{ "id": 637040, "name": "TIMOTHY S. APPLEGATE, Plaintiff-Appellee and Cross-Appellant, v. THE DEPARTMENT OF TRANSPORTATION et al., Defendants-Appellants and Cross-Appellees", "name_abbreviation": "Applegate v. Department of Transportation", "decision_date": "2002-11-15", "docket_number": "No. 4 \u2014 01 \u2014 0582", "first_page": "1056", "last_page": "1066", "citations": [ { "type": "official", "cite": "335 Ill. App. 3d 1056" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "745 N.E.2d 736", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "744", "parenthetical": "\"rescission undoes the administrative summary suspension, at least prospectively\"" }, { "page": "744" } ], "opinion_index": 0 }, { "cite": "319 Ill. App. 3d 496", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527804 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "504", "parenthetical": "\"rescission undoes the administrative summary suspension, at least prospectively\"" }, { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0496-01" ] }, { "cite": "653 N.E.2d 1330", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "1335", "parenthetical": "agency is not bound by statements in internal manual not adopted in compliance with the Administrative Procedure Act" } ], "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 38", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291579 ], "year": 1995, "pin_cites": [ { "page": "45", "parenthetical": "agency is not bound by statements in internal manual not adopted in compliance with the Administrative Procedure Act" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0038-01" ] }, { "cite": "647 N.E.2d 607", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "611" } ], "opinion_index": 0 }, { "cite": "269 Ill. App. 3d 934", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365867 ], "year": 1995, "pin_cites": [ { "page": "940-41" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0934-01" ] }, { "cite": "679 N.E.2d 121", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "123", "parenthetical": "rescission of summary suspension undoes the suspension if defendant obtains a hearing before it takes place" }, { "page": "123" }, { "page": "123" } ], "opinion_index": 0 }, { "cite": "287 Ill. App. 3d 767", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 520954 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "769", "parenthetical": "rescission of summary suspension undoes the suspension if defendant obtains a hearing before it takes place" }, { "page": "769" }, { "page": "769" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/0767-01" ] }, { "cite": "426 N.E.2d 885", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "887" } ], "opinion_index": 0 }, { "cite": "85 Ill. 2d 547", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469434 ], "year": 1981, "pin_cites": [ { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0547-01" ] }, { "cite": "697 N.E.2d 717", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "721", "parenthetical": "a reviewing court shall respect an agency's finding of cause for discharge" } ], "opinion_index": 0 }, { "cite": "183 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209964 ], "year": 1998, "pin_cites": [ { "page": "89", "parenthetical": "a reviewing court shall respect an agency's finding of cause for discharge" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0083-01" ] }, { "cite": "691 N.E.2d 191", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "199" }, { "page": "199" } ], "opinion_index": 0 }, { "cite": "294 Ill. App. 3d 520", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35368 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "530" }, { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0520-01" ] }, { "cite": "625 N.E.2d 945", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "956" }, { "page": "956" }, { "page": "956" }, { "page": "956" } ], "opinion_index": 0 }, { "cite": "254 Ill. App. 3d 191", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2981580 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "204" }, { "page": "204" }, { "page": "204-05" }, { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/0191-01" ] }, { "cite": "673 N.E.2d 251", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "253-54" }, { "page": "255" } ], "opinion_index": 0 }, { "cite": "174 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223625 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "272" }, { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0268-01" ] }, { "cite": "681 N.E.2d 998", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1005" } ], "opinion_index": 