McTique v. Personnel Bd. of City of Chicago
Annotate this Case
Fourth Division
September 24, 1998
No. 1-97-3893
JAMES P. McTIGUE, ) APPEAL TO THE
) CIRCUIT COURT OF
Petitioner/Plaintiff-Appellant, ) COOK COUNTY.
)
v. )
)
PERSONNEL BOARD OF THE CITY OF CHICAGO; )
CHICAGO DEPARTMENT OF GENERAL SERVICES; )
THE CITY OF CHICAGO; THE REVEREND LUCIUS)
HALL, Chairman of the Personnel Board of)
The City of Chicago; TIMOTHY J. JOHNS, )
Board Member of the Personnel Board of )
the City of Chicago; ROBERT G. GIBSON, )
Board Member of the Personnel Board of )
the City of Chicago; and BENJAMIN REYES,)
Commissioner of the Department of )
General Services, all named solely in )
their official capacities, ) HONORABLE
) STEPHEN SCHILLER,
Respondents/Defendants-Appellees ) JUDGE PRESIDING.
JUSTICE WOLFSON delivered the opinion of the court:
Few Chicagoans will forget that morning in April 1992 when a
section of the underground freight tunnel gave way and the river
flooded into the tunnel, then into basements and sub-levels of
numerous "loop" buildings, including City Hall. The flood
affected electric service, telephone service, and the sewer
system. Workers had to be sent home. The City's downtown area
was crippled.
Inquiries immediately began to determine how and why this
tragedy occurred and what could have been done to avoid it. One
result of that inquiry was the discharge of City employee James
P. McTigue. This case is a review of that administrative
decision. We conclude McTigue should not have been discharged.
FACTS
In January 1992, McTigue had been a City employee for nearly
10 years. He was assigned to the Department of General Services
and held the title of Engineering Technician V. Though McTigue
had several duties, one of his functions was "resident engineer"
of the Chicago Freight Tunnel, a tunnel (once 62 miles long)
which runs beneath much of the loop area of Chicago. The tunnel
has no lighting. Portable lighting, such as flashlights or
miners' hats, are required to see inside the tunnel. Many areas
are damp and muddy.
McTigue described his responsibilities with regard to the
tunnel:
"I received weekly reports on the condition of our
pumps in various strategic locations in the tunnel.
The City electrician would go around once a week and
inspect the pumps. If everything was working properly,
they would call me and tell me everything was okay. If
there was a problem, I would go down and inspect the
problem, determine the solution and bring in the people
to take care of the problem.
Also, I inspected -- I looked over plans for
installations of fiber optics, cable tv,
telecommunications, Illinois Bell Telephone, and
Commonwealth Edison. And I was involved in approving
plans and making sure that installations were put in
according to specifications."
McTigue said he generally did not enter the tunnel unless he
had a purpose. It was uncontradicted that the Department of
General Services, for which McTigue worked, had neither the
responsibility nor the resources to repair or maintain the
tunnels.
In either late January or early February, McTigue said, a
Chicago Cable worker told him about a possible problem in the
tunnel -- what appeared to be a cave-in in the tunnel near
Kinzie, east of Kingsbury. Shortly after receiving this
information, McTigue said, he inspected the tunnel in the area
mentioned. He found no cave-in. He did find an old breach east
of Kingsbury, near Hubbard, where a piling had been driven into
the ground and had broken through the tunnel. This old breach
had already been repaired and was unrelated to the April flood.
Later, on February 26, 1992, McTigue saw some Chicago Cable
workers while he was in the tunnel working on an unrelated
matter. Again, the cable workers mentioned a cave-in on Kinzie,
east of Kingsbury. McTigue told them he had inspected the area
and found nothing. He asked the cable installers to call him the
next day with more details on the location of the problem.
McTigue said he never heard from Chicago Cable again and he took
no further action until March 13, 1992.
There is nothing in McTigue's work diary regarding the
reports he received in January and/or February about a cave-in.
Nor is there anything in the diary to support McTigue's statement
that he inspected the area near Kinzie, east of Kingsbury, after
being notified of such a problem.
McTigue's diary does reflect, however, that he entered the
tunnel on Friday, March 13, 1992. On this day, McTigue was
accompanied by Tim Linder and Eric Grundke from Kiewitt, a
company installing fiber optics in the tunnel. After inspecting
installation work done by Kiewitt, McTigue said, he asked Linder
and Grundke to accompany him while he looked for a possible cave-
in near Kinzie. While proceeding on Kinzie, they continued on
past Kingsbury. The tunnel makes some 45-degree bends in this
area. After rounding two bends, McTigue discovered a cave-in of
the north face of the tunnel wall at Kinzie, approximately 340
feet west of Kingsbury. The hole in the wall was approximately
four feet wide and 10 feet long. Mud and "silt" had flowed into
the tunnel. A thorough inspection of the hole could not be
conducted because so much silt was present McTigue couldn't get
within 10 feet of the hole.
Back at the office, either that same day or early the
following Monday, March 16, 1992, McTigue plotted the position of
the breach against maps he had of the tunnels and determined the
breach was located in a part of the tunnel which ran under the
river. McTigue reported the situation to his supervisor.
On March 17, 1992, McTigue was able to reach Tim Later, head
of the Department of Transportation, and Ted Maynard, Chief Soils
Engineer, to notify them of the breach.
On March 18, 1992, McTigue accompanied Assistant Soils
Engineer Chawla to the breach site. McTigue took pictures of the
breach in the tunnel wall, which on closer inspection revealed a
void that extended back about 12 feet, exposing old and new
pilings. Water was seeping in.
An inspection from above indicated that new support pilings
had been driven into the ground in connection with the Kinzie
Street Bridge project, which had begun in September, 1991.
On March 25, 1992, Linder went with McTigue to Tim Later's
officer regarding another matter. In the course of the
conversation, a discussion began on possible solutions to the
tunnel cave-in problem. Later said, "I don't want to hear
anything about that."
McTigue and Linder left Later's office and proceeded to
Maynard's office. While speaking with Maynard, again the
conversation turned to the tunnel wall cave-in. Maynard cut off
the discussion, saying, "Don't worry about it, it's too far under
the river for anything to happen."
On April 1, 1992, the City's Chief Engineer and other high-
ranking employees from the Department of Transportation met to
determine what should be done about the tunnel breach. McTigue
was the only employee from the Department of General Services to
attend the meeting. After much discussion it was decided that
bulkheads should be installed to isolate the area around the
breach. The installation of these bulkheads was to be contracted
out. Arrangements were then made to solicit bids on the project.
According to McTigue's supervisor, after the breach was
discovered in March 1992, McTigue's responsibility with regard to
the tunnel centered around providing guide service for persons
wishing to enter the tunnel.
On April 13, 1992, the breach ruptured. The river flooded
into the tunnel and the sub-levels of loop-area buildings.
Procedural Background
On April 16, 1992, McTigue was brought to the offices of the
City's Deputy Corporation Counsel. He was questioned about his
discovery of the tunnel breach and his conduct after the
discovery was made. He was questioned about entries to his work
diary and a hand-written report found on his desk after the
flood.
