{ "id": 4306519, "name": "THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES/ILLINOIS COMMERCE COMMISSION, Petitioner-Appellant, v. THE ILLINOIS LABOR RELATIONS BOARD, STATE PANEL, et al., Respondents-Appellees", "name_abbreviation": "Department of Central Management Services v. Illinois Labor Relations Board", "decision_date": "2010-12-28", "docket_number": "No. 4\u201409\u20140792", "first_page": "766", "last_page": "783", "citations": [ { "type": "official", "cite": "406 Ill. App. 3d 766" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "292 N.E.2d 466", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "pin_cites": [ { "page": "470", "parenthetical": "\" 'An Assistant State's Attorney is generally clothed with all the powers and privileges of the State's Attorney ***' \"" } ], "opinion_index": 0 }, { "cite": "9 Ill. App. 3d 570", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2845923 ], "year": 1973, "pin_cites": [ { "page": "575", "parenthetical": "\" 'An Assistant State's Attorney is generally clothed with all the powers and privileges of the State's Attorney ***' \"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0570-01" ] }, { "cite": "20 Ill. Reg. 10607", "category": "laws:admin_register", "reporter": "Ill. 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App. 3d 79", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156914 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "87", "parenthetical": "CMS appeals grant of AFSCME's representation petition for corrections leisure activities specialist IV and certification, contending the employees were supervisors and managerial within the meaning of the Act" }, { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0079-01" ] }, { "cite": "912 N.E.2d 347", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2009, "pin_cites": [ { "page": "353" } ], "opinion_index": 0 }, { "cite": "393 Ill. App. 3d 573", "category": "reporters:state", "reporter": "Ill. 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App. 3d 128", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267194 ], "year": 2006, "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/369/0128-01" ] }, { "cite": "92 L. Ed. 746", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1948, "pin_cites": [ { "page": "766" } ], "opinion_index": 0 }, { "cite": "333 U.S. 364", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157998 ], "weight": 2, "year": 1948, "pin_cites": [ { "page": "395" }, { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/us/333/0364-01" ] }, { "cite": "763 N.E.2d 272", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "282" } ], "opinion_index": 0 }, { "cite": "198 Ill. 2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29956 ], "year": 2001, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0380-01" ] }, { "cite": "82 Cal. Rptr. 2d 85", "category": "reporters:state", "reporter": "Cal. 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App. 3d", "case_ids": [ 4292658 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "72" }, { "page": "72" }, { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/396/0061-01" ] } ], "analysis": { "cardinality": 1581, "char_count": 44298, "ocr_confidence": 0.79, "pagerank": { "raw": 9.751334510285053e-08, "percentile": 0.5310798042665807 }, "sha256": "76cb8acc173b4c711db82fb49d1b77cebae5b331bcbbdc5c4250d31349dd8087", "simhash": "1:38c0901678569644", "word_count": 7166 }, "last_updated": "2023-07-14T19:33:07.786999+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES/ILLINOIS COMMERCE COMMISSION, Petitioner-Appellant, v. THE ILLINOIS LABOR RELATIONS BOARD, STATE PANEL, et al., Respondents-Appellees." ], "opinions": [ { "text": "JUSTICE APPLETON\ndelivered the opinion of the court:\nThe Illinois Department of Central Management Services (CMS) seeks review of a decision by the Illinois Labor Relations Board, State Panel (Board), certifying the American Federation of State, County, and Municipal Employees, Council 31 (union), as the exclusive representative of one Administrative Law Judge IV (ILRB case No. S \u2014 RC\u201410\u2014034) and seven Administrative Law Judge IIIs (ILRB case No. S \u2014 RC\u201410\u2014036) (the ALJs), all of whom work at the Illinois Commerce Commission (Commission). CMS complains that the Board reached a decision solely on the basis of written submissions, without giving CMS an opportunity for an oral hearing, including the examination of witnesses.\nWe agree with CMS that the denial of an oral hearing was clearly erroneous because there is an unresolved issue as to whether the eight ALJs in question are managerial employees. It appears that, like managerial employees, the ALJs make effective recommendations. According to the position statement that CMS submitted to the Board, the Commission almost always accepts the ALJs\u2019 recommended orders, without modification, and these recommended orders, adopted by the Commission, are the means by which the Commission fulfills its statutory mission of regulating public utilities. As far as we can see from the record, the Board\u2019s investigation yielded no basis for questioning the position statement in that regard. In short, the position statement describes the ALJs as exerting great influence within the Commission, and we do not understand either the union or the Board as contending otherwise. We have a firm and definite conviction that the certification of the union as the bargaining representative of the eight ALJs was premature because there is still a live question as to whether they are managerial employees. We do not purport to resolve that question one way or the other; instead, the Board should do so. Therefore, we reverse the Board\u2019s decision and remand this case for further proceedings.\nI. BACKGROUND\nOn July 28, 2009, the union filed two majority-interest petitions, in which it requested to be certified as the exclusive representative of the eight ALJs.\nOn July 29, 2009, Lori Novak, an assistant of the Board\u2019s Executive Director, John E Brosnan, wrote a letter to Greg Newton, the acting deputy general counsel for CMS at the time, asking him to file responses to the two majority-interest petitions. Newton said that these responses had to \u201cinclude any issues [CMS] intend[ed] to raise concerning *** whether any employees sought by the petitioner should be excluded from the unit.