author: PRESIDING JUSTICE CERDA

text:
    LeROY MARTIN, Superintendent of Police of the City of Chicago, Plaintiff-Appellee, v. HELENA THOMPSON, Defendant-Appellant (Police Board of the City of Chicago, Defendant).
    First District (3rd Division)
    No. 1—88—2371
    Opinion filed March 7, 1990.

      Cornfield & Feldman, of Chicago, for appellant.
    Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch, Chief Assistant Corporation Counsel, and Frederick S. Rhine, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

The defendant, Helena Thompson, was discharged from her employment as a messenger clerk with the Chicago police department for her alleged use of cocaine. The Police Board of the City of Chicago (Board) initially found the defendant not guilty of the charges brought by the superintendent. The circuit court, however, reversed the Board’s decision and remanded the cause for entry of a decision consistent with the court’s order so that the Board could determine an appropriate sanction. The circuit court then affirmed the Board’s decision discharging the defendant, and she now appeals from both decisions of the circuit court.

The record reveals that on July 3, 1986, Thompson and a male companion were arrested for public indecency. Her male companion was also charged with possession of cocaine. As a result of the circumstances surrounding her arrest, the department requested Thompson to submit to a drug test. On March 8, 1987, nine months after producing a urine specimen, Thompson was suspended from her employment. On March 18, then Superintendent Fred Rice filed charges with the Police Board alleging violations of: Rule 1 (Violation of any law or ordinance); Rule 2 (Any action or conduct which impedes the department’s efforts to achieve its policy and goals or brings discredit upon the department); and Rule 6 (Disobedience of an order or directive whether written or oral). A hearing was conducted before the Police Board on October 30, 1987. The crux of the department’s case was test results revealing the presence of cocaine in the urine specimen. Because the bottle containing Thompson’s urine was not introduced into evidence, as the laboratory lost the bottle, the test results were admitted into evidence with little weight attributed to them by the hearing officer. Consequently, the hearing officer found Thompson not guilty. In this appeal, the court must decide whether the Police Board’s initial decision finding Thompson not guilty was, as the circuit court held, against the manifest weight of the evidence.

The transcript of Thompson’s hearing reveals the following. On the early morning of July 3, 1986, police officers Alex Kaider and Sidney Davis were on patrol when the officers observed a white Dodge van parked outside a factory and proceeded to investigate. Officer Kaider walked up to the rear of the van and upon hearing voices, shined his flashlight through a rear window. Officer Kaider discovered two naked individuals and announced his presence. Kaider then observed the female occupant rub her finger over a table surface and lick her finger, repeating the act several times. Kaider could not see what the female occupant had rubbed her finger in, and he was unable to detect anything during a physical inspection of the table. A search of the van, however, produced a shortened McDonald’s straw containing a white powdery residue and six miniature white envelopes containing a white powder which Kaider suspected as being cocaine. The male occupant, identified as Gerald Jones, was arrested for possession of cocaine and public indecency. The female occupant, identified as the defendant, Helena Thompson, was arrested for public indecency. The charge against Thompson for public indecency was later dismissed and is not related to the charges brought by the superintendent.

Around 10:30 in the morning of the same day, Officers Morton and Wallace from the Internal Affairs Division went to Thompson’s residence and escorted her to the medical section. Thompson produced a urine specimen in the presence of Officer Morton. Thompson then witnessed Officer Mitkal pour a portion of the specimen into a bottle, cap the bottle, and seal it with red evidence tape. Officer Mitkal placed identification number DA 86 6672 on both the bottle and the cap. The bottle was then placed in a refrigerator, and Thompson signed an affidavit attesting to what she observed. The parties stipulated that Sergeant Don Laffey removed the specimen from the refrigerator and delivered it to the American Institute for Drug Detection (AIDD) on July 7, 1986.

Thompson’s specimen was personally received by Don Shattuck, president of AIDD. A “Test Requisition” form was prepared, and the police department entered its own identification number, DA 86 6672, on the form. Mr. Shattuck testified that AIDD also assigns its own identification number to each sample and that Thompson’s specimen was assigned DD—42004. Mr. Shattuck then described the basic procedure for labeling specimens. Shattuck stated that the AIDD number is first recorded on the requisition form and then entered into AIDD’s computer. A duplicate of the AIDD number is then affixed to the bottle. There was no testimony, however, as to who actually recorded the AIDD number on the requisition form in this instance and who, if anyone, labeled Thompson’s bottle with the AIDD number. Mr. Shat-tuck stated that after signing the requisition form for the bottle, he personally transferred Thompson’s specimen to James Walsh, a toxicologist, who is charged with the responsibility of performing the initial screening for drug detection by a process known as the Enzyme Multiplier Immunoassay Technique (EMIT).

Mr. Walsh described the procedures employed in running an EMIT test for a given sample. Walsh then testified that he broke the seal on the urine specimen. It also appears from Walsh’s testimony that the requisition form travels with the bottle during testing, as he stated that had the seal been tampered with, he would have recorded that fact on the “request sheet.” Then, testifying from department’s exhibit No. 3, a copy of the EMIT tape for specimen No. DD 42004, Walsh stated that the EMIT test performed on Thompson’s specimen produced a positive result for cocaine and THC. Walsh stated that he tested specimen No. DD 42004 as he identified his handwriting on the tape.

On July 8, Joyce Mah removed Thompson’s bottle from a refrigerator and performed a second test, known as Gas Chromatography Mass Spectrometry (GCMS). Mah testified that she did not see who placed the specimen in the refrigerator, but that Mr. Walsh must have done so because the individual performing a test upon a specimen is responsible for its storage after testing. She stated that specimen No. DD 42004 was tested by her because her initials appeared on the department’s exhibits pertaining to the GCMS test. Mah testified that she ran an Autotune, which is a test performed on a known compound to assess the operating condition of the machine. She also ran a “standard run,” a test performed on a drug-free urine spiked with a specific amount of cocaine, and a “blank run,” which is a test performed on a drug-free urine. Mah further testified that the GCMS test performed on specimen No. DD 42004 confirmed the presence of cocaine in Thompson’s urine specimen. Finally, Mah stated that after a confirmation test is completed on any given sample, the bottle is then placed into a locked freezer for long-term storage.

Dr. Jan Johnson, a senior supervisor and toxicologist with AIDD, rendered his opinion based on the department’s exhibits that the tests run for specimen No. DD 42004 were run properly. He also testified that the exhibits show that the lab equipment had been calibrated and was operating correctly. On cross-examination, however, Johnson admitted that he could not determine from the department’s exhibits whether specimen No. DD 42004 was the same sample produced by Thompson which the police department marked as DA 86 6672. It was his opinion that both cocaine and the cocaine metabolite, benzoylecognine, were present in specimen DD 42004.

Thompson denied rubbing her finger across a table and licking her finger. Thompson further denied using cocaine on July 3 and denied ever using cocaine during the course of her employment.

At the conclusion of the testimony, the department moved that its exhibits showing the test results be admitted into evidence. Thompson objected on the ground that the superintendent failed to produce Thompson’s urine specimen at the hearing. The transcript reveals that Mr. Shattuck arrived at the hearing without the bottle and that a search at AIDD had been conducted during the course of the hearing. The department requested a continuance so that AIDD could search for the bottle and argued that the exhibits should be admitted notwithstanding the bottle’s absence because the testimony established an adequate chain of custody. The hearing officer denied the motion for a continuance, but admitted the department’s exhibits into evidence for “what they were worth.” On December 16, Thompson was adjudged not guilty on all charges. The Board indicated in its “Findings and Decision” that there was “no evidence” establishing that Thompson ingested cocaine.

