dissenting:
I cannot concur with the conclusion reached by the majority that the lag time of approximately nine months between the imposition of the interim summary suspension on February 23, 2005, and the final disposition on November 17, 2005, is justifiable under the standards imposed by our supreme court in Lyon v. Department of Children & Family Services, 209 Ill. 2d 264, 807 N.E.2d 423 (2004). Nor are the facts surrounding the delay sufficiently differentiated from those involved in Morgan v. Department of Financial & Professional Regulation, 374 Ill. App. 3d 275, 871 N.E.2d 178 (2007) (hereinafter Morgan I), to justify a departure from the conclusion reached in that earlier decision.
As respondent correctly notes, the facts underlying our decision in Morgan I are similar to those presented in the case at bar. In that case, as here, the Department filed an administrative complaint alleging that respondent engaged in unethical sexual conduct with a female patient and praying for the suspension of his license. Morgan I, 374 Ill. App. 3d at 277-78, 871 N.E.2d at 181-82. On November 4, 2003, the same day that the Department filed its complaint, the Director conducted an ex parte telephonic hearing at which only a Department investigator testified, and summarily suspended respondent’s license to practice clinical psychology because that testimony indicated that his continued practice constituted a danger to public safety. Morgan I, 374 Ill. App. 3d at 278, 871 N.E.2d at 182. A full evidentiary hearing on respondent’s suspension commenced on December 4, 2003, and continued on December 5, 11, 12, and 15, 2003. Morgan I, 374 Ill. App. 3d at 278-79, 871 N.E.2d at 182. On March 31, 2004, the ALJ issued her “report and recommendation,” in which she found that the Department had proven by clear and convincing evidence that respondent had engaged in unethical, unauthorized, or unprofessional conduct with regard to his treatment of a patient and recommended to the Board that his license be suspended for 60 days, and that he be required to serve a period of probation and complete 12 hours of continuing education on ethics. Morgan I, 374 Ill. App. 3d at 282-83, 871 N.E.2d at 186. No decision from the Board was forthcoming until August 13, 2004, at which time the Board recommended to the Director that he adopt the findings of fact of the ALJ and impose a 90-day suspension. Morgan I, 374 Ill. App. 3d at 284-85, 871 N.E.2d at 187. After the Board’s decision, respondent filed a motion for rehearing, which the Director denied, and the Director issued a decision adopting the Board’s recommendations on January 28, 2005, and deeming the 90-day suspension to be considered served by the previous summary suspension. Morgan I, 374 Ill. App. 3d at 285, 871 N.E.2d at 187.
In the interim, Morgan filed a motion for a temporary restraining order to stay his summary suspension, which the chancery division granted on June 29, 2004, barring the Department from enforcing the summary suspension because the Director had not yet filed his final decision. Morgan I, 374 Ill. App. 3d at 283-84, 871 N.E.2d at 186-87. Respondent appealed the matter to the circuit court, which affirmed the Director’s decision. Morgan I, 374 Ill. App. 3d at 285, 871 N.E.2d at 187.
On appeal, respondent argued, in part, that the Department violated his right to due process by not issuing a final decision promptly after the summary suspension of his license. Morgan I, 374 Ill. App. 3d at 298-99, 871 N.E.2d at 197-98. In reliance on our supreme court’s decision in Lyon v. Department of Children & Family Services, 209 Ill. 2d 264, 807 N.E.2d 423 (2004), we reversed the decision of the circuit court, which had affirmed the decision of the director. Morgan I, 374 Ill. App. 3d at 299-302, 871 N.E.2d at 197-201. As emphasized in Lyon, a professional’s interest in his chosen profession is protected under the due process clause of our constitution, which is violated by an unjustifiably prolonged summary suspension. Lyon, 209 Ill. 2d at 281, 807 N.E.2d at 436.
