author: JUSTICE KNECHT

text:
    THE CITY OF SPRINGFIELD, Petitioner, v. RONALD CARTER et al., Respondents.
    Fourth District
    No. 4—88—0204
    Opinion filed June 8, 1989.

      James K. Zerkle, Corporation Counsel, and Feldman & Wasser, both of Springfield (Howard W. Feldman and Fredric Benson, Special Assistant Corporation Counsel, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for respondents.
   JUSTICE KNECHT

delivered the opinion of the court:

On June 23, 1983, the Human Rights Commission (Commission) entered an order finding the Springfield police department’s promotional examination was discriminatory and directing certain relief. (In re Carter, 9 Ill. Hum. Rights Comm’n Rep. 164 (1983).) In October 1986, complainants filed motions for attorney fees and enforcement of the 1983 order. The Commission remanded the cause to the administrative law section for a report on the facts in dispute. The administrative law judge (ALJ) issued a report to the Commission, and the respondent City of Springfield (City) filed objections claiming the Commission was without jurisdiction to enforce its 1983 order since, by its terms, it was not a final order. The 1983 order stated in pertinent part:

“(7) That complainants’ attorney submit to the Commission within 28 days a petition for attorneys fees and supporting affidavit setting forth in detail the reasonable number of hours expended in this case and counsel’s hourly billing rate. Failure to submit this documentation will be considered to be a waiver of the fee request. Respondent shall have 28 days from the receipt of such information to file its response. The question of attorneys fees will be taken under advisement and a Supplemental Order will issue. This matter will not be considered final for purposes of review under Article III of the Code of Civil Procedure until the Commission has issued its Supplemental Order.” (Carter, 9 Ill. Hum. Rights Comm’n Rep. at 168.)

Upon consideration, the Commission agreed. Accordingly, the Commission denied complainants’ motion for fees as waived, denied the motion for enforcement as premature, purported to make the 1983 order final and enforceable, and directed the City to report to the Commission within 30 days the steps taken to comply with its supplemental order finalizing its 1983 order. (In re Carter,_Ill. Hum. Rights Comm’n Rep. _ (March 8, 1988, HRC Nos. 1978SF0184, 1978SF0193, 1979SF0023, 1979SF0045).) The City appeals, challenging portions of the relief granted as void as (1) beyond that authorized by the Illinois Human Rights Act (Act) (111. Rev. Stat. 1987, ch. 68, par. 1 — 101 et seq.); and (2) an impermissible delegation of the City’s legislative power to make employment-related decisions.

The underlying facts are as follows.

In February 1978, the City administered a promotional examination to fill vacancies in the position of sergeant in its police department. The written examination was prepared and administered by an outside consulting firm, Police Consultants of Hillside, Illinois. Complainants were black police officers for the City in the rank of patrolman when they took the examination. Complainants Carter, Pettit, and Crump failed the examination; Schluter passed.

In the summer of 1978, complainants filed charges of discrimination against the City with the Illinois Fair Employment Practices Commission (now Department of Human Rights) (Department) complaining the promotional examination was not validated. On November 5, 1980, the Department filed a complaint of civil rights violation, alleging the City discriminated against complainants by administering a sergeant’s promotional examination which had an adverse impact on black examinees.

Complainants and the City stipulated the results of the promotional examination were as follows: 67 candidates took the examination; 57, or 85%, were Caucasian, and 10, or 15%, were black. Of the 67 who took the examination, 49 passed, and 45, or 92%, were Caucasian, and 4, or 8%, were black. The passage rate for Caucasians was 79% while the passage rate for blacks was 40%. Two of the four blacks who passed the examination, including complainant Schluter, were promoted prior to the expiration of the eligibility list in May 1981. In addition, complainant Carter was appointed to the position of deputy chief.

On October 28, 1982, the ALJ issued his recommended order and decision. The ALJ found the City’s promotional examination had an adverse impact on blacks based upon the Equal Employment Opportunity Commission’s (EEOC’s) Uniform Guidelines on Employee Selection Procedures. (29 C.F.R. §1607.1 et seq. (1982).) Under section 1607.4(D) of the guidelines, a selection rate for any group which is less than four-fifths (or 80%) of the rate for the group with the highest rate would generally be regarded by Federal enforcement agencies as evidence of adverse impact. (29 C.F.R. § 1607.4(D) (1982).) Application of the four-fifths rule to the instant case results in the sergeant’s examination having a disparate impact on blacks if their passage rate was less than 63.2%. Because the actual passage rate of blacks was 40%, the ALJ found an adverse impact on black examinees. The City argued the results of the test were not statistically significant due to the small number of blacks who took the examination. The ALJ disagreed, stating such statistics could be considered, especially with nonstatistical evidence of adverse impact such as the use of psychological tests.

The ALJ found further the examination was not job related because it was based on the duties of Peoria, Illinois, sergeants, whose duties differed significantly from those of the City’s sergeants. Finally, the ALJ found the need to give a validated examination was not excused under EEOC guidelines because the City’s ongoing study, designed to produce evidence of validation, was discontinued when funding through the Illinois Law Enforcement Commission was terminated.

With respect to relief, the ALJ refused to recommend the promotions made from the eligibility list resulting from the examination be set aside because there was no evidence of intentional discrimination. He did, however, make certain recommendations with respect to the relief which should be granted. See Carter, 9 Ill. Hum. Rights Comm’n Rep. at 183-84.

On June 23, 1983, the Commission entered its order and decision affirming the recommended order and decision of the ALJ and sustaining the complaints. The Commission directed the City to discontinue use of the eligibility list established as a result of its February 1978 promotional examination in filling vacancies in the position of sergeant; cease discriminating on the basis of race in the application of terms and conditions of employment; clear from its personnel records on complainants all references to the filing of these charges, and the subsequent disposition thereof; report to the Commission, within 90 days following the entry of its order, the steps taken to comply with the order (Carter, 9 Ill. Hum. Rights Comm’n Rep. at 168); and, most important for the issues considered on this appeal:

“(4) That respondent immediately establish a promotional policy for filling vacancies in the position of sergeant which is non-diseriminatory and affords complainants the opportunity to qualify for the position of sergeant under such policy. To the extent that respondent has adopted a new examination, respondent shall immediately begin an impact and validation study of the new examination. The parties shall agree upon an expert, acceptable to both sides, to conduct such study. Respondent shall bear the cost of the study;
* * *
(8) The parties shall agree among themselves regarding appropriate interim relief with respect to the method for choosing sergeants to fill vacancies which occur between .the date of the Commission Order and respondent’s completion of an impact and validation study of its examination for sergeant. In the event that the parties are unable to agree upon interim relief, the procedures shall be determined by the Commission.” (Carter, 9 Ill. Hum. Rights Comm’n Rep. at 168-69.)

Contrary to the Commission’s order, complainants’ attorney Donald Jackson did not submit his fee petition within 28 days, but rather submitted it more than three years later, on October 10, 1986. Also, the City did not submit its report to the Commission within 90 days following the entry of the order and decision or at any time thereafter. At approximately the same time, complainants filed a motion for enforcement of the order and decision.

On December 22, 1986, the Commission entered, an order referring complainants’ motion for enforcement to the ALJ for fact finding. The ALJ issued his report to the Commission on May 18,1987.

Finally, on March 8, 1988, the Commission entered its supplemental order and decision. It denied complainants’ motion to enforce the 1983 order on the basis that the Commission had no jurisdiction to enforce its order and decision because, according to complainants, the order and decision had not, by its terms, been made final. The Commission denied the belated request for attorney fees as untimely. Last, the Commission stated its order and decision of June 23, 1983, is final, enforceable, and appealable. (Carter, _ Ill. Hum. Rights Comm’n Rep. _ (March 8, 1988, HRC Nos. 1978SF0184, 1978SF0193, 1979SF0023, 1979SF0045).) The City appealed directly to this court pursuant to section 8 — 111 of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 111), without first seeking rehearing by the Commission.

Complainants filed a motion to dismiss the City’s appeal, arguing the City has not exhausted its administrative remedies and the Commission’s order is not final. We first consider the motion to dismiss.

