IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION

ELIZABETH KOGUCKI, )
)
Plaintiff, )
)
v. ) NO. 08 CH 18881
)
CIVIL SERVICE BOARD OF THE ) Judge Palmer
METROPOLITAN WATER RECLAMATION )
DISTRICT OF GREATER CHICAGO, and ) Calendar 10
JOHN KENDALL, C. VICTORIA ALMEDIA, )
DONALD STORINO in their capacities )
as members of said Civil Service )
Board, and THE METROPOLITAN WATER )
RECLAMATION DISTRICT OF GREATER )
CHICAGO, )
)
Defendants. )

PLAINTIFF’S REPLY IN SUPPORT OF COMPLAINT FOR ADMINISTRATIVE

REVIEW

I. THE ABILITY TO CERTIFY ALL THE CANDIDATES MEANS THE

DISTRICT IS ARGUING AN ABSOLUTE DISCRETION TO PROMOTE ON
ANY BASIS, INCLUDING CRONYISM AND PATRONAGE

The District’s conclusion is that the General Superintendent may choose in his

absolute discretion from any person “certified” to him. Kogucki argued that since the

Director of Personnel is able to certify the entire eligible list of candidates, As, Bs and

Cs, the District’s argument was that the legislature intended that General Superintendent

has the absolute power to promote on the basis of patronage and cronyism, without

regard to the relative excellence of the candidates, without any review by court or agency.

Because the District’s extra-statutory claims of absolute discretion to appoint

from any certified list leads to a result contrary to all the precedent on the purpose behind

this specific civil service regime, and makes the statutorily required examination and

categorization a waste of time, the District creates an extra-statutory restriction that

makes the end result appear more moderate and appealing. In other words, in order to

avoid the ridiculous, the District invents the “Rule of Five” (a term found nowhere in the

law) as a limitation on the maximum number to be certified, wherein the Director can

only certify Bs once there are fewer than five As, see Response at page 12:

As stated earlier, the General Superintendent cannot appoint any candidate

regardless of examination result, he can only appoint a certified candidate.
Unless there are less than 5 names in the top category, the General
Superintendent can only appoint from the top category.

There is no support for this argument in the statutes. The only reference by the

District to any statutory language for this theory is the language that the Director is to

certify from successive categories “until at least five names” are certified, see Enabling

Act Section 4.11. What the District calls the Rule of Five is actually a Rule of At Least

Five, the operative language being “at least”; the Director can certify from successive

categories until an infinite number is reached, that being, literally, “at least five names”.

Compare: “I am going to run until I run five miles”, with: “I am going to run until

I run at least five miles”. With the first sentence, the runner is going to stop at five

miles. With the “at least” inserted, the runner is going to run five but may run more.

Moreover, the first sentence answers the question, “How many miles will you

complete today?”: it is implied that the runner is only going to run five miles. The

second sentence does not answer a question of how many miles will be completed, as it

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says the runner will do “at least” five miles, but has no implication as to whether he may

run farther or how many more he may run.

In the same way, the statute does not answer the question “How many names will

be certified?” beyond stating that the Director will certify a least five names. It could

very well be all of them. Court must read the statute in a manner that gives the insertion

of the words “at least” meaningful and to avoid redundancy. Harris v. Manor Healthcare

Corp., 111 Ill.2d 350 (1986).

II. EVEN THE INVENTED “RULE OF FIVE” REQUIRES A LEGISLATIVE

INTENT TO ALLOW PROMOTION ALMOST ENTIRELY ON PATRONAGE
AND CRONYISM

Precedent requires that the statutes be read to be consistent with the purpose of

appointment on the basis of merit, removing the power of patronage from hiring, and not

making the examinations and categorizing by relative excellence a futile waste of time

(See Brief pages 6-7).

However, even the District’s attempt at a more measured construction is still

contrary to the goals and purposes of the civil service statute. The District is still arguing

that the legislature meant to statutorily endorse the power to make pure, unadulterated

patronage appointments from every eligible list, as long as the District makes some minor

number of appointments according to the examination categories.

Indeed, on the eligible list at issue, there were only five persons in category A,

meaning that the District is arguing that the legislature intended that the examination be

binding only for a single promotion of one A candidate, and intended that four As be left

on the table while patently less excellent candidates are promoted on whatever basis the

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General Superintendent desires, including cronyism and patronage. The District is

arguing that the legislature intended that only one person has to be promoted on the basis

of the examination, and intended the rest of the eligible list may be promoted on the basis

of patronage, cronyism, or whatever in the GS’s absolute discretion.

It is within a legislature’s power, hypothetically, to create a legal ability in the GS

to ignore that District’s own categories of relevant excellence, and to legally allow the

GS absolute discretion all the cronyism or patronage or mere mistake he wants as long as

he promotes one person in the A category. It is within the legislature’s power to

intentionally create a system that removes all patronage and cronyism from the first

promotion and then intentionally allows promotion on the basis of patronage and

cronyism for all following promotions from the eligible list at issue here. But there’s no

reason to believe such was the intent of the legislature when crafting the statutes at hand,

and it flies in the face of the case law on the purposes of the civil service system and

cases requiring statutes to be read to fulfill those purposes.

