the first case on our docket today january one thousand and two thousand and eleven is agenda number ten genius versus the county of cook at all counsel for the  honor why he decision of the employee appeals board to exercise jurisdiction in this case was reasonable and entitled to judicial deference why the decision to sustain three of the charges against mr genius was not against the manifest weight of you have advanced and was in fact amply supported by the evidence in the record why did decision to discharge while harsh was not arbitrary or capricious and reflect the needs of the forest reserve district police department and then how contrary to plaintiff's argument he was accorded due process and that further he did not diligently act to protect any of his alleged claimed rights the first issue before the court is whether it be granted jurisdiction by the cook  commissioners was clearly expressed and clearly expressed their intent that the employee appeals board would have jurisdiction to hear and decide this case and if it granted jurisdiction was ambiguous was the board's interpretation employ appeals boards interpretation of its jurisdiction i was interpretation of the ordinance that it had jurisdiction to act that interpretation reasonable and entitle to judicial rather deference when a court review knows the interpretation of an agency or board such as the appeals board they construe as the statute that it ministers the first step the court takes is to look at the language of the statute or ordinance and determine if there's been a clear expression of intent with respect to the matter an issue if after examining the ordinance it's determined that the board or the legislative body clearly expressed inten that's the end of the inquiry and nothing further is done by the court however if there is any ambiguity in the expression of intent the  next question was the agency's interpretation of that ambiguity reasonable and if it is reasonable and permissible then there should be judicial deference accorded and with respect to the decision itself or the agency's interpretation to her before you're relying upon the general provision to invoke your of the general provisions of the of the ordinance yes  here with respect to his forty four fifty b i'm relying on the expression that nothing in the article would deprive the the put employ appeals board of jurisdiction to hear and decide the  created when the lawyer for the board said the board does not have jurisdiction because of the confusion created the department head mr navy has then processed charges through could hear in this particular case under the jurisdictional grant that was given to it and what happened in the appellate court below was instead of focusing on whether there was a clear grant of jurisdiction by the county board or if there was an ambiguity was the board the employee appeals board resolution of ambiguity reasonable you call court focused on what i'll call a procedural limitation to the invocation of the appeals board's jurisdiction and i never conducted the analysis first to determine whether the board itself the employee appeals board was granted jurisdiction  board or if that grant was him big us in some way was the board's resolution was the board's interpretation of the grant of jurisdiction reasonable it may not it doesn't have to be the best interpretation or the one that the court might necessarily adopt but the courts should not impose its own construction without at least going through the analysis and i believe that's what this court has told us in the only consolidated case and that was the framework that was followed that i should say of the analytical framework that was followed by before us the second district states that the appellate court the reason that this is nothing in that portion of the ordinance which creates requirements for proceeding before the employees board shell to the employee language grant this board jurisdiction but if they did ask the question your honor and they didn't resolve it because they determine if there was no ambiguity then the next question would have been was the board's interpretation  had jurisdiction reasonable that's the framework that this court has told us that we should follow and that the court should follow in reviewing a decision by the agency as just make this it no you are the effect that the department had did not say to your individual your discharge that doesn't eliminate the jurisdiction because i believe the board ultimately makes the decision on the employee appeals court ultimately makes the decision on whether to discharge or not whether to sustain the charges or not the fact that procedurally it may not have come to them in a perfect way doesn't change the grant of jurisdiction and i believe that's what the county board was trying to say when they said nothing in this article will deprive the board of its of it was based upon what what was rather compelling and convincing evidence of misconduct i believe though that if this court were to affirm and send it back and we had a situation where all of the parties were before the agency this was the type of case that this agency was created to here there was no other agency or board that would hear this kind of case in it board reasonably acted and reasonably interpreted the ordinance itself as a grant of jurisdiction and if there was a limitation created by the procedure th occurred as long as the the the when the board i don't think it ignored procedure here i don't think it did at all but it certainly that whatever procedure was not strictly adhered to then had no effect on the impartiality of the proceedings it had no negative effect on the on the plaintiff in this case and there was no prejudice to the plaintiff because there's been no argument that the hearing itself was conducted in anything other than