0 }, { "cite": "288 Ill. App. 3d 701", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596990 ], "year": 1997, "pin_cites": [ { "page": "711" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0701-01" ] }, { "cite": "748 N.E.2d 285", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "290" } ], "opinion_index": 0 }, { "cite": "321 Ill. App. 3d 248", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132501 ], "year": 2001, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0248-01" ] }, { "cite": "101 N.E.2d 71", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1951, "pin_cites": [ { "page": "73" } ], "opinion_index": 0 }, { "cite": "410 Ill. 35", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5311188 ], "year": 1951, "pin_cites": [ { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/ill/410/0035-01" ] }, { "cite": "471 N.E.2d 931", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "933" } ], "opinion_index": 0 }, { "cite": "128 Ill. App. 3d 982", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3525547 ], "year": 1984, "pin_cites": [ { "page": "984" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0982-01" ] }, { "cite": "745 N.E.2d 736", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "744" } ], "opinion_index": 1 }, { "cite": "319 Ill. App. 3d 496", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527804 ], "year": 2001, "pin_cites": [ { "page": "504" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/319/0496-01" ] }, { "cite": "692 N.E.2d 360", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "366" } ], "opinion_index": 1 }, { "cite": "295 Ill. App. 3d 48", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45794 ], "year": 1998, "pin_cites": [ { "page": "56" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/295/0048-01" ] }, { "cite": "581 N.E.2d 824", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "828" } ], "opinion_index": 1 }, { "cite": "221 Ill. App. 3d 47", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5796276 ], "year": 1991, "pin_cites": [ { "page": "53" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/221/0047-01" ] }, { "cite": "586 N.E.2d 381", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "384" } ], "opinion_index": 1 }, { "cite": "223 Ill. App. 3d 1081", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5254779 ], "year": 1991, "pin_cites": [ { "page": "1085" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/223/1081-01" ] }, { "cite": "679 N.E.2d 121", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "123", "parenthetical": "the rescission of the summary suspension undoes the administrative summary suspension, at least prospectively" } ], "opinion_index": 1 }, { "cite": "287 Ill. App. 3d 767", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 520954 ], "year": 1997, "pin_cites": [ { "page": "769", "parenthetical": "the rescission of the summary suspension undoes the administrative summary suspension, at least prospectively" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/287/0767-01" ] } ], "analysis": { "cardinality": 905, "char_count": 22802, "ocr_confidence": 0.782, "pagerank": { "raw": 9.511137118373336e-08, "percentile": 0.5240680055092015 }, "sha256": "d0887b9641c4d2cd3ab65d23ac77db1e30c14e29e10808598d02bd094556494c", "simhash": "1:09e81dd7dfe18711", "word_count": 3529 }, "last_updated": "2023-07-14T21:04:10.004592+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TIMOTHY S. APPLEGATE, Plaintiff-Appellee and Cross-Appellant, v. THE DEPARTMENT OF TRANSPORTATION et al., Defendants-Appellants and Cross-Appellees." ], "opinions": [ { "text": "JUSTICE TURNER\ndelivered the opinion of the court:\nIn June 1999, plaintiff, Timothy S. Applegate, was discharged from his employment at defendant, the State of Illinois Department of Transportation (Department). Plaintiff filed a grievance, and in February 2000, defendant Kirk Brown, Secretary of the Department (Secretary), issued a final administrative decision finding that Apple-gate had been properly discharged. In March 2000, Applegate filed a complaint for administrative review. In November 2000, Applegate filed a second-amended complaint for judicial review by common-law writ of certiorari and for declaratory judgment. In June 2001, the circuit court held that Applegate\u2019s employment was wrongfully terminated and he was entitled to be reinstated with back pay. The circuit court also denied Applegate\u2019s request for attorney fees under section 10 \u2014 55(c) of the Illinois Administrative Procedure Act (Administrative Procedure Act) (5 ILCS 100/10 \u2014 55(c) (West 1998)). Defendants appeal, and Applegate cross-appeals. We affirm in part, reverse in part, and reinstate the Secretary\u2019s decision.