Zander v. Carlson

• Decision Date: 19 November 2020
• Docket Number: Docket No. 125691
• Parties: Russell ZANDER, Appellant, v. Roy CARLSON et al., Appellees.
• Court: Illinois Supreme Court

2020 IL 125691
181 N.E.3d 854
450 Ill.Dec. 502

Russell ZANDER, Appellant,
v.
Roy CARLSON et al., Appellees.

Docket No. 125691

Supreme Court of Illinois.

Opinion filed November 19, 2020.
Rehearing denied January 25, 2021

181 N.E.3d 856

Thomas W. Gooch and Sabina D. Walczyk, of The Gooch Firm, of Wauconda, for appellant.

Brendan J. Nelligan and Matthew J. Egan, of Pretzel & Stouffer, Chtrd., of Chicago, for appellees.

Melissa J. Auerbach, of Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich, of Chicago, for amici curiae American Federation of State, County and Municipal Employees, Council 31, et al.

S. Leigh Jeter, of LaPointe Law, P.C., of Northbrook, for amicus curiae Illinois Public Employer Labor Relations Association.

OPINION

JUSTICE KARMEIER delivered the judgment of the court, with opinion.

450 Ill.Dec. 504

¶ 1 The issue in this case is whether a municipal police officer who elected to challenge his termination through the arbitration process set forth in the collective bargaining agreement between his union and his employer may bring an action for damages in circuit court against the union and the union lawyer assigned to assist him when the arbitration proved unsuccessful and he was not reinstated. The Cook County circuit court concluded that he could not and dismissed his cause of action with prejudice. As grounds for its decision, the court adhered to principles articulated by the United States Supreme Court in Atkinson v. Sinclair Refining Co. , 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), and held that the union attorney was immune from personal liability where, as here, his actions were taken on behalf of a union as part of the collective bargaining process. With regard to the police officer's dispute with the union itself, the court concluded that it could not be heard in circuit court but rather had to be brought before the Illinois Labor Relations Board, which has exclusive jurisdiction over claims that a union has violated its duty to fairly represent its members. The appellate court affirmed. 2019 IL App (1st) 181868, 437 Ill.Dec. 124, 143 N.E.3d 1216. For the reasons that follow, we affirm the judgment of the appellate court.

¶ 2 BACKGROUND

¶ 3 The circuit court dismissed the terminated police officer's cause of action based on a combined motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619.1 (West 2018) ). For purposes of our review, we therefore accept as true all well-pleaded facts in the officer's complaint.

450 Ill.Dec. 505

181 N.E.3d 857

Cochran v. Securitas Security Services USA, Inc. , 2017 IL 121200, ¶ 3, 419 Ill.Dec. 374, 93 N.E.3d 493.

¶ 4 According to the complaint, plaintiff, Russell Zander, was employed by the Village of Fox Lake as a patrol officer. In December 2014, the Village's police chief placed him on administrative leave based on allegations of misconduct arising from multiple job-related incidents. The chief subsequently filed formal disciplinary charges against him and recommended that he be terminated.

¶ 5 At all relevant times Zander was a member of the Illinois Fraternal Order of Police Labor Council (FOP). The FOP is a labor union organized pursuant to the Illinois Public Labor Relations Act (Act) ( 5 ILCS 315/1 et seq. (West 2018)). It represents thousands of public safety and criminal justice employees with collective bargaining rights under the Act, and it represented Zander pursuant to a collective bargaining agreement it had with the Village.

¶ 6 In response to the disciplinary charges filed against him, Zander contacted the FOP for assistance. The FOP, in turn, initially assigned an attorney named Mahoney to handle the matter. After some preliminary proceedings, the FOP assigned Roy Carlson, one of its staff attorneys, to take over from Mahoney. Carlson was an employee of the FOP, and the choice of Carlson to assist Zander was solely the FOP's. Zander had no input into the decision, had no retainer agreement with Carlson, and was not charged for Carlson's services. The FOP paid Carlson from dues collected from its members, including Zander.

