                                    2016 IL App (1st) 142376

                                                                    FIRST DIVISION
                                                                    MARCH 21, 2016

No. 1-14-2376

HELEN T. WILLIAMS,                                 )                 Appeal from the
           Plaintiff-Appellee,                     )                 Circuit Court of
                                                   )                 Cook County.
v.                                                 )
                                                   )
THE DEPARTMENT OF EMPLOYMENT SECURITY, )
an Administrative Agency of the State of Illinois; )
DIRECTOR OF EMPLOYMENT SECURITY; and               )                 No. 13 L 50663
BOARD OF REVIEW, an Administrative Agency of the )
State of Illinois,                                 )
                 Defendants-Appellants             )
                                                   )                 Honorable
(Levy Security Corporation,                        )                 Carl Anthony Walker,
                 Defendant).                       )                 Judge Presiding.


       JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
       Presiding Justice Liu and Justice Harris concurred in the judgment and opinion.

                                            OPINION

¶1     Defendants-appellants,    the   Illinois   Department   of    Employment    Security   (the

Department), the Director of the Department (the Director), and the Board of Review of the

Department (the Board) appeal from an order of the circuit court of Cook County, which

reversed the Board's decision finding the plaintiff-appellee Helen Williams ineligible for

unemployment benefits because she had been terminated for misconduct.

¶2                                      BACKGROUND

¶3     Williams was employed as a public safety officer by Levy Security Corporation (Levy)

from September 2001 until her termination in June 2012. At the time of her termination, certain

Levy public safety officers, including Williams, were assigned to provide security services on

the campus of the Illinois Institute of Technology (IIT).
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¶4     Levy terminated Williams' employment as a result of her conduct in the early morning

hours of June 6, 2012. Specifically, Levy claimed that Williams took an unauthorized break at a

time that she was supposed to be actively patrolling the IIT campus. Levy relied primarily on

time-stamped video footage showing that at approximately 1:15 a.m., Williams and another Levy

public safety officer congregated at a picnic table near a "7-11" convenience store on the IIT

campus for approximately 35 minutes.          The video shows Williams and her coworker

intermittently talking, eating, drinking coffee, and smoking cigarettes during that time. For

approximately 20 minutes of that time, the video shows two additional unidentified individuals at

the picnic table, whom Williams claims were IIT students.

¶5     Williams was terminated on June 7, 2012. Shortly thereafter, Williams applied for

unemployment insurance benefits with the Department. Levy protested the claim for benefits,

responding that Williams was "discharged for failing to perform job duties and falsifying [her]

location while on duty."

¶6     The Department denied Williams' application for benefits on June 22, 2012.             The

Department concluded that Williams was ineligible for benefits since she was terminated for

"violation of a known and reasonable company rule," constituting "misconduct" pursuant to

section 602(A) of the Unemployment Insurance Act (Act). 820 ILCS 405/602(A) (West 2012).

¶7     Williams appealed that determination. A Department referee conducted a telephonic

hearing on August 7, 2012. The referee first heard testimony from Marcos Scott, assistant

director of operations for Levy. Scott testified that Williams was terminated because she and the

other Levy employee congregated near the picnic table "for approximately 50 minutes" when

neither was on a break. Scott further testified that during that time, at about 1:25 a.m. Williams

had radioed the call sign "74" which "means she should be actively patrolling the campus."



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¶8     The referee also heard similar testimony from Ray Martinez, Levy's director of public

safety. Like Scott, Martinez testified that Williams had remained near the picnic table for 50

minutes, during which time she had radioed that she was patrolling the campus. Martinez

acknowledged that Williams had later told him that she had been speaking with two students

about campus safety issues. However, Martinez testified that the students were there for "maybe

five minutes" but that Williams had remained in the area for much longer.

¶9     Testifying on her own behalf, Williams testified that she was at the picnic table for

"approximately 25 minutes." She testified that she spoke to two students sitting at the table for

approximately 15 minutes because they had questions about campus safety.

¶ 10   After hearing this conflicting testimony, the referee noted that Levy had not produced the

videotape, which would be "dispositive of the issue of how long [Williams] was there." The

referee continued the hearing so that the videotape could be produced.

