NO. 4-08-0894 Filed 12/23/09
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE ILLINOIS DEPARTMENT OF HUMAN ) Appeal from
SERVICES, ) Circuit Court of
Plaintiff-Appellant and ) Sangamon County
Cross-Appellee, ) No. 07MR467
v. )
CANDY PORTER, )
Defendant-Appellee and )
Cross-Appellant, )
and )
THE ILLINOIS CIVIL SERVICE COMMISSION, )
CHRIS KOLKER, RAYMOND EWELL, BARBARA )
J. PETERSON, ARES G. DALIAOIS, and )
BETTY BUKRABA, ) Honorable
Defendants-Appellees and ) Patrick W. Kelley,
Cross-Appellees. ) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE MYERSCOUGH delivered the opinion of
the court:
The Illinois Department of Human Services (Department)
appeals the decision of the Illinois Civil Service Commission
(Commission), Chris Kolker, Raymond Ewell, Barbara J. Peterson,
Ares G. Daliaois, and Betty Bukraba, to suspend Candy Porter in
lieu of discharge. Porter cross-appeals, arguing (1) the circuit
court had jurisdiction to consider the issues raised by Porter in
her counterclaim for administrative review and (2) the Commis-
sion's finding that Porter committed abuse was against the
manifest weight of the evidence. We affirm.
I. BACKGROUND
For 18 years, Porter worked as a mental-health techni-
cian II at Murray Developmental Center (Center) in Centralia,
Illinois. The Center is operated by the Department.
Porter worked in Fir Cottage, which housed very low
functioning, developmentally disabled adults, most of whom were
nonverbal. Porter's responsibilities included feeding and
bathing the residents.
In September 2006, a coworker, Sandra Coats, accused
Porter of two separate incidents of abuse against residents of
Fir Cottage: (1) squeezing the hands of three residents to force
them to eat and (2) hitting a resident on the back of the head
and yelling "stop that rocking."
A. The Charges Against Porter
The office of Inspector General (OIG) investigated the
allegations against Porter. In December 2006, OIG filed a report
on each incident, finding both allegations of abuse substanti-
ated. On January 11, 2007, a predisciplinary hearing was held.
On February 8, 2007, the Illinois Department of Central
Management Services (CMS) sent Porter the Department's two
written charges of recipient abuse and notified her that the
Department was seeking her discharge. The statement of charges
alleged as follows:
"CHARGE [No.] 1: RECIPIENT ABUSE, in that
during the week prior to
September 1, 2006, Ms.
Candy Porter, [m]ental
[h]ealth [t]echnician II
at the Murray Developmen-
- 2 -
tal Center, working first
shift on Fir Cottage, B1
unit, was seen to be
'squeezing' the hands of
D.B., J.S., and S.G. in
an effort to force these
individuals to eat their
meals.
CHARGE [No.] 2: RECIPIENT ABUSE, in that
on or about September 1,
2006, at approximately
10:30 a.m., Ms. Candy
Porter, [m]ental [h]ealth
[t]echnician II at the
Murray Developmental
Center, while working
first shift on Fir Cot-
tage, B1 unit, used her
left hand to hit individ-
ual [J.D.] in [sic] the
back of the head and
yelled 'stop that rock-
ing.'"
Testimony at the March 2007 hearing established that charge No. 2
contained a typographical error that identified the resident as
S.D. when in fact the resident was J.D. Porter affirmed at the
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hearing that she knew the allegation was that she struck J.D.
The charges alleged that Porter violated the following
rules, regulations, policies, and procedures: (1) the Depart-
ment's employee handbook, indicating that violation of any
Department policy or regulation could result in disciplinary
action up to and including discharge; (2) the Department's
administrative directive No. 01.02.03.040, providing that an
employee who fails to comply with Department rules will be
subject to discipline up to and including discharge; (3) the
Center's standard operating policy and procedure No. 320, prohib-
iting the mistreatment of mentally ill or developmentally dis-
abled individuals and providing that an employee found guilty of
mistreatment will be subject to discharge; (4) the Center's
standard operating policy and procedure No. 11.1, defining abuse
and requiring the reporting of abuse; (5) the Department's
program directive No. 02.01.06.010, providing that it is a
violation of Department policy to abuse an individual and that
any employee who abuses an individual is subject to discipline,
up to and including discharge; and (6) the Department's policy
and procedure directive No. 01.05.06.08, providing that an
employee who abuses a recipient may be subject to discipline, up
to and including discharge. Porter requested a hearing with the
Commission.
B. Evidence Presented at the Hearing
At the March 7, 2007, hearing, the Department presented
six witnesses: Porter (called as an adverse witness); Bradley
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Davis, the OIG investigator; Coats; coworker Stacy Bryant; Connie
Eversgerd, the Center's labor-relations administrator; and Jamie
Veach, the Center's director. Porter testified on her own behalf
and also called Eversgerd and Veach.
Coats testified she had known Porter for over 20 years,
having worked with her at the Center as well as a previous
nursing home. Coats and Porter got along well and had no prob-
lems. Porter also testified that she and Coats had a positive
working relationship. Porter referred to Coats as "grandma" or
"G-ma."
Coats testified that around September 1, 2006, she
returned to the living room of the unit a few minutes early after
her lunch break. Other residents were in the living room, but no
other staff members were present. Coats saw Porter sitting on a
couch next to J.D. with her arm around him.
Porter testified that J.D. often rocked back and forth.
Workers were directed to prompt him to stop rocking because the
rocking sometimes caused J.D. to vomit. Coats testified that on
other occasions, Porter had told her, matter of factly, that it
aggravated her (Porter) when J.D. rocked.
Coats testified that as she entered the room, she saw
Porter slap J.D. on the back of the head and heard Porter tell
J.D. to "stop that rocking." When asked about J.D.'s reaction to
the slap, Coats testified, he "snapped forward and came back."
Coats agreed it would take a significant amount of force to knock
J.D. forward, but J.D. did not make a sound. The slap itself did
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not make a sound either. However, Coats testified the room was
"somewhat noisy."
After seeing Porter hit J.D., Coats told Porter, "Leave
that boy alone." Porter stood up and said she was leaving for
lunch.
Shortly after the incident, Coats told coworker Bryant
what happened and asked Bryant if she had heard anything. Coats
could not remember what Bryant told her. However, on September
7, 2006, Coats told OIG Investigator Davis that Coats thought
Bryant had heard Coats say "Leave that boy alone." As of the
date of the hearing, Coats was no longer sure whether Bryant
heard anything.
According to Coats, Bryant told the cottage director,
Debbie Dunnavan, what happened. The first time Coats talked to
any supervisor about the incident was September 7, 2006.
When asked whether she had ever seen Porter act inap-
propriately toward other residents, Coats testified that she
witnessed Porter squeeze the hands of three residents, D.B.,
J.S., and S.G., while feeding them. Coats believed it occurred
about a week before the J.D. incident, which occurred around
September 1, 2006. Coats could not recall at which meal it
occurred (although Investigator Davis testified that Coats told
him it occurred during breakfast).
Coats testified that she saw Porter feeding D.B. Coats
was approximately 10 feet away at another table. Nothing ob-
structed her view. Coats saw Porter squeezing D.B.'s fingers.
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D.B. pulled back, straightened his legs, and grimaced. Coats
asked Porter "if she wasn't squeezing that boy's hand too tight."
Porter said "she didn't think so." That same day, during the
same meal, Coats also saw Porter squeezing J.S.'s and S.G.'s
hands too tightly. J.S. and S.G. also appeared to pull back.
