AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, Petitioner, v. STATE of Illinois; DEPARTMENT OF CENTRAL MANAGEMENT SERVICES (ILLINOIS COMMERCE COMMISSION); and Illinois Labor Relations Board, State Panel, Respondents.
Cornfield & Feldman LLP, of Chicago (Mark Stein and Gail E. Mrozowski, of counsel), for petitioner. Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Linda Boachie-Ansah, Assistant Attorney General, of counsel), for respondents.
JUSTICE MIKVA delivered the judgment of the court, with opinion.
Cornfield & Feldman LLP, of Chicago (Mark Stein and Gail E. Mrozowski, of counsel), for petitioner.
Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Linda Boachie-Ansah, Assistant Attorney General, of counsel), for respondents.
JUSTICE MIKVA delivered the judgment of the court, with opinion.¶ 1 This is a direct appeal from a final order of the Illinois Labor Relations Board, State Panel (Board), finding that six directors at the Illinois Commerce Commission (Commission) are managerial employees excluded from collective bargaining. The Board denied a representation petition filed by the American Federation of State, County and Municipal Employees, Council 31 (Union), seeking to include the employees in one of its existing bargaining units, and the Union now appeals. For the reasons that follow, we affirm the Board's decision and order with respect to each of the six directors that the Union seeks to represent.
¶ 3 The Illinois Commerce Commission is a quasi-judicial body, charged under the Public Utilities Act ( 220 ILCS 5/1–101 et seq. (West 2016)) with regulating public utilities in the state. 220 ILCS 5/2–101, 3–105, 4–101, 4–201, 13–101 (West 2016). The Commission is engaged in, among other things, rate-setting, the certification of private entities seeking to provide public utilities, safety oversight, and the investigation and resolution of complaints against utility companies. American Federation of State, County, & Municipal Employees (AFSCME), Council 31 v. State of Illinois , 2014 IL App (1st) 130655, ¶ 3, 388 Ill.Dec. 769, 25 N.E.3d 52 (hereinafter AFSCME ). The Commission is comprised of five commissioners, who appoint an executive director to oversee its day-to-day operations. 220 ILCS 5/2–101, 2–105(a) (West 2016). The executive director is authorized to organize the Commission into bureaus or other subunits and to delegate the supervision and direction of those bureaus to staff members. Id. § 2–105(a). Bureaus are typically headed by chiefs and subdivided into divisions headed by directors. At present, six bureaus and an Office of Retail Market Development report to the executive director.
¶ 4 On October 5, 2010, the Union filed a representation petition with the Board seeking to include nine directors in its RC–63 bargaining unit. The Commission opposed the petition, arguing that the directors are excluded from collective bargaining for three reasons: because they are managerial employees pursuant to section 3(j) of the Illinois Public Labor Relations Act (Labor Relations Act) ( 5 ILCS 315/3(j) (West 2010)); the directors are supervisory employees, pursuant to section 3(r) (id. § 3(r)); and the directors are confidential employees, pursuant to section 3(c) (id. § 3(c)). The Commission alternatively argued that, even if the directors are not excluded from collective bargaining, the RC–63 unit is not the appropriate bargaining unit for those employees. The Union ultimately stipulated that three of the nine directors should be excluded from the bargaining unit, leaving the status of only six directors in dispute. They are (1) Torsten Clausen, director of the Office of Retail Market Development; (2) Jerry Oxley, director of Information Technology Services in the Bureau of Planning and Operations; (3) Peter Muntaner, director of Consumer Services in the Bureau of External Affairs; and (4) Harry Stoller, Joy Nicdao–Cuyugan, and Jim Zolnierek, the directors, respectively, of the Energy, Financial Analysis, and Telecommunications Divisions of the Bureau of Public Utilities.¶ 5 At an evidentiary hearing in June 2011, the administrative law judge (ALJ) in this case heard testimony primarily from the Commission's executive director and the bureau chiefs to whom these six directors report. In her recommended decision and order issued on February 27, 2013, the ALJ recommended that the Board find that three of the directors (Mr. Clausen, Mr. Oxley, and Mr. Muntaner) were managerial employees excluded from collective bargaining and that the remaining three directors (Mr. Stoller, Ms. Nicdao–Cuyugan, and Mr. Zolnierek) were public employees with full collective bargaining rights. Both the Union and the Commission filed exceptions to the ALJ's recommendations.
¶ 6 The Board agreed in part with the ALJ, finding in its February 14, 2014, decision and order that all six directors were managerial employees. The Union appealed directly to this court. To avoid repetition, where we discuss the Board's finding as to each of the directors below, we include in that discussion a summary of the relevant evidence and the ALJ's recommendations.
¶ 7 Briefing in this case was stayed pending decisions by the Fourth District in Department of Central Management Services/The Illinois Commerce Comm'n v. Illinois Labor Relations Board, State Panel , 2015 IL App (4th) 131022, 2015 WL 1577123, and by this district in American Federation of State, County, & Municipal Employees (AFSCME), Council 31 v. State , 2016 IL App (1st) 133866-U, 2016 WL 283529. The stay was lifted in January 2017.
¶ 9 The Board entered its final order, dismissing the Union's petition in this matter on February 14, 2014, and the Union timely filed its petition for review on March 10, 2014. Orders of the Board dismissing representation petitions are final orders and may, in accordance with provisions of the Administrative Review Law ( 735 ILCS 5/3–101 et seq . (West 2012)), be appealed directly to the appellate court for the district in which the aggrieved party resides or transacts business. 5 ILCS 315/9(i) (West 2010). We have jurisdiction over this matter pursuant to section 9(i) of the Labor Relations Act (id. ), section 3–113 of the Code of Civil Procedure ( 735 ILCS 5/3–113 (West 2012) ), and Illinois Supreme Court Rule 335 ( Ill. S. Ct. R. 335 (eff. Feb. 1, 1994)).
¶ 11 The issue before us is whether the Board properly classified each of these six Commission directors as managerial. By law, an employee's classification determines his or her right to engage in collective bargaining. The Labor Relations Act, which allows public employees to bargain collectively ( 5 ILCS 315/2.5(1) (West 2010)), specifically excludes "managerial employees" from the definition of a "[p]ublic employee" (id. § 3(n)). As our supreme court has explained, "[t]he exclusion is intended to maintain the distinction between management and labor and to provide the employer with undivided loyalty from its representatives in management." Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations Board , 178 Ill. 2d 333, 339, 227 Ill.Dec. 313, 687 N.E.2d 795 (1997). In accordance with these goals, "managerial status is not limited to those at the very highest level of the governmental entity." (Internal quotation marks omitted.) Office of the Cook County State's Attorney v. Illinois Local Labor Relations Board , 166 Ill. 2d 296, 301, 209 Ill.Dec. 761, 652 N.E.2d 301 (1995). Rather, "it is enough if the functions performed by the employee[s] sufficiently align [them] with management such that the employees should not be in a position requiring them to divide their loyalty to the administration * * * with their loyalty to an exclusive collective-bargaining representative." (Internal quotation marks omitted.) Id.
¶ 12 On review from this final order by the Board, we apply different levels of deference depending on the nature of the question presented. Although we consider an agency's ruling on issues of law de novo , we deem its findings on issues of fact to be prima facie correct unless they are against the manifest weight of the evidence. Speed District 802 v. Warning , 242 Ill. 2d 92, 111–12, 351 Ill.Dec. 241, 950 N.E.2d 1069 (2011) ; 735 ILCS 5/3–110 (West 2012). We also defer to an agency's experience and subject-matter expertise when considering mixed questions of law and fact and will reverse the agency's findings on mixed questions only if they are clearly erroneous. City of Belvidere v. Illinois State Labor Relations Board , 181 Ill. 2d 191, 205, 229 Ill.Dec. 522, 692 N.E.2d 295 (1998). A finding is clearly erroneous when "the reviewing court, on the entire record, is ‘left with the definite and firm conviction that a mistake has been committed.’ " AFM Messenger Service, Inc. v. Department of Employment Security , 198 Ill. 2d 380, 395, 261 Ill.Dec. 302, 763 N.E.2d 272 (2001) (quoting United States v. United States Gypsum Co. , 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948) ).
¶ 13 Here, the Union does not challenge the Board's findings of fact, but contends both that the Board applied incorrect legal standards and that its ultimate conclusions—that each of the six directors were managerial employees—were clearly erroneous. We first consider the proper legal standards.
¶ 15 The Union contends that the Board applied an improper legal standard in two respects. It first argues that the Board should not have relied on this court's recent interpretation in AFSCME , 2014 IL App (1st) 130655, ¶ 29, 388 Ill.Dec. 769, 25 N.E.3d 52, of the word "predominantly" in section 3(j) of the Labor Relations Act to mean "superiority in importance or numbers." According to the Union, AFSCME improperly introduced an alternative, qualitative, definition of predominance that contradicts other decisions of this court, which the Union contends look only to whether the employee spends most of his or her time on managerial activities. According to the Union, this interpretation "threatens to make [the predominance] requirement a nullity."
¶ 16 The Union also argues—this time relying on our decision in AFSCME —that the Board applied an improper legal standard when it concluded that two of the directors, Torsten Clausen and Harry Stoller, were managerial employees based solely on their function as informational "gatekeepers." In making this determination, the Union argues that the Board improperly relied on one of its own prior decisions, which was subsequently reversed by this court in AFSCME , 2014 IL App (1st) 130655, ¶¶ 42–43, 388 Ill.Dec. 769, 25 N.E.3d 52. We consider each of these arguments in turn, in the context of the legal framework for determining whether a particular employee is managerial.
