The opinion
ILLINOIS OFFICIAL REPORTS
Appellate Court
Soto v. Board of Fire & Police Commissioners, 2013 IL App (2d) 120677
Appellate Court RAYMOND E. SOTO, Plaintiff-Appellant, v. THE BOARD OF FIRE
Caption AND POLICE COMMISSIONERS OF THE CITY OF ST. CHARLES,
ILLINOIS, and its Members, JAMES N. URHAUSEN, CRAIG A.
LIVERMORE, DONALD L. HAINES, and SANDRA S. WRIGHT,
Defendants-Appellees.
District & No. Second District
Docket No. 2-12-0677
Filed March 21, 2013
Held The trial court’s order affirming the decision of defendant board of fire
(Note: This syllabus and police commissioners rescinding an offer of a full-time firefighter
constitutes no part of position to plaintiff lacked factual findings sufficient for judicial review;
the opinion of the court therefore, the order was reversed and the cause was remanded to allow
but has been prepared the board to make and issue such findings.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Kane County, No. 11-MR-556; the Hon.
Review Thomas E. Mueller, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Steven T. Mann, of Law Office of Steven T. Mann, of Warrenville, for
Appeal appellant.
John C. Broihier, of Naperville, for appellees.
Panel JUSTICE JORGENSEN delivered the judgment of the court, with
opinion.
Presiding Justice Burke and Justice Hudson concurred in the judgment
and opinion.
OPINION
¶1 Plaintiff, Raymond E. Soto, appeals the trial court’s May 22, 2012, decision affirming
the decision of defendant, the Board of Fire and Police Commissioners of the City of St.
Charles (Board), to rescind the Board’s offer of a full-time firefighter position to plaintiff.
Plaintiff requests that we reverse the trial court and remand for further proceedings or
discovery. For the following reasons, we reverse and remand.
¶2 I. BACKGROUND
¶3 In February 2004, Soto began working for the St. Charles fire department as a paid, on-
call firefighter and paramedic. On October 24, 2008, Soto filed an application for a full-time
firefighter position. The 12-page application for employment reflects that Soto served eight
years in the United States Marine Corps, and was honorably discharged therefrom in
February 2000. Thereafter, Soto obtained an associate’s degree in nursing, received training
in “CPR, paramedic, pediatric advanced life support, international trauma life support, [and]
advanced cardiac life support,” and held a “paramedic, firefighter II” professional license.
The application also reflects that Soto took civil service exams for fire departments in
Carpentersville and Sugar Grove, but that the Sugar Grove list had expired. The application
asked whether Soto was ever placed on a civil service list and then subsequently either not
hired or rejected. He answered “no.”
¶4 The application included a section requesting Soto’s employment history for the past 10
years, with his present and most recent jobs to be listed first. Soto listed two jobs as being
presently held, with First Care Ambulance Service and the St. Charles fire department,
followed by six former positions. Soto listed eight references and wrote a statement that “the
challenges and rewards I have experienced serving the city of St. Charles [have] given me
a sense of pride I have not felt since my military service. I have dedicated my efforts to
achieving the training and licenses to become an asset to the team and community I have the
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privilege to serve.” Finally, Soto submitted to the Board his resume, which listed the
following as his three most recent employers: Elgin Medi Transport Inc. (paramedic from
“7/10-Present”), the St. Charles fire department, and First Care Ambulance Service.
¶5 Also in the fall of 2008, Soto took the Board’s written examination for full-time
firefighter-paramedic employment. Before those results were posted, on May 6, 2009, the
Board interviewed Soto regarding the full-time firefighter position. On June 1, 2009, the
Board posted the final eligibility register: Soto placed third out of 19 candidates, with a score
of 97.015.1
¶6 On May 19, 2011, the City of St. Charles eliminated its paid, on-call program. However,
on May 23, 2011, the Board offered Soto a probationary appointment as a firefighter
paramedic, “conditioned upon successfully passing” a psychological examination,
background investigation, medical examination, functional capacity evaluation, and drug
screen. The offer letter advised Soto that the starting salary for the position was $53,962, and
enclosed were forms for him to complete and bring with him to his orientation. “Your start
date will be determined and is specifically conditioned upon passage of all the
aforementioned examinations.” Soto was advised that he would be contacted by Denice
Brogan of the City’s human resources department to schedule postoffer testing, confirm the
start date, and coordinate his orientation.