Applying the principles of Lyon, which is aptly summarized by the majority, this court in Morgan I reversed the Department’s suspension of respondent on grounds that it failed to promptly issue a final agency decision after summarily suspending his psychologist’s license. In so doing, we noted that, as in Lyon, the initial standard of proof employed by the Department in determining whether to suspend respondent’s license on a summary basis, which required only that the evidence in the Department’s possession, indicate “ ‘that the continuation of practice by the clinical psychologist would constitute an imminent danger to the public,’ ” was far less stringent than the preponderance standard. Morgan I, 374 Ill. App. 3d at 302, 871 N.E.2d at 200, quoting 225 ILCS 15/21.6 (West 2002). We continued:
“While, in Lyon, the statute and regulations themselves provided specific time frames in which the agency was supposed to act, the requirement that a hearing be held and determined without delay applies equally here, where the only specific time frame that the Act provides with regard to the agency’s determination is the 60 days allotted to the Board to transmit its finding and recommendations to the Director (see 225 ILCS 15/16.1 (West 2002)). However, *** the Act further contains the overall requirement that proceedings following a summary suspension be ‘promptly instituted and determined.’ Accordingly, we address the other Mallen factors, the importance of the private interest and the government’s justification for the delay, in light of Lyon’s instruction that where an agency uses a lower standard of proof to support a prehearing deprivation, the necessity of acting promptly is heightened.” Morgan I, 374 Ill. App. 3d at 302, 871 N.E.2d at 200.
We then observed that respondent’s interest in being able to continue his profession was substantial, as was the Department’s interest in preventing sexual misconduct by clinical psychologists licensed under its authority (Morgan I, 374 Ill. App. 3d at 302, 871 N.E.2d at 200), but concluded that the Department’s delays in issuing its final decision, particularly the Director’s failure to issue his decision until five months after the Board issued its recommendations, were without justification (Morgan I, 374 Ill. App. 3d at 302-03, 871 N.E.2d at 200-01). We acknowledged, however, that respondent’s due process rights were only affected for 6V2 months after the conclusion of the hearing, because of the circuit court’s entry of a temporary restraining order allowing respondent to continue the practice of his profession on June 29, 2004. Morgan I, 374 Ill. App. 3d at 303, 871 N.E.2d at 201. We concluded that this shortened period also violated respondent’s due process rights because the Department could have promptly issued its final decision in, at the most, 120 days after the close of the hearing. Morgan I, 374 Ill. App. 3d at 303-04, 871 N.E.2d at 201-02. We specifically stated:
“As noted, section 16.1 of the Act describes the three stages involved in reaching a final decision after a hearing: first, the hearing officer reports her findings to the Board and the Director; next, the Board has 60 days after receiving the hearing officer’s report to issue its findings and a recommendation to the Director; and, third, the Director issues a final decision. See 225 ILCS 15/21.6 (West 2002). Additionally, if the Board does not issue its recommendation to the Director within 60 days, the Director may issue an order based on the hearing officer’s report. See 225 ILCS 15/21.6 (West 2002). Thus, although presented in terms of an internal departmental deadline rather than a deadline directly affecting a subject’s rights, the Act explicitly contemplates a delay of at least 60 days in reaching a decision after a hearing. It can be presumed that the Act also tacitly contemplates that the hearing officer (the ALJ in this case) and the Director will require a reasonable amount of time to complete their portions of the process.
Strong argument can be made that those steps of the process designated to the ALJ and the Director should not each exceed the 60 days allotted to the Board. The ALJ, having presided over the hearing, presumably has a ready familiarity with the case by the time the hearing concludes. The same cannot be said of the Board, which may or may not have attended the hearing. *** Similarly, there is strong argument to be made that the Director’s portion of the process should not exceed an additional 60 days since he would have received the ALJ’s report contemporaneously with the Board and would, therefore, already be familiar with the matter. Thus, it would appear that the final decision could reasonably have been finalized in as little as four months, allowing 30 days for the ALJ, 60 days for the Board, and an additional 30 days for the Director thereafter.” Morgan I, 374 Ill. App. 3d at 303-04, 871 N.E.2d at 201-02.
We then noted that even if it were reasonable for the ALJ and Director to each take 60 days to make their determinations, giving the Department 180 days total, that time frame would have been exceeded by approximately 14 days by the time the circuit court issued its temporary restraining order. Morgan I, 374 Ill. App. 3d at 304, 871 N.E.2d at 202.
