specially concurring in
part and dissenting in part:
I respectfully concur in part and dissent in part. I agree the ALJ’s decision was not against the manifest weight of the evidence, the ALJ was permitted to rely on hearsay evidence, and the ALJ correctly denied the motion to expunge because the agency’s rule does not mandate the reporter to testify in all proceedings. However, I disagree that the time between administrative appeal and the Department’s final decision deprived Montalbano of due process because he did not receive a final decision for seven months. I have previously dissented in this issue (Lyon, 335 Ill. App. 3d 376, 780 N.E.2d 748).
“The Director issued his final decision on March 23, 2001, 246 days or a little over 8 months after the appeal process began. Again, this was a period found acceptable by the S.W. court (S.W. [v. Department of Children & Family Services], 276 Ill. App. 3d [672,] 680-81, 658 N.E.2d [1301,] 1307-08 [(1995)]); and it was significantly shorter than the period that was found unconstitutional in Stull [v. Department of Children & Family Services], 239 Ill. App. 3d [325,] 334-35, 606 N.E.2d [786,] 792 [(1992)] (456 days), or Cavarretta, 277 Ill. App. 3d at 26, 660 N.E.2d at 257 (598 days).” Lyon, 335 Ill. App. 3d at 391, 780 N.E.2d at 760.
Initially, Montalbano forfeited his right to complain about any delay. Because Montalbano did not raise the issue of the timing of his expungement decision at the administrative level, he has forfeited the opportunity to raise the argument now. Cooper v. Department of Children & Family Services, 234 Ill. App. 3d 474, 485-86, 599 N.E.2d 537, 544-45 (1992) (holding that where plaintiff fails to raise issue of timeliness of Department’s hearing at administrative level, the issue is waived on appeal). “The rule of waiver applies equally to issues involving constitutional due process rights.” Smith v. Department of Professional Regulation, 202 Ill. App. 3d 279, 287, 559 N.E.2d 884, 889 (1990). “Raising an issue for the first time in the circuit court is unavailing because ‘[t]he waiver rule specifically requires first raising an issue before the administrative tribunal rendering a decision from which an appeal is taken to the courts.’ ” S.W., 276 Ill. App. 3d at 679, 658 N.E.2d at 1307, quoting Smith, 202 Ill. App. 3d at 287, 559 N.E.2d at 889; see also Texaco-Cities Service Pipeline Co., 182 Ill. 2d at 278-79, 695 N.E.2d at 489 (the doctrine of waiver limits a party’s ability to argue an issue on appeal that was not raised at the administrative level).
In Cooper, this court found that the plaintiffs forfeited their claim that the Department violated their due process rights by failing to hold a day-care center revocation hearing in the 30-day statutory time frame because they did not raise the issue at the administrative level. Cooper, 234 Ill. App. 3d at 486, 599 N.E.2d at 544-45. As in Cooper, Montalbano claims in this court that the Department failed to issue an expungement decision within the regulatory time frame and, thus, violated his right to due process. But he did not voice this objection either (1) before or (2) at his hearing or (3) while he was waiting for a decision. For these reasons, Montalbano cannot complain about the untimeliness of the Department’s decision as he has forfeited his right to challenge it on this ground.
As this court explained in Shawgo v. Department of Children & Family Services, 182 Ill. App. 3d 485, 490, 538 N.E.2d 234, 237 (1989), Montalbano should have proceeded in mandamus if he believed that the Department was not diligent in issuing a decision. See S.W., 276 Ill. App. 3d at 680, 658 N.E.2d at 1307.
Moreover, Montalbano’s date of request was February 16, 2001, and, therefore, the actual time it took the Department to decide his case was only seven months, still not technically within the 90-day requirement, but not as egregiously outside of it as Montalbano claims.
The Department substantially complied with most of the statutory and regulatory time guidelines. It conducted a hearing on June 25, 2001, 129 days or about 4 months after the February 16, 2001, request for a hearing. The ALJ promptly issued a decision within only 7 days, and the Director adopted that decision within 86 days of the hearing. Hence, Montalbano received a final decision from the Department within about seven months of his request (February 16, 2001, to September 19, 2001). Thus, his assertions that he waited “seventeen months” for a decision must be rejected. This delay did not constitute a denial of due process.
The applicable time frames outlined in section 7.16 of the Reporting Act (325 ILCS 5/7.16 (West 2000)) and in the related regulations must be construed as directory, not mandatory. This is because, with the exception of section 7.16’s 10-day limit, they set forth no penalties or consequences for the Department’s failure to abide by the time frames. As this court held in Shawgo, nothing in section 7.16 indicates that the legislature intended that a petitioner such as Montalbano would be entitled to automatic expungement upon the Department’s failure to comply with the time frames set forth in section 7.16. Shawgo, 182 Ill. App. 3d at 489, 538 N.E.2d at 236.
Because section 7.16 is directory in nature, so too must the Department’s regulations stemming from that section be directory in nature. Although the Department’s regulation now provides for a decision to be rendered within 90 days (see 89 Ill. Adm. Code § 336.220 (Conway Greene CD-Rom April 2001)), this regulation does not change or alter the “reasonable time” language set out in section 7.16 of the Reporting Act. The Department promulgated this regulation pursuant to the authority granted by the Reporting Act. An agency cannot change the terms of a statute through its regulations. Van’s Material Co. v. Department of Revenue, 131 Ill. 2d 196, 202-03, 545 N.E.2d 695, 699 (1989).
Montalbano does not have a due process right to automatic ex-pungement of the indicated finding based on the timing of the decision. Before Montalbano can establish that he is entitled to due process protections, he must establish that he has some property or liberty interest at stake. “[T]he starting point in any procedural due process analysis is a determination of whether one of these protect[i]ble interests is present, for if there is not, no process is due.” Polyvend, Inc., 77 Ill. 2d at 294, 395 N.E.2d at 1378-79. While Montalbano may have some protectible interest in his position as a radio dispatcher for the Illinois State Police, his interest in his position was not apparently put at risk by the indicated finding. Unlike the teachers in Lyon, Cavarretta, and Stull, Montalbano’s employment is not jeopardized by the fact he has an indicated finding of child abuse on the State Central Register. During the hearing, Montalbano provided the following information:
“MR. NOVICK [(plaintiffs attorney)]: You were indicated after the Illinois State Police found you didn’t do anything?
MR. MONTALBANO: Right.
MR. NOVICK: Did they ever take any employment action?
MR. MONTALBANO: No.
MR. NOVICK: Loose [sic] any pay?
MR. MONTALBANO: No.
MR. NOVICK: Get suspended?
MR. MONTALBANO: No.
MR. NOVICK: All you got was a letter saying they were closing the case?
MR. MONTALBANO: Right.”
By contrast, the teachers in Lyon, Cavarretta, and Stull stood to lose their teaching certificates because they were named as perpetrators in an indicated report. See 105 ILCS 5/21 — 23(b) (West 2000). Because an indicated finding alone and without an implicated property or liberty interest does not constitutionally mandate automatic expungement based on the timing of the expungement decision, Montalbano’s claim of a constitutional right to expungement fails.
For these reasons, I would affirm the circuit court.