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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.

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

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

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

          JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Burke concurred in the judgment and opinion.

          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 Village and the FOP provides that an officer may elect to challenge his discharge either before the police board or through the agreement's ordinary grievance- arbitration procedure. On Carlson's advice, Zander elected to proceed via arbitration. After a two-day hearing, the arbitrator upheld the decision to terminate Zander's employment.

         ¶ 5 Zander then filed a two-count complaint against Carlson and the FOP. Count I alleged that Carlson owed Zander a duty of care arising from their attorney-client relationship and that Carlson breached that duty by negligently advising Zander to waive his right to a hearing before the police board and by inadequately representing him at the arbitration hearing. Count II alleged that the FOP assumed its own duty of care to Zander by providing him with legal representation and that it breached that duty by assigning him an inexperienced and incompetent lawyer. Alternatively, count II alleged that the FOP was vicariously liable for Carlson's negligence.

         ¶ 6 Carlson and the FOP moved to dismiss the complaint. Citing Atkinson v. Sinclair Refining Co., 370 U.S. 238 (1962), they argued that Zander's claim against Carlson should be dismissed pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2018)) because a union agent is immune from personal liability for actions taken on the union's behalf in the collective bargaining process. And they argued that Zander's claim against the FOP should be dismissed under section 2-619(a)(1) of the Code (735 ILCS 5/2-619(a)(1) (West 2018)) because the Illinois Labor Relations Board (Board) has exclusive jurisdiction over claims that a union violated its duty to fairly represent its members.

         ¶ 7 In response, Zander argued that Carlson was not entitled to immunity under Atkinson because the arbitration proceeding challenging his termination was unrelated to the collective bargaining process and because Carlson acted on his (rather than the union's) behalf due to their attorney-client relationship. Zander argued, alternatively, that he should be able to sue Carlson for malpractice as a third-party beneficiary of the FOP's attorney-client relationship with Carlson. Finally, Zander argued that his claim against the FOP did not fall within the Board's exclusive jurisdiction because it was not based on the duty of fair representation but instead sought to hold the FOP vicariously liable for Carlson's malpractice.

         ¶ 8 The circuit court dismissed the complaint, holding that Carlson was immune from suit under Atkinson and that Zander's claim against the FOP fell within the Board's exclusive jurisdiction. In a motion to reconsider, Zander argued that Carlson should be subject to liability to the extent of his malpractice insurance coverage. The circuit court denied the ...


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