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                                                                                  document
                                      Appellate Court                             Date: 2018.04.03
                                                                                  16:04:11 -05'00'




                 Naden v. Firefighters’ Pension Fund, 2017 IL App (2d) 160698



Appellate Court          SARA NADEN, Plaintiff-Appellant, v. THE FIREFIGHTERS’
Caption                  PENSION FUND OF THE SUGAR GROVE FIRE PROTECTION
                         DISTRICT; THE BOARD OF TRUSTEES OF THE
                         FIREFIGHTERS’ PENSION FUND OF THE SUGAR GROVE FIRE
                         PROTECTION DISTRICT; DAVID LINDEN, BILL PERKINS,
                         BRENDAN MORAN, JASON NICHOLS, and MIKE WARNER, in
                         Their Official Capacities as Trustees of the Firefighters’ Pension Fund
                         of the Sugar Grove Fire Protection District; THE INTERNATIONAL
                         ASSOCIATION              OF          FIREFIGHTERS-ASSOCIATED
                         FIREFIGHTERS OF ILLINOIS LOCAL 4748; JERRY
                         MARZULLO, as Attorney for the International Association of
                         Firefighters-Associated Firefighters of Illinois Local 4748 and/or as
                         Attorney for One or More of the Members of Said Association; THE
                         SUGAR GROVE FIRE PROTECTION DISTRICT; THE BOARD
                         OF TRUSTEES OF THE SUGAR GROVE FIRE PROTECTION
                         DISTRICT; and MIKE FAGEL, JOHN GUDDENDORF,
                         CHRISTOPHER RUCHAJ, HARRY DAVIS, and DAVID
                         BLANKENSHIP, in Their Official Capacities as Trustees of the Sugar
                         Grove Fire Protection District, Defendants (The Firefighters’ Pension
                         Fund of the Sugar Grove Fire Protection District, The Board of
                         Trustees of the Firefighters’ Pension Fund of the Sugar Grove Fire
                         Protection District, David Linden, Bill Perkins, Brendan Moran, Jason
                         Nichols, Mike Warner, The International Association of Firefighters-
                         Associated Firefighters of Illinois Local 4748, The Sugar Grove Fire
                         Protection District, The Board of Trustees of the Sugar Grove Fire
                         Protection District, Mike Fagel, John Guddendorf, Christopher
                         Ruchaj, Harry Davis, and David Blankenship, Defendants-Appellees).


District & No.           Second District
                         Docket No. 2-16-0698


Filed                    November 17, 2017
Rehearing denied         March 15, 2018
     Decision Under           Appeal from the Circuit Court of Kane County, No. 15-MR-1175; the
     Review                   Hon. David R. Akemann, Judge, presiding.



     Judgment                 Vacated and remanded with directions.


     Counsel on               Thomas F. McGuire, of Hawthorn Woods, for appellant.
     Appeal
                              Jerry J. Marzullo, of Puchalski Goodloe Marzullo, LLP, of
                              Northbrook,     for    appellee     International    Association of
                              Firefighters-Associated Firefighters of Illinois Local 4748.

                              Ericka J. Thomas and Shawn P. Flaherty, of Ottosen Britz Kelly
                              Cooper Gilbert & DiNolfo, Ltd., of Naperville, for other appellees.



     Panel                    JUSTICE HUTCHINSON delivered the judgment of the court, with
                              opinion.
                              Justices McLaren and Jorgensen concurred in the judgment and
                              opinion.