¶ 17 Section 3(j) of the Labor Relations Act establishes a two-part test to determine if an individual is a "[m]anagerial employee." 5 ILCS 315/3(j) (West 2010). The person must be both (1) "engaged predominantly in executive and management functions" and (2) "charged with the responsibility of directing the effectuation of management policies and practices." Id.
¶ 18 Courts have construed the phrase "executive and management functions" in the first part of the test to mean those functions that "relate to running a department," including "formulating department policy, preparing the budget, and assuring efficient and effective operations of the department." Village of Elk Grove Village v. Illinois State Labor Relations Board , 245 Ill. App. 3d 109, 121–22, 184 Ill.Dec. 284, 613 N.E.2d 311 (1993). An employee is not managerial simply because he or she "exercise[s] * * * professional discretion and technical expertise" ( County of Cook v. Illinois Labor Relations Board–Local Panel , 351 Ill. App. 3d 379, 386, 286 Ill.Dec. 414, 813 N.E.2d 1107 (2004) ) or performs duties that are "essential to the employer's ability to accomplish its mission" ( Department of Central Management Services/The Department of Healthcare & Family Services v. Illinois Labor Relations Board, State Panel , 388 Ill. App. 3d 319, 331, 327 Ill.Dec. 736, 902 N.E.2d 1122 (2009) ). And an employee whose policymaking role is merely "advisory and subordinate" will generally not be considered managerial ( Village of Elk Grove Village , 245 Ill. App. 3d at 122, 184 Ill.Dec. 284, 613 N.E.2d 311 ) unless he or she makes "effective recommendations" (internal quotation marks omitted), i.e. , recommendations that are almost always adopted by management ( Department of Central Management Services/Illinois Commerce Comm'n v. Illinois Labor Relations Board, State Panel , 406 Ill. App. 3d 766, 775–77, 348 Ill.Dec. 226, 943 N.E.2d 1136 (2010) (hereinafter CMS/ICC )). Managerial employees "possess and exercise authority and discretion which broadly effects [sic ] a department's goals and means of achieving its goals." (Internal quotation marks omitted.) County of Cook , 351 Ill. App. 3d at 386, 286 Ill.Dec. 414, 813 N.E.2d 1107.
¶ 19 The second part of the statutory test emphasizes that a managerial employee's authority "extends beyond the realm of theorizing and into the realm of practice." CMS/ICC , 406 Ill. App. 3d at 774, 348 Ill.Dec. 226, 943 N.E.2d 1136. In other words, "[a] managerial employee not only has the authority to make policy but also bears the responsibility of making that policy happen." Id. at 774–75, 348 Ill.Dec. 226, 943 N.E.2d 1136. Such an individual "oversees or coordinates policy implementation through [the] development of means and methods of achieving policy objectives, determines the extent to which the objectives will be achieved, and is empowered with a substantial amount of discretion to determine how policies will be effected." Department of Central Management Services v. Illinois State Labor Relations Board , 278 Ill. App. 3d 79, 87, 214 Ill.Dec. 777, 662 N.E.2d 131 (1996).
¶ 20 We reject the Union's first argument that it was improper for the Board to construe the word "predominantly" in section 3(j) of the Labor Relations Act to mean either "superiority in importance or numbers." As the Union acknowledges, that construction was recently articulated by this court in AFSCME , 2014 IL App (1st) 130655, ¶¶ 28–29, 388 Ill.Dec. 769, 25 N.E.3d 52, where we were asked to consider the managerial status of three attorneys working in the Commission's solicitor section. Noting that the "strict numerical approach" had been rejected in similar cases (see Secretary of State v. Illinois Labor Relations Board, State Panel , 2012 IL App (4th) 111075, ¶ 110, 370 Ill.Dec. 333, 988 N.E.2d 109 ; Department of Central Management Services , 278 Ill. App. 3d at 86, 214 Ill.Dec. 777, 662 N.E.2d 131 ) and that the word "predominant" can mean "superiority in importance or numbers," we concluded that the amount of time an employee spends on managerial tasks is not determinative of the employee's managerial status. (Internal quotation marks omitted.) Id. ¶¶ 29, 31.
¶ 21 The Union insists that this definition of "predominantly" is at odds with statements in certain of our prior opinions. In CMS/ICC , 406 Ill. App. 3d at 774, 348 Ill.Dec. 226, 943 N.E.2d 1136, for example, we noted that the first part of section 3(j) of the Labor Relations Act "describes the nature of the work to which the individual devotes most of his or her time ." (Emphasis added.) However, the focus of that case was whether the Commission's ALJs were effective decision-makers because their recommendations were accepted by the Commission almost all of the time, not what percentage of the time the ALJs were engaged in any particular activities. Id. at 779, 348 Ill.Dec. 226, 943 N.E.2d 1136.
¶ 22 The Union has failed to persuade us that a few apparently contradictory words in an earlier case require us to reject the well-reasoned construction of the word "predominantly" presented in AFSCME . And the Union's reference to section 3(r) of the Labor Relations Act, defining a "supervisor" as someone who, among other things, "devote[s] a preponderance of their employment time to exercising [supervisory] authority" (emphasis added) ( 5 ILCS 315/3(r) (West 2010)), merely highlights language that could have, but was not, included in section 3(j)'s definition of a managerial employee. Thus, we reject the Union's first complaint about the Board's legal analysis.
¶ 23 In reference to its second legal argument, we agree with the Union that it would have been incorrect for the Board to conclude that an employee who functions as an informational gatekeeper must necessarily be a managerial employee. In AFSCME , 2014 IL App (1st) 130655, ¶¶ 42–43, 388 Ill.Dec. 769, 25 N.E.3d 52, we held that a Commission lawyer who merely flagged issues for her supervisors to review was not a managerial employee, absent other responsibilities bringing her within the statutory definition. We rejected the Board's argument in that case that the employee effectively decided whether the Commission would act on a particular issue because issues not flagged by her would not be considered by the Commission. We concluded that such policy-making "through omission," by an employee who did not "even recommend a particular course of action," was a "limited" and "tenuous" form of influence that could only result from the employee's inadequate performance of her duties, i.e. , her failure to identify issues of import to the Commission.
¶ 24 In this case, however, as discussed in more detail later in this opinion, we conclude that the Board's findings that Torsten Clausen and Harry Stoller were managerial employees should be upheld. Although the Board relied on Mr. Clausen's role as an informational gatekeeper, its conclusion that he was a managerial employee can be upheld on the alternative basis that the statute that created his job makes it clear that he is a manager as a matter of law. And this court may affirm the decision of an administrative agency when justified in law "for any reason disclosed by the record." Pedersen v. Village of Hoffman Estates , 2014 IL App (1st) 123402, ¶ 48, 380 Ill.Dec. 541, 8 N.E.3d 1083. Although the Board also cited Mr. Stoller's "gatekeeping" functions, its determination that he was a managerial employee was based on the fact that Mr. Stoller has ultimate responsibility for making certain Commission decisions and is furthermore supported by other evidence of his managerial functions. Thus, while we accept the Union's point that gatekeeping is, on its own, insufficient to classify an employee as a manager, that point ultimately does not provide a basis for overturning any part of the Board's decision here.
¶ 26 Within this legal framework, we review for clear error the Board's findings that each of the six directors that the Union seeks to bring within the bargaining unit is a managerial employee.
¶ 28 Torsten Clausen is the Director of the Commission's Office of Retail Market Development (Office). Tim Anderson, the Commission's executive director, testified that the Office was created by the Retail Electric Competition Act of 2006 (Act) ( 220 ILCS 5/20–101 et seq. (West 2012)), and that Mr. Clausen is the first person to serve as its director. Unlike other directors, who report to their respective bureau chiefs, Mr. Clausen reports directly to Mr. Anderson.
¶ 29 After considering the testimony and other evidence regarding Mr. Clausen's duties, the ALJ determined that his role within the Commission was, in many ways, advisory. But the ALJ nevertheless concluded that Mr. Clausen was a managerial employee because the statutory provisions creating the Office authorize him to propose, directly to the General Assembly and to the governor, those legislative actions he deems necessary to address barriers to competition in the retail electric market. In this role, the ALJ found that Mr. Clausen "exercises sufficient authority and discretion in discharging the [Commission]' s mission" to be considered a managerial employee as a matter of law.
¶ 30 The parties, the ALJ, and the Board all refer to two separate tests for determining whether an employee is managerial: the "traditional" two-part statutory test and an "alternative" "matter of law" test purportedly established by our supreme court in Cook County State's Attorney , 166 Ill. 2d 296, 209 Ill.Dec. 761, 652 N.E.2d 301, and Chief Judge of the Sixteenth Judicial Circuit , 178 Ill. 2d 333, 227 Ill.Dec. 313, 687 N.E.2d 795, pursuant to which an employee may be considered managerial as a matter of law if the employee is authorized to act as a surrogate for the employer. Some of the previous decisions of this court have also referred to two separate tests. See, e.g. , Department of Central Management Services/Pollution Control Board v. Illinois Labor Relations Board, State Panel , 2013 IL App (4th) 110877, ¶ 22, 367 Ill.Dec. 821, 982 N.E.2d 971 (noting the appellate court's use of the two tests). However, the supreme court itself does not refer to an "alternative test," and a close reading of those two supreme court cases confirms that its findings, though made as a "matter of law," were still based on the statutory definition of a managerial employee found in section 3(j) of the Labor Relations Act ( 5 ILCS 315/3(j) (West 2010)). See Cook County State's Attorney , 166 Ill. 2d at 302, 209 Ill.Dec. 761, 652 N.E.2d 301 (holding as a matter of law that "assistant State's Attorneys must be regarded as managerial employees, as that term is defined in the [Labor Relations Act] " (emphasis added)); Chief Judge of the Sixteenth Judicial Circuit , 178 Ill. 2d at 347, 227 Ill.Dec. 313, 687 N.E.2d 795 (holding as a matter of law that "assistant public defenders meet the definition of managerial employee under the Act " (emphasis added)). We believe that in these two cases our supreme court simply recognized the fact that a statute that creates a public office and case law regarding the duties of the public employees at issue may make it apparent that the employees are managerial, eliminating any need to examine a factual record. See Cook County State's Attorney , 166 Ill. 2d at 305, 209 Ill.Dec. 761, 652 N.E.2d 301 (holding that "statutes and case law articulating the powers and duties" of an office may "provide sufficient grounds for determining this issue as a matter of law").
