MEMORANDUM OPINION AND ORDER
Before the Court is defendants' motion to dismiss or, in the alternative, to stay the action. For the reasons stated herein, defendants' motion to dismiss the complaint for failure to state a claim is denied. Defendants' motion to stay the action pending disposition of an action in state court is granted.
Beginning in 1982, Eyvind J. Ericksen III ("Mr. Ericksen") was employed by the Willow Springs Police Department ("Department") as a patrol officer. On several occasions since April, 1986, Mr. Ericksen received verbal assurances from various police personnel, including Chief of Police Leland Brannam ("Mr. Brannam"), that he would not be terminated as long as he performed his duties in a satisfactory manner.
On May 14, 1992, the Board of Trustees for Willow Springs ("Board") voted to terminate Mr. Ericksen's employment with the Department without informing him of the reasons for termination or giving him a formal hearing.
On May 25, 1993, Mr. Ericksen brought an action in the Circuit Court of Cook County against the Village of Willow Springs and Mr. Brannam (collectively, "the Village"). The two-count complaint alleges that Mr. Ericksen was improperly terminated in retaliation for filing a worker's compensation claim and that Mr. Brannam intentionally interfered with Mr. Ericksen's prospective economic advantage by recommending to the Board that he not be re-appointed. On February 28, 1994, Circuit Court Judge Jennifer Duncan-Brice dismissed Mr. Ericksen's complaint. On March 25, 1994, Mr. Ericksen moved to reconsider the dismissal. On October 5, 1994, the Court denied Mr. Ericksen's motion to reconsider.
On May 12, 1994, Mr. Ericksen brought this action against the Village in federal district court under 42 U.S.C. § 1983, alleging that his termination without a hearing violated his right to due process. On August 11, 1994, the defendants moved to dismiss this action pursuant to FED. P. CIV. P. 12(b)(6) or, in the alternative, to stay all proceedings in this action pending the final resolution of the state action.
1. Property Interest
The Village first moves to dismiss the complaint on the ground that Mr. Ericksen has failed to allege a protectible property interest in his continued employment at the Department. Specific benefits such as continued public employment are, under appropriate circumstances, property interests protected by the Fourteenth Amendment. Malcak v. Westchester Park District, 754 F.2d 239, 242 (7th Cir. 1985) (citing Board of Regents v. Roth, 408 U.S. 564, 576-79, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)). A protectible property interest may arise from a statute, a rule of law, or through a "mutually explicit understanding" that includes a promise of continued employment. Leis v. Flynt, 439 U.S. 438, 442, 58 L. Ed. 2d 717, 99 S. Ct. 698 (1979) (citation omitted); Colburn v. Trustees of Indiana University, 973 F.2d 581, 589 (7th Cir. 1992) (citation omitted). The existence of a substantive property interest in public employment is ordinarily a question of state law. Fittshur v. Village of Menomonee Falls, 31 F.3d 1401, 1405 (7th Cir. 1994) (citation omitted); Gorman v. Robinson, 977 F.2d 350, 356 (7th Cir. 1992) (citations omitted).
The law is clear in Illinois that public employees have no presumptive property interest in their positions. Domiano v. Village of River Grove, 904 F.2d 1142, 1147 (7th Cir. 1990) (citations omitted). In the absence of an understanding to the contrary, an employment agreement is presumed to be an "at-will" arrangement which can be terminated at any time and for any reason by either the employer or employee. Corcoran v. Chicago Park District, 875 F.2d 609, 612 (7th Cir. 1989) (citations omitted).
A. Assurances of Continued Employment
In the present case, Mr. Ericksen alleges that he received repeated assurances from various police personnel and a Trustee for the Village of Willow Springs that he would not be terminated as long as he performed his duties in a satisfactory manner. Complaint, P 12. He argues that these assurances form the basis of a mutually explicit understanding of continued employment protected by the Due Process Clause of the Fourteenth Amendment. Indeed, it has been recognized that
when a public employee legitimately relies on an employer's affirmative representation of continued employment, a mutually explicit understanding may be formed creating a protected property interest which cannot be deprived without procedural due process.
