Opinion
No. 1-18-0237
06-28-2019
JAMES J. JULIANO and ANDREW BROUSSEAU, Plaintiffs (Andrew Brousseau, Plaintiff-Appellee), v. VILLAGE OF MOUNT PROSPECT, an Illinois municipal corporation, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 06 CH 18025 Honorable Kathleen M. Pantle, Judge Presiding. JUSTICE CONNORS delivered the judgment of the court.
Justice Cunningham concurred in the judgment.
Presiding Justice Delort specially concurred.
ORDER
¶ 1 Held: Plaintiff firefighter was not entitled to health insurance benefits under the Public Safety Employee Benefits Act because he was not injured while responding to what he reasonably believed was an emergency; plaintiff did not show that hearing officer was biased or unqualified; circuit court judgment reversed and Village decision affirmed. ¶ 2 Plaintiff, Andrew Brousseau, was injured in the line of duty as a firefighter for defendant, the Village of Mount Prospect (Village), and sought continuing health insurance benefits under section 10 of the Public Safety Employee Benefits Act (Act) (820 ILCS 320/10 (West 2004)). The village manager denied the claim after a hearing. Plaintiff challenged that denial in the circuit court, which reversed the Village's decision and found that plaintiff was entitled to benefits. For the following reasons, we reverse the judgment of the circuit court and affirm the decision of the Village. ¶ 3 The record reveals that on June 22, 2004, plaintiff was injured while retrieving a cat that was on a Village homeowner's roof. Plaintiff used a ladder that collapsed, causing plaintiff to fall and suffer a femoral neck fracture. Plaintiff was awarded a line-of-duty disability pension benefit. Plaintiff later applied for health insurance benefits under the Act. The Village Code provided that the village manager was to "conduct hearings and make determinations as to whether or not any employee of the village, who is subject to the [A]ct, is entitled to the benefits provided by that act." ¶ 4 Plaintiff, who was represented by counsel at the hearing, testified as follows. On the date of the incident, plaintiff was assigned to drive the ladder truck. Around 2:50 p.m., he received a request over central dispatch for a tower ladder at 205 North Pine in Mount Prospect. He was not told why a tower ladder was needed. Plaintiff drove the truck along with Lieutenant O'Neill, with whom he was working that day, to the address. When they arrived, Battalion Chief Dawson was already at the back of the house and told plaintiff that there was a cat on the roof. A ladder was up against the house and reached the gutter line, which plaintiff estimated to be about 10 feet high. Chief Dawson was heeling, or holding, the ladder for the homeowner, who was about three steps up the ladder. Plaintiff believed the ladder belonged to the homeowner or a neighbor. Chief Dawson stated that the firefighters had to retrieve the cat or the homeowner would hurt herself by breaking her neck. The homeowner came down the ladder. Concerned that the homeowner's ladder was not sturdy enough, plaintiff asked Chief Dawson, "[A]re you sure you want to use that ladder?" Chief Dawson replied, "[Y]ou should be fine," and Lieutenant O'Neill heeled the ladder for plaintiff. Plaintiff climbed to the top, where he retrieved the cat and handed it to either the homeowner or the homeowner's friend, who was now inside the house and in a dormer window. When plaintiff stepped on the first rung of the ladder to come down, the ladder collapsed and plaintiff fell. Because of the resulting injury, plaintiff was placed on a line-of-duty disability. ¶ 5 Plaintiff testified that responding to animal calls is part of the fire department's service to the community. However, on June 22, plaintiff believed he was responding to an emergency call because Chief Dawson warned him that if the firefighters did not act, the homeowner would hurt herself. Plaintiff thought that the homeowner came down the ladder because Chief Dawson told her that she should come down and the firefighters would climb the ladder. According to plaintiff, "something *** had to be done," or the homeowner "would have gone right back up [the ladder]." Further, if the situation had not been an emergency, the firefighters could have retrieved their own ladder from their truck, which "take[s] a while." Plaintiff stated that if the firefighters had waited, the homeowner would have crawled up the ladder and hurt herself. ¶ 6 Chief Dawson testified that on June 22, the homeowner called the fire station and reported that her cat had escaped out of her dormer window and was stuck on the roof. The homeowner seemed excited and a little upset. Chief Dawson advised