Denton v. Civil Service Com'n of State of Ill.

• Decision Date: 08 February 1996
• Docket Number: No. 4-95-0196,4-95-0196
• Parties: , 214 Ill.Dec. 666 In the Matter of Stephen L. DENTON, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION OF The STATE OF ILLINOIS, Bruce J. Finne, Executive Secretary, J.J. Moffat, Commissioner of the Civil Service Commission, William G. Stratton, Commissioner of the Civil Service Commission, Harry Conlon, Commissioner of the Civil Service Commission, Illinois State Police, Terrance W. Gainer, Director, Department of Central Management Services of the State of Illinois and Stephen B. Schnorf, Director, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 520

661 N.E.2d 520

277 Ill.App.3d 770, 214 Ill.Dec. 666

In the Matter of Stephen L. DENTON, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION OF The STATE OF ILLINOIS, Bruce J Finne, Executive Secretary, J.J. Moffat, Commissioner of the Civil Service Commission, William G. Stratton, Commissioner of the Civil Service Commission, Harry Conlon, Commissioner of the Civil Service Commission, Illinois State Police Terrance W. Gainer, Director, Department of Central Management Services of the State of Illinois and Stephen B Schnorf, Director, Defendants-Appellees.

No. 4-95-0196.

Appellate Court of Illinois,

Fourth District.

Argued Oct. 18, 1995.

Decided Feb. 8, 1996.

Appeal from Circuit Court of Sangamon County, No. 92MR183, Honorable Donald M. Cadagin, Judge Presiding.

Mary Lee Leahy, Leahy Law Offices, Springfield, Cheryl Redfield Jansen, Leahy Law Offices, Springfield, for Stephen L. Denton.

James E. Ryan, Attorney General, Chicago, Barbara A. Preiner, Solicitor General, Chicago, Jan E. Hughes, Assistant Attorney General, Chicago, for Civil Service Commission.

Justice KNECHT delivered the opinion of the court:

Plaintiff, a veteran, appeals the circuit court decision to affirm the Civil Service Commission (Commission). The sole issue raised on appeal is whether section 8b.7(f) of the Personnel Code (Code) (20 ILCS 415/8b.7(f) (West 1992)) gives veterans an absolute preference over nonveterans of the same job grade. We find the statute does grant veterans an absolute preference and reverse.

I. BACKGROUND

Stephen L. Denton is an honorably discharged veteran of the United States Army. On June 12, 1991, he applied for an executive IV position with the Illinois Department of Central Management Services (CMS). CMS gave him a grade of "A" for the position, the highest grade possible. It also placed his name, with the "A" grade, on an eligibility list requested by the State Police. A nonveteran with a grade of "A," and who was judged to have qualifications superior to all other applicants, was hired.

Plaintiff believed the decision to hire a nonveteran instead of him when he was qualified for the position violated his rights. He wrote to the Commission in November 1991, alleging a violation of "Personnel Rules, 80 Illinois Administrative Code, Chapter 1, Section 302.30 c) 3)." This rule states "[i]f category ratings are used, the veteran eligibles in each category shall be preferred for appointment before the non-veteran eligibles in the same category." (80 Ill.Adm.Code § 302.30(c)(3), at 99 (1992-93), amended at 19 Ill.Reg. 8145, eff. June 7, 1995 (identical language now at 80 Ill.Adm.Code § 302.30(d) (1995)).) It is part of a program designed to satisfy section 8b.7 of the Code. 20 ILCS 415/8b.7 (West 1992).

On April 17, the Commission staff sent Denton a letter stating in part:

"Rule 302.30c) 3) has been interpreted to permit an agency to bypass a veteran only when the qualifications of the non-veteran eligible are superior to the bypassed veteran eligibles. We conclude that this is the case herein.

Having found no violation of the Personnel Code or Rules, it is the intention of the staff to recommend to the Commission at its meeting on May 13, 1992[,] that your appeal be denied. * * * If adopted by the Commission, this will become a final administrative decision."

On May 8, Denton replied, stating his letter was to "serve as my response to your April 17, 1992[,] letter regarding my appeal and complaint of violation of the Personnel Code, Chapter 127 63b108b.7. of the Illinois Rev.Statutes." The statute Denton refers to is now section 8b.7 of the Code. (See Ill.Rev.Stat.1991, ch. 127, par. 63b108b.7.) On May 14, 1992, the Commission adopted its staff's findings.

Denton then filed a complaint for administrative review in the circuit court of Sangamon County on June 17, 1992. On February 9, 1995, the circuit court, in what it observed to be a case of first impression in Illinois, concluded the preference granted by "Section 1 of the Veterans Preference Act (Ill.Rev.Stat.1991, ch. 126 1/2, par. 23; 330 ILCS 55/1 [(West 1992)] )" was not mandatory. This appeal followed.