                                               OPINION

¶1         Plaintiff, Sara Naden, is a lieutenant with the Sugar Grove Fire Protection District
       (District). She applied for a disability pension from the five-member Board of Trustees of the
       Firefighters’ Pension Fund of the Sugar Grove Fire Protection District (Board). The Board
       held a hearing and denied Naden’s application, finding that she was not disabled. Naden
       sought judicial review of the Board’s decision in the circuit court (see 735 ILCS 5/3-101
       et seq. (West 2014) (Administrative Review Law)), and the court affirmed the Board’s
       determination. Naden appeals to us. She contends that the Board was biased against her and
       further that its decision was against the manifest weight of the evidence. We agree with
       Naden’s first contention; therefore, we vacate and remand to the Board with directions to
       hold a new hearing on Naden’s application.
¶2         Because this is an administrative law case, we directly review the decision of the Board
       and not the decision of the circuit court. See Kramarski v. Board of Trustees of the Village of
       Orland Park Police Pension Fund, 402 Ill. App. 3d 1040, 1046 (2010). Here, the Board held
       a hearing, which resulted in the following evidence.
¶3         The District hired Naden in 1998 as a part-time, or “paid-on-call,” firefighter and
       emergency medical technician (EMT). In 2000, Naden completed training to be a paramedic
       at Waubonsee Community College; the District paid for her schooling. In 2001, she was


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     promoted to part-time lieutenant. Due to regional population growth and a corresponding
     increase in call volume, in 2006 the District transitioned from a part-time staff to a full-time
     force of roughly 30 firefighters. The District’s full-time firefighters were split into three
     teams, or shifts, with each team working a 24-hour shift every third day. Each shift had a
     lieutenant. There were only three female full-time firefighters in the District. Naden was one
     of the first applicants hired back as a full-time firefighter/paramedic in 2006. She was not
     permitted to keep any rank upon being rehired. However, Naden successfully tested for a
     full-time lieutenant’s position in 2012 and was promoted to full-time lieutenant in February
     2013.
¶4        In her testimony before the Board, Naden stated that she had been subjected to intense
     criticism, ridicule, and sexual harassment by her male coworkers—both her subordinates and
     her superiors—over many years. According to Naden, she had “crying spells” and “anxiety
     attacks” at work, and she “continually fe[lt] sick to [her] stomach.”
¶5        On March 10, 2014, Naden sought treatment from her primary care physician for panic
     attacks. Naden’s physician assessed her panic attacks and prescribed medication for anxiety
     and depression. Naden continued to work regular shifts for the District until March 31, 2014.
     On April 2, 2014, Naden sent an e-mail to then-District Chief Martin Kunkel and requested a
     leave of absence from the District, citing her anxiety and her treatment by her coworkers.
     The District granted Naden 12 unpaid workweeks of leave under the Family and Medical
     Leave Act of 1993 (FMLA). See 29 U.S.C. § 2612(a)(1)(D) (2012). However, in conjunction
     with her leave, the District asked Naden to submit a written complaint regarding her
     allegations of sexual harassment. Naden prepared a 16-page single-spaced report and
     submitted it to the District on April 8, 2014. Naden’s report described dozens of alleged
     incidents of workplace harassment since 2006. Many of the incidents described harassment
     by then-Lieutenant Brendan Moran (now a battalion chief) and firefighters Jason Nichols and
     Mike Warner.
¶6        On May 13, 2014, under the Firemen’s Disciplinary Act (50 ILCS 745/1 et seq. (West
     2014)), the District issued Naden a “Notice of Interrogation” stating that, despite her FMLA
     leave, a formal inquiry would commence at the station the following week. The notice stated
     that “[t]he purpose of this interrogation is to fully investigate complaints made by Lt. Sara
     Naden regarding claims of harassment.” Naden sought a continuance of the hearing. The
     District responded by suspending the hearing indefinitely; thus, the interrogation remains
     ongoing.
¶7        Naden did not return to work when her 12 weeks of leave ended; the parties do not
     dispute that her last reported day of work was March 31, 2014. Naden subsequently applied
     for workers’ compensation benefits, filed a claim of sex discrimination with the Equal
     Employment Opportunity Commission (EEOC), and sought either a line-of-duty or a
     non-duty disability pension.
¶8        The five-member Board heard additional evidence and unanimously concluded in a
     roll-call vote that Naden was not disabled and thus not eligible to receive either a line-of-duty
     or a non-duty pension. Two weeks after the roll-call vote, four members of the Board
     adopted a 36-page written decision, which set out the members’ findings. The Board’s fifth
     member was absent on the date the written decision was adopted; nevertheless, for
     convenience’s sake and because all members participated in the roll-call vote, we can treat
     the written decision as an expression of the entire Board.

