                               Illinois Official Reports

                                      Appellate Court



                 Thomas v. Chicago Transit Authority, 2014 IL App (1st) 122402



Appellate Court           DANIEL THOMAS, Plaintiff-Appellant, v. CHICAGO TRANSIT
Caption                   AUTHORITY, Defendant-Appellee.



District & No.            First District, Second Division
                          Docket No. 1-12-2402



Filed                     December 23, 2014




Decision Under            Appeal from the Circuit Court of Cook County, No. 11-CH-24345; the
Review                    Hon. Rita M. Novak, Judge, presiding.




Judgment                  Reversed.




Counsel on                Dykema Gossett PLLC, of Chicago (Jeffrey E. Jamison, of counsel),
Appeal                    for appellant.

                          Chicago Transit Authority, of Chicago (Karen G. Seimetz, Stephen
                          Wood, and Rachel Kaplan, of counsel), for appellee.
     Panel                    JUSTICE PIERCE delivered the judgment of the court, with opinion.
                              Justices Neville and Liu concurred in the judgment and opinion.


                                                OPINION

¶1         Plaintiff, Daniel Thomas, filed a petition for writ of certiorari in the circuit court seeking
       review of a Chicago Transit Board (Board) ordinance sustaining the Chicago Transit
       Authority’s (CTA) termination of Thomas’s employment for violation of its requirement that
       certain employees reside within a specified service area. The trial court denied the petition.
       On appeal, plaintiff seeks reinstatement, contending that the decision to terminate his
       employment is clearly erroneous based on the undisputed facts that he abandoned his
       suburban residence and intended to and did permanently reside within the service area. For
       the following reasons, we reverse the decisions of the circuit court of Cook County and the
       Board.

¶2                                           BACKGROUND
¶3         During the relevant time, Chicago Transit Authority Ordinance No. 005-201 (eff. Dec. 14,
       2005) was in effect and required nonunion CTA workers, like Thomas, to live within a
       specified residency area within six months of starting work. The ordinance provides that an
       employee’s “(j) ‘Residence’ shall be defined to be the actual domicile of the individual. An
       individual can have only one domicile” and “(k) An employee’s failure to reside within the
       residency area shall be considered cause which is detrimental to the service and grounds for
       discharge.” Id. The stated purpose of the ordinance is to provide a “greater recovery of sales
       tax revenues, a work force more aware of the importance of public transit in communities
       served by CTA, a more flexible workforce who live closer to where they work, and a
       workforce having a greater opportunity to travel on CTA buses and trains.” Id. Upon good
       cause shown, an employee could request a one-year extension to establish a qualified
       residence prior to the expiration of the original six-month period.
¶4         Thomas was hired by the CTA in June 2008 as a resource planner. During the
       employment process, he was presented with the CTA’s residency requirement and told that
       his employment was conditioned on satisfying the requirement. Thomas executed a
       “residency acknowledgment for Non-Union Candidates” form on June 4, 2008,
       acknowledging that he did not reside in the residency area and attesting that he would move
       into the residency area within six months from his first day of employment.
       Contemporaneously, Thomas executed a separate document entitled “Acceptable Proof of
       Residency.” This form instructed Thomas to provide the CTA with two section “A”
       documents and one section “B” document showing the employee resided in the service area.
       The section “A” and “B” documents were defined as:
                   “Section A: Illinois Driver License, Illinois Identification Card, Illinois Vehicle
               registration card, most recent; Illinois Voter registration card, most recent; Mortgage
               documents for current residence; Lease Agreement/Housing rental contract for
               current residence (within 30 days and showing full Illinois address)



                                                   -2-
                  Section B: Rent receipt (within 30 days and showing full Illinois address); Utility
              bill ***; Bank statement (within 45 days and showing full Illinois address); An
              official letter from another state or local government agency on the agency’s
              letterhead or containing the official seal of the issuing agency issued within the
              previous 30 days; official postmarked mail ***.”
¶5        When hired, Thomas and his family were residing in Arlington Heights, Illinois, which is
     outside of the CTA service area. On July 1, 2008, Thomas received a letter at his Arlington
     Heights residence explaining that as a condition of his employment he must reside in the
     service area by December 17, 2008, six months from his first day of work and that failure to
     comply with the requirement was grounds for termination. The letter further explained that
     Thomas could apply for a one-year extension to the six-month grace period upon good cause
     shown.
¶6        On November 13, 2008, Thomas applied for the one-year extension. In his application,
     Thomas explained that he had been attempting to sell his home and move into the residency
     area since June 2008. He made improvements to the house and placed it on the market, but
     despite these efforts he had been unable to sell the home. Enclosed with this request was the
     real estate listing agreement and specifications for the Arlington Heights residence. The CTA
     responded on November 14, 2008, asking Thomas to provide documents showing not only
     his attempt to sell or lease the home, but also documents demonstrating that he had searched
     for a home in the service area. Thomas responded on November 26, 2008, explaining that he
     and his wife surveyed the service area and spent time reviewing the “housing stock” and
     schools; that they had driven through various neighborhoods; and that they received daily
     emails from his realtor listing the homes on the market in the service area. Thomas enclosed
     correspondence from his real estate broker confirming he was searching for housing in the
     CTA service area. On December 5, 2008, the human resources department recommended an
     extension until December 2009. The CTA granted the extension.
¶7        On December 8, 2009, Thomas submitted a memo and supporting documents to the
     CTA’s human resources department showing a change in his residency. The supporting
     documents consisted of a copy of a residential lease for 7531 N. Oleander in Chicago,
     Illinois, a bank statement and an Illinois driver’s license, both reflecting the Chicago address.
     On December 14, 2009, based on the new information, the human resources department
     declared that Thomas’s residence was within the CTA service area.
¶8        Sometime later, a request was sent to the CTA’s office of the inspector general (OIG) to
     confirm Thomas’s residency. The OIG conducted an investigation and issued a report on
     February 12, 2010. The OIG report concluded that Thomas was not in compliance with the
     residency requirement. The OIG report stated that the Chicago residence was owned by a
     relative of Thomas, and although the Chicago property showed signs it was being occupied
     and mail for the Thomas family was being received at that address, Thomas actually resided
     in Arlington Heights. The investigation confirmed the Arlington Heights home had been on
     the market continuously since June 2008. It stated that Mrs. Thomas and her five-year-old
     twins continued to reside there. The twins attended day care in Arlington Heights. The
     investigation showed that Mrs. Thomas is confined to a wheelchair and requires special
     assistance and accommodations within their home. Due to Mrs. Thomas’s disabilities, she
     had not moved into the Chicago residence because it did not accommodate her disability. The
     report stated that Thomas explained he lived at the Chicago address Monday through

