NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 80712--Agenda 7--January 1997.
STEPHEN L. DENTON, Appellee, v. THE CIVIL SERVICE COMMISSION OF
THE STATE OF ILLINOIS et al., Appellants.
Opinion filed April 24, 1997.
CHIEF JUSTICE HEIPLE delivered the opinion of the court:
The issue before this court is whether section 8b.7(f) of the
Personnel Code (20 ILCS 415/8b.7(f) (West 1992)) affords veterans
an absolute hiring preference over nonveterans within the same
grade category. The Civil Service Commission (the Commission) and
the circuit court determined that section 8b.7(f)'s hiring
preference was not absolute. The appellate court disagreed, holding
that section 8b.7(f) does indeed grant veterans an absolute hiring
preference over nonveterans of the same grade category. 277 Ill.
App. 3d 770. This court granted leave to appeal (155 Ill. 2d R.
315), and, for the reasons which follow, we affirm the appellate
court.
Appellee, Stephen L. Denton, served in the United States Army
from December 1965 until he was honorably discharged in December
1968. On June 12, 1991, Denton submitted an application to the
Illinois Department of Central Management Services (CMS), seeking
employment for an open "Executive IV" position. Denton indicated on
the application that he was eligible for a veteran's preference. On
July 10, 1991, Denton received notice from CMS that his application
had been graded and that he had been given a category grade of "A,"
the highest grade possible. Denton was also notified that his name
and grade had been placed on a CMS eligibility list requested by
the Illinois State Police.
On August 27, 1991, Denton joined 13 veterans and three
nonveterans who interviewed for the Executive IV position of
assistant bureau chief in the Drug Abuse Resistance Education
(D.A.R.E.) program. With the approval of CMS, however, the State
Police hired a nonveteran, namely, Linda Lang. Lang, like Denton,
had also been given a category grade of "A." After receiving a
letter from the State Police informing him that he had not been
chosen, Denton wrote to the Commission contending that the failure
to hire him violated section 302.30(c)(3) of Title 80 of the
Administrative Code. This section provides that "[i]f category
ratings are used, the veteran eligibles in each category shall be
preferred for appointment before the nonveteran eligibles in the
same category." 80 Ill. Adm. Code §302.30(c)(3) (1990) (identical
language now at 80 Ill. Adm. Code §302.30(d) (1996)). The
Commission staff responded by letter that Lang's overall
credentials were superior to those of all the other candidates. The
Commission staff's letter further explained that section
302.30(c)(3) of the personnel rules had been interpreted to permit
an agency to bypass a veteran only when the qualifications of the
nonveteran eligible were superior to the bypassed veteran
eligibles. Having thus found no violation of the personnel rules or
the Personnel Code, the Commission staff notified Denton that if
adopted by the Commission, the staff's determination would became
a final administrative decision.
Denton thereafter asserted by letter that section 8b.7 of the
Personnel Code had been violated when he or another qualified
veteran was not appointed to the Executive IV position with the
State Police. See Ill. Rev. Stat. 1991, ch. 127, par. 63b108b.7
(codified as 20 ILCS 415/8b.7 (West 1992)). Nevertheless, the
Commission rendered a final administrative decision by adopting its
staff's findings on May 13, 1992.
Denton subsequently filed a complaint for administrative
review in the circuit court of Sangamon County on June 17, 1992,
against the Commission, including Executive Secretary Bruce J.
Finne and Commissioners J.J. Moffat, William G. Stratton, and Harry
Conlon; the State Police, including Director Terrance W. Gainer;
and CMS, including Director Stephen B. Schnorf. The circuit court
affirmed, holding that a veteran may be bypassed for employment in
favor of a more qualified nonveteran. Denton appealed. The
appellate court reversed, holding that section 8b.7(f) of the
Personnel Code grants veterans an absolute hiring preference over
nonveterans within the same grade category. 277 Ill. App. 3d 770.
ANALYSIS
The sole issue on appeal is whether section 8b.7(f) of the
Personnel Code guarantees veterans an absolute hiring preference
over nonveterans of the same grade category. Section 8b.7(f)
provides:
"The rank order of persons entitled to a preference
on eligible lists shall be determined on the basis of
their augmented ratings. When the Director [of CMS]
establishes eligible lists on the basis of category
ratings such as `superior[,]' `excellent[,]' `well-
qualified[,]' and `qualified[,]' the veteran eligibles in
each such category shall be preferred for appointment
before the non-veteran eligibles in the same category."