The superintendent filed a complaint for administrative review in the circuit court on January 20, 1988. On April 18, the circuit court reversed and remanded the cause for a determination by the Board of an appropriate sanction. Thompson filed a motion requesting the circuit court to modify its judgment and to remand to the Board for a clarification of its findings and decision, contending that the Board’s decision was too incomplete to provide a basis for administrative review. On May 23, while the motion for modification was pending, the Board acted on the circuit court’s order and ordered her discharged from her employment. Thompson filed an emergency motion seeking nullification of the Board’s second decision. The circuit court denied the emergency motion, and on June 16, the circuit court denied Thompson’s motion for modification. Thompson filed a motion for review of the Board’s May 23 decision, and a hearing was set for June 30. Thompson subsequently filed her own complaint for administrative review in order to preserve her right of review of the Board’s May 23 decision. By agreed order, Thompson’s complaint for administrative review was consolidated with the superintendent’s original complaint, and on July 26 the circuit court affirmed its previous decision reversing the Board’s finding of not guilty and the Board’s second decision discharging Thompson.

On appeal, the defendant-appellant contends that the circuit court erred in holding that the Board’s decision was against the manifest weight of the evidence because the superintendent failed to satisfy his burden of proof. Thompson maintains that at the very least, the superintendent had to prove by a preponderance of the evidence that she ingested cocaine and suggests that a “clear and convincing” standard may even be applicable, as the superintendent alleged criminal conduct. The record does not disclose what standard the hearing officer employed, but it is apparent that the circuit court applied the “clear and convincing” standard in holding that the Board’s decision was against the manifest weight of the evidence. Thompson does not challenge the accuracy of the test results, only the conclusion that the test results were in fact related to her specimen. The plaintiff also contends that on remand, the Board imposed too harsh a penalty.

As the complainant in the hearing, the superintendent bore the burden of proving his allegations against Thompson. (Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 53, 416 N.E.2d 1082.) In determining what standard of proof should apply in an administrative proceeding, the court must balance the private interests affected by the proceeding, the countervailing governmental interests, and the risk of error created by the State’s chosen procedure. (Board of Education v. State Board of Education (1986), 113 Ill. 2d 173, 190-91, 497 N.E.2d 984.) In a dismissal proceeding against a police officer, the preponderance of the evidence standard applies even if criminal conduct is involved. (Schlobohm v. Rice (1987), 157 Ill. App. 3d 90, 96, 510 N.E.2d 43 (cocaine use); Thornton v. University Civil Service Merit Board (1987), 154 Ill. App. 3d 1016, 1019, 507 N.E.2d 1262 (gambling).) We consider that the same standard applies to a messenger clerk employed by the police department. See Board of Education v. State Board of Education, 113 Ill. 2d at 191-94.

Upon judicial review of an administrative decision, a reviewing court is limited to determining whether the decision is against the manifest weight of the evidence. (Mead v. Board of Review (1986), 143 Ill. App. 3d 1088, 1094, 494 N.E.2d 171.) Evaluating the credibility of the witnesses and resolving conflicting evidence is within the province of the administrative body (Schlobohm, 157 Ill. App. 3d at 93), and its findings are deemed prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3—110.) A reviewing court is not permitted to reweigh the evidence or reassess the credibility of the witnesses. (Mead, 143 Ill. App. 3d at 1095.) That an opposite result is reasonable or that a court might have reached a different conclusion is insufficient grounds for disturbing an administrative determination. (Sheehan v. Board of Fire & Police Commissioners (1987), 158 Ill. App. 3d 275, 287, 509 N.E.2d 467.) To reverse a decision of an administrative body, a reviewing court must “conclude that all reasonable and unbiased persons, acting within the limits prescribed by the law and drawing all inferences in support of the finding, would agree that the finding is erroneous and that the opposite conclusion is clearly evident.” Sheehan, 158 Ill. App. 3d at 287.

We agree with the circuit court that the Police Board’s decision finding Thompson not guilty was against the manifest weight of the evidence. There is no dispute that the police department followed proper procedures in the labeling and processing of Thompson’s specimen up until the time the specimen was delivered to AIDD. Nor does Thompson challenge the accuracy of the test results. She only disputes whether the test results admitted into evidence are in fact related to her specimen. While AIDD could improve its procedures, we do not believe that the evidence was insufficient. Mr. Shattuck testified that he received Thompson’s bottle and that he personally transferred possession to Walsh. Shattuck stated that he is required to take special interest in specimens delivered by the police department. The test requisition form, which contains both identification numbers DA 86 6672 and DD 42004, matches Thompson’s specimen with the test results.

In the absence of any evidence of tampering with the contents of the specimen tested, a sufficient foundation was established for the admission of the test results. (People v. Anthony (1963), 28 Ill. 2d 65, 69, 190 N.E.2d 837, 839; People v. Norman (1962), 24 Ill. 2d 403, 407, 182 N.E.2d 188, 190, cert. denied (1962), 371 U.S. 849, 9 L. Ed. 2d 85, 83 S. Ct. 86; Ritenour v. Police Board (1977), 53 Ill. App. 3d 877, 369 N.E.2d 135.) Although the bottle’s location could not be discovered after it had supposedly been placed in a locked freezer for long-term storage, the mishandling of Thompson’s bottle occurred after her specimen had been tested by Walsh and Mah, and the results of their tests were recorded and identified with the AIDD number assigned to Thompson’s specimen. Accordingly, we find that the superintendent proved Thompson guilty by a preponderance of the evidence, and the circuit court justifiably reversed the Board’s initial decision.

We further affirm the Board’s action discharging Thompson from her employment. An administrative tribunal’s determination that discharge is the appropriate sanction cannot be overturned unless such discharge is arbitrary and unreasonable or unrelated to the requirements of service. (Allman v. Police Board (1986), 140 Ill. App. 3d 1038, 1041, 489 N.E.2d 929.) “Cause” for discharge has been defined as a substantial shortcoming which renders the employee’s continuance in office to be detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as a good cause for discharge. (Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 410, 438 N.E.2d 147.) Cocaine use is a sufficient basis for discharge. (Schlobohm, 157 Ill. App. 3d 90.) Because the police department cannot condone the illegal use of drugs by its employees, the ultimate sanction of discharge is neither arbitrary nor unreasonable.

The judgment of the circuit court is affirmed.

RIZZI and WHITE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    WATER PIPE EXTENSION, Bureau of Engineering, Laborers Local 1092, et al., Petitioners, v. THE CITY OF CHICAGO et al., Respondents.
    First District (6th Division)
    No. 1—88—2830
    Opinion filed January 26, 1990.
    Modified on denial of rehearing March 30, 1990.

