                             ILLINOIS OFFICIAL REPORTS
                                           Supreme Court




                             Genius v. County of Cook, 2011 IL 110239




Caption in Supreme           JACK L. GENIUS, Appellee, v. THE COUNTY OF COOK et al.,
Court:                       Appellants.


Docket No.                   110239
Filed                        June 16, 2011


Held                         The Cook County Employee Appeals Board possessed jurisdiction to
(Note: This syllabus         discharge plaintiff from his position as a police officer with the Forest
constitutes no part of the   Preserve District of Cook County, regardless of whether the employee’s
opinion of the court but     department head had actually discharged him or had merely
has been prepared by the     recommended discharge, because any such purported defect was merely
Reporter of Decisions for    a matter of error which did not go to the board’s jurisdiction as an
the convenience of the       administrative agency.
reader.)


Decision Under               Appeal from the Appellate Court for the First District, reported at 398 Ill.
Review                       App. 3d 321; heard in that court on appeal from the Circuit Court of
                             Cook County, the Hon. Mary K. Rochford, Judge, presiding.



Judgment                     Appellate court judgment reversed; cause remanded.


Counsel on                   Burton S. Odelson, Cary A. Horvath and Matthew M. Welch, of Odelson
Appeal                       & Sterk, Ltd., of Evergreen Park, for appellants.

                             John H. Kelly and Ericka J. Thomas, of Ottosen Britz Kelly Cooper &
                             Gilbert, Ltd., of Naperville, for appellee.
Justices                  JUSTICE BURKE delivered the judgment of the court, with opinion.
                          Chief Justice Kilbride and Justices Freeman, Thomas, Garman, and
                          Karmeier concurred in the judgment and opinion.
                          Justice Theis took no part in the decision.



                                           OPINION

¶1        At issue in this appeal is whether the Cook County Employee Appeals Board possessed
      jurisdiction to discharge the plaintiff from his position as a police officer with the Forest
      Preserve District of Cook County. The appellate court held that it did not. 398 Ill. App. 3d
      321. For the reasons that follow, we reverse the judgment of the appellate court and remand
      the cause to that court for further proceedings.

¶2                                             Background
¶3        In May of 1996, the plaintiff, Jack L. Genius, was employed as a police sergeant by the
      Forest Preserve District of Cook County (Forest Preserve District). That month, plaintiff was
      indicted by a Vermilion County grand jury on criminal charges involving the unauthorized
      purchase of police badges from a police equipment company located in Danville, Illinois.
¶4        On June 17, 1996, the Forest Preserve District superintendent, Joseph Nevius, informed
      plaintiff in a letter that he was suspended without pay pending the resolution of the criminal
      charges filed against him. In a later hearing, Nevius explained that officials in Vermilion
      County had requested that the Forest Preserve District not take further disciplinary action
      against plaintiff while the criminal matter was proceeding.
¶5        On June 18, 1996, plaintiff wrote to Steven Castans, the Forest Preserve District chief
      of police, and asked “if any formal departmental charges” were to be filed and, if so, “the
      date and time of the Civil Service Hearings.” Plaintiff also stated that he was demanding his
      “Due Process Rights as provided for under Civil Service Law.” Castans did not respond to
      this letter.
¶6        The criminal case in Vermilion County ended in a mistrial. The criminal charges against
      plaintiff were ultimately dismissed in February 2001.
¶7        On May 1, 2001, plaintiff wrote to Superintendent Nevius and informed him that the
      charges in Vermilion County had been dismissed. Plaintiff formally requested reinstatement
      to his previous position and also requested full back pay from the date of his suspension on
      June 17, 1996.
¶8        On May 25, 2001, Nevius responded with a letter titled “Notice Of Intent To Seek
      Discharge.” In this letter, Nevius informed plaintiff that it was his “recommendation as
      General Superintendent” that plaintiff be discharged because he had violated various rules
      and regulations of the Forest Preserve District and its police department. The letter set forth
      the relevant rules and stated that on “numerous occasions between 1991 and 1996” plaintiff

