                                     2018 IL App (1st) 173084

                                           No. 1-17-3084

                                  Opinion filed September 28, 2018 

                                                                                 Second Division
_____________________________________________________________________________



                                              IN THE

                                 APPELLATE COURT OF ILLINOIS

                                         FIRST DISTRICT

______________________________________________________________________________
                                                              )   Appeal from the
VESSELIN APOSTOLOV,                                           )   Circuit Court of
                                                              )   Cook County.
          Plaintiff-Appellant,                                )
                                                              )
     v.                                                       )   No. 17 CH 2200
                                                              )
EDDIE T. JOHNSON, Superintendent of the Police of the         )
City of Chicago, and THE CITY OF CHICAGO,                     )   Honorable
                                                              )   Anna Helen Demacopoulos,
          Defendants-Appellees.                               )   Judge, presiding.




          JUSTICE HYMAN delivered the judgment of the court, with opinion.
          Presiding Justice Mason and Justice Pucinski concurred in the judgment and opinion.

                                             OPINION

¶1        The Chicago Police Department’s standards deem ineligible an applicant for the position

of police officer who “engaged in criminal conduct.” At issue is whether bad decisions, some 20

years ago when plaintiff, Vesselin Apostolov, was 14-years-old, should cost him an opportunity

of ever becoming a Chicago police officer, despite an exemplary record since then.

¶2        Although the Human Resources Board of the City of Chicago (Board) reinstated

Apostolov to the eligibility list, Eddie Johnson, the Superintendent of the Police of the City of
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Chicago (Superintendent), and the City of Chicago filed a petition for common law writ of

certiorari asking the trial court to review the Board’s decision. The trial court reversed, finding

the Board’s decision “clearly erroneous.”

¶3     Apostolov appeals, arguing (i) juvenile criminal conduct is not disqualifying under the

Chicago Police Department (CPD) standard at issue and (ii) the Board’s decision to reinstate him

to the eligibility list was not against the manifest weight of the evidence. We affirm. The CPD

standard does not distinguish between juvenile and adult criminal conduct, so the Board’s

decision to reinstate Apostolov was clearly erroneous.

¶4                                      BACKGROUND

¶5     In 2014, Apostolov applied for a position as a probationary police officer with the CPD.

In the personal history section of his application, Apostolov admitted that when he was 14 years

old, he was adjudicated delinquent after pleading guilty for his involvement in several burglaries

and thefts between June and September 1996. Apostolov stated that he and some friends broke

into several semitrailers at Champion Recycling and Moran Transportation Company and took

some Nerf guns. A few months after that, they entered Pepsi Company property and took five

cases of soda, which they left near a fence, but took “points” from the cases. They returned to

Pepsi Company twice, once taking fuel keys and tractor keys, and days later broke into several

trucks, taking vending machine keys.

¶6     Elk Grove Village police charged Apostolov with two counts of burglary and three

counts of theft. According to the police report, this was Apostolov’s first arrest and his parents

reported no behavioral problems, but he was referred to juvenile court based on the “numerous

offenses and the extent of the damage done.” Apostolov pled guilty, was adjudicated delinquent,

ordered to pay $1000 in restitution, and sentenced to 30 hours of public service and one year of

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probation. Apostolov claimed that he pled guilty because he was present when the burglaries

occurred, but he denied personally taking anything.

¶7     The CPD maintains “Pre-Employment Disqualification Standards for Applicants for the

Position of Police Officer.” The relevant subsection, special order 14-01, titled “Disqualification

Based on Criminal Conduct” provides

       “[a]n applicant will be disqualified from consideration for a police officer position if

       there is evidence that the applicant has engaged in criminal conduct, even if the applicant

       was never convicted of any criminal offense. It is the conduct itself, not the fact that the

       applicant was convicted, that makes the applicant unsuitable for employment. *** A

       record of conviction or an admission will be prima facie evidence that the applicant

       engaged in criminal conduct.”

