Cook County State's Attorney v. Illinois State Labor Relations Board
Annotate this Case
FIRST DIVISION
SEPTEMBER 2, 1997
No. 1-96-1235
COOK COUNTY STATE'S ATTORNEY, ) PETITION FOR REVIEW
) OF AN ORDER OF THE
Petitioner, ) ILLINOIS STATE LABOR
) RELATIONS BOARD.
v. )
)
ILLINOIS STATE LABOR RELATIONS BOARD and )
AMERICAN FEDERATION OF STATE, COUNTY, )
AND MUNICIPAL EMPLOYEES, COUNCIL 31, )
)
Respondents. )
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:
Petitioner Cook County State's Attorney's Office (State's Attorney,
Office) appeals a final decision and order entered by respondent Illinois
State Labor Relations Board (Board, ISLRB) finding that the State's Attorney
engaged in an unfair labor practice as charged by respondent American Federa-
tion of State, County, and Municipal Employees, Council 31 (AFSCME, Union).
The record on appeal indicates the following undisputed facts. On
June 29, 1995, AFSCME filed an unfair labor practice charge against the
State's Attorney with the Board. AFSCME charged that the Office fired Ms.
Carol Hilan, who had been a Homicide Compensation Coordinator with the Victim-
Witness Unit of the Office, effective April 21, 1995, due to her involvement
in the organizing campaign of the Union. AFSCME charged violations of
sections 10(a)(1) and (2) of the Illinois Public Labor Relations Act (5 ILCS
315/10(a)(1),(2) (1994))(Act).
On August 11, 1995, the Board served the State's Attorney with the
charge by certified mail. An accompanying letter states that Board Agent Hans
DeKok would probably require the Office to submit a statement of position in
the matter. The Board's letter was received on August 17, 1995. The Office
mailed its appearance by Assistant State's Attorney (ASA) Maureen Hannon,
dated August 23, 1995, to the Board.
A letter from ASA Hannon to DeKok dated September 27, 1995, marked "VIA
HAND DELIVERY," presented the State's Attorney's statement of position. The
Office's position was that the personnel who fired Hilan -- Chris Orozco, Ken
Kamps and Anne Harney -- had no knowledge of Hilan's union activity. Affida-
vits by Orozco, Kamps and Harney to this effect were attached to the Office's
statement. The Office also attached similar affidavits by Hilan's former
supervisors.
The State's Attorney's position was that Hilan was fired due to substan-
dard performance. The Office submitted 3 prior written reprimands for leaving
work without authorization, as well as a response written by Hilan. The
Office's position was that on February 28, 1995, a co-worker of Hilan was
searching for a file on a crime victim's compensation application, when she
found a number of unopened envelopes from other applicants in Hilan's desk.
The Office claimed that some of these envelopes were postmarked from October,
November and December 1994, as well as January 1995.
On November 21, 1995, the Board mailed a "Complaint for Hearing" to the
State's Attorney, charging an unfair labor practice by firing Hilan due to her
union activities. The complaint also stated that:
"RESPONDENT [Office] IS HEREBY NOTIFIED that
pursuant to Section 1220.40(c) of the Board's Rules
and Regulations [80 Ill. Adm. Code 1220.40 (c)
(1994)], it must file an answer to this Complaint and
serve a copy thereof upon the Charging Party within 15
days of the service of the Complaint upon it. Said
Answer shall include an express admission, denial or
explanation of each and every allegation of this
Complaint. Failure to specifically respond to an
allegation shall be deemed an affirmative admission of
the facts or conclusions alleged in the allegation.
Failure to timely file an answer shall be deemed an
admission of all material facts or legal conclusions
alleged, and a waiver of hearing. The filing of any
motions or other pleadings will not stay the time for
filing an answer."
The complaint further states that a hearing on the matter would be conducted
by Jacqueline Bachman and Administrative Law Judge (ALJ) of the Board.
On December 14, ALJ Bachman issued an "Order to Show Cause" why the
State's Attorney should not be found in default. The order states that the
complaint was delivered to the State's Attorney by certified mail on Novem-
ber 27, 1995; accordingly, the answer was due on December 12, 1995. The order
states that the State's Attorney did not file an answer until December 13,
1995.
The record contains a letter dated December 14, 1995, from ASA Sally
Comin to ALJ Bachman. The letter states that ASA Hannon, to whom the case was
originally assigned, left the Office for private practice on November 30,
1995. The case was assigned to ASA Comin on November 29, 1995. The letter
states that ASA Comin telephoned ALJ Bachman upon being assigned the case, and
asserts that it was the Office's expectation that it would have 15 days from
the telephone call to file the answer. ASA Comin wrote that she had needed
time to review the case and supervisory approval to file the answer. The
letter asserts that the Charging Party was not prejudiced because the answer
was filed less than 3 hours late. The letter also states that the Office
believed it had a meritorious defense to the complaint, based on its prior
statement of position.
The Office also timely filed a formal response to the order to show
cause. The facts asserted in the response are similar to those recited in the
Office's December 14, 1995, letter. The response adds that when ASA Comin
informed her supervisor, ASA John Murphy, that she had telephoned ALJ Bachman,
ASA Murphy mistakenly assumed that ASA Comin had obtained an extension of time
for filing the answer. An affidavit by ASA Murphy states that his assumption
was based on his past experience with the interaction of the Office with Board
personnel. ASA Murphy's affidavit also states that it was his policy to
require his approval of all responsive pleadings by ASAs who are recent law
school graduates, and this policy applied to ASA Comin.
The Office argued that it should not be found in default, based on
section 1200.160 of the Board's Rules and Regulations (80 Ill. Adm. Code
1200.160 (1994)), which provides that the Board may waive or suspend its rules
under certain circumstances. On January 3, 1996, ALJ Bachman issued a
recommended decision and order denying the Office's request for a waiver.
Thus, the allegations of the Union's complaint were deemed admitted. Accord-
ingly, ALJ Bachman concluded that the State's Attorney illegally fired Hilan
due to her Union-related activity.
The State's Attorney timely filed exceptions to the recommended decision
and order. However, on March 8, 1996, the Board issued a final decision and
order accepting ALJ Bachman's recommended decision and order as its decision.
In a footnote, the Board agreed that a variance under section 1200.160 was not
warranted because the State's Attorney had not shown that the 15 day period
was unreasonable or unnecessarily burdensome in this case. The State's
Attorney now appeals.
