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March 8, 1995



Released for Publication April 13, 1995.

The Honorable Justice Rizzi delivered the opinion of the court: Greiman, P.j., and Tully, J., concur.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

This action was initiated by plaintiff, Eugene Gaiser, in an effort to recover compensation for 241 days of emergency leave benefits allegedly owed to him by defendant, the Village of Skokie (Village). The intervenor/third party plaintiff, the Skokie Police Pension Board (Pension Board), was then granted leave to file an action to recover disability pension payments allegedly paid prematurely to plaintiff in the event that he was successful in his initial complaint against defendant. Subsequently, the trial court dismissed the intervenor/third party plaintiff's complaint on the basis that it had failed to appealthe administrative decision granting plaintiff disability pension benefits within 35 days as required by section 3-103 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3-103). Following a bench trial, the trial court awarded plaintiff 241 days of emergency leave benefits plus prejudgment interest. The trial court also refused to permit the Village to offset the judgment amount by the pension payments made to plaintiff. We reverse in part, affirm in part and remand.

The parties make the following allegations on appeal: (1) defendant contends that plaintiff never pleaded that he had a vested right to compensation for emergency leave, or proved that he had a contractual right to emergency leave; (2) defendant and the intervenor/third party plaintiff contend that the trial court erred in reversing its denial of plaintiff's claim for emergency leave; (3) the intervenor/third party plaintiff contends that the trial court erred in dismissing its third party claim; and (4) defendant contends that the trial court's award of damages to plaintiff was excessive. Plaintiff contends that the trial court erred in dismissing its claim.

The Village is a home rule municipality operating as a managerial form of government pursuant to article 5 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, pars. 5-1-1 et seq.). The Village Manager is the chief administrative officer of a home rule municipality and sets policies and procedures for its employees (see Ill. Rev. Stat. 1987, ch. 24, par. 5-3-7; Skokie Village Code sections 3.06 et seq.).

On May 19, 1964, Bernard Marsh, defendant's Village Manager, promulgated Administrative Directive No. 54 to the department directors of the Village. Section 5.2 of Administrative Directive No. 54 made the following provisions for emergency leave: "Emergency leave is considered a privilege to be used only in the case of need. It shall be used for illness; off the job injury or disability; or quarantine due to a contagious disease * * *." Section 5.11 of the Administrative Directive provided that there are no "payouts" for accumulated emergency leave or sick leave and that the department heads have the discretion to deny emergency leave.

In 1978, Kenneth B. Chamberlain, defendant's Chief of Police, promulgated Special Order No. 78-1 to all personnel of the Skokie Police Department. Special Order No. 78-1 provided that emergency leave was a privilege to be used only in the case of need, and that department chairmen had the right to deny emergency leave to employees. Special Order No. 78-1 also provided that sick leave of 12 days per calendar year was also available to employees, with no carry over from year to year. Under Special Order No. 78-1, the firstthree days of illness were to be counted as sick leave and after the third day of such absence, the use of emergency leave could be recommended to the Office of the Police Chief for approval.

Defendant's Personnel Manual was promulgated by Village Manager Robert Eppley on July 2, 1984. Article 8 of the Personnel Manual contained a description of defendant's new sick leave policy. Paragraph 12 of the article prospectively eliminated the accrual of the emergency leave benefit for future employees but provided that employees who had already accrued emergency leave could retain such leave accumulated as of December 31, 1982.

The Personnel Manual also provided that no payout of accumulated sick or emergency leave was permissible. As a reward for outstanding attendance, however, each eligible employee was awarded one additional vacation day for each additional four sick days earned but not used. Unlike regular vacation which cannot be carried over to retirement, department heads could permit the carryover of these additional vacation days to retirement or termination, with the staffing needs of the Village in scheduling workloads as the controlling factor.

In January of 1986, plaintiff, a Village police officer, requested by his attorney that he be relieved of street duty on account of his permanent hearing loss. The Chief of Police of the Village (Police Chief) responded by assigning plaintiff to a "light duty" assignment until his medical condition could be confirmed and a decision would be made by the Pension Board.

Plaintiff requested the use of accumulated emergency leave of 241 days prior to applying for a disability pension under the Police Pension Code. Ill. Rev. Stat. 1987, ch. 108 1/2, par. 3-101 et seq. After consultation with the Village Manager's office and the Police Department, the Police Chief denied plaintiff's request. He also informed plaintiff that because of the fact that the department does not have permanent light duty positions, the Village would keep him on light duty only until a decision on his disability pension application was made. The Police Chief advised plaintiff that in the event that plaintiff did not apply for disability, he would petition the Fire and Police Commission for plaintiff's removal on the basis that plaintiff was unfit for duty. Other employees had requested emergency leave prior to retirement and were denied by the Police Chief.

Plaintiff then requested a disability pension from the Pension Board. Plaintiff informed the Pension Board on or about July 12, 1986, that he was suffering from a hearing loss with consistent ringing in his ears, that his condition was permanent and that he could not perform the duties of a police officer without endangering himselfor others. In support of his statement of his condition, plaintiff provided medical reports from three doctors. Subsequently, a non-duty disability pension was approved by the Pension Board and plaintiff has been receiving a monthly disability pension check in the amount of $1,287.08 since September 9, 1986, the date he was removed from defendant's payroll.

On August 3, 1987, plaintiff filed a complaint for declaratory relief and damages against defendant wherein plaintiff prayed for the following relief:

Wherefore, plaintiff Eugene Gaiser by and through his attorney Susan P. Malone respectfully requests this Honorable Court for the following relief:

a) a declaration that the Personnel Manual of the Village of Skokie insofar as emergency leave and sick leave provisions are concerned constitutes a contract binding upon the employer defendant;

b) a declaration that the plaintiff Eugene Gaiser is and was entitled to utilize emergency leave benefits for absence required by his hearing loss;

c) an order directing the Village to account to Eugene Gaiser or all sums due and owing which may be due and owing as a failure of the Village to permit said plaintiff to remain on emergency leave status ...

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