Cannici v. Dep't of Emp't Sec. Bd. of Review
| Docket Number | 1-18-1562 |
| Decision Date | 23 December 2021 |
| Citation | 2021 IL App (1st) 181562,196 N.E.3d 619,458 Ill.Dec. 315 |
| Parties | John CANNICI, Plaintiff-Appellant, v. The DEPARTMENT OF EMPLOYMENT SECURITY BOARD OF REVIEW; Jack Calabro, Chairman of the Department of Employment Security Board of Review, Individually and in His Official Capacity; Henry Winfield, Maria Perez, Raymond Nice, and Carolyn Holder, Members of the Department of Employment Security Board of Review, Individually and in Their Official Capacities; and The Village of Melrose Park, Illinois, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Ruth I. Major, of Law Offices of Ruth I. Major, P.C., of Chicago, for appellant.
Joseph M. Gagliardo and Jeffrey S. Fowler, of Laner Muchin, Ltd., of Chicago, for appellee Village of Melrose Park.
Kwame Raoul, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Caleb Rush, Assistant Attorney General, of counsel), for other appellees.
¶ 1 Plaintiff John Cannici appeals the circuit court order affirming the decision of defendant Illinois Department of Employment Security Board of Review (Board) to deny him unemployment benefits, which he had applied for after defendant Village of Melrose Park, Illinois (Village), terminated his employment as a firefighter for violating the Village's residency requirement. Cannici asks this court to overturn the Board's decision denying him unemployment benefits and order that he receive those benefits.
¶ 2 For the reasons that follow, we affirm the judgment of the circuit court.1
¶ 4 The Village employed Cannici as a firefighter from 2000 to 2016. In 2000, he bought a home in the village on Broadway Avenue. After marrying, he sold the Broadway Avenue home and in 2003 purchased a house on Norwood Street in the village. Cannici and his wife had children and continued to live in the village house until 2008.
¶ 5 In 2008, Cannici purchased a house in Orland Park. His wife and the children lived in the Orland Park house while Cannici lived in the village house.
¶ 6 In June 2013, Cannici rented the village house to tenants and lived with his family in the Orland Park house. In June 2016, Cannici learned that his residency was being questioned, and he moved back into the village house after the tenants moved out.
¶ 7 Also in June 2016, the Village fire chief filed written charges against Cannici, seeking termination of his employment for violating the Village's residency requirement by failing to maintain his principal residence in the village. Following an August 2016 hearing before the Village's board of fire and police commissioners, Cannici's employment was terminated for violating the Village's residency ordinance. Cannici sued the Village over his termination in both federal and state court. His federal action was unsuccessful. Cannici v. Village of Melrose Park , 885 F.3d 476 (7th Cir. 2018). His state action also was unsuccessful. Cannici v. Village of Melrose Park , 2019 IL App (1st) 181422, 433 Ill.Dec. 742, 133 N.E.3d 90.
¶ 8 When Cannici applied to the Illinois Department of Employment Security (IDES) for unemployment benefits, the Village protested his application, asserting that he was discharged for misconduct under section 602(A) of the Unemployment Insurance Act (Act) ( 820 ILCS 405/602(A) (West 2016)). An IDES claims adjudicator determined that Cannici was disqualified from receiving unemployment benefits because he was discharged for misconduct since he had been discharged for violating the Village's residency requirement, which was a known and reasonable rule.
¶ 9 Cannici appealed the claims adjudicator's determination to an IDES referee, and a telephonic hearing was held in October 2016.
¶ 10 Cannici testified and submitted into evidence a newspaper article regarding Maksym v. Board of Election Commissioners of Chicago , 242 Ill. 2d 303, 351 Ill.Dec. 223, 950 N.E.2d 1051 (2011), the June 2016 transcript of the Village counsel's interview with Cannici, a copy of the Village's administrative charges, and Cannici's Village water bill.
¶ 11 The Village's human resources director testified concerning the authenticity of the Village's documents, and the Village submitted into evidence its residency ordinance, the administrative charges against Cannici, the August 2016 transcript of his discharge hearing before the Village's board of fire and police commissioners, that board's 2016 decision to terminate Cannici's employment, and Cannici's complaint for administrative review of that decision.
