Bess v. Daniel

• Decision Date: 07 September 1976
• Docket Number: Nos. 61538,76--606,s. 61538
• Parties: Georgia BESS et al., Plaintiffs-Appellees, v. David DANIEL, Director, Cook County Department of Public Aid, et. al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 556

355 N.E.2d 556

42 Ill.App.3d 401

Georgia BESS et al., Plaintiffs-Appellees, v. David DANIEL, Director, Cook County Department of Public Aid, et. al., Defendants-Appellants.

Nos. 61538, 76--606.

Appellate Court of Illinois, First District, Second Division.

Sept. 7, 1976.

Rehearing Denied Oct. 29, 1976.

Bernard Carey, State's Atty. of Cook County, for defendants-appellants; Paul B. Biebel, Jr., Fredric B. Weinstein, Chicago, of counsel.

Charles Barnhill, Judson H. Miner, Chicago, for plaintiffs-appellees; Davis, Miner & Barnhill, Chicago, of counsel.

STAMOS, Presiding Justice:

Plaintiffs, Georgia Bess, Hattie Payne, Marie Johnson, and Larvell Lemons, individually and on behalf of all others similarly situated, commenced this action against defendants, David Daniel, Director of the Cook County Department of Public Aid; Nolan Jones, Director of the State Department of Personnel; and Joel Edelman, Director of the Illinois Department of Public Aid. Plaintiffs sought compensation for overtime they had worked between September 12, 1968 and December 31, 1971, but for which they had not been adequately paid. After a trial without a jury, plaintiffs were found to be employees of Cook County, and Cook County was ordered to pay each member of the class a certain additional amount for the overtime each had worked. Defendant Daniel, Director of the Cook County Department of Public Aid (County), appeals from that judgment order. Plaintiffs have cross-appealed.

In its original brief, the County raised two issues for our review: (1) whether, prior to January 1, 1974, plaintiffs were employees of the State of Illinois or of Cook County; and (2) whether the State rather than the County is ultimately liable for compensating plaintiffs regardless of which entity is the actual employer. In its reply brief, the County presents three additional arguments why plaintiffs' claim for damages against the County cannot be sustained. In their cross-appeal, plaintiffs raise a single issue for our review: whether the trial court's award of damages was inadequate. A summary of the relevant facts follows:

Plaintiffs were employed as 'Homemakers.' As homemakers, plaintiffs' duties entailed caring for persons on public aid, primarily children and the elderly, who were unable to care for themselves. During their assignments, plaintiffs were required to live in the homes of the public aid recipients. Because of the nature of their employment, an assignment to a particular recipient could be for a 24-hour period. In fact, a homemaker could be assigned to a particular home for up to 14 days, during which she was considered on duty 24 hours a day.

For this work, homemakers were paid as follows: each homemaker was assigned a monthly wage rate which was then broken down into a daily rate. This daily rate was what a homemaker was paid for the first eight hours of each day she worked. On 24-hour assignment, a homemaker was paid for the additional 16 hours an amount equal to 15% Of her daily rate. To illustrate: the average homemaker earned approximately $25.00 for an eight-hour day. If she worked an additional 16 hours, she earned an additional $3.75, or approximately 23 cents for each of the additional 16 hours.

Defendant Daniel, the Director of the Cook County Department of Public Aid, testified that in his opinion the average homemaker on 24-hour assignment worked 16 hours and slept 8 hours. In an earlier internal memo, Daniel had also opined that homemakers should be paid for 16 hours. He had previously reviewed a recommendation of a grievance panel considering a homemaker's complaint regarding her overtime pay, and, at that time, had agreed that the compensation was unfair and inadequate. At trial, he again stated that a 15% Increase (based on her 8-hour daily rate) for an additional 16 hours of work was inadequate.

At the conclusion of all the evidence, the trial judge found that homemakers were employees of Cook County and ordered the County to pay plaintiffs straight salary for 12 hours for each 24 hour day they had worked between September 12, 1968, and December 31, 1971.