\u201d\nA. CMS\u2019s Initial Position Statement\nIn its initial response, or position statement, filed on August 14, 2009, CMS contended that the ALJs should be excluded from the bargaining unit because they were managers and, as such, were ineligible to participate in collective bargaining. Essentially, CMS gave three reasons why the ALJs should be considered managers. First, the ALJs worked in the realm of policy. They conducted quasi-judicial hearings that involved rule-making, rates, citations, complaints, certificates, financial agreements, and the issuance of securities, and by issuing recommended orders in these matters, the ALJs created the policies of the Commission. Second, the ALJs\u2019 recommendations were \u201ceffective\u201d in that the Commission \u201crarely rejected\u201d them. Third, the ALJs were managerial as a matter of law because section 2 \u2014 106(a) of the Public Utilities Act (220 ILCS 5/2 \u2014 106(a) (West 2008)) required the executive director of the Commission to employ them.\nB. The Order To Show Cause\nOn August 14, 2009, an ALJ of the Board, Ellen M. Strizak, wrote in a letter to the parties that she had reviewed CMS\u2019s position statement of August 14, 2009, and that she had found nothing therein that warranted the convening of a hearing. Accordingly, she ordered CMS to show cause, by no later than September 9, 2009, as to why the union should not be certified as the bargaining representative of the eight employees in question. She cautioned that to support its claim of a statutory exclusion, CMS could not \u201crely[ ] on vague, generalized testimony or contentions as to an employee\u2019s job function\u201d but that, instead, CMS had to \u201cpresent specific examples of the alleged managerial authority,\u201d including \u201call documentary evidence and affidavits[ ] which supported] [CMS\u2019s] position.\u201d Further, all documentation had to be accompanied by an explanation of the following: (1) what the documentation was, (2) what the documentation purported to show, and (3) why the information in each document supported CMS\u2019s claim that the petitioned-for employees were managerial.\nC. CMS\u2019s Supplemental Position Statement\nOn September 9, 2009, in response to Strizak\u2019s order to show cause, CMS filed a supplemental position statement, which had attached to it as exhibits A through F 1,785 pages of orders issued by the Commission in 13 public utility cases. According to CMS, the eight ALJs wrote these orders as recommendations to the Commission, and in all but one case, the Commission adopted the orders without modification.\nIn its supplemental position statement, CMS said that by the \u201cconservative estimate\u201d of the chief ALJ of the Commission, the Commission adopted the ALJ\u2019s recommendations 95% of the time. \u201cSubstantive modifications [were] rare[,] and outright reversals [were] even rarer.\u201d According to CMS, the ALJs had \u201ca direct hand in formulating policy through the preparation of orders to the Commission. This reliance on the ALJs to set up the language of the policies that the Commission wantfed] to implement as well as to see that past policy [was] followed supported] the Employer\u2019s position that these ALJs [met] the managerial exclusion,\u201d CMS argued.\nD. Certification of the Union\nOn September 9, 2009, Strizak wrote the parties that she had reviewed CMS\u2019s response to the majority-interest petitions and that she had found \u201cno issues of law or fact in these matters.\u201d Consequently, she announced that she would recommend to the Board\u2019s Executive Director that he certify the union.\nOn September 10, 2009, Brosnan prepared tallies of majority interest and certified the union as the exclusive representative of the eight ALJs employed at the Commission, ordering their inclusion in the union\u2019s existing RC-10 bargaining unit.\nThis appeal followed.\nII. ANALYSIS\nA. Standard of Review\nOn appeal, we ask whether the Board committed clear error by deciding that an oral hearing was unnecessary. City of Chicago v. Illinois Labor Relations Board, Local Panel, 396 Ill. App. 3d 61, 72, 918 N.E.2d 1103, 1113-14 (2009), appeal denied, 236 Ill. 2d 503, 930 N.E.2d 407 (2010) (table); Illinois Council of Police v. Illinois Labor Relations Board, Local Panel, 387 Ill. App. 3d 641, 658, 899 N.E.2d 1199, 1213 (2008). (We use the term \u201coral hearing\u201d because the denial of an oral hearing is not necessarily the denial of a hearing: a hearing could be \u201cwritten\u201d in the sense that parties could be heard solely through their presentation of written arguments and documentary evidence to the agency. See Lawless v. Central Production Credit Ass\u2019n, 228 Ill. App. 3d 500, 515, 592 N.E.2d 1210, 1219 (1992); Lewis v. Superior Court, 19 Cal. 4th 1232, 1248-49, 970 P.2d 872, 884, 82 Cal. Rptr. 2d 85, 97 (1999); Black\u2019s Law Dictionary 737 (8th ed. 2004) (defining a \u201chearing\u201d in the administrative-law context as \u201c[a]ny setting in which an affected person presents arguments to an agency decision-maker\u201d).) Under this standard of clear error, we will uphold the Board\u2019s decision unless our review of the entire record leaves us with \u201c ' \u201c \u2018the definite and firm conviction that a mistake has been committed.\u2019 \u201d \u2019 \u201d City of Chicago, 396 Ill. App. 3d at 72, 918 N.E.2d at 1114, quoting Illinois Council of Police, 387 Ill. App. 3d at 658, 899 N.E.2d at 1213, quoting AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395, 763 N.E.2d 272, 282 (2001), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).\nB. Lengthy Quotations\nReading the argument of CMS\u2019s brief, we encounter page after page of lengthy single-spaced block quotations. Although Illinois Supreme Court Rule 341(a) allows the single-spacing of quotations that are two or more lines long, the rule warns that \u201clengthy quotations are not favored and should be included only where they will aid the court\u2019s comprehension of the argument.\u201d Ill. S. Ct. R. 341(a) (eff. July 1, 2008). Long quotations are difficult to read, especially if they are single-spaced, and we remind CMS to avoid them in its brief whenever possible.