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Messina v. City of Chicago





Appeal from the Circuit Court of Cook County; the Hon. George A. Higgins, Judge, presiding.


Plaintiff, James Messina, appeals the dismissal of his suit to challenge his discharge as a probationary employee in the Chicago department of public works. We affirm as to count II, reverse as to count I, and remand this cause for further proceedings.

Plaintiff began working for the city of Chicago as a bricklayer for the department of public works more than 10 years ago, on July 27, 1973. In its 1984 annual appropriation ordinance, the Chicago city council reclassified plaintiff from a departmental employment service employee to a probationary career-services employee. Plaintiff was to serve a six-month probationary period from January 1, 1984, to June 30, 1984, which if successfully completed, would give him career-service status.

On February 27, 1984, defendant Myles McDarrah, superintendent of repairs of the department of sewers, suspended plaintiff for two days (effective March 1, 1984) because he had knowingly allowed "a lewd and racial insult" directed against his supervisor to remain inscribed in fresh cement, where it could be seen by other department employees. Plaintiff worked for the remainder of his probationary period without further incident until he was discharged on June 29, 1984, one day before he would have attained career-service status. Defendant Eugene Barnes, acting commissioner of the department of sewers, did not give any reason for this action. One week later, on July 6, 1984, defendant Charles Pounian, commissioner of personnel, notified plaintiff by letter that he had been terminated for insubordinate actions and discourteous treatment of other city employees. Defendants do not dispute that plaintiff's suspension and his discharge were based on the same incident, and for the purposes of this appeal, all allegations in plaintiff's complaint, and exhibits attached thereto, are taken as correct. (Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App.3d 834, 836, 422 N.E.2d 86, 89.) See also Azzone v. North Palos Fire Protection District (1982), 105 Ill. App.3d 877, 879, 435 N.E.2d 160, 161; City of Chicago v. Severini (1980), 91 Ill. App.3d 38, 46, 414 N.E.2d 67, 72; Ill. Rev. Stat. 1985, ch. 110, pars. 8-1001, 8-1002 (appellate court can take judicial notice of rules and ordinances).

Plaintiff filed a complaint for declaratory judgment in the circuit court of Cook County on October 18, 1984. The circuit judge dismissed the original complaint but granted plaintiff leave to file an amended complaint, which plaintiff did on February 8, 1985. In count I, plaintiff charged that he had been discharged from his probationary position in violation of Rule IX, section 3, of the personnel rules of the city of Chicago, which provides:

"The department head may suspend a probationary employee. The employee does not have the right to request review of such action.

A department head may discharge an employee during the probationary period provided the department head notifies the Commissioner of Personnel in writing."

As to persons in plaintiff's position, section 6 of the city's 1984 appropriation ordinance stated:

"Employees holding positions in the Departmental Employment Service, except seasonal employees, immediately prior to the adoption of this ordinance shall continue in their respective positions without further examination, until separated from their positions as provided by Ordinance or Rule. Any such employee shall be required to serve a six month probationary period, commencing January 1, 1984, provided, however, that any such employee discharged during this probationary period shall be presented by the Commissioner of Personnel with a written statement of the reason for such discharge. Upon the successful completion of this probationary period, such employee shall have career service status." (Emphasis added.)

It appears that other probationary employees were not entitled to written reasons for discharge under Chicago ordinances and rules. In count II, plaintiff contended that Rule IX, section 3, of the city's personnel rules was ineffective because it conflicted with section 10-1-14 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 10-1-14). In both counts plaintiff prayed for reinstatement, back pay, accrued benefits and vacation time, and costs and attorney fees. The circuit judge dismissed plaintiff's complaint, on May 16, 1985, without leave to amend. Plaintiff now appeals.

