Walker v. Dart , 391 Ill. Dec. 156 ( 2015 )

2015 IL App (1st) 140087
FIFTH DIVISION
March 27, 2015
No. 1-14-0087
MISTER WALKER, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. ) No. 12 CH 45227
)
THOMAS J. DART, Sheriff of Cook County, )
and THE COOK COUNTY SHERIFF'S MERIT BOARD, )
) Honorable
Defendants-Appellees. ) Sophia Hall,
) Judge Presiding.
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Mister Walker appeals from the circuit court’s order affirming the administrative
decision of defendants, the Cook County Sheriff's Merit Board (Merit Board) and Thomas J.
Dart, Cook County sheriff (Sheriff), which found that plaintiff violated certain portions of the
Sheriff's Drug Free Work Place Policy (drug policy) and warranted plaintiff's employment to be
terminated.
¶2 An investigation was opened after plaintiff's random urine screening tested positive for
oxazepam. During the investigation, plaintiff provided multiple prescription bottles, including
ones from 1995 and 2000, one of which included a medication that would yield a positive result
for oxazepam. After a complaint was filed against plaintiff, the Merit Board conducted a
hearing, concluding that the prescriptions were not valid prescriptions because of their age and
No. 1-14-0087
plaintiff's use of the medications constituted an abuse of a prescribed drug in violation of the
drug policy.
¶3 On appeal, plaintiff argues that the decision of the Merit Board was against the manifest
weight of the evidence because (1) there was insufficient evidence presented to show that
plaintiff abused prescription medication; (2) no law or written rule prohibits the possession or
use of legally prescribed medication after a certain period of time; (3) the drug policy is
unconstitutionally vague; and (4) the allegations are not sufficient for discharge.
¶4 Plaintiff, who was born March 17, 1939, was employed as a Cook County deputy sheriff
for approximately 32 years beginning in October 1980. Plaintiff also served 14 months in
Vietnam for which he was awarded a Purple Heart and a Bronze Star. In April 2011, he was
assigned to night bond court at the Criminal Courts Building. 1 On April 14, 2011, plaintiff was
randomly selected by a computer to submit a urine sample for drug testing. Plaintiff's sample
tested positive for oxazepam, which is a benzodiazephine and is a controlled substance under
schedule IV of the Illinois Controlled Substances Act (720 ILCS 570/210(c)(18) (West 2010)).
Following the positive result, an investigation was opened and a complaint was filed. The
following evidence was presented at the hearing on that complaint before the Merit Board.
¶5 Investigator Sheryl Collins testified that she had been an investigator with the Sheriff's
Office of Professional Review (OPR) for nine years. She received a notification regarding the
positive result from plaintiff's sample. Collins conducted an interview with plaintiff on May 23,
2011. Also present at the interview were Deputy Sheriff James Williams, plaintiff's union
representative, and Investigator Henry Hemphill, another member of the Sheriff's OPR.
1
Testimony was taken prior to the Criminal Courts Building being renamed The Honorable George N. Leighton
Criminal Courts Building.
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¶6 Collins testified that plaintiff told her that he had taken a "small portion" of prescription
medication lorazepam the previous evening to help him sleep. Collins stated that plaintiff
brought in several prescription bottles, but she did not review all the labels on them. She noted a
prescription bottle for lorazepam dated from 1995, from which she said plaintiff indicated he had
taken the pill. Collins stated that in her opinion that was not a current prescription. Plaintiff told
her that the medication had been prescribed by a doctor who was now deceased. She said she
told plaintiff to go to the veteran's administration hospital to see if they could assist him. She left
the investigation open for approximately three months for plaintiff to bring her additional
information.
¶7 Collins' investigation was closed when plaintiff "failed to return to our office with a legal
prescription demonstrating that he had a reason to be in possession of that controlled substance at
the time of testing." She prepared a written statement from the interview and plaintiff initialed
the statement. She stated that plaintiff's 1995 prescription was not a valid prescription at the time
of testing and was in violation of the drug policy.
¶8 On cross-examination, Collins was asked if there was a written requirement that the
prescription be current, she responded, "That is the order of the Drug Testing Unit. I've not seen
that in print, but that is the order of the Sheriff's Drug Testing Unit." Collins admitted that, to
her knowledge, she has not seen this as a written policy. A commissioner on the Merit Board
asked Collins if she was aware of a written policy where a "current prescription is defined by the
Drug Testing Unit," Collins answered that she had not seen one. When asked if the drug policy
"anywhere state[d] anything about current prescriptions," Collins essentially said this document
does not contain "the word 'current.' " Collins also confirmed that the drug policy does not
indicate that "taking a pill out of an older prescription bottle is a violation of that general order."
