City of Markham v. State and Municipal Teamsters, Chauffeurs and Helpers, Local 726

SIXTH DIVISION
September 25, 1998


No. 1-96-4351

THE CITY OF MARKHAM, ) Appeal from the
) Circuit Court
Plaintiff-Appellant, ) of Cook County.
)
v. )
)
STATE AND MUNICIPAL TEAMSTERS, )
CHAUFFEURS AND HELPERS, ) Honorable
LOCAL 726, ) MICHAEL BRENNAN GETTY,
) Judge Presiding.
Defendant-Appellee. )

JUSTICE BUCKLEY delivered the opinion of the court:

This case arises from an award in an interest arbitration
proceeding that began when the parties disputed a provision in a
collective bargaining agreement concerning the method of
determining discipline of police officers. The arbitrator
rejected plaintiff the City of Markham's (the City) proposal,
favoring that offered by defendant, the State and Municipal
Teamsters, Local 726, which allows police officers to circumvent
otherwise mandatory statutory procedures by submitting final
disciplinary decisions of the City's Board of Fire and Police
Commissioners (BFPC) to arbitration as grievances.
On appeal, the following issues are raised: (1) whether the
arbitrator had the authority to impose upon the City, as a non-
home rule entity, a collective bargaining agreement which
provides for employee discipline different from that mandated by
the General Assembly in the Illinois Municipal Code (Code) (65
ILCS 5/10-2.1-1 et seq. (West 1996)); (2) whether section 7 of
the Illinois Public Labor Relations Act (the Act) (5 ILCS 315/7
(West 1996)) exempts the City from any duty to bargain
collectively over subject matter contained in the Code; (3)
whether the award is invalid as a matter of law; and (4) whether
the award unlawfully vitiates the role of the circuit court in
the administrative review of decisions of the BFPC.
In July 1988, defendant was certified by the Illinois State
Labor Relations Board (ISLRB) as the exclusive bargaining
representative for the City's patrol officers and sergeants.
While negotiating a collective bargaining agreement, the parties
were unable to reach agreement on the issue of allowing City
employees to grieve and arbitrate discipline. In 1989, after the
parties reached impasse, they proceeded to interest arbitration
pursuant to section 14 of the Act. 5 ILCS 315/14 (West 1996).
The parties disagreed over the employee grievance and
arbitration process, apparent in each parties' offered
contractual language. The City proposed that the bargaining
agreement should not modify the authority of the BFPC, which will
retain the sole and exclusive authority to resolve disputes over
disciplinary suspensions of five days or more or discharge, and
that the grievance/arbitration procedure would apply only to
matters outside the scope of the BFPC's authority. Defendant
proposed that City employees have the option of appealing
disciplinary decisions either to the BFPC or to arbitration. Its
proposal contained the following language:
"Grievances may be filed with respect to any
disciplinary action (other than an oral
reprimand) taken against an employee when an
employee believes the disciplinary action is
not for just cause. *** If the discipline
is ordered by the [BFPC], the grievance may
be appealed directly to arbitration within 10
calendar days after the issuance of the
disciplinary decision."
At the commencement of the interest arbitration hearing, the
City objected that section 7 of the Act (5 ILCS 315/7 (West
1996)) exempts the City from any duty to bargain over this issue.
The arbitrator overruled the objection and the hearing was held,
after which the arbitrator adopted defendant's proposal.
The City filed an action in the circuit court to vacate the
interest arbitration award. The City maintained that the
disciplinary provision is unlawful because the City lacks the
authority to implement the provision. The City, as a non-home-
rule municipality with a population over 5,000, is subject to the
Code (65 ILCS 5/10-2.1-1 et seq. (West 1996)), which sets forth
mandatory procedures to be followed in disciplining police
officers and firefighters. Accordingly, if the City must comply
with the Code, it cannot comply with the interest arbitration
award.
Both parties filed motions for summary judgment. The trial
court phrased the issue before it as "whether the procedure for
disciplining police officers was a proper subject for collective
bargaining and, therefore, whether it was within the authority of
the Arbitrator to make a ruling on this issue." The trial court
concluded that "it was within the authority of the Arbitrator to
allow police officers to submit disciplinary grievances to
arbitration." Thus, the court granted defendant's motion and
denied that of the City. This appeal follows.
We are asked to determine whether the arbitrator had the
authority to impose the interest arbitration award on the City, a
non-home-rule municipality operating under a mandatory BFPC
system. A non-home-rule entity possesses no inherent
governmental powers not specifically provided to it by the
General Assembly. Ill. Const. 1970, art. VII, 8. Non-home-rule
municipalities that have a population of more than 5,000
residents, such as the City, must adhere to the Code. See 65
ILCS 5/10-2.1-1 et seq. (West 1996). The Code includes specific
statutory procedures that a municipality must follow in
disciplining and terminating its employees. See 65 ILCS 5/10-
2.1-1 et seq. (West 1996). Since non-home-rule municipalities
lack the power to abolish or amend any statutory mandates,
including those found in the Code, unless the legislature
specifically grants it such power, a non-home-rule municipality
cannot avoid its statutory obligations by contracting with a
labor union, such as defendant in this case.