                                                 -3-
       Thursday and stayed with his family on the weekends. Due to his wife’s physical disability,
       he would drive to the Arlington Heights home early in the morning to get the children ready
       and drive them to day care. Thomas would then assist his wife in getting ready for work,
       transport and commute with her to her Chicago job and then he would continue to CTA
       headquarters. After work, Thomas and his wife would take a Metra train to Arlington Heights
       and pick up their children from day care. After securing his family for the night, Thomas
       returned to his Chicago residence. The OIG report stated that, pursuant to the residency
       ordinance, “an individual can have only one domicile” and the law provided that a person’s
       true and permanent home should be his actual residence. The report concluded that because
       Thomas’s “family continues to reside outside the residency area and he only uses the
       Chicago residence to sleep on certain nights during the week, he is not in compliance with
       CTA’s residency ordinance.”
¶9         Attached to the report was a memo delineating the dates the investigators checked the
       residences and their observations: the Chicago residence was for sale and had tire tracks
       going in and of out of the garage indicating the home was being occupied; the Thomases
       received mail at the Chicago residence, however, Thomas did not submit a change of address
       form to establish his new address in Chicago; the Arlington Heights residence had a “For
       Sale” sign in the front yard and had a shoveled driveway and sidewalk; and, on one occasion
       surveillance of Thomas showed him leaving CTA headquarters and going to the Ogilvie
       Transportation Center, where he boarded a train to the northwest suburbs. Lastly, the report
       indicated that on two separate visits to the Chicago residence, during the daytime, no one
       answered the doorbell.
¶ 10       As a result of the OIG report, the CTA determined that although Thomas had submitted
       acceptable documentation showing he was living in Chicago, Thomas did not reside in the
       CTA service area. On February 19, 2010, the CTA sent Thomas a notice of termination
       explaining the OIG investigation found Thomas did not reside within the CTA service area in
       violation of the ordinance.
¶ 11       Thomas requested review of his termination before the CTA Board pursuant to section 28
       of the Metropolitan Transit Authority Act (70 ILCS 3605/28 (West 2008)). In his request
       Thomas stated that his primary and legal residence was in Chicago and he was in compliance
       with the ordinance. He further stated: (1) he has attempted to sell his Arlington Heights home
       since June 2008 and to move into the CTA service area; (2) his wife has a physical disability
       which requires her to use a wheelchair for mobility; (3) he has been living at the Chicago
       address (owned by a family member) since December 2009 while looking for a home in the
       service area and trying to sell his Arlington Heights home; (4) the Chicago house is not
       wheelchair accessible and, therefore, he resided in a separate residence from his wife and two
       five-year-old children; and (5) due to his wife’s disability, Thomas needs to help her with her
       daily commute, do chores, care for his wife and children and take the children to school.
       Thomas further stated that the CTA was requiring him to get divorced in order to establish a
       separate domicile from his wife. The request for a section 28 hearing was granted.

¶ 12                                   A. The Section 28 Hearing
¶ 13       The hearing was held on May 10, 2010. Three witnesses testified: OIG criminal
       investigator J. Martin Walsh, for the CTA, and Thomas and his wife, Jennifer Thomas.


