text:
    THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES et al., Plaintiffs-Appellees, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME), AFL-CIO, Defendant-Appellant.
    Fourth District
    Nos. 4—89—0596, 4—89—0597 cons.
    Opinion filed May 1, 1990.

      Gilbert Feldman, of Cornfield & Feldman, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Willilam D. Frazier, Assistant Attorney General, of Chicago, and Gene A. Vernon and Morris Davis, Special Assistant Attorneys General, of Springfield, of counsel), for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

In two consolidated appeals, defendant American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO, appeals from judgments of the circuit court of Sangamon County entered July 6, 1989, in favor of plaintiffs, the Illinois Department of Central Management Services (CMS) and the Illinois Department of Corrections (DOC), setting aside certain arbitration awards in favor of certain DOC employees represented by AFSCME. These arbitration awards had set aside discharges of those employees and lessened sanctions previously imposed by CMS.

Under the terms of a collective-bargaining agreement between the parties, the employees had a right to submit the discharges to arbitration and did so. Plaintiffs filed applications to vacate the awards in the circuit court of Sangamon County on May 11, 1987, and January 13, 1988, pursuant to section 8 of the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1608). That court held the awards were contrary to public policy and entered the order from which appeal is taken.

On review in this court, AFSCME maintains (1) the Illinois State Labor Relations Board (Board), rather than the circuit court, has exclusive jurisdiction over challenges to arbitration awards issued under collective-bargaining agreements subject to the Act where, as here, the challenge to the award is that it violates public policy, and (2) the awards here did not violate public policy.

The question of jurisdiction is complicated and must be considered first. The facts of the case can best be considered together with the question of whether the awards, or any of them, did violate public policy. Accordingly, we defer discussion of the facts at this point and proceed with the question of jurisdiction.

AFSCME does not dispute that under the Act, as distinguished from the Illinois Educational Labor Relations Act (IELRA) (Ill. Rev. Stat. 1987, ch. 48, par. 1701 et seq.), the circuit court does have some power to review awards arising out of arbitration provided for in collective-bargaining agreements. Rather, it contends that the decision in Board of Education of Community School District No. 1 v. Compton (1988), 123 Ill. 2d 216, 526 N.E.2d 149, sets forth a doctrine whereby the power to determine whether arbitration awards, such as those here, are contrary to public policy is vested exclusively in the Board pursuant to section 5(a) of the Act. Ill. Rev. Stat. 1987, ch. 48, par. 1605(a).

Section 8 of the Act provides that the “grievance and arbitration provisions of any collective bargaining agreement shall be subject to the Illinois ‘Uniform Arbitration Act’ ” (UAA) (Ill. Rev. Stat. 1987, ch. 10, par. 101 et seq.). (Ill. Rev. Stat. 1987, ch. 48, par. 1608.) Section 12(a) of the UAA instructs the circuit court to vacate an arbitration award under certain circumstances, none of which are applicable here. (Ill. Rev. Stat. 1987, ch. 10, par. 112(a).) Subsection (e) of section 12 of the UAA further provides as follows:

“Nothing in this Section or any other Section of this Act shall apply to the vacating, modifying, or correcting of any award entered as a result of an arbitration agreement which is a part of or pursuant to a collective bargaining agreement; and the grounds for vacating, modifying, or correcting such an award shall be those which existed prior to the enactment of this Act.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 10, par. 112(e).

In Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 386 N.E.2d 47, the supreme court upheld a circuit court decision voiding an arbitration award rendered pursuant to procedures contained in a collective-bargaining agreement, because the award required an employer to perform an act contrary to public policy. The award required the employer to give extra work to teachers who had engaged in an illegal strike. The supreme court concluded the award “drew its essence from the collective bargaining agreement,” but it was necessary to vacate the award “as being repugnant to public policy.” (Cook County College Teachers Union, 74 Ill. 2d at 423, 426, 386 N.E.2d at 52, 53.) That court noted that, under section 12(e) of the UAA, the grounds for modification of awards arising from collective-bargaining agreements were not those stated in the UAA. Accordingly, the opinion makes clear that the public policy issue upon which that case was decided was grounds for vacation of arbitration awards which existed at common law before the enactment of the UAA.

