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March 18, 1994


Appeal from the Circuit Court of Cook County. The Honorable Thomas J. O'Brien, Judge Presiding.

Giannis, Egan, Rakowski

The opinion of the court was delivered by: Giannis

JUSTICE GIANNIS delivered the opinion of the court:

The Cook County Sheriff's Merit Board (Merit Board) issued a ruling on April 12, 1990, which held that certain employee certifications made in 1985 were invalid. The Board voided all of the invalid certifications and rescinded the appointments of the certified employees to merit-protected positions. The circuit court affirmed the decision of the merit board. Plaintiffs' certifications and appointments were held invalid, and they have appealed.

The Cook County Sheriff's Merit Board Act (Act) (55 ILCS 5/3-7001 et seq. (West 1992)) was amended on July 1, 1984, toprovide merit protection to deputy sheriffs who were not county police or correctional officers. The Act required the Merit Board to establish a classification of ranks for deputy sheriffs and to set standards of qualification for each rank in accordance with recognized merit principles of public employment. (55 ILCS 5/3-7006 (West 1992).) Under the Act, the sheriff was authorized to appoint deputy sheriffs to ranks as established by the Merit Board after the Board certified their qualifications for such ranks. (55 ILCS 5/3-7008 (West 1992).) The Merit Board was required to certify to the county clerk, or other auditing officers, all appointments to offices and places as may be classified. (55 ILCS 5/3-7016 (West 1992).) In addition, the Act specifically provided that the Merit Board shall investigate the enforcement of the statute, the rules of the Board, and the conduct and action of the appointees thereunder. 55 ILCS 5/3-7015 (West 1992).

In 1985, the Merit Board promulgated certain rules creating a hierarchy for deputy sheriff ranks which included deputy captains, deputy lieutenants, deputy sergeants, and deputy sheriffs. After administering a series of examinations, the Merit Board certified 171 employees within the Cook County Sheriff's Office to these various ranks. In 1986, Sheriff Elrod appointed these employees to the ranks for which they had been certified by the Board. On August 25, 1987, Sheriff O'Grady, Elrod's successor, sought leave to file a complaint with the Merit Board, charging that the Board and Elrod had failed to comply with the Merit Act and with the Board's rules during the certification and appointment of these 171 employees. O'Grady requested that the Merit Board investigate these charges, issue appropriate subpoenas in furtherance of the investigation, hold a formal hearing to review his allegations, void the certifications, and declare the appointments invalid.

The Merit Board denied O'Grady's request to file the complaint, holding that the Board lacked statutory authority to review its own actions or to grant the declaratory relief requested. O'Grady challenged this ruling by filing a complaint for administrative review. During the pendency of the administrative review action in the circuit court, the three-member Board, with one member Dissenting, maintained its position that it lacked statutory authority to grant the relief sought by O'Grady. The circuit court ultimately determined on February 14, 1989, that the Merit Board did have jurisdiction to review the allegations in O'Grady's complaint. The circuit court thereafter held two of the Merit Board members in civil contempt for refusing to review and investigate the allegations in O'Grady's complaint. This court subsequently reversed the circuit court's finding ofcontempt in a Rule 23 order issued September 28, 1990. See O'Grady v. Cook County Sheriff's Merit Board and Robert A. Novelle and Arthur A. Waddy (1st Dist. 1990), No. 89-0608 (unpublished order under Supreme Court Rule 23).

On April 6, 1989, the Merit Board ordered a hearing on the allegations contained in O'Grady's complaint. The Merit Board granted the parties six months to complete discovery and hearings were conducted from November 17, 1989 through February 12, 1990. Counsel for plaintiff Jackson attended and participated in the hearings held on January 30, 1990, and on February 12, 1990. Counsel for plaintiff Hudson attended and participated in the hearings held on January 12, 1990, on January 30, 1990, and on February 12, 1990.

