20 2 3 IL App ( 1st ) 21 1449

- U No. 1-21-1449
FIRST DIVISION July 24, 2023 NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

____________________________________________________________________________
JASON BURG ,

P laintiff -Appel lant ,

v. DAVID BROWN, SUPERINTENDENT OF POLICE OF THE CITY OF CHICAGO, EDDIE T. JOHNSON, FORMER SUPERINTENDENT OF POLICE OF THE CITY OF CHICAGO, and THE POLICE BOARD OF THE CITY OF CHICAGO , Defendant s-Appell ee s. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

No. 21 CH 00262

The Honorable Neil H. Cohen, Judge Presiding.

____________________________________________________________________________ JUSTICE PUCINSKI delivered the judgment of the court. Justice s Hyman and Coghlan concurred in the judgment.

ORDER
Held : We affirm the decision of the Police Board of the City of Chicago finding plaintiff

appellant guilty of violations of Chicago Police Department Rules and terminating his employment as a police officer . Plaintiff did not establish that the delay in the filing of charges violated his right to due process, and he did not identity prejudice from the delay to support his affirmative defense of laches

.1-21-1449

-2- ¶ 1 In thi s administrative review action , p laintiff -appellant Jason Burg appeals from the circuit court order affirming the decis ion of the Police Board of the City of Chicago (Board) finding him guilty of charges filed by the Superintendent of the Chicago Police Department (Superintendent) ) and terminating his employment as a police officer

. Burg contends that (1) the nearly nine- year gap between the underlying incident and the filing of charge s violated his right to due process of law and (2) the doctrine of laches otherwise warranted dismissal of the charges. We conclude that, notwithstandin g the delay, Burg ’s right to due process was not violated. Further, Burg did not identify prejudice resulting from the delay, as required to support his laches defense. Accordingly,

we affirm the decision of the Board and the judgment of the circuit court. ¶ 2 BACKGROUND ¶ 3 Burg was formerly employed as a Chicago police officer. This case stems from Burg’s response
to an incident in the early morning hours of June 26, 2010 , near the Pavilion Apartments complex in Chicago. O n t hat date , Luis Cordero and his girlfriend Heather Rzany were assaulted by Chris Gofron, an off -duty Chicago police officer

. 1 The incident was witnessed by Angel De La Rosa, a Pavilion Apartments security officer . Significant to this appeal, De La Rosa passed away before the charges at issue were filed against Burg. ¶ 4 Burg was the first officer to respond to a disturbance call at the scene of the assault , although his actions a fter he arrived at the scene are disputed. Burg maintained tha t the assailant was gone by the time he arrived at the scene

. However, Cordero and Rzany claimed (and the Board ultimately found) that Burg spoke with Gofron and allowed him to leave the scene without arresting him. ¶ 5 B urg’s Reported Version of Events

1 Cordero and Rzany later married. Rzany is sometimes referred to as “Heather Cordero” in the record.1-21-1449

-3- ¶ 6 Hours after the incident, Burg filed a Chicago Police Department (CPD) incident report, in which he stated that the identity of the assailant was unknown. Bu rg r eport ed that when he arrived at the scene, he encountered Corde r o lying on the ground and Rzany screaming for help. The report reflected that Burg spoke with De La Ros a, who said he observed the altercation in which the offender “ st ruck [the] victims with [a] revol ver ty p e handgun. ” According to the report, De La Rosa said that the “ [o] ffen der proceeded to enter [De La Rosa’s] security vehicle a t which time offender stated he was police and needed assistance.” Burg’s report elsewhere reflected that Rzany told him that the offender “flashed a badge” and “stated he was police but did not specify what department.” De La Rosa re ported that the unknown offender “fled” the scene

. ¶ 7 R elated Civil Litigation and De La Rosa’s Deposition Testimony ¶ 8 The record reflects that Cordero and Rzany disputed Burg’s version of events, claiming that Burg allowed Gofron to leave the scene. In 2010, Cordero and Rzany commenced a federal lawsuit , Cordero et al. v. City of Chicago et al ., No. 10 CV 4193, in which the City of Chicago, Gofron, and Burg were defendants. ¶ 9 In April 2011, De La Rosa was deposed in th e federal lawsuit , during which he was questioned by

an attorney for Cordero and by an attorney representing the defendants

. De La Rosa recounted that he was working a shift as security for the Pavilion Apartments on the night in question. The incident occurred sometime after midnight, w hen De La Rosa was patrolling the complex in a Chevy Blazer that was labeled as a s ecurity vehicle. ¶ 10 De La Rosa was driving when Gofron waved him down, “jumped in the vehicle” and told him to drive. 2 De La Rosa observed that Gofron was holding a beer, smelled like alcohol, and had come from the direction of the “Cabana bar” in the apartment complex. De La Rosa then received a call

2 De La Rosa did not identify Gofron by name. However, there is no factual dispute that he was referring to Gofron

.1-21-1449

-4- from another security officer , Ron Kazcmarek, about a noise complaint from a nearby picnic area. De La Rosa drove to the picnic area, where he saw Cordero and Rzany at a pi cnic table. De La
Rosa told them the area was closed. Gofron ( who was still in De La Rosa’s vehicle) began screaming at Cordero and Rzany, and Cordero “started screaming back.” Gofron exited the ve hicle and engaged in a verbal alte rcation with Cordero, during which he displayed a badge and told Cordero that he was a “cop .” After Cordero responded that he “was a cop killer , ” Gofron drew a gun and then struck Cordero repeatedly with the bottom of the gun. De La Rosa radioed Kazcmarek and told him to c all the police. ¶ 11 Eventually, Gofron re

- entered De La Rosa’s security vehicle and told De La Rosa to “take him to his car.” De La Rosa testified t hat he drove slowly with Gofron, hoping police would arrive. When De La Rosa saw police , he stopped his vehicle , and both he and Gofron exited

. De La Rosa t estified
t hat he saw multiple police vehicles and “like five” officers, as well as Cordero and Rzany

. De La Rosa did not know the n ames of any of the responding police officers. ¶ 12 De La R osa recalled that a number of officers spoke with Cordero, while another officer spoke with Gofron

. De La Ros a did not hear what was said between them

. A short time later , De La Rosa

saw Gofron walking away. De La Rosa recalled that Rz an y told the police that “he’s walking away”, to which one of the officers responded with words to the effect of “ [h] e can’t get away”,
or “ [h] e won’t leave, or [h]e’ll be back.” De La Rosa was not sure which off icer made that
statement. De La Rosa testified that Gofron “just left” and “didn’t come back” after walking away from the scene. ¶ 13 The record reflects that the federal lawsuit was settled in 2012. ¶ 14 T he Investigation into Burg’s Conduct1-21-1449