• 1 Plaintiff first argues that his discharge was improper because it did not conform to the statutory procedure for discharging a probationary employee, as set out in the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 10-1-4). However, Chicago, with a population in excess of 25,000 is a home rule unit under the Illinois Constitution (Ill. Const. 1970, art. VII, sec. 6). An ordinance enacted by a home rule unit under a grant of power from section 6(a) of article VII prevails over a conflicting State statute enacted prior to July 1, 1971, the effective date of the constitution. (Stryker v. Village of Oak Park (1976), 62 Ill.2d 523, 527, 343 N.E.2d 919, 922, cert. denied (1976), 429 U.S. 832, 50 L.Ed.2d 97, 97 S.Ct. 95.) The relevant portions of the statute in question were reenacted in 1961, when the State's Municipal Code was adopted (1961 Ill. Laws 3252, sec. 1), long before the Constitution went into effect. The city personnel rules and ordinances applied in this case were adopted afterward and would therefore ordinarily supercede the State statute. (See Resman v. Personnel Board (1981), 96 Ill. App.3d 919, 921-22, 422 N.E.2d 120, 122 (city of Chicago's personnel ordinance adopted under home rule authority supercedes section 10-1-18 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 10-1-18)). See also City of Chicago v. State & Municipal Teamsters (1984), 127 Ill. App.3d 328, 340, 468 N.E.2d 1268, 1276; Hoffman v. Board of Fire & Police Commissioners (1980), 86 Ill. App.3d 505, 507, 408 N.E.2d 98, 100.) Plaintiff, nonetheless, contends that the statute overrides the city's own personnel policies because the applicable rules and ordinances did not contain an express declaratory that they were enacted pursuant to home rule powers.

• 2, 3 Plaintiff is unable to cite any authority to suggest that a home rule city must declare that its actions are taken under home rule power for that power to take effect. On the contrary, should the General Assembly wish to exercise exclusive power over a particular home rule matter, it must expressly indicate its intent to do so in the statute. (Hoffman v. Board of Fire & Police Commissioners (1980), 86 Ill. App.3d 505, 507, 408 N.E.2d 98, 100; Ill. Const. 1970, art. VII, sec. 6(i).) "The apparent philosophy in Chicago city government is that everything is home rule. * * * The city does not flag its non-statutorily authorized acts with home rule labels." (Froehlich, I.I.C.L.E., Municipal Law sec. 22.74, at 22-109 (1978).) Consequently, requiring an express declaration of the home rule power in ordinances would have drastic consequences for the city of Chicago. It is the general rule in Illinois that an ordinance need not contain a recital of the authority under which it is enacted. (Delamater v. Chicago (1895), 158 Ill. 575, 583-84, 42 N.E. 444, 447 (recitation of repealed statute as authority was mere surplusage); Father Basil's Lodge, Inc. v. City of Chicago (1946), 393 Ill. 246, 252, 65 N.E.2d 805, 811 (the authority for an ordinance need not be derived from a single grant of power, but may be derived from several grants of power); 5 S. Flanagan, McQuillin's Law of Municipal Corporations sec. 16.14 (3d ed. 1981). See also Ill. Rev. Stat. 1985, ch. 24, pars. 1-2-1, 1-2-2.) Plaintiff advances no convincing policy arguments as to why city ordinances enacted pursuant to home rule authority should be treated any differently. Indeed, since home rule power is generally assumed for municipalities over 25,000 (Ill. Const. 1970, art. VII, sec. 6(a)), there is little to recommend the adoption of such a rule.

• 4 Moreover, our supreme court implicitly rejected plaintiff's argument in Sommer v. Village of Glenview (1980), 79 Ill.2d 383, 403 N.E.2d 258, in which it held that a 1939 statute providing for a referendum on tax-rate limitations was an unconstitutional limitation on home rule units. The court reiterated that, "We have repeatedly held that `a home rule unit's exercise of its power will supercede any conflicting pre-1970-Constitution legislation.' [Citations.] We have not, however, precisely defined what constitutes an `exercise' of home rule power." (79 Ill.2d 383, 392, 403 N.E.2d 258, 263.) It is clear from the general discussion in the opinion that the village trustees, when voting to omit the tax proposition from the ballot, did not expressly declare that they were acting pursuant to home rule. (79 Ill.2d 383, 392, 403 N.E.2d 258 263.) Nonetheless, the court held that the village trustees' vote constituted an exercise of home rule power that superceded the State statute.

We conclude that a home rule city "exercises its home rule power" whenever it enacts an ordinance that conflicts with a pre-1970 statute even in the absence of an express reference to home rule in the ordinance. The city of Chicago passed a personnel ...

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