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December 22, 1995


Appeal from the Circuit of Cook County. The Honorable Ellis E. Reid, Judge Presiding.

The Honorable Justice Egan delivered the opinion of the court: McNAMARA, P.j., and Zwick, J., concur.

The opinion of the court was delivered by: Egan

The Honorable Justice EGAN delivered the opinion of the court:

On April 29, 1994, the City of Chicago Department of Personnel announced an examination for promotions to the position of police lieutenant in the Chicago Police Department. By March 1995, the City had the results from the examination. The defendants promoted 54 sergeants to lieutenant based on the fact they had achieved the highest scores on the examination. The defendants promoted 13 additional sergeants based on recommendations by the Police Department's Academic Selection Board ("ASB").

On March 20, 1995, the plaintiff, Sergeant James McArdle, filed a complaint against the defendants for a permanent injunction and declaratory relief. He had achieved the 56th highest score on the lieutenants examination, and the defendants did not promote him. The plaintiff asked the judge to enjoin the defendants from "promoting to the rank of Lieutenant any Sergeant out of rank order, and/or any Sergeant based upon 'merit,' or any factor other than the results of competitive testing" and to declare that the City of Chicago Personnel Rules ("Personnel Rules") provide the sole method for promotions. The plaintiff also requested a temporary restraining order, which the judge granted on March 21, 1995.

On March 24, 1995, the plaintiff filed a motion for a preliminary injunction against the defendants: Matthew Rodriguez, superintendent of the Chicago Police Department; the City of Chicago; and Mayor Richard M. Daley. The plaintiff asked for the same injunctive and declaratory relief as in his complaint for a permanent injunction.

On March 29, 1995, the judge issued an order granting the preliminary injunction. He enjoined the defendants from "promoting or allowing the promotion of the 13 so-called merit selection candidates for the rank of Lieutenant in the Chicago Police Department." He also required the defendants to remove those candidates from the lieutenants training program. The judge denied the defendants' emergency motion to stay the injunction, but, on April 3, 1995, we granted the defendants' emergency motion to stay the portion of the judge's order that required the defendants to remove the 13 sergeants from the lieutenants training program. The defendants raise several arguments against the granting of the preliminary injunction.

At the hearing on the preliminary injunction, the plaintiff testified and called Department of Personnel Commissioner Glenn Carr as an adverse witness. Superintendent Rodriguez, Joe DeLopez, the commander of the Police Department's Training Academy and the clerk of the ASB and Robert Joyce, the deputy commissioner of the Department of Personnel, testified on behalf of the defendants.

The plaintiff testified that he learned of the lieutenants examination through the April announcement, which the Department of Personnel had issued. The announcement provided that "the promotional process [would] include three components. Each of the three components [would] contribute EQUALLY to the final score." (Emphasis in original.) The three components the announcement described were an oral briefing exercise, an in-basket simulation and a written multiple choice test. Each of the three components would have equal weight in the scoring process: "A TOTAL SCORE will be determined by adding together equally weighted scores on all three components. " (Emphasis in original.)

According to the plaintiff, he and the other sergeants who planned to take the lieutenants examination believed that the City would base its promotions on only the three test components. After receiving his results from the examination in the mail, he learned that 55 sergeants had achieved higher scores on the examination. He believed, therefore, that his score qualified him to be among the 67 sergeants the City promoted to lieutenant.

The City officials who testified explained the circumstances surrounding their decision to make merit promotions. The lieutenants examination that the Department of Personnel announced in 1994 was prepared by an outside consultant, Barrett and Associates. The Department of Personnel was not involved in grading the examination, and an independent accounting firm provided the scores. The City obtained these scores sometime before March 8 or 10, 1995.

On March 8, 1995, Superintendent Rodriguez sent a letter to the Police Department chiefs, deputy chiefs and assistant deputy superintendents. He asked them to nominate sergeants for merit promotions:

"The Department is presently pursuing the opportunity of merit selection appointments to the rank of Lieutenant of Police. I presently anticipate making these merit appointments outside the vacancies clearly anticipated for the life of the new Lieutenant's list (3 years). This will be accomplished through reorganization and reassignment of command officer functions."

Rodriguez requested the recipients of this letter to submit nominations for merit appointments to the ASB by March 13, 1995. He specified certain nomination criteria, such as leadership skills, education, awards and performance. A sergeant's score on the lieutenants examination was not among these criteria.

On March 13, 1995, Rodriguez sent a letter to Carr, in which he inquired about his authority to initiate "merit promotions." Rodriguez informed Carr that he wanted to make merit promotions in conjunction with promotions based on scores from the lieutenants examination. The merit promotions he planned would constitute 20% of the total number of sergeants promoted.

Rodriguez explained to Carr that he based his request for authority to make merit promotions in part on a recommendation the Blue Ribbon Panel on Police Testing, Hiring and Promotion ("Panel") had made to Mayor Daley on February 28, 1995, at his request. The Panel had recommended that the City give significant consideration to an officer's performance in making promotions to lieutenant and that the City give the superintendent "significant discretion to make promotional selections" because the future leadership of the Department would be drawn from those promoted to lieutenant. The Panel suggested that the City apply its practice of basing 20% of detective promotions on merit to lieutenant promotions. (The Panel also "realized that some of these proposals may not yet be practical.") Although he testified that he could not make promotions without Carr's approval, Rodriguez did not discuss his authority to make merit promotions with Carr before March 13, 1995.

On March 15, 1995, Carr responded to Rodriguez's request for authority to make merit promotions. Carr stated in a letter that, after reviewing the scores from the examination, he had determined that promotions based on these scores would have a severe adverse impact on black and Hispanic candidates. Consequently, the Department of Personnel had an obligation to use an alternative selection procedure. He, therefore, approved of Rodriguez's merit promotion plan:

"I understand that you have directed exempt rank personnel to identify outstanding candidates for selection to the rank of police lieutenant, based on their performance as sergeants. These nominations are limited to career service sergeants who applied pursuant to the announcement for examination No. 39400. The resulting names will be submitted to your Department's Academic Selection Board, which will rate such persons as 'recommended' or 'highly recommended,' based on the Board's judgment of each applicant's respective qualifications.

I hereby approve the foregoing and approve this performance component as part of examination No. 39400. These ratings should be transmitted to Robert Joyce, Deputy Commissioner of Personnel, for use in screening from the police lieutenant categorical promotional list. At that point, you should designate one or more members of the Chicago Police Department to assist the Department of Personnel in screening names from the promotional list for the referral list. I understand that the two screening criteria will be the combined ...

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