the homeowner to leave her window open in the hopes that the cat would come in. The homeowner hesitantly accepted the suggestion. However, the homeowner called again a couple hours later to inform Chief Dawson that the cat had not come inside and to ask whether the fire department could assist her. Though she was not yelling or crying, the homeowner seemed upset and stated that her children were more upset than she was and were crying that their cat was on the roof. Chief Dawson responded that he would come take a look and see what could be done. He drove to the home and met the homeowner in her backyard. The cat was outside the dormer window on the roof and the homeowner and her children were upset because the cat was not coming in. A ladder was up in back of the house, but no one was on the ladder. The homeowner neither mentioned she would try to climb the ladder nor actually climbed the ladder herself. Chief Dawson did not climb the homeowner's ladder because it was the fire department's standard practice to use its own ladders and he needed someone to heel the ladder. Moreover, Chief Dawson did not think it was a good idea for the homeowner to climb the ladder because she was a "female [and] she didn't seem to be the handy-type person that climbs ladders on a normal basis." Chief Dawson called for a ladder truck. ¶ 7 After the ladder truck arrived, Chief Dawson informed Lieutenant O'Neill that a cat was on the roof and they needed a ladder. Plaintiff was not present yet. Lieutenant O'Neill looked over and said, "[W]ell, there's a ladder here," to which Chief Dawson replied, "[W]ell, whatever you want to do." Chief Dawson sent the homeowner to the second floor of the house so that a firefighter could hand her the cat rather than carry the cat down the ladder. Chief Dawson stated that the homeowner did not get on the ladder at any point between when he called for the ladder truck and when Lieutenant O'Neill arrived. ¶ 8 Plaintiff eventually arrived and Lieutenant O'Neill asked him to go to the ladder and retrieve the cat. While Lieutenant O'Neill heeled the ladder, plaintiff got on the roof, retrieved the cat, and walked over to the dormer window, where he handed the cat to the homeowner. When plaintiff tried to come down, the ladder collapsed and plaintiff fell to the ground. ¶ 9 Chief Dawson maintained that he and plaintiff did not discuss which ladder to use and he did not direct plaintiff to use the homeowner's ladder. Although Chief Dawson acknowledged that a fire department ladder should have been used, plaintiff had not expressed concern about using the homeowner's ladder. Overall, Chief Dawson considered the situation to be a typical service call. There were no life-threatening injuries or a threat to anyone's home. The homeowner was not in any physical danger and she did not try to use the ladder that was against the house. Chief Dawson stated that the homeowner did not reveal who placed the ladder against the house or who was its intended user. ¶ 10 The record includes a memorandum from Lieutenant O'Neill that was collected as part of the Village's investigation of plaintiff's claim. In that memorandum, Lieutenant O'Neill stated that he did not consider the incident an emergency and plaintiff was not ordered to use the homeowner's ladder. Rather, "[t]he ladder was up against the house, to the roof, so we used the ladder." The first time Lieutenant O'Neill heard anything about using the fire department's ladder was after the homeowner's ladder failed. ¶ 11 After the hearing, and in a written decision and order, the village manager denied plaintiff's claim for benefits under the Act. The village manager stated that per the "overwhelming weight of the credible evidence," plaintiff did not respond to what was reasonably believed to be an emergency. The village manager found that the homeowner was not on the ladder at any time while the firefighters were on the scene. Plaintiff's testimony that the homeowner was on the ladder was not credible. Further, even if plaintiff's testimony was credible, plaintiff still testified that the homeowner got off the ladder while the firefighters were present "and left the admitted non-emergency cat rescue to the firefighters." ¶ 12 Plaintiff subsequently sought judicial review in the circuit court via a writ of certiorari. In part, plaintiff asserted that he was injured while responding to what he reasonably believed to be an emergency. Plaintiff stated that whether or not the homeowner was actually on the ladder was not a material fact necessary to determine the issue at hand. According to plaintiff, it was the use of a non-departmental ladder combined with the immediacy of the need