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05/07/96 BARBARA GRASSINI v. DUPAGE TOWNSHIP

May 7, 1996

BARBARA GRASSINI, PLAINTIFF-APPELLANT,
v.
DUPAGE TOWNSHIP, A MUNICIPAL CORPORATION, MARGARET DANHOFF, TOWNSHIP SUPERVISOR, ANN DRALLE, TRUSTEE, PAUL DRDAK, TRUSTEE, JEFF MERTZ, TRUSTEE, FELIX GEORGE, TRUSTEE AND JUDITH BREDEWIG, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 93 CH 7832. Honorable Patrick M. Burns, Judge, Presiding.

Released for Publication June 11, 1996.

Present - Honorable Peg Breslin, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice. Presiding Justice Breslin delivered the opinion of the court: Lytton and McCUSKEY, JJ., concur.

The opinion of the court was delivered by: Breslin

PRESIDING JUSTICE BRESLIN delivered the opinion of the court:

The plaintiff, Barbara Grassini, brought suit against DuPage Township and several of its officials after they terminated her employment with the Township. The trial court dismissed Grassini's six-count complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)). The primary question on appeal is whether DuPage Township had the authority to employ Grassini as township administrator under a four-year contract. We hold that, under the facts presented, the contract was without the Township's authority and therefore void ab initio. Accordingly, we affirm the trial court's dismissal of the counts based upon the contract. For reasons that follow, we also affirm the trial court's dismissal of the other counts, but remand for the trial court to determine whether Grassini should be given leave to replead count VI.

FACTS

DuPage Township first employed Grassini in 1988 in a capacity that is not clear from the record. The terms and conditions of Grassini's employment were governed by a personnel policy manual, relevant portions of which we will discuss in the course of our analysis. In February 1993, Grassini entered into a written employment contract with the Township through which she agreed to serve in the capacity of township administrator for a four-year period. As administrator, Grassini was to perform various duties under the direction of the township supervisor, including coordination of the township's daily business, coordination of payroll and personnel functions, recommendation of budgetary policies, and communication of township policies to departmental heads. The contract provided that Grassini's employment could be terminated only for various enumerated reasons. In addition, it expressly stated that its terms superseded the terms of the policy manual to which Grassini had been subject under her previous employment.

The township's board of trustees authorized the contract by resolution in February 1993; the township electors in turn approved the trustees' resolution in April 1993. Shortly thereafter, however, newly elected trustees, including a new township supervisor, replaced the trustees who authorized Grassini's contract. On May 5, 1993, the new trustees voted to terminate the contract and to discharge Grassini from her duties. In June 1993, anticipating this litigation, the new supervisor issued a memo to township employees instructing that Grassini was not to be permitted to participate in any paid or volunteer activities on township property until the litigation was resolved.

Grassini brought a six-count complaint against the township and its trustees, including the supervisor. Count I alleged breach of the employment contract. Count II sought damages from the individual defendants under 42 U.S.C. § 1983, alleging that the same breach violated Grassini's right to due process under the 14th Amendment to the United States Constitution. Count III alleged breach of the policy manual; count IV sought damages under 42 U.S.C. § 1983 for the same breach. Count V sought further damages for the same breach alleged in count III. Finally, count VI sought damages under 42 U.S.C. § 1983 for an alleged interference with Grassini's rights under the 1st and 14th Amendments to the United States Constitution stemming from the memo which sought to bar her from participating in activities on township property.

The defendants brought a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure, alleging that the contract was ultra vires and therefore void ab initio. The trial court agreed with the defendants and dismissed all six counts with prejudice. Grassini appeals the dismissal of every count except count V.

Scope of Review

A motion to dismiss under section 2-619 admits the legal sufficiency of a complaint but raises affirmative matter to defeat the claim. 735 ILCS 5/2-619(a)(9) (West 1992). Thus, all well-pleaded facts in a complaint are taken as true. Geick v. Kay, 236 Ill. App. 3d 868, 603 N.E.2d 121, 177 Ill. Dec. 340 (1992). A cause of action should not be dismissed under 2-619 unless it is apparent that no set of facts can be proven which would entitle a plaintiff to recover. Nielsen-Massey Vanillas, Inc. v. City of Waukegan, 212 Ill. Dec. 856, 276 Ill. App. 3d 146, 657 N.E.2d 1201 (1995). A trial court's dismissal of a claim under section 2-619 is subject to de novo review. Jackson v. Shell Oil Co., 272 Ill. App. 3d 542, 650 N.E.2d 652, 208 Ill. Dec. 958 (1995).

Enforceability of Grassini's Employment Contract

The primary issue on appeal is whether Grassini's four-year employment contract was ultra vires and ...


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