      Joseph T. Moriarty, of Erbacci, Syracuse & Cerone, Ltd., of Chicago, for petitioners.
    Neil F. Hartigan, Attorney General, of Springfield (Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Local Labor Relations Board.
    Judson H. Miner, Corporation Counsel, of Chicago (Kelly R. Welsh, Ruth M. Moscovitch, and Frederick S. Rhine, Assistant Corporation Counsel, of counsel), for respondent City of Chicago.
   JUSTICE EGAN

delivered the opinion of the court:

The petitioners, Water Pipe Extension, Bureau of Engineering, Laborers Local 1092 (Local 1092) and County Municipal Employees’, Supervisors’ and Foremen’s Local 1001 (Local 1001) (collectively, unions), filed an unfair labor practice complaint against the respondent City of Chicago (City) with the respondent Illinois Local Labor Relations Board (Board or ILLRB). The unions asserted that the City had violated sections of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, pars. 1610(a)(1), (a)(4)) by refusing to give the unions information that the unions alleged was necessary for the administration of the parties’ bargaining agreement.

The hearing officer determined that the City had not committed an unfair labor practice in refusing the unions’ demands because the unions failed to establish their right to routine access to the information. The hearing officer also concluded that the unions had waived any right to the information in a so-called “zipper clause” in the bargaining agreement. The Board adopted the hearing officer’s findings and conclusions and dismissed the complaint.

Before discussing the propriety of the Board’s dismissal, we must first address the City’s motion to dismiss the unions’ petition for review on .the ground that this court lacks jurisdiction because the petition was allegedly filed too late.

On August 25, 1988, the ILLRB entered its order dismissing the petitioners’ complaint. On the same date, copies of the order, which were addressed to the parties’ attorneys, were deposited in the United States mail, postage prepaid for certified mail, return receipt requested. The attorney for the petitioners asserts that he received the order on August 31, 1988.

On September 27, 1988, 33 days after the order was entered and 27-days after the petitioners’ attorney received the order in the mail, the petitioners filed a petition for direct review in this court. Ill. Rev. Stat. 1987, ch. 48, par. 1716(a).

On July 14, 1989, the City filed a motion to dismiss the petition on the ground that the unions failed to file the petition in a timely fashion under Supreme Court Rule 303 (107 Ill. 2d R. 303). The City explained that it had not filed a motion to dismiss earlier because it had relied on an opinion of the Fifth Appellate District, City of Benton Police Department v. Human Rights Comm’n (1986), 147 Ill. App. 3d 7, 497 N.E.2d 876, and an opinion of the Fourth Appellate District, Board of Education of Plainfield Community Consolidated School District No. 202 v. Illinois Educational Labor Relations Board (1986), 143 Ill. App. 3d 898, 493 N.E.2d 1130 (hereinafter Board of Education). Both cases had held that the time for filing petitions for direct review in the appellate court, rather than a complaint for review in the circuit court, was subject to the requirements of the Administrative Review Law, which provides that an appeal to the circuit court of a decision of an administrative agency must be filed within 35 days. (Ill. Rev. Stat. 1987, ch.110, par. 3—103.) However, the First Appellate District rendered an opinion on June 30, 1989, holding that the petition for review was subject to the 30-day time requirement of Supreme Court Rule 303(a) (107 Ill. 2d R. 303(a)). (County of Cook v. Illinois Local Labor Relations Board (1989), 189 Ill. App. 3d 1057, 545 N.E.2d 934.) The court refused to follow Benton Police Department and Board of Education.

The respondents argue that we should follow County of Cook. However, we have concluded that we need not determine whether County of Cook was correctly decided, because we agree with the unions’ alternative argument that they timely filed their petition regardless of whether the Administrative Review Law or the supreme court rule applies. (The City did not respond to this alternative argument.) In resolving the issue, our first task is to determine which statute or rule is applicable to the method of service of the Board’s order.

Section 3—103 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3—103) provides as follows:

“§3 — 103. Commencement of action. Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby. The method of service of the decision shall be as provided in the Act governing the procedure before the administrative agency, but if no method is provided, a decision shall be deemed to have been served either when personally delivered or when deposited in the United States mail, in a sealed envelope or package, with postage prepaid, addressed to the party affected thereby at his or her last known residence or place of business.”

In County of Cook the court held that the requirement that a complaint be filed within 35 days was in conflict with Supreme Court Rule 303(a) (107 Ill. 2d R. 303(a)), which provides that notice of appeal from a judgment entered in the circuit court must be filed within 30 days after entry of judgment. The court relied, in part, on Supreme Court Rule 335 (107 Ill. 2d R. 335), which governs direct appeals to the appellate court from the order of an administrative agency. But there is nothing in Rule 335 or any other supreme court rule dealing with the method of service of the administrative decision. Consequently, that portion of section 3 — 103 dealing with the method of service is not in conflict with any supreme court rule. Therefore, we accept the applicability of section 3 — 103 insofar as it deals with the method of service.

The next question is whether the act governing the procedure before the agency has provided for the method of service. The Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1611(a)) provides for direct review in the appellate court in accordance with the Administrative Review Law. But the Public Labor Relations Act itself is silent as to the method of service. However, in Gemini Services, Inc. v. Martin (1986), 141 Ill. App. 3d 17, 489 N.E.2d 1145, the court held that an agency, under its general rulemaking power, may promulgate a regulation determining when service of its orders is deemed complete. Therefore, the final question is whether the ILLRB has promulgated a regulation determining when service of its order is deemed complete. The answer is that it has.

The pertinent regulation provides as follows:

“a) In computing any period of time prescribed by the Act or these rules, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included. If the last day falls on a Saturday, Sunday, or legal holiday, the time period shall be automatically extended to the next day that is not a Saturday, Sunday or legal holiday. * * *
c) Whenever a time period begins running upon the service of notice or other document upon a party, and service is effected by mail, three days shall be added to the prescribed period.” 80 Ill. Adm. Code §1200.30 (1985).

The Board’s decision was mailed on August 25, 1988. Under the regulation, three days are to be added to the prescribed period making the effective date of service August 28. Therefore, the petition for review was timely filed 30 days later on September 27, within the limit under Rule 303(a).

We note that the conclusion we reach is in accordance with Board of Education of Plainfield Community Consolidated School District No. 202 v. Illinois Educational Labor Relations Board (1986), 143 Ill. App. 3d 898, 493 N.E.2d 1130. County of Cook disagreed with Board of Education but not on the question of the method of service and the computation of time.

For these reasons, the motion to dismiss the petition for review is denied.

Local 1001 and Local 1092 are affiliated with the Laborers International Union of North America. Local 1001 represents a bargaining unit of 3,000 to 3,500 individuals employed by the City; Local 1092 represents approximately 1,200 individuals employed by the City. The unions have represented City employees for approximately 50 years on an informal basis. In 1984, the City granted the unions “historical recognition.”

From the summer of 1984 to early 1985, the City negotiated a “Master Agreement” with a coalition of 42 local labor and trade unions, including Local 1001 and Local 1092. Subsequently, from March 1985 to February 1986, the City entered “local” negotiations with Locals 1001 and 1092, the result of which was a collective bargaining agreement (the Local Agreement) that adopted the general provisions of the Master Agreement and addressed the specific relationship between the City and the unions. Articles 13 and 15 of the Local Agreement set forth specific procedures to be followed by the City in laying off or recalling employees and in filling job vacancies within the unions’ bargaining units. The Master Agreement and the Local Agreement became effective on February 13, 1986, and were scheduled to expire on December 31,1987.

