Cook County Sheriff v. Bianchi
Annotate this Case
6th Division
April 24, 1998
No. 1-97-0141
THE COOK COUNTY SHERIFF ) Appeal from the
MICHAEL SHEAHAN, ) Circuit Court of
) Cook County.
Petitioner-Appellant, )
)
v. )
)
ALBERT BIANCHI AND COOK COUNTY )
SHERIFF'S MERIT BOARD, ) Honorable
) Ellis E. Reid,
Respondents-Appellees. ) Judge Presiding.
JUSTICE ZWICK delivered the opinion of the court:
On August 24, 1994 the Cook County Sheriff, Michael Sheahan, filed a
complaint alleging that respondent, Albert Bianchi, had fraudulently obtained his Cook
County Sheriff's Merit Board certification to work as a correctional officer.
Specifically, the sheriff alleged that when Bianchi sat for a certification examination
on May 9, 1987, he answered only 56 questions correctly. A passing score was
established to be a minimum of 57 correct answers. Although Bianchi answered less
than the minimum number of questions correctly, the sheriff alleged that Merit Board
employees had assigned passing grades "to certain applicants" regardless of the
applicant's actual performance on the exam. The clear implication was that Bianchi
was one of these "certain applicants," although the charges did not further specify the
nature of fraud committed on Biachi's behalf.
The Board conducted a hearing concerning the sheriff's allegations. During that
hearing Bianchi testified that he did not cheat on the examination. He admitted that the
Board's recent review of his examination established he had answered only 56
questions correctly, but asserted that the only explanation for why he had passed the
examination was because the test had been mistakenly graded when it was first
processed in 1987. The Board offered nothing to rebut Bianchi's explanation.
In rendering its decision on the matter, the Board rejected the sheriff's
contention that fraud had played a role in Bianchi's appointment, finding that the
sheriff had failed to prove "by clear and convincing evidence" that Bianchi had
committed fraud in obtaining his certification. The Board made the specific finding
that Bianchi did not violate either the rules of the Cook County Sheriff's Department
or of the Sheriff's Merit Board in taking his examination, essentially adopting Bianchi's
suggestion that his certification had been the result of an honest mistake.
The decision of the Merit Board was affirmed on administrative review in the
circuit court, even though the court observed that the Merit Board had applied an
improper burden of proof. As the circuit court pointed out in its written order, the
sheriff need only establish its allegations against an employee by a preponderance of
the evidence to warrant discipline, not prove its case by clear and convincing evidence.
55 ILCS 5/3-7012 (West 1996). Nonetheless, the circuit court determined that there
was no evidence to support a charge of fraud against Bianchi. The court then
determined that, in the absence of any evidence of wrong doing, Bianchi could not be
terminated under the terms of the Counties Code (the Act) (55 ILCS 5/3-7001 et seq.
(West 1996)) and that a rehearing was unnecessary. Accordingly, the court declined to
remand the case.
The sheriff appeals from the circuit court's order, raising two specific issues for
our review. First, the sheriff asserts that by establishing Bianchi failed to properly
answer 57 questions on his written examination in 1987, the Board must uphold
Bianchi's termination as a matter of law because Bianchi's appointment was void ab
initio. Second, and in the alternative, the sheriff asserts that the Board's failure to
evaluate the case under the proper "preponderance of the evidence" standard requires it
be reversed and remanded for further consideration. For the following reasons, we
reject the sheriff's arguments.
For support of its first argument, the sheriff relies principally upon two
appellate opinions, O'Grady v. Cook County Sheriff's Merit Board, 260 Ill. App. 3d
529, 632 N.E.2d 87 (1994) and Vanko v. Sheahan, 278 Ill. App. 3d 302, 662 N.E.2d 512 (1996). In O'Grady, this court determined that the Merit Board had the authority
under the Act to uphold the voiding of the merit certification of certain individuals
hired by a former sheriff "where that action was reasonably necessary [by the Board]
to execute the duty to investigate and enforce the terms of the Act." O'Grady, 260 Ill.
