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Feldman v. Board of Trustees of Siu

OPINION FILED AUGUST 5, 1982.

JOEL FELDMAN ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,

v.

THE BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Jackson County; the Hon. Bill F. Green, Judge, presiding.

JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Plaintiffs-appellees are four faculty members employed by defendant-appellant, Southern Illinois University at Carbondale. Each of the plaintiffs received an unspecified number of parking citations for violating the University's Motor Vehicle and Bicycle Regulations. Those regulations specify a period of time for appeal of such citations, which period had elapsed prior to the instant trial.

The record establishes that each plaintiff was notified in writing that the sum each plaintiff owed because of these citations would be deducted from his salary. Subsequently, such amounts were withheld from the salary check of each plaintiff. The amounts withheld ranged from $153 to $235. Plaintiffs thereafter brought the instant suit seeking a declaratory judgment that the deductions were illegal. They also sought a money judgment in the amounts withheld. Defendant counterclaimed for a declaratory judgment that it legally withheld those sums, and it sought a money judgment in the amount withheld. All parties moved for summary judgment, and the court entered an order providing that: (1) a declaratory judgment be entered that, in absence of a specific written authorization signed by each plaintiff, defendant had no authority to withhold the sums in question; (2) defendant be permanently enjoined from further payroll deductions based on the parking violation sanctions without plaintiffs' specific written authorization or a court order; and (3) money judgment be entered for defendant in the amount sought on its counterclaim. All parties have appealed those portions of that judgment which were adverse to them. An agreed statement of facts has been filed in this court as provided by Supreme Court Rule 323(d) (73 Ill.2d R. 323(d)).

• 1 On the reverse side of the "Notice of Appointment" for each plaintiff is listed certain conditions of employment. They include the following:

"Employment is governed by the laws of Illinois and the Statutes of the Board of Trustees, which laws and Statutes are part of this agreement as if set out in full herein."

Section 7-101B of the Motor Vehicle and Bicycle Regulations of Southern Illinois University provides that anyone who fails to pursue an appeal from the receipt of a citation for a parking violation shall be subject to the monetary use charges provided in the regulations. Section 6-105A of the regulations provides:

"Notwithstanding any provisions of these regulations, any person who is an employee of the University or the State of Illinois, who fails to pay a monetary use charge as set forth in these regulations will be subject to having such monetary charge owed to the University deducted from the sums due to such employee from the University or the State."

The regulations further provide for a three-tiered appeal process for parking violation citations. The first level of review is to a hearing officer, who is responsible for establishing his own hearing procedure subject to approval by university legal counsel. Persons seeking review are to receive a written copy of those procedures upon application for review. A person objecting to the determination of the hearing officer may appeal to the five-member Traffic Appeals Board, which also is to set up its own procedures subject to approval by university legal counsel. The decision of the Traffic Appeals Board is appealable to the president of the university "and" defendant Board of Trustees. In this regard, we find no indication of record as to the procedures established by the hearing officer or the Traffic Appeals Board; however, because plaintiffs have failed to date to voice any objection as to the absence of such hearing procedures of the hearing officer and Traffic Appeals Board, they have waived any such objection.

It is not disputed that summary judgment should be rendered only if the pleadings, depositions, affidavits and admissions on file show that there was no genuine issue as to any material fact and that the movant was entitled to judgment as a matter of law. (Ill. Rev. Stat. 1979, ch. 110, par. 57(3).) This court's view of summary judgment as expressed in Sanders v. Frost (1969), 112 Ill. App.2d 234, 251 N.E.2d 105, is as follows:

"`The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon. [Citation.] If the pleadings, discovery depositions and exhibits, present a genuine issue as to any material fact, summary judgment should not be granted. [Citation.] The right of the moving party to summary judgment must be free from doubt. [Citation.]'" 112 Ill. App.2d 234, 238, 251 N.E.2d 105, 106.

We consider first defendant's appeal from the summary judgment entered by the trial court in favor of plaintiffs. On appeal, defendant argues that the trial court erred in entering summary judgment for plaintiffs based upon the court's finding that the employment contract, incorporating the parking regulations, was not sufficient authorization for withholding the sums in question. Defendant maintains that plaintiffs contractually authorized such withholding and that the trial court erred in determining that a separate signed withholding authorization was required. Plaintiffs, conceding that the contracts purport to authorize the withholding, argue that the trial court's conclusion that the withholding was not authorized was proper because defendant failed to comply with the State Salary and Annuity Withholding Act (Ill. Rev. Stat. 1979, ch. 127, par. 351 et seq.) (hereinafter referred to as the Act).

Section 3 of the Act states that whenever an "Office" (elsewhere defined to include defendant) is authorized in writing by a State employee to withhold a specified portion of such employee's salary for a designated period of time for any one or more of the purposes specified in section 4 of the Act, such "Office" shall withhold from such employee's salary for each pay period the amount specified in the authorization during the period of time designated. (Ill. Rev. Stat. 1979, ch. 127, par. 353.) Section 4 of the Act states that an employee may authorize the withholding of a portion of his salary, inter alia, "for payment to or for the benefit of an institution of higher education by an employee of that institution." (Ill. Rev. Stat. 1979, ch. 127, par. 354(6).) Section 5 requires each "Office" to provide employees with withholding forms designated by the state comptroller. (Ill. Rev. Stat. 1979, ch. 127, par. 355.) Section 9 provides for termination of the withholding authorization upon termination of employment, upon expiration of the time designated, when the total amount authorized has been withheld, or upon written notice by the employee of cancellation. (Ill. Rev. Stat. 1979, ch. 127, par. 359.) Section 10 states that each "Office" shall promulgate reasonable rules deemed necessary for the administration of the Act. Ill. Rev. Stat. 1979, ch. 127, par. 360.

• 2 Plaintiffs argue that there was no written authorization by plaintiffs, as required by section 3 of the Act, for the sums withheld by defendant to be deducted from their salaries. We note, however, that section 3 does not purport to specify the form of writing required. It appears to be sufficient that the instant written contracts purport to authorize the withholding in question by incorporating the parking regulations providing for such withholding. Plaintiffs maintain that a separate signed authorization is required under Brooks v. Board ...


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