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Collins also testified that her written report stated that plaintiff had been legally prescribed the
medication in 1995. She stated that the report also showed that plaintiff had no prior disciplinary
history.
¶9 On redirect, Collins testified it is not a violation of the drug policy to possess or ingest
drugs or controlled substances pursuant to a valid prescription. When she was asked whether the
policy implied that drugs used pursuant to an invalid prescription would fall under the prohibited
drugs, she said yes. In her opinion, a 1995 prescription was not valid when plaintiff used it in
2011. On recross, Collins stated that she did not know if the Illinois Controlled Substances Act
imposed any time limitations on how long a prescription is valid. She stated that she received
direction from the drug testing unit that a prescription is valid for one year.
¶ 10 Peggyann Hynes testified that she was employed as the director of the sheriff's drug
testing unit. She explained the random drug testing procedures used by the unit, including how
plaintiff was selected and how the sample was collected. Once collected, the sample is sent to
Pharmatech Laboratories, which has a contract with the sheriff's office, for testing. Hynes
received a positive notification regarding plaintiff's sample from Pharmatech and forwarded the
notification to OPR for further investigation. During the OPR investigation, if the employee
provides a valid prescription to explain the positive result, then that information is sent to Hynes,
who forwards it to Pharmatech for confirmation that the prescription would yield a positive
result. If Pharmatech confirms that the prescription would cause a positive result, no case is filed
with the Merit Board. Hynes testified that in this case, she never received a notification from
OPR regarding plaintiff's positive test resulting from a prescription. Hynes said that unless OPR
forwarded her prescription information, she would be unaware that an employee had a
prescription.
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No. 1-14-0087
¶ 11 Hynes stated that she was "under the impression that a prescription is good for a year
after it's filled. After 17 years, [she] would not say that was a valid prescription." On cross-
examination, Hynes was asked what was the basis of that impression. Hynes responded that the
source was her prescription bottles. She admitted she never saw plaintiff's prescription bottles.
Hynes admitted that she had no knowledge of a limitation of a time period that prescriptions are
valid under the Illinois Controlled Substances Act, federal law, or local city or county regulations
or ordinances. Hynes also confirmed that the drug policy does not prohibit the taking of
prescription drugs after a certain period of time and there are no other policies governing the use
of drugs.
¶ 12 Justin Pham and Kevin Kodama testified via telephone as expert witnesses. Pham was
employed as a certifying scientist at Pharmatech and Kodama was employed as the laboratory
manager at Pharmatech. Pham tested plaintiff's urine sample, which yielded a positive result for
oxazepam. Pham testified that lorazepam would not test positive for oxazepam, but testified that
diazepam would result in a positive test for oxazepam.
¶ 13 Kodama testified about the laboratory and explained that the drug oxazepam was part of
the benzodiazepine drug class, which also includes lorazepam and diazepam. He explained that
the benzodiazepine drug class is "typically prescribed for anti-anxiety or [as] a sedative ***.
And this is a prescribed medication, any benzodiazepine drug is a prescribed medication, so
anyone taking that particular medication has to be under doctor's care."
¶ 14 Plaintiff testified at the hearing that he was employed by the sheriff for 32 years, starting
in October 1980. He was assigned to the Criminal Courts Building at 26th and California for 10
years prior to his termination.
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¶ 15 Plaintiff stated that he served in the Vietnam War and was exposed to Agent Orange. He
suffered from medical conditions stemming from that exposure and has taken lorazepam and
diazepam by prescription at various times to help him sleep and for anxiety as needed.
¶ 16 Plaintiff testified that after the April 2011 positive test, he explained to Collins that he
was taking lorazepam and diazepam by taking one-quarter of a tablet occasionally before bed to
help his nerves. He stated that he took diazepam the night before the drug test. He said he was
under the care of Dr. Amin in April 2011.