¶ 11   The hearing resumed on August 29, 2012, at which time the videotape was played before

the referee. The video (which was included in the record on appeal) contains no audio, but

displays a time stamp reflecting that it was recorded from approximately 1:12 to 1:52 a.m. The

video shows that at approximately 1:15 a.m., Williams sat down at a table, joining another Levy

public safety officer and two unidentified individuals. The video shows the officers eating,

drinking, and smoking cigarettes and conversing with the other two individuals, who left the

scene at approximately 1:33 a.m. After that time, Williams and the other public safety officer

continued to talk and smoke at or near the table until approximately 1:51 a.m.

¶ 12   At the August 29, 2012, hearing, Williams acknowledged that the videotape showed that

she was at the table for approximately 35 minutes.        Williams also testified that she was

"performing customer service" by speaking to the IIT students about campus safety. Williams



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denied that she radioed that she was actively patrolling the campus at 1:25 a.m. Instead, she

testified that she had radioed a "73" call sign, to indicate that she was giving "special attention to

a specific area."

¶ 13   After the videotape was played, Scott offered to introduce a dispatch recording that

purportedly included a 1:25 a.m. radio call from Williams giving a "74" call signal, which means

that "she's actively patrolling the campus." Over Williams' objection, the referee allowed the

audio to be played. Williams acknowledged that the recording contained her voice, but she

stated she could not understand anything said in the recording other than "10-4."

¶ 14   On August 30, 2012, the referee rendered a decision against Williams, finding that she

had been discharged for misconduct and was ineligible for benefits.         The decision found that

Williams "provided false information on June 6, 2012," and "persisted in her denials even after

being confronted with a video of her activities." The referee found that Williams was sitting at

the picnic table from 1:15 a.m. to 1:51 a.m. and that during the hearing she "identified her voice

on the audio recording and confirmed that at 1:25 a.m. she reported that she was patrolling the

campus."

¶ 15   Williams appealed to the Board. On December 31, 2012, the Board found that the record

was inadequate to review the referee's decision, as it did not contain the audio tape of Williams'

alleged 1:25 a.m. radio call. The Board remanded for the referee to "conduct a hearing de novo"

and to issue a new decision upon the new hearing. As a result, the referee conducted a new

hearing on February 6, 2013.

¶ 16   At the second hearing, the referee again heard testimony from Scott and Martinez. Scott

testified that Williams was scheduled to work a shift on the IIT campus from 10:30 p.m. on June

5 until 7 a.m. on June 6, 2012. Scott testified that Williams' shift manager had observed



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Williams and another officer sitting outside one of the campus buildings, and had then "directed

a camera on their location" and recorded video footage. The video footage was again reviewed

by the referee at the February 6, 2013 hearing.

¶ 17    Scott testified that although Levy's public safety officers are "entitled to an hour lunch

and then any breaks as needed" during their shifts, Williams had not requested any break for the

time corresponding to the video. Instead, he testified that about 1:25 a.m., "she called in that she

was 74 campus wide, which denotes that she is actively patrolling the campus." Scott further

claimed that Williams could be seen on the video speaking into her radio at that point.

¶ 18    Williams' attorney asked the referee to watch the portion of the video from 1:24 a.m. to

1:26 a.m. and note for the record "whether [Williams] got on her radio or not." The transcript

reflects that the referee watched that portion of the video. Initially, the referee stated: "I can't tell

if she's talking to someone. I can't tell what she's doing." However, the referee stated that at the

point time-stamped 11 seconds past 1:25 a.m., "it looks like [Williams'] mouth is moving" while

she was "facing away from the other three individuals" at the table.

¶ 19    Asked to describe harm caused by Williams' behavior, Scott testified that "By not

actively patrolling the campus when she was supposed to Ms. Williams put [the campus'] safety

in jeopardy."

¶ 20    On cross-examination, Scott testified that officers are "entitled to a one hour lunch and

breaks as needed." Scott stated that Levy was "pretty flexible" with respect to breaks "as long as

it isn't abused."

¶ 21    Martinez also testified, recalling that Scott had told him that Williams had called in a "74

campus wide" while eating and drinking at a table. Martinez testified that an audio recording




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indicated that Williams had reported that she "was on a 74." However, unlike the prior hearing,

the audio of Williams' purported radio signal was not played at the February 6, 2013 hearing.

¶ 22   Williams again testified at the February 6, 2013 hearing. Williams acknowledged that, as

shown by the video footage, at about 1:15 a.m. she exited a 7-11 store and walked to a table

where she joined a coworker and two individuals, whom she stated were IIT students. She

testified that she went to the 7-11 because that store "had been robbed on the previous shift, and

we were told in rol[l] call to keep vigilance over the store and *** keep visible that night because

it had been robbed on the previous shift."