Applying these principles to the case at bar, I am compelled to find, contrary to the majority, that the Department did violate respondent’s right to due process by failing to decide the matter in a prompt manner. The Director summarily suspended respondent’s license to practice psychology on February 23, 2005, after concluding that the evidence produced by a Department investigator at an ex parte hearing indicated “that the continuation of practice by the clinical psychologist would constitute an imminent danger to the public.” The low standard of proof applied at this stage of the proceedings, which was accompanied by a higher risk that respondent was erroneously found to be such a danger, did not automatically deprive respondent of his due process rights, because the Department was subsequently required to prove respondent’s misconduct by the more stringent clear and convincing evidence standard. Lyon, 209 Ill. 2d at 282, 807 N.E.2d at 436. Nevertheless, this distribution of the risk of error became problematic when the Department failed to decide this matter in a prompt manner. Lyon, 209 Ill. 2d at 282, 807 N.E.2d at 436.
As noted in Morgan I, when an agency summarily suspends a license in an attempt to safeguard the public, as the Department did here, the subsequent proceedings must be “promptly instituted and determined.” 5 ILCS 100/10 — 65(d) (West 2004). According to Black’s, “[tjhe meaning of the word [‘promptly’] depends largely on the fact in each case, for what is ‘prompt’ in one situation may not be considered such under other circumstances or conditions. To do something ‘promptly’ is to do it without delay and with reasonable speed.” Black’s Law Dictionary 1214 (6th ed. 1990), citing In re Application of Beattie, 54 Del. 506, 512, 180 A.2d 741, 744 (1962); see also New American Webster’s Dictionary 365 (1972) (defining “prompt” as “quick to act; given without delay; on time”). Here, the Director failed to promptly issue his decision within the 120-day time frame articulated in Morgan I. The hearing on the suspension ended on April 8, 2005, but the ALJ did not issue his report until 75 days later, on June 22, 2005. The Board then took 71 days to issue its recommendations to the Director on September 1, 2005, and the Director took an additional 77 days to issue the final agency decision on November 17, 2005. Thus, 223 days transpired between the end of the hearing and the Director’s decision, 103 days longer than the 120-day period we considered to be prompt in Morgan I. Morgan I, 374 Ill. App. 3d at 304, 871 N.E.2d at 202. Moreover, even if we were to consider that the 60 days allotted to the Board could also be extended to the ALJ and the Director, thus giving the Department a total of 180 days to make its decision, the final decision here would have been 43 days late.
The Department nevertheless argues that our holding in Morgan I notwithstanding, the Department in this case should not be bound to enter its final agency decision within 120 days following the hearing because of delays which were beyond its control. First, it argues that the ALJ had to wait until April 29, 2005, when a transcript of the last day of the hearing, April 8, 2005, was prepared, and therefore “acted promptly when he issued his recommendation less than 60 days later on June 22, 2005.” In support of its contention that the ALJ was entitled to a transcript to use in preparing his report, the Department cites section 19 of the Clinical Psychologist Licensing Act (225 ILCS 15/19 (West 2004)), which states that the Department, at its expense, shall preserve a record of all proceedings at any formal hearing of any case and section 10 — 35(c) of the Administrative Procedure Act (5 ILCS 100/10 — 35(c) (West 2004)), which requires that “[findings of fact shall be based exclusively on the evidence and on matters officially noticed.”
