Second Division
March 1, 2005

No. 1-04-1522

JUSTICE HALL delivered the opinion of the court:

The central issue in this case is whether relevant sectionsof the Metropolitan Water Reclamation District Act (Act) (70 ILCS2605/1 et seq. (West 1994)), together with Personnel Rule 7.046,give plaintiff, Metropolitan Water Reclamation District ofGreater Chicago (District), the authority to administer apromotional examination to create a new "eligible list" fromwhich to fill a vacancy, rather than fill the vacancy from aneligible list in force at the time the vacancy opened. We holdthat the District does not possess such statutory authority.

BACKGROUND

On May 12, 2000, the District held a promotional exam forthe position of engineer of treatment plant operations I (ETPOI). On June 14, 2000, the District posted a "final eligiblelist" consisting of the names of eight candidates who passed theexam. The list was to remain in force for a period of threeyears pursuant to section 4.7 of the Act. Defendant Robert V.Wysocki, a supervising electrical engineer for the District, wasincluded on the list.

The list comprised three categories: category A(exceptionally well qualified), category B (well qualified), andcategory C (qualified). Wysocki placed in category "C." Thecandidates were also interviewed and afterwards they were givennumerical ranks based on the results of their interviews. Wysocki ranked fifth out of eight.

In the proceeding months and years, three of the topcandidates from the list were appointed to fill available ETPO Ipositions. On July 20, 2000, one of the candidates from the listretired. Approximately two years later, on June 12, 2002, anoperations ETPO I position became vacant.

Shortly thereafter, two more candidates from the listretired, leaving only two candidates on the list for the ETPO Ivacancy, one of whom was Wysocki. On July 15, 2002, an engineertransferred from his position in order to fill the ETPO Iposition that became vacant back on June 12, 2002. Theengineer's transfer created the vacancy at issue in this case,for the position of maintenance ETPO I.

In August and September of 2002, Wysocki wrote the directorof personnel, inquiring about the vacancy. The directorresponded that the appointment to fill the vacancy would not bemade from the original list containing Wysocki's name; rather, itwould be made from a list created from the results of asubsequent promotional exam.

On November 8, 2002, the District held the promotional exam.Wysocki elected not to take the exam. After the exam, theDistrict posted a merged list, consisting of the two names on theoriginal list and the names of candidates who passed the latestpromotional exam. On the merged list, Wysocki again placed incategory "C." The District then conducted interviews of thecandidates from the merged list. Wysocki did not participate inthe interviews.

On January 7, 2003, the District's general superintendent,appointed James L. Cutler to fill the vacant position. Cutlerwas one of the candidates who passed the promotional exam givenon November 8, 2002.

In response to Cutler's appointment, Wysocki filed an appealwith the District's Civil Service Board (Board), appealing theDistrict's decision to administer the second promotional exam andappoint Cutler. In his appeal, Wysocki requested the Board toorder the District to appoint the most qualified candidate fromthe original list that was in effect on the date the maintenanceETPO I position became vacant (July 15, 2002). He also requestedthat the appointment be made retroactive to the date of thevacancy.

On July 16, 2003, the Board issued a decision directing theDistrict to "fill the June 12, 2002 vacancy from the ETPO Ieligible list as it existed on that date." In response, theDistrict filed a petition for rehearing, arguing that Wysockilacked standing to challenge Cutler's appointment. The Districtalso argued that the Board's decision was moot where Wysocki'seligibility for appointment consideration expired on June 14,2003, when the original eligibility list expired and he declinedto participate in the subsequent selection process.

On September 22, 2003, the Board issued a supplemental orderdenying the District's petition, but acknowledging that thedisputed ETPO I position actually became vacant on July 15, 2002,not on June 12, 2002, as stated in its original decision. TheBoard then directed the District to "fill the July 15, 2002vacancy from the ETPO I eligible list as it existed on thatdate."

The District filed a complaint for administrative reviewwith the circuit court, seeking reversal of both the Board's July16, 2003, decision and its supplemental order of September 22,2003. On April 27, 2004, the circuit court issued an orderaffirming both the Board's decision and supplemental order.

On May 6, 2004, Wysocki filed a separate mandamus action inthe circuit court, seeking an order compelling the District toappoint either him or Mary Moscinski to the disputed ETPO Iposition, and if he was appointed, for an award of back pay andbenefits. The mandamus action was assigned to Judge Bernetta D.Bush.

On May 21, 2004, the District filed its notice of appeal,and, four days later, it filed a motion to stay enforcement ofthe circuit court's order. Shortly thereafter, on June 1, 2004,in Judge Bush's court, the District filed a motion under section2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West2002)), to dismiss the mandamus action.

