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FOURTH DIVISION
NOVEMBER 29, 2001

Plaintiff, Michael Moller, filed an administrative reviewcomplaint alleging defendants, Civil Service Commission of the Cityof Blue Island (Commission) and Police Chief Joseph Kosman,violated section 10-1-13 (65 ILCS 5/10-1-13 (West 2000) (section10-1-13)) of the Illinois Municipal Code (65 ILCS 5/1-1-1 et seq.(West 2000) (Code)) and Article IX of the Commission's Rules andRegulations (Article IX) by not promoting him to the rank ofcorporal.⁽¹⁾ The circuit court of Cook County affirmed theCommission's and Chief Kosman's decisions not to promote plaintiff. Thereafter, plaintiff moved to reconsider, which the court denied. Plaintiff appeals.

The issues presented in this appeal include whether: (1)plaintiff's right to promotion constituted a protected propertyinterest; and (2) the circuit court's affirmance of theCommission's and Chief Kosman's decisions not to promote plaintiffwas legally erroneous.

On January 14, 1997, the Commission posted a final eligibilitylist naming ten officers for promotion to the rank of policecorporal.⁽²⁾ The Commission then submitted Cornell, plaintiff andPodbielniak as promotion candidates to Chief Kosman. On or aboutJanuary 20, 1997, Chief Kosman promoted the highest ratedcandidate, Cornell, to the rank of corporal.

On August 12, 1998, the Commission certified the next threenames from the final eligibility list, those being plaintiff,Podbielniak and Morey, as candidates for promotion. Morey, thefourth highest rated candidate, was promoted to the rank ofcorporal on September 11, 1998, after which only one promotionremained.

In October 1998, the Commission selected three more names forpromotion from the final eligibility list, including plaintiff's;however, Chief Kosman promoted Podbielniak, the third highest ratedcandidate, to the rank of corporal.

Plaintiff filed a two-count administrative review complaint onDecember 1, 1998, alleging the Commission and Chief Kosman violatedsection 10-1-13 of the Code⁽³⁾ and Article IX⁽⁴⁾ because they bypassedhim for promotion twice as the highest rated candidate and thriceas the second highest rated candidate. Alternatively, plaintiffargued that the Commission should have selected only plaintiff asthe candidate for promotion to the rank of corporal or should havedirected Chief Kosman to promote plaintiff to ensure compliancewith section 10-1-13 and Article IX. Plaintiff, in Count II of hiscomplaint, sought a declaratory judgment, temporary restrainingorder and other injunctive relief.

The instant matter was briefed fully and argued before thecircuit court on October 6, 1999. During the hearing, the partiesagreed that the final eligibility list, dated January 14, 1997, wasthe "original roster," and that plaintiff was rated second on thatlist. The court affirmed the Commission's and Chief Kosman'sdecisions not to promote plaintiff, agreeing with defendants'contention that plaintiff remained the second highest ratedcandidate on the original register and was not passed over as theperson having the second highest rating on that register more thantwice. Plaintiff then moved to reconsider, which the court denied. Plaintiff filed a timely notice of appeal.

Judicial review of an administrative agency action extends toall questions of law and fact presented in the record and furtherprovides that the agency's findings and conclusions on questions offact shall be held prima facie true and correct. City of Freeportv. Illinois State Labor Relations Board, 135 Ill. 2d 499, 507, 554N.E.2d 155 (1990) (Freeport). A reviewing court may reverse theagency's finding of fact only if it was against the manifest weightof the evidence. Freeport, 135 Ill. 2d at 507. Where a legalquestion is involved, such as the proper interpretation of astatute, the agency's finding is not binding on the reviewingcourt. Freeport, 135 Ill. 2d at 507; Stec v. Oak Park PolicePension Board, 204 Ill. App. 3d 556, 561-62, 561 N.E.2d 1234(1990). Generally, courts will accord deference to an agency'sstatutory interpretation; however, the interpretation will berejected when erroneous. City of Decatur v. Illinois State LaborRelations Board, 122 Ill. 2d 353, 361, 522 N.E.2d 1219 (1988).

Plaintiff initially asserts that section 10-1-13 and ArticleIX created a protected property right which required the Commissionto submit only plaintiff's name for promotion to the rank ofcorporal or, alternatively, mandated Chief Kosman to select him forpromotion.

