going to have three two primary arguments in this case first of all the decision is legally erroneous and against the manifest weight of the record second of all bad the terminations decision lacks just insufficient cause as required by the illinois precedents in judicial review of reviewing decisions to terminate public employees before i get into the meat of those i'd like to emphasize and this will go more to the second are going to a few key facts about the point that mr walker it consideration when the board made its determination as far as i can tell your honor from the face of america board decision those factors which were argued before the board closing argument they don't even make reference in the decision so as far as we can tell they were not considered but wouldn't that imply need to hear it again your honor it's hard to know because this isn't basically it's written such that the board determines that there were violations of the site in general orders and therefore they order him separate th don't even address the that adamant arguments we made closing there that you know the thirty two year is the lack of prior disappoint should be given some weight in determining should this be a terminations something less than that so that's just general background this is not a there there is no evidence establishing that this is a severely problematic employee but let me get into that the first primary argument about the decision being legally erroneous and against the manifest weight in its decision there's there's two explicit points that the mere port states first they stayed that possession and ingestion of medications as mr walker claimed to have done is an abuse he worked there of a prescribe a violation of the sheriffs drug free workplace policy that's right out of the just the second point they state again prescriptions well over twelve and seventeen years old do not bottle in two thousand and eleven even if the prescription bottles from the year two thousand violates any federal state or local law well they do rely on this one stance is that you tell us this statute  nothing whatsoever about after the refill date on the prescription bottle if you can still take those remaining pills in the bottle thereafter certainly st can't get it refilled after that date but it doesn't yet doesn't say it's illegal for some walpole the prescription is expired after that refill date so that again that one doesn't do anything to address a particular facts here that mr walker took a pill out of his own prescription bottle that rendered a false positive for pick the key points in this appeal is that it's not really defined anywhere in the sheriff's drug free workplace policy it just says abuse of prescription drugs is a violation of the policy but it doesn't go on to  share you mean as to whether or not well if you stop a legally described medication or abuse of a medication do you think that that might be better left to someone who has some kind of medical background to describe what appears to me what you are is a good point i mean it does seem first of all strange for the cook county sheriff from airport whose hearing officers are heard not to my knowledge of medical practitioners to be making decisions that such and such action constitutes a use of a prescription drug for their work there was no medical expert call to opine in this case that yes this is abus that i'm saying it right if he did it's abusive to the best i can recollect from the record there was no specific testimony that that definitely constitutes abuse under the sheriff's general ord and more when i mean it's definitely not defined in a general order anywhere i would point out in the appendix to that drug free workplace policy there are a couple examples listed of what would constitute abuse but neither of them can get those again one of only one test one of them was taking a prescription in excess of the prescribed amount so i spaced it appears to be you know take one capsule per day and if you took two or three a day that would be an excess that apparently how that example would read the second example from the appendix the policy was taking it for some reason other than it was cracked but those are the only two best i can remember explicit examples of abuse listed in in that house now certainly certainly should write the policy in such a way as to say taking a one quarter tablet out of your own prescription bottle we consider that to be abuse well it could also write something else like if you take a prescription from ah a prescription over a certain age it will be considered abuse if you're correct that will be its product is there or is there so is concern that perhaps or is there a reasonable interpretation of the policy that when you're taking prescriptions of that age that you have is that if you've that there is nothing in the written policy i define it and for the more the fact there's nothing in i anywhere at any level stating that i've i think goes to the fact that this is not something that every person of ordinary intelligence sensibility would consider to be abusive in a way that's going to lose your thirt career and we we look at the policy to see if it's that the interpretation is reasonable well i think again we would need the testimony of a medical practitioner at the  bad this constitutes abuse of a prescription drug we don't have that in this record so i don't know that we have the record evidence to make a determination if this is a reasonable interpretation from the state of this record we also one of the arguments in the brief was if there was abuse of this prescription going out of use in the sense of being used recreationally what have you the inference would be that mr would not have any of these old pills because they would have been gone recreational