In its original brief, the County first argued that the trial judge erred in finding that plaintiffs were employees of Cook County between September 12, 1968, and December 31, 1971. The County argued that prior to January 1, 1974, the Cook County Department of Public Aid was merely an administrative agent for the State of Illinois, and therefore, plaintiffs were employees of the State rather than of the County.

However, subsequent to the filing of the County's brief, the Illinois Supreme Court decided Merrill v. Drazek, 62 Ill.2d 1, 338 N.E.2d 164. In Merrill, the court was presented with the same issue presented here; the court was asked to determine the status of employees of the Cook County Department of Public Aid prior to January 1, 1974. After an examination of all the relevant statutory provisions, the court concluded:

. . . although prior to January 1, 1974, the (Cook) County Department (of Public Aid) served as agent of the Illinois Department in the administration of its programs . . ., the clearly expressed legislative intent was that its employees be employees of Cook County. (62 Ill.2d at 7, 338 N.E.2d at 167.)

The County now properly concedes that it can no longer be disputed that plaintiffs were employees of Cook County prior to January 1, 1974. We agree, and based on Merrill, conclude that the trial judge did not err in finding that plaintiffs were employees of Cook County.

The County's second argument is that, even though plaintiffs were employees of the County, the court erred in ordering the County to compensate plaintiffs since the State is ultimately liable to bear the financial burden. The County contends that sections 12--5 and 12--18.4 of the Public Aid Code (Ill.Rev.Stat.1971, ch. 23, pars. 12--5 and 12--18.4) require the State to reimburse the County for all expenses of the Cook County Department of Public Aid, and thus, the State must ultimately bear the burden of compensating plaintiffs.

We find it unnecessary to determine whether the provisions of the Public Aid Code require the State to reimburse the County for 'all expenses' of the County Department of Public Aid, or even to determine whether the State is ultimately liable for the salaries of the instant plaintiffs. Such an issue was not presented to the trial judge and was specifically not decided by the trial judge.

Plaintiffs sought relief against either the County or the State, whichever entity was found to be their employer. Whether the ultimate employer would have some recourse against another entity was of no concern to plaintiffs and consequently, was not presented by plaintiffs' complaint.

That this was the posture of the case is clearly shown by comments of the trial judge both during the trial and during closing argument. During the trial, the trial judge commented:

. . . it seems to me that it's quite obvious from the evidence that this is a matter that involves the County and not the State of Illinois even though the County is being reimbursed for payroll. . . . I don't think the State is involved in this respect. If I should hold that the County owes these people a certain amount of additional money whether the County can then proceed against the State for additional reimbursement is a matter that could arise but that would not be a matter that's involved in this lawsuit.

Later, during closing argument, the trial judge again stated:

I have stated in the beginning of the hearing, I'll repeat it here again: I'm not conducting this hearing in connection with any possible liability that the State of Illinois may have. This suit is proceeding on the basis of a claim against the County, not against the State.

Whether the County, if I should make an allowance of the overtime pay, is allowed a reimbursement of the State, is a matter that is not before me, and may have to be adjudicated in the Court of Claims. But that's between the County and the State.

The trial judge's final order reflected this attitude. While it held the County liable to plaintiffs, it did not adjudicate any liability as between the County and the State.

This court will not consider an issue which the trial court did not consider. It is well settled that we do not have the authority to consider a matter not passed on by the trial judge (Trisko v. Vignola Furniture Co., 12 Ill.App.3d 1030, 299 N.E.2d 421; Murphy v. Kumler, 344 Ill.App. 287, 100 N.E.2d 660), or which the trial judge refused to consider. (Board of Education of Chicago v. Chicago Teachers Union, 26 Ill.App.3d 806, 326 N.E.2d 158.) It is apparent that the trial judge's final order adjudicated only the liability of plaintiffs and the County. Any additional issues are not properly before us. Edelman v. Lee Optical Co., Inc., 24 Ill.App.3d 216, 320 N.E.2d 517.

We note that the County does not question the trial judge's refusal to adjudicate liability between it and the State. For it is clear from an examination of the pleadings that that issue was not presented by any of the parties. That is an issue that is exclusively a matter for resolution between the County and the State and is of no concern to plaintiffs. Our decision does not, in any way, foreclose the County from...