The Cook County College Teachers Union case was decided before the enactment of the Act and the IELRA, which together govern labor relations between State educational and local governmental employers and their employees. Those acts admittedly made drastic changes in those relationships. In Compton, the court held that, under the IELRA, where that legislation made no reference to the UAA, the General Assembly intended that circuit courts have no jurisdiction to review awards made pursuant to collective-bargaining agreements under that Act. Although recognizing that circuit court review under the limited scope set forth in the UAA, or even under the common law, would be permissible here, AFSCME maintains the broad scope of the Compton decision would vest the Board with the responsibility of determining the public policy issue in this case.

First, AFSCME notes that, in Compton and Board of Education of Warren Township High School District 121 v. Warren Township High School Federation of Teachers, Local 504 (1989), 128 Ill. 2d 155, 538 N.E.2d 524, the supreme court indicated the legislature intended to place primary jurisdiction over arbitration disputes with IELRB. However, the reference in the Act to direct review in the circuit court under the UAA clearly shows a different primary jurisdiction under the Act than under the IELRA.

AFSCME also makes reference to the general policy of limiting the number of jurisdictions which pass upon matters of labor arbitration in order to avoid a multiplicity of interpretation. Here, again, the Act differs from the IELRA not only in the provision for the UAA review of awards, but also in the provision in section 11(e) of the Act, whereby judicial review of a Board order is to be obtained in the appellate court of the district where the aggrieved party resides. Under section 16(e) of the IELRA (Ill. Rev. Stat. 1987, ch. 48, par. 1716(e)), such judicial review is obtainable only in the appellate court for districts in which an IELRB office is located. At present, such review is obtainable only in the first and fourth districts. Nothing in the foregoing matters called to our attention by AFSCME convinces us the legislature did not intend for the circuit court, in giving it limited review of arbitration awards, to rule on the question of whether an award violates public policy.

AFSCME argues that similarities between the Act and the IELRA indicate an intention for the jurisdiction of the circuit court in reviewing arbitration awards to be very limited. These similarities are stated to be: (1) both acts bypass the circuit court to place judicial review of the decisions of the labor relations boards in the appellate court; (2) each act states a purpose of regulating public labor relations and resolving disputes under collective-bargaining agreements (Ill. Rev. Stat. 1987, ch. 48, par. 1602 (the Act); ch. 48, par. 1701 (IELRA)); (3) the strong public policy in both acts favoring arbitration awards and their enforcement (American Federation of State, County & Municipal Employees v. Illinois Department of Mental Health (1988), 124 Ill. 2d 246, 529 N.E.2d 534; Compton, 123 Ill. 2d 216, 526 N.E.2d 149); (4) both acts define, to some extent, the subjects of bargaining which are mandatory and those that are permissive (Ill. Rev. Stat. 1987, ch. 48, pars. 1604 through 1607 (the Act); ch. 48, pars. 1704 through 1710(a) (IELRA)); (5) each act contains a provision giving it preference over other law (Ill. Rev. Stat. 1987, ch. 48, par. 1615 (the Act); ch. 48, par. 1717 (IELRA)); and (6) each act has many similar provisions concerning what constitutes an unfair labor practice. Sections 14(a)(8) and (b)(6) of the IELRA (Ill. Rev. Stat. 1987, ch. 48, pars. 1714(a)(8), (b)(6)) make refusal to abide by an arbitration award an unfair labor practice for employers and employee representatives, respectively. The Act has no similar provision, but, by analogy to the National Labor Relations Act (29 U.S.C. §158 (1982)), the refusal to abide by such an award can be treated as an unfair labor practice pursuant to sections 10(a)(1) and (a)(4) of the Act. Ill. Rev. Stat. 1987, ch. 48, pars. 1610(a)(1), (a)(4).

