FIRST DIVISION

				                    August 19, 2002

No. 1-00-3220

MICHAEL NUDELL,				)		Appeal from the 

							)		Circuit Court of

	Plaintiff-Appellee,			)		Cook County

							)

		v.					)		No. 99 CH 17400

							)		

FOREST PRESERVE DISTRICT OF		)

COOK COUNTY,					)		The Honorable

							)		Ellis E. Reid,

	Defendant-Appellant.		)		Judge Presiding.

	JUSTICE COUSINS delivered the opinion of the court:

	After an evidentiary hearing, the Civil Service Commission

of Cook County (Commission) issued findings and a decision

sustaining sexual harassment and insubordination charges made by

a female Cook County Forest Preserve District (District) police

officer, Cynthia Spina, against police officer Michael Nudell. 

The Commission ordered that Nudell be terminated as a police

officer.  On March 25, 1998, the Commission served its decision

by mailing a copy of it to Nudell's attorney.  Nudell's attorney

received the decision on April 6, 1998.  Nudell filed a complaint

for administrative review on May 5, 1998.  The District moved to

dismiss the action as untimely.  The circuit court denied the

District's motion to dismiss.  Upon administrative review, the

circuit court held that the charges against Nudell were "vague

and overbroad while others [were] completely without support in

the record."  However, the circuit court held that the charge of

insubordination was supported by the record.  The circuit court

remanded the case for further proceedings. 

	On remand, following another hearing, the Commission issued its findings and decided that the sexual harassment and

insubordination charges against Nudell had been sustained and

warranted his termination.  Nudell sought administrative review. 

The Commission's holding was reversed by the circuit court.  

	The Commission now presents the following issues upon

appeal:  (1) whether Nudell's initial complaint for

administrative review was timely and properly before the circuit

court; (2) whether the circuit court abused its discretion by

deciding the case based on a due process argument that Nudell had

not made before the Commission or the circuit court, and thus had

waived; (3) whether the charges against Nudell violated due

process; (4) whether there is evidence in the record that

supports the Commission's findings against Nudell; and (5)

whether the Commission's decision to discharge Nudell for

insubordination and sexual harassment was arbitrary,

unreasonable, or unrelated to the requirements of the service.

BACKGROUND

	Michael Nudell began working as a police officer for the

District in October 1987.  A female police officer alleged that,

beginning in 1995, Nudell engaged in ongoing sexual harassment. 

The District conducted an internal investigation and pre-

disciplinary hearing.  On June 12, 1997, Nudell was suspended for

29 days, pending a hearing before the Commission regarding charges of ongoing sexual harassment of a fellow officer and

insubordination to her authority.  On June 20, 1997, district

general superintendent Joseph Nevius provided a written request

that the Commission remove Nudell from service.

	On January 27, 1998, the Commission conducted a hearing on

the charges against Nudell.  On March 3, 1998, the Commission

decided to terminate Nudell's employment.  On March 25, 1998, the

Commission served its decision by mailing a copy of it to

Nudell's attorney at the office the District had on file for him

(Gary L. Bailey, Staff Attorney, Illinois Fraternal Order of

Police, 6345 W. Joliet Road, Countryside, Illinois 60525). 

Nudell's attorney received the decision on April 6, 1998.  In a

letter dated April 27, 1998, Nudell's attorney informed the

Commission that Nudell would appeal the Commission's decision and

that the correspondence was intended as a request to prepare his

civil service hearing record for appeal.  On May 5, 1998, Nudell

filed a complaint for administrative review.

	On June 9, 1998, the District filed a motion to dismiss

Nudell's motion for administrative review under sections 2-615

and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619

(West 1998)), asserting that the Counties Code (55 ILCS 5/3-14001

et seq. (West 1998)) did not adopt the provisions of the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 1998)).  The District further asserted that if the claim was properly brought under administrative review, Nudell failed to file his

complaint within 35 days from the date that a copy of the

decision sought to be reviewed was served upon him.  On July 23,

1998, the circuit court dismissed the District's motion to

dismiss.

	On March 5, 1999, upon administrative review, the circuit

court reversed and remanded the case back to the Commission for

further proceedings.  In its written order, the circuit court

noted that the Commission, using the Manual of Rules and

Regulations of the Department of Law Enforcement (Manual of

Rules), charged Nudell with several violations of the rules.  The

court reasoned that some of the charges were "vague and overbroad

while others are completely without support in the record."  The

court held that absent a published policy on sexual harassment,

"supporting the decision below becomes problematic."  Relative to

the single charge of insubordination, the court noted that the

Manual of Rules clearly defined what constituted insubordination

and the record supported the Commission's finding that Nudell did

commit the act.  However, the court stated that it "would need

more information to uphold a decision to discharge Nudell on the

basis of the single incident of insubordination chronicled in

this record."  

	Nudell filed a complaint in the United States District Court

for the Northern District of Illinois, Eastern Division (Nudell v. Nevius, No. 98-C-3719 (N.D. Ill. April 5, 1999)), based on the circuit court's focus on due process and equal protection issues. 

The federal case was stayed pending the resolution of the state

court proceedings.

	On May 25, 1999, the Commission conducted a hearing pursuant

to the circuit court's March 1999 remand.  Several officers

testified, including the female officer that was allegedly

subjected to the sexual harassment, Nudell's supervisor, and

Nudell, himself.		 