¶ 23   Williams testified that Levy had "call signs" to indicate an officer's activity, and that "[a]

73 is a special attention to a specific area," whereas "74 is patrolling [] campus wide." She

claimed that when she left the 7-11 and arrived at the scene where she was recorded, she radioed

to "ask[] for a 73," meaning "attention to a specific area." However, she claimed this had been

"omitted from the video."     She testified that her "73" call signal pertained to the area of "33rd

and State Street and all surrounding areas." She claimed that she could see this area from the

picnic table, and that the "73" signal "meant that I was alert and aware" and was "giving constant

vigilance of that area."

¶ 24   Williams acknowledged that if she wanted to take a break, Levy's policy was that "we

need to call a 10-7." Williams admitted she had not notified Levy that she wanted to take a

break, either when she was in the 7-11 or when she was at the picnic table. However, she

testified that she did not consider herself to be on break at the time. Instead, she testified: "I was

stopped by the other employee and the students, and I joined them because they asked questions

about the safety, the crime on the campus, how to be safe, and I was conducting customer

service."



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¶ 25   Williams denied that she ever radioed a "74" call sign to indicate she was patrolling at

any point in the videotape's time frame. She testified that she never used her radio during the

time of the videotape, and "was only asked for my status when I arrived to the location, at no

other time."   Similarly, she denied Scott's claim that there was an audio recording of her

indicating a "74" at 1:25 a.m., while she was at the table. Instead, she testified that when she left

the table, she had signaled that she was going back to a "74" to patrol the campus.

¶ 26   On cross-examination, Williams acknowledged that she and her coworker had remained

at the table even after the students had left the table around 1:33 a.m. However, she claimed that

after the students left, she was "watching the area" and discussed with her coworker "what we

had talked about with the students."

¶ 27   On February 7, 2013, the referee issued a decision, which again concluded that Williams

had been discharged for misconduct and was ineligible for unemployment benefits. The referee's

findings noted that Williams was "eating, smoking and engaging in conversation with a co-

worker," from approximately 1:15 a.m. until 1:51 a.m.            The referee found: "[Williams']

testimony that she was engaged in surveillance activities at the nearby convenience store, that

she was engaged in customer service by engaging in a discussion of campus security with two

students, and that she was engaged in surveillance activities *** while sitting at the table was

completely at odds with the videotape." The referee also noted that her testimony "was not in

accordance with all of the other circumstantial evidence presented."

¶ 28   Williams filed an appeal to the Board. On July 5, 2013, the Board issued a decision

affirming the referee. The Board's decision found that the record showed that Williams "was

seated at the table for over 35 minutes," where she was eating, drinking and smoking. The Board




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decision states "[Williams] had notified the employer by radio that she was patrolling the entire

campus at the time, and did not radio that she was taking a break."

¶ 29    The Board acknowledged that "[t]he claimant testified that at the time she was securing

the specific location around the table, which included a convenience store that had been robbed

recently." However, the Board found that "the credible evidence has shown that the claimant

took a break without notifying the employer that she was doing so, and instead falsely reported

that she was patrolling the campus." The Board also found that Williams' actions "harmed the

employer by jeopardizing its contractual relations with [IIT], who expected the campus to be

patrolled by security."    The Board thus found that "misconduct has been shown by the

preponderance, and [Williams] is disqualified for benefits under section 602A" of the Act.

¶ 30    On July 11, 2013, Williams filed a pro se complaint 1 in the circuit court of Cook County

for administrative review of the Board's July 5, 2013 decision. The named defendants included

the Department, the Director, the Board (together, the administrative defendants) and Levy.

The Attorney General of the State of Illinois appeared on behalf of the administrative defendants,

who filed an answer to the complaint on September 5, 2013. On December 12, 2013, Williams

filed her memorandum of law. The administrative defendants filed their response on January 8,

2014.

¶ 31    On May 21, 2014, the trial court issued an "opinion and order" (the opinion) which

reversed the Board's decision finding Williams ineligible for unemployment benefits.            The

opinion included a brief statement of "facts" which credited Williams' testimony at the hearing.

In particular, the opinion recited that "[Williams'] employer instructed her to 'keep vigilance over


        1
        Williams subsequently retained counsel (who is also her counsel on appeal), who filed
an appearance on October 9, 2013.