I

Complainants argue the Commission’s March 1988 order is not final for purposes of appeal because (1) the order is subject to the rehearing provision of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 8— 107(F)) and the City has not availed itself of the rehearing procedure; and (2) paragraphs eight and nine of the order contemplate further' action by the parties and the Commission.

On the first point, complainants rely on Consolidation Coal Co. v. Department of Labor (1985), 138 Ill. App. 3d 541, 485 N.E.2d 1102, for the proposition if there is an agency rule or statute which provides for rehearing, an agency decision is not appealable until (and, apparently, unless) the aggrieved party requests rehearing and his petition is denied.

Section 3 — 101 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101) provides in pertinent part:

“In all cases in which a statute or a rule of the administrative agency requires or permits an application for a rehearing or other method of administrative review to be filed within a specified time *** and an application for such rehearing or review is made, no administrative decision of such agency shall be final as to the party applying therefor until such rehearing or review is had or denied.” (Emphasis added.)

Section 8 — 107(F) of the Act states, in pertinent part:

“(1) Within 30 days after service of the Commission’s order, a party may file an application for rehearing before the full Commission. ***
(2) Applications for rehearing shall be viewed with disfavor, and may be granted, by vote of 6 [of 15] Commission members, only upon a clear demonstration that a matter raises legal issues of significant impact or that three-member panel decisions are in conflict.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 68, pars. 8 — 107(F)(1), (F)(2).)

No application for rehearing was filed in the case before us. We must determine whether the language of section 3 — 101 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101), read in light of section 8— 107(F)(1) of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 107(F)(1)), requires application for rehearing before judicial review, or whether a party may elect to pursue judicial review without seeking rehearing.

Ordinarily, a party aggrieved by an administrative decision must exhaust its administrative remedies before seeking judicial relief. (Phillips v. Graham (1981), 86 Ill. 2d 274, 427 N.E.2d 550.) The exhaustion of administrative remedies doctrine allows for development of the facts before the agency and use by the agency of its expertise, while permitting the aggrieved party the opportunity to succeed before the agency. Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358, 326 N.E.2d 737, 742.

In Danison v. Paley (1976), 41 Ill. App. 3d 1033, 355 N.E.2d 230, this court rejected the argument that an aggrieved party was required to file a petition for rehearing before he could be deemed to have exhausted his administrative remedy. The court so held in construing section 1 of the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 264 (now Ill. Rev. Stat. 1987, ch. 110, par. 2— 101)), in light of Rule 11.5 of the Urbana Civil Service Commission, which allowed petitions for rehearing to be filed within 30 days. The Danison court reasoned:

“Defendant cites Oliver v. Civil Service Com. (1967), 80 Ill. App. 2d 329, 224 N.E.2d 671. There is language in that case which supports defendant’s position. However, that language is clearly dicta, as the agency in question had no provision for rehearing.
By the express language of section 1 of the Administrative Review Act, an administrative decision is final unless a rule of the agency permits an application for rehearing to be filed and such application is filed. Here plaintiff did not file such an application. The trial court did not err by denying the defendant’s motion to dismiss.
A party may seek administrative review only after a final decision by the agency. In this way all the facts are set before the agency which may then utilize its expertise. If a party succeeds before the agency, judicial review is unnecessary. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358, 326 N.E.2d 737, 741-42.)” (Emphasis in original.) Danison, 41 Ill. App. 3d at 1036-37, 355 N.E.2d at 233.

Accord Jackson Park Yacht Club v. Department of Local Government Affairs (1981), 93 Ill. App. 3d 542, 548-49, 417 N.E.2d 1039, 1044-45 (appeal from decisions of defendant Department disapproving 1978 real estate exemptions granted by the Board of Appeals of Cook County).

Although not cited by the parties, we are aware the first district has held to the contrary in Castaneda v. Human Rights Comm’n (1988), 175 Ill. App. 3d 1085, 530 N.E.2d 1005, aff’d (1989), 132 Ill. 2d 304. There, construing section 3 — 101 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101) in light of section 8 — 107(F)(1) of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 107(F)(1)), although citing Danison and Jackson Park Yacht Club as contrary authority, the court concluded:

“[T]he weight of authority and, in our judgment, the better authority holds that ‘[i]f there is an agency rule or statute which provides for a rehearing, then an agency decision is not appeal-able until the aggrieved party requests rehearing and his petition is denied.’ (Consolidation Coal Co. v. Department of Labor (1985), 138 Ill. App. 3d 541, 544, 485 N.E.2d 1102. Accord Hoffman v. Department of Registration & Education (1980), 87 Ill. App. 3d 920, 924, 410 N.E.2d 291; Oliver v. Civil Service Comm’n (1967), 80 Ill. App. 2d 329, 333, 224 N.E.2d 671 [appeal denied (1967), 36 Ill. 2d 631, 224 N.E.2d 671]. See also Reiter v. Neilis (1984), 125 Ill. App. 3d 774, 778, 466 N.E.2d 696 [,appeal denied (1984), 101 Ill. 2d 587, 466 N.E.2d 696]; Condell Hospital v. Health Facilities Planning Board (1987), 161 Ill. App. 3d 907, 929-30, 515 N.E.2d 750 [,affd (1988), 124 Ill. 2d 341, 530 N.E.2d 217].)” (Castaneda, 175 Ill. App. 3d at 1087, 530 N.E.2d at 1006.)

The Castaneda court dismissed the petition for review, although no petition for rehearing had been filed with the Commission (and the time for doing so has long since passed), citing the doctrine of exhaustion of administrative remedies.

In Danison, this court distinguished Oliver as citing exhaustion of administrative remedies principle in dicta. The same may be said of Hoffman (agency rules failed “to provide any specific right or obligation to seek rehearing of an otherwise final agency decision” (Hoffman, 87 Ill. App. 3d at 925, 410 N.E.2d at 294)) and Reiter (neither rezoning ordinance nor procedural rules for zoning board of appeals provided for rehearing (Reiter, 125 Ill. App. 3d at 778, 466 N.E.2d at 699)). Reiter, incidentally, cited Danison for this principle.

In Consolidation Coal, the Department of Labor found the company’s employees were not ineligible for unemployment compensation benefits, and Consolidation Coal filed for reconsideration. The Department thereafter determined its decision was in accord with law and would not be changed. Consolidation then sought administrative review and the circuit court affirmed. On appeal, the Department of Labor argued the circuit court was without jurisdiction because the complaint was not timely filed in the circuit court. The appellate court agreed, ruling Consolidation’s complaint for administrative review was not timely and the circuit court had been without jurisdiction to decide the case other than to dismiss it. The court held section 2 of the Administrative Review Act implicitly required some specific independent authorization for objections or rehearing, and did not, standing alone, constitute such authorization. Evidently there was no statutory authority for rehearing there.

Condell Hospital, involving numerous parties and procedural machinations, is also distinguishable. The Condell plaintiffs filed a request for reconsideration, which was denied. Referring to section 3— 101 of the Code, the supreme court stated:

“The language ‘as to the party applying therefor’ must mean, if it means anything at all, that final orders remain final for those parties who do not apply for reconsideration, or whose applications are no longer pending.” (Emphasis added.) Condell Hospital, 124 Ill. 2d at 366, 530 N.E.2d at 229.