a fair and impartial manner i think the closest thing i can and relate to that is the shingle case which we've cited in our brief where the appellate court indicated that if  a commission itself doesn't necessarily follow all of its procedures that's not reversible error but then that's a procedural issue and i think here the first district what they did was they took the procedural limitation and used it construed it in there in their own way without going through the analysis that this court has told it should do and without questioning if there was an ambiguity was there a reasonable and puts on its case in support of its charges it didn't require the employee to appeal but i believe even if there was an appeal it would be treated quite like an appeal or  arbitration in an employee setting where the employer still has the obligation to go forward and prove the basis for a suspension or discharge how do we know counsel that the board actually rel i think your honor two ways one but actually asserting their authority to act by actually taking the case and acting on it that's one way of the second way i believe is as i said there's a footnote in their very first page of their decision where they acknowledge that the civil service commission has been abolished and that the matters are being transferred for disposition to them and i think it's implicit in that remark that they determined they had jurisdiction to hear this particular case so in cases like this it's not simple then that the board the state will believe it had years to standard transfer ordinance about a general provision what do we do with the rule of statutory construction that talks about specific versus general well and the fact that the code contains specific provisions contemplated in the situation that's presented here fifty two says nothing shall deprive the board of jurisdiction and in terms of other specific provisions for jurisdiction i believe they  fail to act with impartiality or if the board ignored claimed rights and resulted in a deprivation of someone's constitutional rights that that's not permissible at all but i think with respect to certain procedures that the failure to follow certain procedures doesn't divest the board of its jurisdiction because it has the parties in front of them it's the type of case it's been created to to hear and decide and it has the authority for the ordinance to do that and so in that at least with respect to a technical matter like this forty four fifty b two that last sentence i believe eliminates the potential eliminates creates a jurisdictional basis for the board to act even if a procedure may not have been strictly followed and  court looked at the procedure looked at the limitation and said no you have no jurisdiction whatsoever and i believe that was contrary to what this court has instructed as i said earlier and also in conflict with the second  authority to hear what what is brought before it if a board granted a grant if it has procedures for presentation of a case by the employer presentation of the case by the employee and rules of evidence those must be followed around i'm not saying that they can just ignore that but something such as this where instead of saying ok this was a recommendation from the department head county and in fairness to the parties into the courts that it would be appropriate for this this body to determine the merits and with respect to the merits just briefly i would indicate that in our briefs and in the decision of the employer appeals board the factual basis for the support of the charges against mr green genius if it is compelling particularly with respect to the use of the fake authorization over a period of years to to further his own personal interests the the mr genius admitted using it admittedly involving people in his deception the o'hare in company in danville telling him to destroy this document event if it's destroying evidence he's a policeman telling them tell me you got it from the district if anyone asks that's in his his note to mrs oakland i only charge of  improper sexual conduct the board had to determine the credibility of mr wilson and mr genius the board determined that mr wilson was credible and that this conduct was not trivial and that he misused and good morning your honor is my name is erika thomas and i'm here today representing sergeant jack genius made police the court counsel the rights and protection to which sergeant genius where was entitled were repeatedly violated by the cook county forest preserve just direct in the cook county employee appeals board procedural due process and administrative proceeding involving the discharge of a public employee requires that the employee be given notice of the charges against him an explanation of the employer's have a defense and an opportunity to be heard the loudermilk a stated that although do the due process clause does not require a specific time frame in which to provide a hearing it requires a hearing in a meaningful time sergeant genius injured arm almost five years on paid suspension before he was given notice of charges against him or the opportunity to be heard during this five year limbo cook county adopted a human resources ordinance that abolish sergeant genius's civil service rights and made the issue of administrative jurisdiction extremely complicated such that when sergeant genius was finally given an opportunity to respond it was unclear under what procedure the action would be proceeding however it can die and should not be forgotten that the jurisdictional issues in this case were complicated only by the district's failure to act in a timely manner the first district appellate court's holding that the employee appeals for a black jurisdiction there is a particular word in there that's very key in the court cannot forget that word is the disciplinary