In the motion to dismiss, the District argued that ifWysocki wanted to compel the District to comply with the circuitcourt's order, he should have raised the issue either in thecircuit court proceeding or in response to the District's motionto stay enforcement. In regard to the issues of back pay andbenefits, the District asserted that Wysocki should have raisedthese issues in the circuit court proceeding. Finally, theDistrict argued that even if the Board's decision andsupplemental order were affirmed on appeal, there is no guaranteethat Wysocki would be appointed over Mary Moscinski. Judge Bushgranted the District's motion to dismiss the mandamus action onAugust 4, 2004.

On August 17, 2004, this court granted the District's motionfor stay of judgment. The order was subsequently vacated onSeptember 24, 2004, and shortly thereafter, on October 1, 2004,the District appointed Wysocki to the disputed ETPO I position.

ANALYSIS

I. Jurisdiction

Before addressing the merits of the case, we first addressWysocki's contention that this court lacks jurisdiction to hearthis appeal on the ground that the circuit court's order of April27, 2004, was not a final order. Wysocki argues that the orderwas not final because, during the interim between the time theorder was issued and the notice of appeal was filed, he filed hismandamus action, which remained unresolved and pending. We mustreject Wysocki's argument.

Appellate jurisdiction is limited to review of finaljudgments, unless an exception is provided by statute or supremecourt rule. Trunek v. Industrial Comm'n, 345 Ill. App. 3d 126,127, 802 N.E.2d 1268 (2003). An order is final and appealable"if it determines the litigation on the merits or some definitepart thereof so that, if affirmed, the only thing remaining is toproceed with the execution of the judgment." In re Marriage ofVerdung, 126 Ill. 2d 542, 553, 535 N.E.2d 818 (1989). "'A finalorder is one which sets or fixes the rights of a party.'" In reA.H., 207 Ill. 2d 590, 594, 802 N.E.2d 215 (2003), quoting In reCurtis B., 203 Ill. 2d 53, 59, 784 N.E.2d 219 (2002).

In this case, the circuit court's order of April 27, 2004,fixed the rights of the parties brought into question byWysocki's appeal. In his appeal, Wysocki requested the Board toorder the District to appoint the most qualified candidate fromthe list in force on the date the disputed ETPO I position becamevacant. He also requested that the appointment be maderetroactive to the date of the vacancy.

In accordance with these requests, the Board issued asupplemental order on September 22, 2003, directing the Districtto "fill the July 15, 2002 vacancy from the ETPO I eligible listas it existed on that date." Afterwards, on April 27, 2004, thecircuit court entered an order affirming the Board's supplementalorder. At the time the circuit court entered its order, Wysockihad not raised the issues of retroactivity, back pay, orbenefits, and none of the issues raised in his appeal or onadministrative review were left open or held over by the circuitcourt, and nothing remained except execution of the court'sjudgment. Therefore, the circuit court's order of April 27,2004, was final and appealable.

II. Request to Strike

Another initial matter that must be addressed is Wysocki'sclaim that the District's brief should be stricken on the groundthat the statement of facts contains improper commentary andargument in violation of Supreme Court Rule 341(e)(6) (134 Ill.2d R. 341(e)(6)). Wysocki's claim is meritless.

First, Wysocki fails to specify the particular facts in theDistrict's brief he finds objectionable. Second and finally, theDistrict's statement of facts includes appropriate references tothe record and is generally accurate and free of argument. Although the statement of facts contains a few assertions thatare not clearly supported by the record, such as, for example,the District's claim that Cutler was the best person to fill thevacancy, such statements do not hinder our review. See Cottrillv. Russell, 253 Ill. App. 3d 934, 938, 625 N.E.2d 888 (1993). Wewill disregard any unsupported assertions. See Merrifield v.Illinois State Police Merit Board, 294 Ill. App. 3d 520, 527, 691N.E.2d 191 (1997).

III. Administrative Review

Turning to the merits, the District contends that pursuantto sections 4.7 and 4.11 of the Act and Personnel Rule 7.046, ifan eligible list exists at the time a vacancy opens, the Districtis not limited to filling the vacancy from that list, but caninstead administer a subsequent promotional examination in orderto create a new list from which to fill the vacancy. We mustreject the District's contention.

In reviewing a final decision under the AdministrativeReview Law (735 ILCS 5/3-101 et seq. (West 2002)), this courtreviews the administrative agency's decision and not the circuitcourt's determination. XL Disposal Corp. v. Zehnder, 304 Ill.App. 3d 202, 207, 709 N.E.2d 293 (1999). In this case, the Boardis the agency whose determinations will be reviewed. Uponreview, an agency's findings of fact are deemed to be prima facietrue and correct and will be affirmed unless they are against themanifest weight of the evidence. Launius v. Board of Fire &Police Commissioners, 151 Ill. 2d 419, 427, 603 N.E.2d 477(1992).