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the [7-11] and *** keep visible that night because it had been robbed on the previous shift.' "

The opinion's statement of facts similarly recites Williams' account of events that:

               "When she arrived at the 7-11, she informed dispatch that she was

               going to check the store. After the check, she requested a 73 on

               33rd Street. Plaintiff proceeded to sit down at a nearby picnic table

               while keeping watch on the area.

                       From 1:15 am until 1:33 am, Plaintiff conversed with

               another [public safety officer] and two IIT students. Plaintiff then

               cleared from that area and told Levy to clear her, after which she

               returned to a 74 status."

¶ 32   The trial court noted that Williams was discharged for "misconduct" under section

602(A) of the Unemployment Insurance Act, whose application "is a mixed question of law and

fact," and thus it "will only reverse the Board's Decision if it is found to be clearly erroneous."

The trial court then proceeded to find that the Board's decision was clearly erroneous. The court

reasoned: "In its decision, the Board merely states that the convenience store had been robbed

recently, ignoring testimony [from Williams] that Levy explicitly instructed [Williams] and the

co-worker to 'keep vigilance over the [7-11] and *** keep visible that night because it had been

robbed on the previous shift.' "

¶ 33   The trial court stated that it was "firmly convinced from the evidence that [Williams']

actions were not a deliberate or willful violation of a reasonable rule or policy when she was

following explicit instruction from Levy."        The court also concluded that Williams, "by

following Levy's instruction, did not harm the employer by jeopardizing its contractual

relations." The trial court noted that "[w]hile [Williams'] actions may be cause for termination,"



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"a conclusion that they amounted to misconduct within the meaning of Section 602(A) is clearly

erroneous."

¶ 34   On June 17, 2014, the administrative defendants filed a motion to reconsider, arguing that

the trial court's conclusion conflicted with the factual findings of the Board. The motion to

reconsider argued that the trial court had erred by "reweigh[ing] the evidence" and "credibility of

the parties and substitute[d] its judgment" for that of the Board. In response to the motion to

reconsider, Williams argued that she could not be found to have committed a deliberate or willful

violation of Levy's policy, where she was "following an explicit instruction from her

supervisors" to be "vigilant" and remain "visible" in the area of the 7-11 store. She argued that

the Board's decision was clearly erroneous because the video footage showed that she was

speaking to IIT students and "surveying the area," consistent with her testimony that she had

requested a "73" to give special attention to the area.

¶ 35   The trial court denied the motion to reconsider on July 1, 2014. The administrative

defendants filed a notice of appeal on July 31, 2014. Levy did not appeal.

¶ 36                                     ANALYSIS

¶ 37   At the outset, we note that Williams argues the appeal must be dismissed for lack of

jurisdiction. Specifically, she argues that the administrative defendants—the Department, the

Director, and the Board—"have no standing to prosecute this appeal." She relies upon our

supreme court's decision in Speck v. Zoning Board of Appeals, 89 Ill. 2d 482 (1985). In Speck,

our supreme court addressed an appeal taken by the Chicago zoning board of appeals (zoning

board) after the circuit court reversed the zoning board's decision to approve a permit. Id. at 484.

The supreme court addressed the question of whether the zoning board lacked "standing to

appeal a reversal of its own decision." Id. at 485. In holding that the zoning board lacked



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standing, the Speck decision emphasized that the provisions of the zoning board's authorizing

ordinance indicated that it was "intended to function in an adjudicatory or quasi-judicial

capacity" but that the ordinance did not indicate that the zoning board was "authorized *** to

assume the role of advocate for the purpose of prosecuting an appeal." Id. The supreme court

concluded that the zoning board's "responsibility to protect the public interest does not authorize

the Board to act as a representative of the public for the purpose of vindicating its own decision

on appeal" and that "in assuming the role of advocate, the Board's required duty of impartiality is

compromised." Id. at 486. The supreme court held that "a board like the one here lacks standing

to prosecute an appeal from a reversal of its own decision." Id. at 486.

¶ 38   Williams argues that under Speck, the Department, the Director, and the Board lack

standing to prosecute this appeal. However, Williams' standing argument was recently rejected

by our supreme court in Petrovic v. Department of Employment Security, 2016 IL 118562.