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¶9         On appeal, Naden contends that she did not receive a fair hearing before the Board, and
       we agree. Ordinarily, during the administrative review of an agency’s determination, we
       grant considerable deference to the agency. We do not reweigh the evidence the agency
       heard but merely determine whether there was at least some evidence to support its
       conclusion. See Danko v. Board of Trustees of the City of Harvey Pension Board, 240 Ill. App.
       3d 633, 641 (1992). However, the issue of whether an administrative hearing was fair is a
       question of law, which we review de novo. Sudzus v. Department of Employment Security,
       393 Ill. App. 3d 814, 824 (2009). Thus, we owe no deference to an administrative
       adjudication where one of the adjudicators was either so biased in favor of or so prejudiced
       against one of the parties that the outcome was practically a foregone conclusion.
¶ 10       Administrative hearings are quasi-judicial proceedings that must comport with due
       process. Due process requires that a judge possess neither actual nor apparent bias. As our
       supreme court has said:
                   “It is a classical principle of jurisprudence that no man who has a personal interest
               in the subject matter of decision in a case may sit in judgment on that case.
                   The principle is as applicable to administrative agents, commissioners, referees,
               masters in chancery, or other arbiters of questions of law or fact not holding judicial
               office as it is to those who are technically judges in the full sense of the word.” In re
               Heirich, 10 Ill. 2d 357, 384 (1956).
       “A personal interest or bias can be pecuniary or any other interest that may have an effect on
       the impartiality of the decisionmaker.” Huff v. Rock Island County Sheriff’s Merit Comm’n,
       294 Ill. App. 3d 477, 481 (1998). There is, however, a strong presumption of honesty and
       integrity in the decisions of adjudicators. To overcome that presumption, an applicant must
       prove that the proceedings were “tainted by dishonesty or contained an unacceptable risk of
       bias against the app[licant].” (Internal quotation marks omitted.) Scott v. Department of
       Commerce & Community Affairs, 84 Ill. 2d 42, 56 (1981); see also Goodwin v. McHenry
       County Sheriff’s Office Merit Comm’n, 306 Ill. App. 3d 251, 256-57 (1999); Huff, 294 Ill.
       App. 3d at 481. Furthermore, “[i]f one decision maker on an administrative body is not
       completely disinterested, his participation infects the action of the whole body” and renders
       the resulting decision unsustainable. (Internal quotation marks omitted.) Kramarski, 402 Ill.
       App. 3d at 1047.
¶ 11       We note that in its appellate brief the Board, without citing authority, asserts that Naden’s
       failure to raise her bias claim at the hearing “arguably constitutes waiver of review of the
       issue.” Even if we accepted the Board’s unsupported argument concerning forfeiture (cf. Ill.
       S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (arguments lacking citation to authority are forfeited)),
       the United States Supreme Court has explained that judicial-disqualification claims raise a
       form of structural error, which may be noticed at any time. See Williams v. Pennsylvania, 579
       U.S. ___, ___, 136 S. Ct. 1899, 1909 (2016).
¶ 12       The record reflects that conflicts of interest were held by a majority of the trustees. Three
       of the five members of the Board—Chairman Moran and trustees Nichols and Warner—were
       also firefighters specifically named as antagonists in Naden’s 16-page written complaint to
       the District. In her complaint, Naden accused each of these three trustees of having engaged
       in repugnant behavior years before she left the department and sought her pension. As noted,
       the District attempted to conduct a formal interrogation into Naden’s allegations under the
       Firemen’s Disciplinary Act (see 50 ILCS 745/1 et seq. (West 2014)), but when Naden sought

