{ "id": 222648, "name": "COOK COUNTY SHERIFF MICHAEL SHEAHAN, Petitioner-Appellant, v. ALBERT BIANCHI et al., Respondents-Appellees", "name_abbreviation": "Cook County Sheriff Sheahan v. Bianchi", "decision_date": "1998-04-24", "docket_number": "No. 1\u201497\u20140141", "first_page": "310", "last_page": "314", "citations": [ { "type": "official", "cite": "296 Ill. App. 3d 310" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "396 N.E.2d 298", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "executor's appointment not void but merely voidable, as \"[i]t is not the responsibility of someone appointed to this type of office to independently ascertain the merits of the removal of his predecessor or to question the statutory basis of his own appointment\"" } ], "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 641", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3290665 ], "year": 1979, "pin_cites": [ { "page": "654", "parenthetical": "executor's appointment not void but merely voidable, as \"[i]t is not the responsibility of someone appointed to this type of office to independently ascertain the merits of the removal of his predecessor or to question the statutory basis of his own appointment\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0641-01" ] }, { "cite": "662 N.E.2d 512", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 302", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156824 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "303" }, { "page": "303" }, { "page": "306" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0302-01" ] }, { "cite": "632 N.E.2d 87", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "260 Ill. App. 3d 529", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2863490 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "535" }, { "page": "537" }, { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/0529-01" ] } ], "analysis": { "cardinality": 515, "char_count": 9528, "ocr_confidence": 0.734, "pagerank": { "raw": 7.796484210511942e-08, "percentile": 0.4569592667371727 }, "sha256": "24b3d362c1c5fb3fc3a1e9a4fd890f09c6205f5518ee097cb3f0328b59f53401", "simhash": "1:3b8e8106ad889501", "word_count": 1530 }, "last_updated": "2023-07-14T20:46:46.961592+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "COOK COUNTY SHERIFF MICHAEL SHEAHAN, Petitioner-Appellant, v. ALBERT BIANCHI et al., Respondents-Appellees." ], "opinions": [ { "text": "JUSTICE ZWICK\ndelivered the opinion of the court:\nOn August 24, 1994, the Cook County sheriff, Michael Sheahan, filed a complaint alleging that respondent, Albert Bianchi, had fraudulently obtained his Cook County Sheriff\u2019s Merit Board (the Merit Board or Board) certification to work as a correctional officer. Specifically, the sheriff alleged that when Bianchi sat for a certification examination on May 9, 1987, he answered only 56 questions correctly. A passing score was established to be a minimum of 57 correct answers. Although Bianchi answered less than the minimum number of questions correctly, the sheriff alleged that Merit Board employees had assigned passing grades \u201cto certain applicants\u201d regardless of the applicant\u2019s actual performance on the exam. The clear implication was that Bianchi was one of these \u201ccertain applicants,\u201d although the charges did not further specify the nature of fraud committed on Bianchi\u2019s behalf.\nThe Board conducted a hearing concerning the sheriff\u2019s allegations. During that hearing Bianchi testified that he did not cheat on the examination. He admitted that the Board\u2019s recent review of his examination established he had answered only 56 questions correctly, but he asserted that the only explanation for why he had passed the examination was because the test had been mistakenly graded when it was first processed in 1987. The Board offered nothing to rebut Bianchi\u2019s explanation.\nIn rendering its decision on the matter, the Board rejected the sheriffs contention that fraud had played a role in Bianchi\u2019s appointment, finding that the sheriff had failed to prove \u201cby clear and convincing evidence\u201d that Bianchi had committed fraud in obtaining his certification. The Board made the specific finding that Bianchi did not violate either the rules of the Cook County sheriffs department or of the Merit Board in taking his examination, essentially adopting Bianchi\u2019s suggestion that his certification had been the result of an honest mistake.\nThe decision of the Merit Board was affirmed on administrative review in the circuit court, even though the court observed that the Merit Board had applied an improper burden of proof. As the circuit court pointed out in its written order, the sheriff need only establish his allegations against an employee by a preponderance of the evidence to warrant discipline, not prove his case by clear and convincing evidence. 55 ILCS 5/3 \u2014 7012 (West 1996). Nonetheless, the circuit court determined that there was no evidence to support a charge of fraud against Bianchi. The court then determined that, in the absence of any evidence of wrongdoing, Bianchi could not be terminated under the terms of the Counties Code (the Act) (55 ILCS 5/3 \u2014 7001 et seq. (West 1996)) and that a rehearing was unnecessary. Accordingly, the court declined to remand the case.\nThe sheriff appeals from the circuit court\u2019s order, raising two specific issues for our review. First, the sheriff asserts that by establishing Bianchi failed to properly answer 57 questions on his written examination in 1987, the Board must uphold Bianchi\u2019s termination as a matter of law because Bianchi\u2019s appointment was void ab initio. Second, and in the alternative, the sheriff asserts that the Board\u2019s failure to evaluate the case under the proper \u201cpreponderance of the evidence\u201d standard requires that it be reversed and remanded for further consideration. For the following reasons, we reject the sheriffs arguments.\nFor support of its first argument, the sheriff relies principally upon two appellate opinions, O\u2019Grady v. Cook County Sheriffs Merit Board, 260 Ill. App. 3d 529, 632 N.E.2d 87 (1994), and Vanko v. Sheahan, 278 Ill. App. 3d 302, 662 N.E.2d 512 (1996). In O\u2019Grady, this court determined that the Merit Board had the authority under the Act to uphold the voiding of the merit certification of certain individuals hired by a former sheriff \u201cwhere that action was reasonably necessary [by the Board] to execute the duty to investigate and enforce the terms of the Act.