(Emphasis added.) 20 ILCS 415/8b.7(f) (West 1992).
The Commission contends that the above-emphasized portion of
section 8b.7(f) provides an absolute hiring preference only in
situations where the veteran and nonveteran of the same grade
category are equally qualified. Denton counters that the emphasized
portion of section 8b.7(f) unambiguously mandates an absolute
hiring preference for veterans in the same grade category as
nonveterans.
While courts afford considerable deference to an agency's
interpretation of a statute it administers, an agency's
determination is not binding as to questions of law and will be
rejected if erroneous. City of Decatur v. American Federation of
State, County, & Municipal Employees, Local 268, 122 Ill. 2d 353,
361 (1988). Indeed, the primary rule in statutory construction is
to give effect to legislative intent as evidenced by the language
of the statute. Solich v. George & Anna Portes Cancer Prevention
Center of Chicago, Inc., 158 Ill. 2d 76, 81 (1994). Words in the
statute should be given their popularly understood meaning (Kozak
v. Retirement Board of the Firemen's Annuity & Benefit Fund, 95
Ill. 2d 211, 215 (1983)), and only where the statutory language is
unclear may a court look beyond it (Solich, 158 Ill. 2d at 81).
As well as contending that the language of section 8b.7(f)
does not provide veterans with a absolute hiring preference over
more qualified nonveterans in the same grade category, the
Commission further argues that the emphasized portion of section
8b.7(f) is satisfied by procedures CMS has developed to favor
veterans over nonveterans in the hiring process. These CMS
procedures require that the employing agency interview and consider
veterans of a given category before nonveterans of the same
category; that the employing agency request CMS approval before
selecting a nonveteran over available veterans; and that veterans,
upon request, receive a written explanation of the reasons why
another candidate was selected. The Commission argues that these
procedures satisfy section 8b.7(f) in that they reflect a
reasonable interpretation of the veteran's preference provision.
The appellate court held that CMS's failure to record these
procedures in the administrative code renders them invalid. See 5
ILCS 100/1--70 (West 1992); Senn Park Nursing Center v. Miller, 104
Ill. 2d 169, 181 (1984) (holding that when an agency fails to
follow the proper procedure under the Illinois Administrative
Procedure Act for the adoption of rules, the rule is invalid). Our
interpretation of section 8b.7(f), however, obviates the need to
reach this issue.
While all the parties concede that the CMS procedures grant
veterans preferential treatment in the hiring process, the relevant
question is whether these procedures, even if valid, satisfy
section 8b.7(f), which requires that the "veteran eligibles in each
such category shall be preferred for appointment before the non-
veteran eligibles in the same category." The term "preferred" means
"[p]ossessing or accorded a priority, advantage, or privilege."
Black's Law Dictionary 1178 (6th ed. 1990). Admittedly,
interviewing and considering veterans before nonveterans and
permitting veterans to question an agency's decision to hire a
nonveteran over veterans grant veterans an advantage. But an
advantage is not what section 8b.7(f) calls for; rather, it
mandates appointment.
Because there is no value in a "prefer[ence] for appointment"
that does not result in appointment, we conclude that the
unambiguous language of the statute requires that veterans receive
an absolute preference in being hired over nonveterans of the same
grade category. In other words, when the Director of CMS chooses to
organize eligibility lists on the basis of category ratings, a
veteran must receive an offer for the job before nonveterans of the
same grade category. Accordingly, to the extent that the CMS hiring
procedures do not afford an absolute hiring preference as mandated
by section 8b.7(f), they are insufficient.
The Commission argues that so interpreting section 8b.7(f)
improperly diminishes the employing agency's role in the selection
process and further undermines the merit principles upon which the
Personnel Code is based. In support of this argument, the
Commission points out that Denton's "A" grade indicated only that
he met the minimum qualifications for Executive IV positions and
not that he was as qualified as Lang for the D.A.R.E. position.
It is, however, for the legislature to decide whether and to
what extent state agencies should be constrained in their
employment decisions. Indeed, the Personnel Code requires CMS, not
the employing agency, to establish a position classification plan
for all positions governed by the Personnel Code (20 ILCS 415/8a
(West 1994)); to eliminate those who are not qualified for entrance
into state service and to discover the relative fitness of those
who are qualified (20 ILCS 415/8b.1 (West 1992)); and to establish
lists of names of candidates in order of their relative excellence
in respective examinations (20 ILCS 415/8b.3 (West 1992)). The
Personnel Code further provides that CMS may substitute categories
for numerical ratings and establish lists of candidates
accordingly. 20 ILCS 415/8b.3 (West 1992). If CMS uses numerical
lists, the employing agencies may consider for appointment the
three highest applicants on the list. 20 ILCS 415/8b.5 (West 1992).