With due deference to the majority, I cannot find merit in this argument. First, Illinois law does not require that the ALJ have a transcript of the hearing to help him as he drafts his recommendations. Although the Clinical Psychologist Licensing Act requires the Department to preserve a record of all administrative proceedings (225 ILCS 15/19 (West 2004)), and the Civil Administrative Code requires the Department, at its expense, to provide a stenographer to take down the testimony and preserve a record of all proceedings at the hearing of any case in which a certificate may be revoked or suspended (20 ILCS 2105/2105 — 115 (West 2004)), there is no indication that these requirements were imposed upon the ALJ as a prerequisite for drafting his recommendations. Indeed, both Acts state that the record of proceedings, which the Department is required to maintain, shall include the “report of the Board” (225 ILCS 15/19 (West 2004); 20 ILCS 2105/2105 — 115 (West 2004)), a document drafted after the ALJ makes his recommendation (225 ILCS 15/21.6 (West 2004)). Likewise, I cannot agree with the Department’s claim that the ALJ had to wait for the transcript because section 35(c) of the Illinois Administrative Procedure Act requires that “[Qindings of fact shall be based exclusively on the evidence and on matters officially noticed” (5 ILCS 100/10 — 35(c) (West 2004)), as that statute merely stands for the proposition that the ALJ cannot base his decision on facts outside the record (see Mel-Park Drugs, Inc. v. Department of Revenue, 218 Ill. App. 3d 203, 223, 577 N.E.2d 1278, 1291 (1991) (recommendation of ALJ properly rejected because recommendation was based on data not introduced into evidence in contravention of section 11(c) of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1987, ch. 127, par. 1011(c)))).
Furthermore, even if the ALJ was entitled to a complete transcript before drafting his report, in keeping with the strict time constrictions imposed under Lyon, the Department may not wait passively and indefinitely for such a transcript, but must act reasonably to request that the transcript be produced punctually. As noted above, the Department was statutorily obligated to bear the cost of the transcription services (20 ILCS 2105/2105 — 115 (West 2004)), and presumably could have requested that the 124-page transcription of the portion of the hearing which occurred on April 8, 2005, be produced considerably sooner than April 29, 2005, three weeks after the close of evidence. Indeed, the feasibility of such a quick transcription is evidenced by the fact that the slightly longer 133-page transcription of the proceedings of March 9, 2005, took only one week to complete. Any burden that may have been imposed on the Department in securing the punctual transcription of the last day of proceedings was clearly outweighed by the respondent’s interest in having the propriety of the summary suspension of his license promptly decided.
More significantly, in any event, the record reveals no compelling reason why the ALJ needed until June 22, 2005, to complete his recommendation after the transcript was completed on April 29, 2005. After presiding over the hearing, the ALJ presumably was readily familiar with the case, and could have quickly completed his recommendation after receiving the last transcript. Morgan I, 374 Ill. App. 3d at 304, 871 N.E.2d at 202. Accordingly, I find that the ALJ did not issue his recommendation with reasonable promptness, as required under Lyon.
The Department next argues, and the majority concurs, that the Board was reasonable in taking 71 days to issue its report after the ALJ issued its recommendations on June 22, 2005, instead of 60 days as contemplated by statute, because the Board was obligated to decide the matter at an open meeting under the Open Meetings Act (5 ILCS 120/1.02 (West 2006)), and its first meeting after the ALJ issued its recommendation was held on July 29, 2005. It notes that the Board members decided at that meeting to revoke respondent’s license for a minimum of five years and fine him $44,000 and an order to that effect was signed on September 1, 2005.
However, the Department offers no explanation as to why the Board did not issue its two-page decision, which merely incorporated the ALJ’s recommendations and contained a brief explanation for its imposition of an additional fine, until September 1, 2005, after the 60-day period allotted to it by section 21.6 of the Clinical Psychologist Licensing Act (225 ILCS 15/21.6 (West 2004)) had expired, if the Board made its decision on July 29, 2005. To the extent the Board was prevented from issuing its recommendation within 60 days because of the fact that it did not have a regular meeting until 37 days after the ALJ issued his recommendation, I question why the Board could not have moved that meeting to an earlier date as long as it provided 10 days’ prior notice to the public. 5 ILCS 120/2.03 (West 2004) (“If a change is made in regular meeting dates, at least 10 days’ notice of such change shall be given by publication in a newspaper of general circulation in the area in which such body functions”).
The Department next contends, and the majority agrees, that the Director acted reasonably when he issued his final decision on November 17, 2005, 77 days after the Board filed its recommendation on September 1, 2005, instead of within 30 days, a period which we determined to be reasonable in Morgan I. It argues that the 30-day period articulated in Morgan I failed to take into account the fact that section 20 of the Clinical Psychologist Licensing Act (225 ILCS 15/20 (West 2004)) permits a licensee to file a motion for rehearing within 20 days of the Board’s decision and states that the Director may enter an order upon the denial of such a motion. In this case, the Department notes, respondent filed a motion for rehearing on September 16, 2005, the Department filed a response to the motion on October 12, 2005, respondent filed a reply in support of his motion on November 1, 2005, and the Director issued his final decision soon after on November 17, 2005. Under these circumstances, it argues, the Director’s decision should be considered promptly issued.
