The opinion of the court was delivered by: Justice Hartman
Appeal from the Circuit Court of Cook County. Honorable Ronald C. Riley, Judge Presiding.
Plaintiff, Michael Moller, filed an administrative review complaint alleging defendants, Civil Service Commission of the City of Blue Island (Commission) and Police Chief Joseph Kosman, violated section 10-1-13 (65 ILCS 5/10-1-13 (West 2000) (section 10-1-13)) of the Illinois Municipal Code (65 ILCS 5/1-1-1 et seq. (West 2000) (Code)) and Article IX of the Commission's Rules and Regulations (Article IX) by not promoting him to the rank of corporal. *fn1 The circuit court of Cook County affirmed the Commission's and Chief Kosman's decisions not to promote plaintiff. Thereafter, plaintiff moved to reconsider, which the court denied. Plaintiff appeals.
The issues presented in this appeal include whether: (1) plaintiff's right to promotion constituted a protected property interest; and (2) the circuit court's affirmance of the Commission's and Chief Kosman's decisions not to promote plaintiff was legally erroneous.
On January 14, 1997, the Commission posted a final eligibility list naming ten officers for promotion to the rank of police corporal. *fn2 The Commission then submitted Cornell, plaintiff and Podbielniak as promotion candidates to Chief Kosman. On or about January 20, 1997, Chief Kosman promoted the highest rated candidate, Cornell, to the rank of corporal.
On August 12, 1998, the Commission certified the next three names from the final eligibility list, those being plaintiff, Podbielniak and Morey, as candidates for promotion. Morey, the fourth highest rated candidate, was promoted to the rank of corporal on September 11, 1998, after which only one promotion remained.
In October 1998, the Commission selected three more names for promotion from the final eligibility list, including plaintiff's; however, Chief Kosman promoted Podbielniak, the third highest rated candidate, to the rank of corporal.
Plaintiff filed a two-count administrative review complaint on December 1, 1998, alleging the Commission and Chief Kosman violated section 10-1-13 of the Code *fn3 and Article IX *fn4 because they bypassed him for promotion twice as the highest rated candidate and thrice as the second highest rated candidate. Alternatively, plaintiff argued that the Commission should have selected only plaintiff as the candidate for promotion to the rank of corporal or should have directed Chief Kosman to promote plaintiff to ensure compliance with section 10-1-13 and Article IX. Plaintiff, in Count II of his complaint, sought a declaratory judgment, temporary restraining order and other injunctive relief.
The instant matter was briefed fully and argued before the circuit court on October 6, 1999. During the hearing, the parties agreed that the final eligibility list, dated January 14, 1997, was the "original roster," and that plaintiff was rated second on that list. The court affirmed the Commission's and Chief Kosman's decisions not to promote plaintiff, agreeing with defendants' contention that plaintiff remained the second highest rated candidate on the original register and was not passed over as the person having the second highest rating on that register more than twice. Plaintiff then moved to reconsider, which the court denied. Plaintiff filed a timely notice of appeal.
Judicial review of an administrative agency action extends to all questions of law and fact presented in the record and further provides that the agency's findings and conclusions on questions of fact shall be held prima facie true and correct. City of Freeport v. Illinois State Labor Relations Board, 135 Ill. 2d 499, 507, 554 N.E.2d 155 (1990) (Freeport). A reviewing court may reverse the agency's finding of fact only if it was against the manifest weight of the evidence. Freeport, 135 Ill. 2d at 507. Where a legal question is involved, such as the proper interpretation of a statute, the agency's finding is not binding on the reviewing court. Freeport, 135 Ill. 2d at 507; Stec v. Oak Park Police Pension Board, 204 Ill. App. 3d 556, 561-62, 561 N.E.2d 1234 (1990). Generally, courts will accord deference to an agency's statutory interpretation; however, the interpretation will be rejected when erroneous. City of Decatur v. Illinois State Labor Relations Board, 122 Ill. 2d 353, 361, 522 N.E.2d 1219 (1988).
Plaintiff initially asserts that section 10-1-13 and Article IX created a protected property right which required the Commission to submit only plaintiff's name for promotion to the rank of corporal or, alternatively, mandated Chief Kosman to select him for promotion.
To determine the existence of a property interest, courts look to "'existing rules or understandings that stem from an independent source such as state law.'" Nowak v. City of Calumet City, 648 F. Supp. 1557, 1559 (N.D. Ill. 1986) (Nowak), quoting Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 84 L. Ed. 2d 494, 503, 105 S. Ct. 1487, 1491 (1985). A person claiming the property interest must show more than a unilateral expectation of that interest amounting to a "'legitimate claim of entitlement.'" Nowak, 648 F. Supp. at 1560, quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709 (1972). The legitimate expectations of the property interest holder, however, may be created by state statute or local ordinances (Nowak, 648 F. Supp. at 1560), or may arise from less formal sources such as rules or "mutually explicit understandings between the parties." Perry v. Sindermann, 408 U.S. 593, 602, 33 L. Ed. 2d 570, 580, 92 S. Ct. 2694, 2699 (1972); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 983 (7th Cir. 1986).
The Seventh Circuit in United States v. City of Chicago, 869 F.2d 1033, 1036 (7th Cir. 1989) (Chicago), found that Illinois law does not create an entitlement to promotion because section 10-1-13 gives the promoting authorities unfettered discretion to choose from among a number of the highest rated applicants for each available promotion, depending on the population size of the municipality. See also Bigby v. City of Chicago, 766 F.2d 1053, 1056-57 (7th Cir. 1985) (holding that there is no constitutional right, unrelated to racial or other discrimination, to rational test for promotion to a higher rung in civil service of state or municipality); McCoy v. Board of Fire and Police Commissioners, 79 Ill. App. 3d 742, 744, 398 N.E.2d 1020 (1979) (finding that the promotion of a patrolman to sergeant is one of ...