App. 3d at 535. The Board's investigation revealed that the entire examination process
implemented by the former sheriff had violated the statute and was unlawful because
only those individuals who had been hand-picked by the sheriff had been permitted to
take the certification examination, a procedure done in direct contravention of the
purposes of the Act. O'Grady, 260 Ill. App. 3d at 537. Under such facts, the court
held, the Board had the authority to void the certifications of all those who had been
certified pursuant to the sham examination.
In Vanko, the court addressed the question of whether the Merit Board was
required to hold a hearing in all cases in which an employee was discovered to not
have been properly certified. The sheriff took the position that when an employee was
clearly shown not to have been properly certified, that employee could be fired at will,
without a hearing. Vanko, 278 Ill. App. 3d at 303. The court agreed that the sheriff
alone could make the factual determination that an employee had never been certified
in the face of uncontroverted evidence, but held when the evidence of certification is
unclear the question becomes an issue for the Merit Board to determine following a
hearing. Because the evidence against Vanko was conflicting as to whether he had
ever been certified, the court ordered the cause remanded.
In the instant case we reject the sheriff's contention that simply because Bianchi
answered less than 57 questions correctly on his 1987 certification examination his
appointment must be considered void ab initio. The sheriff's argument fails to
appreciate the distinction which generally exists between arbitrary and capricious acts
of a state agency or official, which are treated as being void (see O'Grady, 260 Ill.
App. 3d at 537), and those which are merely voidable because they are made pursuant
to a mistake of fact. In the former case, where the sheriff can establish that a prior
appointment was made arbitrarily or capriciously, the employee is treated as having
never been certified, and so may be discharged by the sheriff at will. See Vanko, 278
Ill. App. 3d at 303. In the latter case, where an honest mistake has allowed an
otherwise unqualified employee to obtain his certification, that employee is treated as
certified, even though later developments establish that the certification was not made
in strict conformity with the terms of the Act. It is for this reason that the court in
Vanko discusses "the bona fides of certification." Vanko, 278 Ill. App. 3d at 306. See
also Nolan v. Rice, 77 Ill. App. 3d 641, 654, 396 N.E.2d 298 (1979)(Executor's
appointment not void but merely voidable as "[i]t is not the responsibility of someone
appointed to this type of office to independently ascertain the merits of the removal of
his predecessor or to question the statutory basis of his own appointment").
In this case, while it is true that the Merit Board incorrectly certified Bianchi as
being qualified to work as a correctional officer in 1987, that fact alone does not
require that his appointment be rescinded upon discovery of the error. If the
certification is, in the language of the Vanko decision, "bona fide," then logic dictates
that the appointment may be set aside only in such a way as is consistent with the
provisions of the Act, including the merit-protection provisions of section 3-7012. 55
ILCS 5/3-7012 (West 1996). This section provides that a certified employee may not
be discharged or suspended except "for cause." Here, the Board implicitly determined
that failing to answer a minimum of 57 questions correctly on his 1987 examination
did not constitute sufficient "cause" to warrant the sheriff's decision to discharge
Bianchi. This decision is consistent with the evidence presented at the hearing which
demonstrated Bianchi had established a significant and unblemished record of service
to the sheriff's office since he had been hired, some six years earlier.
The sheriff also argues that the Board's application of a "clear and convincing"
burden of proof prejudiced its case against Bianchi. The sheriff urges that the matter
should at least be remanded with instructions to the Board to consider its evidence
against Bianchi under the proper standard. As the circuit court correctly observed,
however, the facts of the case are no longer disputed. Although the sheriff did
establish that Bianchi failed to answer 57 or more questions correctly on his 1987
examination and should not have been certified at that time, there was no evidence to
establish bad faith in Bianchi's certification. Because the sheriff offered no evidence to
establish cause to discharge Bianchi, the standard applied by the Board in considering
the sheriff's claims of fraud against Bianchi is immaterial and remand is unnecessary.
For the foregoing reasons, the decision of the Sheriff's Merit Board is affirmed.
Affirmed.
