will reflect, such hiring (that is, giving someone a job) is not the same as conferring the legal title of Supervisor (the only thing in which Santella could even arguably seek to assert the "property" interest needed to implicate the Due Process Clause).
As noted, the title-in-lieu hiring practice is long-established. In fact City's Personnel Policy Manual contemplates such a procedure and provides forms for the process (see Fratto Supp. Aff. Ex. 7-10).
2. Promises to Santella
In light of the legal limitations that control City's appointment process, this case -- despite the massive amount of paper the parties have submitted on the current motion -- is really quite simple. It is undisputed that Santella has never received an appointment to the Supervisor title. Santella Mem. [11-12] does assert he complied with the application and testing procedures, so that a PER-14 reclassification form was executed by the appropriate persons (including Nowicki on behalf of Brzeczek, Budget Director Boumenot, Comptroller Fratto and Commissioner Charles Pounian). But the bottom line is that the only person with ultimate authority to have made the appointment was and is CPD's Superintendent, and no Superintendent (including Brzeczek) has ever appointed Santella to the Supervisor's title. In fact, Nowicki testified that such an appointment requires the actual issuance of an order by the Superintendent that results in reclassification -- an order that no one ever issued (Nowicki Dep. 91-92).
To recapitulate, during Santella's tenure with MMD three people held CPD's Superintendent post: DiLeonardi, Brzeczek and Fred Rice, Jr. ("Rice").
None of them ever officially appointed Santella to the Supervisor title (D. Ex. 4 paras. 3-4), and Santella concedes that (as he must).
Instead Santella argues that while he may not have been officially appointed, he was promised by Zurawski and then reassured by a number of people -- including Rodriguez and Brzeczek -- that he would be reclassified. Though this Court accepts Santella's assertions as true (as it must on the current motion), he must still lose here because he was never appointed by a Superintendent in compliance with City's Rule.
Promises, however well-intended and sincere, cannot take the place of the required formal action. Such promises are legally unenforceable against City, for they would violate the procedure established by the Rules. Nothing in the applicable statutes and Rules, or in Illinois case law construing and applying them, gives even the Superintendent the authority to bind the City to a career service appointment when the proper procedures have not been followed.
Undaunted, Santella Mem. [13-15] also contends Mayor Byrne had the authority to bind City. Santella characterizes the scandal at MMD as an emergency "requiring immediate responsive action and the implementation of plans to prevent future occurrences" (Santella Mem. ). He says that in such emergencies Code § 3-11 (D. Ex. 3-A) authorizes the Mayor to take emergency action:
The mayor shall be ex-officio co-ordinator of activities in cases of emergency resulting from any explosion, fire, flood, riot, storm or other cause requiring concerted measures for the maintenance of public peace and order, the preservation of life and property and the relief of suffering, or for any of these purposes. He shall formulate and, as occasion therefor arises, he shall execute plans for the prevention of such emergencies so far as possible and for meeting them effectively when they arise. Obedience to his orders in executing such plans and meeting such emergencies is obligatory upon all departments and heads of departments and upon all other officers and employees of the city of Chicago.
It should be recalled that Byrne delegated authority to DiLeonardi, who in turn delegated part of that authority to Zurawski. Zurawski then offered Santella the job as Supervisor. It is through that chain of reasoning (or chain of command) that Santella seeks to bind City.
But Santella's argument is weak at its first link. For two separate reasons this Court rejects the contention that Byrne had authority to bind City to a career service appointment in this case.
First, the scandal at MMD simply cannot qualify as an "emergency" under Code § 3-11. Clearly the situation was not one "requiring concerted measures for the maintenance of public peace and order, the preservation of life and property and the relief of suffering." That conclusion flows not only from the quoted language standing alone, but also from the application of familiar ejusdem generis principles (under which that generalized language should be read in conjunction with the specifically-identified true emergencies: "explosion, fire, flood, riot, storm"). Nothing indicates a problem of such nature and magnitude as to call into play the Mayor's Code-specified emergency powers.
Second, there is nothing in established Illinois law even hinting that if such an emergency did exist, the Mayor could bypass the Rules and independently make career service appointments. Certainly nothing in Code § 3-11 suggests such a sweeping power -- a power that would be directly at odds with the detailed procedures established by the Rules. For example, it might well be that the Mayor could under such circumstances cause someone to be hired temporarily to deal with the emergency -- but to infer any mayoral power to confer career service status, with its corollary consequences, in the teeth of the formal prerequisites for that status would be a very different (and impermissible) thing indeed.
Only one other issue merits attention: the effect if any of the title-in-lieu process on appointments to career service positions. Santella's Memorandum repeatedly refers to the title-in-lieu procedure, but he never really addresses what impact that custom has on the analysis here.
To be sure, an established policy or custom may evidence a mutually explicit understanding ( Davis v. City of Chicago, 841 F.2d 186, 188 (7th Cir. 1988)). But it is not enough for Santella to have proffered the evidence he has. Nothing in what he has tendered creates any reasonable inference that career service status -- as contrasted with mere job hiring -- could be granted via the title-in-lieu process. Rather it appears that the use of titles in lieu was and is simply a convenient method of complying with state and local budget regulations. Santella's own evidence repeatedly demonstrates that the title-in-lieu process serves "payroll purposes only" (Fratto Supp. Aff. para. 5; Pascale Aff. para. 9; Burke Aff. para. 7).
Thus the title-in-lieu custom really has no impact at all on the ultimate issue. On that score Santella has presented no evidence that any City employee with authority made an enforceable promise to provide him the Supervisor of Motor Maintenance title, a title that under law may be conferred only via formal steps that were never taken. That lack of a property interest in the title dooms Santella's Section 1983 claim ( Opinion I, 654 F. Supp. 428-32).
Breach of Contract Claim
Santella has also asserted a pendent state law claim for breach of contract against City. At least in surface terms that claim might be thought to fail for the same reason that the Section 1983 claim does: No one with authority to bind City entered into a contract with Santella.
But what this Court has really found (as it was required to) is that Santella lacks an established property interest under state law. And as n.11 suggests, where state law doctrines supply the rule of decision this Court is not empowered to extend those doctrines as the state courts themselves may choose to do (cf., e.g., Gust K. Newberg Construction Co. v. E.H. Crump & Co., 818 F.2d 1363, 1368 (7th Cir. 1987)). Under those circumstances it would be unfair to treat with Santella's state claim on the merits now -- instead the prudent path is to follow the teaching of UMW v. Gibbs, 383 U.S. at 726-27 and dismiss that claim without prejudice. Accord, Grubb v. W.A. Foote Memorial Hospital, Inc., 741 F.2d 1486, 1500 (6th Cir. 1984), cited favorably in Gust K. Newberg.
Santella never received an appointment to the Supervisor of Motor Maintenance title in compliance with the Rules. That means no one with authority gave him an enforceable promise that could confer the title on him. Consequently there are no disputed issues of material fact as to Santella's lack of a due-process-protected property interest. City is entitled to a judgment as a matter of law on Santella's Section 1983 claim, which is therefore dismissed with prejudice. But Santella's state law claim, lacking as it does an independent base for federal jurisdiction, is dismissed without prejudice. Accordingly this action is dismissed in its entirety.
Date: September 12, 1989