text:
    BOARD OF ELECTION COMMISSIONERS OF THE CITY OF PEORIA, Plaintiff-Appellee, v. THE COUNTY OF PEORIA et al., Defendants-Appellants.
    Third District
    No. 3—88—0373
    Opinion filed May 4, 1989.

      John Barra, State’s Attorney, of Peoria (Donald J. Toohill, Assistant State’s Attorney, of counsel), for appellants.
    Robert G. Day, Sr., of Peoria, for appellee.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The trial court granted the motion for summary judgment filed by the plaintiff Board of Election Commissioners of the City of Peoria (the Commission). In so doing, the court found that the defendant County of Peoria, Illinois, was required to pay the salaries of the election commissioners, their executive director, and their assistant executive director, in addition to paying the Commission the election tax revenues required by section 25.05 — la of “An Act to revise the law in relation to counties” (the Counties Act) (Ill. Rev. Stat. 1987, ch. 34, par. 408). The court further found that the defendants were required to pay Social Security Act (42 U.S.C.A. §301 et seq. (West 1983)) and Illinois Pension Code (Ill. Rev. Stat. 1987, ch. 108½, par. 7 — 101 et seq.) contributions for the election commissioners, executive director, and assistant executive director. The defendants appeal.

The defendants argued in the trial court and now argue on appeal that recent amendments to section 25.05 — la of the Counties Act indicate the legislature’s intent that counties are no longer required to pay election commissioners’ salaries in addition to paying election tax revenues to the Commission.

Prior to January 1, 1986, section 25.05 — la of the Counties Act provided for a special tax to pay for the expenses of conducting elections and for maintaining a system of permanent registration of voters. Public Act 84 — 163 (Pub. Act 84 — 163, eff. Jan. 1, 1986 (amending Ill. Rev. Stat. 1985, ch. 34, par. 408)), which took effect on January 1, 1986, amended section 25.05 — la. Public Act 84 — 163 more than doubled the maximum rate at which counties could collect general-purpose taxes. At the same time, it abolished a number of special-purpose tax levies, including the special election tax. Public Act 84 — 163 provided, however, that counties had to continue paying election commissions an amount at least equal to the proceeds of the election tax collected for 1985. It also deleted the words: “Proceeds of taxes paid over by counties to municipal boards of election commissioners under this Section shall be in addition to such sums as may be required to be paid by counties under Section 6 — 70 of The Election Code.” (Pub. Act 84 — 163, eff. Jan. 1, 1986.) Section 6 — 70 of the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 6 — 70) provides that counties shall pay the salaries of the election commissioners, the executive director of the election commission, and in some instances an assistant executive director.

The county, while preparing its 1987 budget, budgeted the total amount required under section 25.05 — la, as amended by Public Act 84 — 163, and paid over to the commissioners that amount minus the amount budgeted for salaries to be paid to them as required by section 6 — 70. The defendants’ interpretation of Public Act 84 — 163 has two effects. First, it decreases the amount of revenue available to the Commission, by requiring the Commission to pay its members’ salaries from its own revenues. Second, it effectively amends section 6— 70 of the Election Code.

Regarding any decrease in the Commission’s revenues, we find no express indication in Public Act 84 — 163, its history, or its legislative debate that the legislature intended to effectively decrease funding to election commissions. Examination of the amendment shows only that the legislature sought to streamline the funding and operation of county governments. In support of their argument, the defendants rely on innuendo and implication, but implied amendments are not favored. Village of Monsanto v. Touchette (1965), 63 El. App. 2d 390, 211 N.E .2d 471.

Regarding the effective amendment of section 6 — 70, as noted, section 6 — 70 provides that counties shall pay the salaries of the election commissioners. Section 6 — 70 further provides that those salaries are to be paid from any money in the county treasury not otherwise appropriated. It has long been established that section 6— 70 of the Election Code, not section 25.05 — la of the Counties Act, mandates that counties must pay election commissioners’ salaries. (See Wetherell v. Devine (1886), 116 Ill. 631, 6 N.E. 24; Bolles v. Prince (1911), 250 Ill. 36, 95 N.E. 40.) Neither Public Act 84 — 163, nor any other act, expressly amended section 6 — 70. In fact, Public Act 84 — 163 made no mention of section 6 — 70. Further, section 25.05 — la election tax proceeds do not belong to the county and are already appropriated for conducting elections and registering voters. Accordingly, we find no support for the defendants’ interpretation of Public Act 84 — 163. We therefore agree with the trial court’s finding that the defendants are still required to pay the salaries of the election commissioners out of the county treasury pursuant to section 6— 70, and are also required, pursuant to Public Act 84 — 163, to pay the total amount of election tax revenues to the Commission for the purpose of conducting elections and maintaining voter registration.

The defendants’ second argument on appeal is that the trial court erred in finding that they are required to make social security and pension contributions on behalf of the election commissioners, the executive director, and the assistant executive director. The defendants acknowledge that employers must generally make these contributions on behalf of their employees. They argue, however, that even though they pay the election commissioners’ salaries, technically the election commissioners are not employees of the County of Peoria. In this regard, they note that section 7 — 109 of the Pension Code (Ill. Rev. Stat. 1987, ch. 108½, par. 7 — 109) defines an employee as any person who is paid from municipal funds and who meets “the usual common law rules” applicable to employer-employee relationships. Section 7— 109(3) (Ill. Rev. Stat. 1987, ch. 108½, par. 7 — 109(3)) provides that “the usual common law rules” include situations where the county board fixes the rate of the employee’s compensation, appropriates funds for the employee’s salary, and otherwise exercises control over the employee. The defendants conclude that since the county has limited control over the election commissioners’ salaries and over the funds from which they are paid, and since it exercises no control over them, they are not its employees.

We find the defendants’ position unpersuasive and their reading of the Pension Code out of context. Section 7 — 109(3) of the Pension Code also states that “[a]ll persons *** who receive earnings from general or special funds of a county for performance of personal services or official duties within the territorial limits of the county, are employees of the county (unless excluded by paragraph (2) of this section) notwithstanding that they may be appointed by and are subject to direction of a person or persons other than a county board or a county officer.” (Ill. Rev. Stat. 1987, ch. 108½, par. 7 — 109(3).) Paragraph (2) of section 7 — 109 does not exclude the election commissioners. Accordingly, the commissioners come within this definition of an employee.