J.S. yelled out. Coats testified J.S. did sometimes yell out,
although it was not common for J.S. to react in that manner
during feeding. Other staff members were present in the room
when Porter squeezed the hands. No other coworker claimed to
have seen Porter squeeze residents' hands. (The written state-
ments of four coworkers interviewed by Investigator Davis were
admitted by agreement of the parties. Those documents reflect
that the four coworkers reported they had never witnessed Porter
squeeze the hands of residents.)
Coats did not say anything to Porter about Porter
squeezing J.S.'s and S.G.'s hands. Coats testified she should
have reported the hand squeezing but did not. The first time
Coats reported the hand squeezing to a supervisor was when she
was "called on the carpet" for not reporting the September 1,
2006, incident regarding J.D. When asked why she waited to
report the hand squeezing, Coats said she was not sure. When
asked why she disclosed the information at all, Coats testified
the information needed to be turned in, and she was there to
protect the residents. However, Porter was her friend, and
Coats was sad that Porter was discharged. Coats testified she
received a written reprimand for failing to report the alleged
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abuse of J.D., D.B., J.S., and S.G. (Eversgerd, however, testi-
fied Coats received an oral reprimand.)
Bryant, a mental-health technician II, testified only
regarding certain uncharged conduct that the administrative law
judge (ALJ) admitted over objection on the ground that it was
admissible only for the purpose of impeaching Porter's credibil-
ity. Bryant testified the incident occurred at the evening meal
on approximately September 1, 2006, although she did not believe
it occurred on the same day as the incident regarding J.D.
Bryant observed Porter squeeze S.G.'s hand while feeding her.
Bryant told coworker Cathy McCown but did not report it to her
supervisor, although she knew she was required to report it.
Bryant testified she received a written reprimand for failing to
report the incident. (Eversgerd, however, testified Bryant
received an oral reprimand.)
Porter testified that she had worked at the Center from
February 1988 through the fall of 2006. She knew that physical
abuse of a resident was absolutely prohibited. Porter agreed
that squeezing hands or striking a resident on the back of the
head constituted physical abuse, but she denied having done so.
Porter denied slapping J.D. Porter testified that it was not
difficult to get J.D. to stop rocking and that slapping him on
the head might cause him stress and induce him to vomit. More-
over, Porter testified the couch where the incident allegedly
occurred was in full view of the nurse's aide station. However,
she did not recall if anyone was at the nurse's aide station at
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the time.
Porter also denied squeezing any of the residents'
hands. Porter testified that she would face no adverse conse-
quences if the residents did not eat and agitating them or
causing them pain would not cause them to eat. In addition, D.B.
and S.G. had feeding tubes and could be fed that way if they did
not eat or drink enough. Moreover, Porter did not recall Coats
saying something to her about holding a resident's hand too
tightly.
According to Porter, it was not uncommon to gently hold
a resident's hand while feeding. She did not recall, however,
whether she told Investigator Davis that she never held the
residents' hands while feeding them. The following exchange
between Porter and the assistant Attorney General occurred
regarding Porter's handwritten statement to Investigator Davis:
"Q. Okay. I'm going to refer you to
what is A-4, page three of three on your
report. It was asked to [sic] you, 'have you
ever held their hands while feeding?' Could
you tell me what your response is there?
A. 'No.'
Q. Okay. And it's my understanding
that you just testified that you do hold
their hands while you're feeding?
A. Well, just like holding like this,
but I'm not like talking like holding a grip,
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no.
Q. Okay. And I believe you were also
asked here if you squeezed their hands, and
you reported no; right?
A. Yeah, I don't squeeze hands, no.
Q. Okay. And then you were actually
asked if all you do is ever hold their hands
while feeding, and your response to that
question was [']no[']. It wasn't [']some-
times.['] It wasn't [']maybe[']. It wasn't
[']I don't recall.['] It was [']no[']; is
that correct?
A. Yes."
Porter's written statement to Investigator Davis
provided, in part, as follows:
"[S.G.] on a good day, feeds herself,
you might have to help to finish up her meal.
When you have to help, she will usually hold
her head up & if not I will put *** a couple
of my fingers under her chin to help hold it
up.
[D.B.] I have no problem with him, if he
knows it is me feeding him, he will hold his
head up the entire time [and] laugh at me.
[J.S.] is fed. If he will not hold his
head up I will also put [two] fingers under
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his chin to help hold his head up.
[Q.] When is it necessary to hold a
person that we serve's [sic] hand during
feeding a meal?
[A.] Never that I know of!
[Q.] Have you squeezed the hands of Mr.
S[.] while feeding?
[A.] No--it would make him mad--then he
would not eat.
[Q.] Did you squeeze Ms. G[.'s] hand to
get her to eat?
[A.] No--she feeds herself for the most
part.
[Q.] Did you squeeze Mr. B[.'s] hand
while feeding him?
[A.] No--he always eats good for me.
[Q.] When you are feeding the people we
serve, where are your hands?
[A.] My left one has the spoon [and] my
right is either holding the plate or two
fingers under their chin if necessary.
[Q.] Have you ever held their hands
while feeding?
[A.] No.
[Q.] Is there a reason that you aware
of why anyone would allege that you squeeze
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their hands to get them to eat?
[A.] Not to my knowledge."
Davis, the OIG investigator, testified that he investi-
gated the two separate allegations of abuse against Porter. In
both cases, Davis found the allegations substantiated. Davis
testified that when he interviewed Porter, she was not coopera-
tive. However, Porter denied in writing and orally that she
abused any residents.
Davis was unable to establish a date for the hand-
squeezing incident but found the incident occurred approximately
one week prior to September 1, 2006, at the breakfast meal.
Davis testified that no one corroborated Coats' testimony.
The ALJ admitted the OIG reports "to the extent that
the[] documents were relied upon by [the Department] in making
the decision to discharge Porter." In addition, Porter's state-
ment to Investigator Davis about the hand-squeezing incident was
also admitted as a statement inconsistent with Porter's testimony
at the hearing.
Several individuals testified about the appetite logs.
An appetite log is a document that contains a list of the resi-
dents' names, a place to mark how much each resident ate or
drank, and a place for the initials of the "monitor." Porter's
initials did not appear next to the name of D.B., J.S., or S.G.
on any of the breakfast appetite logs for August 23, 24, 25, 26,
or 27.
Veach, the Center director, and Eversgerd, the labor-
- 12 -
relations administrator, both testified that the appetite logs
were supposed to be accurate and, if they became aware of inaccu-
racies, the inaccuracies would be investigated. However, Coats
testified that the purpose of the appetite logs was to keep track
of how much the residents ate and drank at meals. Although the
person that fed a particular resident was supposed to initial the
appetite log, that did not always happen. Coats testified that
sometimes the appetite log did not get filled out or someone else
asked how the resident ate and signed off on the appetite log.
Coats had also observed occasions when one person fed a resident
and his or her initials did not appear on the appetite log.
However, if an individual does initial the sheet, that means he
or she at least had some role in feeding the resident. Coats did
not recall whether anyone other than Porter fed D.B., J.S., and
S.G. the day she saw Porter squeezing their hands. However, when
asked whether, to the best of her knowledge, Porter was the only
one who fed D.B., J.S., and S.G. on the day in question, Coats
responded, "yes." According to Coats, Porter should have ini-
tialed the appetite logs that day. When asked if it was a
violation for Porter to have fed the individuals and not put her
initials, Coats said it was, but that "[i]t happens all the
time."
Investigator Davis testified that he was familiar with
appetite logs. Davis testified that the appetite logs were
supposed to be completed accurately and complete but that was not
always the case. The initials were not always accurate because
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one person may start to feed a resident and another staff member
may step in. Moreover, Davis testified that the purpose of the
appetite logs was to monitor food intake, not track who fed each
resident. He used the appetite logs only to identify witnesses.