Soon after, McTigue was notified that his discharge was
being considered. He was given a "Statement of Charges" in which
he was told he had violated Personnel Rule XVIII, section 1,
subparagraphs 8, 29, 36, 39, and/or 50.
The charges:
"1. You failed to conduct an appropriate investigation
after being notified in February, 1992, of a "cave-in"
in the City's freight tunnel, thereby performing your
duties in a careless and incompetent manner.
2. You failed to promptly inspect and/or evaluate the
freight tunnel in March, 1992.
3. You filed a false report in connection with the
investigation of the crack and/or cave-in in the
freight tunnel."
McTigue provided a written response to these charges. After
reviewing the charges and McTigue's response, the head of the
Department of General Services, Commissioner Benjamin Reyes,
notified McTigue in a letter dated May 5, 1992, that the decision
had been made to discharge him effective May 6, 1992.
McTigue sought review of the discharge by filing a petition
for a hearing with the Personnel Board of the City of Chicago.
Beginning June 11, 1992, a series of hearings was held. On
October 5, 1992, a hearing officer issued a report recommending
McTigue's discharge be upheld. The hearing officer made no
specific findings as to which personnel rules had been violated.
Two days later, on October 7, 1992, the Personnel Board
issued its decision to uphold McTigue's discharge according to
the Hearing Officer's recommendations.
On November 20, 1992, McTigue petitioned the circuit court
of Cook County for a Writ of Certiorari, asking the court to
review and set aside the Personnel Board's decision to uphold his
discharge.
On May 6, 1994, Judge John M. Hourihane reversed the Board's
decision and remanded the matter for a new hearing. In passing
judgment, Judge Hourihane remarked:
"In a statement of charges it was indicated that the
plaintiff was in violation of Personnel Rule 18 Section
1 Subparagraphs 8, 29, 36, 39, and/or 50. Of the
charged violations only Section 8, making false,
inaccurate, or deliberately incomplete statements in an
official inquiry, investigation, or other proceeding,
authorizes discharge for the first offense."
The court then found it was error for the Personnel Board to
have upheld McTigue's discharge based on allegedly false
statements made to the Deputy Corporation Counsel. McTigue never
had been charged with making false statements to investigators.
A second hearing was held before another hearing officer.
On January 9, 1995, this hearing officer reported to the
Personnel Board:
"The evidence established that Respondent violated Personnel
Rule XVIII, Section 1, Subparagraphs 8, 29 and 39.
Accordingly, Respondent's discharge should be upheld."
Subparagraph 8 states:
"Making false, inaccurate or deliberately incomplete
statements in an official inquiry, investigation or
other official inquiry."
Subparagraph 29 states:
"Failing to take action as needed to complete an
assignment or perform a task safely."
Subparagraph 39 states:
"Incompetence or inefficiency in the performance of the
duties of the position. This means performance of the
duties of the position at a level lower than that
ordinarily expected of other employees in similar
positions, due either to lack of ability, knowledge, or
fitness, lack of effort or motivation, carelessness, or
neglect."
On January 26, 1995, the Personnel Board, once again,
adopted the hearing officer's findings and recommendation.
McTigue's discharge, based on violation of the three personnel
rules cited above, was affirmed.
McTigue filed a Petition for a Writ of Certiorari with the
circuit court of Cook County for review of the Board's decision.
On June 3, 1997, Judge Steven A. Schiller found the evidence did
not support a finding that McTigue's conduct after March 13,
1992, violated any personnel rule. Also, the court said there
was no evidence McTigue ever filed a false report. The court
remanded the case to the Board to consider whether McTigue's
violation of subparagraphs 29 and 39 warranted discharge or some
other discipline.
The Personnel Board affirmed McTigue's discharge for the
third time.
On September 17, 1997, the trial court heard argument on
McTigue's motion to reconsider, as well as his petition to
reverse the Board's most recent decision to uphold the discharge.
Judge Schiller found the Personnel Rules allowed for dismissal,
even for first-time violations of subparagraphs 29 and 39. The
circuit court affirmed McTigue's dismissal.
McTigue filed this timely appeal.
DECISION
McTigue asks this court to consider three issues: (1)
whether the Board's finding that McTigue violated Rule XVIII,
Section 1, subparagraphs 29 and 39 was against the manifest
weight of the evidence; (2) even if McTigue did violate these
sections, whether the Personnel Rules of the City of Chicago
provide for dismissal of an employee for a first-time violation
of subparagraphs 29 and 39; and (3) if discharge is available,
whether the standard to be used by the Board to determine "cause"
for discharge is the "just cause" standard required by the
collective bargaining agreement.
1. Manifest Weight
We first address the Personnel Board's finding that McTigue
violated subparagraphs 29 and 39. Based on Judge Schiller's June
3, 1997, order, that McTigue's conduct after March 13, 1992,
violated none of the personnel rules, our review is limited to a
consideration of whether it was against the manifest weight of
the evidence for the Board to have found that McTigue's conduct
prior to March 13, 1992, violated rules 29 and 39. See Walsh v.
Board of Fire & Police Comm'rs, 96 Ill. 2d 101, 449 N.E.2d 115
(1983)(an administrative agency's findings will be upheld unless
they are against the manifest weight of the evidence). An
administrative finding is against the manifest weight of the
evidence only if no rational trier of fact could agree with the
determination, viewing the evidence in a light most favorable to
the agency. Chief Judge of Circuit Court v. AFSCME, Council 31,
153 Ill. 2d 508, 514, 607 N.E.2d 182 (1992). We do not reweigh
the evidence or substitute our own opinion. Pundy v. Department
of Professional Regulation, 211 Ill. App. 3d 475, 483, 570 N.E.2d 458 (1991).
It is true, as McTigue points out, the only evidence
regarding his conduct in relation to the tunnel prior to March
13, 1992, came from his own testimony. Though there are no
notations in his work diary, McTigue said he was told by cable
installers, in late January or early February, there was a cave-
in in the tunnel on Kinzie, east of Kingsbury. He said he
immediately inspected the area and found nothing. Again, he
received notification about a cave-in on February 26, 1992. He
took no action because the cable installers failed to call him
with more details about the location. It wasn't until March 13,
1992, when McTigue, on his own initiative, he says, inspected the
tunnel west of Kingsbury and discovered the breach.
The Board found from the evidence presented that McTigue
"failed to take action as needed" (subparagraph 29) and "was
incompetent or inefficient in the performance of his duties due
to neglect" (subparagraph 39). By his own admission, McTigue
first learned of a possible breach in the tunnel as early as mid-
January 1992. He made an inspection, but didn't go far enough.
When told a second time, McTigue took no action for at least two
weeks. Under these circumstances, we reluctantly conclude the
Board's conclusion that McTigue violated Rule XVIII, section 1,
subparagraphs 29 and 39, while resting on a thin foundation, is
not against the manifest weight of the evidence.
2. Availability of discharge under the Personnel Rules
We now consider whether dismissal is an available discipline
for a first-time violation of subparagraphs 29 and 39.
The City of Chicago Personnel Rules handbook states:
"Rule XVIII - Disciplinary Actions and Procedures for
Career Service Employees
Section 1 - Causes for Action
The City of Chicago has an interest in promotion
order and general welfare of all employees [sic], as
well as the general public. The City of Chicago, a
public employer, requires that its employees perform
their duties in a manner which furthers the efficiency
and best interests of the City, and which results in
the highest level of public trust and confidence in
municipal government.
