2014 IL App (2d) 121251 No. 2-12-1251 Opinion filed February 19, 2014 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
HENRY CHAMBERLAIN, ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellant, ) ) v. ) No. 12-MR-818 ) THE CIVIL SERVICE COMMISSION OF ) THE VILLAGE OF GURNEE, ILLINOIS; ) GEORGE ILER, LORI HUBBARTT, and TY ) BONDS, Commission Members; FRED N. ) FRIEDL III, Fire Chief of the Village of ) Gurnee, Illinois; JOHN KAVANAUGH; ) JAMES GRAMER; and THOMAS DRATHS, ) ) Defendants-Appellees ) ) (Colleen F. O’Keefe; James Wilson, President ) Of the Gurnee Firefighters Union I.A.F.F. ) Honorable Local 3598; The Gurnee Firefighters Union ) Jorge L. Ortiz, I.A.F.F. Local 3598, Defendants). ) Judge, Presiding. ____________________________________________________________________________
JUSTICE SPENCE delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Jorgensen concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Henry Chamberlain, is a firefighter-paramedic with the Village of Gurnee fire
department who was passed over for promotion to lieutenant. This was despite the fact that
plaintiff was the highest-ranking person on the promotion eligibility list for that rank. Pursuant to
section 20(d) of the Fire Department Promotion Act (Promotion Act) (50 ILCS 742/20(d) (West 2014 IL App (2d) 121251
2010)) and article 18 of the collective bargaining agreement (CBA) between defendants Gurnee
and the Gurnee Firefighters Union I.A.F.F. Local 3598, defendant the Civil Service Commission
of the Village of Gurnee (Commission) passed over plaintiff after the fire department presented
evidence regarding alleged work-performance shortcomings and incidents of misconduct.
¶2 Plaintiff appealed the decision to the Lake County circuit court, which affirmed the
decision. For the reasons stated herein, we affirm.
¶3 I. BACKGROUND
¶4 Plaintiff has been a firefighter-paramedic with the Gurnee fire department since 1994. In
May 2010, the Commission, an administrative agency of the Village of Gurnee, established a
promotion eligibility list for the promotion of firefighters to the rank of lieutenant. The
promotion list was in effect from May 21, 2010, through May 22, 2012. In the spring of 2012,
plaintiff was the highest-ranking person on the list and therefore was next in line for a promotion.
However, in an April 20, 2012, finding and decision by the Commission, plaintiff was passed over
for promotion. Defendant James Gramer, second on the list, was promoted instead.
¶5 The Commission derives its authority to pass over a firefighter on the promotion list from
the CBA, dated May 1, 2011. Article 18 reads, in part:
“[A]ll promotions made off that list will be made in order of finish on the final list.
However, the Civil Service Board shall have the right to pass over that person and appoint
the next highest ranked person on the list if the Board has reason to conclude that the
highest ranking person has demonstrated substantial shortcomings in work performance or
has engaged in misconduct affecting the person’s ability to perform the duties of the
promoted rank since the posting of the promotion list.”
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The language of the CBA tracks the language of section 20(d) of the Promotion Act, which reads,
in part:
“[T]he appointing authority shall have the right to pass over that person and appoint the
next highest ranked person on the list if the appointing authority has reason to conclude that
the highest ranking person has demonstrated substantial shortcomings in work
performance or has engaged in misconduct affecting the person’s ability to perform the
duties of the promoted rank since the posting of the promotion list.” 50 ILCS 742/20(d)
(West 2010).
Thus, under provisions of both the CBA and the Promotion Act, the highest-ranking candidate on
the promotion list is selected for a promotion unless the Commission finds that the candidate
demonstrated substantial work-performance shortcomings or engaged in misconduct affecting his
or her ability to perform in the promoted rank. The Commission passed over plaintiff pursuant to
these provisions.
¶6 The Commission’s investigation into plaintiff’s performance formally began on or about
March 16, 2012, when defendant Thomas Draths, an attorney representing the Gurnee fire
department, notified the Commission that plaintiff was the highest-ranking person on the
promotion list and that the fire department believed that he had demonstrated substantial
shortcomings in his work performance and/or had engaged in misconduct affecting his ability to
perform the duties of a lieutenant. The fire department’s notification of charges and allegations
included a March 6, 2012, transcript of plaintiff’s administrative statement regarding four alleged
incidents of misconduct (occurring, respectively, on or about January 23, January 24, January 25,
and February 27, 2012) and statements from firefighters and paramedics regarding plaintiff’s
conduct during three of these incidents. In response to the notification, plaintiff’s counsel,
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Thomas McGuire, wrote to the Commission on March 23, 2012, to request an evidentiary hearing,
asserting that plaintiff had a property interest in having his name on the promotion list, thus
entitling him to procedural due process, and generally asserting that the Commission should not
take any action against plaintiff. The Commission declined to hold a hearing, but on April 5,
2012, it did notify plaintiff and Draths that it would hold a special meeting on April 10, pursuant to
its rules and regulations and section 20(d) of the Promotion Act (50 ILCS 742/20(d) (West 2010)),
to determine whether plaintiff engaged in misconduct or demonstrated shortcomings in work
performance. Counsel for plaintiff responded to the notice with an April 9, 2012, letter, in which
he argued, in pertinent part, that plaintiff should not be removed from the promotion list—an
action that the Commission would not be taking in any event, since the decision to be made was
only whether to pass over plaintiff on the list—and that statements provided to the Commission by
the fire department were inadmissible hearsay.
¶7 The fire department’s notification alleged the following four incidents of misconduct
and/or substantial work-performance shortcomings, all of which occurred while plaintiff was on
duty. The first alleged incident was on January 23, 2012, when plaintiff responded to a call from
a construction site at 401 Hunt Club Road in Gurnee. An injured person had fallen approximately
25 to 30 feet. In the presence of the injured person, plaintiff’s coworkers, and other Gurnee
personnel, plaintiff said, “ ‘Were you the one who was up on the scaffolding that said ‘Bears
suck’? That’s what you get for being a Packers’ fan.’ ”
¶8 The second alleged incident occurred on January 24, 2012. Plaintiff was on the scene of a
car accident where the car was on its side with two occupants within. In the presence of civilians,
plaintiff referred to his coworkers as, “ ‘You idiots! You dumbasses!’ ” In the notification, no
context was given for the derisive words.