Additionally, while “the usual common law rules” of employer-employee relationships set out in the Pension Code relate being an employee to having one’s salary fixed by the county and being controlled by the county, examination of this language shows that it is explanatory rather than limiting. (Ill. Rev. Stat. 1987, ch. 108½, par. 7— .109(3).) In fact, section 7 — 109(a)(2) specifically includes in its definition of employees “aldermen, county supervisors and other persons *** who are paid compensation *** for official duties.” (Ill. Rev. Stat. 1987, ch. 108½, par. 7 — 109(a)(2).) Aldermen are not subject to “the usual common law rules” of employer-employee relationships. Further, reading the Pension Code in context with sections 6 — 21, 6 — 22, and 6 — 23 of the Election Code (Ill. Rev. Stat. 1987, ch. 46, pars. 6— 21, 6 — 22, 6 — 23), it is clear that the legislature intended to include election commissioners as “other persons *** who are paid compensation *** for official duties.” Ill. Rev. Stat. 1987, ch. 108½, par. 7— 109(a)(2).

Our interpretation corresponds with other courts’ findings regarding responsibility for social security contributions. In a case involving a similar issue, the Kentucky Court of Appeals held that social security contributions are based on a percentage of the employee’s salary, so the controlling factor in determining who is liable for the contributions is the source of the employee’s salary. Shamburger v. Commonwealth (Ky. 1951), 240 S.W.2d 636.

We note that the Attorney General’s opinion which the defendants cite (1965 Ill. Att’y Gen. Unpublished Op., No. UP — 1510) relied upon two cases that erroneously interpreted Wetherell v. Devine (1886), 116 Ill. 631, 6 N.E. 24, as holding that the city had to pay the commissioners’ salaries. (See People ex rel. Judge v. Board of Commissioners (1913), 260 Ill. 345, 103 N.E. 282; City of Chicago v. Industrial Comm’n (1945), 389 Ill. 411, 59 N.E.2d 805.) Wetherell actually held that the commissioners’ salaries were properly payable out of the county treasury. (Wetherell, 116 Ill. at 643, 6 N.E. at 30.) For the foregoing reasons, we find that the trial court properly held that the defendants were liable for social security and pension contributions for the election commissioners, the executive director, and the assistant executive director.

The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

HEIPLE and SCOTT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GARY W. KIMBRO, Defendant-Appellee.
    Third District
    No. 3—88—0440
    Opinion filed May 4, 1989.
    Joan Scott, State’s Attorney, of Lewistown (Walter P. Hehner, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Scott J. Butler, of Law Offices of Scott J. Butler, of Rushville, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Gary Kimbro, was charged with theft, in that he exerted unauthorized control over a tractor with the intent to permanently deprive the owner of its use (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(a)(1)). The defendant filed a motion to dismiss the charge, alleging that the theft had occurred in 1975 and that the three-year statute of limitations (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 5(b)) had therefore expired. The trial court denied the defendant’s motion. At trial, the defendant requested a directed verdict at the close of the State’s case, based on the running of the statute of limitations. The trial judge treated the defendant’s motion as a motion to dismiss and granted it. The State appeals. We affirm.

The record reveals that sometime during the fall of 1975 Dale Brooks’ tractor was stolen. The defendant’s ex-wife, Debbie Geer, testified at his trial that one morning in the fall of 1975 she heard the defendant pull a tractor next to their bedroom. The following morning she saw the tractor alongside the house. According to Geer, the defendant told her that he had stolen the tractor. Geer’s mother also testified that the defendant told her that he had stolen the tractor.

The record further shows that in the fall of 1986 the defendant asked a friend to store the tractor for him, because the defendant was going through a divorce at the time and did not want his wife to get the property. The tractor was kept at the friend’s farm until it was discovered on March 11, 1988, by an investigator with the Fulton County sheriff’s department.

In dismissing the charge against the defendant, the trial judge ruled that the theft had occurred in 1975 and that it did not constitute a continuing offense. Accordingly, the judge held that the three-year statute of limitations had expired.

The State first argues on appeal that the trial judge erred in finding that the statute of limitations had expired. It contends that, under the instant circumstances, the defendant’s exerting unauthorized control over the tractor constituted a continuing offense. In support of its position, the State relies primarily on the Illinois Supreme Court case of People v. Alexander (1982), 93 Ill. 2d 73, 442 N.E.2d 887. In Alexander, the court stated: “A defendant can be found guilty of theft solely on the basis of knowingly exerting unauthorized control over the property of another at the time of arrest, because the crime of theft is not limited to the original taking of the property.” (Emphasis in original.) (Alexander, 93 Ill. 2d at 78, 442 N.E.2d at 889.) Based on Alexander, the State argues that although the original tractor theft occurred in 1975, a separate offense occurred on March 11, 1988, when the defendant continued exerting unauthorized control over the tractor. It concludes that the statute of limitations therefore had not run as to this separate offense.

We do not agree. In People v. Steinmann (1978), 57 Ill. App. 3d 887, 373 N.E.2d 757, the appellate court held that theft is not a continuing offense such that the statute of limitations does not begin to run at the time of the original act. Examination of People v. Alexander (1982), 93 Ill. 2d 73, 442 N.E.2d 887, shows that it did not overturn Steinmann. The supreme court in Alexander did not address the statute of limitations because that was not an issue in the case. In fact, the court specifically stated: “In the instant case, a particular time was not an essential element of the crime and the expiration of the statute of limitations was not at issue.” (Alexander, 93 Ill. 2d at 77, 442 N.E.2d at 889.) Accordingly, we find Alexander inapplicable to the case before us. As the trial judge noted in granting the defendant’s motion, if Alexander were to be applied in cases such as this, the statute of limitations for theft would never run.

The second issue raised by the State is whether a new statutory period began when the tractor was transported by the defendant to his friend’s farm in 1986. We need not address this, issue because we find that the theft here occurred only once, in 1975, when the defendant exerted unauthorized control over the tractor. (See People v. Steinmann (1978), 57 Ill. App. 3d 887, 373 N.E.2d 757.) Accordingly, the decision of the trial judge granting the defendant’s motion to dismiss was not manifestly erroneous. People v. Pickerel (1975), 32 Ill. App. 3d 822, 336 N.E.2d 778.

The judgment of the circuit court of Fulton County is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE LUND

text:
    MICHAEL L. JOHNSON et al., Petitioners, v. CARRIE BURNETT, a Minor, et al., Respondents-Appellees (Daniel D. Gabel et al., Intervenors-Appellants). — DANIEL E. GABEL et al., Petitioners-Appellants, v. CARRIE ANN BURNETT, a Minor, et al., Respondents-Appellees.
    Third District
    Nos. 3—88—0489, 3—88—0490 cons.
    Opinion filed May 8, 1989.

