## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Aich v. City of Chi cago , 2013 IL App (1st) 120987

Appellate Court Caption AB RAHAM A. AI CH, Petitioner-Appellant, v. THE CI TY OF CHI CAGO, Respondent-A ppellee.

District & N o. First District, F ourth Division
Docke t No. 1-12-0987

Rule 23 Order

filed
Rule 23 Order withdrawn Opinion filed April 11, 2013

May 8, 2013
J une 6, 2013

Held (Note : Thi s s

yl lab us

c o nst it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Th e appellate court upheld an administrative law judge ’s decision that petitioner violated defe ndant city ’s m u n i cipal code by failing to timely noti fy t h e ci t y of his divorce
, and there by cause d the city to pay for his former wife’ s health insurance bey ond the date that such pay ments wer e require d, since the judge ’s finding s wer e not ag ainst the manifest weig ht of the evidenc e, wher e petitioner’s contention that an aff idavit from a city claims supervisor was hear say was misplaced, any err or arising from consideration of a handwr itten note on a form that was admitted into evidenc e was harmless, and the admin i s t ra t ive law judge did not improperly

shift the burden of

proof to petitioner.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 11-CH-450240; the Hon. Patrick T. Rog ers, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l Ralph J

. L icar i, of Ralph J

. L icar i & Associates, L t d

. , o f Chicag o, for appellant.

Stephen R

. Patton, Corporation Counsel, of Chicag o (B enna Ruth Solomon, My

riam Zreczny Kaspe r, and Suz anne M. L oose, Assistant Corporation Counsel, of counse l), for a ppellee.

Panel PRES I DI NG J USTI CE L AVI

N delivere d the judgme nt of the court, with opinion.
J ustices Fitzge rald S m i t h and Pucinski concur red in the judgme nt and opinion.

OP INION

¶ 1 T h i s ap p ea l arises from a deter mination of the depar

tment of administrative he ari n gs (DOA H) of the City

of Chicag o (the City) t hat petit ioner Abraham Aich, a Chicag o police office r, violated the Municipal Code of Chicag o by failing to reimburse the City for expenses incurre d when petitioner failed to t i m el y repor t to the City that he had obtained a divorce from S umay a Aich and faile d t o re m o v e her as a benef iciary of hi s insurance benef its. On
appea l, petitioner asser

ts that the administrative law j u d ge (AL J ) improperly considere d hear say evidenc e and transfe rre d the City ’s burden of proof to pe titioner. He also contends that the AL J ’s finding s were ag ainst the manifest we ight of the evidenc e. We af

firm.

¶ 2 I . BA CKGROUND ¶ 3 I n April 2011, the C ity filed a complaint with the DOAH s ee k i n g a determination that petitioner had failed to p ay a debt owed to the C ity as a result of the C ity ’s ex penditure of healthca re benefits on petitioner’s inelig ible depende nt in violation of section 1-20-090 of the Municipal Code of Chicag o (Chicag o Muni ci p al C o de § 1-20-90 (ame nded J uly 21, 2004)). Specifica lly
, the City alleg ed tha t p e ti ti oner, a City employ ee, was marrie d to Sumay a Aich, who beg an rec eiving healthca re cover ag e under petitioner’s employ ee healthca re plan

on about J uly 1 8
, 2000. The couple divorce d on J uly 21, 2004, howeve r, and the City handbook require d employ ees to terminate healthcare co v er age for a former spouse by notify ing the benef

its manag ement office of the depar tment of financ e (B MO) within 30 day s of the divorce

. Petitioner did not inform the BMO until October 28, 2005

. As a result, Sumay a continued rec eiving cover ag e to which she was not e ntitled from J uly 21, 2004, to October 28, 2005, costing the City $3,498.94. The City further alleg ed that petitioner did not comply with the City ’s letter de manding reimburse ment.