The department head has the authority and
responsibility to take disciplinary action against any
employee whose conduct does not further the efficiency and
best interests of the City of Chicago. The degree of
discipline to be meted out is dependent on various factors,
including, but not limited to, the seriousness of the
offense, the employee's work record and the totality of the
circumstances. The following conduct, discussed below, when
engaged in by an employee, will result in disciplinary
action unless the employer, taking all circumstances into
account, deems it to be excusable. Conduct denoted with an
asterisk may result in discharge action for the first
offense under appropriate circumstances as described below.
As with all the Personnel Rules, it should be
noted that if an employee is covered by a collective
bargaining agreement, that agreement shall govern in
the event of a conflict between any part of this Rule
and any such agreement. Employees covered by such
agreement can only be discharged for just cause."
(Emphasis added.)
After these introductory paragraphs, the section breaks down
into 50 subparagraphs, each listing an example of conduct which
could result in disciplinary action. Thirty-six of the 50
subparagraphs are preceded by an asterisk. Eight of those 36
subparagraphs contain additional qualifying conditions in capital
letters; for example, subparagraph 2:
"2. Leaving the department, office, or work site with-
out proper authorization. DISCHARGE FOR FIRST
OFFENSE APPLICABLE ONLY WHERE THE HEALTH, SAFETY
OR WELFARE OF A PERSON IS ENDANGERED."
The obvious intent of section 1 is to distinguish between
grave or serious misconduct on the one hand, and minor or trivial
violations on the other. The distinguishing mark is the
asterisk. For instance, absenteeism and tardiness that endanger
someone's health, safety, or welfare bear the asterisk. So do
"MISREPRESENTATIONS" and "CRIMINAL OR IMPROPER CONDUCT,"
categories involving wilful or criminal behavior of a serious
kind. It is when the subparagraphs reach "CONDUCT INVOLVING JOB
PERFORMANCE" that the asterisks begin to fall away, attaching
only to serious violations, such as failing to live in the City
of Chicago or violating the City's ethics ordinance.
The two subparagraphs which McTigue ultimately was found to
have violated, subparagraphs 29 and 39, are NOT preceded by an
asterisk. McTigue contended in the circuit court, and still
maintains, the absence of an asterisk before a subparagraph
indicates discharge is not an available disciplinary measure when
the employee is found to have violated the provision for the
first time.
The Personnel Board disagreed and the circuit court
affirmed, finding a department head has the authority and
discretion to dismiss an employee for a first-time violation of
any subparagraph, whether or not it is preceded by an asterisk.
In reaching this ruling, the circuit court relied on section 2 of
Rule XVIII, entitled "Progressive Discipline." This section
provides:
"The City of Chicago approves of the concept of progressive
and corrective discipline for Career Service Employees and
recommends its use when appropriate. Progressive discipline
is a systematic approach to correct unwanted behavior and
deterring its occurrence by administering disciplinary
actions based upon various factors, including but not
limited to, the severity of the infraction, the number of
times it has occurred, and the totality of the circumstances
surrounding the misconduct. The City of Chicago uses
progressive discipline in its discretion and does not solely
rely on this concept in every instance when taking
disciplinary action.
While it is not possible to list every act which will
or might result in disciplinary action, actions
itemized above reflect conduct which is deemed to be
inappropriate and which may result in disciplinary
action. The list is not exhaustive, but is offered
instead to generally provide notice of inappropriate
conduct. Supervisors may deem that conduct other than
that itemized above is improper and warrants
discipline. Further, the department head, or his/her
designee, has the discretion to determine what degree
of discipline is appropriate after weighing all the
situational factors involved in the misconduct."
This court must interpret the Personnel Rules and decide the
significance, if any, of the asterisk preceding certain
subparagraphs, but not others. The parties are unable to cite to
any caselaw directly on point. We cannot find any.
This is not a case where we have to decide whether the
regulations constitute an enforceable employment contract. The
City agrees they do. Our task is to determine the meaning of the
regulations.
Our review of the Personnel Board's interpretation of its
rules is de novo (Peerless Wholesale Liquors, Inc. v. Illinois
Liquor Control Comm'n, 296 Ill. App. 3d 230, 233, 694 N.E.2d 620
(1998)), though we give the administrative agency's
interpretation of its rules considerable deference (Mattis v.
State Universities Retirement System, 296 Ill. App. 3d 675, 679,
695 N.E.2d 566 (1998)). The agency's interpretation is not
binding if this court finds it to be erroneous. Denton v. Civil
Service Comm'n, 176 Ill. 2d 144, 148, 679 N.E.2d 1234 (1997).
In general, rules courts use to construe statutes also apply
to the interpretation of municipal ordinances. In re Application
of County Collector, 132 Ill. 2d 64, 547 N.E.2d 107 (1989);
McArdle v. Rodriguez, 277 Ill. App. 3d 365, 659 N.E.2d 1356
(1995). The parties agree the City's Personnel Rules,
promulgated under the authority of Chicago's Municipal Code, have
the force and effect of law and must be construed using the same
standards used when construing statutes. See Northern Illinois
Automobile Wreckers and Rebuilders Ass'n v. Dixon, 75 Ill. 2d 53,
387 N.E.2d 320 (1979)(administrative rules and regulations have
the force and effect of law and must be construed under standards
governing construction of statutes).
The cardinal rule when construing statutes is to ascertain
and give effect to legislative intent. Cummins v. Country Mutual
Insurance Co., 178 Ill. 2d 474, 478, 687 N.E.2d 1021 (1997). The
best indicator of intent is the plain and unambiguous language of
the statute. Opyt's Amoco, Inc. v. South Holland, 149 Ill. 2d 265, 277, 595 N.E.2d 1060 (1992). Where the language of the
statute is plain, it is not the court's function to search
further for some "subtle or not readily apparent" intent.
DiFoggio v. Retirement Board of the County Employees Annuity &
Benefit Fund, 156 Ill. 2d 377, 383, 620 N.E.2d 1070 (1993). "A
court is not free to rewrite legislation, or to ignore an express
requirement contained in a statute." People v. Palmer, 148 Ill. 2d 70, 88, 592 N.E.2d 940 (1992).
When interpreting a statute, a court may not read into the
statute a limitation not enacted by the legislature, nor can it
read out of the statute, "by subtle construction or otherwise," a
limitation which the legislature enacted. Palmer, 148 Ill. 2d at
85. No sentence, clause, or word should be interpreted in a way
that renders it superfluous or meaningless. People v. Bartlett,
294 Ill. App. 3d 435, 690 N.E.2d 154 (1998); Warren v. Borger,
184 Ill. App. 3d 38, 539 N.E.2d 1284 (1989). If two
interpretations are possible, the one that gives all words in the
statute some meaning will be the one that is more reasonable.
People v. Bartlett, 294 Ill. App. 3d at 439. It should be
remembered, too, "*** there is no canon against using common
sense in construing laws as saying what they obviously mean."