\u201d O\u2019Grady, 260 Ill. App. 3d at 535. The Board\u2019s investigation revealed that the entire examination process implemented by the former sheriff had violated the statute and was unlawful because only those individuals who had been hand-picked by the sheriff had been permitted to take the certification examination, a procedure done in direct contravention of the purposes of the Act. O\u2019Grady, 260 Ill. App. 3d at 537. Under such facts, the court held, the Board had the authority to void the certifications of all those who had been certified pursuant to the sham examination.\nIn Vanko, the court addressed the question of whether the Merit Board was required to hold a hearing in all cases in which an employee was discovered not to have been properly certified. The sheriff took the position that when an employee was clearly shown not to have been properly certified, that employee could be fired at will, without a hearing. Vanko, 278 Ill. App. 3d at 303. The court agreed that the sheriff alone could make the factual determination that an employee had never been certified in the face of uncontroverted evidence, but held when the evidence of certification is unclear the question becomes an issue for the Merit Board to determine following a hearing. Because the evidence against Vanko was conflicting as to whether he had ever been certified, the court ordered the cause remanded.\nIn the instant case we reject the sheriffs contention that simply because Bianchi answered less than 57 questions correctly on his 1987 certification examination his appointment must be considered void ab initio. The sheriffs argument fails to appreciate the distinction that generally exists between arbitrary and capricious acts of a state agency or official, which are treated as being void (see O\u2019Grady, 260 Ill. App. 3d at 537), and those that are merely voidable because they are made pursuant to a mistake of fact. In the former case, where the sheriff can establish that a prior appointment was made arbitrarily or capriciously, the employee is treated as having never been certified and so may be discharged by the sheriff at will. See Vanko, 278 Ill. App. 3d at 303. In the latter case, where an honest mistake has allowed an otherwise unqualified employee to obtain his certification, that employee is treated as certified, even though later developments establish that the certification was not made in strict conformity with the terms of the Act. It is for this reason that the court in Vanko discusses \u201cthe bona fides of certification.\u201d Vanko, 278 Ill. App. 3d at 306. See also In re Estates of Rice, 77 Ill. App. 3d 641, 654, 396 N.E.2d 298 (1979) (executor\u2019s appointment not void but merely voidable, as \u201c[i]t is not the responsibility of someone appointed to this type of office to independently ascertain the merits of the removal of his predecessor or to question the statutory basis of his own appointment\u201d).\nIn this case, while it is true that the Merit Board incorrectly certified Bianchi as being qualified to work as a correctional officer in 1987, that fact alone does not require that his appointment be rescinded upon discovery of the error. If the certification is, in the language of the Vanko decision, \u201cbona fide,\u201d then logic dictates that the appointment may be set aside only in such a way as is consistent with the provisions of the Act, including the merit-protection provisions of section 3 \u2014 7012. 55 ILCS 5/3 \u2014 7012 (West 1996). This section provides that a certified employee may not be discharged or suspended except \u201cfor cause.\u201d Here, the Board implicitly determined that failing to answer a minimum of 57 questions correctly on his 1987 examination did not constitute sufficient \u201ccause\u201d to warrant the sheriffs decision to discharge Bianchi. This decision is consistent with the evidence presented at the hearing, which demonstrated Bianchi had established a significant and unblemished record of service to the sheriffs office since he had been hired, some six years earlier.\nThe sheriff also argues that the Board\u2019s application of a \u201cclear and convincing\u201d burden of proof prejudiced his case against Bianchi. The sheriff urges that the matter should at least be remanded with instructions to the Board to consider his evidence against Bianchi under the proper standard. As the circuit court correctly observed, however, the facts of the case are no longer disputed. Although the sheriff did establish that Bianchi failed to answer 57 or more questions correctly on his 1987 examination and should not have been certified at that time, there was no evidence to establish bad faith in Bianchi\u2019s certification. Because the sheriff offered no evidence to establish cause to discharge Bianchi, the standard applied by the Board in considering the sheriff\u2019s claims of fraud against Bianchi is immaterial and remand is unnecessary.\nFor the foregoing reasons, the decision of the Cook County Sheriffs Merit Board is affirmed.\nAffirmed.\nCAMPBELL, P.J., and GREIMAN, J., concur.", "type": "majority", "author": "JUSTICE ZWICK" } ], "attorneys": [ "Richard A. Devine, State\u2019s Attorney, of Chicago (Patricia M. Shymanski, John J. Murphy, and Letitia Dominici, Assistant State\u2019s Attorneys, of counsel), for appellant.", "Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Ltd., of Chicago (Joseph M. Gagliardo and Clifford R. Perry III, of counsel), for appellees." ], "corrections": "", "head_matter": "COOK COUNTY SHERIFF MICHAEL SHEAHAN, Petitioner-Appellant, v. ALBERT BIANCHI et al., Respondents-Appellees.\nFirst District (6th Division)\nNo. 1\u201497\u20140141\nOpinion filed April 24, 1998.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Patricia M. Shymanski, John J. Murphy, and Letitia Dominici, Assistant State\u2019s Attorneys, of counsel), for appellant.\nLaner, Muchin, Dombrow, Becker, Levin & Tominberg, Ltd., of Chicago (Joseph M. Gagliardo and Clifford R. Perry III, of counsel), for appellees." }, "file_name": "0310-01", "first_page_order": 328, "last_page_order": 332 }