      Thomas W. O’Neal, of Westervelt, Johnson, Nicholl & Keller, of Peoria, for appellants.
    No brief filed for appellees.
    James F. Dennis, of Keokuk, Iowa, guardian ad litem.

   JUSTICE LUND

delivered the opinion of the court:

Michael and Adalee Johnson filed a petition in Hancock County seeking to adopt their niece, with the parents’ consent, Hancock County case No. 87 — F—62. Daniel and Nancy Gabel, the minor’s foster parents, filed a petition to intervene. They also filed their own petition to adopt the minor, Hancock County case No. 88 — F—3. The circuit court, pursuant to motions, dismissed the petition to intervene and the Gabels’ adoption petition. The Gabels now appeal these determinations. We affirm.

On December 29, 1987, petitioners Michael and Adalee Johnson filed a petition seeking to adopt Adalee’s niece, C.B. The petition alleged that C.B. was bom on July 8, 1983, and had been in foster placement with the Department of Children and Family Services (DCFS), which had been appointed C.B.’s guardian without the power to consent to an adoption. The petition also included final and irrevocable consents to adoption signed by both parents on that day. The consents specifically agreed to adoption by petitioners.

On January 21, 1988, interveners Daniel and Nancy Gabel filed a petition asking to intervene in this case. The petition alleged that they had been the foster parents for C.B. since February 8, 1986. They also alleged they had spoken with DCFS concerning their desire to adopt C.B. They asked to be allowed to intervene and to consolidate this case with the adoption petition they filed.

On the same day, the Gabels filed their own adoption petition alleging they should be allowed to adopt C.B. because her parents had surrendered their parental rights, and the parents were unfit, requiring their parental rights be terminated.

Ultimately, on June 22, 1988, the court entered an order denying the Gabels’ petition to intervene and dismissing the Gabels’ adoption petition. The Gabels appeal these determinations, in case Nos. 3 — 88— 0489 and 3 — 88—0490, respectively. These cases have been consolidated for appeal.

Initially, we observe that no appellee brief has been filed in this case. While it is not our position to serve as an advocate for the appellee, we find the ends of justice require we should determine the merits of the appeal. See First Capitol Mortgage Corp. v. Taldndis Construction Corp. (1976), 63 Ill. 2d 128,133, 345 N.E .2d 493, 495.

The trial court, in dismissing the Gabels’ adoption petition, found that the Adoption Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 1501 et seq.) does not authorize the filing of an adoption petition by a nonrelated party prior to the child becoming available for adoption. The court further found that C.B. was not available for adoption, as that phrase is defined. The Gabels maintain these determinations are incorrect. We disagree with the Gabels.

Adoption proceedings are unknown at common law and are solely the creation of statutory enactment. (Regenold v. Baby Fold, Inc. (1977), 68 Ill. 2d 419, 436-37, 369 N.E .2d 858, 866; Musselman v. Paragnik (1925), 317 Ill. 597, 599, 148 N.E. 312, 312.) Thus, it is incumbent upon the legislature to prescribe the conditions and procedures that must be followed in creating the relationship of parent and child between persons not so related by nature. (Regenold, 68 Ill. 2d at 437, 369 N.E .2d at 866.) Here, the clear language of the Act supports the court’s decision.

Section 5 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 1507) provides that a proceeding to adopt a child shall be commenced with the filing of a petition. The section then sets forth different requirements for the petition, depending upon whether the child to be adopted is related. The Act defines a related child as standing in the following relationship to, at least, one of the petitioners: parent, grandparent, brother, sister, stepparent, stepgrandparent, stepbrother, stepsister, uncle, aunt, great-uncle, great-aunt, or cousin of the first degree. (Ill. Rev. Stat. 1987, ch. 40, par. 1501(B).) The Gabels, being C.B.’s foster parents, are, thus, not considered related.

When the child to be adopted is not related, the Act requires the petition to be filed “within 30 days after such child has become available for adoption.” (Ill. Rev. Stat. 1987, ch. 40, par. 1507(A).) The resolution of the question before us turns on the analysis of the above-quoted language. Section 1(F) of the Act provides:

“A person is available for adoption when such person is:
(a) a child who has been surrendered for adoption to an agency and to whose adoption such agency has thereafter consented;
(b) a child to whose adoption a person authorized by law, other than his parents, has consented, or to whose adoption no consent is required pursuant to Section 8 of this Act;
(c) a child who is in the custody of persons who intend to adopt him through placement made by his parents; or
(d) an adult who meets the conditions set forth in Section 3 of this Act.” (Ill. Rev. Stat. 1987, ch. 40, par. 1501(F).)

Section 8 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 1510) provides that a consent is not necessary if the court has found that any of several certain factors, one of which is that the parents are unfit, are present.

What is evident from this analysis is the past-tense nature of the wording. The petition must be filed within 30 days after such a child has become available for adoption. A child is available for adoption when he “has been surrendered” and the agency “has thereafter consented,” or when the appropriate person “has consented,” or when the parents have placed the child in the custody of the adoptive parents. This clearly evidences an intent that the child be free for adoption before a nonrelated party can file a petition.

The Gabels maintain that the reference to section 8 provides an exception. They argue this authorizes nonrelated parties to file for adoption and to be allowed to prove the unfitness of the natural parents in a subsequent hearing. However, to read that reference in that fashion places it clearly against all the other definitions contained in section I. The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. (People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174, 1175.) As discussed above, the intent of the Act is to authorize nonrelated adoptions only after the acts contained in section 1(F) have occurred. Accordingly, we believe the reference to section 8 requires that the parents be found unfit prior to the filing of a nonrelated party’s adoption petition.

To hold as the Gabels suggest would allow nonrelated third parties to file petitions to adopt their neighbor’s children and attempt to prove in subsequent hearings that the parents were unfit. This is not the intent of the legislature. We acknowledge that the Gabels, as foster parents who have taken care of C.B. for much of her life, may have a closer relationship to C.B. than some of those persons defined as related in section 1. However, since adoption is solely a statutory creation, any change in this regard would need be made by the legislature.

Accordingly, we hold that a party who is not related to the child, as that phrase is defined, may not file a petition to adopt that child until after any of the acts contained in section 1(F) has occurred and, specifically, they may not file seeking to prove the unfitness of the parent in a subsequent hearing.

The Gabels suggest that, even if this court holds as we have, they should be able to file to adopt C.B. because the consent to adopt, which the parents signed in the Johnson adoption case, case No. 87— F — 62, should be treated as a general surrender for adoption.