The State's Attorney contends that the Board erred in refusing to grant
a variance from the Board's Rules and Regulations. Section 1220.40(c) of the
Board's rules governs the filing of the respondent's answer to the unfair
labor practice complaint:
"Whenever a complaint for hearing is issued, the
respondent must file an answer within 15 days after
service of the complaint.
1) The answer shall include a specific admis-
sion, denial or explanation of each allegation
or issue of the complaint or, if the respondent
is without knowledge thereof, it shall so state
and such statement shall operate as a denial.
Admissions or denials may be made to all or part
of an allegation but shall fairly meet the cir-
cumstances of the allegation.
2) The answer shall also include a specific,
detailed statement of any affirmative defenses
including, but not limited to, allegations that
the violation occurred more than six months be-
fore the charge was filed, that the Board lacks
jurisdiction over the matter, or that the com-
plaint fails to allege an unfair labor practice.
3) Parties who fail to file timely answers shall
be deemed to have admitted the material facts
alleged in the complaint and to have waived
their rights to a hearing. The failure to an-
swer any allegation shall be deemed an admission
of that allegation." 80 Ill. Adm. Code
1220.40(c) (1994).
Section 1200.160 of the Board's rules (80 Ill. Adm. Code 1200.160 (1994))
provides that:
"The provisions of these rules may be waived or sus-
pended by the Board when it finds that:
(a) The provision from which the variance is granted
is not statutorily mandated;
(b) No party will be injured by the granting of the
variance; and
(c) The rule from which the variance is granted
would, in the particular case, be unreasonable
or unnecessarily burdensome."
Section 1200.160 was raised in Metz v. Illinois State Labor Relations Bd., 231
Ill. App. 3d 1079, 596 N.E.2d 855 (1992), but was deemed waived because Metz
failed to raise it before the Board. Metz, 231 Ill. App. 3d at 1097, 596 N.E.2d at 866. Thus, the case is one of first impression in this court.
This court has held that the Illinois Educational Labor Relations Board
(IELRB) may, in its discretion, excuse the untimely filing of an answer.
Board of Education of Thornton Township High School District No. 205 v.
Illinois Educational Labor Relations Board, 235 Ill. App. 3d 724, 731, 600 N.E.2d 1313, 1317 (1992)(Thornton). It would seem logical that the Board
possessed similar discretion in this case.
Generally, courts will not interfere with an agency's discretion unless
it is exercised in an arbitrary or capricious manner or its decision is
against the manifest weight of the evidence. Murdy v. Edgar, 103 Ill. 2d 384,
391, 469 N.E.2d 1085, 1088 (1984). Agency action is arbitrary and capricious
if it contravenes the legislature's intent, fails to consider a crucial aspect
of the problem, or offers an explanation so implausible that it runs contrary
to agency expertise. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 505-06, 524 N.E.2d 561, 581 (1988). An agency abuses its
discretion when it imposes a sanction that is unduly harsh in light of
mitigating circumstances. Sender v. Dept. of Professional Regulation, 262
Ill. App. 3d 918, 922-23, 635 N.E.2d 849, 852 (1994). In addition, an
agency's refusal to exercise discretion in the erroneous belief that it has no
discretion may be deemed an abuse of discretion. See Moffitt v. Illinois
Power Co., 248 Ill. App. 3d 752, 758, 618 N.E.2d 1305, 1309 (1993).
An agency's interpretation of its own rules and regulations and its
long-standing interpretation of the provisions of its enabling statute are
given deference, because they flow from the agency's expertise; however, an
agency's resolution of questions of law are not binding on a reviewing court.
See T.M. Madden v. Dept. of Revenue, 272 Ill. App. 3d 212, 215, 651 N.E.2d 218, 220 (1995); A. Finkl & Sons Co. v. Illinois Commerce Commission, 250 Ill.
App. 3d 317, 323, 620 N.E.2d 1141, 1145 (1993). A court may defer to an
agency's interpretation of law where it has been subject to judicial review.
Walgreen Co. v. Selcke, 230 Ill. App. 3d 442, 448, 595 N.E.2d 89, 93 (1992).
However, in a matter of first impression, the reviewing court will exercise de
novo review. Carter Coal Co. v. Human Rights Commission, 261 Ill. App. 3d 1,
6, 633 N.E.2d 202, 206 (1994). Finally, a reviewing court may inquire into
the method used by an agency to achieve the result at issue. Union Electric
Co. v. Illinois Commerce Commission, 77 Ill. 2d 364, 376, 396 N.E.2d 510, 516
(1979), citing City of Alton v. Commerce Commission, 19 Ill. 2d 76, 80, 165 N.E.2d 513, 516 (1960). Given these standards, we turn to consider the
application of section 1200.160 to this case.
A
The State's Attorney argues that the requirements of section 1220.40(c)
are not statutorily mandated. The Board concedes this in its brief. We
agree.
B
The State's Attorney next argues that no party would be injured by the
granting of a variance. During oral argument, the Board suggested that it
might be prejudiced to the extent that a waiver would not further a public
policy favoring the speedy resolution of labor disputes.
This court has recognized the need for the speedy resolution of educa-
tional labor disputes in cases involving the IELRB. Board of Trustees of the
University of Illinois v. Illinois Educational Labor Relations Board, 274 Ill.
App. 3d 145, 154, 653 N.E.2d 882, 887 (1995); Thornton, 235 Ill. App. 3d at
729, 600 N.E.2d at 1316. It must be remembered that the policy underlying the
Illinois Educational Labor Relations Act:
"recognizes that substantial differences exist between
educational employees and other public employees as a
result of the uniqueness of the educational work cal-
endar and educational work duties and the traditional
and historical patterns of collective bargaining
between educational employers and educational employ-
ees and that such differences demand statutory regula-
tion of collective bargaining between educational
employers and educational employees in a manner that
recognizes these differences." 115 ILCS 5/1 (1992).
This case is not an educational labor dispute. The unique work calendar of
educational employees may require a degree of speed above that needed in a
typical public employment dispute.
The Board cites no authority for the proposition that a similarly urgent
need for speed exists here. This court has affirmed the Board's adoption of
procedures that delay Board proceedings, over the objection that such proce-
dures hindered the speedy resolution of public employment disputes. E.g.,
American Federation of State County and Mun. Employees, Council 31, AFL-CIO v.