¶7 On June 16, 2011, Detective Andrew Lamela wrote a memorandum regarding his
background investigation of Soto. That memorandum and accompanying documentation in
the record reflects that Soto has no criminal history. Further, Soto received multiple medals
and commendations in the Marine Corps.
¶8 Lamela briefly summarized that in February 2010 Soto was interviewed by the Geneva
police department after he had allowed a friend’s adult daughter, who was intoxicated, to
spend the night at his house. Soto and the woman went to sleep in separate rooms; at some
point, however, the two slept, fully clothed, in the same bed. The next day, the woman went
to the hospital for unexplained bruises and pain and bleeding in her rectal area. The woman
“was insistent that she was not accusing Soto of performing a sex act upon her,” but she
could not explain her injuries. The woman never accused Soto of sexual assault and later
became uncooperative. Soto confirmed that there was no sexual contact between himself and
the woman, and he was cooperative with questioning. No charges were filed against him.
¶9 On June 16, 2011, Lamela interviewed Soto regarding the position. He noted that Soto’s
“appearance was casual.” Lamela reviewed with Soto his credit and military history, and they
discussed why Soto wished to be a firefighter. They further discussed the aforementioned
Geneva police report; Soto noted that (despite no charges having been filed) he had informed
his supervisor at the St. Charles fire department of the incident. Lamela’s report next states:
“I asked [Soto] if he was going to continue to work at First Care Ambulance if he was hired
with the St. Charles Fire Department. [Soto] stated that he would resign from First Care
Ambulance if he was hired full time with the St. Charles Fire Department. I advised that I
had no further questions for [Soto] and ended the interview.”
1
The top four scores were 99.600; 97.765; 97.015 (Soto); and 92.960.
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¶ 10 Lamela’s June 16, 2011, memorandum summarized his interviews with three of Soto’s
neighbors and, on September 21, 2011, Lamela amended his report to include summaries of
additional interviews he conducted with persons who know Soto. We summarize below the
interviews from both reports:
NAME RELATIONSHIP COMMENTS
1 Dawn Vance Neighbor Has known Soto for six years. Soto is very friendly,
respectful, and always willing to help his
neighbors. Soto helped Vance install a new shed
door. He is very proud of his military service. Soto
has never caused any trouble in the neighborhood,
Vance is happy to have Soto as a neighbor, and she
had nothing negative to say about him.
2 Ron Vial Neighbor Does not know Soto personally, but has seen him in
the neighborhood. Soto has never caused any
problems in the neighborhood, and Vial had
nothing negative to say about him.
3 Scott McNees Neighbor Does not know Soto personally, but has seen him in
the neighborhood and they exchange greetings.
Soto has never caused any problems in the
neighborhood, and McNees had nothing negative to
say about him.
4 Greg Present employer Has supervised Soto for one year. When asked if he
Ingraham and Supervisor/ had received any complaints against Soto,
First Care Ingraham stated that he has received complaints
Ambulance only from Soto’s female coworkers. He stated that
Soto has a bad attitude toward his female
coworkers when he is partnered with them. Soto
has been known for talking down to them. and
ignoring their input when they have “on-calls.”
Ingraham stated that Soto had been disciplined for
his actions toward his female coworkers and had
been suspended for not completing his continuing
education. Ingraham stated that, if assigned to work
with a female coworker, Soto would not be fine to
work with. Ingraham believes that Soto is not a
hard worker, that he does only what he needs to do
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to get by, and that he is hard-headed and not much
of a “people person.” Ingraham stated that, if kept
away from female coworkers, Soto might be “ok”
as a firefighter. Soto has never been tardy and is
always punctual.