Lynn v. Village of Willow Springs, 1987 U.S. Dist. LEXIS 9392, No. 87 C 5451, 1987 WL 18561, at *2-3 (N.D. Ill. Oct. 15, 1987) (citing Lyman v. Strasburg, 647 F. Supp. 887, 890 (N.D. Ill. 1986).
The Village argues that Lynn does not reflect the current state of law in light of Lee v. County of Cook, 862 F.2d 139 (7th Cir. 1988), in which the Seventh Circuit upheld the dismissal of a Section 1983 action brought by a public employee who was terminated without a hearing after receiving assurances of continued employment from her supervisor. However, in Lee, the Court held that the assurances did not create a mutually explicit understanding because they were made by a first-line manager who clearly lacked the authority to bind the state. Id. at 142-43. The present case is distinguishable in that the assurances allegedly came from, among others, three police chiefs, individuals who may have had the requisite authority.
Statements upon which are based a claim of a mutually explicit understanding must be made by a supervisor vested with proper authority. Lee v. County of Cook, supra, 862 F.2d at 143 (citing Shlay v. Montgomery, 802 F.2d 918, 921 (7th Cir. 1986)). "Any other promises are 'unenforceable since it is well-established that a city is generally not legally responsible for acts taken by its officers in excess of their authority.'" Id.2 In Hadley v. County of Du Page, 715 F.2d 1238, 1242-43 (7th Cir. 1983), cert. denied, 465 U.S. 1006, 79 L. Ed. 2d 232, 104 S. Ct. 1000 (1984), the Seventh Circuit held that a public employee who received verbal assurances of job security from his superiors and county board members failed to establish a property interest in continued employment since "individual members of a county board in Illinois do not have the authority to bind a county to contracts." Id. (citations omitted) (emphasis in original). Rather, a property interest based on a mutually explicit understanding "would require an assurance from the County Board itself." Id.
In the present case, there is no allegation that the police personnel who made these statements were vested with the authority to do so. It is clear that under Lee and Hadley that statements by Mr. Brannam, when he was a sergeant in the police force and James Rizzi, just one Trustee of the Village, could not create such a vested interest. Mr. Ericksen's claim that Police Chief John Lynn, at various times in 1985 and 1986, made such a promise is more questionable in terms of possible authority.
Nevertheless, the complaint contains no allegation of such authority. Indeed, Mr. Ericksen implicitly acknowledges that the authority to hire and fire employees rests solely with the Village President and the Board of Trustees.
At least as plead in the complaint before me, Mr. Ericksen has not alleged a property interest sufficient to base a claimed violation of due process.
B. Pension Plan and Sick Leave Policy
Mr. Ericksen also claims that the Department's pension plan and sick leave policy created a property interest in his continued employment. All patrol officers were required to contribute to the Illinois Municipal Retirement Fund, from which they could not derive benefits until after completing numerous years of service. The sick leave policy provided that any patrol officer who did not exercise sick leave during a given year would be rewarded with two unscheduled leave days and five days of bonus pay during the following year. Mr. Ericksen concludes that the pension plan and sick leave policy constituted implied promises to the officers that they would only be terminated for cause. See Complaint, PP 13-14.
The Seventh Circuit soundly rejected this argument in Shlay v. Montgomery, supra, 802 F.2d at 923:
[Plaintiff's] contention that he had de facto tenure because his salary and pension benefits had increased during his employment and because he had accrued vacation time is also meritless. . . . The mere fact that the City increased compensation and benefits for its employees over the years does not give rise to a mutual understanding with respect to continued employment. We agree with the district court that simply because the City promised an employee increased remuneration if he was retained in his position cannot be translated into a promise that the employee would be retained.