                                                  -4-
¶ 14                                         1. CTA Witness
¶ 15       OIG criminal investigator J. Martin Walsh confirmed the veracity of the documents
       submitted by Thomas to show his residence in Chicago. He testified that the Chicago and
       Arlington Heights residences were visited for surveillance during the daytime, on a Thursday
       or Friday and a Saturday. There were visible tire tracks showing a vehicle had entered and
       exited the garage behind the Chicago residence indicating someone was staying at the
       Chicago residence. When he was at the suburban residence he observed a “For Sale” sign on
       the property and no one was present. He interviewed Thomas, his wife, the postal carriers
       and an employee at the children’s suburban preschool. Walsh found that Thomas stayed at
       the Chicago residence Monday through Thursday and at the suburban residence on the
       weekends. Walsh testified that throughout Thomas’s employment with the CTA, the Thomas
       family continued their efforts to sell the suburban residence. Walsh opined that under the
       CTA’s definition, “where you can only have one domicile and based on the fact that the
       Oleander [residence] was temporary, and that his family resided full time in Arlington
       Heights and he was there on the weekends and assisting the family on the weekdays, that
       was, in my mind, considered the primary residence.”
¶ 16       On cross-examination, Walsh testified that Thomas had been sleeping at the Chicago
       residence; he had a lease showing he rented the property; he was paying the utility bills for
       the Chicago residence; and he changed his driver’s license and bank statement to reflect the
       Chicago residence. Walsh concluded that the Thomas family was legitimately trying to sell
       the suburban home without success. Walsh explained that Thomas slept at the Chicago
       residence every night Monday thru Thursday, waking at 5 a.m. to go to Arlington Heights to
       help his wife and children get ready, taking his children to day care and his wife to the train.
       After work, Thomas would pick up his children from day care and help them throughout the
       evening with the tasks his wife could not do alone. Thomas would then put the children to
       bed and return to the Chicago residence. An exchange between plaintiff’s counsel and Mr.
       Walsh highlights his findings as to Thomas’s intent.
                   “MR. SALTZMAN [petitioner’s counsel]: You believe that they were, based on
               your investigation, that the Thomas family was legitimately trying to sell their home
               in Arlington Heights, correct?
                   MR. WALSH: Yes.
                   MR. SALTZMAN: And that Mr. Thomas’[s] intent was, once that home was sold,
               that he and his family were going to live in a home in the service area, correct?
                   MR. WALSH: Yes.
                   MR. SALTZMAN: And that the Oleander address was a way for him to live in
               the service area until the point that the home could be sold, correct, the Arlington
               Heights home could be sold, correct?
                   MR. WALSH: Yes.
                   MR. SALTZMAN: And the family could be reunited in the City correct.
                   MR. WALSH: Yes.
                   MR. SALTZMAN: This was not a situation where he intended to maintain two
               separate residences ad infinitum, correct?
                   MR. WALSH: There was no–there was nothing that I uncovered that would
               indicate that.”

                                                  -5-
       Walsh also testified that the Arlington Heights home was a single-story ranch home that
       appeared to be handicap accessible because there was a ramp in the garage leading to the
       house, which prohibited the parking of a vehicle.

¶ 17                               2. Testimony of Mrs. Jennifer Thomas
¶ 18       Mrs. Thomas testified she has cerebral palsy, which prohibits her from independently
       taking care of herself and her children. Mrs. Thomas has required the use of a power
       wheelchair for the last 11 years to move without the assistance of others. Due to these
       limitations, she is not a licensed driver and has difficulty performing daily tasks without the
       help of her spouse. Because of the residency requirement, approximately 30 days after
       Thomas was hired the family put their Arlington Heights home up for sale during the worst
       housing market in 27 years.
¶ 19       She testified that in December 2009, Thomas left Arlington Heights to live in Chicago.
       The Chicago residence was not accessible to her because it had stairs. After her husband
       moved she still required his assistance to: (1) get the children ready; (2) take her to the train;
       (3) bring her back to Arlington Heights; (4) pick up the children from day care; (5) prepare
       the evening meal; and (6) put her and the children to bed. She testified that after completing
       those tasks, Thomas would go back to the Chicago residence at roughly 8:30 p.m. each
       evening and return the following day at 5:30 a.m.
¶ 20       On cross-examination, Mrs. Thomas testified that the Chicago residence was
       approximately 10 miles from the Arlington Heights home. No one came to assist her
       overnight after her husband left to the Chicago residence. Before a failed 2009 closing on the
       Arlington Heights home, she had looked for day care and other school options for the twins
       in Glenview. One Glenview school was prepared to enroll the children beginning in January
       2010, after Christmas break. She explained that they looked at the housing options in Des
       Plaines, Glenview, Niles, Skokie and Northbrook with the Glenview property being the best
       option for her needs.

¶ 21                               3. Testimony of Mr. Daniel Thomas
¶ 22       Thomas testified that although the Arlington Heights home was in Cook County, it was
       not in the CTA service area. He looked into housing options in Glenview, Park Ridge, Niles,
       Des Plaines and Skokie. He placed their Arlington Heights home on the market and reduced
       the price of the home four or five times. The failed sale in 2009 would have resulted in a loss.
       He was willing to sell at a loss because he wanted get a new house for his family and to live
       in the service area. When the sale failed in December 2009, he moved to the Chicago
       residence, which was not accessible to his wife because of the stairs and narrow doorways.
       His intention was to live permanently in the service area and not move back to Arlington
       Heights. He had no intention to reside again at the Arlington Heights house. His intent was to
       reside in the Chicago residence until he could secure new housing in the service area because
       there was no other financially feasible option based on the family’s requirements and
       circumstances.
¶ 23       Thomas stated he moved to Chicago as a matter of circumstance but still needed to take
       care of his wife and children. He never thought of divorce or separation for the purpose of
       trying to satisfy the residency requirement. After his move to Chicago, he obtained a new


                                                   -6-
       driver’s license, changed his voter’s registration, paid for utilities at the Chicago residence
       and slept there Monday through Thursday. He tended to the Chicago home by cleaning it and
       making sure it was maintained. He stated that his wife’s testimony as to his schedule of going
       back and forth to the Arlington Heights home to help his family was accurate.
¶ 24       On cross-examination, Thomas testified that they planned to sell the suburban residence
       and move to a different house in the service area. They were looking to purchase a specific
       home in Glenview which would have accommodated his wife’s disability because it had
       neither a basement nor stairs. His wife did not visit the Chicago residence because it was not
       wheelchair accessible and it would have been costly to make it accessible for his wife. The
       Chicago residence was owned by his stepfather, and he did not pay rent because his
       stepfather’s belongings were stored on the premises. He was the only person residing in the
       home. At the time of the section 28 hearing, it had been sold.
¶ 25       In response to questioning from the panel members, Thomas said he left his previous
       employment to work for the CTA for the same compensation. He was comfortable with the
       idea of moving to the service area. The Chicago residence was listed for sale while he resided
       there and if it sold before the Arlington Heights home, he would reside in another apartment
       within the service area. Thomas fixed up the Arlington Heights home at the suggestion of his
       realtor to help sell the property. He denied there were any declarations of mold or leaks in the
       suburban home during the course of the failed sale. He testified that the Chicago residence
       was not accessible for his wife because of the stairs, the basement and structural issues with
       the walls and the doorway prohibiting entry into the home by a wheelchair-bound individual.

