Grassini v. DuPage Tp.

• Decision Date: 07 May 1996
• Docket Number: No. 3-95-0616,3-95-0616
• Citation: 279 Ill.App.3d 614,665 N.E.2d 860,216 Ill.Dec. 602
• Parties: , 216 Ill.Dec. 602 Barbara GRASSINI, Plaintiff-Appellant, v. DuPAGE TOWNSHIP, a municipal corporation, Margaret Danhoff, Township Supervisor, Ann Dralle, Trustee, Paul Drdak, Trustee, Jeff Mertz, Trustee, Felix George, Trustee and Judith Bredeweg, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 860

665 N.E.2d 860

279 Ill.App.3d 614, 216 Ill.Dec. 602

Barbara GRASSINI, Plaintiff-Appellant, v. DuPAGE TOWNSHIP, a municipal corporation, Margaret Danhoff,

Township Supervisor, Ann Dralle, Trustee, Paul Drdak,

Trustee, Jeff Mertz, Trustee, Felix George, Trustee and

Judith Bredeweg, Defendants-Appellees.

No. 3-95-0616.

Appellate Court of Illinois,

Third District.

May 7, 1996.

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, No. 93 CH 7832; Honorable Patrick M. Burns, Judge, Presiding.

Theodore J. Bednarak (argued), Troha, Troha & Bednarek, Ltd., Joliet, for plaintiff-appellant.

Pamela Davis Gorcowski (argued), Richard J. Kavanagh, Rooks, Pitts & Poust, Joliet, for defendants-appellees.

Presiding Justice BRESLIN delivered the opinion of the court:

The plaintiff, Barbara Grassini, brought suit against DuPage Township and several of its officials after they terminated her employment with the Township. The trial court dismissed Grassini's six-count complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)). The primary question on appeal is whether DuPage Township had the authority to employ Grassini as township administrator under a four-year contract. We hold that, under the facts presented, the contract was without the Township's authority and therefore void ab initio. Accordingly, we affirm the trial court's dismissal of the counts based upon the contract. For reasons that follow, we also affirm the trial court's dismissal of the other counts, but remand for the trial court to determine whether Grassini should be given leave to replead count VI.

FACTS

DuPage Township first employed Grassini in 1988 in a capacity that is not clear from the record. The terms and conditions of Grassini's employment were governed by a personnel policy manual, relevant portions of which we will discuss in the course of our analysis. In February 1993, Grassini entered into a written employment contract with the Township through which she agreed to serve in the capacity of township administrator for a four-year period. As administrator, Grassini was to perform various duties under the direction of the township supervisor, including coordination of the township's daily business, coordination of payroll and personnel functions, recommendation of budgetary policies, and communication of township policies to departmental heads. The contract provided that Grassini's employment could be terminated only for various enumerated reasons. In addition, it expressly stated that its terms superseded the terms of the policy manual to which Grassini had been subject under her previous employment.

The township's board of trustees authorized the contract by resolution in February 1993; the township electors in turn approved the trustees' resolution in April 1993. Shortly thereafter, however, newly elected trustees, including a new township supervisor, replaced the trustees who authorized Grassini's contract. On May 5, 1993, the new trustees voted to terminate the contract and to discharge Grassini from her duties. In June 1993, anticipating this litigation, the new supervisor issued a memo to township employees instructing that Grassini was not to be permitted to participate in any paid or volunteer activities on township property until the litigation was resolved.

Grassini brought a six-count complaint against the township and its trustees, including the supervisor. Count I alleged breach of the employment contract. Count II sought damages from the individual defendants under 42 U.S.C. § 1983, alleging that the same breach violated Grassini's right to due process under the 14th Amendment to the United States Constitution. Count III alleged breach of the policy manual; count IV sought damages under 42 U.S.C. § 1983 for the same breach. Count V sought further damages for the same breach alleged in count III. Finally, count VI sought damages under 42 U.S.C. § 1983 for an alleged interference with Grassini's rights under the 1st and 14th Amendments to the United States Constitution stemming from the memo which sought to bar her from participating in activities on township property.

The defendants brought a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure, alleging that the contract was ultra vires and therefore void ab initio. The trial court agreed with the defendants and dismissed all six counts with prejudice. Grassini appeals the dismissal of every count except count V.