                                                   -4-
       a continuance, the District canceled the hearing, and it was never rescheduled. Thus, the
       interrogation remained pending and unresolved at the time of the hearing on Naden’s
       pension. (In fact, at oral argument, the attorneys indicated that the inquiry remains
       unresolved to this day.)
¶ 13        In addition, in 2010, Moran, the Board’s chair and Naden’s superior officer, was
       disciplined for making a derogatory comment—calling Naden either “retarded” or
       “handicapped”—in front of her shift mates. The Board now asserts that Moran was not
       “disciplined for anything relating to discrimination against [Naden].” We take the Board to
       mean that Moran was not disciplined for sex discrimination or sexual harassment against
       Naden, and in that regard, we find the Board’s claim disingenuous and unpersuasive.
       Whether conduct amounts to sex discrimination or sexual harassment requires an
       examination of the totality of the circumstances. See Trayling v. Board of Fire & Police
       Commissioners of the Village of Bensenville, 273 Ill. App. 3d 1, 12 (1995). We are not in a
       position to determine that the 2010 incident between Moran and Naden was based on sex
       discrimination; we do not know the totality of the circumstances. However, we also cannot
       rule out, as the Board apparently did, that the incident was not motivated by sex
       discrimination. But, more to the point, even if Moran’s comment was not sexual harassment,
       the entire episode demonstrated Moran’s animosity, hostility, and ill will toward Naden
       personally. See People v. Patterson, 192 Ill. 2d 93, 131 (2000) (citing People v. Vance, 76 Ill.
       2d 171, 181 (1979)). Such antagonistic conduct is per se prejudicial to the administration of
       justice. See Eychaner v. Gross, 202 Ill. 2d 228, 280-81 (2002). No person should be tried
       before a biased adjudicator in any capacity; however, the danger of prejudice is heightened
       by the greater influence wielded by a board’s elected chairperson. See Danko, 240 Ill. App.
       3d at 644.
¶ 14        Were the disciplinary interrogation resolved by the District before the pension hearing,
       the Board would be in a much better position to argue that the hearing was not improper. In
       Kramarski, for example, a police officer was turned down for a disability pension and the
       appellate court rejected her claim that two of the pension board members were biased
       because they were named in the officer’s lawsuit over her termination. See Kramarski, 402
       Ill. App. 3d at 1046-48. That lawsuit, however, was settled, without a decision on its merits,
       before the officer’s pension board hearing. Id. at 1047. And, in Kramarski, the two allegedly
       biased trustees abstained from voting on the officer’s pension, rendering the effect of their
       participation in the hearing completely inscrutable. See id. at 1046-47. This case is different.
       Here, the disciplinary interrogation was unresolved and ongoing. Thus, there was something
       of a “running controversy” between Naden and three of the trustees (see Taylor v. Hayes, 418
       U.S. 488, 501 (1974))—and particularly between Naden and Moran. See Ungar v. Sarafite,
       376 U.S. 575, 585 (1964) (explaining that a judge can appear impermissibly biased by
       becoming “personally embroiled” with a litigant).
¶ 15        Many decisions explain that an ongoing relationship between an adjudicator and a litigant
       makes the risk of bias unacceptable (see, e.g., Huff, 294 Ill. App. 3d at 482) and that, where
       there is an actual incentive for bias, recusal is required. See Del Vecchio v. Illinois
       Department of Corrections, 31 F.3d 1363, 1372 (7th Cir. 1994) (en banc). This case is unlike
       a situation where a litigant engages in forum shopping, by filing either a frivolous lien
       against a judge’s property or a complaint with the Judicial Inquiry Board, solely to force a
       judge’s recusal. See, e.g., People v. Smeathers, 297 Ill. App. 3d 711, 716 (1998). Here,