\nI. BACKGROUND\nThe record before us contains the following facts. At the time of his June 1999 discharge, Applegate was permanently employed full-time with the Department as a certified engineering technician IV As a technical employee, he was exempt from the Illinois Department of Central Management Services\u2019 personnel code. The Department\u2019s personnel policies manual clearly states at the front that it \u201cdoes not constitute a contract of employment.\u201d However, section 4 \u2014 11(D)(1) of the manual states that \u201c[a]n employee may be discharged only for just cause.\u201d\nIn November 1991, Applegate was arrested outside of working hours and charged with driving under the influence of alcohol (DUI). People v. Applegate, No. 91 \u2014 TR \u2014 1962 (Cir. Ct. Cumberland Co.). Applegate also had his driver\u2019s license summarily suspended. In March 1992, the charge was amended to reckless driving, to which Applegate pleaded guilty. Pursuant to section 8 \u2014 3(C)(3)(a) of the Department\u2019s personnel policies manual, Applegate requested and received an unpaid general leave of absence, effective April 1, 1992, not to exceed 90 days, until he obtained a license or permit. On May 12, 1992, the circuit court of Cumberland County rescinded Applegate\u2019s statutory summary suspension after finding no reasonable grounds to believe that he committed a DUI. Applegate returned to work the following day.\nIn March 1999, Applegate was again arrested outside of working hours and charged with DUI. People v. Applegate, No. 99 \u2014 DT \u2014 27 (Cir. Ct. Christian Co.). After Applegate\u2019s license was summarily suspended in May 1999, the Department suspended him without pay and notified him of a pretermination hearing to discuss the charge of a second suspension of his driver\u2019s license while employed by the Department. Applegate called during the meeting but did not attend. Following the meeting, the Department notified Applegate that his employment was being terminated effective June 2, 1999, for cause, that cause being the violation of section 8 \u2014 3(C)(4) of the Department\u2019s personnel policies manual, which states, \u201cA second suspension or revocation of an employee\u2019s driver\u2019s license while employed by the Department shall be cause for discharge.\u201d\nFollowing his termination in June 1999, Applegate filed a grievance with the Department pursuant to the procedures in its personnel policies manual. Applegate\u2019s grievance was denied at the local and intermediate levels. Applegate next submitted his grievance to the Secretary for final determination. Pursuant to the grievance procedure, the Secretary appointed a three-member panel and a review moderator to hear the grievance at the final level.\nIn May 1999, Applegate filed a motion in the circuit court of Christian County to rescind his statutory summary suspension. In August 1999, Applegate completed his statutory summary suspension. In September 1999, Applegate was acquitted of DUI following a jury trial. On January 5, 2000, the circuit court of Christian County rescinded Applegate\u2019s statutory summary suspension on the State\u2019s motion.\nOn January 11, 2000, the grievance panel convened, and prior to the hearing, the review moderator requested Applegate and his attorney turn off any tape recorders. Applegate\u2019s attorney intended to tape-record the hearing because no court reporter was present. Section 4 \u2014 12(D)(3)(b) of the personnel policies manual states, \u201cThere will be no record made of the review other than that made or ordered by the moderator.\u201d Applegate was able to present evidence and argument at the hearing. The panel recommended that the discharge was proper but suggested that the Department revise its manual \u201cto clarify the length of time between suspensions\u201d and \u201ctake into consideration the judicial process in its totality\u201d prior to taking final action. In February 2000, the Secretary concurred with the panel\u2019s finding that Applegate violated section 8 \u2014 3(C)(4) of the manual and was appropriately discharged.