-5- ¶ 15 The record reflects that in 2010, a complaint by Rzany and Cordero initiated an investigation by the Independent Police Review Authority (IPRA) regarding Burg’s response to the incident

. 3 IPRA interviewed Rzany and Cordero in 2010. IPRA interviewed Burg on May 6, 2011. In that interview, Burg stated that the offender was gone by the time Burg arrived at the scene. Elsewhere in the interview, Burg recalled that Cordero told him that “police beat him up ” and that Rzany sa id the offender had flashed a badge. Burg also recalled that De La Rosa told him that the offender had said “he was t he police.” ¶ 16 Burg was subsequently accused of giving a false statement to IPRA in the May 6, 2011 interview. In May 2012, Burg gave a statement to IPRA in which he “st[ood] by” his May 2011 statem ent and maintained that he never saw or spoke with Gofron at the scene

. ¶ 17 The record reflects (and the Superintendent does not dispute) that the investigation into Burg’s conduct substantially concluded in 2014. The record reflects that as of May 2014, IPRA had drafted a “Notification of Charges/Allegations” directed to Burg. 4 However, actual charges were not filed until early 2019. ¶ 18 T he Superintendent Charges Burg in 2019 ¶ 19 On January 3, 2019, the Superintendent charged Burg with violating a number of CPD Rules and Regulations. 5 The charges essentially alleged that : (1) Burg allowed Gofron to leave the scene; (2)

3 In 2017, t he IPRA was succeeded by a new entity, the Civilian Office of Police Accountability (COPA).

4 The record indicates that in 2015, IPRA completed “additional interviews in furtherance of the documentation of two witnesses [sic] statements regarding the in cident” but the agency determi ned that “the finding s and recommendation remain unchanged.”
5 Burg was charged with violating CPD Rule 2 (“Any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department”) , Rule 3 (“Any failure to promote the Department’s efforts to implement its policy or accomplish its goals”) , R ule 5 (“Failure to perform any duty”) , Rule 6 (“Disobedience of an order or directive, whether written or oral”) ,1-21-1449

-6- Burg’s incident report falsely indicated th at the offender was unknown; and (3) Bur g false ly state d in his May 2011 IPRA inter view that the offender was gone by the time he arrived on the scene. ¶ 20 A dministrative Proceedings ¶ 21 The record reflects that De La Rosa passed away in 2019. In January 2020, the Superintendent filed a motion before the hearing officer of the Board to admit De La R osa’s deposition testimon y in the Board proceedings. The motion was granted. ¶ 22 In February 2020, Burg fi led a motion to dismiss the charges against him. Among other arguments, Burg averred that the Superintendent’s delay in brin ging charges severely prejudic ed him , in that he no longer could cross

- examine De La Rosa as to whether Burg had contact with Gofron

. Burg also asserted that the failure to bring charges in a timely manner violated his due process rights.
He argued that the nearly nine

- year gap between the incident and the filing of charges in 2019 violated Chicago Police Department General Order G08 -01 , which called for “prompt” investigations into officer mis conduct. ¶ 23 Burg also argued that the doctrine of laches warrante d dismissal of the charges. He pointed out that there was no “meaningful investigation” after 2014 . Burg claimed he was severely prejudiced by the delayed filing of charges , as he could not locate additional witnesses or crime scene evidence would not be a ble to cross

- examine De La Rosa

. ¶ 24 In opposing the motion to dismiss, th e Superintende nt argued that case law d oes not support a due process claim based on a delay in filing charges against an officer, as opposed to a delay in adjudication . The Superintendent asserted: “The reason that due process is not implicated by a delay in investigation (as opposed to in adjudication) is because the officer is still working and

Rule 14 (“Making a false report, written or oral”) , and Rule 21 (“Failure to report promptly to the Department any information concerning any crime or other unlawful action.”).1-21-1449

-7- getting paid.” The Superintendent stated that Burg had not been impacted financially b y the filing of the charges in 2019, “because he has been inactive and on duty disability since 2014” and his receipt of disability benefits was “ unaffected by the fi ling of charges.” 6 ¶ 25 The Superintendent’s response elsewhere disputed Burg’s claim that an investigation was not “promptly” in itiated under General Order 08

- 01. The Superintendent claimed that preliminary investigative steps were taken “soon after the CR [Complaint Register] was opened.” The Superintendent ackno wledged that the inves tigation ha d been “closed and reop ened a couple of times ” “ to ensure that a tho rough invest igation was conducted.” The Superintendent also stated that “ [o] n information and belief, at some point, the same allegation s were being investigated under two different CR fil es .” In any event, the Superintendent argued that even a violation of General Order 08 -01 would not warrant dismissal of charges

. ¶ 26 With respect to Burg’s reliance on laches , the Superintendent ar gued that this doctrine requires a sh owing of prejudice, and that Burg failed to show that the delay limited his ability to gather evidence. Despite De La Rosa’s death, the Superintendent argued that there was no prejudice to Burg, since De La Rosa’s account of events was “well -documented, ” including in his deposition testimony. The Superintendent otherwise argued that were not compelling or “extraordinary circumstances” to justify laches , given the seriousness of Burg’s conduct. ¶ 27 The Police Board reserved ruling on Burg’s motion to dismiss, pending evidentiary hearing. The evidentiary hearing occurred on August 13 and 14, 2020, and included testimony from Rzany and Burg.

6 Burg subsequently testified at the evidentiary hearing that he had not been on active duty since being injured in an accident on January 1, 2014.1-21-1449

-8- ¶ 28 Rzany described how Gofron assaulted her and Cordero after getting out of a vehicle driv en by a
De La Rosa . After the assault, Gofron got back into the security vehicle. Around the time Burg arrived, she saw the vehicle return and Gofron got out . She identified Gofron to Burg as the attacker . According to Rzany, Gofron showed Burg a badge and told him that he was a police officer. Burg then told Gofron to “[g]et out of here” and allowed him to walk away. ¶ 29 Burg denied ever having any interaction with Gofron. Burg recalled seeing De La Rosa pull up in a security truck, but Burg stated he did not remember if there was another male in the vehicle. Among other documentary evidence, the Board also considered a recording of Rzany’s 911 call, recording of Burg’s police radio communications from the time of the incident, and deposition testimony of Burg and De La Rosa from the feder al lawsuit

. ¶ 30 T he Police Board’s December 2020 Findings and Decision ¶ 31 The Police Board issued findings and decision on December 17, 2020. By a vote of 8