The evidence adduced at these hearings established that on April 1, 1985, Elrod appointed Major Anthony Yucevicius to serve as liaison between the sheriff's office and the Merit Board and to direct the process by which deputy sheriffs were to be certified for and appointed to merit-protected ranks under the Merit Act. Upon the recommendation of Yucevicius, the Merit Board amended its rules and regulations to create the merit-rank classifications of deputy captain, deputy lieutenant, deputy sergeant, deputy sheriff, and exempt employees. According to Yucevicius, these classifications corresponded to the ranks of deputy V, deputy IV, deputy III, deputy II, and deputy I, previously used in the sheriff's office. No new job descriptions were written for these classifications, nor were minimal qualifications established. The amended rules also established a testing and certification procedure for incumbent supervisory personnel but failed to define the supervisory positions which would be protected under the Merit Act. Sheriff Elrod had sole discretion in identifying the employees who were in supervisory positions and were eligible for certification under the Merit Act. The certification of incumbent supervisory employees was separate and distinct from the certification of non-supervisory employees. At Elrod's request, Yucevicius compiled a list of incumbent supervisory personnel who would be eligible to take the examination for merit protection. This list included certain individuals who did not perform any supervisory functions and included custodians, administrative assistants, the sheriff's personal secretary, and other individuals who were not deputy sheriffs. Elrod reviewed, approved, and signed the list of incumbent supervisory employees.

This list was submitted to the executive director of the Merit Board who was directed to include all of those listed in a certification examination session scheduled for July 13, 1985. Eight daysbefore the examination, Yucevicius sent a second list to the executive director, adding the names of employees who had been omitted from the prior list. The employees whose names appeared on the second list were also to be included in the examination session. The 192 employees specified on these two lists constituted less than 20% of the more than 1,000 deputy sheriffs employed in the sheriff's office at that time. The employees whose names were not on these two lists were excluded from participating in the examination. The Board accepted the lists without conducting any independent review of the abilities or qualifications of those whose names were included.

The examination session consisted to two tests: the Otis-Lennon test, which had been used by the Board in prior certification processes, and a new test which was based upon information contained in the general orders of the sheriff's office. The general-orders test was prepared by two employees who knew that they would take that test during the examination session. Although the general-orders test was reviewed by Elrod and Yucevicius, no member of the Merit Board ever reviewed this test.

After the examination session on July 13, 1985, Yucevicius sent a memorandum to Elrod which summarized the poor performance of those tested. Elrod then instructed Yucevicius to administer a second examination to those who had scored below 20% on the Otis-Lennon test and below 50% on the general-orders test. The second examination session was administered on August 7, 1985. Many of the individuals who had failed to meet the sheriff's minimum scores were permitted to take the same examination again during the second, third, and fourth examination sessions ordered by Elrod. The Merit Board never set a minimum passing score for either of the tests administered during these four examination sessions.

On October 1, 1985, lists were issued which included the names of those individuals who were certified for appointment to the merit-protected ranks of deputy captain, deputy lieutenant, and deputy sergeant. These lists included certain individuals who had failed to meet the sheriff's personal minimum scores and individuals who had not yet taken the certification examination. The lists were supplemented on December 4, 1985.

On December 5, 1985, Yucevicius sent a letter to the Cook County Position Classification Agency which requested that the budgeted rank of deputy sheriff V be reclassified as deputy captain, deputy sheriff IV as deputy lieutenant, deputy sheriff III as deputy sergeant, and deputy sheriffs II and I as deputy sheriff. This letter also requested that the number of individuals in those budgeted positions be increased and sought a change in their pay grades. Although thisreclassification never occurred, Elrod appointed the certified employees to the ranks of deputy captain, deputy lieutenant, and deputy sergeant. Elrod appointed 38 deputy captains and 47 deputy lieutenants, despite the fact that he had only requested budget allocations for 9 deputy captains and 31 deputy lieutenants. ...

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