If, as in the instant case, CMS uses categories rather than
numerical lists, the employing agency must prefer for appointment
the veterans over the nonveterans of the same category. 20 ILCS
415/8b.7(f) (West 1992). This is what the Personnel Code requires,
and we are duty bound to enforce it.
The Commission additionally argues that granting veterans an
absolute hiring preference over nonveterans of the same grade
category renders sections 8b.3 and 8b.5 meaningless in certain
situations. As noted above, section 8b.3 authorizes CMS to
establish eligible lists of candidates and to provide these lists
to the employing agencies. The Commission argues that if only one
veteran were placed in the "A" category, an eligible list would be
redundant because the veteran's selection would be automatic.
Perhaps the Commission is correct in that a list of candidates
would be unnecessary in such a situation, but we fail to see how
this renders the statute meaningless.
Section 8b.5 provides:
"For the appointment of the person standing among
the 3 highest on the appropriate eligible list to fill a
vacancy, or from the highest ranking group if the list is
by rankings instead of numerical ratings, except as
otherwise provided in Sections 4b and 17a of this Act.
The Director may approve the appointment of a person
from the next lower ranking group when the highest
ranking group contains less than 3 eligibles." 20 ILCS
415/8b.5 (West 1992).
The Commission argues that this court's interpretation of section
8b.7(f) renders section 8b.5 meaningless because if the only
candidate in the "A" category is a veteran, the veteran would be
guaranteed the job and there would not be a third or even a second
candidate for the agency to consider. Moreover, the Commission
contends that if the legislature intended to exclude section
8b.7(f) from the three-candidate provision of section 8b.5 it would
have included section 8b.7(f) among the specifically designated
exceptions to section 8b.5. We observe, however, that section 8b.5
does not mandate that an agency have at least three candidates to
choose from, but merely provides that CMS may approve the
appointment of a person from the next lower ranking group when less
than three candidates are available. CMS is not compelled to do so,
however, and we therefore conclude that our interpretation of
section 8b.7(f) is wholly compatible with section 8b.5.
The Commission next observes that veterans are not guaranteed
an absolute hiring preference over nonveterans when candidates are
ranked in numerical order. Indeed, section 8b.5 permits a hiring
agency to consider for appointment any one of the three highest
numerically ranked candidates. The Commission argues that it is
illogical to suggest that the legislature intended a different
result simply because CMS chooses to rank candidates by category
instead of numerically. This court, however, will not pass on the
wisdom of the legislature's handiwork. Our duty is to interpret
section 8b.7(f) according to its plain and unambiguous language. We
thus enforce section 8b.7(f) according to its unambiguous mandate
that when categories are used veterans shall receive an absolute
hiring preference over nonveterans in the same category.
CONCLUSION
Whether and to what extent veterans preferences should be
granted are matters for legislative determination. Hiring
preferences for veterans have traditionally been adopted to reward
veterans for the sacrifice of military service, to ease the
transition from military to civilian life, to encourage patriotic
service, and to attract loyal and well-disciplined people to civil
service occupations. Personnel Administrator v. Feeney, 442 U.S.
256, 265, 60 L. Ed. 2d 870, 879, 99 S. Ct. 2282, 2289 (1979);
People ex rel. Jendrick v. Allman, 396 Ill. 35, 38, 39 (1947);
People ex rel. Sellers v. Brady, 262 Ill. 578, 594 (1914).
For the reasons stated above, we determine that section
8b.7(f) of the Personnel Code (20 ILCS 415/8b.7(f) (West 1992))
provides veterans an absolute hiring preference over nonveterans
within the same grade category. Accordingly, we affirm the
appellate court's judgment reversing and remanding this cause to
the circuit court of Sangamon County.
Affirmed.
JUSTICE MILLER, dissenting:
I do not agree with the majority's conclusion that the
veterans preference provision of the Personnel Code accords
veterans an absolute preference over nonveterans receiving the same
ranking, even when the nonveteran is more qualified for the
position in question. The majority's interpretation is not required
by the language of the statute, is inconsistent with the practice
followed by the agency responsible for carrying out the statute,
and conflicts with the requirements of other statutory provisions.