¶8     Based on special order 14-01 and a background check, in which the CPD obtained the

Elk Grove Village police report, the investigator recommended that Apostolov be disqualified

for the position of probationary police officer based on his criminal conduct. The CPD accepted

the recommendation and asked the Department of Human Resources (Department) to remove

Apostolov from the list of eligible candidates.

¶9     The Department notified Apostolov of his removal and that he could challenge the

removal by requesting a hearing before the Board, which he did.

¶ 10   At the hearing, the investigator testified that she recommended Apostolov’s

disqualification. She reviewed the Elk Grove Village police report and noted Apostolov’s

admitted involvement in the burglaries and thefts between June and September 1996. She

concluded that Apostolov had committed criminal acts of theft and burglary, which disqualified

him under special order 14-01.

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¶ 11   Apostolov testified he was a 14-year-old high school freshman at the time of the thefts

and burglaries. At age 10, he had immigrated from Bulgaria and wanted to “fit in with the cool

kids.” He and two friends started hanging out by the railroad tracks in an industrial park in Elk

Grove Village. They illegally entered property of Moran Transportation Company, Champion

Recycling, and Pepsi Company and committed acts of burglary, theft, and vandalism. The crimes

were “a stupid mistake.” Since then he has not committed any burglaries or thefts and believes

the experience “would definitely be a benefit for a police officer.” Apostolov submitted seven

character letters as evidence and called five character witnesses.

¶ 12   The hearing officer submitted a report to the Board recommending it uphold Apostolov’s

removal from the eligibility list, stating that “applicant’s repeated involvement in these activities

along with his guilty plea to the resulting criminal charges is a clear violation of the Pre-

Employment Disqualification Standards.”

¶ 13   After reviewing the hearing officer’s report and hearing transcript, the Board rescinded

the CPD’s decision and reinstated Apostolov to the eligibility list. The Board acknowledged that

the CPD “proved by a preponderance of evidence” that between June and September 1996,

Apostolov and two friends committed acts of burglary, theft, and vandalism, which resulted in a

guilty plea. But, the Board noted that at the time of his arrest, Apostolov was 14 years old, and

“[a]lthough the wrong doing was serious, [his] youth and the fact that he has a clean record for

the 20 year period since 1996 must be considered.” The Board concluded that Apostolov’s

“action[s] and activities after the 1996 incident” indicate he “learned from the 1996 incident and

is well-qualified for the position of Probationary Police Officer.”

¶ 14   The Superintendent petitioned for a common law writ of certiorari, seeking reversal of

the Board’s decision. The Superintendent argued Apostolov’s admitted and repeated criminal

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acts disqualified him as a candidate under special order 14-01. The trial court agreed, reversing

the Board’s decision, which it found “clearly erroneous.”

¶ 15                                       ANALYSIS

¶ 16                                   Standard of Review

¶ 17   A common law writ of certiorari is a general method for obtaining circuit court review of

administrative actions when the act conferring power on the agency does not expressly adopt the

Administrative Review Law and provides for no other form of review. Hanrahan v. Williams,

174 Ill. 2d 268, 272 (1996). The standards of review under a common law writ of certiorari

basically mirror those under the Administrative Review Law. Id. We review the administrative

agency’s determination, not that of the trial court. See Burris v. Department of Children &

Family Services, 2011 IL App (1st) 101364, ¶ 30. The findings and conclusions of the

administrative agency on questions of fact shall be held to be prima facie true and correct.

Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill.2d 200, 210 (2008). We

neither reweigh the evidence nor make an independent determination of the facts. Kouzoukas v.

Retirement Board of the Policemen’s Annuity & Benefit Fund, 234 Ill. 2d 446, 463 (2009).