to remove the cat that constituted an emergency. Plaintiff also contended that the use of the village manager as the hearing officer to adjudicate plaintiff's claim violated his right to due process of law because the person making the final decision was directly employed by plaintiff's adversary. Plaintiff urged de novo review because of the bias of the hearing officer. As an alternative reason not to defer to the hearing officer, plaintiff asserted that the record did not indicate that the hearing officer had successfully completed a training program that was required by the Illinois Municipal Code (Municipal Code) (65 ILCS 5/1-2.1-4(c) (West 2004)). ¶ 13 At the corresponding hearing, the Village maintained in part that as soon as plaintiff arrived at the scene, it was clear that there was no emergency. The Village noted that there was no evidence that the homeowner was uncooperative or that anyone was trying to overpower the firefighters to access the roof. The Village also asserted that employees such as the village manager are presumed to be objective and capable of fairly judging a particular controversy. ¶ 14 On September 29, 2015, the court issued a written decision and order that reversed the Village's decision. The court stated that ultimately, it did not matter whether the homeowner was on the ladder. The court noted two unforeseen circumstances—the cat on the roof and an upset homeowner who made it clear she would try to retrieve the cat if she did not receive help from the fire department. The court did not address the due process issue that plaintiff had raised. This appeal followed. ¶ 15 On appeal, the Village contends that the hearing officer correctly found that plaintiff was not entitled to benefits under the Act because plaintiff was not responding to an emergency when he was injured. The Village argues that every aspect of the service call was routine and at no point were the homeowner, house, or any other person or animal in imminent danger. ¶ 16 Section 10 of the Act requires employers to pay health insurance premiums for a firefighter and his family if the firefighter suffers a catastrophic injury under specified circumstances. 820 ILCS 320/10 (West 2004); Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL 110012, ¶ 5. One such circumstance is when the firefighter is injured as a result of responding to "what is reasonably believed to be an emergency." 820 ILCS 320/10(b) (West 2004). Our supreme court has defined an "emergency" as "an unforeseen circumstance involving imminent danger to a person or property requiring an urgent response." Gaffney, 2012 IL 110012, ¶ 64. ¶ 17 Our task is to determine whether the hearing officer erred when he found that plaintiff did not reasonably believe that he was responding to an emergency. A writ of common law certiorari is the proper method of review for this matter. Pedersen v. Village of Hoffman Estates, 2014 IL App (1st) 123402, ¶ 40. The standards of review are essentially the same as those under the Administrative Review Law. Hanrahan v. Williams, 174 Ill. 2d 268, 272 (1996). We review the decision of the administrative agency—or here, the Village—and "may affirm the agency's decision when justified in law for any reason disclosed by the record." Pedersen, 2014 IL App (1st) 123402, ¶ 48. The standard of review for the agency's decision depends on whether the question is one of fact or law. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204 (1998). A question of fact is reviewed under the manifest weight of the evidence standard, which asks whether the opposite conclusion is clearly evident. Id. at 205. A question of law is reviewed de novo. Id. Here, the issue presents a mixed question of law and fact, which involves an examination of the legal effect of a given set of facts, and is reviewed under the clearly erroneous standard. Id.; Pedersen, 2014 IL App (1st) 123402, ¶ 52. A decision is clearly erroneous "only where the reviewing court, on the entire record, is 'left with the definite and firm conviction that a mistake has been committed.' " AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). The clearly erroneous standard is "between a manifest weight of evidence standard and a de novo standard so as to provide some deference" to the agency's decision and expertise. City of Belvidere, 181 Ill. 2d at 205. As an aside, we recognize that a mixed question of law and fact is one where the historical facts are admitted or established (AFM Messenger Service, Inc., 198 Ill. 2d at 391), and here, the witnesses disagreed at the hearing about whether the homeowner was on the ladder. However, plaintiff asserted in the circuit court and in his appellate