- 1, the Board (1) denied Burg’s motion to dis miss the charge s ; (2) found Burg guilty of each charged violation, and (3) determined that he should be terminated. ¶ 32 With respect to the motion to dismiss , the Board stated that Appellate C ourt decisions had

“ affirmed the Board’s decisions to deny motions to dismiss that make essenti ally the same arguments,” citing Orsa et al v. Police Board, 2016 IL App ( 1st) 121709 and Chisem v. McCarthy , 2014 IL App (1st) 132389. The Board rejected Burg’s claim that due process was violated by the timing of the charges. The Board recognized that in Lyon v. Dep’t of Children and Family Services , 209 Ill. 2d 264 (2004), our supreme court found that a teacher’s due process rights were violated by a delay in an adjudication, during which time the teacher was prevented fr om working. The Board found that Burg’s situation was “fundamentally different , ” since he was “complaining about the delay from the time of the incident to the bringing of charges, not the time it took to try him1-21-1449

-9- on the charges.” The Board pointed out that B urg was “ paid his full salary and benefits from the time of the incident until he went on disability” and was not suspended without pay until after the charges were filed. ¶ 33 The Board also rejected Burg’s reliance on General Order G08

- 01 as a basis to dismi ss the charges. The Board reasoned that G08 -01 did not “ set any absolute deadline” to bring charges, and its violation “does not provide a basis for automatic dismissal of charges against an officer.” The Board stated that although it “d [id] not condone the protracted and long investigation in this case”, it would not dismiss the charges for this reason. ¶ 34 With respect to Burg’s laches argument, the Board noted that the mere lapse of time is insufficient to support that defense, without a showing of prejudice. The Board concluded that Burg had “not demonstrated that the delay caused him the material prejudice that he is required to prove.” The Board noted that although De La Rosa had died , he had testified in a deposition at which Burg’s counsel had an opportunity to question him. The Board otherwise rejected as “speculative” Burg’s suggestions that the delay prevented him f rom locating other witnesses or evidence. The Board found no other “extraordinary” or “compelling” circumstances to warrant the applicatio n of laches

. ¶ 35 After explain ing why it d enied Burg’s motion to dismiss, the B oard found Burg guilty of each of the charge s. T he Board relied on the “credible and convincing” hearing testimony of Rza ny, The
Boar d found that ce rtain aspects of her ac count were corrob orated by De La Rosa’s dep osition testimony , as well as the recording of the 911 call. In contrast, the Board found that Burg’s hearing testimony contained “inconsistencies, purp orted fail ure in memor y, and incredible explanations.” ¶ 36 D issent fr om the Majority Decision ¶ 37 In his dissent from the majority’s decision, Board member John P. O’Malley, Jr. expressed his view that the delay in bringing charges was “inexcusable

. ” O’Mall e y emphasized that the Board1-21-1449

-10- never heard live testimony from De La Rosa and that his prior deposition testimony “never pointed directly to [Burg ].” O’Malley thus opined that the delay in bringing charges “weighed heavily” against Burg’s ability to defend himself. O’Malley believed that Burg was not p roven guilty, and that the delay in bringing charges was “unconscionable.” ¶ 38 A portion of the majority’s findings specifically addressed the dissent. The majority stated : “While we wholeheartedly agree with [O’Malley’s] point that the delay in this case is unconscionable, the failures of the accountability system

— which we have frequently criticized in our decisions

— should not be used to suggest that the evidence is not sufficient to support the ruling of the majority nor a reason to overlook the st rong case outlin ing the Rule vio lations of [Burg].” The majority reasoned that “in spite of the delay in the case coming before the Board, there is more than adequate evidence” that Burg told Gofron to leave the scene and then filed a false report. ¶ 39 C omplaint for Administrative Review ¶ 40 On January 19, 2021, Burg filed a complaint for administrative review pursuant to the Administrative Review Act, 735 ILCS 5/3 -101 et seq (West 2020)

. Within the complaint, Burg asserted that the Board’s denial of his motion to dismiss violated the doctrine of lache s, as well as “the Collective Bargaining Agreement between the City of Chicago and The Fraternal Order of Police Lodge 7, due process and Orders, Rules and Regulations of the Chicago Police Department.” Burg asserted that his due process rights were violated by the Superintendent’s delay in bringing charges , insofar as the death of De La Rosa during the delay deprived him of his “constitutional ly protected right to fair cross

- examination.” Burg otherwise asserted that the Board’s decision was against the manifest weight of the evidence and misapplied the law. Burg requested reversal of both the Board’s denial of his motion to dismiss, as well a s its decision to discharge him.1-21-1449

-11- ¶ 41 The circuit court o rdered Burg to submit a brief in support of the complaint. Burg filed that brief on June 30, 2021. Within that brief, Burg maintained that he had not re ceived the requisite due
process . Burg noted that t he c ollective bargaining a greement (CBA) between the CPD and the Chicago Fraternal Order of Police provides that, unless otherwise authorized by the Superintendent, “no complaint or allegation of any misconduct concerning any incident or event which occurr ed five (5) years prior to the date the complaint or allegation became known to the Department shall be made the subject of a Complaint Register investigation.” 7 ¶ 42 Burg also relied upon the language in C PD General Order G08 -01 requiring “prompt, thorough investigations” into allegations of m is conduct. Chicago Police Department General Order G08 -01 (eff. June 7, 2017). 8 Burg acknowledged that the term “prompt” was not defined in the General Order, yet argued that the CBA indicates that t he “Department itself does not consider a five- year delay to be ‘prompt. ’” ¶ 43 Burg acknow ledged that he had been paid during the d elay. Yet , he claimed that the delay “made it nearly impossible” to develop his defense, as “[w]itnesses m oved on, a material wit ness passed away and evide nce was no t preserved.” He assert ed that if charges wer e file d in a timely manner, he cou ld have sought out additional witnesses and evidence and cross- examined De La Rosa. ¶ 44 For similar reasons, Burg argued that the laches doctri ne applied, as there was a lack of diligence in bringing charges and resulting prejudice. He asserted there was no valid reason for the delay,

7 The CBA is not cited in appellant’s brief but is available at : https://www.chicago.g ov/ c ontent/dam/city/depts/dol/Collective%20Bargaining%20Agreement3/FOPCBA2012

- 2017 2.20.15.pdf

.
8 At the time charges were filed aga ins t Burg, General Order G08

- 01 provided that “Prompt, through investigation will be conducted into allegations of misconduct to establish facts which can absolve the innocent and identify the guilty.” General Order, effective June 7, 2017