¶ 31 Here, the Board did not adopt the ALJ's finding that Mr. Clausen was managerial as a matter of law, but instead determined that Mr. Clausen was a managerial employee based on evidence that he performed a gatekeeping function. As we discussed above, we adhere to our holding in AFSCME , 2014 IL App (1st) 130655, ¶¶ 42–43, 388 Ill.Dec. 769, 25 N.E.3d 52, that gatekeeping alone is insufficient to establish managerial status. However, we agree with the ALJ that—like assistant state's attorneys and assistant public defenders, whom our supreme court has found to be managerial as a matter of law—Mr. Clausen's statutorily defined duties make it apparent that he is a manager.
¶ 32 The Office of Retail Market Development was created in 2006 by the Act. 220 ILCS 5/20–101 et seq. (West 2012). The Act provides that the Office's director is to "oversee" the Office and has authority to employ at least two professional staff members to help carry out its mission. 220 ILCS 5/20–110 (West 2012). The Act establishes the director as the individual in charge of researching, developing, and presenting—not just to the Commission, but also to the General Assembly and to the governor—an initial "detailed plan designed to promote, in the most expeditious manner possible, retail electric competition for residential and small commercial electricity consumers." Id. § 20–120. Where this initial plan calls for the Commission to take action, the Commission is required to expeditiously do so. See id. ("To the extent the plan calls for Commission action, the Commission shall initiate any proceeding or proceedings called for in the final plan within 60 days after receipt of the final plan and complete those proceedings within 11 months after their initiation." (Emphasis added.)). And as the ALJ pointed out, on an ongoing basis, the REC Act requires the director to submit an annual report to the Commission, the General Assembly, and the governor, describing the office's accomplishments and issuing recommendations for "administrative and legislative action necessary to promote further improvement in retail electric competition." 220 ILCS 5/20–110 (West 2012).
¶ 33 Although we rely on different reasoning than that employed by the Board, we agree with its determination that Mr. Clausen, the Director of the Office of Retail Market Development, is a managerial employee excluded from collective bargaining.
¶ 35 Jerry Oxley is the director of Information Technology Services, one of three divisions within the Commission's Bureau of Planning and Operations. Kenneth Hundreiser, the bureau's chief, testified that Mr. Oxley's division develops all of the software used by the Commission and is responsible for "[t]he network, the web, intranet, internet, [and] things of that nature." Nine positions currently report directly to Mr. Oxley, and eight others do so indirectly. All but one of the individuals in those positions are members of a bargaining unit.
¶ 36 By Mr. Hundreiser's estimate, Mr. Oxley spends approximately 24% of his time on personnel tasks, including conducting employee evaluations and performance reviews for his staff. Mr. Hundreiser testified that, although he reviews these evaluations and has made corrections for minor things like spelling, he approves the content of Mr. Oxley's evaluations "100 percent" of the time. However, Mr. Oxley's own testimony, supported by e-mail exchanges submitted by the Union, indicated that Mr. Hundreiser sometimes disagreed or even "extremely disagreed" with the substance of the evaluations Mr. Oxley prepared, resulting in "some necessary adjustments." Although Mr. Oxley can independently approve or reject his staff's requests for time off or for flexible work schedules, overtime requests for non-emergencies must be approved by both Mr. Hundreiser and Mr. Anderson. But, according to Mr. Hundreiser, "whatever Jerry recommends" in this regard "is always approved" because "[i]t's obviously needed if he proposes it." Mr. Oxley has authority to discipline his subordinates and, according to Mr. Hundreiser, has exercised this authority to issue an oral reprimand placing a subordinate on quarterly review. Mr. Oxley has yet to participate in the hiring process as a director because no new employees have been hired in his division. According to Mr. Hundreiser, although hiring decisions must ultimately be approved by the executive director, recommendations from directors like Mr. Oxley are generally accepted.
¶ 37 Mr. Oxley also has the authority to resolve first-level grievances and recommend that staff within his division be promoted. However, on the two occasions when he recommended that certain employees receive promotions to conform their job titles to the tasks they were performing, his recommendations were not followed. Mr. Oxley testified that, as a result, he was unable to resolve a grievance later filed on this basis. When Mr. Oxley was asked if he agreed with Mr. Hundreiser's statement that Mr. Oxley had the authority to grant back pay in response to a grievance, Mr. Oxley stated "[a]bsolutely not."
¶ 38 Mr. Oxley conducts both on-the-job and formal training for his staff and directs them to perform specific tasks. He is also involved with IT training for Commission employees outside of his division. Although he has authority to disseminate standard electronic equipment to Commission employees, Mr. Oxley must obtain approval before granting requests for "extras," like second monitors.
¶ 39 In addition to these duties, Mr. Oxley frequently fills in for his staff when needed and presently spends a significant portion of his time staffing the IT help desk. Help desk employees respond to e-mails and telephone calls from users with computer problems. Mr. Oxley assists when a difficult problem arises or when the volume of requests is too high for the three dedicated call center employees to manage. Mr. Oxley described his duties relating to the help desk as "[e]xtensive[ ]." Although he generally spends upwards of 20–25% of his time there, he testified that in the three months leading up to the hearing in this matter, he spent closer to 75% of his time on tasks related to the call center. Although he does not generally program, Mr. Oxley testified that he will sometimes "make small applications" as temporary fixes until other staff can develop permanent solutions.
¶ 40 Mr. Hundreiser testified that, within the area of information technology, Mr. Oxley has the authority to establish policies that affect the entire agency and that he does so by assessing both the Commission's current needs and trends in the industry, then drafting policies based on CMS guidelines, best practices, or "what [Mr. Oxley] knows in the field." Mr. Hundreiser testified that he generally accepts the substance of Mr. Oxley's policy proposals. Mr. Hundreiser could recall three agency-wide policies that Mr. Oxley drafted: a policy governing website enhancements; a revision to an existing internet, e-mail, and computer use policy, which was approved but not implemented; and a policy governing the submission and processing of IT requests by Commission staff. Mr. Oxley also drafts all of the division's desk procedures—what Mr. Hundreiser described as policies regarding "[h]ow to do something within the [IT] division"—and these are not reviewed by Mr. Hundreiser or Mr. Anderson.
¶ 41 The Commission's "Position Description" for the director of information technology states that the director "[e]stablishes [IT] Program objectives consistent with Commission practice and policy"; "[s]ets the substantive agenda for the Program by generating and/or reviewing project proposals * * * and recommending their adoption," including "review and recommendation of associated budgets"; prepares "one and five-year Strategic Information Plan[s]"; "represents the [Commission] in negotiations with [CMS] for related purchases and contracts"; "[a]ssists the Bureau Chief in the formulation and implementation of Division policy and administrative matters"; "[e]valuates the performance of staff assigned to the [IT] Program on a periodic basis and recommends compensation adjustments"; "[r]ecruits applications for approved staff positions within the Program and makes recommendations * * * on candidate selection"; and "[d]evelops the Program's professional training and development policy."
¶ 42 In a performance evaluation, Mr. Hundreiser noted that Mr. Oxley "plays an integral part in the development of the annual IT Projects and Priorities Plan * * * as well as * * * the IT Steering Committee," and that he developed a "Case Management Document Library."
¶ 43 Based on this evidence, the ALJ concluded that Mr. Oxley was a managerial employee. She determined that he met the first part of the statutory definition because he exercised authority and independent judgment to broadly affect the Commissions operations. The ALJ noted that Mr. Oxley formulated two important policies—one for web site changes and one for IT requests—that, although they related only to information technology systems, broadly affected the Commission's operations. The ALJ also found it significant that, although Mr. Oxley could not unilaterally make policy changes, he was an effective decision-maker because the policies he proposed were consistently approved by his bureau chief. Mr. Oxley also had the authority to implement desk procedures to solve routine IT problems without first obtaining approval. The ALJ determined that Mr. Oxley also met the second part of the statutory definition because he was directly involved in implementing the Commission's IT policies and running its IT programs, as evidenced by the fact that he frequently developed short-term solutions necessary for the agency to run until long-term solutions were developed.
¶ 44 The Board agreed with the ALJ. It concluded that, "even though he ha[d] only formulated two policies over a span of 10 years," Mr. Oxley still "predominantly perform[ed] executive and management functions" because "he perform[ed] additional functions which satisf[ied] the [statutory] test," including "helping determine the IT means by which the agency achieves its objectives." The Board found it significant that Mr. Oxley created a case management system and performance evaluations that were used throughout the Commission. The Board further concluded that, as head of the IT division, Mr. Oxley "likely [wa]s ultimately responsible for deployment of the division's resources." Like the ALJ, the Board considered Mr. Oxley to be an effective decision maker, as the Commission had accepted all of his policy recommendations. The Board did not feel that the recent need for Mr. Oxley to spend a significant portion of his time manning the IT help desk precluded this finding.