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       misrepresented to others that he was authorized to purchase police badges; purchased and
       sold police badges for personal gain; engaged in sexual conduct while on duty; allowed the
       use of alcohol and controlled substances in a police vehicle; and entered closed Forest
       Preserve District property for the purpose of engaging in sexual conduct. The letter also
       stated that, pursuant to the “Human Resources Ordinance,” plaintiff had a right to file a
       written response to the charges.
¶9         The “Human Resources Ordinance” referenced by Superintendent Nevius was a Cook
       County ordinance (Cook County Ordinance No. 00–O–08) which came into effect April 5,
       2000, and which changed the procedures for disciplining county employees. In general, the
       ordinance abolished the Cook County Civil Service Commission and its accompanying rules,
       established the Bureau of Human Resources and a new set of human resource rules, and
       created the Cook County Employee Appeals Board (Employee Appeals Board or Board) to
       hear disciplinary actions brought against employees. Cook County Municipal Code § 44–41
       et seq. (amended Apr. 5, 2000).
¶ 10       Two differences between the old and new Cook County disciplinary rules bear mention
       here. First, under the civil service rules, a department head could impose a suspension of less
       than 30 days on a civil service employee, but only the Civil Service Commission itself could
       impose a suspension of more than 30 days and only after the employee had been given an
       opportunity to be heard in his own defense. Cook County Civ. Service R. IX, §§ 1, 12. In
       contrast, under the human resource rules, no limit is placed on the length of suspension that
       a department head may impose, although a suspension of more than 10 days must first be
       reviewed by the chief of human resources and the employee, upon request, has a right to a
       hearing with respect to such a suspension before the Employee Appeals Board. Cook County
       Municipal Code §§ 44–47(13), 44–50(a).
¶ 11       Second, under the civil services rules, a department head had no authority to discharge
       a civil service employee. Only the Civil Service Commission could do so. Cook County Civ.
       Service R. IX, § 1. Under the human resource rules, in contrast, a department head is
       authorized to discharge an employee, although that decision must first be reviewed by the
       chief of human resources and the employee, upon request, may then seek a hearing before
       the Employee Appeals Board. Cook County Municipal Code §§ 44–47(13), 44–50(a).
¶ 12       In an unaddressed document, dated June 21, 2001, plaintiff responded to Superintendent
       Nevius’ “Notice of Intent to Seek Discharge,” stating that the charges in the notice were not
       true. The document also asked “the reviewing authority” to deny Nevius’ request for
       plaintiff’s dismissal.
¶ 13       In a document dated June 22, 2001, titled “Grievance and Request for Employee Appeals
       Board Review,” plaintiff wrote to the members of the Employee Appeals Board and alleged
       that, beginning on June 17, 1996, he had been suspended for more than 10 days without a
       hearing, despite the fact that he had demanded his “due process” rights in his letter to the
       Forest Preserve District chief of police on June 18, 1996. Plaintiff contended, therefore, that
       he had been “unlawfully suspended” for the five-year period from 1996 to 2001 and that his
       suspension was in violation of the human resource rules.
¶ 14       On August 7, 2001, Robert Furniss, an attorney for the Employee Appeals Board,


