Yeksigian v. City of Chicago, 1-90-0786

• Decision Date: 08 June 1992
• Docket Number: No. 1-90-0786,1-90-0786
• Citation: 596 N.E.2d 10,172 Ill.Dec. 731,231 Ill.App.3d 307
• Parties: , 172 Ill.Dec. 731 Charles YEKSIGIAN, Appellee, v. The CITY OF CHICAGO, Appellant.
• Court: United States Appellate Court of Illinois

Page 10

596 N.E.2d 10

231 Ill.App.3d 307, 172 Ill.Dec. 731

Charles YEKSIGIAN, Appellee, v. The CITY OF CHICAGO, Appellant.

No. 1-90-0786.

Appellate Court of Illinois First District, First Division.

June 8, 1992.

Frederick S. Rhine, of counsel, Kelly R. Welsh, Corp. Counsel, Chicago, for appellant.

William T. Huyck, of counsel, Chicago, for appellee.

Justice MANNING delivered the opinion of the court:

This case was brought by petitioner-appellee under the common law writ of certiorari challenging the decision of the Personnel Board of the City of Chicago (hereafter "Board"), and the City of Chicago (hereafter City), to discharge him from employment with the Department of Aviation for striking his supervisor with a clipboard and then running over the supervisor's foot with a truck. The trial court held that the Board's findings were against the manifest weight of the evidence and found the sanction to be arbitrary, capricious, and unreasonable. The court reversed the decision of the Board and the City brought this appeal.

On appeal, the City contends that: (1) petitioner's writ of certiorari was untimely; (2) the Board's findings of fact were proper and supported by the manifest weight of the evidence; and (3) the Board's findings of fact properly constituted "cause" for the discharge.

The incident giving rise to this case occurred on August 29, 1988. At the time, petitioner was employed by the City as a career service employee in the position of electrical mechanic at O'Hare Airport and had been employed by the City continuously since 1962. Frank Guzzo held the position of "person in charge" of the electrical mechanics on the day shift and purportedly was petitioner's immediate supervisor. Frank, petitioner and the other electrical mechanics worked out of the RB-40 or H & R building at O'Hare. On the day in question, an altercation occurred at the job site between petitioner and Frank. Thereafter Frank filed two criminal charges against petitioner in which the jury acquitted petitioner of both charges.

On October 17, 1988, the Commissioner of the Department of Aviation sent petitioner a "Statement of Charges and Explanation of Evidence" to which petitioner filed a written response. The commissioner then sent petitioner a letter of termination of employment on February 7, 1989, and petitioner filed an appeal with the Board. The Board held a hearing on April 17, 1989, and on June 5, 1989, issued an opinion denying petitioner's appeal.

Thereafter, on August 7, 1989, petitioner filed a complaint in the circuit court for writ of certiorari alleging that "the decision of the Personnel Board was arbitrary and capricious, against the manifest weight of the evidence, and contrary to the governing law and regulations." Petitioner then filed an amended complaint for writ of certiorari. Following a hearing on the amended complaint, the circuit court reversed the decision of the Board.

On appeal, the City initially questions whether petitioner's complaint for writ of certiorari was timely filed; however, they did not raise the argument of timeliness of the complaint in the circuit court. They now allege that petitioner's complaint was untimely because it was not filed within the 35 day period as provided by the Administrative Review Law. (ARL) (Ill.Rev.Stat.1989, ch. 110, par. 3-103.) The City contends that the period established by the ARL should also apply to common-law certiorari proceedings since such proceedings today are conducted in the same manner as proceedings under the ARL. (See Dubin v. Personnel Bd. of Chicago (1989), 128 Ill.2d 490, 498, 132 Ill.Dec. 437, 539 N.E.2d 1243.) They request this court to remand the cause to the circuit court with instructions to dismiss the complaint as untimely or in the alternative, to hold prospectively that the 35 day requirement applies to certiorari cases.

