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04/24/97 STEPHEN L. DENTON v. CIVIL SERVICE

April 24, 1997

STEPHEN L. DENTON, APPELLEE,
v.
THE CIVIL SERVICE COMMISSION OF THE STATE OF ILLINOIS ET AL., APPELLANTS.



Chief Justice Heiple delivered the opinion of the court. Justice Miller, dissenting. Justices Freeman and McMORROW join in this dissent.

The opinion of the court was delivered by: Heiple

CHIEF JUSTICE HEIPLE delivered the opinion of the court:

The issue before this court is whether section 8b.7(f) of the Personnel Code (20 ILCS 415/8b.7(f) (West 1992)) affords veterans an absolute hiring preference over nonveterans within the same grade category. The Civil Service Commission (the Commission) and the circuit court determined that section 8b.7(f)'s hiring preference was not absolute. The appellate court disagreed, holding that section 8b.7(f) does indeed grant veterans an absolute hiring preference over nonveterans of the same grade category. 277 Ill. App. 3d 770, 661 N.E.2d 520, 214 Ill. Dec. 666. This court granted leave to appeal (155 Ill. 2d R. 315), and, for the reasons which follow, we affirm the appellate court.

Appellee, Stephen L. Denton, served in the United States Army from December 1965 until he was honorably discharged in December 1968. On June 12, 1991, Denton submitted an application to the Illinois Department of Central Management Services (CMS), seeking employment for an open "Executive IV" position. Denton indicated on the application that he was eligible for a veteran's preference. On July 10, 1991, Denton received notice from CMS that his application had been graded and that he had been given a category grade of "A," the highest grade possible. Denton was also notified that his name and grade had been placed on a CMS eligibility list requested by the Illinois State Police.

On August 27, 1991, Denton joined 13 veterans and three nonveterans who interviewed for the Executive IV position of assistant bureau chief in the Drug Abuse Resistance Education (D.A.R.E.) program. With the approval of CMS, however, the State Police hired a nonveteran, namely, Linda Lang. Lang, like Denton, had also been given a category grade of "A." After receiving a letter from the State Police informing him that he had not been chosen, Denton wrote to the Commission contending that the failure to hire him violated section 302.30(c)(3) of Title 80 of the Administrative Code. *fn1 This section provides that "if category ratings are used, the veteran eligibles in each category shall be preferred for appointment before the nonveteran eligibles in the same category." 80 Ill. Adm. Code § 302.30(c)(3) (1990) (identical language now at 80 Ill. Adm. Code § 302.30(d) (1996)). The Commission staff responded by letter that Lang's overall credentials were superior to those of all the other candidates. The Commission staff's letter further explained that section 302.30(c)(3) of the personnel rules had been interpreted to permit an agency to bypass a veteran only when the qualifications of the nonveteran eligible were superior to the bypassed veteran eligibles. Having thus found no violation of the personnel rules or the Personnel Code, the Commission staff notified Denton that if adopted by the Commission, the staff's determination would became a final administrative decision.

Denton thereafter asserted by letter that section 8b.7 of the Personnel Code had been violated when he or another qualified veteran was not appointed to the Executive IV position with the State Police. See Ill. Rev. Stat. 1991, ch. 127, par. 63b108b.7 (codified as 20 ILCS 415/8b.7 (West 1992)). Nevertheless, the Commission rendered a final administrative decision by adopting its staff's findings on May 13, 1992.

Denton subsequently filed a complaint for administrative review in the circuit court of Sangamon County on June 17, 1992, against the Commission, including Executive Secretary Bruce J. Finne and Commissioners J.J. Moffat, William G. Stratton, and Harry Conlon; the State Police, including Director Terrance W. Gainer; and CMS, including Director Stephen B. Schnorf. *fn2 The circuit court affirmed, holding that a veteran may be bypassed for employment in favor of a more qualified nonveteran. Denton appealed. The appellate court reversed, holding that section 8b.7(f) of the Personnel Code grants veterans an absolute hiring preference over nonveterans within the same grade category. 277 Ill. App. 3d 770, 214 Ill. Dec. 666, 661 N.E.2d 520.

ANALYSIS

The sole issue on appeal is whether section 8b.7(f) of the Personnel Code guarantees veterans an absolute hiring preference over nonveterans of the same grade category. Section 8b.7(f) provides:

"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 CMS] 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. " (Emphasis added.) 20 ILCS 415/8b.7(f) (West 1992).

The Commission contends that the above-emphasized portion of section 8b.7(f) provides an absolute hiring preference only in situations where the veteran and nonveteran of the same grade category are equally qualified. Denton counters that the emphasized portion of section 8b.7(f) unambiguously mandates an absolute hiring preference for veterans in the same grade category as nonveterans.

While courts afford considerable deference to an agency's interpretation of a statute it administers, an agency's determination is not binding as to questions of law and will be rejected if erroneous. City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268, 122 Ill. 2d 353, 361, 119 Ill. Dec. 360, 522 N.E.2d 1219 (1988). Indeed, the primary rule in statutory construction is to give effect to legislative intent as evidenced by the language of the statute. Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 81, 196 Ill. Dec. 655, 630 N.E.2d 820 (1994). Words in the statute should be given their popularly understood meaning ( Kozak v. Retirement Board of the Firemen's Annuity & Benefit Fund, 95 Ill. 2d 211, 215, 69 Ill. Dec. 177, 447 N.E.2d 394 (1983)), and only where the statutory language is unclear may a court look beyond it ( Solich, 158 Ill. 2d at 81).

As well as contending that the language of section 8b.7(f) does not provide veterans with a absolute hiring preference over more qualified nonveterans in the same grade category, the Commission further argues that the emphasized portion of section 8b.7(f) is satisfied by procedures CMS has developed to favor veterans over nonveterans in the hiring process. These CMS procedures require that the employing agency interview and consider veterans of a given category before nonveterans of the same category; that the employing agency request CMS approval before selecting a nonveteran over available veterans; and that veterans, upon request, receive a written explanation of the reasons why another candidate was selected. The Commission argues that these procedures satisfy section 8b.7(f) in that they reflect a reasonable interpretation of the veteran's preference provision.

The appellate court held that CMS's failure to record these procedures in the administrative code renders them invalid. See 5 ILCS 100/1-70 (West 1992); Senn Park Nursing Center v. Miller, 104 Ill. 2d 169, 181, 83 Ill. Dec. 609, 470 N.E.2d 1029 (1984) (holding that when an agency fails to follow the proper procedure under the Illinois Administrative Procedure Act for the adoption of rules, the ...


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