                                           2018 IL App (1st) 171930
                                                                                        FIRST DISTRICT
                                                                                      SECOND DIVISION
                                                                                       September 28, 2018



                                                 No. 1-17-1930

     EDDIE JOHNSON, in His Official Capacity as              )

     Superintendent of the City of Chicago Police            )

     Department, and THE CITY OF CHICAGO,                    )               Appeal from the

                                                             )               Circuit Court of
             Petitioners-Appellees,                          )               Cook County, Illinois.
                                                             )
     v.                                                      )               No. 16 CH 120003
                                                             )
     EDWARD O’CONNOR and THE HUMAN                           )
     RESOURCES BOARD OF THE CITY OF                          )               Honorable
     CHICAGO,                                                )               Franklin U. Valderrama,
                                                             )               Judge Presiding.
             Respondents                                     )

                                                             )

     (Edward O’Connor, Respondent-Appellant).                )


             PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.
             Justices Hoffman 1 and Pucinski concurred in the judgment and opinion.

                                                   OPINION

¶1           Respondent-appellant Edward O’Connor was removed from a list of eligible candidates

     for a position as a Chicago police officer based on his admission that he had twice been arrested

     for domestic battery in 2003 and 2014. Following a hearing on his removal, he was reinstated to

     the eligibility list by respondent Human Resources Board of the City of Chicago (Board).

     Petitioners-appellees Eddie Johnson, the Chicago Police Department (CPD) superintendent, and

     the City of Chicago (petitioners) petitioned for a common law writ of certiorari in the circuit




             1
              Justice Hoffman, Justice of the Sixth Division, was designated as the third panel member
     following recusals by other members of the Second Division.
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     court to review the Board’s decision. The court reversed the decision of the Board, and

     O’Connor appeals. For the reasons that follow, we affirm and remand with directions.

¶2                                             BACKGROUND

¶3          In 2014, O’Connor applied for a position as a probationary police officer with the CPD.

     Part of the application process required completing a personal history questionnaire, in which

     O’Connor admitted that he had been arrested for domestic battery against his mother in 2003,

     when he was 18, and against his roommate and ex-girlfriend in 2014.

¶4          O’Connor wrote that in 2003 he was living with his mother, a retired police officer. One

     morning, his mother woke him up and asked him to do chores, but he said no because he had to

     leave for work and told her he would do them when he returned. According to O’Connor, his

     mother yelled at him, and he repeated his refusal to do the chores and slammed the door in her

     face, whereupon his mother had him arrested for domestic violence. O’Connor’s narrative with

     regard to the 2014 incident indicated that his roommate “became enraged” after he declined to

     take her to the grocery store and threatened to ruin his life by hitting herself and telling the police

     that he did it. O’Connor laughed and walked away, and his roommate then called the police

     saying O’Connor hit her, when in fact she hit herself with an object she found next to the parking

     lot of O’Connor’s apartment. The police arrived and arrested O’Connor, disbelieving his claim

     that his roommate injured herself.

¶5          An administrative special order (Special Order) by the CPD provides that “[a]ny conduct

     demonstrating a propensity for violence may be grounds for disqualification.” Such conduct

     includes battery and domestic violence. Based on this Special Order, and following a background

     investigation in which the CPD obtained police reports of the arrests, Investigator Stanley

     Golucki recommended that O’Connor be disqualified for the position of police officer. The CPD



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     accepted the recommendation and advised the Department of Human Resources (DHR) to

     remove O’Connor from the list of eligible candidates.

¶6           On June 26, 2015, DHR notified O’Connor of his removal from the list but informed him

     that he could challenge the removal by requesting a hearing with the Board, which he did. At the

     hearing, which was held on December 16, 2015, Golucki, O’Connor, O’Connor’s mother, Karen

     O’Connor, and O’Connor’s girlfriend, Tanya Dovichi, all testified. Golucki testified to the

     contents of the arrest report of the 2003 incident, which was also made part of the record. 2 The

     2003 arrest report indicated that when police arrived at Karen’s house, she told them that she and

     O’Connor engaged in a verbal dispute after she asked him for help around the house. O’Connor

     grabbed Karen by the neck and threw her to the kitchen floor, causing her injury. Karen declined

     treatment and to have photos taken of her neck, which the report described as “reddened.”