¶ 18   The applicable standard of review depends on whether we must decide questions of fact,

questions of law, or a mixed question of fact and law. Cinkus, 228 Ill. 2d at 210 (citing American

Federation of State, County & Municipal Employees, Council 31 v. Illinois State Labor Relations

Board, State Panel, 216 Ill. 2d 569, 577 (2005)). Questions of law are reviewed de novo, while

questions of fact are subject to a manifest weight of the evidence standard of review. Beggs v.

Board of Education of Murphysboro Community Unit School District No. 186, 2016 IL 120236,

¶ 50. Mixed questions of law and fact are subject to a clearly erroneous standard. A mixed

question of law and fact examines “the legal effect of a given set of facts” or, stated another way,

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whether uncontested facts satisfy the statutory standard. Comprehensive Community Solutions,

Inc. v. Rockford School District No. 205, 216 Ill. 2d 455, 472 (2005).

¶ 19   We agree with the Superintendent that application of special order 14-01 to juvenile

criminal conduct presents a question of law subject to de novo review, while its specific

application to Apostolov’s conduct is a mixed question of law and fact, subject to a clearly

erroneous standard of review. Apostolov asks us to apply a manifest weight of the evidence

standard, but the question of whether Apostolov’s 1996 juvenile conviction justifies his

disqualification turns on an interpretation of special order 14-01, which is a question of law. See

Burris, 2011 IL App (1st) 101364, ¶ 30 (interpretation of agency regulation is question of law).

¶ 20                               Juvenile Criminal Conduct

¶ 21   The Superintendent contends special order 14-01, which permits the CPD to disqualify

applicants for criminal conduct, includes all criminal conduct and creates no exception for

juvenile criminal conduct. Apostolov argues, however, that special order 14-01 is ambiguous and

the Board properly used its discretion to find that the general public policy behind the juvenile

justice system warrants not applying it to juvenile criminal conduct. That public policy,

Apostolov contends, protects youth from “the stigma of criminality that could serve as an

obstacle to becoming a productive member of society,” making special order 14-01 unsuited to

criminal conduct committed by a 14-year-old.

¶ 22   First, we address the Superintendent’s contention that Apostolov waived the issue by not

arguing it before the Board. See Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262,

278 (1998). (“[i]n general, issues or defenses not placed before the administrative agency will

not be considered for the first time on administrative review”). Apostolov’s attorney argued

before the hearing officer that (i) juvenile criminal acts differ from adult criminal acts,

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(ii) juveniles are treated differently in the criminal system, and (iii) the CPD should consider the

age of the applicant at the time he or she committed the criminal act. Thus, Apostolov has not

waived the issue.

¶ 23    Contrary to Apostolov’s assertion, the Board failed to address special order 14-01’s

application to juvenile criminal conduct or say anything about the policy underlying the juvenile

justice system. The Board simply stated it was considering Apostolov’s youth and clean record

since 1996 in deciding his name should be returned to the eligibility list. We will address the

issue, however, because if, as the Superintendent contends, special order 14-01 mandates

disqualification for juvenile criminal conduct, the Board’s decision cannot stand.

¶ 24    Turning to the merits, courts construe administrative rules and regulations under the same

principles that govern the construction of statutes. Our primary objective is to ascertain and give

effect to the drafters’ intent. CBS Outdoor, Inc. v. Department of Transportation, 2012 IL App

(1st) 111387, ¶ 27. The language of the regulation itself provides the most reliable indicator of an

agency’s intent. Id. “ ‘Where the language of the regulation is clear and unambiguous, we must

apply it as written, without resort to extrinsic aids of statutory construction.’ ” Id. (quoting

People ex rel. Madigan v. Illinois Commerce Comm’n, 231 Ill. 2d 370, 380 (2008)). A court may

not depart from the plain language of a regulation by reading into it exceptions, limitations, or

conditions that the agency did not express. Gillespie Community Unit School District No. 7 v.

