Town of Avon v. Geary

• Decision Date: 31 December 1991
• Docket Number: No. 2-91-0504,2-91-0504
• Citation: 223 Ill.App.3d 294,585 N.E.2d 194,165 Ill.Dec. 798
• Parties: , 165 Ill.Dec. 798 The TOWN OF AVON, Plaintiff-Appellee, v. Norman C. GEARY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 194

585 N.E.2d 194

223 Ill.App.3d 294, 165 Ill.Dec. 798

The TOWN OF AVON, Plaintiff-Appellee, v. Norman C. GEARY, Defendant-Appellant.

No. 2-91-0504.

Appellate Court of Illinois Second District.

Dec. 31, 1991.

Warren G. Fox, Ori, Fox & Associates, Waukegan, for Norman C. geary.

Rudolph F. Magna, Jr., Magna & Hauser, Gurnee, for Town of Avon.

Justice McLAREN delivered the opinion of the court:

The plaintiff, the Town of Avon, filed a two-count amended complaint in the circuit court of Lake County against the defendant, Norman C. Geary. Count I sought reimbursement from the defendant for money he received while a township supervisor which allegedly constituted an unconstitutional increase in his salary. Count II sought a declaratory judgment as to the asserted claim of the defendant to such a salary increase, as to whether the payments made to the defendant were lawful and as to whether such payments were recoverable from the defendant. The trial court denied the defendant's motion for summary judgment and entered summary judgment in favor of the plaintiff in the amount of $12,700.

The defendant raises the following issues on appeal: (1) whether the trial court erred in finding that the payment of the township trustee salary to the defendant violated certain portions of the Township Law of 1874 (Act) (Ill.Rev.Stat.1989, ch. 139, par. 0.1 et seq.); (2) whether the trial court erred in finding that the plaintiff was granted a salary increase within the meaning of article VII, section 9(b), of the Illinois Constitution of 1970; (3) whether the trial court erred in finding the principle of voluntary payments inapplicable; (4) whether the trial court erred in failing to grant summary judgment in favor of the defendant; and (5) whether the trial court erred in granting summary judgment in favor of the plaintiff.

The facts relevant to this appeal are as follows. On March 9, 1990, the plaintiff filed its initial two-count complaint seeking reimbursement of monies paid to the defendant while he was township supervisor of Avon township and asking for a declaratory judgment. Following the trial court's order striking certain portions of the complaint, the plaintiff filed its two-count amended complaint.

The amended complaint also sought reimbursement of monies paid to the defendant as township supervisor and asked for declaratory relief. Specifically, the complaint alleges that the defendant was the township supervisor from April 1977 to April 1989. It further alleges that the offices of township supervisor and township trustee are separate and distinct from one another. The complaint also sets forth the respective salaries for supervisor and trustee which were established for each of the fiscal years from 1977 to 1989. Additionally, it is alleged that the salaries were approved prior to the elections for the offices of supervisor and trustee. It is further alleged that the defendant, as township supervisor, received the salary designated for that position as well as the salary designated for the position of trustee. The complaint asserts that the defendant received compensation from the plaintiff in excess of that provided by law in that he: (1) received more salary for holding the office of supervisor than permitted by the salary meetings of the town board and (2) received the trustee salary when he was not elected to the office of trustee. Thus, the complaint alleges that the defendant was compensated during his terms in office in excess of the amounts provided for township supervisor in violation of article VII, section 9(b), of the Illinois Constitution of 1970.

The amended complaint also includes, as exhibits, copies of the minutes of various township board meetings which establish that the salaries for the township supervisor and the trustees were set prior to the election of the defendant for any given year. Those minutes are devoid of any indication as to whether the township board ever approved or authorized the defendant receiving the trustee salary or when it made such approval or authorization.

The defendant moved for summary judgment, arguing that it was lawful for him to receive a salary both as a supervisor and as a trustee and that both salaries were established by the township board prior to his election. Furthermore, he maintained that any error on the part of the township board in paying him a trustee salary was a mistake of law and therefore not recoverable by the plaintiff.

The defendant submitted his affidavit with his motion for summary judgment. The affidavit states that the salaries for the offices of township supervisor and township trustee were set prior to the election for the particular offices. The affidavit further asserts that the defendant received a salary for both offices and that the township board approved the defendant receiving both salaries. The affidavit is silent as to how and when such approval took place.

The trial court denied defendant's motion for summary judgment, ruling that he was not entitled to a salary as a township trustee and that such payments were ultra vires and recoverable by the plaintiff. The court also denied his motion for reconsideration.

The plaintiff then filed its motion for summary judgment in which it maintained that the defendant was only entitled to the salary for township supervisor and therefore his receipt of a salary for township trustee constituted an increase in his salary in violation of article VII, section 9(b), of the Illinois Constitution of 1970. The plaintiff further argued that the payment of the trustee salary to the defendant was ultra vires and therefore recoverable.

The defendant responded to the plaintiff's motion for summary judgment by asserting that prior to his election the township board set a bifurcated salary schedule for the office of township supervisor. He further posited that such a bifurcated salary was within the authority of the township board pursuant to section 13-17 of the Act (Ill.Rev.Stat.1989, ch. 139, par. 126.7). Finally, he maintained that the increase in his salary, by virtue of his receiving the additional trustee salary, occurred prior to his election and was therefore not rendered invalid as arising during the term of his office.

The trial court granted the plaintiff's motion for summary judgment. In so ruling, the court found that the offices of supervisor and trustee are separate and distinct and are to be compensated separately. The court further found that the defendant's receiving of both salaries during his term of office violated both article VII, section 9(b), of the Illinois Constitution of 1970 and section 13-17 of the Act (Ill.Rev.Stat.1989, ch. 139, par. 126.7). The court ruled that the trustee's salary received by the defendant was in addition to that authorized by law for the office of supervisor and was thus recoverable. The court entered summary judgment in favor of the plaintiff in the amount of $12,700.

The defendant raises the following contentions on appeal. First, he argues that there is no statutory limit to the level of the township supervisor's salary or the structure of that salary so long as such salary is established prior to the supervisor's election. Second, he maintains that because the board determined the bifurcated salary structure prior to his election, there was no unconstitutional increase in his salary during his term of office. Finally, the defendant asserts that the principle of voluntary payments applies to salaries paid to municipal employees absent an allegation of fraud, undue influence or mistake of fact.

The plaintiff responds that the fact that the salaries for the offices of supervisor and trustee were set separately combined with the fact that the defendant received both salaries constitutes an unconstitutional increase in the defendant's salary during his term of office. The plaintiff further maintains that the defendant could only receive that salary established for the supervisor's office as there was no public information concerning his salary beyond that of the township meeting minutes indicating what the salary for the supervisor would be. Lastly, the...