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Mccarty v. City of Rockford

OPINION FILED MAY 22, 1981.

STEPHEN W. MCCARTY, PLAINTIFF-APPELLANT,

v.

THE CITY OF ROCKFORD, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN C. LAYNG, Judge, presiding.

MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

The plaintiff was formerly a city attorney employed by the city of Rockford. He was hired in August 1973, and at that time the city had in force an ordinance providing that city employees — exclusive of elected officials, probationary employees, seasonal employees and employees under collective bargaining — could earn sick leave with pay at the rate of "six (6) days (forty-eight (48) hours) for each six months of service" at the rate of 25% of regular pay.

In February of 1979, effective March 5, 1979, the city amended the ordinance to provide a rate of 75% of regular pay for accumulated sick leave upon death or retirement. Retirement for the purposes of the ordinance was defined as "voluntary termination of employment from the City of Rockford at age fifty-five (55) years or older, and after having been in the employ of the City of Rockford for a period of at least eight (8) years." The 1979 ordinance increasing the sick-leave pay to 75% of regular pay carried a "repealer" clause stating that "All ordinances or parts of ordinances in conflict herewith are hereby repealed."

Also, in 1975, the city entered into an agreement with the American Federation of State, County and Municipal Employees and by resolution extended the same benefits, including sick-leave pay at 75% of regular pay, to other city employees not members of AFSCME. An amendment to this resolution was adopted excluding "appointed" personnel.

The plaintiff resigned his employment as a city attorney in August 1979 to take employment elsewhere. After resigning his position the plaintiff applied for sick-leave benefits, payable in cash, which demand was denied by the city. The plaintiff then sued the city for 48 days of accumulated sick leave, which he claimed not to have used as such amounting, according to his calculations, to $3,328.62 based on 75% of his regular pay, plus attorney fees.

The trial court, after a bench trial, found that if the plaintiff was entitled to recover at all it would be under the 1973 ordinance providing for a rate of 25% of regular pay; however, it found that neither the 1973 nor the 1979 ordinance as to sick leave applied to the plaintiff, that he was a salaried employee whose salary was not diminished by absence due to illness, that during his employment by the city the plaintiff "held the appointed position of City Attorney for the City of Rockford," and that during his employment he was "subject to those personnel policies set by the City of Rockford Legal Department including a policy that salaried City Attorney [sic] cannot accumulate sick leave benefits."

The trial court, therefore, entered judgment in favor of the defendant, City of Rockford.

In this appeal, the plaintiff contends (a) that he was entitled by the 1973 ordinance in force when he was hired to receive pay for accumulated sick leave at the rate of 25% of his regular pay and that this was a vested right; (b) that the 1975 committee report adopted by the city council resolution raised the rate of pay for such sick leave to 75%; and (c) the undisputed testimony proved that it was the custom of the city to apply the rate of pay for sick-leave purposes which the individual was receiving at the time of his termination. Therefore, the plaintiff contends, he had a vested right to accumulated sick-pay cash benefits based on 75% of his regular pay at the time he resigned his position as city attorney.

It should be noted that in calculating his accumulated days of sick leave the plaintiff did not include any period in 1979. Presumably, the purpose of taking only the 48 days claimed for 1974 through 1978 (based on 60 days for five years with a deduction for sick-leave time actually used) and disregarding any time for the 7 1/2 months worked in 1979, was to eliminate the 1979 ordinance as a factor in considering the plaintiff's claim. The plaintiff bases his claim to entitlement to sick-leave pay on the 1973 ordinance; however, he bases his claimed rate of pay on the 1975 resolution which resolved to accord the same benefits to other municipal employees as was being extended to union employees, except as to appointed personnel.

We perceive several difficulties with the plaintiff's claim for a cash payment based on accumulated sick leave under the facts of this case. In the first place, we see no reason to disregard the 1979 Rockford ordinance and its possible effect on the plaintiff's claim. That ordinance reads in pertinent part as follows:

"Sec. 2-138, Sick Leave:

(a) All full-time permanent employees of the City of Rockford, excluding elected officers, probationary employees, seasonal employees, and employees covered by collective bargaining agreements, shall earn sick leave with pay at the rate of six (6) days (forty-eight (48) hours) for each six (6) months of service.

(e) The department head shall not authorize paid sick leave unless the employee has accrued sick leave time to his credit at the time of retirement as defined in (g).

(f) Sick leave is intended to compensate sick or disabled employees, who are unable to work. The following types of absences will be ...


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