Further, we note that the United States Supreme Court has held an enabling statute similar to section 8 — 107(F)(1) of the Act did not require a rehearing be pursued before judicial review is sought. (Levers v. Anderson (1945), 326 U.S. 219, 222, 90 L. Ed. 26, 29, 66 S. Ct. 72, 73.) There, the petitioner’s permit to operate a wholesale liquor business under the Federal Alcohol Administration Act was annulled by an order of the District Supervisor of the Alcohol Tax Unit of the Bureau of Internal Revenue of the United States. At the same time, the supervisor denied petitioner’s applications for an importer’s and a new wholesaler’s permit. The supervisor was duly authorized to act in these matters. Section 4(h) of the act authorized an applicant or permittee to appeal to the Circuit Court of Appeals within 60 days after the entry of orders denying or annulling the permits. A petition for appeal was filed within 60 days. The Circuit Court of Appeals dismissed the appeal (Levers v. Anderson (10th Cir. 1945), 147 F.2d 547), on the ground that petitioner had failed to exhaust his administrative remedies, since hé had not first filed a motion for reconsideration of the supervisor’s order as permitted by Treasury regulations. The Treasury regulation at issue there read: “(a) ... Within 20 days after an order is made by the Commissioner or district supervisor revoking a basic permit, the permitee may file an application with such Commissioner or district supervisor, for a reconsideration of such order.” (Levers, 326 U.S. at 221, 90 L. Ed. at 28, 66 S. Ct. at 73.) The Court held a petitioner need not file an application with the Commissioner or district supervisor before seeking judicial review of the order. (Levers, 326 U.S. at 221-24, 90 L. Ed. at 28-30, 66 S. Ct. at 73-74.) The Court reasoned:

“Whatever might be the case in other circumstances, it is clear that where, as here, judicial review is provided in the Act itself, the petitioner’s right of appeal to the courts is to be determined by looking to the statute, the valid regulations promulgated pursuant to it and proven administrative practice throwing light upon their meaning. In construing the Act, however, we must be mindful of the ‘long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.’ [Myers v. Bethlehem Shipbuilding Corp. (1938), 303 U.S. 41, 50-51, 82 L. Ed. 638, 644, 58 S. Ct. 459, 463]. But this rule does not automatically require that judicial review must always be denied where rehearing is authorized but not sought. This is shown by our past decisions [United States v. Abilene & Southern Ry. Co. (1924), 265 U.S. 274, 280-82, 68 L. Ed. 1016, 1019-20, 44 S. Ct. 565, 567; Prendergast v. New York Telephone Co. (1923), 262 U.S. 43, 48-49, 67 L. Ed. 853, 857, 43 S. Ct. 466, 468-69], from which we see no reason to depart. Government counsel, appearing for respondent, do not defend the dismissal of petitioner’s appeal on such a sweeping assumption. On the contrary, they assert that motions for rehearing before the same tribunal that enters an order are under normal circumstances mere formalities which waste the time of litigants and tribunals, tend unnecessarily to prolong the administrative process, and delay or embarrass enforcement of orders which have all the characteristics of finality essential to appealable orders.” (Levers, 326 U.S. at 221-22, 90 L. Ed. at 29, 66 S. Ct. at 73-74.)

The Levers Court was not persuaded that “may” means must. Neither are we.

Accordingly, we hold Danison controlling and decline to follow Castaneda. In our judgment the legislature did not require application for rehearing before judicial review may be sought. Thus, the City may seek judicial review even though it did not apply for rehearing with the Commission.

Complainants also argue the Commission’s order is not final because paragraph eight of the order states the Commission will provide interim relief if the parties fail to agree on interim relief, leaving the order and decision subject to further action and, therefore, not final. While the order does permit further action by the Commission if the parties fail to agree, this does not make the appeal premature. The power which the Commission reserves is over incidental matters not affecting the ultimate rights determined by the order. Such power does not render an order nonfinal or interlocutory. (Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 481 N.E.2d 1004.) The Commission’s order and decision is final for purposes of appeal.

The complainants’ motion to dismiss is denied.

II

We turn now to the City’s challenge to paragraphs four and eight of the Commission’s order as void as beyond the relief authorized by the Act. Generally, administrative agencies are limited to the power vested in them by statute. (Chemetco, Inc. v. Pollution Control Board (1986), 140 Ill. App. 3d 283, 286, 488 N.E.2d 639, 642.) Acts or orders of an administrative agency which are not authorized by an enabling statute or ordinance are void. (Weingart v. Department of Labor (1988), 122 Ill. 2d 1, 17, 521 N.E.2d 913, 920.) But, where there is an express grant of authority there is likewise a clear and express grant of power to do all that is reasonably necessary to execute the power or perform duties specifically conferred by the enabling statute. (Lake County Board of Review v. Property Tax Appeal Board (1988), 119 Ill. 2d 419, 427, 519 N.E.2d 459, 463.) Furthermore, the interpretation of a statute must be grounded on the nature and object of the statute as well as the consequences which would result from construing it in one way or another. Legislative intent may be ascertained from the reason and necessity for the act, evils sought to be remedied, and the object and purposes sought to be obtained. (Trigg v. Sanders (1987), 162 Ill. App. 3d 719, 727, 515 N.E.2d 1367, 1372.) In addition, our supreme court has found administrative agencies are given wide latitude in fulfilling their duties. (Lake County Board of Review, 119 Ill. 2d at 428, 519 N.E.2d at 463.) With these canons of interpretation of agency enabling legislation in mind, we turn to the portions of the order in dispute.

Paragraph four of the Commission’s order commands the City to establish a promotional policy for filling vacancies in the position of sergeant which is nondiscriminatory. The City does not dispute the Commission’s authority to require this action. The paragraph continues by requiring an impact and validation study of any new promotional examination the City might develop. The City also has no quarrel with this measure. In addition, the Commission requires the parties to agree upon an expert to conduct this study, a provision the City disagrees with. Paragraph eight provides the City and complainants shall agree as to the method for choosing sergeants between the date of the order and completion of the impact and validation study, another provision of the order the City disagrees with. The City argues the contested portions of the Commission’s order are not authorized by section 8 — 108 of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 108), which sets forth the relief the Commission is empowered to provide after it finds a civil rights violation. Basically, the City argues the language of section 8 — 108 deals "with relief designed for individual complainants, whereas the Commission’s order deals with employment matters broader than providing relief to individual complainants.

The City also maintains the Commission’s order puts the complainants in a position beyond what they would have been in absent the discriminatory test, because not only are they given an opportunity to become sergeants, but they are also given an opportunity to compel the City to adopt a particular promotional policy, to approve experts who will be selected to validate an examination, and to approve of the method of filling sergeant vacancies prior to the completion of an impact and validation study. According to the City, this power was never given to white or black officers, but now complainants are given this power and white officers are not. The City claims this does not meet the goal of giving the complainants the same opportunity as white officers, but gives them too much power, in effect making them more than whole. The City claims the Commission’s order allows complainants to intervene in the economic and political operation of the City, intervention which our supreme court forbade in Village of Lombard v. Pollution Control Board (1977), 66 Ill. 2d 503, 363 N.E.2d 814.

In Village of Lombard, the Pollution Control Board tried to adopt regulations dividing Du Page County into nine water treatment regions and require each region to establish a centralized water treatment program. The court held the Environmental Protection Act was not sufficiently broad or specific to authorize the Pollution Control Board to mandate such action. The court looked to the legislative intent of the Environmental Protection Act and found it did not authorize detailed intervention into the economic and political operation of the governmental entities affected. (Village of Lombard, 66 Ill. 2d at 505-07, 363 N.E.2d at 815-16.) Village of Lombard does not aid the City because the court came to its conclusion after examining the legislative intent of a piece of legislation completely different from the legislation before us. Any finding concerning the legislation in Village of Lombard is persuasive only as to that legislation or legislation similar thereto.

The City cites two additional cases, City of Chicago v. Fair Employment Practices Comm’n (1976), 65 Ill. 2d 108, 357 N.E.2d 1154, and Board of Trustees of Police Pension Fund v. Washburn (1987), 153 Ill. App. 3d 482, 505 N.E.2d 1209. In City of Chicago, the court held absent express statutory authority for an award of attorney fees, the Commission was without power to make such award and its order doing so was void and subject to collateral attack. Board of Trustees involved defendant’s authority to review administrative actions of the Board. The court held section 22 — 502 of the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 1081/2,.par. 22 — 502) gave defendant specific mandatory instructions as to what an examination of a particular pension fund shall include; the issue was the power to review and reverse the result of an adjudication itself. Both cases are inapposite to the issue before us.

The City states employment policies are promulgated by the City and its civil service commission, and argues the Commission’s order allows complainants and the Commission to dictate employment policies to the City. The Commission has the power to enforce the public policies of the Act, however. (Rackow v. Human Rights Comm’n (1987), 152 Ill. App. 3d 1046, 504 N.E.2d 1344.) In Rackow, the court upheld an award of attorney fees where the plaintiffs had unlawfully refused to lease an apartment to a person who would reside with one or more children under 14 years of age. The attorney fees were found necessary to enforce the public policies of the Act. Under Rackow, the Act has policies which the Commission has the power to further. We must determine whether the Commission’s order enforces the policies of the Act or goes further and dictates employment policies to the City. In order to determine whether the order is outside the Commission’s authority, we must examine the Act itself.