¶ 17 He also stated that he brought five prescription bottles to the interview with Collins, two
bottles of diazepam and three bottles of lorazepam. He testified that Collins only reviewed two
of the bottles he brought. Plaintiff testified that none of the bottles had an expiration date and the
bottle indicated for the pills to be taken "as needed." He received a new prescription for
lorazepam in May 2011 from his doctor. Plaintiff said he was unable to get a prescription for
diazepam at that time because the doctor had switched to "something else." Plaintiff stated that
he tested positive for benzodiazepine in a prior drug tests in 1995 and he brought his pharmacy
printout indicating his medications and a note from his previous physician, now deceased. He
also had a positive drug test for benzodiazepine in 1997 and he testified that he brought the
"medicine [he] was taking" and a note from the same physician. From our review of the record,
no disciplinary action occurred as a result of the prior drug tests.
¶ 18 On cross-examination, plaintiff testified that he told Collins he took diazepam the night
before his urine test. He admitted that one of the lorazepam prescription bottles he brought was
from August 1995. Plaintiff also admitted that one of the diazepam prescription bottles was from
March 2000. A commissioner noted that this prescription bottle indicated "3 refills by
6/30/2000."
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¶ 19 Plaintiff stated that he reviewed the statement Collins prepared and initialed it, but did
not add anything to the statement. Plaintiff testified that during the interview the second
investigator, Hemphill, continually interrupted plaintiff when he responded to questions and
threatened to arrest plaintiff for possession of a controlled substance. Hemphill also was present
when plaintiff reviewed the statement and continued to make threats at that time.
¶ 20 Officer James Williams testified that he was employed as a deputy sheriff with the Cook
County Sheriff. Williams was currently assigned to the Criminal Courts Building and had been
at that location for 13 years. He had known plaintiff as one of his colleagues for the 13 years he
had been at that location. Williams attended plaintiff's OPR interview in May 2011 as plaintiff's
union representative.
¶ 21 Williams stated that plaintiff brought between two and five prescription bottles to the
interview and the bottles were on the table in front of plaintiff during the interview. Williams
testified that Collins did not examine all of the prescription bottles, she reviewed two of the
bottles and there were other bottles she did not examine. He could not recall what drug plaintiff
indicated to Collins that he took; he could only remember that it ended in "pam."
¶ 22 Williams also testified that at the May 2011 interview, one of the investigators acted in a
manner that may have intimidated plaintiff. He said that "every time Investigator Collins would
try to make an inquiry regarding Mister Walker's prescription, as he would go to try to explain,
Investigator [Hemphill 2] would cut him off and on several occasions he even threatened to arrest
him." Williams further explained that Hemphill "stated that with [plaintiff's] prescriptions being
outdated he could arrest him for possession of a controlled substance." Williams said that the
investigator did not cite any authority when making these statements. Williams stated that
2
Williams referred to Investigator Hemphill as "Humphries" during his testimony, we will refer to the second
investigator as Hemphill, consistent with Collins' testimony.
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No. 1-14-0087
Hemphill did not pick up and observe plaintiff's prescription bottles or make any notations.
Williams testified that Hemphill threatened to arrest plaintiff on three different occasions.
Williams described the interview as follows:
"As Mister Walker was trying to explain to Investigator
Collins about his prescriptions, Investigator [Hemphill] would cut
in and start asking him questions about medications. And as Mister
Walker would try to explain then [sic] to Investigator [Hemphill]
about the medications, he would cut him off and tell him, you
know, [t]his is possession of a controlled substance, I can arrest
you for this. And that's when I interrupted Investigator
[Hemphill], being Mister Walker's union steward, with that line of
questioning, and Investigator [Hemphill], after the third time, told
Mister Walker he needs to get rid of the medication as soon as he
leaves OPR."
¶ 23 Williams also testified that he worked with plaintiff at the Criminal Courts Building on a
daily basis. Williams was assigned to a courtroom and plaintiff worked with the transport team.
Williams offered his opinion on plaintiff's work ethic.
"He's a very hard worker. He extends himself to help other
people out. And every time you see him, you know, he's asking,
you know, Do you need help with this? I'll come back and pick
these guys up, have them ready, etc., etc. But he's---he has a very
strong work ethic, one of the strongest ones that I have
encountered since I've been in that building for 13 years."
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No. 1-14-0087
¶ 24 Williams also testified that in his opinion, plaintiff has never been under the influence of
drugs or alcohol. He stated that he has training to determine when an individual is under the
influence of drugs or alcohol and he frequently encountered detainees that are under the
influence of drugs or alcohol when he worked at the central bond court.
¶ 25 Officer John Figueroa testified that he was employed with Cook County sheriff's
department and was currently the chief union steward. He previously worked at the criminal
courts building for 20 years.