-2-¶ 4 At the hear ing on the City ’s complaint, the AL J gra n t ed t h e C i t y ’s m o t i o n to admit

sever al exhibi ts into evidenc e. The first exhibi t was an aff idavit executed by J udith L andoch,

a benef it claims supervisor and keepe r of business rec ords for the BMO. L andoch stated that pursuant to City p olicy
, “all new employ ees are provided with acc ess to the employ ee handbook.” Petitioner reque sted healthca re cover ag e for Sumay a on J uly 18, 2000. L andoch also stated t h at ev er y y ear , the BMO mailed open enrollment forms listi ng an employ ee’ s

cover ed depende nts and that the BMO sent petitioner a form listi ng S u m ay a as a cover ed depende nt for the y ear s 2004 to 2006. Alt houg h petitioner was divorce d from Sumay a on J uly 21, 2004, he did not notify BMO of his divorce until October 28, 2005. Be tween those dates, the cost of benef

its provided to Sumay a was $3,498.94, in violation of the handbook, and the City had not been reimburse d. Attache d to L andoc h ’s af fidavit was a 2004 open enrollment form dated October 31, 2003, as we ll as the 2005 open e nrollment form for the enrollment p er iod beg inning on October 24, 2004, both of which list Sumay a as a benef iciary . The attached 2006 e nrollment form also lists Sum aya as a benef iciary

. ¶ 5 Petitioner objected to L andoch’ s aff idavit, arguing that the admission of a document with

no foundation and no support was neither competent nor substantial. The ALJ o v er rul ed petitioner’ s o bjection, noting that he could reque st that a subpoena be issued, and that the administrative ru l es permitted testimony to be provided throug h an aff idavit. When petitioner’s attorney stated that the burden was on the City
, not petitioner, the City essentially replied that it was meeting its burden throug h L andoch’ s aff idavit, which was admitted into evidenc e. ¶ 6 T h e Ci ty a ls o prese nted the judgme nt dissolving petitioner’s marria g e to Sumay a, e nte r e d

on J uly 21, 2004, which appea rs to have been cer

tified on J uly 26, 2004, as well as portions of the handbook which state that the employ ee is responsible for notify ing the City when his partne r become s ineligible for benef its, that the BMO must be notified wit h i n 3 0 d ay s of chang es and that documentation in support of the chang e must be submitt ed within 60 day s. I n addition, the C i t y p resented a letter to petitioner which explained that he owed the C ity $3,498.94 for the a dditional covera g e the City paid for due to his failure to properly notify the BMO of his divorce

. Following the admission of the City ’s exhibi ts, the AL J found that the City had pre sented a prima facie case

. ¶ 7 Petitioner’s attorney moved for a direc ted finding
, arguing t h er e wa s n o ev i d en ce he could contest beca

use he could n o t cr o s s-examine the City ’s documents. The following colloquy ensued:
“AL J DAVI S: W ell, *** y ou could have called a witness. You didn’t.
MR. GEI GER [petit ioner’s a ttorney ]: I t’s not my

burden, your Honor.
AL J DAVI S: W ell, no.
MR. GEI GER: I t’s their burde n. AL J DAVI S: The City is allowed to prese nt testimony throug h aff idavit, and y ou are allowed to c all any witnesses that you see fit to do, sir. So I found that they prese nted a prima facie case .” ¶ 8 Petitione r t es t i fi ed t h at d u ri n g h i s marria g e to Sumay a, he beca me a Chicag o police office r. He rec eived health insurance throug h the City
, bu t n ev er received a handbook. I n

-3-addition, he rec eived the judgme nt for the dissoluti on of his marria g e on J uly 21, 2004, and

rec eived the cer

tified copy of the judgme nt five day s later. Petitioner had obtained a cer tified
copy beca use cowor

kers told him that he neede d to submit it to the BMO to remove Sumay a from his me dical insurance

. Specifica lly
, petitioner was awa re that he was require d to g ive the City a copy of his divorc e judgme nt w ithin 30 day s and he submitt ed the cer tified copy to the BMO on the same day he rec eived it. Petitioner rema rried in Nicar agua about one month late r, on Aug ust 14, 2004, and took his new marria g e cer tificate to the BMO, which tol d petitioner he neede d to obtain a certified copy

. Petitioner obtained a cer tified copy on September 1, 2004, but the BMO would not acc ept it beca use it was not from the United States. Petitione r s u bsequently obtained a marria g e cer tificate from the City
, which was

rec orded on October 25, 2005. Three day s later, the BMO acc epted that document and added his new wife to his insurance