Porter testified that the appetite logs should contain
the initials of the person who fed the resident. If more than
one person feeds a resident, both initials should be listed, but
that does not always occur. Porter testified the appetite logs
did not show her feeding D.B., J.S., or S.G. breakfast any of the
days between August 23 and August 27, 2006. The Department
tendered, but the ALJ ultimately refused to consider, one appe-
tite log for lunch and one appetite log for dinner the week prior
to September 1, 2006.
Veach, the Center director, testified he was the final
decision maker. He reviewed the OIG reports but did not take
that information into consideration when determining whether
Porter should be discharged. Veach explained that if the report
"states it's a substantiated case of abuse, it's automatic
discharge." This was based on Department of Human Services
Secretary Carol Adams' unwritten zero-tolerance policy.
Veach also testified that a medical examination is
required after an allegation of abuse is made. Over a hearsay
objection, Veach testified that he had reviewed a report from a
doctor who examined the residents. The report indicated one
resident--Veach believed it was D.B., but he was not sure--
required a follow-up for a nondisplaced fracture on the left
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hand, fourth metacarpal. By the time the specialist saw the
resident, the specialist could not determine the date the injury
occurred because the injury had already begun to heal.
Eversgerd testified she was familiar with Porter's
personnel file. Porter only had one prior disciplinary action
relating to "some sick time usage many years ago." Porter had
good evaluations. Eversgerd also came across language in Por-
ter's personal file characterizing her as a caring employee.
Porter had no prior reports of abuse or neglect. However,
because of the substantiated allegation of abuse, termination was
automatic. When asked the license ramifications for an employee
who abused a resident, Eversgerd testified that the employee's
name will be placed on the "[Nurse] Aide Registry," which pre-
vents an employee from working around residents cared for through
the State.
Due to the employees' failures to report the suspected
abuse by Porter, the Department of Public Health placed the
Center on "immediate jeopardy," the second highest level of
discipline a facility can receive short of decertification. An
"immediate jeopardy" required a 10-day action plan be submitted
to the Department of Public Health, which is then reviewed by
CMS. In response to the "immediate jeopardy," Veach implemented
a policy increasing the punishment for a failure to report from
progressive discipline (oral warning, written reprimand, et
cetera) to a 10-day suspension for a first violation, 20-day
suspension for a second violation, and discharge for a third
- 15 -
violation.
C. The ALJ's Recommended Decision
On July 19, 2007, the ALJ entered a recommended deci-
sion that the written charges for discharge be found proved and
that "sound public opinion recognized the prove[d] charges as
good cause for *** Porter to no longer hold the position of
[m]ental[-h]ealth [t]echnician II." The ALJ found that the
matter came down to the credibility of two witnesses and that
Coats was more credible than Porter. The ALJ noted that Coats
and Porter got along professionally and personally, and Coats did
not have a bias against Porter or a motive to testify falsely.
Coats' testimony that she witnessed Porter slap J.D. and squeeze
the hands of D.B., J.S., and S.G. was credible. The ALJ found
"nothing in [Coats'] tone, demeanor[,] or in the content of her
testimony to indicate that Coats was lying, mistaken[,] or
testifying falsely against Porter."
The ALJ further found that Porter received good work
evaluations, had no previous discipline, and appeared to care
about the residents she served. However, the ALJ found Porter
was not credible:
"Again, Porter flat out denied the charges.
Porter did not state that she might have
squeezed the residents' hands, or touched
J.D.'s head, simply to get the residents'
attention. She did not testify that there
might have been physical contact as witnessed
- 16 -
by Coats but there was no harm, and/or intent
to harm, the residents. Rather, Porter tes-
tified that the events described in the
charges simply did not happen."
The ALJ also found Porter's statements regarding charge No. 1
were "inconsistent." Porter initially told Investigator Davis
she never held the residents' hands while feeding them. At the
hearing, however, Porter testified that she might "gently" hold a
resident's hand during the meal. Coats and Bryant offered
credible testimony that they each witnessed Porter squeezing the
hands of residents while feeding them, in direct contradiction to
Porter's assertion that she never squeezed residents' hands.
The ALJ also concluded:
"Despite over 18 years of public service
with the State of Illinois, no prior disci-
pline, positive work evaluations, and an
indication of genuine empathy for the resi-
dents she served, sound public policy war-
rants the discharge of [Porter.] Throughout
this case, [Porter] has flat out denied the
allegations (as opposed to acknowledging that
the events giving rise to the charges might
have happened but the degree of force was
misinterpreted or exaggerated by Coats).
However, the preponderance of the evidence
indicates Porter used physical force--a force
- 17 -
that was not 'gentle'--to manipulate the
residents' conduct. This behavior was not
necessary, nor reasonable, and it falls
squarely under the definition of mistreatment
and/or abuse. For the most part, the resi-
dents of Fir Cottage have the intellectual
capacity of infants. Most residents are
nonverbal, barely able to meaningfully commu-
nicate with others. In sum, they are de-
fenseless and the behavior described in the
charges, and ultimately proved at the hear-
ing, is the antithesis of Porter's duty as a
[m]ental[-h]ealth [t]echnician II: to protect
and care for the residents. For these rea-
sons, sound public policy warrants the dis-
charge of [Porter.]"
D. The Commission's Decision
In July 2007, Porter filed objections to the recom-
mended decision, including objections to the ALJ's (1) credibil-
ity findings; (2) failure to give weight to the appetite logs
showing Porter did not feed D.B., J.S., and S.G. breakfast during
the time in question; and (3) failure to give any weight to the
argument that Porter was denied her right to due process and to
adequately defend against the charges because Porter did not know
the date the abuse allegedly occurred.
On July 19, 2007, the Commission, with one member
- 18 -
dissenting, modified and adopted the recommended decision of the
ALJ:
"It is hereby determined that the writ-
ten charges for discharge approved by the
Director of [CMS], have been prove[d], but
the unique factual circumstances surrounding
the discharge did not rise to the level which
sound public policy recognized as good cause
for the employee to no longer hold the posi-
tion. This is supported by [Porter's] 18
years of service to the State and the lack of
a discipline on her record. The Commission
expressly finds that [Porter] committed the
actions she is charged with, but in no way is
this to be interpreted to mean that unwar-
ranted physical contact with clients is an
undisciplineable [sic] offense. The said
prove[d] charges warrant a 90-day suspension
in lieu of discharge. It is further recom-
mended that [Porter] undergo any available
training regarding the care of residents
under her charge. This is a final adminis-
trative order subject to the Administrative
Review Act."
E. The Circuit Court Proceedings Affirming the Commission
On August 21, 2007, the Department filed a complaint
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for administrative review. The Department asserted that the
Commission's decision to suspend Porter for 90 days in lieu of
discharge was arbitrary and capricious, contrary to mandatory
Department policies, legally erroneous, and contrary to sound
public policy.
On September 6, 2007, Porter answered the complaint
and filed a counterclaim for administrative review. In her
counterclaim, Porter sought administrative review of the Commis-
sion's decision to the extent it adopted the factual findings of
the ALJ and imposed any discipline on Porter. Porter requested
the circuit court reverse the Commission's decision and order the
Department to immediately reinstate Porter with back pay, bene-
fits, and seniority.
In September and October 2007, the Department and the
Commission, respectively, each filed a motion to dismiss Porter's
counterclaim asserting the circuit court lacked jurisdiction to
consider it. In January 2008, the court dismissed the counter-
claim, finding the 35-day requirement jurisdictional. The court
held that Porter failed to independently file a complaint for
administrative review within 35 days of the Commission's deci-
sion.
