                                Illinois Official Reports

                                        Appellate Court



                 Chamberlain v. Civil Service Comm’n, 2014 IL App (2d) 121251



Appellate Court           HENRY CHAMBERLAIN, Plaintiff-Appellant, v. THE CIVIL
Caption                   SERVICE COMMISSION OF THE VILLAGE OF GURNEE,
                          ILLINOIS; GEORGE ILER, LORI HUBBARTT, and TY BONDS,
                          Commission Members; FRED N. FRIEDL III, Fire Chief of the
                          Village of Gurnee, Illinois; JOHN KAVANAUGH; JAMES
                          GRAMER; and THOMAS DRATHS, Defendants-Appellees (Colleen
                          F. O’Keefe; James Wilson, President of the Gurnee Firefighters Union
                          I.A.F.F. Local 3598; and The Gurnee Firefighters Union I.A.F.F.
                          Local 3598, Defendants).

District & No.            Second District
                          Docket No. 2-12-1251

Filed                     February 19, 2014
Rehearing denied          May 9, 2014

Held                       The trial court properly affirmed the decision of a village civil service
(Note: This syllabus commission to pass over plaintiff for a promotion to the rank of
constitutes no part of the lieutenant in the village fire department, notwithstanding the fact that
opinion of the court but he was the highest-ranking person on the promotion eligibility list,
has been prepared by the since the collective bargaining agreement and the Fire Department
Reporter of Decisions Promotion Act gave the commission the authority to pass over
for the convenience of plaintiff if it concluded that he had demonstrated substantial
the reader.)               shortcomings in work performance or engaged in misconduct
                           affecting the performance of his duties, and in plaintiff’s case, the
                           consideration of hearsay evidence of his shortcomings and misconduct
                           did not violate his right to procedural due process, the finding that
                           such circumstances existed was not against the manifest weight of the
                           evidence, and the decision to pass over him was not clearly erroneous.
     Decision Under           Appeal from the Circuit Court of Lake County, No. 12-MR-818; the
     Review                   Hon. Jorge L. Ortiz, Judge, presiding.
     Judgment                 Affirmed.

     Counsel on               Thomas F. McGuire, of Thomas F. McGuire & Associates, Ltd., of
     Appeal                   Long Grove, for appellant.

                              Terrence T. Creamer and Mark S. Wilkinson, both of Franczek
                              Radelet, P.C., of Chicago, for appellees Civil Service Commission of
                              the Village of Gurnee, Ty Bonds, Lori Hubbartt, and George Iler.

                              Thomas G. Draths and Clare J. Quish, both of Schuyler, Roche &
                              Crisham, P.C., of Chicago, for other appellees.



     Panel                    JUSTICE SPENCE delivered the judgment of the court, with opinion.
                              Presiding Justice Burke and Justice Jorgensen concurred in the
                              judgment and opinion.


                                                OPINION

¶1         Plaintiff, Henry Chamberlain, is a firefighter-paramedic with the Village of Gurnee fire
       department who was passed over for promotion to lieutenant. This was despite the fact that
       plaintiff was the highest-ranking person on the promotion eligibility list for that rank. Pursuant
       to section 20(d) of the Fire Department Promotion Act (Promotion Act) (50 ILCS 742/20(d)
       (West 2010)) and article 18 of the collective bargaining agreement (CBA) between defendants
       Gurnee and the Gurnee Firefighters Union I.A.F.F. Local 3598, defendant Civil Service
       Commission of the Village of Gurnee (Commission) passed over plaintiff after the fire
       department presented evidence regarding alleged work-performance shortcomings and
       incidents of misconduct.
¶2         Plaintiff appealed the decision to the Lake County circuit court, which affirmed the
       decision. For the reasons stated herein, we affirm.