For those reasons, I respectfully dissent.
The veterans preference provision at issue is found in section
8b.7(f) of the Personnel Code, which states:
their augmented ratings. When the Director [of Central
Management Services] establishes eligible lists on the
basis of category ratings such as `superior',
`excellent', `well-qualified', and `qualified', the
veteran eligibles in each such category shall be
preferred for appointment before the non-veteran
eligibles in the same category." 20 ILCS 415/8b.7(f)
(West 1992).
Declaring that "there is no value in a `prefer[ence] for
appointment' that does not result in appointment," the majority
concludes that section 8b.7(f) unambiguously requires that a
veteran be hired before a nonveteran when the two are assigned the
same grade by the Department of Central Management Services (CMS).
Slip op. at 5. The applicants in the present case were graded on a
descending scale of A, B, and C; both the plaintiff, Stephen
Denton, and the person ultimately hired for the position at issue,
Linda Lang, received grades of A. Under the majority's
interpretation of section 8b.7(f), a veteran such as Denton who
receives a grade of A must be hired instead of a nonveteran
receiving the same grade, even when the veteran is less qualified
for the job in question.
I disagree with the majority's conclusion that the statutory
language is unambiguous, and with the majority's determination that
the preference expressed in the statute can be effectuated only by
requiring the hiring of veterans rather than nonveterans merely on
the basis of the veterans' category ranking. The statute says
simply that veterans "shall be preferred for appointment" before
nonveterans, without describing the nature or strength of the
preference. It is not clear from the statutory language whether the
preference is absolute in all instances, or whether it may instead
be overcome in some cases, as when a nonveteran possesses better
qualifications. I agree with the defendant agencies that the
provision affords a veteran an absolute preference in hiring over
a nonveteran in the same category only when the two candidates are
equally well qualified. In addition, I note that other measures
prescribed by CMS for agencies in conducting interviews and in
making hiring decisions give further effect to the statutory
preference. In my view, the agencies' interpretation fulfills the
purposes of the statutory preference, as well as those of the
Personnel Code, of which the preference is a part.
Notably, other provisions of the Personnel Code cannot be
reconciled with the absolute preference the majority finds in the
language of section 8b.7(f). For example, section 8b.5 of the
Personnel Code provides "[f]or the appointment of the person
standing among the 3 highest on the appropriate eligible list to
fill a vacancy, or from the highest ranking group if the list is by
rankings instead of numerical ratings, except as otherwise provided
in Sections 4b and 17a of this Act." 20 ILCS 415/8b.5 (West 1992).
The only two exceptions stated in that section pertain to persons
whose positions were not initially covered by the Personnel Code
and to persons appointed to certain trainee programs; if the
legislature had intended for the veterans preference to operate in
the absolute manner found by the majority, then section 8b.5 would
cite the preference statute as an additional exception to the
proviso allowing the hiring agency to make its selection from among
the top three candidates.
The majority's interpretation also ignores the distinct roles
played by CMS and the hiring agencies in employment decisions. The
grades assigned by CMS refer only to the general qualifications of
the applicants for the position classification in question. In this
case, the applicants were applying for an executive IV position,
and both received grades of A. In assigning those grades to the
applicants, however, CMS was examining only the general
requirements of executive IV positions and the overall
qualifications of the applicants, and was not considering the
particular requirements of the post being filled by the Department
of State Police or the more specialized qualifications possessed by
the individual applicants. Two candidates might receive the same
grade, reflecting their general qualifications for an executive IV
position, yet they might not be equally well qualified for the
specific position being filled by the hiring agency. CMS grades
persons only on the basis of general characteristics required for
a certain job classification. Under the majority's interpretation,
however, an applicant's status as a veteran can become the sole
determinant in hiring, once CMS places the veteran in the highest
category. The majority's construction will prevent the more
searching scrutiny previously undertaken by hiring agencies of an
applicant's qualifications for a particular job.
As the defendants point out, CMS has adopted a number of
measures that are designed to carry out the preference afforded by
section 8b.7(f). Under guidelines adopted by CMS, agencies are
instructed to consider and interview veterans first when both
veterans and nonveterans appear on a list of eligible candidates.