The parties briefed the issue raised in the Depart-
ment's complaint for administrative review. In her brief, Porter
asked the circuit court to review the Commission's factual
findings. Porter also asked the court to take judicial notice of
two administrative proceedings.
- 20 -
First, Porter asked the court to take judicial notice
that the Department agreed to a dismissal of its Nurse Aide
Registry petition against Porter. Porter attached (1) a February
2, 2007, letter to Porter from OIG Investigator Davis notifying
Porter that due to the substantiated allegation of physical
abuse, OIG would report her identity and the findings to the
Nurse Aide Registry and (2) an August 21, 2007, notice of dis-
missal in a Department of Human Services proceeding (Nos. 07-NAR-
006, 07-NAR-007, OIG No. 5807-04, and OIG No. 5807-005), noting
receipt of a stipulated agreement between the Department and
Porter and Porter's request that "her appeal be withdrawn."
Second, Porter asked the circuit court to take judicial
notice of the final administrative order and decision and recom-
mendation of Chief ALJ Naomi Bean Dunn's decision in Department
of Public Health, State of Illinois v. Candy Porter, No. CNA 07-
0013, pertaining to the same allegations as the instant case.
Porter argued that "[b]ased upon the exact same charges and the
same witnesses, the Department of Public Health found the same
charges to be unsubstantiated and refused to revoke [Porter's]
CNA [(certified nursing assistant)] license or to impose disci-
pline on Porter." Porter attached (1) the January 17, 2008,
final order adopting the recommendations of the ALJ and providing
"[t]he finding and allegations of resident abuse is NOT AFFIRMED
and SHALL NOT be included in the Nurse Aide Registry"; and (2)
the ALJ's recommended decision, dated January 15, 2008, in which
the ALJ found Porter credible, did not find Coats' testimony
- 21 -
credible, found that the behaviors witnessed by Coats did not
rise to the level of abuse as "defined by the Act," and found the
Department had not proved that Porter committed the abuse.
On September 17, 2008, the circuit court held a hear-
ing. No transcript of the hearing is contained in the record on
appeal.
On October 16, 2008, the circuit court entered a
written order. The court declined to take judicial notice of the
documents attached to Porter's brief that were outside the
administrative record. The court also declined Porter's request
to review the Commission's factual findings because she did not
timely file a complaint for administrative review seeking review
of the factual findings. The court reviewed the Commission's
decision that Porter's abuse of the residents did not meet the
standard for discharge and applied the clearly erroneous standard
to its finding. The court held:
"5. The Commission is the agency charg-
ed with administering the regulation at issue
[(80 Ill. Adm. Code §1.170, as amended by 19
Ill. Reg. 12451 (eff. August 21, 1995))] and
is presumably in touch with what sound public
opinion would recognize as good cause for
discharge. Moreover, the [c]ourt does not
find it was error for the Commission to con-
sider [Porter's] 18-year unblemished work
record, as the regulation specifically pro-
- 22 -
vides for consideration of performance record
and length of continuous service.
6. Accordingly, in light of the
[c]ourt's duty to give due deference to the
Commission as the agency charged with apply-
ing its own regulation and its obligation to
be in touch with what sound public opinion
would recognize as good cause for discharging
[Porter], the [c]ourt does not find the Com-
mission's decision to impose a 90-day suspen-
sion on [Porter] in lieu of discharge was
clearly erroneous."
This appeal and cross-appeal followed.
II. ANALYSIS
In its appeal, the Department argues the Commission's
decision not to discharge Porter should be reversed. In her
cross-appeal, Porter argues (1) the circuit court had jurisdic-
tion to consider the issues raised by Porter in her counterclaim
for administrative review; and (2) the Commission's finding that
Porter committed abuse was against the manifest weight of the
evidence. Both Porter and the Commission argue that the Commis-
sion's decision to suspend Porter in lieu of discharge should be
affirmed. Equip for Equality, Inc., filed an amicus curiae brief
on behalf of the Department. We first address jurisdiction.
A. The Trial Court Had Jurisdiction Over Porter's Counterclaim
In her cross-appeal, Porter argues the circuit court
- 23 -
had jurisdiction to consider the issues raised by Porter in her
counterclaim for administrative review. The Commission argues
that the circuit court did not have jurisdiction over Porter's
counterclaim for administrative review because Porter did not
seek review within the time and manner provided by the Adminis-
trative Review Law--within 35 days of receipt of the Commission's
decision. 735 ILCS 5/3-101 through 3-113 (West 2008). The
Department adopted the Commission's argument.
Section 11a of the Personnel Code provides that final
administrative decisions of the Commission are subject to judi-
cial review pursuant to the Administrative Review Law (735 ILCS
5/3-101 through 3-113 (West 2008)). 20 ILCS 415/11a (West 2008);
see also 80 Ill. Adm. Code §1.300, as amended by 19 Ill. Reg.
12451 (eff. August 21, 1995) ("All final decisions of the Commis-
sion shall be subject to appeal by the parties to the proceedings
under the Administrative Review Act"). Under the Administrative
Review Law, circuit courts are vested with jurisdiction to review
final administrative decisions. 735 ILCS 5/3-104 (West 2008).
To obtain review of a final administrative decision, an action
must be commenced within 35 days of service of the decision:
"Every action to review a final adminis-
trative decision shall be commenced by the
filing of a complaint and the issuance of
summons within 35 days from the date that a
copy of the decision sought to be reviewed
was served upon the party affected by the
- 24 -
decision ***." 735 ILCS 5/3-103 (West 2008).
See also 80 Ill. Adm. Code §1.300, as amended by 19 Ill. Reg.
12451 (eff. August 21, 1995) (providing for appeal of a final
decision of the Commission by filing a complaint and issuing
summons within 35 days from the date the decision was served on
the party affected). "Unless the action is commenced within the
35 days, the trial court lacks subject[-]matter jurisdiction and
the complaining party is barred from obtaining judicial relief."
McGaw Medical Center of Northwestern University v. Department of
Employment Security, 369 Ill. App. 3d 37, 40, 860 N.E.2d 471, 474
(2006) (affirming the dismissal of the plaintiff's complaint for
administrative review for failure to name the Board).
The Commission argues that Porter was required to file
her cross-complaint for administrative review within 35 days of
her receipt of the Commission's decision. According to the
Commission, because Porter did not do so, the circuit court
lacked subject-matter jurisdiction over her counterclaim. We
disagree.
The Administrative Review Law requires that an action
be commenced within 35 days of service of the final administra-
tive decision. 735 ILCS 5/3-103 (West 2008). That occurred
here. When the Department filed a complaint for administrative
review within 35 days of the Commission's decision, the circuit
court was vested with subject-matter jurisdiction over the entire
matter, including the issue raised in Porter's counterclaim,
pursuant to section 3-110 of the Administrative Review Law:
- 25 -
"Every action to review any final admin-
istrative decision shall be heard and deter-
mined by the court with all convenient speed.
The hearing and determination shall extend to
all questions of law and fact presented by
the entire record before the court." 735
ILCS 5/3-110 (West 2006).
Given the plain language in section 3-110, once the action was
timely filed by the Department, the court had the authority to
hear and determine all questions of law and fact presented by the
entire record. This included the Commission's decision that
Porter had committed the abuse. See, e.g., Huff v. Rock Island
County Sheriff's Merit Comm'n, 294 Ill. App. 3d 477, 482, 89
N.E.2d 1159, 1164 (1998) (addressing the trial court's finding of
neglect of duty where it appears the employee only challenged his
demotion and suspension; appellate court noted that the review of
an administrative decision extends to all questions of law and
fact presented by the record); Washington v. Civil Service
Comm'n, 120 Ill. App. 3d 822, 827-28, 458 N.E.2d 952, 956 (1983)
(holding that the filing of the cross-complaint did not consti-
tute the commencement of review and that the proceeding was
commenced within the 35-day period when the plaintiff filed his
complaint for review; but also incorrectly holding that the 35-
day timing requirements were procedural, not jurisdictional,
limitations); Colaw v. University Civil Service Merit Board of
the University Civil Service System, 37 Ill. App. 3d 857, 860-61,
- 26 -
341 N.E.2d 719, 722 (1975) (rejecting the argument that the
plaintiff forfeited the issue of whether the remand procedure was
proper by not objecting in the trial court; the appellate court
could review all questions of law and fact presented by the
record).