To determine the existence of a property interest, courts lookto "'existing rules or understandings that stem from an independentsource such as state law.'" Nowak v. City of Calumet City, 648 F.Supp. 1557, 1559 (N.D. Ill. 1986) (Nowak), quoting Cleveland Boardof Education v. Loudermill, 470 U.S. 532, 541, 84 L. Ed. 2d 494,503, 105 S. Ct. 1487, 1491 (1985). A person claiming the propertyinterest must show more than a unilateral expectation of thatinterest amounting to a "'legitimate claim of entitlement.'" Nowak, 648 F. Supp. at 1560, quoting Board of Regents of StateColleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S.Ct. 2701, 2709 (1972). The legitimate expectations of the propertyinterest holder, however, may be created by state statute or localordinances (Nowak, 648 F. Supp. at 1560), or may arise from lessformal sources such as rules or "mutually explicit understandingsbetween the parties." Perry v. Sindermann, 408 U.S. 593, 602, 33L. Ed. 2d 570, 580, 92 S. Ct. 2694, 2699 (1972); Valentine v.Joliet Township High School District No. 204, 802 F.2d 981, 983(7th Cir. 1986).

The Seventh Circuit in United States v. City of Chicago, 869F.2d 1033, 1036 (7th Cir. 1989) (Chicago), found that Illinois lawdoes not create an entitlement to promotion because section 10-1-13gives the promoting authorities unfettered discretion to choosefrom among a number of the highest rated applicants for eachavailable promotion, depending on the population size of themunicipality. See also Bigby v. City of Chicago, 766 F.2d 1053,1056-57 (7th Cir. 1985) (holding that there is no constitutionalright, unrelated to racial or other discrimination, to rationaltest for promotion to a higher rung in civil service of state ormunicipality); McCoy v. Board of Fire and Police Commissioners, 79Ill. App. 3d 742, 744, 398 N.E.2d 1020 (1979) (finding that thepromotion of a patrolman to sergeant is one of discretion and thatplaintiff had no vested right to promotion). A roster ranking maycreate an expectation of promotion, but an officer has noentitlement to that promotion.⁽⁵⁾ Chicago, 869 F.2d at 1038.

In the instant case, plaintiff cites no provisions in section10-1-13 or Article IX supporting his argument that he had aprotected property right to the promotion. Nothing in the recordshows that the Commission or Chief Kosman failed to followappropriate procedures for making promotions or that theirdecisions were arbitrary or unreasonable.

Based upon the foregoing, plaintiff was not deprived of aprotected property interest when the Commission and Chief Kosmandid not promote him.

Plaintiff next contends that the circuit court's rulingaffirming the Commission's and Chief Kosman's decisions was legallyerroneous because after Cornell was promoted, plaintiff became thehighest rated officer on the final eligibility list andsubsequently was passed over twice by the promotions of Morey andPodbielniak, in violation of section 10-1-13 and Article IX. Plaintiff also avers that even if he remained as the second highestrated officer on the list, he was passed over thrice by thepromotions of Cornell, Morey and Podbielniak, in contravention ofsection 10-1-13 and Article IX.

In construing a statute, the reviewing court's primaryobjective is to ascertain and give effect to the intent of thelegislature. People v. Robinson, 172 Ill. 2d 452, 457, 667 N.E.2d1305 (1996) (Robinson). The most reliable indicator of legislativeintent is the plain and ordinary meaning of the language used inthe statute. Robinson, 172 Ill. 2d at 457. Where the language isclear and unambiguous, the statute must be applied without thefurther aids of statutory construction. Robinson, 172 Ill. 2d at457.

Here, construing the clear and unambiguous language in bothsection 10-1-13 and Article IX, plaintiff was neither passed overmore than once as the person having the highest rating on theoriginal register, nor passed over more than twice as the secondhighest rated officer. During the hearing on his complaint,plaintiff agreed that the final eligibility list, dated January 14,1997, was the "original roster." Cornell held the highest ratedposition on the list and, as the first to be promoted, he did notbypass plaintiff because plaintiff was rated at a lower position. Thereafter, contrary to his assertion, plaintiff remained in thesecond highest rated position "on the original register."