     O’Connor “freely stated” that he “didn’t grab [Karen] that hard.” The officers took O’Connor

     into custody and advised Karen of the upcoming court date. O’Connor was charged with

     domestic battery, but the charge was ultimately stricken with leave to reinstate.

¶7           Karen testified that one morning when O’Connor was about 17 or 18 years old and living

     with her, she woke him up to ask for his help in moving something. When O’Connor did not get

     out of bed, Karen took his car keys and told him to walk to work. This prompted O’Connor to

     get out of bed and follow Karen to the kitchen, where he grabbed the keys out of Karen’s hand.

     During the struggle with the keys, Karen slipped and fell. She denied that O’Connor threw her to

     the floor or that he choked her. Karen testified that she called the police to “teach [O’Connor] a

     lesson” not to put his hands on her. On cross-examination, Karen testified that she was surprised

             2
              At the hearing, evidence was also introduced regarding the 2014 incident, but because the
     hearing officer found that it was not more likely than not that O’Connor committed domestic battery in
     2014, and because that finding is not challenged on appeal, we find it unnecessary to recount that
     evidence here.


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       the police report indicated that O’Connor grabbed her by the neck and threw her to the floor. She

       was also surprised that the report described her as having a reddened neck.

¶8            In his testimony, O’Connor agreed with his mother’s description of the 2003 incident. He

       clarified that when he went to the kitchen to retrieve the keys, his mother had her back to him

       and was holding the keys in her fist, but the lanyard attached to the key ring was free. O’Connor

       approached Karen from behind and grabbed the lanyard to pull the keys from her hands.

       According to O’Connor, Karen then bumped him and he started to fall backwards while still

       holding the lanyard, which caused Karen to fall down. O’Connor denied choking Karen,

       throwing her to the ground, or punching her. He testified that he learned a lesson, and the charges

       were dismissed.

¶9            The hearing officer’s report found that it was more likely than not that O’Connor engaged

       in domestic battery against his mother in 2003, but that it was not more likely than not that

       O’Connor committed domestic battery in 2014. The hearing officer concluded that although “one

       instance of domestic battery was shown more likely than not, it occurred 13 years ago when

       [O’Connor] was a teen; once [sic] instance alone does not show a propensity.” Accordingly, the

       hearing officer recommended to the Board that the decision of the CPD be reversed and

       O’Connor’s name be returned to the eligibility list.

¶ 10          In July 2016, the Board adopted the hearing officer’s findings and recommendations in

       their entirety and reinstated O’Connor to the eligibility list.

¶ 11          Johnson petitioned the circuit court for a common law writ of certiorari. Following

       briefing and oral argument, the court reversed the decision of the Board holding that the hearing

       officer’s conclusion that a single violent incident is insufficient to demonstrate a propensity for

       violence was inconsistent with the language of the Special Order. O’Connor timely appeals.



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¶ 12                                               ANALYSIS

¶ 13          At issue in this case is the Board’s decision to reinstate O’Connor to the eligibility list

       notwithstanding that he more likely than not committed domestic battery against his mother in

       2003. The parties do not dispute that the circuit court properly reviewed the Board’s decision

       pursuant to a common law writ of certiorari, given that the act conferring power on the Board

       does not expressly adopt the Administrative Review Law (735 ILCS 5/3-101 et seq. (West

       2016)) and does not provide for another form of review. See Applegate v. Department of

       Transportation, 335 Ill. App. 3d 1056, 1061 (2002). Our review of a writ of certiorari is

       “essentially the same” as our review of a petition filed under the Administrative Review Law.

