Messina v. City of Chicago
Decision Date | 30 June 1986 |
Docket Number | No. 85-1615,85-1615 |
Citation | 99 Ill.Dec. 493,495 N.E.2d 1228,145 Ill.App.3d 549 |
Parties | , 99 Ill.Dec. 493 James MESSINA, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, Charles A. Pouinian, Eugene M. Barnes, and Myles F. McDarrah, Defendants-Appellees. |
Court | United States Appellate Court of Illinois |
Anne M. Burke and Larry S. Kajfes, Ltd., Chicago, for plaintiff-appellant.
James D. Montgomery, Chicago (Mary K. Rochford and Jennifer A. Keller, of counsel), for defendants-appellants.
Plaintiff, James Messina, appeals the dismissal of his suit to challenge his discharge as a probationary employee in the Chicago Department of Public Works. We affirm as to Count II, reverse as to Count I, and remand this cause for further proceedings.
Plaintiff began working for the city of Chicago as a bricklayer for the Department of Public Works more than ten years ago, on July 27, 1973. In its 1984 Annual Appropriation Ordinance, the Chicago city council reclassified plaintiff from a Departmental Employment Service employee to a probationary Career Services employee. Plaintiff was to serve a six-month probationary period from January 1, 1984, to June 30, 1984, which if successfully completed, would give him Career Service status.
On February 27, 1984, defendant Myles McDarrah, Superintendent of Repairs of the Department of Sewers, suspended plaintiff for two days (effective March 1, 1984) because he had knowingly allowed "a lewd and racial insult" directed against his supervisor to remain inscribed in fresh cement, where it could be seen by other department employees. Plaintiff worked for the remainder of his probationary period without further incident until he was discharged on June 29, 1984, one day before he would have attained career service status. Defendant Eugene Barnes, Acting Commissioner of the Department of Sewers, did not give any reason for this action. One week later, on July 6, 1984, defendant Charles Pounian, Commissioner of Personnel, notified plaintiff by letter that he had been terminated for insubordinate actions and discourteous treatment of other city employees. Defendants do not dispute that plaintiff's suspension and his discharge were based on the same incident, and for the purposes of this appeal, all allegations in plaintiff's complaint, and exhibits attached thereto, are taken as correct.
Plaintiff filed a complaint for declaratory judgment in the Circuit Court of Cook County on October 18, 1984. The circuit judge dismissed the original complaint but granted plaintiff leave to file an amended complaint, which plaintiff did on February 8, 1985. In Count I, plaintiff charged that he had been discharged from his probationary position in violation of Rule IX, Section 3, of the Personnel Rules of the City of Chicago, which provides:
As to persons in plaintiff's position, Section 6 of the city's 1984 appropriation ordinance stated:
(Emphasis added.)
It appears that other probationary employees were not entitled to written reasons for discharge under Chicago ordinances and rules. In Count II, plaintiff contended that Rule IX, Section 3, of the city's personnel rules was ineffective because it conflicted with Section 10-1-14 of the Illinois Municipal Code, (Ill.Rev.Stat.1985, ch. 24, par. 10-1-14.) In both counts plaintiff prayed for reinstatement, back pay, accrued benefits and vacation time, and costs and attorney's fees. The circuit judge dismissed plaintiff's complaint, on May 16, 1985, without leave to amend. Plaintiff now appeals.
Plaintiff first argues that his discharge was improper because it did not conform to the statutory procedure for discharging a probationary employee, as set out in the Municipal Code (Ill.Rev.Stat.1985, ch. 24, par. 10-1-18). However, Chicago, with a population in excess of 25,000 is a home rule unit under the Illinois Constitution. (Ill. Const.1970, art. VII, § 6.) An ordinance enacted by a home rule unit under a grant of power from Section 6(a) of Article VII prevails over a conflicting state statute enacted prior to July 1, 1971, the effective date of the constitution. (Stryker v. Village of Oak Park, 62 Ill.2d 523, 527, 343 N.E.2d 919, 922, cert. denied (1976), 429 U.S. 832, 97 S.Ct. 95, 50 L.Ed.2d 97.) The relevant portions of the statute in question were reenacted in 1961, when the state's Municipal Code was adopted (1961 Ill.Laws 3252 § 1), long before the constitution went into effect. The city personnel rules and ordinances applied in this case were adopted afterward and would therefore ordinarily supercede the state statute. .) Plaintiff, nonetheless, contends that the statute overrides the city's own personnel policies because the applicable rules and ordinances did not contain an express declaration that they were enacted pursuant to home rule powers.
