Illinois Department of Human Services v. Porter

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-

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 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-

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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

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 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

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 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

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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.

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 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

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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-

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 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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