       Outcom, Inc. v. Illinois Department of Transportation, 233 Ill. 2d 324, 337 (2009). In either case,

       we review the decision of the agency rather than the circuit court under our “traditional standards

       of review of administrative decisions.” Porter v. Illinois State Board of Education, 2014 IL App

       (1st) 122891, ¶ 25.

¶ 14          The applicable standard of review of the agency decision depends on the question

       presented on appeal. Id. ¶ 26. If the question is one of fact, we apply a manifest weight of the

       evidence standard, while if the question is one of law, we review the decision de novo. Beggs v.

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

       ¶ 50. And if the appeal presents a mixed question of law and fact, it is subject to review under the

       deferential “clearly erroneous” standard. Id. Here, O’Connor urges us to apply a clearly

       erroneous standard to what he contends was a mixed question of law and fact, while Johnson

       maintains that our review is de novo, arguing the issue on appeal is solely a question of law.

¶ 15          At the outset, we note that O’Connor did not advocate for application of the clearly

       erroneous standard in the circuit court and instead argued that the Board’s decision was subject



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       to review under a manifest weight of the evidence standard as it was “a question of fact and fact

       alone.” As Johnson points out, a party waives any argument he fails to present in circuit court.

       Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 413 (2002). But because waiver is a

       limitation on the parties and not the court (Committee for Educational Rights v. Edgar, 174 Ill.

       2d 1, 11 (1996)), we nevertheless address the merits of the parties’ dispute regarding the standard

       of review.

¶ 16          A mixed question of law and fact examines “the legal effect of a given set of facts” or,

       stated differently, whether uncontested facts satisfy the statutory standard. Comprehensive

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

       O’Connor contends that the issue on appeal is whether the uncontested facts of his 2003 arrest

       implicate the Special Order so as to justify his disqualification. But that determination turns, in

       the first instance, on the interpretation of the Special Order, which is a question of law. See

       Burris v. Department of Children & Family Services, 2011 IL App (1st) 101364, ¶ 30

       (interpretation of agency regulation is a question of law). And as discussed supra ¶ 14, we

       review an agency’s decision on questions of law de novo. See Beggs, 2016 IL 120236, ¶ 50.

       Importantly, however, an agency’s interpretation of its own rules and regulations “ ‘enjoys a

       presumption of validity.’ ” (Internal quotation marks omitted.) Burris, 2011 IL App (1st)

       101364, ¶ 30 (quoting Walk v. Department of Children & Family Services, 399 Ill. App. 3d

       1174, 1181 (2010)).

¶ 17          We construe administrative regulations according to the same standards governing the

       construction of statutes. People v. Bonutti, 212 Ill. 2d 182, 188 (2004). The fundamental rule of

       statutory construction is to ascertain and give effect to the legislature’s intent. Hayashi v. Illinois

       Department of Financial & Professional Regulation, 2014 IL 116023, ¶ 16. The most reliable



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       indicator of the legislative intent is the plain language of the statute, which must be given its

       ordinary meaning. Id. Where the language is clear and unambiguous, we may not depart from

       that language by reading into the statute exceptions, limitations, or conditions that the legislature

       did not express. Id. With these principles in mind, we turn to an examination of the Special

       Order.

¶ 18            The Special Order at issue is titled “Pre-Employment Disqualification Standards for

       Applicants for the Position of Police Officer,” and the relevant subsection of the Special Order is

       titled “Disqualification Based on Criminal Conduct.” Prior to listing the types of criminal

       conduct that disqualify a candidate, there is a disclaimer which reads: “The Standards are as

       comprehensive as possible, however as noted above, they cannot encompass every possible

       scenario. *** Commission of any criminal or quasi-criminal act may result in disqualification

       from employment as a Police Officer if it is determined that the acts or omissions of the

       applicant make him or her unsuitable for the position of Police Officer.” Here, O’Connor was

       disqualified based on subsection (B)(2)(c) of the Special Order, which reads:

                “Conduct Indicating Violent Tendencies. Any conduct demonstrating a propensity

                for violence may be grounds for disqualification. Conduct demonstrating a

                propensity for violence includes but is not limited to, conduct which would

                constitute *** battery *** [and] domestic violence ***. As noted above, an

                applicant who has engaged in any act falling within the scope of this section that

                constitutes a felony will be found unsuitable for employment. An applicant who

                has engaged in any act falling within the scope of this section that constitutes a

                misdemeanor within the last three (3) years (from the date of [personal history




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              questionnaire] submission) or more than one (1) time in his or her life, will be

              found unsuitable for employment.”