¶3                                          I. BACKGROUND
¶4         Plaintiff has been a firefighter-paramedic with the Gurnee fire department since 1994. In
       May 2010, the Commission, an administrative agency of the Village of Gurnee, established a
       promotion eligibility list for the promotion of firefighters to the rank of lieutenant. The
       promotion list was in effect from May 21, 2010, through May 22, 2012. In the spring of 2012,
       plaintiff was the highest-ranking person on the list and therefore was next in line for a
       promotion. However, in an April 20, 2012, finding and decision by the Commission, plaintiff
                                                  -2-
     was passed over for promotion. Defendant James Gramer, second on the list, was promoted
     instead.
¶5       The Commission derives its authority to pass over a firefighter on the promotion list from
     the CBA, dated May 1, 2011. Article 18 reads, in part:
             “[A]ll promotions made off that list will be made in order of finish on the final list.
             However, the Civil Service Board shall have the right to pass over that person and
             appoint the next highest ranked person on the list if the Board has reason to conclude
             that the highest ranking person has demonstrated substantial shortcomings in work
             performance or has engaged in misconduct affecting the person’s ability to perform the
             duties of the promoted rank since the posting of the promotion list.”
     The language of the CBA tracks the language of section 20(d) of the Promotion Act, which
     reads, in part:
             “[T]he appointing authority shall have the right to pass over that person and appoint the
             next highest ranked person on the list if the appointing authority has reason to conclude
             that the highest ranking person has demonstrated substantial shortcomings in work
             performance or has engaged in misconduct affecting the person’s ability to perform the
             duties of the promoted rank since the posting of the promotion list.” 50 ILCS 742/20(d)
             (West 2010).
     Thus, under provisions of both the CBA and the Promotion Act, the highest-ranking candidate
     on the promotion list is selected for a promotion unless the Commission finds that the
     candidate demonstrated substantial work-performance shortcomings or engaged in misconduct
     affecting his or her ability to perform in the promoted rank. The Commission passed over
     plaintiff pursuant to these provisions.
¶6       The Commission’s investigation into plaintiff’s performance formally began on or about
     March 16, 2012, when defendant Thomas Draths, an attorney representing the Gurnee fire
     department, notified the Commission that plaintiff was the highest-ranking person on the
     promotion list and that the fire department believed that he had demonstrated substantial
     shortcomings in his work performance and/or had engaged in misconduct affecting his ability
     to perform the duties of a lieutenant. The fire department’s notification of charges and
     allegations included a March 6, 2012, transcript of plaintiff’s administrative statement
     regarding four alleged incidents of misconduct (occurring, respectively, on or about January
     23, January 24, January 25, and February 27, 2012) and statements from firefighters and
     paramedics regarding plaintiff’s conduct during three of these incidents. In response to the
     notification, plaintiff’s counsel, Thomas McGuire, wrote to the Commission on March 23,
     2012, to request an evidentiary hearing, asserting that plaintiff had a property interest in having
     his name on the promotion list, thus entitling him to procedural due process, and generally
     asserting that the Commission should not take any action against plaintiff. The Commission
     declined to hold a hearing, but on April 5, 2012, it did notify plaintiff and Draths that it would
     hold a special meeting on April 10, pursuant to its rules and regulations and section 20(d) of the
     Promotion Act (50 ILCS 742/20(d) (West 2010)), to determine whether plaintiff engaged in
     misconduct or demonstrated shortcomings in work performance. Counsel for plaintiff
     responded to the notice with an April 9, 2012, letter, in which he argued, in pertinent part, that
     plaintiff should not be removed from the promotion list–an action that the Commission would
                                                 -3-
       not be taking in any event, since the decision to be made was only whether to pass over
       plaintiff on the list–and that statements provided to the Commission by the fire department
       were inadmissible hearsay.
¶7          The fire department’s notification alleged the following four incidents of misconduct
       and/or substantial work-performance shortcomings, all of which occurred while plaintiff was
       on duty. The first alleged incident was on January 23, 2012, when plaintiff responded to a call
       from a construction site at 401 Hunt Club Road in Gurnee. An injured person had fallen
       approximately 25 to 30 feet. In the presence of the injured person, plaintiff’s coworkers, and
       other Gurnee personnel, plaintiff said, “ ‘Were you the one who was up on the scaffolding that
       said ‘Bears suck’? That’s what you get for being a Packers’ fan.’ ”
¶8          The second alleged incident occurred on January 24, 2012. Plaintiff was on the scene of a
       car accident where the car was on its side with two occupants within. In the presence of
       civilians, plaintiff referred to his coworkers as, “ ‘You idiots! You dumbasses!’ ” In the
       notification, no context was given for the derisive words.
¶9          The third alleged incident occurred on January 25, 2012. While en route to and at Condell
       Medical Center, plaintiff allegedly responded unprofessionally when communicating with a
       nurse who was asking for an abbreviated radio report. Once plaintiff arrived at the hospital, he
       engaged the nurse in confrontational conversation, blocking her egress by standing close to her
       while she was against a wall and, at one point, asking whether she wanted to “ ‘take this
       outside.’ ”
¶ 10        The fourth alleged incident occurred the morning of February 27, 2012. Plaintiff engaged
       in a verbal altercation with a fellow firefighter regarding garbage being mixed with
       recyclables. The exchange was described as less than cordial on plaintiff’s part, with many an
       “F-bomb” being dropped against the coworker.
¶ 11        In plaintiff’s administrative statement, he “[did] not recall exactly what was said at the
       scene” of the incident where a man had fallen from a scaffolding. When asked whether he
       made any comment about the man being a Green Bay Packers fan and his injury thus being his
       just desserts, plaintiff responded, “[m]y recollection of the event, I did not use words in that
       context. *** I do recall trying to make a connection with a patient who was conscious and
       made some inference to the fact that I was a Bears fan, he was a Packer fan.” Plaintiff indicated
       that such a comment would be an ice-breaker when trying to make a connection, such as
       “whether it’s our receding hairlines are similar” or some other “humanality [sic] of exchange.”
       Plaintiff did not recall making a comment about the sign that said “Bears suck.” He did not
       recall saying something like “that’s what you get for being a Packers fan” and did not think that
       it sounded like something he would have said. When asked why his coworkers would report
       that he said something to that effect, plaintiff refused to speculate, offering only that they likely
       did not hear everything or understand the context of his words.
¶ 12        Plaintiff’s coworker, firefighter Lake, was on the scene with plaintiff that day, and on
       January 25 he wrote a note that plaintiff, upon viewing the man lying facedown on the ground,
       in critical condition, said, “ ‘So he fell from the Bears suck scaffolding. That’s what you get for
       being a Packers fan.’ ” Lake found the comment, which was heard and corroborated by three
       other coworkers on the scene, “belittling” and “unprofessional.”