use over the last ten year period so the fact that it wasn't rebuilt refilled but he still had these in this in this pill bottle i further undercuts the merit boards apparent position that this is abuse so medical that's the word from the record prescription bottles and that investigator collins inspected two of them you don't have to take rockers word for word investigator palin's admitted that that's what she did when she was testifying at the mirror tested positive on a test was taking and then would transmit those prescriptions to the director's office of the drug testing unit to be there on submitted to the drug laboratory that is laid out in me in the testimony of haiti and hines the there's the evidence is really that no p r violated its own protesting procedure didn't take down all the prescriptions and as a result of that we have this credibility finding that the marriage work makes which as i've already indicated doesn't seem to be wanted by policy we believe that the decision is i would be equally erroneous and should be overturned with that you know the administrators if you case was also very clear that there's a second part of the analysis  was under these specific facts of this case we don't have any evidence that walker was deficient in his performance of his duties that this undermined morale of the discipline or efficiency of the service there's nothing in the decision addressing those body that stated even a zero tolerance drug policy needs to consider mitigating surrounding factors or it's a violation of constitutional due process that the that the read up is that is from this district  control substance in a system that was not prescribed now the key piece of that decision actually the key piece of evidence here is that the investigator testified that when she asked him what cause a positive result she he told her i took a portion of lorazepam the night before the drug ties to sleep he never the investigator also testified that he didn't mention any drugs and in fact the only bottle that he presented to her for her inspection signed statement states that mr walker at the interview he told the investigator that he took a portion of lorazepam the night before the drug test not the statement does not mention di as it doesn't mention any other drugs and this interview is going back the evidence in the case is that lorazepam cannot cause a positive result for which is what he tested positive for in this interview is a deliberative process in this in this case it took two days and the interview itself was one hour mr walker brought his you know representative of his interrupted the best to cater and so the union steward was there to do his job which was to support mr walker going back to the statement mr walker and his union representative came back the next day he never testified that the statement was wrong and would you agree that the testimony relating to what you mean policy could be summarized by this collins testimony that she guessed that eight thousand nine hundred ninety five and two thousand prescription were not valid and then miss heinz he testified that the way she was able to conclude that there was abuse was by her own viewing of her prescriptions that were limited to a certain date as far as when they could be refilled would you say that was the sum and substance of the testimony regarding what abuse the prescribed limits he took it he took his eye as an m seven that was prescribed seventeen years ago is there anything on the bottle that says don't take this if you're certain and actually he never the record shows actually that he didn't bring a bottle yes he brought some kind of packaging that came the department of pro financial and professional regulations roll it sixty eight illinois administrative code thirteen thirty seven thirty that rule actually says that prescriptions expire after one year and so he admitted to taking an expired drug which is in excess of what was the i believe that regulation is directed to pharmacists only is it not pharmacists can no seeth that after six months of this question can you feel this is a separate regulation it's under the department of financial and professional financial and professional regulation so it's part of your it's part of the sheriff's policy it's actually a honor actually in preparation for oral argument i did additional research and found this but you haven't actually filed a motion to cite edition or already did to do what you're doing today your honor i in again in preparation for arguments i however you can continue but what does the regulation direct itself to do is it directed to i believe that it does it's a regulation directed towards pharmacists and on several occasions threaten to rush him stating that his prescriptions being out because his prescriptions were outdated he could be arrested for possession of controlled substance who's worked for the sheriff for thirty two years who's a vietnam war veteran who suffered injury as a result of that service and and you want to fire him because he was unable to say  asked i'm no longer exists and is no longer available which does not make sense because the has come as a generic brand of value thank you may i ask you something else because i'm thinking now about this regulation that you're going to be relying on and or at least you brought it up in under the general rules of the ministry to you the board nor yourself cannot come up with something new and say that this supports the board's finding do you understand that like you can pick whole regulation out of a book and say that this supports or to work as a limited evidence free might perhaps be an area of expert opinion in other words shouldn't a physician or nurse or pharmacologist or someone with a medical background of some kind have testify