¶ 39   As in this case, the plaintiff in Petrovic was denied unemployment benefits upon a

determination by a Department referee, upheld by the Board, that she had been terminated "due

to misconduct under section 602(A) of the Act." Id. ¶¶ 9-10. The circuit court reversed the

Board's decision, finding that she was not terminated for "misconduct" within the meaning of

section 602(A) because her employer had "failed to provide proof that plaintiff violated an

express rule or policy." Id. ¶ 10. The appellate court reversed the circuit court and reinstated the

Board's order denying benefits. Id. ¶ 11.

¶ 40   Our supreme court—before ultimately determining that the plaintiff was eligible to

receive unemployment benefits—squarely rejected the plaintiff's preliminary argument that the

administrative defendants in that case "had no standing to appeal the circuit court's judgment

reversing the Board's denial of benefits." Id. ¶ 15. As in this case, the Petrovic plaintiff sought



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to rely on Speck to argue that the administrative defendants "function solely in an adjudicatory or

quasi-judicial capacity, which limits their capacity to appeal adverse decisions."         Id. Our

supreme court, however, reasoned that the holding in Speck "does not foreclose every appeal by

an administrative agency seeking review of an adverse court judgment." Id. ¶ 17. Instead, our

supreme court held, "an administrative agency with additional managerial functions beyond

those of a tribunal is not subject to the 'normal rule that an administrative agency has no standing

to appeal a decision reversing its own decision.' " Id. (quoting Braun v. Retirement Board of the

Firemen's Annuity & Benefit Fund, 108 Ill. 2d 119, 128 (1985)).

¶ 41   Our supreme court proceeded to explain that the Department has such additional

managerial functions: "In addition to its adjudicatory duties, the Department is specifically

entrusted with administering the Act, preserving the fund, and handling its assets in accordance

with the Act.    See 820 ILCS 405/1700, 2100(A) (West 2012).            Thus, the [administrative]

defendants have independent interests in maintaining a uniform body of law involving the Act

and protecting the fund." Id. ¶ 19.       Accordingly, the supreme court "reject[ed] plaintiff's

contention that the [administrative] defendants lack standing to appeal the circuit court's decision

on administrative review." Id.

¶ 42   We recognize that, after rejecting the plaintiff's standing argument, Petrovic nevertheless

proceeded to find that the plaintiff was entitled to unemployment benefits, as her employer had

"failed to offer evidence of a rule or policy" that was violated and thus "failed to meet its burden

of proving that plaintiff was discharged for misconduct under section 602(A)."            Id. ¶ 36.

However, Petrovic is clearly dispositive of Williams' claim that the administrative defendants

lacked standing to appeal the circuit court's reversal of the Board's decision against her. We thus

conclude that the administrative defendants have standing and we have appellate jurisdiction.



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¶ 43   Separate from her standing argument, Williams contends that her due process rights to an

impartial tribunal under the federal and state constitutions were violated. Specifically, she

asserts that the Board is not an impartial tribunal, since – upon a claimant's appeal to the circuit

court from an adverse Board decision – the Board becomes a "partisan advocate" in defending its

decision. She urges that the Board's role as a party to an appeal from an administrative decision

violates the principle "that the administrative role of adjudicator" should "never be combined

with the role of partisan litigant." (Emphases in original.) She urges that the administrative

defendants "ignored that command by becoming partisan litigants, and by engaging and

communicating with, lawyers outside the [D]epartment [that is, the Attorney General's office] to

advocate a defense of their decisions." She further claims that this violates the "ex parte

communications" provision of the Illinois Administrative Procedure Act, which requires that

"agency heads, agency employees, and administrative law judges shall not, after notice of

hearing *** communicate *** in connection with any issue of fact, with any person or party, or

in connection with any other issue with any party or the representative of any party, except upon

notice and opportunity for all parties to participate." 5 ILCS 100/10-60(a) (West 2012).

¶ 44   Williams further claims that the bias of the administrative defendants against claimants

seeking unemployment benefits is evidenced by the fact that in "the vast preponderance of

instances" when the administrative defendants choose to appeal a circuit court reversal of a

Board decision, "they do so on behalf of employers and against claimants." She claims that data

shows that the administrative defendants "choos[e] to take appeals from adverse circuit [court]

decisions for the cause [of] employers rather than claimants by a ratio greater than 12 to 1," and

argues that such "data inescapably shows appellants' pro-employer bias." While the data offered




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by Williams in support of her argument seems to have some merit, for the following reasons, we

reject Williams' due process claims.

