Appeal from the Circuit Court of McHenry County; the Hon.
Leonard Brody, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
Plaintiffs, full-time deputy sheriffs, challenged the authority of the defendant, the McHenry County Sheriff's Department Merit Commission (the commission) to enact a rule pertaining to their secondary employment. In the circuit court plaintiffs sought declaratory and injunctive relief, and from the granting of the commission's motion for summary judgment, plaintiffs appeal.
The statutes governing the sheriff's merit commission are found in the Sheriff's Merit System Act (Ill. Rev. Stat. 1983, ch. 125, par. 151 et seq.). Two statutes give guidance to the commission's authority to promulgate the type of rules at issue in this case. Section 7 of the Act (Ill. Rev. Stat. 1983, ch. 125, par. 157) provides:
"The Merit Commission shall have the duties, pursuant to recognized merit principles of public employment, of certification for employment and promotion, and, upon complaint of the sheriff or states attorney as limited in this Act, to discipline or discharge as the circumstances may warrant."
Also pertinent is section 9 (Ill. Rev. Stat. 1983, ch. 125, par. 159), which provides in part:
"Pursuant to recognized merit principles of public employment, the Commission shall formulate, adopt and put into effect, rules, regulations and procedures for its operation and the transaction of its business."
The rules of the Commission here questioned are:
"All full-time deputy sheriffs who desire to take upon themselves secondary employment, whether it be salaried or contractual, shall first seek the approval of the Sheriff for said employment. The Sheriff, upon written request of the deputy, shall make his recommendation of approval or disapproval in writing to the Merit Commission. The Merit Commission shall then act to approve or disapprove the request. The Merit Commission decision shall be final."
"No full-time deputy sheriff shall perform while on or off duty any function or duty that is normally of the Sheriff's Department for his or her private gain or in exchange of any article of value."
"All extra off duty patrol or security services when performed for hire by any deputy, shall be done so only when authorized and approved by the Sheriff. All off duty special process service shall be performed by a deputy only when authorized and approved by the Sheriff. Said approvals shall be forwarded to the Commission."
Rules restricting the secondary employment of public employees have been interpreted and their enforcement has been upheld in a number of cases. (See Phillips v. Hall (1983), 113 Ill. App.3d 409, 447 N.E.2d 418; Weisenritter v. Board of Fire & Police Commissioners (1978), 67 Ill. App.3d 799, 385 N.E.2d 336; Chigaros v. Murphy (1975), 27 Ill. App.3d 545, 327 N.E.2d 12; Hayes v. Civil Service Com. (1952), 348 Ill. App. 146, 108 N.E.2d 505.) However, in none of those cases was the express authority of the rulemaking body at issue. While many courts have upheld regulations aimed at curtailing secondary employment of public employees to avoid conflicts of interest, the plaintiffs in this case do not challenge the scope or application of these rules to their conduct. Instead, the plaintiffs challenge the merit commission's authority to promulgate these rules.
• 1 Administrative rules and regulations must be authorized by statute, and the statute may not be altered or added to by the making of administrative rules and regulations thereunder. (Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill.2d 53, 387 N.E.2d 320, cert. denied (1979), 444 U.S. 844, 62 L.Ed.2d 57, 100 S.Ct. 87.) Administrative agencies possess only the authority expressly conferred upon them by statute, or that which by fair implication and intendment is incident to the authority expressly conferred for the ...