\nC. A Fair Hearing\n1. The State Has No Constitutional Right to Due Process\nCMS argues that \u201cthe failure to provide an evidentiary hearing, and the opportunity for review before the State Panel of the ILRB unfairly deprived the State of its right to a hearing and/or due process.\u201d CMS cites Niles Township High School District 219 v. Illinois Educational Labor Relations Board, 369 Ill. App. 3d 128, 136, 859 N.E.2d 57, 64 (2006), in which the First District held that by making a decision in a case without first conducting an evidentiary hearing, the Illinois Educational Labor Relations Board violated a school district\u2019s \u201cprocedural[-]due[-]process rights.\u201d\n\u201cProcedural due process\u201d means \u201c[t]he minimal requirements of notice and a hearing guaranteed by the Due Process Clauses of the 5th and 14th Amendments.\u201d Black\u2019s Law Dictionary 539 (8th ed. 2004). We disagree with the First District that a school district, a political subdivision of the state (People ex rel. Taylor v. Camargo Community Consolidated School District No. 158, 313 Ill. 321, 325, 145 N.E. 154, 155 (1924)), has a right to \u201cprocedural due process,\u201d a term generally understood as denoting a constitutional right to certain minimal procedures (People v. R.G., 131 Ill. 2d 328, 342, 546 N.E.2d 533, 540 (1989); In re J.R., 341 Ill. App. 3d 784, 795, 793 N.E.2d 687, 696 (2003); Black\u2019s Law Dictionary 539 (8th ed. 2004)). The Supreme Court of Illinois has held that \u201ca school district, in its capacity as a political subdivision of the state, has no due process rights.\u201d Henrich v. Libertyville High School, 186 Ill. 2d 381, 405, 712 N.E.2d 298, 310 (1998).\n\u2022 1 A state and the political subdivisions of a state have no constitutional right to due process, because they are not \u201cpersons\u201d within the meaning of the due-process clause of the fifth amendment (U.S. Const., amend. V). South Carolina v. Regan, 465 U.S. 367, 394, 79 L. Ed. 2d 372, 391, 104 S. Ct. 1107, 1122 (1984) (O\u2019Connor, J., concurring); South Carolina v. Katzenbach, 383 U.S. 301, 323-24, 15 L. Ed. 2d 769, 784, 86 S. Ct. 803, 816 (1966). The same would seem to hold true of the due-process clause of the fourteenth amendment (U.S. Const., amend. XIV). Hence, we conclude that the state and the political subdivisions of the state \u2014 including CMS and the Commission\u2014 have no constitutional right to due process.\n2. The Board\u2019s Compliance With Its Own Rules\nEven though CMS lacks a constitutional right to due process, it can insist on the Board\u2019s compliance with its own rules. Administrative rules have the force and effect of law, and an agency must follow its own rules. People v. Scates, 393 Ill. App. 3d 566, 570, 914 N.E.2d 243, 245 (2009); Springwood Associates v. Health Facilities Planning Board, 269 Ill. App. 3d 944, 948, 646 N.E.2d 1374, 1376 (1995). In this case, CMS contends that by failing to conduct an oral hearing, with the presentation of live witnesses, the Board violated its own rules and therefore violated the law. To evaluate that contention, we first will turn to section 1210.100(b) of the Board\u2019s rules (80 Ill. Adm. Code \u00a71210.100(b), as amended by 28 Ill. Reg. 4172, 4190-94 (eff. February 19, 2004)), a section that describes the procedural steps leading up to an oral hearing on a majority-interest petition as well as the conditions in which the Board is required to hold such a hearing.\nAccording to section 1210.100(b)(3) (80 Ill. Adm. Code \u00a71210.100(b)(3), as amended by 28 Ill. Reg. 4172, 4190 (eff. February 19, 2004)), the first step for the employer is to file a \u201cwritten response\u201d to the majority-interest petition within 14 days after service of the petition. Subsection (b)(3) also calls this \u201cresponse\u201d a \u201cposition statement.\u201d 80 Ill. Adm. Code \u00a71210.100(b)(3), as amended by 28 Ill. Reg. 4172, 4190 (eff. February 19, 2004). As the name implies, all the position statement must do is set forth the employer\u2019s \u201cposition with respect to the matters asserted in the petition,\u201d including (if the employer knows) whether any of the individuals whom the petitioner seeks to represent should be excluded from the bargaining unit. 80 Ill. Adm. Code \u00a7 1210.100(b)(3), as amended by 28 Ill. Reg. 4172, 4190 (eff. February 19, 2004). Only if the employer alleges that the majority support was obtained through fraud or coercion must the employer initially provide any evidence in support of its position, and this evidence of fraud or coercion must be clear and convincing. 80 Ill. Adm. Code \u00a71210.100(b)(3), as amended by 28 Ill. Reg. 4172, 4190 (eff. February 19, 2004).\nAfter the employer files its position statement \u2014 supported or unsupported by evidence, depending on whether the employer alleges fraud or coercion \u2014 the Board \u201cor its agent,\u201d i.e., an ALJ, will investigate the union\u2019s majority-interest petition. 80 Ill. Adm. Code \u00a71210.100(b)(6), as amended by 28 Ill. Reg. 4172, 4191 (eff. February 19, 2004). If the investigation uncovers a potential weakness or insufficiency in either party\u2019s case, the ALJ may order the party to provide evidence supporting its position. Section 1210.100(b)(6) provides: \u201c[I]f, for any reason during the investigation, the Board or its agent discovers that the employer\u2019s objections to the majority interest petition are insufficient in either law or fact, the Board or its agent may issue an order to show cause requesting that the employer or union provide sufficient evidence to support its defenses.\u201d 80 Ill. Adm. Code \u00a71210.100(b)(6), as amended by 28 Ill. Reg. 4172, 4191 (eff. February 19, 2004). The wording of that sentence is somewhat enigmatic because it is unclear why the union should have to provide supporting evidence if the problem is with the employer\u2019s objections. Nevertheless, the basic idea appears to be that if, in the course of his or her investigation, the ALJ encounters what appears to be a legal or factual deficiency in either party\u2019s case, the ALJ can require the party to shore up the deficiency by the submission of \u201csufficient evidence.