¶ 45 On appeal, the Union argues that the Board's determination is clearly erroneous because it "was largely based on the assumption that anyone who is the top IT employee for a State agency is a manager." The Union contends that this conclusion is based on a misreading of the Fourth District's decision in CMS/ICC , 406 Ill. App. 3d at 778, 348 Ill.Dec. 226, 943 N.E.2d 1136. According to the Union, that case stands for the proposition that an employee is managerial if he has "job functions that encompass the whole of an agency's mission." It is true that the court in CMS/ICC concluded that the Commission's ALJs were managerial by "compar[ing] the job functions of th[e] ALJs to the overall mission of the [Commission]," but the court clearly stated that this was but "[o]ne way of approaching" the relevant question, which is whether "the responsibilities of a job title encompass the agency's entire mission, or a major component of its mission ." (Emphasis added.) Id. Here, the Board concluded that Mr. Oxley's job responsibilities encompass a major component of the agency's mission because he "helps determine the ‘IT means' by which the Commission achieves its objectives." This conclusion is not clearly erroneous.
¶ 46 We affirm the Board's finding that Mr. Oxley, the director of Information Technology Services, is a managerial employee excluded from collective bargaining.
¶ 48 Peter Muntaner is the director of the Consumer Services Division of the Commission's Bureau of External Affairs. Randy Nehrt, the bureau's chief, testified that Mr. Muntaner's division "primarily handles constituent complaints and sets policy matters that balance the interests of consumers and utilities." Four positions currently report directly to Mr. Muntaner, and fifteen others do so indirectly. Each of Mr. Muntaner's reports is part of a bargaining unit.
¶ 49 Mr. Muntaner approves requests for time off and is authorized to discipline his subordinates at certain levels without approval. Although he exercised this authority to conduct a pre-disciplinary hearing that led to an employee's five-day suspension, it is not clear that Mr. Muntaner is the one who made the decision to issue the suspension. Mr. Muntaner also has authority to hear first-level employee grievances, though Mr. Nehrt could not recall him ever having to do so. Although Mr. Muntaner can request overtime for his subordinates, such requests must be approved by Mr. Anderson. Mr. Muntaner has in the past requested compensatory time for employees who traveled to a hearing, and those requests were approved by Mr. Nehrt. Mr. Muntaner is responsible for conducting performance evaluations for his staff, which he submits to Mr. Nehrt for approval. Mr. Nehrt testified that he has never rejected one of Mr. Muntaner's proposed evaluations. Mr. Muntaner has authority to interview and recommend individuals for hire but has not yet done so, although he did start the process recently to replace someone who retired.
¶ 50 Mr. Nehrt estimated that Mr. Muntaner spends about 50% of his time directing and supervising the work of his subordinates. He has also been heavily involved in the rulemaking process with respect to the statutory provisions governing the customer service, billing and payment, and discontinuance of service practices of public utilities. Mr. Muntaner also has refined practices regarding consumer complaints "to make [the complaint] process more effective and efficient." According to Mr. Nehrt, Mr. Muntaner drafts new procedures and policies when necessary, and "[w]hen emerging issues arise or new issues come up, Mr. Muntaner will also update procedures to provide to counselors * * * for how to handle those new or emerging issues."
¶ 51 When Mr. Muntaner took over as director of the Commission's Consumer Services Division, he reviewed the procedures for investigating consumer complaints; sought input from the relevant managers, administrative staff, and policy analysts; and updated those policies, forwarding them to Mr. Nehrt for review. To standardize investigations, Mr. Muntaner also formulated a list of information that his division's counselors would seek from public utility providers during the course of their investigations, which was approved by Mr. Nehrt. Mr. Muntaner also drafted, and Mr. Nehrt approved, a policy to ensure that informal complaints were processed in time to notify customers if the limitations period for filing a formal complaint was approaching.
¶ 52 The ALJ was persuaded that Mr. Muntaner was a managerial employee by his establishment of policies and procedures for his division, which, she noted, "serves as the face of the ICC for the average citizen, thus establishing its importance within the agency." Although Mr. Muntaner lacks authority to make unilateral policy changes, the ALJ concluded that the first part of the statutory definition was satisfied because Mr. Muntaner makes effective recommendations; all three of the procedures he drafted were approved and implemented. And his role in training customer service counselors to follow those new policies satisfied the second part of the definition as well. The Board agreed with the ALJ that Mr. Muntaner was "a managerial employee based on his effective recommendation of policies and procedures concerning the response and processing of consumer complaints."
¶ 53 In support of its argument on appeal that the Board's finding is clearly erroneous, the Union seizes on the Board's statement in its decision and order that "Muntaner is likely predominantly engaged in such managerial functions by virtue of his position as head of the Consumer Affairs Division." The Union insists that this statement demonstrated that the Board's conclusion was improperly based on speculation concerning what someone with his job title probably does, rather than the facts concerning his actual role at the Commission. We do not agree. In support of the statement, the Board cited its prior decision in American Federation of State, County & Municipal Employees, Council 31 v. State of Illinois , 30 PERI ¶ 38 (ILRB State Panel 2013), in which it concluded that an individual's position as the top employee in an agency's IT department, "together with" several concrete examples of the employee's authority to broadly affect the agency's operations and his coordination of policy implementation, "strongly suggest[ed]" that the employee was predominantly engaged in management functions. Id. There, as here, the employee's title was merely one piece of relevant evidence; it was not the sole basis for the Board's determination regarding the employee's status. Although we agree with the Union that an employee's managerial status cannot be determined from his title alone, there was ample evidence of Mr. Mutaner's ability to initiate and implement Commission policy.
¶ 54 The Union also focuses on Mr. Nehrt's estimate that Mr. Muntaner spends a "combined" 50% of his time on personnel-related duties, reviewing the work of his subordinates, and researching and updating policies and procedures. The Union reasons that this means that Mr. Muntaner necessarily spends less than 50% of his time influencing policy and cannot be said to be "engaged predominantly in executive and management functions." ( 5 ILCS 315/3(j) (West 2010)). For the reasons discussed above, we adhere to our decision in AFSCME , 2014 IL App (1st) 130655, ¶ 29, 388 Ill.Dec. 769, 25 N.E.3d 52, in which we rejected this purely quantitative construction of the word "predominantly" as it is used in section 3(j) of the Labor Relations Act.
¶ 55 We thus affirm the Board's finding that Mr. Muntaner, the director of the Consumer Services Division, is a managerial employee excluded from collective bargaining.
¶ 57 Gene Beyer, chief of the Bureau of Public Utilities, testified that his bureau is divided into three divisions. Energy, headed by Harry Stoller, is concerned with issues affecting the electric and gas industries; Financial Analysis, headed by Joy Nicdao–Cuyugan, is primarily involved in rate design, individual rate cases, and utility audits; and Telecommunications, headed by Jim Zolnierek, deals with state-level regulation of telephone companies and some aspects of the provision of wireless cable and internet services. These three employees are the three remaining directors that the Union seeks to bring within the bargaining unit.
¶ 59 The three public utilities directors share many of the same responsibilities. All three work with Mr. Beyer in Springfield and attend biweekly bureau meetings with Mr. Beyer and the Commission's executive director, Mr. Anderson. And each serves as the spokesperson for his or her division when the bureau's overall budget is allocated.
¶ 60 According to Mr. Beyer, "from time to time," each of the directors appears before and makes presentations to the Commission, the legislature, or various outside groups, although this function is also sometimes performed by the directors' subordinates. Although directors sometimes prepare written testimony or provide live testimony at hearings in docketed cases before the Commission, more often than not that is done by the managers and analysts that make up the directors' staffs.
¶ 61 The Commission's Legislative Affairs Office may request a position paper outlining the Commission's position on particular proposed legislation. Such requests generally go to the director of the division, who prepares the paper or supervises its preparation, and circulates it for review to other interested divisions. Mr. Stoller and Ms. Nicdau–Cuyugan have each drafted such a position paper. And Mr. Zolnierek has attended several meetings with legislators to answer their questions and provide the Commission's perspective when the telecommunications laws were rewritten.
¶ 62 By Mr. Beyer's estimate, Mr. Stoller, Ms. Nicdao–Cuyugan, and Mr. Zolnierek each spend approximately 20–30% of their time on personnel issues. Each has the authority to recommend overtime for members of his or her staff, although such requests must also be approved by Mr. Beyer. Mr. Stoller and Ms. Nicdao–Cuyugan have each submitted such requests, but Mr. Zolnierek never has. The requests are usually granted. Mr. Beyer testified that he recalled denying a request only once, when the overtime was not approved in advance and did not involve an emergency. Each of the directors also prepares annual performance evaluations for his or her subordinates, which are reviewed and approved by Mr. Beyer. Although Mr. Beyer has, on occasion, suggested changes in the way an evaluation is worded, he stated that he "never make[s] changes to [the directors'] overall performance ratings" or "to their comments on a person's performance." The directors also have the authority to make recommendations regarding disciplinary action—so long as it falls within what is contemplated by the Commission's employee manual and any applicable union contract—and first-level employee grievances. However, these recommendations must be reviewed by the human resources department and approved by Mr. Beyer. To Mr. Beyer's knowledge, Mr. Stoller, Ms. Nicdao–Cuyugan, and Mr. Zolnierek have never had occasion to discipline an employee or resolve a grievance.
¶ 63 Each of the public utilities directors also plays a role in the hiring process, by assessing and articulating their division's needs, interviewing candidates, and—as members of a hiring panel—making hiring recommendations to Mr. Beyer and Mr. Anderson. Mr. Beyer testified that he was not aware of any instance in which a hiring recommendation of Mr. Stoller or Ms. Nicdao–Cuyugan had ever been rejected. And Mr. Zolnierek has had no opportunity to make such recommendations, as the telecommunications division is relatively small and has had no open positions since he became its director. Additionally, on one occasion when Ms. Nicdao–Cuyugan's first and second choice candidates for a position declined a job offer, her recommendations that the position be reposted and, as an interim measure, that additional training be provided for existing employees in other divisions were followed.