A nonveteran may be hired over a veteran only when the interviewing
officer believes that "the prior educational training, past work
experience and/or job related personal attributes of the nonveteran
eligible presents evidence that he or she will perform the duties
and functions of the vacant position in a manner superior to any of
the by-passed veteran eligibles." A veteran who is not selected for
a position may obtain a written explanation of the reasons for the
hiring decision. In addition, CMS must give advance approval of an
agency's request to hire a nonveteran over a veteran in the same
category ranking. "As a general rule, courts will accord deference
to the interpretation placed on a statute by the agency charged
with its administration." City of Decatur v. American Federation of
State, County, & Municipal Employees, Local 268, 122 Ill. 2d 353,
361 (1988); see also Smiley v. Citibank (South Dakota), N.A., 517
U.S. ___, ___, 135 L. Ed. 2d 25, 30, 116 S. Ct. 1730, 1733 (1996)
("It is our practice to defer to the reasonable judgments of
agencies with regard to the meaning of ambiguous terms in statutes
that they are charged with administering"). The interpretation
expressed in the CMS guidelines, and offered here by the
defendants, is a reasonable one, and it has the substantial merit
of giving effect to the language of the statute without trenching
on related provisions of the Personnel Code.
In the proceedings below, the appellate court questioned the
validity of these administrative guidelines because they had not
been promulgated through the formal rulemaking process set forth in
the Illinois Administrative Procedure Act (5 ILCS 100/5--5 through
5--155 (West 1992)). The majority finds it unnecessary to resolve
this issue, given the decision here to enforce section 8b.7(f) in
a manner contrary to the guidelines. I do not believe that it was
necessary for CMS to follow formal rulemaking procedures in
establishing these standards. Because the CMS guidelines involve
"agency management or personnel practices," there was no need under
the Administrative Procedure Act for the department to promulgate
the guidelines as administrative rules. See 5 ILCS 100/5--35(c)
Giving veterans an absolute preference over nonveterans in all
instances, as the majority does, conflicts with the underlying
purposes of the civil service laws, and we should look for a more
definite statement of intent by the legislature before ascribing to
the statutory language at issue here the meaning adopted by the
majority. The Personnel Code is "based on merit principles and
scientific methods" (20 ILCS 415/2 (West 1992)), and, as this case
illustrates, sometimes only the selection of a nonveteran over a
veteran is consistent with that foundation. The position for which
the plaintiff applied was that of Assistant Bureau Chief in the
Drug Abuse Resistance Education (DARE) Bureau, of the Illinois
State Police. This executive IV post required, at a minimum, four
years of college education, preferably with an emphasis on business
or public administration, and four years of administrative
experience in a public or business organization. The job
description said that the person would be responsible for all DARE
training, field coordination, and curriculum development. A strong
background in education was said to be essential.
The plaintiff, Stephen Denton, had a master's degree in labor
relations and human resources administration from Sangamon State
University. He had worked more than five years as an auditor with
the Illinois Department of Public Aid, nine years as a labor union
representative, and more than one year as executive director of an
organization called the Veterans Protective League. The Department
interviewed Denton for the position at issue but ultimately hired
Linda Lang, a nonveteran. Lang had a master's degree in educational
administration from Southern Illinois University and a bachelor's
degree in history and political science from Millikin University.
She had been a teacher and a school principal. At the time Lang
applied for this position, she was employed by the Department of
State Police as an educational consultant to the DARE program. In
that post, Lang supervised curriculum development, among other
things, and she had been involved in the training of more than
1,800 DARE officers. Lang also served on a federal DARE regional
advisory board, and she had received state and national awards for
her DARE-related work. Lang was the better-qualified candidate,
given her background and experience. I do not believe that the
legislature intended that the veterans preference provision of the
Personnel Code would, in these circumstances, require the selection
of Denton instead.
Veterans preference provisions are intended "to reward
transition from military to civilian life, to encourage patriotic
service, and to attract loyal and well-disciplined people to civil
service occupations." Personnel Administrator v. Feeney, 442 U.S.
256, 265, 60 L. Ed. 2d 870, 879, 99 S. Ct. 2282, 2289 (1979). Under
the interpretation advanced by the defendants, the provision found
in section 8b.7(f) of the Personnel Code accomplishes those goals
by requiring the hiring of a veteran rather than a nonveteran when
the two candidates are equally qualified, and by granting veterans
a number of other advantages in the manner in which state agencies
governed by the Personnel Code conduct interviews and make hiring
decisions. The guidelines formulated by CMS achieve a careful
balance between the need for the veterans preference legislation
and the purposes of a civil service system, and I would defer to
the defendants' construction of the statute.
JUSTICES FREEMAN and McMORROW join in this dissent.