5 Derek Piec Present Employer Piec was Soto’s paid, on-call lieutenant and has
and Supervisor/ known Soto for about 10 years. Piec stated that,
St. Charles Fire while he served as Soto’s supervisor, Soto was
Department never late and never missed a day of work. He
never received any complaints against Soto, and he
described Soto as outgoing and a hard worker. He
does not know of any shortcomings Soto might
have. Soto has never been disciplined. Piec said
that Soto would do well as a St. Charles firefighter
and Piec had nothing negative to say about Soto.
6 Kevin Present Has known Soto since Soto began working as a
Christensen Employer/St. paid, on-call firefighter (in 2004). Soto has a good
Charles Fire work ethic and completes all assignments.
Department Christensen described Soto as a hard worker and a
“good guy.” Christensen did not know of any
shortcomings Soto might have, he believes Soto is
a hard worker and would make a good firefighter,
and he would be glad to have Soto in his
department. Christensen did not have anything
negative to say about Soto.
7 Anthony Present Centimano has worked with Soto for a few years.
Centimano Employer/St. Soto is a “good guy” and very hard worker, never
Charles Fire complains, and is very intelligent. Soto does not
Department have any shortcomings, he would be a good
firefighter, and Centimano did not have anything
negative to say about Soto.
8 Tony Cavallo Present Cavallo has known Soto for around six years and
Employer/St. worked with him at the fire department. He
Charles Fire described Soto as a “great guy” and a hard worker
Department who follows orders without questions. Cavallo
stated that Soto has good character and is always
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willing to work, and he did not have anything
negative to say about Soto. When asked whether he
knew of any shortcomings Soto might have,
Cavallo stated that, as a former Marine, Soto
sometimes has “that type of attitude” and does not
always look at other ways to do things, but that
“this is not a bad thing.”
9 George Former neighbor Koczwara has known Soto for about five years and
Koczwara used to be his neighbor. Koczwara described Soto
as a “very good guy,” outgoing and friendly, with
no known shortcomings. Koczwara said that Soto
has always wanted to become a firefighter, is very
dedicated to becoming one, takes orders well, has a
great attitude, and is very enthusiastic. He believed
Soto would make a great firefighter and he did not
have anything negative to say about him.
10 Jamie Friend Schindlbeck has known Soto for about 25 years;
Schindlbeck they met in grade school have been friends ever
since. He stated that Soto is a great person, trusting,
always willing to help, a best friend, and has no
shortcomings. Schindlbeck stated that Soto would
“do great” as a firefighter because he is very
passionate about wanting to be a firefighter. He had
nothing negative to say about Soto.
11 Richard Friend’s Father McLaughlin explained that his son and Soto grew
McLaughlin up together, and that he has known Soto for about
30 years. He described Soto as a “good guy,”
easygoing, and a nice person who gets along with
everyone. Soto has no known shortcomings.
McLaughlin stated that Soto has been looking
forward to the opportunity of becoming a
firefighter for a long time, and he would be a good
firefighter because he is very dedicated to the job.
McLaughlin had nothing negative to say about
Soto.
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12 Kevin Renner Friend Renner has known Soto since grade school, and
they have been friends ever since. Soto is goal-
driven, disciplined, hard working, fun loving, and
someone who knows right from wrong. He remains
calm and handles pressure well. When asked if he
knows of any shortcomings Soto might have,
Renner stated that Soto sometimes needs to have
instructions reiterated and might ask for
clarification, but, “once he gets it, he gets it.”
Renner said Soto would be an amazing firefighter
and has always wanted to become one. Renner had
nothing negative to say about Soto.
¶ 11 According to Soto’s complaint, on July 13, 2011 (prior to Lamela’s amended report, such
that only the interviews with neighbors had been conducted), Brogan contacted Soto and
informed him that he was being denied a full-time position, most likely due to the results of
his background check. After repeated inquiries, the specifics remained unexplained and, so,
on August 18, 2011, Soto filed an administrative review action in Kane County. Soto’s
counsel was then informed that a decision regarding Soto’s employment was still pending.
Accordingly, on October 5, 2011, Soto voluntarily dismissed the Kane County lawsuit.