\u201d\nOne may reasonably infer that the goal behind this investigative procedure is to discover ahead of time, through documentary submissions, any fatal deficiency in either party\u2019s case instead of discovering the deficiency later on, after wasting time and resources in an administrative \u201ctrial.\u201d In this respect, the procedure in section 1210.100(b) is comparable to a summary-judgment procedure, except that the ALJ, rather than the parties, identifies the weakness that needs to be shored up. See 735 ILCS 5/2 \u2014 1005 (West 2008); Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 819, 416 N.E.2d 328, 333 (1981) (the benefits of the summary-judgment procedure \u201cinure not only to the litigants, in the saving of time and expenses, but to the community in avoiding congestion of trial calendars and the expenses of unnecessary trial\u201d).\nThus, the ALJ can call on the parties to assist in the investigation by supplying evidence to overcome or eliminate apparent problems, factual or legal, that the investigation discloses. If the problem is with a \u201cdefense,\u201d \u201c[f]ailure to provide sufficient evidence\u201d in response to a rule to show cause can result in a \u201cwaiver\u201d (or, to use the correct term, forfeiture) of that defense. 80 Ill. Adm. Code \u00a71210.100(b)(6), as amended by 28 Ill. Reg. 4172, 4191-92 (eff. February 19, 2004).\nThis collaborative investigation will culminate in one of three outcomes: (1) dismissal of the petition (80 Ill. Adm. Code \u00a71210.100(b)(7)(A), as amended by 28 Ill. Reg. 4172, 4192 (eff. February 19, 2004)), (2) certification of the petitioner as bargaining representative (80 Ill. Adm. Code \u00a71210.100(b)(7)(B), as amended by 28 Ill. Reg. 4172, 4192 (eff. February 19, 2004)), or (3) the scheduling of an oral hearing (80 Ill. Adm. Code \u00a71210.100(b)(7)(C), as amended by 28 Ill. Reg. 4172, 4192 (eff. February 19, 2004)). As in summary-judgment procedure, an oral hearing, or administrative \u201ctrial,\u201d is necessary only if the opposing documents (and any resulting procedural forfeiture) fail to resolve an important question about the petition \u2014 or, in the language of the rule, only if \u201cthe investigation discloses that there is reasonable cause to believe that there are unresolved issues relating to the question concerning representation.\u201d 80 Ill. Adm. Code \u00a7 1210.100(b)(7)(C), as amended by 28 Ill. Reg. 4172, 4192 (eff. February 19, 2004). Thus, the Board shall hold an oral hearing only if it has reasonable grounds for believing that the case presents unresolved issues, significant questions that have resisted resolution through the written submissions.\nHaving described the procedure that the Board was to follow in this case, we now turn our attention to the substantive law upon which that procedure operates. This is the law relating to \u201cmanagerial employees.\u201d\nD. Managerial Status\nCMS maintains that the sought-after employees, the eight ALJs employed at the Commission, are managerial employees. Whether the eight ALJs are managerial employees is of determinative importance to this case because the Illinois Public Labor Relations Act (Act) excludes managerial employees from the class of employees who are entitled to engage in collective bargaining. See 5 ILCS 315/3(n), 6(a) (West 2008).\nWhat is a \u201cmanagerial employee\u201d? Section 3(j) of the Act provides the following definition: \u201can individual who is engaged predominantly in executive and management functions and is charged with the responsibility of directing the effectuation of management policies and practices.\u201d 5 ILCS 315/3(j) (West 2008). We can break this definition down into two elements: (1) engaged predominantly in executive and management functions and (2) charged with the responsibility of directing the effectuation of management policies and practices.\nThe Act does not define \u201cexecutive and management functions,\u201d but the Board has explained that these functions amount to running an agency or department, such as by establishing policies and procedures, preparing the budget, or otherwise assuring that the agency or department operates effectively. American Federation of State, County & Municipal Employees, Council 31, 25 Pub. Employee Rep. (Ill.) par. 68, No. S\u2014RC\u201407\u2014174, at 277 (Illinois Labor Board, State Panel, May 12, 2009) (hereinafter 25 Pub. Employee Rep. (Ill.) par. 68); City of Freeport, 2 Pub. Employee Rep. (Ill.) par. 2052, No. S \u2014 RC\u2014181, at 381 (Illinois State Labor Relations Board, November 5, 1986). Unless a statute specially defines a term, we are to give the term its plain and ordinary meaning (Wahlman v. C. Becker Milling Co., 279 Ill. 612, 622, 117 N.E. 140, 144 (1917); Gekas v. Williamson, 393 Ill. App. 3d 573, 579, 912 N.E.2d 347, 353 (2009)), and the Board\u2019s definition of \u201cexecutive and management functions\u201d accords with the plain and ordinary meaning of \u201cexecutive\u201d and \u201cmanagement.\u201d An \u201cexecutive\u201d is someone who \u201cexercises administrative or managerial control\u201d (Merriam-Webster\u2019s Collegiate Dictionary 437 (11th ed. 2003)), and \u201cmanagement\u201d is \u201cthe collective body of those who manage or direct an enterprise\u201d (Merriam-Webster\u2019s Collegiate Dictionary 754 (11th ed. 2003)). In other words, executives or managers run the organization. Formulating policies and procedures and preparing the budget are among the types of things that executives or managers typically would have the authority to do.\nWhereas the first part of the statutory definition of a \u201cmanagerial employee\u201d describes the nature of the work to which the individual devotes most of his or her time, i.e., the performance of \u201cexecutive or management functions,\u201d that is, running the agency, the second part of the definition emphasizes that a managerial employee\u2019s authority extends beyond the realm of theorizing and into the realm of practice. See 5 ILCS 315/3(j) (West 2008). A managerial employee not only has the authority to make policy but also bears the responsibility of making that policy happen. Such a person \u201cis charged with the responsibility of directing the effectuation of management policies and practices.