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Boner v. Jones





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


This seemingly endless litigation moves at its oblomovian pace into this, its fourth appearance, in the reviewing courts> of the Illinois and Federal systems. Its seed was planted with the death of Paul Powell, Secretary of State, In October 1970; we trust, however wistfully, that this appeal will mark its obsequies.

A single question is involved: Did the trial court, upon remand from the supreme court, follow that court's mandate?

The factual background has been set forth completely in the supreme court opinion, Boner v. Jones (1975), 60 Ill.2d 532, 328 N.E.2d 548, and will not be reiterated here except for such portions as may be required in the interest of clarity in this opinion.

The order appealed from is a permanent injunction restraining the defendant Director of Personnel from certifying under the Personnel Code certain employees in the office of the Secretary of State. Originally, it applied to all employees involved in this litigation, but by agreement, as hereinafter detailed, it was dissolved as to certain groups, but continued as to others.

Also, in the interest of clarity, we feel it necessary to identify the parties and their positions in this appeal. Boner et al., original plaintiffs, are former employees of the Secretary of State who were terminated before the Personnel Code was extended into that office to include them. They are appellees here. After the first remand from the supreme court, the Secretary of State was permitted to intervene as a party-plaintiff. He so remains and is an appellee here. About the same time, the Illinois State Employees Association was likewise permitted to intervene but it has dropped out and is no longer a party.

The original defendant was the Director of the Department of Personnel. He remains in the suit, and is an appellant here. Following the second remand, several employees of the Secretary of State who took qualifying examinations after the extension of the Personnel Code, but who were terminated because of the order of the trial court of November 30, 1972, were permitted to intervene as defendants. These are Peterson et al., and they are appellants here.

The definitions of several terms used in the argot of the Department of Personnel will be useful here:

"similar employees" or "similar positions": employees performing functions which are common to many departments of state government.

"dissimilar employees" or "dissimilar positions": employees whose functions are limited to the office of the Secretary of State.

"qualifying examination": an examination given to an employee already on the job for purposes of retaining the job.

"open examination": an examination given to persons seeking to obtain a particular job.

"cutting score": the minimum score needed to pass either examination in order either to hold or to obtain the job.

Upon the second remand, the trial court ordered the Director of Personnel to provide a summary of all positions in the Office of the Secretary of State for which examinations had been administered and the cutting scores for each. That summary was filed with the trial court and involves 80 positions, almost 3,000 employees, and consists of 263 pages.

For convenience, the trial court caused the positions to be divided into five groups, labelled A, B, C, D, and E, and they were thereafter throughout the record so referred to. The trial court further ordered the parties to examine the data and arrive at whatever areas of agreement, compromise and difference they might be able.

Group A comprised the largest number of positions and the largest number of employees, approximately 60% of the total involved. These were all similar positions and the trial court established cutting scores for each of them with the agreement of the parties. These scores and these employees are not involved in this appeal.

Group B presented the trial court with a more complicated problem. It consisted of approximately 85 employees of professional status for whom no objective examinations had been administered. Instead, such employees were given a training and experience examination (referred to in the record as TRAEX). All were similar positions. The TRAEX was an oral affair during which the employee described his position and was thereafter assigned to a job classification. Thus, the employee himself was able to control his classification, and a wide area of disagreement, stemming from differences in conclusions and lack of understandable technique in certifying professionals, was opened up.

At the suggestion of the trial court, the Department of Personnel sent letters to all employees who qualified for Group B. Some did not respond; those who did were interviewed and classifications established as a part of the court's order. Certain ones were not certified because either they did not respond to the letter, or the jobs were not of the TRAEX variety; others were not certified because they were found to lack the necessary training and experience or because they were expressly excluded as division heads or policy positions not subject to the requirements and erroneously included in the list.

Appellants attack the trial court's order as it relates to Group B on two grounds: (1) generally, in that the mandate did not permit the trial court to establish classifications, and (2) specifically, in that the trial court failed to certify one Sammy Thiemes as a Administrative Assistant II.

Groups C, D, and E consist of dissimilar positions. The trial court established cutting scores for Group E and it is not involved in this appeal. The principal controversy centers around Groups C and D ...

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