge thereof until he received the contract.

It is agreed that the $1,000 addition in the new contract was for concert performances by students and participation in the orchestral contest. Defendant complained verbally to the school superintendent. This touched off a flurry of correspondence between defendant and the superintendent. The details of these letters need not be noted. The correspondence continued until the early part of 1978. Defendant finally refused to participate in the contest for solo members and the entire orchestra which was held on Saturday, February 25, 1978. It may readily be surmised that part of the difficulty reflected in this appeal resulted from a difference of opinion and perhaps in personality between defendant and plaintiff’s superintendent of schools.

On December 14, 1977, plaintiff sent defendant a written notice of remediation directing defendant to perform his extra duties or face possible dismissal. This notice summarized the alleged failure and refusal of defendant to perform his duties and insubordination in that defendant failed to provide rehearsals for student participation in solo and orchestral competition and failed and refused to accompany students to the competition.

Defendant was ordered to appear at the solo and orchestra contests held on Saturday, February 25, 1978. He did not comply. Plaintiff dismissed the defendant by formal resolution on February 28, 1978.

The record shows a total of 10 charges specified in the dismissal. There was a considerable degree of duplication in these charges. However, on oral argument counsel agreed that all of the charges generally fall into two categories. First, there is a general charge that defendant was guilty of insubordination. Second, defendant is charged with harassing and intimidating students and parents with whom he came into contact.

The second type of charge is clearly rebutted by the record. This matter is concerned with various alleged complaints by parents which allegedly demonstrate emotional strain on the parents and on the students. It is clear that the plaintiff did not act on these charges because the record shows the parents communicated with the superintendent of schools regarding these matters on the date defendant was dismissed. This was some 2M months after the notice of remediation and consequently these allegations were not contained within the notice. We accordingly reject this group of charges as support for plaintiff’s position. (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 12; Grissom v. Board of Education (1979), 75 Ill. 2d 314, 332, 388 N.E.2d 398.) It remains to consider the issue of insubordination.

As indicated, the hearing officer and the trial court agree that the dismissal was improper. The findings of fact upon which the administrative body based its reversal of the dismissal are prima facie correct. (Ill. Rev. Stat. 1979, ch. 110, par. 274.) Additionally, the trial court in administrative review is duty bound to sustain the administrative findings unless they are “contrary to the manifest weight of the evidence.” (Gilliland v. Board of Education (1977), 67 Ill. 2d 143, 153, 365 N.E.2d 322, and authorities there cited.) The fact that a trial court might have drawn a different factual inference does not warrant a conclusion contrary to that reached by the administrative body. Caterpillar Tractor Co. v. Industrial Com. (1980), 81 Ill. 2d 416, 421, 410 N.E.2d 850.

The salient facts pertaining to the alleged insubordination are above set forth. However, the able trial judge reviewed the entire record and heard argument of counsel precisely as this court has done. The trial court expressly held that the hearing officer reached the correct decision that the action of defendant “was not insubordination so as to justify dismissal.”

In this regard it must also be noted that a good part of the charge of insubordination is based upon the fact that at the height of the salary dispute defendant refused to be present when the solo and orchestra competitions were held. This took place on Saturday, February 25, 1978. As defendant correctly points out, the pertinent statute (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 2), specifically provides that teachers “shall not be required to teach on Saturdays * ” A question may be raised as to whether these orchestral activities are actually teaching or are best described as nonteaching duties. (See District 300 Educational Association v. Board of Education (1975), 31 Ill. App. 3d 550, 334 N.E.2d 165, appeal denied (1975), 61 Ill. 2d 597.) Defendant urges that his job description included participation in contests and conducting of the orchestra as part of his duties. In any event this raises a question regarding the efficacy of the charge of insubordination.

We should also consider whether or not the charges centering about alleged insubordination are remediable. In Gilliland, the supreme court defined remediable cause:

“The test in determining whether a cause for dismissal is irremediable is whether damage has been done to the students, faculty or school, and whether the conduct resulting in that damage could have been corrected had the teacher’s superiors warned her.” 67 Ill. 2d 143, 153.

In the case before us, the very fact that the plaintiff sent defendant a notice of remediation would tend to indicate that the charges here are remediable. An analysis of the substance of some of the charges supports this result.

For example, the first charge is that defendant refused to follow written directives “to provide the instruction and practice sessions necessary for student participation in the solo and ensemble orchestra competition ° *

In this regard the hearing officer found that all of the testimony was to the effect that these sessions were customarily performed by music instructors and not by the respondent. Charges 2 to 7 inclusive are directed to practice and rehearsal sessions necessary for the music contests. Here, the hearing officer found that defendant testified to the contrary and there was “no testimony whatsoever that such was not the case.” We have already considered charges 8 to 10 inclusive. Charge 7, being failure to perform the duty to accompany the orchestra to the contest, has already been the subject of comment. The gravity of these charges must be considered in the light of the fact that the youth orchestra in question won second prize in the competition. We can best characterize the charge of insubordination by stating that in our opinion, if there was an element of insubordination it resulted from the unilateral reduction of defendant’s salary for the next school year which in turn precipitated the somewhat acrimonious exchange of letters between defendant and the superintendent.

Upon the consideration of the entire record, we are convinced that the findings and decision of the hearing officer are correct and are strongly supported by the evidence. We certainly cannot say that the affirmance of these findings by the able and experienced trial judge is against the manifest weight of the evidence. We can best characterize the administrative decision before us as being “just and reasonable in light of the evidence presented.” (Davern v. Civil Service Com. (1970), 47 Ill. 2d 469, 471, 269 N.E.2d 713, cert, denied (1971), 403 U.S. 918, 29 L. Ed. 2d 695, 91 S. Ct. 2229.) Insofar as the order appealed from approves the administrative decision and directs the reinstatement of the defendant, it is affirmed.