. (available at https://home.chicagopolice.org/wp

content/uploads/2017/08/BIA

- Revised

- Policies

- 1.pdf )

. The current version of Gen eral Order G08

- 01 do es not use the “prompt , thorough ” phrase

. However, it provides that investigations must be conducted “efficiently” and calls for

“ objective, comp rehensive , and timely Log Number investigations into c omplaints .” General Order G8

- 01 (eff. Dec. 31, 2022), ava ilable at http://directives.chicagopolice.org/#directive/public/63621-21-1449

-12- and the Superin ten dent “showed zero diligence” in pursuing the investigation. As to prejudice, Burg reiterated his claim that his ability to develop a defense was hindered, especially as he could
not cross - examine De La Rosa. Burg acknowledged De La Rosa’s deposition in the civil lawsuit , but asserted that Burg’s “interest and motivations ” in the prior l awsuit were “ not identical” in the present matter. He averred that he would have pu rsued additional evidence for his defense, had he known the “Superinten dent would lie in w ait for several years ” while “evide nce eroded.” He othe rwise argued that the nearl y nine

- year delay in this case established “extraordinary” circumstance s, justifying application of laches

. ¶ 45 In his response b rief, the Superintendent ar gued that Burg’s due process claim was foreclosed by the Appellat e Court decisions in Chisem , 2014 IL App (1st) 132389 and Orsa ,2016 IL App (1st1) 121709, which found no violation of due process violations whe re the accused officers had been paid before charges were fil ed . The Superintendent claimed that due process is triggered by “delay in adjudication ” during which an officer is suspended without pay , but not by a delayed investigation when the officer continues to be paid. ¶ 46 Likewise, the Superintend ent argued that Chisem and Orsa forec losed Burg’s reliance on General Order G08 -01, insofar as those decisi ons ob served that the General Order did not set “an absolute deadline. ” The Superintendent otherwise argued that even if an investigation was not “prompt” under that General Order , it is not grounds for dismissal of the charges . To the exte nt Burg’s brief relied on the CBA, the Superintendent asserted Burg waived the argument by not raising it before the Board. The Superinten dent other wise argued that the cited language from the CBA did not impose a time limit to file charges. ¶ 47 Regarding laches , the Superi ntendent emphasized that the doctrine does not apply to governmental entities absent extraordinary circumstances

. ” The Superintendent disputed Burg’s claim that1-21-1449

-13- “evidence eroded” due to the delay, noting that De La Rosa had been deposed and cross

- examined by Burg’s counsel. Even without De La Rosa’s testimony, the Superintendent urged there was “overwhelming evidence” supporting the Board’s decision. ¶ 48 T he Circuit Court Affirms the Board’s Decision ¶ 49 On October 13, 2021, the circuit court affirmed the Board. With respect to Burg’s due process claim, the court found that , “Like the officers in Orsa and Chisem , Bur g was not deprived of any
pro perty inte rest as he re mained working and was then o n pa id disability” until the charges were filed. The c ourt also noted that Burg “had a full an d fair op portunity to conte st the char g es at his hearing.” The circuit court likewise relied on Orsa and Chisem to reject Bur g’s reliance on the lang uage in Ge neral Order G08

- 01 calling for “[p]rompt, thorough in vestigation s” into allegations of police misconduct. The circuit court noted that “ the general order did not contain any firm deadline by which investigations must be completed” and that “nothing in the directive suppor ted automati c dismiss al of char ges for its viol ation .” The circuit court also found that Burg’s reliance on the CBA was waived, and that in any event the cited CBA language “applies to the opening of an investigation, not the f iling of charges.” ¶ 50 The circuit court also rejected Burg’s laches argument. The court found that although there was a “significant time lapse” betwee n the conclus ion of the investigation in 2014 and the filing of charges in 2019, the record did not show that Burg had been prejudiced , or th at there were “extraordinary circumstances ” to support the app lication of laches ag ainst a gove rnmental entity. The court noted that although De La Rosa had died, Burg’s counsel had a chance to cross

- exa mine him at the deposition in the civil litigation. Th e court found that Burg f ailed to id entify any other evidence that “eroded” due to the delay , and it was mere “speculation” for him to suggest that he could have developed additional evidence or found additional witnesses.1-21-1449

-14- ¶ 51 The circuit court otherwise re jected Burg’s con tentions that the factual fi ndings w ere ag ainst the manifest w eight of the evidence , or that the decision to discharge him was arbitrary and capric ious. ¶ 52 Burg filed a timely notice of appeal on November 5, 2021. ¶ 53 ANALYSIS ¶ 54 On appeal , Burg does not raise any challenge as to whether the evidence supported the Board’s factual findings or its ultimate decision to discharge him. Instead, he avers that the Board erred when it denied his motion to dismiss the charges. He asserts that dismissal was warranted for two primary reasons, namely : (1) his due process rights were violated by the Superintendent’s delay in bringing charges and (2) the doctrine of laches warranted dismissal of the charges

. For the following reasons, we find these arguments lack merit. ¶ 55 S tandard of Review ¶ 56 In an appeal from the judgment of an administrative review proceeding, we review the decision of the administrative agency (here, the Board) and not the decision of the circuit court. Orsa v. Police Board of City of Chicago , 2016 IL App ( 1st ) 121709, ¶ 47. “The applicable standard of review, which determines the degree of deference give to the agency’s decision, depends upon whether the question presented is one of fact, on of law, or a mixed question of law and fact.” AFM Messenger Service, Inc. v. Dep’t o f Employment Security , 198 Ill. 2d 380, 390 (2001). “An administrative agency’s findings of fact are not reversed unless they are against the manifest weight of the evidence, and questions of law are reviewed de novo . [Citation.]” Lyon , 209 Ill. 2d 264 (20 04)

. Agency decisions that pres ent a mixed question of law and act are reviewed under a “clearly erroneous” standard, under which an agency decision “will be deemed ‘clearly erroneous’ only where the reviewing court, on the entire record, is ’left with the definite and firm conviction that a mistake has been committed.’” AFM Messenger Service, 198 Ill. 2d at 395. In this appeal, Burg1-21-1449

-15- does not dispute any findings of fact. Whether the issues in this appeal are considered pure questions of law or mixed questions of law and fact, we find no error in the Board’s decision. ¶ 57 W hether the Timing of the Charges Violated Due Process ¶ 58 We first address Burg’s argument that his right to due process was violated by the “i nexplicable d elay ” before charges were filed in January 2019, nearly ten year s afte r the u nderlying incident

a nd five year s afte r the i nves tigation was conclude d. He cites the fourteenth amendment to the Unite d States Constitution, as well as General Orders of the C PD , the CBA , and a prior decision by the Board in another matter. As discussed below, our case law does not support a due process violation in these circumstances , and the other authorities cited by Burg are unavailing. ¶ 59 “Procedural due process claims question the constitutionality of the procedures used to deny a person’s life, liberty, or property .” Lyon , 209 Ill. 2d at 273. “ ‘ It is a well

