¶ 30 On cross-examination, Johnson admitted that he had no information about the plaintiffs unauthorized absences. He also acknowledged that such absences can create security risks, increase overtime costs, and damage the morale of good officers, who are forced to work extra shifts.
¶ 31 On January 15, 2015, the Merit Board issued its decision, terminating the plaintiffs employment as of July 8, 2013. That decision was signed by Rosales and seven other members of the Merit Board. In its decision, the Merit Board found that the plaintiff was absent from scheduled work shifts which totaled an excess of 80 hours. The Merit Board further found that the Sheriff had proven by preponderance of the evidence that the plaintiff violated each of the general order[s], Sheriffs order[s] and rules and regulations as set forth in the complaint.
¶ 32 On February 5, 2015, the plaintiff sought administrative review of the Merit Boards decision in the circuit court. On March 3, 2016, the circuit court remanded the cause to the Merit Board asking that the Merit Board include findings of fact regarding the [plaintiffs] defense of alcoholism and refer to the specific rules that were violated and sustained by the Merit Board and not simply refer to the complaint.
¶ 33 No new hearing was held by the Merit Board on remand. Instead, the Merit Board issued its second decision on June 1, 2016, again terminating the plaintiff as of July 8, 2013. This decision was practically identical to the original decision, except that in the findings/conclusions section it clarified that having given due consideration to the evidence of the plaintiffs alcohol dependency or alcoholism, the Merit Board nonetheless found that the Sheriff proved by a preponderance of the evidence that the plaintiff violated General Order 3.8, Sheriffs Order 11.4.1.1 and Cook County Sheriffs Department Merit Board Rules and Regulations, Article X, Paragraph B.
¶ 34 On August 5, 2016, the plaintiff again sought administrative review of the Merit Boards decision in the circuit court. On February 22, 2017, the circuit court affirmed that decision. The plaintiff now appeals.
¶ 35 II. ANALYSIS
¶ 36 A. The Implications of Rosaless Improper Appointment
¶ 37 On appeal, the plaintiff first asks this court to vacate as void the Merit Boards termination decision on the basis that at least one of the Merit Board members involved in issuing that decision, Rosales, was improperly appointed. In support, he cites to Taylor , 2017 IL App (1st) 143684-B, 414 Ill.Dec. 735, 81 N.E.3d 1, appeal denied , No. 122392, 417 Ill.Dec. 845, 89 N.E.3d 764 (Ill. Sept. 27, 2017), wherein this appellate court held that Rosales was not lawfully appointed to serve on the Merit Board at the relevant time.
¶ 38 Before addressing the merits of the defendants contention, however, we must first address the Sheriffs procedural arguments. The Sheriff contends that this issue is waived for purposes of appeal because the plaintiff failed to raise it in a timely manner below, thereby depriving this court of a full record on which to assess his claim. In addition, the Sheriff argues that the Taylor decision is not relevant to the issue before us because the final decision issued by the Merit Board, from which the plaintiff now appeals, was never signed by or presided over by Rosales. For the reasons that follow, we disagree.
¶ 39 While it is true that generally issues or defenses not raised before an administrative agency will not be considered for the first time on administrative review ( 735 ILCS 5/3-110 (West 2012) ), our courts have repeatedly held that waiver serves as an admonition on the parties and not a limitation on this courts jurisdiction. Texaco-Cities Service Pipeline Co. v. McGaw , 182 Ill. 2d 262, 278-79, 230 Ill.Dec. 991, 695 N.E.2d 481 (1998) ; see also Bank of America, N.A. v. Ebro Foods, Inc. , 409 Ill. App. 3d 704, 709, 350 Ill.Dec. 405, 948 N.E.2d 685 (2011). It has long been recognized that the waiver rule may be relaxed in order to maintain a uniform body of precedent or where the interests of justice so require. See Texaco-Cities , 182 Ill. 2d at 279, 230 Ill.Dec. 991, 695 N.E.2d 481 ; Hux v. Raben , 38 Ill. 2d 223, 225, 230 N.E.2d 831 (1967) ; Caterpillar, Inc. v. Doherty , 299 Ill. App. 3d 338, 346, 233 Ill.Dec. 889, 701 N.E.2d 1163 (1998). Here, we believe that the interests of justice are better served by addressing the issue raised by the plaintiff.
¶ 40 In that respect, we disagree with the Sheriffs position that because Rosales did not sign the Merit Boards post-remand decision, that decision cannot be challenged under Taylor at this time. In Taylor , the appellate court held that it was not Rosaless signature but rather his participation in the hearing and the decision of the Merit Board that rendered the actions of the entire Merit Board void. (Emphasis added.) See Taylor , 2017 IL App (1st) 143684-B, ¶ 46, 414 Ill.Dec. 735, 81 N.E.3d 1. In the present case, there was no second hearing held on remand. Rather, the only evidentiary hearing ever held on the plaintiffs case was the one presided over by Rosales. Accordingly, the fact that Rosales was no longer a member of the Merit Board when the subsequent decision was signed does nothing to negate his participation in the proceedings. In fact, it explains why the original and subsequent decisions of the Merit Board are nearly identical.