CAMPBELL, P.J., and GREIMAN, J., concur.
April 24, 1998
No. 1-97-0141
THE COOK COUNTY SHERIFF ) Appeal from the
MICHAEL SHEAHAN, ) Circuit Court of
) Cook County.
Petitioner-Appellant, )
)
v. )
)
ALBERT BIANCHI AND COOK COUNTY )
SHERIFF'S MERIT BOARD, ) Honorable
) Ellis E. Reid,
Respondents-Appellees. ) Judge Presiding.
JUSTICE ZWICK delivered the opinion of the court:
On August 24, 1994 the Cook County Sheriff, Michael Sheahan, filed a
complaint alleging that respondent, Albert Bianchi, had fraudulently obtained his Cook
County Sheriff's Merit Board certification to work as a correctional officer.
Specifically, the sheriff alleged that when Bianchi sat for a certification examination
on May 9, 1987, he answered only 56 questions correctly. A passing score was
established to be a minimum of 57 correct answers. Although Bianchi answered less
than the minimum number of questions correctly, the sheriff alleged that Merit Board
employees had assigned passing grades "to certain applicants" regardless of the
applicant's actual performance on the exam. The clear implication was that Bianchi
was one of these "certain applicants," although the charges did not further specify the
nature of fraud committed on Biachi's behalf.
The Board conducted a hearing concerning the sheriff's allegations. During that
hearing Bianchi testified that he did not cheat on the examination. He admitted that the
Board's recent review of his examination established he had answered only 56
questions correctly, but asserted that the only explanation for why he had passed the
examination was because the test had been mistakenly graded when it was first
processed in 1987. The Board offered nothing to rebut Bianchi's explanation.
In rendering its decision on the matter, the Board rejected the sheriff's
contention that fraud had played a role in Bianchi's appointment, finding that the
sheriff had failed to prove "by clear and convincing evidence" that Bianchi had
committed fraud in obtaining his certification. The Board made the specific finding
that Bianchi did not violate either the rules of the Cook County Sheriff's Department
or of the Sheriff's Merit Board in taking his examination, essentially adopting Bianchi's
suggestion that his certification had been the result of an honest mistake.
The decision of the Merit Board was affirmed on administrative review in the
circuit court, even though the court observed that the Merit Board had applied an
improper burden of proof. As the circuit court pointed out in its written order, the
sheriff need only establish its allegations against an employee by a preponderance of
the evidence to warrant discipline, not prove its case by clear and convincing evidence.
55 ILCS 5/3-7012 (West 1996). Nonetheless, the circuit court determined that there
was no evidence to support a charge of fraud against Bianchi. The court then
determined that, in the absence of any evidence of wrong doing, Bianchi could not be
terminated under the terms of the Counties Code (the Act) (55 ILCS 5/3-7001 et seq.
(West 1996)) and that a rehearing was unnecessary. Accordingly, the court declined to
remand the case.
The sheriff appeals from the circuit court's order, raising two specific issues for
our review. First, the sheriff asserts that by establishing Bianchi failed to properly
answer 57 questions on his written examination in 1987, the Board must uphold
Bianchi's termination as a matter of law because Bianchi's appointment was void ab
initio. Second, and in the alternative, the sheriff asserts that the Board's failure to
evaluate the case under the proper "preponderance of the evidence" standard requires it
be reversed and remanded for further consideration. For the following reasons, we
reject the sheriff's arguments.
For support of its first argument, the sheriff relies principally upon two
appellate opinions, O'Grady v. Cook County Sheriff's Merit Board, 260 Ill. App. 3d
529, 632 N.E.2d 87 (1994) and Vanko v. Sheahan, 278 Ill. App. 3d 302, 662 N.E.2d 512 (1996). In O'Grady, this court determined that the Merit Board had the authority
under the Act to uphold the voiding of the merit certification of certain individuals
hired by a former sheriff "where that action was reasonably necessary [by the Board]
to execute the duty to investigate and enforce the terms of the Act." O'Grady, 260 Ill.