We do not find the contentions of AFSCME to be of sufficient weight to overcome the express differences between the Act, where judicial review of arbitration awards is expressly provided for, and the IELRA, where no such power is expressly conferred. We recognize the limited scope of review that is available but see no reason why that limited scope of review does not include the question of whether the award is violative of public policy. Section 8 of the Act makes the UAA applicable for review of the instant arbitrators’ awards. As the award arises from the provisions of a collective-bargaining agreement, section 12(e) of the UAA makes the common law grounds for vacation of awards the test we must apply, and a violation of public policy is one of those grounds.

We find support for our position from the opinion in Illinois Department of Mental Health. There, AFSCME members were discharged by the Department of Mental Health (Department) for neglect of duties which was causally connected with the death of a patient of a mental institution. The discharges were submitted to arbitration pursuant to a collective-bargaining agreement reached under the Act. The arbitrator reduced the sanction. AFSCME then sought enforcement in the circuit court, and the Department counterclaimed to obtain vacation of the award partially on grounds it violated public policy. The supreme court affirmed an appellate court ruling reversing the circuit court’s judgment setting aside the award. The question of whether the circuit court could, in a proper case, set aside such an award on grounds of a public policy violation was not discussed in the appellate opinion. American Federation of State, County & Municipal Employees v. State (1987), 158 Ill. App. 3d 584, 511 N.E.2d 749, aff’d (1988), 124 Ill. 2d 246, 529 N.E.2d 534.

The supreme court in Illinois Department of Mental Health fully discussed the question of whether the award was, in fact, a violation of public policy and held it was not, citing Cook County College Teachers Union. The supreme court stated, “An arbitration award in contravention of paramount considerations of public policy is not enforceable.” (Illinois Department of Mental Health, 124 Ill. 2d at 260, 529 N.E.2d at 540.) While the court did not say who should initially pass on the question of whether the award violated public policy, we think the court would have so stated, had it deemed the circuit court was not the proper tribunal to pass upon the matter initially.

In City of De Kalb v. International Association of Fire Fighters, Local 1236 (1989), 182 Ill. App. 3d 367, 538 N.E.2d 867, the Appellate Court for the Second District interpreted Illinois Department of Mental Health, as we have, to mean that, if an arbitration award arising from a collective-bargaining agreement subject to the Act violates public policy, the circuit court, reviewing the award under the UAA, has the power to vacate the award on that ground. There, the award was held to violate public policy because it violated a statute providing for uniform pension benefits to Illinois fire fighters. That court concluded, as we have, that public policy violations could be considered under section 12(e) of UAA as a common law ground for setting aside an arbitration award.

We now turn to the merits of the cases. Appeal No. 4 — 89—0596 concerns the discharge of Debra Santel, who was a correctional officer at the DOC facility at Centraba. In the following paragraphs we describe the facts concerning the circumstances of her discharge as found by the arbitrator.

In 1985, Santel began using illicit drugs for recreation and purchased them through social friends. She took those drugs at parties where other officers were doing the same. In January and February 1986, a former inmate named Norris contacted her and asked her to come to Chicago to obtain some “free drugs.” She initially refused but acquiesced in late May 1986, when she met him in Chicago. During that weekend, she used both cocaine and alcohol in excess and ended up “hitting bottom.” Following this weekend experience, San-tel sought help from a personal friend. She subsequently enrolled in a treatment center for drug abuse and obtained a leave of absence from her job after telling the warden of her problem. After returning to work on July 14, 1986, the former inmate again contacted her, but she requested that he stop calling her because she had gone through drug treatment and was attempting to change her life-style. She did not report any of these contacts to prison officials.

Subsequently, in October 1986, an inmate named Campbell offered Santel substantial money to smuggle an ounce of cocaine into the prison. She testified before the arbitrator that she never agreed to this proposition and never called that person back. An investigator testified that an inmate had told him that Santel was regularly supplying him with drugs at this time. The arbitrator disbelieved this hearsay, as he was fully entitled to do. The investigator further testified he instructed the inmate to get Santel to bring drugs into the facility. The investigator obtained a court order to wiretap a telephone conversation with Santel in which he would purport to arrange drug transactions. Transcripts of two phone calls are recited in the arbitrator’s decision.