¶ 12 The next day, on October 6, 2011, Lamela amended his report for a second time. The
second amended report states that Lamela was informed by his commander (to whom the
memorandum was also addressed) that Soto was presently employed by Elgin Medi
Transport (which Soto had listed as a present employer on his resume, but not the
application). Lamela informed his commander that this was “new information.” Lamela
informed his commander that, when he first interviewed Soto, he asked Soto if the
application was updated and whether he wished to make any changes (although this is not
reflected in the initial memorandum). Soto did not offer any changes and, after going through
the application, Soto did not make any changes. Further, Lamela noted that, in the initial
interview, Soto was asked whether he would resign from First Care Ambulance if offered a
firefighter position. Soto “at no point informed me that he was not employed with First Care
Ambulance during this background investigation. [Soto] also never provided me with his
current employment information even after I asked him if he wanted to update his
application.” Lamela then interviewed two persons at Elgin Medi Transport, who stated as
follows:
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NAME RELATIONSHIP COMMENTS
1 Thomas Owner of Elgin Medi Soto has never been the subject of discipline or the
Crawford Transport target of an internal investigation, although, in
June 2011, he was written up for being late to
work on two occasions. Overall, Crawford
believed Soto would be a good addition to the fire
station. He explained that Soto would not be the
first guy to clean the truck, but that he would do so
if asked. He thought Soto would feel comfortable
with the firehouse atmosphere. Crawford said that
Soto had never been in trouble with his agency,
and that he did not know why Soto would not have
informed Lamela of his employment there.
Crawford said that Soto would not be promotable
within his agency, because physical appearance
means a lot and Soto does not pay attention to his
personal appearance. “There are some employees
who shine their shoes before coming to work, and
there are some employees who scrape their shoes
before coming to work.” Soto is the latter.
Crawford had not worked on an ambulance for a
few years and, because he would not know what it
was like to work with Soto, he told Lamela to
speak with Soto’s supervisor.
2 Thomas Supervisor at Elgin Soto is very easygoing, helpful, always on time,
Mikulski Medi Transport and never causes problems. As for the two tardy
occasions in June 2011, Mikulski stated that Soto
always calls if he is running behind. Mikulski
stated that Soto works well with female employees
and he has never received any complaints from
female employees about Soto. Soto has never been
disciplined or the target of an internal
investigation. Mikulski did not know of any
shortcomings Soto might have. He thinks Soto
would make a great firefighter.
¶ 13 On October 19, 2011, the Board held a meeting. The minutes reflect that, after a call to
order and a roll call, the Board, at 5:09 p.m., retired to executive session to discuss
“personnel.” Twelve minutes later, at 5:21 p.m., the Board returned and voted to withdraw
the conditional offer of employment with the fire department (the minutes do not mention
Soto by name). Discussion was then had about considering changes to the rules and
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regulations. The meeting adjourned at 5:35 p.m.
¶ 14 On November 1, 2011 (six months after the offer of employment), the Board wrote Soto
that: “after review of employment and background information, [we] have made the decision
to rescind the conditional offer of employment issued on May 23, 2011.”2
¶ 15 Soto filed an action for administrative review on December 5, 2011. After receiving
briefs on the issues, the trial court determined that, discounting and giving “no weight
whatsoever” to the Geneva police report that resulted in no charges against Soto, the record
contained interviews (specifically, with Thomas Crawford from Elgin Medi Transport and
Greg Ingraham of First Care Ambulance) reflecting certain problems with Soto, including
that he would not be promotable within Crawford’s agency, that there had been complaints
about Soto from female coworkers, that Soto had not complied with continuing education
requirements, and that he was hard-headed and not much of a “people person.” The court
acknowledged “ample evidence” that painted a different picture of Soto, but determined that
the fact that “negative reports exist” is sufficient to find that the Board’s decision is not
contrary to the manifest weight of the evidence. The court concluded, “As the defense noted,
if there are other applicants with a better work history that are available, who is the court to
tell the Board that they must overlook what might be significant information which weighs
against hiring Mr. Soto.” On June 22, 2012, the court denied Soto’s motion for
reconsideration.