Section 15.1 of the Local Agreement deals with the procedures to be followed in the filling of permanent job vacancies within the bargaining units. In substance the required procedure is as follows: After the City determines that a permanent vacancy in a department is to be filled, employees within that department may request to fill that vacancy; seniority is preferred; if no one from that department makes a request, the City shall appoint an individual from the recall or reinstatement list consisting of the names of former employees in that department; if there are no eligible employees from the recall list, the City shall post the job for bidding. Applications may be made by existing employees and nonemployees, but employees shall have preference unless the nonemployees are demonstrably more qualified. Similarly, seasonal employees with recall rights shall have preference over non-employees unless the nonemployees are demonstrably more qualified.

Several disputes have arisen between the City and the unions regarding the proper interpretation of section 15.1. The unions claim that an interdepartmental “secondary recall right” exists mandating a preference for the recall of union members previously laid off from one department to equal- or lower-rated jobs in any other department in which a vacancy exists. The City asserts that this recall right is limited to employees who have been laid off from the department in which the vacancy exists. The unions also claim that section 15.1 restricts bidding to employees of the bargaining unit in which the vacancy exists, whereas the City claims that any employee in any local that signed the Local Agreement can bid on a vacancy. The unions contest the manner in which the City applies preferences in the bidding and application process, both as between bargaining unit bidders and non-bargaining-unit bidders and as between bidders (union members) and applicants (nonunion members). The unions also contest the City’s practice of requiring bidders to complete applications in addition to bid forms. Finally, the unions suspect that the City has manipulated the selection process to favor certain individuals. Since the unions suspect that the City is not following the required procedures, they maintain that the requested documents are necessary for a determination of whether the City is following the terms of the agreement. The City contrarily contends that the unions do not need the requested documents but want them so that they may look over the City’s shoulder as the City makes its hiring decisions. The City succinctly puts it that the unions want to become the City’s “partner” in the hiring process.

As a result of these disputes and the refusal of the City to make the requested information available, the unions have filed grievances in every case where a vacancy occurs. After the grievance is filed, the City then turns over the information it had previously refused to provide.

A proper analysis of the problem requires a determination of what information the unions get pursuant to the agreement and what additional information they seek.

Section 2.6 of the Local Agreement requires the City to provide unions on a monthly basis with the following:

(a) a “bargaining unit report” listing current active employees;
(b) an “activity report” indicating disability, retirements, resignations, discharges, terminations, leaves, suspensions, rein-statements, reappointments, transfers, appointments (including promotions and demotions) and the deaths of current active employees; and
(c) an overtime report for current active employees.

Section 2.6 also requires that the City annually provide the unions with a seniority list for the bargaining unit. Finally, the City must allow the unions to review bargaining unit personnel transaction reports (PER-14’s) on a weekly basis. PER-14’s reveal that a vacancy was filled and by whom.

The additional materials requested by the unions for each vacancy before it is to be filled are the following:

(1) The request-to-hire form made to the Department of Personnel by the head of the requesting department. That form includes the “B” form, which details the operating department’s hiring criteria, and the “A” form, which asks for authority to hire.
(2) The authorization-to-hire form, which is the “A” form after it has been signed by the commissioner of personnel and the budget director. When the authorization-to-hire form is completed, a vacancy exists.
(3) Notice of job opportunity. This is the document which is posted advising all interested parties of the vacancy.
(4) The Shakman referral list and employment decision form. The Shakman referral list contains the names of all bidders and applicants screened by the City, thus defining the competitors for the job opening.
(5) All bids from bargaining unit employees.
(6) All applications from non-bargaining-unit employees and nonemployees.
(7) Hiring criteria rating forms. These forms are filled out by an interviewer who rates the bidder or applicant according to the hiring criteria on the “B” form of the request-to-hire form. The applicant’s score is recorded on the hiring criteria rating form. Each criterion is given a certain weight, and a total score is determined.
(8) PER-14’s. After the Department of Personnel receives a completed rating form and the successful candidate is appointed to fill the vacancy, the hiring department generates a PER-14 form indicating the change in the appointed employee status. Under the local agreement, once each week, the unions may review the PER-14 forms on file at the Department of Personnel. The City also provides the same information in the monthly bargaining reports given to the unions under the Local Agreement.

Before discussing the arguments of the parties, it is necessary to set forth the applicable law.

Because section 10(a) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1610(a)) parallels the Federal counterpart (National Labor Relations Act, 29 U.S.C. § 158(a) (1982)), the Illinois courts may look to Federal decisions in interpreting this portion of the Illinois act. American Federation of State, County & Municipal Employees, Council 31, AFL-CIO v. Illinois State Labor Relations Board (1988), 175 Ill. App. 3d 191, 529 N.E.2d 773 (hereinafter AFSCME, Council 31).

Our study of Federal law leads to the conclusion that an employer’s failure to furnish relevant information to unions during contract negotiations may constitute an unfair labor practice. (National Labor Relations Board v. Truitt Manufacturing Co. (1956), 351 U.S. 149, 100 L. Ed. 1027, 76 S. Ct. 753.) The Supreme Court subsequently expanded on the Truitt holding, stating that “the duty to bargain unquestionably extends beyond the period of contract negotiations and applies to labor-management relations during the term of an agreement.” (National Labor Relations Board v. Acme Industrial Co. (1967), 385 U.S. 432, 436, 17 L. Ed. 2d 495, 499, 87 S. Ct. 565, 568.) “Relevant” information includes material that would be of use to the union in carrying out its statutory duties and responsibilities. (Acme Industrial Co., 385 U.S. at 437, 17 L. Ed. 2d at 499-500, 87 S. Ct. at 568.) Citing Truitt Manufacturing Co. and Acme Industrial Co., the Supreme Court held that the employer’s duty to bargain collectively “includes a duty to provide relevant information needed by a labor union for the proper performance of its duties as the employees’ bargaining representative.” (Emphasis added.) (Detroit Edison Co. v. National Labor Relations Board (1979), 440 U.S. 301, 303, 59 L. Ed. 2d 333, 339, 99 S. Ct. 1123, 1125.) The Detroit Edison court, however, added that the union’s right to disclosure is not absolute and the union’s “interests in arguably relevant information [need not] always predominate over all other interests, however legitimate.” 440 U.S. at 318, 59 L. Ed. 2d at 348, 99 S. Ct. at 1132.

The first issue before us, therefore, is whether the information sought is relevant. We accept the unions’ contention that information which would assist the unions in determining whether to file a grievance is relevant; and we accept, for the sake of argument, their contention that some of the information sought might make it easier for the unions to decide whether to file a grievance. Our acceptance of those contentions necessarily leads to our holding that the information sought is relevant. But that does not end the problem. Even accepting relevance, the court must weigh the interest of the City against those of the unions. Shell Oil Co. v. National Labor Relations Board (9th Cir. 1972), 457 F.2d 615.

Boiled down, the unions’ position is that it must have the information before the filing of a grievance and not after. As the unions couch the issue, it is not what is provided, it is when it is provided.

At this point, it is appropriate to express agreement with the unions’ argument that the hearing officer and, implicitly, the Board were in error in holding that requiring the criteria forms to be turned over would have a chilling effect on the candor of the interviewers. The fact that the City does turn over the material after a grievance is filed disproves that holding. We note that the City did not advance that argument below. Similarly, we agree with the unions that the fact that the City continues to turn over all the material sought in the face of the automatic filing of a grievance in every case where a vacancy has been filled weakens any conclusion that providing the material is unnecessarily burdensome to the City, insofar as the volume of documents may be concerned. Finally, we agree with the unions that the fact that some of the information sought may be available from other sources does not completely vitiate the unions’ position. See ASARCO, Inc., Tennessee Mines Division v. National Labor Relations Board (6th Cir. 1986), 805 F.2d 194.