The transcript of a phone call from the investigator to Santel on October 29, 1986, showed the investigator told Santel Campbell had told him, he, the investigator, was supposed to drop off a package to her and she responded she had “changed [her] mind.” On October 31, 1986, a call to Santel was made by another person who asked what had happened “yesterday,” and Santel responded she had changed her mind. The following colloquy then took place:

“Q. Have you? Or do you still want to do it or what?
A. I don’t know um, how much?
Q. Well, well first of all what did you uh, what did you and Jim talk about, didn’t you uh, figure all that stuff out?
A. He told me but ***
Q. What did he say?
A. *** I don’t feel like it’s worth it for that.
Q. What did he say?
A. Five.
Q. Five Hundred?
A. Grand.
Q. What do you mean?
A. Thousand.
Q. He said he’d give you five thousand to smuggle in one ounce?
A. Uh huh.
Q. No, we were talkin’ more like 400 dollars.
A. Well huh, absolutely I don’t want to.
Q. That’s just for one ounce to go in, right? What, what kind of deal did he have set up with ya, I don’t know why everything’s getting, you know, so confused and screwed up here.
A. Well I am not familiar with the stuff, you know.
Q. What, coke?
A. No just um, the, you know, movin’ it.
Q. Movin’ it in? Oh, you’ve never done it before?
A. Huh uh.
Q. Oh.
A. So.
Q. We were under the impression that you had.
A. No, huh uh. That’s the reason I told ’em I’d changed my mind.
Q. So you don’t want to do it at all now then?
A. No.
Q. Okay. Okay.
A. Alright?
Q. Yeah, thanks anyway.
A. Uh huh, bye.
Q. Bye.”

The arbitrator rejected the foregoing as proving Santel had been willing to engage in an illegal drug transaction and then changed her mind. According to the arbitrator, Santel testified on October 31, 1986, she had received a call which awakened her, and she spoke as she did in order to get the caller off the phone. She maintained she had consistently attempted to avoid contacts with people who were trying to get her to deal in drugs. The arbitrator admitted the transcript contained “damning evidence she didn’t carry drugs because the price was not right,” but that, in any event, no evidence was produced of an act in furtherance of that intent which would have been necessary for her conduct to constitute a crime. The warden had apparently testified he did not think Santel intended to deal in drugs.

The arbitrator determined Santel was guilty of (1) failing to report the Norris contact; (2) using drugs with fellow officers and not reporting it; (3) travelling to Chicago to use drugs with an ex-inmate, Norris, and not reporting it; (4) failing to report contacts by Norris following her release from treatment; (5) failing to report the contact by the inmate when he solicited her; and (6) failing to report the telephone conversation shown in the transcripts. The arbitrator concluded discharge would have been justified if it were not for extenuating circumstances, including: (1) once she had undergone rehabilitation, she refused to use or deal in drugs; (2) she had been sincere and faithful in treatment; (3) she gave incriminating evidence when confronted by an investigator; and (4) she produced evidence incriminating other officers. The arbitrator proceeded with criticism of the procedure whereby he assumed the warden must have used some information he had obtained from Santel when she went into the rehabilitation program in order to obtain the court order for the wiretap.

The arbitrator deemed a “last chance” approach to discipline was appropriate. Therefore, he set aside the discharge and ordered Santel to (1) undergo a drug test before resuming employment; (2) be subject to spot drug testing for the next two years; and (3) be assigned to another job or another prison if necessary to protect her after the information she had given. The arbitrator also ordered an award of back pay on her behalf.