Section 1 — 102 of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 1 — 102) states the public policy of this State is:

“To secure for all individuals within Illinois the freedom from discrimination because of race ***.
*** To promote the public health, welfare and safety by protecting the interest of all people in Illinois in maintaining personal dignity, in realizing their full productive capacities, and in furthering their interests, rights and privileges as citizens of this State.
***
*** To establish Equal Opportunity and Affirmative Action as the policies of this State in all of its decisions, programs and activities ***.” Ill. Rev. Stat. 1987, ch. 68, pars. 1 — 102(A), (B), (D).

Section 8 — 108 of the Act (Ill. Rev. Stat. 1985, ch. 68, par. 8 — 108) provides as follows:

“Relief; Penalties. Upon finding a civil rights violation, a hearing officer may recommend and the Commission or any three-member panel thereof may provide for any relief or penalty identified in this Section, separately or in combination, by entering an order directing the respondent to:
(A) Cease and Desist Order. Cease and desist from any violation of this Act.
(B) Actual Damages. Pay actual damages, as reasonably determined by the Commission, for injury or loss suffered by the complainant.
(C) Hiring; Reinstatement; Promotion; Backpay; Fringe Benefits. Hire, reinstate or upgrade the complainant with or without back pay or provide such fringe benefits as the complainant may have been denied.
(D) Restoration of Membership; Admission To Programs. Admit or restore the complainant to labor organization membership, to a guidance program, apprenticeship training program, on the job training program, or other occupational training or retraining program.
(E) Public Accommodations. Admit the complainant to a public accommodation.
(F) Services. Extend to the complainant the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the respondent.
* * *
(I) Posting of Notices. Post notices in a conspicuous place which the Commission may publish or cause to be published setting forth requirements for compliance with this Act or other relevant information which the Commission determines necessary to explain this Act.
(J) Make Complainant Whole. Take such action as may be necessary to make the individual complainant whole ***.”

The Act is remedial in nature. Remedial legislation should be construed liberally to effectuate its purpose. S.N. Nielsen Co. v. Public Building Comm’n (1980), 81 Ill. 2d 290, 410 N.E.2d 40.

Section 8 — 108(J) of the Act gives the Commission discretion to order relief not expressly enumerated in other subsections of section 8 — 108. Action which makes one “whole” is action which puts the claimant in the position he or she would have been in but for the discriminatory act. (Clark v. Human Rights Comm’n (1986), 141 Ill. App. 3d 178, 182, 490 N.E.2d 29, 33 (back-pay awards).) The City claims in applying Clark to the instant case, complainants should be put in a position they were in before they took the examination, whereas complainants were never in a position to compel adoption of a particular promotional policy, seek their approval as to experts to validate the examination or the method of filling sergeant positions prior to completion of an impact and validation study. In Clark, an employee successfully maintained a racial discrimination suit against his employer. The employee was demoted as a result of his employer’s discrimination, and the court found the Commission erred in the back-pay formula as applied and remanded for further hearings. On remand, the Commission awarded back pay to properly bring the employee up to the salary he would have made if the employer had not discriminated against him. (Clark, 141 Ill. App. 3d at 185, 490 N.E.2d at 34-35.) The original award applied no meaningful standard, the law’s preference for individualized remedy was ignored, and the Commission gave the benefit of the doubt (as to what the employee would have earned) to the wrongdoer. In the instant case, the Commission has ordered relief to bring complainants up to where they would have been had they not been discriminated against by the City, i.e., to give them an opportunity to become sergeants in the City’s police department, afford them an avenue to advance names of experts prior to the City’s selection, and to suggest or comment on methods for making promotions in the interim period before test validation.

Complainants rely on Eastman Kodak Co. v. Fair Employment Practices Comm’n (1980), 83 Ill. App. 3d 215, 403 N.E.2d 1224, aff’d (1981), 86 Ill. 2d 60, 426 N.E.2d 877. Eastman Kodak involved a dispute between the Commission and Kodak over Kodak’s eligibility to bid on State contracts. The main issue was whether Kodak had a sufficient affirmative action program to comply with the properly adopted rules and regulations of the Commission. Kodak argued, as does the City with the Act here, the rules and regulations of the Fair Employment Practices Commission were aimed at preventing group discrimination while its statutory authority was only to prevent individual discrimination. The appellate court examined the purposes of the legislation, which has been rewritten in similar language as section 1 — 102(A) of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 1 — 102(A)), and rejected Kodak’s argument. The court stated: “We do not believe that one could take affirmative action to prevent individual acts of discrimination without taking some positive steps to prevent discrimination to a class of people.” (Emphasis in original.) Eastman Kodak, 83 Ill. App. 3d at 219, 403 N.E.2d at 1228.

Although Eastman Kodak discussed affirmative action, which is not at issue here, the question in that case which we have mentioned in this discussion is similar to the question decided in this issue of the case before us. Therefore, we adopt the finding of the Eastman Kodak, court and conclude that prevention of individual acts of discrimination in the factual circumstances of this case cannot be accomplished without taking some positive steps to prevent discrimination to a class of people.

Brewington v. Illinois Department of Corrections (1987), 161 Ill. App. 3d 54, 513 N.E.2d 1056, also addresses the City’s argument that only individual relief can be ordered by the Commission. Brewington involved a Department of Corrections employee who had resigned and then filed a discrimination complaint against her former employer which alleged sexual and racial discrimination. The court in Brewington stated: “The protection of civil rights in general is as worthy a goal to be served by a proceeding under the [Human Rights] Act as is the vindication of one particular individual’s civil rights.” (Brewington, 161 Ill. App. 3d at 68, 513 N.E.2d at 1066.) It is clear the Commission may order relief which has class-wide implications.

We find the relief granted by paragraphs four and eight of the Commission’s order authorized by the Act.

Ill

We turn now to the City’s second issue raised on appeal, whether the order is void because the Commission, through paragraphs four and eight of its order, has attempted to delegate to private persons the City’s legislative power to make employment-related decisions. The State has the power to appoint public officers, and this power cannot be delegated to a private person or group but must be delegated to a public agency such as a municipal corporation, commission, local board, or public officer. (People ex rel. Rudman v. Rini (1976), 64 Ill. 2d 321, 326, 356 N.E.2d 4, 7.) In Rini, relied upon by the City, our supreme court struck down a statute which transferred the authority to fill vacancies in county offices from county boards to county central committees of political parties.

Delegation of power to make the law, including discretion as to what the law shall be, is impermissible, while the conferral of authority or discretion to do that which the legislature might, but cannot as understandingly or advantageously, do itself is permissible. (Hill v. Relyea (1966), 34 Ill. 2d 552, 555, 216 N.E.2d 795, 797.) The City contends the relief granted complainants to consent to an impact and validation study expert and to interim procedures for filling vacancies is a grant to private persons to make law. Delegations of legislative power to private persons whose interests may be adverse to the interest of others similarly situated or directly affected by the exercise of the power delegated is not lawful. People ex rel. Chicago Dryer Co. v. City of Chicago (1952), 413 Ill. 315, 323, 109 N.E.2d 201, 205-06.

In Chicago Dryer Co., relied on by the City, the supreme court struck down a statute that required consent of 60% of the abutting property owners of a street before the street’s name could be changed. The court concluded the consent requirement gave the property owners unbridled discretion to determine what the law should be. (Chicago Dryer Co., 413 Ill. at 317, 323-24, 109 N.E.2d at 203, 206.) The City also relies on People v. Pollution Control Board (1980), 83 Ill. App. 3d 802, 404 N.E.2d 352, appeal after remand (1984), 129 Ill. App. 3d 958, 473 N.E.2d 452, where a provision in the Illinois Environmental Protection Act was challenged. The provision stated the Pollution Control Board’s statutes and regulations for monitoring noise would not apply to any sporting events endorsed by specified private organizations. The court found the granting of this power constituted an improper delegation of legislative authority. (Pollution Control Board, 83 Ill. App. 3d at 804, 809, 404 N.E.2d at 353, 357.) On appeal after remand, however, the same panel of the first district found an amendment which reinforced the exemptions for certain sporting events was constitutional. Pollution Control Board, 129 Ill. App. 3d at 963, 473 N.E.2d at 456.