¶ 7 Under the Illinois Municipal Code ( 65 ILCS 5/1-1-1 et seq. (West 2018)), police officers such as Zander who face removal or discharge are entitled to a hearing before the local board of fire and police commissioners unless a collective bargaining agreement between the municipality and the officer's union provides for arbitration of such disputes. Id. § 10-2.1-17. The collective bargaining agreement between the Village and the FOP in this case did contain an arbitration provision, but that provision gave officers the option of pursuing either avenue of recourse, police board hearing or use of the agreement's grievance-arbitration procedure, an option Illinois law permits. Id.

¶ 8 On Carlson's advice, Zander elected to proceed via arbitration. After a two-day hearing, the arbitrator upheld the decision to terminate Zander's employment and refused to reinstate him. Unhappy with this outcome, Zander sued Carlson and the FOP for damages in circuit court.

¶ 9 Zander's complaint was in two counts. Count I, directed against both Carlson and the FOP, sought recovery for legal malpractice. It alleged that, in their representation of Zander, Carlson and the FOP were "negligent and failed to exercise a reasonable degree of care and skill, and otherwise breached the standard of care" they owed him in various ways. More specifically, Zander charged that Carlson lacked sufficient experience to handle his case, that the FOP should not have assigned a lawyer as inexperienced as Carlson to represent him, and that both Carlson and the FOP failed to properly investigate the charges against him and did not adequately prepare for or conduct the proceedings before the arbitrator. Zander alleged that the charges against him were relatively minor but arose at a time when the local police department was under scrutiny because of unrelated misconduct by another officer and that he "in essence became a scapegoat, losing his employment permanently following an arbitration that from the beginning was designed to favor the Chief of Police and the Chief's recommendations." Zander alleged that, if

181 N.E.3d 858

450 Ill.Dec. 506

he had been represented by a competent attorney and been properly advised to seek a hearing before the police commission rather than pursue arbitration, he would "in all probability * * * have received, at worst, a much lesser disciplinary finding which would not have resulted in the permanent loss of his employment as a police officer, and in all likelihood the possibility of ever becoming involved in police work ever again."

¶ 10 Count II of Zander's complaint was directed against the FOP alone. It asserted that the FOP is not authorized to practice law, has no right to employ attorneys to furnish legal services under its direction to FOP members, and cannot control "through policy manuals and otherwise" what attorneys assigned to help FOP members may do. It further alleged, however, that because of the business relationship between Carlson and the FOP, and "due to the FOP's principle [sic ] involvement in the disciplinary matters brought against Zander and its control of Defendant Carlson," the FOP "assumed the same fiduciary duty to Zander that Carlson had" and "should be vicariously liable for the acts and actions of Carlson" with regard to his representation of Zander.

¶ 11 The FOP and Carlson filed a combined motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure ( 735 ILCS 5/2-619.1 (West 2018) ). As grounds for their motion, they asserted that, under Atkinson , 370 U.S. 238, 82 S.Ct. 1318, and its progeny, union agents or employees like Carlson cannot be held personally liable for actions undertaken in the course of their employment in furtherance of collective bargaining rights, including grievance procedures such as the one involved in this case. They further contended that the claims advanced by Zander are tantamount to a charge that the FOP breached its duty of fair representation toward Zander and that all such claims are within the exclusive jurisdiction of the Illinois Labor Relations Board.

¶ 12 Zander responded by challenging the way in which Carlson and the FOP characterized his cause of action. Notwithstanding the fact that it arose in the context of a grievance procedure governed by a collective bargaining agreement, Zander insisted that his claim emanated from the attorney-client relationship he had with Carlson and was, at its core, a legal malpractice action as described in his complaint and should be treated as such. Zander argued, in the alternative, that even if he did not have an attorney-client relationship with Carlson, he could nevertheless sue Carlson for malpractice on the theory that he was a third-party beneficiary of the relationship between Carlson and the FOP. Finally, Zander contended that, because he sought to hold defendants liable based on breach of the standard of care by Carlson rather than breach of the duty...