Meylor v. Boys
| Decision Date | 20 October 1981 |
| Docket Number | No. 80-333,80-333 |
| Parties | , 56 Ill.Dec. 618 William L. MEYLOR, Petitioner-Appellant, v. William BOYS, individually and as Director, Illinois Department of Personnel; Illinois Department of Personnel; John Kramer, individually and as Secretary, Illinois Department of Transportation; Illinois Department of Transportation; C. R. Burris, District Engineer, District # 2, Illinois Department of Transportation; Benjamin Stich, Illinois Department of Transportation, Respondents-Appellees. |
| Court | United States Appellate Court of Illinois |
William M. Doty, Jr., Chicago, for petitioner-appellant.
Tyrone C. Fahner, Atty. Gen., Joseph D. Keenan, III, Asst. Atty. Gen., Chicago, for respondents-appellees.
Petitioner appeals from a dismissal of his petition for a writ of certiorari. He had been denied a hearing on the merits of a grievance he had brought before the State Director of Personnel and in his petition prayed that the court rule illegal the rules and regulations which form the grounds of the denial and order the Director of Personnel to consider his grievance on the merits.
Petitioner is a highway maintenance equipment operator employed by the Illinois Department of Transportation. He was suspended from work for three days without pay for insubordination and abusiveness to a superior. He brought a grievance against the Department of Transportation protesting the suspension and an unfavorable performance evaluation. At each step of the grievance procedure his case was denied consideration because he insisted upon being represented by private counsel. Petitioner was informed that as he was represented by a collective bargaining agent, the Illinois Conference of Teamsters, he was required by the rules of the State Department of Personnel and the collective bargaining agreement to be accompanied or represented by the exclusive bargaining representative. If he refused to abide by these rules he would not be heard. Following the last stage of the grievance procedure, in which the State Director of Personnel denied him a hearing because of his insistence in being represented by private counsel, petitioner petitioned the circuit court for a writ of certiorari.
The trial court granted his petition, ordering the Department of Personnel to bring before it the record of proceedings below in order that it might consider petitioner's argument. Respondent moved to quash the writ.
The court thereupon quashed the writ, making the following findings:
"1. The respondents have not acted without jurisdiction to act.
2. The respondents have not exceeded their jurisdiction.
3. The respondents have not acted illegally.
4. The petitioner has failed to follow accepted procedures for obtaining a hearing on his grievances and, in effect, has caused the lack of a hearing.
5. The granting of the Writ of Certiorari is not necessary to prevent substantial injury to petitioner.
6. The granting of said Writ would cause great inconvenience to respondents.
7. The subject matter is not a proper one for the issuance of the Writ of Certiorari.
8. The Writ of Certiorari was improvidently granted."
First we must consider respondent's argument that certiorari should not lie because there was no record to bring before the court: no administrative hearing preceded the petition for a writ of certiorari. The matter about which petitioner seeks relief, however, is the fact that he was denied a hearing. The denial by the Director of Personnel and the documents upon which he based his ruling are all the record necessary to our resolution of the issue petitioner raises. Moreover, we may take judicial notice of the Rules of the Department of Personnel. (Sturm v. Block (1979), 72 Ill.App.3d 306, 28 Ill.Dec. 553, 390 N.E.2d 912.) Denial of a hearing to a grievant is a quasi-judicial act for which the grievant may seek court review. We think also that it was proper for petitioner to seek judicial review by means of a petition for a writ of certiorari. The State Personnel Code (Ill.Rev.Stat.1979, ch. 127, par. 63b101, et seq.) provides only for judicial review under the Administrative Review Act (Ill.Rev.Stat.1979, ch. 110, par. 264, et seq.) of decisions of the Civil Service Commission. As this matter has gone before the Department of Transportation and the Director of Personnel, and not the Civil Service Commission, judicial review cannot be sought pursuant to the Administrative Review Act. When judicial review cannot be had under that Act, to petition for a writ of certiorari is a proper procedure for court review. Smith v. Department of Public Aid (1977), 67 Ill.2d 529, 10 Ill.Dec. 520, 367 N.E.2d 1286; Goodfriend v. Board of Appeals (1973), 18 Ill.App.3d 412, 305 N.E.2d 404.
The scope of a court's authority in a certiorari proceeding is to examine the record of the lower tribunal and "ascertain whether the agency had jurisdiction, whether it exceeded its jurisdiction, whether it proceeded according to law and acted on evidence, and whether there is anything in the record which fairly tends to sustain the action of the agency." Quinlan and Tyson, Inc. v. City of Evanston (1975), 25 Ill.App.3d 879, 884, 324 N.E.2d 65.
The Department of Personnel has jurisdiction to establish a plan for resolving employee grievances and complaints (Ill.Rev.Stat.1979, ch. 127, par. 63b108c(1).) The question before us is whether, in establishing this plan, the department can require an employee to accept his collective bargaining representative as his representative in grievance proceedings.
Section III of the Department of Personnel rules addresses Conditions of Employment, and 3-45 concerns representation at grievance proceedings:
"In discussions or meetings with the employer in Steps 2, 3 or 4 of the Grievance Procedure, the employee shall be entitled to be present and may be accompanied or represented by the exclusive bargaining representative or, if there is no such representative, any other person."
Respondents contend that only the exclusive bargaining representative, in this case the Teamsters' Union, may accompany petitioner in the presentation of his grievance. A grievant declining the assistance of the bargaining representative and electing to pursue the matter with private counsel forfeits his right to have his grievance heard.
It is well recognized that state employees may bargain collectively. (Chicago Division of Illinois Education Association v. Board of Education of the City of Chicago (1966), 76 Ill.App.2d 456, 222 N.E.2d 243.) It is also readily acknowledged that in a collective bargaining agreement a state agency may not delegate to the employees' bargaining agent its decision making power. (Lockport Special Education Cooperative v. Lockport Area Special Education Cooperative Association (1975), 33 Ill.App.3d 789, 338 N.E.2d 463.) A rule providing for representation of an employee in a grievance proceeding by the collective bargaining agent does not give the collective bargaining agent decision making powers, however. The union representative advocates the employees' position but he does not pass judgment on it.
Petitioner argues, however, that to require him to accept representation by the collective bargaining agent and not to permit him to be represented by the attorney of his choice violates his rights to due process and equal protection.
Due process at a minimum requires that (Goss v. Lopez (1975), 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725.) Respondent concedes that petitioner has a property interest in his civil service position. Petitioner therefore must be afforded that due process of law which is appropriate to a proceeding which has in issue a three-day suspension and an unfavorable performance evaluation which may possibly affect him in his future career. A review of existing case law reveals no precedent for or against petitioner's position that he is entitled to privately retained counsel. It may be noted in passing, however, that the Supreme Court specifically recognized the right to representation by counsel in an administrative hearing in only one case to date. That case, Goldberg v. Kelley (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, held that a welfare recipient was entitled to a pretermination hearing before his benefits were cut off. The Supreme Court, clearly considering termination of benefits a serious property deprivation, set out the procedural safeguards that must be following in the pretermination hearing. Among these is...
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