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Hitt v. Ryan

September 21, 1999


Appeal from Circuit Court of Sangamon County No. 98MR285 Honorable Thomas R. Appleton, Judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH

On September 25, 1998, Margaret Hitt, Kenneth Fryman, Kenton Manning, and Donald Zumwalt, plaintiffs, filed a complaint against George Ryan, then Secretary of State of Illinois (Secretary), in his official capacity, seeking a declaratory judgment determining whether an unwritten policy of the State violates their veteran's preference rights as set forth in the Secretary of State Merit Employment Code (Employment Code) (15 ILCS 310/10b.7 (West 1998)), and a writ of mandamus enforcing their rights under the Employment Code. On November 13, 1998, the Secretary filed a motion to dismiss pursuant to sections 2-619(a)(1) and (a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1), (a)(9) (West 1998)), arguing, in pertinent part, the plaintiffs failed to exhaust their administrative remedies before the Merit Commission of the Office of the Secretary of State (Merit Commission). Plaintiffs did not seek review before the Merit Commission before filing their complaint. On January 7, 1999, the circuit court granted the motion to dismiss. Plaintiffs appeal, arguing they had no administrative remedy before the Merit Commission for the State's unwritten policy. We affirm.

According to their complaint, plaintiffs are officers of the Secretary of State Police. Manning is a sergeant, and the remaining plaintiffs are investigators. In the fall of 1997, Hitt, Fryman, and Zumwalt applied for positions with the Secretary of State Police as sergeants. Fryman and Manning applied for positions as lieutenants. All of the plaintiffs are veterans. Nonveterans were hired for each of the openings.

With their response to the motion to dismiss, plaintiffs filed affidavits from Manning, Fryman, and Hitt. Fryman and Hitt stated they are investigators with the Secretary of State Police and received an "A" grade in examinations for positions of "investigator sergeant." Fryman also received an "A" grade on the exam for "investigator lieutenant." In July 1997, Fryman applied for a position as investigator lieutenant, and he interviewed for the position on August 12, 1997. Later that month, he was informed by Secretary of State Police Director Robert Howlett that a nonveteran had been selected for the position. According to Fryman's affidavit, Howlett told Fryman that the Secretary of State Police did not as a matter of practice use a veteran's preference in determining the applicant to fill the position.

In the fall of 1997, Fryman and Hitt applied for an opening for an investigator sergeant position with the Secretary of State Police. In November 1997, Fryman was informed a nonveteran had been hired for the position. Howlett again told Fryman that veteran's preferences are not used in filling this position. According to Fryman's affidavit, he attended a meeting on August 6, 1998, in which Howlett stated he knew the Secretary of State's system for advancement was invalid and that he was planning to hire some experts to develop a valid promotional exam. In the interim, Howlett stated, the Secretary of State was going to "pick whomever we want" without regard to the veteran's preference.

Hitt was never officially notified her application was rejected or why she did not get the job. Hitt stated that information put out by the Secretary of State in the fall of 1997 indicated the Department of Personnel of the Secretary of State considered the sergeant and lieutenant positions to be governed by the rules for new hires, and she was informed no eligibility lists were ever prepared for the positions.

Manning stated his application for promotion from sergeant to lieutenant had been denied twice, in July 1997 and April 1998. Manning filed a Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 1998)) request seeking his examination data for his 1997 application. His request was denied by Scott Fawell, chief of staff of the Secretary of State. According to Fawell's letter, disclosure was not required under the FOIA because he was seeking a new position within the Secretary of State Police, and this is no different than any individual seeking employment (see 5 ILCS 140/7(1)(j) (West 1998) (examination data used to determine an applicant's qualifications need not be released under the FOIA)).

The Employment Code provides that veterans applying to positions with the Secretary of State are to be given a hiring preference. Where a grading system is used to evaluate applicants, veterans are to receive additional points. 15 ILCS 310/10b.7(c), (d) (West 1998). Where applicants are instead given general quality classifications, veterans are given an absolute preference over other applicants. 15 ILCS 310/10b.7(f) (West 1998); cf. Denton v. Civil Service Comm'n, 176 Ill. 2d 144, 679 N.E.2d 1234 (1997). Plaintiffs contend they were entitled to an absolute preference here.

The question for the court deciding a motion under section 2-619 is whether a genuine issue of material fact exists precluding dismissal or, absent an issue of material fact, whether dismissal is proper as a matter of law. A decision to grant a motion to dismiss is reviewed de novo. Hopewell v. Vitullo, 299 Ill. App. 3d 513, 516, 701 N.E.2d 99, 101 (1998).

The Secretary's motion to dismiss was granted because plaintiffs failed to exhaust administrative remedies. The general rule under the Administrative Review Law (Review Law) (735 ILCS 5/3-101 through 3-113 (West 1998)) is that a party aggrieved by an agency action must pursue all available administrative remedies before seeking judicial review. Phillips v. Graham, 86 Ill. 2d 274, 289, 427 N.E.2d 550, 557 (1981). This is true of declaratory judgment actions. Dudley v. Board of Education, Bellwood School District No. 88, 260 Ill. App. 3d 1100, 1106, 632 N.E.2d 94, 99 (1994). However, if plaintiffs had no right to an administrative process in which to raise their complaint, they were not required to exhaust administrative remedies. See Hampson v. Board of Education, 215 Ill. App. 3d 817, 827, 576 N.E.2d 54, 60 (1991). The primary issue on appeal is whether plaintiffs had an administrative avenue for their complaint before the Merit Commission.

The Illinois Administrative Code (Administrative Code) clearly provides for administrative review of plaintiffs' claim that the Merit Commission failed to consider veteran's preferences in filling the newly created sergeant and lieutenant positions. 80 Ill. Adm. Code §50.140 (1996).

The Administrative Code provides:

"A certified employee who believes that a personnel transaction has been falsely labeled in an attempt to deprive the Commission of its lawful jurisdiction, or who believes that a personnel transaction adversely affecting him violates either the [Employment] Code or the Personnel Rules, may within a period of 15 calendar days after receiving actual notice of such violation or falsely labeled transaction appeal in writing to the Commission." 80 Ill. Adm. Code §50.100(a) (1996).

A certified employee is an employee who has successfully completed an appointment and a required probationary period of six months immediately following an original appointment or reinstatement or three months following a promotion. 80 Ill. Adm. Code ยง420.10 (1996) ("Certified Employee," "Probationary Period"). Plaintiffs argue section 50.150 of Title 80 cannot apply to them, even though they happen to be certified in their current positions, because they are not certified in the positions for which they are applying. However, Title 80, sections 50.100(a) and 50.140, does not require that the complainant would be certified had the personnel transaction at issue proceeded differently. We note also that the Employment Code provides the procedure concerning promotions under that code where certified ...

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