. Petitioner’s exhibi ts wer e t hen admitted into evidenc e, including the dissoluti on of marr iag e judg ment, the marr iag e cer tificate from the Republic of Nicar agua, a cer

tified copy of that cer

tificate and the m ar ri age cer tificate issued by the City

. ¶ 9 On cross-e x amination, petitioner testified that cowor kers told him he neede d to g o to the BMO to have himself added to a healthca re cover ag e plan. When he s ubmitted a cer tified divorce decr ee to the BMO on J uly 26, 2004, he also submitt ed an information form to delete his s p o u s e. Petitioner then identified a spouse information form, which was admitted into evidenc e without objection. The form, dated October 28, 2005, lists Sumay a as petitioner’s wife and states that the purpose of the form is to delete his spouse due to divorce

. A handwr itten note at the top of the form states that they had been divorce d since J uly 2004 and

wer e “just now taking off insurance .” The AL J then admitted into evidenc e three other exhibi ts, the first of which was an employ ee information form for selec ting a medical plan, signe d by petitioner on J une 30, 2000. The second ex h ibit was a form adding petitioner’s daug hter as a dependent, and t h e third exhibi t was a form adding his second wife, Fatima,

as a depende nt. I n addition, petitioner testified that an employ ee could make chang es to his depende nts during the open enrollment period but his testimony was equivoca l re garding whether he ever saw the open enrollment forms that we re ad d re ssed to him. Petitioner acknow ledg ed that the open enrollment forms listed Sumay a as a depende nt. Petitioner also testified th at h e had assumed the City had previously remove d Sumay a as a depende nt beca use he had alre ady g iven the City a copy of the divorce decr ee. On redire ct examination, petitioner testified that whe n he took the di ssolution of marr iag e judg ment to the BMO on J uly 26, 2004, the BMO had him fill out the form deleting his spouse, Acc ording ly
, the form he completed to remove Sumay a as a benef iciary on October 28, 2005, was the second form he had c ompleted. Fur

thermore , afte r the City

informed petitioner of its c laim, he spoke to Sumay a, who de nied using any of the City ’s insuranc e cove rag e. ¶ 10 Upon inquiry from the AL J
, petitioner testified that when he g ave the BMO a copy of the divorce decr ee and a spouse-re moval form i n 2 0 0 4
, the BMO did not g ive him any documentation in return. The AL J also asked the City who authore d the handwr itten note on the spouse-re moval form. When the City responde d that the note was written by “someone ” in the BMO, petitio n er ’s at t o rney objected, arguing that petitioner was unable to test such hear say

. The AL J clar ified, howeve r, that “the only problem I have is that the City has copies

-4-of all of t he documentation whi ch co rrelates wit h what [ petitioner] has t estified to, except

the document that shows that y ou took y our wife off of the policy , y our for

mer wife .” The AL J questioned why the City would have ever y document but one. Following argument, the AL J found the City had proven its case by a preponde ranc e of the evidenc e and o rd ere d
p et i t i oner to pay a $3,498.94 fine, $350 in attorney fee s, $40 in administrative costs an d $174.94 in inter est. On J une 15, 2011, petitioner f iled a petition for a dminist rative r eview. The trial c ourt subsequently aff irmed the AL J ’s dec ision.

¶ 11 I I . ANALYSI S ¶ 12 On appea l, petitio n er ra i ses sever al challeng es to the AL J ’s deter mination. The AL J ’s final decision is subject to the I llinois Administrative Review L aw (735 I L CS 5/3-101 et seq. (West 2010)). Schachte r v. City of Chicago
, 2011 I L App (1st) 103582, ¶ 34. We revie w the decision of the ag ency , rathe r than the trial court. Id. Petitioner first as s er t s that the AL J abused its discretion by considering hear say evidenc e. Specifica lly
, he challeng es L andoch’ s aff idavit and the handwr itten note on the spouse-re moval form. We revie w an administrative
ag ency ’s eviden t i ar y ru l i ng for an abuse of discretion. Trettenero v. Police Pension Fund
, 333 I ll. App. 3d 792, 801 (2002). ¶ 13 The Ci ty ’s “Gener al Rules and Regulations” (City Rules) provide that “ the formal and technica l rules of e vidence shall not apply in the conduct of