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¶9 The third alleged incident occurred on January 25, 2012. While en route to and at Condell
Medical Center, plaintiff allegedly responded unprofessionally when communicating with a nurse
who was asking for an abbreviated radio report. Once plaintiff arrived at the hospital, he engaged
the nurse in confrontational conversation, blocking her egress by standing close to her while she
was against a wall and, at one point, asking whether she wanted to “ ‘take this outside.’ ”
¶ 10 The fourth alleged incident occurred the morning of February 27, 2012. Plaintiff engaged
in a verbal altercation with a fellow firefighter regarding garbage being mixed with recyclables.
The exchange was described as less than cordial on plaintiff’s part, with many an “F-bomb” being
dropped against the coworker.
¶ 11 In plaintiff’s administrative statement, he “[did] not recall exactly what was said at the
scene” of the incident where a man had fallen from a scaffolding. When asked whether he made
any comment about the man being a Green Bay Packers fan and his injury thus being his just
desserts, plaintiff responded, “[m]y recollection of the event, I did not use words in that context.
*** I do recall trying to make a connection with a patient who was conscious and made some
inference to the fact that I was a Bears fan, he was a Packer fan.” Plaintiff indicated that such a
comment would be an ice-breaker when trying to make a connection, such as “whether it’s our
receding hairlines are similar” or some other “humanality [sic] of exchange.” Plaintiff did not
recall making a comment about the sign that said “Bears suck.” He did not recall saying
something like “that’s what you get for being a Packers fan” and did not think that it sounded like
something he would have said. When asked why his coworkers would report that he said
something to that effect, plaintiff refused to speculate, offering only that they likely did not hear
everything or understand the context of his words.
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¶ 12 Plaintiff’s coworker, firefighter Lake, was on the scene with plaintiff that day, and on
January 25 he wrote a note that plaintiff, upon viewing the man lying facedown on the ground, in
critical condition, said, “ ‘So he fell from the Bears suck scaffolding. That’s what you get for
being a Packers fan.’ ” Lake found the comment, which was heard and corroborated by three
other coworkers on the scene, “belittling” and “unprofessional.”
¶ 13 Plaintiff’s administrative statement continued with the incident at the scene of the auto
accident. Plaintiff had responded to the accident, in which a car was turned on its side, resting on
the median between eastbound and westbound traffic. The occupants were still inside the car and
could not exit the vehicle. Plaintiff was asked whether he called any of his coworkers on the
scene “dumbasses or idiots.” Plaintiff responded, “I recall a comment was made loosely around
that.” Clarifying, plaintiff said he uttered something at coworkers that might have included those
words, because, upon arriving at the scene, coworkers were trying to get at the occupants through
the windshield without first stabilizing the car and without using a protective blanket for the
occupants to protect them from the breaking of the windshield.
¶ 14 Regarding the third incident, with the nurse, plaintiff recollected that he was traveling by
ambulance with a carjacking victim to the Condell hospital when he communicated with a Condell
nurse. He was not driving the ambulance. Plaintiff first communicated to the nurse that they
were transporting a 25-year-old female victim of a carjacking incident. The nurse then
interrupted him to ask what the woman’s injuries were. He began his report again, and he did not
remember slowing down his words or repeating anything sarcastically. After arriving at the
hospital, plaintiff met the nurse face-to-face in the paramedics’ room. He said that she tried to
explain how she preferred to receive reports, with the major injuries reported first, which he said
was not consistent with firefighter-report protocol. Plaintiff described their interaction as “an
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exchange, discussion, argument.” Their interaction lasted a few minutes, and “both parties felt
strongly on their positions, and neither party seemed to be wanting to give at all on their
[positions].” Plaintiff said that they had a second exchange that lasted about 30 seconds. After
writing up his report, plaintiff saw his coworker speaking with the nurse, but he did not recollect
what they were speaking about. Plaintiff believed that at no time did he pin her against the wall or
“encumber[] her in any shape or form.”
¶ 15 However, the nurse painted a different picture of their interaction, as described in a letter
she wrote regarding the incident. In her letter, she identified herself as the charge nurse who
answered the radio call from the Gurnee fire department. She said that she needed to request an
abbreviated report, which she knew was unusual. She knew immediately that plaintiff was upset
with the request, but she figured she would explain further upon his arrival at the emergency room
(ER). However, upon meeting plaintiff in the medic report room, she found him to be “enraged
by [her] very presence,” and he would not allow her to explain herself or discuss the situation.
She found him intimidating and verbally abusive. Plaintiff approached her when she was
speaking to his partner, and he asked her, “ ‘Do you want to take this outside?’ ” She felt
threatened and afraid.
¶ 16 Mike Kulczycki, plaintiff’s coworker that day, wrote a letter on January 28, 2012, relating
the incident. Kulczycki observed plaintiff and the nurse arguing in the ER, but he kept walking to
a back room. In the back room he could hear plaintiff, “in a raised voice, belittle the nurse.” He
wrote that he heard plaintiff cut the nurse off, saying, “ ‘You need to learn your job!’ ” and, “ ‘If
you are going to be the nurse that answers the phone than [sic] you better learn the paramedics job
and our protocol!’ ” He described plaintiff’s tone as “raised, angry, and condescending.” The
nurse “never raised her voice” and kept trying to apologize. When Kulczycki went to apologize
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to the nurse for plaintiff’s behavior, plaintiff stopped and said something rude and condescending
to the nurse and then left. In the ambulance, plaintiff told Kulczycki that the argument had begun
because the nurse interrupted his radio report twice that day and once on a radio report a week
prior.
¶ 17 Plaintiff addressed the fourth incident, which involved plaintiff and firefighter Muligano.