Johnson v. Partee, 105 Ill. 2d 186, 473 N.E.2d 944 (1984),
quoting Roschen v. Ward, 279 U.S. 377, 339, 73 L. Ed. 722, 728,
49 S. Ct. 336 (1929).
Citing to Frank v. South Suburban Hospital Foundation, 256
Ill. App. 3d 360, 628 N.E.2d 953 (1993), the City contends
McTigue's dismissal was proper because "a handbook or policy
which provides that progressive discipline 'may' be used, but
allows for discharge on the first offense for certain serious
conduct, does not mandate progressive discipline."
The issue in this case, however, is not whether progressive
discipline is mandated, regardless of the violative conduct.
McTigue does not claim discharge never can be imposed for a first
offense. The Personnel Rules clearly provide for the possibility
of dismissal for first offenses in certain instances, as did the
employee manual in Frank.
The question here is whether the City, by the language it
used in section 1 of Personnel Rule XVIII, has limited itself in
its ability to consider dismissal as a form of discipline for
first-time violations in certain, specific instances, i.e, where
the violative conduct is described in a subparagraph not preceded
by an asterisk.
The City contends an interpretation of section 1 which
places such a limit on the City's ability to proceed directly to
dismissal, "renders surplusage the discretion allowed [in Section
2] in deciding whether to impose progressive discipline." We
disagree.
On the contrary, we think an interpretation of section 2
which would allow the City to dismiss an employee for any conduct
prohibited in section 1, regardless of whether the conduct is
listed in a subparagraph preceded by an asterisk, would render
the language regarding the asterisk in section 1 meaningless.
Nor would there be any reason for the eight capitalized
qualifying conditions for first offense discharge in the
asterisked subparagraphs.
In Silverman v. Economy Fire and Casualty Co., 272 Ill. App.
3d 490, 650 N.E.2d 603 (1995), this court found that boldface
type used in an insurance contract was "purposely inserted and
not employed idly." When the boldface type wasn't employed, the
same meaning did not attach.
Applying the same logic to the facts of this case, we find
no reason for the City to place asterisks before some
subparagraphs but not others, unless it intended the asterisks to
mean something. See also, People v. Jordan, 103 Ill. 2d 192, 469 N.E.2d 569 (1984)(construction of statute is too narrow if it
would, in effect, omit the words "the class of" from the subject
clause); People v. Bartlett, 294 Ill. App. 3d 435, 690 N.E.2d 154
(1998)(interpretation which renders the word "statement"
meaningless rejected).
Rather than interpreting the Personnel Rules in a way which
ignores the asterisks and the language concerning the use of the
asterisks at the beginning of section 1, it is more reasonable to
interpret the rule in a way which gives recognition to all
language used. People v. Bartlett, 294 Ill. App. 3d at 439 (If
two interpretations are possible, the one that gives all words in
the statute some meaning will be the one that is more
reasonable).
The Personnel Rules, having the force and effect of law, as
the parties agree, can be looked on as a type of employment
contract. The Rules, therefore, like an employee handbook,
create binding contractual obligations. See Duldulao v. St. Mary
of Nazareth Hospital Center, 115 Ill. 2d 482, 505 N.E.2d 314
(1987)(employee handbooks, under certain circumstances, can be
contractually binding). Also, see Williams v. Chicago Housing
Authority, 217 Ill. App. 3d 1055, 578 N.E.2d 71 (1991)(Duldulao
applied to contracts with public employer.)
Here an employee reasonably would have interpreted the
absence of an asterisk before certain subparagraphs of Rule
XVIII, sec. 1, to mean he or she could not be dismissed for
first-time violations of these provisions. That became a valid
contractual promise. See Belsanti v. CFS Holdings, Inc., 260
Ill. App. 3d 419, 632 N.E.2d 10 (1992). Public agencies,
especially, should keep their promises.
A reasonable interpretation of section 1 is that the City
gave its employees notice certain conduct was unacceptable and
would result in disciplinary action being taken against them,
unless circumstances demonstrated the conduct to be excusable.
City employees were also put on notice that certain conduct, by
its very nature, is a more serious offense and, for this reason,
might result in dismissal, even for a first-time offense. These
behaviors, the City tells its employees, are denoted by an
asterisk.
The rules carefully circumscribe the situations where first-
time conduct can result in discharge. If the City could
discharge for any first-time conduct anyway, there would be no
reason to place limits on Rule XVIII, section 1 subparagraphs
where the asterisk appears.
Section 2, entitled "Progressive Discipline," read in
conjunction with section 1, is a promise that progressive
discipline will be employed whenever possible. While the City
recommends progressive discipline, that procedure is not
mandatory. Department heads are afforded considerable discretion
and authority to bypass steps in the progression when deemed
necessary.
Sections 1 and 2, when read together, however, inform the
employee that the department heads' discretion to bypass
progressive discipline and proceed directly to discharge will be
limited by restrictions on that power, as set forth in section 1.
That is, the discretionary power of department heads does not
reach discharge for first-time violations of section 1
subparagraphs not preceded by an asterisk.
If the City intended some other result it would have been
easy to say so in section 2. (For example, "Nothing in these
rules is intended to prevent the discharge of employees for
first-time violations of any subparagraph in section 1.") We
believe the point of the second paragraph in section 2 is to
empower department heads to impose discipline for misconduct not
specifically listed in section 1. Here, however, we are
concerned with violations of particular subparagraphs.
The basic rule of statutory construction tells us where
"...a statute lists the things to which it refers, there is an
inference that all omissions should be understood as exclusions,
despite the lack of any negative words of limitation." Solich v.
George and Anna Portes Cancer Prevention Center, 158 Ill. 2d 76,
82, 630 N.E.2d 820 (1994). Section 1 lists the specific "things"
that support a first-time discharge -- the subparagraphs preceded
by an asterisk. The inference that follows is that the
subparagraphs containing no asterisks were intended to exclude
discharge for first-time violations.
Our interpretation of Personnel Rule XVIII is reasonable and
gives significance to the language contained in both sections 1
and 2, without rendering any words or symbols meaningless.
A finding that the City intended, in every case, to allow
department heads the discretion to proceed directly to dismissal
for a violation of any one of the personnel rules, first-time
conduct or not, is contrary to the unambiguous language of Rule
XVIII. Such an interpretation would make section 1 meaningless
and would grant unfettered discretion to department heads. The
rules would mean whatever the City wants them to mean. There
would be no predictability or stability to the rules. If that is
the City's purpose, it should say so -- clearly and simply.
Employers know how to reserve discretion to themselves when it
comes to reasons for discharge. See Mitchell v. Jewel Food
Stores, 142 Ill. 2d 152, 170-71, 568 N.E.2d 827 (1990).
3. Just Cause Standard
Since we find the Personnel Rules do not provide for
discharge of an employee for a first-time violation of
subparagraphs 29 and 39, we need not consider McTigue's third
issue -- whether the "just cause" standard was applied when the
Board decided that discharge was the appropriate disciplinary
action.
CONCLUSION
We affirm the Board's finding that McTigue violated
subparagraphs 29 and 39. The decision of the Personnel Board to
uphold McTigue's discharge based on his first-time violations of
these subparagraphs, however, is reversed. Another level of
discipline, other than discharge, may be imposed. We remand to
the Personnel Board for that purpose.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
SOUTH, P.J. and McNAMARA, J., concur.