In In re Custody of Mitchell (1983), 115 Ill. App. 3d 169, 450 N.E.2d 368, the court addressed this very question and came to a contrary conclusion. Section 10 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 1512) contains the forms necessary for the natural parents to agree to the adoption of their children. The prescribed form of consent under section 10(A) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 1512(A)) is entitled “Final And Irrevocable Consent To Adoption.” The consent form under section 10(C) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 1512(C)) is entitled “Final and Irrevocable Surrender For Purposes Of Adoption.” In Mitchell, the consent in question was executed in conformity with section 10(A) and contained the heading of the specific case. That adoption was never consummated. Later, the trial court held that the consent acted as a general surrender for adoption and terminated the parental rights involved. The appellate court reversed. It observed there is a notable difference in the required language for a section 10(A) consent to an adoption and a section 10(C) surrender for adoption, which evidenced a legislative intent to treat the situations differently. It further concluded the consent in question conformed with section 10(A), and that section 10(A) contemplates existence of a pending petition seeking adoption of the child. It held that this consent was specific to the case it was prepared for and did not act as a general surrender.

Our review of the statutory framework convinces us that Mitchell was determined correctly. (See also the discussion in In re Kerwood (1976), 44 Ill. App. 3d 1040, 1044, 359 N.E.2d 183, 186.) In the present case, the consents conformed with section 10(A), were captioned with the Johnson case heading, case No. 87 — F—62, and were filed in that case. It is evident section 10(A) does contemplate the existence of a pending petition seeking adoption. (Mitchell, 115 Ill. App. 3d at 172, 450 N.E.2d at 370; Kerwood, 44 Ill. App. 3d at 1044, 359 N.E.2d at 186.) Accordingly, we hold that the consents filed are limited in applicability to the Johnson case, case No. 87 — F—62, and may not be considered as general surrenders.

This determination, that the Gabels’ adoption petition was properly dismissed, also partially resolves the question of whether the court erred in denying Gabels’ petition to intervene in the Johnson case.

The authority to intervene is set forth in section 2 — 408 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 408). This provides, in subsection (b), which is involved in the present controversy, that the court in its discretion may allow a party to intervene if a statute confers a conditional right to intervene, or if the applicant’s claim or defense and the main action have a question of law or fact in common. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 408(b).) The purpose of intervention is to expedite litigation by disposing of the entire controversy among the persons involved in one action to prevent a multiplicity of actions. (Bishop v. Village of Brookfield (1981), 99 Ill. App. 3d 483, 487, 425 N.E.2d 1113, 1116; University Square, Ltd. v. City of Chicago (1979), 73 Ill. App. 3d 872, 877-78, 392 N.E.2d 136, 140.) Before a party is allowed to intervene, that party must show that it has an enforceable or recognizable right, not simply a general interest, in the subject matter. (In re Adoption of Ruiz (1987), 164 Ill. App. 3d 1036, 1040, 518 N.E.2d 436, 439.) This decision lies in the sound discretion of the trial court and, unless there is a clear abuse of that discretion, the court’s judgment thereon will not be disturbed. Mississippi Bluff Motel, Inc. v. County of Rock Island (1981), 96 Ill. App. 3d 31, 35, 420 N.E.2d 748, 752.

The Gabels’ first asserted ground for intervention is their desire to adopt C.B. However, as we earlier held, they cannot maintain such an action. It is evident they possess no recognizable or enforceable right in the proceeding, and the decision denying the request to intervene on those grounds was proper.

The Gabels’ second asserted ground supporting intervention is their position that they have a protected liberty interest in the continued custody of C.B. and are, therefore, entitled to the due process protections of notice and a hearing prior to C.B.’s removal. The question of the presence of such a protected liberty interest has been litigated in other courts with mixed results. Some have found that it does exist. (Brown v. County of San Joaquin (E.D. Cal. 1985), 601 F. Supp. 653; Rivera v. Marcus (D. Conn. 1982), 533 F. Supp. 203; James v. McLinden (D. Conn. 1969), 341 F. Supp. 1233; Berhow v. Crow (Fla. App. 1982), 423 So. 2d 371.) A larger number have found that it does not. Drummond v. Fulton County Department of Family & Children’s Services (5th Cir. 1977), 563 F.2d 1200; Backlund v. Barnhart (9th Cir. 1985), 778 F.2d 1386, 1389-90; Kyees v. County Department of Public Welfare of Tippecanoe County (7th Cir. 1979), 600 F.2d 693, 698-99; Snell v. Tunnell (W.D. Okla. 1988), 698 F. Supp. 1542, 1560; Sherrard v. Owens (W.D. Mich. 1980), 484 F. Supp. 728, 741, aff’d (6th Cir. 1981), 644 F.2d 542; In re A.C. (Iowa 1987), 415 N.W.2d 609.

Our legislature has recognized the sensitive nature of the foster-family relationship and has determined that, due to that relationship, a foster parent has a right to be given notice of any hearing under the Juvenile Court Act of 1987 where custody of the child might be changed. (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 5(2).) However, this action is pursuant to the Adoption Act and not the Juvenile Court Act. Thus, this section is inapplicable.

In Smith v. Organization of Foster Families for Equality & Reform (1977), 431 U.S. 816, 53 L. Ed. 2d 14, 97 S. Ct. 2094, the Supreme Court, deciding the case on other grounds, avoided determining if such a protected liberty interest existed. The Court did state:

“Here, however, whatever emotional ties may develop between foster parent and foster child have their origins in an arrangement in which the State has been a partner from the outset. While the Court has recognized that liberty interests may in some cases arise from positive law sources [citation], in such a case, and particularly where, as here, the claimed interest derives from a knowingly assumed contractual relation with the State, it is appropriate to ascertain from state law the expectations and entitlements of the parties. In this case, the limited recognition accorded to the foster family by the New York statutes and the contracts executed by the foster parents argue against any but the most limited constitutional ‘liberty’ in the foster family.” (Smith, 431 U.S. at 845-46, 53 L. Ed. 2d at 36, 97 S. Ct. at 2110.)

Recently, the Iowa Supreme Court, after analyzing the conflicting authority on this question, concluded:

“Under these authorities the key question becomes whether Iowa law creates the expectation that the foster family relationship will be permitted to continue after the children have resided with foster parents for a certain period of time.” A.C., 415 N.W.2d at 615.