¶ 16 II. ANALYSIS
¶ 17 Soto’s arguments on appeal can be summarized as challenging the Board’s failure to
issue standards for passing the background examination and its failure to issue findings for
the trial court to review. He also argues that the record the trial court reviewed was replete
with evidence that was either irrelevant or inadmissible hearsay.
¶ 18 The Board asserts that Soto clearly knew the standards for employment and that, because
his offer of employment was conditioned on a background check, Soto had no claim to the
firefighter position. The Board does not, however, directly dispute Soto’s claim that it failed
to make any findings. Instead, it argues that the record contains evidence to support its
decision, such as: (1) Ingraham’s report that Soto had a bad attitude toward female
coworkers, is hard-headed, and is not much of a “people person”; and (2) Crawford’s report
that Soto had been disciplined for reporting late to work and would not be promotable within
Crawford’s company (because he did not pay attention to his personal appearance). The
Board questions whether it should have to hire an applicant who is not a hard worker or a
“people person,” and is hard-headed and unkempt, “when other applicants with a better work
history may be available.” The Board also notes that it could be liable for negligent hiring
if, despite the report of Soto’s poor attitude toward women, it were to hire him and he were
later charged with sexual harassment or sexual abuse. For the following reasons, we agree
with Soto that the Board’s failure to make findings regarding its hiring decision requires a
2
There is no dispute that Soto successfully satisfied the other conditions of the offer
(psychological examination, medical examination, etc.).
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remand for it to do so.
¶ 19 Before delving into the substantive issues, we provide some background of the statutory
provisions, goals, and standards that guide our review. First, the Board’s hiring process falls
under the purview of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/10-2.1-1 et
seq. (West 2010)), which, in section 10-2.1-6, establishes requirements for the examination
and disqualification of fire department applicants (65 ILCS 5/10-2.1-6 (West 2010)). The
Municipal Code provides that the Administrative Review Law (Review Law) (735 ILCS 5/3-
101 et seq. (West 2010)) applies to and governs proceedings for judicial review of final
administrative decisions of boards of fire and police commissioners. See 65 ILCS 5/10-2.1-
17 (West 2010); see also Burgess v. Board of Fire & Police Commissioners, 275 Ill. App.
3d 315, 320 (1995) (“all final decisions rendered by boards of fire and police commissioners
constituted under the [Municipal Code], including those regarding hiring, are reviewable
exclusively under the Administrative Review Law” (emphasis in original)); Mueller v. Board
of Fire & Police Commissioners, 267 Ill. App. 3d 726, 731-32 (1994) (the Review Law
provides the exclusive method of review of all final decisions, including hiring decisions, of
a board).
¶ 20 The Board’s hiring decisions are subject to review because there exist important statutory
objectives for hiring applicants on the basis of ability and merit. Mueller, 267 Ill. App. 3d
at 731-32.
“[T]he legislature intended that the Board promulgate rules to provide for the orderly
appointment and promotion of employees based on public, competitive, qualifying
examinations and for the removal of such employees only for cause. [Citation.] These
functions are intertwined in the rules provisions which are intended to provide for a
unified system–premised on merit, the ability to perform, and good character–for the
employment, retention, and discharge of members of fire and police departments.” Id.
The Municipal Code’s statutory scheme seeks to “guarantee access to eligibility for
employment based on fair consideration of the applicants’ qualifications.” Id. at 732.
Accordingly, “[i]t is the court’s duty to protect the rights of applicants for employment and
to make certain that a denial of employment is predicated upon proper legal principles.”
(Emphasis added.) Id. at 734; see also Cremer v. City of Macomb Board of Fire & Police
Commissioners, 260 Ill. App. 3d 765, 767 (1994).
