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 BRIEF IN SUPPORT OF COMPLAINT FOR ADMINSTRATIVE

REVIEW

ELIZABETH KOGUCKI, by her attorney Gregory J. Bueche, states in support of

her complaint for administrative review as follows:

This case arises from the civil service of the Metropolitan Water Reclamation

District of Greater Chicago (hereinafter “District”) and its promotions to the position of

Principal Civil Engineer in its civil service.

The Complaint for Administrative Review and the Record on Administrative

Review, submitted herewith, sets forth the procedural, statutory and factual background

for this action.

Specifically, the complaint asks that this court review and reverse a decision of

the administrative agency with jurisdiction over said civil service, the defendant Civil
Service Board of the Metropolitan Water Reclamation District of Greater Chicago

(hereinafter “Civil Service Board” or “CSB”). Administrative Record at 006.

Kogucki had brought before the Civil Service Board her claim that candidates

whose scores on the civil service promotion examination were in the grade “B” category

were promoted instead of candidates like Kogucki whose scores landed them in the A

category. Record at 132 et seq. [Said action before the Civil Service Board is called an

“appeal” to the Board of a District decision, see Personnel Rule 12.02, Record at 0145.]

Kogucki asserted to the CSB that under the statutes governing the civil service,

the District is obligated to promote higher scoring candidates prior to promoting lower

scoring candidates. Kogucki also asserted in the alternative that if the District had any

discretion in choosing candidates in promotion, promoting lower scoring candidates over

higher scoring candidates was an abuse of discretion. Record at 133-134.

The District asserted to the CSB in a motion to dismiss that the General

Superintendent of the District (or “GS”) was not bound by the test results and could

promote any person, regardless of grade received on the promotional exam, certified to

the General Superintendent by the Director of Personnel of the District as being on the

list of candidates eligible for promotion (often called the “Eligible List”). Record at 090

et seq. Kogucki responded that any statutory construction that allowed promotion of any

person on the Eligible List regardless of examination score would allow promotions on

the basis of cronyism and patronage instead of merit as proven on the District’s own civil

service promotional exam. Kogucki further argued that the District’s claim of absolute

discretion in choosing among certified candidates was a claim that it could use cronyism

and patronage as the sole reasons for promotion. Record at 072 et seq.

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 The Civil Service Board dismissed Kogucki’s claim for failure to state a claim

upon which relief could be granted, with prejudice, agreeing with the District’s position

that the CSB could not review promotions. Record at 007. The Civil Service Board

ruled that as a matter of law that she had no claim upon which relief was granted, using

the same principles as a motion to dismiss pursuant to Section 2-615 of the Code of Civil

Procedure. Record at 114, 090, 006-007, 021 et seq.

The instant complaint for administrative review followed. No representative of

the Civil Service Board has appeared in this action.

I. THE BOARD’S DISMISSAL ON FAILURE TO STATE A CLAIM IS

REVIEWED ON A DE NOVO STANDARD.

The Appellate Court has specifically held that this particular Board’s rulings on

civil service statutes AND on the internal regulations of the District are reviewed on a de

novo standard. Metropolitan Water Reclam. District vs. Civil Service Board, et al., 358

Ill.App.3d 347, 353, 832 N.E.2d 835, 840 (1st Dist. 2005). As the dismissal was made as

a matter of law and the construction of statutes, the standard of review here is de novo.

II. THE GENERAL SUPERINTENDENT AND THE DISTRICT HAVE DUTIES

UNDER THE CIVIL SERVICE STATUTES AND CASE LAW TO PROMOTE
THOSE SCORING HIGHER ON PROMOTIONAL EXAMINATIONS.

The statutes creating and governing the District are found in its “Enabling Act”,

70 ILCS 2605/1 et seq. The civil service of the District is governed by civil service

statutes, see Enabling Act Sections 4.0 through 4.37, and all positions of employment

must be filled in accordance with their provisions, see Enabling Act Section 4.1.

