Department of Central Management Services v. American Federation of State, County & Municipal Employees

NO. 5-08-0663
NOTICE
Decision filed 06/04/10. The text of
IN THE
this decision may be changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
Peti tion for Rehearing or th e
disposition of the same.
FIFTH DISTRICT
THE DEPARTM ENT OF CENTRAL ) Appeal from the
MANAGEMENT SERVICES and THE ) Circuit Court of
DEPARTMENT OF HUMAN SERVICES, ) Randolph County.
)
Petitioners-Appellants, )
)
v. )
)
AMERICAN FEDERATION OF STATE, )
COUNTY AND M UNICIPAL EMPLOYEES, )
COUNCIL 31, and RANDALL VALLEROY, )
)
Respondents-Appellees. )
--------------------------------------------------------- ) Nos. 08-MR-90 & 08-MR-92
) (consolidated)
AMERICAN FEDERATION OF STATE, )
COUNTY AND M UNICIPAL EMPLOYEES, )
COUNCIL 31, )
)
Petitioner-Appellee, )
)
v. )
)
THE DEPARTM ENT OF CENTRAL )
MANAGEMENT SERVICES and THE )
DEPARTMENT OF HUMAN SERVICES, ) Honorable
) William A. Schuwerk, Jr.,
Respondents-Appellants. ) Judge, presiding.
PRESIDING JUSTICE GOLDENHERSH delivered the opinion of the court:
Petitioners, the Illinois Department of Central Management Services and the Illinois
Department of Human Services (collectively, the Department), brought this action in the
circuit court of Randolph County against respondents, the American Federation of State,
County and M unicipal Employees, Council 31 (AFSCME), and Randall Valleroy, a member
of AFSCME and a security therapy aide I at the Chester Mental Health Center (Chester),
1
seeking to vacate an arbitration award that reinstated Valleroy to his former position.
AFSCME countered with its own petition to confirm the arbitration award. The cases were
consolidated. The circuit court denied the petition filed by the Department and granted the
petition filed by AFSCME. The Department now appeals, arguing that (1) the arbitrator's
award reinstating Valleroy to his position as a security therapy aide I must be vacated
because it violates the public policy against employing health care workers found to have
abused residents and (2) the circuit court erred in ordering Valleroy's name deleted from the
health care worker registry. Equip for Equality, a private nonprofit organization whose stated
mission is to safeguard the rights of people with physical and mental disabilities in Illinois,
filed an amicus curiae brief. We affirm.
BACKGROUND
Randall Valleroy was employed as a security therapy aide I at Chester, the maximum
security forensic psychiatric hospital operated by the Illinois Department of Human Services.
By all accounts, Valleroy was an excellent employee with no history of abuse toward patients
until the incident in question, which occurred on January 13, 2007. On that date, Valleroy
punched a patient, "W.G.," in the face or head area during an altercation. W.G. has a history
of defiance and altercations with other staff members and residents.
According to reports of the incident, Valleroy told W.G. to sit in a chair in a particular
location. W.G. initially complied but then left the area. Valleroy again directed W.G. to sit
in the chair and escorted him back to the chair. However, when they arrived at the chair, an
altercation ensued, which was initiated by W.G. When it was over, W.G. had two lacerations
over his left eyebrow and some scratches on his neck. W.G. was subdued by other staff
members and taken to a room, where he was restrained and treated by a staff nurse and a
doctor. The Department's Office of the Inspector General investigated the incident and
concluded that Valleroy physically abused W.G. The Department subsequently terminated
2
Valleroy.
After Valleroy filed a grievance, the matter went to arbitration. The arbitrator heard
the testimony of several witnesses, including Valleroy, W.G., and seven members of the staff
at Chester, and also considered the report of the Office of the Inspector General. After
considering all the evidence, the arbitrator concluded that Valleroy intentionally struck W.G.
and grabbed him by the neck in violation of the rules and regulations of the state and failed
to report the abuse. However, because of mitigating circumstances, the arbitrator altered the
form of discipline to an unpaid suspension and ordered Valleroy to be reinstated.
