United States District Court, N.D. Illinois, Eastern Division
MICHAEL L. SHAKMAN, et. at. Plaintiffs,
DEMOCRATIC ORGANIZATION OF COOK COUNTY, THE CITY OF CHICAGO, RICHARD M. DALEY, INDIVIDUALLY AND AS MAYOR OF THE CITY OF CHICAGO, REPUBLICAN STATE CENTRAL COMMITTEE OF ILLINOIS, REPUBLICAN COUNTY CENTRAL COMMITTEE OF COOK COUNTY, et. at, Defendants.
MEMORANDUM OPINION AND ORDER
I. CHENKIER United States Magistrate Judge
have moved for an order expanding the authority and
responsibilities of the Special Master we appointed on
November 18, 2014 (doc. # 4676: PI. Motion to Expand)). This
Court originally appointed the Special Master for the purpose
of investigating and making recommendations with respect to
the Illinois Department of Transportation's
("IDOT") compliance with a 1972 decree that
enjoined then-Governor Richard B. Ogilvie, individually and
as Governor of the State of Illinois as well as his
successors in office, and other defendants from
"conditioning, basing or knowingly prejudicing or
affecting any term or aspect of governmental employment, with
respect to one who is at the time already a governmental
employee, upon or because of any political factor or
reason" (doc. # 4020: Order Appointing Special Master
("Special Master Order")).
1972 decree specifically vested in the Court the jurisdiction
to address "the question of which governmental positions
under [the Governor's] jurisdiction ... are exempt"
(1972 decree, ¶ H(1)(a)). Exempt positions are those for
which an employer may take into account political
considerations when deciding whom to hire, promote, or
transfer to fill those positions. See Brand v.
Finkel, 445 U.S. 507, 518 (1980), Rutcm v.
Republican Party of Illinois, 497 U.S. 62, 78 (1990)
(holding that, to correctly classify a job as exempt, the
hiring authority must be able to demonstrate that party
affiliation is an appropriate requirement for effective
performance of the office). The genesis of the Special Master
Order was the pervasive misuse by IDOT of a position labeled
as exempt - that of Staff Assistant - by hiring people into
that position and then having them perform non-exempt work.
As a result, we empowered the Special Master, among other
things, to address "whether positions in IDOT labeled as
exempt were properly exempt under applicable legal
principles" (Special Master Order, ¶ 3(iv)).
their motion, plaintiffs ask that we now expand the Special
Master Order to encompass not only a review of positions at
IDOT which have been designated exempt, but also the
positions labeled as exempt at all of the agencies, boards,
commissions, or other instrumentalities of under the
jurisdiction of the Office of the Governor of Illinois
("Governor"), other than an agency under the
jurisdiction of the Attorney General, Secretary of State, or
Comptroller, and other than the State Board of Election. The
Governor filed a response to the motion (doc. # 4725), and
plaintiffs filed a reply (doc. # 4747). For the following
reasons, we grant plaintiffs motion.
past two years, the Special Master has worked diligently with
IDOT to fulfill her duties under the Special Master Order by,
among other things, investigating the reasons that violations
of the 1972 Decree occurred at IDOT; identifying positions
improperly designated as exempt and recommending procedures
for eliminating or reclassifying such positions; working to
create a comprehensive list of properly exempt positions at
IDOT; and making other recommendations about how to prevent
similar violations from recurring in the future. The Special
Master's investigation persuades us that the careful
review of exempt positions she is overseeing at IDOT should
take place at the other agencies under the Governor as well.