Illinois State Labor Relations Bd., County of Menard, 187 Ill. App. 3d 585,
599, 543 N.E.2d 562, 570 (1989). Moreover, the rules at issue must be read
in accordance with the Act, which grants the State's Attorney the right to
file an answer and appear at a hearing on the charges.
The Board issued the complaint in this case almost 5 months after AFSCME
filed its charge with the Board, which occurred approximately 2 months after
Hilan was fired. This record suggests that time was not of the essence for
either the Union or the Board prior to the late filing of the answer. The
record contains no indication of any injury to any party resulting from the
delay in filing the answer that was not already suffered during the prior
months.
The Board claims that "in promulgating a bright-line fifteen-day rule,
[it] relieved itself of having to make ad hoc exceptions to the rule."
However, the Board has granted relief from the late filing of an answer in the
past. Illinois Nurses' Association (Durietz), 2 PERI 2003 (IL SLRB 1985).
The Board has acknowledged that there are cases where "the policies of the Act
would be better served by a post hoc granting of an extension for responding
to the complaint." See County of Jefferson and Circuit Court of Jefferson
County, 7 PERI 2042, at X-203 n.4. (IL SLRB 1991). Section 1200.160
expressly permits the Board to waive its rules; a contrary interpretation of
the rule would be plainly erroneous.
The Board also states that "even if no prejudice would result from
allowing a late answer to be filed, a default is still proper." However, the
issue is whether a waiver is warranted in this case, not whether a default is
proper. Section 1200.160 expressly includes the lack of prejudice to any
party as a factor. Ignoring this factor would be plainly erroneous.
In sum, the record does not show that any party would have been injured
by the granting of the variance.
C
Finally, the State's Attorney contends that application of section
1220.40(c) would, in this particular case, be unreasonable or unnecessarily
burdensome. The Board responds by citing a number of authorities for the
proposition that this court and the Board have consistently held that the
presence of a short delay and a meritorious defense does not prevent a
default. See Board of Trustees of the University of Illinois v. Illinois
Educational Labor Relations Board, 274 Ill. App. 3d 145, 653 N.E.2d 882
(1995); Metz, 231 Ill. App. 3d at 1079, 596 N.E.2d at 855; Peoria Housing
Authority, 11 PERI 2033 (IL SLRB 1995); Chicago Housing Authority, 10 PERI
3010 (IL SLRB 1994); County of Jefferson, 7 PERI 2042. None of these cases
involved section 1200.160, except Metz, where the argument was waived.
The Board did reject a section 1200.160 request in Illinois Secretary of
State, 11 PERI 2027 (IL SLRB 1995). The respondent in that case negligently
filed its answer 3 days late and apparently did not claim it had a meritorious
defense. The ALJ decided that the respondent failed "to demonstrate that the
rule requiring timely filing of an answer was unreasonable or unnecessarily
burdensome." Illinois Secretary of State, 11 PERI 2027 at X-164. The Board
adopted the ALJ's recommended decision and order without discussing the
section 1200.160 issue. Illinois Secretary of State, 11 PERI 2027 at X-162.
Of course, section 1200.160(c) requires a finding "in the particular
case," which suggests that other cases may not be determinative. The rule
prevents the Board from arbitrarily refusing to consider the facts of the
particular case. Moreover, Illinois Secretary of State is distinguishable
from this case. In this case, the delay in filing was closer to 3 hours than
3 days. Unlike Illinois Secretary of State, the Office has alleged a merito-
rious defense in this case. Indeed, the Office had already submitted a
statement of position in this case, including affidavits and other evidence.
The Board and the Union note that the State's Attorney failed to request
an extension of time for filing the answer under the Board's rules. See 80
Ill. Adm. Code 1200.30(d)(1) (1994). This factor, which addresses the
respondent's diligence in following the proceedings against it, is the only
factor expressly noted in the Board's order. In order to determine whether a
lack of diligence by itself supports the Board's decision here, this court
must inquire into the method employed by the Board in determining whether a
variance is warranted under section 1200.160(c). This is a question of first
impression; the material facts are undisputed.
Although the parties use similar phrases, such as "good cause," "just
reason" and "valid excuse," they ultimately offer differing interpretations of
the "unreasonable or unnecessarily burdensome" standard. The cases cited by
the Office apply the standard for vacating a judgment under section 2-1301(e)
of the Code of Civil Procedure (735 ILCS 5/2-1301(e) (1996)(Code), whereas the
cases cited by the Board and the Union apply the standard for vacating a
judgment under section 2-1401 of the Code (735 ILCS 5/2-1401 (1996)).
This court decided a similar issue with respect to the rules of the
IELRB in Thornton. Thornton, 235 Ill. App. 3d at 727-31, 600 N.E.2d at 1315-
17. We have followed Thornton in a similar IELRB case. University of
Illinois, 274 Ill. App. 3d at 151-54, 653 N.E.2d at 885-87. Thus, we turn to
discuss Thornton and the question of whether it is applicable in this case.
In Thornton, the IELRB had adopted a regulation that provided that leave
to file a late answer could be granted by the hearing officer for good cause
shown, which would include facts showing a meritorious defense to the com-
plaint and a reasonable excuse explaining the party's failure to file a timely
answer. Thornton, 235 Ill. App. 3d at 725-26, 600 N.E.2d at 1313 (citing 80
Ill. Adm. Code 1120.30(d)(4) (1991)). The IELRB had previously ruled that
"good cause" was the same as the standard for vacating a judgment under
section 2-1401 of the Code. Thornton, 235 Ill. App. 3d at 727-28, 600 N.E.2d
at 1315.
On a respondent's appeal from a default judgment, the IELRB noted that
the phrase "reasonable excuse" appeared in case law interpreting section 2-
1401. Thornton, 235 Ill. App. 3d at 728, 600 N.E.2d at 1315. The respondent
in Thornton argued for the application of the more lenient standard of section
2-1301(e). Thornton, 235 Ill. App. 3d at 729, 600 N.E.2d at 1315. This court
stated that section 2-1301(e) was more analogous because the respondent sought
relief at the time the default was entered. Thornton, 235 Ill. App. 3d at
729, 600 N.E.2d at 1316. However, the Thornton court held that the IELRB's
interpretation of its regulation was not arbitrary or unreasonable. Thornton,
235 Ill. App. 3d at 729, 600 N.E.2d at 1316.
Thornton and its progeny are distinguishable from this case in at least
three respects. First, as noted above, this case does not involve an educa-
tional labor dispute. We recognize that substantial differences exist
between educational employment disputes and other public employment disputes.
