Swinkle v. Illinois Civil Service Commission

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 4th District Appellate » 2009 » Swinkle v. Illinois Civil Service Commission

State: Illinois

Court: 4th District Appellate

Docket No: 4-08-0314 Rel

Case Date: 01/15/2009

Preview:NO. 4-08-0314 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Filed 1/15/09

GERALD SWINKLE, ) Appeal from Petitioner-Appellant, ) Circuit Court of v. ) Sangamon County THE ILLINOIS CIVIL SERVICE COMMISSION, ) No. 07MR464 THE ILLINOIS LIQUOR CONTROL ) COMMISSION, THE ILLINOIS DEPARTMENT OF ) REVENUE, and THE ILLINOIS DEPARTMENT ) Honorable OF CENTRAL MANAGEMENT SERVICES, ) Patrick J. Londrigan, Respondents-Appellees. ) Judge Presiding. ________________________________________________________________ PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court: Petitioner, Gerald Swinkle, appeals from a March 28, 2008, circuit court ruling affirming the administrative decision of respondent, the Illinois Civil Service Commission (Civil Service Commission), denying him an evidentiary hearing on his claim against respondent, Illinois Liquor Control Commission (Liquor Commission) alleging its hiring practices violated the veteran's preference provision of the Personnel Code (Code) (20 ILCS 415/8b.7(f) (West 2006)). Petitioner argues the Civil Service Commission erred in concluding that (1) to be entitled to an evidentiary hearing, petitioner needed to establish a violation of the Code by a preponderance of the evidence and (2) petitioner failed to raise an issue of fact or law warranting a hearing. Respondents argue because petitioner did not file a timely notice of appeal, this court lacks jurisdiction to con-

sider petitioner's argument.

We agree and dismiss.

On August 23, 2002, petitioner submitted an employment application to the Illinois Department of Central Management Services (CMS) seeking a position with the Liquor Commission as a Liquor Control Special Agent I (Special Agent). On petitioner's

application, he preferenced Cook County as a work location. Petitioner is a Cook County resident and a United States Marine Corps veteran. On January 23, 2003, petitioner took the candi-

date exam for a Special Agent position and received an "A" grade. Bernard Riordan, a resident of Will County and a nonveteran, also submitted an application for a Special Agent position with the Liquor Commission. On Riordan's application, On

he preferenced Will and Iroquois Counties as work locations.

January 21, 2003, Riordan took the candidate exam for a Special Agent position and received an "A" grade. On December 1, 2002, the Liquor Commission established a Special Agent position in Iroquois County. The written de-

scription for the position specifically described Iroquois County as the position's location. On January 6, 2003, the Liquor Commission publically posted a written "Notice of Job Vacancy" for the Iroquois County Special Agent position. The notice specifically listed Iroquois

County as the location for the position. On January 30, 2003, petitioner added Lake County as a second county of preference for a work location on his application for a Special Agent position. - 2 Petitioner never added

Iroquois County as a preference. In March 2003, the Liquor Commission requested CMS provide an eligibility list for Iroquois County to fill the vacancy. CMS compiled a March 2003 list of eligibles for IroRiordan was

quois County and sent it to the Liquor Commission.

the only person on the Iroquois County list of eligibles. Following a March 24, 2004, interview, the Liquor Commission hired Riordan as a Special Agent on May 19, 2003. On December 8, 2006, petitioner filed a rule violation appeal with the Civil Service Commission requesting it investigate the Liquor Commission's hiring practices in filling the position. Petitioner argued that (1) the Liquor Commission violated section 8b.7(f) of the Code (20 ILCS 415/8b.7(f) (West 2006)) by establishing and filling the position in a manner circumventing the requirements of veteran's preference; (2) if he and Riordan had been on the same eligibility list, he would have been given preference over Riordan due to petitioner's veteran status; and (3) the Liquor Commission should have requested eligibility lists from other counties or a statewide eligibility list. On June 26, 2007, the Civil Service Commission's Executive Director, Daniel Stralka, issued a proposed finding that (1) petitioner had not proved by a preponderance of the evidence that the Liquor Commission violated the veteran's preference provision of the Code, (2) the facts did not establish - 3 -

the Liquor Commission circumvented the veteran's preference provision, and (3) there did not appear to be any substantial issue of fact or law to merit an evidentiary hearing. On July 16, 2007, petitioner filed a written response to the Civil Service Commission's proposed finding requesting the Civil Service Commission hold an evidentiary hearing. On July 19, 2007, the Civil Service Commission entered its final administrative decision in which it affirmed and adopted the proposed finding. On August 21, 2007, petitioner filed a complaint for administrative review of the Civil Service Commission's decision in the circuit court. Petitioner argued a substantial issue of As a

fact or law existed regarding the merits of his claim.

result, petitioner contended the Civil Service Commission should have held an evidentiary hearing instead of basing its decision on the investigation. Petitioner also sought review of the Civil

Service Commission's requirement that he prove the Liquor Commission's violation of the veteran's preference provision by a preponderance of the evidence. On March 28, 2008, the circuit court affirmed the Civil Service Commission's administrative decision. This appeal followed. As a preliminary matter, respondents question whether this court has jurisdiction over petitioner's appeal. Specifi-

cally, respondents argue petitioner's appeal should be dismissed as untimely under Rule 303(a)(1) (Official Reports Advance Sheet - 4 -

No. 8 (April 11, 2007), R. 303(a)(1), eff. May 1, 2007) because petitioner's notice of appeal was not filed in the circuit court until more than 30 days after the entry of judgment. We agree

with respondents that we lack jurisdiction to address petitioner's appeal. Notice of appeal was delivered to the office of the clerk of this court at 4:15 p.m. on Friday, April 25, 2008, and stamped "filed" by this court's clerk's office on Friday, May 2, 2008, docketed No. 4-08-0314. On May 19, 2008, petitioner filed

his docketing statement in this appeal certifying he filed a written request with the circuit court clerk to prepare the record for the appeal. The record on appeal shows he requested On

the circuit court clerk to prepare the record that same day.

June 11, 2008, the circuit court clerk certified the record; the last entry on the docket sheet in the record before us is for the same date, stating "Notice of Appeal," which document was not included in the record as prepared and certified. On September

23, 2008, respondents' counsel filed a motion to supplement the record on appeal, which this court granted. The supplement

contains a notice of appeal and the circuit court clerk's certification. The notice of appeal shows on its face that this

court's clerk's office faxed the notice of appeal delivered to our clerk's office Friday April 25, 2008, file-stamped "filed" by our clerk's office on May 2, 2008, to the circuit court clerk on June 11, 2008, presumably in response to a request by an employee in the court clerk's office preparing the record for appeal. - 5 On

Wednesday, June 11, 2008, the circuit court's office filedstamped this faxed document, appended, as the notice of appeal in this cause. Under the Personnel Code, "[a]ll final administrative decisions of the Civil Service Commission *** shall be subject to judicial review pursuant to the provisions of the Administrative Review Law [(735 ILCS 5/3-101 through 3-113 (West 2006))]." 20

ILCS 415/11a (West 2006); 80 Ill. Adm. Code

Download Swinkle v. Illinois Civil Service Commission.pdf