The City did not previously raise this argument in the court below. However, they correctly assess that the filing requirement in administrative review is jurisdictional, and thus the issue cannot be waived. Lockett v. Chicago Police Bd. (1990), 133 Ill.2d 349, 354-55, 140 Ill.Dec. 394, 549 N.E.2d 1266.

Section 3-102 of the ARL provides, in pertinent part, that:

"Article III [the Administrative Review Law] of this Act shall apply to and govern every action to review judicially a final decision of any administrative agency where the Act creating or conferring power on such agency, by express reference, adopts the provisions of Article III of this Act or its predecessor, the Administrative Review Act. In all such cases, any other statutory, equitable or common law mode of review of decisions of administrative agencies heretofore available shall not hereafter be employed." (Ill.Rev.Stat.1989, ch. 110, par. 3-102.)

It is well settled that decisions of the Board, such as the one in the instant case, are reviewable through the common-law writ of certiorari. See Smith v. Department of Public Aid (1977), 67 Ill.2d 529, 541, 10 Ill.Dec. 520, 367 N.E.2d 1286; Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill.2d 11, 338 N.E.2d 186; Meylor v. Boys (1981), 101 Ill.App.3d 148, 150, 56 Ill.Dec. 618, 427 N.E.2d 1023.

Accordingly, we hold that petitioner's complaint was timely filed pursuant to the six-month requirement for filing a writ of common law certiorari. Moreover, this court is without authority to create a new filing period, even assuming the validity of City's argument in reliance on Dubin, 128 Ill.2d 490, 132 Ill.Dec. 437, 539 N.E.2d 1243.

The City next contends that it was error for the trial court to overturn the Board's decision and "reweigh the evidence." (Collura v. Board of Police Comrs. (1986), 113 Ill.2d 361, 372, 101 Ill.Dec. 640, 498 N.E.2d 1148.) We agree.

Judicial review of an administrative decision to discharge an employee is a two-step process. First, the court must determine whether the agency's findings of fact are against the manifest weight of the evidence, and agency findings are considered prima facie true and correct. (See Ill.Rev.Stat.1989, ch. 110, par. 3-110; Collura, 113 Ill.2d at 372, 101 Ill.Dec. 640, 498 N.E.2d 1148.) Second, the court must determine whether the findings of fact constitute "cause" for the discharge. See Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill.2d 547, 550-51, 55 Ill.Dec. 560, 426 N.E.2d 885.

With respect to the first step, it is well settled that if there is evidence in the record that supports an administrative agency's decision, that decision is not contrary to the manifest weight of the evidence and must be sustained on judicial review (Fagiano v. Police Bd. (1984), 123 Ill.App.3d 963, 974, 79 Ill.Dec. 291, 463 N.E.2d 845), unless the opposite conclusion is clearly evident (O'Boyle v. Personnel Bd. of Chicago (1983), 119 Ill.App.3d 648, 653, 75 Ill.Dec. 177, 456 N.E.2d 998) and, no rational trier of fact, viewing the evidence in the light most favorable to the agency, could have agreed with the agency's determination. See Fairview Haven v. Department of Revenue (1987), 153 Ill.App.3d 763, 770, 106 Ill.Dec. 634, 506 N.E.2d 341.

In the present case, several witnesses testified that on August 29, 1988, they observed petitioner walk into the building and search for the clipboard containing his time sheet. They further observed him attempt to reach for the clipboard which was on Frank's desk. Either no or very little conversation ensued between the men at this time. However, it is apparent that some grappling for the clipboard occurred when petitioner tried to take it from Frank's desk while Frank attempted to hand petitioner an envelope and hold onto the clipboard.

Frank testified that petitioner hit him in the face and injured his tooth. Frank also testified that petitioner then ran out of the building and jumped into his truck. When Frank called the police he was told to have petitioner stay on the premises. He then ran after petitioner. Petit...