Moreover, in University of Illinois, this court was concerned that departing
from Thornton would encourage forum-shopping between the First and Fourth
Districts of this court, because IELRB decisions are reviewable only in the
districts where the IELRB maintains offices. 274 Ill. App. 3d at 153-54, 653 N.E.2d at 887. In contrast, ISLRB decisions are reviewed in the district
where the respondent resides or transacts business. 5 ILCS 315/11(e) (1996).
The Board conceded at oral argument that forum-shopping was not at issue here.
Second, in Thornton, the IELRB had expressly adopted the 2-1401 standard
for its rule. In this case, the Board has announced a policy of strict
compliance with the 15 day rule, but has not identified any case expressly
adopting the section 2-1401 standard in reference to section 1200.160.
Indeed, there is no indication here of what factors the Board considered in
reaching its decision, aside from the Office's failure to request an extension
of time. The Board appears to be adopting the section 2-1401 standard for the
first time in this appeal. There is no long-standing construction of this
rule by the Board in similar cases. Nor has any Board decision under section
1200.160 been subject to judicial review.
Third, the IELRB rules differ from section 1200.160. The rule at issue
in Thornton expressly requires showing a "reasonable excuse," a phrase long
associated with the section 2-1401 standard. Section 1200.160(b) includes the
lack of prejudice to any party, a factor associated with section 2-1301(e),
not with section 2-1401. Thornton, 235 Ill. App. 3d at 730, 600 N.E.2d at
1316. Section 1200.160(c) refers to whether the rule from which a waiver is
sought would be "unreasonable or unnecessarily burdensome" in a given case.
Section 2-1401 does not primarily focus on the reasonableness of the default.
In contrast, cases interpreting section 2-1301(e) state that the "overriding
consideration" is whether it is reasonable to compel the parties to go to
trial in a particular case. E.g., City of Chicago v. Central National Bank,
134 Ill. App. 3d 22, 25, 479 N.E.2d 1040, 1043 (1985).
In sum, Thornton and its progeny do not compel this court to conclude
that the Board did not err in refusing to grant a variance. Rather, the
analysis undertaken in Thornton suggests that a more lenient standard is
appropriate, given the Board's rule and that respondent sought relief at the
time the default was entered.
However, we are not required to reach this conclusion definitively at
this time, because the Office meets the higher standard suggested by the Board
and the Union. As noted above, the cases cited by the Board and the Union
apply the standards of section 2-1401 of the Code. Thus, to be entitled to
relief, the defaulted party must set forth specific factual allegations
establishing: (1) the existence of a meritorious defense or claim; (2) due
diligence in presenting this defense or claim in the original action; and (3)
due diligence in filing the petition for relief. Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381, 1386 (1986). In this case, the Office:
set forth a meritorious defense; had timely notified the Board of this defense
in a statement of position, including sworn affidavits; and sought relief
immediately upon discovery of the late filing.
Moreover, assuming arguendo that the filing of the statement of position
did not show diligence, the Office would still prevail. The Board fails to
recognize that diligence at the time of entry of the judgment is not the only
consideration where defendant has a meritorious defense and actively pursues
attempts to vacate a judgment order. E.g., Fiala v. Schulenberg, 256 Ill.
App. 3d 922, 628 N.E.2d 660 (1993)(and cases cited therein).
The Board also has overlooked cases holding that the negligence of
counsel may be excused where mitigating circumstances are present. See, e.g.,
Leavens, Armiros & Ross, Ltd. v. English, 203 Ill. App. 3d 16, 560 N.E.2d 1031
(1990). The actual notice to the Board of the Office's position and defense
should have been considered as a mitigating circumstance, even under a section
2-1401 standard. Moreover, in deciding whether to vacate a default judgment
involving public parties, the Board should have considered the interests of
the community -- particularly the interest in ensuring that crime victims are
properly served -- as well as the public interest of the Office in enforcing
its employment rules as mitigating circumstances. See 5 ILCS 315/2 (1996);
Biscan v. Melrose Park Board of Fire and Police Commissioners, 277 Ill. App.
3d 844, 848, 661 N.E.2d 424, 428 (1996); cf. Collins v. Collins, 14 Ill. 2d 178, 184, 151 N.E.2d 813, 816 (1958)(vacating decree after 30 days, despite
wrongdoing of parties, where there was State interest in protection of
marriage). If the Board believed it had no discretion in this case, as
suggested by the tone of its brief, it was in error.
In addition, there are factors in this case that warrant reversal under
any rational interpretation of section 1200.160. For example, we note that
the Board's rules provide that a document is considered filed on the date it
is postmarked or tendered to a delivery service. 80 Ill. Adm. Code
1200.20(e) (1994). The Board has acknowledged that mailing through the U.S.
postal service is "tendering to a delivery service." See Illinois Secretary
of State, 11 PERI 2027 at X-163. It is common knowledge that the capability
of the postal service is such that there is no guarantee that a letter mailed
will be received the next morning. See Angelo v. Board of Review, Dept. of
Labor, 58 Ill. App. 3d 50, 52, 373 N.E.2d 858, 860 (1978).
In this case, the answer was filed approximately 3 hours late. Had the
State's Attorney mailed its answer on December 12, 1995, it would have been
deemed timely, but it almost undoubtedly would have been received by the Board
later than it was actually received in this case. Thus, the Board's refusal
to waive section 1220.40(c) was simply arbitrary, particularly given the
mitigating circumstances present in this case.
Moreover, the Board concluded that it would not be unreasonable or
unnecessarily burdensome for the Office to answer within 15 days. However,
the 15 day period is only one facet of section 1220.40(c). The Board's
decision and order carries no indication that it considered whether it was
reasonable in this case to apply section 1220.40(c)(3) -- the provision which
deems the allegations of the compliant to be admitted and a hearing to be
waived. The Board apparently failed to consider this crucial aspect of the
issue and imposed a sanction that was unduly harsh in light of the mitigating
circumstances in this case.
For all of the aforementioned reasons, the decision of the Board is
reversed and the case is remanded for further proceedings consistent with this
opinion.
Reversed and remanded.
BUCKLEY, J., concurs.