¶ 26 As the chief union steward, Figueroa processed all grievances, including those related to
discipline. Figueroa testified that he was unaware of any express rule in the sheriff's office that
prohibits taking a prescription after the expiration of a certain period of time. He answered that
the general order regarding drug testing does not state that deputy sheriffs cannot take
prescription drugs after a certain period of time.
¶ 27 When Figueroa worked in the Criminal Courts Building, he worked with plaintiff on a
regular basis. He stated that plaintiff had a good work ethic. Figueroa did not recall
encountering a disciplinary grievance against plaintiff while he had been chief union steward.
¶ 28 Plaintiff also presented two character witnesses at the hearing. Officer Christopher Jatis
testified that he worked with plaintiff for 15 to 16 years at the Criminal Courts Building. He
"never smelled alcohol on his breath and [he] never [saw plaintiff] acting erratically as someone
being on narcotics or something." In his opinion, plaintiff was "always there side by side with
[him] willing to work, very seldom calls off, goes beyond the scope of his job, willing to help
others out and bring up prisoners. Yes, he does a really good job, you know." Jatis was unaware
of any complaints from the public or an inmate against plaintiff or of any disciplinary actions
against plaintiff.
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No. 1-14-0087
¶ 29 Officer Bassam Akel also testified that he was employed as a Cook County deputy
sheriff. He stated that he had worked with plaintiff since 1993. He said he had never observed
plaintiff to be under the influence of drugs or alcohol. In his opinion, plaintiff has "got great
work ethic. He's actually got a tremendous character. He's a very motivated worker." Akel also
testified that plaintiff was "never" late and he could not remember the last time plaintiff called
off. He was unaware of any complaints from the public or an inmate or of any discipline against
plaintiff.
¶ 30 In December 2012, the Merit Board issued its decision terminating plaintiff's
employment in violation of the drug policy. In its findings, the Merit Board stated as follows.
"The Board finds that the possession of and ingestion of
medications as testified to by the Respondent is an abuse of a
prescribed drug and a violation of the Sheriff's Drug Free Work
Place Policy. Additionally, the Board finds that prescriptions
written well over twelve years ago and seventeen years ago,
respectively, do not constitute valid prescriptions for controlled
substances.
Additionally, the Board finds the testimony of Respondent
regarding what he told Investigator Collins during his interview to
not be credible. The Board finds it unlikely that the Respondent
told Investigator Collins that he had taken Diazepam and that she
did not record that in her report. In fact, Investigator Collins
testified that she allowed the Respondent some three months to
contact the Veteran's Administration, where the Respondent had
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No. 1-14-0087
received his earlier medication, in an attempt to obtain a valid
prescription. The Respondent took no action with regard to the
Veteran's Administration.
The Board finds that the Sheriff has sustained its burden of
proof in this matter."
¶ 31 In December 2012, plaintiff filed a complaint for administrative review in the trial court.
Following briefing and arguments, the trial court affirmed the Merit Board's decision, finding
that the Merit Board's decision was not against the manifest weight of the evidence.
¶ 32 This appeal followed.
¶ 33 Plaintiff argues that the Merit Board's decision was clearly erroneous because the drug
policy does not state that employees are prohibited from taking validly obtained prescription
drugs after a certain period of time has elapsed since the prescription was filled.
¶ 34 When a party appeals the circuit court's decision on a complaint for administrative
review, the appellate court's role is to review the administrative decision rather than the circuit
court's decision. Siwek v. Retirement Board of the Policemen's Annuity & Benefit Fund, 324 Ill.
App. 3d 820, 824 (2001). The Administrative Review Law provides that judicial review of an
administrative agency decision shall extend to all questions of law and fact presented by the
entire record before the court. 735 ILCS 5/3-110 (West 2010). Further, "[t]he findings and
conclusions of the administrative agency on questions of fact shall be held to be prima facie true
and correct." 735 ILCS 5/3-110 (West 2010).
¶ 35 As a court of review, we are limited to considering the evidence submitted in the
administrative hearing. Roman v. Cook County Sheriff's Merit Board, 2014 IL App (1st) 123308,
¶ 66. "[T]he burden of proof in an administrative proceeding lies with the plaintiff in the
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proceeding, here the Sheriff." Id. A deputy sheriff may not be "removed, demoted or suspended
except for cause, upon written charges filed with the [Merit] Board by the Sheriff and a hearing
before the Board thereon," where the deputy sheriff has the right to present evidence and
argument. 55 ILCS 5/3-7012 (West 2010). "If the charges against an accused deputy sheriff are
established by a preponderance of evidence, the Board shall make a finding of guilty and order
either removal, demotion, suspension for a period of not more than 180 days, or such other
disciplinary punishment as may be prescribed by the rules and regulations of the Board which, in
the opinion of the members thereof, the offense merits." Id.