¶ 21 In keeping with the Municipal Code’s intention that appointments to fire department
positions are public and premised on merit, once Soto achieved placement on the eligibility
list, he acquired a legal right to ensure that the decision to deny him employment was not
contrary to the manifest weight of the evidence or based on improper factors.3 See Cremer,
260 Ill. App. 3d at 766. “The posting of an eligibility list carries legal significance. [Citation.]
While it does not give a candidate a vested right to a position, it does give the candidate
3
Here, there is no challenge to Soto’s standing to bring this lawsuit or to the propriety of
placing Soto on the eligibility list that, in turn, gave rise to that standing. Indeed, the Board agrees
that, when it posted its eligibility list, Soto became eligible and, in turn, acquired standing to ensure
that proper hiring procedures were thereafter followed.
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standing to assert that the procedure created by the statute has not been followed.” Id. As
such, although the Board is correct that Soto had no entitlement to the position, its decision
rejecting Soto for the position remains one “which affects his legal rights, duties or
privileges” and, accordingly, is subject to our review. Mueller, 267 Ill. App. 3d at 734;
Schickedanz v. City of O’Fallon, 248 Ill. App. 3d 746, 748 (1993) (board’s notification to the
plaintiff, who had been placed on a final eligibility roster, that he would not be hired
constituted a final administrative decision that affected the legal rights, duties, and privileges
of the plaintiff and was, therefore, subject to review).
¶ 22 In a case arising under the Review Law, we review the decision of the administrative
agency, not the determination of the trial court. Wade v. City of North Chicago Police
Pension Board, 226 Ill. 2d 485, 504 (2007). The administrative body has a duty to provide
the trial court with a sufficiently complete record of proceedings. Mueller, 267 Ill. App. 3d
at 733. Our review extends to all questions of law and fact presented by the record (Wade,
226 Ill. 2d at 504), and the findings and conclusions of the administrative body on questions
of fact shall be held to be prima facie true and correct. 735 ILCS 5/3-110 (West 2010). The
reviewing court is limited to ascertaining whether such findings of fact are against the
manifest weight of the evidence, i.e., whether the opposite conclusion is clearly evident. City
of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204 (1998).
Nevertheless, while we may not reweigh the evidence, we will seek to determine whether the
decision of the administrative body is “ ‘just and reasonable in light of the evidence
presented.’ ” Murbach v. Anderson, 96 Ill. App. 3d 1015, 1018 (1981) (quoting Davern v.
Civil Service Comm’n, 47 Ill. 2d 469, 471 (1970)).
¶ 23 Here, our ability to ascertain whether the Board’s findings that resulted in its rescission
of the employment offer were contrary to the manifest weight of the evidence is constrained
because the Board made no findings as to the basis of its decision. The record reflects only
that the Board retired to executive session to discuss “personnel”; it then issued a letter to
Soto stating that, upon its “review of employment and background information,” the
conditional offer of employment was rescinded. The Board does not assert on appeal that it
did, in fact, make findings. Instead, it argues that certain statements or information in
Lamela’s report are sufficient to support its “opinion.” We, however, do not know what
single factor or combination of factors the Board (as opposed to counsel offering argument
on the Board’s behalf) considered fatal to Soto’s employment. As the record is silent
regarding what findings it determined rendered Soto ineligible for employment, the Board
could have, theoretically, withdrawn the offer for improper reasons. For example, although
the Board suggests on appeal that Lamela’s report included information speaking to Soto’s
character (see 65 ILCS 5/10-2.1-6(j) (West 2010) (no person shall be appointed to the fire
department unless he or she is a person of good character)),4 the Board made no finding that
4
Section 10-2.1-6(j) of the Municipal Code continues that no person may be appointed if he
or she is a habitual drunkard, gambler, or if he or she has been convicted of a felony or a crime
involving moral turpitude. Nevertheless, with a few specified exceptions, a candidate may not be
disqualified on the basis of a record of misdemeanor convictions or of arrests (for any reason) that
resulted in no conviction. 65 ILCS 5/10-2.1-6(j) (West 2010).
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Soto was not a person of good character, let alone its bases for so finding.