Appeal No. 4 — 89—0597 concerns the discharges of David Kleinschmidt, Robert Heller, Perri Mehring, and Michael Lutz, who were correctional officers at the DOC facility at Menard and assigned to the segregation unit. According to the arbitrator’s decision, on July 22, 1986, a violent inmate named Richardson threw milk on Heller, whereupon, pursuant to regulations, many of Richardson’s personal effects were taken from his cell. Later that day, Richardson threw food at another officer and, again pursuant to regulation, the remaining items were removed from his cell. Lutz, Mehring, and Heller then took Richardson to another room for the purpose of reasoning with him to impress upon him that he should cease his attacks on officers. At that time, Richardson, who was handcuffed and in leg irons, rose up several times. Lutz attempted to guide Richardson back into his chair, and, when Richardson rose for the third time, Mehring hit Richardson in Richardson’s right arm and stomach with his fist. Then Lutz struck Richardson in the head and eye, whereupon Mehring shouted, “that’s enough,” and the scuffling ceased. Kleinschmidt entered the room prior to the time the officers hit Richardson and witnessed those acts. None of the officers reported the incident until Mehring admitted it later. All had denied the incident to higher authorities.

Personnel records introduced into evidence showed the job performance of Mehring and Lutz had been rated as satisfactory, while the records for Kleinschmidt and Heller indicated they needed to use their time to better advantage but their performance was otherwise satisfactory. Heller and Kleinschmidt were discharged for failing to report an incident and conduct unbecoming an officer in violation of DOC rules. Mehring and Lutz were discharged for using excessive force and failing to report the incident. The arbitrator found no just cause existed to discharge Kleinschmidt and Heller based on their failure to report and determined a “fifteen day suspension *** more typically represented] an appropriate disciplinary level.” The arbitrator found the battery of Richardson was “totally unnecessary” and constituted the use of “excessive force,” but deemed the blows were provoked, not premeditated, and resulted from spontaneous anger. The arbitrator characterized the blows as not involving “corporal punishment” or “inmate abuse.” The arbitrator reduced the punishment of Mehring and Lutz to 60-day suspensions and reinstated them.

In each case, we must decide whether the arbitrator’s action in setting aside the discharges was contrary to public policy. The Illinois Department of Mental Health opinion points out the often stated rule that public policy “is to be found in the Constitution, in statutes and, when these are silent, in judicial decisions.” (Illinois Department of Mental Health, 124 Ill. 2d at 260, 529 N.E.2d at 540.) Then quoting from Zeigler v. Illinois Trust & Savings Bank (1910), 245 Ill. 180, 193, 91 N.E. 1041, 1046, which quoted from Hartford Fire Insurance Co. v. Chicago, M. & St. P. Ry. Co. (1895), 70 F. 201, 202, the Illinois Department of Mental Health court explained that public policy is not determined merely by what might be thought to be the best interests of the public. Similar explanation is found in W.R. Grace & Co. v. Local Union 759 (1983), 461 U.S. 757, 766, 76 L. Ed. 2d 298, 307, 103 S. Ct. 2177, 2183. The supreme court further cautioned that the public policy exception which permits vacation of arbitration awards arising from collective-bargaining agreements is an “extremely narrow” concept. Illinois Department of Mental Health, 124 Ill. 2d at 261, 529 N.E.2d at 540.

The Illinois Department of Mental Health opinion mentioned that Federal cases on the public policy issue are not binding because they involve different legislation than the Act, but we can take guidance from them. One such cited case is United States Postal Service v. American Postal Workers Union (1st Cir. 1984), 736 F.2d 822. There, an arbitrator, acting pursuant to a collective-bargaining agreement, set aside a discharge of a Federal postal worker whose employment had been terminated after he had been convicted of embezzling $4,325 he had obtained while performing his duties in regard to issuing and cashing postal money orders. The arbitrator relied upon the employee’s intent to repay the money he had confiscated, the fact the employee had done so in regard to other funds he had embezzled, and the employee’s good prior work record. In upholding a district court judgment setting aside the arbitrator’s decision, the court of appeals noted the public policy involved was well-defined by law and common sense. The court reasoned that to uphold the award would likely indicate to other employees their dishonesty would also be dealt with lightly. The court indicated not all arbitrators’ awards setting aside discharges for law violations would be contrary to public policy. However, that court indicated the severe breach of fiduciary duty by that employee required termination as a matter of public policy.