- established constitution al principle that every citizen has the right to pursue a trade, occupation, business or profession” which is a “property and liber ty interest entitled to the protection of the law as guaranteed by the due process clauses of the Illinois and Federal constitutions.” Id . (quoting Coldwell Banker Residential Re al E state Ser vices of Illinois, Inc. v. Clayton , 105 Ill. 2d 389, 397 (1985)). ¶ 60 “While the core of due process is the right to notice and a meaningful opportunity to be heard, it is a flexible concept and requires only such procedural protections as fundamental principles of justice and the particular situat ion demand.” Chisem v. McCarthy, 2014 IL App (1st) 132389, ¶ 14 (citing Callahan v. Sledge, 2012 IL App (4th) 110818, ¶ 27). “[D]ue process is a matter of fed eral

co nstitutional law, s o comp liance or noncomplian c e with state proce dural requ irements is not det erminative of w hether minimum procedural due process standards have been met. ” Lyon , 209 Ill. 2d at 273. At the same time, state requirements “ are a useful reference because they rep resent standards that the General Assembly and the [agency] concluded were sufficient.” Id

.1-21-1449

-16- ¶ 61 Burg relies on a number of sources as support for his claim that the Superintendent’s delay in filing charges amounted to a due process violation

. He notes that the CBA provides that, without specific written authorization by the Superintendent, “no complaint or allegation of any misconduct concerning any incident or event which occurred five (5) years prior to the date the complaint or allegation became known to the Dep artment shall be made the subject of a Complaint Register investigation or be re

- opened or re

- investigated after five (5) years from the date the Complaint Register number was issued.” Burg also relies heavily on General Order G08

- 01’s directive that “prom pt, thorough investigations will be conducted into allegations of misconduct.” CPD General Order G08

- 01 (eff. June 7, 2017). He argues that the Superintendent’s delay in charging him was not “prompt, ” as that term is used in that General Order

. ¶ 62 Burg recog nizes that our court’s decisions in Orsa and Chisem rejected due process claims that were also premised on the untimeliness of Board charges against CPD officers. See Orsa v. Police Board of the City of Chicago , 2016 IL App (1 st ) 121709; Chisem v. McCarthy, 2014 IL App (1st) 132389. Yet, Burg claims th ose cases are distinguishable , because the delay in his case is “inexplicable.” Burg instead argues that his circu mstances are akin to those in a subsequent Board decision that found dismissal of charg es warranted , In the Matter of Charges Filed Against Sergeant John Poulos , No. 17 PB 2932 (Feb. 28, 2018) (“ In re Poulos .”)

. ¶ 63 The Superintendent responds that Burg received the requisite notice and opportunity to be heard , and that Orsa and Chisem establi sh that the mere timing of charges does not give rise to a due
process violation. ¶ 64 O ur Precedent in Orsa and Chisem ¶ 65 As both parties discuss Orsa and Chisem , we review them here

. In Chisem , a police officer appealed from his suspension by the Board, citing the nearly three

- year lapse between the1-21-1449

-17- un derlying incident in February 2009 and the filing of charges in December 2011. Chisem , 2014 IL App (1st) 132389, ¶¶ 1 -3. Chisem claimed th e “untimely” charges against him violated his right to due process . Id. ¶ 1. He also relied on CPD General Order 93

- 03 ( effective April 15, 2011), the predecessor to General Order G08 -01, which likewise called for a “prompt” investigation

. Id

. ¶

¶ 14, 17. ¶ 66 In the course of finding that his right to due process was not violated, our court noted that Chisem relied on case law “involv[ing] a delay in the adjudication of allegations of misconduct after the respective plaintiffs had been suspended *** not a delay in the investigation leading to an initial suspension.” Id

. ¶ 15 (citing Morgan v. Depar tment of Fina n cial & Professional Regulation , 374 Ill. App. 3d 275, 303) (2007) and Lyon , 209 Ill. 2d at 282). The Chisem decision noted that, although the officer had a property inter est in employmen t, he “was working as a paid CPD officer throughout the entire investigation and was only suspended after charges wer e official ly filed.” Chisem , 2014 IL App ( 1st ) 132389, ¶15. Moreover, this court noted that Chisem was “immediately given notice of the pending investigation and a meaningful opportunity to be heard.” Id

. For these reasons, we found “no violation of [Chisem’s] right to due process.” Id

. ¶ 67 Chisem separately rejected the officer’s claim that the timing of the charges violated the CPD General Order:
“We also observe no direct violation of General Order 93

- 03, which requires a prompt and thorough investigation. Although the investigation took a substantial amount of time, this directive does not set an absolu te deadline within which investigations must be completed, but provides that if the investigation lasts more than 30 days, the investiga tor must seek and obtain an extension of time1-21-1449

-18- within which to complete the investigation. [Citation.] The IPRA regularly sought and was granted extensions of time to complete its investigation. *** And even if a violation occurred, nothing in the directive suggests, and plaintiff provides no support, for the proposition that automatic dismissal is the sanction . [Citation.] ” Id

. ¶ 17. ¶ 68 Two years later, this court rejected virtually identical arguments in Orsa v. Police Bd. o f City of Chicago , 2016 IL App ( 1st ) 121709, which arose from a n incident in which three off

- duty officers assaulted a civilian. The S uperintendent waited more than four years after the incident to bring charges ; the Board ultimately discharged two officers and suspend ed the third. Id. ¶ 2. On administrative review, the circuit court held that the Board vi olated the officers’ due process righ ts

. Id . ¶ 34. ¶ 69 This court affirmed the Board’s decision

. As i t had in Chisem , this court in Orsa rejected the officers’ reliance on Morgan and Lyon , bec ause those cases “involved a delay in the adjudication of allegations of misconduct after the plaintiffs had been suspended from employment, not a delay in the investigation .” (Emphasis added.) Id . ¶ 39. Orsa further noted that the officers “remained employed with the CPD throughout the invest igation until charges were officiall y filed”, the y were “immediately given notice of the charges,” and had a “meaningful opportunity to be heard during a five

- day hearing before the Board.” Id. For those reasons, we found that their “ rights to d ue
process wer e not violated.” Id

. ¶ 70 Our court in Orsa likewise rejected plaintiffs’ reliance on General Order No. 93