¶ 45   We acknowledge that Williams is entitled to an impartial tribunal in an administrative

hearing. "Administrative proceedings are not judicial proceedings, but the parties are entitled to

a fair hearing before a disinterested tribunal." Williams v. Board of Trustees of the Morton

Grove Firefighters' Pension Fund, 398 Ill. App. 3d 680, 694 (2010). "It is settled that an

administrative hearing is not a partisan hearing with the agency on one side arrayed against the

individual on the other. *** A fair hearing before an administrative agency includes the

opportunity to be heard, the right to cross-examine adverse witnesses, and impartiality in ruling

upon the evidence. [Citation.]" Abrahamson v. Illinois Department of Professional Regulation,

153 Ill. 2d 76, 94-95 (1992).          However, "[w]ithout a showing to the contrary, State

administrators are assumed to be men of conscience and intellectual discipline, capable of

judging a particular controversy fairly on the basis of its own circumstances." (Internal quotation

marks omitted.) Id. at 95.

¶ 46   "The determination of whether an administrative hearing was fair and impartial requires a

fact-specific analysis of the conduct of the board members before and during the hearing."

Williams, 398 Ill. App. 3d at 693. "In order to demonstrate bias or prejudice, a claimant must

show[] in the record that the administrative proceedings were either tainted by dishonesty or

contained an unacceptable risk of bias. [Citations.] Bias may be indicated if a disinterested

observer might conclude that the administrative body *** had in some measure adjudged the

facts as well as the law of the case in advance of hearing it." (Internal quotation marks omitted.)

Wolin v. Department of Financial & Professional Regulation, 2012 IL App (1st) 112113, ¶ 33.




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However, "[a] mere possibility of prejudice is insufficient to show that a board, or any of its

members, was biased." (Internal quotation marks omitted.) Id.

¶ 47   Notably, Williams does not argue any particular bias against her personally, or suggest

any procedural impropriety during either of the hearings before the referee, or in the Board's

review of the second hearing that lead to the Board's July 5, 2013 decision. Further, although

she cites the general ban on ex parte communications by administrative defendants during

administrative proceedings (5 ILCS 100/10-60(a) (West 2012)), she does not purport to allege

any such improper communication during the administrative proceedings in her case.

¶ 48   Rather, Williams' argument appears to be that, since the administrative defendants will

defend an appeal after a Board decision denying benefits, we should presume that the Board is

biased against the claimants during the initial proceedings. However, we will not infer bias

during the administrative proceedings merely from the fact that the Board may defend its

decision at a later time. See Jackson v. Retirement Board of the Policemen's Annuity & Benefit

Fund, 293 Ill. App. 3d 694, 699 (1997) ("A person challenging the impartiality of a tribunal must

overcome the presumption that those serving on the tribunal are fair and honest. [Citation.] In

the absence of personal bias demonstrated in the record, the mere combination of investigatory

and adjudicatory functions will not render a tribunal biased in violation of due process.");

Caliendo v. Martin, 250 Ill. App. 3d 409, 421-22 (1993) ("[I]t is not enough to complain merely

that investigator, prosecutor, and adjudicator are all institutionally connected. [Citation.] This

same complaint could be made in the majority of agency cases. Rather, plaintiffs must overcome

a presumption of honesty and integrity in those serving as adjudicators by showing in the record

that the administrative proceeding was either tainted by dishonesty or contained an unacceptable

risk of bias." (Internal quotation marks omitted.)



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¶ 49   Moreover, Williams' argument conflicts with express provisions of the Act and the

Administrative Review Law which require the Department, the Director, and the Board to be

made parties to an action seeking administrative review from a Board decision. Section 1100 of

the Act states that "[a]ny decision of the Board of Review *** shall be reviewable only under

and in accordance with the provisions of the Administrative Review law" (820 ILCS 405/1100

(West 2012)).    In turn, the Administrative Review Law requires, "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." (Emphasis added.) 735 ILCS 5/3-107 (West 2012). Moreover, the

Act specifically provides that "The Director shall be deemed to have been a party to any

administrative proceeding before the Board of Review and shall be represented by the Attorney

General in any judicial action involving any such decision." 820 ILCS 405/1100 (West 2012).

This statutory provision directly undermines Williams' suggestions that the Attorney General's

involvement in appeals from Board decisions runs afoul of the ex parte provision of the

Administrative Procedure Act (5 ILCS 100/10-60(a) (West 2012)), or is otherwise a

constitutional violation.