The structural and procedural weaknesses that led to the
ability to manipulate exempt positions at IDOT are not unique
to IDOT; indeed, the Special Master's work has revealed
that part of the problem at IDOT resulted from a lack of
effective oversight policies at the Department of Central
Management Services ("CMS"), which has authority to
approve exempt job designations statewide. A review of the
exempt positions at the other agencies will allow the Court
to ensure the requirements of the 1972 decree (and the
constitution) are met by ensuring that only positions that
truly qualify for exempt status receive that label, and that
robust processes are in place to ensure that remains the
response, the Governor does not suggest that a review of
exempt positions in other agencies is unwarranted. Rather,
the Governor puts forward two reasons to deny plaintiffs'
request. First, defendants say it is unnecessary
(or, at the least, premature) for the Special Master to get
involved, because these other agencies will be able to
effectively conduct this review without the assistance of the
Special Master. Defendants propose that the task of
investigating compliance with the 1972 decree across all
state agencies instead be handled by the newly created Hiring
and Employment Monitoring ("HEM") unit of the
Office of the Executive Inspector General ("OEIG").
Indeed, Defendants contend that HEM staff began reviewing
files and monitoring hiring sequences in May 2016, and has
also begun reviewing the exempt determination process.
Second, the Governor says that expanding the Special
Master's role at this time will unduly burden the already
overextended financial resources of the state (Governor's
Response to PL's Motion, at 1).
not doubt the Governor's desire to comply with the 1972
decree across all Illinois agencies. And we are sympathetic
to the State's financial difficulties; it is not our
intent to unnecessarily add to that burden. That said,
financial difficulties cannot dissuade the Court from
imposing the requirements it deems necessary to ensure the
agencies are complying with the decree. Moreover, in our
judgment, involving the Special Master in the endeavor from
the outset will better promote effectiveness of the review,
and will cost the State less money in the long run.
confident in the ability of the Special Master to provide the
most effective and efficient means to oversee this review -
and with good reason. Her breadth and depth of experience
stem not only from her nearly two years working with IDOT
under the Special Master Order, but also from the nine years
before that overseeing - and successfully shepherding - the
City of Chicago through a far more complex process that
resulted in the Shakman decree being terminated as
to the City. This experience makes the Special Master
uniquely qualified to quickly and effectively understand,
identify and facilitate the correction of any misuse of the
exempt position designation.
fact, the Special Master has been instrumental in identifying
and beginning remediation of a number of problems with
consent decree compliance at IDOT (see, doc. # 4631:
4th Special Master Report at 5). We are confident
these problems would not have been uncovered without the work
of the Special Master. We are equally confident that the
process of identifying and correcting any similar issues at
the other agencies will be best completed under the guidance
of the Special Master. She has developed detailed knowledge
about the way that exempt and non-exempt hiring and
job-classification has been undertaken in Illinois, as well
as an on-the-ground understanding of what types of problems
may exist with respect to compliance with the 1972 decree
across the State.
not intend our expression of confidence in the Special Master
as a criticism of the HEM unit. To the contrary, we applaud
the creation of that unit, which is evidence of the
Governor's desire to correct the problems that led to the
Special Master Order. And, we understand from the Special
Master that the unit has been assisting with her work at IDOT
and has performed admirably in that role. But, we are not
convinced that the newly-created HEM unit currently possesses
the experience or expertise to take on the investigation and
review of exempt positions - and the process for determining
which positions are exempt - for the entire state of Illinois
without the active involvement of the Special Master.
the HEM unit to handle that task "flying solo"
would create the unacceptable risk that the unit would miss
critical issues as it climbs the analytical learning curve,
or make improvident decisions that could require costly
unraveling later. Better to conduct the review under the
direction of the Special Master now, with the Special Master
determining how best to use all available resource. This will
best avoid the risk of legal challenges, delay and increased
expenditures in the future.
is not only the HEM unit that will benefit from the Special
Master's experience. As defendants point out, the task of
reviewing all exempt positions requires the involvement of
CMS, which has already begun reviewing and re-designating
positions as Rutan-exempt or not, across state all
state agencies. The Special Master was instrumental in
helping identify and remedy some of CMS' shortcomings
with respect to properly categorizing exempt positions at
IDOT, and we expect that her expertise ...