dissenting in part:
I do not agree that the plaintiff has waived his claim that his back-pay award was improper. Neither the cases cited by the majority nor the reasoning behind the doctrine of waiver supports its application to a situation, as exists here, where the party being charged with waiver did not bear the burden of raising the issue.
The Board first determined that gross wages due plaintiff were $60,551.95 and that his gross earnings during the suspension period were $17,209.40 and then found “that the law in the State of Illinois is that Officer Kaminsky is entitled to gross wages less any time for suspension and less any outside earnings.” (Emphasis added.) The above-pleaded recitation of Illinois law is incorrect. It is well settled that: “The employer has the burden of showing that the employee could or did have other earnings subsequent to the wrongful discharge and that those earnings stemmed from employment incompatible with the employment from which he was wrongfully discharged.” (Emphasis added.) (Bressler v. Board of Education of Chartered School District No. 150 (1977), 69 Ill. 2d 191, 199, 370 N.E.2d 1050, relying on People ex rel. Bourne v. Johnson (1965), 32 Ill. 2d 324, 205 N.E.2d 470.) While the plaintiff does not dispute the Board’s computations of gross wages or the amount he earned during the discharge period, he disputes both in the trial court and on appeal that the record contains any facts which would support an offset.
I agree. Both Bressler and Bourne are directly on point and provide for such an offset only where the earnings during discharge stem from incompatible employment. The record sub judice neither contains a finding of incompatibility nor reveals any evidence which would lead to such a finding. It is clear that the Board did not correctly follow Illinois law.
The majority hold that plaintiff will not be permitted to raise this issue for the first time on appeal (citing Leffler, 14 Ill. 2d 225; Sexton Sand & Gravel Corp., 113 Ill. App. 3d 807; Del Rivero, 71 Ill. App. 3d 618). These cases are distinguishable. In Del Rivero, not only did the plaintiff fail to raise the issue at the administrative level, he also failed to raise it in his complaint for administrative review. In both Sexton Sand & Gravel and Leffler, the issues were defenses that were not raised at the administrative level. In this case, incompatibility was a defense of the employer, not plaintiff. Further, in all three of these cases, the party who attempted to argue an issue on appeal also had the burden of raising it in the administrative action. In this case, the burden fell on the employer to prove that plaintiff’s employment during discharge was incompatible. Until the employer produced its evidence, plaintiff had no reason to raise any defense.
Further, the majority also states that plaintiff “expected the set-off.” (201 Ill. App. 3d at 265.) While the record does not contain any such statement, the majority reasons that such could be implied from plaintiff’s counsel’s failure to object when evidence of plaintiff’s earnings during the discharge period was introduced. The plaintiff, however, did not dispute these calculations and would, therefore, have no reason to object.
Nor does public policy support an application of waiver in this case. The waiver rule exists because of “the demands of orderly procedure and the justice of holding a party to the results of his own conduct where to do otherwise would surprise his opponent and deprive him of an opportunity to contest an issue in the tribunal which by law is supposed to decide it.” (Leffler, 14 Ill. 2d at 228; see also Sexton Sand & Gravel, 113 Ill. App. 3d at 817.) Since the employer had the burden of proving the incompatibility of plaintiff’s employment when it presented its defense during the administrative hearing, it cannot rightfully claim to be surprised by plaintiff’s issue on appeal or that it was deprived of the opportunity to contest the issue at the administrative level. It rings hollow indeed for a party to argue an inability to contest those facts that it had the burden of proving.
Additionally, common sense dictates that one party does not waive his rights by not pointing out that the other side failed to meet its burden. Administrative hearings are already sufficiently protracted without imposing upon a party a duty to comment upon his opponent’s failure to meet its burden of proof. Where a party fails to meet its burden, it is precluded from relief, and this fact is not altered by his opponent’s response or lack thereof.
Finally, even if the doctrine of waiver could apply to this case, to allow its application would be improper. The waiver rule “is not a rigid or inflexible one, and, where injustice might otherwise result, a reviewing court may consider questions of law not passed upon by an administrative agency. [Citations.]” (Wadlington v. Mindes (1970), 45 Ill. 2d 447, 453, 259 N.E.2d 257; see also Cotovsky v. Department of Registration & Education (1982), 110 Ill. App. 3d 417, 423, 442 N.E.2d 520.) In this case, the Board first improperly fired Kaminsky, then improperly suspended him, and now improperly challenges full payment of court-ordered restitution. Injustice has already resulted from the Board’s action. I see no reason to allow one more injustice simply on the grounds that Kaminsky failed to demand that the Board meet its own burden of proof.
In sum, all plaintiff had to prove to entitle him to a full back-pay award was the amount of money he would have earned during the improper discharge period. This he had done. In order to establish a set-off, his employer had the burden of proving incompatibility. This it has not done. Neither the majority opinion nor the defendant’s brief cites any authority for the proposition that a party who has not proven his entitlement to relief can somehow succeed merely because the opponent fails to comment upon the issue.
I would affirm in part and reverse in part and remand, with directions.