\u201d 5 ILCS 315/3(j) (West 2008). We have held that an individual directs the effectuation of management policies and practices if he or she \u201coversees or coordinates policy implementation through development of means and methods of achieving policy objectives, determines the extent to which the objectives will be achieved, and is empowered with a substantial amount of discretion to determine how policies will be effected.\u201d Department of Central Management Services v. Illinois State Labor Relations Board, 278 Ill. App. 3d 79, 87, 662 N.E.2d 131, 137 (1996) (CMS appeals grant of AFSCME\u2019s representation petition for corrections leisure activities specialist IV and certification, contending the employees were supervisors and managerial within the meaning of the Act).\nIn other words, managerial employees do not merely recommend policies or give advice that someone higher up is equally apt to take or leave; rather, they actually direct the governmental enterprise in a hands-on way. \u201cIf the employee\u2019s role is advisory and subordinate, the employee is not a managerial employee because it is the final responsibility and independent authority to establish and effectuate policy that determines management status.\u201d Department of Central Management Services, 278 Ill. App. 3d at 87, 662 N.E.2d at 136-37.\nOur remark about advisory employees\u2019 not being managerial employees is subject, however, to an important qualification, which the Board overlooks in its brief: an advisory employee who makes \u201c \u2018effective recommendations\u2019 \u201d can be managerial. Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations Board, 178 Ill. 2d 333, 339-40, 687 N.E.2d 795, 798 (1997), quoting National Labor Relations Board v. Yeshiva University, 444 U.S. 672, 683 n.17, 63 L. Ed. 2d 115, 126 n.17, 100 S. Ct. 856, 863 n.17 (1980). What are \u201ceffective recommendations\u201d? In a purely linguistic sense, they are, quite simply, recommendations that are followed. To be \u201ceffective\u201d means to \u201cproduc[e] a decided, decisive, or desired effect.\u201d Merriam-Webster\u2019s Collegiate Dictionary 397 (11th ed. 2006). Among the synonyms of \u201ceffective\u201d are \u201cpowerful\u201d and \u201cinfluential.\u201d Bartlett\u2019s Roget\u2019s Thesaurus 412.10 (1996). Hence, recommendations are \u201ceffective\u201d if they produce the effect they seek, that is, if they are implemented.\nIn Yeshiva, the Supreme Court seemed to understand the term \u201ceffective recommendations\u201d in this ordinary sense. In that case, the faculty members of a university, whom the union had petitioned to represent, not only controlled the academic policy of the university, but the central administration followed their advice on personnel matters almost all the time. Yeshiva, 444 U.S. at 677, 63 L. Ed. 2d at 122, 100 S. Ct. at 859. The union argued that the faculty was \u201cmerely advisory,\u201d but the Supreme Court took note of the effectiveness, the decisive influence, of the faculty\u2019s advice. \u201c[T]he fact that the administration holds a rarely exercised veto power does not diminish the faculty\u2019s effective power in policymaking and implementation,\u201d the Supreme Court said. Yeshiva, 444 U.S. at 683 n.17, 63 L. Ed. 2d at 126 n.17, 100 S. Ct. at 863 n.17. The recommendations of the faculty members \u201ceffectively controlled] or implemented] employer policy.\u201d Yeshiva, 444 U.S. at 683, 63 L. Ed. 2d at 126, 100 S. Ct. at 862. In addition to having absolute control over academic policy (Yeshiva, 444 U.S. at 686, 63 L. Ed. 2d at 128, 100 S. Ct. at 864), the faculty members had effective control over personnel policy, through their recommendations, which the administration almost always followed (Yeshiva, 444 U.S. at 677 & n.5, 63 L. Ed. 2d at 122 & n.5, 100 S. Ct. at 859 & n.5). Consequently, the Supreme Court agreed with the court of appeals that the faculty members were \u201c \u2018managerial employees\u2019 \u201d (Yeshiva, 444 U.S. at 682, 63 L. Ed. 2d at 125, 100 S. Ct. at 862), a term which case law and, ultimately, the National Labor Relations Board had defined as \u201cthose who \u2018 \u201cformulate and effectuate management policies by expressing and making operative the decisions of their employer\u201d \u2019 \u201d (Yeshiva, 444 U.S. at 682, 63 L. Ed. 2d at 125-26, 100 S. Ct. at 862, quoting National Labor Relations Board v. Bell Aerospace Co., Division of Textron, Inc., 416 U.S. 267, 288, 40 L. Ed. 2d 134, 150, 94 S. Ct. 1757, 1768 (1974), quoting In re Palace Laundry Dry Cleaning Corp., 75 N.L.R.B. 320, 323 n.4 (1947)).\nAccording to our own supreme court, the definition of a \u201cmanagerial employee\u201d in section 3(j) of the Act (5 ILCS 315/3(j) (West 2008)) is \u201cvery similar\u201d to the definition of a \u201cmanagerial employee\u201d in Yeshiva. Yeshiva, 444 U.S. at 683, 63 L. Ed. 2d at 125, 100 S. Ct. at 862; Chief Judge, 178 Ill. 2d at 339, 687 N.E.2d at 797. Further, our supreme court has made it clear that the concept of \u201c \u2018effective recommendations, \u2019 \u201d which the Supreme Court of the United States held to be applicable to the managerial exclusion in Yeshiva, applies with equal force to the managerial exclusion under the Illinois statute. Chief Judge, 178 Ill. 2d at 339-40, 687 N.E.2d at 798. The Board has incorporated \u201ceffective recommendations\u201d into its interpretation of the term \u201cmanagerial employee.\u201d\nThe problem, however, is that the Board has qualified the concept of \u201ceffective recommendations,\u201d and really, there should be no qualification, because, under Yeshiva, the concept means what it says. The Board has held that in order for recommendations to be effective, it is not enough that they are accepted almost all the time: the Board has added the qualification that they must be accepted with little or no \u201cindependent review\u201d or \u201cinvestigation.