In Kogucki’s case, she alleged she is being retaliated against for complaints. The

District argues the reason why she was not promoted is irrelevant and nobody’s business.
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It is within the power of the legislature to give the GS the power to put up to four

people in the A category on a secret “do not promote” list based on a snit or as a favor to

someone. Or to use the District’s terms, it is within the power of the legislature to only

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The District’s claim that Kogucki has no proof today that patronage or cronyism
was practiced to deny her the appointment is irrelevant; the argument is whether the
statutes intended to prevent patronage and cronyism, not whether the General
Superintendent has resisted patronage and cronyism in any particular case. However, in
THIS case, Kogucki does assert she was a) retaliated against for complaints and b) that a
B category person was promoted because of a mistake over qualifications. Record at
page 153. If necessary, upon remand, she will prove it.

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care about who is “eligible” for promotion and not care about why people are actually

promoted, or not promoted. But there’s no reason to believe such was the intent of the

legislature when crafting the statutes at hand.

Given that the District’s construction is entirely inapposite to the goals and

purposes of the statutory scheme, Kogucki’s position must be accepted.

III. KOGUCKI’S CONSTRUCTION IS BACKED BY LANGUAGE OF THE

STATUTE AND THE POLICIES AND GOALS THEREOF

Kogucki says there is another, better construction of the statute, based in the

statute’s language and consistent with the goals of the civil service.

Section 4.11 says that “The Director shall certify names from succeeding

categories in the order of excellence of the categories.” That is, the Director of Personnel

is providing a certification that lists in order of the relative excellence of the candidates as

found by the District, by As, Bs, and Cs, with the category grade noted, regardless of the

number he actually ends up certifying.

The requirement of certification in the order of the excellence of the categories

only makes sense if the categories are still relevant in the statutory plan and that General

Superintendent is bound to appoint in the order of ranked excellence---that is, the GS is

obligated to offer the promotion to the highest category persons first, allowing him to

appoint “among the highest ranking”, Stephens v. Metropolitan Water Reclamation Dist.

of Greater Chicago, 218 Ill.App.3d 715, 718, 579 N.E.2d 1, 3 (1st Dist. 1991). The need

for at least five names is in the fact that that promotions are commonly refused because

they involved movement to different facilities or transfer to unpopular supervisors.

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IV. THE DISTRICT CHANGES ITS POSITION ON STEPHENS CASE, RELIED
ON BY THE CIVIL SERVICE BOARD, TO SAY THAT IT IS IRRELEVANT

Before the Civil Service Board, the District argued that the Stephens case was

controlling in this case and must be read as supporting a grant of absolute discretion in

the appointments at issue here. Record at 91. Moreover, the CSB cited Stephens for

that proposition. Record at 007.

Apparently the District is “conceding” that there is no controlling precedent,

arguing that Stephens is simply inapplicable, because that case involved a rank order

eligible list, whereas the instant case involves a list where the Director has sorted the

candidates in relative excellence by categories. See Response, page 10.

However, it seems to Kogucki that this holding is clear enough:

We believe that in deleting such limitation, the legislature intended to

broaden the appointing authority's discretion, allowing him to appoint any
candidate among the highest ranking.

Stephens v. Metropolitan Water Reclamation Dist. of Greater Chicago, 218 Ill.App.3d

715, 718, 579 N.E.2d 1, 3 (1st Dist. 1991)(emphasis added). “Highest ranking”, whether

by category or rank order, is “highest ranking”. Nowhere is there any indication of being

able to choose outside of the “highest ranking”, as the District argues.

Moreover, the language is MORE applicable to the instant case. If there is a rank

order, it may be that all the scores are so close that no meaningful distinction may be

made. However, that cannot be said if the Director of Personnel chooses to place the

candidates in categories. Placement of the candidates in categories, as opposed to rank

order, is where the Director makes a judgment of a qualitative distinction, that is, a

material and measurable difference in relative excellence.

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 Indeed, the amendments at issue are what first allowed the placement into

categories as opposed to rank order, which was a significant broadening of the power of

appointment by creating a virtual tie among candidates. What the District argues is that

the amendment that created the ability to group candidates by category also created the

power to simply ignore the categories.

V. MAKING THE DISTRICT RESPECT THE RESULTS OF ITS OWN EXAM

AND ITS OWN GROUPINGS BY RELATIVE EXCELLENCE IS NOT BEING A
“SUPERPERSONNEL DEPARTMENT”; IT IS CALLED A “CIVIL SERVICE”

The District says any interference with the GS’s discretion is being a “Super”

Personnel Department, and the District finds incredible that the General Superintendent

would even be expected to promote “A” before “B”. It even makes a new term, “The

Rule of A”, mocking the very thought of being required to promote the person found to

be relatively excellent by its own tests that were devised and graded according to statute.

The call is not for another Personnel Department or a “Super Personnel

Department”, it is for a District that actually accepts the results of the examination and

categorizing by relative excellence of its own, single Personnel Department performed

pursuant to its statutory authority. Or, the Court could require the District to explain

itself to the Civil Service Board on remand. That is no more involvement than was

intended by the Legislature when it created the District and passed the statutes at issue.