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 Under said statutes, for every single promotion in the civil service, there is an

examination, a scoring, and an appointment (emphases added):

Sec. 4.7. All applicants for offices or places in said classified civil
service…..shall be subjected to examination, which shall be public and
competitive……Such examinations shall be practical in their character,
and shall relate to those matters which will fairly test the relative capacity
of the persons examined to discharge the duties of the position to which
they seek to be appointed, and may include tests of physical qualifications
and health and when appropriate, of manual skill…

Sec. 4.9. From the return or reports of examiners, or from the

examinations which he has made, the Director shall prepare a
register……and such persons shall take rank upon the register as
candidates in the order of their relative excellence as determined by
examination, without reference to priority of time of examination. The
Director may substitute categories such as excellent, well qualified, and
qualified, for numerical ratings and establish eligible registers accordingly.
The notice of examination shall specify the category or categories upon
which selection will be made.

Sec 4.10 Promotions. ……..In case of vacancy in higher classifications,

which cannot be filled by reinstatement, the Director shall hold
promotional examinations to fill such vacancy……. All examinations for
promotion shall be competitive. The method of examination, the rules
governing the same, and the method of certifying shall be the same as
provided for in the original examination.

Sec. 4.11. Appointments. Whenever a position classified under this Act is

to be filled… the appointing officer shall make requisition upon the
Director, and the Director shall certify to him from the register of eligibles
for the position the names and addresses (a) of the five candidates standing
highest upon the register of eligibles for the position, or (b) of the
candidates within the highest ranking group upon the register of eligibles
if the register is by categories such as excellent, well qualified, and
qualified, provided, however, that any certification shall consist of at least
5 names, if available. The Director shall certify names from succeeding
categories in the order of excellence of the categories until at least 5
names are provided to the appointing officer.

In this case, the Administrative Record shows that there was a promotional

examination pursuant to section 4.7, and that the candidates were “ranked by relative

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excellence” into categories of A, B, and C1 pursuant to Section 4.9 by the District

Director of Personnel. See Record at 134, 0139-141.

When the Elizabeth Kogucki was placed in category A by the District Director of

Personnel pursuant to his statutory duties under Section 4.9, he was judging her to be

categorically superior to candidates the Director placed in the B and C groups. Record at

134. Despite the Director of Personnel’s placement of Kogucki in the superior category

of excellence pursuant to section 4.9, the General Superintendent chose persons who

were ranked below her in relative excellence. The issue of law is whether the statutes

permit that action and whether that action is an abuse of discretion.

III . TO UPHOLD THE CIVIL SERVICE BOARD, THIS COURT MUST FIND
THAT KOGUCKI HAS NO CLAIM AS A MATTER OF LAW.

Elizabeth Kogucki’s claims for relief before the civil service board were

twofold: first, that she, as a person graded by the Director into Category A, must be

promoted over those people who were graded B and below; second, that she specifically

be promoted as the most qualified.

The positions of the parties with regard to the meaning of the statutes provide this

Court with a stark choice:

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Section 4.9 says: “The Director may substitute categories such as excellent, well
qualified, and qualified, for numerical ratings and establish eligible registers
accordingly”. It is unclear why the eligible lists are published with letters as opposed to
those category names. It is possible that the District was avoiding the political
embarrassment of promoting someone explicitly deemed by the District itself to be
merely “qualified” over someone it deems “excellent”, by obscuring matters with letter
grades. The important point is that the Director has decided that there is a material
difference in “relative excellence” between one category and another pursuant to his
duties under Section 4.9, not the evasive terms he uses.

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 Kogucki: District must promote those who are given the “A” ranking before it
promotes those who are given a “B” or “C” ranking. At the very least the General
Superintendent’s actions must be judged on an arbitrary and capricious standard,
and the GS must at least show that his decision to promote the person that is
graded categorically less qualified than Kogucki has a rational basis.

District: The General Superintendent may promote those who, according to its
own tests, are less qualified and on any basis in its possession of absolute
discretion. The District may promote people from the B category over people in
the A category, indeed, the District is able to promote exclusively from the lowest
ranking, and need not justify to anyone the choices it makes in its absolute
discretion.

The District, in other words, asserts that there IS no civil service law that prevents

promotion on the basis of patronage, cronyism or favoritism, and that the General

Superintendent has the same discretion to promote that any private employer has, despite

the enormous verbiage of the statutes addressed to the promotion process.

