NO. 4-01-0582

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

TIMOTHY S. APPLEGATE,

		Plaintiff-Appellee and 	 		Cross-Appellant,

		v.

THE STATE OF ILLINOIS DEPARTMENT OF

TRANSPORTATION and KIRK BROWN,

Secretary of The Department of

Transportation,

		Defendants-Appellants and

		Cross-Appellees.	)

)

)

)

)

)

)

)

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)	Appeal from

Circuit Court of

Sangamon County

No. 00MR114

Honorable

Robert J. Eggers,

Judge Presiding.

_________________________________________________________________

MODIFIED UPON DENIAL OF REHEARING

		JUSTICE TURNER delivered the opinion of the court:

		In June 1999, plaintiff, Timothy S. Applegate, was

discharged from his employment at defendant, the State of Illi

nois Department of Transportation (Department).  Plaintiff filed a grievance, and in February 2000, defendant, Kirk Brown, Secre

tary of the Department (Secretary), issued a final administrative

decision finding that Applegate had been properly discharged.  In March 2000, Applegate filed a complaint for administrative  review.  In November 2000, Applegate filed a second-amended complaint for judicial review by common-law writ of certiorari and for declaratory judgment.  In June 2001, the circuit court held that Applegate's employment was wrongfully terminated and he

was entitled to be reinstated with back pay.  The circuit court

also denied Applegate's request for attorney fees under section

10-55(c) of the Illinois Administrative Procedure Act (Adminis

trative Procedure Act) (5 ILCS 100/10-55(c) (West 1998)).  Defendants appeal, and Applegate cross-appeals.  We affirm in part, reverse in part, and reinstate the Secretary's decision.

		I. BACKGROUND

          The record before us contains the following facts.  At

the time of his June 1999 discharge, Applegate was permanently

employed full-time with the Department as a certified engineering

technician IV.  As a technical employee, he was exempt from the

Illinois Department of Central Management Services' personnel

code.  The Department's personnel policies manual clearly states

at the front that it "does not constitute a contract of employ

ment."  However, section 4-11(D)(1) of the manual states that

"[a]n employee may be discharged only for just cause."

          In November 1991, Applegate was arrested outside of

working hours and charged with driving under the influence of

alcohol (DUI).  People v. Applegate, No. 91-TR-1962 (Cir. Ct.

Cumberland Co.).  Applegate also had his driver's license sum

marily suspended.  In March 1992, the charge was amended to

reckless driving, to which Applegate pleaded guilty.  Pursuant to

section 8-3(C)(3)(a) of the Department's personnel policies

manual, Applegate requested and received an unpaid general leave

of absence, effective April 1, 1992, not to exceed 90 days until

he obtained a license or permit.  On May 12, 1992, the circuit

court of Cumberland County rescinded Applegate's statutory

summary suspension after finding no reasonable grounds to believe

that he committed a DUI.  Applegate returned to work the follow ing day.

		In March 1999, Applegate was again arrested outside of working hours and charged with DUI.  People v. Applegate, No. 99-

DT-27 (Cir. Ct. Christian Co.).  After Applegate's license was

summarily suspended in May 1999, the Department suspended him

without pay and notified him of a pretermination hearing to

discuss the charge of a second suspension of his driver's license

while employed by the Department.  Applegate called during the

meeting but did not attend.  Following the meeting, the Depart

ment notified Applegate that his employment was being terminated

effective June 2, 1999, for cause, that cause being the violation

of section 8-3(C)(4) of the Department's personnel policies

manual, which states, "A second suspension or revocation of an

employee's driver's license while employed by the Department

shall be cause for discharge." 

		Following his termination in June 1999, Applegate filed

a grievance with the Department pursuant to the procedures in its

personnel policies manual.  Applegate's grievance was denied at

the local and intermediate levels.  Applegate next submitted his grievance to the Secretary for final determination.  Pursuant to

the grievance procedure, the Secretary appointed a three-member

panel and a review moderator to hear the grievance at the final

level.

		In May 1999, Applegate filed a motion in the circuit court of Christian County to rescind his statutory summary

suspension.  In August 1999, Applegate completed his statutory summary suspension.  In September 1999, Applegate was acquitted of DUI following a jury trial.  On January 5, 2000, the circuit court of Christian County rescinded Applegate's statutory summary

suspension on the State's motion.

