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Spicer v. City of Chicago

OPINION FILED NOVEMBER 5, 1986.

WILLIAM R. SPICER, PLAINTIFF-APPELLANT,

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

JUSTICE SCARIANO DELIVERED THE OPINION OF THE COURT:

Plaintiff, William R. Spicer, appeals from the circuit court's decision to deny his request for the issuance of a temporary restraining order and other injunctive relief and from its concomitant decision to allow defendants' motion to dismiss plaintiff's complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619).

On November 16, 1983, the mayor appointed plaintiff the acting city purchasing agent and plaintiff assumed that position. On March 30, 1984, the mayor forwarded plaintiff's name to the city council for confirmation as city purchasing agent pursuant to section 8-10-15 of the "Municipal purchasing act for cities of 500,000 or more population" (Ill. Rev. Stat. 1985, ch. 24, par. 8-10-15). *fn1 On September 1, 1985, the mayor removed Spicer as acting city purchasing agent.

On September 5, 1985, the mayor sent a letter to the finance committee, formally notifying that body that the "appointment" of plaintiff had been rescinded and Spicer's name withdrawn from consideration. A second letter to the same effect was submitted to the city council on September 11, 1985, at a regular meeting of the council. Toward the end of that meeting, the council acted on the mayor's submission of March 30, 1984, and approved plaintiff as purchasing agent for the city of Chicago. The following day, the mayor vetoed the council's action, calling it a "nullity" in view of his earlier rescission of the Spicer nomination.

On September 13, 1985, plaintiff initiated the instant proceedings, seeking reinstatement to his position as city purchasing agent, ouster of a successor purchasing agent, and to enjoin any further interference with his own continued execution of the duties of purchasing agent. On September 17, 1985, plaintiff supplemented his initial pleadings with a motion seeking the issuance of a temporary restraining order, claiming this was necessary to relieve him from alleged interference with the performance of his duties. On the same date, defendants responded to the original complaint by moving to dismiss. The dismissal was filed pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619). After hearing argument on these matters, the circuit court denied plaintiff any relief, instead granting defendants' motion to dismiss with prejudice. The court reaffirmed that decision later the same day when, after granting plaintiff leave to file an amended complaint, the court again dismissed the amended complaint with prejudice under section 2-619. This appeal followed.

I

The purchasing agent "shall be appointed by the Mayor by and with the consent of the corporate authorities of the municipality. The purchasing agent shall hold office for a term of 4 years and until his successor is appointed and qualified." Ill. Rev. Stat. 1985, ch. 24, par. 8-10-15.

In the exercise of this statutory authority, the mayor transmitted a communication to the city council, at a meeting held on March 30, 1984, stating:

"I have appointed William R. Spicer as Purchasing Agent of the City of Chicago for the term ending December 31, 1987, and respectfully request your approval of this appointment."

No issue has been raised regarding the fact that the appointment would be for less than "a term of 4 years and until his successor is appointed and qualified" as specified in the statute. The communication was referred to the city council committee on finance.

At a council meeting held on September 11, 1985, the mayor transmitted another communication to that body which stated:

"I hereby withdraw the nomination of William R. Spicer as Purchasing Agent of the City of Chicago, submitted to you on March 30, 1984."

Pursuant to Rule 3 of the rules of order and procedure of the city council, the second order of business to be considered by that body was "[R]eports and communications from the Mayor and other City officers." At that point, the city clerk read the September 11, 1985, communication. The record does not reveal that any member of the council raised a point of order challenging the propriety of the communication or the authority of the mayor.

• 1 The withdrawal of the Spicer appointment at this meeting of the council, without any challenge or objection by any member of the council, effectively ...


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