dissenting:
I would not reverse the order of the personnel board of the city of Chicago and the order of the circuit court. After investigation and an evidentiary hearing, the board found that Leonard Raczkowski, an employee of the department of health of the city of Chicago, was not an actual resident of Chicago, but indeed he lived at One Regent Lane, Lincolnshire, with his wife and children and that he was thereby guilty of violating chapter 25, section 30, Municipal Code of Chicago and violating Personnel Rule XVI, section l(j) and section l(k) of the city of Chicago. The board ordered that Raczkowski be discharged; he filed in the circuit court a petition for writ of certiorari, seeking judicial review of the board’s decision. Judge James C. Murray, on September 20, 1984, entered an order affirming the decision of the personnel board. This appeal followed.
To place this case in the proper perspective, it is well to repeat what this court said in Caldbeck v. Chicago Park District (1981), 97 Ill. App. 3d 452, 458-59, 423 N.E.2d 230:
“In a certiorari proceeding, the court must ascertain *** whether there is anything in the record which fairly tends to sustain the action of the agency. (Quinlan & Tyson, Inc. v. City of Evanston (1975), 25 Ill. App. 3d 879, 324 N.E.2d 65.) The reviewing court may not weigh the evidence or judge its probative value but rather only must determine whether the decision is supported by the evidence or is manifestly against the weight of the evidence.”
The majority opinion on its face amply shows that this is purely a case of conflicting testimony and credibility of witnesses, and this affords no basis for the substitution of our judgment for that of the personnel board. The majority in weighing and evaluating the testimony before the personnel board does precisely what the law forbids a reviewing court to do. “We are not permitted to weigh the evidence or judge its probative value. We are restricted in our determination to examination of the record and to a determination of whether the decision of the Board finds support in the evidence or is manifestly against the weight of the evidence.” Kallas v. Board of Education (1973), 15 Ill. App. 3d 450, 453, 304 N.E.2d 527.
This is a simple, straightforward question of fact addressed by the board: was Leonard Raczkowski an actual resident of the city of Chicago, as of August 28, 1980, and prior thereto? The city introduced the testimony of three neighbors of Raczkowski who lived on Regent Lane in Lincolnshire. All knew him, and. had seen him around and about the house at One Regent Lane, regularly engaging in activities normally done by residents, such as working in the yard once or twice a week or walking the dog that lived there. Further, an investigator for the Chicago police department testified that she saw Raczkowski leave One Regent Lane, Lincolnshire, at 7:15 a.m., driving a car registered to him at that address on each of the following days:
January 4,1980
April 9,1980
May 19,1980
May 21,1980
June 30,1980
July 23,1980
August 6, 1980.
The investigator confirmed that on those days Raczkowski was working on his city job at 8 a.m. In addition, the investigator testified regarding a surveillance at 2312 West Rice Street, Chicago, where Raczkowski claims he lived, conducted on the following dates:
February 20,1980
May 5, 1980
May 13, 1980
August 20, 1980.
These surveillances were from approximately 6 a.m. to approximately 8:30 a.m.; on none of these occasions did she see Raczkowski leave his purported city address although he worked those days.
In urging the reversal of the personnel board and the circuit court, Raczkowski relies largely upon his own uncorroborated testimony. He admitted that he was domiciled with his wife and children in Lincolnshire from 1972 through 1975. The issue in this case therefore is whether he established a new domicile in Chicago after 1975 and prior to August 28, 1980. (O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 654, 456 N.E.2d 998.) The party seeking to prove a change of domicile has the burden of proving that he intended to change domiciles. (In re Estate of Elson (1983), 120 Ill. App. 3d 649, 655, 458 N.E.2d 637.) Raczkowski testified that his wife and children live at One Regent Lane, Lincolnshire, and although he spends substantial amounts of time there, he and his wife are separated. However, he and his wife filed joint Federal tax returns from the Lincolnshire address. His bank accounts have that address. The record indicates that Raczkowski owns an apartment building in Chicago. From that address he is registered to vote, and the address appears on his driver’s license and on the registration of one of his cars. He gave explanations for four of the eight times he was sighted in Lincolnshire. Of course, the personnel board was not obligated to accept these explanations as true. No explanation was given of the other four times he was seen there walking the dog or mowing the lawn. Significantly, the investigators never saw him in four surveillances of his Chicago address conducted at times when people normally leave home to go to work, and Raczkowski, although he had the burden of proof, brought forward no Chicago resident to testify that Raczkowski was his neighbor. There is ample evidence to conclude that he was not domiciled in Chicago but in Lincolnshire, as the personnel board found. Even if we view Raczkowski’s self-serving testimony as evidence to the contrary, it provides no basis for reversing the decision of the board.
“If the issue before the reviewing court is merely one of conflicting testimony and credibility of witnesses, the administrative board’s decision should be sustained. [Citation.]
In order for a court of review to find that an agency’s decision is against the manifest weight of the evidence so as to justify substituting its judgment for the discretion of the board, the court must be able to conclude 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,’ (Daniels v. Police Board (1976), 37 Ill. App. 3d 1018, 1023, 349 N.E.2d 504, 508), and that the opposite conclusion is clearly evident. [Citation.] That an opposite conclusion might be reasonable or that the court might have reached a different conclusion is not adequate to set aside the agency’s decision. [Citation.]” O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 653, 456 N.E.2d 998.
The city investigated this case well and produced evidence that Leonard Raczkowski was not seen at the Chicago address where he claimed he lived and that he was seen regularly at his Lincolnshire home. Raczkowski is a Microbiologist III employed by the department of health. The decision of the majority could have a chilling effect on the commendable efforts of the city of Chicago to stem the brain drain and the flight from the city of the middle class through enforcement of those provisions of its Code and Personnel Rules requiring that city employees be residents of the city.
I dissent.