Wight & Co., 2014 IL 115330, ¶ 37. As a general rule, we accord deference to the interpretation

of a statute by the agency charged with its administration. Shields v. Judges’ Retirement System

of Illinois, 204 Ill. 2d 488, 492 (2003). But, an agency’s interpretation does not bind us, and we

will set it aside when it is erroneous. Id.



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¶ 25   As noted, section IV(B) of the special order 14-01 states, in part, that “[a]n applicant will

be disqualified from consideration for a police officer position if there is evidence that the

applicant has engaged in criminal conduct, even if the applicant was never convicted of any

criminal offense. It is the conduct itself, not the fact that the applicant was convicted, that makes

the applicant unsuitable for employment.”

¶ 26   Apostolov argues that the absence of any language about “juvenile criminal conduct”

renders special order 14-01 ambiguous and requires reference to the purposes of the juvenile

justice system, which leads to the conclusion that “criminal conduct” does not include crimes

committed as a juvenile. The Superintendent argues that special order 14-01 is not ambiguous

and the plain language of the term “criminal conduct” means all criminal conduct, whether

committed as a juvenile or as an adult. The Superintendent contends that because the provision is

unambiguous, we should apply it as written and not look to “extrinsic aids” to interpret its

meaning. The Superintendent also contends neither the Board nor this court may read into the

provision exceptions the agency did not express.

¶ 27   We agree with the Superintendent. A statutory provision is not ambiguous merely

because the parties disagree on its meaning. Castro v. Police Board, 2016 IL App (1st) 142050,

¶ 32. Ambiguity exists where the statute’s meaning cannot be discerned from its plain language

or yields more than one interpretation by reasonably well-informed persons. Krohe v. City of

Bloomington, 204 Ill. 2d 392, 395-96 (2003). Where a statute does not define the terms it uses,

“the words used in a statute will be given their plain and ordinary meanings.” Holland v. City of

Chicago, 289 Ill. App. 3d 682, 686 (1997).

¶ 28   Under special order 14-01, the CPD automatically disqualifies applicants who have

engaged in “criminal conduct.” That provision makes limited exceptions based on certain factors,

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including the seriousness, frequency and recency of the applicant’s criminal conduct. For

instance, section IV(B)(2)(B) of special order 14-01 provides that a felony is disqualifying but

that a misdemeanor is only disqualifying if it occurred within the three years preceding

application to the CPD or more than one time in an applicant’s life. Notably, special order 14-01

does not make a distinction between adult and juvenile criminal conduct.

¶ 29   The CPD could have made an exception for juvenile criminal conduct but chose not to,

and we will not read into it exceptions, limitations, or conditions that CPD did not express. See

Gillespie Community Unit School District No. 7, 2014 IL 115330, ¶ 37. The absence of an

exception does not render the provision ambiguous but only underscores that juvenile criminal

conduct can be disqualifying. And, because the language of special order 14-01 is not

ambiguous, we need not resort to extrinsic aids, like the public policy behind the juvenile justice

system. See CBS Outdoor, Inc., 2012 IL App (1st) 111387, ¶ 27.

¶ 30   Apostolov’s alternative argument is that juvenile criminal conduct should not be

automatically disqualifying because it conflicts with the recent trend toward treating juvenile

offenders differently than adults and contradicts basic principles of the juvenile justice system,

which seeks to reform young offenders and ensure that their efforts to rehabilitate and become

productive members of society are not thwarted by the stigma of their criminal record. See Diane

Geraghty, Bending the Curve: Reflections on a Decade of Illinois Juvenile Justice Reform, 36

Child. Legal Rts. J. 71 (2016); Elizabeth S. Scott, “Children are Different”: Constitutional

Values and Justice Policy, 11 Ohio St. J. Crim. L. 71, 72 (2013) (explaining that recent Supreme

Court cases support developmental approach to juvenile justice policy); Joy Radice, The Juvenile

Record Myth, 106 Geo. L.J. 365 (2018) (discussing why juvenile delinquency records should not

follow juvenile into adulthood). Apostolov asserts that a blanket prohibition on applicants who

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engaged in criminal conduct as juveniles automatically eliminates a good candidate like him,

who learned from his mistake and has avoided further involvement with the criminal justice

system for 20 years.