The arbitrator found that Valleroy had a reputation of being a good staff member who
followed all the rules and techniques of nonviolent intervention. The arbitrator also found
that Valleroy's performance evaluations since April 1, 2003, indicated that he exceeded
expectations with regard to human relations, despite being assigned to the most violent unit
at the hospital. The arbitrator further found that Valleroy had no prior problems of this
nature despite having been hit numerous times in the past by patients. Because of the
mitigating circumstances, the arbitrator ordered the discharge "converted to a disciplinary
suspension and a final warning" with "no loss of seniority."
The Department filed a petition to vacate the arbitration award in the circuit court.
AFSCM E countered with an application to confirm the arbitration award. The cases were
consolidated. Ultimately, the circuit court denied the motion to vacate and granted the
motion to confirm the award. The circuit court found that the arbitration award was not
against public policy, explaining, "It is clear from the award that the Arbitrator made a
rational finding that Randall Valleroy could capably return to and perform his duties without
impinging or undermining the public policy and without posing a risk to the public safety and
welfare[] and that [Valleroy] will refrain from future misconduct." The circuit court further
ordered the State to remove Valleroy's name from the health care worker registry pursuant
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to section 1-17(g-5) of the Department of Human Services Act (the Act) (20 ILCS 1305/1-
17(g-5) (West 2008)). The Department filed a timely notice of appeal.
ANALYSIS
I. Arbitration Award
The first issue raised by the Department is whether the arbitrator's award reinstating
Valleroy to his position as a security therapy aide I at Chester must be vacated because it
violates the explicit public policy against employing health care workers found to have
abused residents. The Department argues that an arbitration award in contravention of public
policy is not enforceable and that, by statute, the Department is precluded from employing
any person who has been found to have abused a service recipient. AFSCME responds that
the arbitrator made a rational finding that Valleroy is amenable to corrective discipline and
that, therefore, the award reinstating Valleroy does not violate public policy. We agree with
AFSCME.
The Department is correct that a court cannot enforce an arbitration award made
pursuant to a collective bargaining agreement where the award violates public policy.
American Federation of State, County & Municipal Employees v. State of Illinois, 124 Ill.
2d 246, 260, 529 N.E.2d 534, 540 (1988) (AFSCME I). This doctrine is based upon the
common law notion that courts will not lend judicial power to the enforcement of private
agreements that are immoral or illegal. United Paperworkers International Union v. Misco,
Inc., 484 U.S. 29, 42, 98 L. Ed. 2d 286, 301-02, 108 S. Ct. 364, 373 (1987). However, the
public policy exception is an extremely narrow one and should "not otherwise sanction a
broad judicial power to set aside arbitration awards." Misco, Inc., 484 U.S. at 43, 98 L. Ed.
2d at 302, 108 S. Ct. at 373. "[T]he reinstatement of an employee who has violated an
important public policy does not necessarily itself violate public policy." City of Highland
Park v. Teamster Local Union No. 714, 357 Ill. App. 3d 453, 462, 828 N.E.2d 311, 318
4
(2005).
To vacate an award under the public policy exception, courts are required to undertake
a two-step analysis. The first question is whether a well-defined and dominant public policy
can be identified. American Federation of State, County & Municipal Employees v.
Department of Central Management Services, 173 Ill. 2d 299, 307, 671 N.E.2d 668, 674
(1996) (AFSCME II). If so, the second question is whether the arbitrator's award, as reflected
in his or her interpretation of the agreement, violates public policy. AFSCME II, 173 Ill. 2d
at 307-08, 671 N.E.2d at 674.
The Department asserts that section 7.3 of the Mental Health and Developmental
Disabilities Administrative Act (20 ILCS 1705/7.3 (West 2008)) sets forth a well-defined
public policy against employing workers who have abused service recipients. It provides in
pertinent part as follows:
"Health care worker registry; finding of abuse or neglect. The Department
shall require that no facility, service agency, or support agency providing mental
health or developmental disability services that is licensed, certified, operated, or
funded by the Department shall employ a person, in any capacity, who is identified
by the health care worker registry as having been subject of a substantiated finding
of abuse or neglect of a service recipient." 20 ILCS 1705/7.3 (West 2008).
The arbitrator concluded that Valleroy intentionally struck W.G. and grabbed him by the
neck, constituting physical abuse, but nevertheless, he ordered that Valleroy be reinstated.