brief that whether the homeowner was actually on the ladder is not a material fact. We agree and the clearly erroneous standard applies. ¶ 18 To qualify for benefits under section 10(b) of the Act, the claimant must subjectively believe he was facing an emergency and that belief must be reasonable. Springborn v. Village of Sugar Grove, 2013 IL App (2d) 120861, ¶ 32. Each case must be decided on its own facts. Id. ¶ 36. "An event or incident that is not initially an emergency may become an emergency as the circumstances change." Pedersen, 2014 IL App (1st) 123402, ¶ 58. Here, plaintiff asserts that the incident seemed routine, but unforeseen and dangerous events arose, including that plaintiff was ordered into a dangerous situation on top of the roof and had to use equipment that violated Village policy. Plaintiff argues that the use of a non-department ladder combined with the immediacy of the need to remove the cat from the roof constituted an emergency. ¶ 19 Notwithstanding plaintiff's stated belief at the hearing that the homeowner was in danger, his belief that he was facing an emergency was not reasonable. Nothing about the situation generally suggested an emergency. Chief Dawson testified at the hearing that the matter was a typical service call and plaintiff stated that responding to animal calls is part of the fire department's service to the community. The specific circumstances did not turn the routine call into an emergency either. Although using the homeowner's ladder was a deviation from the fire department's standard practice of using its own ladders, there is no evidence that anyone was in imminent danger at the time. Whether or not the homeowner was on the ladder at some point, she was not on the ladder just before plaintiff ascended it. No one testified that the homeowner resisted the firefighters' efforts and the evidence overall indicates that the homeowner was amenable to the firefighters' plan to retrieve the cat for her. Moreover, an important consideration in determining whether an emergency exists is whether the claimant had the option of ending his participation. Gaffney, 2012 IL 110012, ¶ 67. There is no evidence that the condition of the homeowner mandated the use of her ladder immediately, as opposed to waiting for the firefighters to use their own ladder. Compare id. ¶ 66 (tangled hose line during a live-fire training exercise called for an urgent response because a crew was stranded on the third floor of a burning building with no visibility and no water to put out the fire), with Wilczak v. Village of Lombard, 2016 IL App (2d) 160205, ¶¶ 18-19 (need to move disabled citizen did not require an urgent response because the citizen was not injured and did not require medical attention, and so the plaintiff firefighter could have called and waited for help to move the citizen). Because here, no one was in imminent danger and no urgent response was needed, plaintiff could not have reasonably believed he was responding to an emergency. Thus, the hearing officer properly denied plaintiff's claim for benefits under the Act. ¶ 20 Next, plaintiff raises a constitutional issue, asserting that this court should review the record de novo because the hearing officer's impartiality was "constitutionally impaired." Plaintiff asserts that the ordinance that provides that the village manager is the hearing officer under the Act is fundamentally flawed. Plaintiff argues that because the hearing officer was a full-time employee of the Village and its chief managing officer, the hearing officer had an unconstitutional conflict of interest. ¶ 21 As the Village correctly notes, plaintiff's argument is forfeited. If an argument, issue, or defense is not presented at the administrative hearing, it is procedurally defaulted and may not be raised for the first time in the circuit court on administrative review. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 212 (2008). The forfeiture rule applies equally to issues involving constitutional due process rights (Smith v. Department of Professional Regulation, 202 Ill. App. 3d 279, 287 (1990)), even though an administrative agency does not have the authority to declare a statute unconstitutional or question its validity (Cinkus, 228 Ill. 2d at 214). Administrative review is confined to the evidence offered before the agency. Id. By asserting a constitutional challenge on the record before the administrative agency, a party avoids piecemeal litigation and fully allows opposing parties to refute the constitutional challenge. Id. Here, plaintiff did not raise his constitutional argument at the hearing and so it is forfeited. ¶ 22 Even if the matter had been preserved, plaintiff