¶ 41 Accordingly, we reject the Sheriffs invitation to avoid addressing the implications of Taylor to the circumstances of this case and instead proceed with the merits of the plaintiffs claim.
¶ 42 In Taylor , just as here, the plaintiff challenged his termination by the Merit Board, arguing that the Merit Board was not lawfully constituted because the appointment of one of its members, Rosales, had not complied with section 3-7002 of the Counties Code (Code) ( 55 ILCS 5/3-7002 (West 2012) ). Taylor , 2017 IL App (1st) 143684-B, ¶ 10, 414 Ill.Dec. 735, 81 N.E.3d 1. The circuit court agreed and vacated the Merit Boards decision terminating the plaintiffs employment. Id. ¶ 11.
¶ 43 On appeal, the Taylor court affirmed the circuit courts decision, noting that section 3-7002 of the Code, creating the Merit Board, requires that members be appointed for staggered six-year terms. Id. ¶¶ 21-23. The court in Taylor explained that this was in keeping with the statutory goals of experience and political balance, which would be compromised if the Sheriff were permitted to appoint members for less than the statutorily provided six-year term. Id. ¶ 23. As the court stated:
From the plain language of the statute, we glean that the purpose of section 3-7002 is to select individuals to serve on the Merit Board with the goal of achieving an experienced and politically balanced Merit Board. In order to achieve these goals, the statue requires that the members terms be staggered, insuring that the Merit Board would always contain some experienced members and limiting the number of members from any one political party. Id. ¶ 21.
¶ 44 The Taylor court further reasoned that because the Sheriff had appointed Rosales in June 2011 to fill a vacancy term that expired in March 2012, this appointment was not for a six-year term and was therefore invalid. Id. ¶ 23. The court therefore concluded that the Merit Board was not lawfully constituted at the time the plaintiffs termination decision was made. Id. ¶ 46. The court in Taylor held that as a result of the improper appointment, the Merit Boards decision was void as a matter of law. Id. Accordingly, the court vacated that decision and remanded the matter for a hearing before a new legally constituted Merit Board. Id.
¶ 45 The plaintiff on appeal contends that, under Taylor , we must find that since Rosales was improperly appointed to the Merit Board when he participated in the decision to terminate the plaintiffs employment, that decision, just like the Merit Boards decision in Taylor , was invalid as a matter of law.
¶ 46 The Sheriff, joined by the Merit Board, on the other hand, argues that even if we find that Rosaless appointment was improper we should nonetheless apply the de facto officer doctrine to uphold the Merit Boards decision. Specifically, the Sheriff and the Merit Board argue that while the plaintiff in Taylor may receive the benefit of being the first to challenge compliance with the Merit Board appointment statute and have the Merit Boards decision voided, public policy requires that all later challenges be denied so as to prevent the chaos that would result in the invalidation of hundreds of decisions rendered by the same illegally constituted Merit Board. For the reasons that follow, we agree.
¶ 47 The de facto officer doctrine is a common law equitable doctrine that confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that persons appointment or election to office is deficient. Ryder v. United States , 515 U.S. 177, 180, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995). In other words, under the doctrine, a person actually performing the duties of an office under color of title is considered to be an officer de facto , and his acts[,] as such officer[,] are valid so far as the public or third parties who have an interest in them are concerned. Vuagniaux v. Department of Professional Regulation , 208 Ill. 2d 173, 186-87, 280 Ill.Dec. 635, 802 N.E.2d 1156 (2003) (citing People ex rel. Chillicothe Township v. Board of Review , 19 Ill. 2d 424, 426, 167 N.E.2d 553 (1960) ).
¶ 48 The doctrine has feudal origins, dating back as far as the 15th century. See Andrade v. Lauer , 729 F.2d 1475, 1496 (D.C. Cir. 1984) ; see also Note, The De Facto Officer Doctrine , 63 Colum. L. Rev. 909, 909 n.1 (1963) (The first reported case to discuss the concept of de facto authority was The Abbe of Fountaine, 9 Hen. VI, at 32(3) (1431). ). However, it has retained its vitality over the years because of its practicality. See Iowa Farm Bureau Federation v. Environmental Protection Commission , 850 N.W.2d 403, 423 (Iowa 2014) (Over time, the doctrine has achieved practically universal acceptance by the courts. [Citation.]); see also In re Fichner , 144 N.J. 459, 677 A.2d 201, 205 (1996) (the de facto officer doctrine serves the needs of contemporary society and is founded on tenets of practicality and convenience in the administration of justice). Its purpose is to protect the publics reliance on an officers authority and to ensure the orderly administration of government. 63C Am. Jur. 2d Public Officers & Employees § 23 (1997). As the United States Supreme Court has explained:
The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office. (Internal quotation marks omitted.) Ryder , 515 U.S. at 180-81, 115 S.Ct. 2031.