The Court should avoid a result that makes the statutorily required testing a moot

issue and effectively eliminates the goals of a merit based testing system:

In ascertaining the intent of the legislature, the Court examines the entire
statute and seeks to determine the objective the statute sought to
accomplish and the evils it desired to remedy. The courts also will avoid a
construction of a statute which would render any portion of it meaningless
or void. The courts presume that the General Assembly, in passing
legislation, did not intend absurdity, inconvenience or injustice.

Harris v. Manor Healthcare Corp., 111 Ill.2d 350 (1986)(citations omitted).

The Appellate Court has ruled that that the purpose of the statues

governing the District’s civil service is to create conditions under which appointment to

positions is made on the basis of merit. 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).

Moreover, "a fundamental purpose of a civil service system is to remove employment

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from the patronage system". 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).

The Appellate Court has also ruled that the District’s civil service statutes should

be read to avoid a result that “would adversely affect the fairness and predictability of the

civil service system and make it possible for employers to engage in the kind of selective

promotions the civil service statutes were enacted to abolish”. Metropolitan Water

Reclam.Dist, supra.

Kogucki argues that meeting the purpose of the statutes requires actually

promoting according to the results of the test; the District admits that the statutes compel

examinations but argues that it is able to ignore the examination results in its

unreviewable discretion in order to promote on such bases as it sees fit, not excluding

cronyism and patronage. This Court is obligated to choose Kogucki’s construction as it

is presumed that the Legislature did not mean an absurdity and a waste of time, and did

mean to control the District’s ability to appoint by cronyism and patronage.

IV. THE STEPHENS CASE’S HOLDING-- THAT THE DISTRICT MAY ONLY
APPOINT FROM CANDIDATES “AMONG THE HIGHEST RANKING”-- IS
WHAT KOGUCKI PRAYS FOR AND DISTRICT FAILED TO DO.

The District puts a great deal of weight on the Stephens case, arguing that it ruled

that the General Superintendent has absolute discretion to appoint anyone certified by the

Director of Personnel as being on the Eligible List for the promotion, regardless of how

that person was categorized in the results of the promotional examination by the Director.

But the Stephens case does not so hold.

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 The holding of Stephens states exactly what Kogucki and common sense call for:

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).

The District argues that Stephens recognized an amendment that broadened the

discretion of the General Superintendent. But the authority was not broadened beyond

an appointment “among the highest ranking”.

Stephens’s holding that the promotions may be of any candidate “in the highest

ranking” does not support the District, given that Kogucki is in the highest ranking, and

those ranked B are being promoted ahead of her, and that according to the District, those

ranked C may be promoted ahead of her as well. Nowhere does the case suggest that the

bottom ranked candidates may be promoted before the highest ranked candidates.

Kogucki argues that in any event the discretion of the General Superintendent is limited

to promotion from the highest ranking, as Stephens says.

V. THE DISTRICT’S CONSTRUCTION LEADS TO RESULT THAT THE

GENERAL SUPERINTENDENT MAY PROMOTE ANY CANDIDATE,
REGARDLESS OF EXAMINATION RESULT, AND ON BASIS OF CRONYISM
OR PATRONAGE.

The District cites the statutory requirement that the Director of Personnel must

certify at least five names from the Eligible List, and argues that such implies absolute

discretion to choose among at least five candidates regardless of their test scores and on

any basis he chooses, including cronyism or patronage. But it does not follow that

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certifying five names at a minimum implies the power to promote contrary to the exam

and on an unconstrained basis.

Section 4.11 states:

…and the Director shall certify to him from the register of eligibles for the
position the names and addresses … (b) of the candidates within the
highest ranking group upon the register of eligibles if the register is by
categories such as excellent, well qualified, and qualified, provided,
however, that any certification shall consist of at least 5 names, if
available. The Director shall certify names from succeeding categories in
the order of excellence of the categories until at least 5 names are provided
to the appointing officer.

The District argues that any name CERTIFIED by the Director may be appointed,

and should the “A” category have fewer than five names, then the requirement of five

names means that the Bs must be certified along with the As.

Then the District leaps to the conclusion that, despite the ruling of Stephens case,

the General Superintending has absolute discretion to appoint from any name certified by

the Director of Personal.

First, there is no statutory language to justify that leap: there’s no inference to be

drawn that the results of the examination are irrelevant upon certification, since the

certification provided to the GS must be “in the order of excellence”, Section 4.11, supra.