                                                  -5-
       Naden’s departmental disciplinary claims were pending long before the three trustees sat in
       judgment of her pension application. Thus, each of the three trustees named in Naden’s
       complaint had a material, direct, personal interest in denying her disability claim, whether to
       discredit her or to retaliate against her. The degree of bias rendered the Board’s decision
       unsustainable; it is therefore vacated.
¶ 16       As we are vacating the Board’s decision, we take the time to address a few additional
       issues in this case. See Pielet v. Pielet, 2012 IL 112064, ¶ 56 (“[w]hen appropriate, a
       reviewing court may address issues that are likely to recur on remand in order to provide
       guidance to the lower court and thereby expedite the ultimate termination of the litigation”).
       In particular, Naden has contended that the Board’s decision was against the manifest weight
       of the evidence and, indeed, we are troubled by the quality of the medical evidence the Board
       relied upon in its decision.
¶ 17       The Illinois Pension Code (Pension Code) states that a firefighter is entitled to receive a
       line-of-duty disability pension when he or she is found “to be physically or mentally
       permanently disabled for service in the fire department” as a result of “an act of duty or from
       the cumulative effects of acts of duty.” 40 ILCS 5/4-110 (West 2014). If a firefighter is
       “[permanently] disabled as a result of any cause other than an act of duty,” he or she is
       entitled to receive a non-duty disability pension. 40 ILCS 5/4-111 (West 2014). The Pension
       Code defines a “[p]ermanent disability” as any physical or mental condition that “has lasted”
       or “can be expected to last for a continuous period of not less than 12 months.” 40 ILCS
       5/4-105b (West 2014).
¶ 18       According to the evidence, Naden met with four physicians, each of whom tendered an
       independent medical examination (IME) report to the Board. Dr. Stephen Dinwiddie, a
       forensic psychiatrist, determined that Naden was not disabled at all and did not suffer from
       any “diagnosable psychiatric illness.” Dr. Keith A. Baird, a clinical psychologist, opined that
       Naden was “not disabled” mainly because she could seek comparable work at a different
       department. Similarly, Dr. Carl Wahlstrom, a psychiatrist, and Dr. Linda Gruenberg, a
       clinical psychologist, opined that, although Naden was disabled as either a firefighter or a
       commanding officer within the District or as a commanding officer in any other department,
       she would not be disabled as a rank-and-file firefighter in another department. A fifth
       physician also examined Naden; however, due to factual errors in the report, the Board did
       not consider it, and we need not discuss it.
¶ 19       At least three of the reports the Board did rely on however—those of Baird, Wahlstrom,
       and Gruenberg—variously opined that Naden was “not disabled” because she could
       theoretically work as a rank-and-file firefighter in another department or that she was
       “disabled” only because she could not theoretically work with her colleagues in the District
       in any capacity. The Board’s memorandum opinion incorporates these interpretations of
       section 4-110 of the Pension Code, and the Board posits that “[a] firefighter or lieutenant
       who is declared able to perform his or her job duties in the same or another fire department
       does not appear to meet the criteria of being disabled for duty.” (Emphasis added.) We reject
       this interpretation.
¶ 20       Under section 4-110 of the Pension Code, a firefighter who is able to perform limited
       duties as a firefighter, or to perform in some other available position within the same
       department, is not incapable of rendering “service in the fire department” (40 ILCS 5/4-110
       (West 2014)) and, thus, is not entitled to receive a disability pension. See, e.g., Peterson v.