When the use of intoxicants is at the heart of conduct giving rise to a discharge, Federal courts have not been consistent in determining whether an arbitrator’s action in overturning the discharge is contrary to public policy. In Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local Union 540 v. Great Western Food Co. (5th Cir. 1983), 712 F.2d 122, an arbitration award, requiring an employer to reinstate a truck driver who had gotten into a collision after he had been drinking intoxicants, was held to violate public policy. The opinion noted that a police officer had cited the driver for “drinking intoxicating liquor while on duty or within 4 hours prior,” which was apparently a violation of Federal Motor Carrier Safety Regulations (49 C.F.R. §385.1 et seq. (1989)). (Amalgamated Meat Cutters, 712 F.2d at 125.) The public policy of preventing people from drinking and driving was deemed to require setting aside the arbitrator’s award.

A different decision was reached in Northwest Airlines, Inc. v. Air Line Pilots Association, International (D.C. Cir. 1987), 808 F.2d 76, cert. denied (1988), 486 U.S. 1014, 100 L. Ed. 2d 213, 108 S. Ct. 1751. There, a pilot had consumed liquor within 24 hours of a flight and, on a stopover, was found to have a blood-alcohol content of .13%, far in excess of Federal Aeronautic Administration regulations for airline crews. His employer discharged him. An arbitration board set aside the discharge and ordered the pilot, who had a recognized alcohol problem, reinstated without back pay as soon as the Federal Air Surgeon certified he met Federal regulatory standards for flying commercial aircrafts. The court of appeals upheld the arbitrator’s decision. It concluded no public policy of protecting the public was violated because the pilot would not be reinstated until he was again fit to fly.

In Illinois Department of Mental Health, no law violation had occurred. Rather, at a time when a State mental health facility was short-staffed, two employees were authorized to go to a grocery store to obtain food for a party for residents. The employees performed that task but then deviated from their instructions and made an unauthorized trip to a flea market. They were away from work for an additional hour and fifteen minutes, during which time a resident, who had been left unattended and tied to a toilet seat, died. The opinion does not indicate the two employees had left the resident in the precarious unattended situation which surrounded the death, and the record did show they otherwise had exemplary records. The court noted particularly that the employees’ conduct did not involve abuse directed toward any resident. Thus, the public policy grounds there were weaker than as to any of the employees here, and the rejection of the public policy grounds for vacating the award there does not require rejection here.

The situation in regard to DOC employees Mehring and Lutz in case No. 4 — 89—0597 is clearest. It is undisputed they took Richardson to a separate room to explain to him that he must discontinue his attacks on officers. Richardson was certainly a most provoking prisoner. No doubt in the past, many jailers and prison guards believed the only way to handle such a prisoner was by beating him to teach him a lesson, but modern penology rejects this method, and it is contrary to prison regulations. Correctional officers are constantly put in a position where they are tempted to respond as here. However, the arbitrator found the hitting of this person was unjustified and was, thus, a battery. A clear public policy exists under the law not to batter prisoners. While the battery of the prisoner here was not severe enough to constitute a violation of his limited constitutional right of liberty (see Sampley v. Ruettgers (10th Cir. 1983), 704 F.2d 491), even the slight battery which occurred here can have an inflammatory effect in a prison setting. Public policy demands that prison authorities have the power to discharge those engaging in such activity.

The situation of Santel also bears upon the explosive situation prevalent in prisons. We need cite no authority to show that drugs present a horrendous problem in this country and that the problem is particularly acute in penal institutions. However, we must give deference to the arbitrator’s determination Santel committed no crime at the time she was under investigation in the fall of 1986. Indeed, even if we could conclude she was speaking accurately in her wiretapped telephone conversation when she indicated she decided not to bring drugs into the prison because the price was not right, that evidence would not prove the commission of a crime by her, because no overt act in support of any agreement to bring in drugs was shown. Thus, if the discharge concerned only the situation in the fall of 1986 when Santel was being investigated, we would be deciding whether setting aside a discharge of a correctional officer who was shown to be likely to be unreliable and had failed to make various reports was a violation of public policy. We are unable to find any support in the constitution, laws, or court decisions to support such a ruling.