                                                     -4-
¶ 13        Plaintiff’s administrative statement continued with the incident at the scene of the auto
       accident. Plaintiff had responded to the accident, in which a car was turned on its side, resting
       on the median between eastbound and westbound traffic. The occupants were still inside the
       car and could not exit the vehicle. Plaintiff was asked whether he called any of his coworkers
       on the scene “dumbasses or idiots.” Plaintiff responded, “I recall a comment was made loosely
       around that.” Clarifying, plaintiff said he uttered something at coworkers that might have
       included those words, because, upon arriving at the scene, coworkers were trying to get at the
       occupants through the windshield without first stabilizing the car and without using a
       protective blanket for the occupants to protect them from the breaking of the windshield.
¶ 14        Regarding the third incident, with the nurse, plaintiff recollected that he was traveling by
       ambulance with a carjacking victim to the Condell hospital when he communicated with a
       Condell nurse. He was not driving the ambulance. Plaintiff first communicated to the nurse
       that they were transporting a 25-year-old female victim of a carjacking incident. The nurse
       then interrupted him to ask what the woman’s injuries were. He began his report again, and he
       did not remember slowing down his words or repeating anything sarcastically. After arriving at
       the hospital, plaintiff met the nurse face-to-face in the paramedics’ room. He said that she tried
       to explain how she preferred to receive reports, with the major injuries reported first, which he
       said was not consistent with firefighter-report protocol. Plaintiff described their interaction as
       “an exchange, discussion, argument.” Their interaction lasted a few minutes, and “both parties
       felt strongly on their positions, and neither party seemed to be wanting to give at all on their
       [positions].” Plaintiff said that they had a second exchange that lasted about 30 seconds. After
       writing up his report, plaintiff saw his coworker speaking with the nurse, but he did not
       recollect what they were speaking about. Plaintiff believed that at no time did he pin her
       against the wall or “encumber[ ] her in any shape or form.”
¶ 15        However, the nurse painted a different picture of their interaction, as described in a letter
       she wrote regarding the incident. In her letter, she identified herself as the charge nurse who
       answered the radio call from the Gurnee fire department. She said that she needed to request an
       abbreviated report, which she knew was unusual. She knew immediately that plaintiff was
       upset with the request, but she figured she would explain further upon his arrival at the
       emergency room (ER). However, upon meeting plaintiff in the medic report room, she found
       him to be “enraged by [her] very presence,” and he would not allow her to explain herself or
       discuss the situation. She found him intimidating and verbally abusive. Plaintiff approached
       her when she was speaking to his partner, and he asked her, “ ‘Do you want to take this
       outside?’ ” She felt threatened and afraid.
¶ 16        Mike Kulczycki, plaintiff’s coworker that day, wrote a letter on January 28, 2012, relating
       the incident. Kulczycki observed plaintiff and the nurse arguing in the ER, but he kept walking
       to a back room. In the back room he could hear plaintiff, “in a raised voice, belittle the nurse.”
       He wrote that he heard plaintiff cut the nurse off, saying, “ ‘You need to learn your job!’ ” and,
       “ ‘If you are going to be the nurse that answers the phone than [sic] you better learn the
       paramedics job and our protocol!’ ” He described plaintiff’s tone as “raised, angry, and
       condescending.” The nurse “never raised her voice” and kept trying to apologize. When
       Kulczycki went to apologize to the nurse for plaintiff’s behavior, plaintiff stopped and said
       something rude and condescending to the nurse and then left. In the ambulance, plaintiff told
                                                   -5-
       Kulczycki that the argument had begun because the nurse interrupted his radio report twice
       that day and once on a radio report a week prior.
¶ 17       Plaintiff addressed the fourth incident, which involved plaintiff and firefighter Muligano.
       Near the start of their shifts, plaintiff said, Muligano approached him and asked why there were
       recyclables mixed with the garbage. Plaintiff responded by saying, in effect, that if there were
       recyclables in the garbage they were going to stay there. Muligano told plaintiff that he was “an
       advocate for recycling,” and plaintiff answered that, basically, he did not care. Their exchange
       continued with Muligano asking that plaintiff leave the recycling for him in the future, and
       plaintiff then used an expletive to tell Muligano to get out of his face. 1 Plaintiff also said
       something to the effect of, “You should be a shift mate and get up to wash the rigs in the
       morning,” referring to past behavior, and told Muligano that he should clean the kitchen. The
       exchange occurred with another coworker present and a civilian in the vicinity. Plaintiff
       admittedly raised his voice and said something to the effect of, “I’ve got nothing to f***ing say
       to you, go take it up with your lieutenant.” This interaction between Muligano and plaintiff was
       also documented in a letter written by Muligano in which Muligano expressed that he did not
       appreciate plaintiff’s overall treatment of him and that plaintiff was “consistently degrading
       and unprofessional.”
¶ 18       In the Commission’s finding and decision, the Commission specifically referenced only
       two of the alleged incidents of misconduct and/or shortcomings, to wit, the January 23 “Bears
       suck” incident and the January 25 incident involving his interaction with the nurse. In
       rendering its decision, the Commission considered plaintiff’s administrative statement, the fire
       department’s notification of charges and allegations, emails from plaintiff’s counsel, and
       statements from firefighters, paramedics, and the nurse regarding the alleged incidents. On the
       basis of this evidence, the Commission found that “the subject matter of [plaintiff’s] ***
       actions are [sic] directly related to his Firefighter/Paramedic duties,” “[his] acts of misconduct
       are not to be taken lightly,” “[he] failed to uphold the high standards and duties of his office,”
       and, by reason of its conclusions of fact, “[he] has demonstrated a substantial shortcoming in
       performance and misconduct affecting his abilities to perform the duties of a Fire Lieutenant.”
       Accordingly, pursuant to the Commission’s rules and regulations and section 20(d) of the
       Promotions Act (50 ILCS 742/20(d) (West 2010)), the Commission ordered that plaintiff be
       passed over for promotion to the rank of lieutenant. However, the Commission stated that it
       was not removing plaintiff from the promotion list, assuaging plaintiff’s contestation that the
       Commission could not remove him from the list.
¶ 19       On May 18, 2012, plaintiff filed his complaint in the circuit court, seeking review of the
       Commission’s decision. The issue was briefed and the court heard oral argument. On October
       17, 2012, the court entered a final order affirming the Commission’s decision. Plaintiff’s
       complaint was dismissed with prejudice. In reaching its decision, the court found that
       “[m]erely having ones [sic] name on a promotion list does not create the protected property
       right.” Further, because plaintiff did not have a property interest in this case, he was not
       entitled to procedural due process protections, such that the Commission was entitled to
       consider written statements of others regarding plaintiff’s on-the-job behavior, even if they

          1
           Plaintiff admitted using the “F-word.”
                                                    -6-
       would otherwise amount to hearsay. The court found that all that was required of the
       Commission was to find that plaintiff demonstrated substantial shortcomings in his work
       performance or engaged in misconduct affecting his ability to perform the duties of a
       lieutenant, and then to document its reasons for that conclusion. The court found sufficient
       evidence to support the Commission’s decision and that the Commission had documented its
       reasons. Therefore the court affirmed the Commission’s decision.
¶ 20       Plaintiff timely appealed.

¶ 21                                            II. ANALYSIS
¶ 22                                        A. Standard of Review
¶ 23       “When an appeal is taken to the appellate court following entry of judgment by the circuit
       court on administrative review, it is the decision of the administrative agency, not the judgment
       of the circuit court, which is under consideration.” Provena Covenant Medical Center v.
       Department of Revenue, 236 Ill. 2d 368, 386 (2010). The standard of review we apply depends
       on the particular question presented on appeal–whether the question is one of law, one of fact,
       or a mixed question of both. AFM Messenger Service, Inc. v. Department of Employment
       Security, 198 Ill. 2d 380, 390 (2001).
¶ 24       We review de novo the conclusion of an administrative agency on a point of law. Provena
       Covenant Medical Center, 236 Ill. 2d at 387. However, because an administrative agency has
       experience and expertise on the issues it faces, we afford an agency’s construction of law
       substantial weight and deference in recognition that, for ascertaining the legislature’s intent,
       the agency is an informed source, which we would be remiss to ignore. Id. at 387 n.9. If the
       issue is one of fact, we will uphold the agency’s finding unless it runs contrary to the manifest
       weight of the evidence. Id. at 386-87. But when an issue involves the legal effect of a given set
       of facts–“where the historical facts are admitted or established, the rule of law is undisputed,
       and the issue is whether the facts satisfy the statutory standard”–we review this mixed question
       of fact and law under the clearly erroneous standard. Id. at 387.
¶ 25       Plaintiff argues that all issues raised on appeal involve mixed questions of fact and law and
       that thus the clearly erroneous standard applies. However, the central issue before us is
       whether the consideration of hearsay evidence violated plaintiff’s procedural due process
       rights. It is well established in Illinois that the issue of whether a party’s procedural due
       process rights were violated is a legal question, reviewed under the de novo standard. People v.
       Cardona, 2013 IL 114076, ¶ 15; Lyon v. Department of Children & Family Services, 209 Ill.
       2d 264, 271 (2004). We therefore review de novo that issue here. However, we review the
       Commission’s findings of fact under the manifest-weight-of-the-evidence standard and its
       decision predicated upon those findings of fact–applying the law to its findings–under the
       clearly erroneous standard.