O'BRIEN, J., dissents.
SEPTEMBER 2, 1997
No. 1-96-1235
COOK COUNTY STATE'S ATTORNEY, ) PETITION FOR REVIEW
) OF AN ORDER OF THE
Petitioner, ) ILLINOIS STATE LABOR
) RELATIONS BOARD.
v. )
)
ILLINOIS STATE LABOR RELATIONS BOARD and )
AMERICAN FEDERATION OF STATE, COUNTY, )
AND MUNICIPAL EMPLOYEES, COUNCIL 31, )
)
Respondents. )
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:
Petitioner Cook County State's Attorney's Office (State's Attorney,
Office) appeals a final decision and order entered by respondent Illinois
State Labor Relations Board (Board, ISLRB) finding that the State's Attorney
engaged in an unfair labor practice as charged by respondent American Federa-
tion of State, County, and Municipal Employees, Council 31 (AFSCME, Union).
The record on appeal indicates the following undisputed facts. On
June 29, 1995, AFSCME filed an unfair labor practice charge against the
State's Attorney with the Board. AFSCME charged that the Office fired Ms.
Carol Hilan, who had been a Homicide Compensation Coordinator with the Victim-
Witness Unit of the Office, effective April 21, 1995, due to her involvement
in the organizing campaign of the Union. AFSCME charged violations of
sections 10(a)(1) and (2) of the Illinois Public Labor Relations Act (5 ILCS
315/10(a)(1),(2) (1994))(Act).
On August 11, 1995, the Board served the State's Attorney with the
charge by certified mail. An accompanying letter states that Board Agent Hans
DeKok would probably require the Office to submit a statement of position in
the matter. The Board's letter was received on August 17, 1995. The Office
mailed its appearance by Assistant State's Attorney (ASA) Maureen Hannon,
dated August 23, 1995, to the Board.
A letter from ASA Hannon to DeKok dated September 27, 1995, marked "VIA
HAND DELIVERY," presented the State's Attorney's statement of position. The
Office's position was that the personnel who fired Hilan -- Chris Orozco, Ken
Kamps and Anne Harney -- had no knowledge of Hilan's union activity. Affida-
vits by Orozco, Kamps and Harney to this effect were attached to the Office's
statement. The Office also attached similar affidavits by Hilan's former
supervisors.
The State's Attorney's position was that Hilan was fired due to substan-
dard performance. The Office submitted 3 prior written reprimands for leaving
work without authorization, as well as a response written by Hilan. The
Office's position was that on February 28, 1995, a co-worker of Hilan was
searching for a file on a crime victim's compensation application, when she
found a number of unopened envelopes from other applicants in Hilan's desk.
The Office claimed that some of these envelopes were postmarked from October,
November and December 1994, as well as January 1995.
On November 21, 1995, the Board mailed a "Complaint for Hearing" to the
State's Attorney, charging an unfair labor practice by firing Hilan due to her
union activities. The complaint also stated that:
"RESPONDENT [Office] IS HEREBY NOTIFIED that
pursuant to Section 1220.40(c) of the Board's Rules
and Regulations [80 Ill. Adm. Code 1220.40 (c)
(1994)], it must file an answer to this Complaint and
serve a copy thereof upon the Charging Party within 15
days of the service of the Complaint upon it. Said
Answer shall include an express admission, denial or
explanation of each and every allegation of this
Complaint. Failure to specifically respond to an
allegation shall be deemed an affirmative admission of
the facts or conclusions alleged in the allegation.
Failure to timely file an answer shall be deemed an
admission of all material facts or legal conclusions
alleged, and a waiver of hearing. The filing of any
motions or other pleadings will not stay the time for
filing an answer."
The complaint further states that a hearing on the matter would be conducted
by Jacqueline Bachman and Administrative Law Judge (ALJ) of the Board.
On December 14, ALJ Bachman issued an "Order to Show Cause" why the
State's Attorney should not be found in default. The order states that the
complaint was delivered to the State's Attorney by certified mail on Novem-
ber 27, 1995; accordingly, the answer was due on December 12, 1995. The order
states that the State's Attorney did not file an answer until December 13,
1995.
The record contains a letter dated December 14, 1995, from ASA Sally
Comin to ALJ Bachman. The letter states that ASA Hannon, to whom the case was
originally assigned, left the Office for private practice on November 30,
1995. The case was assigned to ASA Comin on November 29, 1995. The letter
states that ASA Comin telephoned ALJ Bachman upon being assigned the case, and
asserts that it was the Office's expectation that it would have 15 days from
the telephone call to file the answer. ASA Comin wrote that she had needed
time to review the case and supervisory approval to file the answer. The
letter asserts that the Charging Party was not prejudiced because the answer
was filed less than 3 hours late. The letter also states that the Office
believed it had a meritorious defense to the complaint, based on its prior
statement of position.
The Office also timely filed a formal response to the order to show
cause. The facts asserted in the response are similar to those recited in the
Office's December 14, 1995, letter. The response adds that when ASA Comin
informed her supervisor, ASA John Murphy, that she had telephoned ALJ Bachman,
ASA Murphy mistakenly assumed that ASA Comin had obtained an extension of time
for filing the answer. An affidavit by ASA Murphy states that his assumption
was based on his past experience with the interaction of the Office with Board
personnel. ASA Murphy's affidavit also states that it was his policy to
require his approval of all responsive pleadings by ASAs who are recent law
school graduates, and this policy applied to ASA Comin.
The Office argued that it should not be found in default, based on
section 1200.160 of the Board's Rules and Regulations (80 Ill. Adm. Code
1200.160 (1994)), which provides that the Board may waive or suspend its rules
under certain circumstances. On January 3, 1996, ALJ Bachman issued a
recommended decision and order denying the Office's request for a waiver.
Thus, the allegations of the Union's complaint were deemed admitted. Accord-
ingly, ALJ Bachman concluded that the State's Attorney illegally fired Hilan
due to her Union-related activity.
The State's Attorney timely filed exceptions to the recommended decision
and order. However, on March 8, 1996, the Board issued a final decision and
order accepting ALJ Bachman's recommended decision and order as its decision.
In a footnote, the Board agreed that a variance under section 1200.160 was not
warranted because the State's Attorney had not shown that the 15 day period
was unreasonable or unnecessarily burdensome in this case. The State's
Attorney now appeals.