This conclusion is supported by the analogous procedure
in workers' compensation cases. Section 19(f)(1) of the Workers'
Compensation Act provides that a proceeding for judicial review
must be commenced within 20 days of notice of the Illinois
Workers' Compensation Commission's decision. 820 ILCS
305/19(f)(1) (West 2008). Similar to the Administrative Review
Law, the Workers' Compensation Act gives the circuit court, "by
summons to the Commission[,] [the] power to review all questions
of law and fact presented by such record." 820 ILCS 305/19(f)(1)
(West 2008). In Hurt v. Industrial Comm'n, 191 Ill. App. 3d 733,
738, 548 N.E.2d 122, 126 (1989), this court noted that an oppos-
ing party is not required to file its own summons to preserve
his, her, or its "right to object to questions arising on the
record or questions involved in the decision reviewed." Hurt,
191 Ill. App. 3d at 738, 548 N.E.2d at 126 (holding that "[t]he
summons issued to the Commission upon the written request of the
instant claimant brought before the circuit court the employer's
objections to the Commission's award").
Moreover, section 1-108 of the Code of Civil Procedure
(Code) provides that the civil-practice provisions contained in
article II of the Code apply to article III proceedings (the
- 27 -
provisions pertaining to administrative review), except as
otherwise provided in article III. 735 ILCS 5/1-108 (West 2008).
One of the provisions contained in article II of the Code is
section 2-608, which defines a "counterclaim" as any claim by a
defendant against a plaintiff and provides that a "counterclaim
shall be part of the answer." 735 ILCS 5/2-608(a), (b) (West
2008).
The Administrative Review Law requires the filing of an
answer by an agency and permits the filing of an appearance by
any other defendant within the time provided by supreme court
rules. 735 ILCS 5/3-106 (West 2008). The time within which to
file an appearance under the supreme court rules is 30 days. See
166 Ill. 2d R. 101(d).
The Administrative Review Law does not prohibit the
filing of an answer by a party other than the agency. Here,
Porter filed an answer within 30 days of service. As part of
that answer, she filed a counterclaim. The filing of the coun-
terclaim was not prohibited nor does the Administrative Review
Law "otherwise provide." Consequently, Porter's counterclaim was
timely filed under the supreme court rules, and the circuit court
had jurisdiction to consider the counterclaim.
Therefore, the circuit court erroneously determined it
lacked jurisdiction over Porter's counterclaim. However, because
this court reviews the Commission's decision and not the trial
court's decision, remand is not required. See, e.g., Kimball
Dawson, LLC v. City of Chicago Department of Zoning, 369 Ill.
- 28 -
App. 3d 780, 786, 861 N.E.2d 216, 222 (2006) (appellate court
reviews the decision of the administrative agency, not the
circuit court).
B. The Commission's Finding That Abuse Occurred
Was Not Against the Manifest Weight
Porter raises several arguments related to the Commis-
sion's decision that Porter committed abuse. Porter argues (1)
she did not have adequate notice of the charges; (2) the Commis-
sion applied the wrong standard for the burden of proof because,
when a crime is charged in a civil administrative hearing, the
evidence proving such a crime should be by clear and convincing
evidence; and (3) the finding that the Department sustained its
burden of proof was against the manifest weight of the evidence.
1. Standard of Review
The standard of review in cases involving the Adminis-
trative Review Law depends upon whether the issue is one of fact
or law. Exelon Corp. v. Department of Revenue, 234 Ill. 2d 266,
272, N.E.2d , (2009). Factual questions are reviewed
under the manifest-weight-of-the-evidence standard, questions of
law are reviewed de novo, and mixed questions of fact and law are
reviewed for clear error. Exelon, 234 Ill. 2d at 272-73,
N.E.2d at .
In discharge cases, "[t]he scope of review of an
administrative agency's decision regarding discharge is generally
a two-step process involving first, a manifest-weight standard,
and second, a determination of whether the findings of fact
provide a sufficient basis for the agency's conclusion that cause
- 29 -
for discharge does or does not exist." Brown v. Civil Service
Comm'n, 133 Ill. App. 3d 35, 39, 478 N.E.2d 541, 544 (1985),
citing Department of Mental Health & Developmental Disabilities
v. Civil Service Comm'n, 85 Ill. 2d 547, 550, 426 N.E.2d 885, 887
(1981); see also Hermesdorf v. Wu, 372 Ill. App. 3d 842, 851-52,
867 N.E.2d 34, 43 (2007).
2. Porter Had Adequate Notice of the Charges
Porter argues she did not have adequate notice of the
charges against her. Porter asserts she was forced to defend
against a charge that only specified she abused three residents
during the week prior to September 1, 2006. Porter also argues
that Coats' delay in reporting the incident regarding J.D. also
deprived her of the opportunity to properly "respond and defend."
Porter raised this issue in her objection to the ALJ's
recommendation and raised the issue in her briefing to the
circuit court. However, Porter does not support her argument on
appeal with citation to authorities. See 210 Ill. 2d R. 341(h)(-
7) (requiring that argument contain citation to authorities).
Therefore, the issue is forfeited. See Orzel v. Szewczyk, 391
Ill. App. 3d 283, 287, 908 N.E.2d 569, 573 (2009) (providing that
where a party fails to cite supporting authority, the issues may
be considered forfeited).
Even if this court were to address the issue, we would
find that Porter had adequate notice. The Commission's regula-
tions require the charges be "specific enough to apprise the
employee of the nature and substance of the cause alleged for
- 30 -
discharge." 80 Ill. Adm. Code §1.160(a), as amended by 19 Ill.
Reg. 12451 (eff. August 21, 1995). The regulations also require
the charges be set forth in separate paragraphs and contain "the
dates, names of persons, places, and facts necessary to properly
allege cause." 80 Ill. Adm. Code §1.160(b), as amended by 19
Ill. Reg. 12451 (eff. August 21, 1995); see also Abrahamson v.
Illinois Department of Professional Regulation, 153 Ill. 2d 76,
93, 606 N.E.2d 1111, 1119 (1992) (due process requires that
charges in an administrative decision need only advise the
respondent of the charges so that she can prepare a defense).
Here, the charges apprised Porter of the approximate
date, the names of persons involved, and the places where the
incidents allegedly occurred. Porter had adequate notice. See,
e.g., Morgan v. Department of Financial & Professional Regula-
tion, 388 Ill. App. 3d 633, 668, 903 N.E.2d 799, 828 (2009)
(holding that where the complaint contained specific allegations
of misconduct, specific citations to the regulatory provisions
alleged to have been violated, and a general time period--"'in or
about December 2004'"--the respondent was given adequate notice
of the charges against him).
3. The Commission Properly Applied
Preponderance Standard of Proof
Porter next argues that the Commission applied the
wrong standard of proof. Porter argues that when a crime is
charged in a civil administrative hearing, the evidence proving
such a crime should be clear and convincing.