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       responded in a letter to plaintiff’s grievance and request for review. In this letter, Furniss
       stated, “[a]fter reviewing your file, the Board has determined that it has no jurisdiction over
       the matter.” The letter noted that “the actions in question took place in 1996 before the
       Human Resources Ordinance was expanded to encompass the Cook County Forest Preserve
       District” and “[t]herefore, the Board will not hear your appeal.” Thus, according to Furniss,
       the Employee Appeals Board would not hear plaintiff’s grievance that the Cook County
       human resource rules had been violated because those rules were not in effect at the time
       plaintiff’s suspension was first imposed.
¶ 15        On August 2, 2001, Superintendent Nevius sent plaintiff a “Notice of Pre-Disciplinary
       Hearing[,] Amended Charges and Specifications.” In this document, Nevius informed
       plaintiff that he had scheduled a “pre-disciplinary hearing” at the Forest Preserve District
       headquarters and that plaintiff would be able to present his response to the charges at this
       hearing.
¶ 16        On August 29, 2001, the predisciplinary hearing was held before a three-member panel
       of Forest Preserve District supervisors. During the hearing, plaintiff’s attorney noted the
       letter that had been sent by Furniss. In light of the letter, plaintiff’s attorney asked the panel
       whether plaintiff’s claim that his suspension, which began in 1996, was unlawful would be
       governed by the human resource rules presently in effect or the civil service rules which were
       in effect at the time the suspension was imposed. The distinction was significant. Applying
       the civil service rules would permit plaintiff to argue that, whatever the outcome with respect
       to the discharge proceeding, his five-year suspension was unlawful, and he was entitled to
       back pay for five years, because he had been suspended for more than 30 days by a
       department head, rather than the Civil Service Commission, in violation of the civil service
       rules. If, on the other hand, the human resource rules were deemed applicable, plaintiff would
       be limited to arguing that his suspension was unlawful only from the date those rules took
       effect in April 2000, thereby reducing plaintiff’s potential recovery to approximately one year
       of back pay.
¶ 17        The chairman of the panel declined to answer plaintiff’s question, stating that the panel
       did not have the authority to make that determination. The chairman explained that the
       panel’s only function was to present the amended charges to plaintiff, listen to his response,
       and then present a recommendation regarding discipline to Superintendent Nevius. The
       amended charges were then read by the panel and denied by plaintiff. Thereafter, the panel
       recommended to Nevius that discharge proceedings be initiated against plaintiff.
¶ 18        On September 26, 2001, Nevius filed a “Referral of Charges” before the “Civil Service
       Commission of Cook County.” In this document, Nevius stated that he agreed with the
       predisciplinary panel’s recommendation that discharge proceedings be initiated against
       plaintiff. He then stated that, “[p]ursuant to the Rules of the Civil Service Commission of
       Cook County,” the matter was referred “to the Civil Service Commission for investigation
       and discharge proceedings.”
¶ 19        Following litigation on matters not relevant here, a hearing was held on the charges
       brought against plaintiff on seven separate days from October 2003 through May 2004. The
       hearing was held before four of the five members of the Employee Appeals Board, with one


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       member of the Board having recused himself. Although held before the members of the
       Employee Appeals Board, the transcript of proceedings from the hearing is captioned
       “Before the Civil Service Commission of Cook County, Illinois,” and the hearing proceeded
       procedurally under the civil service rules. Plaintiff did not object to this process and, indeed,
       argued throughout the hearing that his five-year suspension was unlawful and that he was
       entitled to five years of back pay.
¶ 20       The Employee Appeals Board entered a written decision on September 20, 2004, under
       the caption “Cook County Employee Appeals Board.” The decision noted that the proceeding
       was initiated by the filing of written charges with the Civil Service Commission of Cook
       County and then stated, in a footnote, “The Civil Service Commission has been abolished
       by County ordinance. All matters pending before the Civil Service Commission were (by the
       same ordinance) transferred and assigned to this Board for decision.”
¶ 21       With respect to the merits, the Board rejected some of the charges brought against
       plaintiff and sustained others. Based on the sustained charges, the Board concluded that there
       were sufficient grounds to discharge plaintiff. The Board also concluded that plaintiff had
       forfeited any claim that his five-year suspension was unlawful, finding that, although plaintiff
       sent a letter to the Forest Preserve District chief of police in June of 1996 requesting his due
       process rights, he did not notify the Civil Service Commission of his objection to the
       suspension.
¶ 22       Plaintiff’s discharge was upheld by the circuit court of Cook County on administrative
       review. Plaintiff appealed.
¶ 23       In the appellate court, plaintiff raised three arguments: (1) the Employee Appeals Board
       erred in denying a motion that had been brought by plaintiff to dismiss the written charges
       on the basis of laches; (2) the Board’s decision to discharge him was against the manifest
       weight of the evidence; and (3) the Board erred in denying his request for back pay because
       his suspension for more than 30 days violated the civil service rules. The appellate court,
       however, did not reach these issues. Instead, the appellate court concluded that the Employee
       Appeals Board lacked jurisdiction to render its decision because it had not complied with the
       disciplinary procedures in the human resource rules. Accordingly, the appellate court
       reversed the judgment of the circuit court and vacated the decision of the Board. 398 Ill. App.
       3d 321. This appeal followed.