¶ 36 "The standard of review, 'which determines the degree of deference given to the agency's
decision,' turns on whether the issue presented is a question of fact, a question of law, or a mixed
question of law and fact." Comprehensive Community Solutions, Inc. v. Rockford School District
No. 205, 216 Ill. 2d 455, 471 (2005) (quoting AFM Messenger Service, Inc. v. Department of
Employment Security, 198 Ill. 2d 380, 390 (2001)). "Rulings on questions of fact will be
reversed only if against the manifest weight of the evidence." Marconi v. Chicago Heights
Police Pension Board, 225 Ill. 2d 497, 532 (2006). The clearly erroneous standard of review lies
between the manifest weight of the evidence standard and the de novo standard, and as such, it
grants some deference to the agency’s decision. AFM Messenger, 198 Ill. 2d at 392. "[W]hen
the decision of an administrative agency presents a mixed question of law and fact, the agency
decision will be deemed 'clearly erroneous' only where the reviewing court, on the entire record,
is 'left with the definite and firm conviction that a mistake has been committed.' " AFM
Messenger, 198 Ill. 2d at 395 (quoting United States v. United States Gypsum Co., 333 U.S. 364,
395 (1948)).
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No. 1-14-0087
¶ 37 "The findings of the administrative agency, however, must rest upon competent evidence
and be supported by substantial proof, and an agency may not consider a matter that is not in the
record." Gumma v. White, 345 Ill. App. 3d 610, 615 (2003). "If there is any competent evidence
supporting the agency's determination, it should be affirmed." LeCompte v. Zoning Board of
Appeals, 2011 IL App (1st) 100423, ¶ 49. However, " '[e]ven under the manifest weight
standard applicable in this instance, the deference we afford the administrative agency's decision
is not boundless.' " Kouzoukas v. Retirement Board of the Policemen's Annuity & Benefit Fund,
234 Ill. 2d 446, 465 (2009) (quoting Wade v. City of North Chicago Police Pension Board, 226
Ill. 2d 485, 507 (2007)). "When reviewing an administrative agency's decision, we may put
aside any findings which are clearly against the manifest weight of the evidence." Id.
" '[O]ur review cannot amount to a rubber stamp of the
proceedings below merely because the Board heard witnesses,
reviewed records, and made the requisite findings. [Citations.]
Even when the decision is supported by some evidence, which if
undisputed would sustain the administrative finding, it is not
sufficient if upon a consideration of all the evidence the finding is
against the manifest weight.' " Roman, 2014 IL App (1st) 123308,
¶ 68 (quoting Bowlin v. Murphysboro Firefighters Pension Board
of Trustees, 368 Ill. App. 3d 205, 211-12 (2006)).
¶ 38 We also recognize that:
"[i]n discussing opinion testimony by lay witnesses, it has
been observed:
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No. 1-14-0087
'If the basis of the opinion includes so many varying or
uncertain factors that the lay witness is required to guess or
surmise in order to reach an opinion, the opinion is
objectionable as speculation or conjecture.' " Rose v.
Mercedes-Benz U.S.A., LLC, 378 Ill. App. 3d 615, 625
(2007) (quoting Michael H. Graham, Cleary & Graham's
Handbook of Illinois Evidence § 701.1, at 597 (7th ed.
1999)).
¶ 39 "Our scope of review of an administrative agency's decision to discharge an employee is
a two-step process." Marzano v. Cook County Sheriff's Merit Board, 396 Ill. App. 3d 442, 446
(2009) (citing Walsh v. Board of Fire & Police Commissioners, 96 Ill. 2d 101, 105 (1983)).
"The first step in our analysis is to determine whether the agency's findings of fact are contrary to
the manifest weight of the evidence." Id. (citing Walsh, 96 Ill. 2d at 105). "The second step in
our analysis is to determine if the Board's findings of fact provide a sufficient basis for its
conclusion that cause for discharge exists." Id. (citing Walsh, 96 Ill. 2d at 105).
¶ 40 Following the hearing, the Merit Board found that plaintiff violated three general orders,
1002.2, 3401.1, and 3406, of the court services department of the Cook County sheriff and a rule,
article X, paragraph B, of the Merit Board because plaintiff's possession and ingestion of
medications was an abuse of a prescribed drug and that prescriptions written over 12 and 15
years ago did not constitute valid prescriptions for controlled substances. The Merit Board also
found that plaintiff's testimony that he took diazepam and informed Collins of this information
was not credible.