- 03’s requirement of a “prompt” investigation. Id . ¶ 42. We reasoned that “[a]lthough the investigation took a substantial amount of time”, the General Order did not “set an absol ute deadline” and the “IPRA1-21-1449

-19- regularly sought and received extensions of time to complete its investigation.” Id . We also noted that “even if a violation [of General Order 93

- 03] occurred, nothing in the directive suggests and plaintiff s provide no support, for automatic dismissal.” Id

. Notably, the analysis in both Chisem and Orsa indicated that the question of whether due process was violated was wholly separat e from whether there had been a violation of General Order 93

- 03’s requirement of a “prompt” investigation. That is, both decisions concluded that there was no due process violation, before separately addressing whether General Order 93 -03 was violated. ¶ 71 The Timing of the Charges Against Burg Did Not Constitute a Due Process Violation ¶ 72 To the extent that Burg argues his due process rights were violated by the timing of the charges , we agree with the Superintendent that Chisem and Orsa are on point

. Those cases illustrate that , in contrast to a delayed adjudication after an employee has been suspen ded , a lengthy delay before charges does not establish a due process violation, at le ast where the employee continued to be paid

. See Chisem , 2014 IL App ( 1st ) 132389, ¶ 15 (“plaintiff was working as a paid CPD officer through the entire investigation and was only suspe nd ed after char ges were officially filed.”);
Orsa , 2016 IL App (1st) 121709, ¶39 (“While we agree that plaintiff s have a pr operty in t erest in
t heir emp lo yment, they remained employed with the CPD through the in vestigation until char g es were officially fi led .”) . Likewise, Burg was not deprived of any property interest by the delay in the filing of charges. There is no dispute that from the time of the incident until charges were filed, he remained a CPD employee and received regular compensation, including disability benefits following his 2014 injury. ¶ 73 More fundamentally, we keep in mind that “the core of due process is the right to notice and a meaningful opportunity to be heard.” Chisem, 2014 IL App (1st) 132389, ¶ 14. Burg has not suggested that he was not timely notified of the charges once they were filed. Further, the record1-21-1449

-20- reflects that he had a meaningful opportunity to be heard at the hearing before the Board , where he was represented by counsel

. ¶ 74 I n re Poulos Does Not Support Burg’s Due Process Claim ¶ 75 In the course of his due process argument, Burg relies on a 2018 Board decision that dismiss ed charges against an officer as untimely

. In re Poulos , No. 17 PB 2932 (Feb. 28, 2018)

. 9 Burg claims Poulos is more factually analogous to his situation than Chisem and Orsa

. However, a close reading of Poulos shows that it was not decided on due process grounds but was limited to General Order G08 -01. Moreover, the facts of Poulos are also distinguishable. We proceed to discuss both Poulos and General Order G08 -01. ¶ 76 In Poulos , the Superintendent charge d Sergeant John Poulos in June 2017 with CPD rule violations that allegedly occurred many years earlier. Specifically, Poulos allegedly failed to disclose certain facts on his application become a police officer in 2000, and between July 2003 and September
2 006 he allegedly violated a CPD rule by holding an ownershi p interest in a restaurant with a liquor license. Poulos , 17 PB 2932 at 2. The investigation into the charges and discipli nary recommendation was completed in 2007. Id. In June 2010, Poulos returne d to work after an injury

related leave of absence

. Nevertheless , he was not charged until seven years later. ¶ 77 Poulos moved to dismiss the charges based on their untimeliness. When the Board inquired about the reason for the delay, the Superintend ent could not provide a n explanation , but suggested that “numerous administration and staffing changes” had contributed. Id. at 3. ¶ 78 Although Poulos a sserted a number of bases for dismissal, including a due process claim , the Board granted his motion solely on the basis of General Order G08 -01. In addition to citing its requirement of “[p]rompt, thorough investigations,” t he Board recited General Order G08 -01’s

9 The decision is available at https://www.chicago.gov/content/dam/city/depts/cpb/PoliceDiscipline/17PB2932.pdf1-21-1449

-21- language that “ ‘the Superintendent must ensure that internal investigations are conducted consistent with the provisions outlined in this directive to provide Department members with the fundamental principles of fairness and to ensure that members are afforded all their rights

. ’ ” Id

. at 4. (Emphasis added by Board). ¶ 79 The Board found that the “lengthy and unexplained delay in filing charges against Sergeant Poulos violates these important prov isions of Gen eral Order G08
- 01, and warran t s dismiss al of these charges with prejudice.” Id

. The Board expressly found that Poulos’ situation was distinct from
Orsa and Chisem , because in those cases “there was no lengthy delay between the completion of the investigation and the filing of charges. ” Id

. The Board recognized that lengthy investigation s may be necessary in a complex case and that it had “ not dismissed charges in cases where investigations have taken several years .” Id. at 5. However, in Poulos’ case, “the delay took part in the Super in t en dent’s office, long after the investigation was complete.” Id

. ¶ 80 The Board also pointed out th at the charges against Poulos “turned largely on documentary evidence” and “should have been resolved promptly.” Id . Thus, Poulos was “quite different than excessive

- force cases and other cases that involve multiple and conflicting accounts by lay and law enforcement witnesses, companion criminal and civil litigation, and the need for expert evidence.” Id

. The Board also emphasized that the Superintendent “ offered no reasonable explanation” for the ten

- year delay between the end of the investigation and the filing of charges in 2017. ¶ 81 Citing Orsa and Chisem , the Board’s In re Poulos decision reiterated that General Order G 08-01 does not set an ab solute deadline for the filing of charges, nor does it require automatic dismissal for its violation. Id . at 6. The Board explained that, u nlike a statute of limitations, “General Order
G08

- 01 is far more f lexible and req uires a car e ful b alancing between t he inter ests of a prom p t1-21-1449

-22- inves tigation and a th orough investigation. ” Id . at 6. The Board further cautioned that the General Order “ should only be invo ked as a ba s is for dismiss al in the most extra ordinary and egre gious cases, like the present one.” Id . The Board thus dismissed the charges against Poulos solely under General Order G08 -01. Id . at 6 n. 4. ¶ 82 As Poulos did not discuss whether due process was violated, it provides no support for Burg’s due process argument. Nevertheless, as Burg also relied on General Order G08 -01 in his arguments to the Board and on appeal , we proceed to discuss why that General Order is also unavailing. ¶ 83 G eneral Order G08 -01 Did Not Warrant Dismissal of the Charges ¶ 84 We again point out that although Burg ’s brief discusse s General Order G08 -01 as part of his due
process argument, Chisem and Orsa illustrate that the due process inquiry is separate from the question of whether the General Order was viola ted