The State's Attorney contends that the Board erred in refusing to grant
a variance from the Board's Rules and Regulations. Section 1220.40(c) of the
Board's rules governs the filing of the respondent's answer to the unfair
labor practice complaint:
"Whenever a complaint for hearing is issued, the
respondent must file an answer within 15 days after
service of the complaint.
1) The answer shall include a specific admis-
sion, denial or explanation of each allegation
or issue of the complaint or, if the respondent
is without knowledge thereof, it shall so state
and such statement shall operate as a denial.
Admissions or denials may be made to all or part
of an allegation but shall fairly meet the cir-
cumstances of the allegation.
2) The answer shall also include a specific,
detailed statement of any affirmative defenses
including, but not limited to, allegations that
the violation occurred more than six months be-
fore the charge was filed, that the Board lacks
jurisdiction over the matter, or that the com-
plaint fails to allege an unfair labor practice.
3) Parties who fail to file timely answers shall
be deemed to have admitted the material facts
alleged in the complaint and to have waived
their rights to a hearing. The failure to an-
swer any allegation shall be deemed an admission
of that allegation." 80 Ill. Adm. Code
1220.40(c) (1994).
Section 1200.160 of the Board's rules (80 Ill. Adm. Code 1200.160 (1994))
provides that:
"The provisions of these rules may be waived or sus-
pended by the Board when it finds that:
(a) The provision from which the variance is granted
is not statutorily mandated;
(b) No party will be injured by the granting of the
variance; and
(c) The rule from which the variance is granted
would, in the particular case, be unreasonable
or unnecessarily burdensome."
Section 1200.160 was raised in Metz v. Illinois State Labor Relations Bd., 231
Ill. App. 3d 1079, 596 N.E.2d 855 (1992), but was deemed waived because Metz
failed to raise it before the Board. Metz, 231 Ill. App. 3d at 1097, 596 N.E.2d at 866. Thus, the case is one of first impression in this court.
This court has held that the Illinois Educational Labor Relations Board
(IELRB) may, in its discretion, excuse the untimely filing of an answer.
Board of Education of Thornton Township High School District No. 205 v.
Illinois Educational Labor Relations Board, 235 Ill. App. 3d 724, 731, 600 N.E.2d 1313, 1317 (1992)(Thornton). It would seem logical that the Board
possessed similar discretion in this case.
Generally, courts will not interfere with an agency's discretion unless
it is exercised in an arbitrary or capricious manner or its decision is
against the manifest weight of the evidence. Murdy v. Edgar, 103 Ill. 2d 384,
391, 469 N.E.2d 1085, 1088 (1984). Agency action is arbitrary and capricious
if it contravenes the legislature's intent, fails to consider a crucial aspect
of the problem, or offers an explanation so implausible that it runs contrary
to agency expertise. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 505-06, 524 N.E.2d 561, 581 (1988). An agency abuses its
discretion when it imposes a sanction that is unduly harsh in light of
mitigating circumstances. Sender v. Dept. of Professional Regulation, 262
Ill. App. 3d 918, 922-23, 635 N.E.2d 849, 852 (1994). In addition, an
agency's refusal to exercise discretion in the erroneous belief that it has no
discretion may be deemed an abuse of discretion. See Moffitt v. Illinois
Power Co., 248 Ill. App. 3d 752, 758, 618 N.E.2d 1305, 1309 (1993).
An agency's interpretation of its own rules and regulations and its
long-standing interpretation of the provisions of its enabling statute are
given deference, because they flow from the agency's expertise; however, an
agency's resolution of questions of law are not binding on a reviewing court.
See T.M. Madden v. Dept. of Revenue, 272 Ill. App. 3d 212, 215, 651 N.E.2d 218, 220 (1995); A. Finkl & Sons Co. v. Illinois Commerce Commission, 250 Ill.
App. 3d 317, 323, 620 N.E.2d 1141, 1145 (1993). A court may defer to an
agency's interpretation of law where it has been subject to judicial review.
Walgreen Co. v. Selcke, 230 Ill. App. 3d 442, 448, 595 N.E.2d 89, 93 (1992).
However, in a matter of first impression, the reviewing court will exercise de
novo review. Carter Coal Co. v. Human Rights Commission, 261 Ill. App. 3d 1,
6, 633 N.E.2d 202, 206 (1994). Finally, a reviewing court may inquire into
the method used by an agency to achieve the result at issue. Union Electric
Co. v. Illinois Commerce Commission, 77 Ill. 2d 364, 376, 396 N.E.2d 510, 516
(1979), citing City of Alton v. Commerce Commission, 19 Ill. 2d 76, 80, 165 N.E.2d 513, 516 (1960). Given these standards, we turn to consider the
application of section 1200.160 to this case.
A
The State's Attorney argues that the requirements of section 1220.40(c)
are not statutorily mandated. The Board concedes this in its brief. We
agree.
B
The State's Attorney next argues that no party would be injured by the
granting of a variance. During oral argument, the Board suggested that it
might be prejudiced to the extent that a waiver would not further a public
policy favoring the speedy resolution of labor disputes.
This court has recognized the need for the speedy resolution of educa-
tional labor disputes in cases involving the IELRB. Board of Trustees of the
University of Illinois v. Illinois Educational Labor Relations Board, 274 Ill.
App. 3d 145, 154, 653 N.E.2d 882, 887 (1995); Thornton, 235 Ill. App. 3d at
729, 600 N.E.2d at 1316. It must be remembered that the policy underlying the
Illinois Educational Labor Relations Act:
"recognizes that substantial differences exist between
educational employees and other public employees as a
result of the uniqueness of the educational work cal-
endar and educational work duties and the traditional
and historical patterns of collective bargaining
between educational employers and educational employ-
ees and that such differences demand statutory regula-
tion of collective bargaining between educational
employers and educational employees in a manner that
recognizes these differences." 115 ILCS 5/1 (1992).
This case is not an educational labor dispute. The unique work calendar of
educational employees may require a degree of speed above that needed in a
typical public employment dispute.
The Board cites no authority for the proposition that a similarly urgent
need for speed exists here. This court has affirmed the Board's adoption of
procedures that delay Board proceedings, over the objection that such proce-
dures hindered the speedy resolution of public employment disputes. E.g.,
American Federation of State County and Mun. Employees, Council 31, AFL-CIO v.