\nIn March 2000, Applegate filed a complaint for administrative review in the circuit court of Sangamon County. In May 2000, defendants filed a motion to dismiss for lack of subject-matter jurisdiction because the Administrative Review Law (735 ILCS 5/3 \u2014 101 through 3 \u2014 113 (West 2000)) does not apply to the Department. In July 2000, Applegate filed an amended complaint, seeking judicial review of his termination by common-law writ of certiorari. In August 2000, defendants filed a motion to dismiss, contending that certiorari is improper and would implicate sovereign immunity. In October 2000, Judge Thomas R. Appleton allowed defendants\u2019 motion to dismiss, determining that certiorari was improper without a formal record to review or any standards against which to measure the Secretary\u2019s decision. Judge Appleton granted Applegate leave to file an amended complaint for declaratory judgment.\nIn November 2000, Applegate filed a two-count second-amended complaint, seeking declaratory judgment and judicial review by writ of certiorari. In January 2001, the case was reassigned to Judge Robert J. Eggers. Defendants filed a motion to dismiss. In February 2001, Judge Eggers granted Applegate leave to file an amended complaint including a count for writ of certiorari. In April 2001, the circuit court held an evidentiary hearing, to which defendants objected and in which they refused to participate. William Harris, Applegate\u2019s former attorney, described Applegate\u2019s Christian County DUI case and the grievance proceedings before the hearing panel. Applegate next testified on his own behalf. Finally, Jean Klauber, a labor license specialist for the Department, testified as an adverse witness that he served as review moderator in Applegate\u2019s case. To Klauber\u2019s knowledge, no report of proceedings or electronic recording had ever been ordered by the moderator in a final panel hearing for technical employees.\nIn June 2001, the circuit court issued its final order, determining that Applegate could proceed by seeking a declaratory judgment and a writ of certiorari. The circuit court ruled that Applegate\u2019s termination was wrongful because he did not have the requisite two summary suspensions after one was later rescinded. The circuit court held that Applegate was entitled to be reinstated with back pay. Finally, the circuit court denied Applegate\u2019s request for attorney fees because the action was not filed under the Administrative Procedure Act. This appeal and cross-appeal followed.\nII. ANALYSIS\nA. Sovereign Immunity\nThe State first argues that sovereign immunity applies because Applegate\u2019s claim is essentially for breach of contract against the State. The State contends that the circuit court lacks subject-matter jurisdiction over Applegate\u2019s claim, which should have been brought in the Court of Claims instead. We disagree.\nFirst, Applegate sought declaratory relief to invalidate the Department\u2019s rule of not allowing a record of the final level grievance proceedings. Sovereign immunity does not bar a circuit court action seeking declaratory judgment to invalidate an administrative rule and recover attorney fees under section 10 \u2014 55(c) of the Administrative Procedure Act (5 ILCS 100/10 \u2014 55(c) (West 1998)). See Ackerman v. Department of Public Aid, 128 Ill. App. 3d 982, 984, 471 N.E.2d 931, 933 (1984). Applegate also sought judicial review of his termination. Sovereign immunity does not bar a party from seeking judicial review of an agency\u2019s action by common-law writ of certiorari. Moline Tool Co. v. Department of Revenue, 410 Ill. 35, 38, 101 N.E.2d 71, 73 (1951).\nB. Availability of Review by Certiorari\nThe State next contends that the circuit court should not have reviewed the Secretary\u2019s decision under a common-law writ of certio-rari. We disagree.\nA common-law writ of certiorari is a general method for obtaining circuit court review of administrative actions when the act conferring power on an agency does not expressly adopt the Administrative Review Law and provides for no other form of review. Alicea v. Snyder, 321 Ill. App. 3d 248, 253, 748 N.E.2d 285, 290 (2001).\nIn this case, the circuit court properly reviewed the Secretary\u2019s decision pursuant to a writ of certiorari. The Secretary exercised quasi-judicial power, which is reviewable by certiorari, because he adjudicated facts and individual rights. See American Federation of State, County & Municipal Employees v. Department of Central Management Services, 288 Ill. App. 3d 701, 711, 681 N.E.2d 998, 1005 (1997). The circuit court could review the correctness of the agency\u2019s decision pursuant to certiorari because the standards of review under a common-law \u2022writ of certiorari are now essentially the same as those under the Administrative Review Law. See Hanrahan v. Williams, 174 Ill. 2d 268, 272, 673 N.E.2d 251, 253-54 (1996). Meaningful objective standards existed by which the circuit court could review the Secretary\u2019s exercise of discretion because the personnel policies manual requires \u201cjust cause.