. In any event, we conclude that General Order
G08 -01 did not entitle Burg to dismissal of the charges. We reach this conclusion for several

reasons. ¶ 85 First, Burg relies on the portion of the General Order that provides for “prompt” investigations. However, the crux of Burg’s appeal is not about the timing of the investigation , which the record reflects was initiated in 2010 and completed in 2014. Rather, all of his arguments stem from the timing of the charges filed in January 2019, nearly five years after the investigation had completed, and more than eight years after the underlying 2010 incident. Burg simply does not identify any specific language in the General Order that purports to set any requirement for when charges must be filed

. This is consistent with our decisions in Orsa and Chisem , which found no violation of the

same “prompt” investigation requirement in General Order 93-03, the predecessor to General Order G08 -01. Orsa , 2016 IL App (1st) 121709, ¶ 42; Chisem , 2014 IL App (1st) 132389, ¶ 17.1-21-1449

-23- ¶ 86 We recognize th at in Poulos , 17 PB 2932 , the Bo ard found dismissal appropriate under Ge neral Order G08 -01 , where the charges were filed nearly 17 years after the earliest alleged CPD rule violation, and a decade after the inv estigation had concluded. However, we find Poulos distinguishable from Burg’s situation, especially given the Board’s comments in Poulos explaining th e uniqueness of that decision. S ignificantly , t hat decision emphasize d that the charges against Poulos “turned largely on documenta ry e vidence” rather than witness testimony, so that the case was “quite different than excessive force cases and other cases th at involve mul tiple and c onflicting
account s by la y and law enforcement witnesses” and “companion criminal and civil litigation.” 17 PB 2932 at 5. In stark contrast to those c ircumstances, the charges against Burg essentially turned on conflicting witness testimony regarding Burg’s actions. Further, unlike Poulos , t he underlying incident gave rise to companion civil litigation, in which Burg was a named defendant. ¶ 87 Moreover, Poulos emphasized that “the particular facts of each case must be considered” in deciding whether General Order G08 -01 has been violated, and that even a violation does not automatically warrant dismissal of charges. Id . at 6 ; see also In re John Haleas, 14 PB 2848, at 5 (Aug. 21, 2014) (recognizing there is no provision in General Order G08 -01 order “requiring the extraordinary remedy of dismissal of the case as a sanction” for its violation ). That is, General Order G08 -01 “should only be invoked as a basis for dismissal in the most extraordinary and egregious cases.” Poulos , 17 PB 2932 at 6. This is consistent with our recognition in Orsa and Chisem that nothing in General Order G08

- 01’s predecessor ( General Order 93 -03) suggested that its violation would call for automatic dismissal of charges

. Orsa , 2016 IL App (1st) 121709, ¶ 42; Chisem , 2014 IL App (1st) 132389, ¶ 17. Thus, even if we were to conclude that the timing of Burg’s charges violated General Order G08

- 01 ’s requirement of a “prompt and thorough investigation” (which we do not), that violation would not require dismissal.1-21-1449

-24- ¶ 88 For the foregoing reasons, we cannot say that the Board erred in declining to find t hat dismissal

w as warranted under General Order G08 -01. ¶ 89 B urg’s Reliance on the CBA Is Unavailing ¶ 90 We briefly address Burg’s reliance on language of the CBA for his due process challenge. In particular, Burg notes the provision in section 6.1 of the CBA that:
“Unless the S uperintendent of Police specifically authorizes in writing, no complaint or allegation of misconduct concerning any incident or event which occurred five (5) years prior to the date the complaint or allegation became known to the Department shall be made t he subject of a Complai nt Register investigation or be re

opened or re

- investigated after five (5) years from the date the Complaint Register number was issued.” 10 ¶ 91 Burg’s reliance on the CBA is misplaced. First, as the circuit court recognized, Burg did not reference the CBA in support of his motion to dismiss before the Board. Thus, he has forfeited reliance on it. “[O]n administrative review a party forfeits any issue that it failed to raise in proceedings before the administrative agency.” De mesa v. Adams , 2013 IL App (1st) 122608, ¶ 52; see also Cinkus v. Village of Stickney Municipal Officers Electoral Bd., 228 Ill. 2d 200, 212 (2008) “ [I]f an argument, issue, or defense is not presented in an administrative hea ring , it is procedurally defau lt ed and may n ot be raise d for the fi rst time b efor e the ci rc uit court on admi nistrative review.” ).

10 The CBA is available at https://www.chicago.gov/content/dam/city/depts/do l/Collective%20Bargaining%20Agreement3/FOPCBA2012

- 2017_2.20.15.pdf1-21-1449

-25- ¶ 92 Moreover, even if we disregarded the forfeiture, the referenced CBA provision does not support Burg’s position. Contrary to Burg’s suggestion, it does not impose a time limit in which to bring charges after an alleged incident misconduct. Rather, it provides that an incident of alleged misconduct that is over five years old will not “be made the subject of a Complaint Register investigation ”, absent specific authorization from the Superintendent. That is, it concerns the tim e
pe riod in which an investigation must be initiated . It does not suggest any violation premised on when charges are filed. ¶ 93 B urg Has Not Identified the Requi site Prejudice for Laches ¶ 94 We have thus rejected Burg’s due process challenge, along with his reliance o n General Order
G08 -01 and the CBA. This brings us to Burg’s alternative contention, that the untimeliness of the charges warranted their dismissal under the doctrine of laches

. For the following reasons, w e conclude that —notwithstanding the troubling delay in the filing of charges

— Burg did not show the requisite resulting prejudice to support laches. Accordingly, the Board did not err in rejecting that defense. ¶ 95 Our supreme court has explained that “ [l]aches is an equitable defense asserted against a pa rty ‘who has knowingly slept upon his rights and acquiesced for a great length of time, [citation] and its existence depends on whether, under all circumstances of a particular case, a plaintiff is chargeable with want of due diligence in failing to institute proceedings before he did.’ ” Tillman v. Pritzker , 2021 IL 126387, ¶ 25 (quoting Pyle v. Ferrell , 12 Ill. 2d 547, 552 (1958)). “The doctrine is grounded in the equitable notion that courts are reluctant to come to the aid of a party who has knowingly slept on his rights to the detriment of the opposing party.” Id . (quoting Tully v. State, 143 Ill. 2d 425, 432 (1991)).1-21-1449