                                                  -6-
       Board of Trustees of the Firemen’s Pension Fund, 54 Ill. 2d 260, 265 (1973). That is because,
       critically, the Pension Code says, “service in the fire department”—not a fire department, or
       any fire department. It is apparent to us that each physician was relying on his or her own
       construction of what it means to be disabled in a generic sense and not what it means to be
       “disabled” under section 4-110 of the Pension Code. The Board then adopted these various
       ipse dixit diagnoses as legal conclusions, despite the fact that these opinions had no real legal
       basis. In a trial, such testimony would be inadmissible. See, e.g., Todd W. Musburger, Ltd. v.
       Meier, 394 Ill. App. 3d 781, 800 (2009). But the real danger here, apart from the IME
       reports, is that Naden’s petition was judged by the wrong standard. The Board’s analysis
       would require a disability applicant to exclude the possibility of working in all other
       precincts, districts, and stations. That is both absurd and contrary to the statute’s text. The
       plain language of section 4-110 dictates that a firefighter need prove his or her disability only
       in relation to his or her current employer—i.e., “the fire department.” Thus, if an alternative
       position that the applicant can perform is available in the same department, and has actually
       been offered to the applicant, then there are grounds for rejecting the applicant’s disability
       claim. See Peterson, 54 Ill. 2d at 265; cf. Danko, 240 Ill. App. 3d at 648 (distinguishing
       Peterson). Neither criterion was satisfied here. Accordingly, to the extent that Baird,
       Wahlstrom, and Gruenberg concluded that Naden was disabled for service with the District,
       each in fact opined in support of Naden’s disability claim.
¶ 21        We note, too, that to the extent the Board relied on Dinwiddie’s findings—which the
       Board gave “the greatest weight and deference” because his report challenged each of the
       diagnoses that the others had offered—it is unclear what specifically the Board found at all
       persuasive. Dinwiddie’s report was no more detailed or extensive than the others. Moreover,
       Dinwiddie could comment on all of the other reports merely because his report was written
       last. As has been pointed out elsewhere, a pension board’s decision can “be against the
       manifest weight of the evidence where the agency decision selectively relies heavily on one
       medical expert’s testimony to the exclusion of other medical opinions and medical
       documentation.” Scepurek v. Board of Trustees of the Northbrook Firefighters’ Pension Fund,
       2014 IL App (1st) 131066, ¶ 28 (citing Wade v. City of North Chicago Police Pension Board,
       226 Ill. 2d 485 (2007)). We trust that these evidentiary and legal issues will be considered on
       remand.
¶ 22        Naden’s three remaining claims, however, lack merit. First, Naden argues that the circuit
       court erred when it denied her request to compel the Board to tender tapes of the Board’s
       deliberations in executive session. Again, this is a matter of administrative review, and in that
       posture, the circuit court’s review is limited to the record of the agency’s proceedings.
       Harroun v. Addison Police Pension Board, 372 Ill. App. 3d 260, 261-62 (2007). Moreover, as
       the Board correctly notes, disclosure of the tapes would be contrary to section 2.06 of the
       Open Meetings Act, which states that unless the Board consents to disclosure (and so far it
       has not) “the verbatim record of a meeting closed to the public [such as an executive session]
       shall not be open for public inspection or subject to discovery in any administrative or
       judicial proceeding other than one brought to enforce this Act.” 5 ILCS 120/2.06 (West
       2014). We determine that the circuit court properly denied Naden’s request.
¶ 23        Second, Naden argues that the Board erred when it denied her request to testify in a
       closed session. However, as the Board points out, taking testimony in such a manner would
       have violated the Open Meetings Act (see 5 ILCS 120/2 (West 2014)). Furthermore, we

                                                   -7-
       agree with the Board that the hearing was not a “personnel” matter excepted from the Act
       (see id.). The Board was not Naden’s employer—the District was—and the Board met not to
       consider Naden’s employment but rather to determine her eligibility for a pension. See 5
       ILCS 120/2(c)(1) (West 2014). There was no error in the Board’s decision not to close that
       portion of the hearing.
¶ 24        Last, Naden claims that the Board erred when it granted leave to intervene to the
       firefighters’ union, International Association of Firefighters-Associated Firefighters of
       Illinois Local 4748 (Local 4748). To be precise, Local 4748 was granted limited leave to
       intervene but was not allowed to present evidence or make argument. Moreover, after the
       Board granted Local 4748 limited leave, no one from Local 4748 spoke for the remainder of
       the hearing. Naden claims that the intervention itself had a “chilling effect” on her ability to
       prove that she had been subjected to discrimination by her coworkers, who might now avail
       themselves of legal counsel. But Naden made no offer of proof before the Board to that
       effect, so the issue is moot. In any case, no statute prevented the Board from granting Local
       4748 leave to intervene, and we determine that the Board’s decision to do so was not an
       abuse of discretion. See Village of Stickney v. Board of Trustees of the Police Pension Fund,
       347 Ill. App. 3d 845, 852 (2004).
¶ 25        In sum, the judgment of the circuit court of Kane County on administrative review is
       vacated as is the Board’s decision. This cause is hereby remanded to the Board with
       instructions to hold a hearing de novo on Naden’s application for disability benefits,
       excluding as adjudicators trustees Moran, Nichols, and Warner.

¶ 26      Vacated and remanded with directions.




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