Nolan v. Hillard

• Decision Date: 08 December 1999
• Docket Number: No. 1-98-2638., No. 1-97-4659
• Citation: 309 Ill. App.3d 129,242 Ill.Dec. 952,722 N.E.2d 736
• Parties: William NOLAN, Fraternal Order of Police, Chicago Lodge No. 7, and William Jaconetti, Petitioners-Appellants, v. Terry G. HILLARD, Superintendent of the Chicago Police Department, the City of Chicago, and Mayor Richard M. Daley, Respondents-Appellants.
• Court: United States Appellate Court of Illinois

722 N.E.2d 736

309 Ill. App.3d 129

242 Ill.Dec. 952

William NOLAN, Fraternal Order of Police, Chicago Lodge No. 7, and William Jaconetti, Petitioners-Appellants, v. Terry G. HILLARD, Superintendent of the Chicago Police Department, the City of Chicago, and Mayor Richard M. Daley, Respondents-Appellants.

Nos. 1-97-4659, 1-98-2638.

Appellate Court of Illinois, First District, Third Division.

December 8, 1999.

Baum Sigman, Auerbach, Pierson & Newman, Ltd., Chicago (Dale D. Pierson, Brian C. Hlavin, Jennifer L. Dunitz-Geiringer, of counsel); Thomas J. Pleines, General Counsel, Fraternal Order of Police, Chicago Lodge No. 7, Chicago (Thomas J. Pleines, of counsel), for Appellants.

Brian L. Crow, Corporation Counsel of the City of Chicago, Chicago (Lawrence Rosenthal, Deputy Corporation Counsel, Benna Ruth Solomon, Chief Assistant Corporation Counsel, Sonja D. Rajkovich, Assistant Corporation Counsel, of counsel), for Appellees.

Justice CERDA delivered the opinion of the court:

In this consolidated appeal, plaintiffs, the Fraternal Order of Police ("FOP"), Chicago Lodge No. 7 ("Lodge No. 7"), through its president and representative William Nolan, and on behalf of William Jaconetti, a Chicago police officer, and other officers represented by Lodge No. 7, seek review of the circuit court's order denying their motion for a preliminary injunction to enjoin defendants, the City of Chicago, the City's mayor, Richard M. Daley, and the superintendent of the Chicago Police Department ("CPD"), Terrance Hillard,¹ from administering an exam for police officers seeking promotion to the rank of sergeant (case no. 1-97-4659). Plaintiffs further seek review of the circuit court's order dismissing with prejudice count one of their complaint for declaratory judgment and injunctive relief filed against the same defendants in connection with said promotion examination (case no. 1-98-2638). We have jurisdiction of case no. 1-97-4659 pursuant to Supreme Court Rule 307(a)(1), and of case no. 98-2638 pursuant to Supreme Court Rules 301 and 303(a). For the following reasons, we affirm in part, reverse in part, and remand with directions.

BACKGROUND

On October 20, 1997, and again on November 4, 1997, the City's Department of Personnel (Department) announced it would be conducting a promotional examination for police officers to the rank of sergeant commencing with a written qualifying test scheduled for January 10, 1998. Per these announcements, the examination would consist of three parts—the written qualifying test, a merit selection process, and an assessment exercise.

Officers who passed the written test would be placed on a merit selection eligible list, and would be considered for promotion pursuant to a merit selection process. Moreover, those officers attaining the highest scores on the written qualifying test would also be eligible to participate in an assessment exercise for placement on an assessment eligible list. A maximum of thirty percent (30%) of promotions would be made from the merit list, while the remaining percentage of promotions would be made from the assessment list. Applicants who failed to pass the qualifying test would not be placed on either the merit or assessment list, and would not otherwise be eligible for promotion.

The announcements further stated that an applicant must possess a minimum level of college education credits for promotion. The October 20 announcement originally required an applicant to have a minimum of 60 semester hours of credit prior to December 31, 1997. This requirement was revised by the November 4 announcement, which lowered the number of necessary college credits to 45 semester hours by the December 31 date. The revised announcement further stated that an applicant would need an additional 15 semester hours of credit, for a total of 60 hours, to be eligible for promotion.

To prepare applicants for the qualifying test, the City made available for review a comprehensive collection of study materials to each police district and area headquarters, recognized police associations, and Chicago public libraries.

Jaconetti, a police officer with the CPD, applied for the 1998 sergeants examination. However, because he did not possess the requisite level of college education, and would not achieve that educational level by December 31, 1997, Jaconetti could not be eligible for promotion under the announced promotional guidelines.