¶ 49 Because at its core the doctrine limits the ability of a plaintiff to challenge governmental action on the ground that the officers taking that action are improperly in office ( Andrade , 729 F.2d at 1493-94 ), the doctrine operates in a way that distinguishes between direct and collateral attacks on an officers authority. SW General, Inc. v. National Labor Relations Board , 796 F.3d 67, 81 (D.C. Cir. 2015) (citing Andrade , 729 F.2d at 1496 ). A collateral attack challenges government action on the ground that the officials who took the action were improperly in office. (Emphasis in original and internal quotation marks omitted.) Id. A direct attack by contrast, challenges the qualifications of the officer rather than the actions taken by the officer. (Emphasis in original and internal quotation marks omitted.) Id. Under the traditional de facto officer doctrine, only direct attacks are permitted, and must be brought via a writ of quo warranto . Id. ; see also Vuagniaux , 208 Ill. 2d at 187, 280 Ill.Dec. 635, 802 N.E.2d 1156 (Pursuant to the doctrine, litigants may not assert collateral challenges to the officers qualifications to hold office as a means of contesting the legality of the officers acts.).
¶ 50 Quo warranto proceedings also have ancient origins and provide an extraordinary remedy by permitting a challenge to a public official who usurps, intrudes into, or unlawfully holds or executes any office, or franchise, or any office in any corporation created by authority of the state. 735 ILCS 5/18-101(1) (West 2014); People ex rel. Wofford v. Brown , 2017 IL App (1st) 161118, ¶ 13, 412 Ill.Dec. 594, 76 N.E.3d 34. Such proceedings, however, have been codified in Illinois and must be brought on behalf of the people of the State of Illinois by the attorney general or the states attorney or, in the alternative, if the state refuses to pursue the action, by an interested party with leave of court. See 735 ILCS 5/18-101 et seq. (West 2014); Wofford , 2017 IL App (1st) 161118, ¶ 13, 412 Ill.Dec. 594, 76 N.E.3d 34. The same is true in the federal context. See SW General , 796 F.3d at 81 (To obtain quo warranto against a federal official, an interested party must petition the Attorney General of the United States to institute a proceeding in federal district court. [Citation.] If the Attorney General declines, the interested party can petition the court to issue the writ instead. [Citation.] Both the Attorney General and the court, however, have broad discretion to decline to make use of quo warranto. [Citation.]).
¶ 51 Because of the cumbersomeness of such proceedings, and their potential to deprive a plaintiff with an otherwise legitimate claim of the opportunity to have his case heard, some federal courts have relaxed the de facto officer doctrine to permit collateral attacks under specific circumstances. See SW General , 796 F.3d at 82-83 (holding that collateral attacks on an officials authority are permissible when the plaintiff brings his action at or around the time that the challenge government action is taken and the plaintiff shows that the agency has had reasonable notice of the claimed defect in the officials title to office). The Illinois Supreme Court, however, has not had the opportunity in recent years to address this issue.
¶ 52 Traditionally, our supreme court was not reticent to apply the doctrine in its original form to validate the acts of otherwise improperly appointed officials, where such acts, rather than the officials qualifications, were challenged in a collateral proceeding. In Chillicothe Township , 19 Ill. 2d at 426, 167 N.E.2d 553, the court applied the doctrine to uphold the actions of the county board of review increasing the assessed valuation of the plaintiffs property. It was stipulated that, based upon the results of the immediately prior general election, the county board of review should have been composed of two Republicans and one Democrat. Id. The board, however, was composed of two Democrats and one Republican. Id. The plaintiffs argued that because the board was improperly constituted, its actions increasing the assessments were unconstitutional and void. Id. Our supreme court rejected the plaintiffs argument holding:
Whether the Board of Review was legally constituted or not, the persons acting as such board were performing the duties of the board with apparent right under color of office, and their acts were thus valid as to the public and persons having an interest in them. [Citation.] The Board of Review was thus composed of, at least, de facto officers, and from a review of the record and the authorities presented, its acts were apparently valid. Id. at 426-27, 167 N.E.2d 553.
¶ 53 A few years later, our supreme court reached a similar conclusion in People v. ONeill , 33 Ill. 2d 184, 210 N.E.2d 526 (1965). In ONeill , the State brought an action against the defendant taxpayer for delinquent personal property taxes. Id. The defendant argued that the county board of supervisors was not validly constituted because each township had one supervisor on the board without regard to population, thus violating the one man, one vote rule. Id. at 185, 210 N.E.2d 526. According to the defendant, because the composition of the board was unconstitutional, its act of levying the personal property tax was illegal. Id. The ONeill court rejected the defendants argument, explaining:
We think it is clear beyond question that the members of the Peoria County [B]oard of [S]upervisors were at least de facto officers within the traditional definition * * *. Their acts in levying, extending and collecting taxes cannot therefore be attacked because of some alleged defect in the apportionment of their membership. Id. at 187, 210 N.E.2d 526.