		On January 11, 2000, the grievance panel convened, and

prior to the hearing, the review moderator requested Applegate

and his attorney turn off any tape recorders.  Applegate's

attorney intended to tape-record the hearing because no court

reporter was present.  Section 4-12(D)(3)(b) of the personnel

policies manual states, "There will be no record made of the

review other than that made or ordered by the moderator." 

Applegate was able to present evidence and argument at the

hearing.  The panel recommended that the discharge was proper but

suggested that the Department revise its manual "to clarify the

length of time between suspensions" and "take into consideration

the judicial process in its totality" prior to taking final

action.  In February 2000, the Secretary concurred with the

panel's finding that Applegate violated section 8-3(C)(4) of the manual and was appropriately discharged.

		In March 2000, Applegate filed a complaint for adminis

trative review in the circuit court of Sangamon County.  In May

2000, defendants filed a motion to dismiss for lack of subject-

matter jurisdiction because the Administrative Review Law (735

ILCS 5/3-101 through 3-113 (West 2000)) does not apply to the Department.  In July 2000, Applegate filed an amended complaint,

seeking judicial review of his termination by common-law writ of

certiorari.  In August 2000, defendants filed a motion to dis miss, contending that certiorari is improper and would implicate sovereign immunity.  In October 2000, Judge Thomas R. Appleton

allowed defendants' motion to dismiss, determining that certio rari was improper without a formal record to review or any standards against which to measure the Secretary's decision. 

Judge Appleton granted Applegate leave to file an amended com

plaint for declaratory judgment.

		In November 2000, Applegate filed a two-count second-

amended complaint, seeking declaratory judgment and judicial

review by writ of certiorari.  In January 2001, the case was reassigned to Judge Robert J. Eggers.  Defendants filed a motion

to dismiss.  In February 2001, Judge Eggers granted Applegate leave to file an amended complaint including a count for writ of

certiorari.  In April 2001, the circuit court held an evidentiary hearing, to which defendants objected and in which thaeyey refused

to participate.  William Harris, Applegate's former attorney,

described Applegate's Christian County DUI case and the grievance

proceedings before the hearing panel.  Applegate next testified

on his own behalf.  Finally, Jean Klauber, a labor license

specialist for the Department, testified as an adverse witness

that he served as review moderator in Applegate's case.  To

Klauber's knowledge, no report of proceedings or electronic

recording had ever been ordered by the moderator in a final panel

hearing for technical employees.

		In June 2001, the circuit court issued its final order,

determining that Applegate canould proceed by seeking a declaratory

judgment and a writ of certiorari.  The circuit court ruled that Applegate's termination was wrongful because he did not have the

requisite two summary suspensions after one was later rescinded. 

The circuit court held that Applegate was entitled to be rein

stated with back pay.  Finally, the circuit court denied Apple

gate's request for attorney fees because the action was not filed

under the Administrative Procedure Act.  This appeal and cross-

appeal followed.

	II. ANALYSIS

	A. Sovereign Immunity

		The State first argues that sovereign immunity applies because Applegate's claim is essentially for breach of contract

against the State.  The State contends that the circuit court

lacks subject-matter jurisdiction over Applegate's claim, which should have been brought in the Court of Claims instead.  We

disagree.

		First, Applegate sought declaratory relief to invali

date the Department's rule of not allowing a record of the final

level grievance proceedings.  Sovereign immunity does not bar a

circuit court action seeking declaratory judgment to invalidate an administrative rule and recover attorney fees under section

10-55(c) of the Administrative Procedure Act (5 ILCS 100/10-55(c)

(West 1998)).  See Ackerman v. Department of Public Aid, 128 Ill. App. 3d 982, 984, 471 N.E.2d 931, 933 (1984).  Applegate also sought judicial review of his termination.  Sovereign immunity

does not bar a party from seeking judicial review of an agency's action by common-law writ of certiorari.  Moline Tool Co. v. Department of Revenue, 410 Ill. 35, 38, 101 N.E.2d 71, 73 (1951).

	B. Availability of Review by Certiorari

		The State next contends that the circuit court should not have reviewed the Secretary's decision under a common-law

writ of certiorari.  We disagree.