would not meet his burden of showing that the hearing officer was not objective and incapable of fairly judging plaintiff's claim. The deferential standard that applies to administrative review does not control where the agency is prejudiced or biased against the claimant and incapable of giving him a fair hearing. Comito v. Police Board of the City of Chicago, 317 Ill. App. 3d 677, 686 (2000); Danko v. Board of Trustees of the City of Harvey Pension Board, 240 Ill. App. 3d 633, 641 (1992). Due process of law entitles a person to a fair hearing before a fair tribunal. Van Harken v. City of Chicago, 305 Ill. App. 3d 972, 983 (1999). A fair hearing must include the opportunity to be heard, the right to cross-examine adverse witnesses, and impartial rulings on the evidence. Comito, 317 Ill. App. 3d at 687. "A person challenging the impartiality of a tribunal must overcome the presumption that those serving on the tribunal are fair and honest." Klomann v. Illinois Municipal Retirement Fund, 284 Ill. App. 3d 224, 229 (1996). ¶ 23 Here, plaintiff asserts that the fact that the hearing officer was employed by the Village sufficiently demonstrates bias. Plaintiff's assertion only amounts to "the mere possibility of bias," which is not enough to establish that the tribunal was not fair. See Grissom v. Board of Education of Buckley-Loda Community School District No. 8, 75 Ill. 2d 314, 321 (1979). Plaintiff's bare allegation of bias stands in contrast to other cases where the plaintiff provided concrete facts to support the claim. For example, in Danko, 240 Ill. App. 3d at 642-43, the plaintiff noted a pension board commissioner's multiple statements made before and after the hearing that indicated that the commissioner had prejudged the case, including a statement that the plaintiff was a liar. In Smith v. Department of Registration & Education, 412 Ill. 332, 341 (1952), the plaintiff doctor submitted "many specific allegations of prejudice and bias," among them that members of the tribunal deciding whether to revoke his medical license were members of an association that had explicitly denounced the kind of medical treatment for which plaintiff was at risk for losing his license. In one instance, the association had characterized the plaintiff "as the number one quack of Chicago." Id. ¶ 24 Further, without more, courts have rejected the argument that a municipality's financial interest in the outcome disqualifies employees or representatives of the municipality from deciding a dispute. See Klomann, 284 Ill. App. 3d at 229-30 (the plaintiff did not satisfy his burden of showing bias where the briefs hinted at political motive, but the record was devoid of any evidence of personal bias on behalf of the village board); Kaiser v. Dixon, 127 Ill. App. 3d 251, 267 (1984), declined to follow on other grounds, Duldulao v. Saint Mary of Nazareth Hospital Center, 115 Ill. 2d 482 (1987), (rejecting argument that the hearing officer was biased because he was also the village manager where the plaintiff did not cite any evidence from the record that the hearing officer was biased). Because plaintiff here has not shown any facts demonstrating that the hearing officer was biased, he has not established a due process violation. Id. at 268. Further, we decline plaintiff's request to review the record de novo. ¶ 25 Lastly, plaintiff contends in the alternative that this court should not defer to the hearing officer because there is no evidence that he successfully completed the formal training program described in the Municipal Code. See 65 ILCS 5/1-2.1-4(c) (West 2004). As with plaintiff's due process argument, this issue is forfeited because it was not raised at the administrative hearing. See Cinkus, 228 Ill. 2d at 212 (argument, issue, or defense that is not raised in an administrative hearing is procedurally defaulted). Still, plaintiff has not established that the hearing officer was unqualified. Division 2.1 of the Municipal Code is entitled "Administrative Adjudications" and allows a home-rule municipality to establish a system of administrative adjudication of municipal code violations. 65 ILCS 5/1-2.1-2 (West 2004); Village of Lake in the Hills v. Niklaus, 2014 IL App (2d) 130654, ¶ 16. Plaintiff does not explain how the requirements for hearing officers in code violation proceedings apply to hearings under the Act. We will not set aside the hearing officer's decision based on training requirements that do not appear to apply to him. ¶ 26 For the foregoing reasons, we reverse the judgment of the circuit court and affirm the decision of the Village denying plaintiff's claim for benefits under the Act. ¶ 27 Circuit court judgment reversed.