See also People ex rel. Engle v. Kerner , 32 Ill. 2d 212, 222-23, 205 N.E.2d 33 (1965) (holding that state senators, although elected from unconstitutionally apportioned districts, were de facto officeholders with authority to act); Cleary v. Chicago Title & Trust Co. , 4 Ill. 2d 57, 59, 122 N.E.2d 227 (1954) (holding that, even assuming the invalidity of the appointment of appellate court justices, such appointment still conferred color of office, and judgments rendered thereunder were valid and could not be questioned in a mere collateral proceeding); People ex rel. Hess v. Wheeler , 353 Ill. 147, 150-51, 187 N.E. 146 (1933) (An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid * * * where he acts under the color of an appointment which is void because he was not eligible to act as such officer, or because of want of power in the appointing body, or by reason of some defect unknown to the public.); People ex rel. Rusch v. Wortman , 334 Ill. 298, 301-304, 165 N.E. 788 (1928) (holding that an officeholders eligibility to appointment and the validity of his or her official acts may be challenged only in a proceeding brought directly for that purpose (citing State v. Carroll , 38 Conn. 449 (Conn. 1871) ) ); Lavin v. Board of Commissioners , 245 Ill. 496, 505-06, 92 N.E. 291 (1910) (holding that, without regard to whether the court had authority to appoint defendant a special states attorney, defendant was at least a de facto special states attorney).
¶ 54 More recently, in 2002, in Daniels v. Industrial Commission , 201 Ill. 2d 160, 266 Ill.Dec. 864, 775 N.E.2d 936 (2002) (plurality opinion), our supreme court addressed the application of the de facto officer doctrine in the context of modern jurisprudence. In that case, the court faced a circumstance in which an illegally constituted three-member panel of the Industrial Commission (Commission) issued a decision on review. Id. at 161-67, 266 Ill.Dec. 864, 775 N.E.2d 936. In a plurality opinion, the supreme court vacated the Commissions decision and remanded the matter to the Commission for a decision by a legally constituted panel. Id. at 167, 178, 266 Ill.Dec. 864, 775 N.E.2d 936. The four justices in the majority, however, did not agree on the reasoning underlying their judgment, particularly with respect to the application of the de facto officer doctrine.
¶ 55 Chief Justice Harrison, apparently joined by Justice Kilbride, held that the decision in which the two illegally appointed commissioners participated was void and that [n]o considerations of public policy militate[d] in favor of applying the de facto officer doctrine. Id. at 165-67, 266 Ill.Dec. 864, 775 N.E.2d 936. Justice McMorrow filed a special concurring opinion, in which Justice Freeman joined, holding that, applying equitable principles, the first plaintiff who raised the issue of the validity of the Commissions decision should be granted a new hearing but, in other cases, the de facto officer doctrine should apply to maintain the validity of the decisions rendered by the Commission in which the two illegally appointed panel members participated. Id. at 175-77, 266 Ill.Dec. 864, 775 N.E.2d 936 (McMorrow, J., specially concurring, joined by Freeman, J.).
¶ 56 Justice Thomas, in a dissent joined in by Justices Fitzgerald and Garman, held that the Commissions decision was neither void nor subject to collateral attack. Id. at 185, 266 Ill.Dec. 864, 775 N.E.2d 936 (Thomas, J., dissenting, joined by Fitzgerald and Garman, JJ.). Justice Fitzgerald also filed a separate dissent in which he found the two illegally appointed panel members to be de facto commissioners with authority to act. Id. at 178-79, 266 Ill.Dec. 864, 775 N.E.2d 936 (Fitzgerald, J., dissenting.).
¶ 57 Although the supreme courts decision in Daniels is a plurality opinion, it is clear that five of seven justices agreed with the proposition that the Commissions decision should be upheld using the de facto officer doctrine. Justice McMorrows special concurring opinion in Daniels , in which Justice Freeman joined, explicitly stated that [t]he common law de facto officer doctrine operates to prevent invalidation of [otherwise void] decisions. Id. at 173, 266 Ill.Dec. 864, 775 N.E.2d 936 (McMorrow, J., specially concurring, joined by Freeman, J.). Although Justice Thomass dissent in Daniels does not directly address the de facto officer doctrine (see id. at 181-86, 266 Ill.Dec. 864, 775 N.E.2d 936, (Thomas, J., dissenting, joined by Fitzgerald and Garman, JJ.) ), his dissent in Baggett v. Industrial Commn , 201 Ill. 2d 187, 204-10, 266 Ill.Dec. 836, 775 N.E.2d 908 (2002), in which Justices Fitzgerald and Garman joined, states that decisions rendered by the two illegally appointed commissioners are either de facto valid or void; [t]here is no middle ground. Id. at 209, 266 Ill.Dec. 836, 775 N.E.2d 908 (Thomas, J., dissenting, joined by Fitzgerald and Garman, JJ.).
