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Zander v. Carlson

Court of Appeals of Illinois, First District, Fourth Division

November 21, 2019

Russell ZANDER, Plaintiff-Appellant,
v.
Roy CARLSON and The Illinois Fraternal Order of Police Labor Council, Defendants-Appellees.

         Rehearing denied December 18, 2019.

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          Appeal from the Circuit Court of Cook County, No. 17-L-63098; the Hon. Martin S. Agran, Judge, presiding.

          Thomas W. Gooch III and Sabina D. Walczyk, of The Gooch Firm, of Wauconda, for appellant.

          Brendan J. Nelligan and Matthew J. Egan, of Pretzel & Stouffer, Chtrd., of Chicago, for appellees.

         OPINION

         LAMPKIN, JUSTICE.

         ¶ 1 When the Village of Fox Lake (Village) sought to terminate Russell Zander's employment as a police officer, Zander waived his right to a hearing before the local police board and opted instead to challenge his dismissal through the arbitration process outlined in the collective bargaining agreement between the Village and his union, the Illinois Fraternal Order of Police Labor Council (FOP). He pursued this course on the advice of Roy Carlson, an FOP staff attorney who later represented him at the arbitration hearing. After the arbitrator ruled against him, Zander sued Carlson and the FOP for legal malpractice. In dismissing the complaint, the circuit court held that Carlson was immune from personal liability for actions taken on behalf of a union in the collective bargaining process and that Zander's claim against the FOP must be brought before the Illinois Labor Relations Board, which has exclusive jurisdiction over claims that a union has violated its duty to fairly represent its members. For the reasons that follow, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 We draw the following facts from Zander's complaint. In December 2014, the Village's police chief placed Zander on administrative leave based on allegations of misconduct. Sometime thereafter, the police chief filed formal charges recommending Zander's termination. In response to Zander's request for legal representation, the FOP assigned Carlson to represent him. Carlson is a licensed attorney and FOP employee who represents FOP members in grievance and termination proceedings. Zander did not pay Carlson (other than indirectly through his union dues), and the two did not sign a retainer agreement. According to Zander, the FOP forced him to accept Carlson's representation and gave him no input in the selection. Zander alleges that he formed an attorney-client relationship with Carlson through acquiescence.

         ¶ 4 Under the Illinois Municipal Code, a police officer facing discharge is entitled to a hearing before the local Board of Fire and Police Commissioners (police board), unless a collective bargaining agreement between the municipality and the officer's union provides for arbitration of such disputes. See 65 ILCS 5/10-2.1-17 (West 2018). The collective bargaining agreement between the ...


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