\u201d Metropolitan Alliance of Police, Sergeants Chapter No. 534, 26 Pub. Employee Rep. (Ill.) par. 7, No. S\u2014RC\u201409\u2014057, at 22 (Illinois Labor Board, State Panel, February 1, 2010); International Union of Operation Engineers, Local #7, 4 Pub. Employee Rep. (Ill.) par. 2041, No. S\u2014RC\u201488\u201456, at 299 (Illinois State Labor Relations Board, October 13, 1988). The test, though, is not the presence or absence of review. Any recommendation implies a review of some sort, if only of the recommendation. See City of Peru v. Illinois State Labor Relations Board, 167 Ill. App. 3d 284, 290, 521 N.E.2d 108, 113 (1988). Rather, the test is the effectiveness, power, or influence of the recommendations. Granted, acceptance of recommendations after only a cursory review could suggest a heavy reliance on the recommendations; but thorough reviews would not necessarily negate a reliance on the recommendations. Theoretically, a superior could always perform an independent investigation of the facts and yet almost invariably defer to the subordinate\u2019s judgment as to what to do about those facts. Or, alternatively, a superior could always perform an independent review of the recommendations, both in their facts and in their evaluation of the facts, and although the superior almost always approves the recommendations, it is not because of the influence of the recommendations themselves, but rather it is because the recommendations are almost always correct. All this is a way of saying that the criterion, properly speaking, is the effectiveness of the recommendations. The extent of review could be an indication of the effectiveness of the recommendations, but review is not the litmus test. Rather, the litmus test is the influence of the recommendations, i.e., whether they almost always persuade the superiors. Yeshiva, 444 U.S. at 677, 63 L. Ed. 2d at 122, 100 S. Ct. at 859-60.\nE. The Possible Managerial Status of the Eight ALJs\n1. The Effectiveness of Their Recommendations\nAfter this introduction to the managerial exclusion, we now turn our attention to the eight ALJ positions, as they are described in CMS\u2019s documentary submissions to the Board, to determine whether the Board committed clear error by finding no \u201cunresolved issue\u201d as the ALJs\u2019 managerial status (80 Ill. Adm. Code \u00a71210.100(b)(7)(C), as amended by 28 Ill. Reg. 4172, 4192 (eff. February 19, 2004)) or by finding that CMS, by an insufficiency in its documentary submissions, had forfeited its defense that the ALJs were managerial employees (see 80 Ill. Adm. Code \u00a71210.100(b)(6), as amended by 28 Ill. Reg. 4172, 4191-92 (eff. February 19, 2004)). See City of Chicago, 396 Ill. App. 3d at 72, 918 N.E.2d at 1113-14 (\u201cthis court reviews the Board\u2019s finding that a hearing was not required under the clearly erroneous standard\u201d).\nOne way of approaching this question is to compare the job functions of these ALJs to the overall mission of the Illinois Commerce Commission. If the responsibilities of a job title encompass the agency\u2019s entire mission, or a major component of its mission, one might reasonably argue that by fulfilling those responsibilities, an employee helps to run the agency. In other words, if the ALJs are, as a practical matter, the whole game when it comes to utility regulation\u2014 just as the faculty members in Yeshiva were the whole game when it came to academic policy \u2014 they arguably are managerial employees. In Yeshiva, 444 U.S. at 686, 63 L. Ed. 2d at 127-28, 100 S. Ct. at 864, the faculty had absolute authority over academic matters, such as what courses would be offered, when they would be scheduled, and to whom they would be taught. The faculty also determined the teaching methods, grading policies, and graduation standards. Yeshiva, 444 U.S. at 686, 63 L. Ed. 2d at 128, 100 S. Ct. at 864. The subject matter of the faculty\u2019s authority, or the subject matter on which the faculty made effective recommendations, pretty much described what the university was all about. The Supreme Court remarked: \u201cWhen one considers the function of a university, it is difficult to imagine decisions more managerial than these.\u201d Yeshiva, 444 U.S. at 686, 63 L. Ed. 2d at 128, 100 S. Ct. at 864.\nLikewise, when we consider the function of the Commission, as set forth in sections 4 \u2014 101 and 4 \u2014 201 of the Public Utilities Act (220 ILCS 5/4 \u2014 101, 4 \u2014 201 (West 2008)), it appears to be the function, broadly stated, of the ALJs \u2014 or at least they appear to have prominent roles in the fulfillment of that function. According to section 4 \u2014 101, \u201c[t]he Commerce Commission shall have general supervision of all public utilities\u201d (220 ILCS 5/4 \u2014 101 (West 2008)), and section 4 \u2014 201 makes it \u201cthe duty of the Commission to see that the provisions of the Constitution and statutes of this State affecting public utilities *** are enforced and obeyed\u201d (220 ILCS 5/4 \u2014 201 (West 2008)). That also is what the ALJs do, effectively. According to CMS\u2019s position statement, the ALJs participate in the enforcement of laws applicable to public utilities by holding quasi-judicial hearings. \u201cThe major part of their responsibilities is to hear petitions brought by public utilities as to rate increases; citations against them regarding, for example, transmission issues; to hear disputes between utilities such as telephone companies; and to hear consumer complaints.\u201d The ALJs also conduct hearings on proposed rules. The end result of these hearings is a recommended order that the ALJ presents to the Commission. In its response to the rule to show cause, CMS says that the Commission rarely makes any substantive modification of these recommended orders and that \u201coutright reversals are even rarer.\u201d According to \u201ca conservative estimate by the Chief Administrative Law Judge,\u201d the Commission adopts the ALJs\u2019 recommendations 95% of the time.\nIt appears, then, that this procedure by which the ALJs hold hearings and issue recommended orders, which the Commission adopts almost all the time, is the primary means, if not the exclusive means, by which the Commission fulfills its statutory mandate of regulating public utilities. CMS made, at minimum, a plausible claim when it wrote to the Board: \u201c[T]hese [ALJs] are the employees the Employer primarily relies upon to effectively carry out the Commission\u2019s regulatory duties.