VI. GREER MAKES IT CLEAR THAT PROMOTIONS ARE REVIEWABLE

AT LEAST ON AN ABUSE OF DISCRETION STANDARD

Even if the General Superintendent has “discretion” to promote Bs before As

under the statute, the decision is still reviewable; the decisions of any agency are

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presumed reviewable for an abuse of discretion in the absence of some express statutory

prohibition. The Brief cited Greer vs. Illinois Housing Dev. Authority, 122 Ill.2d 462,

497-8, 524 N.E.2d 561, 577 (1988).

The District does not raise a statutory prohibition, but satisfies itself by stating

merely that it did not breach any statutory prohibitions. That is not the test: if this Court

or the Civil Service Board can determine a “meaningful standard” by which to judge the

promotions, review is mandated. Id.

The District argues that there are “no meaningful standards” by which to judge

the General Superintendent’s actions. But that assertion is based on the District’s

strange presumption that its own examination and the categorization by its own Director

of Personnel as to the relative excellence of its candidates is not meaningful, and that the

statutes detailing the method of the giving of examinations and the creation of lists are

intended to be largely a waste of everyone’s time and intended to give the GS either

absolute or almost absolute discretion in promotions as final result. The District’s

argument simply pulls itself up by its own bootstraps, and contradicts the decisions

finding the purpose behind the civil service statutes, namely, promoting on the basis of

merit and to remove employment from the patronage system. Meana v. Morrison, 28

Ill.App.3d 849, 329 N.E.2d 535 (1st Dist. 1975) (citing People ex rel. Heineck v. Holding,

207 Ill.App. 38); Metropolitan Water Reclam. District vs. Civil Service Board, et al., 358

Ill.App.3d 343, 356, 832 N.E.2d 835, 843 (1st Dist. 2005), quoting Glenn v. City of

Chicago, 256 Ill. App. 3d 825, 833, 628 N.E.2d 844 (1993).

Therefore, even if the District is correct, and the statutes provide discretion to

promote candidates hat are grouped B before those that are categorized as A, those

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decisions are not insulated from review, according to the Supreme Court’s decision in the

Greer case. The least demanding standard of review is the abuse of discretion or

“arbitrary or capricious” test, Greer, 524 N.E.2d at 576-577, which is defined as follows,

Greer, 534 N.E.2d at 581:

:
Agency action is arbitrary and capricious if the agency: (1) relies on
factors which the legislature did not intend for the agency to consider; (2)
entirely fails to consider an important aspect of the problem; or (3) offers
an explanation for its decision which runs counter to the evidence before
the agency, or which is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.

Even today, the District provides no reason why the GS decided to promote on the

basis of something other than the relative excellence of the candidates as determined by

its own tests. The District even goes so far as to say that the examination performance

and placement into categories of relative excellence is “is important, but it is not

everything”. Response, page 7. Well, if “relative excellence” as determined by the test

is “not everything”, then what else is there that the District uses? According to its

construction, that is nobody’s business but the General Superintendent’s because the

decision is unreviewable and this Court and the Civil Service Board are unable to even

ask if a promotion of a C over an A is on the basis of patronage.

Again, because the end result of the District’s logic is to make a mockery of the

process, it tries to make restrictions that make the end result appear more moderate; it

states, without citation, that promotions on the basis of “fraud, illegal payoff, or

discrimination” are reviewable. Response, page 12. Once again, having argued

unfettered discretion on the part of the GS, the District makes up some rule so that the

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discretion doesn’t seem THAT bad. So the District’s argument is that the GS may use

his discretion to appoint his C-rated brother in law over an A rated person, but only if the

brother in law doesn’t make an “illegal payoff”; the GS can promote a C rated candidate

over an A rated candidate on the basis of patronage, as long as the GS doesn’t commit a

fraud while doing it. It is within the power of a legislature to allow a measure of

patronage and cronyism, but there is no reason to believe that it was the legislature’s

intent here, and the case law states that the purpose of the statutes is merit-based

promotions and the elimination of patronage, not a quota of each.

Kogucki says she was retaliated against for complaints: the District does not deny

it. Kogucki says a B category person was promoted ahead of her because of a mistake as

to his experience: the District does not deny it. There is no doubt that those allegations in

themselves show arbitrary and capricious action, and without a District denial, the

decision must be ruled arbitrary and capricious. The only question is, should this Court

make the ruling or should it remand the case with instructions to the Civil Service Board

for further review?

ELIZABETH KOGUCKI

BY:_______________________
Her attorney
Gregory J. Bueche
Attorney for Elizabeth Kogucki
27475 Ferry Road
Warrenville, IL 60555
630-717-2962
Attorney No. 29332

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I, Gregory J. Bueche, attorney for Kogucki, certify that I caused the foregoing to be
served on all parties by placing a copy in the US mail, postage prepaid, and addressed to:

Mr. Frederick Feldman

MWRDGC
100 East Erie Street
Third Floor
Chicago, IL 60611

On or before February 10, 2009.

________________________________

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