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10/26/94 JAMES GRECO v. MCHENRY COUNTY SHERIFF'S

October 26, 1994

JAMES GRECO, DONALD MCCUNE, AND STEVEN LUMPP, PLAINTIFFS-APPELLANTS,
v.
MCHENRY COUNTY SHERIFF'S DEPARTMENT MERIT COMMISSION, THE COUNTY OF MCHENRY, GEORGE H. HENDLE, FRATERNAL ORDER OF POLICE, MCHENRY COUNTY SHERIFF'S POLICE LODGE NO. 119, AND ILLINOIS FRATERNAL ORDER OF POLICE LABOR COUNSEL, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McHenry County. No. 90-MR-184. Honorable William D. Block, Judge, Presiding.

Rehearing Denied November 30, 1994.

McLAREN, Geiger, Quetsch

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The plaintiffs appeal the dismissal of their complaint seeking declaratory and injunctive relief based on their claim that they were improperly barred from promotion within the McHenry County sheriff's department. We reverse and remand for further proceedings.

The plaintiffs, James Greco, Donald McCune, and Steven Lumpp, are deputy sheriffs employed by McHenry County as jail officers. Each is subject to the McHenry County Merit Commission (Merit Commission), and each has worked for the county since before the passage on February 16, 1988, of a McHenry County ordinance that excluded jail officers from the merit system. The plaintiffs were specifically excepted and remain members of the merit system.

On April 12, 1993, the plaintiffs filed an amended three-count complaint alleging that portions of a collective-bargaining agreement (FOP contract) between the county and their union, the Fraternal Order of Police, and the bylaws of the Merit Commission violate the Sheriff's Merit System Law (Merit System Law) (55 ILCS 5/3-8001 et seq. (West 1992)). The plaintiffs sought an order enjoining the sheriff's department from hiring new officers to the rank of deputy sheriff or, alternatively, an order directing the department to pay the plaintiffs at the rate earned by the deputy sheriffs.

Plaintiff Lumpp, who has taken and passed the sergeant's examination, also asked the circuit court for an order requiring the Merit Commission to reconsider him for promotion or, in the alternative, to certify him for promotion to the rank of sergeant.

The defendants filed a motion to dismiss, arguing that the plaintiffs waived their rights to contest the Merit Commission's promotion system by virtue of their participation in the FOP contract, which acknowledges that the Merit Commission has sole authority over promotions. The defendants further argue that the FOP contract provides for mandatory arbitration through the union and, because the plaintiffs did not first file a grievance, their complaint in the circuit court is premature.

On September 22, 1993, the circuit court granted the motion to dismiss, denied the plaintiffs' request for injunctive relief, and ruled that the FOP contract is not unconstitutional per se. The court declared that the dismissal was a final and appealable order as to the issues raised but "it is without prejudice to the Plaintiffs to refile this action after completion of the grievance procedure in compliance with the FOP contract."

The plaintiffs appealed. For the following reasons, we find that the motion to dismiss was improperly granted and that the plaintiffs may bring their complaint without first filing a union grievance.

On appeal of a grant of a motion to dismiss, we are concerned only with questions of law and are not bound by the reasoning or determination of the trial court. ( Santa Claus Industries, Inc. v. First National Bank (1991), 216 Ill. App. 3d 231, 236, 159 Ill. Dec. 657, 576 N.E.2d 326.) As an administrative agency created by statute, the Merit Commission may exercise only such power as is directly provided for by the statute. ( Schalz v. McHenry County Sheriff's Department Merit Comm'n (1986), 113 Ill. 2d 198, 202, 100 Ill. Dec. 553, 497 N.E.2d 731; 55 ILCS 5/3-8001 et seq. (West 1992).) The Merit Commission may not expand or change the operation of the Merit System Law, and any rule of the Merit Commission which conflicts with it is invalid. People ex rel. Kilquist v. Brown (1990), 203 Ill. App. 3d 957, 961, 148 Ill. Dec. 928, 561 N.E.2d 234.

The plaintiffs contend that the Merit Commission has exceeded its statutory authority by establishing "dual entry levels" within the sheriff's department when it is empowered only to designate a single entry level, which must also be the lowest rank within the department. The plaintiffs also contend that the hiring of new officers at the rank of deputy sheriff rather than as jailers violates the Merit System Law. We agree.

In construing a statute, a court of appeals will look first to the language of the statute and read such language according to its plain and popularly understood meaning. ( People v. Sheehan (1994), 261 Ill. App. 3d 325, 328, 198 Ill. Dec. 689, 633 N.E.2d 151.) When the language of the statute is clear, it will be given effect without resort to other aids of construction. ...


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