Our review of the status of foster parents in Illinois convinces us that no such expectation of a continued foster placement exists. The role of the foster parent, as envisioned by Illinois law, is that of a temporary way station on the road of a child’s life until the difficulties at home can be straightened out. This is evidenced by a primary goal of the Juvenile Court Act of 1987, which is to strengthen family ties whenever possible. (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 2; In re Polovchak (1981), 104 Ill. App. 3d 203, 209, 432 N.E.2d 873, 878.) Even in those cases where it is necessary to place the child outside the home in foster placement, the goal is still to reunify the original family. The Adoption Act creates a period of 12 months after removal of the child in which the parents must make reasonable progress toward the child’s return or be found unfit. (See Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m).) However, this 12-month period should not be considered as an outer limit beyond which the foster parents can reasonably expect a long-term placement, resulting in creation of a liberty interest. While the failure to make such reasonable progress can result in termination of parental rights, it is also possible that the parents, due to their individual shortcomings, can make reasonable progress in a 12-month period, but this progress may not be enough to justify return of the child at that time. Thus, even though the foster relationship would continue, the parties would still be working towards reunification, and the temporary nature of the foster relationship would continue. These are the parameters that foster parents agree to work under when they contract with DCFS.

It is understandable that, after a period of years, a bonding within the foster family would occur which would make separation difficult. It is with this in mind that the legislature has expanded the definition of unfit parents and shortened time periods involved to attempt to free as many children for adoption as the natural parents’ conduct will justify, and to avoid long-term foster placements with the heart-wrenching separations created by return or adoption elsewhere. It is this bonding which is also the reason the legislature has required that foster parents, who have had custody of their charge for over 12 months, be given first consideration in adopting that child by guardians who have the power to consent to the child’s adoption. (See Ill. Rev. Stat. 1987, ch. 40, par. 1519.1.) However, none of this changes the intended temporary nature of the relationship into which foster parents agree to enter. Accordingly, we concur with the majority of courts and hold that, since Illinois law does not create an expectation of a continued relationship, foster parents have no constitutionally protected liberty interest in the continued custody of their charges.

Affirmed.

McCULLOUGH, P.J., and GREEN, J., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT A. WOLFF, Defendant-Appellant.
    Third District
    No. 3-88—0438
    Opinion filed May 10, 1989.

      Pierson, Maloney & Rayfield, of Princeton (Matthew A. Maloney, of counsel), for appellant.
    Marc Bernabei, State’s Attorney, of Princeton (John X. Breslin and Vicki Seidl, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Robert A. Wolff, was charged with driving under the influence and improper lane usage in Bureau County, Illinois. Thereafter, the defendant was read the “Warning to Motorist” and voluntarily consented to a breathalyzer test which revealed that the defendant’s blood-alcohol concentration was .15. The defendant was then given immediate notice of his statutory suspension. The defendant subsequently filed a motion to quash his arrest, suppress all evidence, and rescind his statutory summary suspension, which was denied after two evidentiary hearings. The defendant appeals the trial judge’s denial of his motion to rescind his statutory summary suspension. We affirm.

On appeal, the defendant contends that he was arrested in his home without probable cause and without an arrest warrant, thus violating his fourth amendment rights. The State maintains that the defendant was not arrested at his home and voluntarily chose to accompany Officer Ray Kuhnert to the Bureau County jail. Alternatively, the State asserts that the defendant’s arrest was sufficiently supported by probable cause and occurred in the defendant’s open doorway, which is deemed to be a public place for purposes of the fourth amendment. The trial judge found that the defendant was arrested at his home and that there was adequate probable cause to arrest the defendant for either driving under the influence or reckless driving. Although we question whether an actual arrest took place at the defendant’s home, we agree with the lower court that probable cause did exist to arrest the defendant.

On November 11, 1987, Officer Ray Kuhnert was on patrol when he was flagged down by a motorist, Glenn Sissel, who informed him that a vehicle had just run his automobile off the road. Mr. Sissel informed Officer Kuhnert that he had followed the vehicle and knew where the driver resided. Officer Kuhnert then followed Mr. Sissel to the defendant’s residence, where Mr. Sissel identified the defendant as the driver of the vehicle which had run him off the road.

Officer Kuhnert testified that when he arrived at the defendant’s residence he knocked at the door several times before the defendant appeared. Officer Kuhnert stated that he noticed a strong odor of alcohol on the defendant’s breath when the defendant answered the door. While standing in the doorway of the defendant’s house, Officer Kuhnert informed the defendant of Mr. Sissel’s allegations and told him that because the incident occurred outside the Princeton City limits, the matter was more properly dealt with by the Bureau County sheriff’s department. Officer Kuhnert stated that the defendant agreed to accompany him to the county jail, but that the defendant indicated that he had to go upstairs and hang up the telephone before he could leave. Officer Kuhnert then followed the defendant into the defendant’s house and waited for him at the base of the stairs until the defendant finished his telephone conversation. Officer Kuhnert testified that he did not place the defendant under arrest at the defendant’s home, but that the defendant was arrested at the Bureau County jail.

The Illinois Supreme Court has held that the defendant bears the burden of proof at a hearing to rescind his statutory summary suspension. (People v. Orth (1988), 124 Ill. 2d 326.) Furthermore, it is well settled that an appellate court will not overturn the trial judge’s finding following an implied consent hearing, unless it is contrary to the manifest weight of the evidence. People v. Kirby (1986), 145 Ill. App. 3d 144.

As a general rule, it is permissible for a police officer to make a warrantless arrest if he has probable cause to believe that the person arrested is committing or has committed a criminal offense. (People v. Millender (1986), 140 Ill. App. 3d 504.) Whether probable cause exists in a particular case does not depend upon the application of technical legal rules, but upon the totality of the circumstances and facts known to the officer at the time the arrest was made. People v. Tisler (1984), 103 Ill. 2d 226.

In the present action, Officer Kuhnert was informed by Mr. Sissel that the defendant’s vehicle had crossed the center line and forced his automobile off the road. A police officer, in determining whether or not probable cause exists, may rely on information supplied by an ordinary citizen who is a witness or the victim of a crime without independent verification. (People v. Spencer (1982), 107 Ill. App. 3d 835.) Additionally, Officer Kuhnert noticed a strong odor of alcohol on the defendant’s breath when he confronted the defendant at the defendant’s home. This court finds that the combination of these factors was sufficient probable cause to believe that the defendant had committed both the offense of improper lane usage and the offense of driving under the influence.

This court further notes that the test for determining the validity of the arrest is whether the officer had actual probable cause to arrest the defendant, not whether the officer correctly articulated the basis for the arrest. (People v. Kincy (1982), 106 Ill. App. 3d 250.) Thus, an officer’s subjective belief does not control the issue of whether or not probable cause existed in order to arrest the defendant. (People v. Moody (1981), 97 Ill. App. 3d 758.) A court may place itself in the position of the arresting officer and, in light of the objective evidence, substitute its judgment on the issue of probable cause for the officer’s judgment. (Moody, 97 Ill. App. 3d at 766.) Consequently, it does not matter what Officer Kuhnert subjectively believed, as long as there was actual probable cause to arrest the defendant. By reason of the facts previously noted, we find that probable cause did exist.

