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Mcelroy v. Cahill

JULY 28, 1969.

GEORGE MCELROY, ET AL., PLAINTIFFS-APPELLEES,

v.

WILLIAM E. CAHILL, REGINALD DUBOIS AND QUENTIN J. GOODWIN, MEMBERS OF AND CONSTITUTING THE CIVIL SERVICE COMMISSION OF THE CITY OF CHICAGO, AND JAMES

v.

FITZPATRICK, COMMISSIONER, DEPARTMENT OF STREETS AND SANITATION OF THE CITY OF CHICAGO, DEFENDANTS-APPELLANTS. PATRICK MOWEN AND THADDEUS KOZIOL, PLAINTIFFS-APPELLEES,

v.

WILLIAM E. CAHILL, REGINALD DUBOIS AND QUENTIN J. GOODWIN, MEMBERS OF AND CONSTITUTING THE CIVIL SERVICE COMMISSION OF THE CITY OF CHICAGO, AND JAMES

v.

FITZPATRICK, COMMISSIONER, DEPARTMENT OF STREETS AND SANITATION OF THE CITY OF CHICAGO, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. EMMETT MORRISSEY, Judge, presiding. Affirmed.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied September 2, 1969.

This case is a consolidation of two actions for declaratory judgment brought by George McElroy, Marco Mancuso, Frank Prete, Patrick Panico and James Bowler in one suit and Patrick Mowen and Thaddeus Koziol in the other, against the Civil Service Commission and the Commissioner of the Department of Streets and Sanitation of the City of Chicago. The plaintiffs requested an order declaring the examination of April 2, 1966, for Ward Superintendent, invalid and prohibiting the Civil Service Commission from making any certification or appointments pending the outcome of this cause. The court granted plaintiffs the relief they requested and the defendants appeal.

On May 26, 1967, after a bench trial, a decree was entered finding the examination given by the Civil Service Commission of the City of Chicago for Ward Superintendent, on April 2, 1966, contravened section 10-1-7 of the Illinois Municipal Code (Ill Rev Stats 1967, c 24, par 10-1-7) in the following respects:

A. Said examination was not competitive as required by the above-cited statute in that a training program and conference for ward superintendents and acting ward superintendents, was conducted by the Civil Service Commission in October and December of 1965 four to six months prior to said examination. Said program thereby gave to those acting ward superintendents and other personnel of the Department of Streets and Sanitation who attended and participated in said training program and conference, and who were candidates for said examination an unfair advantage over those other candidates taking the examination without benefit of said special training.

B. Said examination was not competitive as required by the above-cited statute in that a certain Ward Superintendent's Conference Manual, published by the Civil Service Commission, was distributed to selected personnel of the Department of Streets and Sanitation and access thereto was denied the general public, including the other candidates for said examination who were unable to secure copies thereof. Particularly pertinent is the fact that more than fifty percent of the questions asked in said examination were derived from the text of said Manual, copies of which were distributed to each of the participants in the training program, but not distributed to other candidates for the examination.

C. Said examination contained an inordinate number of questions which were not practical in character and did not fairly test the relative abilities of the candidates to fulfill the duties and responsibilities of ward superintendent, and said questions did not bear a reasonable relationship to the duties and responsibilities of a ward superintendent.

The issues presented by the defendants for review are (1) whether the fact that temporary appointees and certain supervisory personnel participated in an in-service training program for Ward Superintendent and were issued training manuals, rendered void a civil service examination for that position; (2) whether the questions asked on the examination were arbitrary, capricious or contravened the rules of the Civil Service Commission and (3) whether the plaintiffs have standing to bring this action.

Patrick C. Mowen was the only plaintiff to testify. He stated that he had been employed by the Department of Streets and Sanitation in a clerical capacity since 1954. He became an acting superintendent of Sanitation for the 10th Ward and had been so employed since January 1, 1966. He said that on or before February 16, 1966, he learned through the newspapers that a Civil Service examination for Ward Superintendent of Sanitation would be held on April 2, 1966. The newspaper article quoted the president of the Civil Service Commission as stating that the scheduling of the examination had been held up pending distribution of a new manual covering duties of a Ward Superintendent. Patrick Mowen testified that he went to the Civil Service Commission office to obtain a manual, but even after identifying himself as a Ward Superintendent he was informed that no manuals were available. He then went to the Municipal Reference Library, the Chicago Law Institute, the main branch of the Chicago Public Library and to the Bureau of Sanitation and was told in each place that a copy of the manual was not available.