Near the start of their shifts, plaintiff said, Muligano approached him and asked why there were
recyclables mixed with the garbage. Plaintiff responded by saying, in effect, that if there were
recyclables in the garbage they were going to stay there. Muligano told plaintiff that he was “an
advocate for recycling,” and plaintiff answered that, basically, he did not care. Their exchange
continued with Muligano asking that plaintiff leave the recycling for him in the future, and
plaintiff then used an expletive to tell Muligano to get out of his face. 1 Plaintiff also said
something to the effect of, “You should be a shift mate and get up to wash the rigs in the morning,”
referring to past behavior, and told Muligano that he should clean the kitchen. The exchange
occurred with another coworker present and a civilian in the vicinity. Plaintiff admittedly raised
his voice and said something to the effect of, “I’ve got nothing to f***ing say to you, go take it up
with your lieutenant.” This interaction between Muligano and plaintiff was also documented in a
letter written by Muligano in which Muligano expressed that he did not appreciate plaintiff’s
overall treatment of him and that plaintiff was “consistently degrading and unprofessional.”
¶ 18 In the Commission’s finding and decision, the Commission specifically referenced only
two of the alleged incidents of misconduct and/or shortcomings, to wit, the January 23 “Bears
suck” incident and the January 25 incident involving his interaction with the nurse. In rendering
its decision, the Commission considered plaintiff’s administrative statement, the fire department’s
1 Plaintiff admitted using the “F-word.”
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notification of charges and allegations, emails from plaintiff’s counsel, and statements from
firefighters, paramedics, and the nurse regarding the alleged incidents. On the basis of this
evidence, the Commission found that “the subject matter of [plaintiff’s] *** actions are [sic]
directly related to his Firefighter/Paramedic duties,” “[his] acts of misconduct are not to be taken
lightly,” “[he] failed to uphold the high standards and duties of his office,” and, by reason of its
conclusions of fact, “[he] has demonstrated a substantial shortcoming in performance and
misconduct affecting his abilities to perform the duties of a Fire Lieutenant.” Accordingly,
pursuant to the Commission’s rules and regulations and section 20(d) of the Promotions Act (50
ILCS 742/20(d) (West 2010)), the Commission ordered that plaintiff be passed over for promotion
to the rank of lieutenant. However, the Commission stated that it was not removing plaintiff from
the promotion list, assuaging plaintiff’s contestation that the Commission could not remove him
from the list.
¶ 19 On May 18, 2012, plaintiff filed his complaint in the circuit court, seeking review of the
Commission’s decision. The issue was briefed and the court heard oral argument. On October
17, 2012, the court entered a final order affirming the Commission’s decision. Plaintiff’s
complaint was dismissed with prejudice. In reaching its decision, the court found that “[m]erely
having ones [sic] name on a promotion list does not create the protected property right.” Further,
because plaintiff did not have a property interest in this case, he was not entitled to procedural due
process protections, such that the Commission was entitled to consider written statements of others
regarding plaintiff’s on-the-job behavior, even if they would otherwise amount to hearsay. The
court found that all that was required of the Commission was to find that plaintiff demonstrated
substantial shortcomings in his work performance or engaged in misconduct affecting his ability to
perform the duties of a lieutenant, and then to document its reasons for that conclusion. The court
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found sufficient evidence to support the Commission’s decision and that the Commission had
documented its reasons. Therefore the court affirmed the Commission’s decision.
¶ 20 Plaintiff timely appealed.
¶ 21 II. ANALYSIS
¶ 22 A. Standard of Review
¶ 23 “When an appeal is taken to the appellate court following entry of judgment by the circuit
court on administrative review, it is the decision of the administrative agency, not the judgment of
the circuit court, which is under consideration.” Provena Covenant Medical Center v.
Department of Revenue, 236 Ill. 2d 368, 386 (2010). The standard of review we apply depends on
the particular question presented on appeal—whether the question is one of law, one of fact, or a
mixed question of both. AFM Messenger Service, Inc. v. Department of Employment Security,
198 Ill. 2d 380, 390 (2001).
¶ 24 We review de novo the conclusion of an administrative agency on a point of law. Provena
Covenant Medical Center, 236 Ill. 2d at 387. However, because an administrative agency has
experience and expertise on the issues it faces, we afford an agency’s construction of law
substantial weight and deference in recognition that, for ascertaining the legislature’s intent, the
agency is an informed source, which we would be remiss to ignore. Id. at 387 n.9. If the issue is
one of fact, we will uphold the agency’s finding unless it runs contrary to the manifest weight of
the evidence. Id. at 386-87. But when an issue involves the legal effect of a given set of
facts—“where the historical facts are admitted or established, the rule of law is undisputed, and the
issue is whether the facts satisfy the statutory standard”—we review this mixed question of fact
and law under the clearly-erroneous standard. Id. at 387.
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¶ 25 Plaintiff argues that all issues raised on appeal involve mixed questions of fact and law and
that thus the clearly-erroneous standard applies. However, the central issue before us is whether
the consideration of hearsay evidence violated plaintiff’s procedural due process rights. It is well
established in Illinois that the issue of whether a party’s procedural due process rights were
violated is a legal question, reviewed under the de novo standard. People v. Cardona, 2013 IL
114076, ¶ 15; Lyon v. Department of Children & Family Services, 209 Ill. 2d 264, 271 (2004).
We therefore review de novo that issue here. However, we review the Commission’s findings of
fact under the manifest-weight-of-the-evidence standard and its decision predicated upon those
findings of fact—applying the law to its findings—under the clearly-erroneous standard.
¶ 26 B. Forfeiture of Arguments Against Specified Defendants
¶ 27 Defendants Fred N. Friedl III, John Kavanaugh, James Gramer, and Thomas Draths
contend that plaintiff has forfeited any argument against them on appeal. They argue that
plaintiff’s appellate brief is directed solely against the Commission and that he made no arguments
against them before the Commission or the circuit court. Plaintiff admits in his reply brief that he
“has not made any argument as to the specified Defendants.” However, plaintiff named the
specified defendants to ensure compliance with section 3-107 of the Code of Civil Procedure
(Code) (735 ILCS 5/3-107 (West 2012)). This section of the Code requires that, “in any action to
review any final decision of an administrative agency, the administrative agency and all persons,
other than the plaintiff, who were parties of record to the proceedings before the administrative
agency shall be made defendants.” 735 ILCS 5/3-107(a) (West 2012). As these specified
defendants were named as parties of record before the administrative agency, they were properly
named by plaintiff on appeal. Furthermore, there were no arguments to forfeit against the
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specified defendants, as plaintiff admits—they were named merely, but properly, in compliance
with the statute.