An agency's conclusions of law, however, are reviewed denovo. Envirite Corp. v. Illinois Environmental Protection Agency,158 Ill. 2d 210, 214, 632 N.E.2d 1035 (1994). In this case, wereview de novo the Board's interpretation of relevant sections ofthe Act and Personnel Rule 7.046. See, e.g., Lo v. ProvenaCovenant Medical Center, 342 Ill. App. 3d 975, 982, 796 N.E.2d607 (2003) (holding that interpretations of bylaws, regulations,and statutes are questions of law subject to de novo review). Generally, courts accord deference to an agency's interpretationof a statute the agency is charged with administering. WestBelmont, L.L.C. v. City of Chicago, 349 Ill. App. 3d 46, 49, 811N.E.2d 220 (2004). However, an agency's statutory interpretationis not binding on a reviewing court and will be rejected if it isunreasonable or erroneous. Press v. Code Enforcement Board ofAppeals, 149 Ill. 2d 281, 285, 595 N.E.2d 1068 (1992).

A reviewing court's primary objective in interpreting astatute is to ascertain and give effect to the intent of thelegislature. Paszkowski v. Metropolitan Water ReclamationDistrict of Greater Chicago, 213 Ill. 2d 1, 6-7, 820 N.E.2d 401(2004). The statutory language itself is the best indicator oflegislative intent. Paszkowski, 213 Ill. 2d at 7. The languageof the statute should be examined as a whole, with each sectionconsidered in relation to one another. Antunes v. Sookhakitch,146 Ill. 2d 477, 484, 588 N.E.2d 1111 (1992). Where the languageis clear and unambiguous, the statute should be applied withoutresort to aids of statutory construction. Paszkowski, 213 Ill. 2dat 7.

In this case, construing the language contained in relevantsections of the Act, together with Personnel Rule 7.046,indicates that these provisions did not give the District thestatutory authority to administer a subsequent promotionalexamination in order to create a new list from which to fill thevacant ETPO I position, where a list containing the names ofsuccessful candidates for that position already existed.

The District asserts that section 4.7 of the Act gives thedirector of personnel the authority to conduct an examinationwhenever he believes it is necessary to provide the generalsuperintendent (appointing officer) with a sufficient number ofeligible candidates. The District goes on to argue that pursuantto section 4.11 of the Act, a sufficient number of eligiblecandidates is at least five. These sections of the Act do notsupport the District's arguments.

Section 4.7 of the Act states in relevant part:

"The Director shall, by rule, provide for and shall holdsufficient number of examinations to provide a sufficientnumber of eligibles on the register for each grade ofposition in the classified civil service, and if any placein the classified civil service shall become vacant, towhich there is no person eligible for appointment, he shallhold an examination for such position and repeat the same,if necessary, until a vacancy is filled in accordance withthe provisions of this Act." 70 ILCS 2605/4.7 (West 1994).

The language in section 4.7 of the Act clearly shows thatwhen a vacancy occurs in a position the District intends to fill,the director shall hold an examination to fill the vacancy onlyin instances where there is no person eligible for appointment. In this case, when the vacancy at issue occurred, there were twopersons on the list eligible for appointment, and therefore,section 4.7 did not authorize the director to administer asubsequent examination in order to create a new list from whichto fill the vacant ETPO I position.

The District also contends that since there were only twocandidates remaining on the eligible list when the vacancyoccurred, the director was therefore authorized to conduct asubsequent examination to create a new list from which to fillthe vacancy, where section 4.11 of the Act expresses a preferencefor providing the appointing authority with at least fivecandidates to choose from when making an appointment. Again, thelanguage in section 4.11 does not support the District'sposition.

Section 4.11 states in relevant part:

"Whenever a position classified under this Act is to befilled *** the appointing officer shall make requisitionupon the Director, and the Director shall certify to himfrom the register of eligibles for the position the namesand addresses (a) of the five candidates standing highestupon the register of eligibles for the position, or (b) ofthe candidates within the highest ranking group upon theregister of eligibles if the register is by categories suchas excellent, well qualified, and qualified, provided,however, that any certification shall consist of at least 5names, if available." 70 ILCS 2605/4.11 (West 1994).

The District maintains that even though the term "ifavailable" contained in section 4.11 allows the generalsuperintendent to make appointments where there are less thanfive certified candidates, this section does not mandate that anappointment must be made when a vacancy exists and there are lessthan five candidates. The District's argument appears to bebased on a misconception of Wysocki's argument.

Wysocki does not argue that an appointment must be made whena vacancy exists; he merely contends that when a vacancy occursin a position that the District intends to fill, and an eligiblelist is in effect, the District should appoint the most qualifiedcandidate from that list, rather than administer a subsequentexamination to create a new list from which to fill the vacancy. We agree.