The trial court heard the evidence and found damages due the defendant in the amount of $31,200.12. We find the trial court properly decided this issue even though it had not been previously heard by the administrative body. (Compare Ill. Rev. Stat. 1979, ch. 122, pars. 24 — 12, 24 — 16; see also Neal v. Board of Education (1981), 93 Ill. App. 3d 386,417 N.E.2d 217; Miller v. Board of Education (1968), 98 Ill. App. 2d 305, 309, 240 N.E.2d 471.) We will therefore consider plaintiff’s arguments that damages were improperly awarded and defendant’s cross-appeal that the damages awarded were insufficient.

In our opinion, the measure of damages applicable in the case of a nontenured teacher may also be applied in the case at bar. In Bessler v. Board of Education (1977), 69 Ill. 2d 191, 198-99, 370 N.E.2d 1050, the court stated the principle:

“The measure of damages is the salary provided in the contract [citation] reduced by such sums as the wrongfully discharged teacher has earned or by reasonable diligence could have earned in other employment subsequent to the discharge [citation]. The employer has the burden of showing that the employee could or did have other earnings subsequent to the wrongful discharge and that those earnings stemmed from employment incompatible with the employment from which he was wrongfully discharged. [Citation.]”

Plaintiff first contends defendant failed to exercise reasonable diligence in his pursuit of other teaching jobs. Plaintiff points to defendant’s failure to contact either the State Board of Education or the Cook County Regional Superintendent and his failure to seek employment as a substitute teacher. Plaintiff contrasts defendant’s testimony he contacted eight other music teachers to inquire about job openings with the efforts of the plaintiff in Miller v. Board of Education (1968), 98 Ill. App. 2d 305. In Miller, the court held the plaintiff had exercised reasonable diligence where he had written to 134 school superintendents. 98 Ill. App. 2d 305, 311.

In our opinion, the trial judge correctly found due diligence here. Although the specific number of job contacts made by defendant was smaller than that of the plaintiff in Miller, our reading of that case and subsequent cases indicates no specific number of contacts is necessary to establish reasonable diligence. In this case, the trial court heard the testimony of the defendant as to his efforts in seeking employment. The trial court also heard defendant explain he did not pursue the contacts noted by plaintiff because he believed such efforts would be futile due to his discharge. The trial court was in a superior position to evaluate the credibility of the witness. We cannot say the ruling of the trial court that defendant did establish reasonable diligence is against the manifest weight of the evidence. Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110, 382 N.E.2d 1205.

Plaintiff next argues any damages due defendant should be reduced by the sums defendant earned from employment as a musician in the years 1978 through 1980. The evidence showed defendant earned an average of approximately $2,765.31 as a musician in 1970 through 1978 but earned over $20,000 in 1979 and $14,000 through August 1980. Plaintiff urges the large increase in earnings during the period defendant did not teach indicates his job as a musician was “incompatible” with performanee of his duties to plaintiff. Plaintiff cites People ex rel. Bourne v. Johnson (1965), 32 Ill. 2d 324, 205 N.E.2d 470. Plaintiff therefore urges these earnings of defendant should offset whatever back pay defendant is to receive as damages.

In our opinion, the trial judge properly ruled the work performed by defendant as a musician was not incompatible with defendant’s teaching position. The test for incompatibility is not the amount of earnings from the secondary employment. Rather, the test is whether there are “regulatory proscriptions or conflicting hours or duties” between the two jobs. (People ex rel. Bourne v. Johnson (1965), 32 Ill. 2d 324, 329.) As correctly noted by the trial judge, compatibility between the jobs here was shown in that defendant had worked as a musician throughout the years he was teaching. Defendant testified his duties as a musician continued to be compatible with teaching during the years as these duties were performed only on evenings or on weekends. Plaintiff, whose burden it is to prove the incompatibility of the jobs (Bessler v. Board of Education (1977), 69 Ill. 2d 191, 199), did not effectively rebut this testimony. We therefore affirm the finding of the trial judge that plaintiff is not entitled to an offset.

The trial judge awarded defendant full-time pay for the 1977-78 school year. Defendant was awarded only half-time pay for the 1978-79 and 1979-80 school years because the position defendant had held was reduced to a half-time position. In his cross-appeal, defendant urges he should have received full-time pay for all three years. Defendant contends such reduction was in violation of the tenure laws, and further notes he could have been assigned to teach additional half-time positions in the music department.

We find no reason to alter the decision of the trial judge. As stated above, the measure of damages in this case is the amount which the teacher would have earned had he not been improperly dismissed. (See Bessler v. Board of Education (1977), 69 Ill. 2d 191, 198-99.) Thus, the issues in this case are not the actions of the school administration in the reduction of defendant’s position nor the defendant’s ability to fill more than one position in the music department. We therefore do not find the decision of the trial judge in this regard is against the manifest weight of the evidence.

Defendant also contends he is entitled to extra-duty pay for the years 1977-78 and 1979-80. The question of extra-duty pay was, however, the subject of an arbitration decision included in the record before us. In that decision, defendant was specifically excluded from receiving extra-duty pay. No appeal was taken from that decision. Under the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 101 et seq.), the decision is final and cannot be disturbed by this court. (See Rosee v. Board of Trade (1976), 43 Ill. App. 3d 203,239-40,356 N.E.2d 1012, appeal denied (1977), 65 Ill. 2d 580, cert, denied (1977), 434 U.S. 837, 54 L. Ed. 2d 99, 98 S. Ct. 127.) This argument is therefore rejected. We also affirm the order appealed from concerning the right of defendant to seek a further back-pay award for years subsequent to 1980.

The judgment appealed from is therefore affirmed.

McGLOON and O’CONNOR, JJ., concur.