APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. NO. 86 CH 5814. THE HONORABLE JOHN N. HOURIHANE, JUDGE PRESIDING.
Released for Publication December 22, 1996.
The Honorable Justice Cousins delivered the opinion of the court. McNULTY, P.j., and Gordon, J., concur.
The opinion of the court was delivered by: Cousins
The Honorable Justice COUSINS delivered the opinion of the court:
Plaintiffs, former and present police officers of the Village of Bridgeview (defendant), filed a two-count complaint against defendant seeking declaratory relief and damages related to a claim for 15 minutes of overtime compensation for attendance at daily roll call. Count I of the second amended complaint sought damages for officers who were employed by the village at the time of its filing. Count II sought damages for former police officers. On July 30, 1993, the trial court entered a judgment order finding defendant liable to the plaintiffs for overtime compensation for their attendance at patrol division roll call. Defendant appeals, contending that: (1) the doctrine of laches and waiver preclude plaintiffs from claiming entitlement to overtime compensation for roll call; (2) there was no prior appropriation of monies to pay overtime for roll call; (3) there was no contract between the police officers and the village during the relevant time period; (4) plaintiffs did not work in excess of eight hours because meal time was not included as work time; (5) the trial court erred by not granting summary judgment against Kenneth Osterman because Osterman released the village from any and all claims arising from his employment; and (6) the court erred by not granting summary judgment against plaintiffs because plaintiffs refiled their claim on more than one occasion, in violation of section 13-217 of the Illinois Code of Civil Procedure. 735 ILCS 5/13-217 (West 1992).
In 1971, police department general order 71-10, entitled "Reporting Time for All Roll Calls," was implemented and stated:
"1. All members of this command shall report for duty 15 minutes prior to starting time. Example: 1st Watch shall report at 23.45 hours, 2nd Watch shall report at 15.45 hours and 3rd Watch shall report at 0745 hours. All Watch Commanders shall conduct a 15-minute roll call and all personnel report to 'his or her' assignments on the hour.
2. Watch commanders shall set an example by reporting at the prescribed time."
In 1974, the Village of Bridgeview passed an ordinance that included a provision that police officer employees of the village would be entitled to overtime pay for hours worked beyond the eight-hour day. The ordinance further provided that such work must be approved by the department head. In September 1975, the ordinance was amended to provide:
"Any duties required by the head of any department or any member of that department to be performed in off-duty periods shall be classified as overtime work and shall be compensated for in the manner above prescribed."
Stanley Sarbarneck was chief of police for Bridgeview from 1971 until 1983. At that time, most of the police officer employees were "part time" employees. Chief Sarbarneck testified that the officers were required to be present for roll call. Roll call was used for training, reports, duty assignments, and bulletins as to things to watch during the tour of duty.
After the roll call was completed, the tour of duty of the officers consisted of eight hours. There were no written directives authorizing compensation or time off for missed or interrupted meal periods. Officer Kenneth Osterman testified that meal periods were interrupted more frequently than not. He was never informed of the existence of any procedure for obtaining compensation or additional time because of a missed or interrupted meal period.
Chief Sarbarneck testified he participated in the preparation of the police department budgets during his tenure. Each year the budgets included money for payment of overtime. There were no separate line items for overtime. Sarbarneck could not recall the numbers that were in the budgets, stating he would only be "guessing or lying" if he were to state what those numbers might have been.
Plaintiffs were hired at varying dates from 1965 to 1982. In October 1983, after the retirement of Chief Sarbarneck, Kenneth Osterman became the chief of police for Bridgeview, a position he held until January 1987. Prior to that time, he was assigned as a lieutenant in investigations. Shortly after the first claim for roll call compensation was filed, then-Lieutenant Osterman attended a mandatory supervisors meeting held by Chief Sarbarneck. Chief Sarbarneck instructed the supervisors that no requests for overtime for roll call were to be taken by the supervisors and that they were to instruct the officers not to include the roll call as an activity on their daily activity sheets. Osterman believed this occurred in August 1982. The officers were so instructed by the supervisors.
Chief Osterman testified that from 1983 through 1987 he prepared the police budgets. Those budgets generally made "educated guesses" on overtime needs. It was commonplace to expend moneys as needed, regardless of whether there were funds in the particular line item.
Vladomir Ivkovich became chief after this litigation had been pending for approximately six months. By the time the case was tried, both the ranking officers and patrol officers had reached agreements with the village concerning their duty day. Chief Ivkovich stated that the 1988 agreement provided that the tour of duty consisted of 8.25 hours, including the roll call. If a police officer or sergeant worked an extra day, he or she would be credited with 8.25 hours. If a police officer took off a day, 8.25 hours would be deducted form his or her "time due." The 8.25 hours currently include the roll calls and meal periods.
Chief Ivkovich testified that at some time either before or after the 8.25-hour agreements were in effect, he prepared some budgets for the department. In preparing such budgets, he never determined how much money would or would not have been needed to pay for roll call overtime.
In 1982, certain police officers filed a complaint against Chief Sarbarneck and the village in state court. The village filed a verified petition seeking and obtaining removal to the federal court on the basis that the complaint raised a federal question. The village then moved to dismiss the complaint for failure to state a claim. Judge Bernard Decker granted the motion as to count II with prejudice for want of prosecution and failure to state a claim upon which relief can be granted. Count I was dismissed without prejudice because count I was based on state law. Some months later, counsel filed an identical complaint in the state court. The complaint was again removed by the village and assigned to Judge Decker. The village again sought to dismiss the case and it was again dismissed without prejudice.
In 1993, the village moved for summary judgment on the basis that the prior filing barred the present one. Plaintiffs opposed the motion and, after a full hearing, the trial court denied the motion. In 1993, defendant also moved for partial summary judgment, asserting that a "release" signed by one plaintiff, Kenneth Osterman, in 1989 precluded that plaintiff from asserting his ...