dissenting:
I do not agree with the majority’s conclusion that the veterans preference provision of the Personnel Code accords veterans an absolute preference over nonveterans receiving the same ranking, even when the nonveteran is more qualified for the position in question. The majority’s interpretation is not required by the language of the statute, is inconsistent with the practice followed by the agency responsible for carrying out the statute, and conflicts with the requirements of other statutory provisions. For those reasons, I respectfully dissent.
The veterans preference provision at issue is found in section 8b.7(f) of the Personnel Code, which states:
"The rank order of persons entitled to a preference on eligible lists shall be determined on the basis of their augmented ratings. When the Director [of Central Management Services] establishes eligible lists on the basis of category ratings such as 'superior’, 'excellent’, 'well-qualified’, and 'qualified’, the veteran eligibles in each such category shall be preferred for appointment before the non-veteran eligibles in the same category.” 20 ILCS 415/8b.7(f) (West 1992).
Declaring that ''there is no value in a 'prefer[ence] for appointment’ that does not result in appointment,” the majority concludes that section 8b.7(f) unambiguously requires that a veteran be hired before a nonveteran when the two are assigned the same grade by the Department of Central Management Services (CMS). 176 Ill. 2d at 150. The applicants in the present case were graded on a descending scale of A, B, and C; both the plaintiff, Stephen Denton, and the person ultimately hired for the position at issue, Linda Lang, received grades of A. Under the majority’s interpretation of section 8b.7(f), a veteran such as Denton who receives a grade of A must be hired instead of a nonveteran receiving the same grade, even when the veteran is less qualified for the job in question.
I disagree with the majority’s conclusion that the statutory language is unambiguous, and with the majority’s determination that the preference expressed in the statute can be effectuated only by requiring the hiring of veterans rather than nonveterans merely on the basis of the veterans’ category ranking. The statute says simply that veterans ''shall be preferred for appointment” before nonveterans, without describing the nature or strength of the preference. It is not clear from the statutory language whether the preference is absolute in all instances, or whether it may instead be overcome in some cases, as when a nonveteran possesses better qualifications. I agree with the defendant agencies that the provision affords a veteran an absolute preference in hiring over a nonveteran in the same category only when the two candidates are equally well qualified. In addition, I note that other measures prescribed by CMS for agencies in conducting interviews and in making hiring decisions give further effect to the statutory preference. In my view, the agencies’ interpretation fulfills the purposes of the statutory preference, as well as those of the Personnel Code, of which the preference is a part.
Notably, other provisions of the Personnel Code cannot be reconciled with the absolute preference the majority finds in the language of section 8b.7(f). For example, section 8b.5 of the Personnel Code provides "[f]or the appointment of the person standing among the 3 highest on the appropriate eligible list to fill a vacancy, or from the highest ranking group if the list is by rankings instead of numerical ratings, except as otherwise provided in Sections 4b and 17a of this Act.” 20 ILCS 415/8b.5 (West 1992). The only two exceptions stated in that section pertain to persons whose positions were not initially covered by the Personnel Code and to persons appointed to certain trainee programs; if the legislature had intended for the veterans preference to operate in the absolute manner found by the majority, then section 8b.5 would cite the preference statute as an additional exception to the proviso allowing the hiring agency to make its selection from among the top three candidates.
The majority’s interpretation also ignores the distinct roles played by CMS and the hiring agencies in employment decisions. The grades assigned by CMS refer only to the general qualifications of the applicants for the position classification in question. In this case, the applicants were applying for an executive IV position, and both received grades of A. In assigning those grades to the applicants, however, CMS was examining only the general requirements of executive IV positions and the overall qualifications of the applicants, and was not considering the particular requirements of the post being filled by the Department of State Police or the more specialized qualifications possessed by the individual applicants. Two candidates might receive the same grade, reflecting their general qualifications for an executive IV position, yet they might not be equally well qualified for the specific position being filled by the hiring agency. CMS grades persons only on the basis of general characteristics required for a certain job classification. Under the majority’s interpretation, however, an applicant’s status as a veteran can become the sole determinant in hiring, once CMS places the veteran in the highest category. The majority’s construction will prevent the more searching scrutiny previously undertaken by hiring agencies of an applicant’s qualifications for a particular job.