Finally, this court acknowledges that a warrantless and nonconsensual entry into a suspect’s home to make an arrest is prohibited by the fourth amendment. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) This, however, was not the situation presented by the facts of the case at bar. It is well accepted that where a police officer has probable cause to arrest the defendant, an arrest may be made at the entrance of a defendant’s home when the defendant voluntarily opens the door in response to an officer’s knocking. (People v. Schreiber (1982), 104 Ill. App. 3d 618, cert. denied (1983), 459 U.S. 1214, 75 L. Ed. 2d 452, 103 S. Ct. 1214.) Generally, a person standing in an open doorway of his or her house is deemed to be in a public place for purposes of the fourth amendment. (United States v. Santana (1976), 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct. 2406.) In the instant case, Officer Kuhnert knocked on the defendant’s door and the defendant voluntarily opened the door. The entire conversation between the defendant and Officer Kuhnert took place in the defendant’s doorway. It was from this vantage point that Officer Kuhnert informed the defendant of Mr. Sissel’s allegations and detected the strong odor of alcohol on the defendant’s breath. Hence, the defendant was arrested, if at all, while he was standing in the doorway of his home. The mere fact that Officer Kuhnert followed the defendant into his house and waited at the base of the stairway while the defendant finished his telephone conversation does not change this fact. An officer may accompany the arrestee into his home in order to monitor his activities, after an arrest has been made. (Washington v. Chrisman (1982), 455 U.S. 1, 70 L. Ed. 2d 778, 102 S. Ct. 812.) Accordingly, the defendant’s claim that his fourth amendment rights were violated is not supported by the record.

For the reasons stated, the judgment of the circuit court of Bureau County is affirmed.

Affirmed.

BARRY and STOUDER, JJ., concur.


author: JUSTICE QUINLAN

text:
    THE CITY OF CHICAGO, Appellant, v. ILLINOIS LOCAL LABOR RELATIONS BOARD et al., Appellees.
    First District (1st Division)
    No. 1—87—3882
    Opinion filed December 30, 1988.

      Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and L. Anita Richardson, Assistant Corporation Counsel, of counsel), for respondent.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Bret A. Rappaport, Assistant Attorney General, of Chicago, of counsel), for petitioner Illinois Local Labor Relations Board.
    Cornfield & Feldman, of Chicago (Gail E. Mrozowski, of counsel), for other petitioners.
   JUSTICE QUINLAN

delivered the opinion of the court:

Alice Chico (Chico) filed a complaint with the Illinois Local Labor Relations Board (Board) against her employer, the City of Chicago (City), alleging that the City had committed unfair labor practices against her in retaliation for her pro-union activity with the American Federation of State, County and Municipal Employees, Council 31 AFL-CIO (union). The complaint was investigated and went to hearing before a hearing officer, who found that five of the actions alleged were, in fact, unfair labor practices. The officer’s recommended order provided that the City was to cease and desist from discouraging or discriminating against union membership and support; to stop discriminating against employees who file charges or provide information or testimony under the Illinois Public Labor Relations Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1601 et seq.); and to stop interfering with, restraining or coercing employees in the exercise of their rights under the Act. The hearing officer’s recommended order also directed the City to rescind, withdraw and discontinue its pending disciplinary claim against Chico, remove all references to it in Chico’s personnel file, and, finally, directed the City to post notices of the ruling. Exceptions to the hearing officer’s recommended order and decision were filed by both parties, but the Board, nevertheless, adopted the findings of the hearing officer and the recommended remedy.

In November 1985, the union petitioned the Board to allow it to represent a bargaining unit of 45 investigative personnel in the City’s office of professional standards (OPS), a division of the City’s police department. OPS investigates and resolves charges regarding the use of excessive force by Chicago police officers. The petition, over the City’s objections, was granted. An election was held and the union became the exclusive bargaining representative for OPS in August 1986.

While this was happening, certain problems arose between OPS and one of its investigators, Alice Chico, who was a visible and active union supporter. Chico testified in favor of the union at hearings on the petition, she attended the preelection conference as a union supporter, and, at time of the election, she served as an official union election observer. Chico alleged that there were five unfair labor practices committed by the City against her in retaliation for her pro-union activities. The alleged unfair labor practices were as follows.

(1) OPS improperly claimed that a discrepancy existed between Chico’s testimony at the hearing on the union’s petition for representation, in which she testified that she co-taught a class at Northeastern University, and the resume she submitted in December 1985, which the City claimed indicated that she taught the class, not that she co-taught the class, and her application for employment filed with the Department in which she did not mention anything regarding teaching a class.

(2) In August 1986, OPS reopened a file which Chico had closed out because the complaint against the two police officers had not been sustained. Although it is not entirely clear who requested this, the reviewer of the closed file found that there was a discrepancy in the file which Chico had directed to be closed, and that additional investigation was warranted.

(3) OPS demanded that Chico provide written reasons for her absence from her desk during the union’s election. Although Chico contended that she had told OPS and that OPS knew of her designation as an election observer at that time, OPS contended that they did not know or authorize her designation as an election observer.

(4) In September 1986, OPS demanded that Chico file a written evaluation of a course she had taken in criminalistics, although the course had ended in April 1986. The course was taken on Chico’s own time and at her own expense, but she had her work hours rearranged to take the course.

(5) OPS initiated a complaint against Chico for disseminating confidential OPS documents in violation of a police department rule. Chico stated that when she gave the Board investigator copies of the confidential OPS documents, she told the investigator of the confidential nature of the documents and that the investigator assured her that the documents would be kept confidential.

During this time period involving the alleged unfair labor practices, Chico filed and continued to pursue her complaint against the City with the Board, alleging the above-stated matters as unfair labor practices. Chico asserted that all of the City’s actions made her feel harassed and intimidated, and, additionally, as to the fifth action concerning the dissemination of the confidential documents, that she had received a 15-day suspension. As noted above, a hearing was subsequently held before a hearing officer of the Board on these charges, and the officer concluded that each act was an unfair labor practice' under sections 10(a)(1), (a)(2), and (a)(3) of the Act. (See Ill. Rev. Stat. 1987, ch. 48, par. 1610.) The hearing officer, however, found that Chi-co’s transfer to another unit in OPS and the transfer of the file that had been reopened to another OPS investigator were not motivated by anti-union animus, and, thus, were not unfair labor practices. Based upon the findings that the City committed five unfair labor practices, the hearing officer issued the recommended order that the City cease and desist from its unfair labor practices and that OPS “rescind and discontinue its disciplinary action against Chico, and remove any and all references to the disciplinary action from [her] personnel file and any other OPS files.”