¶ 28 C. Plaintiff’s Property Interest
¶ 29 Plaintiff argues that the Commission relied upon inadmissible hearsay statements in
reaching its decision to pass over his name on the promotion list. In making this argument,
plaintiff assumes much, not the least of which being that he had a protected property interest
giving rise to the protections of procedural due process.
¶ 30 Before a party is entitled to procedural due process, he must have a protectable liberty or
property interest. Perry v. Sindermann, 408 U.S. 593, 599 (1972); Chicago Teachers Union,
Local No. 1 v. Board of Education of the City of Chicago, 2012 IL 112566, ¶ 12 (“ ‘[T]he starting
point in any procedural due process analysis is a determination of whether one of those protectable
interests is present, for if there is not, no process is due.’ ” (Internal quotation marks omitted.)
(quoting Wilson v. Bishop, 82 Ill. 2d 364, 368 (1980))). Therefore, unless plaintiff here had a
property interest 2 with respect to his position on the promotion list, he was not entitled to due
process at his hearing before the Commission—i.e., he has no basis to complain about the
Commission’s use of hearsay evidence. See Board of Regents of State College v. Roth, 408 U.S.
564, 577 (1972) (“He must instead have a legitimate claim of entitlement to [have a property
interest]. *** It is a purpose of the constitutional right to a hearing to provide an opportunity for
a person to vindicate those claims.”); Bartlow v. Shannon, 399 Ill. App. 3d 560, 571 (2010) (“The
due process analysis begins with a determination of whether a protectable interest—in life, liberty,
or property—exists.”); see also Colquitt v. Rich Township High School District No. 227, 298 Ill.
2 No argument was made regarding a liberty interest, nor would such an argument fit the
facts here.
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App. 3d 856, 865 (1998) (admission of hearsay in administrative proceeding can result in denial of
procedural due process).
¶ 31 Plaintiff spends no time in his initial brief establishing how he had a property interest that
entitled him to due process. Rather, the issue is raised by defendants in their response briefs. 3
This does not necessarily mean that the argument is forfeited, however, as Illinois Supreme Court
Rule 341(j) (eff. Feb. 6, 2013) “permits appellants to reply to arguments presented in the brief of
the appellee.” People v. Whitfield, 228 Ill. 2d 502, 514 (2007). Plaintiff does make an argument
as to the existence of his property interest in his reply briefs, and we will address this issue instead
of deeming it forfeited.
¶ 32 Defendants argue that, in Illinois, merely placing a public employee’s name on a
promotion list does not create a property interest requiring due process protections. In support
they cite Schlicher v. Board of Fire & Police Commissioners, 363 Ill. App. 3d 869 (2006), where a
police officer claimed that he had a vested right to a promotion based on the board’s “historical
policy” of promoting the officer ranked first on the list. Id. at 875. However, this historical
policy was not aligned with the board’s actual policy, i.e., that the board had discretion to choose
from among the top three candidates—a fact that the board had communicated to the plaintiff and
that he indicated he understood. Id. The plaintiff “essentially presuppose[d] that the Board was
obligated to select him for promotion once there was a vacancy while his name appeared at the top
of the promotion list,” but because the board had discretion to choose, his argument that he had a
property interest failed. Id. The court cited a Seventh Circuit case, Hermes v. Hein, 742 F.2d
3 Two separate response briefs were filed—one by defendants Friedl, Kavanagh, Gramer,
and Draths, and one by defendants the Commission, Gurnee, George Iler, Lori Hubbartt, and Ty
Bonds. Plaintiff filed a separate reply to each response brief.
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350 (7th Cir. 1984), where the plaintiffs similarly claimed a property interest in promotion by way
of a departmental policy but the Hermes court found that there was no evidence that the policy was
ever promulgated through the department or stated to any of the plaintiffs. Id. at 355.
Accordingly, the Hermes court found that the plaintiffs had no due process protections because,
under the applicable Illinois law, there was discretion to choose from among the top three
candidates on the list. Id.
¶ 33 Defendants go on to cite many more cases, all in support of their argument that plaintiff
had no property interest in a promotion. See Moore v. Muncie Police & Fire Merit Comm’n, 312
F.3d 322, 327 (7th Cir. 2002) (while addressing the issue of a property interest in prospective
employment, noting in passing that an employee does not have a property interest in prospective
promotion); Billish v. City of Chicago, 962 F.2d 1269, 1300 (7th Cir. 1992) (commission had
discretion to choose candidate; insufficient evidence to establish property interest in promotion);
Petru v. City of Berwyn, 872 F.2d 1359, 1363-65 (7th Cir. 1989) (Illinois Municipal Code did not
create property interest in promotion for candidate at top of promotion list, because the city had no
obligation to fill the vacancy at any particular time and the fire department was not authorized by
the mayor, as required by statute, to hire anyone to fill the vacancy); United States v. City of
Chicago, 869 F.2d 1033, 1036 (7th Cir. 1989) (employee had no property interest in promotion
because governing law gave “unfettered discretion to choose from among the five highest rated
applicants”); Bigby v. City of Chicago, 766 F.2d 1053, 1056 (7th Cir. 1985) (no property interest in
promotion to lieutenant for police officers; promotion officials had discretion to choose among
highest-rated applicants); Sundstrom v. Village of Arlington Heights, 826 F. Supp. 1143, 1148-49
(N.D. Ill. 1993) (plaintiff had no property interest in promotion because commission had
discretion under Illinois statute to choose from among top three candidates on the promotion list);
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Brunke v. Board of Fire & Police Commissioners, 99 Ill. App. 3d 25, 28 (1981) (no property
interest in promotion, because board had discretion to choose between two candidates); McCoy v.
Board of Fire & Police Commissioners, 79 Ill. App. 3d 742, 744 (1979) (no property interest in
promotion; promotion was matter of discretion).
¶ 34 These cases repeat the same general proposition over and over: when the promoting
authority has discretion to choose among candidates on a promotion list, an employee does not
have a property interest in a prospective promotion by virtue of his or her name being on that list.
