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Donow v. Board of Trustees

JULY 23, 1974.

HERBERT DONOW ET AL., PLAINTIFFS-APPELLEES,

v.

BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Jackson County; the Hon. WILLIAM LEWIS, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the circuit court of Jackson County in an action brought by the plaintiffs-appellees, 14 members of the faculty and staff of Southern Illinois University, against the defendants-appellants, members of the Board of Trustees of Southern Illinois University, to recover monies withheld from their paychecks by the University allegedly without the authority to do so.

The plaintiffs were all employed by the defendant Board of Trustees as members of the faculty and staff of Southern Illinois University at Carbondale (hereinafter referred to as the University) for the academic year 1969-1970. Their employment was by virtue of individual appointment papers, which contained either the statement: "The employment of a staff member is governed by the laws of Illinois and the Statutes of the Board of Trustees, which laws and statutes are a part of this agreement as if set out in full herein" or: "Employment * * * will continue until further notice, subject to the policies affecting compensation and conditions of work at Southern Illinois University." Section 8 of "An Act providing for the management, operation, control and maintenance of Southern Illinois University" (Ill. Rev. Stat. 1969, ch. 144, par. 658(1)) grants to the Board the power and in fact the duty "To make rules, regulations and bylaws, not inconsistent with law, for the government and management of Southern Illinois University and its branches." Faculty responsibilities to the University are detailed in part III, article VIII, section 3 of the statutes and bylaws, including the responsibility "To operate within the general framework of University policy and practice."

This suit arose out of the actions by the University administration in retaining a portion of the compensation due plaintiffs for their services rendered on behalf of the University during January of 1971. The University claims the right to withhold portions of faculty and staff salaries as a set-off against the entire salary due the employees on the grounds of a debt allegedly owed to the University by the employees for failure to pay monetary assessments made upon them for claimed violations of the University's Motor Vehicle Regulations. The regulations in question were admitted into evidence and are a part of the record on appeal.

Prior to the action taken by the University, the plaintiffs had collectively accumulated a total of 112 tickets from the University Security Force, each notifying the individual recipient that he was parked in violation of the Motor Vehicle Regulations. The regulations stated that administration of the University parking facilities was to be patterned upon a color-coded decal system whereby the purchaser of a parking decal of a particular color was entitled to park in appropriately color-designated lots as set out in the regulations. Sanctions listed for violations included monetary assessments for decal infractions of from $1 to $10 per violation, with the assessment of up to $50 available for continuance or serious violations. The tickets issued to the plaintiffs were all for infractions of the rules regarding color decals. Monetary assessments were made in each case for either $1 or $10 by the supervisor of the Motor Vehicle Division of the University Security Force, pursuant to an unwritten policy of the office with regard to the exact assessment to be made for particular types of violations. This was done without the benefit of a hearing as to the validity of the allegations in the ticket, without plaintiffs having any opportunity to challenge the imposition of the assessments before they were made. A procedure for appealing the assessments once made was included in the regulations, and the statutes and bylaws included the right of faculty and staff members to process complaints arising out of their employment through a special grievance procedure. With the exception of James McHose, the plaintiffs failed to use either procedure. Rather they refused to pay the amount of the assessments.

In an attempt to secure payment, the University notified plaintiffs that if they did not pay the amount claimed due by the University, the amount would be deducted from a future paycheck. When this failed to produce the desired compliance, the University did submit to the Auditor of Public Accounts payroll vouchers which noted that the plaintiffs were due an amount less than that stated in their appointment papers. A separate entry on the vouchers under the name of each plaintiff was included for the amount claimed due by the University. The vouchers were approved as prepared, and checks were drawn in compliance with them. Thus plaintiffs received paychecks for an amount equal to their normal salary less the deductions made by the University for the violations. The vouchers were also admitted into evidence.

Plaintiffs, upon receiving the checks for less than their contractual salary, brought this suit to recover the amount retained by the school. The University answered the complaint, raising the affirmative defense that the plaintiffs were indebted and counterclaiming for the amount of the fines as a set-off. The cause was tried by the court sitting without a jury and was tried primarily upon stipulations. The parties agreed by written stipulation prior to trial that the University had adopted, promulgated, published and distributed the Motor Vehicle Regulations in question. The "University" was defined as being the Board of Trustees of Southern Illinois University. Plaintiffs agreed that they had had notice of the regulations at all times relevant to this action. The University stipulated that but for the amounts claimed due for the parking violations, plaintiffs would be entitled to the full amount of their earnings, except for deductions specifically authorized by each plaintiff and those required by law. It was also stipulated that the defendant has no judgment standing in its favor against any of the plaintiffs, that the defendant had not prior to this action initiated any judicial proceedings against any of the plaintiffs to collect the money allegedly due it, and that the alleged violations of the Motor Vehicle Regulations had never been adjudicated as such by a court of law. Other stipulations were entered by counsel orally during the course of the proceedings and will be referred to as necessary.