¶ 24                                           Analysis
¶ 25       As a creature of statute, the Employee Appeals Board has only those powers that are
       conferred upon it by law and any action it takes must be authorized by its enabling
       legislation. Alvarado v. Industrial Comm’n, 216 Ill. 2d 547, 553 (2005). When the Board
       renders a decision that it has no statutory authority to make, it acts without “jurisdiction”1

               1
                 “Although the term ‘jurisdiction’ is not strictly applicable to an administrative body, this
       court has held that the term may be employed to designate the authority of an administrative body
       to act.” Alvarado, 216 Ill. 2d at 554 (citing Business & Professional People for the Public Interest
       v. Illinois Commerce Comm’n, 136 Ill. 2d 192, 243 (1989)).

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       and its decision is void. Id. at 553-54. The scope of authority conferred on the Board by its
       enabling legislation is a question of statutory interpretation that we review de novo. Id. at
       553.
¶ 26       In this case, the appellate court concluded that the Employee Appeals Board acted
       contrary to its enabling authority when it rendered its decision and, therefore, the Board
       lacked jurisdiction to discharge plaintiff. The appellate court noted initially that the discharge
       proceedings in this case began in May of 2001 and, thus, were “to be initiated pursuant to the
       rules and regulations promulgated in accordance with the Bureau of Human Resources
       Ordinance,” which took effect in April of 2000. 398 Ill. App. 3d at 326. The appellate court
       then noted that the human resource rules
               “provide a distinct procedural mechanism for a postdisciplinary appeal to the
               Employee Appeals Board. Instead of a hearing on the employer’s charges before the
               Civil Service Commission, as provided for under the repealed civil service rules
               (Cook Co. Civ. Service R. IX, § 1), the Bureau of Human Resources Ordinance,
               which created the Employee Appeals Board, provides that after written notice of the
               disciplinary decision by the department head or designee:
                    ‘The employee may appeal the department head’s or designee’s decision to the
                    Employee Appeals Board by making a written request therefor within five
                    calendar days of the effective date of discipline.’ Cook Co. Municipal Code
                    § 44–50(b)(l) (amended April 5, 2000).” 398 Ill. App. 3d at 326.
¶ 27       From this, the appellate court determined that the Employee Appeals Board’s authority
       was limited to hearing appeals from disciplinary “decisions” rendered by the employee’s
       department head or designee. The appellate court then concluded: “the Board’s authority to
       hear an appeal from an employer’s decision was never invoked as the District never rendered
       a disciplinary decision from which plaintiff could have appealed. [Citation.] Accordingly,
       the Employee Appeals Board’s decision of September 20, 2004, is also void and a nullity.”
       398 Ill. App. 3d at 327. In short, the appellate court reasoned that because Superintendent
       Nevius made a “recommendation” that discharge proceedings be initiated against plaintiff
       rather than a “decision” that he be discharged, the Employee Appeals Board’s decision was
       void. We disagree.
¶ 28       Whether a challenged administrative action is merely erroneous rather than statutorily
       unauthorized and void for want of jurisdiction can be difficult to discern. See Business &
       Professional People for the Public Interest v. Illinois Commerce Comm’n, 136 Ill. 2d 192,
       244 (1989) (“theoretically, anytime an agency makes an erroneous decision, it acts without
       statutory authority because the legislature and the statutes do not give an agency the power
       to make erroneous decisions”); Newkirk v. Bigard, 109 Ill. 2d 28, 39 (1985) (“A party could
       merely point to any provision of a statute which was not complied with and claim that the
       agency did not have authority to act unless the provision was complied with.”); Hartt v.
       Hartt, 397 A.2d 518, 522 (R.I. 1979) (the distinction between mere error and actions which
       exceed jurisdiction has “often proved difficult to draw”).
¶ 29       In this case, the appellate court did not discuss the context of Nevius’ failure to render
       a “decision” discharging plaintiff and did not explain why that failure was more than mere


