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FIRST DIVISION
August 19, 2002

JUSTICE COUSINS delivered the opinion of the court:

After an evidentiary hearing, the Civil Service Commissionof Cook County (Commission) issued findings and a decisionsustaining sexual harassment and insubordination charges made bya female Cook County Forest Preserve District (District) policeofficer, Cynthia Spina, against police officer Michael Nudell. The Commission ordered that Nudell be terminated as a policeofficer. On March 25, 1998, the Commission served its decisionby mailing a copy of it to Nudell's attorney. Nudell's attorneyreceived the decision on April 6, 1998. Nudell filed a complaintfor administrative review on May 5, 1998. The District moved todismiss the action as untimely. The circuit court denied theDistrict's motion to dismiss. Upon administrative review, thecircuit court held that the charges against Nudell were "vagueand overbroad while others [were] completely without support inthe record." However, the circuit court held that the charge ofinsubordination was supported by the record. The circuit courtremanded the case for further proceedings.

On remand, following another hearing, the Commission issuedits findings and decided that the sexual harassment andinsubordination charges against Nudell had been sustained andwarranted his termination. Nudell sought administrative review. The Commission's holding was reversed by the circuit court.

The Commission now presents the following issues uponappeal: (1) whether Nudell's initial complaint foradministrative review was timely and properly before the circuitcourt; (2) whether the circuit court abused its discretion bydeciding the case based on a due process argument that Nudell hadnot made before the Commission or the circuit court, and thus hadwaived; (3) whether the charges against Nudell violated dueprocess; (4) whether there is evidence in the record thatsupports the Commission's findings against Nudell; and (5)whether the Commission's decision to discharge Nudell forinsubordination and sexual harassment was arbitrary,unreasonable, or unrelated to the requirements of the service.

BACKGROUND

Michael Nudell began working as a police officer for theDistrict in October 1987. A female police officer alleged that,beginning in 1995, Nudell engaged in ongoing sexual harassment. The District conducted an internal investigation and pre-disciplinary hearing. On June 12, 1997, Nudell was suspended for29 days, pending a hearing before the Commission regardingcharges of ongoing sexual harassment of a fellow officer andinsubordination to her authority. On June 20, 1997, districtgeneral superintendent Joseph Nevius provided a written requestthat the Commission remove Nudell from service.

On January 27, 1998, the Commission conducted a hearing onthe charges against Nudell. On March 3, 1998, the Commissiondecided to terminate Nudell's employment. On March 25, 1998, theCommission served its decision by mailing a copy of it toNudell's attorney at the office the District had on file for him(Gary L. Bailey, Staff Attorney, Illinois Fraternal Order ofPolice, 6345 W. Joliet Road, Countryside, Illinois 60525). Nudell's attorney received the decision on April 6, 1998. In aletter dated April 27, 1998, Nudell's attorney informed theCommission that Nudell would appeal the Commission's decision andthat the correspondence was intended as a request to prepare hiscivil service hearing record for appeal. On May 5, 1998, Nudellfiled a complaint for administrative review.

On June 9, 1998, the District filed a motion to dismissNudell's motion for administrative review under sections 2-615and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619(West 1998)), asserting that the Counties Code (55 ILCS 5/3-14001et seq. (West 1998)) did not adopt the provisions of theAdministrative Review Law (735 ILCS 5/3-101 et seq. (West 1998)). The District further asserted that if the claim was properlybrought under administrative review, Nudell failed to file hiscomplaint within 35 days from the date that a copy of thedecision sought to be reviewed was served upon him. On July 23,1998, the circuit court dismissed the District's motion todismiss.

On March 5, 1999, upon administrative review, the circuitcourt reversed and remanded the case back to the Commission forfurther proceedings. In its written order, the circuit courtnoted that the Commission, using the Manual of Rules andRegulations of the Department of Law Enforcement (Manual ofRules), charged Nudell with several violations of the rules. Thecourt reasoned that some of the charges were "vague and overbroadwhile others are completely without support in the record." Thecourt held that absent a published policy on sexual harassment,"supporting the decision below becomes problematic." Relative tothe single charge of insubordination, the court noted that theManual of Rules clearly defined what constituted insubordinationand the record supported the Commission's finding that Nudell didcommit the act. However, the court stated that it "would needmore information to uphold a decision to discharge Nudell on thebasis of the single incident of insubordination chronicled inthis record."

Nudell filed a complaint in the United States District Courtfor the Northern District of Illinois, Eastern Division (Nudellv. Nevius, No. 98-C-3719 (N.D. Ill. April 5, 1999)), based on thecircuit court's focus on due process and equal protection issues. The federal case was stayed pending the resolution of the statecourt proceedings.

On May 25, 1999, the Commission conducted a hearing pursuantto the circuit court's March 1999 remand. Several officerstestified, including the female officer that was allegedlysubjected to the sexual harassment, Nudell's supervisor, andNudell, himself.