¶ 64 Each of these three directors is also responsible for directing and supervising the work of subordinates and overseeing their training. Training within Mr. Stoller's division is, in large part, formal training presented by the federal government relating to pipeline safety, but there is also informal on-the-job training and sometimes other formal training seminars. Any special requests for training or work involving travel must be approved by Mr. Stoller. Ms. Nicdao–Cuyugan conducts in-house training on how to handle rate cases for all new employees in her division, which Mr. Beyer described as "one of the greater responsibilities in that division." In recent years she also arranged for a "rate making tutorial" to explain the ratemaking process to employees in other divisions within the Commission. Because of its small size, training in Mr. Zolnierek's division focuses on familiarizing staff members with each other's work.
¶ 66 In addition to this evidence regarding their shared authority and responsibilities, evidence was also presented at the administrative hearing regarding the specific roles played by the three public utilities directors.
¶ 68 Mr. Beyer testified that Mr. Stoller, as director of the Energy Division, works with his staff to review new cases as they are filed in order to identify issues affecting the electric and gas industries. The decision as to whether a particular matter warrants the division's involvement may be made, without Mr. Beyer's approval, either by Mr. Stoller or by one of his subordinates. Mr. Beyer acknowledged that "some of those issues and cases are somewhat routine."
¶ 69 However, according to Mr. Beyer, Mr. Stoller "represent[s] the division at times as only a division director can in speaking on policies and on methods * * * that affect his division as a whole" and "that wouldn't be appropriate for his direct reports to address." For example, Mr. Stoller is the official contact for communications between the Energy Division and public utility companies regarding docketed matters, including the division's position on proposed settlements. Mr. Stoller has also recommended, on at least two occasions, that citation cases be brought against noncompliant companies, and those recommendations were adopted by the Commission, following approval by Mr. Beyer and the executive director.
¶ 70 A performance review of Mr. Stoller also indicates that he is "occasionally called to the legislature to testify about legislation or to meet with legislators about legislative proposals and has always been an excellent and effective representative for the [Commission] in that role."¶ 71 Mr. Beyer also testified that Mr. Stoller "has authority to draft policy for his division" and, as its representative, has participated in the drafting of policies, like a case management policy, that affects multiple divisions within the Commission. The Commission's job description for Mr. Stoller's position also indicates that he "formulates and interprets policies of the Agency as pertains to [his] Division's operation," "[i]nitiates and establishes policies, standards, and procedures for all operations within the general policy framework of the agency," and "[d]evelops the Division's professional training and development policy."
¶ 72 Through its Federal Energy Program (FEP), the Commission sometimes intervenes on behalf of Illinois retail energy consumers in Federal Energy Regulatory Commission (FERC) proceedings. According to a performance review, Mr. Stoller "is ultimately responsible for the agenda of the [FEP], assuring that it focuses on issues of economic significance to Illinois electric and natural gas retail customers."
¶ 73 The ALJ concluded that Mr. Stoller did not meet the statutory definition of a managerial employee. In the ALJ's view, although the record established that Mr. Stoller played a role in the drafting of policies and in the Commission's rulemaking process, there was "no basis to determine whether [that role was] merely perfunctory and advisory or whether it [wa]s sufficient to satisfy the first prong of the statutory definition."
¶ 74 The Board disagreed, concluding that Mr. Stoller was a managerial employee excluded from collective bargaining. The Board reasoned that "Stoller [wa]s a managerial employee within the meaning of the Act because he act[ed] as a gatekeeper by making the final decision as to which [FERC] proceedings warrant[ed] the Commission's attention and participation."
¶ 75 On appeal, the Union urges us to reverse the Board's finding that Mr. Stoller is a managerial employee because the Board's determination hinged on Mr. Stoller's role as a "gatekeeper." The Union relies on our recent opinion in AFSCME , 2014 IL App (1st) 130655, ¶¶ 42–43, 388 Ill.Dec. 769, 25 N.E.3d 52, where we held that an attorney who served as a gatekeeper by flagging issues of potential interest for review by her superiors was not a managerial employee. But here the Board found that Mr. Stoller was a gatekeeper in the sense that he makes the "final decision" as to which FERC proceedings the FEP recommends for Commission participation. This is the inverse of the function of the gatekeeping lawyer in AFSCME , who could influence policy only by omission, i.e. , by failing to flag matters that were of interest to her superiors. Id. We agree with the Board that this is an important distinction. In addition, as the Board points out, there is evidence in the record both that Mr. Stoller has represented the Commission before the legislature and that he has the authority to establish policies and procedures for his division. We are not "left with the definite and firm conviction that a mistake has been committed" (internal quotation marks omitted) ( AFM Messenger Service , 198 Ill. 2d at 395, 261 Ill.Dec. 302, 763 N.E.2d 272 ) and cannot conclude that the Board's finding was clearly erroneous.
¶ 76 We affirm the Board's finding that Mr. Stoller, the director of Energy, is a managerial employee excluded from collective bargaining.
¶ 78 The ALJ concluded that Ms. Nicdao–Cuyugan, director of the Financial Analysis Division, was not a managerial employee. In the ALJ's view, the record failed to establish that Ms. Nicdao–Cuyugan had any authority to draft policies or played any role in the Commission's rulemaking process.
¶ 79 The Board disagreed, noting several examples of Ms. Nicdao–Cuyugan's "self-initiated, broadly-applicable policy changes," including the steps she took to propose and help develop an intranet site used by employees throughout the Commission to access important documents, her identification and implementation of an internal email policy saving the Commission thousands of dollars annually in network storage costs, and her recommendation to reject an overly restrictive policy concerning staff data requests. For the Board, the fact that Ms. Nicdao–Cuyugan initiated and implemented all of these changes in the span of one employee evaluation period "strongly suggest[ed] that she [wa]s predominantly engaged in executive and management functions."
¶ 80 On appeal, the Union characterizes the examples relied on by the Board as nothing more than "IT solutions to IT problems." The Union's argument appears to be that these examples do not establish Ms. Nicdao–Cuyugan's management of the Financial Analysis Division. This argument is not persuasive. In an age where employees use technology to communicate, store and retrieve data, and create their work product, it makes sense that much, if not most, policymaking involves an IT component. The Union has provided no authority suggesting that "executive and management functions" do not include the effective coordination between departments to devise broad-based solutions.
¶ 81 We affirm the Board's finding that Ms. Nicdao–Cuyugan, the director of Financial Analysis, is a managerial employee excluded from collective bargaining.
¶ 83 Although Mr. Zolnierek, the director of the Telecommunications Division, has authority to draft policies for his division, Mr. Beyer could not recall any specific policies he has drafted. Mr. Beyer added, however, that Mr. Zolnierek has recently worked with staff from other divisions to develop a policy for tracking and coordinating action taken with respect to noncompliant telephone companies. He has also participated in the rulemaking process, in that "he initiated a project to review all of the administrative code parts of [the Commission's] rules that apply to telecommunications to determine whether or not they needed to be revised or eliminated." Without prior approval by Mr. Beyer or the executive director, Mr. Zolnierek reached out to Commission employees in other divisions and bureaus, including to other bureau chiefs, for assistance with these efforts. That process is ongoing and Mr. Beyer did not know whether any of the specific changes proposed by Mr. Zolnierek had been approved. The Commission did, however, act on Mr. Zolnierek's recommendation to begin formal rulemaking to edit and eliminate certain rules that had been affected by recent changes in federal telecommunications laws.
¶ 84 Although she acknowledged that it was a closer case than for the other public utilities directors, the ALJ ultimately concluded that the record also fails to establish that Mr. Zolnierek was a managerial employee under the first part of the statutory test. In the ALJ's view, Mr. Zolnierek's efforts to coordinate the establishment of an agency-wide database tracking the compliance of telecommunications providers with statutes and regulations demonstrated only that he was charged with implementing policy changes, and not that he was the one actually formulating those policies. And Mr. Zolnierek's efforts to revise the ICC's telecommunications regulations in response to statutory changes were, according to the ALJ, merely responsive to policy changes dictated by statute.
¶ 85 The Board again disagreed, viewing Mr. Zolnierek's initiation of the telecommunications database project as a "broad-reaching solution" to a "systemic problem" faced by the Commission. The Board dismissed the ALJ's concerns that Mr. Zolnierek's emails, referring to "our proposed plan" (emphasis added) and actions "we have been taking" (emphasis added), cast doubt on his role in the project. In the Board's view, the fact that Mr. Zolnierek may have collaborated with others did not undermine the conclusion that he played a significant role in identifying the problem and formulating a solution. The Board was also persuaded by Mr. Zolnierek's proposals that staff hold informal workshops to address the effective use of low income assistance programs and that individual proceedings be conducted in which new market entrants would seek the Commission's approval to participate in a low income subsidy program. The Board reasoned that the Commission's acceptance of these recommendations, for projects of considerable magnitude, established that Mr. Zolnierek's recommendations were effective. Finally, the Board noted that the Union chose not to file an exception to the ALJ's finding that Mr. Zolnierek met the second part of the statutory definition because he implemented Commission policies.