¶ 26                    B. Forfeiture of Arguments Against Specified Defendants
¶ 27       Defendants Fred N. Friedl III, John Kavanaugh, James Gramer, and Thomas Draths
       contend that plaintiff has forfeited any argument against them on appeal. They argue that
       plaintiff’s appellate brief is directed solely against the Commission and that he made no

                                                   -7-
       arguments against them before the Commission or the circuit court. Plaintiff admits in his reply
       brief that he “has not made any argument as to the specified Defendants.” However, plaintiff
       named the specified defendants to ensure compliance with section 3-107 of the Code of Civil
       Procedure (Code) (735 ILCS 5/3-107 (West 2012)). This section of the Code requires that, “in
       any action to review any final decision of an administrative agency, the administrative agency
       and all persons, other than the plaintiff, who were parties of record to the proceedings before
       the administrative agency shall be made defendants.” 735 ILCS 5/3-107(a) (West 2012). As
       these specified defendants were named as parties of record before the administrative agency,
       they were properly named by plaintiff on appeal. Furthermore, there were no arguments to
       forfeit against the specified defendants, as plaintiff admits–they were named merely, but
       properly, in compliance with the statute.

¶ 28                                   C. Plaintiff’s Property Interest
¶ 29       Plaintiff argues that the Commission relied upon inadmissible hearsay statements in
       reaching its decision to pass over his name on the promotion list. In making this argument,
       plaintiff assumes much, not the least of which being that he had a protected property interest
       giving rise to the protections of procedural due process.
¶ 30       Before a party is entitled to procedural due process, he must have a protectable liberty or
       property interest. Perry v. Sindermann, 408 U.S. 593, 599 (1972); Chicago Teachers Union,
       Local No. 1 v. Board of Education of the City of Chicago, 2012 IL 112566, ¶ 12 (“ ‘[T]he
       starting point in any procedural due process analysis is a determination of whether one of those
       protectable interests is present, for if there is not, no process is due.’ ” (Internal quotation
       marks omitted.) (quoting Wilson v. Bishop, 82 Ill. 2d 364, 368 (1980))). Therefore, unless
       plaintiff here had a property interest2 with respect to his position on the promotion list, he was
       not entitled to due process at his hearing before the Commission–i.e., he has no basis to
       complain about the Commission’s use of hearsay evidence. See Board of Regents of State
       Colleges v. Roth, 408 U.S. 564, 577 (1972) (“He must, instead, have a legitimate claim of
       entitlement to [have a property interest]. *** It is a purpose of the constitutional right to a
       hearing to provide an opportunity for a person to vindicate those claims.”); Bartlow v.
       Shannon, 399 Ill. App. 3d 560, 571 (2010) (“The due process analysis begins with a
       determination of whether a protectable interest–in life, liberty, or property–exists.”); see also
       Colquitt v. Rich Township High School District No. 227, 298 Ill. App. 3d 856, 865 (1998)
       (admission of hearsay in administrative proceeding can result in denial of procedural due
       process).
¶ 31       Plaintiff spends no time in his initial brief establishing how he had a property interest that
       entitled him to due process. Rather, the issue is raised by defendants in their response briefs. 3
       This does not necessarily mean that the argument is forfeited, however, as Illinois Supreme