¶ 12 The evidence presented at the October 2016 hearing before the IDES referee showed that Cannici had lived in the village since 1975. He was aware of the Village's residency ordinance when he started working as a firefighter in 2000. Also that year, he bought half of a duplex in the village. In 2003, he sold the duplex unit, and he and his wife bought the village house.
¶ 13 After they had children and their son began school, Cannici and his wife "decided it would be easier and more practical" for his wife and children to live in Orland Park because his wife's business was located in Orland Park and his in-laws who provided childcare also lived there. In 2008, the couple bought a second house, in Orland Park. At that time, Cannici's wife and children moved into the Orland Park house. The children attended Orland Park public schools and paid in-district rates. Cannici's wife was registered to vote in Orland Park and also had her car registered there.
¶ 14 From 2009 through mid-2013, Cannici lived at and was the sole occupant of the village house. Starting in 2010, he put the village house on the market. He reduced the price several times, but the house did not sell. He said, Cannici did not intend that his wife and children would live in the village, but "[t]hey could have." In 2011, Cannici learned of the Illinois Supreme Court's decision in Maksym , 242 Ill. 2d 303, 351 Ill.Dec. 223, 950 N.E.2d 1051. The village house remained on the market until May 2013.
¶ 15 In 2013, a neighbor asked Cannici if the neighbor's relatives could move into Cannici's village house because those relatives were having financial difficulties. Cannici agreed, "as long as they understood that it was a temporary *** situation." The lease agreement for the family said it was a "temporary residence" and reserved most of the basement for Cannici's use. The lease agreement indicated that laundry machines and furniture belonging to Cannici would stay in the village house. He also kept "awards ***, pictures, souvenirs, [and] trinkets" in the village house's basement.
¶ 16 From June 2013 to June 2016, Cannici did not sleep at the village house. Unless he was traveling, he slept virtually every night at the Orland Park house. During the Village's August 2016 hearing to terminate Cannici's employment, he was asked whether he had all of his daily clothes and daily living things at the Orland Park house. Cannici answered: During the October 2016 IDES referee hearing, Cannici said, "I kept everything that was in that house before they moved in was, was still in that house when they moved in." Cannici continued to pay the utilities and taxes for the village house. He continued to use the address of the village house for his mail, including for personal and official business. To retrieve his mail, Cannici had to call the tenants in advance.
¶ 17 Cannici said,
¶ 18 In May 2016, the Village sent Cannici a notice that it wanted to interview him about his compliance with the residency ordinance. When he told the tenants in the village house that he was being investigated, "they felt terrible" and said they would move out as soon as they could. After the tenants moved out, Cannici started sleeping in the village house again. He and his wife were not having marital problems. His wife and children did not return to the village house.
¶ 19 Until the Village discharged him in 2016 for violating the residency ordinance, Cannici had never received any complaints or discipline regarding his work performance. Cannici considered himself a resident of the village and never intended to abandon his residency there. He said that he never believed that he was violating the residency ordinance and that he would not have allowed the tenants to move in if he had believed that doing so violated the residency ordinance. According to Cannici, the Village did not provide training on how it interpreted the residency ordinance or ask him during his employment to reaffirm his residency. He said he never had any reason to believe that the Village interpreted its ordinance differently than the Illinois Supreme Court did in similar cases. When the referee asked Cannici why he thought the Maksym decision related to residency for employment, Cannici responded: "What's the difference between a politician['s] residence and a *** regular person's residence?"
¶ 20 The referee sustained hearsay objections to Cannici's testimony that he believed he had complied with the residency ordinance because he was aware, and it was common knowledge, that the Village's fire department captain "was allowed to sell his house and move into a house in River Forest with his family." Cannici did not report this information to anybody. He also said he was aware of other firefighters who lived outside the village, including one who lived in Wisconsin.
¶ 21 After the hearing, the IDES referee issued a decision determining that Cannici was...
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