¶ 24 The Board’s arguments on appeal, pointing us to evidence in the record that could
support its decision, essentially suggest that explicit findings are unnecessary where the basis
for its decision might be obvious upon reviewing the record. Indeed, the trial court essentially
adopted this approach where it found that, as long as two negative reports were present in the
record, there was a basis for the Board’s decision and it was not contrary to the manifest
weight of the evidence. However, we do not agree with this approach: it puts this court in the
position of doing what the Board was obligated to do–identifying in the record reasons that
could justify the Board’s decision. This ultimately puts us in a position of advocacy for the
Board.
¶ 25 We find instructive the decision in Schmeier v. Chicago Park District, 301 Ill. App. 3d
17 (1998), where the court faced a similar dilemma. There, the court was asked to review a
personnel board’s decision that lacked factual findings. The personnel board argued that its
findings were implicit, were supported by the record, and were not contrary to the manifest
weight of the evidence. The court, however, declined to:
“adopt the Board’s suggested modus operandi and (1) assume that it made factual
findings that would render its order not an abuse of discretion, (2) search the record to
figure out what such findings it could have made, and (3) uphold those findings that we
guess the Board to have made unless they are against the manifest weight of the
evidence. There are serious problems with this suggested approach, not the least of which
is that it would appear to eliminate the possibility of a finding that the agency had abused
its discretion. When an agency states its factual conclusions and states what action it is
taking based on those findings, this court may determine whether the agency has abused
its discretion and will reverse when it has done so. [Citation.] Under the Board’s
proposal there is no possibility of such a finding unless its findings are against the
manifest weight of the evidence, because we must assume that the agency made factual
findings which would support its action. Effectively, this court would be an advocate for
the agency.” Id. at 33-34.
¶ 26 The court in Schmeier further noted that, where there could be multiple bases for the
agency’s decision, yet no findings were made, the appropriate course of action is generally
to remand the case to the agency for it to make findings.5 Id. at 34; see also Mueller, 267 Ill.
App. 3d at 734 (where the plaintiff’s name was removed from the eligibility list for a
firefighter-paramedic position for allegedly failing a psychological examination, but the
board did not provide any details concerning the failed examination, the court noted that the
trial court has the power to make any order that it deems proper to obtain from the board a
record sufficient for judicial review; it reversed and remanded for the board to provide
appropriate documentary evidence concerning its decision so that the court could examine
5
Interestingly, in Schmeier, the court did not remand: it determined that the record reflected
only one possible basis for the personnel board’s decision and that this finding, if it were to be made
on remand, would be contrary to the manifest weight of the evidence because it would be based on
incredible testimony and hearsay. Schmeier, 301 Ill. App. 3d at 35-36.
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whether the decision was proper); Cremer, 260 Ill. App. 3d at 766-67 (where the board
refused to hire the plaintiff as a firefighter because he allegedly failed a mental examination,
but it withheld the results of the plaintiff’s examination, the court, after reiterating its duty
to protect applicants for employment and to ensure that denial of employment is based on
proper legal principles, noted that it could not fulfill that duty if the board were allowed to
withhold the results of the plaintiff’s examination; the court reversed and remanded, ordering
that the results be provided to the plaintiff as part of the evidence before the board). Here,
we agree with the foregoing authority that, where there could be multiple bases for the
decision, but no findings are made, remand for the Board to issue findings is appropriate.
¶ 27 Also, the Board’s decision to rescind an offer of employment to Soto, who achieved
placement on the eligibility list, might have meaningful future repercussions for him, as
reflected by the fact that the Board’s own application for employment asks applicants
whether they have ever been placed on a civil service list only to be subsequently either not
hired or rejected. Because the Board’s decision could affect Soto’s ability to obtain such
positions in the future, and given the Municipal Code’s parameters, it is incumbent on a
reviewing court to determine whether the Board relied on improper factors in removing Soto
from the list or whether its decision was against the manifest weight of the evidence. Instead,
Soto and this court received only a conclusion, i.e., the decision, and the Board asks us to
simply assume that its conclusion was based on the two reports to which it directs our
attention on appeal (Ingraham and Crawford).6 While we agree that even one piece of
credible information may theoretically outweigh other evidence, here the Board provided no
findings as to whether it, in fact, relied on those reports, why it relied on those reports, or
whether it relied on any potentially improper factors present in the record. Again, we have
no findings to explain why the Board came to its decision and we will not make assumptions
on the Board’s behalf.