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No. 1-14-0087
¶ 41 The sheriff's drug policy is set forth under general order 1002.2. General order 1002.2
states:
"The unlawful involvement with drugs; the presence in an
employee's system, of drugs or controlled substances, or their
metabolites; the use of cannabis or non-prescribed controlled
substances; or the abuse of legally prescribed drugs or controlled
substances by sworn personnel, at any time, while on or off-duty
are strictly prohibited."
¶ 42 Section II(E) of Appendix A to the drug policy states, in relevant part:
"This policy does not apply to the use of controlled substances
within the limits of a medically valid prescription except where
such use is found to be an excessive or abusive use of prescribed
controlled substances."
¶ 43 General order 3401.1 details the responsibility of all sworn officers to obey the United
States and Illinois Constitutions, all federal, state, and local laws as well as decisions of the
court. Subsection (K)(1) of general order 3401.1 details the use of controlled substances.
"Members will not possess or use cannabis or any
controlled substances except when prescribed by law and
department directives or by a physician or dentist. When
controlled substances are prescribed or other medication is being
used, members will notify their superior officer if the use may
affect their job performance."
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¶ 44 General order 3406 sets forth the code of ethics and section IV states that the failure to
abide by the conditions and standards set forth is considered a violation and may result in
disciplinary action. Article X, paragraph B of the rules and regulations of the Cook County
Sheriff's Merit Board provides, in relevant part, that no deputy of the Cook County sheriff's court
services department will violate any law or statute of the state or of the United States of America,
violate any ordinance of a county or municipal government, or violate "any of the General
Orders, special orders, directives, or rules and regulations of the Cook County Sheriff's Office."
¶ 45 Defendants contend that the drug policy can be violated in three ways: (1) the presence in
an employee's system, of drugs or controlled substances, or their metabolites; (2) the use of non-
prescribed controlled substances; and (3) the abuse of legally prescribed drugs or controlled
substances. Plaintiff argues that the Merit Board's decision that he abused legally prescribed
controlled substances is against the manifest weight of the evidence because neither the drug
policy nor any of cited general orders prohibit the use of one's own prescription after a certain
period of time and the sheriff's department failed to notify defendant of its definition of abuse.
Plaintiff also contends that the policy prohibits "the abuse of legally prescribed substances," but
fails to define what would constitute "abuse" under the drug policy. Defendants ask this court to
uphold the Merit Board's decision based upon all three provisions detailed above.
¶ 46 We begin by pointing out that the Merit Board's decision was based on a finding that
plaintiff's use of medications was "an abuse of a prescribed drug and a violation of the Sheriff's
Drug Free Work Place Policy." More specifically, the Merit Board found that plaintiff's
prescriptions from 1995 and 2000 did not constitute valid prescriptions for controlled substances
and that the possession and use of those medications was an abuse of a prescription. The
decision, however, did not provide any other basis which established a violation of the drug
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No. 1-14-0087
policy. Since there was no testimony directed at the other two provisions of the drug policy and
the Merit Board made no such finding, we will limit our review to whether the Merit Board's
decision that plaintiff abused a prescribed drug was against the manifest weight of the evidence.
¶ 47 In reviewing the general orders and rules at issue, it is apparent that none of these general
orders or rules details at what point a legally obtained prescription becomes invalid. Neither
party has cited to any statute, ordinance, or rule that provides a time frame in which a legal
prescription becomes invalid and that continued use is an abuse of a prescription.
¶ 48 Defendants cite to section 312(a) of the Illinois Controlled Substances Act as authority
for the proposition that use of a prescription after six months is invalid. However, that section is
directed at pharmacists and the filling of a prescription. Section 312(a), in relevant part, provides
that "[a] written prescription for Schedule III, IV or V controlled substances shall not be filled or
refilled more than six months after the date thereof." 720 ILCS 570/312(a) (West 2010). This
statute does not contain any language restricting the use of a legally filled prescription. The
statute only mandates that a written prescription cannot be filled by a pharmacist more than 6
months after it has been issued. Therefore, we find this provision does not support the Merit
Board's conclusion that plaintiff's conduct was an abuse of a prescription medication because
plaintiff took a pill from a prescription bottle that could not be refilled.