		A common-law writ of certiorari is a general method for obtaining circuit court review of administrative actions when the

act conferring power on an agency does not expressly adopt the

Administrative Review Law and provides for no other form of

review.  Alicea v. Snyder, 321 Ill. App. 3d 248, 253, 748 N.E.2d 285, 290 (2001).

		In this case, the circuit court properly reviewed the Secretary's decision pursuant to a writ of certiorari.  The Secretary exercised quasi-judicial power, which is reviewable by

certiorari, because he adjudicated facts and individual rights.  See American Federation of State, County & Municipal Employees v. Department of Central Management Services, 288 Ill. App. 3d 701, 711, 681 N.E.2d 998, 1005 (1997).  The circuit court could review

the correctness of the agency's decision pursuant to certiorari because the standards of review under a common-law writ of certiorari are now essentially the same as those under the Administrative Review Law.  See Hanrahan v. Williams, 174 Ill. 2d 268, 272, 673 N.E.2d 251, 253-54 (1996).  Meaningful objective

standards existed by which the circuit court could review the

Secretary's exercise of discretion because the personnel policies manual requires "just cause."  Therefore, the Secretary's deci

sion to terminate Applegate was not committed to his "complete

discretion."  See Hanrahan, 174 Ill. 2d at 276, 673 N.E.2d at 255.

		Finally, the circuit court did not err in conducting an

evidentiary hearing regarding the Cumberland County and Christian County dispositions of Applegate's summary suspensions and

whether Applegate was able to record the grievance hearing.  Nothing suggests that the circuit court relied on anything

outside of the administrative record in determining, as a matter

of law, that Applegate was wrongfully terminated.

	C. Cause for Discharge

		The State asserts that the circuit court erred in

failing to defer to the Secretary's interpretation of the Depart

ment's personnel policies manual.  We agree.

		Review of an administrative agency's decision regarding discharge for cause involves a two-step process.  Grames v. Illinois State Police, 254 Ill. App. 3d 191, 204, 625 N.E.2d 945, 956 (1993).  A reviewing court first must determine if the

agency's findings of fact are contrary to the manifest weight of

the evidence.  Grames, 254 Ill. App. 3d at 204, 625 N.E.2d at 956.  The court must then determine whether the agency's factual findings provide a sufficient basis for concluding "cause" for

discharge exists.  Grames, 254 Ill. App. 3d at 204-05, 625 N.E.2d at 956. 

		We give considerable deference to an agency's determi

nation of "cause" for discharge because the agency is in the best position to determine the effect of an employee's conduct on its

operations.  Merrifield v. Illinois State Police Merit Board, 294 Ill. App. 3d 520, 530, 691 N.E.2d 191, 199 (1997); see also

Ehlers v. Jackson County Sheriff's Merit Comm'n, 183 Ill. 2d 83, 89, 697 N.E.2d 717, 721 (1998) (a reviewing court shall respect

an agency's finding of cause for discharge).  A reviewing court will not decide whether a less stringent punishment is appropri

ate and will overturn the agency's decision as to cause only if

it is arbitrary and unreasonable or unrelated to the requirements

of service.  Merrifield, 294 Ill. App. 3d at 530, 691 N.E.2d at 199.

		"Cause" has been judicially defined as "'some substan

tial shortcoming which renders the employee's continuance in

office in some way detrimental to the discipline and efficiency

of the service and which the law and sound public opinion recog

nize as good cause for his no longer holding the position.'" 

Grames, 254 Ill. App. 3d at 205, 625 N.E.2d at 956, quoting Department of Mental Health & Developmental Disabilities v. Civil Service Comm'n, 85 Ill. 2d 547, 551, 426 N.E.2d 885, 887 (1981).