Where a list containing the names of successful candidatesfor a vacant position already exists, section 4.11 does not givethe director the authority to ignore that list or delay filling avacancy in order to conduct a subsequent examination to create anew list from which to fill that vacancy. Section 4.11 of theAct makes reference to an examination only in that part of thesection where it discusses the procedure to be followed whenthere is no eligible list in effect, providing in relevant part:

"When there is no eligible list, the appointing officermay, with the authority of the Director, make a temporaryappointment to remain in force only until a permanentappointment from an eligible register or list can be made inthe manner specified in the previous provisions of thisSection, and examinations to supply an eligible listtherefor shall be held and an eligible list establishedtherefrom within one year from the making of suchappointment." 70 ILCS 2605/4.11 (West 1994).

Accordingly, we construe section 4.11 of the Act as allowingthe director to conduct examinations to create a new eligiblelist from which to fill a vacancy, only when no eligible list forthat position is in effect. Therefore, under section 4.11, ifthe District intended to fill the vacancy during the time theoriginal eligible list was still in force, then Wysocki's nameand the name of the other eligible candidate, Mary Moscinski,should have been certified to the general superintendent as thetwo persons standing highest on the list. See, e.g., Carter v.City of Pawtucket, 115 R.I. 134, 138, 341 A. 2d 53, 56 (1975)(holding that vacancy should be filled pursuant to eligible listin effect at time vacancy occurred).

The District also claims that pursuant to Personnel Rule7.046, which permits the District to replenish an eligible list,the director was authorized to conduct a subsequent examinationin order to provide the general superintendent with the names ofat least five candidates as called for in section 4.11 of theAct. Personnel Rule 7.046 provides:

"Any eligible list may be replenished from time to time bythe addition of names of candidates who have passedexaminations subsequently given for the class of positionsto which the eligible list applies. Such persons shall takerank or be placed in the appropriate category upon theeligible list as determined by examinations, withoutpreference as to priority of time of examination."

This rule does not support the District's position. Personnel Rule 7.046 makes reference only to an eligible list,not to an eligible list that has been certified as in section4.11 of the Act. There is a difference between an eligible listand an eligible list that has been certified. Not all candidateson an eligible list are certified.

Pursuant to section 4.11 of the Act, whenever a position isto be filled, the general superintendent makes requisition uponthe director, who in turn certifies names from an eligible list. Therefore, a certified eligible list is the only list anappointing officer can rely upon in filling a vacancy. SincePersonnel Rule 7.046 only makes reference to an eligible list andnot to a certified eligible list, this rule cannot be readtogether with section 4.11 of the Act to give the District thestatutory authority to disregard an existing certified eligiblelist and conduct a subsequent promotional examination to create anew list from which to fill a vacancy.

Moreover, if we held that vacancies which opened before aneligible list expired could be filled from a list not yet inexistence, this would adversely affect the fairness andpredictability of the civil service system and make it possiblefor employers to engage in the kind of selective promotions thecivil service statutes were enacted to abolish. See, e.g., Glennv. City of Chicago, 256 Ill. App. 3d 825, 833, 628 N.E.2d 844(1993) (recognizing that "a fundamental purpose of a civilservice system is to remove employment from the patronagesystem").

If the District believed it was important to provide thegeneral superintendent with at least five names to choose fromwhen making an appointment to fill the vacancy, then the directorof personnel could have held promotional examinations well inadvance of the vacancy in order to ensure that at the time thevacancy opened there was a larger pool of available candidates. The District cannot wait until after a vacancy opens to decidewhether an existing eligible list is satisfactory. In cases suchas this, the only area a director of personnel can exercise hisdiscretionary authority is in his ability to expand an eligiblelist prior to a vacancy occurring.

The District also asserts that Personnel Rule 7.046,together with section 4.11 of Act, provides the generalsuperintendent with the flexibility to appoint the best personfor the job. The District's assertion is unpersuasive. Anemployee's ranking on a certified eligible list created from theresults of a competitive promotional examination establishes theemployee's ability to perform the job.

IV. Mootness

Finally, we reject Wysocki's assertion that this appeal ismoot. The District claims that if this court reverses thecircuit court's order of April 27, 2004, the District believesthat such a ruling would allow it to remove Wysocki from thedisputed ETPO I position and return him to his prior position. Under these circumstances, the appeal is not moot. See Hill-Vincent v. City of Chicago, 93 Ill. App. 3d 1033, 1037, 418N.E.2d 142 (1981) (appeal not moot where plaintiff could bereassigned to her former position).

Accordingly, for the reasons set forth above, the judgmentof the circuit court affirming the Board's July 16, 2003,decision and supplemental order of September 22, 2003, isaffirmed.

Affirmed.

WOLFSON and GARCIA, JJ., concur.