	In its November 5, 1999, written order, the Commission held

that Nudell "clearly violated departmental rules relating to lack

of courtesy, wilful maltreatment of a person and maintaining a

professional demeanor, as well as other rules cited by [the

District]."  The Commission found that the District maintained a

specific sexual harassment policy and that Nudell's "outrageous

and recurring conduct" violated that policy.  The Commission held

that the sexual harassment and insubordination charges were

sustained and were sufficient to support the termination of

Nudell's employment.

	On December 2, 1999, Nudell filed a complaint for

administrative review of the Commission's November 1999 decision,

asserting that the decision was erroneous, contrary to the prior

court ruling, and contrary to the manifest weight of the evidence

introduced at the Commission hearing.

	On April 19, 2000, Nudell filed a motion for judgment

seeking reversal of the Commission's findings and decision.  The

motion asserted that the Commission based its decision on factors

outside the scope of the remand, the finding of insubordination

was against the manifest weight of the evidence, Nudell was never

informed of the rules against sexual harassment, and Nudell did

not commit sexual harassment.

	In July 19, 2000, the District filed a motion in opposition

to Nudell's request for administrative review.  That motion

asserted that Nudell's insubordination warranted discharge, the

Commission's decision to consider the District's rules regarding

sexual harassment was consistent with the remand order, the

Commission's decision in the initial hearing was fully supported

by the evidence, and the rules which Nudell violated were not

fatally vague or otherwise unenforceable.

	On August 19, 2000, the circuit reversed the decision of the

Commission, reasoning that "[d]ischarge for that sole offense of

insubordination, under the circumstances of this case is too

harsh a penalty."  Further, "[h]ad the District intended to

charge Nudell with sexual harassment, they should have done so. 

Instead, as this Court ruled in the previous case, the charges

brought against Nudell are vague and not directed to specific

conduct in a way that would have provided him with meaningful due

process." 

ANALYSIS

	I

	The District's preliminary assertion is that Nudell's

initial complaint for administrative review did not vest the

circuit court with subject matter jurisdiction because it was

filed more than 35 days after service of the Commission's

decision.  Nudell responds that the Commission's decision was

never served on Nudell, was mailed to an incorrect address for

his attorney, and was not received until April 6, 1998.  

	Section 3-103 of the Administrative Review Law (735 ILCS

5/3-103 (West 1998)) provides:

	   "Every action to review a final administrative decision

shall be commenced by the filing of a complaint and the

issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision ***."  (Emphasis added.) 735 ILCS 5/3-103 (West 1998).	

A decision is considered served when it is deposited in the

United States mail.  Lutheran General Health Care System v. Department of Revenue, 231 Ill. App. 3d 652, 659, 595 N.E.2d 1214 (1992), citing Cox v. Board of Fire & Police Commissioners, 96 Ill. 2d 399, 403, 451 N.E.2d 842 (1983).  Moreover, Supreme Court

Rule 11(a) (145 Ill. 2d R. 11(a)) provides that "[i]f a party is

represented by an attorney of record, service shall be made upon the attorney."  Therefore, service of the decision on Nudell's

attorney, rather than Nudell, was sufficient.

	When ruling on a motion to dismiss, the trial court must

interpret all pleadings and supporting documents in the light

most favorable to nonmoving party.  Carver v. Nall, 186 Ill. 2d 554, 557, 714 N.E.2d 486 (1999).  The court should grant the

motion only if the plaintiff can prove no set of facts that would

support the cause of action.  Carver, 186 Ill. 2d at 557.  On appeal, review of a decision on a motion to dismiss is de novo.  In re Chicago Flood Litigation, 176 Ill. 2d 179, 189, 680 N.E.2d 265 (1997).  	  

	The Commission in the instant case made its initial decision

to terminate Nudell on March 3, 1998.  The record includes an

affidavit from Patricia Marcy, administrator for the Commission,

which affirms that she deposited a copy of the Commission's

decision addressed to Nudell's attorney's office on March 25,

1998, in the United States certified mail, with return receipt

requested.  Also, attached to the affidavit was a copy of the

return receipt reflecting Nudell's attorney received the document

on April 6, 1998.  Nudell filed his complaint for administrative

review on May 5, 1998.   

	We hold that the 35-day period provided in section 3-103 of

the Administrative Review Law (735 ILCS 5/3-103 (West 1998))

commenced when the decision was deposited in the United States mail.  See Cox, 96 Ill. 2d at 402-03.  Thus, Nudell's May 5, 1998, motion for administrative review was not timely.  In order

for Nudell's motion to have been timely, the Administrative

Review Law required that it be filed on April 29, 1998, or

sooner, as April 29, 1998, was the thirty-fifth day following the

March 25, 1998, mailing.  

	Accordingly, the circuit court in the instant case erred in

denying the District's motion to dismiss the initial complaint

for administrative review, as the court lacked jurisdiction.  For

the foregoing reasons, the circuit court's order is vacated and

the orders of the Commission discharging Nudell are reinstated.

	Based upon our holding to vacate the circuit court's order

due to lack of jurisdiction, we do not reach the other issues

presented on appeal.

	Order vacated.

	COHEN, pP.  J., AND and TULLY, J., concur.J