Our agreement with those arguments of the unions, however, does not support our reversal of the Board’s ultimate holding. We repeat that the issue is whether the City is obliged to provide the material requested as a matter of routine. We know that the unions suspect that the Board may not be following proper procedures. But mere “suspicion” is not enough. (San Diego Newspaper Guild, Local No. 95 v. National Labor Relations Board (9th Cir. 1977), 548 F.2d 863, 868.) “The practical burden upon the union then is to show that the information will aid investigation of contract violations ‘where the union has established a reasonable basis to suspect such violations have occurred.’ ” (Walter N. Yoder & Sons, Inc. v. National Labor Relations Board (4th Cir. 1985), 754 F.2d 531, 535, quoting NLRB v. Associated General Contractors (9th Cir. 1980), 633 F.2d 766, 771-72.)

To support the unions’ contention that more than mere suspicion prompts their need for the demanded information, the unions point to three grievances filed by the unions which were successful in that the arbitrator agreed with the unions’ position. In the first case the arbitrator found that the City had failed to provide information concerning the change from three-man to two-man refuse collection crews. That grievance had nothing to do with the hiring process as provided by section 15.1. In the second grievance the arbitrator found that the City had not complied with section 15.1 in filling three vacancies in the water department. In the last grievance, the decision of the arbitrator was made after the proofs had been closed before the Board, and the Board refused to consider it. In the grievance the arbitrator ordered a new evaluation of an applicant, and, we are informed, the later evaluation resulted in a higher score for the applicant. For the sake of argument in this appeal, we will consider the last grievance as well as the second. We agree with the City’s position that a showing that the City erred in the manner of filling four vacancies in a work force of almost 5,000 members does not support a conclusion that the City might be engaging in general violations of the contract. Far from it; an opposite conclusion may be more fairly drawn. The unions certainly have not shown a routine course of conduct on the part of the City that would justify the relief demanded by the unions.

The unions’ complaint sought to permanently enjoin the City from filling vacancies until it first provided the information demanded. We are informed by the unions, and the City agrees, that the unions now do not seek to prevent the filling of vacancies until the demanded information is provided to the union. The complaint, however, does ask that every document used in the multistep procedure followed by the City in filling vacancies be turned over to the unions. The unions have candidly told us that they want “verification of every step of the hiring procedure.” The only reasonable procedure to be adopted by the City would be to send a copy of each document to the union at the time the document was completed. The unions complain that under the present procedure they “have no opportunity to intervene or prevent violations of the agreement.” (Emphasis added.) We infer from that argument that the unions would seek to be able to intervene at any stage. The unions concede that one vacancy could involve more than one grievance. To illustrate, after reception of the Shakman referral list, the unions could conclude that improper persons were included and file a grievance. After “several months until the grievance procedure had been followed,” to use the unions’ own words, the grievance could be resolved. After reception of the hiring criteria forms, however, the unions could file another grievance with another attendant “several months” to resolve that grievance. The burdensome nature of such a procedure is manifest.

There are two arguments raised by the unions which should be answered. First, they say that to require them to file a grievance in all cases is to require them to represent one union member against another. Our answer is twofold: It is not necessarily true in all cases; there may be instances where the grievance concerns a position filled by a nonunion applicant. Second, there may be instances when, after investigation, the unions will determine that one union member has indeed a greater right to a position than another union member. Consequently, it will be required to represent one against the other. The unions recognize that adverse representation may be necessary “occasionally.”

The unions' other argument is that requiring them to seek the information from union members imposes an unnecessarily heavy burden upon them. The answer to that argument is that even if the unions were to receive all the documents they request, investigation on their part would still be required. The bid applications and the Shakman referral lists themselves do not tell the unions who is or who is not a proper applicant or bidder. Similarly, the face of the criteria forms will not inform the unions that improper criteria were used. In short, investigation and interviews will still be required.

The pertinent holding of the Board is as follows:

“The records which are available to [the unions] under Section 2.6 of the contract provide them with substantial contemporaneous data regarding the vacancies which have been filled within their units. That data, together with information which may be brought to [the unions] by the employees they represent, should be adequate to enable [the unions] to identify potentially grievable transactions. Once a transaction has been grieved, [the unions] are able to obtain the additional documentation necessary to evaluate and pursue the grievance. [The unions] simply have not demonstrated that they cannot effectively police and enforce the contract under these circumstances. They surely have not shown that their need for additional information is so substantial as to warrant requiring the City to share virtually every document which its agents generate in the process of posting and filling each vacancy within their bargaining units.” (Emphasis added.)

We have previously observed that the fact that some of the information sought may be available from other sources does not completely vitiate the unions’ position. By that observation we do not mean to say that the fact that information may be available to the unions from other sources, including their own employees, is never probative. In this case we believe that it is and that the Board properly considered it.

The applicable standard of review in this case is no different from that of any other administrative review case: The findings of fact by the agency are prima facie true and correct (Ill. Rev. Stat. 1987, ch. 110, par. 3—110), and a reviewing court may not substitute its judgment for that of the agency unless it can be said as a matter of law that those findings are against the manifest weight of the evidence. (AFSCME, Council 31, 175 Ill. App. 3d 191, 529 N.E.2d 773.) A factual determination is against the manifest weight of the evidence where an opposite conclusion is clearly evident from the record. (Burke v. Board of Review (1985), 132 Ill. App. 3d 1094, 477 N.E.2d 1351.) The unions have the burden in this court of proving that the Board was wrong, and this court may not substitute its judgment for that of the Board. Mead v. Board of Review (1986), 143 Ill. App. 3d 1088, 494 N.E.2d 171.

Our review of the record does not convince us that a conclusion opposite to that reached by the Board is clearly evident. For that reason, the Board’s holding that the unions failed to establish an unfair labor practice on the part of the City is affirmed.

The Board held that the complaint should be dismissed on the additional ground that the unions had waived their right to the information sought when they signed the Local Agreement. The pertinent provision, called the “zipper clause,” is section 25 and provides as follows:

“This Agreement constitutes the entire contract between the Employer and the Union and settles all demands and issues with respect to all matters subject to collective bargaining. The Employer and the Union, therefore, voluntarily waive the right, and each agrees that the other shall not be obligated to bargain collectively with respect to any matter which is subject to collective bargaining whether or not such matter is specifically referred to herein, and even though such matter may not have been within the knowledge or contemplation of the parties at the time this Agreement was negotiated or signed.”

The Board agreed with the City’s contentions that section 2.6 of the Local Agreement represents the unions’ and the City’s agreement as to all the information required to enforce section 15.1, which deals with the filling of vacancies, and that the “zipper clause,” when read in conjunction with section 2.6, constituted a waiver by the unions of a right of routine access to any other information. It is again our judgment that the Board’s holding is not against the manifest weight of the evidence.