Scope of Review

A motion to dismiss under section 2-619 admits the legal sufficiency of a complaint but raises affirmative matter to defeat the claim. 735 ILCS 5/2-619(a)(9) (West 1992). Thus, all well-pleaded facts in a complaint are taken as true. Geick v. Kay, 236 Ill.App.3d 868, 177 Ill.Dec. 340, 603 N.E.2d 121 (1992). A cause of action should not be dismissed under 2-619 unless it is apparent that no set of facts can be proven which would entitle a plaintiff to recover. Nielsen-Massey Vanillas, Inc. v. City of Waukegan, 276 Ill.App.3d 146, 212 Ill.Dec. 856, 657 N.E.2d 1201 (1995). A trial court's dismissal of a claim under section 2-619 is subject to de novo review. Jackson v. Shell Oil Co., 272 Ill.App.3d 542, 208 Ill.Dec. 958, 650 N.E.2d 652 (1995).

Enforceability of Grassini's Employment Contract

The primary issue on appeal is whether Grassini's four-year employment contract was ultra vires and therefore void and unenforceable.

A township may exercise only those powers conferred upon it by statute. DuPage Township's powers at the times relevant to this case were set forth in the Township Law of 1874 (60 ILCS 5/1-1 et seq. (West 1992)), which has since been repealed and reincorporated in large part into the Township Code (60 ILCS 1/1-1 et seq. (West Supp.1996)). This reincorporation did not change those township powers relevant to this appeal; therefore, we will refer to the applicable sections of the Township Code in our discussion.

Section 85-10 of the Township Code provides that every town has corporate powers expressly granted or necessarily implied, and no others. 60 ILCS 1/85-10(a) (West Supp.1996). The section further provides that townships may make all contracts necessary in the exercise of the their powers. 60 ILCS 1/85-10(d) (West Supp.1996). In addition, section 100-5 provides that the township board may "employ and fix the compensation of township employees that the board deems necessary," exclusive of positions not relevant here. See 60 ILCS 1/100-5(a) (West Supp.1996). The provision does not limit the period over which such employment contracts may extend. We must therefore determine whether such a limitation should be read into the Township Code.

The defendants essentially argue that townships may not enter into employment contracts for terms exceeding one year. This argument is based upon the requirements of the Municipal Budget Law (50 ILCS 330/1 et seq. (1992)), to which townships must conform. Section 3 of that law requires municipalities to appropriate funds to defray expenses on an annual basis and to specify the objects for which such appropriations are made. 50 ILCS 330/3 (West 1992).

In Diversified Computer Services, Inc. v. Town of York, 104 Ill.App.3d 852, 60 Ill.Dec. 684, 433 N.E.2d 726 (1982), the court read section 3 of the Municipal Budget Law to forbid townships from executing contracts unless the expenditures to be made thereunder are first appropriated in full. The court thus held that a contract executed by a township assessor for the lease of computer equipment for a multi-year period was void ab initio.

The defendants claim that the Diversified court's rationale should likewise apply to employment contracts. We are not persuaded by that decision, however, and decline to apply it in the case at bar. The Municipal Budget Law, in requiring townships to appropriate funds to specific purposes on an annual basis, does not thereby forbid townships from contractually incurring debts to be paid in the future. To say otherwise would be to equate the act of contracting to pay a sum in the future with the act of appropriating, when in fact the acts differ from one another. Thus, although there may be sound policy reasons for restricting the ability of townships to incur long-term obligations, those reasons do not find their genesis in the Municipal Budget Law.

A more persuasive reason for limiting the ability of townships to contract for multi-year periods may be drawn from the supreme court's decision in Millikin v. County of Edgar, 142 Ill. 528, 32 N.E. 493 (1892). In that case, a county board of supervisors employed the keeper of a poor house under a three-year contract, notwithstanding that the board members themselves were only elected for a one-year period. The governing statute in Millikin granted the board the authority to hire such a person, but did not expressly limit the number of years for which the employment might extend. The court reasoned that it would do violence to the statute to allow an elected board to inhibit its successor's ability to supervise care for the unfortunate by tying its hands with respect to relevant employment decisions. The court therefore grafted into the statute the limitation that employment agreements of the sort at issue were void unless limited to the period of service of the then-current board. Millikin, 142 Ill. at 533, 32 N.E. 493.

The Millikin decision stands for the broad proposition that it is contrary to the effective administration of a political subdivision to allow elected officials to tie the hands of their successors with respect to decisions regarding the welfare of the subdivision. This principle has not been confined in application to county governments and their administration of poor houses. See, e.g., Deyo v. Commissioner of Highways of Sheridan, 256 Ill.App. 3, 7-8 (1930) (highway commissioner lacked authority to incur debts on town's behalf extending beyond his...