Plaintiff relies on Morrisey to support his argument that onceCornell was promoted, he became the person with the highest ratingon the original register. In Morrisey, the appellate court heldthat plaintiff, a police officer who ranked 22nd out of 67candidates on a promotional list, could not be denied a promotionin favor of candidates rated lower on the list. 74 Ill. App. 3d at685-86. Defendants argued that if section 10-1-13 controlled, thenthe requirement that the first and second persons having thehighest ratings shall not be passed over more than once and twicedid not apply to plaintiff; rather, the statute applied only to thefirst two names appearing on the original list of 67 candidates. The court found defendants' contention was without merit andcontrary to the purpose of section 10-1-13, stating, "[i]f suchwere the case, then none of the remaining candidates would have anyrights at all and the statue would be of little value." Morrisey,74 Ill. App. 3d at 686. Plaintiff in the case sub judicemisconstrues the Morrisey court's analysis.

The Morrisey court's ruling did not find that plaintiff movedfrom his 22nd position once an officer rated ahead of him waspromoted; rather, it found that the language in section 10-1-13applies to more than those candidates rated first and second on thelist, meaning that although a person is rated 22nd on the list, hecannot be passed over more than twice by someone rated lower. Morrisey's interpretation of section 10-1-13 requires applicationof the statute by first noting the position of the candidate on theoriginal register and then assessing whether the candidate waspassed over. Morrisey does not stand for the proposition that oncesomeone rated higher is promoted, then the original registerchanges by moving others into higher rated positions.

In the instant case, plaintiff was listed as the second ratedcandidate on the original register and remained in that positionafter Cornell's promotion. When Morey and Podbielniak werepromoted to corporal, they both passed over plaintiff because theywere rated lower than him. Construing the language of section 10-1-13 and Article IX, however, plaintiff was not passed over morethan twice while rated second on the original register and,therefore, the Commission and Chief Kosman did not violate thestatute or municipal rules and regulations by not promoting him.

Accordingly, the decision of the circuit court of Cook Countywas not legally erroneous, requiring affirmance of the court'sfindings and conclusions.

Affirmed.

HOFFMAN, P.J., and THEIS, J., concur.

1. Frank Podbielniak also is listed as a defendant inplaintiff's complaint, but stated in his second affirmativedefense that "at all relevant times he was a patrolman in theCity of Blue Island Police Department" and "had no authority topromote plaintiff or to act on promotions within" the policedepartment. Plaintiff insists Podbielniak is an interested partyto these proceedings.

2. The final eligibility list rated the ten officers based ona numeric score as follows:

            Cornell, Michael 96.7

            Moller, Michael 92.7

           Podbielniak, Frank 83.0

            Kirpach, Gregory 80.7

            Flavin-Anderson, Julie 78.0

            Schooley, Daniel 75.3

            Cistaro, Joseph 71.4

            Schultz, Jamie 68.6

            Stahmer, Erick 68.4

3. Section 10-1-13 provides, in pertinent part:

"The commission shall, by its rules, providefor promotions in such classified service onthe basis of ascertained merit and seniorityin service and examination and shall provide,in all cases where it is practicable, thatvacancies shall be filled by promotion. *** The commission shall submit to the appointingpower the names of not more than 3 applicantsfrom each promotion having the highest rating***, but in making his selection theappointing authority shall not pass over theperson having the highest rating on theoriginal register more than once and shallnot pass over the person having the secondhighest rating in the original register morethan twice." 65 ILCS 5/10-1-13 (West 2000).

4. Article IX, entitled "Certification of PromotionalAppointments," adopted the same language as section 10-1-13,namely, that the head of the department, in making his selection,"shall not pass over the person having the highest rating on theoriginal Register more than once and shall not pass over theperson having the second highest rating on the original Registermore than twice."

5. Plaintiff cites Morrisey v. Rochford, 74 Ill. App. 3d 682,394 N.E.2d 5 (1979) (Morrisey) to support his assertion of aprotected property interest because the appellate court affirmedthe circuit court's finding that a property right was created bysection 10-1-13. Plaintiff's reliance on Morrisey is misplacedbecause there, the court specifically found it unnecessary todiscuss the property right issue. 74 Ill. App. 3d at 686.