Appeal from Circuit Court of Woodford County No. 98MR25 Honorable John B. Huschen, Judge Presiding.
The opinion of the court was delivered by: Justice Garman
On December 18, 1998, plaintiff, Greg Hampton, filed a two-count complaint against the Village of Washburn (Village) and the mayor and trustees of the board of the Village (collectively, defendants) seeking relief under the Administrative Review Law (735 ILCS 5/3-101 through 3-113 (West 1998)) (count I) and Title 42, sections 1983 and 1988, of the United States Code (sections 1983 and 1988) (42 U.S.C. §§1983, 1988 (1994)) (count II) for his suspension from the Village police force. Defendants filed a motion to dismiss plaintiff's complaint in its entirety. On May 28, 1999, the court dismissed count I and various portions of count II and granted plaintiff leave to file an amended complaint (count III). After plaintiff filed an amended complaint, the court dismissed it pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 1998)) and granted plaintiff leave to file another amended complaint, count III.
On November 9, 1999, plaintiff filed his second-amended count III pursuant to the Uniform Peace Officers' Disciplinary Act (Disciplinary Act) (50 ILCS 725/1 through 4 (West 1998)), the Right to Privacy in the Workplace Act (Privacy Act) (820 ILCS 55/1 through 20 (West 1998)), and sections 1983 and 1988. Defendants filed a motion to dismiss plaintiff's second-amended complaint, count III, pursuant to section 2-615 of the Code and a motion for sanctions. On January 31, 2000, the court denied the motion for sanctions but granted the motion to dismiss on four grounds: (1) plaintiff does not have a protectible property interest under section 1983 because the Disciplinary Act only grants procedural and not substantive rights; (2) the complaint fails to allege a right under the Disciplinary Act; (3) the Disciplinary Act does not grant plaintiff the right to seek administrative review through the circuit court; and (4) plaintiff may not seek relief in the circuit court for a violation of the Privacy Act without first filing a complaint with the Illinois Department of Labor (Department). Thereupon, plaintiff moved for a special finding pursuant to Illinois Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) solely on the issue of whether he is required by the Privacy Act to file an investigatory complaint with the Department prior to proceeding with an action in the circuit court. The circuit court entered a Rule 304(a) finding as to this narrow issue. We affirm the circuit court's ruling.
Plaintiff is employed by the Village as a full-time police officer. On July 25, 1998, while off duty, plaintiff attended a party out of the jurisdiction of the Village, at which minors were present and consuming alcohol. Two days later, plaintiff voluntarily informed Police Chief Ron Renken of his participation in the social event, whereupon Renken issued a written reprimand and counseling session.
Subsequently, Kevin Berta, a minor who attended the party, filed a complaint with the Village alleging that plaintiff encouraged him to consume alcohol that evening. On October 19, 1999, defendants conducted an administrative hearing on the matter pursuant to the Disciplinary Act. 50 ILCS 725/1 et seq. (West 1998). Plaintiff testified that he observed approximately 15 to 20 minors at the party when he first arrived, but he was not aware if they were drinking at that time. Plaintiff consumed six or seven beers that evening. When he realized that underage drinking was taking place, he left the party as soon as possible. Plaintiff denied encouraging Berta to consume alcohol but did state that he spoke to Berta at one point during the evening.
Following the hearing, the Village Board voted to suspend plaintiff for two weeks without pay, and it placed him on probation for 90 days. Plaintiff commenced this action on December 18, 1998. Subsequently, in April 1999, plaintiff applied for a position as chief of police of the Village but was not hired. As stated above, plaintiff filed his amended complaint, count III, on November 9, 1998, pursuant to the Privacy Act, the Disciplinary Act, and Title 42, sections 1983 and 1988, of the United States Code. Specifically, plaintiff alleged that (1) defendants retaliated against him by denying him the chief of police position in violation of section 7 of the Disciplinary Act (50 ILCS 725/7 (West 1998)) because of his participation as a witness at the administrative hearing wherein he testified that he consumed alcoholic beverages at the July 25, 1998, party; and (2) that his statements were used by defendants in violation of section 5(a) of the Privacy Act (820 ILCS 55/5(a) (West 1998)), which prohibits an employer from disadvantaging an employee in the terms and conditions of his employment as a result of the lawful use of products off the premises of the employer during non-working hours. Plaintiff's complaint seeks (1) an order reversing and remanding the Village board's decision in refusing to hire him for the chief of police position with directions that the Village hire him in that position with full back pay; (2) an order removing the disciplinary action from his file with full back pay; (3) compensatory damages; and (4) attorney fees and costs pursuant to section 1988.
The court granted defendants' section 2-615 motion to dismiss the second-amended complaint, count III, in its entirety. We review only the narrow issue of whether plaintiff is required by the Privacy Act to file an investigatory complaint with the Department prior to proceeding with an action in the circuit court.
Plaintiff argues on appeal that the Privacy Act does not require him to first file a complaint with the Department. In deciding upon a section 2-615 motion to dismiss, we must determine whether the allegations of the complaint, when considered in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Board of Directors of Bloomfield Club Recreation Ass'n v. Hoffman Group, Inc., 186 Ill. 2d 419, 424, 712 N.E.2d 330, 333 (1999). A court reviewing a section 2-615 motion to dismiss must apply the de novo standard of review. Board of Directors, 186 Ill. 2d at 424, 712 N.E.2d at 333.
To determine whether the Privacy Act requires plaintiff to first file an investigatory complaint with the Department, we begin with the language of the Act. The fundamental rule of statutory construction is to give effect to the intent of the legislature. People v. Selby, 298 Ill. App. 3d 605, 612, 698 N.E.2d 1102, 1107 (1998). This intent should be determined primarily by examining the plain and ordinary meaning of the statutory language. Lucas v. Lakin, 175 Ill. 2d 166, 171, 676 N.E.2d 637, 640 (1997). When the meaning of the statute is unclear from the language, we may look beyond the language and consider the purpose of the law, the evils the law was designed to remedy, and the legislative history of the statute. In re B.C., 176 Ill. 2d 536, 542-43, 680 N.E.2d 1355, 1359 (1997).
The relevant portions of the Privacy Act are as follows:
"(a) The Director of Labor or his authorized representative shall administer and enforce the provisions of this Act. ***
(b) If an employee or applicant for employment alleges that he or she has been denied his or her rights under this Act, he or she may file a complaint with the Department of Labor. *** The Department shall attempt to resolve the complaint by conference, conciliation, or persuasion. If the complaint is not so resolved and the Department finds the employer or prospective employer has violated the Act, ...