The City also relies on Brodner v. City of Elgin (1981), 96 Ill. App. 3d 224, 420 N.E.2d 1176, where a zoning ordinance required the written consent of the owner or his authorized representative to an application to amend the zoning classification of his or her property. The court struck down the requirement as an unlawful delegation. Brodner, 96 Ill. App. 3d at 226-27, 420 N.E.2d at 1177-78.

The City argues the case before us involves an unlawful delegation of the power to make law, similar to those delegations struck down in Rini, Chicago Dryer Co., Pollution Control Board, and Brodner. The City contends complainants are private persons whose interests are adverse to the interests of others seeking promotion to the position of sergeant. The City also argues complainants may withhold consent to an impact and validation study expert, and thereby permanently avoid an impact and validation study and cause a long delay in development of an interim policy for filling vacancies. The likelihood of this result is slight because it is in the best interests of the complainants to facilitate the selection process for sergeants so they may be considered for the position.

The Commission notices there is no statute which delegates the choosing of police department examinations to the legislature, thus there is no legislative authority to be delegated. The City responds our supreme court has held home rule powers give a home rule municipality the power to legislate concerning the appointment and certification of police officers. (Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523, 343 N.E.2d 919, cert. denied (1976), 429 U.S. 832, 50 L. Ed. 2d 97, 97 S. Ct. 95.) In Stryker, the supreme court stated an ordinance enacted by a home rule unit under the grant of power in section 6(a) of article VII of the Illinois Constitution of 1970 supersedes a conflicting statute enacted prior to the effective date of the Constitution. (Stryker, 62 Ill. 2d at 527, 343 N.E.2d at 922.) Thus, the City, which is a home rule unit, has the power to legislate concerning the appointment and certification of police officers. Upon analysis of the Commission’s order, we find it did not delegate legislative power to complainants.

The City argues if the relief given complainants is not a delegation of legislative power, the relief grants complainants participation in the implementation of City policy, and delegation of such implementation must contain standards to guide the persons charged with the implementation. (Village of Lombard, 66 Ill. 2d at 508, 363 N.E.2d at 817.) Upon examination, paragraphs four and eight of the Commission’s order contain no discernible standards to guide complainants in exercising the relief given them to agree or disagree to the selection of a validation expert and interim methods for filling vacancies. However, the preciseness of standards required when implementation power is delegated depends upon the complexity of the subject matter and the ultimate objective of the act in question. (Hoogasian v. Regional Transportation Authority (1974), 58 Ill. 2d 117, 317 N.E.2d 534.) The subject matter in this case is complex, but precise standards are not required. The objective of the Act is to eliminate racial discrimination. While the Commission might have included a sentence reserving resolution of these matters to it if the parties were unable to agree, as in paragraph eight of its order, the failure to do so does not render these portions of the order void. We conclude the Commission has the power to intervene and will do so if agreement cannot be reached as to the matters involved in paragraphs four and eight of its order. Accordingly, the Commission’s order and decision is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    RONALD J. GRIGLIONE, Plaintiff-Appellant, v. THE TOWN OF LONG POINT, a/k/a Long Point Township, Defendant (Livingston County, Defendant-Appellee).
    Fourth District
    No. 4—88—0788
    Opinion filed June 8, 1989.
    Craig M. Armstrong, of Armstrong, Surin & Engels, of Ottawa, for appellant.

      W. Thomas Johnston, of Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

This case arose from a one-car accident that occurred on the evening of August 3, 1985. Plaintiff was travelling westbound on a township road which forms a T-intersection with a north-south county road. Plaintiff travelled through the intersection into a ditch on the west side of the county road and suffered personal injuries. The stop sign controlling traffic from the township road at the intersection with the county road was obscured by vegetative growth. Plaintiff appeals from the order of the circuit court of Livingston County which granted a motion for summary judgment filed by defendant County of Livingston. The issue on appeal is whether the trial court erred in granting summary judgment in favor of the county where the facts show weeds along a township road obscured a stop sign, which stands within the county’s right-of-way, at an intersection with a county road.

At approximately 9 p.m. on the date of the occurrence, plaintiff was driving west on Township Road 2250, northeast of where that road ends at a T-intersection with County Road 300 east in Livingston County, when he saw a barricade on the west side of the T-intersection with the county highway and realized he would have to stop. Plaintiff alleged approximately 200 feet east of the T-intersection he locked the brakes of his vehicle, it skidded through the intersection, snapped planking from the barricade while his foot was still on the brakes, became airborne over a ditch, and he suffered personal injuries upon the vehicle’s landing in the ditch. Plaintiff had never travelled on the township road before. Plaintiff also alleged he was driving with the high beams on his headlights at a speed of between 50 and 55 miles per hour when the incident occurred.

The view of the stop sign at the intersection on the date of the occurrence was obstructed by ragweed 5 to 6 feet high along the westbound lane for 50 to 60 feet. The county had installed the stop sign at that intersection. The right-of-way of the county highway extended up to 16 feet east of the stop sign. There was no evidence that the county had agreed to maintain the township roadway or that it had maintained the township roadway previously. In a discovery deposition, the county superintendent of highways for Livingston County, John Bourne, testified the county had the responsibility to maintain the county right-of-way. In addition, the highway commissioner of Long Point Township, Leroy Woltzen, testified in a discovery deposition the county was required to maintain the stop sign area. There was no warning sign on the township road to the east of the stop sign.

After the accident, the county sheriff notified the township of the growth of weeds along the road and the township dispatched its employees to cut the weeds.

Plaintiffs complaint in count II alleged the county permitted an extensive growth of ragweed to obscure the traffic sign controlling traffic proceeding in a westerly direction on Township Road 2250 north at the intersection of County Road 300 east; failed to properly maintain the T-intersection; and failed to properly inspect the T-intersection. On May 22, 1986, defendant county filed its motion to dismiss count II of plaintiff’s complaint. On June 19, 1986, the township filed its motion to dismiss count I of plaintiff’s complaint. On September 18, 1986, the trial court entered an order striking plaintiff’s complaint, counts I and II. That same day, defendant filed its motion to dismiss count II of plaintiff’s amended complaint on two grounds: plaintiff failed to allege actual or constructive notice of the existence of the condition claimed in sufficient time for defendant to have taken measures against such condition; and plaintiff failed to charge any negligence by defendant. On September 30, 1986, the trial court entered an order dismissing plaintiff’s amended count II, stating the amended count II was defective because it failed to plead requisite notice and plaintiff’s charge that defendant county failed to properly inspect and maintain the T-intersection was vague, overbroad, and conclusive. Plaintiff finally filed the amended complaint on October 2, 1986.

Count II of plaintiff’s amended complaint alleged defendant permitted an extensive growth of ragweed to obscure the stop sign controlling traffic proceeding in a westerly direction along Township Road 2250 north at the intersection of County Road 300 east; the county failed to properly inspect and maintain the T-intersection; and the county failed to properly inspect and maintain the T-intersection so as to ascertain the stop sign on the township road was obscured by ragweed not less than 10 feet high. On November 17, 1986, plaintiff filed a second-amended complaint in which he alleged the county had notice of the offending condition. In this regard, Bourne, the Livingston County superintendent of highways, testified in a discovery deposition a county employee, Robert Stottle, was at the intersection three days before the occurrence but did not notice the brush.

On March 9, 1988, Long Point Township filed a motion for summary judgment which alleged the stop sign was erected by Livingston County on the county’s right-of-way and the township’s duty to the county’s right-of-way was discretionary. On March 29, 1988, the county filed its motion for summary judgment which claimed the only actual allegations of negligence were contained in the second-amended complaint and asserted the road was part of the township highway system, not the county highway system.