¶ 50   Finally, we note that Williams' argument suggests that we should find these statutory

provisions unconstitutional, at least as applied when the administrative defendants appeal from

reversals of Board decisions denying unemployment benefits. However, it is well-settled that we

presume all statutes constitutional. Bartlow v. Costigan, 2014 IL 115152, ¶ 18 ("[S]tatutes are

presumed constitutional, and the challenging party has the burden to prove the statute is

unconstitutional."). Just as we will not infer that the Board is biased against claimants because it

may later be required to defend its decisions on appeal, we do not find that Williams has



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overcome the presumption of constitutionality for the corresponding statutory provisions. Thus,

we find Williams' due process arguments unavailing.

¶ 51   Having found that Williams' standing and due process challenges lack merit, we thus turn

to the merits of the appeal.

¶ 52   "When a party appeals the circuit court's decision on a complaint for administrative

review, the appellate court's role is to review the administrative decision rather than the circuit

court's decision." Petrovic v. Department of Employment Security, 2014 IL App (1st) 131813, ¶

24, rev'd on other grounds, 2016 IL 118562.             " '[T]he findings and conclusions of the

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

(quoting 735 ILCS 5/3-110 (West 2010)).

¶ 53   "In an appeal involving a claim for unemployment benefits, we defer to the Board's

factual findings unless they are against the manifest weight of the evidence. [Citation.] An

administrative agency's findings of fact are against the manifest weight of the evidence only if

the opposite conclusion is clearly evident. [Citation.] In our role as a reviewing court, we may

not judge the credibility of the witnesses, resolve conflicts in testimony, or reweigh the evidence.

[Citation.]" Woods v. Illinois Department of Employment Security, 2012 IL App (1st) 101639, ¶

16.

¶ 54   The Board determined that Williams was ineligible for unemployment benefits pursuant

to section 602(A) of the Act, which provides that "An individual shall be ineligible for benefits

for the week in which he has been discharged for misconduct connected with his work and,

thereafter, until he has become reemployed ***." 820 ILCS 405/602(A) (West 2012). 2 The Act


       2
        "We note that section 602(A) has recently been amended. Pub. Act 99-488 (eff. Jan. 3,
2016) (amending 820 ILCS 405/602(A) (West 2014)). The amendment lists certain


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defines "misconduct" to mean "the deliberate and willful violation of a reasonable rule or policy

of the employing unit, governing the individual's behavior in performance of his work, provided

such violation has harmed the employing unit or other employees or has been repeated by the

individual despite a warning or other explicit instruction from the employing unit." Id.

¶ 55   Thus, our court has explained that: "Three main requirements must be met to establish

misconduct under the Act. It must be proven that (1) there was a deliberate and willful violation

of a rule or policy of the employing unit, (2) the rule or policy was reasonable, and (3) the

violation either harmed the employer or was repeated by the employee despite a previous

warning or other explicit instruction from the employing unit." Woods, 2012 IL App (1st)

101639, ¶ 19.

¶ 56   "Whether an individual was properly terminated for misconduct in connection with her

work is a question that involves a mixed question of law and fact, to which we apply the clearly

erroneous standard of review. [Citation.] An agency's decision is considered to be clearly

erroneous where the entire record leaves the reviewing court with the definite and firm

conviction that a mistake has been made." Id.

¶ 57   In this case, we conclude that the circuit court erred in reversing the Board's decision

which found Williams ineligible for benefits. That is, we do not find that the Board's decision

was clearly erroneous in determining that Williams was terminated for "misconduct" within the

meaning of section 602(A) of the Act.




circumstances under which an employee is disqualified from receiving benefits, 'notwithstanding'
the definition of misconduct set forth in the statute. However, because the instant case does not
involve any of the enumerated circumstances, the language in the amendment is irrelevant to our
analysis." Petrovic, 2016 IL 118562, ¶ __, n.1.


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¶ 58   The circuit court properly recognized that the determination of "misconduct" was a mixed

question of law and fact subject to a "clearly erroneous" standard of review. However, in

reaching its conclusion that it was "firmly convinced *** that [Williams'] actions were not a

deliberate or willful violation of a reasonable rule or policy," it is apparent that the circuit court

improperly engaged in reweighing the evidence, particularly the credibility of witness testimony.