¶ 19          The plain language of subsection (B)(2)(c) of the Special Order defines both when

       disqualification is discretionary as well as when it is mandatory. The first sentence of the order

       provides that an applicant may be disqualified for any conduct demonstrating a propensity for

       violence. The word “may” indicates that the decision to disqualify a candidate for conduct

       demonstrating a propensity for violence is within the CPD’s discretion. See People v. Garstecki,

       234 Ill. 2d 430, 443 (2009) (statute’s use of the word “may” indicates that a rule is permissive).

       This is particularly true when we consider that the remaining sentences of the order specify the

       circumstances under which an applicant will be “found unsuitable for employment,” i.e., if the

       act charged constitutes a felony or if it was a misdemeanor committed (i) within the past 3 years

       or (ii) more than once in an applicant’s life. See Hoffman v. Altamore, 352 Ill. App. 3d 246, 256

       (2004) (“[W]hen the legislature uses certain words in one instance and different words in

       another, different results are intended.”).

¶ 20          Our conclusion finds additional support in the fact that the Special Order expressly states

       that the standards for disqualification based on criminal conduct “cannot encompass every

       scenario” and provides generally that disqualification may be based on the commission of “any

       criminal or quasi-criminal act” where the act makes the applicant “unsuitable for the position of

       police officer.” This language suggests that the Special Order is intended to invest broad

       discretion in the CPD in disqualifying candidates. For these reasons, we conclude that the

       Board’s interpretation was contrary to both the Special Order’s plain language and well-settled

       principles of statutory construction.




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¶ 21          When the Board concluded as a matter of law that one instance of violence constituting a

       misdemeanor committed more than three years before the candidate’s submission of his personal

       history questionnaire is per se insufficient to warrant disqualification, it prohibited CPD from

       exercising its discretion. Certainly, there are situations where, in CPD’s discretion, it could

       determine that a single misdemeanor act of domestic violence disqualifies a candidate from

       eligibility for employment. By way of example, if the battery was committed against a

       candidate’s pregnant wife with other small children present, CPD could determine that those

       “aggravating” circumstances render the candidate ineligible no matter when the conduct

       occurred.

¶ 22          Having determined that the Board erred in its interpretation of the Special Order, we turn

       to the proper remedy. We cannot merely remand with directions for the Board to remove

       O’Connor’s name from the eligibility list, as the CPD’s initial decision to disqualify O’Connor

       was based on both the 2003 and 2014 incidents, and the hearing officer determined that it was

       not more likely than not that the incident in 2014 in fact occurred. Given that O’Connor’s

       disqualification was based on two incidents of domestic battery, CPD was not given the

       opportunity to consider whether the circumstances of the first incident warranted

       disqualification. Therefore, the appropriate course is to allow the CPD to exercise its discretion

       to determine if the 2003 incident alone disqualifies O’Connor. In making this determination, the

       CPD may consider the fact that, while O’Connor disclosed the incident in his personal history

       questionnaire, his description of slamming the door in his mother’s face, which he included in

       the questionnaire, was at odds with (i) the police report, which indicated that O’Connor grabbed

       his mother’s neck and threw her to the floor and told police he “didn’t grab her that hard,” and

       (ii) his testimony at the hearing.



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¶ 23                                            CONCLUSION

¶ 24          For the foregoing reasons, we affirm the decision of the circuit court and remand to the

       circuit court with directions to remand to the Board with the further direction to remand to the

       CPD to determine whether the single incident of conduct constituting domestic violence engaged

       in by O’Connor is grounds for discretionary disqualification.

¶ 25          Affirmed and remanded with directions.




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