On May 31, 1988, the court entered its order which denied the motion for summary judgment presented by the township. In addition, the court granted the county’s March 29 motion for summary judgment. The order stated the court found plaintiff did not establish a duty on the part of the county to prevent ragweed from obscuring the stop sign in question or to warn of the same. The court stated the stop sign appeared to be within the county right-of-way and the county installed the stop sign, but concluded those two factors did not create a duty on the part of Livingston County to maintain the roadway or shoulders along the township road.

On June 9, 1988, plaintiff filed his motion to vacate the court’s order entered on May 31, 1988. On August 19, 1988, the trial court entered an order denying plaintiff’s motion to reconsider the summary judgment order entered in favor of the county. On September 27, 1988, plaintiff moved to dismiss count I of plaintiff’s complaint brought against defendant Long Point Township. An order was entered which granted the motion to dismiss that same day. Plaintiff filed his notice of appeal on October 24,1988.

Sections 3 — 102(a) and 3 — 104 of the Local Governmental and Governmental Employees Tort Immunity Act stated at the time the incident which gave rise to this case occurred:

“(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition.” Ill. Rev. Stat. 1985, ch. 85, par. 3 — 102(a).
“(a) Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating signs.
(b) Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to provide traffic warning signals, signs, markings or other devices unless such a signal, sign, marking or device was necessary to warn of a condition which endangered the safe movement of traffic, and which would not be reasonably apparent to or anticipated by a person in the exercise of due care.” Ill. Rev. Stat. 1985, ch. 85, par. 3 — 104.

Also relevant is section 6 — 101 of the Illinois Highway Code, which states:

“Roads which are part of the township and district road system are under the jurisdiction of the several road districts in which they are located, subject to such supervision by the county and the Department as is provided in this Code. A road district comprises either a township, township district, road district or county unit road district in existence immediately prior to the effective date of this Code or any area created a road district under the provisions of this Code.” Ill. Rev. Stat. 1985, ch. 121, par. 6 — 101.

As stated recently by the court in Predny v. Village of Park Forest (1987), 164 Ill. App. 3d 688, 697, 518 N.E.2d 1243, 1249, when the propriety of a motion for summary judgment is being examined, the pleadings should be construed most strictly against the movant and most liberally in favor of the opponent. Summary judgment should be awarded only when the pleadings, depositions, admissions, and affidavits show there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.

The question of division of responsibility between various governmental agencies for road maintenance is generally one of law for the courts. (Bentley v. Saunemin Township (1979), 77 Ill. App. 3d 598, 602, 396 N.E.2d 285, 288, aff’d (1980), 83 Ill. 2d 10, 413 N.E.2d 1242.) In the instant case, to establish defendant was negligent, plaintiff must demonstrate defendant had a duty to maintain the roadway and intersection in question, there was a breach of the duty, and an injury proximately resulted from that breach. (Tunk v. Village of Willow Springs (1983), 120 Ill. App. 3d 800, 804, 458 N.E.2d 1132, 1135.) Our supreme court has found the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 951/2, par. 11 — 304) imposes a duty on townships to warn traffic on highways under their maintenance jurisdiction. Bentley, 83 Ill. 2d at 13, 413 N.E.2d at 1244.

In Bentley, plaintiff’s decedent was a passenger in an automobile driven by her husband; they were proceeding westbound on a township road and entered a State highway where a northbound vehicle collided with them. The State had placed a stop sign at the intersection to regulate access from the township road onto the State highway. Branches of a tree hung to the ground and extended to the edge of the township road, obscuring visibility of the stop sign from beyond 120 feet of the sign. The supreme court stated under the Illinois Highway Code (Ill. Rev. Stat. 1975, ch. 121, par. 6 — 201.7) and Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213, “it cannot be seriously questioned that defendants [the township and its highway commissioner] owed plaintiff’s decedent a duty of reasonable care in maintaining visibility of the stop sign.” (Bentley, 83 Ill. 2d at 13, 413 N.E.2d at 1244.) The court found the evidence was sufficient to support a determination that the defendants’ duty was breached, and failure to maintain visibility of a stop sign was negligence as a matter of law.

The Bentley facts are similar to those of the case at bar. In both cases the plaintiff was travelling on a township road where a stop sign had been obscured by vegetation. In addition, in each ease the road which intersected with the township road was under the jurisdiction of the same governmental entity that placed the stop sign along the township road. We find a duty of reasonable care in maintaining visibility of the stop sign was owed by the township, but not the county, to plaintiff in the case before us.

Plaintiff urges us to follow First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 373 N.E.2d 1326. In First National Bank, two vehicles collided at an intersection of two streets within the city of Aurora. A large, dense evergreen tree and a line of bushes obstructed plaintiff’s view of the intersection. Several city ordinances stated no landowner within the city shall obstruct the view of any person travelling the city’s streets and approaching its intersections. The court found, in light of the city ordinances, plaintiff’s allegation that the city had a duty to maintain the uncontrolled intersection in a reasonably safe manner and that the city violated its duty stated a cause of action. First National Bank is easily distinguished from the instant case; in First National Bank, both streets were within the city’s maintenance jurisdiction according to city ordinances, whereas here we have no such statutory directives.

Plaintiff cites Janssen (79 Ill. 2d at 449, 404 N.E.2d at 220), where the court noted more than one local entity may exercise maintenance jurisdiction over portions of the same roadway. Plaintiff attempts to baldly assert because the stop sign stands within the county right-of-way along the township road in the case at bar, under Janssen the county was obligated to maintain the stop sign. Janssen, however, does not support that assertion.

In Janssen, a motorcyclist travelling on a street which the city and State agreed to jointly maintain approached a traffic island which was on State property and solely within its jurisdiction. The traffic island was hazardous to approaching traffic from the street under joint control of the city and State. The motorcyclist did not notice the traffic island which encroached into the roadway until he collided with it. The court found the city had a duty to warn of the hazard under section 11 — 304 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 951/2, par. 11 — 304), which imposes an obligation on local authorities to warn motorists of hazards which are incident to the portion of a highway which remains under local maintenance jurisdiction. The court emphasized a governmental unit which controls a roadway has a duty to warn motorists of hazards adjacent to the roadway even if the hazard itself is not within the control of the governmental unit. Janssen, 79 Ill. 2d 435, 404 N.E.2d 213.

The Janssen rule does not apply to the facts of this case. The Janssen rule would apply to the county here if there was a hazard to motorists on the county highway. We do not believe the Janssen rule may be extended to include a hazard which is unnoticeable from the county highway.

Plaintiff cites Predny (164 Ill. App. 3d 688, 518 N.E.2d 1243), where the court reversed a summary judgment order which dismissed the village as a defendant. In Predny, the minor plaintiff was riding his bicycle down a concrete path leading into a service driveway of a shopping center. A delivery truck struck the boy’s bicycle as he entered the service driveway and injured him severely. Bushes grew on private property along the path and 3.9 feet of the bushes extended over the village’s bicycle path. The village had trimmed the bushes on at least one occasion. Also, two accidents occurred at that location prior to the one which involved the plaintiff, and both prior accidents involved the presence of heavy bushes, one involving obstruction of the path by bushes. The court noted the bushes were part of a village plan and the village constructed a ramp for easier access from the bicycle path to the service driveway.

The court found the facts “could very probably support an inference that the village exercised such control and maintenance of the accident area so as to impose a duty upon it.” (Predny, 164 Ill. App. 3d at 697, 518 N.E.2d at 1249.) A municipality’s duty to keep its streets, sidewalks, and parkways in a reasonably safe condition is not limited but extends to any area immediately adjacent thereto. (Predny, 164 Ill. App. 3d at 697, 518 N.E.2d at 1249.) Predny is distinguishable from the case before us. In Predny, the bushes which obstructed the view on the bicycle path were a part of a village plan. In addition, in Predny there were two prior accidents at the same location as well as notice of prior obstruction by the same bushes.

Plaintiff also cites Hennigs v. Centreville Township (1973), 56 Ill. 2d 151, 306 N.E.2d 287. The Hennigs court held the township was liable for injuries suffered by a pedestrian who walked along a township road and on township property at night when she fell on a pile of frozen gravel. In Hennigs, however, the court found a township has a duty to maintain its property in a reasonably safe condition. Plaintiff urges us to apply the Hennigs holding to the county right-of-way in the case before us but we fail to find any sound reasoning which would support such a holding in the instant case.

