Gilchrist v. Human Rights Comm'n, No. 1-99-1054

1st District, March 27, 2000

FIRST DIVISION

JUSTICE GALLAGHER delivered the opinion of the court:

This is a direct administrative review action in which an employee, Mary Beth Gilchrist (Petitioner), seeks review of a final decision of the Illinois Human Rights Commission (the Commission). The Commission found that Petitioner's employer, the Chicago Park District (Respondent), did not discriminate against Petitioner.

Following is a brief summary of the facts relevant to our decision. Petitioner is a white female who was born January 15, 1945. She began working for the Respondent in 1977. In January 1990, the Respondent transferred Petitioner to the purchasing department in the position of secretary to executive. On or about November 10, 1992, Petitioner was terminated for allegedly violating two work rules, namely, (1) being absent from duty without proper authorization from August 18, 1992, thru October 6, 1992; and (2) failing to comply with the directive(s) of the medical department that she provide information concerning her current medical condition. Petitioner appealed the decision to the Chicago Park District's Personnel Review Board and was eventually found not guilty of either charge when, on or about May 26, 1995, a hearing officer rendered a written decision. The hearing officer further recommended that Petitioner be reinstated to her employment with Respondent with full benefits and back pay.

On January 4, 1993, approximately two months after she was terminated, and concurrent with the appeal of that termination with the Personnel Review Board, Petitioner also filed a charge of discrimination with the Illinois Department of Human Rights (the Department), in which she essentially alleged that Respondent discharged her because of her race, gender and age. Approximately seven months later, in August 1993, Petitioner amended her charge to include allegations that Respondent did not deal promptly with the scheduling of hearings during her appeal of her discharge, for the same discriminatory reasons. On November 1, 1993, Petitioner filed, with the Commission, a complaint based on the charge filed with the Department, which is the subject of this appeal.

A public hearing was held on October 15 and 17, 1997. Administrative Law Judge (ALJ) Mitchell Kline presided over the hearing, but left the Commission before he could issue a written decision. On April 24, 1998, Chief ALJ Jane F. Bularzik wrote a letter to counsel for both parties informing them of that fact. More notably, in that same letter, Bularzik stated that "Pursuant to Section 8A-102(I)(4) [(775 ILCS 5/8A-102 (West 1996))], this case cannot be assigned to another judge to issue a decision based on the record since there are questions of witness credibility presented by the record. Therefore, this matter must be reset for another full hearing." A status hearing was set for May 6, 1998, at which time a new public hearing date was to be scheduled. Nevertheless, prior to the status hearing, on April 28, 1998, Bularzik entered an order that stated in pertinent part as follows: "Pursuant to the Agreed Motion and Stipulation, signed by counsel for both parties, this matter is to have a written decision by a Hearing Officer (Administrative Law Judge) who did not preside at the public hearing."

Subsequently, on August 27, 1998, ALJ Denise F. McGuire issued her recommended liability determination (RLD), recommending in part that Petitioner's complaint be dismissed with prejudice. The time for filing exceptions to the decision was tolled, pending the issuance of a recommended order and decision (ROD) addressing the issues of attorney fees and costs. On December 9, 1998, the ROD was issued, and it incorporated by reference the RLD and further suggested an award to Petitioner of $6,550 in attorney fees incurred during the discovery phase of the matter and denied Respondent's motion for attorney fees. The Commission declined to review the ROD, which consequently became the order and decision of the Commission, pursuant to section 8A-103(E)(1) of the Illinois Human Rights Act (the Act)(775 ILCS 5/8A-103(E)(1)(West 1996)).⁽¹⁾

Petitioner now appeals.

Although both parties have raised numerous arguments with respect to the merits of the Commission's decision, neither party has raised the threshold issue of whether the Commission properly accepted the ROD of an ALJ who had not presided over the evidentiary hearing. We have an obligation to consider, sua sponte, whether the Commission exceeded its statutory authority. See, e.g., Siddens v. Industrial Comm'n, 304 Ill. App. 3d 506, 511, 711 N.E.2d 18, 22 (1999) (because courts have a duty to vacate and expunge void orders from court records, a court may sua sponte declare void an order entered by an agency where the order was beyond the scope of the agency's statutory authority). We conclude that the Commission exceeded its statutory authority when it entered its order of April 28, 1998, that allowed an ALJ who had not presided over the evidentiary hearing to issue a written decision and again exceeded its statutory authority when it accepted, in its entirety, the ensuant ROD of that ALJ.