Patrick Mowen further testified that seminars were held for the examination prior to his appointment as an acting superintendent and that for this reason he was unable to attend. He stated that he found 103 of the 200 questions had been given in the test from the manual. On cross-examination he said that he attended a lecture given by Supervising Ward Superintendent Frank Josemborski in March of 1966. When asked whether the Supervisor had a manual the witness stated he did not recall. Patrick Mowen said that he did not ask either Theodore Eppig, the Deputy Commissioner, or James Riley, the General Superintendent of Sanitation, for a manual.

Donald Mowen, Patrick's brother, testified that he was a timekeeper in the Streets and Sanitation Department of the City of Chicago. He stated that he also took the examination and that prior to his taking it he inquired at the Municipal Library in City Hall, the Civil Service Commission and the Chicago Public Library for a manual, but was told in each place that they did not have one.

Robert D. Quinlivan, a witness for plaintiffs, testified that for the past twenty years he had been employed in the field of sanitation and that for the past ten years he had been a Civil Service Ward Superintendent. He stated that in October of 1965 a study group was formed which included some fifty Ward Superintendents, five Division Superintendents, and five Field Supervisors. The group met for a series of in-service training conferences or seminars and during the meetings discussed the contents of the Ward Superintendent's Manual. Quinlivan testified that at one of the meetings Ira Podnos, Training Officer of the Civil Service Commission, held the manual over his head and said, "The basis of the next Ward Superintendent's examination will be drawn from this book." Mr. Quinlivan stated that substantially the same statement was made at least four or five other times during the course of the training program. The witness further testified that those who attended the in-service training conferences were given a copy of the manual. He stated that he received numerous requests from candidates for the position of Ward Superintendent who had not been asked to attend the in-service training conferences for the use of his manual and though he tried to procure additional copies he was unable to do so. Quinlivan voluntarily, without charge or profit, conducted as many as a dozen preceptor classes for candidates during March 1966, wherein he used the manual. Attendance at the classes would range from eight to twenty-five persons. Permission to conduct these classes from James F. Riley, General Superintendent of the Streets and Sanitation Department, was originally granted and eventually withdrawn.

James S. Osborne, Secretary and Chief Examiner of the Civil Service Commission, was called as a witness for plaintiffs. He testified that 541 persons took the examination and that a passing grade was 70. The mental part of the examination consisted of 200 questions. There was also an experience and education section where points were given for an individual's experience in the sanitation field and his educational level. The mental part of the examination counted for 60% of the total grade and experience and education for 40%. Osborne stated that the manual was published in February 1965, and that 300 copies were printed. He did not know what was done with the manuals. He also stated that he had nothing to do with the selection of materials for the examination or in the preparation of the manual. The in-service training conferences and the preparation of the manuals, according to the witness, were handled by the department that conducts training for employees of the various branches of the Civil Service and is under the supervision of Mr. Willis.

Theodore C. Eppig, a Deputy Commissioner of the Bureau of Sanitation in the Department of Streets and Sanitation since 1958, testified on behalf of the defendants that a ward superintendent is responsible for collecting refuse from alleys and in assigning equipment for sundry work such as controlling snow and ice and scattering rubbish. He is also in charge of a large number of employees. Eppig said that the supervisory in-service training program for Ward Superintendents was started in 1964 with the preparation of a manual and the preparation of the in-service training program. He stated that at that time he reviewed and made suggestions in the preparation of the manual as well as reviewing and approving the schedule of classes. The Deputy Commissioner said that the in-service training program was required of all ward superintendents whether civil service or temporary or acting superintendents. He said the program was devised to upgrade all city superintendents and to broaden their knowledge of the city and other departments. Eppig said that there were no discussions relating to the use of this manual for a future examination. When asked about the content of the Ward Superintendent's examination he stated that, in his opinion, the questions were practical and related to the duties and responsibilities of a Ward Superintendent and that the questions fairly ...


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