¶ 58 In the last 15 years since Daniels , our supreme court has not had any meaningful opportunity to further analyze the application of the de facto officer doctrine. Accordingly, limited as we are, after a thorough review of Daniels and Baggett , we conclude that application of the de facto officer doctrine prevents the invalidation of the Merit Boards decision in this case. In that respect, we agree with the sound reasoning of Justice McMorrow in Daniels , that in determining whether to apply the de facto officer doctrine, the court must weigh two competing public interests: the publics interest in promoting the orderly functioning of [government], and the publics interest in uncovering and exposing illegal appointment procedures, thereby ensuring that administrative agencies comply with the statutory mandates which govern them. Daniels , 201 Ill. 2d at 175-76, 266 Ill.Dec. 864, 775 N.E.2d 936 (McMorrow, J., specially concurring, joined by Freeman, J.). We further agree with Justice McMorrow that in a collateral proceeding, it is best to draw a line and permit only the first challenger of the improper appointment to invalidate the agencys decision, but no others. Id. at 176-77, 266 Ill.Dec. 864, 775 N.E.2d 936. As Justice McMorrow aptly explained:
By permitting the claimant who brought the illegal appointments to light to receive a new hearing, the incentive to discover and pursue such illegality is maintained. Once the matter has been litigated and decided by the courts, however, the public interest in uncovering and addressing illegality is served. At that juncture, the public interest in preserving the validity of a large multitude of [the agencys] decisions takes precedence. Id. at 176, 266 Ill.Dec. 864, 775 N.E.2d 936.
¶ 59 Since the plaintiff in this case is not the first claimant to have brought the illegal appointment of Rosales to light, we conclude that public interest is better served by not invalidating the plaintiffs termination decision. This will circumvent the upheaval that would doubtlessly result if we were to invalidate the Merit Boards decision, and invite hundreds of plaintiffs to seek invalidation of all the decision rendered by the illegally constituted panel during Rosaless unauthorized term. The Merit Boards decisions are not solely limited to disciplinary actions and terminations but rather include promotions and job classifications, all of which could be jeopardized on the basis of Rosaless improper appointment. Accordingly, we apply the de facto officer doctrine in this case to find that the decision of the Merit Board as to the plaintiff was valid.
¶ 60 In coming to this decision, we acknowledge that in Taylor , the appellate court refused to apply the de facto officer doctrine to a plaintiff challenging Rosaless improper appointment. We again reiterate, however, that the plaintiff in Taylor was the first to bring to light the improper appointment of Rosales and that, at that juncture, public interest was better served by permitting that improper appointment to be brought to light.
¶ 61 For this same reason we reject the plaintiffs reliance on Vuagniaux , 208 Ill. 2d 173, 280 Ill.Dec. 635, 802 N.E.2d 1156, and find that case inapposite. In Vuagniaux , the Department of Professional Regulations (Department) brought a complaint against the plaintiff before the Medical Disciplinary Board. Id. at 178, 280 Ill.Dec. 635, 802 N.E.2d 1156. While those proceedings were pending, the plaintiff sought the exclusion of one of the board members, arguing that his presence on the board would prejudice him on the basis of the medical theories he practiced. Id. at 181-82, 280 Ill.Dec. 635, 802 N.E.2d 1156. The board removed the member to avoid any prejudice and appointed a new member. The plaintiff objected to this new appointment as being in violation of the Medical Practice Act, but that objection went unheeded and the board, with the new member, issued its recommendation. Id. at 182, 280 Ill.Dec. 635, 802 N.E.2d 1156. The Department adopted the recommendation of the board. Id. at 183, 280 Ill.Dec. 635, 802 N.E.2d 1156. On administrative review, the circuit court set aside the boards decision and dismissed the Departments complaint against the plaintiff, finding, inter alia , that the appointment of the new board member was not authorized by law. Id. at 183-84, 280 Ill.Dec. 635, 802 N.E.2d 1156.
¶ 62 In affirming that decision, our supreme court rejected the application of the de facto officer doctrine on the basis that it did not involve the effects of an officers acts on a member of the public or a third party and that the officers qualifications to act were not being contested in a collateral proceeding. Id. at 187, 280 Ill.Dec. 635, 802 N.E.2d 1156. Rather,
[t]he challenge to [the board members] authority to act as a member of the Board was raised in the proceeding in which [the board member] was appointed, at the time the appointment was made, by a [plaintiff] whose case was directly affected by the appointment, to the tribunal responsible for considering the disciplinary charges against the [plaintiff], and before the tribunal considered the [plaintiffs] case on the merits or made its recommendations. Id.
¶ 63 Unlike Vuagniaux , in the present case, the plaintiff never challenged Rosaless authority to act as a member of the Merit Board before the Merit Board and certainly not until after the Merit Board had made its decision. In addition, as already stated above, unlike the plaintiff in Vuagniaux , here, the plaintiff is not the first to challenge Rosaless improper appointment.
¶ 64 Since we have determined that the Merit Boards decision is valid, we must next address the plaintiffs contentions regarding the substance of that decision.