¶ 31   The authority to define the disqualification standards lies solely with the CPD and the

Superintendent, and we cannot amend special order 14-01’s mandatory disqualifying language

for criminal conduct, regardless of age. The mandatory disqualification of a candidate like

Apostolov, who, as far as the record shows, has led an exemplary life apart from his brief brush

with the law as a juvenile and is otherwise qualified to serve as a police officer, may cause the

CPD to rethink the lack of any exception for decades-old juvenile adjudications and instead vest

the Superintendent with the discretion to consider such factors as the age of the juvenile at the

time of the crime, the number and types of juvenile offenses, and the applicant’s achievements in

the intervening years. But that decision lies with the CPD, not the Board.

¶ 32   We conclude that absent language in special order 14-01 to the contrary, the CPD may

disqualify an applicant for juvenile criminal conduct.

¶ 33                                        Board’s Decision

¶ 34   Apostolov next contends we should uphold the Board’s decision to reinstate him to the

eligibility list as it was not against the manifest weight of the evidence. In response, the

Superintendent argues the Board had no discretion to reinstate Apostolov under special order 14­

01, and the Board cannot “convert a mandatory disqualification factor into a discretionary one, or

alter the CPD’s standards of employment.” The Superintendent essentially argues that the Board

may not supplant his objective decision because he, not the Board, is charged with administering

the CPD rules for hiring police officers.



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¶ 35   The clearly erroneous standard applies, as we have stated, and we reverse only where we

are left with the “definite and firm conviction that a mistake has been committed.” AFM

Messenger Service, Inc. v. Department of Employment Security, 198 Ill.2d 380, 393 (2001)

(quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).

¶ 36   As noted, section IV(B) of special order 14-01 mandates disqualification for criminal

conduct regardless of when it occurred, aside from a few enumerated exceptions listed in section

IV(B)(2)(b), including minimal illegal drug use in the distant past, marijuana use in the recent

past, and a single misdemeanor committed more than three years before the application.

Moreover, section IV(B)(1) states firmly that “[a]n applicant who has engaged in any conduct

which constitutes a felony is not eligible for employment.”

¶ 37   At oral argument, Apostolov’s attorney conceded that theft is a felony (see 720 ILCS

5/16-1 et seq. (West 2016)) and that Apostolov pleaded guilty to both theft and burglary in 1996.

But, she argued that the Board has discretion to overturn the Superintendent’s application of

mandatory hiring standards if warranted by a particular applicant’s circumstances. She could cite

no cases or rules bestowing that authority on the Board, and our research similarly failed to

uncover any. So, we reject Apostolov’s assertion that the Board may overturn the

Superintendent’s decision to reject an applicant who has engaged in mandatorily disqualifying

criminal conduct.

¶ 38   We also reject Apostolov’s contention that absent the power to overturn the

Superintendent’s decision, the appeal process serves no purpose. The Board has authority to

overturn disqualification where the Superintendent made a factual error and, for instance,

disqualified an applicant for conduct that did not constitute a felony or conduct that comes under



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one of the section IV(B)(2)(b) exceptions. But, the Board does not have authority to overturn the

Superintendent’s decision to disqualify an applicant whose conduct is mandatorily disqualifying.

¶ 39   The Board acknowledged the Superintendent proved by a preponderance of the evidence

that Apostolov engaged in disqualifying criminal conduct when he pleaded guilty to theft and

burglary. Under the mandatory language of special order 14-01 that should have been the end of

the inquiry. The Board’s decision to reinstate Apostolov was clearly erroneous, and the trial

court properly reversed the Board. As a result, we affirm the trial court’s order.

¶ 40   Affirmed.




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