This reasoning makes sense, given that it would be inconsistent with the expressed limits of due
process protections to grant property interests to those who have no concrete claim of entitlement
to a promotion but are instead at the mercy of an authority’s discretion. See, e.g., Roth, 408 U.S.
at 577 (to have a property interest, “[h]e must have more than a unilateral expectation of it. He
must, instead, have a legitimate claim of entitlement to it.”); Suburban Downs, Inc. v. Illinois
Racing Board, 316 Ill. App. 3d 404, 413 (2000) (property interest requires legitimate claim of
entitlement, which can arise from statute, regulation, municipal ordinance, or express or implied
contract).
¶ 35 Defendants argue that plaintiff had no property interest in a promotion, because the
Commission had discretion to pass over him if it found that he demonstrated substantial
shortcomings in his work performance or engaged in misconduct affecting his ability to perform
the duties of a lieutenant. However, the discretion present in the cases that defendants cite does
not exist here. In the cases that defendants cite, the board or commission had direct statutory
authority to select from among top candidates on a promotion list; no such unfettered discretion
exists in this case. Section 20(d) of the Promotion Act (50 ILCS 742/20(d) (West 2010)) reads:
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“Whenever a promotional rank is created or becomes vacant *** the appointing authority
shall appoint to that position the person with the highest ranking on the final promotion list
for that rank, except that the appointing authority shall have the right to pass over that
person and appoint the next highest ranked person on the list if the appointing authority has
reason to conclude that the highest ranking person has demonstrated substantial
shortcomings in work performance or has engaged in misconduct affecting the person’s
ability to perform the duties of the promoted rank since the posting of the promotion list.”
Under the Promotion Act, the Commission shall appoint the highest-ranking person on the
promotion list—not choose one from among the top three or so—unless it has reason to conclude
that it should pass over that person due to substantial work-performance shortcomings or
misconduct. Therefore, the issue of plaintiff’s property interest is not so simple: unlike in the
cases that defendants cite, the Commission’s discretion here is not whether to promote plaintiff
from among a group of eligible candidates but whether there is sufficient reason to take away his
statutory expectation of a promotion. In other words, the discretion here is whether to deny a
promotion, not to grant one.
¶ 36 Framed this way, we find that plaintiff did have a protectable property interest in a
promotion, and was thus entitled to due process, for the following reasons. Whether a property
interest is protectable under the fourteenth amendment to the United States Constitution is
ultimately a question of federal constitutional law, but the resolution of federal law begins with
what protectable interest, if any, state law provides. Chicago Teachers Union, Local No. 1, 2012
IL 112566, ¶ 13. A property interest can be created by state statute but also by contract or through
a mutually explicit understanding. Hermes, 742 F.2d at 354-55. Therefore, our analysis must
begin with: (1) whether an interest in a promotion can be a property interest, and if so, (2) whether
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plaintiff had a “legitimate claim of entitlement” to the promotion. See Hill v. Walker, 241 Ill. 2d
479, 485 (2011) (“Procedural due process protections are triggered only when a constitutionally
protected liberty or property interest is at stake, to which a person has a legitimate claim of
entitlement.”).
¶ 37 First, an interest in a promotion can be a protectable property interest. “State law can
create a property interest in employment,” and an interest in a promotion is an interest in
employment. Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 106 (1990); see also
Hermes, 742 F.2d at 354-55 (“A property interest in promotion need not arise out of a contract or
statute, but may be based on a de facto promotional program.” (Emphasis added.)). Moreover,
the United States Supreme Court has “made clear that rights to public employment or promotion in
a public service system, enforceable under the due process clause of the Fourteenth Amendment,
exist” but “only to the extent accorded through statutes or regulations or both, by the public service
system in question.” Koscherak v. Schmeller, 363 F. Supp. 932, 934 (S.D.N.Y. 1973), aff’d, 415
U.S. 943 (1974). Therefore, plaintiff’s claim to a property interest in his promotion turns on
whether he had a legitimate claim of entitlement to the promotion. E.g., Walker, 241 Ill. 2d at
485.
¶ 38 We hold that plaintiff did have a legitimate claim of entitlement to the promotion to
lieutenant. Although defendants present a litany of cases purportedly standing for the proposition
that plaintiff did not have a protectable property interest in the promotion, none of the cases are on
point. Every case cited deals with a commission or a board having discretion to choose from
among multiple eligible candidates for promotion—a situation presented when section 10-1-13 of
the Civil Service in Cities Act (65 ILCS 5/10-1-13 (West 2010)) is the controlling statute. See,
e.g., Moller v. Civil Service Comm’n, 326 Ill. App. 3d 660, 664-65 (2001) (citing City of Chicago,
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869 F.2d at 1038). Here, though, section 10-1-13 is not the only statute in play; section 20(d) of
the Promotion Act also applies. As a basic matter of statutory construction, and of common
sense, the more specific and particular statute will control over the more general statute addressing
the same issue, especially if the specific statute was enacted after the general statute. Bowes v.
City of Chicago, 3 Ill. 2d 175, 205 (1954). Section 10-1-13 addresses civil service promotions in
general; section 20(d) of the Promotion Act specifically addresses promotions at fire departments.
Under section 20(d) of the Promotion Act, the language of which is mirrored in the CBA, “the
appointing authority shall appoint *** the person with the highest ranking on the final promotion
list for that rank,” unless the candidate has demonstrated substantial work-performance
shortcomings or engaged in misconduct. (Emphasis added.) 50 ILCS 742/20(d) (West 2010).
¶ 39 We do not read section 20(d)’s provision of limited discretion to pass over the highest-
ranking candidate as the type of discretion that would defeat a claim to a protectable property
interest. Rather, we read the statute as creating a legitimate claim of entitlement for the
highest-ranking candidate to the next available promotion, with discretion to pass over that
candidate under certain, specified circumstances. That the statute provides limited discretion to
pass over the highest-ranking candidate does not defeat this legitimate claim of entitlement. The
limited discretion is a prudent articulation of when and why a promoting authority may pass over a
candidate. The limited discretion does not equate to discretion to choose who will receive the
next promotion, which would imply that no candidate had a legitimate expectation of promotion;
rather, it is discretion that the promoting authority may exercise to bypass a candidate’s statutory
legitimate expectation of and entitlement to promotion.