Porter has forfeited this argument by not raising it
- 31 -
before the ALJ, the Commission, or the circuit court. See Smith
v. Department of Professional Regulation, 202 Ill. App. 3d 279,
286-87, 559 N.E.2d 884, 889 (1990) (finding the plaintiff for-
feited the argument that the ALJ applied the wrong standard of
proof by failing to raise the issue before the ALJ or the Board).
Even if Porter had not forfeited the issue, the Commis-
sion clearly applied the appropriate standard of proof. Notably,
the Commissions's regulations require only proof by a preponder-
ance of the evidence. See 80 Ill. Adm. Code §1.232(a), as
amended by 19 Ill. Reg. 12451 (eff. August 21, 1995). Moreover,
under the required balancing test established by the supreme
court in Board of Education v. State Board of Education, 113 Ill.
2d 173, 194, 497 N.E.2d 984, 993 (1986), the preponderance burden
of proof was appropriate.
In Board of Education, 113 Ill. 2d at 194, 497 N.E.2d
at 993, the Illinois Supreme Court held that due process did not
require a clear and convincing standard of proof in a tenured-
teacher dismissal proceeding even where the conduct charged might
also constitute a crime. In that case, when determining the
appropriate burden of proof, the court balanced the private
interests affected by the proceeding, the countervailing govern-
mental interest, and the risk of error created by the govern-
ment's chosen procedure. Board of Education, 113 Ill. 2d at 190-
91, 497 N.E.2d at 991.
Under the first balancing factor--the private interest
affected--the supreme court examined the nature of the private
- 32 -
interest threatened and the permanency of the threatened loss.
Board of Education, 113 Ill. 2d at 192-93, 497 N.E.2d at 992.
The supreme court concluded that teachers have an economic
interest in their position, but that monetary interests are
adequately protected by the preponderance standard. Board of
Education, 113 Ill. 2d at 192, 497 N.E.2d at 992. Moreover,
although teachers have an interest in teaching as a profession,
the court found that was an interest shared by teachers dismissed
for noncriminal conduct as well as criminal conduct. Board of
Education, 113 Ill. 2d at 192, 497 N.E.2d at 992. The court also
noted that dismissal does not prevent a teacher from teaching;
therefore, the threatened loss was not permanent. Board of
Education, 113 Ill. 2d at 192-93, 497 N.E.2d at 992 (noting that
a separate hearing is provided for a teacher prior to suspension
or revocation of his or her teaching certificate). The supreme
court contrasted tenured-teacher proceedings with attorney
disciplinary hearings. Board of Education, 113 Ill. 2d at 193,
497 N.E.2d at 992. Attorney disciplinary hearings required clear
and convincing evidence, but such proceedings may result in
disbarment. Board of Education, 113 Ill. 2d at 193, 497 N.E.2d
at 192.
Examining the governmental interest, the supreme court
noted that a school board had a legitimate interest in dismissing
teachers whose conduct violated the law or those who are incompe-
tent. Board of Education, 113 Ill. 2d at 194, 497 N.E.2d at 993.
The school had an interest in applying a standard that reduces
- 33 -
the risk of error that may result in an unfit individual continu-
ing to teach. Board of Education, 113 Ill. 2d at 194, 497 N.E.2d
at 993.
Under the third balancing factor--the risk of error--
the supreme court found it appropriate for the teacher and the
school board to share the risk of error in dismissal proceedings
in a roughly equal manner where the possible harm to each was
roughly equal. Board of Education, 113 Ill. 2d at 194, 497
N.E.2d at 993; see also Feliciano v. Illinois Racing Board, 110
Ill. App. 3d 997, 1000, 443 N.E.2d 261, 264 (1982) ("The primary
purpose of assigning a particular standard of proof to an
adjudicatory proceeding is to minimize the risk of erroneous
decisions," and the individual should not share the risk where
the possible harm to the individual is greater than the possible
harm to the governmental entity).
The same analysis applies here. Porter has an economic
interest in her position, but that interest is adequately pro-
tected by the preponderance standard. Porter's threatened loss
is not permanent (the status of her licensing was subject to a
separate proceeding). The Department also has an interest in
dismissing mental-health technicians who are unfit to work with
residents in the facility. Because the two interests are roughly
equal, both Porter and the Department should share the risk of
error in the dismissal proceedings. The preponderance-of-the-
evidence standard was therefore appropriate. See Teil v. City of
Chicago, 284 Ill. App. 3d 167, 170, 671 N.E.2d 759, 762 (1996)
- 34 -
(finding the administrative agency properly applied the
preponderance-of-the-evidence standard in case involving charges
that the police officer violated department rules, which conduct
also constituted a crime).
4. The Commission's Decision Was Not Against
the Manifest Weight of the Evidence
Porter argues that under either standard--clear and
convincing or preponderance of the evidence--the Commission's
finding that Porter committed the abuse was against the manifest
weight of the evidence. Specifically, Porter argues that the
only admissible evidence supporting the charges was the unsup-
ported testimony by Coats, and several factors directly contra-
dict Coats, including the following: (1) Porter denied the
charges; (2) Coats failed to immediately report the incidents;
(3) no one else saw the incidents; (4) the evidence established
that inflicting pain on the residents would make them harder to
feed; (5) Porter's initials did not appear on any of the appetite
logs for the breakfast meals the week prior to September 1, 2006;
(6) regarding the squeezing incident, Coats only heard noises and
movements she interpreted as pain but the residents often cry out
and make movements for no reason; and (7) despite the force of
the blow to J.D., he did not make a sound and the slap did not
make a sound.
This court reviews the Commission's decision, not the
circuit court's. Ahmad v. Board of Education, 365 Ill. App. 3d
155, 162, 847 N.E.2d 810, 817 (2006). When reviewing the admin-
istrative agency's decision, this court presumes that the agency-
- 35 -
's findings of fact are prima facie true and correct. 735 ILCS
5/3-110 (West 2008) ("The findings and conclusions of the admin-
istrative agency on questions of fact shall be held to be prima
facie true and correct").
As stated in Exelon, 234 Ill. 2d at 272, N.E.2d at
:
"[W]hen a court reviews an administrative
agency's factual findings, it will not rewei-
gh the evidence or substitute its judgment
for that of the agency. Rather, the court
will only ascertain whether such findings of
fact are against the manifest weight of the
evidence."
See also Sheehan v. Board of Fire & Police Commissioners, 158
Ill. App. 3d 275, 287, 509 N.E.2d 467, 475 (1987) (the court
"should limit its inquiry to ascertaining whether the findings
and decision of the agency are against the manifest weight of the
evidence"). An administrative agency's decision is against the
manifest weight of the evidence where the court concludes that
"all reasonable and unbiased persons, acting within the limits
prescribed by the law and drawing all inferences in support of
the finding, would agree that the finding is erroneous and that
the opposite conclusion is clearly evident." Sheehan, 158 Ill.
App. 3d at 287, 509 N.E.2d at 475-76.
This court will not reweigh the evidence here or make
independent determinations of credibility. The Commission
- 36 -
adopted the ALJ's specific factual findings. The case came down
to Porter's testimony against Coats' testimony. The Commission
believed Coats. The Commission found the evidence indicated
Coats did not have a bias against Porter or a motive to testify
falsely. Coats testified Porter was her friend and she felt sad
that Porter was discharged. Porter also testified that she and
Coats had a positive working relationship.
The Commission found Porter's testimony not credible,
in part, because she denied in her written statement to Investi-
gator Davis that she ever held the hands of the residents while
feeding them but testified at the hearing that she sometimes
gently held the residents' hands. While the difference between
Porter's testimony at hearing and her statement to Investigator
Davis may appear factually inconsistent, when read in context,
the statements may not be inconsistent but merely a matter of
semantics. Nonetheless, this court will not reweigh the evidence
or make credibility determinations. The Commission's findings on
credibility are supported by the evidence.