September 24, 1998
No. 1-97-3893
JAMES P. McTIGUE, ) APPEAL TO THE
) CIRCUIT COURT OF
Petitioner/Plaintiff-Appellant, ) COOK COUNTY.
)
v. )
)
PERSONNEL BOARD OF THE CITY OF CHICAGO; )
CHICAGO DEPARTMENT OF GENERAL SERVICES; )
THE CITY OF CHICAGO; THE REVEREND LUCIUS)
HALL, Chairman of the Personnel Board of)
The City of Chicago; TIMOTHY J. JOHNS, )
Board Member of the Personnel Board of )
the City of Chicago; ROBERT G. GIBSON, )
Board Member of the Personnel Board of )
the City of Chicago; and BENJAMIN REYES,)
Commissioner of the Department of )
General Services, all named solely in )
their official capacities, ) HONORABLE
) STEPHEN SCHILLER,
Respondents/Defendants-Appellees ) JUDGE PRESIDING.
JUSTICE WOLFSON delivered the opinion of the court:
Few Chicagoans will forget that morning in April 1992 when a
section of the underground freight tunnel gave way and the river
flooded into the tunnel, then into basements and sub-levels of
numerous "loop" buildings, including City Hall. The flood
affected electric service, telephone service, and the sewer
system. Workers had to be sent home. The City's downtown area
was crippled.
Inquiries immediately began to determine how and why this
tragedy occurred and what could have been done to avoid it. One
result of that inquiry was the discharge of City employee James
P. McTigue. This case is a review of that administrative
decision. We conclude McTigue should not have been discharged.
FACTS
In January 1992, McTigue had been a City employee for nearly
10 years. He was assigned to the Department of General Services
and held the title of Engineering Technician V. Though McTigue
had several duties, one of his functions was "resident engineer"
of the Chicago Freight Tunnel, a tunnel (once 62 miles long)
which runs beneath much of the loop area of Chicago. The tunnel
has no lighting. Portable lighting, such as flashlights or
miners' hats, are required to see inside the tunnel. Many areas
are damp and muddy.
McTigue described his responsibilities with regard to the
tunnel:
"I received weekly reports on the condition of our
pumps in various strategic locations in the tunnel.
The City electrician would go around once a week and
inspect the pumps. If everything was working properly,
they would call me and tell me everything was okay. If
there was a problem, I would go down and inspect the
problem, determine the solution and bring in the people
to take care of the problem.
Also, I inspected -- I looked over plans for
installations of fiber optics, cable tv,
telecommunications, Illinois Bell Telephone, and
Commonwealth Edison. And I was involved in approving
plans and making sure that installations were put in
according to specifications."
McTigue said he generally did not enter the tunnel unless he
had a purpose. It was uncontradicted that the Department of
General Services, for which McTigue worked, had neither the
responsibility nor the resources to repair or maintain the
tunnels.
In either late January or early February, McTigue said, a
Chicago Cable worker told him about a possible problem in the
tunnel -- what appeared to be a cave-in in the tunnel near
Kinzie, east of Kingsbury. Shortly after receiving this
information, McTigue said, he inspected the tunnel in the area
mentioned. He found no cave-in. He did find an old breach east
of Kingsbury, near Hubbard, where a piling had been driven into
the ground and had broken through the tunnel. This old breach
had already been repaired and was unrelated to the April flood.
Later, on February 26, 1992, McTigue saw some Chicago Cable
workers while he was in the tunnel working on an unrelated
matter. Again, the cable workers mentioned a cave-in on Kinzie,
east of Kingsbury. McTigue told them he had inspected the area
and found nothing. He asked the cable installers to call him the
next day with more details on the location of the problem.
McTigue said he never heard from Chicago Cable again and he took
no further action until March 13, 1992.
There is nothing in McTigue's work diary regarding the
reports he received in January and/or February about a cave-in.
Nor is there anything in the diary to support McTigue's statement
that he inspected the area near Kinzie, east of Kingsbury, after
being notified of such a problem.
McTigue's diary does reflect, however, that he entered the
tunnel on Friday, March 13, 1992. On this day, McTigue was
accompanied by Tim Linder and Eric Grundke from Kiewitt, a
company installing fiber optics in the tunnel. After inspecting
installation work done by Kiewitt, McTigue said, he asked Linder
and Grundke to accompany him while he looked for a possible cave-
in near Kinzie. While proceeding on Kinzie, they continued on
past Kingsbury. The tunnel makes some 45-degree bends in this
area. After rounding two bends, McTigue discovered a cave-in of
the north face of the tunnel wall at Kinzie, approximately 340
feet west of Kingsbury. The hole in the wall was approximately
four feet wide and 10 feet long. Mud and "silt" had flowed into
the tunnel. A thorough inspection of the hole could not be
conducted because so much silt was present McTigue couldn't get
within 10 feet of the hole.
Back at the office, either that same day or early the
following Monday, March 16, 1992, McTigue plotted the position of
the breach against maps he had of the tunnels and determined the
breach was located in a part of the tunnel which ran under the
river. McTigue reported the situation to his supervisor.
On March 17, 1992, McTigue was able to reach Tim Later, head
of the Department of Transportation, and Ted Maynard, Chief Soils
Engineer, to notify them of the breach.
On March 18, 1992, McTigue accompanied Assistant Soils
Engineer Chawla to the breach site. McTigue took pictures of the
breach in the tunnel wall, which on closer inspection revealed a
void that extended back about 12 feet, exposing old and new
pilings. Water was seeping in.
An inspection from above indicated that new support pilings
had been driven into the ground in connection with the Kinzie
Street Bridge project, which had begun in September, 1991.
On March 25, 1992, Linder went with McTigue to Tim Later's
officer regarding another matter. In the course of the
conversation, a discussion began on possible solutions to the
tunnel cave-in problem. Later said, "I don't want to hear
anything about that."
McTigue and Linder left Later's office and proceeded to
Maynard's office. While speaking with Maynard, again the
conversation turned to the tunnel wall cave-in. Maynard cut off
the discussion, saying, "Don't worry about it, it's too far under
the river for anything to happen."
On April 1, 1992, the City's Chief Engineer and other high-
ranking employees from the Department of Transportation met to
determine what should be done about the tunnel breach. McTigue
was the only employee from the Department of General Services to
attend the meeting. After much discussion it was decided that
bulkheads should be installed to isolate the area around the
breach. The installation of these bulkheads was to be contracted
out. Arrangements were then made to solicit bids on the project.
According to McTigue's supervisor, after the breach was
discovered in March 1992, McTigue's responsibility with regard to
the tunnel centered around providing guide service for persons
wishing to enter the tunnel.
On April 13, 1992, the breach ruptured. The river flooded
into the tunnel and the sub-levels of loop-area buildings.
Procedural Background
On April 16, 1992, McTigue was brought to the offices of the
City's Deputy Corporation Counsel. He was questioned about his
discovery of the tunnel breach and his conduct after the
discovery was made. He was questioned about entries to his work
diary and a hand-written report found on his desk after the
flood.
Soon after, McTigue was notified that his discharge was
being considered. He was given a "Statement of Charges" in which
he was told he had violated Personnel Rule XVIII, section 1,
subparagraphs 8, 29, 36, 39, and/or 50.