Illinois State Labor Relations Bd., County of Menard, 187 Ill. App. 3d 585,
599, 543 N.E.2d 562, 570 (1989). Moreover, the rules at issue must be read
in accordance with the Act, which grants the State's Attorney the right to
file an answer and appear at a hearing on the charges.
The Board issued the complaint in this case almost 5 months after AFSCME
filed its charge with the Board, which occurred approximately 2 months after
Hilan was fired. This record suggests that time was not of the essence for
either the Union or the Board prior to the late filing of the answer. The
record contains no indication of any injury to any party resulting from the
delay in filing the answer that was not already suffered during the prior
months.
The Board claims that "in promulgating a bright-line fifteen-day rule,
[it] relieved itself of having to make ad hoc exceptions to the rule."
However, the Board has granted relief from the late filing of an answer in the
past. Illinois Nurses' Association (Durietz), 2 PERI 2003 (IL SLRB 1985).
The Board has acknowledged that there are cases where "the policies of the Act
would be better served by a post hoc granting of an extension for responding
to the complaint." See County of Jefferson and Circuit Court of Jefferson
County, 7 PERI 2042, at X-203 n.4. (IL SLRB 1991). Section 1200.160
expressly permits the Board to waive its rules; a contrary interpretation of
the rule would be plainly erroneous.
The Board also states that "even if no prejudice would result from
allowing a late answer to be filed, a default is still proper." However, the
issue is whether a waiver is warranted in this case, not whether a default is
proper. Section 1200.160 expressly includes the lack of prejudice to any
party as a factor. Ignoring this factor would be plainly erroneous.
In sum, the record does not show that any party would have been injured
by the granting of the variance.
C
Finally, the State's Attorney contends that application of section
1220.40(c) would, in this particular case, be unreasonable or unnecessarily
burdensome. The Board responds by citing a number of authorities for the
proposition that this court and the Board have consistently held that the
presence of a short delay and a meritorious defense does not prevent a
default. See Board of Trustees of the University of Illinois v. Illinois
Educational Labor Relations Board, 274 Ill. App. 3d 145, 653 N.E.2d 882
(1995); Metz, 231 Ill. App. 3d at 1079, 596 N.E.2d at 855; Peoria Housing
Authority, 11 PERI 2033 (IL SLRB 1995); Chicago Housing Authority, 10 PERI
3010 (IL SLRB 1994); County of Jefferson, 7 PERI 2042. None of these cases
involved section 1200.160, except Metz, where the argument was waived.
The Board did reject a section 1200.160 request in Illinois Secretary of
State, 11 PERI 2027 (IL SLRB 1995). The respondent in that case negligently
filed its answer 3 days late and apparently did not claim it had a meritorious
defense. The ALJ decided that the respondent failed "to demonstrate that the
rule requiring timely filing of an answer was unreasonable or unnecessarily
burdensome." Illinois Secretary of State, 11 PERI 2027 at X-164. The Board
adopted the ALJ's recommended decision and order without discussing the
section 1200.160 issue. Illinois Secretary of State, 11 PERI 2027 at X-162.
Of course, section 1200.160(c) requires a finding "in the particular
case," which suggests that other cases may not be determinative. The rule
prevents the Board from arbitrarily refusing to consider the facts of the
particular case. Moreover, Illinois Secretary of State is distinguishable
from this case. In this case, the delay in filing was closer to 3 hours than
3 days. Unlike Illinois Secretary of State, the Office has alleged a merito-
rious defense in this case. Indeed, the Office had already submitted a
statement of position in this case, including affidavits and other evidence.
The Board and the Union note that the State's Attorney failed to request
an extension of time for filing the answer under the Board's rules. See 80
Ill. Adm. Code 1200.30(d)(1) (1994). This factor, which addresses the
respondent's diligence in following the proceedings against it, is the only
factor expressly noted in the Board's order. In order to determine whether a
lack of diligence by itself supports the Board's decision here, this court
must inquire into the method employed by the Board in determining whether a
variance is warranted under section 1200.160(c). This is a question of first
impression; the material facts are undisputed.
Although the parties use similar phrases, such as "good cause," "just
reason" and "valid excuse," they ultimately offer differing interpretations of
the "unreasonable or unnecessarily burdensome" standard. The cases cited by
the Office apply the standard for vacating a judgment under section 2-1301(e)
of the Code of Civil Procedure (735 ILCS 5/2-1301(e) (1996)(Code), whereas the
cases cited by the Board and the Union apply the standard for vacating a
judgment under section 2-1401 of the Code (735 ILCS 5/2-1401 (1996)).
This court decided a similar issue with respect to the rules of the
IELRB in Thornton. Thornton, 235 Ill. App. 3d at 727-31, 600 N.E.2d at 1315-
17. We have followed Thornton in a similar IELRB case. University of
Illinois, 274 Ill. App. 3d at 151-54, 653 N.E.2d at 885-87. Thus, we turn to
discuss Thornton and the question of whether it is applicable in this case.
In Thornton, the IELRB had adopted a regulation that provided that leave
to file a late answer could be granted by the hearing officer for good cause
shown, which would include facts showing a meritorious defense to the com-
plaint and a reasonable excuse explaining the party's failure to file a timely
answer. Thornton, 235 Ill. App. 3d at 725-26, 600 N.E.2d at 1313 (citing 80
Ill. Adm. Code 1120.30(d)(4) (1991)). The IELRB had previously ruled that
"good cause" was the same as the standard for vacating a judgment under
section 2-1401 of the Code. Thornton, 235 Ill. App. 3d at 727-28, 600 N.E.2d
at 1315.
On a respondent's appeal from a default judgment, the IELRB noted that
the phrase "reasonable excuse" appeared in case law interpreting section 2-
1401. Thornton, 235 Ill. App. 3d at 728, 600 N.E.2d at 1315. The respondent
in Thornton argued for the application of the more lenient standard of section
2-1301(e). Thornton, 235 Ill. App. 3d at 729, 600 N.E.2d at 1315. This court
stated that section 2-1301(e) was more analogous because the respondent sought
relief at the time the default was entered. Thornton, 235 Ill. App. 3d at
729, 600 N.E.2d at 1316. However, the Thornton court held that the IELRB's
interpretation of its regulation was not arbitrary or unreasonable. Thornton,
235 Ill. App. 3d at 729, 600 N.E.2d at 1316.
Thornton and its progeny are distinguishable from this case in at least
three respects. First, as noted above, this case does not involve an educa-
tional labor dispute. We recognize that substantial differences exist
between educational employment disputes and other public employment disputes.