¶ 65 B. The Merit Boards Termination Decision
¶ 66 On appeal, the plaintiff argues that the Merit Boards decision to terminate him was against the manifest weight of the evidence and was not supported by sufficient cause. For the reasons that follow, we disagree.
¶ 67 In an administrative review case, we review the decision of the administrative agency not the circuit court decision. Frances House, Inc. v. Department of Public Health , 2015 IL App (1st) 140750, ¶ 22, 398 Ill.Dec. 174, 43 N.E.3d 1084 ; see also Marzano v. Cook County Sheriffs Merit Board , 396 Ill. App. 3d 442, 446, 336 Ill.Dec. 615, 920 N.E.2d 1205 (2009) (citing Marconi v. Chicago Heights Police Pension Board , 225 Ill. 2d 497, 531, 312 Ill.Dec. 208, 870 N.E.2d 273 (2006) ). In doing so, we are limited to considering the evidence submitted in the administrative hearing and may not hear additional evidence for or against the agencys decision. Roman v. Cook County Sheriffs Merit Board , 2014 IL App (1st) 123308, ¶ 66, 384 Ill.Dec. 557, 17 N.E.3d 130. The standard of review that determines the degree of deference given to an agencys decision depends on the question presented. Beggs v. Board of Education of Murphysboro Community Unit School District No. 186 , 2016 IL 120236, ¶ 50, 410 Ill.Dec. 902, 72 N.E.3d 288.
¶ 68 Our scope of review of an administrative agencys decision to discharge an employee is a two-step process. Walker v. Dart , 2015 IL App (1st) 140087, ¶ 39, 391 Ill.Dec. 156, 30 N.E.3d 426 (quoting Marzano , 396 Ill. App. 3d at 446, 336 Ill.Dec. 615, 920 N.E.2d 1205, citing Walsh v. Board of Fire & Police Commissioners , 96 Ill. 2d 101, 105, 70 Ill.Dec. 241, 449 N.E.2d 115 (1983) ) ). The first step in our analysis is to determine whether the agencys findings of fact are contrary to the manifest weight of the evidence. Id. (quoting Marzano , 396 Ill. App. 3d at 446, 336 Ill.Dec. 615, 920 N.E.2d 1205, citing Walsh , 96 Ill. 2d at 105, 70 Ill.Dec. 241, 449 N.E.2d 115 ) ). The second step in our analysis is to determine if the Merit Boards findings of fact provide a sufficient basis for its conclusion that cause for discharge exists. Id. (quoting Marzano , 396 Ill. App. 3d at 446, 336 Ill.Dec. 615, 920 N.E.2d 1205, citing Walsh , 96 Ill. 2d at 105, 70 Ill.Dec. 241, 449 N.E.2d 115 ) ).
¶ 69 In the present case, contrary to the plaintiffs contentions, we find nothing manifestly erroneous in the Merit Boards finding that the plaintiff violated general order 3.8, Sheriffs order 11.4.1.1 and article X of the Cook County Sheriffs Department Merit Board Rules and Regulations (Cook County Sheriffs Department Merit Board Rules and Regulations, art. X (eff. Jan. 2008) ).
¶ 70 An administrative agencys findings and conclusions on questions of fact are considered prima facie true and correct. Beggs , 2016 IL 120236, ¶ 50, 410 Ill.Dec. 902, 72 N.E.3d 288 (citing 735 ILCS 5/3-110 (West 2012) ). Accordingly, an agencys factual findings are not to be reweighed by a reviewing court and are to be reversed only if they are against the manifest weight of the evidence. Id. Factual determinations are against the manifest weight of the evidence only where the opposite conclusion is clearly evident. Id. Accordingly, [i]f the record contains evidence to support the agencys decision, we must affirm that decision.
Roman , 2014 IL App (1st) 123308, ¶ 66, 384 Ill.Dec. 557, 17 N.E.3d 130. Reversal is not justified merely because the reviewing court would have ruled differently. Magett v. Cook County Sheriffs Merit Board , 282 Ill. App. 3d 282, 287, 218 Ill.Dec. 473, 669 N.E.2d 616 (1996).
¶ 71 The record below incontrovertibly establishes that in a period of less than four months, the plaintiff accumulated 96 hours of unexcused absences. The plaintiff was absent no call on December 29, 2012, and January 1 through January 10, 2013. In addition, he was absent late call on February 20, and March 20, 2013, and absent no sick time on April 13, 2013. The evidence is further undisputed that the plaintiff was given at least four counseling sessions at which options for extended authorized leave were presented to him but which he consistently failed to utilize. In addition, the record establishes that the plaintiff was aware that his unexcused absences had consequences for his employment. The plaintiff received progressive discipline earlier in 2012, including 6 suspension days before December 29, 2012, as well as a certified letter informing him that he had incurred more than 40 hours of unauthorized absences.