¶ 26                            B. Post Section 28 Hearing and Decision
¶ 27       Posthearing briefs were submitted in August 2010. Thomas argued that the underlying
       facts are undisputed and the case turns on the issue of his intent. Thomas pointed to the
       CTA’s witness agreeing that Thomas intended to reside in Chicago and comply with the
       residency requirement. Thomas asserted that nothing in the facts and testimony supports the
       notion that he engaged in a sham by moving to Chicago in December 2009, continuing to
       assist his family and changing his residency. Further, he argued: (1) the CTA has not met its
       burden of proof; (2) a determination that Thomas had two residences because he did not
       divorce his wife and/or abandon his family violates his fundamental rights under the due
       process clause; and (3) the CTA’s interpretation of the ordinance prevents Thomas from
       caring for his disabled wife and helping her care for their children and is in violation of the
       Americans with Disabilities Act (42 U.S.C. § 12112(b)(5) (2006)).
¶ 28       The CTA argued that Thomas had a second residence in Chicago because he was
       sleeping there overnight; however, the Chicago residence did not qualify as his domicile
       because “his wife could not live there and, at any rate, the Oleander house was for sale.” The
       CTA argued the termination was proper, first, because Thomas did not have his domicile in
       Chicago, he was not fulfilling the purpose of the ordinance. Second, the CTA did not have a
       duty to accommodate Mrs. Thomas’s disability, a nonemployee. The CTA further argued that
       Thomas could have chosen a domicile in the service area that was wheelchair accessible;
       however, he chose not to because: (1) he could not sell his Arlington Heights home during
       the grace period; (2) he felt he could not afford to rent another residence while paying a
       mortgage; and (3) he was living at the Chicago house without paying rent. The CTA
       concedes that the residency requirement imposed an economic burden on Thomas but asserts

                                                  -7-
       it did not force him to abandon his family or separate from his wife. On January 12, 2011, the
       Board enacted ordinance number 011-1 (Chicago Transit Authority Ordinance No. 011-1
       (eff. Jan. 12, 2011)), sustaining petitioner’s termination. The ordinance provided that the
       Board considered the report of the hearing committee, together with the transcript of the
       proceedings, adopting them as part of the minutes of its January 12, 2011 session. The Board
       dismissed Thomas’s section 28 complaint and sustained the termination. Subsequently,
       petitioner filed a writ of certiorari with the circuit court of Cook County requesting review of
       the Board’s decision, arguing that it was against the manifest weight of the evidence and a
       violation of public policy.
¶ 29        On July 17, 2012, the circuit court affirmed the termination of petitioner’s employment
       finding the Board’s decision was neither “1. against the manifest weight of the evidence;
       2. clearly erroneous; nor, 3. contrary to the law for the reasons stated on the record.”
¶ 30        This timely appeal followed.

¶ 31                                             ANALYSIS
¶ 32       As a preliminary matter, plaintiff requests we remand this case to the Board to issue
       written findings of fact. Plaintiff asserts the Board issued a conclusory finding sustaining the
       termination order without explanation. He argues an agency’s decision must set forth what
       evidence was accepted or rejected so that the basis of the decision can be clearly and
       adequately disclosed and reviewed. He contends that without written findings of fact or
       conclusions of law our review is hindered. The CTA responds arguing the record contains the
       hearing testimony, the original documents stemming from Thomas’s hiring, the internal
       investigation, the notice of termination and request for the section 28 hearing. The CTA also
       argues that Thomas did not raise this issue at the circuit court and, therefore, this basis for
       remand is waived.
¶ 33       We find Thomas did not waive this argument because it was specifically raised and
       discussed before the circuit court. We also find that the record provides a sufficient basis to
       conduct a meaningful review of the issues on appeal. There is no dispute over the facts and
       circumstances giving rise to the termination order and the Board’s decision. The CTA issued
       a notice of termination on February 19, 2010 and the parties agree the CTA terminated
       Thomas’s employment based on the OIG’s report and the inspector’s findings. The record
       includes the CTA’s documentation leading to his termination, a transcript of the testimony at
       the May 10, 2010 hearing before the Board and the parties’ posthearing briefs. There is no
       conflicting testimony involved and the parties agree there is no issue of witness credibility.
       Accordingly, we find we have a sufficient record to review the decision of the Board.
¶ 34       Turning to the merits of the appeal, plaintiff first argues the Board’s decision sustaining
       the termination was clearly erroneous because the undisputed evidence demonstrates that
       Thomas’s domicile was located within the CTA service area and complied with the residency
       requirement.
¶ 35       This is a judicial review of an administrative decision brought before the circuit court of
       Cook County on a writ of certiorari. Chicago Transit Authority Ordinance No. 88-81 (eff.
       June 1, 1988) provides that after a section 28 hearing “the decision of the Board shall be final
       and not subject to review.” Where an agency does not adopt the Administrative Review Law
       (735 ILCS 5/3-101 et seq. (West 2010)) and offers no form of other review, a writ of