¶ 40 Therefore, the Commission might have acted properly in choosing to pass over plaintiff by
finding that he demonstrated substantial work-performance shortcomings and/or misconduct
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affecting his ability to perform the duties of a lieutenant, but it owed him procedural due process in
making its determination. See Paskvan v. City of Cleveland Civil Service Comm’n, 946 F.2d
1233, 1235-36 (6th Cir. 1991) (although city had discretion regarding promotion, plaintiff alleged
sufficient facts to make procedural due process claim by arguing that city had waived its discretion
through its practices); Charles v. Baesler, 910 F.2d 1349, 1352 (6th Cir. 1990) (procedural due
process protections for man with contractual interest in promotion); Moore v. Ware, 2001-3341, p.
12 (La. 2/25/03); 839 So. 2d 940 (police officer who had obtained permanent status and was senior
officer on promotion list had a property interest in the promotion, of which he could not be
deprived absent due process); City of Riviera Beach v. Fitzgerald, 492 So. 2d 1382, 1385 (Fla.
Dist. Ct. App. 1986) (only candidate on promotion list for captain had reasonable expectation of
promotion so as to invoke procedural due process protections); see also Malcan v. Hall, 812 F.2d
1401 (4th Cir. 1987) (per curiam) (plaintiff could have produced evidence of promotion and tenure
entitlement that would have amounted to a property interest for due process purposes); cf. Honulik
v. Town of Greenwich, 980 A.2d 880, 895 (Conn. 2009) (“In order to prevail, the plaintiff was
required to establish that provisions of the town charter, pay plan, policy manual or the agreement
created an entitlement that the highest ranked candidate automatically be promoted to police
captain. *** [P]laintff has failed to do so.”). 4 We must next determine what process plaintiff
was due.
¶ 41 D. Consideration of Hearsay Evidence
¶ 42 The specific violation of due process that plaintiff asserts is the admission of hearsay
evidence against him, and we thus confine our analysis to whether the use of this evidence violated
4 Recognizing the paucity of Illinois cases on point, we cite these cases from other
jurisdictions for their similar rationales.
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5 procedural due process. First, we review whether the statements of which plaintiff
complains—the statements made by anyone but plaintiff himself—were hearsay at all.
¶ 43 Although we generally review evidentiary rulings for an abuse of discretion (see People v.
Connolly, 406 Ill. App. 3d 1022, 1026 (2011)), here the Commission did not rule on whether the
statements of which plaintiff complains were hearsay. Therefore, we cannot logically give
deference to a ruling that the Commission did not make.
¶ 44 Defendants offer several reasons why the statements either were not hearsay or fell under a
hearsay exception. They argue that the statements were not hearsay, because they were
considered for the effect they had on the Commission. Defendants seem to confuse a statement
offered for its effect on a listener with a statement offered for its truth before a tribunal, the former
being a category of nonhearsay and the latter not. See People v. Dunmore, 389 Ill. App. 3d 1095,
1106 (2009). Defendants also argue that the statements fall under the “then existing state of
mind” exception to hearsay. Ill. R. Evid. 803(3) (eff. Apr. 26, 2012). This argument again
misses the mark, as the statements reported what plaintiff said or did, and the hearsay exception
applies to statements about the declarant’s state of mind, emotion, physical condition, or
sensation. Id. Defendants next argue that the statements were not offered for their truth, but
rather were offered for another purpose: namely, to show plaintiff’s work-performance
shortcomings and/or misconduct demonstrating that he was not fit for promotion to lieutenant.
This argument’s persuasive hold is gossamer at best. Without being offered for their truth, the
statements would have little value for showing that plaintiff demonstrated substantial
5 Additional potential procedural due process issues, such as whether the Commission’s
“special meeting” provided for a meaningful opportunity to be heard, we leave for another day.
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work-performance shortcomings or misconduct. The truth of the statements and the purpose of
showing that plaintiff should be passed over for promotion are inexorably linked.
¶ 45 Plaintiff’s declarations, as reported by the statements, were admissions and thus were not
hearsay. Ill. R. Evid. 801(d)(2) (eff. Jan. 1, 2011) (admissions are not hearsay). However, the
statements themselves, made outside of any proceeding before the Commission, were hearsay, i.e.,
out-of-court statements offered to prove the truth of the matter asserted, and no hearsay exception
applies. Plaintiff alludes to this issue in his reply brief by asking, rhetorically, “How do we know
if the name of the person on the Statement is truly the person who wrote it? Under what
conditions? Were the contents of the Statements truly what occurred, or what was suggested to
the writers as having occurred?” The fear that plaintiff expresses is, succinctly, the danger of
hearsay. See People v. Carpenter, 28 Ill. 2d 116, 121 (1963) (“The fundamental purpose of the
hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to
cross-examination by the party against whom it is offered.”).
¶ 46 Because the Commission did in fact consider hearsay evidence, we must determine
whether such consideration violated due process. “[A]n administrative proceeding is governed
by the fundamental principles and requirements of due process of law. However, due process is a
flexible concept and requires only such procedural protections as fundamental principles of justice
and the particular situation demand.” Abrahamson v. Illinois Department of Professional
Regulation, 153 Ill. 2d 76, 92 (1992). “Although due process envisions an orderly proceeding
wherein notice and an opportunity to be heard are afforded, procedural due process in an
administrative setting does not always require application of the judicial model.” Colquitt v. Rich
Township High School District No. 227, 298 Ill. App. 3d 856, 860-61 (1998); see also Petersen v.
Plan Comm’n, 302 Ill. App. 3d 461, 466 (1998) (due process in administrative proceeding does not
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require a judicial proceeding; it is satisfied by a procedure proper to the nature of the determination
to be made). The procedural safeguards required vary with the circumstances of the case,
“depending on (1) the significance of the private interest which will be affected, (2) the risk of the
erroneous deprivation of that interest through the procedures used, and (3) the significance of
fiscal and administrative burdens that the additional or substitute procedural safeguards would
entail.” Colquitt, 298 Ill. App. 3d at 861. Various cases have held that due process in an
administrative proceeding requires “the opportunity to be heard, the right to cross-examine
adverse witnesses, and impartial rulings on the evidence.” (Emphasis added.) Sindermann v.