administrative hea

ring s.” City of Chicag o Gene ral Rules and Reg ulations § 1.7 (ef f. J uly 1 4
, 1 9 9 7 ). The City Rules also provide that “[e]vidence, including hear say , may be admitted only if it is of a ty pe commonly relied upon by

rea sonably

prudent pe rsons in the conduc t of their aff airs.” City

of Chicag o Gene ral Rules and Reg u l at i ons § 1.7 (ef f. J uly 14, 1997) (citing Chicag o Municipal Code § 2

- 14-076 (ame nded Apr. 29, 1998)); cf. Abrahamson v. Illinois Departme nt of Profe s s io n a l Regulation
, 153 I ll. 2d 76, 94 (1992) (supre me court observe d in a nonmunicipal setting that hear say is g ener ally inadmissible in an administr at i v e proce eding ); cf. also Moscardini v. County Officers Electoral Board
, 224 I ll. App. 3d 1059, 1063 (1992) (appe llate court found in a n onmunicipal setting that “the rule ag ainst hear say is a fundame ntal rathe r than a technica l rule” ). I n addition, pursuant to the I llinois Municipal Code, “[p] arti es s h all be provided with an opportunit y for a hear ing during which they may *** cross-e x amine opposing witnesses. Parties may reque st the hear ing office r to issue subpoenas to direc t the attendanc e and testimony of rele vant witnesses and the production of rele vant documents.” 65 I L C S 5 / 1 -2.1-5(c) (West 2010). Simi larly
, the City ’s municipal code provides that “[u] pon the timely reque st of any party to the proce eding
, any person, who the administrative law office r deter

mines may rea sonably be expected to provide testimony which is materia l and which does not constitute a needle ss prese ntation of cumulative evidenc e, shall be made available for cross-e x amination prior to a final deter mination of liabil i t y .” Chicag o Municipal Code § 2-14-076( j) (ame nded Apr. 29, 1998). Fur thermore
, it is well settled that “a hear in g o ff

i ce r’ s power to subpoena witnesses sufficie ntly protec ts the parties’ rig ht to

cross-e x amine adve rse witnesse s.” Jack son v. City of Chicago , 2012 I LApp (1st) 111044, ¶ 80 (c ases c ompiled therein). ¶ 14 Her e, petitioner was aware t h at t h e C i t y wa s p re s en t i n g i t s case throug h the sworn

-5-aff idavit of L andoch, who stated that petitioner had not notified the City of his divorce until Oc t o b er 28, 2005. As shown by the afor ementioned rules perta ining to munici p al administrative proce eding s, petitioner’s asser tion t h at t he aff

idavit was inadmissible as hear say is misplaced. I n addition, petitioner has develope d n o argument that L ochner ’s aff idavit was n o t o f a ty

pe commonly relied upon by rea sonably prudent persons. Fur thermore
, petitioner did not exercise his rig h t t o cross-examine L ochner by having the AL J subpoena her. Acc ording ly
, he has not demonstrated that the tri al co u rt abused its discretion by

admitting L ochner ’s af

fidavit. ¶ 15 We also rej e c t p e ti tione r’s challeng e to the handwr itten note on the spouse-r emoval for m. When the form itself was admitted into evidenc e, petitioner’s attorney expressly stated that he had no objection. When the AL J asked the City who authore d t h e handwr itten note, howeve r, the City responde d th at t h e note was written by “someone ” in the BMO. Petitioner’s counsel objected, arguing that “that is the worst form of hear say .” The AL J did
not rule on the objection but, rathe r, went on to question why the City wo u l d have ever y rele vant form except for the form removing Sumay a from petitioner’s benef its. King v. Paul J. Krez Co.
, 323 I ll. App. 3d 532, 534 (2001) (“A n alleg ed err or is not prese rved for revie w if the trial court fails to rule upon it.”). Thus, not only did petitioner fail to obtain a ruling on his objection, b u t t h e re cord does not show that the AL J ultimately considere d the handwr i t t en notation. Petitioner argues the AL J ’s statement that the form to remove petitioner’s spouse “shows that t h at’s the date on which he attempted to delete [ Sumay a]” demonstrates that t h e ALJ considere d the handwr itten notation. We disag ree