Finally, plaintiff claims the testimony given by both the county superintendent of highways and the highway commissioner of Long Point Township, both of whom stated the county had the duty to maintain the stop sign in the case at bar, proves the county did indeed have that duty. A legal duty, however, is not limited by the interpretations cast upon it by State and city employees. (Janssen, 79 Ill. 2d at 451, 404 N.E.2d at 221.) We apply the above rule to the county and township employees in this case.

Defendant argues the township has exclusive responsibility for the maintenance of township roads. In support of this contention, defendant cites Highland v. Stevenson (1987), 153 Ill. App. 3d 390, 505 N.E.2d 776. In Highland, a motorcyclist and a truck collided on a township road. The county had appropriated funds for the township for construction of a grade crossing at the location of the collision. In addition, the county’s superintendent of highways attended an Illinois Commerce Commission hearing to acquire State funds for the grade crossing. The court found these actions insufficient to confer jurisdiction upon the county over the particular township roadway in question. We find no reason to confer jurisdiction upon defendant for the maintenance of vegetative growth in front of the stop sign along the township road in the instant case.

Defendant argues that while the county installed the stop sign in this case, and the stop sign rested within the county’s right-of-way, the only duty the county had here was to maintain the stop sign itself. Defendant cites Burris v. Madison County (1987), 154 Ill. App. 3d 1064, 507 N.E.2d 1267, to support this contention. In Burris, two automobiles collided at an intersection of a county road with a township road. The plaintiff was travelling southbound on the township road, a road plaintiff had travelled on three or four times previously but was not completely familiar with. The other car was travelling westbound on the county road and the two automobiles collided in the intersection. A stop sign on the township road was leaning severely, lying approximately 22 inches off the ground.

The court held section 11 — 302 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 302) established a maintenance scheme that places the responsibility for the erection and maintenance of stop signs at the intersections of roads and highways of larger and lesser governmental entities upon the larger governmental entity. (Burris, 154 Ill. App. 3d at 1073, 507 N.E.2d at 1273.) As defendant contends, the county has the duty to maintain the stop sign itself in the case at bar, but does not have the duty to maintain any of the territory surrounding the stop sign.

After extensive review of the record and the applicable law, we find there is no genuine issue of material fact as to whether the county had the duty to keep the stop sign along the township road free from obstruction by vegetative growth, or to warn motorists on the township road of the approaching intersection. Therefore, the order of the circuit court of Livingston County is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    FRANKLIN L. KENYON, Plaintiff-Appellant, v. VIRGINIA GARRELS, Palestine Township Clerk, et al., Defendants-Appellees.
    Fourth District
    No. 4—88—0804
    Opinion filed June 8, 1989.

      Gary L. Morris and Joseph M. Gibson, both of Peoria, for appellant.
    Leiken, Leiken & Leiken, of Eureka, for appellees.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff appeals a trial court order which denied his complaint for an injunction, declaratory judgment, and attorney fees pursuant to the Freedom of Information Act (Act) (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq.). The trial court determined that requests plaintiff made for answers to questions concerning legal expenses incurred in connection with an ongoing litigation were not requests for documents covered by the Act. The trial court also determined no documents or records had been withheld from plaintiff. Plaintiff appeals, arguing his requests were in proper form and defendants violated the Act by withholding three billing statements.

We affirm.

On April 27, 1987, plaintiff sent a letter to Virginia Garrels, Palestine Township clerk, requesting the following questions be placed on the next township board meeting agenda: (1) does the road commissioner have authority to incur legal expenses; (2) who authorized the hiring of Richard Leiken in the township suit against Kenyon; (3) if authorized, when was it authorized; (4) at what rate and expense is the township board paying Leiken; and (5) is the board backing the road commissioner in its injunction action. Plaintiff stated he would appreciate answers to his questions in a return letter.

On January 25, 1988, plaintiff directed a letter to Pete Remmert, the Palestine Township supervisor. The letter stated that pursuant to the Act, plaintiff would like answers to the following questions: (1) at what rate is the road district incurring legal expenses in its lawsuit against him; (2) how much expense has accrued up to this date; (3) how much has been paid; and (4) to whom have payments been made. Plaintiff added he was willing to pay reasonable costs of copying any of the requested information. Remmert responded on February 9, 1988, telling plaintiff the information he wanted was kept by Garrels, who maintained the township records and books.

On February 19, 1988, plaintiff delivered a letter to Garrels noting it was his second request under the Act for information concerning the amount of money expended by the township in its lawsuit against him. On March 2, 1988, Garrels sent copies of payment vouchers for legal services. In a letter she stated Dave Thompson, the road commissioner, had advised her that the bills for legal services did not contain the hours worked, only the amounts due.

On March 7, 1988, plaintiff sent a letter to Thompson which stated he was requesting access to the information related to his lawsuit with Palestine Township. Plaintiff specifically wanted: (1) copies of contracts between the township or road district and Leiken or his firm; (2) if contracts did not exist, the amount Thompson had authorized to be paid Leiken on an hourly basis; (3) Leiken’s rate for in- and out-of-court services, if they differed; (4) the number of hours Leiken had worked on the case as of the date of the letter; and (5) copies of any contracts between Montgomery Township and Palestine Township in 1987. Plaintiff stated he wanted copies of actual records, not “made up” documents. Plaintiff also stated he was willing to pay reasonable costs of copying.

On March 17, 1988, Thompson replied to plaintiff’s letter. He stated no written contract with Leiken existed, he had supplied the amounts paid to Leiken, and felt answers to other questions relating to fees and hours should be privileged. Thompson enclosed copies of contracts in effect in 1987 between Palestine and Montgomery Townships.

Plaintiff filed suit on April 20, 1988. In his complaint, he stated he wanted to know the particular manner in which Palestine Township officials were spending money in the lawsuit involving him. Plaintiff alleged Thompson refused to provide all the records and bills related to fees and hours of Leiken’s employment. Plaintiff asked for an injunction, declaration that defendants’ action had violated the Act, and attorney fees.

In their answer, defendants admitted Garrels made a statement alleged in her March 2, 1987, letter, noted plaintiff was provided with pay vouchers providing the amounts paid as fees, and defendants attached copies of the bills submitted to Thompson by Leiken. Defendants denied withholding public records, stating all records had now been provided to plaintiff.

At trial, plaintiff testified Leiken represented the township and some adjacent landowners who were involved in a lawsuit concerning him. He wanted to know the particular rate of compensation for Leiken by Palestine Township to determine whether he as a taxpayer was subsidizing the adjacent landowner’s lawsuit. Additionally, he was concerned that insufficient funds would be left in the road repair budget, since the township budget was not large.

The trial court conducted an in camera inspection of the township records. It determined no information had been withheld from plaintiff which would have answered his questions. The court found the request for answers to questions concerning rates of pay was not a proper request, as the Act did not require the agency to prepare answers to questions.

Plaintiff argues his requests were for documents or records, were in proper form, and the three bills filed with defendants’ answer establishes defendants violated the Act.

Section 1 of the Act states the public policy of the State is that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of public officials, consistent with the terms of the Act. (Ill. Rev. Stat. 1987, ch. 116, par. 201.) The Act is not intended to require a public body to prepare or maintain any public record which it did not maintain prior to the effective date of the Act. (Ill. Rev. Stat. 1987, ch. 116, par. 201.) However, each public body is required to make available for copying or inspection its public records, subject to certain exceptions. (Ill. Rev. Stat. 1987, ch. 116, par. 203.) The exceptions are not applicable in the instant case. Section 2 defines public records in terms of documentary memorializations of the workings of governmental bodies or officials. Ill. Rev. Stat. 1987, ch. 116, par. 202.

The Act, thus, provides a statutory mechanism whereby citizens can obtain full and complete information on the affairs of government by viewing the public records. (Hoffman v. Department of Corrections (1987), 158 Ill. App. 3d 473, 511 N.E.2d 759; Roulette v. Department of Central Management Services (1986), 141 Ill. App. 3d 394, 490 N.E.2d 60.) The focus of the Act is upon access to records and documents. Hamer v. Lentz (1988), 171 Ill. App. 3d 888, 525 N.E.2d 1045.