Second, because this statute sets forth a minimum number for certification, not a

maximum, it is a simple matter for the Director of Personnel to certify not just five but

EVERY name on the Eligible List, As, Bs, and Cs. If this Court rules that the General

Superintendent has absolute discretion to choose from the names certified, the District

could certify the entire list and promote from the bottom of the list up, without anyone

being able to complain of cronyism or retaliation for complaints of sex discrimination.

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The District simply argues that the General Assembly intended the loophole, and indeed,

in Kogucki’s case the District has certified FIFTEEN names in order to reach down the

list into the categories of lower scorers, and the GS did appoint from lower scorers.

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.” 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, just as the Stephens case holds.

The need for at least five names is in the fact that not every person on the list is

willing to take the promotion. Indeed, if Kogucki is allowed to take discovery, she will

demonstrate that promotions are commonly refused because they involved movement to

different facilities or transfer to unpopular supervisors.

The fact is, there is NO statutory language that supports the District’s position

that the General Superintendent has absolute, unfettered discretion to choose among

however many names the Director chooses to certify in excess of five.

This Court should repeat the Stephens holding and rule that regardless of whether

five or ten or five hundred names are certified, the discretion of the General

Superintendent cannot exceed “appointing any candidate among the highest ranking”, a

ranking determined by the Director of Personnel pursuant to Section 4.9 on the basis of a

measurable and relevant difference in the “relative excellence” of the candidates.

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VI. THE METHOD BY WHICH THE DISTRICT PROMOTES CATEGORY C
OVER CATEGORY A: DECLARING THAT THE CATEGORIES HAVE
DISAPPEARED.

Only briefly touched upon by the District in a footnote, Record at 0092, is the

District’s practice of actually rearranging and deleting the categories post-hoc in order to

engage in semantics about promoting from the “highest category”.

The District pretends that the Director’s categories based on relative excellence

are eliminated when there are fewer than five persons in the higher category. When

Category A becomes four people, due to promotion or otherwise, the District simply

collapses Category A and B and treats all A and B candidates as belonging to a single

category of equal ranking.

When the total of persons in collapsed A and B categories is four persons, then A,

B and C are collapsed and treated as one single category of equal ranking.

Of course, the entire process eliminates the distinctions between test results in

contradiction of all the statutes and rules on test and rankings, and in contradiction to the

Director’s prior judgment on the relative excellence of the candidates that was required

by statute, see Enabling Act Section 4.9.

The District wants to argue that it is promoting from the “highest ranking” by

simply disregarding the Director’s judgment and collapsing the categories, in an act of

mere semantics that allows it to pretend that it is still promoting from “the highest

ranking” in accord with the holding of Stephens. The Director in the first instance orders

the test results into rankings according to the dictates of Section 4.9; but then the District

re-orders the results into broader and different categories for no other reason than to

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allow the General Superintendent to choose Bs before As in accord with the District’s

prior, albeit illegal, practice.

As the purpose of the practice is to thwart the categories made by the Director of

Personnel, for any particular list it is just a question of how many promotions it must

make in order to collapse the categories, and therefore, just a question of how many

persons must be appointed before the categories collapse and a favorite of District is

available for promotion over Kogucki regardless of his placement on the eligible list.

The practice is, as intended, evades the results of the District’s own examination, and its

own categorization of the results, and its own decisions of relative excellence, and the

statutory restrictions that a civil service intends to place on promotion. Rearranging the

categories simply subverts the civil service law in the same way that ignoring the

categories does, with a semantic difference that should fool nobody.

VII. IN ANY EVENT THE SELECTION OF THE PATENTLY LESS QUALIFIED

CANDIDATE IS AN ABUSE OF DISCRETION ON THE PART OF THE
GENERAL SUPERINTENDENT

The Stephens case, as noted above, says that the General Superintendent may

appoint anyone among the highest ranking. But even if the GS has discretion to choose

outside the highest category, the Supreme Court says his actions are reviewable on an

“abuse of discretion” standard, at the very least. Greer vs. Illinois Housing Dev.