As the defendants point out, CMS has adopted a number of measures that are designed to carry out the preference afforded by section 8b.7(f). Under guidelines adopted by CMS, agencies are instructed to consider and interview veterans first when both veterans and nonveterans appear on a list of eligible candidates. A nonveteran may be hired over a veteran only when the interviewing officer believes that "the prior educational training, past work experience and/or job related personal attributes of the nonveteran eligible presents evidence that he or she will perform the duties and functions of the vacant position in a manner superior to any of the by-passed veteran eligibles.” A veteran who is not selected for a position may obtain a written explanation of the reasons for the hiring decision. In addition, CMS must give advance approval of an agency’s request to hire a nonveteran over a veteran in the same category ranking. "As a general rule, courts will accord deference to the interpretation placed on a statute by the agency charged with its administration.” City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268, 122 Ill. 2d 353, 361 (1988); see also Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 739, 135 L. Ed. 2d 25, 30, 116 S. Ct. 1730, 1733 (1996) ("It is our practice to defer to the reasonable judgments of agencies with regard to the meaning of ambiguous terms in statutes that they are charged with administering”). The interpretation expressed in the CMS guidelines, and offered here by the defendants, is a reasonable one, and it has the substantial merit of giving effect to the language of the statute without trenching on related provisions of the Personnel Code.
In the proceedings below, the appellate court questioned the validity of these administrative guidelines because they had not been promulgated through the formal rulemaking process set forth in the Illinois Administrative Procedure Act (5 ILCS 100/5 — 5 through 5 — 155 (West 1992)). The majority finds it unnecessary to resolve this issue, given the decision here to enforce section 8b.7(f) in a manner contrary to the guidelines. I do not believe that it was necessary for CMS to follow formal rulemaking procedures in establishing these standards. Because the CMS guidelines involve "agency management or personnel practices,” there was no need under the Administrative Procedure Act for the department to promulgate the guidelines as administrative rules. See 5 ILCS 100/5 — 35(c) (West 1992).
Giving veterans an absolute preference over nonveterans in all instances, as the majority does, conflicts with the underlying purposes of the civil service laws, and we should look for a more definite statement of intent by the legislature before ascribing to the statutory language at issue here the meaning adopted by the majority. The Personnel Code is "based on merit principles and scientific methods” (20 ILCS 415/2 (West 1992)), and, as this case illustrates, sometimes only the selection of a nonveteran over a veteran is consistent with that foundation. The position for which the plaintiff applied was that of Assistant Bureau Chief in the Drug Abuse Resistance Education (D.A.R.E.) Bureau, of the Illinois State Police. This executive IV post required, at a minimum, four years of college education, preferably with an emphasis on business or public administration, and four years of administrative experience in a public or business organization. The job description said that the person would be responsible for all D.A.R.E. training, field coordination, and curriculum development. A strong background in education was said to be essential.
The plaintiff, Stephen Denton, had a master’s degree in labor relations and human resources administration from Sangamon State University. He had worked more than five years as an auditor with the Illinois Department of Public Aid, nine years as a labor union representative, and more than one year as executive director of an organization called the Veterans Protective League. The Department interviewed Denton for the position at issue but ultimately hired Linda Lang, a non-veteran. Lang had a master’s degree in educational administration from Southern Illinois University and a bachelor’s degree in history and political science from Millikin University. She had been a teacher and a school principal. At the time Lang applied for this position, she was employed by the Department of State Police as an educational consultant to the D.A.R.E. program. In that post, Lang supervised curriculum development, among other things, and she had been involved in the training of more than 1,800 D.A.R.E. officers. Lang also served on a federal D.A.R.E. regional advisory board, and she had received state and national awards for her D.A.R.E.related work. Lang was the better-qualified candidate, given her background and experience. I do not believe that the legislature intended that the veterans preference provision of the Personnel Code would, in these circumstances, require the selection of Denton instead.
Veterans preference provisions are intended "to reward veterans for the sacrifice of military service, to ease the transition from military to civilian life, to encourage patriotic service, and to attract loyal and well-disciplined people to civil service occupations.” Personnel Administrator v. Feeney, 442 U.S. 256, 265, 60 L. Ed. 2d 870, 879, 99 S. Ct. 2282, 2289 (1979). Under the interpretation advanced by the defendants, the provision found in section 8b.7(f) of the Personnel Code accomplishes those goals by requiring the hiring of a veteran rather than a nonveteran when the two candidates are equally qualified, and by granting veterans a number of other advantages in the manner in which state agencies governed by the Personnel Code conduct interviews and make hiring decisions. The guidelines formulated by CMS achieve a careful balance between the need for the veterans preference legislation and the purposes of a civil service system, and I would defer to the defendants’ construction of the statute.
JUSTICES FREEMAN and McMORROW join in this dissent.