Before concluding our Discussion, there is one further matter we must discuss. Knight's attorney claims that the Commission made an inadvertent error with respect to the amount of attorney fees and costs his client was awarded. The record indicates, however, that this claim has been raised for the first time in Knight's brief on appeal. The issue has therefore been waived. In addition, no formal cross-appeal was taken by Knight regarding that portion of the Commission's order. Thus, even if the issue had not been waived, it would nevertheless not be properly before us. The judgment of the circuit court of Madison County upholding the order of the Commission is therefore affirmed.
APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
516 N.E.2d 991, 163 Ill. App. 3d 289, 114 Ill. Dec. 836 1987.IL.1784
JUSTICE HARRISON delivered the opinion of the court. KARNS, P.J., concurs. JUSTICE WELCH, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON
The board of trustees of Southern Illinois University appeals from a judgment of the circuit court of Madison County which upheld on administrative review an order of the Illinois Human Rights Commission (the Commission). In that order, the Commission found that SIU had violated the Illinois Human Rights Act (Ill. Rev. Stat. 1983, ch. 68, par. 1-101 et seq.) when it refused to hire James Knight, who is black, as a "Police Officer Learner" because of the record of his arrest and conviction for unlawful possession of a weapon, a misdemeanor, approximately five years earlier. To remedy this violation, the Commission's order granted various forms of relief to Knight, including a requirement that he be hired by SIU with back pay and an award of his reasonable costs and attorney fees.
On this appeal, SIU does not take issue with the particular remedy fashioned by the Commission. Rather, it makes the more fundamental claim that the Commission's finding of a civil rights violation is contrary to the manifest weight of the evidence. Specifically, SIU contends that its reliance on Knight's arrest and conviction record in rejecting his job application was shown to be justifiable on grounds of business necessity. For the reasons which follow, we find this contention to be without merit. We therefore affirm.
Section 8-111(1) of the Illinois Human Rights Act (Ill. Rev. Stat. 1983, ch. 68, par. 8-111(1)) provides that our review of the Commission's order must be made in accordance with the Administrative Review Law, as amended (Ill. Rev. Stat. 1983, ch. 110, par. 3-101 et seq.). Pursuant to section 3-110 of that law (Ill. Rev. Stat. 1983, ch. 110, par. 3-110), the findings and Conclusions of an administrative agency are held to be prima facie true and correct. (Rackow v. Illinois Human Rights Comm'n (1987), 152 Ill. App. 3d 1046, 1061, 504 N.E.2d 1344, 1354.) A reviewing court may not reweigh the evidence, but may determine only whether the agency's decision is against the manifest weight of the evidence. (See Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 372-73, 498 N.E.2d 1148, 1153.) A decision is contrary to the manifest weight of the evidence only when, after viewing the evidence in a light most favorable to the agency, the court determines that no rational trier of fact could have agreed with the agency's decision. Service Employees International Local Union No. 316 v. Illinois Educational Labor Relations Board (1987), 153 Ill. App. 3d 744, 753, 505 N.E.2d 418, 425.
In this case the evidence showed that in 1975 Knight enrolled as a student at SIU in Edwardsville. In 1977 he was hired by Modern Security Agency, which had a contract with SIU. Knight was initially assigned as a security officer in one of SIU's buildings, but was ultimately promoted to the rank of patrol sergeant. Knight was licensed by the State of Illinois as a security officer in 1977, and while working for Modern Security Agency he carried a pistol. Knight left his employment with the agency in September of 1978 when the agency lost its contract with SIU. According to Knight's supervisor at the agency, Knight was a very good employee and maintained a good relationship with both the public and his fellow employees. The supervisor indicated that he would rehire Knight if the occasion were to arise.
In November of 1978 Knight became an auxiliary police officer with the East St. Louis police department. He graduated from the East St. Louis police department's training program and received firearms training from the State. As an auxiliary police officer, Knight was required to carry a gun and make arrests. He advanced to the rank of sergeant in 1981 and was responsible for supervising the 30 or so officers in the auxiliary unit. Knight's service with that unit was purely voluntary. At the time of the hearing on his complaint he continued to hold the rank of sergeant and worked 40 or more hours a week. The record indicates that he received a merit award from the mayor of East St. Louis for his service.
Knight originally applied for the position of "Police Officer I" with SIU. He had learned about the job while an employee of Modern Security and submitted his application on February 15, 1978. Thereafter, by letter dated March 16, 1979, Knight advised SIU's affirmative action officer, Benjamin Quillian, Ph.D., that he wanted to be considered for a position on SIU's police department in the capacity of "Police Officer Learner." The learner program is a method of recruiting members of minority groups for the SIU police department. Learners are placed on probation for 18 months, after which they are eligible to assume the rank of "Police Officer I."
Knight interviewed with the screening committee set up by SIU for its learner program. Based on his examination scores and other criteria, Knight was ranked seventh out of 12 finalists. In November 1979, a white female officer on the force resigned and was replaced by another white female who had ranked sixth on the learner program list. The following summer an additional position opened up on the force. It was this position for which Knight was considered.
SIU's police department conducted a background investigation of Knight to determine his "suitability for employment as an Police Officer." The investigation involved inquiries of the following:
1. Illinois Department of Law Enforcement (criminal history);
2. Illinois Secretary of State (operator's license information);
3. East St. Louis police department;
4. Dan Truck and Motor Company (former employer);
5. Modern Security Agency (former employer);
6. Mr. Irvin Hudlin, administrative assistant to the director of SIU's East ...