                                                  -8-
       certiorari is the “general method for obtaining circuit court review of administrative
       actions.” Hanrahan v. Williams, 174 Ill. 2d 268, 272 (1996). The standard of review for an
       action brought on a writ of certiorari is “essentially the same as those [actions brought]
       under the Administrative Review Law.” Id.
¶ 36       Thomas challenges the Board’s ordinance sustaining the termination of his employment
       and the order of the circuit court affirming the Board’s ordinance. However, we review the
       decision of the administrative agency, not the order of the circuit court. Wolin v. Department
       of Financial & Professional Regulation, 2012 IL App (1st) 112113, ¶ 19. Therefore, our
       review is limited to the decision of the Board as reflected in the ordinance.
¶ 37       We review all questions of law and fact contained in the record. Soto v. Board of Fire &
       Police Commissioners, 2013 IL App (2d) 120677, ¶ 22. An agency’s determinations of fact
       are held to be prima facie true and correct. 735 ILCS 5/3-110 (West 2010). We do not
       reweigh the evidence but rather we determine whether the agency’s decision is “just and
       reasonable in light of the evidence presented.” (Internal quotation marks omitted.) Soto, 2013
       IL App (2d) 120677, ¶ 22.
¶ 38       The applicable standard of review from a decision of an administrative agency is
       dependent upon whether the appeal presents a question of fact, a mixed question of fact and
       law or a pure question of law. Wolin, 2012 IL App (1st) 112113, ¶ 37. Questions of fact are
       reviewed under the manifest weight of the evidence standard. Id. ¶ 19. Mixed questions of
       law and fact are reviewed under the clearly erroneous standard. Nichols v. Chicago Transit
       Authority Hardship Committee, 338 Ill. App. 3d 829, 831 (2003). Lastly, an agency’s
       decision regarding a question of law is reviewed de novo. Wolin, 2012 IL App (1st) 112113,
       ¶ 19.
¶ 39       Illinois courts have used all three standards of review in determining the residency of an
       individual. See Maksym v. Board of Election Commissioners, 242 Ill. 2d 303, 326-27 (2011).
       The clearly erroneous standard of review is applied when the facts are “admitted or
       established, the controlling rule of law is undisputed” and the issue is whether the facts
       satisfy the legal standard. (Internal quotation marks omitted.) City of Champaign v. Madigan,
       2013 IL App (4th) 120662, ¶ 26. “An agency’s decision is ‘clearly erroneous’ when the
       reviewing court is left with a firm and definite conviction that the agency has committed a
       mistake.” City of Sandwich v. Illinois Labor Relations Board, State Panel, 406 Ill. App. 3d
       1006, 1008 (2011); Cinkus v. Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200,
       211 (2008). Under the clearly erroneous standard, more deference is given to the agency’s
       decision than under the de novo standard, but less deference than the manifest weight of the
       evidence standard. Maplewood Care, Inc. v. Arnold, 2013 IL App (1st) 120602, ¶ 25.
¶ 40       In this instance we review the Board’s decision under the clearly erroneous standard. The
       parties agree that there is no dispute as to the underlying facts or the credibility of the
       witnesses and there is an absence of competing testimony. The first question on appeal is
       whether the Board erred in determining that Thomas did not satisfy the CTA’s residency
       requirement based on the undisputed facts and evidence presented to the Board. This
       question is factual in part because it requires us to consider whether the facts presented
       support the Board’s decision. It is also legal in part because residency is a legal concept
       which requires judicial interpretation. See Maksym, 242 Ill. 2d 303.
¶ 41       CTA Ordinance No. 005-201, establishing the residency requirement for nonunion CTA
       workers, like Thomas, provides that an employee’s residence “shall be defined to be the

                                                 -9-
       actual domicile of the individual. An individual can have only one domicile.” Chicago
       Transit Authority Ordinance No. 005-201(j) (eff. Dec. 14, 2005). “[D]omicile *** has been
       defined as ‘the place where a person lives and has his true, permanent home, to which,
       whenever he is absent, he has an intention of returning.’ ” Fagiano v. Police Board, 98 Ill. 2d
       277, 283 (1983) (quoting Peirce v. Peirce, 379 Ill. 185, 192 (1942)). “Residence” has been
       considered synonymous with the term “domicile.” Id. O’Boyle v. Personnel Board, 119 Ill.
       App. 3d 648, 654 (1983). However, “residence” does not have a fixed or constant meaning.
       Fagiano, 98 Ill. 2d at 282.
¶ 42        To avoid any confusion, we note that the CTA ordinance defines “residency” to be a
       person’s “domicile” and, further, a person can have only one domicile. “Residency” and
       “domicile” are synonymous under the ordinance. Thus, to establish residency, or domicile,
       there are two requirements: (1) physical presence and (2) intent to remain in that place as a
       permanent home. Maksym, 242 Ill. 2d at 319. In this case, the parties agree the first
       requirement is satisfied because Thomas had a physical presence at the Chicago residence.
       The CTA conceded the OIG report established that Thomas had an indisputable physical
       presence at the Chicago residence. OIG investigator Walsh’s testimony confirmed Thomas
       resided in the CTA service area at the Chicago home. The meat of the CTA’s argument is
       that, although Thomas had established his residence in the Chicago home, it was not deemed
       sufficient for purposes of complying with the ordinance because his family lived in a separate
       residence. Therefore, the question is whether Thomas satisfied the second prong of the
       residency test: Did Thomas intend to establish his permanent residence in the service area?
¶ 43        In order to determine a person’s intent to establish a new domicile or residence, we must
       consider whether: (1) that person intended to abandon the prior domicile; and (2) that person
       intended to establish a new domicile. The establishment and abandonment of a residence is
       “largely a question of intent.” Id. at 326. A person’s intent is primarily shown from his acts
       about which that person is “absolutely competent to testify *** though such testimony is not
       necessarily conclusive.” Id. In determining residency the “issue to be decided by a board is
       principally of determining the employee’s intent.” Fagiano, 98 Ill. 2d at 287. Intent is
       measured by both surrounding circumstances and declarations of the individual. Walsh v.
       County Officers Electoral Board, 267 Ill. App. 3d 972, 976 (1994). The question of residency
       is an “individualized determination” and all factors present must be considered by a board
       “[b]ecause intent may be manifested in ways too numerous to simply be listed.” Fagiano, 98
       Ill. 2d at 287.
¶ 44        There is no dispute that Thomas was residing with his wife and children in Arlington
       Heights, Illinois, outside of the CTA service area, prior to December 2009. Once residency
       has been established, the question is no longer physical presence but whether the individual
       abandoned the prior residence. Maksym, 242 Ill. 2d at 319; O’Boyle, 119 Ill. App. 3d at 654.
       A person may not have more than one domicile and once a domicile is established it remains
       until a new domicile is acquired. O’Boyle, 119 Ill. App. 3d at 654. The issue, therefore, is
       whether Thomas abandoned his established domicile in Arlington Heights and acquired a
       new domicile in Chicago in December 2009.
¶ 45        Thomas and his wife testified that upon his moving from Arlington Heights to the
       Chicago residence, he had no intention to permanently return to Arlington Heights. Rather,
       his intent was to move into the CTA service area and live there permanently. The Thomases
       and Investigator Walsh testified the Thomases put their Arlington Heights home on the