The unions and the City addressed the contents of section 2.6 during their negotiations of the Local Agreement. The City suggested that it provide the unions with a bargaining unit list, and, following discussions of the proposal, a subcommittee was formed to deal with the issue of information to be provided to the unions. The subcommittee, composed of the City’s director of employee relations, Sharon Corrigan, and Local 1001’s secretary/treasurer, Bruno Caruso, met three or four times between June 1985 and November 1985. Corrigan testified that these meetings involved “an open exchange of information.”

During the contract negotiations, the parties exchanged various written versions for a proposed section 2.6. Before the effective date of the collective bargaining agreement, the City had used the forms presently sought by the unions, with the exception of the documents to be used in the bidding process. The reason that the City had not used the bidding documents before was that bidding did not exist until the Local Agreement was made. The unions, however, never requested any of these forms during the contract negotiations. A witness testified that the unions learned of the specific forms used by the City in the hiring process at an arbitration hearing on May 29, 1987, after the Local Agreement had been signed.

This court has approved the policy reflected in the Federal cases which hold that negotiated zipper clauses should be enforced. In East Richland Education Association, IEA-NEA v. Illinois Educational Labor Relations Board (1988), 173 Ill. App. 3d 878, 528 N.E.2d 751, the court upheld the defendant Board’s decision that a teachers’ union had waived, in a zipper clause, its right to mid-term bargaining regarding changes in the school calendar. In so doing, the court quoted from a Federal decision, stating as follows:

“ ‘A grudging or stilted interpretation of collective bargaining agreements tends to encroach upon the fundamental national policy favoring the ordering of the employer-employee relationship by voluntary bargaining rather than governmental fiat [citation]; it injects into the collective bargaining process an uncertainty that diminishes the prospects for successful bargaining. [Citations.]’ *** The same rationale supports the Board’s decision here.” 173 Ill. App. 3d at 908-09, quoting Local Union 1395, IBEW v. National Labor Relations Board (D.C. Cir. 1986), 797 F.2d 1027, 1031-32.

Although a witness testified for the unions that the unions were unaware of the specific documents used by the City until after the agreement was in effect, it is inconceivable that the unions would be unaware that the persons evaluating applicants would make some sort of record in the evaluation process. The unions had to know under section 15.1 that some evaluator would have to determine in writing whether one applicant or bidder was “demonstrably more qualified” than another. Similarly, the unions had to know that applications and bids would be submitted in a written form. They had to know that the City would post a notice of job opportunity and keep a record like the Shakman referral list. Under these circumstances a finding that the unions knowingly waived the right to receive routinely any information other than that specified in section 2.6 is not against the manifest weight of the evidence.

We conclude that the zipper clause in this case is substantially the same as that in East Richland, and we are not persuaded that East Richland is distinguishable because it involved a change in the agreement, while this case involves enforcement of the agreement.

For all these reasons the order of the Board is affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY TURNER YATES, Defendant-Appellant.
    Third District
    No. 3—88—0602
    Opinion filed March 9, 1990.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Jerry Turner Yates, was charged by information with first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(2)). Following a jury trial, he was convicted and sentenced to a term of 24 years’ imprisonment. The defendant appeals. We affirm.

The record reveals that the defendant worked for Roberts and Dybdahl as a truck driver. On July 15, 1987, while returning from a delivery, he picked up hitchhiker Karen Wyckoff. The defendant testified that Wyckoff told him that she needed money and asked him if he was interested in having sex with her. He initially refused her offer but later agreed. They then drove to Roberts and Dybdahl, where they engaged in sexual intercourse. Afterwards he gave Wyckoff some money, but she told him that it was not enough and demanded that he pay her $100 a month. She told him that if he refused, she would report him to the police for having sex with a minor. When he refused to give her any more money, they began arguing.

The defendant testified that at one point Wyckoff raised her hands as if to scratch his face. To protect himself, he grabbed her hands and tied them together with a bungee cord. When she continued verbally threatening him, he tied another bungee cord around her neck. The defendant stated that he then went outside to see if anyone had heard the argument. When he returned about 10 minutes later, Wyckoff was dead. Not knowing what to do, he took her body to his parents’ property and buried it.

On July 30, 1987, the defendant turned himself in to the Rock Island County sheriff’s department. He explained at trial that he did so because he could no longer live with what he had done. The defendant stated that he did not intend to kill Wyckoff and that he was not aware that by tying the cord around her neck he would do so.

The defendant also presented evidence that at the time of the killing he was suffering from post-traumatic stress disorder as a result of combat experiences in Vietnam. He stated that he had served 19 months in Vietnam. As a rear gunner on a tank, he was openly exposed to enemy fire. During his first 12 months there, four of his tanks were hit by either land mines or rocket fire. Further, he testified that he witnessed someone being injured or killed every three or four days. The defendant was awarded the Purple Heart, the Silver Star, and the Vietnam Service Medal.

Psychiatrist Thomas Tourlentes, chief of the Veterans’ Administration Mental Health Clinic in Peoria, testified that the defendant suffered from post-traumatic stress disorder and that this condition was a factor in his conduct. Dr. Tourlentes explained that the defendant was acting out of fear and panic when he killed the victim. The doctor opined that the defendant’s judgment was impaired and that the disorder might have caused him to react in a more physical manner than another person. He stated that the defendant would have done whatever he felt was necessary to control the situation.

Psychiatrist Earl Fitz testified that when the defendant was confronted with the victim’s threats, he felt cornered and, as a result, was not able to exercise good judgment. This was particularly true since he perceived the situation as involving the possible loss of his family, job, and reputation in the community. Dr. Fitz stated that the defendant had entered into a survival mode, which caused him to view the victim’s threat as seriously as a threat to his physical self. Fitz termed this a state of “psychological self-defense.”

Several of the defendant’s family members and friends also testified regarding his condition. One friend testified that while the defendant was attending a party, he began acting as if he were under enemy fire in Vietnam.

At the jury instructions conference, defense counsel tendered instructions on second degree murder based upon serious provocation and self-defense. Defense counsel argued that even though the defendant did not raise self-defense as an affirmative defense, the jury could nonetheless find, based upon Dr. Fitz’s testimony, that the defendant unreasonably believed he was acting in self-defense. The trial court agreed to instruct the jury on second degree murder based upon serious provocation, but refused to do so with respect to self-defense. The jury subsequently found the defendant guilty of first degree murder.

On appeal, the defendant argues that the trial court erred in refusing to instruct the jury on second degree murder based upon self-defense, since there was sufficient evidence presented to support such an instruction.

The offense of second degree murder is defined in relevant part as follows:

“(a) A person commits the offense of second degree murder when he commits the offense of first degree murder *** and either of the following mitigating factors are [sic] present: * * *
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under *** Article 7 of this Code, but his belief is unreasonable.” Ill. Rev. Stat. 1987, ch. 38, par. 9—2(a)(2).

Article 7 provides that “[a] person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself ***.” Ill. Rev. Stat. 1987, ch. 38, par. 7—1.

It is well settled that if there is evidence in a murder prosecution which if believed by a jury would reduce the crime to manslaughter, an instruction defining that offense should be given. (People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378.) Moreover, if there is some evidence that the defendant subjectively believed that his use of force was justified, a voluntary manslaughter instruction should be given to the jury which would allow it to convict the defendant of the lesser offense if the jury found that he had such a subjective belief but the belief was unreasonable. (Lockett, 82 Ill. 2d at 551, 413 N.E.2d at 381.) While we note that the voluntary manslaughter statute was replaced by the current second degree murder statute, the elements of the offense remain the same. Compare Ill. Rev. Stat. 1985, ch. 38, par. 9—2, with Ill. Rev. Stat. 1987, ch. 38, par. 9—2.

