Appeal from the Circuit Court of Sangamon County; the Hon.
SAMUEL O. SMITH, Judge, presiding. Judgment affirmed.
On June 16, 1962, plaintiff received notice that he was laid off from his position of Building Construction Supervisor V in the Division of Architecture and Engineering, Department of Public Works and Buildings. The notice, dated June 6, 1962, stated that the effective date of separation was June 15, 1962, and the last date for which he would be paid was July 19, 1962. The reason given for the lay off was: "Material reorganization of exempt positions. Abolishing position due to reorganization. Duties absorbed by section head (Building Construction Supervisor VI). Position no longer necessary. This effects a more economical operation." The notice was given on a Department of Personnel form designated "Personnel Separation." At the same time, plaintiff was furnished a "Performance Record," dated June 6, 1962, prepared on a Department of Personnel form. In spaces provided on the form, his position was described as "Bldg. Constr. Supvr. V, Exempt position," and the transaction was described as a "lay off."
Plaintiff filed suit in the Circuit Court of Sangamon County wherein he sought the following relief: (a) the issuance of a writ of mandamus ordering the Director of the Department of Public Works and Buildings, the head of that Department's Division of Architecture and Engineering, and the Director of the Department of Personnel to restore him to the position of Building Construction Supervisor V; (b) the issuance of a writ of mandamus ordering the Auditor of Public Accounts to issue salary warrants for, and the State Treasurer to pay, his salary from July 19, 1962, to date; (c) the issuance of a writ of injunction enjoining the payment of salary to any employee of the Division of Architecture and Engineering, Department of Public Works and Buildings, in the position of Building Construction Supervisor V or Building Construction Supervisor VI, unless the employee was so certified and employed prior to June 6, 1962; (d) a declaratory judgment declaring his lay off from his position as Building Construction Supervisor V to be illegal, void and of no force and effect. Defendants answered, and after trial without a jury, the court found that the position of Building Construction Supervisor V in the Department of Public Works and Buildings is exempt from the provisions of the Personnel Code, that plaintiff was not entitled to the relief prayed, and entered judgment for the defendants. This appeal followed.
Plaintiff concedes that the Director of Public Works and Buildings and the Director of Personnel have discretionary powers in making lay offs, but contends that the lay off here involved was illegal and void because of the failure of the directors to comply with the provisions of the Personnel Code and the rules adopted by the Department of Personnel. Defendants contend that the position from which plaintiff was laid off is exempt from the provisions of the Personnel Code, and alternatively, (a) that if the position is not exempt, the rules upon which plaintiff relies are not here pertinent, and (b) that plaintiff failed to exhaust his administrative remedies and may not, therefore, seek judicial relief.
In 1951, plaintiff entered the employ of the Division of Architecture and Engineering, Department of Public Works and Buildings, as a Building Construction Supervisor. Following successful completion of examinations prescribed by the Civil Service Commission, plaintiff was certified as a Building Construction Supervisor III, and on March 20, 1956, he was certified as a Building Construction Supervisor IV. Prior to July 1, 1957, Building Construction Supervisors were classified I, II, III and IV.
On July 18, 1955, the State Civil Service Act (c 24 1/2, § 1 et seq., Ill Rev Stats 1953) was repealed and the Personnel Code (c 127, § 63b101 et seq., Ill Rev Stats 1955) was adopted, effective July 1, 1957. The Personnel Code (§ 63b104c(12)) specifically exempts from its provisions the technical and engineering staffs of the Department of Public Works and Buildings. There was no such exemption in the State Civil Service Act.
On July 1, 1957, the positions of Building Construction Supervisor V and VI were created. On July 12, 1957, effective retroactively to July 1, 1957, plaintiff was appointed Building Construction Supervisor V. The evidence shows that plaintiff was the only individual to serve in that capacity, having occupied the position from the time of its creation on July 1, 1957, until its abolition, resulting in his lay off. From July 1, 1957, to the time of trial of this case, three individuals had occupied the position of Building Construction Supervisor VI.
It appears from the testimony that at the time of his appointment to the position of Building Construction Supervisor V, plaintiff inquired of the then incumbent Director of the Department of Public Works and Buildings, Edward Rosenstone, whether accepting the position would affect his civil service status. Mr. Rosenstone testified that he told plaintiff it was his understanding that it would not, and further, that it was his understanding that although the position of Building Construction Supervisor did not come under the Personnel Code, the status of any person under civil service at the time of its adoption was not affected by the exemption in the Personnel Code. Mr. Rosenstone stated that plaintiff performed the same services as a Building Construction Supervisor V as those performed by him as a Building Construction Supervisor IV. As to the services performed by the Building Construction Supervisor VI appointed on July 1, 1957, Mr. Rosenstone stated that his duties were the same in that position as those performed by him in his prior classification.
Robert C. Sparks, Administrative Assistant to the Director of Public Works and Buildings from 1953 until 1961, in charge of personnel, testified that after the Personnel Code went into effect, the engineers and technical staff were reclassified, that it was his opinion that civil service status was not affected by the adoption of the Personnel Code, and that it was the policy of the Department of Public Works and Buildings that an employee who was in a civil service status under the State Civil Service Act continued in that status after the effective date of the Personnel Code.
Maude Myers testified that she has been Director of Personnel since January 1961, that from 1950 until 1961, she was Chairman of the State Civil Service Commission, that prior to 1957, the effective date of the Personnel Code, the Division of Architecture and Engineering of the Department of Public Works and Buildings, and particularly the four classifications of Building Construction Supervisor, were under civil service, and that plaintiff held a certified Building Construction Supervisor status. She testified that the Personnel Separation notice dated June 6, 1962, was initiated in the Department of Public Works and Buildings, and approved by her on June 13, 1962. On the same date she wrote plaintiff advising him that his lay off was approved by the Director of Personnel, that it was due to a material change in the organization of the Division of Architecture and Engineering, and in accord with the Personnel Code. She testified that the matter came to her attention for approval of the lay off because plaintiff had formerly had civil service status, but she felt her approval added nothing to plaintiff's status or rights. The Department of Personnel had no payroll information for the Division of Architecture and Engineering, did not maintain performance records for its personnel, and no lay off plan had been submitted for its approval.
The Department of Personnel, in accordance with section 8 of the Personnel Code (c 127, § 63b108) had adopted rules, which rules, section 8 states, have the force of law. The rules upon which plaintiff relies provide: Rule 2-280 "Performance records shall be used as an aid, in staff development, to substantiate current recommendations and to be available as needed in considering future transactions. A copy of each completed performance record shall be exhibited to and discussed with the employee as soon as practicable after its completion." Rule 2-300 "Reviews shall be made and performance records prepared to substantiate recommendations for merit increases, salary decreases, withholding increases or restoring previously withheld increases, restoring of previously reduced salary, salary increases above minimum requirements on promotions and changes of allocation. Performance records are also required for promotions, demotions, voluntary reductions, lay offs out of seniority order, transfers, suspensions of more than 30 days in any 12-month period, discharges, and for consideration on reinstatements and reemployment." Rule 2-560 "Lay off may be caused by lack of funds or work, abolition of a position or material change in duties or organization, and shall be within organizational units, established in either of two ways:
(a) By allocation lists and organization charts maintained by the Department;
(b) By other groupings, justified by operations and approved by the Department.
A proposed lay off is subject to the approval of the Director before becoming effective. It ...