\u201d If the members of the Commission make and implement policy through the issuance of orders, and if their orders are almost always the ALJs\u2019 recommended orders (with the title of the document changed and the chairman\u2019s signature added at the end), a good argument could be made that the ALJs make effective recommendations on major policy and the implementation of such policy. See Yeshiva, 444 U.S. at 683 n.17, 63 L. Ed. 2d at 126 n.17, 100 S. Ct. at 863 n.17.\nIf an ostensibly advisory employee exercises managerial authority through his or her recommendations on major policy issues, which the superiors almost always accept, we will look beyond the formal structure of the employee\u2019s participation in the enterprise, i.e., the making of recommendations, and take account of the power that the employee actually wields. Functionally, if there is not much difference between the employee\u2019s recommendation and a managerial order, we will treat them as the same for purposes of the managerial exclusion. See Chief Judge, 178 Ill. 2d at 339-40, 687 N.E.2d at 798.\n2. Formulating, or Directing the Effectuation of, Policy\nThe union contends that although the eight ALJs are \u201cinvolved in carrying out\u201d policy, they neither formulate policy nor direct the effectuation of policy. Again, to be a managerial employee, an individual must do two things. First, the individual must be \u201cengaged predominantly in executive and management functions.\u201d 5 ILCS 315/3(j) (West 2008). These functions \u201crelate to running a department and include such activities as formulating department policy, preparing the budget, and assuring efficient and effective operations of the department.\u201d Village of Elk Grove Village v. Illinois State Labor Relations Board, 245 Ill. App. 3d 109, 121-22, 613 N.E.2d 311, 320 (1993). Second, the employee must direct the effectuation of management policies and practices. 5 ILCS 315/3(j) (West 2008); Elk Grove Village, 245 Ill. App. 3d at 122, 613 N.E.2d at 320.\nAs for the first element, it is not absolutely essential that a managerial employee formulate policy. Formulating policy is merely one example of running an agency. If formulating policy were the sine qua non of the managerial exclusion, one could envision a situation in which the highest-ranking official of an agency, the director, would not be a managerial employee. Theoretically, a director could consider the existing regulations and procedures of an agency to be perfectly adequate, and the director might see no need to create any new policies. Yet it would be absurd to deny that such a director is a managerial employee, because, as the highest-ranking employee, this director has the responsibility of running the department.\nRunning the department might or might not entail the creation of new policies, but it will always entail \u201cdirecting the effectuation\u201d of existing policies. 5 ILCS 315/3(j) (West 2008). By their recommended orders, which the Commission almost always accepts without modification, the ALJs appear to be directing the effectuation of the State\u2019s policies regarding public utilities. For example, exhibit A of CMS\u2019s response to the order to show cause is an order of the Commission, which we are to understand was drafted by one of the ALJs in question, and this order, adopted by the Commission on January 24, 2006, appears to direct the effectuation of policies set forth in section 1 \u2014 102 of the Public Utilities Act (220 ILCS 5/1 \u2014 102(a) (iv) (West 2006)) and section 16 \u2014 112(a) of the Electric Service Customer Choice and Rate Relief Law of 1997 (1997 Law) (220 ILCS 5/16 \u2014 112(a) (West 2006)), among other Illinois statutes. In re Commonwealth Edison Co., No. 05 \u2014 0159 (January 24, 2006) (unpublished Illinois Commerce Commission order). In exhibit A, written by an ALJ, the Commission approves a \u201ccompetitive auction process,\u201d thereby directing the effectuation of the policy in section 1 \u2014 102 that \u201ctariff rates for the sale of various public utility services *** accurately reflect the cost of delivering those services\u201d (220 ILCS 5/1 \u2014 102(a) (iv) (West 2006)) as well as the policy in section 16 \u2014 112(a) of determining the market value of electric power and energy. Pursuant to the 1997 Law, Commonwealth Edison had divested itself of its power-generating facilities, choosing to obtain all of its power supply from the wholesale market. Consequently, Commonwealth Edison\u2019s cost of delivering electricity to its customers would henceforth be the market price that Commonwealth Edison paid for the electricity. The goal was to devise an auction process, as well as a procedure for reviewing the auction, that would effectuate the statutory policies of protecting consumers while giving Commonwealth Edison just and reasonable compensation for the electric service it provided. The \u201ccompetitive auction procurement mechanism\u201d described in the Commission\u2019s order, exhibit A (which, presumably, is the ALJ\u2019s recommended order verbatim), is calculated to direct the effectuation of those policies.\nE The Question of Managerial Status as a Matter of Law\nSimultaneously with this opinion, we are issuing an opinion in Department of Central Management Services/Human Rights Comm\u2019n v. Illinois Labor Relations Board, State Panel, 406 Ill. App. 3d 310 (2010), (CMS/HRC), in which we conclude that ALJs of the Illinois Human Rights Commission are managerial employees as a matter of law (CMS/HRC, 406 Ill. App. 3d at 317). In that opinion, we compare the ALJs of the Human Rights Commission to the assistant State\u2019s Attorneys in Cook County State\u2019s Attorney v. Illinois Local Labor Relations Board, 166 Ill. 2d 296, 652 N.E.2d 301 (1995), and the assistant public defenders in Chief Judge. CMS/HRC, 406 Ill. App. 3d at 315-16. The supreme court held, in Cook County State\u2019s Attorney, 166 Ill. 2d at 303, 652 N.E.2d at 304, that assistant State\u2019s Attorneys were managerial employees as a matter of law because they were \u201csurrogates\u201d of State\u2019s Attorneys. Likewise, in Chief Judge, 178 Ill. 2d at 344, 687 N.E.2d at 800, the supreme court held that assistant public defenders were managerial employees as a matter of law because they were \u201csurrogates\u201d of public defenders. In CMS/HRC, 406 Ill. App. 3d at 316-17, we conclude that \u201cthe ALJs\u2019 actions are closely identified with those of the [Human Rights] Commission\u201d in the way that the actions of assistant State\u2019s Attorneys and assistant public defenders are closely identified with those of their superiors, of which they are surrogates.