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01/23/87 John M. Dineen Et Al., v. the City of Chicago Et Al.

January 23, 1987

JOHN M. DINEEN ET AL., PLAINTIFFS-APPELLEES

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

504 N.E.2d 144, 152 Ill. App. 3d 90, 105 Ill. Dec. 275 1987.IL.49

Appeal from the Circuit Court of Cook County; the Hon. Joseph M. Wosik, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SULLIVAN delivered the opinion of the court. LORENZ and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

This is an appeal from an order declaring invalid a provision of the collective-bargaining agreement between the city of Chicago and the Fraternal Order of Police, Lodge No. 7, that requires any police officer who runs for political office to take an unpaid leave of absence upon the filing of the petition for office, and enjoining defendants from enforcing their mandatory leave-of-absence policy. Defendants contend that the court's order rests upon a misinterpretation of an act of the legislature.

By letters dated January 13, 1986, defendants advised plaintiffs Gottlieb and Preski, both of whom were active-duty police officers employed by the city of Chicago, that because they were candidates for public office, they would be required to take a leave of absence from the police department. The letters cited the last paragraph of section 10.3 of the collective-bargaining agreement in effect between the city of Chicago and the Fraternal Order of Police, Lodge No. 7, which was ratified and adopted as a city ordinance on September 18, 1984, and Police Department General Order 84 -- 7, addendum 6, item I -- E -- 1.

Section 10.3 provides in pertinent part that "[a]ny officer who runs for a political office shall take a leave of absence upon the filing of the petition for office pursuant to the Employer's regular leave of absence policy." The departmental general order is similarly worded. The "regular leave of absence policy" to which the agreement and the general order refer specifies that the leave of absence is without pay. Each officer was advised further that he would face disciplinary action if he did not promptly apply for a leave of absence.

On January 22, 1986, Gottlieb and Preski, *fn1 together with the Fraternal Order of Police, Lodge No. 7, and its president, John M. Dineen, filed a complaint against defendants seeking declaratory and injunctive relief from the enforcement of the leave-of-absence policy. The complaint alleged that section 3 of Public Act 84 -- 1018 (the Act) preempted and invalidated the final paragraph of section 10.3 of the collective-bargaining agreement and addendum 6, item I -- E -- 1, of General Order 84 -- 7.

Section 1 of Public Act 84-1018, which was enacted and became effective on October 30, 1985, added new sections to division 1 (civil service in cities) and division 2.1 (board of fire and police commissioners) of article 10 of the Illinois Municipal Code (Ill. Rev. Stat. 1986, ch. 24, par. 1-1-1 et seq.). These new sections bar a municipality covered under either division from making or enforcing "any rule or ordinance which will in any way inhibit or prohibit any employee from exercising his full political rights to engage in political activities, including the right to petition, make speeches, campaign door to door, and to run for public office, so long as the employee does not use his official position to coerce or influence others and does not engage in these activities while he is at work on duty." Ill. Rev. Stat. 1985, ch. 24, pars. 10-1-27.1, 10-2.1-5.1 2

Section 3 of the Act provides:

"Pursuant to paragraphs (h) and (i) of Section 6 of Article VII of the Illinois Constitution, this Act specifically denies and limits the exercise by a home rule unit of any power which is inconsistent with this Act, and all existing laws and ordinances which are inconsistent with this Act are hereby superseded. This Act does not preempt the concurrent exercise by home rule units of powers consistent with this Act." Pub. Act 84 -- 1018, sec. 3, eff. Oct. 30, 1985.

In an order entered on February 10, 1986, the circuit court denied defendants' motion to strike and dismiss plaintiffs' complaint, declared that section 3 of Public Act 84 -- 1018 superseded the last paragraph of section 10.3 of the collective bargaining-agreement and prevented the city of Chicago from requiring any police officer to take a leave of absence upon filing a petition for political office and running for political office, and enjoined defendants from enforcing their mandatory leave-of-absence policy. This appeal followed., Defendants contend that the court misinterpreted Public Act 84 -- 1018. We agree.

Section 1 of the Act applies only to municipalities covered under either division 1 (civil service in cities) or division 2.1 (board of fire and police commissioners) of article 10 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 1-1-1 et seq.). No municipality is required to operate under division 1; it is an optional provision. (Ill. Rev. Stat. 1985, ch. 24, par. 10-1-43.) 3 Although the city of Chicago formerly operated under division 1, the city, by exercise of its home rule powers, has chosen to remove itself from the operation of division 1, replacing it with its own personnel code. (Chicago Municipal Code, sec. 25.1-1.) The ordinance adopting the code states, in relevant part, that "[i]t is the general purpose of this ordinance . . . to establish a system of personnel administration . . . by substituting a public employment system superseding the Civil Service System now operating within the City of Chicago pursuant to the law of the State of Illinois." (Chicago Municipal Code, sec. 25.1-1.) The city of Chicago had the power to supplant the civil service provisions of the Illinois Municipal Code with its own personnel ...


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