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Ertl v. City of De Kalb

March 18, 1999

RUSSELL J. ERTL, PLAINTIFF-APPELLANT,
v.
THE CITY OF DE KALB, THE BOARD OF FIRE AND POLICE COMMISSIONERS, AND PETER S. POLAREK, FIRE CHIEF FOR THE DE KALB FIRE DEPARTMENT, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of De Kalb County. No. 97--MR--13 Honorable John W. Countryman, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

Plaintiff, Russell Ertl, appeals from the trial court's judgment dismissing count I (breach of contract) of his complaint and awarding him damages on count III (violation of the rules and regulations of the Board of Fire and Police Commissioners). Plaintiff asserts that the trial court (1) erred in finding that the collective bargaining agreement did not prevent plaintiff from being fired without cause; and (2) awarded insufficient damages on count III. We reverse and remand.

On October 10, 1995, defendant Board of Fire and Police Commissioners (Board) hired plaintiff as a firefighter for defendant City of De Kalb (City). Defendant Peter Polarek is the chief of the City's fire department. On April 17, 1996, plaintiff was arrested and charged with unlawful use of weapons (720 ILCS 5/24--1(a)(4) (West 1996)) and disorderly conduct (720 ILCS 5/26--1(a)(1) (West 1996)). See People v. Ertl, 292 Ill. App. 3d 863 (1997). On April 19, the City terminated plaintiff's employment without explanation. On May 9, Polarek notified the Board of plaintiff's firing, explaining that plaintiff had been arrested for violating state laws and that the day after his arrest he failed to report for duty at his assigned time. The Board refused to conduct a hearing or grant plaintiff any relief.

Subsequently, plaintiff filed a three-count complaint. Count I alleges that the City had breached its contract with plaintiff, count II alleges a statutory violation (see 65 ILCS 5/10--2.1--17 (West 1996)), and count III alleges that the Board had violated its rules and regulations. Pursuant to section 2--619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1996)), the trial court dismissed counts I and II. Following a stipulation of facts, the trial court awarded plaintiff $1,928.31 in back pay. Plaintiff filed a timely notice of appeal. Although plaintiff's notice of appeal states that he is appealing the dismissal of counts I and II and the damage award for count III, on appeal, he does not challenge the trial court's dismissal of count II. Thus, we do not review the propriety of that dismissal.

Before a governmental agency deprives an individual of liberty or property, it "must provide that individual with the procedural due process guaranteed by the fourteenth amendment." Faustrum v. Board of Fire & Police Commissioners, 240 Ill. App. 3d 947, 948 (1993). A person has a property interest in his job if he "has a legitimate expectation of continued employment." Faustrum, 240 Ill. App. 3d at 949. To show that he has a legitimate expectation of continued employment, a plaintiff "must point to a specific ordinance, State law, contract or understanding limiting the ability of the Board to discharge him." Faustrum, 240 Ill. App. 3d at 949. Section 10--2.1--17 of the Illinois Municipal Code (65 ILCS 5/10--2.1--17 (West 1996)) provides firefighters with a property interest in their jobs. However, section 10--2.1--17 does not apply to probationary employees. Romanik v. Board of Fire & Police Commissioners, 61 Ill. 2d 422, 425 (1975). Plaintiff admits that he was a probationary employee. Therefore, section 10--2.1- -17 accords him no relief. However, a municipality may afford greater protection to probationary employees than is found in section 10--2.1-- 17. Faustrum, 240 Ill. App. 3d at 949. Plaintiff claims that the collective bargaining agreement establishes the greater protections and provides him with a property interest in his job.

Plaintiff relies upon articles IV and XXXI of the collective bargaining agreement. Article IV provides, in pertinent part:

"All new employees of the Fire Department except the Fire Chief and Assistant Fire Chief shall serve a probationary period of fifteen (15) months and shall have no seniority rights under this agreement and may be terminated by the Fire Department without recourse to the grievance procedure, but shall be subject to all other provisions of this agreement." (Emphasis added.)

Article XXXI governs discipline and provides, in pertinent part, that "[t]he Employer agrees that employees may be disciplined and discharged only for cause."

Plaintiff argues that the plain language of article IV provides that, with the exception of the grievance procedures, all provisions of the agreement apply to probationary employees. The grievance procedures are found in article XXII and are wholly different from the discipline procedures found in article XXXI. Therefore, plaintiff concludes, the trial court erred in concluding that plaintiff lacked a legitimate expectation of continued employment and in dismissing plaintiff's breach of contract claim.

Defendants argue that, because article XXXI neither specifically includes nor excludes probationary officers, probationary officers have no legitimate expectation of continued employment. Defendants also assert that, because article XXXI specifically adopts section 10--2.1-- 17 and because 10--2.1--17 does not apply to probationary employees, the disciplinary procedures found in article XXXI do not apply.

Because the trial court dismissed plaintiff's claim pursuant to section 2--619, we review the court's judgment de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). To determine if plaintiff has a cause of action, we must interpret the language of the collective bargaining agreement. When interpreting a contract, we must interpret it in accordance with the plain and obvious meaning of the words used. USG Interiors, Inc. v. Commercial & Architectural Products, Inc., 241 Ill. App. 3d 944, 948 (1993).

Here, at best, the plain and obvious meaning of article IV is that, except for the grievance procedures, all of the provisions in the collective bargaining agreement apply to probationary employees. At worst, the grievance procedures preclusion only applies to issues regarding seniority. This Conclusion is further supported by the fact that article XXXI specifically states that the disciplinary procedures apply to "employees." The collective bargaining agreement defines employees as "[a]ll active full time employees of the Fire Department who hold certificates of appointment by the Board of Fire and Police Commissioners ***." Plaintiff asserts that he was an active full-time employee who held a certificate of appointment. Therefore, the plain language of the collective bargaining agreement clearly demonstrates that the disciplinary procedures in article XXXI apply to plaintiff.

Defendants contend that, because article XXXI neither specifically includes nor excludes probationary officers, probationary officers are not included. Defendant's argument is wrong for two reasons. First, article XXXI states that it applies to "employees." The parties have specifically agreed that the term "employees" includes "[a]ll active full time employees *** who hold certificates of appointment ***." (Emphasis added). By choosing to define the operative term and defining it in such a way that all employees are included, the parties must abide by their definition of the term employee. According to the contract between the parties, if plaintiff is an active full-time employee and if he holds a certificate of appointment, then he is an employee. If he is an employee, then the disciplinary procedures in article XXXI apply to him.

Second, article IV, which relates solely to probationary employees, specifically states that all provisions in the contract, except the grievance procedures, apply to probationary employees. Given these provisions, we fail to understand how defendants can assert that the collective bargaining agreement does ...


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