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01/19/89 Plaintiffs- v. the Department of Children

January 19, 1989

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT ILLINOIS STATE EMPLOYEES ASSOCIATION ET AL., PLAINTIFFS-APPELLEES

v.

THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, STATE OF ILLINOIS, ET AL., DEFENDANTS-APPELLANTS



533 N.E.2d 566, 178 Ill. App. 3d 712, 127 Ill. Dec. 694 1989.IL.55

Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On September 2, 1987, plaintiffs Illinois State Employees Association , Carl Culver, and Henry Williams brought suit in the circuit court of Sangamon County against defendants the Department of Children and Family Services, State of Illinois , the Department of Central Management Services, State of Illinois , and their respective directors. Plaintiffs contended DCFS was illegally contracting for security services and requested a declaratory judgment that the practice was illegal and injunctive relief against continuation of the policy. After issue was drawn, the case was tried at bench upon stipulated facts. On April 15, 1988, the court entered a judgment declaring that DCFS exceeded its authority in entering into a contract for such services and permanently enjoining defendants from entering into such contracts.

Defendants have appealed, contending (1) DCFS had power to enter into the contracts to which complaint was made; and (2) the circuit court lacked subject matter jurisdiction, because the complaint failed to state a cause of action for either injunctive or declaratory relief. We conclude DCFS had authority to enter into the contracts alleged and, accordingly, reverse.

The major thrust of plaintiffs' theory of recovery and the major reasons for the court's decision is that section 65.2 of the Civil Administrative Code of Illinois (Code) (Ill. Rev. Stat. 1987, ch. 127, par. 63b11.2) prohibits DCFS from contracting for the performance of security services by persons who are not State employees. That section states that DCFS has the power:

"To appoint, subject to the 'Personnel Code', persons to be members of a police and security force. Members of the police and security force shall be peace officers and as such have all powers possessed by policemen in cities, and sheriffs, including the power to make arrests on view or warrants of violations of state statutes or city or county ordinances. These powers may, however, be exercised only in counties of more than 500,000 population when required for the protection of Department properties, interests and personnel, or specifically requested by appropriate state or local law enforcement officials. Members of the police and security force may not serve and execute civil processes." Ill. Rev. Stat. 1987, ch. 127, par. 63b11.2.

Admirably, the parties stipulated to the following pertinent facts. Culver and Williams were employed by DCFS as security officers with certified status under the Personnel Code (Ill. Rev. Stat. 1987, ch. 127, par. 63b101 et seq.) from 1980 until they were laid off in 1987. They were working at facilities in Cook County, working daytime shifts exclusive of weekends and holidays. Since 1983, DCFS had contracted with private agencies for the performance of security services at night and on weekends, and holidays. At the time of layoff, the wages paid to Culver and Williams approximated $10 per hour, while the agencies contracting with DCFS for security services were paid at an approximate rate of $6.40 per person per hour. Shortage of funds was the reason cited by DCFS for the layoff. The daytime positions of the plaintiffs laid off have not been filled and personnel of the security services under contract have not performed those functions.

The parties agreed that the services performed by the personnel of the contracting agencies could have been performed by security officers employed by DCFS. The parties also agree that neither Culver, Williams, nor employees of the contracting agencies have been peace officers with special powers to arrest and that none of the latter employees had certified status under the Personnel Code (Ill. Rev. Stat. 1987, ch. 127, par. 63b101 et seq.).

The record is not clear as to whether DCFS has ever created "a police and security force" with members having the powers of peace officers. The parties agree that DCFS has created "the position classification of Security Officer." On the other hand, as we have indicated, they have agreed that Culver and Williams were never given peace officer powers. However, we do not deem this question to be determinative. We conclude that section 65.2 of the Code does not preclude DCFS from contracting for security services regardless of the formation of a "police and security force."

Several statutory provisions have been enacted to give peace officer powers to certain (1) employees of airport authorities (Ill. Rev. Stat. 1987, ch. 15 1/2, par. 68.8-12); (2) Revenue Department investigators (Ill. Rev. Stat. 1987, ch. 127, par. 39b15.1); (3) employees of the office of the State Fire Marshall (Ill. Rev. Stat. 1987, ch. 127 1/2, par. 501); (4) employees of the Department of Conservation (Ill. Rev. Stat. 1987, ch. 61, par. 1.15); (5) persons working in Cook County hospitals (Ill. Rev. Stat. 1987, ch. 34, par. 911); and (6) employees of the University of Illinois (Ill. Rev. Stat. 1987, ch. 144, par. 28). In each case the statute places some limitation upon the exercise of the employees' use of peace officer powers that an ordinary police officer, sheriff, or deputy sheriff would not have.

The obvious purpose of the foregoing legislation as well as section 65.2 is to enable the various departments and units of government to have the benefit of some of their employees possessing limited powers of a peace officer. The language used does not expressly or impliedly prohibit the use by the governmental agencies involved of other personnel to perform services which bear on security. Apparently, Culver and Williams operated in this capacity while working as security officers without powers of a peace officer. Just as the language does not prevent such persons performing such functions as that of a night watchman without being part of a "police and security force," the language neither expressly nor impliedly prohibits the hiring of a private entity to furnish people to perform those services.

Section 65.2 of the Code requires that persons appointed to the "police and security force" be appointed "subject to the Personnel Code." (Ill. Rev. Stat. 1987, ch. 127, par. 63b11.2.) A logical explanation for that language is to make clear that the appropriate civil service procedure applicable to the "police and security force" is not that of "An Act in relation to the Department of State Police" (Ill. Rev. Stat. 1987, ch. 121, par. 307.1 et seq.) but the Personnel Code, from which State police are exempt (Ill. Rev. Stat. 1987, ch. 127, par. 63b104c(10)). This provision also neither ...


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