The charges:
"1. You failed to conduct an appropriate investigation
after being notified in February, 1992, of a "cave-in"
in the City's freight tunnel, thereby performing your
duties in a careless and incompetent manner.
2. You failed to promptly inspect and/or evaluate the
freight tunnel in March, 1992.
3. You filed a false report in connection with the
investigation of the crack and/or cave-in in the
freight tunnel."
McTigue provided a written response to these charges. After
reviewing the charges and McTigue's response, the head of the
Department of General Services, Commissioner Benjamin Reyes,
notified McTigue in a letter dated May 5, 1992, that the decision
had been made to discharge him effective May 6, 1992.
McTigue sought review of the discharge by filing a petition
for a hearing with the Personnel Board of the City of Chicago.
Beginning June 11, 1992, a series of hearings was held. On
October 5, 1992, a hearing officer issued a report recommending
McTigue's discharge be upheld. The hearing officer made no
specific findings as to which personnel rules had been violated.
Two days later, on October 7, 1992, the Personnel Board
issued its decision to uphold McTigue's discharge according to
the Hearing Officer's recommendations.
On November 20, 1992, McTigue petitioned the circuit court
of Cook County for a Writ of Certiorari, asking the court to
review and set aside the Personnel Board's decision to uphold his
discharge.
On May 6, 1994, Judge John M. Hourihane reversed the Board's
decision and remanded the matter for a new hearing. In passing
judgment, Judge Hourihane remarked:
"In a statement of charges it was indicated that the
plaintiff was in violation of Personnel Rule 18 Section
1 Subparagraphs 8, 29, 36, 39, and/or 50. Of the
charged violations only Section 8, making false,
inaccurate, or deliberately incomplete statements in an
official inquiry, investigation, or other proceeding,
authorizes discharge for the first offense."
The court then found it was error for the Personnel Board to
have upheld McTigue's discharge based on allegedly false
statements made to the Deputy Corporation Counsel. McTigue never
had been charged with making false statements to investigators.
A second hearing was held before another hearing officer.
On January 9, 1995, this hearing officer reported to the
Personnel Board:
"The evidence established that Respondent violated Personnel
Rule XVIII, Section 1, Subparagraphs 8, 29 and 39.
Accordingly, Respondent's discharge should be upheld."
Subparagraph 8 states:
"Making false, inaccurate or deliberately incomplete
statements in an official inquiry, investigation or
other official inquiry."
Subparagraph 29 states:
"Failing to take action as needed to complete an
assignment or perform a task safely."
Subparagraph 39 states:
"Incompetence or inefficiency in the performance of the
duties of the position. This means performance of the
duties of the position at a level lower than that
ordinarily expected of other employees in similar
positions, due either to lack of ability, knowledge, or
fitness, lack of effort or motivation, carelessness, or
neglect."
On January 26, 1995, the Personnel Board, once again,
adopted the hearing officer's findings and recommendation.
McTigue's discharge, based on violation of the three personnel
rules cited above, was affirmed.
McTigue filed a Petition for a Writ of Certiorari with the
circuit court of Cook County for review of the Board's decision.
On June 3, 1997, Judge Steven A. Schiller found the evidence did
not support a finding that McTigue's conduct after March 13,
1992, violated any personnel rule. Also, the court said there
was no evidence McTigue ever filed a false report. The court
remanded the case to the Board to consider whether McTigue's
violation of subparagraphs 29 and 39 warranted discharge or some
other discipline.
The Personnel Board affirmed McTigue's discharge for the
third time.
On September 17, 1997, the trial court heard argument on
McTigue's motion to reconsider, as well as his petition to
reverse the Board's most recent decision to uphold the discharge.
Judge Schiller found the Personnel Rules allowed for dismissal,
even for first-time violations of subparagraphs 29 and 39. The
circuit court affirmed McTigue's dismissal.
McTigue filed this timely appeal.
DECISION
McTigue asks this court to consider three issues: (1)
whether the Board's finding that McTigue violated Rule XVIII,
Section 1, subparagraphs 29 and 39 was against the manifest
weight of the evidence; (2) even if McTigue did violate these
sections, whether the Personnel Rules of the City of Chicago
provide for dismissal of an employee for a first-time violation
of subparagraphs 29 and 39; and (3) if discharge is available,
whether the standard to be used by the Board to determine "cause"
for discharge is the "just cause" standard required by the
collective bargaining agreement.
1. Manifest Weight
We first address the Personnel Board's finding that McTigue
violated subparagraphs 29 and 39. Based on Judge Schiller's June
3, 1997, order, that McTigue's conduct after March 13, 1992,
violated none of the personnel rules, our review is limited to a
consideration of whether it was against the manifest weight of
the evidence for the Board to have found that McTigue's conduct
prior to March 13, 1992, violated rules 29 and 39. See Walsh v.
Board of Fire & Police Comm'rs, 96 Ill. 2d 101, 449 N.E.2d 115
(1983)(an administrative agency's findings will be upheld unless
they are against the manifest weight of the evidence). An
administrative finding is against the manifest weight of the
evidence only if no rational trier of fact could agree with the
determination, viewing the evidence in a light most favorable to
the agency. Chief Judge of Circuit Court v. AFSCME, Council 31,
153 Ill. 2d 508, 514, 607 N.E.2d 182 (1992). We do not reweigh
the evidence or substitute our own opinion. Pundy v. Department
of Professional Regulation, 211 Ill. App. 3d 475, 483, 570 N.E.2d 458 (1991).
It is true, as McTigue points out, the only evidence
regarding his conduct in relation to the tunnel prior to March
13, 1992, came from his own testimony. Though there are no
notations in his work diary, McTigue said he was told by cable
installers, in late January or early February, there was a cave-
in in the tunnel on Kinzie, east of Kingsbury. He said he
immediately inspected the area and found nothing. Again, he
received notification about a cave-in on February 26, 1992. He
took no action because the cable installers failed to call him
with more details about the location. It wasn't until March 13,
1992, when McTigue, on his own initiative, he says, inspected the
tunnel west of Kingsbury and discovered the breach.
The Board found from the evidence presented that McTigue
"failed to take action as needed" (subparagraph 29) and "was
incompetent or inefficient in the performance of his duties due
to neglect" (subparagraph 39). By his own admission, McTigue
first learned of a possible breach in the tunnel as early as mid-
January 1992. He made an inspection, but didn't go far enough.
When told a second time, McTigue took no action for at least two
weeks. Under these circumstances, we reluctantly conclude the
Board's conclusion that McTigue violated Rule XVIII, section 1,
subparagraphs 29 and 39, while resting on a thin foundation, is
not against the manifest weight of the evidence.
2. Availability of discharge under the Personnel Rules
We now consider whether dismissal is an available discipline
for a first-time violation of subparagraphs 29 and 39.
The City of Chicago Personnel Rules handbook states:
"Rule XVIII - Disciplinary Actions and Procedures for
Career Service Employees
Section 1 - Causes for Action
The City of Chicago has an interest in promotion
order and general welfare of all employees [sic], as
well as the general public. The City of Chicago, a
public employer, requires that its employees perform
their duties in a manner which furthers the efficiency
and best interests of the City, and which results in
the highest level of public trust and confidence in
municipal government.