The Department insists that this was a violation of public policy. We disagree, relying on
AFSCME I, 124 Ill. 2d 246, 529 N.E.2d 534.
In that case, the Illinois Supreme Court considered whether an arbitrator's award
violated public policy in ordering the reinstatement of two mental health technicians who had
made an unauthorized trip to a flea market during their shift. During their absence, an
5
unattended patient at the facility died. This patient was not assigned to the ward where the
technicians were supposed to be on duty. The technicians were discharged for conduct
constituting the mistreatment of a service recipient, and their union filed a grievance. The
arbitrator's award ordered the reinstatement of the technicians on the basis that their absence
did not constitute just cause for termination. On review, the supreme court refused to vacate
the arbitration award of reinstatement on public policy grounds. W hile the supreme court
acknowledged that the compassionate care of the mentally disabled is an important public
policy, it found that the arbitration award ordering the reinstatement of the technicians did
not conflict with any laws or legal precedent relating to this public interest:
"There is simply no policy that mandates the discharge of all employees found guilty
of mistreatment of a service recipient when the arbitrator expressly finds that the
grievants were exemplary mental health employees, when punishment has been
imposed, and where no nexis exists between the infraction and the patient's tragic
death." AFSCME I, 124 Ill. 2d at 263, 529 N.E.2d at 541.
That is the case here.
In the instant case, the arbitrator found that Valleroy had no prior history of abuse,
despite having been hit by service recipients numerous times in the past while working in the
most violent unit of the hospital. The arbitrator pointed out that since April 1, 2003,
Valleroy's performance evaluations indicated that he exceeded expectations with regard to
human relations. The arbitrator also pointed out that Valleroy was "surprised and stunned
by W.G.'s initial assault" and "was in rather bad shape himself after the altercation." Most
importantly, the arbitrator concluded that the record showed that Valleroy could capably
return to work with nothing in the record to suggest that Valleroy would repeat the conduct.
Both parties have cited a multitude of cases in support of their positions. W hat this
indicates is that the public policy exception's applicability to a case is necessarily fact-
6
dependent. Under the facts presented here, where Valleroy had no prior history of abuse
despite working in our state's most violent mental health facility for several years and the
service recipient, W.G., had a history of violence, we cannot say that public policy mandates
that Valleroy be discharged.
To be sure, the compassionate care of the mentally disabled is an important public
policy. AFSCME I, 124 Ill. 2d at 262, 529 N.E.2d at 541. Furthermore, we recognize that
our General Assembly has mandated a health care worker registry, in order to prevent those
who have been the subject of a substantiated finding of abuse from abusing again. However,
it does not follow that Valleroy should not be reinstated.
There is a "long-standing principle that an employee's amenability to discipline is a
factual determination which cannot be questioned or rejected by a reviewing court."
AFSCME II, 173 Ill. 2d at 331-32, 671 N.E.2d at 685. Where an arbitrator has expressly or
by implication determined that an employee can be rehabilitated and is not likely to commit
an act that violates public policy in the future, a court would be hard-pressed to find a public
policy barring reinstatement. AFSCME II, 173 Ill. 2d at 332, 671 N.E.2d at 685 (relying on
Stead Motors of Walnut Creek v. Automotive Machinists Lodge No. 1173, 886 F.2d 1200,
1213 (9th Cir. 1989)). In Department of Central Management Services v. American
Federation of State, County & Municipal Employees, 222 Ill. App. 3d 678, 584 N.E.2d 317
(1991), a parole officer was convicted in federal court of making false statements to the
Department of Housing and Urban Development, a felony. He was discharged on the basis
that his criminal conduct brought discredit to the Department of Corrections and constituted
a violation of department rules. The arbitrator found that a discharge was not warranted, and
on appeal, the department argued that the award violated public policy. Our colleagues in
the First District disagreed, noting that other felons are employed as parole officers, the
grievant's employment record was substantially unblemished, he was independently punished
7
for his criminal act, and the reinstatement was ordered without back pay. Department of
Central Management Services, 222 Ill. App. 3d at 689, 584 N.E.2d at 323.