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       market almost immediately after he began working at the CTA in 2008; they were looking
       for homes in the service area; they searched for suitable schools for their children; and his
       stated intention was to live in the Chicago residence until he could sell the Arlington Heights
       home and move his family into an accessible residence within the CTA service area. The
       CTA does not dispute the contents or the representations made in the section “A” and section
       “B” proof of residency documents that Thomas submitted. The testimony of Thomas and the
       CTA investigator that he actually resided at the Chicago home, he had a lease with the owner
       of the residence, he received mail at the Chicago address, and he changed his legal address to
       and paid utility bills for the Chicago residence are completely consistent. Investigator Walsh
       did not refute: (1) Thomas’s stated intention to never live in Arlington Heights again; and (2)
       Thomas’s necessary presence at the Arlington Heights home during certain hours on certain
       days to care for his wife and children.
¶ 46       Similar to this case, in Maksym v. Board of Election Commissioners, 242 Ill. 2d 303
       (2011), the question was whether a candidate for elective office was an eligible resident
       where objectors claimed he had abandoned his Chicago residence when he moved to
       Washington, D.C., to serve as a federal official for a lengthy period of time. The candidate
       claimed he never abandoned (intended to leave) his Chicago home as evidenced, in part, by
       the continued ownership of his home, payment of local real estate taxes, and maintenance of
       his voter and vehicle registrations in Chicago. This evidence required the challenger to
       overcome the presumption of a Chicago residency and the declaration of the candidate’s
       intent to remain in Chicago. Id.
¶ 47       Reviewing Thomas’s stated intention, his acts and the surrounding circumstances
       (Maksym, 242 Ill. 2d at 316), in addition to Investigator Walsh’s report and testimony, we
       find the Board failed to establish that Thomas did not abandon his Arlington Heights
       residence and establish his residence in the service area. Walsh, 267 Ill. App. 3d at 975
       (surrounding circumstances shall be accorded more weight than simple declarations of
       intent). It was not refuted that Thomas was residing at the Chicago residence. The fact that he
       made early morning and late evening commutes to and from the suburbs to attend to the
       needs of his disabled wife and small children during the week and that he spent the weekends
       with them does not negate his intent to abandon his Arlington Heights residence. Neither the
       ordinance nor precedent compels a conclusion that living up to his family responsibilities
       equates to a lack of abandonment.
¶ 48       The CTA also argues that even if Thomas did abandon his Arlington Heights residence,
       he did not sufficiently establish a new residence within the service area as required by the
       ordinance. Specifically, the CTA argues that Thomas did not establish a new residence in
       Chicago because: (1) the Chicago residence was for sale and, therefore, was a temporary
       residence; and (2) his wife and children reside outside the service area where he visited on a
       regular basis.
¶ 49       Staying in a temporary residence to comply with a residency requirement while looking
       for permanent housing is sufficient to establish a new domicile. Dillavou v. County Officers
       Electoral Board, 260 Ill. App. 3d 127 (1994). In Dillavou, a candidate for the office of state
       representative resided in temporary housing while looking for a new home in the district
       where he was required to live. In reviewing the circumstances to determine residency, we
       found there was sufficient evidence of residency in the district because there was undisputed
       evidence that the candidate made an offer to purchase a home in the district that, if