An administrative agency, such as the Commission, obtains its power to act from the legislation creating it and its power is strictly confined to that granted in its enabling statute. Harton v. City of Chicago Department of Public Works, 301 Ill. App. 3d 378, 390, 703 N.E.2d 493, 501 (1998); Davis v. Haas & Haas, Inc., 296 Ill. App. 3d 369, 373, 694 N.E.2d 588, 590 (1998); Davis v. Human Rights Comm'n, 286 Ill. App. 3d 508, 514, 676 N.E.2d 315, 320 (1997); Robinson v. Human Rights Comm'n, 201 Ill. App. 3d 722, 726-27, 559 N.E.2d 229, 232 (1990); Abatron, Inc. v. Department of Labor, 162 Ill. App. 3d 697, 515 N.E.2d 1336 (1987). While the term "jurisdiction" may not be strictly applicable to an administrative body, the term may be used to designate the authority of the administrative body to act, and the terms "jurisdiction" and "authority" have been used interchangeably in certain administrative law contexts. Business & Professional People for the Public Interest v. Illinois Commerce Comm'n, 136 Ill. 2d 192, 243-44, 555 N.E.2d 693, 716-17 (1989); Robinson, 201 Ill. App. 3d at 726, 559 N.E.2d at 231. A decision by an agency which lacks the statutory power to enter the decision is treated the same as a decision by an agency which lacks personal or subject matter jurisdiction--the decisions are void. Business & Professional People for the Public Interest, 136 Ill. 2d at 244, 555 N.E.2d at 717. A void order is a complete nullity from its inception and has no legal effect. Siddens v. Industrial Comm'n, 304 Ill. App. 3d 506, 511, 711 N.E.2d 18, 21 (1999). Because this court has a duty to vacate and expunge void orders from court records, we may sua sponte declare an order void. Siddens, 304 Ill. App. 3d at 511, 711 N.E.2d at 22 (1999).

Since an administrative agency is a creature of statute, any power or authority claimed by the agency must find its source within the provisions of the statute by which it is created. Granite City Division of National Steel Co. v. Illinois Pollution Control Board, 155 Ill. 2d 149, 171, 613 N.E.2d 719, 729 (1993). The order entered on April 28, 1998, allowing a different ALJ to rule rather than the ALJ who presided over the public hearing, was purportedly based upon section 8A-102(I)(4) of the Act. (775 ILCS 5/8A-102) (West 1996). That section of the Act provides as follows:

"Hearing on complaint.

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(4) The findings and recommended order of the hearing officer shall be filed with the Commission. The findings and recommended order need not be authored by the hearing officer who presides at the public hearing if:

(a) all parties to a complaint agree to have the decision written by a hearing officer who did not preside at the public hearing;

(b) the presiding hearing officer transmits his or her impression of witness credibility to the hearing officer who authors the findings and recommended order; and

(c) there are no questions of witness credibility presented by the record as found by the presiding officer." (Emphasis added.) 775 ILCS 5/8A-102(I)(4) (West 1996).

The Commission determined that the statute was applicable to the instant case. We, however, are not bound by the Commission's interpretation of section 8A-102 of the Act. Agency interpretations of statutes are not binding on the courts, and we must overturn any agency action that is inconsistent with the statute. Carson Pirie Scott & Co. v. State of Illinois Department of Employment Security, 131 Ill. 2d 23, 34, 544 N.E.2d 772, 777 (1989).

The construction of a statute is an issue of law; our review is de novo. Boaden v. Department of Law Enforcement, 171 Ill. 2d 230, 237, 664 N.E.2d 61, 65 (1996). The fundamental principle of statutory construction is to ascertain and give effect to the intent of the legislature. Bowne of Chicago, Inc. v. Human Rights Comm'n, 301 Ill. App. 3d 116, 119, 703 N.E.2d 443, 446 (1998). The most reliable indicator of legislative intent is the statute's language, which must be given its plain and ordinary meaning. Boaden v. Department of Law Enforcement, 171 Ill. 2d 230, 237, 664 N.E.2d 61, 65 (1996).

Section 8A-102 of the Act contains three subsections connected by the word "and." As a general rule, the use of the conjunctive, as in the word "and," indicates that the legislature intended for all of the listed requirements to be met. (1A N. Singer, Sutherland on Statutory Construction