Appeals panel hints not willing to reverse most Cook Co. Sheriff's firings under illegal merit board

By Scott Holland | Aug 31, 2018


Saying they wished to shy away from potentially overthrowing untold numbrs of otherwise purportedly proper terminations and employee disciplinary actions within the Cook County Sheriff’s Office, a state appeals panel has upheld the termination of a Cook County Sheriff’s employee even though the merit board the sheriff uses to review employee discipline and terminations was illegally constituted at the time the officer was fired.

The Cook County Sheriff’s Merit Board fired Miguel Lopez from the Cook County Department of Corrections on Jan. 15, 2015, though the termination of his employment was effective as of July 8, 2013. The Board determined Lopez had unexcused work absences exceeding 80 hours.  Lopez sought administrative review of the decision through Cook County Circuit Court, and on March 3, 2016, the case was sent back to the merit board for consideration of Lopez’s defense, in which he cited his alcoholism.

The Merit Board, however, upheld its original ruling without a second hearing. Lopez again sought court review, and on Feb. 22, 2017, Judge Diane Larsen affirmed the board had properly decided Cook County Sheriff Tom Dart proved his allegations against Lopez by a preponderance of evidence.

Lopez appealed, but on Aug. 29, a three-justice panel of the Illinois First District Appellate Court also sided with the sheriff. Justice James Fitzgerald Smith authored the decision with justices Nathaniel Howse and Terrence Lavin concurring. The ruling was issued as an unpublished order under Supreme Court Rule 23, which restricts its use as precedent, except under very limited circumstances permitted by the Supreme Court rule.

Lopez based his appeal on the outcome of the 2017 Illinois Appellate Court ruling in Taylor v. Dart, which established Merit Board member John Rosales had not been lawfully appointed to serve on the Merit Board at the time it voted to fire an employee. Dart appointed Rosales to the board in June 2011 to fulfill a vacant term set to expire in March 2012. Because that meant Rosales was not serving a full 6-year term, the justices in the Taylor case decided this meant he had not been legally appointed, and the decision to fire the plaintiff in the Taylor action could not be considered valid.

That decision has since sparked an onslaught of legal actions against the Sheriff’s office by disciplined and terminated Cook County Sheriff’s officers, asserting the actions against them should also be invalidated.

In the Lopez case, however, Dart argued Taylor is irrelevant to Lopez’s appeal because Lopez didn’t raise this concern earlier in the process, and also because Morales did not preside over Lopez’s case or sign off on his termination, having left the board before the March 2016 second decision.

However, Justice Smith wrote, the panel felt “the interests of justice are better served by addressing the issue” Lopez raised. The panel considered Lopez’s argument because Rosales participated in the hearing and decision and did preside on the evidentiary hearing that preceded the initial January 2015 dismissal.

However, Dart also said that even if the panel agreed Rosales wasn’t properly seated on the Merit Board, the decision should stand because it would invite the chaos of invalidating every board decision involving Rosales using Taylor as precedent. Smith quoted former Illinois Supreme Court Justice Mary Ann McMorrow’s writing in the 2002 decision, Daniels v. Industrial Commission, explaining decision of this nature require a balance between “the public’s interest in promoting the orderly functioning of government” and uncovering and exposing “illegal appointment procedures and thereby ensuring administrative agencies comply with the statutory mandates which govern them.”

To reverse Lopez’s termination, Smith wrote, would “invite hundreds of plaintiffs to seek invalidation of all the decision rendered by the illegally constituted panel during Rosales’ unauthorized term.” That could include disciplinary actions, terminations, promotions and job classifications. Still, the panel said the decision in Taylor should stand as that plaintiff was the first to shed light on Rosales’ improper appointment, and public interest was served in the resolution of that matter.

The panel also said its review of the Merit Board’s decision showed the manifest weight of the evidence was against Lopez, meaning it correctly determined he violated several conditions of his employment.

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Circuit Court of Cook County Cook County Sheriff's Department Cook County Sheriff's Merit Board Illinois First District Appellate Court

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