          2
           No argument was made regarding a liberty interest, nor would such an argument fit the facts here.

          3
            Two separate response briefs were filed–one by defendants Friedl, Kavanaugh, Gramer, and
       Draths, and one by defendants the Commission, Gurnee, George Iler, Lori Hubbartt, and Ty Bonds.
       Plaintiff filed a separate reply to each response brief.
                                                    -8-
       Court Rule 341(j) (eff. Feb. 6, 2013) “permits appellants to reply to arguments presented in the
       brief of the appellee.” People v. Whitfield, 228 Ill. 2d 502, 514 (2007). Plaintiff does make an
       argument as to the existence of his property interest in his reply briefs, and we will address this
       issue instead of deeming it forfeited.
¶ 32        Defendants argue that, in Illinois, merely placing a public employee’s name on a
       promotion list does not create a property interest requiring due process protections. In support
       they cite Schlicher v. Board of Fire & Police Commissioners, 363 Ill. App. 3d 869 (2006),
       where a police officer claimed that he had a vested right to a promotion based on the board’s
       “historical policy” of promoting the officer ranked first on the list. Id. at 875. However, this
       historical policy was not aligned with the board’s actual policy, i.e., that the board had
       discretion to choose from among the top three candidates–a fact that the board had
       communicated to the plaintiff and that he indicated he understood. Id. The plaintiff “essentially
       presuppose[d] that the Board was obligated to select him for promotion once there was a
       vacancy while his name appeared at the top of the promotion list,” but because the board had
       discretion to choose, his argument that he had a property interest failed. Id. The court cited a
       Seventh Circuit case, Hermes v. Hein, 742 F.2d 350 (7th Cir. 1984), where the plaintiffs
       similarly claimed a property interest in promotion by way of a departmental policy but the
       Hermes court found that there was no evidence that the policy was ever promulgated through
       the department or stated to any of the plaintiffs. Id. at 355. Accordingly, the Hermes court
       found that the plaintiffs had no due process protections because, under the applicable Illinois
       law, there was discretion to choose from among the top three candidates on the list. Id.
¶ 33        Defendants go on to cite many more cases, all in support of their argument that plaintiff
       had no property interest in a promotion. See Moore v. Muncie Police & Fire Merit Comm’n,
       312 F.3d 322, 327 (7th Cir. 2002) (while addressing the issue of a property interest in
       prospective employment, noting in passing that an employee does not have a property interest
       in prospective promotion); Billish v. City of Chicago, 962 F.2d 1269, 1300 (7th Cir. 1992)
       (commission had discretion to choose candidate; insufficient evidence to establish property
       interest in promotion); Petru v. City of Berwyn, 872 F.2d 1359, 1363-65 (7th Cir. 1989)
       (Illinois Municipal Code did not create property interest in promotion for candidate at top of
       promotion list, because the city had no obligation to fill the vacancy at any particular time and
       the fire department was not authorized by the mayor, as required by statute, to hire anyone to
       fill the vacancy); United States v. City of Chicago, 869 F.2d 1033, 1036 (7th Cir. 1989)
       (employee had no property interest in promotion because governing law gave “unfettered
       discretion to choose from among the five highest rated applicants”); Bigby v. City of Chicago,
       766 F.2d 1053, 1056 (7th Cir. 1985) (no property interest in promotion to lieutenant for police
       officers; promotion officials had discretion to choose among highest-rated applicants);
       Sundstrom v. Village of Arlington Heights, 826 F. Supp. 1143, 1148-49 (N.D. Ill. 1993)
       (plaintiff had no property interest in promotion because commission had discretion under
       Illinois statute to choose from among top three candidates on the promotion list); Brunke v.
       Board of Fire & Police Commissioners, 99 Ill. App. 3d 25, 28 (1981) (no property interest in
       promotion, because board had discretion to choose between two candidates); McCoy v. Board
       of Fire & Police Commissioners, 79 Ill. App. 3d 742, 744 (1979) (no property interest in
       promotion; promotion was matter of discretion).
                                                    -9-
¶ 34        These cases repeat the same general proposition over and over: when the promoting
       authority has discretion to choose among candidates on a promotion list, an employee does not
       have a property interest in a prospective promotion by virtue of his or her name being on that
       list. This reasoning makes sense, given that it would be inconsistent with the expressed limits
       of due process protections to grant property interests to those who have no concrete claim of
       entitlement to a promotion but are instead at the mercy of an authority’s discretion. See, e.g.,
       Roth, 408 U.S. at 577 (To have a property interest, “[h]e must have more than a unilateral
       expectation of it. He must, instead, have a legitimate claim of entitlement to it.”); Suburban
       Downs, Inc. v. Illinois Racing Board, 316 Ill. App. 3d 404, 413 (2000) (property interest
       requires legitimate claim of entitlement, which can arise from statute, regulation, municipal
       ordinance, or express or implied contract).
¶ 35        Defendants argue that plaintiff had no property interest in a promotion, because the
       Commission had discretion to pass over him if it found that he demonstrated substantial
       shortcomings in his work performance or engaged in misconduct affecting his ability to
       perform the duties of a lieutenant. However, the discretion present in the cases that defendants
       cite does not exist here. In the cases that defendants cite, the board or commission had direct
       statutory authority to select from among top candidates on a promotion list; no such unfettered
       discretion exists in this case. Section 20(d) of the Promotion Act (50 ILCS 742/20(d) (West
       2010)) reads:
                “Whenever a promotional rank is created or becomes vacant *** the appointing
                authority shall appoint to that position the person with the highest ranking on the final
                promotion list for that rank, except that the appointing authority shall have the right to
                pass over that person and appoint the next highest ranked person on the list if the
                appointing authority has reason to conclude that the highest ranking person has
                demonstrated substantial shortcomings in work performance or has engaged in
                misconduct affecting the person’s ability to perform the duties of the promoted rank
                since the posting of the promotion list.”
       Under the Promotion Act, the Commission shall appoint the highest-ranking person on the
       promotion list–not choose one from among the top three or so–unless it has reason to conclude
       that it should pass over that person due to substantial work-performance shortcomings or
       misconduct. Therefore, the issue of plaintiff’s property interest is not so simple: unlike in the