¶ 86 On appeal, the Union focuses on Mr. Beyer's inability to name any policies that Mr. Zolnierek drafted on his own, criticizing the Board for relying on projects and policies that Mr. Zolnierek worked on with other Commission employees. As with Ms. Nicdao–Cuyugan, we reject this notion that managerial functions cannot also be collaborative ones. We have held that it is unimportant whether an employee functions as a manager independently or in collaboration with others, as "the [Labor Relations] Act does not require * * * independence in management functions." Department of Central Management Services v. Illinois Labor Relations Board, State Panel , 2011 IL App (4th) 090966, ¶ 187, 355 Ill.Dec. 86, 959 N.E.2d 114. Mr. Beyer's testimony makes clear that, in each instance relied on by the Board, Mr. Zolnierek either initiated the project in question or played a significant part in its development and implementation. The only other argument the Union makes is one we have already rejected: that there is no indication in the record that those projects took up more than 50% of Mr. Zolnierek's time. The evidence presented established that Mr. Zolnierek initiated and was significantly involved in expansive projects affecting the operation of his division. On this record, we cannot conclude that the Board's finding that Mr. Zolnierek is engaged predominantly in executive and managerial functions was clearly erroneous.
¶ 87 We affirm the Board's finding that Mr. Zolnierek, the Director of Telecommunications, is a managerial employee excluded from collective bargaining.
¶ 89 As we have noted before, the "key inquiry" in cases interpreting the managerial exclusion in section 3(j) of the Labor Relations Act "is whether the duties and responsibilities of the employees in question are such that the employees should not be placed in a position requiring them to divide their loyalty between the employer and the collective bargaining unit." Salaried Employees of North America (SENA) v. Illinois Local Labor Relations Board , 202 Ill. App. 3d 1013, 1021, 148 Ill.Dec. 329, 560 N.E.2d 926 (1990). Based on the record as a whole, and affording the Board due discretion, we cannot say that any part of the Board's determination that the six Commission directors at issue in this case are managerial employees statutorily excluded from collective bargaining is clearly erroneous.
Presiding Justice Pierce and Justice Harris concurred in the judgment and opinion.


75-3135. Salary of bank commissioner; appointment of deputy commissioners; assistants and employees; salaries. (a) The bank commissioner shall receive an annual salary to be fixed by the governor with the approval of the state finance council. The bank commissioner is hereby authorized to appoint two deputy commissioners who shall be in the unclassified service under the Kansas civil service act and shall receive an annual salary in accordance with an equitable salary schedule established by the bank commissioner and approved by the governor for all unclassified positions. The average of the salaries shall not exceed the average compensation of corresponding state regulatory positions in similar areas. The bank commissioner's salary schedule shall be reported to the state banking board annually.
(b) (1) The deputy commissioner of the banking division shall supervise all banks and trust companies as directed by the bank commissioner and shall perform such other duties as may be required by the bank commissioner.
(2) The deputy commissioner of the consumer and mortgage lending division shall supervise all consumer and mortgage lending functions as directed by the bank commissioner and shall perform such other duties as may be required by the bank commissioner.
(c) If the office of the bank commissioner is vacant or if the bank commissioner is absent or unable to act, the deputy commissioner of the banking division shall be the acting bank commissioner.
(d) (1) The deputy commissioner of the banking division shall have at least five years' experience as a state bank officer, or five years' experience as an officer of a state bank holding company or a wholly-owned subsidiary conducting business that is related to banking, or five years' experience as a state or federal regulator, or a combination of the aforementioned experience.
(2) The deputy commissioner of consumer and mortgage lending shall have at least five years' experience in consumer or mortgage lending, regulatory, legal or related experience.
(e) The bank commissioner is also authorized to appoint or contract for, in accordance with the civil service law, such special assistants and other employees as are necessary to properly discharge the duties of the office.
History: L. 1905, ch. 488, § 17; L. 1913, ch. 1, § 8; L. 1915, ch. 3, § 7; L. 1919, ch. 284, § 10; L. 1921, ch. 1, § 22; L. 1923, ch. 1, § 6; R.S. 1923, 75-3135; L. 1925, ch. 7, § 7; L. 1927, ch. 304, § 1; L. 1931, ch. 18, § 2; L. 1933, ch. 271, § 17; L. 1937, ch. 329, § 30; L. 1939, ch. 302, § 1; L. 1943, ch. 277, § 20; L. 1947, ch. 416, § 15; L. 1949, ch. 440, § 1; L. 1953, ch. 388, § 1; L. 1961, ch. 409, § 9; L. 1965, ch. 458, § 22; L. 1967, ch. 443, § 16; L. 1974, ch. 361, § 75; L. 1983, ch. 285, § 1; L. 1987, ch. 54, § 14; L. 1999, ch. 166, § 11; L. 2012, ch. 161, § 14; L. 2018, ch. 4, § 4; Mar 8.


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January 28, 2017 /Photography News/ Born 100 years ago today, on 28 January 1917, William Paul Gottlieb was both a notable jazz journalist and a self-taught photographer who captured the personalities of jazz musicians and told their stories with his camera and typewriter. His images document the jazz scene in New York City and Washington, D.C., from 1938 to 1948, a time recognized by many as the "Golden Age of Jazz". Gottlieb's portraits depict such prominent musicians and personalities as Louis Armstrong, Duke Ellington, Billie Holiday, Thelonious Monk, Ella Fitzgerald, and many more.
Gottlieb died of complications from a stroke on April 23, 2006.
In line with Gottlieb's wishes, his photographs were put into the public domain in 2010.
Portrait of Louis Armstrong, Aquarium, New York, N.Y., ca. July 1946. William P. Gottlieb Collection (Library of Congress).
Portrait of Sonny Greer, Aquarium, New York, N.Y., ca. Nov. 1946. William P. Gottlieb Collection (Library of Congress).
Portrait of Ella Fitzgerald, Dizzy Gillespie, Ray Brown, Milt (Milton) Jackson, and Timmie Rosenkrantz, Downbeat, New York, N.Y., ca. Sept. 1947.
Caption from Down Beat: An impressive photo of a truly impressive singer Ella Fitzgerald at the Downbeat, with Dizzy Gillespie making like a faun in the background. Dizzy has gone on his own way, while Ella is still keeping the club on the beat. Forms part of: William P. Gottlieb Collection (Library of Congress).
In: "Ella keeps it on the beat," Down Beat, v. 14, no. 20 (Sept. 24, 1947), p. 5.
Portrait of Larry Adler and Paul Draper, City Center, New York, N.Y., ca. Jan. 1947. William P. Gottlieb Collection (Library of Congress).
Portrait of Duke Ellington, Paramount Theater, New York, N.Y., ca. Sept. 1946.
Caption from Down Beat: Fifth in the series of staff lensman Bill Gottlieb's intimate dressing room shots of musical celebrities is Duke Ellington, with the mirror reflecting his always present piano, his conservative ties, his 20 suits, his 15 shirts, his suede shoes and his smiling self. Forms part of: William P. Gottlieb Collection (Library of Congress).
In: "Through the looking glass," Down Beat, v. 13, no. 20 (Sept. 23, 1946), p. 16.
Portrait of Dardanelle, Washington, D.C., between 1938 and 1948. William P. Gottlieb Collection (Library of Congress).
Portrait of Cab Calloway, New York, N.Y.(?), ca. Jan. 1947. Forms part of: William P. Gottlieb Collection (Library of Congress).
In: "The carnation kid," Down Beat, v. 16, no. 2 (Jan. 15, 1947), p. 16.
Portrait of Sidney Bechet, Freddie Moore, and Lloyd Phillips, Jimmy Ryan's (Club), New York, N.Y., ca. June 1947. Forms part of: William P. Gottlieb Collection (Library of Congress).
In: The Record Changer, v. 6, no. 4 (June 47, 1947), p. 9.
Portrait of Ralph Burns, Edwin A. Finckel, George Handy, Neal Hefti, Johnny Richards, and Eddie Sauter, Museum of Modern Art, New York, N.Y., ca. Mar. 1947.
Caption from Down Beat: Taking six arrangers of the modern school to the Museum of Art to pose with pieces by Picasso and Henry Moore seemed like a great idea to staff lensman Bill Gottlieb. Ralph Burns, Eddie Finckel, George Handy, Neal Hefti, Johnny Richards, and Eddie Sauter obliged, then the trouble started. For details, read the story by Gottlieb on page 2. Forms part of: William P. Gottlieb Collection (Library of Congress).
In: "Arrangers on the cover," Down Beat, v. 14, no. 7 (Mar. 26, 1947).
Portrait of Dardanelle and Joe Sinacore, Hickory House, New York, N.Y., ca. July 1947.
Caption from Down Beat: A hot summer season is promised for New Yorkers, especially those around 52nd Street. Remember the report from the front last January that "Jazz Blows Final Breath?" Eddie Heywood, recently at the Downbeat club, is in the first picture. Coleman Hawkins, working at the Three Deuces, is shown in the second. Dardanelle, vibe star and leader of her own unit, can be seen at piano, framed by bass and guitar. The last show shows tenorist Bud Freeman at Jimmy Ryan's. Forms part of: William P. Gottlieb Collection (Library of Congress).
In: "More who manage to keep New York's swing lane lively," Down Beat, v. 14, no. 16 (July 30, 1947), p. 3.
Portrait of Ella Fitzgerald, New York, N.Y., ca. Nov. 1946. William P. Gottlieb Collection (Library of Congress).
Portrait of Billie Holiday, Downbeat, New York, N.Y., ca. Feb. 1947. Forms part of: William P. Gottlieb Collection (Library of Congress).
In: The Record Changer, v. 5, no. 12 (Feb. 47, 1947), p. 7.
Portrait of Jerry Jerome, ca. June 1947. Forms part of: William P. Gottlieb Collection (Library of Congress).
In: "Jerome's versatility keeps him busy," Down Beat, v. 14, no. 12 (June 4, 1947), p. 16.
Portrait of Willie Smith in his apartment, Manhattan, New York, N.Y., ca. Jan. 1947. William P. Gottlieb Collection (Library of Congress).
Portrait of Charlie Barnet and Re-Bop, New York, N.Y., ca. Aug. 1946.