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       consummated, would have dispelled any question of residency. Id. at 133-34. We also
       rejected the petitioners’ contention that because the candidate admittedly lived in a temporary
       residence, he could not qualify as a resident of the requisite district. Id. We stated that “[a]
       person can acquire a domicile if he is personally present in a place and elects that as his home
       even if he never intends to remain in that physical structure on a permanent basis.” Id. at 133.
¶ 50       In this case, the evidence supports a similar result as Dillavou. Here, the parties agree that
       Thomas intended to live in the service area and that his Chicago residence was temporary
       until he found new housing suitable for his immediate family in the service area. Similar to
       Dillavou, here there was no contrary evidence that the suburban home was continuously on
       the market from almost immediately after he began working for the CTA. Furthermore, the
       potential sale of Thomas’s Arlington Heights home and the attempted purchase of a
       Glenview home in the service area was unchallenged by the CTA. Had the sale of the
       Thomas home and purchase of the Glenview home occurred, any question of Thomas’s
       residency would have been quickly dismissed. Therefore, we disagree with the CTA and hold
       that even though Thomas’s undisputed residency in the Chicago dwelling was temporary,
       absent any persuasive evidence to show it was a sham, these are circumstances that support a
       conclusion that he had the intention to establish his residency in the CTA service area.
¶ 51       The facts that the Chicago residence was owned by a relative, that he paid the utilities but
       no rent, and that it was listed for sale are not determinative, given that Investigator Walsh all
       but testified that there was no suggestion this was evidence of a pretext. Thomas should not
       be penalized for a kindness extended to him by a family member. Even if the Chicago
       residence was sold, that would only mean Thomas would be required to establish another
       residence within the service area. Living in a temporary residence in order to comply with a
       residency requirement while looking for permanent housing is sufficient to establish a new
       domicile. Id.
¶ 52       Second, Thomas argues that the CTA was acting according to an unwritten policy,
       referenced by the investigator, to the effect that an employee cannot maintain a domicile
       separate from his or her spouse, regardless of his specific circumstances. The CTA argues
       that an employee cannot have a separate domicile from his or her spouse.
¶ 53       The residency requirement of Ordinance No. 005-201, however, specifically targets the
       individual employee and does not encompass the employee’s family when defining
       residency. Section (j) provides “ ‘Residence’ shall be defined to be the actual domicile of the
       individual. An individual can have only one domicile”; and section (k) provides in its
       entirety: “An employee’s failure to reside within the residency area shall be considered cause
       which is detrimental to the service and grounds for discharge.” (Emphases added.) Chicago
       Transit Authority Ordinance No. 005-201(j), (k) (eff. Dec. 14, 2005). None of the documents
       provided to Thomas before or during his employment indicate that an employee’s spouse or
       children were required to maintain the same residency as the employee in order to be in
       compliance with the ordinance.
¶ 54       The CTA’s investigator testified the CTA’s policy is that an employee’s domicile is
       always with his or her spouse. This policy statement was expanded in the circuit court where
       CTA counsel stated the policy is that an employee’s residence is automatically deemed to be
       that of the family, regardless of the employee’s actual residence. In effect, this policy would
       give full effect to the family’s circumstances and totally ignore the circumstances and the


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       employee’s declared intent of residency. The CTA argues that O’Boyle v. Personnel Board,
       119 Ill. App. 3d 648 (1983), supports this position.
¶ 55       In O’Boyle, a Chicago firefighter lived with his wife and children in a home he owned in
       Palos Hills. Id. at 650. His wife refused to move and the couple legally separated. Id.
       O’Boyle moved to his parents’ residence in Chicago while his wife and children lived in the
       suburban residence. Id. They had a third child a year after the separation, reconciled and
       moved the family to Chicago. Id. at 650-52. However, before that move, charges had been
       brought against O’Boyle for violating the city’s residency requirement. Id. at 652.
       Investigators observed O’Boyle at the suburban residence five times over a two-month period
       and neighbors stated that O’Boyle lived in the suburban residence. Id. at 651-52. On four
       occasions O’Boyle was seen leaving the Palos Hills home at 5:45 a.m. and once at 2 p.m.
       O’Boyle testified that he initially stayed at the Chicago residence but over the course of a few
       months he started staying in the suburban residence more often until he reconciled with his
       wife. Id. at 652. During this time, O’Boyle financially supported the suburban household. Id.
       The hearing officer and personnel board found that although evidence was presented
       establishing residence in Chicago, there was more evidence establishing his actual residence
       in Palos Hills and imposed a 60-day suspension. Id.
¶ 56       We found that the evidence against O’Boyle was sufficient to uphold the personnel
       board’s decision because O’Boyle did not intend to permanently move to the Chicago
       residence, but rather he merely intended to comply with the residency requirement.
       Id. at 656. We noted that generally changing a residence to comply with an employer’s
       residency requirement does not evidence the intent required to change the employee’s
       domicile. Id. Rather, there must be an intent to make the new residence a permanent home to
       establish a new domicile. Id. at 655-56.
¶ 57       Three years later we decided Raczkowski v. City of Chicago, 142 Ill. App. 3d 378 (1986).
       There the discharged employee owned a house in the suburbs, where his wife and children
       lived, and he also had an ownership interest in an apartment in the city. Id. at 379. He used
       his Chicago address for his voter and automobile registrations and bank accounts. Id.
       Investigators did not see him at the Chicago residence on four occasions; however, he was
       observed during all eight surveillance visits at the suburban residence. Id. The surveillances
       lasted no more than 2½ hours. Id. The circuit court affirmed the administrative finding that
       Raczkowski did not reside in the city. Id. at 378. The circuit court made statements
       suggesting that the only way Raczkowski could comply with the city’s residency requirement
       was to divorce his wife. Id. at 382.
¶ 58       This court reversed the personnel board, finding its ruling was against the manifest
       weight of the evidence because Raczkowski established a new domicile in the city. Id.
       Although Raczkowski had been observed many times at the suburban home, we noted that
       the he gave reasonable explanations as to why he was at the suburban address. Id. at 381. We
       also noted that although the suburban neighbors interviewed supported the city’s contention
       that Raczkowski lived with his spouse, no unfavorable information was obtained from his
       Chicago neighbors. Id. We found that Raczkowski’s “continued interaction with his family
       and other evidence of *** involvement with the Lincolnshire home,” including continued
       support of his family, did not evidence an intent to make the Lincolnshire home his
       residence. Id. Further, we found that it would be against public policy to mandate an
       employee “divorce his spouse and abdicate all responsibility for his family, unless otherwise