Moreover, in University of Illinois, this court was concerned that departing
from Thornton would encourage forum-shopping between the First and Fourth
Districts of this court, because IELRB decisions are reviewable only in the
districts where the IELRB maintains offices. 274 Ill. App. 3d at 153-54, 653 N.E.2d at 887. In contrast, ISLRB decisions are reviewed in the district
where the respondent resides or transacts business. 5 ILCS 315/11(e) (1996).
The Board conceded at oral argument that forum-shopping was not at issue here.
Second, in Thornton, the IELRB had expressly adopted the 2-1401 standard
for its rule. In this case, the Board has announced a policy of strict
compliance with the 15 day rule, but has not identified any case expressly
adopting the section 2-1401 standard in reference to section 1200.160.
Indeed, there is no indication here of what factors the Board considered in
reaching its decision, aside from the Office's failure to request an extension
of time. The Board appears to be adopting the section 2-1401 standard for the
first time in this appeal. There is no long-standing construction of this
rule by the Board in similar cases. Nor has any Board decision under section
1200.160 been subject to judicial review.
Third, the IELRB rules differ from section 1200.160. The rule at issue
in Thornton expressly requires showing a "reasonable excuse," a phrase long
associated with the section 2-1401 standard. Section 1200.160(b) includes the
lack of prejudice to any party, a factor associated with section 2-1301(e),
not with section 2-1401. Thornton, 235 Ill. App. 3d at 730, 600 N.E.2d at
1316. Section 1200.160(c) refers to whether the rule from which a waiver is
sought would be "unreasonable or unnecessarily burdensome" in a given case.
Section 2-1401 does not primarily focus on the reasonableness of the default.
In contrast, cases interpreting section 2-1301(e) state that the "overriding
consideration" is whether it is reasonable to compel the parties to go to
trial in a particular case. E.g., City of Chicago v. Central National Bank,
134 Ill. App. 3d 22, 25, 479 N.E.2d 1040, 1043 (1985).
In sum, Thornton and its progeny do not compel this court to conclude
that the Board did not err in refusing to grant a variance. Rather, the
analysis undertaken in Thornton suggests that a more lenient standard is
appropriate, given the Board's rule and that respondent sought relief at the
time the default was entered.
However, we are not required to reach this conclusion definitively at
this time, because the Office meets the higher standard suggested by the Board
and the Union. As noted above, the cases cited by the Board and the Union
apply the standards of section 2-1401 of the Code. Thus, to be entitled to
relief, the defaulted party must set forth specific factual allegations
establishing: (1) the existence of a meritorious defense or claim; (2) due
diligence in presenting this defense or claim in the original action; and (3)
due diligence in filing the petition for relief. Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381, 1386 (1986). In this case, the Office:
set forth a meritorious defense; had timely notified the Board of this defense
in a statement of position, including sworn affidavits; and sought relief
immediately upon discovery of the late filing.
Moreover, assuming arguendo that the filing of the statement of position
did not show diligence, the Office would still prevail. The Board fails to
recognize that diligence at the time of entry of the judgment is not the only
consideration where defendant has a meritorious defense and actively pursues
attempts to vacate a judgment order. E.g., Fiala v. Schulenberg, 256 Ill.
App. 3d 922, 628 N.E.2d 660 (1993)(and cases cited therein).
The Board also has overlooked cases holding that the negligence of
counsel may be excused where mitigating circumstances are present. See, e.g.,
Leavens, Armiros & Ross, Ltd. v. English, 203 Ill. App. 3d 16, 560 N.E.2d 1031
(1990). The actual notice to the Board of the Office's position and defense
should have been considered as a mitigating circumstance, even under a section
2-1401 standard. Moreover, in deciding whether to vacate a default judgment
involving public parties, the Board should have considered the interests of
the community -- particularly the interest in ensuring that crime victims are
properly served -- as well as the public interest of the Office in enforcing
its employment rules as mitigating circumstances. See 5 ILCS 315/2 (1996);
Biscan v. Melrose Park Board of Fire and Police Commissioners, 277 Ill. App.
3d 844, 848, 661 N.E.2d 424, 428 (1996); cf. Collins v. Collins, 14 Ill. 2d 178, 184, 151 N.E.2d 813, 816 (1958)(vacating decree after 30 days, despite
wrongdoing of parties, where there was State interest in protection of
marriage). If the Board believed it had no discretion in this case, as
suggested by the tone of its brief, it was in error.
In addition, there are factors in this case that warrant reversal under
any rational interpretation of section 1200.160. For example, we note that
the Board's rules provide that a document is considered filed on the date it
is postmarked or tendered to a delivery service. 80 Ill. Adm. Code
1200.20(e) (1994). The Board has acknowledged that mailing through the U.S.
postal service is "tendering to a delivery service." See Illinois Secretary
of State, 11 PERI 2027 at X-163. It is common knowledge that the capability
of the postal service is such that there is no guarantee that a letter mailed
will be received the next morning. See Angelo v. Board of Review, Dept. of
Labor, 58 Ill. App. 3d 50, 52, 373 N.E.2d 858, 860 (1978).
In this case, the answer was filed approximately 3 hours late. Had the
State's Attorney mailed its answer on December 12, 1995, it would have been
deemed timely, but it almost undoubtedly would have been received by the Board
later than it was actually received in this case. Thus, the Board's refusal
to waive section 1220.40(c) was simply arbitrary, particularly given the
mitigating circumstances present in this case.
Moreover, the Board concluded that it would not be unreasonable or
unnecessarily burdensome for the Office to answer within 15 days. However,
the 15 day period is only one facet of section 1220.40(c). The Board's
decision and order carries no indication that it considered whether it was
reasonable in this case to apply section 1220.40(c)(3) -- the provision which
deems the allegations of the compliant to be admitted and a hearing to be
waived. The Board apparently failed to consider this crucial aspect of the
issue and imposed a sanction that was unduly harsh in light of the mitigating
circumstances in this case.
For all of the aforementioned reasons, the decision of the Board is
reversed and the case is remanded for further proceedings consistent with this
opinion.
Reversed and remanded.
BUCKLEY, J., concurs.
O'BRIEN, J., dissents.
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