¶ 72 Under this record and contrary to the plaintiffs position, we are unable to find that the Merit Boards factual determinations were against the manifest weight of the evidence. See OSullivan v. Board of Commissioners of the Cook County Board , 293 Ill. App. 3d 1, 9, 227 Ill.Dec. 621, 687 N.E.2d 1103 (1997) (If there is evidence in the record that supports the administrative agencys decision, the decision must be sustained on judicial review. [Citation.] Because the weight of the evidence and the credibility of the witness are determined by the agency, there need only be some competent evidence in the record to support the decision.).
¶ 73 In that respect, we disagree with the plaintiffs position that the Merit Board made no specific factual findings regarding plaintiffs defense of alcoholism. The Merit Boards decision detailed the plaintiffs testimony regarding his alcoholism and then explicitly provided that it gave due consideration to the evidence offered to show the plaintiffs alcohol dependency or alcoholism, but determined that regardless of that dependency, the unexcused absences constituted a violation of the relevant agency rules, justifying termination. The plaintiffs contention that the Merit Board was required to make more specific factual findings regarding his alcoholism is unavailing. The purpose of an agencys findings in an administrative proceeding is to permit orderly and efficient judicial review. Board of Education of Park Forest Heights School District No. 163 v. State Teacher Certification Board , 363 Ill. App. 3d 433, 442, 299 Ill.Dec. 878, 842 N.E.2d 1230 (2006) Where an agencys findings are sufficient to permit the reviewing court to make an intelligent decision, the standard is met. Id. Where, as here, the testimony before the administrative agency is preserved for review in the record, specific findings of fact by the agency are not necessary for judicial review. Id.
¶ 74 The plaintiff next contends that his termination was arbitrary and unreasonable because the record demonstrates that the Merit Board failed to articulate a proper cause for his termination by failing to give sufficient weight to the mitigating evidence of his alcoholism. We disagree.
¶ 75 As already noted above, the second step in our analysis is to determine whether the Merit Boards findings of fact provide a sufficient basis for its conclusion that cause for discharge exists. Walker , 2015 IL App (1st) 140087, ¶ 39, 391 Ill.Dec. 156, 30 N.E.3d 426 (citing Walsh , 96 Ill. 2d at 105, 70 Ill.Dec. 241, 449 N.E.2d 115 ). Cause is defined as some substantial shortcoming that renders the employees continued employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as a good cause for his no longer occupying the place. Walsh , 96 Ill. 2d at 105, 70 Ill.Dec. 241, 449 N.E.2d 115. The Merit Board, not the reviewing court, is in the best position to determine the effect of an employees conduct on the agency. Marzano , 396 Ill. App. 3d at 446, 336 Ill.Dec. 615, 920 N.E.2d 1205. Accordingly, considerable deference must be afforded to an administrative finding of cause for discharge and that finding will not be overturned unless it is arbitrary and unreasonable or unrelated to the requirements of the service. Walsh , 96 Ill. 2d at 105, 70 Ill.Dec. 241, 449 N.E.2d 115.
¶ 76 In the present case, there are no rules and regulations of the Merit Board, nor does the plaintiff cite any, which would permit alcohol dependency, even if viewed as an illness, to excuse the plaintiffs unauthorized absences.
¶ 77 In fact, our appellate courts have repeatedly held that a pattern of unexcused absences by a Sheriffs employee, even if caused by a medical condition, is detrimental to service and a basis for termination. See Gunia v. Cook County Sheriffs Merit Board , 211 Ill. App. 3d 761, 773, 156 Ill.Dec. 177, 570 N.E.2d 653 (1991) ; Marzano , 396 Ill. App. 3d at 447, 336 Ill.Dec. 615, 920 N.E.2d 1205.
¶ 78 In Gunia , the appellate court reviewing the Merit Boards decision to terminate a correctional officer on the basis of a pattern of unexcused absences and concluded that the sanction of discharge was not unreasonable, arbitrary or unrelated to the needs of the [Sheriffs] Department. Gunia , 211 Ill. App. 3d at 773, 156 Ill.Dec. 177, 570 N.E.2d 653. In doing so, the court explained that a correctional officers excessive pattern of unexcused absences, not only denotes lack of responsibility and willingness to perform [ ] duties, but also threatens the penal institutions ability to staff itself and seriously jeopardizes its security. Id.
¶ 79 Similarly, in Marzano , the appellate court rejected the argument that a correctional officer could not be discharged because her absences were caused by a medical condition. Marzano , 396 Ill. App. 3d at 447, 336 Ill.Dec. 615, 920 N.E.2d 1205. Like the plaintiff here, the plaintiff in Marzano was discharged because of numerous unexcused absences. Id. Like the plaintiff here, she had been counseled and notified of her options to apply for medical or disability leave but did not apply for either. Id. Instead, she continued to miss work and was progressively disciplined. Id. The court in Marzano found that the Sheriff was entitled to fire an employee for excessive unexcused absences and that the plaintiffs continued inability to come to work had a significant impact on the operation of the Sheriffs office. Id. Accordingly, the court concluded that the Merit Boards finding of cause for discharging the plaintiff was not arbitrary or unreasonable. Id.