¶ 49 We next consider whether the evidence presented at the hearing supports the Merit
Board's finding that plaintiff's use of his prescription medication constituted an abuse of a
prescription medication. Collins and Hynes offered testimony suggesting that the 1995 and 2000
prescriptions were invalid, but neither recalled seeing a written policy detailing this suggestion.
Collins admitted that policy did not include the word "current" and she had not seen a written
policy stating that taking a pill from an older prescription bottle is a violation of the drug policy.
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No. 1-14-0087
Hynes testified that she believed prescriptions were valid for one year based upon her review of
her own prescriptions. Further, she admitted that the drug policy did not have an express
prohibition on taking prescriptions after a certain period of time. This type of testimony is not
competent evidence of the existence of a policy that prescriptions older than one year are invalid
under the drug policy. Moreover, section II(E) of appendix A to the drug policy provides that
the policy "does not apply to the use of controlled substances within the limits of a medically
valid prescription except where such use is found to be *** abusive." Therefore, under the
Sheriff's current policy, the Sheriff cannot terminate employees for violations of an unwritten
policy created by employees who have no expertise whatsoever in the area of abuse of
prescription medications and who testify that the policy came from their review of their own
prescription bottles.
¶ 50 We also question whether either of the witnesses who testified for the Sheriff were
qualified to give an opinion on what abuse of a prescription medication is because neither
witness had any background or experience in the area of abuse of prescription medication. There
was no medical testimony whatsoever to establish that taking a pill from an older prescription
bottle was not within the limits of "a medically valid prescription" or that plaintiff's conduct was
an abuse of prescription medication. Further, there was no evidence to contradict plaintiff's
testimony that the amount he took the night before the test was abusive or excessive or that it
was being taken for any purpose other than that for which it was prescribed. In fact, the
testimony at the hearing was uncontradicted that plaintiff was prescribed the two types of
medication for anxiety and for difficulty sleeping on an "as needed" basis.
¶ 51 "The reviewing court gives great deference to an agency's interpretation of its own rules,
but we will not accord deference to an interpretation that is plainly erroneous or contrary to the
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No. 1-14-0087
clear language of the provision." Ress v. Office of the State Comptroller, 329 Ill. App. 3d 136,
142 (2002). "Administrative regulations have the force and effect of law and are interpreted with
the same canons as statutes." Hartney Fuel Oil Co. v. Hamer, 2013 IL 115130, ¶ 38.
Consequently, a court may not add provisions to a statute nor read any conditions not expressed
in the language. Schultz v. Illinois Farmers Insurance Co., 237 Ill. 2d 391, 408 (2010).
Contrary to the Merit Board's conclusion, nothing in the drug policy or any statute expressly
prohibits the taking of prescription medication from a bottle that cannot be refilled or that such
action would constitute the abuse of a prescription medication. The Merit Board's interpretation
of the drug policy has violated the above principles.
¶ 52 We also conclude the evidence used to support this unwritten policy that it was abuse of a
prescribed medication to ingest that medication after a certain period of time was based on guess,
speculation, and conjecture. Accordingly the testimony, which is not competent evidence,
cannot support the Merit Board's decision that plaintiff violated the Sheriff's drug policy and is
against the manifest weight of the evidence.
¶ 53 In contrast, the Second District in Gorski v. Board of Fire & Police Commissioners of the
City of Woodstock, 2011 IL App (2d) 100808, ¶ 37, held that the board established that the
plaintiff abused prescription narcotic drugs and violated the rules and regulations of the police
department as well as agreements with physicians and an agreement to return to work. There,
the Woodstock police chief filed a complaint with the board to terminate the plaintiff following
multiple positive drug urine tests. Id. ¶¶ 3-10. At the hearing, the sheriff testified that he had
the plaintiff sign a "return-to-work agreement," which "prohibited him from using controlled
substances other than those prescribed by a physician; required him to use any controlled
substance only in a manner consistent with the prescription set forth by the prescribing
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No. 1-14-0087
physician; required him to provide the police department with documentation concerning any
prescribed medication, indicating that the medication would not interfere with his duties as a
police officer; and required him to submit to drug testing within one hour of any such request."
Id. ¶ 8. The plaintiff failed to comply with this agreement when a urine screen tested positive.