Porter argues that nothing corroborated Coats' testi-
mony and that none of the appetite logs shows Porter fed those
three residents the breakfast meal during the time in question.
However, evidence was presented that the appetite logs were not
always accurate. More than one person may feed a resident but
only one set of initials may appear on the appetite log. Al-
though Coats did not recall that anyone else fed D.B., J.S., or
S.G. on the day in question, the Commission found her observa-
- 37 -
tions credible.
The Commission also believed Coats' testimony about
Porter hitting J.D. Porter argues it was unlikely she could hit
J.D. with such force without J.D. or the slap making a sound.
However, Coats testified the room was "somewhat noisy."
"[I]t is the responsibility of the administrative
agency to weigh the evidence, determine the credibility of
witnesses[,] and resolve conflicts in testimony." Teil, 284 Ill.
App. 3d at 170, 671 N.E.2d at 762; see also Feliciano, 110 Ill.
App. 3d at 1004, 443 N.E.2d at 267 (something more than conflict-
ing testimony is necessary to find an administrative agency's
credibility findings erroneous). If the record contains evidence
that supports the agency's determination, it must be affirmed.
Kimball, 369 Ill. App. 3d at 786, 861 N.E.2d at 222. The Commis-
sion found the abuse occurred. The evidence supports that
decision.
Porter argues she was entitled to a presumption similar
to the missing-evidence jury instruction. See Illinois Pattern
Jury Instructions, Civil. No. 5.01 (2006) (instruction pertaining
to the failure to produce evidence or a witness). Specifically,
Porter argues that when a document is under the control of a
party, the party does not produce it, and in all likelihood the
party would have produced the document, the trier of fact may
infer that the document would be unfavorable. However, the
appetite logs for the breakfast meals on August 23, 2006, through
August 27, 2006, were produced and did not show that Porter fed
- 38 -
any of the residents in question their breakfast meal. Porter
does not point to anything suggesting that additional pertinent
appetite logs were withheld from her. Therefore, Porter has not
demonstrated she would even be entitled to such a presumption.
Porter also argues that Veach's testimony about one of
the residents suffering a nondisplaced fracture was irrelevant
and should not have been relied on by the Commission. Porter
argues Veach was a layman interpreting an unidentified X-ray
report.
The applicable administrative regulation provides as
follows:
"a) Irrelevant, immaterial[,] or unduly
repetitious evidence shall be excluded. The
rules of evidence and privilege as applied in
civil cases in the circuit courts of Illinois
shall be followed. However, evidence not
admissible under such rules of evidence may
be admitted (except where precluded by stat-
ute) if it is of a type commonly relied upon
by reasonably prudent persons in the conduct
of their affairs." 80 Ill. Adm. Code
§1.233(a), as amended by 19 Ill. Reg. 12451
(eff. August 21, 1995).
Porter argues no prudent person would rely on Veach's layman's
interpretation of an unidentified X-ray report.
The record contains the X-ray report finding the
- 39 -
nondisplaced fracture. That document was a part of the OIG
report. However, the OIG report was admitted only to the extent
the report was relied on in making the decision to discharge.
Veach testified that the only thing he relied upon in making the
discharge decision was the substantiated finding of abuse. As
such, it does not appear that the testimony about the nondisplac-
ed fracture was relevant, as it was not considered by Veach in
making the discharge decision.
However, even if the admission of the testimony was in
error, Porter cannot show prejudice. Section 3-111(b) of the
Administrative Review Law requires a showing of prejudice:
"Technical errors in the proceedings
before the administrative agency or its fail-
ure to observe the technical rules of evi-
dence shall not constitute grounds for the
reversal of the administrative decision un-
less it appears that such error or failure
materially affected the rights of any party
and resulted in substantial injustice to him
or her." 735 ILCS 5/3-111(b) (West 2008).
See also McCleary v. Board of Fire & Police Commissioners, 251
Ill. App. 3d 988, 993, 622 N.E.2d 1257, 1262 (1993) ("the appel-
late court may reverse an administrative ruling only if there is
error which prejudiced a party in the proceeding"). Nothing in
the record demonstrates the Commission considered such evidence.
The Commission's decision was based on the credibility of Coats.
- 40 -
Porter did not suffer prejudice as the admission of the evidence
did not affect the outcome.
Finally, Porter asks this court to take judicial notice
of ALJ Dunn's decision in Department of Public Health, State of
Illinois v. Candy Porter, No. CNA 07-0013, which involved the
same allegations as in the instant case. Porter asks this court
to take judicial notice that, based on the exact same charges and
the same witnesses, the Department of Public Health found the
charges unsubstantiated and refused to revoke Porter's CNA
license or impose discipline. Porter notes that ALJ Dunn specif-
ically found Porter's testimony credible and Coats' testimony not
credible. Porter also asks this court to take judicial notice
that the Department of Human Services, which Porter identifies as
the "very same entity which is the [a]ppellant in this case,"
dismissed its Nurse Aide Registry petition against Porter relat-
ing to these charges.
Section 3-110 of the Administrative Review Law (735
ILCS 5/3-110 (West 2008)) provides, in part, that "[n]o new or
additional evidence in support of or in opposition to any find-
ing, order, determination[,] or decision of the administrative
agency shall be heard by the [reviewing] court." However,
notwithstanding section 3-110, documents containing readily
verifiable facts may be judicially noticed if taking judicial
notice will "aid in the efficient disposition of a case."
Muller v. Zollar, 267 Ill. App. 3d 339, 341, 642 N.E.2d 860, 862
(1994). Moreover, the appellate court can take judicial notice
- 41 -
even if judicial notice was not sought in the trial court.
Muller, 267 Ill. App. 3d at 341, 642 N.E.2d at 862.
This court may take judicial notice of a written
decision that is part of the record in another court or adminis-
trative tribunal because such documents fall within the category
of readily verifiable facts "'which are capable of "instant and
unquestionable demonstration."'" Hermesdorf, 372 Ill. App. 3d at
850, 867 N.E.2d at 41-42, quoting May Department Stores Co. v.
Teamsters Union Local No. 743, 64 Ill. 2d 153, 159, 355 N.E.2d 7,
9 (1976), quoting 9 J. Wigmore, Evidence §2571, at 548 (3d ed.
1940). Therefore, this court will take judicial notice of the
fact that Porter's license was not revoked and that her name is
not listed on the Nurse Aide Registry. However, Porter appar-
ently wants this court to take judicial notice of those documents
to undermine the Commission's decision in this case. Porter
cites no authority in support of doing so. Moreover, this court
cannot reweigh evidence or independently determine credibility.
Therefore, while this court will take judicial notice of the two
orders, those orders do not support reversal of the Commission's
decision in this case.
C. The Commission's Decision To Suspend Porter in Lieu
of Discharge Was Not Arbitrary, Unreasonable,
or Unrelated to the Requirements of the Service
In its appeal, the Department argues the Commission's
decision to suspend Porter for 90 days in lieu of discharge
should be reversed. The Department argues the Commission's
decision was unreasonable, arbitrary, and contrary to public
- 42 -
policy. Equip for Equality, Inc., filed an amicus curiae brief
in support of the Department. The Commission and Porter argue
that the Commission's decision to suspend Porter in lieu of
discharge should be affirmed.
As noted above, the "scope of review of an administra-
tive agency's decision regarding discharge is generally a two-
step process involving first, a manifest-weight standard, and
second, a determination of whether the findings of fact provide a
sufficient basis for the agency's conclusion that cause for
discharge does or does not exist." Brown, 133 Ill. App. 3d at
39, 478 N.E.2d at 544, citing Department of Mental Health, 85
Ill. 2d at 550, 426 N.E.2d at 887. However, "an agency's deter-
mination of cause to discharge is not prima facie true and
correct and is subject to judicial review." Brown, 133 Ill. App.