II. ANALYSIS

Section 8b.7(f) of the Code reads as follows:

"(f) 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 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).)

At issue here is the emphasized portion of the section, which applies in cases where the Director has established lists on the basis of category ratings. Denton argues it provides an absolute preference for veterans within each section; the State agencies (State Police, CMS, and the Commission) argue it does not provide an absolute preference, and the system currently in place satisfies its mandates.

A. CMS Procedures

CMS has not recorded its section 8b.7-related procedures in the Illinois Administrative Code. We note these procedures appear to implement a policy of the agency which affects the rights and procedures available to people and entities outside the agency, i.e., "rules" within the meaning of section 1-70 of the Illinois Administrative Procedure Act (Act) (5 ILCS 100/1-70 (West 1992)). In Senn Park Nursing Center v. Miller (1984), 104 Ill.2d 169, 181, 83 Ill.Dec. 609, 615, 470 N.E.2d 1029, 1035, our supreme court determined where an agency had not followed the proper procedure under the Act for the adoption of rules, the rule is invalid. Moreover, section 5-10(c) of the Act expressly provides:

"No agency rule is valid or effective against any person or party, nor may it be invoked by the agency for any purpose, until it has been made available for public inspection and filed with the Secretary of State as required by this Act. No agency, however, shall assert the invalidity of a rule that it has adopted under this Act when an opposing party has relied upon the rule." 5 ILCS 100/5-10(c) (West 1992).

However, part of the record on appeal is a set of excerpts from something called the "Transactions Manual." From that material, along with the remainder of the record and counsel's clarifications at oral argument, we have the following understanding of the hiring process. Persons submit applications to CMS, stating the general type of position they are interested in (e.g., executive IV, secretary II, et cetera ). Tests are available for some positions. CMS grades applicants for the position based on the results of the test (if any) and the applicant's resume. It appears the grading system is now restricted to grades of "A," "B," or "C" with respect to the executive IV position for which Denton applied. Once an applicant has been graded, he or she is sent a "Notice of Grade," which informs him or her of the grade he or she has received and also informs the applicant if his or her name has yet been placed on any lists sent out to agencies.

A list of applicants, ranked by the grades CMS has assigned, is generated by CMS and sent to a State agency when requested. Upon receipt of the CMS list, the agency proceeds to contact and interview applicants in the highest grade category. It may dip into the next-highest category if there are fewer than three applicants in the highest. Veterans must be "interviewed and considered" before nonveterans of the same category. If veterans and nonveterans of the same category are interviewed on the same day, veterans must be interviewed at an earlier time. Only after all veterans have been interviewed and considered may the agency "elect to expand its search" and interview and consider nonveterans of the same grade. If the agency wishes to hire a nonveteran over a veteran of the same grade, it must first obtain approval from CMS, informing it of the reasons for the decision.

B. Interpreting Section 8b.7(f)

of the Code

Review of final administrative decisions is governed by section 3-110 of the Code of Civil Procedure (735 ILCS 5/3-110 (West 1992)), which provides in part in an action for review, "[t]he hearing and determination shall extend to all questions of law and of fact presented by the entire record before the court." The circuit court apparently based its decision upon the wrong statute. However, rather than remand to correct this error we elect to decide the case on its merits. Neither side has objected to our review and both have fully briefed the issue. Our role is to review the administrative decision, not the circuit court decision (see Jackson v. Board of Review of the Department of Labor (1985), 105 Ill.2d 501, 513, 86 Ill.Dec. 500, 506, 475 N.E.2d 879, 885). In a case involving the legal effect of undisputed facts, the issue is a matter of law, and the standard of review is de novo (Fitzpatrick v. Human Rights Comm'n (1994), 267 Ill.App.3d 386, 392, 204 Ill.Dec. 785, 790, 642 N.E.2d 486, 491).

The primary rule in statutory construction is to give effect to legislative intent. (Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc. (1994), 158 Ill.2d 76, 81, 196 Ill.Dec. 655, 657, 630 N.E.2d 820, 822.) The primary source of this meaning is the language of the statute. (Solich, 158 Ill.2d at 81, 196 Ill.Dec. at 657, 630 N.E.2d at 822.) Words in the statute should be given their popularly understood meaning. (International Bureau of Fraud Control, Ltd. v. Clayton (1989), 188 Ill.App.3d 703, 710, 135 Ill.Dec. 920, 925, 544 N.E.2d 416, 421, citing Kozak v. Retirement Board of the Firemen's Annuity & Benefit Fund (1983), 95 Ill.2d 211, 215, 69 Ill.Dec. 177, 179, 447 N.E.2d 394, 396.) Where the statutory language is unclear we may look beyond it, but where it is clear we must give it effect. Solich, 158 Ill.2d at 81, 196 Ill.Dec. at 657...