       cases that defendants cite, the Commission’s discretion here is not whether to promote plaintiff
       from among a group of eligible candidates but whether there is sufficient reason to take away
       his statutory expectation of a promotion. In other words, the discretion here is whether to deny
       a promotion, not to grant one.
¶ 36        Framed this way, we find that plaintiff did have a protectable property interest in a
       promotion, and was thus entitled to due process, for the following reasons. Whether a property
       interest is protectable under the fourteenth amendment to the United States Constitution is
       ultimately a question of federal constitutional law, but the resolution of federal law begins with
       what protectable interest, if any, state law provides. Chicago Teachers Union, Local No. 1,
       2012 IL 112566, ¶ 13. A property interest can be created by state statute but also by contract or
       through a mutually explicit understanding. Hermes, 742 F.2d at 354-55. Therefore, our
       analysis must begin with: (1) whether an interest in a promotion can be a property interest, and
                                                   - 10 -
       if so, (2) whether plaintiff had a “legitimate claim of entitlement” to the promotion. See Hill v.
       Walker, 241 Ill. 2d 479, 485 (2011) (“Procedural due process protections are triggered only
       when a constitutionally protected liberty or property interest is at stake, to which a person has a
       legitimate claim of entitlement.”).
¶ 37        First, an interest in a promotion can be a protectable property interest. “State law can create
       a property interest in employment,” and an interest in a promotion is an interest in
       employment. Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 106 (1990); see also
       Hermes, 742 F.2d at 354-55 (“A property interest in promotion need not arise out of a contract
       or statute, but may be based on a de facto promotional program.” (Emphasis added.)).
       Moreover, the United States Supreme Court has “made clear that rights to public employment
       or promotion in a public service system, enforceable under the due process clause of the
       Fourteenth Amendment, exist” but “only to the extent accorded through statutes or regulations
       or both, by the public service system in question.” Koscherak v. Schmeller, 363 F. Supp. 932,
       934 (S.D.N.Y. 1973), aff’d, 415 U.S. 943 (1974). Therefore, plaintiff’s claim to a property
       interest in his promotion turns on whether he had a legitimate claim of entitlement to the
       promotion. E.g., Walker, 241 Ill. 2d at 485.
¶ 38        We hold that plaintiff did have a legitimate claim of entitlement to the promotion to
       lieutenant. Although defendants present a litany of cases purportedly standing for the
       proposition that plaintiff did not have a protectable property interest in the promotion, none of
       the cases are on point. Every case cited deals with a commission or a board having discretion to
       choose from among multiple eligible candidates for promotion–a situation presented when
       section 10-1-13 of the Civil Service in Cities Act (65 ILCS 5/10-1-13 (West 2010)) is the
       controlling statute. See, e.g., Moller v. Civil Service Comm’n, 326 Ill. App. 3d 660, 664-65
       (2001) (citing City of Chicago, 869 F.2d at 1038). Here, though, section 10-1-13 is not the only
       statute in play; section 20(d) of the Promotion Act also applies. As a basic matter of statutory
       construction, and of common sense, the more specific and particular statute will control over
       the more general statute addressing the same issue, especially if the specific statute was
       enacted after the general statute. Bowes v. City of Chicago, 3 Ill. 2d 175, 205 (1954). Section
       10-1-13 addresses civil service promotions in general; section 20(d) of the Promotion Act
       specifically addresses promotions at fire departments. Under section 20(d) of the Promotion
       Act, the language of which is mirrored in the CBA, “the appointing authority shall appoint ***
       the person with the highest ranking on the final promotion list for that rank,” unless the
       candidate has demonstrated substantial work-performance shortcomings or engaged in
       misconduct. (Emphasis added.) 50 ILCS 742/20(d) (West 2010).
¶ 39        We do not read section 20(d)’s provision of limited discretion to pass over the
       highest-ranking candidate as the type of discretion that would defeat a claim to a protectable
       property interest. Rather, we read the statute as creating a legitimate claim of entitlement for
       the highest-ranking candidate to the next available promotion, with discretion to pass over that
       candidate under certain, specified circumstances. That the statute provides limited discretion to
       pass over the highest-ranking candidate does not defeat this legitimate claim of entitlement.
       The limited discretion is a prudent articulation of when and why a promoting authority may
       pass over a candidate. The limited discretion does not equate to discretion to choose who will
       receive the next promotion, which would imply that no candidate had a legitimate expectation
                                                    - 11 -
       of promotion; rather, it is discretion that the promoting authority may exercise to bypass a
       candidate’s statutory legitimate expectation of and entitlement to promotion.
¶ 40       Therefore, the Commission might have acted properly in choosing to pass over plaintiff by
       finding that he demonstrated substantial work-performance shortcomings and/or misconduct
       affecting his ability to perform the duties of a lieutenant, but it owed him procedural due
       process in making its determination. See Paskvan v. City of Cleveland Civil Service Comm’n,
       946 F.2d 1233, 1235-36 (6th Cir. 1991) (although city had discretion regarding promotion,
       plaintiff alleged sufficient facts to make procedural due process claim by arguing that city had
       waived its discretion through its practices); Charles v. Baesler, 910 F.2d 1349, 1352 (6th Cir.
       1990) (procedural due process protections for man with contractual interest in promotion);
       Moore v. Ware, 2001-3341, at 12 (La. 2/25/03); 839 So. 2d 940 (police officer who had
       obtained permanent status and was senior officer on promotion list had a property interest in
       the promotion, of which he could not be deprived absent due process); City of Riviera Beach v.
       Fitzgerald, 492 So. 2d 1382, 1385 (Fla. Dist. Ct. App. 1986) (only candidate on promotion list
       for captain had reasonable expectation of promotion so as to invoke procedural due process
       protections); see also Malcan v. Hall, 812 F.2d 1401 (4th Cir. 1987) (per curiam) (plaintiff
       could have produced evidence of promotion and tenure entitlement that would have amounted
       to a property interest for due process purposes); cf. Honulik v. Town of Greenwich, 980 A.2d
       880, 895 (Conn. 2009) (“In order to prevail, the plaintiff was required to establish that
       provisions of the town charter, pay plan, policy manual or the agreement created an entitlement
       that the highest ranked candidate automatically be promoted to police captain. *** [P]laintff
       has failed to do so.”).4 We must next determine what process plaintiff was due.

