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Flynn v. Mahin

AUGUST 10, 1971.

CLAUDE J. FLYNN, PLAINTIFF-APPELLEE,

v.

GEORGE E. MAHIN, DIRECTOR OF REVENUE, ET AL., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Sangamon County; the Hon. PAUL E. VERCCHIO, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 31, 1971.

The plaintiff filed an action for declaratory judgment in the circuit court of Sangamon County. The defendant Director of Revenue answered and both parties filed motions for summary judgment. No evidentiary hearing was held, it having been stipulated that there was no dispute as to the facts raised by the pleadings. The circuit court considered briefs and arguments and allowed the plaintiff's motion and dismissed the defendant Director's motion. This appeal followed by the defendant Director of Revenue only.

In brief, the pertinent stipulated facts are as follows. The plaintiff was a certified merit employee in the Department of Revenue with the rank of Executive III. On January 16, 1968, he was promoted to Executive IV. On January 23, 1968, under proper procedures required by the Personnel Code (Ill. Rev. Stat. 1969, ch. 127, pars. 63b101 et seq.), the rank of Executive IV was exempted from Jurisdiction B, under which persons must hold appointments on a basis of merit and fitness. On May 7, 1970, the defendant Director discharged the plaintiff.

The plaintiff then filed the instant suit, claiming in substance that he was still a merit employee and could not be discharged without the procedures required by the Personnel Code for the dismissal of merit employees. Plaintiff relies at bottom on Rule 2-190f promulgated by the Director of Personnel and in force at the time of his discharge. The rule is as follows: "Certified: For persons having successfully completed the probationary period. If a certified employee's position is declared exempt from Jurisdiction B, he shall retain his status in that position." The defendant Director answered and in substance claimed that the rule was void and hence plaintiff could be discharged summarily.

The trial court filed a memorandum opinion, followed by a written judgment order, the pertinent provisions of which are as follows:

"* * * the Court * * * being fully advised as to the premises finds:

1. That this Court has jurisdiction of the subject matter of this suit and the parties hereto.

2. That the Plaintiff, Claude J. Flynn was a certified merit system employee under the Personnel Code of Illinois in the Department of Revenue with the position and title of Executive III from May 1962 until January 16, 1968.

3. That on January 16, 1968, Plaintiff's position and title was reallocated from Executive III to Executive IV.

4. That on January 23, 1968, the Civil Service Commission exempted the position of Executive IV from Jurisdiction B of the Personnel Code pursuant to Section 4d (3) and that Plaintiff was not a party to any proceeding whereby his position was exempted.

5. That on May 7, 1970, the Defendant, George E. Mahin as Director of Revenue discharged the Plaintiff.

6. That the discharge of the Plaintiff was not approved by the Director of Personnel of Illinois and is not based upon any cause or written charges.

7. That it was the legal duty of the Defendant, George E. Mahin in his capacity as Director of Revenue to comply with and carry out the provisions and ...


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