The City then, also as stated previously, filed exceptions to the recommended order with the Board, but despite the filed exceptions, the Board affirmed and adopted the decision of the hearing officer. The Board specifically concurred that each of the five acts, found to be unfair labor practices by the hearing officer, were a violation of sections 10(a)(2) and (a)(3), and that these violations, in turn, constituted derivative violations of section 10(a)(1) of the Act. (See Ill. Rev. Stat. 1987, ch. 48, par. 1610.) The City has now appealed that determination to this court pursuant to section 11(e) of the Act (see Ill. Rev. Stat. 1987, ch. 48, par. 1611(e)), and Chico, the union and the Board have filed responses to this appeal.

The City contends that the Board's determination that the first four acts were unfair labor practices was improper as a matter of law, and the determination that the fifth act was an unfair labor practice was against the manifest weight of the evidence. This appeal is taken from the order of the Board which affirmed the ruling of the hearing officer and is brought pursuant to our Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.). The scope of review on appeal of an order of an administrative agency is set forth in section 3 — 110 of the Administrative Review Law. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) Section 3 — 110 provides that every action to review a final administrative decision shall be heard and determined on all questions of law and fact presented by the entire record before the court. Moreover, “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) This statute has been construed by our courts to mean that courts may not interfere with the discretionary authority and expertise vested in administrative bodies unless that authority is exercised in an arbitrary and capricious manner. Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088.

The City asserts that the Board’s decision was incorrect as a matter of law as to the first four alleged acts in this case and against the manifest weight of the evidence as to the fifth act. It contends that there was no evidence of any financially adverse consequence to Chico as to these four alleged unfair labor practices, and, in the absence of evidence of financially adverse consequence, a prima facie case of discrimination, i.e., an unfair labor practice, cannot be established. Accordingly, the City argues that these four acts cannot be unfair labor practices as a matter of law. Additionally, the City asserts that the hearing officer’s finding that Chico’s sanction for the fifth act (the dissemination of the confidential documents in the reopened file incident) as an unfair labor practice was against the manifest weight of the evidence. The City contends that there was a legitimate business justification for the suspension because Chico broke a valid police department rule, and, since this legitimate rule violation was the motivating factor for the suspension, this activity could not constitute an unfair labor practice.

Chico, on the contrary, argues that the term “discriminate,” as used in section 10 of the Act, does not require any “discipline” or monetary loss. She claims that she was intimidated and harassed by the City’s first four acts and that this harassment is sufficient to constitute discrimination under the Act. In any event, she contends that all of the unfair labor practices had an adverse tangible impact on her job tenure and her conditions of employment. Chico also asserts that the evidence here amply supported the Board’s finding that the City’s primary motivation for the fifth act was its unlawful anti-union animus. She contends that the City was clearly aware of her pro-union activities during the time period preceding the disclosure of the confidential documents and her resulting suspension, and that the disclosure and suspension took place immediately following her discussion with the Board investigator concerning the very charges which form the basis of this appeal.

The Board argues, as does Chico, that its decision was proper as a matter of law as to the first four acts. The Board asserts that discrimination is not synonymous with adverse financial consequence and to equate the two would leave wronged, harassed employees without redress for improper actions by the employer, where no adverse financial consequence results. Here, it contends, the fact that Chico was harassed was sufficient, to establish a prima facie case of discrimination as to each of the first four acts. The Board also argues that, as to the fifth act, the evidence presented proved that the primary motivating force behind the City’s action against Chico for disclosure of the confidential documents was to interfere with Chico’s right to be an active union member. To avoid liability for discrimination, the City must have shown more than merely some evidence of a legitimate motive for its action. The City must have shown that the legitimate motive was the primary motivating force. The Board claims that the City’s unsupported assertion of a legitimate business reason for its action failed to establish that this reason was the primary motivating factor for the charge against Chico and her resulting suspension. Thus, the Board concludes, the hearing officer correctly found that the allegedly legitimate motive here was merely a pretext for the City’s primary motive for Chico’s suspension, its anti-union animus.

The City first claims that the hearing officer incorrectly found, as a matter of law, that Chico stated prima facie cases of discrimination as to the first four acts. Under Illinois law, the standard of review to be applied to issues which concern an agency determination on a question of law, such as whether a party has stated a prima facie case, is whether the agency abused its discretion. (See Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 496, 524 N.E.2d 561, 576-77.) The Illinois Public Labor Relations Act (the Act) sets forth the definition of an unfair labor practice. (Ill. Rev. Stat. 1987, ch. 48, par. 1601 et seq.) Specifically, section 10(a) of the Act states that it shall be an unfair labor practice for an employer or its agents:

“(1) to interfere with, restrain or coerce public employees in the exercise of the rights guaranteed in this Act or to dominate or interfere with the formation, existence or administration of any labor organization ***;
(2) to discriminate in regard to *** tenure of employment or any term or condition of employment in order to *** discourage membership in or other support for any labor organization ***;
(3) to discharge or otherwise discriminate against a public employee because he has signed or filed an affidavit, petition or charge or provided any information or testimony under this Act.” Ill. Rev. Stat. 1987, ch. 48, par. 1610(a).

Prima facie cases of unfair labor practices were established for each of the first four acts alleged here. The explicit language of section 10(a)(2) states that an employer may not “discriminate in regard to hire or tenure of employment or any term or condition of employment.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 1610(a)(2).) Furthermore, section 10(a)(3) clearly provides that an employer may not “discharge or otherwise discriminate." (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 1610(a)(3).) No mention is made of any requirement of adverse tangible result or adverse financial consequence resulting from such discrimination. Indeed, case law involving the unfair labor practices section of the Federal National Labor Relations Act, which is substantially similar in nature to section 10 of the Illinois Act, amply supports the Board and Chico’s contention that adverse financial consequence is not a requirement for a finding that an unfair labor practice occurred. (29 U.S.C. §158 (1987); Ill. Rev. Stat. 1987, ch. 48, par. 1610.) For example, in NLRB v. Village IX, Inc. (7th Cir. 1983), 723 F.2d 1360, the Seventh Circuit specifically found that one of the employer’s acts alleged to be discriminatory, i.e., the act of delaying the mailing of invitations to a company party to two pro-union employees, constituted discrimination and was an unfair labor practice.