action and there was no disciplinary action initiated by the forest preserve district in this case under the employee appeals board or excuse me the human resources ordinance the action is that the department had take some some type of action himself either just charges suspends whatever he plans on doing it is the employee then who can appeal to the board now essentially there's a two level process so there is the the proceeding that the employer allows the district in this case which was a suspension which which should have been written charges an opportunity for sergeant genius to respond and ultimately a disciplinary decision that he responded anyway  suspension sergeant genius did not have any mechanism to respond or to appeal his his charges keep in mind the first four years of this action we acknowledge were covered by the civil service rules and under those civil service rules it's very specific that written charges must be filed that is what starts the whole ball rolling there were no written charges for sergeant gene is to appeal or to have a hearing on or anything that would have been enacted to his rights sergeant g it does however did not just so by he he sent a letter he got a notice of his suspension and keep in mind the suspension was based on his  on the fact that criminal charges have been filed he immediately sent a letter to the chief of police saying i demand my due process rights let me know when there's going to be a civil service hearing let me know what's going on and not only did you send it to the chief of police he copied that letter to the head of the civil service commission now of course the commission had no jurisdiction because again the district had not filed any charges at that point so sergeant genius his hands were tied there was nothing that he could do under any of the due process rights that were available to him until the district  acted as i indicated there's no question of the during the first four years of sergeant geniuses suspension he fell under the jurisdiction of the cook county civil service commission although sergeant genius does in fact take issue with the district's authority to suspend him for over thirty days without written charges at any time during that four year period the district could have filed written charges against sergeant genius as provided by sections one into a rule nine of the commission rules however rather than follow the clear percy jurors provided for in the commission rules the district chose to take a wait and see approach sergeant genius never requested that the district lay filing charges against him until he could resolve the criminal case they caused a suspension although the commission rules did in fact allow him to do so if that had been the case it was the district's own decision to delay initiating disciplinary proceedings and it was done in its own peril it's still a cause of the confusion in this matter at no time from the date of sergeant genius's suspension in june one thousand nine hundred six until the human resources ordinance was passed in april two thousand did the district comply with the due process for seizures outlined in the commission rules or initiate proceedings under these rules even though they do the district still a sergeant geniuses case outside the jurisdiction of the civil service commission both sergeant genius and the employee of hill's ordering crackly advice for the board's attorney robert furniss that the case should proceed under the civil service rules there was no legal basis for this direction other than attorney from this was a letter to sergeant genius the only statement of jurisdictional import by the board is in a footnote to its written decision was previously referred to by counsel that stated the civil service commission has been abolished by county ordinance all matters pending before the civil service commission and were transferred in assigned to this board for decision the board was citing almost verbatim to cook county municipal code section forty four dash forty eight c although the board's jurisdictional recitation would have been accurate had the charges against sergeant genius been pending when the ordinance was enacted in april two thousand the fact remains that there were no charges pending against sergeant genius at that time with no civil service charges pending when the ordinance was enacted the board could not properly exercised jurisdiction over civil service proceedings against sergeant genius under this exception although not referenced by the board there was still another way for the board to obtain jurisdiction over civil over civil service for sitting against sergeant genius after the human resources ordinance was enacted the ordinance provided for a sixty day grace period to initiate the plenary actions under the civil service rules where the charges on which the action was based took place either to the effective date of the ordinance this grace period was clearly applicable to sergeant genius's situation however the gist or did not make use of this i be either it was not until may two thousand and one that the district chose to take any action against sergeant genius well after this grace period had expired accordingly there was no legal way for the board to exercise jurisdiction over civil service proceedings against sergeant genius since the employee appeals court did not have jurisdiction over any civil service for seedings account sergeant genius the question next turns to whether the employee appeals court had jurisdiction over disciplinary proceedings against sergeant genius under the human resources ordinance arguably if you take the any reasonable delay in the improper suspension out of the equation have the district properly complied with the disciplinary procedures provided in the cook county municipal code he employ appeals court