\u201d Therefore, the Secretary\u2019s decision to terminate Applegate was not committed to his \u201ccomplete discretion.\u201d Hanrahan, 174 Ill. 2d at 276, 673 N.E.2d at 255.\nFinally, the circuit court did not err in conducting an evidentiary hearing regarding the Cumberland County and Christian County dispositions of Applegate\u2019s summary suspensions and whether Apple-gate was able to record the grievance hearing. Nothing suggests that the circuit court relied on anything outside of the administrative record in determining, as a matter of law, that Applegate was wrongfully terminated.\nC. Cause for Discharge\nThe State asserts that the circuit court erred in failing to defer to the Secretary\u2019s interpretation of the Department\u2019s personnel policies manual. We agree.\nReview of an administrative agency\u2019s decision regarding discharge for cause involves a two-step process. Grames v. Illinois State Police, 254 Ill. App. 3d 191, 204, 625 N.E.2d 945, 956 (1993). A reviewing court first must determine if the agency\u2019s findings of fact are contrary to the manifest weight of the evidence. Grames, 254 Ill. App. 3d at 204, 625 N.E.2d at 956. The court must then determine whether the agency\u2019s factual findings provide a sufficient basis for concluding \u201ccause\u201d for discharge exists. Grames, 254 Ill. App. 3d at 204-05, 625 N.E.2d at 956.\nWe give considerable deference to an agency\u2019s determination of \u201ccause\u201d for discharge because the agency is in the best position to determine the effect of an employee\u2019s conduct on its operations. Merrifield v. Illinois State Police Merit Board, 294 Ill. App. 3d 520, 530, 691 N.E.2d 191, 199 (1997); see also Ehlers v. Jackson County Sheriffs Merit Comm\u2019n, 183 Ill. 2d 83, 89, 697 N.E.2d 717, 721 (1998) (a reviewing court shall respect an agency\u2019s finding of cause for discharge). A reviewing court will not decide whether a less stringent punishment is appropriate and will overturn the agency\u2019s decision as to cause only if it is arbitrary and unreasonable or unrelated to the requirements of service. Merrifield, 294 Ill. App. 3d at 530, 691 N.E.2d at 199.\n\u201cCause\u201d has been judicially defined as \u201c \u2018some substantial shortcoming which renders the employee\u2019s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.\u2019 \u201d Grames, 254 Ill. App. 3d at 205, 625 N.E.2d at 956, quoting Department of Mental Health & Developmental Disabilities v. Civil Service Comm\u2019n, 85 Ill. 2d 547, 551, 426 N.E.2d 885, 887 (1981).\nIn determining that a rescinded summary suspension could not provide grounds for termination, the circuit court relied on People v. Focia, 287 Ill. App. 3d 767, 769, 679 N.E.2d 121, 123 (1997) (rescission of summary suspension undoes the suspension if defendant obtains a hearing before it takes place), and People v. Fidel, 319 Ill. App. 3d 496, 504, 745 N.E.2d 736, 744 (2001) (\u201crescission undoes the administrative summary suspension, at least prospectively\u201d). However, the appellate court in Focia held that a rescission does not retroactively reinstate a driver\u2019s license. Focia, 287 Ill. App. 3d at 769, 679 N.E.2d at 123. The appellate court reversed the dismissal of a charge of driving while license suspended because the defendant\u2019s suspension remained in effect until rescinded. Focia, 287 Ill. App. 3d at 769, 679 N.E.2d at 123. In contrast, vacatur restores the status quo ante, as though a judgment had never been entered. Eidel, 319 Ill. App. 3d at 504, 745 N.E.2d at 744.\nWe defer to the Secretary\u2019s determination of the effect on the Department\u2019s operations of the two rescinded summary suspensions that Applegate served. Although Applegate contends that the 1999 summary suspension was his first, he partially served a summary suspension in 1992 and opted to take an unpaid leave of absence, missing six weeks of work. Although the 1992 summary suspension was later rescinded, that rescission applied only prospectively under Focia. Applegate\u2019s driver\u2019s license, therefore, was in fact suspended in 1992 until the suspension was rescinded. When Applegate began serving a summary suspension in May 1999, he had his second driver\u2019s license suspension while employed by the Department. Therefore, the Secretary\u2019s determination that cause for Applegate\u2019s discharge existed is not arbitrary and unreasonable or unrelated to the requirements of his service.