. At best, the AL J ’s statement a ccur ately ref lects that the box for deleting a spouse wa s chec ked and the date on the form was listed as October 28, 2005. E v en as s u m i n g the AL J considere d the written notation’s sug g estion that petitioner had not previously attempted to remove Sumay a from his benef

its, the not ation would have been cu m u l at i ve of L andoch’ s aff idavit, which petition er has not shown to be incompetent or improperly admitted into evidenc e. Acc ording ly
, any err or was harmless. See Sudzus v. Departm e n t o f E m p lo y m e n t Security
, 393 I ll. App. 3d 814, 82 8 ( 2 0 0 9 ) (whe re sufficie nt competent evidenc e supports an administrative decision, the administration’s improper admission of hear say does not constitute prejudicia l

err or). ¶ 16 Next, petitioner asser ts that the AL J improperly shifted the burden of proof from the City
to petitioner. The City bear s the burden of showing a violation. City of Chicag o Gene ral Rules and Reg ulations § 9.2 (ef f. J uly 14, 1997). Wit h that said, “[i] n g ener al, the case may be prese nted via a City repr esentative, live sworn testimony and/or by sworn signed prima facie docume ntation .” (Emphasis added.) City o f C hicag o Gene ral Rules and Reg ulations § 9.2 (ef f. J uly 14, 1997). I n addition, the City mu s t p ro ve by the preponde ranc e of the evidenc e that a violation exists. C ity of Chicag o Gene ral Rules and Reg ulations § 8.7 (eff

. J uly 14, 1997); Chicag o Municipal Code § 2-14-076 (amende d Apr. 29, 1998). I f t he AL J deter mines that the City has provided sufficie nt evidenc e for the case to move forwa rd, those alleg ations may be contested and defe nses may be prese nted. City of Chicag o Gene ral Rules and Regulations § 9.3 (eff . J uly 14, 1997). ¶ 17 Petitioner argues that the City failed to prese nt any witnesses from the BMO who could be cross-e x amined reg arding the BMO’ s proce dures for handling petitioner’s documents. To

-6-the extent petitioner has sug g ested below and on appea l that the City prese nted no “witness”

or “testimony
, ” we note that petitioner’s definition of these terms is unduly narr ow. “Te stimony ” is “[e]vidence that a competent witness under oath or aff irmation g ives at trial

or in an affidavit

or deposition.” (Empha sis added.) B lack’ s L aw Dic tionary 1613 (9th ed. 2009). Simi larly
, a “witness” is “[o] ne who g ives testimony under oath or aff irmation (1) in
person, (2) by oral or written deposition, or (3) by affidavit .” (Emphase s added.) Bla ck’s L aw Dictionary 1740 (9th ed. 2009). As stated, the City was permitted t o , and did, prese nt evidenc e throug h L ochner ’s aff idavit. I n addition, petitioner was entitled to invoke his rig ht
to cross-e x amine that witness by reque sting that the AL J subpoena her. Thus, the rec ord does
not support his asser

tion that the City failed to prese nt any witnesses that could be crossexamined. Although petitioner had no duty to cross-e x amine L ochner
, p et i t i o n er was require d to use proper administrative proce dures if he chose to do so. I t does not follow that the City failed to pre sent proof of a violation by

the prepondera

nce of the evidenc e mer ely by relying on sworn, signe d prima f a cie documentation. Acc ording ly
, petitioner has not shown that the AL J improperly shifted the burden to him mere ly beca use administrative rules require d him to request a subpoe na in orde r to cross- examine the City ’s witness. ¶ 18 Fi n al l y , p et i tioner asser ts that the AL J err oneously deter mi n ed t h at h e v i o l at ed t h e Chicag o Municipal Code by failing to pay a debt owed to the City