The department head has the authority and
responsibility to take disciplinary action against any
employee whose conduct does not further the efficiency and
best interests of the City of Chicago. The degree of
discipline to be meted out is dependent on various factors,
including, but not limited to, the seriousness of the
offense, the employee's work record and the totality of the
circumstances. The following conduct, discussed below, when
engaged in by an employee, will result in disciplinary
action unless the employer, taking all circumstances into
account, deems it to be excusable. Conduct denoted with an
asterisk may result in discharge action for the first
offense under appropriate circumstances as described below.
As with all the Personnel Rules, it should be
noted that if an employee is covered by a collective
bargaining agreement, that agreement shall govern in
the event of a conflict between any part of this Rule
and any such agreement. Employees covered by such
agreement can only be discharged for just cause."
(Emphasis added.)
After these introductory paragraphs, the section breaks down
into 50 subparagraphs, each listing an example of conduct which
could result in disciplinary action. Thirty-six of the 50
subparagraphs are preceded by an asterisk. Eight of those 36
subparagraphs contain additional qualifying conditions in capital
letters; for example, subparagraph 2:
"2. Leaving the department, office, or work site with-
out proper authorization. DISCHARGE FOR FIRST
OFFENSE APPLICABLE ONLY WHERE THE HEALTH, SAFETY
OR WELFARE OF A PERSON IS ENDANGERED."
The obvious intent of section 1 is to distinguish between
grave or serious misconduct on the one hand, and minor or trivial
violations on the other. The distinguishing mark is the
asterisk. For instance, absenteeism and tardiness that endanger
someone's health, safety, or welfare bear the asterisk. So do
"MISREPRESENTATIONS" and "CRIMINAL OR IMPROPER CONDUCT,"
categories involving wilful or criminal behavior of a serious
kind. It is when the subparagraphs reach "CONDUCT INVOLVING JOB
PERFORMANCE" that the asterisks begin to fall away, attaching
only to serious violations, such as failing to live in the City
of Chicago or violating the City's ethics ordinance.
The two subparagraphs which McTigue ultimately was found to
have violated, subparagraphs 29 and 39, are NOT preceded by an
asterisk. McTigue contended in the circuit court, and still
maintains, the absence of an asterisk before a subparagraph
indicates discharge is not an available disciplinary measure when
the employee is found to have violated the provision for the
first time.
The Personnel Board disagreed and the circuit court
affirmed, finding a department head has the authority and
discretion to dismiss an employee for a first-time violation of
any subparagraph, whether or not it is preceded by an asterisk.
In reaching this ruling, the circuit court relied on section 2 of
Rule XVIII, entitled "Progressive Discipline." This section
provides:
"The City of Chicago approves of the concept of progressive
and corrective discipline for Career Service Employees and
recommends its use when appropriate. Progressive discipline
is a systematic approach to correct unwanted behavior and
deterring its occurrence by administering disciplinary
actions based upon various factors, including but not
limited to, the severity of the infraction, the number of
times it has occurred, and the totality of the circumstances
surrounding the misconduct. The City of Chicago uses
progressive discipline in its discretion and does not solely
rely on this concept in every instance when taking
disciplinary action.
While it is not possible to list every act which will
or might result in disciplinary action, actions
itemized above reflect conduct which is deemed to be
inappropriate and which may result in disciplinary
action. The list is not exhaustive, but is offered
instead to generally provide notice of inappropriate
conduct. Supervisors may deem that conduct other than
that itemized above is improper and warrants
discipline. Further, the department head, or his/her
designee, has the discretion to determine what degree
of discipline is appropriate after weighing all the
situational factors involved in the misconduct."
This court must interpret the Personnel Rules and decide the
significance, if any, of the asterisk preceding certain
subparagraphs, but not others. The parties are unable to cite to
any caselaw directly on point. We cannot find any.
This is not a case where we have to decide whether the
regulations constitute an enforceable employment contract. The
City agrees they do. Our task is to determine the meaning of the
regulations.
Our review of the Personnel Board's interpretation of its
rules is de novo (Peerless Wholesale Liquors, Inc. v. Illinois
Liquor Control Comm'n, 296 Ill. App. 3d 230, 233, 694 N.E.2d 620
(1998)), though we give the administrative agency's
interpretation of its rules considerable deference (Mattis v.
State Universities Retirement System, 296 Ill. App. 3d 675, 679,
695 N.E.2d 566 (1998)). The agency's interpretation is not
binding if this court finds it to be erroneous. Denton v. Civil
Service Comm'n, 176 Ill. 2d 144, 148, 679 N.E.2d 1234 (1997).
In general, rules courts use to construe statutes also apply
to the interpretation of municipal ordinances. In re Application
of County Collector, 132 Ill. 2d 64, 547 N.E.2d 107 (1989);
McArdle v. Rodriguez, 277 Ill. App. 3d 365, 659 N.E.2d 1356
(1995). The parties agree the City's Personnel Rules,
promulgated under the authority of Chicago's Municipal Code, have
the force and effect of law and must be construed using the same
standards used when construing statutes. See Northern Illinois
Automobile Wreckers and Rebuilders Ass'n v. Dixon, 75 Ill. 2d 53,
387 N.E.2d 320 (1979)(administrative rules and regulations have
the force and effect of law and must be construed under standards
governing construction of statutes).
The cardinal rule when construing statutes is to ascertain
and give effect to legislative intent. Cummins v. Country Mutual
Insurance Co., 178 Ill. 2d 474, 478, 687 N.E.2d 1021 (1997). The
best indicator of intent is the plain and unambiguous language of
the statute. Opyt's Amoco, Inc. v. South Holland, 149 Ill. 2d 265, 277, 595 N.E.2d 1060 (1992). Where the language of the
statute is plain, it is not the court's function to search
further for some "subtle or not readily apparent" intent.
DiFoggio v. Retirement Board of the County Employees Annuity &
Benefit Fund, 156 Ill. 2d 377, 383, 620 N.E.2d 1070 (1993). "A
court is not free to rewrite legislation, or to ignore an express
requirement contained in a statute." People v. Palmer, 148 Ill. 2d 70, 88, 592 N.E.2d 940 (1992).
When interpreting a statute, a court may not read into the
statute a limitation not enacted by the legislature, nor can it
read out of the statute, "by subtle construction or otherwise," a
limitation which the legislature enacted. Palmer, 148 Ill. 2d at
85. No sentence, clause, or word should be interpreted in a way
that renders it superfluous or meaningless. People v. Bartlett,
294 Ill. App. 3d 435, 690 N.E.2d 154 (1998); Warren v. Borger,
184 Ill. App. 3d 38, 539 N.E.2d 1284 (1989). If two
interpretations are possible, the one that gives all words in the
statute some meaning will be the one that is more reasonable.
People v. Bartlett, 294 Ill. App. 3d at 439. It should be
remembered, too, "*** there is no canon against using common
sense in construing laws as saying what they obviously mean."