Based upon our review of the record, we are unable to find that the defendant was entitled to a second degree murder instruction based upon self-defense. The expert testimony did not establish that the defendant actually perceived the victim’s blackmail attempt as a physical threat. Rather, it established that because of post-traumatic stress disorder, the defendant reacted to the blackmail attempt as seriously as most people would to a physical threat. This is an important distinction. The second degree murder statute provides a mitigating factor only where the defendant actually believes, though unreasonably, that he is physically threatened. It does not cover circumstances where a mental disorder causes the defendant to overreact to a nonphysical threat. Therefore, the trial court did not err in refusing to instruct the jury on the offense of second degree murder based upon self-defense.

The defendant also argues that, given the mitigating factors present, the trial court abused its discretion in sentencing him to more than the mandatory minimum sentence of 20 years. Specifically, he notes that he had no prior criminal record, he voluntarily surrendered to the police, he confessed to the killing, and he is a decorated war veteran suffering from post-traumatic stress disorder as a result of his combat experiences.

We note that, throughout the course of the trial and sentencing hearing, the court had an opportunity to consider the defendant’s credibility, demeanor, general moral character, mentality, social environment, and age. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Therefore, its sentencing decision is entitled to great deference and will not be altered on review unless it represents an abuse of discretion. Perruquet, 68 Ill. 2d at 153, 308 N.E.2d at 884.

In the instant case, it is evident from the record that, in sentencing the defendant, the trial court specifically addressed each of the factors cited by the defendant and considered them in making its sentencing determination. Further, the defendant could have received anywhere from 20 to 40 years in prison (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(1)(a)). Under these circumstances, we are unable to find that the trial court abused its discretion in sentencing the defendant to a term only four years beyond the minimum permissible sentence.

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE McLAREN

text:
    THE TOWN OF BENTON, Plaintiff-Appellant, v. THE CITY OF ZION, Defendant-Appellee.
    Second District
    No. 2—89—0248
    Opinion filed March 6, 1990.

      William G. Rosing and Stephen G. Applehans, both of Rosing, Applehans & Smith, Ltd., of Waukegan, for appellant.
    Lee A. Sparks, of Law Office of Lee A. Sparks, of Zion, and Eerie L. Schwartz, of Highland Park (Andi C. Goldfine, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Town of Benton, a township governmental unit in Lake County, appeals from the judgment entered in favor of defendant, City of Zion. Defendant annexed various portions of plaintiff township’s territory pursuant to the automatic annexation provision of section 1 of “An Act to authorize county boards in counties under township organization, to organize certain territory situated therein as a town, and to provide for annexation of territory to and the disconnecting of territory from said town” (the Act) (Ill. Rev. Stat. 1987, ch. 139, par. 127). Pursuant to another provision of section 1 of the Act, plaintiff demanded payment of funds equal to the real estate taxes collected on the annexed territory. Defendant refused; plaintiff filed a complaint; the matter was tried; judgment was entered in favor of defendant; and this appeal followed.

No issue of fact is presented. The only property in contention was property annexed by defendant on the effective date of the Act as amended by section 2 of “An Act in relation to the annexation by a city coterminous with a township of territory located in an adjacent township” (the Amendatory Act of 1986) (Pub. Act 84—1261, eff. Aug. 11, 1986) (amending Ill. Rev. Stat. 1985, ch. 139, par. 127). The sole issue on appeal is whether section 1 of the Act requires defendant to compensate plaintiff for lost real estate tax revenue derived from the property “automatically” annexed by defendant and disconnected from plaintiff on the effective date of the Amendatory Act of 1986.

The trial court ruled that the compensation provision of the Act did not apply to the automatic annexation provision of the Act for two reasons. First, since the “automatic” annexation took place “on” the effective date of the amendment, and the compensation provision applied only to annexations occurring “after” the effective date, the compensation provisions did not apply to the “automatic” annexations made on the first day the statute took effect. The trial court assumed that the drafters of the statute, by using different language, intended the distinction between “on” and “after.” Second, the trial court interpreted the limited legislative history as indicating that the compensation provisions were intended by the legislature as an incentive to adjacent townships to agree to disconnection in situations where a referendum is mandated. Further, since an automatic annexation did not mandate a referendum, no incentive via reimbursement for taxes would be needed to induce a disconnecting township to agree to the disconnection.

We disagree with the trial court’s interpretation of the statute and its legislative history. Our following analysis concludes the trial court incorrectly entered judgment for the defendant.

Prior to 1986, the Act provided that, whenever a city annexed property that was in an adjacent township, the township boundaries would change automatically and the territory would be disconnected from the adjacent township and annexed to the coterminous township. (Ill. Rev. Stat. 1985, ch. 139, par. 127.) The alteration of township boundaries occurred automatically when a city annexed more property so that the township boundaries and the city boundaries remained coterminous. (Henke v. City of Zion (1976), 63 Ill. 2d 46; Springfield Lakeshore Improvement Association v. City of Springfield (1975), 62 Ill. 2d 173, 174.) Townships adjacent to expanding cities were reduced in size without any public referenda being held in the affected townships. (62 Ill. 2d at 175.) Piecemeal annexations created the undesirable result of grotesquely shaped, townships and several small areas completely isolated from the balance of the governing township. (62 Ill. 2d at 178.) Other abuses would arise when a city annexed valuable properties with a high tax base and disconnected the properties from the adjacent township. Such annexations could severely undermine a township’s ability to function as a viable governmental unit as its revenue base was inexorably eliminated. (See Nameoki Township v. Cruse (1987), 155 Ill. App. 3d 889, 900 (the disconnected township alleged that the annexing city promised the owner of the annexed property, a steel foundry and its primary taxpayer, tax reductions when the property under it would be annexed); cf. In re Petition to Create Emmett-Chalmers Fire Protection District (1978), 58 Ill. App. 3d 897, 902 (disconnection of territory from fire-protection district would impair the ability of the district to render adequate services to territory remaining within the district because of lost tax revenue).) However, the old Act did allow the piecemeal dissolution of a township, without a public referendum, up until the last parcel of the township was annexed. Springfield, 62 Ill. 2d at 177-78.

This environment led to the introduction into the House of Representatives of House Bill 1467 (84th Ill. Gen. Assem., House Bill 1467, 1985 Sess.), which eventually was enacted as Public Act 84—1261.

Section 2 of the Amendatory Act of 1986 created a new section 1 of the Act that was 140 lines long. Section 1 consists of 11 undemarcated paragraphs, most of which consist of a single sentence containing numerous clauses and exceptions. Although the cause before the court concerns only the last two paragraphs of section 1, we must discuss the whole statute in which those paragraphs operate.

In its final form, section 2 of the Amendatory Act of 1986 amended section 1 of the Act to provide for a referendum procedure. That part of the former statute providing for a territory’s automatic disconnection from the adjacent township upon annexation by a city was deleted. Now, whenever a city proposes to annex property in an adjacent township, the city clerk must file a certified copy of the city’s annexation ordinance with the clerk of the adjacent township subject to the proposed disconnection. If the board of trustees of that township determines that the disconnection would not be in the best interests of that township, the town board may request that a referendum approving or disapproving the disconnection be submitted to the voters of that township in an election. If the proposition is approved by a majority vote in the election, the territory is disconnected from the adjacent township and connected to the township coterminous with the city. If the proposition fails, the territory remains connected to the adjacent township.