regarding what abuse of a prescription pages twenty four pages long and he reads it because when he reads it every day before he goes to work there's a telling anywhere in there that he can't take a pill that's more than a year old it does not testified that he switched back and forth between where is this language i'm sorry i don't think i've seen it in the briefs about you reference some part in it where it says it gives us some wor i'm sorry but this is page two of your opening brief yet not ok page to see her it says that it's it's just the policy doesn't include drug use pursuant to a belt prescription except when it's a or no it doesn't say that or when used as often otherwise authorized and then it says it doesn't apply to the use ok within the limits this is if this is what you mean the policy does not apply to the use of controlled substances within the limits of a medically palate prescription yes ok but then i thought you had some other you were referring to something else in the policy and i was trying to figure out where that if i was also  know what it says you can have multiple multiple prescriptions for controlled substance from one or more physicians from one arm or position from one or more physique shannara what possessed multiple you can have multiple  and we have to be able to address your arguments and ask you about them but that's not anywhere in your brief that this there's a provision that says you can't have the full you cannot have violation of policy to pose as multiple prescript i don't think anyone actually testify to that you're right because we cannot you know we we are reviewing the board's decision based on the record pick as a pam can and so after being educated by the expert he changes his story at the last minute and you'll see this happening on page five thirty five line twenty one of the record the plaintiff realizing that this  a feasible story that he can state so sixteen months after the drug tests at the last day of trial right after hearing the expert testify he says for the first time i took dyads pam before the drug  and what's interesting about his testimony is that it's identical to the other pieces of evidence the statement the investigator and the union the union representative asked say that he said he took a portion of and i was going to say that the interesting thing is the only thing that's different between his testimony and everyone else's testimony is that the drugs are switched out the union representative heard him say lorazepam miss collins heard him say lorazepam the statement drug test this required and he had previously tested positive for a controlled substance and that on two occasions those substances i believe indicated both  it's because he didn't actually take the pam before the drug test otherwise he would have told investigators he took that as a pill and actually honor counsel may argue this and i think the plaintiff he's to present to you representative actually said that he saw two to five and mr walker actually said that he had three bottles of the as a pound and so there's actually no evidence that he actually brought the after them to the meeting except for his own self serving customers and so your honor going to the abuse of prescription drugs  it is well established that constitutional questions should be avoided if a case can be a front on other grounds and in this case because a manifest weight of the evidence shows that mr walker had control substance in a system that wasn't prescrib it wasn't it couldn't have been lorazepam and it wasn't die as a pound because the evidence shows that he didn't actually take that as a pound before the drug tests because of that the constitutional question can be avoided furthermore the mere  sufficient for discharge and actually none of the cases the plaintiff cites to involve a positive drug tests but the supreme court stated in landis that it is only completely related cases involving the same incident that are relevant to determine costs and in this case if you compare this case with the sheriff's cases the surest cases all involve positive drug tests and in fact in solo boehm the court affirmed the discharge of the sixteen year veteran of the chicago police department for having positive results for cocaine with satellite and therefore in this case plaintiff violated the sheriff's zero tolerance struck policy and the illinois to stroll controlled substance out by having controlled substance in his system without any prescriptions and also abusing prescription drugs as i mentioned before as a paramilitary organization and a law enforcement agency to share has the right to have and force  thank you your honors bristly council has council did provide me with a copy of the regulations under the illinois pharmacy practice act yesterday the section referred to was thirteen thirty point seven thirty  manufacture is beyond you state shall be twelve months or that many factors beyond your state so our position here is that the die as a pam all the evidence of the prescriptions in this case are not prepared for the meeting if that subsection so it's the act is also  not someone who's been a dope your a lot his career his thirty two year career there was no evidence that he was regularly down there experienced with the process he did have investigator humphries telling him repeatedly interrupting him bad he was going to be arrested for possession of controlled substances because they were i would note in the record hearing officer hogan i believe over objection sustained the sheriff's objection to us as a pam i mean he's a security specialist a deputy sheriff in the court services department he's not a medical expert there is no evidence he has any medical background or training so the fact that he may have articulated something imperfect