APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
In August of 1977 Norman Holland filed a complaint in the circuit court of Cook County, on behalf of himself and all others similarly situated, seeking a writ of mandamus against Robert J. Quinn, Commissioner of the Chicago Fire Department (the Commissioner), to compel the Commissioner to transfer the plaintiff Holland and to follow departmental policy on transfers.
The complaint alleged that Holland is an applicant seeking transfer to Flying Manpower Squad No. 2 and that he was illegally passed over when vacancies arose in that unit. The circuit court granted the defendant's motion to dismiss, finding that mandamus would not lie because the requested act was a discretionary one on the part of the Commissioner, and because the "transfer policy," as summarized in the plaintiffs' complaint, was not "binding" and did not establish a clear legal right to the requested action. Holland appeals from that ruling.
According to the complaint, Holland has been employed as a fireman by the Chicago Fire Department (the Department) since 1970. In October of 1974 Holland submitted an application for transfer from his assigned Flying Manpower Squad to another Flying Manpower Squad. The application was renewed annually on the appropriate department form. In May and June of 1977, vacancies arose in the squad to which Holland had requested transfer. The vacancies were filled by recent graduates of the fire academy.
The plaintiffs' complaint also alleged that Department policy provides an opening will be filled from transfer request forms on the basis of seniority, or on the basis of departmental needs, rotation of personnel or at a supervisor's request; that neither departmental needs, rotation of personnel nor supervisory request justified the Department's passing over of Holland in filling the 1977 vacancies; and that the Department thereby violated its own policies.
The parties agree that this "transfer policy" is not a formal rule or regulation of the Chicago Fire Department. The source of the policy, which is fairly summarized in the complaint by the plaintiffs, is the brief of the City of Chicago to the Seventh Circuit in United States v. City of Chicago (7th Cir. 1978), 573 F.2d 416.
The defendant's argument on appeal is threefold: first, that there is no transfer policy nor can there be a transfer policy, as alleged by the plaintiffs; next, that even if there is such a policy it is not binding because it is merely a policy and not a rule; and, finally, that even if it is a policy, a mandamus action will not lie because that policy allows for the exercise of discretion.
1, 2 A writ of mandamus commands the officer or body to whom it is directed to perform some specific duty to which the petitioner is entitled by right. (People ex rel. Rappaport v. Drazek (1975), 30 Ill. App.3d 310, 332 N.E.2d 532.) Where performance of an official act involves the exercise of judgment or discretion, the act is not subject to review or control by mandamus. (Rappaport.) Mandamus will lie to compel the performance of a duty purely ministerial in character. (People ex rel. Pyrzynski v. Daley (1975), 34 Ill. App.3d 1077, 341 N.E.2d 24.) Furthermore, mandamus should not be used in doubtful cases; if there is evidence to support the official action, the writ must be refused. (Solomon v. City of Evanston (1975), 29 Ill. App.3d 782, 331 N.E.2d 380.) The pleadings in a mandamus action are governed by the same rules applying to other civil actions and the complaint must allege a prima facie case. People ex rel. Pignatelli v. Ward (1949), 404 Ill. 240, 88 N.E.2d 461.
3, 4 The first part of the defendant's argument is that there is no transfer policy such as is alleged in the plaintiffs' complaint. Because a motion to dismiss admits all well-pleaded facts (New-Mark Builders, Inc. v. City of Aurora (1967), 90 Ill. App.2d 98, 233 N.E.2d 44), we must accept as true the plaintiffs' allegation that there is such a policy. Whether such a policy actually exists is a question of fact which cannot be disposed of on a motion to dismiss.
The defendant also argues there can be no policy because the Department is given absolute discretion in personnel matters by the Chicago Municipal Code and Fire Department regulations. The Code provides, in part, that the Commissioner shall have "the management and control of all matters and things pertaining to the fire department and of all of the persons employed therein." (Chicago Municipal Code/1974, ch. 12-4.) Section 20.001 of the Rules and Regulations, Practices and Procedures of the Chicago Fire Department, provides in part that the "fire commissioner shall exercise sole and exclusive control and management of the Fire Department and its personnel and perform the duties prescribed for him by law or ordinance."
5 These broad grants of discretion do not settle the issue before us. Even though a statute confers absolute discretion in a particular area, once an agency establishes rules or regulations implementing that statute it is bound to adhere to them. (Margolin v. Public Mutual Fire Insurance Co. (1972), 4 Ill. App.3d 661, 281 N.E.2d 728; Service v. Dulles (1957), 354 U.S. 363, 1 L.Ed.2d 1403, 77 S.Ct. 1152.) If the Department has implemented the Municipal Code and Rules' provisions quoted above by adopting the transfer policy as described in the complaint, it is bound to adhere to it.
The defendant's second argument is that even if there is a transfer policy, as summarized in the complaint, it is not binding because it is not a rule or regulation. The defendant argues that mere "policy" cannot be enforced in a mandamus proceeding.
An agency's custom and practice in interpreting its rules may bind the agency. Briscoe v. Kusper (7th Cir. 1970), 435 F.2d 1046; Olin Corp. v. Pollution Control Board (1977), 54 Ill. App.3d 480, 370 N.E.2d 3.
In Briscoe, at issue was the constitutionality of practices of the Chicago Board of Election Commissioners in processing objections to aldermanic nominating petitions in the 1967 election. In 1967 the Board made the rules concerning objections to signatures more rigorous, without notifying the candidates. The Seventh Circuit found the Board's previous interpretation of the statute was a binding "custom and practice" and that ...