¶ 59   In particular, the circuit court's opinion implicitly credited testimony by Williams when it

criticized the Board for "ignoring" Williams' testimony "that Levy explicitly instructed

[Williams] and the co-worker to 'keep vigilance over the [7-11] and *** keep visible that night

because it had been robbed on the previous shift.' " The circuit court's conclusion that the

Board's decision was clearly erroneous was based upon Williams' testimony that "she was

following explicit instruction from Levy."        In reaching this conclusion, the circuit court

inherently made a credibility determination that Williams was truthful when she testified that she

remained in the area due to instructions from Levy. However, the Board was not required to

accept her testimony, and it was not the circuit court's role to second-guess the Board's

credibility determination.

¶ 60   Rather, keeping in mind that "as a reviewing court, we may not judge the credibility of

the witnesses, resolve conflicts in testimony, or reweigh the evidence" (Woods, 2012 IL App

(1st) 101639, ¶ 16), we cannot say we are left with any firm or definite conviction that the

Board's conclusion was erroneous. Rather, the Board could reasonably conclude that the "[t]hree

main requirements" to establish misconduct under the Act had been met. Id. ¶ 19.

¶ 61   First, the Board could reasonably determine that Williams had committed a "deliberate

and willful violation of a rule or policy" of Levy, her employer. Id. Regarding the requisite

proof of an underlying rule, we acknowledge that our supreme court has now rejected the notion,



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previously accepted by our appellate court, that "a court may infer a rule violation 'by a

commonsense realization that certain conduct intentionally and substantially disregards an

employer's interests.' " Petrovic, 2016 IL 118562, ¶ 34 (quoting Greenlaw v. Department of

Employment Security, 299 Ill. App. 3d 446, 448 (1998)). Our supreme court agreed that the

"judicially created commonsense exception cannot be reconciled with the plain language in

section 602(A), which clearly requires evidence of a deliberate violation of a reasonable rule or

policy of the employer." Id. ¶ 35 (noting, however, that "evidence of a rule need not be shown

where the employee's conduct would otherwise be illegal or constitute a prima facie intentional

tort"). Nevertheless, this portion of the supreme court's holding in Petrovic does not change the

outcome of Williams' appeal, as the finding that she violated a policy of her employer did not

depend upon the "commonsense exception." Rather, in this case there was direct evidence in the

record before the Board, including Williams' own testimony, that Levy had a policy requiring

employees to request permission to take breaks. Further, Williams admitted that she had not

requested a break for the relevant time period.

¶ 62   Moreover, the Board was free to find that Williams' testimony was incredible, to the

extent that she claimed that she was not taking a break when she was videotaped at the picnic

table. The Board's July 5, 2013 decision found that "the credible evidence has shown that the

claimant took a break without notifying the employer that she was doing so, and instead falsely

reported that she was patrolling the campus." This shows that the Board did not find Williams'

testimony credible. We cannot say this conclusion was clearly erroneous.

¶ 63   Likewise, with respect to the second main requirement for a finding of misconduct, that

"the rule or policy was reasonable," the Board could certainly conclude that Levy's policy against




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unauthorized breaks was "reasonable" within the meaning of section 602(A) of the Act. See

Woods, 2012 IL App (1st) 101639, ¶ 19.

¶ 64    Further, the Board could conclude that Williams' violation of Levy's policy caused Levy

harm, satisfying the third main requirement to establish misconduct under section 602(A) of the

Act. See id. Notably, "[i]n determining whether an employer was harmed, the employee's

conduct should be viewed in the context of potential harm, and not in the context of actual

harm." (Internal quotation marks omitted.) Petrovic, 2014 IL App (1st) 131813, ¶ 29. The

Board found such potential harm in this case, stating that Williams' actions "harmed the

employer by jeopardizing its contractual relations with its client, who expected the campus to be

patrolled by security." We do not find this conclusion to be clearly erroneous. Rather, the Board

could easily conclude that Levy's contractual relationship with its client, IIT, could be

jeopardized if IIT discovered that certain of Levy's employees were not performing security

services in the manner expected under the contract. Moreover, in the event that a crime should

occur near a place and time when an assigned security officer was on an unauthorized break, it is

easy to foresee a situation where Levy (or its client, IIT) might also be subject to potential tort

liability.

¶ 65    In sum, we cannot say that the Board's conclusion that Williams was terminated for

misconduct within the meaning of section 602(A) of the Act was clearly erroneous.

Accordingly, the circuit court should not have disturbed the Board's July 5, 2013 decision.

¶ 66    Based on the foregoing reasons, we reverse the judgment of the circuit court of Cook

County and reinstate the July 5, 2013 decision of the Board.

¶ 67    Reversed.




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