Caption from Down Beat: Charlie Barnet's pet monkey, Re-Bop, pretends that he doesn't find much harmony in the sax tootlings of his maestro on the cover of this issue. But it's all in fun, and the grimaces of the monkey are not the reason that Charlie is breaking up his dance band early this month. He's going out to California to rest for the remainder of the summer, probably will re-organize on the west coast this fall. Forms part of: William P. Gottlieb Collection (Library of Congress).
In: "Charlie, Re-Bop on the cover," Down Beat, v. 13, no. 17 (Aug. 12, 1946).
Portrait of Sidney Bechet, Jimmy Ryan's (Club), New York, N.Y., ca. June 1947. William P. Gottlieb Collection (Library of Congress).
Portrait of Stan Kenton and Bob Gioga, 1947 or 1948. William P. Gottlieb Collection (Library of Congress).
A few brilliant photo of our National art form, Jazz Made in the USA.
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When a minister of any religious denomination produces before the circuit court of any county or city in the Commonwealth, or before the judge of such court or before the clerk of such court at any time, proof of his ordination and of his being in regular communion with the religious society of which he is a reputed member, or proof that he is commissioned to pastoral ministry or holds a local minister’s license and is serving as a regularly appointed pastor in his denomination, such court, or the judge thereof, or the clerk of such court at any time, may make an order authorizing such minister to celebrate the rites of matrimony in the Commonwealth. Any order made under this section may be rescinded at any time by the court or by the judge thereof. No oath shall be required of a minister authorized to celebrate the rites of matrimony, nor shall such minister be considered an officer of the Commonwealth by virtue of such authorization.
Code 1919, §§ 5079, 5080; 1962, c. 362; 1980, c. 154; 1981, c. 295; 2012, c. 565; 2016, c. 611.
If you’re reading this for anything important, you should double-check its accuracy—read § 20-23 on the official Code of Virginia website.
. . . of 1973, a deed of trust was placed on Lots 19, 20, 23, 65, 66 and 68 of Section I in Marstella . . .
. . . sentences are based. . . ." Brief of Appellant, at 20, 23.8 We believe that Morris' argument is . . .
. . . fees. The case was tried to the court October 20-23, 1981 and the district court filed an opinion . . .
. . . v. Nat'l Bank & Trust Co., 829 F.2d 20, 23 (8th Cir.1987) (contract interest was an element . . .
. . . existed. See also Molina, 981 F.2d at 19-20. . . .
. . . New York v. United States, 3 Cir., 1948, 170 F.2d 20, 23-24; Cabin Creek Consolidated Coal Co. v. . . .
. . . discovered." Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.1985) . . .
. . . S.Ct. at 1690 n. 7; Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir.), cert. denied, 484 U.S. 830, . . .
. . . another." Epps v. State, 333 Md. 121, 634 A.2d 20, 23 (Ct.Spec.App. 1993). . . .


PRESENT: PIERRE N. LEVAL, RAYMOND J. LOHIER, JR., Circuit Judges, EDWARD R. KORMAN, District Judge.* FOR APPELLEE: FRANK T. PIMENTEL, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney, Western District of New York, Buffalo, NY. FOR APPELLANT: RANDA D. MAHER, Law Office of Randa D. Maher, Great Neck, NY.
Defendant Mohamed Taher appeals from an April 7, 2014 judgment of the District Court (Skretny, J.) convicting him, following a jury trial, of engaging in a continuing criminal enterprise (“CCE”), in violation of 21 U.S.C. § 848; making a false statement, in violation of 18 U.S.C. § 1001(a)(2); and committing aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). We assume the parties' familiarity with the facts and record of the prior proceedings, to which we refer only as necessary to explain our decision to affirm.
Taher argues that his conviction on the CCE count should be reversed for three reasons.
First, Taher contends that while the indictment charged him with participating in a single conspiracy, the Government in fact proved two conspiracies—one involving the importation of large quantities of marijuana from Canada, and one involving the distribution of small quantities of marijuana in the United States. “Whether the [G]overnment has proven the existence of the conspiracy charged in the indictment and each defendant's membership in it, or, instead, has proven several independent conspiracies is a question of fact for a properly instructed jury.” United States v. Johansen, 56 F.3d 347, 350 (2d Cir. 1995). Here, the District Court properly instructed the jury on the difference between a single conspiracy and multiple conspiracies, namely, that (1) it “cannot find any defendant guilty of the single conspiracies charged in the indictment” if it finds that those conspiracies did not exist, and (2) “[p]roof of several separate and independent conspiracies is not proof of the single overall conspiracy charged in the indictment.” Joint App'x 209–10. The evidence was sufficient to sustain the jury's finding of a single conspiracy. And even assuming that the Government proved two conspiracies, there was no substantial prejudice to Taher, who was proven to be a central figure in both conspiracies. See Johansen, 56 F.3d at 351.
Second, relying on Richardson v. United States, 526 U.S. 813, 817–18, 824 (1999), which requires that the jury agree unanimously on each of the violations constituting a “continuing series of violations,” 21 U.S.C. § 848(c)(2), Taher challenges his conviction on the ground that the jury might have impermissibly found him in violation of 21 U.S.C. § 843(b) (which he alleges was improperly charged and unsupported by the evidence at trial), or of other uncharged crimes. Because Taher raises these claims for the first time on appeal, we review them for plain error. United States v. Cacace, 796 F.3d 176, 190 (2d Cir. 2015). We have recognized that a Richardson violation is harmless when “the jury would nonetheless have returned the same verdict of guilty.” Monsanto v. United States, 348 F.3d 345, 350 (2d Cir. 2003) (quotation marks omitted). Here, there was ample evidence to support the jury's verdict and no reason to doubt that the jury would have returned a guilty verdict on the CCE count regardless of whether the District Court had been clearer that the jury could not consider crimes not mentioned in the indictment. Even assuming arguendo that Taher's conviction on the CCE count violates Richardson under these circumstances, we conclude that any error was harmless beyond a reasonable doubt. See id. at 349 & n.4, 351.
Third, Taher argues that the jury might impermissibly have counted individuals who, for lack of evidence, could not be included among the necessary five individuals that Taher organized, supervised, or managed. But sufficient evidence existed for the jury to find that Taher supervised at least six other individuals, and Taher requested neither a special interrogatory nor an instruction that would have limited the jury's consideration to specified individuals on this issue. We therefore reject his argument. See United States v. Roman, 870 F.2d 65, 72–73 (2d Cir. 1989).
Taher also raises a number of issues relating to the District Court's evidentiary rulings and conduct at trial. Based on a review of the record, we reject his argument that the District Court clearly erred in finding that he was not in custody when he made statements to law enforcement officers and in admitting those statements. Nor did the District Court abuse its discretion in denying a mistrial after an isolated instance in which a witness inadvertently revealed that Taher “went to jail” instead of using the phrase “became unavailable.” See United States v. Deandrade, 600 F.3d 115, 119 (2d Cir. 2010). Finally, the District Court did not abuse its discretion in its instructions to the jury after Taher attempted to communicate with the jury by holding up a note during the trial. See United States v. Farhane, 634 F.3d 127, 168–69 (2d Cir. 2011). Furthermore, the District Court's statements were prompted in part by the efforts of Taher's own counsel, who requested additional instruction to ensure that the jury not consider the fact that the court had even made an inquiry.
We have considered all of Taher's remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.


Justia › US Law › Case Law › District of Columbia Case Law › District of Columbia Court of Appeals Decisions › 1983 › Murphy v. Army Distaff Foundation, Inc.
Murphy v. Army Distaff Foundation, Inc.
Dermot MURPHY, Appellant, v. The ARMY DISTAFF FOUNDATION, INC., Appellee.
Janet Burnside, Cleveland, Ohio, with whom Robert Wright, and William Martin Green, Washington, D.C., were on the brief, for appellant.
Richard W. Galiher, with whom Elizabeth J. Haegelin, Washington, D.C., was on the brief, for appellee.
*62 Before NEBEKER, MACK and PRYOR, Associate Judges.
Appellant, Dermot Murphy, brought suit to recover from appellee, The Army Distaff Foundation, Inc., for injuries sustained when he was shot by Ernst Flink, an employee of The Army Distaff Foundation, while appellant was trespassing on Foundation grounds. After pretrial discovery, appellee moved for summary judgment on all counts of the complaint. Following oral argument, the court granted summary judgment in appellee's favor. Appellant thereafter filed a motion for rehearing which was denied. This appeal followed.
Appellant contends that the trial court erred in granting appellee's motion for summary judgment as the pleadings, deposition testimony, interrogatories and other information of record raise genuine issues of material facts as to whether Ernst Flink was acting within the scope of appellee's employment when he shot Dermot Murphy, and whether Ernst Flink's supervisors either knew or should have known that Mr. Flink carried a gun while walking on the grounds. Upon consideration of these questions, we reverse and remand for trial on these issues.
The following facts are undisputed. Appellee manages a retirement home in Northwest Washington for the wives of deceased army officers. On October 28, 1977, at approximately midnight, Dermot Murphy and his friend, Nancy Rey, drove into the parking lot of the Army Distaff Hall in appellant's car, admittedly to meet common friends, drink beer, and "park" intimately. Ernst Flink, who had been a gardener and resident of the Foundation grounds for over 20 years, observed the two youths trespassing on the lot where he had previously encountered young people using drugs and alcohol, engaging in sexual activities and littering the property. Mr. Flink, who unbeknown to appellant, was carrying a gun, approached appellant and asked that he and his friend leave the grounds. An argument ensued, culminating in appellant's striking Mr. Flink, Mr. Flink drew his gun and shot appellant six times in the arms and torso.