. Chicag o Municipal Code § 1-20-090 (ame nded J uly 21, 2004) (“The failure to pay any debt due [t o the City ] *** afte r the period g rante d for pay ment has expired *** shall constitute a violation of this Code.” ). Petitioner challeng es the AL J ’s finding that he failed to prom p t l y i n fo rm the City of his divorce afte r the judg ment was entered. An ag ency ’s factual findings are g iven substantial defe renc e and may be reve rsed only if they are ag ainst the manifest weight of the evidenc e. Kouzoukas v. Retireme nt Board of the Policeme n’s Annuity & Bene fit Fund
, 234 I ll. 2d 446, 463 (2009). An administrative ag ency ’s fa ctual finding s are ag ainst the manifest weig ht of the evidenc e only wher e the opposite conclusion is clea rly evident and the mere fac t that an opposite conclusion is rea sonable will not justify reve rsal. W olin v. Departme nt of

Financial & Professional Regulation
, 2012 I L App (1st) 112113, ¶ 19. I t is the administrative ag ency ’s responsibility to weig h the evidenc e and deter mine the cre dibilit y of the witnesses. Pesoli v. Departme nt of Employme nt Security
, 2012 I L App (1st) 111835, ¶ 26. Fur thermore
, the
ag ency may draw rea sonable infere nces from the evidenc e. Y o u n g -Gibson v. Board of Education of the City of Chi cago , 2011 I LApp (1st) 103804, ¶ 56. ¶ 19 Her e, the City prese nted the aff idavit of L andoch, who stated that petitioner did not notify the BMO of his divorce until October 28, 2005, we l l af t er the divorce
, in violation of the handbook. We cannot ag ree with petitioner’s sug g estion that this evidenc e was overly vague. Cf. W alsh v. Board of

Fire & Police Commissioners
, 96 I ll. 2d 101, 108 (1983) (whe re vague p s y chiatric evidenc e was prese nted, the administrative ag ency ’s decision to dischar ge an office r was require d to be vacated)

. In addition, althoug h petitione r co n tends L andoch did
not work at the BMO at any rele vant time, the rec ord does not reve al when she was employ ed by the City

. More importantly
, L andoch purported to testify to the absenc e of the requisite spouse-re moval fo rm as a keepe r of business rec ords, not as an individual with
persona l knowledg e. I n addition, it was th e ab s ence of the spouse-re moval form from the BMO’ s rec ords, in contra st to the pr esenc e of all other documents, that led the AL J to find

-7-that petitioner did not file it. This infere nce was entirely rea sonable. Acc ording ly
, L andoch’ s

alleg ed lack of persona l know ledg e has littl e rele vance to the court’s fac tual finding in this

case

. ¶ 20 Petitioner also arg ues that the City ’s handbook and enrollment forms we re inconsistent
reg arding whether he was suppose to remove his spouse throug h the form or throug h an automated phone sy stem. Petiti oner’ s contention would be more persua sive, howeve r, had he testified that he was actua lly confuse d reg ardinghow to remove Sumay a fr om his plan. On the contra

ry , petitioner testified that he knew that he had to submit a form to delete Sumay a and did so promptly . Despite his te stimony
, the AL J appar ently found petitioner’s testimony was not cre dible. Petitioner further argues that his testimony was corr oborate d by circ umstantial evidenc e that he obtained cer tified documenta t ion of his divorce and

rema rriag e, demonstrating that he was not att empting to hide his divorce from the City

. Nonethele ss, the City

has asse rted only that petitioner fa iled to report his divorce , whether by oversig ht or otherwise, not that he deliberately hid it in order for Sumay a to continue

rec eiv in g cover ag e. Simi larly
, petitioner argues that his motivation for obtaining the cer tified documentation was clea

rly to satis fy the BMO’ s formality require ments. Even if the AL J
ag ree d that this was petitioner’s intention, the AL J was still entitled to find that p etitioner failed to follow throug h by submitt ing the require d documentation to the BMO. Acc ording ly
, we f ind the AL J ’s dec ision was not ag ainst the manifest we ight of the evidenc e. ¶ 21 For

the fore g oing r easons, we aff irm the judg ment of the c ircuit court a nd the DOAH

.

¶ 22 Affir

med.

-8-