At the close of the evidence and after the submission of written briefs by the parties and further oral argument, the court held that the plaintiffs were entitled to recover the amount which had been deducted. The trial judge based his decision on what he described to be a very narrow basis, as he stated in his judgment. He first held that there was no evidence to support the conclusion that the regulations had ever been enacted by the Board of Trustees, despite the stipulation by the parties to that effect. He stated:

"The testimony was that the Board set some kind of policy and it was never explained what that policy was. I can only assume that the policy that they set was the policy set at the first of this Motor Vehicle Regulation, although that was never shown, no reference — the person said the board set the policy, was made to the defendant's exhibit, and then the particular witness testified that somebody, some unknown person, whether it was the Dean or the President of the University, but somebody drew up the Motor Vehicle Regulations. Now the statutes of this State clearly place the power to make all regulations and rules or the power to lease, make contract of facilities within the sole power of the Board of Trustees of Southern Illinois University and it has not been shown to this court that the Board of Trustees of Southern Illinois University even passed these motor vehicle regulations or ratified them or in any manner knows anything about them."

Next, he ruled that no contract existed and that, even if a contract did exist, it was vague and unclear, in that a person would not know how much he would have to pay for parking on campus, due to the variable assessment scale of $1 to $10 in the regulations and the possibility of assessments up to $50 for serious violations or continued violations. A further area of fault was found with the procedure for making the assessments in that the supervisor of the Motor Vehicle Division made the assessments in the $1 to $10 range pursuant to an unwritten policy which he had helped draw up. The supervisor's testimony further produced the fact that he himself was not sure if he had the authority to make the assessments, but that someone had to do it. Finally the court ruled that the University had no right to set-off the wages since the University is governed by, and all of its power arises from, the statutes setting it up, wherein there is no mention of the right to set-off accruing to the University, and since section 1 of "An Act in relation to uncollected claims and accounts receivable of State agencies" (Ill. Rev. Stat. 1969, ch. 15, par. 101) provides a procedure which should have been used by the University.

No formal objection was filed to the judgment nor was a post-trial motion filed by the defendants.

The first issue presented on this appeal is whether the trial court was correct in disregarding the plain wording of the stipulation of the parties and in ruling that the Motor Vehicle Regulations were not in effect during the times concerned due to lack of proper promulgation. Appellees raise the question of whether this issue has been preserved for appeal in light of the fact that no objection was made to the ruling at the time it was made, and no post-trial motion was filed calling this problem to the attention of the court.

• 1 As noted in the facts above, this cause was tried by the court sitting without a jury. The ruling in question was made as part of the justification the trial court gave for its decision and was made after the submission of written briefs by the parties and oral arguments thereon. After taking the case under advisement for a time, the court issued its judgment, including the ruling appealed from. Under the circumstances it was not necessary for the defense counsel to object to the judgment nor to file a post-trial motion to save the question for appeal. (Ill. Rev. Stat. 1969, ch. 110, par. 68.3(1).) See also, City of Evanston v. Piotrowicz, 20 Ill.2d 512, 515, 170 N.E.2d 569, 572. The appellant did not waive the right to raise this question on appeal, and it is properly preserved.

• 2, 3 From this record we determine that the trial court erred in ignoring the stipulation when delivering its judgment. However, since this action by the trial court occurred after the submission of written briefs by the parties and after the presentation of all the evidence in the case, we cannot hold that it is automatically reversible error. Due to the time at which the holding was made, neither party was harmed in the presentation of their evidence. Both parties proceeded as if the stipulation were in effect so the record we have before us is one untainted by the ruling on the stipulation. As we now hold that the stipulation was valid and binding, neither party can claim they were prejudiced in the presentation of evidence by the ruling. We can now proceed to an examination of the actual dispute involved. We are not bound by the reasons given by the trial court for its decision. (Klarich v. Parker, 325 Ill. App. 571, 60 N.E.2d 248.) Therefore, if we find from the record a sufficient basis in law upon which to support the judgment we will affirm ...


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