¶ 41                              D. Consideration of Hearsay Evidence
¶ 42       The specific violation of due process that plaintiff asserts is the admission of hearsay
       evidence against him, and we thus confine our analysis to whether the use of this evidence
       violated procedural due process.5 First, we review whether the statements of which plaintiff
       complains–the statements made by anyone but plaintiff himself–were hearsay at all.
¶ 43       Although we generally review evidentiary rulings for an abuse of discretion (see People v.
       Connolly, 406 Ill. App. 3d 1022, 1026 (2011)), here the Commission did not rule on whether
       the statements of which plaintiff complains were hearsay. Therefore, we cannot logically give
       deference to a ruling that the Commission did not make.
¶ 44       Defendants offer several reasons why the statements either were not hearsay or fell under a
       hearsay exception. They argue that the statements were not hearsay, because they were
       considered for the effect they had on the Commission. Defendants seem to confuse a statement
       offered for its effect on a listener with a statement offered for its truth before a tribunal, the
       former being a category of nonhearsay and the latter not. See People v. Dunmore, 389 Ill. App.

           4
            Recognizing the paucity of Illinois cases on point, we cite these cases from other jurisdictions for
       their similar rationales.

           Additional potential procedural due process issues, such as whether the Commission’s “special
           5

       meeting” provided for a meaningful opportunity to be heard, we leave for another day.
                                                      - 12 -
       3d 1095, 1106 (2009). Defendants also argue that the statements fall under the “then existing
       state of mind” exception to hearsay. Ill. R. Evid. 803(3) (eff. Apr. 26, 2012). This argument
       again misses the mark, as the statements reported what plaintiff said or did, and the hearsay
       exception applies to statements about the declarant’s state of mind, emotion, physical
       condition, or sensation. Id. Defendants next argue that the statements were not offered for their
       truth but, rather, were offered for another purpose: namely, to show plaintiff’s
       work-performance shortcomings and/or misconduct demonstrating that he was not fit for
       promotion to lieutenant. This argument’s persuasive hold is gossamer at best. Without being
       offered for their truth the statements would have little value for showing that plaintiff
       demonstrated substantial work-performance shortcomings or misconduct. The truth of the
       statements and the purpose of showing that plaintiff should be passed over for promotion are
       inexorably linked.
¶ 45        Plaintiff’s declarations, as reported by the statements, were admissions and thus were not
       hearsay. Ill. R. Evid. 801(d)(2) (eff. Jan. 1, 2011) (admissions are not hearsay). However, the
       statements themselves, made outside of any proceeding before the Commission, were hearsay,
       i.e., out-of-court statements offered to prove the truth of the matter asserted, and no hearsay
       exception applies. Plaintiff alludes to this issue in his reply brief by asking, rhetorically, “How
       do we know if the name of the person on the Statement is truly the person who wrote it? Under
       what conditions? Were the contents of the Statements truly what occurred, or what was
       suggested to the writers as having occurred?” The fear that plaintiff expresses is, succinctly,
       the danger of hearsay. See People v. Carpenter, 28 Ill. 2d 116, 121 (1963) (“The fundamental
       purpose of the hearsay rule was and is to test the real value of testimony by exposing the source
       of the assertion to cross-examination by the party against whom it is offered.”).
¶ 46        Because the Commission did in fact consider hearsay evidence, we must determine
       whether such consideration violated due process. “[A]n administrative proceeding is governed
       by the fundamental principles and requirements of due process of law. However, due process is
       a flexible concept and requires only such procedural protections as fundamental principles of
       justice and the particular situation demand.” Abrahamson v. Illinois Department of
       Professional Regulation, 153 Ill. 2d 76, 92 (1992). “Although due process envisions an orderly
       proceeding wherein notice and an opportunity to be heard are afforded, procedural due process
       in an administrative setting does not always require application of the judicial model.” Colquitt
       v. Rich Township High School District No. 227, 298 Ill. App. 3d 856, 860-61 (1998); see also
       Petersen v. Plan Comm’n, 302 Ill. App. 3d 461, 466 (1998) (due process in administrative
       proceeding does not require a judicial proceeding; it is satisfied by a procedure proper to the
       nature of the determination to be made). The procedural safeguards required vary with the
       circumstances of the case, “depending on (1) the significance of the private interest which will
       be affected, (2) the risk of the erroneous deprivation of that interest through the procedures
       used, and (3) the significance of fiscal and administrative burdens that the additional or
       substitute procedural safeguards would entail.” Colquitt, 298 Ill. App. 3d at 861. Various cases
       have held that due process in an administrative proceeding requires “the opportunity to be
       heard, the right to cross-examine adverse witnesses, and impartial rulings on the evidence.”
       (Emphasis added.) Sindermann v. Civil Service Comm’n, 275 Ill. App. 3d 917, 923 (1995); see
       also Abrahamson, 153 Ill. 2d at 95; Bartlow v. Shannon, 399 Ill. App. 3d 560, 570 (2010) (due
                                                   - 13 -
       process requires notice and an opportunity to be heard, as well as the right to cross-examine
       adverse witnesses). However, cross-examination–and, impliedly, a prohibition of hearsay–is
       not always required by due process. At the core of due process is notice and a meaningful
       opportunity to be heard. See Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792, 799
       (2002); In re Estate of Gustafson, 268 Ill. App. 3d 404, 409 (1994); see also People ex rel.
       Klaeren v. Village of Lisle, 202 Ill. 2d 164, 185 (2002) (right to cross-examine was not absolute
       in quasi-judicial proceeding); Brown v. City of Detroit, 259 F. Supp. 2d 611, 620 n.7 (E.D.
       Mich. 2003) (recognizing that no court has squarely addressed what process is due when
       plaintiff is denied a promotion, and finding due process met because the CBA, which was
       followed, provided for grievances and arbitration).
¶ 47       Generally, procedural due process protections preclude the admission of hearsay evidence
       in an administrative proceeding. Magnus v. Department of Professional Regulation, 359 Ill.
       App. 3d 773, 791 (2005) (citing Abrahamson, 153 Ill. 2d at 94); Sudzus v. Department of
       Employment Security, 393 Ill. App. 3d 814, 828 (2009). However, “where there is sufficient
       competent evidence to support an administrative decision, the improper admission of hearsay
       testimony in the administrative proceeding is not prejudicial error.” Magnus, 359 Ill. App. 3d
       at 791; see also Sudzus, 393 Ill. App. 3d at 828. Moreover, administrative agencies are not
       bound by the strict rules of evidence that apply in a judicial proceeding. MJ Ontario, Inc. v.
       Daley, 371 Ill. App. 3d 140, 149 (2007). This is because procedural due process is flexible, and
       the process due depends on multiple factors. Stratton v. Wenona Community Unit District No.
       1, 133 Ill. 2d 413, 433 (1990). We must ask whether the consideration of hearsay evidence
       deprived plaintiff of a meaningful hearing, taking into consideration (1) the significance of the
       private property interest, (2) the risk of erroneous deprivation of that interest under the
       procedures used, and (3) the practical burdens of providing more or substitute process, e.g.,
       how much time and money should be spent on the process. See Mathews v. Eldridge, 424 U.S.
       319, 335 (1976).
¶ 48       In a letter from the Commission’s attorney, defendant Colleen O’Keefe, to McGuire,
       O’Keefe relayed that the Commission would convene a special meeting on April 10, 2012, the
       purpose of which was to determine whether plaintiff had engaged in misconduct or
       demonstrated substantial work-performance shortcomings. The meeting was to be convened
       pursuant to Rule 6 of Gurnee’s civil service rules and regulations, which stated that procedures
       regarding promotion were governed by the CBA. The letter also advised McGuire that the
       Commission would not hold an evidentiary hearing and stated, “The Commission has
       determined that neither its Rules or Regulations, the Village of Gurnee and IAFF Agreement
       nor the Illinois Fire Department Promotion Act provide for an evidentiary hearing prior to the
       Commission making its determination.” The letter then invited McGuire to present any
       “statutory or case law that provides for the contrary.” The Commission’s finding and decision
       reiterated the salient substance of the letter: that the special meeting would take place
       according to the Commission’s rules and the CBA, and that there would be no evidentiary
       hearing held.
¶ 49       As the record does not include Gurnee’s rules and regulations, or the pertinent portion of
       the CBA, we cannot say with certainty whether the Commission followed the proper
       procedures in conducting the special meeting. However, plaintiff made no objection on the
                                                  - 14 -
       record to O’Keefe’s letter and raises no argument against the procedures used (other than
       objecting generally to the Commission’s consideration of hearsay evidence). Any doubts that
       arise from the incompleteness of the record are resolved against the appellant. Corral v. Mervis
       Industries, Inc., 217 Ill. 2d 144, 157 (2005). Therefore, we presume, for purposes of this
       opinion, that the Commission followed all its relevant rules and regulations in reaching its
       decision. See Provena Health v. Illinois Health Facilities Planning Board, 382 Ill. App. 3d 34,
       42 (2008) (“Generally, administrative agencies are bound to follow their own rules as written
       ***.”); McElroy v. Cook County, 281 Ill. App. 3d 1038, 1042 (1996) (agency violated its own
       procedures and therefore violated plaintiff’s right to procedural due process); Perez v. United
       States, 850 F. Supp. 1354, 1365 (N.D. Ill. 1994) (“The failure of an agency to follow its
       established procedures or regulations can constitute a denial of procedural due process.”). But
       see Ertl v. City of De Kalb, 303 Ill. App. 3d 524, 530 (1999) (an administrative agency’s failure
       to follow its own rules is not actionable unless the failure prejudices the plaintiff).
¶ 50       Operating under the assumption that the consideration of hearsay was permitted by the
       Commission’s rules and regulations in this case, we weigh the three factors set forth by the
       United States Supreme Court and the Illinois Supreme Court to determine whether the
       consideration of hearsay violated due process. See Lyon v. Department of Children & Family
       Services, 209 Ill. 2d 264, 277 (2004) (setting forth the three factors to consider when
       evaluating a procedural due process claim); Colquitt, 298 Ill. App. 3d at 861 (factors are: “(1)
       the significance of the private interest which will be affected, (2) the risk of the erroneous
       deprivation of that interest through the procedures used, and (3) the significance of fiscal and
       administrative burdens that the additional or substitute procedural safeguards would entail.”).
       We conclude that the Commission’s consideration of hearsay did not violate due process.
¶ 51       First of all, regarding the nature of the private interest: plaintiff’s property interest is in a
       prospective promotion. As we found, the Promotion Act created a legitimate expectation of a
       promotion. However, an interest in a prospective promotion is not the same as an interest in
       continued employment, or even an interest in maintaining the rank currently possessed (and
       the pay to which one has become accustomed), such as in the event of a demotion. Compare 65
       ILCS 5/10-2.1-17 (West 2010) (providing a hearing for discharged firefighters and police
       officers), with 65 ILCS 5/10-2.1-15 (West 2010) (no mention of a hearing for firefighters and
       police officers passed over for promotion), and 50 ILCS 742/20(d) (West 2010) (no mention of
       a hearing for firefighter passed over based on misconduct or work-performance shortcomings;
       requiring only documentation of reasons). Moreover, plaintiff was not being removed from the
       promotion list; he was only being passed over for this specific promotion, and his name would
       remain on the list until the list would naturally expire. In fact, the novelty of this
       situation–finding a property interest in a prospective promotion for purposes of procedural due
       process–is in itself evidence of the lack of a strong private interest in a prospective promotion.
       Therefore, the nature of plaintiff’s protectable property interest does not weigh in favor of
       more protection under due process.6