		In determining that a rescinded summary suspension could not provide grounds for termination, the circuit court

relied on People v. Focia, 287 Ill. App. 3d 767, 769, 679 N.E.2d 121, 123 (1997)(rescission of summary suspension undoes the

suspension if defendant obtains a hearing before it takes place),

and People v. Eidel, 319 Ill. App. 3d 496, 504, 745 N.E.2d 736, 744 (2001) ("rescission undoes the administrative summary suspen sion, at least prospectively").  However, the appellate court in Focia held that a rescission does not retroactively reinstate a driver's license.  Focia, 287 Ill. App. 3d at 769, 679 N.E.2d at 123.  The appellate court reversed the dismissal of a charge of driving while license suspended because the defendant's suspen

sion remained in effect until rescinded.  Focia, 287 Ill. App. 3d at 769, 679 N.E.2d at 123.  In contrast, vacatur restores the status quo ante, as though a judgment had never been entered.  Eidel, 319 Ill. App. 3d at 504, 745 N.E.2d at 744.

		We defer to the Secretary's determination of the effect

on the Department's operations of the two rescinded summary

suspensions that Applegate served.  Although Applegate contends that the 1999 summary suspension was his first, he partially

served a summary suspension in 1992 and opted to take an unpaid

leave of absence, missing six weeks of work.  Although the 1992

summary suspension was later rescinded, that rescission applied only prospectively under Focia.  Applegate's driver's license, therefore, was in fact suspended in 1992 until the suspension 

was rescinded.  When Applegate began serving a summary suspension

in May 1999, he had his second driver's license suspension while

employed by the Department.  Therefore, the Secretary's determi

nation that cause for Applegate's discharge existed is not

arbitrary and unreasonable or unrelated to the requirements of

his service.

	D. Administrative Procedures Act

		As a ground for affirming the circuit court's order and

reversing the Department's decision, Applegate cites the Depart ment's failure to follow section 10-35(b) of the Administrative

Procedures Act (5 ILCS 100/10-35(b) (West 1998)).  Applegate

argues a record of his grievance hearing was required because the

hearing was a "contested case" as defined in section 1-30 of the

Administrative Procedure Act (5 ILCS 100/1-30 (West 1998) ("an

adjudicatory proceeding *** in which the individual legal rights,

duties, or privileges of a party are required by law to be

determined by an agency only after an opportunity for a hear

ing")).  Applegate asserts the Department's personnel policies manual required a hearing and had the force and effect of law.  We disagree.

		The contested-case provisions of the Administrative Procedures Act did not apply because no opportunity for a hearing was required by law in this case.  Applegate was a technical

employee exempt from the Ppersonnel Ccode.  Only the Department's

personnel policies manual required a three-member panel to hear a grievance at the final level.  We recognize properly promulgated administrative regulations have the force and effect of law. 

Craftmasters, Inc. v. Department of Revenue, 269 Ill. App. 3d 934, 940-41, 647 N.E.2d 607, 611 (1995).  However, the Depart ment's personnel policies manual concerned only internal manage

ment and was not a binding rule or regulation adopted in compli

ance with the Administrative Procedures Act and codified in the

Illinois Administrative Code.  See Kaszynski v. Department of Public Aid, 274 Ill. App. 3d 38, 45, 653 N.E.2d 1330, 1335 (1995) (agency is not bound by statements in internal manual not adopted

in compliance with the Administrative Procedures Act); 5 ILCS 100/1-70 (West 1998) (defining "rule" for purposes of Administra tive Procedures Act to exclude agency statements concerning only the agency's internal management and not affecting private rights

or procedures available to persons or entities outside the

agency).  Therefore, the Administrative Procedures Act did not

require the Department to make a record of Applegate's grievance

hearing.

	E. Attorney Fees

		In his cross-appeal, Applegate asserts the circuit court erred in denying his request for attorney fees because he

invalidated an "administrative rule" in the Department's person

nel policies manual.  Applegate contends the Department's proce

dural rules are invalid because they do not allow for a record of

the grievance hearing.

 		Applegate is not entitled to attorney fees because he has not had an administrative rule invalidated by any court in

this case.  This court has rejected Applegate's Administrative

Procedures Act claim regarding the record of his grievance hear ing.  The circuit court did not rule in Applegate's favor in his

challenge to the Department's grievance hearing procedures. 

Therefore, the circuit court did not err in denying Applegate's request for attorney fees.

  		III. CONCLUSION

		Because the circuit court erred in concluding Applegate

was wrongfully terminated, we reverse the part of the circuit court's judgment entitling Applegate to be reinstated with back

pay and ruling his termination was wrongful, and we reinstate the Secretary's decision.  We affirm the circuit court's denial of Applegate's request for attorney fees.