Civil Service Comm’n, 275 Ill. App. 3d 917, 923 (1995); see also Abrahamson, 153 Ill. 2d at 95;
Bartlow v. Shannon, 399 Ill. App. 3d 560, 570 (2010) (due process requires notice and an
opportunity to be heard, as well as the right to cross-examine adverse witnesses). However,
cross-examination—and, impliedly, a prohibition of hearsay—is not always required by due
process. At the core of due process is notice and a meaningful opportunity to be heard. See
Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792, 799 (2002); In re Estate of Gustafson,
268 Ill. App. 3d 404, 409 (1994); see also People ex rel. Klaeren v. Village of Lisle, 202 Ill. 2d 164,
185 (2002) (right to cross-examine was not absolute in quasi-judicial proceeding); Brown v. City of
Detroit, 259 F. Supp. 2d 611, 620 n.7 (E.D. Mich. 2003) (recognizing that no court has squarely
addressed what process is due when plaintiff is denied a promotion, and finding due process met
because the CBA, which was followed, provided for grievances and arbitration).
¶ 47 Generally, procedural due process protections preclude the admission of hearsay evidence
in an administrative proceeding. Magnus v. Department of Professional Regulation, 359 Ill. App.
3d 773, 791 (2005) (citing Abrahamson, 153 Ill. 2d at 94); Sudzus v. Department of Employment
Security, 393 Ill. App. 3d 814, 828 (2009). However, “where there is sufficient competent
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evidence to support an administrative decision, the improper admission of hearsay testimony in the
administrative proceeding is not prejudicial error.” Magnus, 359 Ill. App. 3d at 791; see also
Sudzus, 393 Ill. App. 3d at 828. Moreover, administrative agencies are not bound by the strict
rules of evidence that apply in a judicial proceeding. MJ Ontario, Inc. v. Daley, 371 Ill. App. 3d
140, 149 (2007). This is because procedural due process is flexible, and the process due depends
on multiple factors. Stratton v. Wenona Community Unit District No. 1, 133 Ill. 2d 413, 433
(1990). We must ask whether the consideration of hearsay evidence deprived plaintiff of a
meaningful hearing, taking into consideration (1) the significance of the private property interest,
(2) the risk of erroneous deprivation of that interest under the procedures used, and (3) the practical
burdens of providing more or substitute process, e.g., how much time and money should be spent
on the process. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
¶ 48 In a letter from the Commission’s attorney, defendant Colleen O’Keefe, to McGuire,
O’Keefe relayed that the Commission would convene a special meeting on April 10, 2012, the
purpose of which was to determine whether plaintiff had engaged in misconduct or demonstrated
substantial work-performance shortcomings. The meeting was to be convened pursuant to Rule 6
of Gurnee’s civil service rules and regulations, which stated that procedures regarding promotion
were governed by the CBA. The letter also advised McGuire that the Commission would not
hold an evidentiary hearing and stated, “The Commission has determined that neither its Rules or
Regulations, the Village of Gurnee and IAFF Agreement nor the Illinois Fire Department
Promotion Act provide for an evidentiary hearing prior to the Commission making its
determination.” The letter then invited McGuire to present any “statutory or case law that
provides for the contrary.” The Commission’s finding and decision reiterated the salient
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substance of the letter: that the special meeting would take place according to the Commission’s
rules and the CBA, and that there would be no evidentiary hearing held.
¶ 49 As the record does not include Gurnee’s rules and regulations, or the pertinent portion of
the CBA, we cannot say with certainty whether the Commission followed the proper procedures in
conducting the special meeting. However, plaintiff made no objection on the record to O’Keefe’s
letter and raises no argument against the procedures used (other than objecting generally to the
Commission’s consideration of hearsay evidence). Any doubts that arise from the
incompleteness of the record are resolved against the appellant. Corral v. Mervis Industries, Inc.,
217 Ill. 2d 144, 157 (2005). Therefore, we presume, for purposes of this opinion, that the
Commission followed all its relevant rules and regulations in reaching its decision. See Provena
Health v. Illinois Health Facilities Planning Board, 382 Ill. App. 3d 34, 42 (2008) (“Generally,
administrative agencies are bound to follow their own rules as written ***.”); McElroy v. Cook
County, 281 Ill. App. 3d 1038, 1042 (1996) (agency violated its own procedures and therefore
violated plaintiff’s right to procedural due process); Perez v. United States, 850 F. Supp. 1354,
1365 (N.D. Ill. 1994) (“The failure of an agency to follow its established procedures or regulations
can constitute a denial of procedural due process.”). But see Ertl v. City of De Kalb, 303 Ill. App.
3d 524, 530 (1999) (an administrative agency’s failure to follow its own rules is not actionable
unless the failure prejudices the plaintiff).
¶ 50 Operating under the assumption that the consideration of hearsay was permitted by the
Commission’s rules and regulations in this case, we weigh the three factors set forth by the United
States Supreme Court and the Illinois Supreme Court to determine whether the consideration of
hearsay violated due process. See Lyon v. Department of Children & Family Services, 209 Ill. 2d
264, 277 (2004) (setting forth the three factors to consider when evaluating a procedural due
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process claim); Colquitt, 298 Ill. App. 3d at 861 (factors are: “(1) the significance of the private
interest which will be affected, (2) the risk of the erroneous deprivation of that interest through the
procedures used, and (3) the significance of fiscal and administrative burdens that the additional or
substitute procedural safeguards would entail.”). We conclude that the Commission’s
consideration of hearsay did not violate due process.