¶ 28 We disagree with Soto that an evidentiary hearing must be held before a hiring decision
is made. The Municipal Code provides that hearings must be conducted only when removing
or discharging a member of the fire department (65 ILCS 5/10-2.1-17 (West 2010)), not
when denying an applicant a position. Contrary to Soto’s assertion, section 10-2.1-6(j) does
not suggest otherwise. That provision, after summarizing that only certain misdemeanor and
other convictions may disqualify a person, states that “[a]ny such person who is in the
department may be removed on charges brought and after a trial as provided in this Division
2.1.” (Emphases added.) 65 ILCS 5/10-2.1-6(j) (West 2010). We read this sentence to mean
that persons already appointed who are convicted of one of the disqualifying crimes may be
removed only after a hearing in compliance with section 10-2.1-17. See also Beazley v.
6
On appeal, the Board makes no argument that the Geneva police report supports its
conclusion. Indeed, at oral argument the Board conceded that, as there were no charges brought
against Soto, and as even most misdemeanor convictions are not sufficient bases for disqualification
from employment (see 65 ILCS 5/10-2.1-6 (West 2010); Murbach, 96 Ill. App. 3d at 1019 (finding
board’s rejection of an applicant for drug use both contrary to the manifest weight of the evidence
and contrary to law)), it would be legally improper to view that incident as a basis to disqualify Soto
from employment.
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Wosik, 119 Ill. 2d 437, 440 (1988) (after the city’s personnel department decided not to hire
him, an applicant for employment as a probationary police officer had no right to a hearing
to review his qualifications for the position; the supreme court noted that there was no statute
or rule creating such a right, the city’s personnel rules provided grievance hearings only for
those already employed, and probationary police officers may be discharged without a
hearing and, so, it follows that an unsuccessful applicant for the position of probationary
police officer need not be given a hearing).
¶ 29 Further, we note that we do not agree with Soto that the Board could not consider hearsay
evidence, for even the positive reports about him are hearsay. Finally, we do not find
practicable Soto’s suggestion that the Board must issue standards for achieving a passing
score on the background check; rather, it is inherent in any background check that the
information derived therefrom will be considered alongside other information (applications,
resumes, interviews with the candidate, etc.), and the inquiry is then whether, in light of all
the information before it, the Board’s decision was contrary to the manifest weight of the
evidence.
¶ 30 Nevertheless, the aforementioned questions about what the Board considered, what
weight it gave to some reports, and whether or why those reports reflect on a disqualifying
factor as outlined in the Municipal Code all highlight the importance of the requirement that
the Board issue findings for its decision. Our inability to ascertain on review what the Board
did or did not do, and what it did or did not consider, makes remand necessary.
¶ 31 Finally, because we have no findings to review and do not know what the Board relied
on to make its decision, we decline to address the Board’s argument that, if it were to ignore
the negative reports of Soto’s attitude toward women and Soto were later charged with
sexual harassment or sexual abuse, the Board could be subject to a negligent-hiring lawsuit.
Our analysis of this argument would be speculative, given that it is based on reports that
might or might not have formed the basis of the Board’s decision.
¶ 32 In sum, it is our responsibility to ensure that the Board followed legal parameters in
making its decision, and, because there are no findings, we cannot do so. We reverse and
remand for the Board to make factual findings regarding its decision (the Board may, if it
deems necessary, reopen its investigation of Soto’s application). Specifically, if on remand
the Board determines that the offer should remain rescinded and that Soto is disqualified
from employment under the Municipal Code, it must issue findings as to why, based on the
record, it came to that conclusion. See Mueller, 267 Ill. App. 3d at 734 (“the circuit court has
the power to make any order that it deems proper to obtain from the administrative agency
a record sufficient for judicial review”).
¶ 33 III. CONCLUSION
¶ 34 For the foregoing reasons, the judgment of the circuit court of Kane County is reversed
and the cause is remanded.
¶ 35 Reversed and remanded.
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