## Facts

- Kenneth Promisco was a lieutenant (deputy sheriff) in the Cook County Sheriff’s Court Services Department, assigned to the Third District court facility in Rolling Meadows, Illinois.
- Under the Sheriff’s Drug-Free Work Policy, Promisco was sent for a random drug test on January 5, 2010.
- Promisco provided a urine sample to Sharon Diver, a technician in the drug-testing unit; Diver acknowledged she did not ask Promisco whether he was taking any medication.
- A UPS carrier picked up the sample for overnight delivery to Pharmatech, Inc., a laboratory in San Diego, California, for analysis.
- Pharmatech sent back a laboratory computer printout stating that Promisco’s sample tested positive for marijuana metabolites.
- The Sheriff filed charges before the Cook County Sheriff’s Merit Board seeking Promisco’s discharge for violating the drug policy.
- At the discharge hearing, Kenneth Kodama, Pharmatech’s laboratory manager, testified as a witness and gave an opinion that the sample contained marijuana residue.
- Kodama’s opinion relied on the Pharmatech printout and related lab materials, but the printout was not authenticated or admitted as a business record, and Kodama did not show that the printout’s contents were the type of data reasonably relied upon by drug-testing professionals when forming an opinion.
- The Merit Board admitted Kodama’s opinion and found that Promisco violated the drug policy, ordering his discharge.
- Promisco sought administrative review in the Circuit Court of Cook County, which set aside the Board’s decision and ordered Promisco reinstated with full back pay and benefits.
- The Sheriff, the Board, and the Board members appealed.

## Issues

1. Whether the Merit Board erred by admitting and relying on Kodama’s opinion that Promisco tested positive for marijuana when the opinion was based on an unauthenticated laboratory printout not shown to be the type of data reasonably relied upon by experts under Illinois Rule of Evidence 703.
2. Whether, without that improperly admitted proof, the Board’s finding that Promisco violated the Drug-Free Work Policy was supported by competent evidence on administrative review.

## Decision

- The appellate court affirmed the circuit court’s order setting aside the Board’s discharge decision and reinstating Promisco with full back pay and benefits.
- The court concluded that Kodama lacked personal knowledge of the testing results and functionally relayed the contents of a laboratory printout that was not properly authenticated or admitted under a hearsay exception such as the business-records exception.
- The court held that the foundation required for an expert to rely on otherwise inadmissible material was not established because the proponent did not show that the Pharmatech printout contained information reasonably relied upon by experts in the drug-testing field.
- With Kodama’s opinion and the unauthenticated printout set aside, the record lacked competent evidence proving that Promisco’s urine sample contained marijuana metabolites.
- Because the Board’s conclusion rested on incompetent proof, its finding that Promisco violated the drug policy could not stand.

## Legal Principles

- In Illinois, an expert may base an opinion on facts or data not admitted into evidence only if the proponent shows that the material is of a type reasonably relied upon by experts in the particular field (Illinois Rule of Evidence 703; *Wilson v. Clark*).
- An expert witness may not serve as a conduit for inadmissible hearsay where the Rule 703 showing has not been made.
- A laboratory test printout offered for the truth of its contents is hearsay unless it is properly authenticated and brought within a hearsay exception (commonly the business-records exception).
- Administrative agencies may use less technical evidentiary procedures than courts, but agency findings that affect substantial rights must be supported by competent evidence; a decision may not rest on unreliable hearsay or unsupported opinion testimony.
- On administrative review, courts examine whether the agency decision is legally proper and supported by sufficient competent evidence; if the key proof is incompetent and no adequate evidence remains, the agency’s decision must be set aside.

## Conclusion

The appellate court affirmed reinstatement because the Merit Board’s discharge finding depended on a laboratory manager’s opinion grounded in an unauthenticated lab printout, without a showing that the printout’s data were the type reasonably relied upon in the field or otherwise admissible; once that proof was excluded, the Board lacked competent evidence that Promisco violated the drug policy.


Promisco v. Dart, 981 N.E.2d 1005 (2012)