Village decision affirmed. ¶ 28 PRESIDING JUSTICE DELORT, specially concurring: ¶ 29 The Public Safety Employee Benefits Act (820 ILCS 320/1 et seq. (West 2018)) (PSEBA) establishes several highly fact-based conditions under which a first responder can become eligible for lucrative insurance benefits. But the law contains no mechanism explaining how those facts are to be heard, or who shall determine them, leaving those details in the hands of the employer. Many municipalities, such as Mount Prospect, have created an internal adjudication process to hear PSEBA claims. This court has approved that mechanism, noting that while a local government cannot legislate that courts will review their local PSEBA dispositions under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2018)), those decisions may be reviewed pursuant to a common law writ of certiorari. Pedersen v. Village of Hoffman Estates, 2014 IL App (1st) 123402, ¶ 40. ¶ 30 Mount Prospect is a home rule unit under article VII, section 6(a), of the Illinois Constitution (Ill. Const. 1970, art. VII, § 6(a)), and has adopted the managerial form of government under article 5 of the Illinois Municipal Code (65 ILCS 5/5-1-1 et seq. (West 2018)). See Mt. Prospect, IL Village Code, § 2.102 (amended July 5, 1995) (noting that the village is a home rule unit); Illinois Secretary of State, Illinois Counties and Incorporated Municipalities, 27 (July 2012) (listing Mount Prospect as having adopted the managerial form of government). Because of this special statutory status, the village manager of Mount Prospect (1) is "the administrative head of the municipal government and who shall be responsible for the efficient administration of all departments"; (2) is appointed for an indefinite term, subject to removal by the village board; (3) has the power and duty to enforce the laws and ordinances in the village; (4) appoints and removes all department heads, including the fire chief; and (5) has "supervision and administrative control" over all city departments. 65 ILCS 5/5-3-7, 5-3-8 (West 2018). ¶ 31 A Mount Prospect ordinance designates the village manager as the hearing officer, or adjudicator, for PSEBA claims. Mt. Prospect, IL Village Code, § 4.105 (August 4, 2009). The Supreme Court of the United States has summarized its holdings regarding due process in the context of impartial adjudication in the following terms:
"The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias. [Citation.] Of particular relevance to the instant case, the Court has determined that an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator in a case. [Citation.] This objective risk of bias is reflected in the due process maxim that no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. [Citation.]" (Internal quotation marks omitted.) Williams v. Pennsylvania, 579 U.S. ___, ___, 136 S. Ct. 1899, 1905-06 (2016).¶ 32 PSEBA claims have the potential to put municipalities on the hook for hundreds of thousands of dollars of benefits accumulated over the course of an employee's lifetime. While the village manager had no direct pecuniary interest in the outcome of Brousseau's case, he was the village's chief administrative officer. He had substantial fiduciary duties to the village and to the public fisc. "A public official is a fiduciary to the public entity he or she serves ***." In re Carnow, 114 Ill. 2d 461, 470 (1986). Establishing an internal process for PSEBA claims promotes judicial efficiency by relieving the court system of the burden of PSEBA-based hearings and trials. But, as the majority correctly explains, courts do not review local PSEBA adjudications de novo. Instead, they must take the record as it stands, give deference to the facts found by the local adjudicator, and only overturn the decision if it is clearly erroneous. See supra ¶ 17. Thus, designating the manager as the PSEBA adjudicator raises very real due process concerns. ¶ 33 For these reasons, I do not join the majority's holding that the Village Manager's serving as hearing officer raises no substantial due process concerns. Expecting a chief administrative officer or someone with a fiduciary duty to the village to serve an impartial adjudicator is inconsistent with the principles of due process and thus manifestly unwise. I nonetheless agree with the majority's determination that Brousseau forfeited his due process challenge to the Village Manager's role as hearing officer by not raising the issue at the hearing itself. See supra ¶ 21. The time for Brousseau to raise his due process challenge was 13 years ago, during his 2006 hearing. I therefore join ¶¶ 1-21 and 25-27 of the majority's order. While I do not join ¶¶ 22-24, I concur in the judgment reversing the circuit court, because I agree with the majority's analysis and determination that Brousseau was not responding to an "emergency" as defined in PSEBA.