Although the Clinical Psychologist Licensing Act does permit a licensee to file a motion for rehearing, nothing in the Act grants the Department authority to file a response thereto. Indeed, the rules of practice governing administrative hearings for the Department of Financial and Professional Regulation state that when a written motion such as a motion for rehearing is filed, the “Committee, hearing officer or Director may allow oral argument if this is deemed necessary to a fuller understanding of the issues presented.” 68 Ill. Adm. Code §1110.210(b), amended at 28 Ill. Reg. 7642, eff. May 21, 2004. It does not state that the Department may file a response brief as it did in this case. Thus, after respondent filed his motion for rehearing on September 16, 2005, the Director had the discretion to call the parties to an oral argument on the motion or simply begin his deliberations on the motion and the final agency decision.
More overridingly, even if the Department was entitled to file a response, it should have been required to do so in no more than 20 days, the same amount of time respondent was given to file his initial motion under section 20 of the Clinical Psychologist Licensing Act (225 ILCS 15/20 (West 2004)). Even if we were to subtract those 20 days, as well as the 20 days it took respondent to voluntarily file his reply, from the time period between the last day of the hearing, April 8, 2005, and the Director’s decision, November 17, 2005, the Department took 183 days to issue a final decision — an effort that cannot, even under the most overindulgent view, be said to be “without delay and with reasonable speed.” See Black’s Law Dictionary 1214 (6th ed. 1990) (defining “prompt”).
The Department nevertheless argues that the requirement that it decide matters such as the one at bar in a prompt manner improperly benefits the worst offenders because there “would be more counts to their complaints and more testimony and exhibits for the Department to consider, and, therefore, more obstacles in the way of meeting the inflexible time frames” imposed by Morgan I. I disagree. Whether an agency action will be considered prompt “depends largely on the facts in each case, for what is ‘prompt’ in one situation may not be considered such under other circumstances or conditions.” Black’s Law Dictionary 1214 (6th ed. 1990). My decision in this case is based, not on the Department’s failure to meet an inflexible 120-day deadline, but rather the Department’s failure to act with reasonable speed under the circumstances, as dictated by the supreme court in Lyon, which we applied in Morgan I.
Although I fully recognize that respondent was found guilty of repetitive conduct which egregiously betrayed his patients’ trust and the responsibilities of his profession, it cannot relieve our transcendent duty to enforce the procedural safeguards extended to every person under the due process clause of our constitution as promulgated by our supreme court in Lyon. These safeguards ultimately protect an innocent practitioner from the ravages to his chosen career which may accompany the unnecessarily prolonged disposition of a summary suspension based upon the ex parte presentation of an investigator’s report, where he is ultimately vindicated after an evidentiary hearing is conducted under the preponderance standard. By diluting the strict due process standards imposed by Lyon, where, as in this case, the licensee’s guilt is ultimately sustained under the preponderance standard, we dilute those standards for the licensee who is ultimately exonerated after an evidentiary hearing. We cannot maintain a dual standard. Setting aside the ultimate disposition where the delay was unjustifiable for the culpable licensee is the only means by which to expedite the process for the licensee who is ultimately vindicated. Otherwise, such vindication may be hollow after the licensee’s professional career may have been irretrievably damaged by the unjustifiably prolonged summary suspension. Obviously, such damage to a licensee who is ultimately exonerated cannot be undone by setting aside his ultimate disposition since it is the ultimate disposition that established his innocence. Thus, only by setting aside the ultimate disposition of the culpable licensee can the rights of the innocent licensee be protected against unjustifiably prolonged summary suspension.
For that reason, and only that reason, finding the remainder of the majority’s opinion thoughtful and well reasoned, I respectfully dissent.