Here, we are mindful that the mentally disabled need compassionate care, and we are
in no way condoning Valleroy's actions; however, the arbitrator specifically found that there
was nothing in the record to indicate that Valleroy would repeat his actions. Valleroy was
reinstated without back pay; thus, punishment was imposed. Valleroy's record before this
incident was unblemished. He had received stellar evaluations for several years. The
arbitrator's reinstatement of Valleroy takes into account the difficulty of dealing with the
mentally disabled, especially violent service recipients such as W.G.
In its amicus curiae brief, Equip for Equality contends that allowing the arbitrator's
award to stand will lead to further harm to people with mental illnesses who live in mental
health facilities in Illinois. We disagree. We decline to reverse the circuit court's decision
and vacate the arbitration award, as we do not believe Valleroy's reinstatement violates
public policy.
II. Health Care Worker Registry
The Department next contends that because the arbitrator did not overturn the
imposition of discipline on Valleroy but agreed that he abused a service recipient and should
be disciplined, the circuit court erred in ordering Valleroy's name to be deleted from the
health care worker registry. The Department insists that there is no basis for the circuit court
to confirm the arbitrator's award but then order the State to remove Valleroy's name from the
health care worker registry. Equip for Equality similarly asserts that the circuit court's focus
on Valleroy's reinstatement was in error because it is not the discipline that is determinative
of whether a worker's name is placed upon the registry but rather the confirmation of the
underlying abuse, which the arbitrator concluded did occur. AFSCME replies that the
arbitrator did overturn the discharge "action" taken by the Department, so section 1-17(g-5)
8
of the Act requires that Valleroy's name be removed from the health care worker registry.
Section 1-17(g-5) of the Act provides in pertinent part as follows:
"Health care worker registry. After notice and an opportunity for a hearing that
is separate and distinct from the Office of the Inspector General's appeals process as
implemented under subsection (c) of this Section, the Inspector General shall report
to the Department of Public Health's health care worker registry under Section 3-
206.01 of the Nursing Home Care Act the identity of individuals against whom there
has been a substantiated finding of physical or sexual abuse or egregious neglect of
a service recipient.
Nothing in this subsection shall diminish or impair the rights of a person who
is a member of a collective bargaining unit pursuant to the Illinois Public Labor
Relations Act or pursuant to any federal labor statute. An individual who is a member
of a collective bargaining unit as described above shall not be reported to the
Department of Public Health's health care worker registry until the exhaustion of that
individual's grievance and arbitration rights, or until 3 months after the initiation of
the grievance process, whichever occurs first, provided that the Department of Human
Services' hearing under this subsection regarding the reporting of an individual to the
Department of Public Health's health care worker registry has concluded.
Notwithstanding anything hereinafter or previously provided, if an action taken by an
employer against an individual as a result of the circumstances that led to a finding
of physical or sexual abuse or egregious neglect is later overturned under a grievance
or arbitration procedure provided for in Section 8 of the Illinois Public Labor
Relations Act or under a collective bargaining agreement, the report must be removed
from the registry." 20 ILCS 1305/1-17(g-5) (W est 2008).
We must determine what our legislature intended by enacting this statute.
9
Legislative intent is determined by examining the language of the statute, which is
"the most reliable indicator of the legislature's objectives in enacting a particular law."
Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504, 732 N.E.2d 528,
535 (2000). Because all the provisions of a statutory enactment are viewed as a whole,
"[w]ords and phrases should not be construed in isolation[] but must be interpreted in light
of other relevant provisions of the statute." Michigan Avenue National Bank, 191 Ill. 2d at
504, 732 N.E.2d at 535. In determining the intent of the legislature, a court may properly
consider not only the language of the statute but also the reason and necessity for the law, the
evils sought to be remedied, and the purpose to be achieved. People v. Pullen, 192 Ill. 2d 36,
42, 733 N.E.2d 1235, 1238 (2000). Legislative intent can be ascertained from a
consideration of the entire statute, its nature, its object, and the consequences that would
result from construing it one way or another. Carrigan v. Illinois Liquor Control Comm'n,
19 Ill. 2d 230, 233, 166 N.E.2d 574, 576 (1960). In construing a statute, we presume that our
General Assembly did not intend absurdity, inconvenience, or injustice. Michigan Avenue
National Bank, 191 Ill. 2d at 504, 732 N.E.2d at 535.