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       error. See Business & Professional People for the Public Interest, 136 Ill. 2d at 245 (“We are
       confident, however, that a reviewing court can make the appropriate distinction between an
       erroneous decision and one which lacks statutory authority.”). The context is important. The
       Employee Appeals Board does not review discharge decisions like an appellate court reviews
       decisions of the circuit court. Instead, the hearing conducted before the Board is a de novo
       proceeding in which evidence is heard and findings are made. See Cook County Municipal
       Code § 44–50. No deference is given to a department head’s decision to discharge an
       employee. The practical importance of having a department head discharge an employee,
       therefore, is that it saves the time and resources of the Board if the employee chooses not to
       appeal. Once the matter is before the Board, however, the absence of a department head’s
       decision has no effect on the proceedings or on the merits of the disciplinary charges before
       the Board. The appellate court did not explain why, in light of these facts, Nevius’ failure to
       render a decision was so fundamental an error as to be deemed jurisdictional.
¶ 30       We need not explore this issue further ourselves. The plain language of the Cook County
       Municipal Code makes it clear that, even if it was error for Nevius to make a
       “recommendation” rather than a “decision” regarding discharge, the Board possessed the
       statutory authority to discharge plaintiff.
¶ 31       Section 44–50 of the Cook County Municipal Code sets forth the procedures for
       disciplinary actions brought against employees. Paragraph (b)(2) of that section states that
               “[n]othing [in] this article shall deprive the Employee Appeals Board of jurisdiction
               to decide the merits of the disciplinary action.” Cook County Municipal Code
               § 44–50(b)(2).
       The “article” referred to is article II, “Personnel Policies,” of chapter 44 of the Cook County
       Municipal Code, the provisions which, among other things, set forth the human resource
       rules and authorize the creation of the Employee Appeals Board. Accordingly, the plain
       language of the Code states that the failure of a party to comply with the human resource
       rules does not deprive the Board of jurisdiction to decide the merits of a disciplinary matter.
       In other words, contrary to the appellate court’s reasoning, Nevius’ failure to render a
       disciplinary “decision” was not fatal to the Employee Appeals Board’s jurisdiction. Notably,
       the appellate court did not mention section 44–50(b)(2) in its opinion.
¶ 32       Plaintiff maintains, however, “that the process of rendering a disciplinary decision by the
       department head or designee is not addressed in § 44–50 of the Code or anywhere in that
       Article of the Code.” Therefore, according to plaintiff, the Forest Preserve District’s “failure
       to render a disciplinary decision for [plaintiff] to appeal to the Board is not covered ‘in this
       Article’ as the language of section 44–50(b)(2) requires.” This is incorrect. The process of
       rendering a disciplinary decision is specifically referenced in section 44–50(b)(1) of the Code
       and, therefore, is covered by the language of section 44–50(b)(2).
¶ 33       The appellate court also concluded that the seven-day hearing held before the members
       of the Employee Appeals Board was void because the Board erroneously applied the civil
       service rules during the hearing. In so holding, the appellate court noted that the civil service
       rules were no longer in effect when the hearing took place. 398 Ill. App. 3d at 326. The
       appellate court also rejected the Board’s conclusion that the matter had been transferred to


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       the Board from the Civil Service Commission. The appellate court explained that only those
       matters that were pending before the Civil Service Commission as of April 5, 2000, were to
       be continued for disposition pursuant to the civil service rules. See Cook County Municipal
       Code § 44–48(c). Because the charges in this case were not brought until 2001, the appellate
       court concluded that the matter did not fall under this provision. Accordingly, the court held
       that “the Employee Appeals Board had no authority to hear or render a decision on the
       District’s written charges pursuant to the repealed civil service rules” and, thus, the hearing
       was void. 398 Ill. App. 3d at 327.
¶ 34       Again, however, section 44–50(b)(2) of the Code makes it clear that even if it was error
       for the Board to proceed under the civil service rules and allow plaintiff to contend that his
       five-year suspension was unlawful under those rules, the Board did not lose jurisdiction.

¶ 35                                          Conclusion
¶ 36       The appellate court erred in holding that the Employee Appeals Board lacked jurisdiction
       to render its decision discharging plaintiff. Accordingly, we reverse the judgment of the
       appellate court and remand this cause to that court to address the issues that were raised by
       plaintiff in his original appeal.

¶ 37      Appellate court judgment reversed;
¶ 38      cause remanded.

¶ 39      JUSTICE THEIS took no part in the consideration or decision of this case.




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