3d at 39, 478 N.E.2d at 544. Nonetheless, the Commission's
decision "will not be reversed unless it is arbitrary, unreason-
able, or unrelated to the requirements of service." Department
of Mental Health, 85 Ill. 2d at 552, 426 N.E.2d at 887.
The Commission's regulations define "cause for dis-
charge exists" as follows:
"a) Cause for discharge consists of some
substantial shortcoming which renders the
employee's continuance in his position in
some way detrimental to the discipline and
efficiency of the service and which the law
and sound public opinion recognize as good
- 43 -
cause for the employee no longer holding the
position.
b) In determining the appropriate pen-
alty for an offense of which the employee is
found guilty, the Commission shall consider
the employee's performance record and the
employee's length of continuous service un-
less the offense would warrant immediate
discharge." 80 Ill. Adm. Code §1.170(a), as
amended by 19 Ill. Reg. 12451 (eff. August
21, 1995).
Pursuant to the regulations, discharge was proper where Porter's
continued employment would be detrimental to the discipline and
efficiency of the Center and where the law and sound public
opinion recognized that good cause existed for Porter to no
longer hold the position.
While the Center had an unwritten, zero-tolerance
policy requiring discharge for abuse, all of the Center and
Department policies contained in the record reflect that abuse
would result in discipline, up to and including discharge, or
that such employee would be subject to discharge. Such language
does not require discharge. See, e.g., American Federation of
State, County & Municipal Employees, AFL-CIO v. State of Illi-
nois, 158 Ill. App. 3d 584, 590, 511 N.E.2d 749, 753 (1987)
(policy stating that an employee found guilty of mistreatment
"'will be subject to discharge'" was not the equivalent of
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"will/shall be discharged" (emphases in original)).
Moreover, given Porter's employment history, good
evaluations, and genuine empathy for the residents, the Commis-
sion's decision was not arbitrary, unreasonable, or unrelated to
the requirements of service. See Department of Mental Health,
85 Ill. 2d at 550-52, 426 N.E.2d at 886-88 (affirming Commis-
sion's decision to suspend the defendant in lieu of discharge
where the defendant, when punched and scratched by a patient,
"'punched and kicked [the] patient who was under restraint'"; the
Commission found that the reaction was not calculated but was a
result of his sudden loss of control).
The Department also argues that public policy required
Porter's discharge. According to the Department, suspension in
lieu of discharge violated the public policy in favor of protect-
ing the vulnerable, eliminating the risk of future harm, and
deterring others. The Department borrows this terminology from
arbitration cases, which provide that while review of an arbitra-
tor's decision is very limited, a court may vacate the arbitra-
tor's award if the award is contrary to public policy. County of
De Witt v. American Federation of State, County & Municipal
Employees, Council 31, 298 Ill. App. 3d 634, 637, 699 N.E.2d 163,
166 (1998); see also American Federation of State, County &
Municipal Employees, AFL-CIO v. Department of Central Management
Services, 173 Ill. 2d 299, 318, 671 N.E.2d 668, 678 (1996) (a
court cannot enforce an arbitrator's award that violates public
policy). In such cases, a two-step analysis applies: (1) the
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identification of a well-defined public policy and (2) determina-
tion of whether the arbitrator's award violated public policy.
De Witt, 298 Ill. App. 3d at 637, 699 N.E.2d at 166.
We question whether this analysis applies here. This
is not a collective-bargaining situation where we are reviewing
the parties' bargained-for labor contract. See, e.g., Interna-
tional Ass'n of Firefighters v. City of Springfield, 378 Ill.
App. 3d 1078, 1081, 883 N.E.2d 590, 592 (2008) ("deference is
accorded because the parties have chosen by contractual agreement
how their dispute is to be decided, and judicial modification of
an arbitrator's decision deprives the parties of their choice").
However, even if such analysis applied here, public policy did
not prevent Porter's reinstatement. The parties do not dispute
that Illinois recognizes a public policy of protecting those who
cannot help themselves, including the protection and care for
persons with developmental disabilities. Therefore, the only
question here is whether reinstating Porter violates public
policy. See, e.g., Jacksonville Area Ass'n for Retarded Citizens
v. General Service Employees Union, Local 73, 888 F. Supp. 901,
906 (C.D. Ill. 1995) (issue was not whether the employee's past
conduct violated public policy but whether reinstatement of the
employee violated public policy).
The Commission adopted the ALJ's findings that Porter
had no prior discipline, positive work evaluations, and indicated
genuine empathy for the residents she served. The Commission
determined that given Porter's years of service and lack of
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discipline, a 90-day suspension was warranted in lieu of dis-
charge. The Commission also recommended further training for
Porter regarding the care of residents under her charge. Im-
plicit in these findings is that Porter was amenable to disci-
pline. See American Federation, 173 Ill. 2d at 322, 671 N.E.2d
at 680 ("as long as the arbitrator makes a rational finding that
the employee can be trusted to refrain from the offending con-
duct, the arbitrator may reinstate" the employee and the review-
ing court will affirm). Moreover, no law prohibits Porter's
employment. See, e.g., Jacksonville Area Ass'n for Retarded
Citizens, 888 F. Supp. at 908-09 (concluding that the arbitra-
tor's award reinstating employees who, to satisfy their own
curiosity, examined a mentally and/or physically impaired client
to determine if the client was a hermaphrodite, was not against
public policy where the arbitrator implicitly found they were
amenable to discipline and where no law prohibited their employ-
ment, reemployment, or reinstatement); 405 ILCS 5/3-210 (West
2008) (prohibiting an employee suspected of abuse from contact
with recipients of service until the outcome of the investigation
or disciplinary action against the employee, thus indicating that
once disciplinary action has occurred, contact is no longer
prohibited).
The case cited by the amicus, De Witt, 298 Ill. App. 3d
634, 699 N.E.2d 163, does not require a different result. In De
Witt, 298 Ill. App. 3d at 638, 699 N.E.2d at 166, this court
concluded that the arbitrator's decision to completely reinstate
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an employee who hit a resident, without any reprimand for her
behavior, was against public policy. This court found the
arbitrator lacked a rational basis for concluding the employee
would not repeat such conduct and did not take any precautionary
steps to deter future misconduct or ensure it will not be re-
peated. De Witt, 298 Ill. App. 3d at 638-39, 699 N.E.2d at 166-
67 (also rejecting the arbitrator's interpretation of the
collective-bargaining agreement that "one incident of striking,
that causes no apparent injury, does not amount to "'resident
abuse'").
In contrast here, the Commission found that Porter did
commit the abuse but that Porter was a good employee, had no
prior discipline, and cared about the residents. Moreover,
Porter received a severe discipline--a 90-day suspension--unlike
the complete reinstatement with back pay awarded in De Witt. De
Witt, 298 Ill. App. 3d at 639, 699 N.E.2d at 167. In addition,
the Commission recommended she receive additional training,
whereas in De Witt, no additional training was recommended. De
Witt, 298 Ill. App. 3d at 639, 699 N.E.2d at 167. We note that
in De Witt, this court recognized that in other cases where the
arbitrator concluded that the employee could be trusted to
refrain from future misconduct, the employee admitted wrongdoing.
Porter did not admit wrongdoing here. However, Porter recognized
that such conduct, if it occurred, would constitute abuse. The
record supports the Commission's conclusion that Porter posed no
threat for future abuse.
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III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
TURNER and STEIGMANN, JJ., concur.
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Illinois Department of Human Services v. Porter
Combined Opinion