Authority, 122 Ill.2d 462, 497-8, 524 N.E.2d 561, 577 (1988)(citations omitted):

As a preliminary matter, it is clear that most agency actions are presumed

reviewable in the absence of some express statutory prohibition of review,
or at least in the absence of language which commits the decision to
unreviewable agency discretion. Whether, and to what extent, a relevant
statute precludes judicial review is to be determined by its express

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 language, the structure of the statutory scheme, its objectives, its
legislative history, and the nature of the administrative action involved. Of
particular importance is whether the statute contains standards, goals, or
criteria by which a court may evaluate agency action.

In this case, the civil service statutes discussed above provide ample standards,

goal and criteria by which the General Superintendent’s actions may be evaluated, and it

is the standards, goals and criteria of a civil service regime that orders the District to give

competitive exams based on merit and to classifying the results based on “excellence”:

indeed, the appellate court has already held that the purpose of the civil service testing is

to create conditions under which appointment to positions should be on the basis of merit,

and to eliminate practices of favoritism and patronage. Meana v. Morrison, 28 Ill.App.3d

849, 329 N.E.2d 535 (1st Dist. 1975); 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).

The Civil Service Board’s dismissal was clear error: the General Superintendent's

appointments are not beyond its review. This case should at least be remanded with the

instruction to review the appointments, minimally, on an arbitrary and capricious

standard, and with instructions that even an arbitrary and capricious standard, the least

demanding standard of review, requires some sort of reasoning, consistent with the goals

of a civil service, as to why the General Superintendent ignored the results of the

District’s own civil service test:

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.

Kogucki should have been allowed to argue to the Civil Service Board that, at the

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very least, by disregarding the results of the statutorily mandated test, the District and

General Superintendent have relied on factors not contemplated by the Legislature. She

should have been allowed to assert which factors had been relied upon, such as cronyism,

patronage, or even good faith mistake, and the General Superintendent should be allowed

to disclose any reasons that may support his decision and show that he did not act

arbitrarily and capriciously.

VIII. THE CIVIL SERVICE BOARDS HAS STATUTORY JURISDICTION

OVER PROMOTIONS, NOT JUST TESTING, AND HAS ADDITIONAL
AUTHORITY FROM THE DISTRICT’S OWN REGULATIONS.

Clearly the Civil Service Board has jurisdiction over promotions in the civil

service. The District argues that the CSB has jurisdiction over the promotion

examinations but no jurisdiction over the promotions themselves, consistent with its

position that the civil service statutes are irrational and actually intend that the

examination results not control the appointments. It is, however, not backed by the

statutes.

Enabling Act Section 4.1 places almost all positions in the civil service and says

they shall be filled “in the manner hereinafter provided for and not otherwise.” Section

4.2 creates the Civil Service Board. Section 4.3 establishes classification of all positions

according to rules approved by the CSB. Section 4.16 makes the Civil Service Board

responsible for “the enforcement of this Act and the rules adopted pursuant to this Act”.

Section 4.37 makes all the CSB final decisions reviewable by this Court under the

Administrative Review Law.

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 Moreover, pursuant to the District’s own statutory rulemaking power (see

Enabling Act Section 4.5), the District has granted to the Civil Service Board power to

hear any complaint by any employee regarding the classified service. Personnel Rule

12.02 states (see Record at 145)

12.02 Appeals to the Board: Any employee or other

person entitled to complain under these Rules may appeal the
decision or action of the Director of Personnel concerning any
complaint or protest by application in writing to the Civil
Service Board…The Board shall hear the matter and its decision
shall be final and shall be communicated to the employee, the
General Superintendent, the appropriate department head, and
to any other person having a proper interest therein.

This Court may note that Kogucki first took her complaints to the Director of

Personnel, and as he denied her complaint he advised her of her rights to appeal to the

Civil Service Board under Personnel rule 12.02. Record at 143-145. Indeed, both the

District and the CSB had confirmed the procedure to bring an “appeal” of District action

before the Board. Record at 172-177.

WHEREFORE, Kogucki prays that judgment enter in her favor, granting the relief

prayed for in the Complaint for Administrative Review.

ELIZABETH KOGUCKI

BY:_______________________
Her attorney
Gregory J. Bueche
Attorney for Elizabeth Kogucki
27475 Ferry Road
Warrenville, IL 60555
630-717-2962

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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 November 27, 2008.

________________________________

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