could board could have exercised jurisdiction over sergeant genius's case but the fact remains that the district did not properly comply with those procedures and the district's error deprive the employee appeals court of jurisdiction the district admits that sergeant that superintendent nevius never it or failed to issue a disciplinary decision to sergeant genius as required by section forty four dash fifty be one of the code they had met this in their brief without such a decision sergeant genius could not file an appeal with the board and the board cannot properly invoke its jurisdiction over this matter this is a mission in and of itself elevates the first district appellate courts rule ruling though the final sentence in section forty four fifty two of the cook county municipal code that was not cited worry for two by the board in any of sergeant geniuses proceedings and its written decision or in any way shape or form granted the board necessary jurisdiction over sergeant genius's just charge hearing the absence of any reference to this sentence by the board indicates that the board did not consider the sentence or this section i agree with the court that there is either jurisdiction or there is not however counsel made a rather substantial argument about the board's interpretation of this particular sentence there was no interpretation they never referred to it so that it better is why  even had the board considered the sentence there was no disciplinary action for the board to exercise jurisdiction over because again the district had failed to to properly take disciplinary action against sergeant genius under the procedures provided for in the human resources ordinance it's important for the court to remember that agencies can only act under the specific authority provided by codes instantiates and in this case although there was opportunity and there was a way to exercise jurisdiction in no way to shape or form was it ever properly done and in no way shape or form did the employee appeals or properly exercised jurisdiction here now the district argues that sergeant genius was not prejudiced by the board's improper exercise of jurisdiction and therefore the proceedings should stand and be upheld by this court with the district fails to appreciate is that sergeant genius was in fact significantly prejudiced by going through the entire administrative leg of these proceedings under a misapprehension of what rules were being applied initially fundamental fair fairness requires that sergeant genius have the right to be informed under what authority the board was conducting his hearing before it commenced now after the board rendered its decision although sergeant geniuses latches and due process arguments to the board were founded on the civil service commission rules because that is what the board informed him that was operating under accordingly each and every ruling that the board made on these very important issues in sergeant genius this case was based on an incorrect review of the applicable rules policies and codes so you can genius never raised any due process arguments about the timeliness or progress of the hearing before the board as provided by section forty four fifty b of the code although there were certainly arguments to be made because he was told by the board that the human resources her ordinance did not apply to his case letter when he was initially suspended but the suspension was based on earlier was due to the fact of the criminal proceedings pending for million county that is cracked and then there was a second trial because the immediately after he was suspended he sent the letter to the commission and to his chief every time he saw the chief his chief chief castor's in this case at the criminal proceedings down in vermillion county he approach the chief and sadek am i going to be reinstated when i'm done the chief said yes and the chief testified during the administrative hearing that sergeant genius was very adamant about having these proceedings go so judge sergeant genius authority did they wait your honor that is that's the issue here the civil service rules provided that written charges need to needed to be filed the district could have filed the charges and then waited or they could have filed the charges and for sergeant genius to ask the the proceedings be delayed but none of that happened sergeant genius he called the superintendent the superintendent refused to take his cause i mean he did everything he possibly could and every avenue he was told you know i just hold on wait as soon as this criminal case is over we'll put you back to work if you're vindicated so sergeant genius as as anyone would relied on his employers word that that is what would happen but that's not what happened what happened was that when the criminal charges were over he waited for a couple of months there was no action on the district's heart and then he sent a letter he took it upon himself to send a letter saying i want to go back to work you told me i could it's then only that and that the district filed these filed written charges against him and it was then only then that sergeant genius was faced with all kinds of a whole slew of different charges that the criminal case were not based on charges that had occurred at that point approximately almost eleven years previously he had no idea but had happened earlier that those charges might potentially be lodged against him had he had no idea he probably would have taken some action he probably would have gotten some witness statements he would have talked to people he might have gathered and some evidence but eleven years later it's a long time to be to be slapped in the face with something you didn't know was coming there may be some reluctance on this court's part to find that the board did not have jurisdiction over sergeant