-26- ¶ 96 “ Laches is an affirmative defense that is unrelated to the merits of the suit.” PNC Bank, National Ass’n v. Kusmierz , 2022 IL 126606, ¶ 28. Accordingly, “ [t] he party asserting laches bears the burden of establishing the defense by a preponderance of the evidence. [Citation.]” Id. ¶ 26. “ T wo elements must be established for laches to successfully defeat a claim: (1) lack of diligence by the party asserting the claim, and (2) prejudice to the opposing party resulting from the delay. [Citation.]” Id

. Absent prejudice, a “mere lapse in time” is insufficient to support a laches defense. Chisem , 2014 IL App (1st) 132389, ¶ 18. ¶ 97 Further more , “as a general rule, the doctrine of laches does not apply to governmental entities absent extraordinary circumstances because laches could impair the functioning of the government.” Orsa , 2016 Il App ( 1st ) 121709, ¶44; Chisem , 2014 IL App (1st) 132389, ¶ 18 (same). Our supreme court has recognized there is “considerable reluctance to impose the doctrine of laches to the actions of public entities unless unusual or extraordinary circumstances are shown.” Van Mill i gan v. Board of Fire and Police Com’rs of Village of Glenview , 158 Ill. 2d 85, 90 (1994). ¶ 98 “The decision with respect to whether laches should be invoked is generally a discretionary
matter.” Chisem, 2014 IL App (1st) 132389, ¶ 18 (citing Van Milligan, 158 Ill. 2d at 91 ). We will

n ot disturb the Board’s determination regarding laches unless it was “so clearly wrong as to constitute an abuse of discretion.” Orsa, 2016 IL App (1st) 121709, ¶ 44; Chisem, 2014 IL App (1st) 132389, ¶ 18. ¶ 99 In denying Burg’s motion to dismiss , the Board found laches inapplicable because Burg did not demonstrate that the Superintendent’s delay in bringing charges caused him the requisite prejudice. In arguing for reversal, Burg initially suggest s that prejudice may be presumed due to the length of the delay in his case. However, the case law simply does not support that proposition. To the1-21-1449

-27- contrary, our precedent is clear that the mere passage of time is insufficient

. Laches requires actual prejud ice “ resulting from the delay. ” Kusmierz , 2022 IL 126606, ¶ 26 ; see also Pyle v. Ferrell , 12 Ill. 2d at 552 (1958) (laches is “neglect or omission to assert a right, taken in conjunction with a lapse of time *** and other circumstances causing prejudice to an adverse party.”) (emphasis added.). “If the defendant is not injured by the delay, laches is inapplicable.” (Internal quotation marks omitted.) LaSalle National Bank v. Dubin Residential Communities Corp , 337 Ill. App. 3d 345, 351 (2003). ¶ 100 Burg otherwi se argues t hat De La Rosa’s death before the charges were filed caused him prejudice, as Burg lost the ability to cross

- examine him at the evidentiary hearing. Burg asserts that De La Rosa was a “key witness” upon which the Board’s decision relied. ¶ 101 We recognize that De La Rosa was one of the only identified eyewitnesses to the incident. His recollection was undoubtedly important, since he was impartial and he observed events before, during, and immediately after the altercation. However, De La Rosa p rovided detailed testimony about the events in question at his civil deposition in the civil litigation brought by Rzany and Cordero. Importantly, there is no dispute that De La Rosa was subject to cross

- examination by the attorney who represented Burg and the other defendants. ¶ 102 De La Rosa’s prior testimony, at which Burg’s counsel had a fair opportunity to cross

- examine him regarding the pertinent events, weighs against a finding of prejudice resulting from that witness’s unavailability at the evidentiary hearing . Notably, while Burg claims that he was deprived of the opportunit y to question De La Rosa ab out “ pertinent facts”, Burg does not specify
any particular relevant topics that were not covered at De La Rosa’s civil deposition. Nor does Burg suggest any reason why, had De La Rosa been available at the hearing, he would add any new pertinent information or qualify his prior sworn testimony . Indeed, it is speculative to suggest1-21-1449

-28- that De La Rosa’s recollection of the night in question would be substantially different (or more favorable to Burg) at a new proceeding. This is particularly true where De La Rosa’s deposition testimony merely corroborated Rz any’s. Unlike Burg’s testimony, which the Board found to be inconsistent, vague, and contradictory, Rzany’s was supported by De La Rosa’s testimony, a 911 tape, and the recording of the police dispatch. There is no basis in the record for us to depart from the Board’s conclusion that Burg offered no credible argument as to how he was prejudiced by being deprived of another opportunity to question De La Rosa, particularly where his testimony was in line with the only other material witness’s testimony and th e other evidence. Thus, we do not find any prejudice to Burg’s case resulting from De La Rosa’s absence. ¶ 103 Burg otherwise claims that he was prejudiced by the delay because he “lost the chance to develop evidence, such as additional eyewitnesses to refute the allegations” against him. He states he had no reason to do, once the civil litigation was settled. He suggests that had the charges been filed earlier, he could have discovered evidence that has since “eroded .” ¶ 104 However, these claims are likewise speculat ive. Burg offers no specific reason to believe that there were any unidentified witnesses to the underlying incident, or additional evidence that could have been discovered. Burg has not presented any reason to conclude that he could have found any additio nal evidence to overcome De La Rosa’s prior testimony, Rzany’s testimony, and all of the corroborating evidence. Speculative assertions are insufficient to show the requisite prejudice supporting a laches defense. We thus agree with the Board that Burg did not show the requisite prejudice to support the application of laches

. ¶ 105 Moreover, we do not find that the mere length of the delay before the charges gives rise to the “compelling” or “unusual or extraordinary circumstances” required to apply laches against a1-21-1449

-29- governmental entity. Van Milligan , 158 Ill. 2d at 90 -91. Thus, we cannot say that the Board abused its discretion in rejecting his reliance on th e laches doctrine. ¶ 106 We thus find that none of Burg’s challenges have legal merit. Before we c onclude, however, we emphasize that our decision should not be read to condone the administrative delay in this case.
T here is no apparent reason (other than administrative oversight or negligence) why charges were not filed against Burg until January 2019, more than four years after the investigation was concluded and more than eight years after the underlying 2010 incident. Indeed, the Board ’s decision found the delay was “unconscionable.” Nevertheless, there is apparently no administrative rule or statut e specifying a deadline for the Superintendent to bring charges for such misconduct , and it is not our role to create one. As discussed, our case law does not support a finding of a due process violation or laches under these circumstances

. ¶ 107 In summary, we conclude that the Board did not err in denying Burg’s motion to dismiss the charges against him. ¶ 108 CONCLUSION ¶ 109 For the foregoing reasons, we affirm the decision of the Board and the judgment of the circuit

cou rt of Cook County. ¶ 110 Affirmed.