Moreover, it is directly contrary to the policy of the Act, as well as the express language of section 10, to require that discrimination in the context of an unfair labor practice must be accompanied by an adverse tangible result or financial consequence. (See Ill. Rev. Stat. 1987, ch. 48, par. 1610.) If we were to accept the City’s contention, which we believe is contrary to the law itself, then an employee whose employer consistently intimidated and harassed him or her and constantly subjected his or her work performance to the strictest scrutiny would have no recourse under the Act. Such a situation is directly contrary to the intent of the Act and is, in fact, exactly the type of activity the Act seeks to prohibit. Harassment and intimidation alone can certainly be discriminatory practices under the Act. Thus, mere lack of an adverse financial consequence or adverse job. action does not defeat a claim as a matter of law. We, consequently, find that all four of the actions alleged constituted prima facie cases of discrimination under the Act.

We next consider the City’s challenge to the Board’s finding as to the fifth act as being contrary to the manifest weight of the evidence. When a party questions the factual findings of an administrative agency, the standard to be applied on review is whether the agency’s findings are contrary to the manifest weight of the evidence. (Graham v. Illinois Racing Board (1986), 145 Ill. App. 3d 383, 389, 495 N.E.2d 1013, 1017.) The key inquiry in the examination concerning whether the action here constituted an unfair labor practice under the Act is whether the action was motivated by anti-union animus or was in retaliation for the employee’s exercise of a legally protected right, i.e., reporting unfair labor practices. (See Ill. Rev. Stat. 1987, ch. 48, par 1601 et seq.; City of Burbank v. Illinois State Labor Relations Board (1988), 168 Ill. App. 3d 885, 523 N.E.2d 68.) When motivating factors include both legitimate business reasons as well as reasons related to the employee’s exercise of a protected activity, courts have found the existence of an unfair labor practice only if the employee’s exercise of the protected activity was a substantial or motivating factor. (Burbank, 168 Ill. App. 3d at 893, 523 N.E.2d at 73, citing Rockford Township Highway Department v. Illinois State Labor Relations Board (1987), 153 Ill. App. 3d 863, 878, 506 N.E.2d 390, 399.) However, once it has been established that the employee’s exercise of a protected activity was the motivating factor for the employer’s alleged unfair labor practice, the employer must prove, by a preponderance of the evidence, that the principal motivation was, in fact, based only on legitimate business reasons. But, even evidence of a good-faith motive is not an absolute defense to an unfair labor practice charge. (Burbank, 168 Ill. App. 3d at 893, 523 N.E.2d at 73, citing Rockford, 153 Ill. App. 3d at 879, 506 N.E.2d at 400.) Thus, if anything in the record fairly and substantially supports the agency’s action, the decision is not against the manifest weight of the evidence, and, consequently must be upheld on review. Greer (1988), 122 Ill. 2d 462, 524 N.E.2d 561; see also Burbank, 168 Ill. App. 3d 885, 523 N.E.2d 68.

The City, on appeal, contends only that the evidence presented as to the fifth act was not sufficient. A review of the record shows that the finding below that the fifth act was an unfair labor practice was amply supported by the evidence. The hearing officer not only considered the facts presented, but he also properly considered all of the circumstances and inferences surrounding the facts, such as the timing of the City’s actions. See Burbank,. 168 Ill. App. 3d 885, 523 N.E.2d 68; see also NLRB v. E.I. DuPont De Nemours (6th Cir. 1984), 750 F.2d 524.

The fifth action, which ultimately resulted in Chico’s 15-day suspension, occurred when the City learned of Chico’s disclosure of confidential OPS documents to the Board investigator on August 18, 1986. The documents were disclosed only for the purpose of the investigation into the alleged unfair labor practices against Chico, which was part of her complaint against the City.. Chico told the investigator of the confidential nature of the documents in the file and the investigator assured her that they would be kept confidential. When Dr. Fogel and the other OPS personnel met with the investigator to discuss Chi-go’s complaint with the Board, and discovered that she had disseminated confidential documents to the investigator, a disciplinary action was immediately filed against Chico for violation of a police department rule which forbids dissemination or removal of files or records. Chico received a 15-day suspension for violation of this rule.

The hearing officer, in finding this action to be an unfair labor practice, noted that files which form the basis of certain investigations, etc., are often provided to government agencies or attorneys, and, if not provided, can be subpoenaed. We agree and find that the determination as to the City’s action of suspending and harassing Chico for dissemination of confidential material to the independent Board investigator, when that confidential material was crucial to her claim against the City, was proper in light of all of the facts and circumstances presented in this case.

Additionally, we find this situation comparable, as the Board did, to the situation presented in United States v. City of Milwaukee (E.D. Wis. 1975), 390 F. Supp. 1126, where the court held that a Milwaukee police department’s threat of application of its rule prohibiting dissemination of confidential police business was an improper infringement on the right of the Justice Department attorneys and their representatives to communicate with potential witnesses, and would, the court said, have an improper chilling effect on enforcement of the Civil Rights Act. (See 42 U.S.C. §2000e et seq. (1987).) We find that the enforcement of the police department rule here would have a similar effect. The timing of the incident between Chico and the City, as well as the circumstances, provides a substantial basis for finding that the primary motivating factor for Chico’s suspension was not based upon a legitimate business reason, but was rather, as the Board found, a pretext for discrimination against Chico as a result of its anti-union animus. The Board, therefore, correctly found the City’s action of filing charges and suspending Chico for the disclosure of confidential documents to be an unfair labor practice.

Accordingly, for all of the reasons stated above, the decision of the Board is affirmed in its entirety.

Judgment affirmed.

MANNING and O’CONNOR, JJ., concur.

      A recommended order is the hearing officer’s suggested determination or resolution. After the recommended order is given, both parties are provided the opportunity to object to the recommended order by filing exceptions with the Board. The Board reviews the order and the objections, and either adopts the recommended order or makes its own determination. See Ill. Rev. Stat. 1987, ch. 48, par. 1611; see also 80 Ill. Adm. Code 1220.60(a) (1986).

      By mutual agreement of the parties, Chico was transferred to another OPS investigative unit in September 1986.

      For the sake of convenience, because Chico and the union filed a single brief, and have made the same arguments, any references to Chico’s arguments are equally applicable to the union.

      Although this resolves the direct issue as to whether Chico stated prima, fade cases of discrimination, the parties have indirectly argued regarding the sufficiency of the evidence presented as to the first four acts. Because this was not directly raised as an issue on appeal, we need only note that the record on appeal presents more than a sufficient evidentiary basis for the Board’s finding that the first four acts constituted unfair labor practices.