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09/29/89 Norbert W. Davis, v. George W. Dunne

September 29, 1989

NORBERT W. DAVIS, PLAINTIFF-APPELLANT

v.

GEORGE W. DUNNE, AS CHAIRMAN OF COMMISSIONERS OF COOK COUNTY, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

545 N.E.2d 539, 189 Ill. App. 3d 739, 136 Ill. Dec. 1015 1989.IL.1567

Appeal from the Circuit Court of Cook County; the Hon. Kenneth L. Gillis, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. MANNING, P.J., and BUCKLEY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

Plaintiff Norbert Davis, a civil service employee, sued George Dunne, president of the Board of Commissioners of Cook County, alleging violation of Cook County Civil Service Commission Rules, after defendant Albert Weston was promoted ahead of Davis. The trial court granted Dunne's motion to dismiss with prejudice for failure to state a claim. Davis appeals.

In April 1969, Norbert Davis was employed with the Cook County Environmental Control Department as an inspector I, grade level 15. Davis was appointed chief investigator in 1970. In March 1985, Albert Weston, also an employee of the Cook County Environmental Control Department at grade level 15, was promoted to inspector II, with an increase to grade level 17.

On April 7, 1987, Davis filed a complaint against Dunne and Weston, alleging violation of Cook County Civil Service Commission Rule VIII, which provides in relevant part:

"Sec. 1. Vacancies shall be filled by promotion in all cases where it is practicable, on the basis of ascertained merit, examination, and seniority. All examinations for promotion shall be competitive, and in order to create or increase competition, ranks may be combined for the purpose of promotion. Lines of promotion shall be determined by the Commission. Lines of eligibility for promotion shall be defined, specifying in the examination announcement by title of position the particular ranks entitled to take such promotional examination. The method of and the rules governing any promotional examination and the method of certifying shall be the same as provided for applicants to open competitive examinations except that the Commission shall submit to the appointing officer the names of not more than three applicants having the highest rating for each promotion."

Davis alleged that because Weston had been promoted without a competitive exam or registered list of the three most eligible candidates, and the promotion was not based on seniority or merit, Rule VIII had been violated. Davis requested that Weston's promotion be

without changing Weston's position. Davis further requested costs, fees, and such other relief as the court found appropriate.

Davis argued that the violation of Rule VIII constituted a violation of "An Act to revise the law in relation to counties . . ." (Civil Service Act) (Ill. Rev. Stat. 1987, ch. 34, par. 905 et seq.). Section 61.50 of the Civil Service Act provides: "[a]ny person who shall willfully, or through culpable negligence violate any of the provisions of this Act or any rule promulgated in accordance with the provisions thereof shall be guilty of a Class B misdemeanor." (Ill. Rev. Stat. 1987, ch. 34, par. 1139.) Section 61.52 provides:

"Prosecutions for violations of this Act may be instituted either by the Attorney General, the State's Attorney for the county in which the offense is alleged to have been committed, or by the commission acting through special counsel. Such suits shall be conducted and controlled by the prosecuting officers who institute them, unless they request the aid of other prosecuting officers." Ill. Rev. Stat. 1987, ch. 34, par. 1141.

On October 14, 1987, Dunne moved to dismiss Davis' action, asserting that the Civil Service Act provided no private right of action. The trial court agreed, finding that enforcement of the Civil Service Act was limited to the Attorney General, State's Attorney, or Civil ...


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