Not only is the Code binding on the City, but the City is
precluded under section 7 of the Act (5 ILCS 315/7 (West 1996))
from bargaining over matters that are covered by the Code. The
Act governs the collective bargaining relationships of public
employers and employees in Illinois. Section 7 of the Act
provides:
"A public employer and the exclusive
representative have the authority and the
duty to bargain collectively ***
***
*** with respect to wages, hours, and other
conditions of employment, not specifically
provided for in any other law or not
specifically in violation of the provisions
of any law." (Emphasis added.) 5 ILCS 315/7
(West 1996).
In the present case, the Union proposed and the interest
arbitrator awarded a contract provision providing for arbitration
of police officer discipline at the employee's option, provided
the employee agrees to forgo the procedural safeguards afforded
by the Code. However, the Code specifically mandates:
"[N]o officer or member of the fire or police
department of any municipality subject to ***
[the Code] shall be removed or discharged
except for cause, upon written charges, and
after an opportunity to be heard in his own
defense. *** The [BFPC] shall conduct a
fair and impartial hearing of the charges, to
be commenced within 30 days of the filing
thereof, which hearing may be continued from
time to time. In case an officer or member
is found guilty, the board may discharge him,
or may suspend him not exceeding 30 days
without pay." 65 ILCS 5/10-2.1-17 (West
1996).
According to the relevant and explicit statutory language,
because the discipline of police officers is "specifically
provided for" in the Code, it is not a proper subject of
bargaining, pursuant to section 7 of the Act. 5 ILCS 315/7 (West
1996). Thus, the parties are precluded from bargaining over
employee discipline altogether. We find that the arbitrator
lacked the authority to issue an interest award that ignores the
limitations imposed by section 7 of the Act and forces the City
to violate the express mandates of the Code.
We disagree with the circuit court that resolution of this
case ought to be premised on the Illinois Supreme Court's ruling
in City of Decatur v. American Federation of State, County &
Municipal Employees, Local 268, 122 Ill. 2d 353, 522 N.E.2d 1219
(1988). That case involved the same issue, namely, whether
section 7 of the Act effectively limits the bargaining power of
public employees, but there are two significant differences that
make Decatur stand apart from the present case. First, the civil
service commission in Decatur was optional; the Code in this case
is a mandatory civil code. Second, Decatur is a home-rule
municipality, whereas the City is a non-home-rule entity. Thus,
the City of Decatur, unlike the City here, had the sole and
exclusive ability to control which parts of its optional civil
service code it would adopt, alter, amend or abolish.
In line with our reasoning above, the interest arbitration
award is invalid as a matter of law in that it allows City
employees to forgo judicial review of a final BFPC decision, as
provided in the Code, and instead demand arbitration to challenge
the decision. The Code expressly provides: "The provisions of
the Administrative Review Law *** shall apply to and govern all
proceedings for the judicial review of final administrative
decisions of the [BFPC] hereunder." 65 ILCS 5/10-2.1-17 (West
1996). Thus, not only does the Code provide for the discipline
of public employees, but it also provides the means by which BFPC
disciplinary decisions are to be appealed.
Illinois courts have held that, according to the Code,
administrative review is the exclusive means by which to
challenge decisions by a board of fire and police commissioners.
See Burgess v. Board of Fire & Police Commissioners, 275 Ill.
App. 3d 315, 320, 655 N.E.2d 1157, 1160 (1995) (holding that "all
final decisions rendered by boards of fire and police
commissioners constituted under the [Code] *** are reviewable
exclusively under the Administrative Review Law" (emphasis
omitted)). Courts have also noted the important state policies
advanced by having administrative review act as the sole method
for appealing a decision of a board of fire and police
commissioners. In Marozas v. Board of Fire & Police
Commissioners, 222 Ill. App. 3d 781, 584 N.E.2d 402 (1991), the
court stated:
"The purpose of administrative review is 'to
make certain the agency has acted within its
judicial bounds defined by law, to guard
those statutory and constitutional rights
guaranteed to one subject to administrative
action, and to ascertain whether the record
supports the order issued.'" Marozas, 222
Ill. App. 3d at 791, 584 N.E.2d at 408-09,
quoting Edwards v. City of Quincy, 124 Ill.
App. 3d 1004, 1012 (1984).
In this case, defendant proposed, and the interest
arbitrator awarded, a contract provision that creates an entirely
different procedure for appealing final disciplinary decisions of
the BFPC from that found in the Code by permitting City employees
to submit disciplinary grievances to arbitration. We disagree
with the trial court that the award merely supplements the
procedure provided by the Code, which states unequivocally that
administrative review shall be the exclusive means to challenge
final decisions by the BFPC. The Code specifically provides the
means for review of BFPC decisions and the City is not permitted
to deviate from its mandates. By upholding the interest
arbitration award, the circuit court erred as a matter of law.
For the foregoing reasons, we reverse the judgment of the
circuit court of Cook County.
Reversed.
O'BRIEN, P.J. and GALLAGHER, J., concur.