Id. ¶ 9. Testimony at the hearing was presented from multiple physicians who had treated and
prescribed different types of prescription drugs to the plaintiff and that the plaintiff failed to
disclose his other prescriptions to subsequent physicians. Further, the evidence showed that the
plaintiff had obtained prescription medication from his physician father, had asked one coworker
if he could obtain prescription drugs from the coworker's girlfriend, who was a nurse, and asked
another coworker to pick up and fill a prescription for him and if the coworker's cousin, also a
physician, could provide the plaintiff with pain medication. Id. ¶¶ 12-23.
¶ 54 The board initially granted a directed finding in favor of the plaintiff, but the circuit court
reversed on administrative review and remanded for further proceedings. On remand, the board
ordered that the plaintiff be terminated. Id. ¶¶ 25-27.
¶ 55 On appeal, the reviewing court considered the board's initial directed finding in favor of
the plaintiff and held:
"It was uncontroverted that Gorski tested positive for narcotic
medications, which are controlled substances, twice after he signed
the return-to-work agreement. It was also uncontroverted that
Gorski failed to provide documentation that the controlled
substances were prescribed by a physician or that the medications
would not interfere with his duties as a police officer.
Accordingly, in light of the evidence presented by [the chief] as
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No. 1-14-0087
well as Gorski's testimony, a prima facie case was established.
Therefore, the Board's decision to grant Gorski's motion for a
directed finding was against the manifest weight of the evidence."
Id. ¶ 40.
¶ 56 Unlike the circumstances presented in Gorski, no medical testimony was presented in this
case to support the Merit Board's decision. Although we do not hold that medical testimony
must always be presented to establish a violation of the drug policy, we conclude that the
testimony presented by the Sheriff in this case was inadequate to establish that plaintiff's conduct
was an abuse of a prescription medication.
¶ 57 Finally, we find the circumstances of plaintiff's interview with Collins and Hemphill to
be troubling. First, plaintiff testified that he brought five prescription bottles, including both
lorazepam and diazepam, to his interview, but Collins only reviewed two of the bottles.
Williams corroborated that plaintiff brought between two and five bottles and that Collins did not
look at all of them. Collins admitted in her testimony that she did not review all of the bottles.
She stated she only looked at the lorazepam that plaintiff indicated he took. Plaintiff testified
that he took diazepam and advised Collins of this fact. Although the Merit Board discounted
plaintiff's testimony as not credible, the testimony at the hearing showed that plaintiff was
repeatedly interrupted and threatened by Hemphill during that interview.
¶ 58 Both plaintiff and Williams testified about Hemphill's intimidation of plaintiff, including
that Hemphill threatened to arrest plaintiff for possession of a controlled substance. Plaintiff also
testified that the repeated interruptions and threats upset him. Collins failed to fully inspect all
bottles provided by plaintiff and never forwarded any of the prescription information to Hynes
because Collins concluded it was a violation of the Sheriff's unwritten policy.
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No. 1-14-0087
¶ 59 The evidence at the hearing fails to support the Merit Board's finding that plaintiff
violated the drug policy when no written policy provided that his use of his prescriptions was
prohibited. The testimony from Collins and Hynes further demonstrated that this was not a
written part of the drug policy, but an assumption based, according to Hynes on her review of her
own prescription bottles. This, in our opinion, is not a reasonable interpretation of the drug
policy, but instead an unreasonable and arbitrary interpretation based upon speculation and
conjecture. After reviewing all of the evidence presented at the hearing, we conclude that
defendants failed to satisfy their burden of proof that plaintiff abused the prescription of a legally
prescribed drug or controlled substance. Defendants did not present competent evidence about
the existence of a policy prohibiting the use of a prescription drug after a certain period of time
and that plaintiff's positive drug test established an abuse of a prescription medication.
Accordingly, we find the decision of the Merit Board against the manifest weight of the
evidence.
¶ 60 We are not unmindful of the importance of the Sheriff's zero-tolerance drug policy;
however, if the Sheriff wished to prohibit the use of prescription medication beyond a certain
date and that the taking of one's prescriptions under such circumstances would be tantamount to
"abuse" of prescription medication, it should so provide.
¶ 61 Since we have held that the Merit Board's decision was against the manifest weight of the
evidence, we need not reach the remaining issues on appeal, including whether the drug policy is
unconstitutionally vague or that the penalty of discharge was improperly imposed.
¶ 62 Based on the foregoing, we reverse the judgment of the circuit court of Cook County and
the decision of the Merit Board terminating plaintiff's employment. Plaintiff's request for
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No. 1-14-0087
reinstatement with back pay should be granted and the Merit Board is directed to enter an order
consistent with this opinion upon remand.
¶ 63 Reversed and remanded.
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