App. 3d at 535. The Board's investigation revealed that the entire examination process
implemented by the former sheriff had violated the statute and was unlawful because
only those individuals who had been hand-picked by the sheriff had been permitted to
take the certification examination, a procedure done in direct contravention of the
purposes of the Act. O'Grady, 260 Ill. App. 3d at 537. Under such facts, the court
held, the Board had the authority to void the certifications of all those who had been
certified pursuant to the sham examination.
In Vanko, the court addressed the question of whether the Merit Board was
required to hold a hearing in all cases in which an employee was discovered to not
have been properly certified. The sheriff took the position that when an employee was
clearly shown not to have been properly certified, that employee could be fired at will,
without a hearing. Vanko, 278 Ill. App. 3d at 303. The court agreed that the sheriff
alone could make the factual determination that an employee had never been certified
in the face of uncontroverted evidence, but held when the evidence of certification is
unclear the question becomes an issue for the Merit Board to determine following a
hearing. Because the evidence against Vanko was conflicting as to whether he had
ever been certified, the court ordered the cause remanded.
In the instant case we reject the sheriff's contention that simply because Bianchi
answered less than 57 questions correctly on his 1987 certification examination his
appointment must be considered void ab initio. The sheriff's argument fails to
appreciate the distinction which generally exists between arbitrary and capricious acts
of a state agency or official, which are treated as being void (see O'Grady, 260 Ill.
App. 3d at 537), and those which are merely voidable because they are made pursuant
to a mistake of fact. In the former case, where the sheriff can establish that a prior
appointment was made arbitrarily or capriciously, the employee is treated as having
never been certified, and so may be discharged by the sheriff at will. See Vanko, 278
Ill. App. 3d at 303. In the latter case, where an honest mistake has allowed an
otherwise unqualified employee to obtain his certification, that employee is treated as
certified, even though later developments establish that the certification was not made
in strict conformity with the terms of the Act. It is for this reason that the court in
Vanko discusses "the bona fides of certification." Vanko, 278 Ill. App. 3d at 306. See
also Nolan v. Rice, 77 Ill. App. 3d 641, 654, 396 N.E.2d 298 (1979)(Executor's
appointment not void but merely voidable as "[i]t is not the responsibility of someone
appointed to this type of office to independently ascertain the merits of the removal of
his predecessor or to question the statutory basis of his own appointment").
In this case, while it is true that the Merit Board incorrectly certified Bianchi as
being qualified to work as a correctional officer in 1987, that fact alone does not
require that his appointment be rescinded upon discovery of the error. If the
certification is, in the language of the Vanko decision, "bona fide," then logic dictates
that the appointment may be set aside only in such a way as is consistent with the
provisions of the Act, including the merit-protection provisions of section 3-7012. 55
ILCS 5/3-7012 (West 1996). This section provides that a certified employee may not
be discharged or suspended except "for cause." Here, the Board implicitly determined
that failing to answer a minimum of 57 questions correctly on his 1987 examination
did not constitute sufficient "cause" to warrant the sheriff's decision to discharge
Bianchi. This decision is consistent with the evidence presented at the hearing which
demonstrated Bianchi had established a significant and unblemished record of service
to the sheriff's office since he had been hired, some six years earlier.
The sheriff also argues that the Board's application of a "clear and convincing"
burden of proof prejudiced its case against Bianchi. The sheriff urges that the matter
should at least be remanded with instructions to the Board to consider its evidence
against Bianchi under the proper standard. As the circuit court correctly observed,
however, the facts of the case are no longer disputed. Although the sheriff did
establish that Bianchi failed to answer 57 or more questions correctly on his 1987
examination and should not have been certified at that time, there was no evidence to
establish bad faith in Bianchi's certification. Because the sheriff offered no evidence to
establish cause to discharge Bianchi, the standard applied by the Board in considering
the sheriff's claims of fraud against Bianchi is immaterial and remand is unnecessary.
For the foregoing reasons, the decision of the Sheriff's Merit Board is affirmed.
Affirmed.
CAMPBELL, P.J., and GREIMAN, J., concur.
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