Under the present Act, the town board may request a referendum on any disconnection except in two instances. First, a city may annex up to 1% of an adjacent township’s territory per year causing disconnection from the adjacent township and connection to the coterminous township without a referendum. The 1% is calculated on the basis of the total equalized assessed value of the adjacent township. Second, any unincorporated territory surrounded or nearly surrounded by a coterminous township shall automatically, by operation of law, become annexed to the city, disconnected from the adjacent township and connected to the coterminous township without the referendum procedure. This last provision is referred to as the “automatic” annexation provision regarding the problems of “doughnut hole” annexations (as referred to in the Senate debate (84th Ill. Gen. Assem. Senate Proceeding June 18, 1986, at 74)). See also Ill. Rev. Stat. 1987, ch. 24, par. 7—1—13.

The Act also provides the following provisions regarding compensation:

“After the effective date of this amendatory Act of 1986, whenever territory is disconnected from a township and connected to a coterminous township, the coterminous city shall provide, on or before December 31 of each year for a period of 10 years, to the township from which the territory was disconnected an amount equal to the real estate tax that was collected on the property in the tax year immediately preceding the disconnection.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 139, par. 127.

Because the trial court based its determination on the wording of the statute, we quote the automatic annexation provision as well in its entirety:

“Whenever, on the effective date of this amendatory Act of 1986, any unincorporated territory in a township which is adjacent to a township which is coterminous with a city (a) is wholly bounded by the coterminous township or (b) is bounded solely by (1) the coterminous township and (2)(A) a river or lake, (B) property owned by the State of Illinois, except highway right-of-way owned in fee by the State, (C) a forest preserve district, or (D) the Illinois State boundary, that territory shall automatically, by operation of law, become annexed to the city, disconnected from the adjacent township and included in the coterminous township without having the proposition to disconnect submitted to the voters in the adjacent township, except that when the unincorporated territory is, and as long as it remains, predominantly agricultural in nature, the automatic annexation shall not occur.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 139, par. 127.)

Section 3 of the Amendatory Act of 1986 provided that the Amendatory Act of 1986 took effect upon becoming a law, which happened on August 11,1986.

As stated earlier, this cause concerns the territory automatically annexed by defendant on the effective date of the Act, and whether the compensation provisions applied to the annexation. The trial court found that the language of the statute did not create any ambiguity as to when the compensation provision became effective and, applying the usual meaning of “on” and “after,” concluded that the compensation provisions did not apply to automatic annexations occurring on the effective date of the Amendatory Act of 1986. On the contrary, we determine the wording of the statute is ambiguous, both on its face and in context. The trial court ignored the word “[w]henever” preceding the words “on the effective date,” and these terms contradict each other. While the trial court felt compelled to “assume]] that the drafters [of the legislation] intended the distinction between ‘on’ and ‘after’ ” in the two provisions, the inconsistency of the language precludes any assumptions as to the drafters’ intentions. Moreover, we do not find, as the trial court found, that the statements in the legislative debates indicate any legislative intent.

Because the word “after” may be ambiguous in itself and in context with its surrounding words is inherently ambiguous, we must apply rules of statutory construction to interpret the Act and resolve any ambiguity in favor of an equitable operation of the law. (73 Am. Jur. 2d Statutes §258 (1974).) While it is a cardinal rule of statutory construction that significance be attached to every word of an act, if doing so creates an interpretation inconsistent with the intention of the legislature or creates an incongruous result, the words may be rejected as surplusage. 73 Am. Jur. 2d Statutes §200 (1974); see Niebling v. Town of Moline (1956), 8 Ill. 2d 11, 14; People v. Parker (1988), 123 Ill. 2d 204, 213.

The Amendatory Act of 1987 also is remedial legislation, as indicated by prior case law, its very title, and the comments in the legislative debates. Remedial legislation should be construed liberally to effectuate its purposes. (S.N. Nielsen Co. v. Public Building Comm’n (1980), 81 Ill. 2d 290, 298.) A court must consider a statute in its entirety and note the subject which it addresses and the legislature’s apparent objective in enacting it. (Ill. Rev. Stat. 1987, ch. 1, par. 1002; Hettermann v. Weingart (1983), 120 Ill. App. 3d 683, 690.) The words “on” and “after” cannot be read in isolation from the rest of the statute. Given the remedial purposes of the statute, we have been offered no reason why the compensation provisions should apply to all annexations except automatic annexations occurring only on the first effective date of the statute. Nothing in the legislative debates indicates that the legislature intended automatic annexations to be uncompensated, especially for only the first day of the legislation’s effect. The disconnected township will suffer the same loss of taxpaying property under any sort of disconnection and still deserves compensation. Annexations taken pursuant to the “1%” provision are similarly conducted without a referendum being offered to the voters of the adjacent township, but no argument can be made that the “1%” provision is excluded from the benefits of the compensation provision or that the adjacent township needs some “incentive” to agree to the disconnection.

Because the introductory phrases “on the effective date” and “after the effective date” of the last two paragraphs create ambiguities and would frustrate the remedial nature of legislation, we must reject the phrases as surplusage. Section 3 of the Amendatory Act of 1986 provides that the Act takes effect upon becoming law. Thus, there is language indicating when the Act should take effect independent of the surplus language. The legislature could have indicated its intent more clearly. In any event, because any other interpretation of the statutory provision would frustrate the legislative purpose in remedying the township annexation problems, we must construe the offending language as surplusage. People v. Naber (1989), 180 Ill. App. 3d 629, 631.

Even assuming the statute was unambiguous, there is no plain meaning in the word “after” because it has alternative definitions of “subsequent to” and “on or after.” (Black’s Law Dictionary 57 (5th ed. 1979).) Like the word “from,” the word “after” is a word of exclusion unless by necessary implication it is used in a different sense. (O’Rourke v. Prudential Insurance Co. of America (1938), 294 Ill. App. 30, 34; Caraher v. First Guardian Co. (1932), 268 Ill. App. 389, 394.) The word “after” has a very elastic meaning and should be interpreted from its context. (New York Trust Co. v. Portland Ry. Co. (1921), 197 A.D. 422, 427, 189 N.Y.S. 346, 349.) Thus, courts have achieved different results in cases where the effective date has not been specifically included in provisions stating when an action is to be effective.

In O’Rourke, the court found that a life insurance policy was in effect on the issuance date as well as 10 years “from” that date. (O’Rourke, 294 Ill. App. at 32; see also Nabor v. Occidental Life Insurance Co. (1979), 78 Ill. App. 3d 288.) In New York Trust Co., the court could find no reason why November 1, 1920, should be excluded as a payment date on a bond when the first day of all other Novembers in the surrounding years was included, and thus it interpreted “after November 1, 1920” as “on and after November 1, 1920.” 197 A.D. at 427, 189 N.Y.S. at 350.

For the above reasons, the judgment of the circuit court of Lake County is reversed. The cause is remanded for a determination of the amount of the judgment to be entered in favor of the plaintiff.

Reversed and remanded.

REINHARD and WOODWARD, JJ., concur.