\nD. Administrative Procedure Act\nAs a ground for affirming the circuit court\u2019s order and reversing the Department\u2019s decision, Applegate cites the Department\u2019s failure to follow section 10 \u2014 35(b) of the Administrative Procedure Act (5 ILCS 100/10 \u2014 35(b) (West 1998)). Applegate argues a record of his grievance hearing was required because the hearing was a \u201ccontested case\u201d as defined in section 1 \u2014 30 of the Administrative Procedure Act (5 ILCS 100/1 \u2014 30 (West 1998) (\u201can adjudicatory proceeding *** in which the individual legal rights, duties, or privileges of a party are required by law to be determined by an agency only after an opportunity for a hearing\u201d)). Applegate asserts the Department\u2019s personnel policies manual required a hearing and had the force and effect of law. We disagree.\nThe contested-case provisions of the Administrative Procedure Act did not apply because no opportunity for a hearing was required by law in this case. Applegate was a technical employee exempt from the personnel code. Only the Department\u2019s personnel policies manual required a three-member panel to hear a grievance at the final level. We recognize properly promulgated administrative regulations have the force and effect of law. Craftmasters, Inc. v. Department of Revenue, 269 Ill. App. 3d 934, 940-41, 647 N.E.2d 607, 611 (1995). However, the Department\u2019s personnel policies manual concerned only internal management and was not a binding rule or regulation adopted in compliance with the Administrative Procedure Act and codified in the Illinois Administrative Code. See Kaszynski v. Department of Public Aid, 274 Ill. App. 3d 38, 45, 653 N.E.2d 1330, 1335 (1995) (agency is not bound by statements in internal manual not adopted in compliance with the Administrative Procedure Act); 5 ILCS 100/1 \u2014 70 (West 1998) (defining \u201crule\u201d for purposes of Administrative Procedure Act to exclude agency statements concerning only the agency\u2019s internal management and not affecting private rights or procedures available to persons or entities outside the agency). Therefore, the Administrative Procedure Act did not require the Department to make a record of Applegate\u2019s grievance hearing.\nE. Attorney Fees\nIn his cross-appeal, Applegate asserts the circuit court erred in denying his request for attorney fees because he invalidated an \u201cadministrative rule\u201d in the Department\u2019s personnel policies manual. Applegate contends the Department\u2019s procedural rules are invalid because they do not allow for a record of the grievance hearing.\nApplegate is not entitled to attorney fees because he has not had an administrative rule invalidated by any court in this case. This court has rejected Applegate\u2019s Administrative Procedure Act claim regarding the record of his grievance hearing. The circuit court did not rule in Applegate\u2019s favor in his challenge to the Department\u2019s grievance hearing procedures. Therefore, the circuit court did not err in denying Applegate\u2019s request for attorney fees.\nIII. CONCLUSION\nBecause the circuit court erred in concluding Applegate was wrongfully terminated, we reverse the part of the circuit court\u2019s judgment entitling Applegate to be reinstated with back pay and ruling his termination was wrongful, and we reinstate the Secretary\u2019s decision. We affirm the circuit court\u2019s denial of Applegate\u2019s request for attorney fees.\nAffirmed in part and reversed in part; Secretary\u2019s decision reinstated.\nCOOK, J., concurs.", "type": "majority", "author": "JUSTICE TURNER" }, { "text": "PRESIDING JUSTICE MYERSCOUGH,\nspecially concurring in part and dissenting in part:\nI respectfully concur in part and dissent in part. I agree that the circuit court correctly reviewed the Secretary\u2019s decision under a common-law writ of certiorari. However, I disagree with the standard of review applied by the majority and the result reached by the majority. Here, the standard of review is not the manifest weight of the evidence because there are no issues of fact. The standard for review of the certiorari action is de novo. Callahan v. Department of State Police, 223 Ill. App. 3d 1081, 1085, 586 N.E.2d 381, 384 (1991). Moreover, the Secretary\u2019s decisions on questions of law are not binding on this court. Village of Downers Grove v. Illinois State Labor Relations Board, 221 Ill. App. 3d 47, 53, 581 N.E.2d 824, 828 (1991); see also Richard\u2019s Tire Co. v. Zehnder, 295 Ill. App. 3d 48, 56, 692 N.E.2d 360, 366 (1998).