Few cases exist interpreting the Illinois Act. However, Federal cases and developments from other States are persuasive. If a document exists stating itemized fees for legal services, it would be subject to the Act. (Ill. Rev. Stat. 1987, ch. 116, par. 202(c)(vii); City of New Haven v. Freedom of Information Comm’n (1985), 4 Conn. App. 216, 493 A.2d 283.) However, the Act is not designed to compel the compilation of data the governmental body does not ordinarily keep. (Borom v. Crawford (7th Qir. 1981), 651 F.2d 500; Krohn v. Department of Justice (D.C. Cir. 1980), 628 F.2d 195.) The Act does not compel the agency to provide answers to questions posed by the inquirer. Krohn, 628 F.2d 195.

In Krohn, the court found a request for information stated was too vague to satisfy the statutory requirement that it reasonably described the records requested. The court noted:

“A reasonable description requires the requested record to be reasonably identified as a record not as a general request for data, information and statistics to be gleaned generally from documents which have not been created and which the agency does not generally create or require.” Krohn, 628 F.2d at 198.

In the instant case, plaintiff requested answers to his questions concerning hourly rates of payment to Palestine Township’s attorney. He was informed that no itemized billing statements or contract existed. However, township officials provided copies of work orders, showing actual payments. Township officials were not obligated under the terms of the Act to answer plaintiff’s general inquiry questions concerning rates of payment, since this would have required creation of a new record (Ill. Rev. Stat. 1987, ch. 116, par. 201) or answering of questions based upon information not contained in any record. Additionally, plaintiff’s request for information about payment rates did not identify documents which he wished produced or made available. It was, thus, not in proper form. Krohn, 628 F.2d 195.

We find the bills for legal services, which were attached to defendants’ answer, are not indicative of a violation of the Act. None of the bills contained an itemization of work performed and rates charged. One contained a statement of the time spent in court, but did not indicate that the in-court work was the sole source of the billing for services performed. Thus, the billings statements would not have answered plaintiff’s question. Even if his requests for documents establishing the hourly rate were in proper form, nonitemized billing statements would not be such documents.

For the above reasons, we affirm the trial court.

Affirmed.

LUND and KNECHT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS VINSON, Defendant-Appellee.
    Fourth District
    No. 4—88—0457
    Opinion filed June 8, 1989.

      James C. Dedman, State’s Attorney, of Clinton (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

A petition to rescind a statutory summary suspension was filed by defendant and was granted after hearing. (111. Rev. Stat. 1987, ch. 951/2, pars. 2 — 118.1(a), (b).) The De Witt County circuit court held defendant did not refuse to submit to or complete the breathalyzer test where the State failed to provide an explanation of “deficient air sample.” The State appeals the rescission, contending defendant’s failure to produce a valid reading constituted a refusal to take the breathalyzer test. We agree and reverse.

On March 29, 1988, Clinton police officer Paul McCartney stopped the defendant after receiving and confirming a dispatch the defendant was driving a vehicle without a license. Officer McCartney testified at hearing he did not observe any unusual erratic driving behavior by the defendant, but the defendant stumbled when he exited the vehicle and smelled of alcohol.

At the request of Officer McCartney, the defendant gave him his driver’s license, which was issued in Missouri. After running a check, Officer McCartney found the defendant’s license was suspended in Illinois. Officer McCartney then asked the defendant to perform several field-sobriety tests: the walk and turn test, the one leg stand test, and the horizontal gaze nystagmus test. Officer McCartney testified it was his opinion the defendant failed the tests at that time and again at the police station.

Officer McCartney issued the defendant a citation for driving under the influence after he failed the field-sobriety tests at the police station. He then read the defendant the warning to motorists, handed him a copy to read, and asked him if he would take the breathalyzer test. The defendant said he understood the warning to motorists and verbally agreed to take the test.

The breath test was administered by Officer Jan Page of the Clinton police department. Officer Page did not testify at the hearing. Officer McCartney witnessed Officer Page administer the breathalyzer test to defendant. McCartney is not qualified to run a breathalyzer machine. Officer McCartney testified he observed the defendant was not blowing long and hard enough into the machine to complete the test. Four tests were administered to the defendant. The first result was a “0,” and the second was labeled “.14 deficient air sample.” No results were obtained from the final two tests. At this time it was determined the defendant failed to complete the test, and sworn reports to the circuit county of venue and the Secretary of State were filed as required by section 11 — 501.1 of the Illinois Vehicle Code. Ill. Rev. Stat. 1987, ch. 951/2, par. 11-501.1

The trial court gave the following reasons for ruling the defendant completed the breathalyzer test: (1) defendant did take a breath test and there was a readout; (2) the State failed to explain the meaning of “.14 deficient air sample”; and (3) absent an explanation of such a reading the defendant’s burden of proof was sustained. The sole question for review is whether the holding of the trial court was against the manifest weight of the evidence.

The defendant failed to file an appellate brief. The record is simple and the claimed errors are such that this court can easily decide them without the aid of the defendant’s brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Section 2 — 118.1(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1) lists the issues to which a statutory summary suspension hearing is limited. The fourth issue is relevant to this case: “whether the person *** did submit to and complete such test or tests which determined an alcohol concentration of 0.10 or more.” Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b)(4).

Because section 2 — 118.1 is civil in nature, the trial court must find by a preponderance of the evidence that grounds exist for a rescission of the summary suspension. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1.) The defendant has the burden of proof in a statutory summary suspension hearing. (People v. Orth (1988), 124 Ill. 2d 326, 338, 530 N.E.2d 210, 215.) In order to attack the suspension, the defendant must also attack the officer’s sworn report. People v. Blythe (1987), 153 Ill. App. 3d 292, 298, 505 N.E.2d 402, 405.

The trial court ruled correctly the defendant had the burden of proof, but incorrectly found the defendant met this burden because a “.14 deficient air sample” reading was obtained from the machine. The defendant did not attack the accuracy of the breathalyzer results or the sworn report of the officer in this case. The trial court found the defendant met his burden of proof because the State failed to explain the “.14 deficient air sample” reading. This holding is clearly against the manifest weight of the evidence in light of our holding in People v. Bates (1987), 165 Ill. App. 3d 80, 518 N.E.2d 628.

In Bates, this court held a printout labeled “.17 deficient air sample” did not satisfy the defendant’s burden of proof the test was completed. The defendant in Bates agreed to submit to the breathalyzer test, but failed to provide the machine with an adequate amount of air. Although a reading was obtained, we concluded the defendant completed the breathalyzer test unsuccessfully. This court held:

“As long as the machine is in proper working condition, and a defendant is physically capable of taking the test, his failure to provide the breathalyzer machine with an. adequate air sample has been treated as a sufficient basis for a determination that a defendant refused to take the test.” Bates, 165 Ill. App. 3d at 82, 518 N.E.2d at 630.

In this case, the State presented evidence the defendant verbally agreed to take a breathalyzer test. The printout reported a blood-alcohol level of .14 that was labeled “deficient air sample.” Under Bates, and absent a showing by the defendant that the test results were erroneous or unreliable, the deficient air sample reading alone is sufficient evidence the defendant refused to complete the breathalyzer test. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b)(3).) Contrary to the trial court’s holding, the State has no obligation to establish a foundation for the admission of test results at a statutory summary suspension hearing unless the motorist first establishes a prima facie case that the breath test did not disclose a blood-alcohol concentration of 0.10 or more, or that the test result did not accurately reflect his blood-alcohol concentration. No such prima facie case was made here, and the State had no obligation to further explain the meaning of the deficient air sample or establish any foundation. People v. Marley (1988), 176 Ill. App. 3d 401, 405, 531 N.E.2d 107,110.

We find the order of the trial court granting defendant’s petition to rescind the statutory summary suspension of his driver’s license was against the manifest weight of the evidence. Accordingly, the judgment of the circuit court of De Witt County is reversed and remanded for the entry of an order denying the petition to rescind.

Reversed and remanded.

McCULLOUGH, P.J., and GREEN, J., concur.