           6
            Some courts have treated the first factor as asking only whether there was a protectable private
       interest. See, e.g., Consiglio v. Department of Financial & Professional Regulation, 2013 IL App (1st)
       121142, ¶ 19 (“Under the first factor, a professional license constitutes a property interest.”). However,
                                                      - 15 -
¶ 52       Secondly, we consider the risk of the erroneous deprivation of plaintiff’s interest through
       the procedures used. We note that this decision was rendered not by a jury but rather by a
       professional fact-finding committee tasked with deciding particular cases within its specific
       administrative purview. Plaintiff was represented by counsel. In his administrative statement,
       he was able to address the accusations against him and provide denials, explanations, or
       clarifications. The Commission considered written statements not only from plaintiff’s
       coworkers but from others involved in the alleged incidents, including the nurse from the
       Condell hospital. In theory, plaintiff could have had others submit written statements on his
       behalf; we know of no reason why he could not have (again, we do not have a complete record
       as to the Commission’s rules and regulations, an incompleteness we resolve against plaintiff).
       Although there is risk of error in admitting hearsay evidence, the risk here is neither
       monumental nor unacceptable. The Commission specializes in adjudicating the affairs of fire
       department employees, may assess the credibility of statements in light of the totality of
       evidence, and may consider evidence from various sources, adverse or friendly. This factor
       does not help plaintiff.
¶ 53       Finally, we consider the government’s interest, that is, the practical burdens of providing
       more or substitute process. In order to eliminate the use of hearsay evidence, the Commission
       would have to create a process tantamount to a judicial trial at which witnesses could be
       cross-examined. Scheduling could be problematic, as it could entail calling in a large number
       of fire department personnel on a particular date. Scheduling a trial as opposed to relying on
       documentary evidence would invariably delay the decision. Moreover, costs would increase,
       not the least of which being lawyers’ fees, in a more protracted litigation. It clearly would serve
       the government’s interest in efficiency–as to both time and money–to continue to execute the
       procedures that the Commission currently has in place, including the consideration of hearsay.
¶ 54       Weighing all these factors–the relatively weak private interest, the marginal risk of error in
       decision-making, and the clear government interest in efficiency–we conclude that the
       Commission’s consideration of hearsay evidence, in the form of written statements, against
       plaintiff was not a violation of procedural due process.

¶ 55                            E. The Commission’s Finding and Decision
¶ 56        Plaintiff also argues that, even with the hearsay evidence before the Commission, it was
       not established that he demonstrated substantial work-performance shortcomings or engaged
       in misconduct. Plaintiff analogizes his situation to that of the plaintiff in Hale v. Hellstrom, 101
       Ill. App. 3d 1127 (1981). However, Hale concerned a police officer who was suspended for
       violating a department rule and we held that, as his violation was not intentional, it did not


       the three-factor test guides courts in assessing how much process is due in a given situation, which
       logically already presumes that there is a protectable interest for purposes of procedural due process. If
       there were no protectable interest, property or otherwise, the amount of process due would be known
       with certainty: none. Therefore, we apply the first factor by considering the nature of the interest on a
       continuum–some interests being so important that they require the most stringent procedural safeguards
       against deprivation, and some of lesser consequence such that their loss does not readily invoke grand
       condemnations such as “miscarriage of justice.”
                                                      - 16 -
       justify that suspension. Id. at 1130-31. Plaintiff essentially tries to compare apples to oranges:
       the Hale case dealt with a police rule and whether the plaintiff’s violation justified his
       suspension; here, we address the Promotion Act and whether the evidence of plaintiff’s actions
       supported his being passed over for a promotion.
¶ 57       The issue is whether under the Promotion Act the Commission’s finding, that plaintiff
       demonstrated substantial work-performance shortcomings and/or misconduct affecting his
       ability to perform the duties of a lieutenant, was against the manifest weight of the evidence.
       See Provena Covenant Medical Center, 236 Ill. 2d at 386-87. We hold that it was not. There
       was evidence before the Commission detailing that plaintiff: (1) in the presence of coworkers
       and others, including an injured man to whom he was to attend, stated “So he fell from the
       Bears suck scaffolding. That’s what you get for being a Packers fan.”; (2) became frustrated
       and verbally aggressive with a nurse, intimidating her, making her feel uncomfortable, and
       asking her if she wanted to take their argument “outside”; and (3) had a less than cordial
       conversation with a coworker regarding the recycling, getting upset and using curse words in
       range of civilians and other coworkers, an incident that the Commission did not consider but
       that would have supported its finding. This evidence did not come solely from others’
       statements but was also derived from and corroborated by plaintiff’s administrative statement.
¶ 58       Alone, none of these incidents is overly alarming. Bad behavior has different levels, and
       plaintiff’s might not have risen to a level warranting disciplinary action, but it was not
       unreasonable for the Commission to not reward such behavior with a promotion. In a civil
       service position as important as that of firefighter-paramedic, where life and limb are often at
       stake, we will not second-guess the Commission’s adherence to a high standard of
       professionalism within the fire department or bemoan plaintiff’s lost opportunity for a
       promotion. The Promotion Act, allowing the Commission to pass over plaintiff for
       misconduct, recognizes another important interest: the interest of the public in having
       dependable and professional officers in its civil service positions. The Commission found the
       incidents to amount to substantial work-performance shortcomings and misconduct affecting
       plaintiff’s ability to perform the duties of a lieutenant, and it documented its reasons for this
       determination. As that finding was not against the manifest weight of the evidence, its decision
       to pass over plaintiff for a promotion was not clearly erroneous.

¶ 59                                       III. CONCLUSION
¶ 60       For the reasons stated, we affirm the judgment of the Lake County circuit court affirming
       the Commission’s decision to pass over plaintiff for a promotion to the rank of lieutenant in the
       Gurnee fire department.

¶ 61      Affirmed.




                                                   - 17 -