¶ 51 First of all, regarding the nature of the private interest: plaintiff’s property interest is in a
prospective promotion. As we found, the Promotion Act created a legitimate expectation of a
promotion. However, an interest in a prospective promotion is not the same as an interest in
continued employment, or even an interest in maintaining the rank currently possessed (and the
pay to which one has become accustomed), such as in the event of a demotion. Compare 65 ILCS
5/10-2.1-17 (West 2010) (providing a hearing for discharged firefighters and police officers) with
65 ILCS 5/10-2.1-15 (West 2010) (no mention of a hearing for firefighters and police officers
passed over for promotion) and 50 ILCS 742/20(d) (West 2010) (no mention of a hearing for
firefighter passed over based on misconduct or work-performance shortcomings; requiring only
documentation of reasons). Moreover, plaintiff was not being removed from the promotion list;
he was only being passed over for this specific promotion, and his name would remain on the list
until the list would naturally expire. In fact, the novelty of this situation—finding a property
interest in a prospective promotion for purposes of procedural due process—is in itself evidence of
the lack of a strong private interest in a prospective promotion. Therefore, the nature of plaintiff’s
protectable property interest does not weigh in favor of more protection under due process. 6
6 Some courts have treated the first factor as asking only whether there was a protectable
private interest. See, e.g., Consiglio v. Department of Financial & Professional Regulation, 2013
IL App (1st) 121142, ¶ 19 (“Under the first factor, a professional license constitutes a property
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¶ 52 Secondly, we consider the risk of the erroneous deprivation of plaintiff’s interest through
the procedures used. We note that this decision was rendered not by a jury but rather by a
professional fact-finding committee tasked with deciding particular cases within its specific
administrative purview. Plaintiff was represented by counsel. In his administrative statement,
he was able to address the accusations against him and provide denials, explanations, or
clarifications. The Commission considered written statements not only from plaintiff’s
coworkers but from others involved in the alleged incidents, including the nurse from the Condell
hospital. In theory, plaintiff could have had others submit written statements on his behalf; we
know of no reason why he could not have (again, we do not have a complete record as to the
Commission’s rules and regulations, an incompleteness we resolve against plaintiff). Although
there is risk of error in admitting hearsay evidence, the risk here is neither monumental nor
unacceptable. The Commission specializes in adjudicating the affairs of fire department
employees, may assess the credibility of statements in light of the totality of evidence, and may
consider evidence from various sources, adverse or friendly. This factor does not help plaintiff.
interest.”). However, the three-factor test guides courts in assessing how much process is due in a
given situation, which logically already presumes that there is a protectable interest for purposes of
procedural due process. If there were no protectable interest, property or otherwise, the amount
of process due would be known with certainty: none. Therefore, we apply the first factor by
considering the nature of the interest on a continuum—some interests being so important that they
require the most stringent procedural safeguards against deprivation, and some of lesser
consequence such that their loss does not readily invoke grand condemnations such as
“miscarriage of justice.”
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¶ 53 Finally, we consider the government’s interest, that is, the practical burdens of providing
more or substitute process. In order to eliminate the use of hearsay evidence, the Commission
would have to create a process tantamount to a judicial trial at which witnesses could be
cross-examined. Scheduling could be problematic, as it could entail calling in a large number of
fire department personnel on a particular date. Scheduling a trial as opposed to relying on
documentary evidence would invariably delay the decision. Moreover, costs would increase, not
the least of which being lawyers’ fees, in a more protracted litigation. It clearly would serve the
government’s interest in efficiency—as to both time and money—to continue to execute the
procedures that the Commission currently has in place, including the consideration of hearsay.
¶ 54 Weighing all these factors—the relatively weak private interest, the marginal risk of error
in decision-making, and the clear government interest in efficiency—we conclude that the
Commission’s consideration of hearsay evidence, in the form of written statements, against
plaintiff was not a violation of procedural due process.
¶ 55 E. The Commission’s Finding and Decision
¶ 56 Plaintiff also argues that, even with the hearsay evidence before the Commission, it was
not established that he demonstrated substantial work-performance shortcomings or engaged in
misconduct. Plaintiff analogizes his situation to that of the plaintiff in Hale v. Hellstrom, 101 Ill.
App. 3d 1127 (1981). However, Hale concerned a police officer who was suspended for violating
a department rule and we held that, as his violation was not intentional, it did not justify that
suspension. Id. at 1130-31. Plaintiff essentially tries to compare apples to oranges: the Hale
case dealt with a police rule and whether the plaintiff’s violation justified his suspension; here, we
address the Promotion Act and whether the evidence of plaintiff’s actions supported his being
passed over for a promotion.
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¶ 57 The issue is whether under the Promotion Act the Commission’s finding, that plaintiff
demonstrated substantial work-performance shortcomings and/or misconduct affecting his ability
to perform the duties of a lieutenant, was against the manifest weight of the evidence. See
Provena Covenant Medical Center, 236 Ill. 2d at 368-87. We hold that it was not. There was
evidence before the Commission detailing that plaintiff: (1) in the presence of coworkers and
others, including an injured man to whom he was to attend, stated “So he fell from the Bears suck
scaffolding. That’s what you get for being a Packers fan.”; (2) became frustrated and verbally
aggressive with a nurse, intimidating her, making her feel uncomfortable, and asking her if she
wanted to take their argument “outside”; and (3) had a less than cordial conversation with a
coworker regarding the recycling, getting upset and using curse words in range of civilians and
other coworkers, an incident that the Commission did not consider but that would have supported
its finding. This evidence did not come solely from others’ statements but was also derived from
and corroborated by plaintiff’s administrative statement.
¶ 58 Alone, none of these incidents is overly alarming. Bad behavior has different levels, and
plaintiff’s might not have risen to a level warranting disciplinary action, but it was not
unreasonable for the Commission to not reward such behavior with a promotion. In a civil
service position as important as that of firefighter-paramedic, where life and limb are often at
stake, we will not second-guess the Commission’s adherence to a high standard of professionalism
within the fire department or bemoan plaintiff’s lost opportunity for a promotion. The Promotion
Act, allowing the Commission to pass over plaintiff for misconduct, recognizes another important
interest: the interest of the public in having dependable and professional officers in its civil service
positions. The Commission found the incidents to amount to substantial work-performance
shortcomings and misconduct affecting plaintiff’s ability to perform the duties of a lieutenant, and
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it documented its reasons for this determination. As that finding was not against the manifest
weight of the evidence, its decision to pass over plaintiff for a promotion was not clearly
erroneous.
¶ 59 III. CONCLUSION
¶ 60 For the reasons stated, we affirm the judgment of the Lake County circuit court affirming
the Commission’s decision to pass over plaintiff for a promotion to the rank of lieutenant in the
Gurnee fire department.
¶ 61 Affirmed.
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