In its November 5, 1999, written order, the Commission heldthat Nudell "clearly violated departmental rules relating to lackof courtesy, wilful maltreatment of a person and maintaining aprofessional demeanor, as well as other rules cited by [theDistrict]." The Commission found that the District maintained aspecific sexual harassment policy and that Nudell's "outrageousand recurring conduct" violated that policy. The Commission heldthat the sexual harassment and insubordination charges weresustained and were sufficient to support the termination ofNudell's employment.

On December 2, 1999, Nudell filed a complaint foradministrative review of the Commission's November 1999 decision,asserting that the decision was erroneous, contrary to the priorcourt ruling, and contrary to the manifest weight of the evidenceintroduced at the Commission hearing.

On April 19, 2000, Nudell filed a motion for judgmentseeking reversal of the Commission's findings and decision. Themotion asserted that the Commission based its decision on factorsoutside the scope of the remand, the finding of insubordinationwas against the manifest weight of the evidence, Nudell was neverinformed of the rules against sexual harassment, and Nudell didnot commit sexual harassment.

In July 19, 2000, the District filed a motion in oppositionto Nudell's request for administrative review. That motionasserted that Nudell's insubordination warranted discharge, theCommission's decision to consider the District's rules regardingsexual harassment was consistent with the remand order, theCommission's decision in the initial hearing was fully supportedby the evidence, and the rules which Nudell violated were notfatally vague or otherwise unenforceable.

On August 19, 2000, the circuit reversed the decision of theCommission, reasoning that "[d]ischarge for that sole offense ofinsubordination, under the circumstances of this case is tooharsh a penalty." Further, "[h]ad the District intended tocharge Nudell with sexual harassment, they should have done so. Instead, as this Court ruled in the previous case, the chargesbrought against Nudell are vague and not directed to specificconduct in a way that would have provided him with meaningful dueprocess."

ANALYSIS

I

The District's preliminary assertion is that Nudell'sinitial complaint for administrative review did not vest thecircuit court with subject matter jurisdiction because it wasfiled more than 35 days after service of the Commission'sdecision. Nudell responds that the Commission's decision wasnever served on Nudell, was mailed to an incorrect address forhis attorney, and was not received until April 6, 1998.

Section 3-103 of the Administrative Review Law (735 ILCS5/3-103 (West 1998)) provides:

"Every action to review a final administrative decisionshall be commenced by the filing of a complaint and theissuance of summons within 35 days from the date that a copyof the decision sought to be reviewed was served upon theparty affected by the decision ***." (Emphasis added.) 735ILCS 5/3-103 (West 1998).

A decision is considered served when it is deposited in theUnited States mail. Lutheran General Health Care System v.Department of Revenue, 231 Ill. App. 3d 652, 659, 595 N.E.2d 1214(1992), citing Cox v. Board of Fire & Police Commissioners, 96Ill. 2d 399, 403, 451 N.E.2d 842 (1983). Moreover, Supreme CourtRule 11(a) (145 Ill. 2d R. 11(a)) provides that "[i]f a party isrepresented by an attorney of record, service shall be made uponthe attorney." Therefore, service of the decision on Nudell'sattorney, rather than Nudell, was sufficient.

When ruling on a motion to dismiss, the trial court mustinterpret all pleadings and supporting documents in the lightmost favorable to nonmoving party. Carver v. Nall, 186 Ill. 2d554, 557, 714 N.E.2d 486 (1999). The court should grant themotion only if the plaintiff can prove no set of facts that wouldsupport the cause of action. Carver, 186 Ill. 2d at 557. Onappeal, review of a decision on a motion to dismiss is de novo. In re Chicago Flood Litigation, 176 Ill. 2d 179, 189, 680 N.E.2d265 (1997).

The Commission in the instant case made its initial decisionto terminate Nudell on March 3, 1998. The record includes anaffidavit from Patricia Marcy, administrator for the Commission,which affirms that she deposited a copy of the Commission'sdecision addressed to Nudell's attorney's office on March 25,1998, in the United States certified mail, with return receiptrequested. Also, attached to the affidavit was a copy of thereturn receipt reflecting Nudell's attorney received the documenton April 6, 1998. Nudell filed his complaint for administrativereview on May 5, 1998.

We hold that the 35-day period provided in section 3-103 ofthe Administrative Review Law (735 ILCS 5/3-103 (West 1998))commenced when the decision was deposited in the United Statesmail. See Cox, 96 Ill. 2d at 402-03. Thus, Nudell's May 5,1998, motion for administrative review was not timely. In orderfor Nudell's motion to have been timely, the AdministrativeReview Law required that it be filed on April 29, 1998, orsooner, as April 29, 1998, was the thirty-fifth day following theMarch 25, 1998, mailing.

Accordingly, the circuit court in the instant case erred indenying the District's motion to dismiss the initial complaintfor administrative review, as the court lacked jurisdiction. Forthe foregoing reasons, the circuit court's order is vacated andthe orders of the Commission discharging Nudell are reinstated.

Based upon our holding to vacate the circuit court's orderdue to lack of jurisdiction, we do not reach the other issuespresented on appeal.

Order vacated.

COHEN, P.J., and TULLY, J., concur.