We agree with AFSCME that the confirmation of the instant award would be
meaningless if Valleroy's name remained on the registry because no facility is allowed to
"employ a person, in any capacity, who is identified by the health care worker registry as
having been subject of a substantiated finding of abuse or neglect of a service recipient." 20
ILCS 1705/7.3 (West 2006). The second paragraph of subsection (g-5) makes it clear that
a health care worker charged with abuse cannot be deprived of his rights under the Illinois
Public Labor Relations Act (5 ILCS 315/1 et seq. (West 2008)) or a collective bargaining
agreement and that an arbitrator will determine whether or not the worker's name should
remain on the registry.
This statutory scheme indicates that there must be a balance between protecting the
10
service recipients and protecting the rights of those who provide the services. If we accept
the Department's interpretation, Valleroy would lose rights expressly protected under
subsection (g-5). We decline to accept that interpretation where the arbitrator expressly
found that Valleroy would not pose a threat to the mental health patients for whom he will
be providing services.
As previously discussed, there is no policy that mandates the discharge of an employee
found guilty of the mistreatment of a service recipient, especially when an arbitrator found
that the grievant was an exemplary mental health employee and when punishment has been
imposed. AFSCME I, 124 Ill. 2d at 263, 529 N.E.2d at 541. Even though the violation
resulted in an injury to W .G., the injury was not severe and Valleroy was not without his own
bumps and bruises. W.G. has a known propensity for violence; Valleroy was stunned and
acting out of instinct. Valleroy has been reprimanded. To allow Valleroy's name to remain
on the registry and render him unable to continue his employment would result in an injustice
under the facts presented in the record before us and would be counter to the provisions of
subsection (g-5). Under the totality of the circumstances, the arbitrator found that Valleroy
should be reinstated to his position as a security therapy aide I. If Valleroy's name remained
on the registry, he would be unable to continue in his position. The circuit court did not
exceed its authority in ordering Valleroy's name to be deleted from the registry.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Randolph County
confirming the arbitrator's award and ordering Valleroy's name to be deleted from the health
care worker registry is hereby affirmed.
Affirmed.
11
WELCH and W EXSTTEN, JJ., concur.
12
NO. 5-08-0663
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
THE DEPARTM ENT OF CENTRAL ) Appeal from the
MANAGEMENT SERVICES and THE ) Circuit Court of
DEPARTMENT OF HUMAN SERVICES, ) Randolph County.
)
Petitioners-Appellants, )
)
v. )
)
AMERICAN FEDERATION OF STATE, )
COUNTY AND M UNICIPAL EMPLOYEES, )
COUNCIL 31, and RANDALL VALLEROY, )
)
Respondents-Appellees. )
--------------------------------------------------------- ) Nos. 08-MR-90 & 08-MR-92
) (consolidated)
AMERICAN FEDERATION OF STATE, )
COUNTY AND M UNICIPAL EMPLOYEES, )
COUNCIL 31, )
)
Petitioner-Appellee, )
)
v. )
)
THE DEPARTM ENT OF CENTRAL )
MANAGEMENT SERVICES and THE )
DEPARTMENT OF HUMAN SERVICES, ) Honorable
) William A. Schuwerk, Jr.,
Respondents-Appellants. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: June 4, 2010
___________________________________________________________________________________
Justices: Honorable Richard P. Goldenhersh, P.J.
Honorable Thomas M. Welch, J., and
Honorable James M. Wexstten, J.,
Concurring
___________________________________________________________________________________
Attorneys Lisa Madigan, Attorney General, Michael A. Scodro, Solicitor General, Jerald S.
for Post, Assistant Attorney General, 100 West Randolph Street, 12th Floor, Chicago,
Appellants IL 60601; Karen I. W ard, Deborah Kennedy, Equip for Equality, Inc., 20 North
Michigan Avenue, Suite 300, Chicago, IL 60602; Stacey Aschemann, Equip for
Equality, Inc., 2150 West Main Street, Carbondale, IL 62901 (amicus curiae brief in
support of petitioners)
___________________________________________________________________________________
Attorney Gilbert Feldman, Cornfield and Feldman, 25 East W ashington Street, Suite 1400,
for Chicago, IL 60602
Appellees
___________________________________________________________________________________