		Affirmed in part and reversed in part; Secretary's

decision reinstated.

		COOK, J., concurs.

		MYERSCOUGH, P.J., specially concurs in part and dis sents in part.

		PRESIDING JUSTICE MYERSCOUGH, specially concurring in

part and dissenting in part:

		I respectfully concur in part and dissent in part.  I

agree that the circuit court correctly reviewed the Secretary’s

decision under a common-law writ of certiorari.  However, I disagree with the standard of review applied by the majority and

the result reached by the majority.  Here, the standard of review

is not the manifest weight of the evidence because there are no

issues of fact.  The standard for review of the certiorari action is de novo.  Callahan v. Department of State Police, 223 Ill. App. 3d 1081, 1085, 586 N.E.2d 381, 384  (1991).  Moreover, the

Secretary’s decisions on questions of law are not binding on this

court.  Village of Downers Grove v. Illinois State Labor Rela tions Board, 221 Ill. App. 3d 47, 53, 581 N.E.2d 824, 828 (1991),; see also, Richard’s Tire Company. v. Zehnder, 295 Ill. App. 3d 48, 56, 692 N.E.2d 360, 366 (1998).

		Applegate was clearly discharged because he received

two statutory summary suspensions.  The grievance review panel’s

recommendation, in which the Secretary concurred, stated:

			“Based on Order 3-1, Chapter 8-C, of

IDOT’s Personnel Policy Manual, we find that

the discharge was proper in accordance to the

above provisions.  However[,] we, the panel,

find the existing provisions of the aforemen

tioned Chapter 8 need to be revised to clar

ify the length of time between suspensions

and revocations of driver’s license and that before the Department takes final action,

[it] should take into consideration the judi

cial process in its totality.”  

		The panel and the Secretary clearly recognized the fact

that Applegate's discharge ignored the judicial process, in

direct contradiction of the Illinois Department of Transporta

tion’s personnel policies Mmanual.  That manual recognizes the 

Illinois Vehicle Code (625 ILCS 5/1/1-100 et seq.. (West 1998()) and the Secretary of State’s rules and regulations governing statu

tory summary suspensions.  The policy at issue here is in fact

entitled “Statutory Summary Driver’s License Suspension” and

permits first offenders a 90-day unpaid leave for the term of the

statutory summary suspension.  The policy also provides that a

second suspension results in discharge.  However, nowhere in the

manual is "first offense" or "statutory summary suspension"

defined.  Since the Secretary has recognized the Secretary of

State’s process set forth in the Illinois Vehicle Code, it is

bound by its definitions.  

		Applegate, at the time of his initial discharge, was

actually a first offender because his first suspension had been

rescinded:

			“For the purposes of interpreting Sec

tions 6-206.1 and 6-208.1 of this Code,

`first offender’ shall mean any person who

has not had a previous conviction or court[-]

assigned supervision for violating Section

11-501, or a similar provision of a local ordinance, or a conviction in any other state

for a violation of driving while under the

influence or a similar offense where the

cause of action is the same or substantially

similar to this Code or any person who has

not had a driver’s license suspension for

violating Section 11-501.1 within 5 years

prior to the date of the current offense,

except in cases where the driver submitted to

chemical testing***.”  625 ILCS 5/11-500

(West 2000).

See also People v. Eidel, 319 Ill. App. 3d 496, 504, 745 N.E.2d 736, 744 (2001), citing People v. Focia, 287 Ill. App. 3d 767, 769, 679 N.E.2d 121, 123 (1997) (the res-=cission of the summary

suspension undoes the administrative summary suspension, at least

prospectively).  Applegate was, therefore, also entitled to take

a 90-day unpaid leave and was not subject to discharge for cause

based on two suspensions.  To hold otherwise would invalidate the

underlying judicial proceeding that rescinded the statutory

summary driver’s license suspension and dismissed the DUI.  As a

matter of law, Applegate’s discharge was wrong.

		While this court recognizes the employer’s need for its

employees to possess a driver’s license, this court also recog

nizes the need for the Secretary to follow its own manual, the

laws of this state, and the rulings of our courts.  For these

reasons, I would affirm the circuit court and reverse the ruling

of the Secretary.