On November 21, 1997, the FOP and its local union, Lodge No. 7, through its president William Nolan, and on behalf of plaintiffs, Officer Jaconetti and "all affected members represented by Lodge No. 7," filed a verified two-count complaint for declaratory judgment and injunctive relief against the City, mayor Daley, and the former superintendent Rodriguez, seeking, in part, a declaration that the City was prohibited from administering the sergeants examination because its announced process is contrary to the City's Personnel Rules (Personnel Rules) and therefore violates state law.

In count one of the complaint, plaintiffs allege the City, when administering promotional exams, is bound by the authority granted it under the applicable portions of the Personnel Rules. Plaintiffs assert that the rules governing promotions do not allow the City to either impose an education requirement on an applicant or consider an applicant's "merit" in the decision making process. In support of their averments, plaintiffs cite Rule VI, section three, and Rule X, section one, as amended October 14, 1997. Section three of Rule VI, which addresses examinations used in conducting promotions, states in relevant part:

"A promotional examination may comprise any or all of the following job-related parts as determined by the Commissioner of Personnel:

(a) Evaluation of training and experience;

(b) Written, oral, performance, or other tests of fitness;

(c) Evaluation of performance and/or promotional potential based on past performance;

(d) Seniority in the class or classes from which promotion is sought."

(Emphasis added.) Personnel Rules, City of Chicago, Rule VI, § 3 (October 14, 1997).

Rule X, section one, which describes the Department's policy regarding employee promotions, provides in pertinent part:

"Vacancies will be filled where appropriate through the use of promotional examinations.

* * *

The Commissioner of Personnel shall develop promotional procedures that give appropriate consideration to the applicants' qualifications, records of performance and abilities.

A discrete part of a promotional examination may determine merit based on evaluation of the applicants' records of performance by the employing department. The method of evaluation shall be prescribed by the Commissioner of Personnel. In such a case, the Commissioner of Personnel may maintain two promotional lists based on a single examination; one based on evaluation of record of performance and one based on the remaining parts of the examination." Personnel Rules, City of Chicago, Rule X, § 1 (October 14, 1997).

Plaintiffs claim the announced promotional process violates section three of Rule VI because that provision neither authorizes the City to include an education requirement or a "merit" component as part of the sergeants examination. The announced process also allegedly violates section one of Rule X because that provision similarly fails to allow the City to make "merit" based promotions.

Plaintiffs lastly allege in count one that the City's distribution of study materials for the written qualifying exam resulted in a disadvantage to certain applicants, and thus violated section six of Rule VI, which discusses the conduct of examinations for promotional employment.² See Personnel Rules, City of Chicago, Rule VI, § 6 (October 14, 1997).

Based on the foregoing alleged violations, plaintiffs seek a declaration that the Personnel Rules bind the City in developing promotional procedures and conducting their exams. Plaintiffs request a permanent injunction to enjoin the City from implementing the education requirement as a prerequisite to promotion, and from making any promotion based upon merit or any other factor other than the results of competitive testing.

In addition to their complaint, plaintiffs filed a motion for a preliminary injunction to enjoin the City from administering the January qualifying test. The circuit court held a hearing on plaintiffs' motion on December 8 and 9, 1997, at which various evidentiary exhibits and testimony of several witnesses were presented. Following the hearing, the circuit court declined plaintiffs' request to enjoin the administration of the January 1998 exam. Plaintiffs filed a motion for a stay pending appeal with the circuit court on December 23, 1997, which was denied the following day. On the same day, plaintiffs filed an interlocutory appeal (no. 1-97-4659) from the court's order denying its motion for a preliminary injunction. On December 30, 1997, plaintiffs petitioned this court to stay the circuit court's order pending the outcome of its appeal. This court denied plaintiff's petition on January 6, 1998, and set oral arguments in the case for November 18, 1998.

Meanwhile, on December 2, 1997, defendants moved to dismiss plaintiffs' complaint pursuant to sections 2-615, 2-619, and 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619, 2-619.1 (West 1996)). In their motion, defendants argue that plaintiffs' claims asserted in count one should be dismissed under section 2-615 of the Code for failure to state a cause of action and, with specific respect to mayor Daley and superintendent Hillard, for failure to describe their alleged wrongdoing with the requisite particularity. Defendants alternatively contend that the claims in count one should be dismissed under section 2-619 of the Code because plaintiffs lack standing to bring the instant action and are barred by the doctrine of laches in seeking relief. Defendants' section 2-619 mo...