¶ 80 In doing so, the court in Marzano relied on the decision in Cruz v. Cook County Sheriffs Merit Board , 394 Ill. App. 3d 337, 342, 333 Ill.Dec. 234, 914 N.E.2d 653 (2009). In that case, a correctional officer called in sick even though she did not have any accrued sick days. Id. The court in Cruz held that although the plaintiff provided medical notes for her absences, they were irrelevant since establishing that she was actually sick did not negate the fact that she had no more sick days. Id. As the court explained, [i]f an employee has used all his sick days, it is irrelevant that he has a legitimate medical excuse for not attending work, because he is informed at the first (counseling) stage that he may apply for family medical leave or disability leave. Id. at 339, 333 Ill.Dec. 234, 914 N.E.2d 653.
¶ 81 Applying the rationale of Marzano and Gunia to the facts of this case, we similarly conclude that the Merit Boards decision to reject the plaintiffs defense of alcoholism as an excuse for violating the agencys rules regarding unauthorized absenteeism was not made in error. See Robbins v. Department of State Police Merit Board , 2014 IL App (4th) 130041, ¶ 55, 387 Ill.Dec. 126, 22 N.E.3d 8 (An administrative agency need not give mitigating evidence such weight that it overcomes its discharge decision, and a discharge in a case where mitigating evidence was presented is not per se arbitrary or unreasonable. ) (quoting Malinowski v. Cook County Sheriffs Merit Board , 395 Ill. App. 3d 317, 323, 335 Ill.Dec. 84, 917 N.E.2d 1148 (2009) ). In the present case, former ARU supervisor, Jones, testified that Sheriffs order 11.4.1.1 had been created, among other reasons, to address safety concerns in the CCDOC. In addition, the plaintiffs own witness, Johnson, admitted that unauthorized absences have the potential to create security risks, to increase overtime costs, and to damage morale in the CCDOC. Under this record, the Merit Boards finding of cause for the termination was not arbitrary or unreasonable.
¶ 82 In this respect, we further disagree with the plaintiffs position that the Merit Board failed to give sufficient weight to the plaintiffs testimony regarding his attempts to overcome his alcoholism and the testimony of the witnesses who testified to the genuineness of these efforts. The flaw in this argument is that it asks us to reweigh the evidence presented to the Merit Board, which, as already articulate above, we are not at liberty to do. Regardless of how much sympathy we may have for the plaintiffs struggle, as a reviewing court, we may not reweigh the Merit Boards determination as to the evidence or the credibility of witnesses. See S.W. v. Department of Children & Family Services , 276 Ill. App. 3d 672, 682, 213 Ill.Dec. 280, 658 N.E.2d 1301 (1995) (citing Doe v. Department of Children & Family Services , 265 Ill. App. 3d 907, 911, 203 Ill.Dec. 110, 639 N.E.2d 149 (1994) ). [C]onflicts in testimony revolve around the credibility of the witnesses and are to be resolved by the agency who heard the evidence and observed the witnesses. Keen v. Police Board , 73 Ill. App. 3d 65, 71, 29 Ill.Dec. 31, 391 N.E.2d 190 (1979) (citing Mobley v. Conlisk , 59 Ill. App. 3d 1031, 1040, 17 Ill.Dec. 248, 376 N.E.2d 247 (1978) ).
¶ 83 III. CONCLUSION
¶ 84 Accordingly, for the aforementioned reasons, we affirm the judgment of the circuit court affirming the Merit Boards decision to terminate the plaintiff from his position as a correctional officer.
¶ 85 Affirmed.
Justices Howse and Lavin concurred in the judgment and opinion.
In his reply brief the plaintiff alleges that all but one of the Merit Board members involved in his termination were improperly appointed. In support, he attaches a voluminous appendix with documents he claims are responses to his FOIA requests, showing the terms and the dates of appointment for those members. However, since these allegations are raised for the first time in the plaintiffs reply brief and the documents attached are not part of the record on appeal, we are not at liberty to consider them for purposes of this appeal. See Ill. S.Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (Points not argued in an appellants brief are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.); Multiut Corp. v. Draiman , 359 Ill. App. 3d 527, 534, 295 Ill.Dec. 818, 834 N.E.2d 43 (2005) (All matters reviewed on appeal must be made part of the official court record, and a copy of an item attached to a brief cannot be considered by this court.).
In that case, a convent tried to avoid a bond obligation, claiming the abbot who guaranteed it improperly assumed office after losing the election. Kathryn A. Clokey, Note, The De Facto Officer Doctrine: The Case for Continued Application , 85 Colum. L. Rev. 1121, 1125 (1985).
Quo warranto proceedings were often used by feudal English kings to force a claimant of an officer or title, supposedly conferred by the crown, to show by what right the claimant held that privilege. 17 Eugene McQuillin, The Law of Municipal Corporations, § 50.02 (3d ed. rev. 1993).
In this respect, the Sheriff cites over sixty cases challenging appointments to the Merit Board, which have been filed in the circuit court since the decision in Taylor and pursuant to its ruling.