Summary judgment is an extreme remedy, entitling the moving party to judgment as a matter of law only when no genuine issue of material fact is present at the time the motion is made. Super.Ct. Civ.R. 56(c); Johnson v. Weinberg, 434 A.2d 404, 407 (D.C.1981); Maddox v. Bano, 422 A.2d 763, 764 (D.C.1980); Nader v. de Toledano, 408 A.2d 31, 41 (D.C.1979), cert. denied, 444 U.S. 1078, 100 S. Ct. 1028, 62 L. Ed. 2d 761 (1980). While it is true that the moving party bears the burden of demonstrating that no material factual dispute exists, all inferences drawn from subsidiary facts are to be resolved against him or her. Johnson v. Weinberg, supra, 434 A.2d at 407; Willis v. Cheek, 387 A.2d 716, 719 (D.C.1978).
The function of this court, in reviewing the trial court's ruling, is to ascertain whether any issue of fact pertinent to the ruling exists. Thompson v. District of Columbia, 407 A.2d 678, 680 (D.C.1979), citing Owens v. Tiber Island Condominium Association, 373 A.2d 890, 894 (D.C.1977). Although appellant proffered several theories of liability against appellee, we conclude that two of the asserted causes of action liability based on the doctrine of respondeat superior, and the allegation of negligent supervision should not have been disposed of by means of summary judgment.
In order to prevail on this theory of liability, appellant must prove that a master-servant *63 relationship existed between Ernst Flink and The Army Distaff Foundation, and that the alleged tort occurred while the employee was acting within the "scope of his employment."See Johnson v. Weinberg, supra, 434 A.2d at 408.
The trial court found as a matter of law that Mr. Flink's actions were unforeseeable by the defendant and could not be found by a reasonable juror to come within the scope of employment. In the view of the trial judge, the question of whether the incident occurred within the scope of employment turned on Mr. Flink's job description and responsibilities, i.e., whether in addition to being a gardener, he acted in the capacity of a security guard. In holding that Mr. Flink was not acting within the scope of his employment the trial court concluded that he was "solely a gardener" and that he had "no security duties." While the evidence of record clearly shows that Mr. Flink was a gardener, there is indicia that he had at least some security functions. Mr. Kenneth Pace, Mr. Flink's immediate supervisor told investigative police officers, shortly after the shooting, that Mr. Flink checks the parking lots as one of his "normal duties." In addition, Mr. Wyly K. Jones, manager and administrator of the Army Distaff Hall, stated: "He lives in Knoll House as part of the conditions of employment, and he does secure and lock up the Knoll House."
Ernst Flink initially approached appellant regarding a matter which related, however remotely, to an undisputed aspect of his employment keeping the parking lot free from litter. His personal concern that there be no encroachment upon the quiet enjoyment of his place of residence may have played an integral part in his conduct, but that question is not now before us. Whether the assault occurred within the scope of his employment or was a personal adventure is a question which must be evaluated on a factual basis. Since there is some indication that the shooting was the outgrowth of a job related encounter the motion for summary judgment should not have been granted.
To invoke this theory of liability, appellant must establish that appellee knew or should have known that its employee regularly ejected trespassers while armed, and that the employer failed to take reasonable precautionary measures in supervising him. Aside from the question of vicarious liability, appellee may be directly liable if it failed to exercise reasonable care to avoid harm under the circumstances. Under this approach to liability, the employer's duty to supervise is not merely to be judged by the concept of respondeat superior. Rather, it is an allegation of direct negligence and "[t]his duty extends even to activities which, . . . [sometimes] are outside the scope of employment." See International Distributing Corp. v. American District Telegraph Company, 186 U.S.App.D.C. 305, 308, 569 F.2d 136, 139 (1977).
*64 A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: (a) in giving improper or ambiguous orders or in failing to make proper regulations; or (b) in the employment of improper persons or instrumentalities in work involving risk or harm to others; (c) in the supervision of the activity; or (d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.
The present record reveals that Mr. Flink, with the knowledge of his supervisor, John Aiker, frequently took evening walks around the grounds, and that he had previously confronted youths in the parking lot. We agree with the trial court that the mere fact that "Mr. Flink may have made a chance remark a year before the incident does not support the inference that defendant was put on notice that Mr. Flink carried a gun or had a propensity to use one." This circumstance, however, does not defeat appellant's claim for negligent supervision as "[o]ne who engages in an enterprise is under a duty to anticipate and to guard against the human traits of his employees which unless regulated are likely to harm others." Id. comment g, p. 461.
Given the conflicting state of the evidence, direct and circumstantial, we are compelled to conclude that appellee did not meet the summary judgment standard that there was no genuine issue of material fact as to this aspect of the case.
Accordingly, the summary judgment on these two counts of the complaint must be reversed and remanded for trial.
I am unable to agree with the majority that there exists any issue of material fact in this case requiring reversal of the summary judgment motions granted below. First, in order for appellant to succeed on the basis of respondeat superior, the shooting of appellant by Flink must be determined to have occurred within the scope of Flink's employment. Penn Central Transportation Co. v. Reddick, 398 A.2d 27, 29 (D.C.1979). While vicarious liability for intentional torts now extends beyond actions specifically authorized by the employer, it is limited to "situations where the employment provides a `peculiar opportunity and. . . incentive for such loss of temper,' W. PROSSER, Law of Torts § 70 at 466, as where an argument is likely by virtue of the servant's duties, and the conduct is wholly or partially in furtherance of the master's business." Penn Central Transportation Co. v. Reddick, supra, 398 A.2d at 31. An employer is not responsible for its employee's conduct where the employee's actions constitute a marked and decided departure from the employer's business.
The issue to be decided, then, is "whether the conduct in question is `so unforeseeable as to make it unfair to charge the employer with responsibility.'" Id. at 30. "When a servant's conduct is wholly unprovoked, highly unusual, and outrageous, these facts alone may be sufficient to indicate that the motive for an intentional tort was personal." W. PROSSER, Law of Torts § 70 at 465.
Here, the facts are clear that Flink's duties extended solely to gardening during *65 the day and securing a building at night. He was never authorized to eject trespassers from the grounds. The late-night altercation between Flink and Murphy was neither a direct outgrowth of Flink's instructions or job assignment, nor an integral part of The Army Distaff Foundation's business activities, interests or objectives. Instead, Flink's actions suggest a purely personal motive unknown to appellees and wholly unforeseeable. Thus, as a matter of law, the assault by Flink upon Murphy was in no degree committed for appellee's benefit, nor the product of a job related controversy, see Lyon v. Carey, 174 U.S.App.D.C. 422, 533 F.2d 649 (1976), but rather "solely for the accomplishment of the independent malicious or mischievous purpose of the servant" and therefore outside the scope of Flink's employment. Great A&P Tea Co. v. Aveilhe, 116 A.2d 162, 165 (D.C.Mun.App. 1955), quoting Evers v. Krouse, 70 N.J.L. 653, 58 A. 181 (1904).
Second, the majority errs with respect to the negligent supervision claim. This cause of action requires actual negligence on the part of the principal when conducting an activity through its servants. See RESTATEMENT (SECOND) OF AGENCY § 213 (1957). There is no evidence of record indicating that The Army Distaff Foundation in any way participated in Flink's ejectment of trespassers from the grounds. Flink's employment duties entailed his basic job as a gardener during the day, and securing the Knoll House, where he lived, at night. The unfortunate incident involving Murphy was not in any way even tangentially related to either of these activities as was the case in International Distributing Corp. v. American District Telegraph Co., 186 U.S.App. D.C. 305, 569 F.2d 136 (1977).
Aside from failing to clear this initial hurdle, the majority opinion strains to develop a conceivable basis upon which to build a negligent supervision case. Initially, the majority states that "appellant must establish that appellee knew or should have known that its employee regularly ejected trespassers while armed." (Emphasis added.) After declaring this the standard, the majority admits that there was no evidence presented which would even support the inference that appellee had notice of Flink's ever carrying a gun on the grounds. The majority then attempts to salvage appellant's cause of action by latching on to language found in RESTATEMENT (SECOND) OF AGENCY § 213 comment g. Under the heading of "inadequate regulations," this comment states that "[o]ne who engages in an enterprise is under a duty to anticipate and to guard against the human traits of his employees which unless regulated are likely to harm others." Id. Apparently the majority subscribes to the position that it is a knowable "human trait" of those hired to garden and secure buildings at night to chase trespassers off the employer's grounds while armed. A reading of the illustrations listed under comment g affirms that the scope of the language was never intended to reach this far, nor should it. This thoughtless application of the literal passages of the RESTATEMENTS is a misuse of those works.
The trial court properly dismissed each of appellant's claims on summary judgment grounds. To the extent that the majority found genuine issues of material fact relating to claims of respondeat superior and negligent supervision, I respectfully dissent.
 The following theories were averred at trial: negligence per se; strict liability; negligent supervision; imputed negligence, and respondeat superior.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
 We read the dissenting opinion to say that there are no issues of material fact to be resolved with regard to liability based upon respondeat superior and negligent supervision. Given the total circumstances of record and the course of conduct alleged against appellee and its employee, we think there are at least sufficient material questions of fact to entitle appellant to present his case-in-chief to the trial court. Whether appellant can withstand a motion for directed verdict or prevail on these issues is not within the province of an appellate court with the case in this posture to decide. Thus, we differ with our dissenting colleague that there are no genuine issues of material fact sufficient to defeat a motion for summary judgment.
 The "inadequate regulations" examples given are (1) a railway which failed to make adequate rules for the use of its tracks by passing trains running in opposite directions; (2) a busy garage with an entrance across a sidewalk which did not deal with the problem of pedestrians crossing; and (3) a powder manufacturer who failed to regulate the disposal of his accumulated product.