Johnson v. Partee, 105 Ill. 2d 186, 473 N.E.2d 944 (1984),
quoting Roschen v. Ward, 279 U.S. 377, 339, 73 L. Ed. 722, 728,
49 S. Ct. 336 (1929).
Citing to Frank v. South Suburban Hospital Foundation, 256
Ill. App. 3d 360, 628 N.E.2d 953 (1993), the City contends
McTigue's dismissal was proper because "a handbook or policy
which provides that progressive discipline 'may' be used, but
allows for discharge on the first offense for certain serious
conduct, does not mandate progressive discipline."
The issue in this case, however, is not whether progressive
discipline is mandated, regardless of the violative conduct.
McTigue does not claim discharge never can be imposed for a first
offense. The Personnel Rules clearly provide for the possibility
of dismissal for first offenses in certain instances, as did the
employee manual in Frank.
The question here is whether the City, by the language it
used in section 1 of Personnel Rule XVIII, has limited itself in
its ability to consider dismissal as a form of discipline for
first-time violations in certain, specific instances, i.e, where
the violative conduct is described in a subparagraph not preceded
by an asterisk.
The City contends an interpretation of section 1 which
places such a limit on the City's ability to proceed directly to
dismissal, "renders surplusage the discretion allowed [in Section
2] in deciding whether to impose progressive discipline." We
disagree.
On the contrary, we think an interpretation of section 2
which would allow the City to dismiss an employee for any conduct
prohibited in section 1, regardless of whether the conduct is
listed in a subparagraph preceded by an asterisk, would render
the language regarding the asterisk in section 1 meaningless.
Nor would there be any reason for the eight capitalized
qualifying conditions for first offense discharge in the
asterisked subparagraphs.
In Silverman v. Economy Fire and Casualty Co., 272 Ill. App.
3d 490, 650 N.E.2d 603 (1995), this court found that boldface
type used in an insurance contract was "purposely inserted and
not employed idly." When the boldface type wasn't employed, the
same meaning did not attach.
Applying the same logic to the facts of this case, we find
no reason for the City to place asterisks before some
subparagraphs but not others, unless it intended the asterisks to
mean something. See also, People v. Jordan, 103 Ill. 2d 192, 469 N.E.2d 569 (1984)(construction of statute is too narrow if it
would, in effect, omit the words "the class of" from the subject
clause); People v. Bartlett, 294 Ill. App. 3d 435, 690 N.E.2d 154
(1998)(interpretation which renders the word "statement"
meaningless rejected).
Rather than interpreting the Personnel Rules in a way which
ignores the asterisks and the language concerning the use of the
asterisks at the beginning of section 1, it is more reasonable to
interpret the rule in a way which gives recognition to all
language used. People v. Bartlett, 294 Ill. App. 3d at 439 (If
two interpretations are possible, the one that gives all words in
the statute some meaning will be the one that is more
reasonable).
The Personnel Rules, having the force and effect of law, as
the parties agree, can be looked on as a type of employment
contract. The Rules, therefore, like an employee handbook,
create binding contractual obligations. See Duldulao v. St. Mary
of Nazareth Hospital Center, 115 Ill. 2d 482, 505 N.E.2d 314
(1987)(employee handbooks, under certain circumstances, can be
contractually binding). Also, see Williams v. Chicago Housing
Authority, 217 Ill. App. 3d 1055, 578 N.E.2d 71 (1991)(Duldulao
applied to contracts with public employer.)
Here an employee reasonably would have interpreted the
absence of an asterisk before certain subparagraphs of Rule
XVIII, sec. 1, to mean he or she could not be dismissed for
first-time violations of these provisions. That became a valid
contractual promise. See Belsanti v. CFS Holdings, Inc., 260
Ill. App. 3d 419, 632 N.E.2d 10 (1992). Public agencies,
especially, should keep their promises.
A reasonable interpretation of section 1 is that the City
gave its employees notice certain conduct was unacceptable and
would result in disciplinary action being taken against them,
unless circumstances demonstrated the conduct to be excusable.
City employees were also put on notice that certain conduct, by
its very nature, is a more serious offense and, for this reason,
might result in dismissal, even for a first-time offense. These
behaviors, the City tells its employees, are denoted by an
asterisk.
The rules carefully circumscribe the situations where first-
time conduct can result in discharge. If the City could
discharge for any first-time conduct anyway, there would be no
reason to place limits on Rule XVIII, section 1 subparagraphs
where the asterisk appears.
Section 2, entitled "Progressive Discipline," read in
conjunction with section 1, is a promise that progressive
discipline will be employed whenever possible. While the City
recommends progressive discipline, that procedure is not
mandatory. Department heads are afforded considerable discretion
and authority to bypass steps in the progression when deemed
necessary.
Sections 1 and 2, when read together, however, inform the
employee that the department heads' discretion to bypass
progressive discipline and proceed directly to discharge will be
limited by restrictions on that power, as set forth in section 1.
That is, the discretionary power of department heads does not
reach discharge for first-time violations of section 1
subparagraphs not preceded by an asterisk.
If the City intended some other result it would have been
easy to say so in section 2. (For example, "Nothing in these
rules is intended to prevent the discharge of employees for
first-time violations of any subparagraph in section 1.") We
believe the point of the second paragraph in section 2 is to
empower department heads to impose discipline for misconduct not
specifically listed in section 1. Here, however, we are
concerned with violations of particular subparagraphs.
The basic rule of statutory construction tells us where
"...a statute lists the things to which it refers, there is an
inference that all omissions should be understood as exclusions,
despite the lack of any negative words of limitation." Solich v.
George and Anna Portes Cancer Prevention Center, 158 Ill. 2d 76,
82, 630 N.E.2d 820 (1994). Section 1 lists the specific "things"
that support a first-time discharge -- the subparagraphs preceded
by an asterisk. The inference that follows is that the
subparagraphs containing no asterisks were intended to exclude
discharge for first-time violations.
Our interpretation of Personnel Rule XVIII is reasonable and
gives significance to the language contained in both sections 1
and 2, without rendering any words or symbols meaningless.
A finding that the City intended, in every case, to allow
department heads the discretion to proceed directly to dismissal
for a violation of any one of the personnel rules, first-time
conduct or not, is contrary to the unambiguous language of Rule
XVIII. Such an interpretation would make section 1 meaningless
and would grant unfettered discretion to department heads. The
rules would mean whatever the City wants them to mean. There
would be no predictability or stability to the rules. If that is
the City's purpose, it should say so -- clearly and simply.
Employers know how to reserve discretion to themselves when it
comes to reasons for discharge. See Mitchell v. Jewel Food
Stores, 142 Ill. 2d 152, 170-71, 568 N.E.2d 827 (1990).
3. Just Cause Standard
Since we find the Personnel Rules do not provide for
discharge of an employee for a first-time violation of
subparagraphs 29 and 39, we need not consider McTigue's third
issue -- whether the "just cause" standard was applied when the
Board decided that discharge was the appropriate disciplinary
action.
CONCLUSION
We affirm the Board's finding that McTigue violated
subparagraphs 29 and 39. The decision of the Personnel Board to
uphold McTigue's discharge based on his first-time violations of
these subparagraphs, however, is reversed. Another level of
discipline, other than discharge, may be imposed. We remand to
the Personnel Board for that purpose.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
SOUTH, P.J. and McNAMARA, J., concur.
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