Plaintiff is unable to cite any authority to suggest that a home rule city must declare that its actions are taken under home rule power for that power to take effect. On the contrary, should the General Assembly wish to exercise exclusive power over a particular home rule matter, it must expressly indicate its intent to do so in the statute. (Hoffman v. Board of Fire & Police Commissioners (1980), 86 Ill.App.3d 505, 507, 41 Ill.Dec. 752, 754, 408 N.E.2d 98, 100; Ill. Const.1970, art. VII, sec. 6(i).) (K. Froehlich I.I.C.L.E., Municipal Law § 22.74, 22-109 (1978).) Consequently, requiring an express declaration of the home rule power in ordinances would have drastic consequences for the city of Chicago. It is the general rule in Illinois that an ordinance need not contain a recital of the authority under which it is enacted. (Delamater v. Chicago (1895), 158 Ill. 575, 583-84, 42 N.E. 444, 447 ( ); Plaintiff advances no convincing policy arguments as to why city ordinances enacted pursuant to home rule authority should be treated any differently. Indeed, since home rule power is generally assumed for municipalities over 25,000 (Ill. Const.1970, art. VII, sec. 6(a)), there is little to recommend the adoption of such a rule.
Moreover, our supreme court implicitly rejected plaintiff's argument in Sommer v. Village of Glenview (1980), 79 Ill.2d 383, 38 Ill.Dec. 170, 403 N.E.2d 258, in which it held that a 1939 statute providing for a referendum on tax rate limitations was an unconstitutional limitation on home rule units. The court reiterated that, (79 Ill.2d 383, 392, 38 Ill.Dec. 170, 175, 403 N.E.2d 258, 263.) It is clear from the general discussion in the opinion that the village trustees, when voting to omit the tax proposition from the ballot, did not expressly declare that they were acting pursuant to home rule. (79 Ill.2d 383, 392, 38 Ill.Dec. 170, 175, 403 N.E.2d 258, 263.) Nonetheless, the court held that the village trustees' vote constituted an exercise of home rule power that superceded the state statute.
We conclude that a home rule city "exercises its home rule power" whenever it enacts an ordinance that conflicts with a pre-1970 statute even in the absence of an express reference to home rule in the ordinance. The city of Chicago...
To continue reading
Request your trial-
Glenn v. City of Chicago
...career service within the City of Chicago." (Chicago Municipal Code § 25.1-1 (1982).) (See Messina v. City of Chicago (1986), 145 Ill.App.3d 549, 558, 99 Ill.Dec. 493, 495 N.E.2d 1228 ("purpose of the city's career service is to promote job security which will insure the development of a ca......
-
Farmer v. McClure, 87-3657
...was a probationary employee gave defendants no authority to act outside of their own rules. Messina v. City of Chicago (1986), 145 Ill.App.3d 549, 556, 99 Ill.Dec. 493, 495 N.E.2d 1228. Injunctive relief is appropriate where a lawful right is certain and clearly ascertainable, and when irre......
-
HIGHLAND PK. v. Teamster Local Union No. 714
...for the same conduct, the termination subjected Stumpf to impermissible "double jeopardy." See Messina v. City of Chicago, 145 Ill.App.3d 549, 557, 99 Ill.Dec. 493, 495 N.E.2d 1228 (1986). The arbitrator also found that Stumpf could be rehabilitated. The arbitrator noted that, until April 2......
-
County Collector of Kane County, Application of
...Ill.Dec. 489, 389 N.E.2d 553; Kanellos v. County of Cook (1972), 53 Ill.2d 161, 166, 290 N.E.2d 240; Messina v. City of Chicago (1986), 145 Ill.App.3d 549, 552, 99 Ill.Dec. 493, 495 N.E.2d 1228.) We do not believe that these cases can be extended as urged by the city, such that upon becomin......