genius's case because of the possible in fact that such ruling might have been other cook county employee cases it's been almost eleven years since the human resources ordinance was enacted in cook county it is difficult to imagine that any other cases would have facts similar to sergeant genius's case were present similar jurisdictional issues or would still be pending at this point and he said finding by this well arguably not open the floodgates for litigation about the board's jurisdiction in other cases and if there are other cases they will be few and far between as previously noted both the district and sergeant genius fell under the purview of the rules of the civil service commission for the first four years of his suspension these rules were enacted to protect the rights of the employees so uncontroverted that sergeant genius was suspended without pay without written charges from june seventeenth one thousand nine hundred six until may twenty fifth of two thousand and one when he was finally served with notice there is no authority for the just trick to have suspended him without written charges during this period of time regardless if the court decides to look at the merits of the case even if the court upholds the decision the court needs to look at the fact that there was no authority for this unlawful suspension and because there was no one lawful or because there was no lawful authority for this suspension sergeant genius is in fact entitled to back pay during this period of unlawful suspension at least until charges were ultimately filed however rather than focusing or even knowledge in the clear lack of authority for the just exaction the board placed the blame on sergeant genius now the board stated in its decision that sergeant  letter demanding due process was insufficient and he should have filed a mandamus action there is again no authority to that requires an employee to try and have disciplinary charges filed against himself was it incumbent upon sergeant genius to spend his own money on legal fees to hire its lawyer to compel the district to do what it should have been doing in following the rules and those rules were discretionary although the board determined that the mandamus action could have been filed whether or not the district was going to file such action or such charges was totally discretionary so i mean davis action would have done sergeant genius no good the bottom line is the district has never argued and has never cited to any court that it had authority to do anything that it did here and that that is really the bottom line ultimately the employee appeals ford did not have jurisdiction to do anything it did sergeant genius was wrongfully deprived of his rights of his due process and of anything else that was that he was entitled to as an employee and here we are almost fifteen years later and we're still discussing the horrible deprivation of rights that sergeant genius has has suffered here issue raised in the appellate court decision which is here to review but with respect to that suspension there was before the suspension was put into place there was an indictment and prior to that indictment is early as march fifth of one thousand nine hundred six and these documents are in the record i believe it started nine thirteen mr genius was given investigative charge he was given an opportunity to cooperate he was given an opportunity to explain his version of events he refused he refused and he refused he was given an opportunity to come in with his counsel and tell the supervisors his version of events he refused after the indictment there was no need to conduct any other type of hearing the united states supreme court has told us in gilbert versus home are that when you have an indictment basically you have an independent third body that's reviewed the basis for the suspension or the ar grand jury came down with its indictment in made a finding of probable cause they found that there were that a limits the need for another hearing to determine if there is a valid basis for the suspension and the suspension was in effect for over four years and during the whole four year period of time or fortieth year period of time mr genius didn't do anything he wrote one letter he did nothing else and this court has told us in in re to kayla and also in the telling case which we cited in our briefs that if you do not timely proceed to protect what you consider to be your fundamental rights supervise each time he went to court on it i want to be read there's nothing in the record that says we'll put you back to work you're going to get what he had a conversation at one point with the chief of police chief castings and castings told him that ultimately the essence of the conversation was the ultimate decision was going to be the superintendent's he didn't say put him back to work that there's nothing in the record to that effect your honor no supervisor ever told mr jean if you're going back to work it wasn't there it wasn't in the record  finally during the period of time that mr genius was suspended he was employed he took he took employment i believe at one point in the record indicates that he took employment and a police agency for the village o more and he did nothing and that what the board said in this case is because you didn't actively attempt to have your suspension removed or to further any claim for back pay that they wanted they were going to decline it that decision was not against a man if this what if you haven't is nor was it clearly erroneous in this case because mr genius didn't do anything and he had the availability if he really felt he should be reinstated he could have asked for hearings or he could have filed a mandamus and the appellate case of jaworski versus jake ans that type of relief was awarded to the officer involved in that case the court