\nNaturally, then, the question might be asked, Why do we not draw an analogous conclusion in the present case: why do we not conclude that the ALJs in this case are so closely identified with the members of the Illinois Commerce Commission as to be their surrogates and therefore managerial employees as a matter of law? The reason is a difference in administrative procedures from one agency to the other, specifically the procedures relating to \u201cexceptions.\u201d\n\u201cExceptions\u201d are a party\u2019s written arguments against the recommended order that an ALJ issues after an evidentiary hearing or administrative trial. It appears that under the statutory law and administrative rules, the lack of exceptions does not have the same legal consequence before the Commerce Commission as before the Human Rights Commission. In CMS/HRC, 406 Ill. App. 3d at 316, we note that under section 8A \u2014 103(A) of the Illinois Human Rights Act (775 ILCS 5/8A \u2014 103(a) (West 2008)), if no exceptions are filed to the ALJ\u2019s recommended order, the recommended order automatically becomes the final order of the Human Rights Commission as if the members of the Human Rights Commission themselves issued the order. The lack of exceptions deprives the Human Rights Commission of any power to gainsay the recommended decision of its ALJ. Section 8A \u2014 103(A) says: \u201cIf no exceptions are filed, the recommended order shall become the order of the [Human Rights] Commission without further review.\u201d 775 ILCS 5/8A \u2014 103(A) (West 2008).\nWe are unaware, however, of any comparable procedural provision in the Public Utilities Act (220 ILCS 5/1 \u2014 101 through 22 \u2014 503 (West 2008)) or implementing regulations. Although the procedure before the Commerce Commission appears to be somewhat comparable to that before the Human Rights Commission in that the ALJ issues a recommended order (220 ILCS 5/10 \u2014 111 (West 2008)), to which the parties may file exceptions (83 Ill. Adm. Code \u00a7\u00a7200.820(a)(1), 200.830, as amended by 20 Ill. Reg. 10607, 10627-28, eff. August 15, 1996), we are unaware of any statute or rule that automatically makes the ALJ\u2019s recommended order the final order of the Commerce Commission in the absence of exceptions. Instead, after receiving the ALJ\u2019s recommended order, the Commerce Commission is supposed to make its own decision, even if it receives no exceptions. \u201cFollowing receipt of the proposed order of the Hearing Examiner and any briefs of the parties, and following oral argument, if any, the Commission shall make its decision and shall serve a copy of its order upon all parties in the manner provided by Section 10 \u2014 112 of the Public Utilities Act [(220 ILCS 5/10 \u2014 112 (West 2008))].\u201d 83 Ill. Adm. Code \u00a7200.860 (Conway Greene CD-ROM June 2000). The term \u201cbriefs,\u201d in this context, includes \u201cbriefs on exceptions\u201d (83 Ill. Adm. Code \u00a7200.830, as amended by 20 Ill. Reg. 10607, 10627-28, eff. August 15, 1996), and the phrase \u201cany briefs\u201d contemplates the theoretical possibility that there might be no briefs and no exceptions \u2014 in which event, the Commerce Commission will issue its own decision anyway.\nHence, unlike an ALJ of the Human Rights Commission, an ALJ of the Commerce Commission does not become a surrogate, i.e., a substitute or alter ego, of the commission members whenever there is an absence of exceptions. Exceptions or no exceptions, the members of the Commerce Commission retain the power and duty to issue their own order, their own decision, after receipt of the ALJ\u2019s recommended order. Under no circumstances is an ALJ of the Commerce Commission clothed with the ultimate power of the commission members; therefore, the ALJ is not a managerial employee as a matter of law within the meaning of Chief Judge and Cook County State\u2019s Attorney. Cf. Cook County State\u2019s Attorney, 166 Ill. 2d at 303, 652 N.E.2d at 304, quoting People v. Nahas, 9 Ill. App. 3d 570, 575, 292 N.E.2d 466, 470 (1973) (\u201c \u2018An Assistant State\u2019s Attorney is generally clothed with all the powers and privileges of the State\u2019s Attorney ***\u2019 \u201d).\nIII. CONCLUSION\nFor the foregoing reasons, we reverse the Board\u2019s decision in cases Nos. S \u2014 RC\u201410\u2014034 and S \u2014 RC\u201410\u2014036 and remand those cases for further administrative proceedings on the question of whether the eight ALJs in question are managerial employees.\nReversed and remanded.\nSTEIGMANN and McCULLOUGH, JJ., concur.", "type": "majority", "author": "JUSTICE APPLETON" } ], "attorneys": [ "Joseph M. Gagliardo and Lawrence Jay Weiner (argued), Special Assistant Attorneys General, of Chicago, for appellant.", "Melissa J. Auerbach (argued), of Cornfield & Feldman, of Chicago, for appellee American Federation of State, County, and Municipal Employees.", "Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Sharon A. Purcell (argued), Assistant Attorney General, of counsel), for other appellees." ], "corrections": "", "head_matter": "THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES/ILLINOIS COMMERCE COMMISSION, Petitioner-Appellant, v. THE ILLINOIS LABOR RELATIONS BOARD, STATE PANEL, et al., Respondents-Appellees.\nFourth District\nNo. 4\u201409\u20140792\nArgued August 8, 2010.\nOpinion filed December 28, 2010.\nJoseph M. Gagliardo and Lawrence Jay Weiner (argued), Special Assistant Attorneys General, of Chicago, for appellant.\nMelissa J. Auerbach (argued), of Cornfield & Feldman, of Chicago, for appellee American Federation of State, County, and Municipal Employees.\nLisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Sharon A. Purcell (argued), Assistant Attorney General, of counsel), for other appellees." }, "file_name": "0766-01", "first_page_order": 782, "last_page_order": 799 }