\nApplegate was clearly discharged because he received two statutory summary suspensions. The grievance review panel\u2019s recommendation, in which the Secretary concurred, stated:\n\u201cBased on Order 3 \u2014 1, Chapter 8 \u2014 C, of IDOT\u2019s Personnel Policy Manual, we find that the discharge was proper in accordance to the above provisions. However!,] we, the panel, find the existing provisions of the aforementioned Chapter 8 need to be revised to clarify the length of time between suspensions and revocations of driver\u2019s license and that before the Department takes final action, [it] should take into consideration the judicial process in its totality.\u201d\nThe panel and the Secretary clearly recognized the fact that Apple-gate\u2019s discharge ignored the judicial process, in direct contradiction of the Illinois Department of Transportation\u2019s personnel policies manual. That manual recognizes the Illinois Vehicle Code (625 ILCS 5/1 \u2014 100 et seq. (West 1998)) and the Secretary of State\u2019s rules and regulations governing statutory summary suspensions. The policy at issue here is in fact entitled \u201cStatutory Summary Driver\u2019s License Suspension\u201d and permits first offenders a 90-day unpaid leave for the term of the statutory summary suspension. The policy also provides that a second suspension results in discharge. However, nowhere in the manual is \u201cfirst offense\u201d or \u201cstatutory summary suspension\u201d defined. Since the Secretary has recognized the Secretary of State\u2019s process set forth in the Illinois Vehicle Code, it is bound by its definitions.\nApplegate, at the time of his initial discharge, was actually a first offender because his first suspension had been rescinded:\n\u201cFor the purposes of interpreting Sections 6 \u2014 206.1 and 6 \u2014 208.1 of this Code, \u2018first offender\u2019 shall mean any person who has not had a previous conviction or court[-]assigned supervision for violating Section 11 \u2014 501, or a similar provision of a local ordinance, or a conviction in any other state for a violation of driving while under the influence or a similar offense where the cause of action is the same or substantially similar to this Code or any person who has not had a driver\u2019s license suspension for violating Section 11\u2014 501.1 within 5 years prior to the date of the current offense, except in cases where the driver submitted to chemical testing ***.\u201d 625 ILCS 5/11 \u2014 500 (West 2000).\nSee also People v. Eidel, 319 Ill. App. 3d 496, 504, 745 N.E.2d 736, 744 (2001), citing People v. Focia, 287 Ill. App. 3d 767, 769, 679 N.E.2d 121, 123 (1997) (the rescission of the summary suspension undoes the administrative summary suspension, at least prospectively). Applegate was, therefore, also entitled to take a 90-day unpaid leave and was not subject to discharge for cause based on two suspensions. To hold otherwise would invalidate the underlying judicial proceeding that rescinded the statutory summary driver\u2019s license suspension and dismissed the DUI. As a matter of law, Applegate\u2019s discharge was wrong.\nWhile this court recognizes the employer\u2019s need for its employees to possess a driver\u2019s license, this court also recognizes the need for the Secretary to follow its own manual, the laws of this state, and the rulings of our courts. For these reasons, I would affirm the circuit court and reverse the ruling of the Secretary.", "type": "concurrence", "author": "PRESIDING JUSTICE MYERSCOUGH," } ], "attorneys": [ "James E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Bryan J. Rose and Jerald S. Post (argued), Assistant Attorneys General, of counsel), for appellants.", "Paul E. Adami (argued), of Mohan, Alewelt, Prillaman & Adami, of Springfield, for appellee." ], "corrections": "", "head_matter": "TIMOTHY S. APPLEGATE, Plaintiff-Appellee and Cross-Appellant, v. THE DEPARTMENT OF TRANSPORTATION et al., Defendants-Appellants and Cross-Appellees.\nFourth District\nNo. 4 \u2014 01 \u2014 0582\nOpinion filed November 15, 2002.\nMYERSCOUGH, EJ., specially concurring in part and dissenting in part.\nJames E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Bryan J. Rose and Jerald S. Post (argued), Assistant Attorneys General, of counsel), for appellants.\nPaul E. Adami (argued), of Mohan, Alewelt, Prillaman & Adami, of Springfield, for appellee." }, "file_name": "1056-01", "first_page_order": 1074, "last_page_order": 1084 }