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       ordered by a court, solely to be able to establish that he had a separate residence in the city.”
       Id. at 382. In finding Raczkowski satisfied the city’s residency requirement, this court relied
       on Raczkowski’s testimony as to the circumstances and his stated intent in abandoning the
       Lincolnshire residence and to his intention to reside in Chicago. Id. at 381-82.
¶ 59       We find Thomas’s circumstances are distinguishable from those in O’Boyle and more in
       line with Raczkowski. Here, Thomas candidly and without contradiction testified before the
       Board that he and his family at all times desired and welcomed the move, intending to
       permanently reside in the service area. He placed the family home on the market almost
       immediately after beginning employment with the CTA. The CTA agreed that Thomas
       intended to permanently reside in the CTA service area. In O’Boyle the evidence showed the
       family refused to relocate to Chicago until years later and after the investigation began into
       O’Boyle’s domicile and the facts showed Mr. O’Boyle had resumed living in the Palos Hills
       residence while working for the city. The decision in O’Boyle turned on whether O’Boyle
       had an intention to reside in Chicago permanently which could not be shown under those
       facts and circumstances. Here, the facts and circumstances show Thomas’s intent to abandon
       one residence and to permanently reside in the service area.
¶ 60       We find the Thomases’ testimony concerning his presence at the Arlington Heights
       address was reasonable and not contradicted. Thomas, like Raczkowski, explained the special
       circumstances which required his presence during certain times at the Arlington Heights
       home. Similar to Raczkowski, “the surrounding circumstances shall be accorded more weight
       than simple declarations of intent.” Walsh, 267 Ill. App. 3d at 976-77 (finding that “moving
       into a one-room efficiency apartment on a month-to-month basis does not negate intent to
       reside there” for the purpose of determining a permanent abode and “while evidence of the
       residence of a party’s spouse and children is relevant, it by no means solely supports a
       conclusive finding of permanent residence”). There was no evidence presented by the CTA
       that contradicts plaintiff’s and his wife’s testimony.
¶ 61       Although the Raczkowski court relied on the employee’s testimony, stated intent and the
       facts and circumstances of his family life in finding he established a new domicile in the city,
       here, the CTA Board did precisely the opposite. Thomas testified that he had a residence in
       Chicago, he intended to permanently reside in Chicago and that he was trying to sell his
       Arlington Heights home to make that a reality. The CTA did not contradict Thomas’s
       testimony concerning his presence during certain times of the day in Arlington Heights in
       order to provide care for his wife and children under very specific circumstances. The CTA’s
       finding that Thomas was not domiciled in Chicago rested solely on the fact that Thomas’s
       family continued to reside in Arlington Heights. Any suggestion that Thomas needed to
       formally separate from his family and abdicate his family responsibilities in order to perfect
       an abandonment of his suburban residency would be contrary to public policy. Raczkowski,
       142 Ill. App. 3d at 382. Accordingly, we find the Board’s finding that Thomas did not reside
       in the service area was clearly erroneous.
¶ 62       In summary, Thomas’s uncontradicted testimony clearly showed that it was his intention
       to permanently abandon the Arlington Heights home and permanently live in the service
       area, first in a temporary home and later in another home accessible to his wife, also within
       the service area. The uncontested testimony showed Thomas’s acts of: (1) placing the
       Arlington Heights home for sale immediately after beginning work for the CTA; (2) agreeing
       to sell it at a loss of $30,000; (3) spending time and money preparing the house for sale; and

                                                  - 14 -
       (4) attempting to buy the Glenview home and enroll the children in the new school in January
       2010. This is persuasive evidence of his intent to abandon his Arlington Heights residence
       and to permanently reside in the CTA service area. The national and local economy was in
       the midst of the “Great Recession” and the housing market was in a severely depressed state.
       It is entirely plausible Thomas would have trouble selling his home so that he could buy an
       accessible property in the service area. A reasonable inference drawn from this record is that
       Thomas was sincere in his commitment to adhere to the residency requirements of his
       employment and he complied with that requirement by abandoning his former home to
       temporarily live in the service area until a permanent home could be acquired. There is
       similar evidence that Thomas intended to establish permanent residence in the service area.
       His conduct in providing and caring for his disabled wife and their young children evidences
       a commitment to abide by the requirements of the position and a commitment to provide for
       his family. The fact that a person lives apart from his spouse or other family members is not a
       sufficient basis, standing alone, to defeat the stated intention of a declared permanent
       residency or domicile.
¶ 63        Throughout its brief, the CTA argues that because Thomas failed to do certain acts, these
       failures evidence his lack of intent to make Chicago his primary residence. There is no point
       in discussing what could have been. We do not determine one’s residence based upon what a
       person could have done to establish a new residence. We rely on the record to show what the
       individual did and whether those actions are sufficient to establish both physical presence
       and intent to remain at the new residence. Maksym, 242 Ill. 2d at 314 (the court determines
       residence by considering the person’s intent, acts and the surrounding circumstances).
¶ 64        After having carefully reviewed the Board’s decision, we are left with a definite and firm
       conviction that a mistake has been committed. We hold the Board’s decision, which found
       Thomas failed to meet the residency requirement enunciated in CTA Ordinance No. 005-201
       is clearly erroneous. As such, we reverse that decision and the order of the circuit court
       affirming the Board’s decision.
¶ 65        Having determined that the Board’s ordinance was clearly erroneous and must be
       reversed, we need not address the additional challenges to the Board’s ruling.

¶ 66                                      CONCLUSION
¶ 67      For the foregoing reasons, the decisions of the circuit court of Cook County and the
       Chicago Transit Authority Board are reversed.

¶ 68      Reversed.




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