However, here the misconduct involved goes back to February 1986 when Santel used illegal drugs with an ex-inmate in violation of regulations prohibiting socialization with such a person. The laws against the use of such drugs create the public policy which was violated here. We can then consider that illegal conduct within the context of the duty imposed upon persons in the sensitive position of a corrections officer. Under the circumstances, we hold the overturning of Santel’s discharge to be contrary to public policy.

We recognize the arbitrator gave thorough consideration to the Santel situation, made every effort to be fair, and entered an order which contained many provisions for the protection of the public. Nevertheless, when employees in sensitive positions commit such serious offenses as violating drug laws, public policy requires the employer to have the ability to discharge them.

As we have suggested, the mere violation of regulations requiring the reporting of misconduct by other employees, however serious, has an insufficient nexus to any public policy expressed in the constitution, laws, or court decisions to require employers to have a right to discharge for said conduct. Accordingly, we hold the order setting aside the discharge of Heller and Kleinschmidt was not against public policy.

Accordingly, in case No. 4 — 89—0596 we affirm the circuit court. In case No. 4 — 89—0597 we affirm that portion of the judgment vacating the arbitration awards as to Mehring and Lutz, but reverse that portion of the judgment vacating the arbitration awards as to Kleinschmidt and Heller. Pursuant to our power under Supreme Court Rule 366(a)(5) (107 Ill. 2d R. 366(a)(5)), we enter judgment in favor of Kleinschmidt and Heller and against CMS and DOC, confirming the arbitration awards as to them.

Affirmed in part; reversed in part and judgment entered.

KNECHT, P.J., and STEIGMANN, J., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLAN M. THOMANN, Defendant-Appellant.
    Fourth District
    No. 4-89-0797
    Opinion filed May 1, 1990.

      Larry S. Mills, of Law Offices of Richard J. Doyle & Associates, of Dan-ville, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On June 12, 1989, defendant Allan Thomann was charged by information in the circuit court of Vermilion County with committing three counts of the offense of child pornography. (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 20.1(2).) He subsequently filed a motion to dismiss, alleging this prosecution, due to an earlier prosecution, was barred by the compulsory-joinder provisions of section 3 — 3 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 3) and the fundamental unfairness of the procedure, which the court denied. Defendant now appeals. We affirm.

Initially, the State argues this appeal should be dismissed. Supreme Court Rule 604 (107 Ill. 2d R. 604) contains the authority for when appeals can be taken in criminal cases. Rule 604(f) provides that the defendant may appeal the denial of a motion to dismiss a criminal proceeding on grounds of former jeopardy. The State believes this should be construed as referring to only double-jeopardy claims. It observes that defendant admits his motion to dismiss is not based on conventional double-jeopardy analysis. Accordingly, it believes Rule 604(f) is not applicable and this appeal should be dismissed, since the circuit court’s decision is not appealable under any of the other provisions of the rule. However, we disagree with the State’s characterization of the rule.

Subsection (f) of Rule 604 was added on June 15, 1982 (87 Ill. 2d R. 604), apparently in response to People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 387 N.E.2d 325, where the court held that no interlocutory right of appeal existed when a motion to dismiss based on double jeopardy was denied. However, this does not mean Rule 604(f) is limited to those situations. We note the supreme court used the phrase “former jeopardy” rather than “double jeopardy,” which it could have used if it meant to so restrict the rule’s application.

Section 3 — 4 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 4) sets forth the situations when a current prosecution is barred by a former one. Its central purpose is to codify the rules of double jeopardy. (People v. Mueller (1985), 109 Ill. 2d 378, 383, 488 N.E.2d 523, 525.) It provides, in part, that a prosecution is barred, if a defendant had formerly been prosecuted and the present prosecution is for an offense with which the defendant should have been charged in the former prosecution, pursuant to section 3 — 3 (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 4(b)(1)). It is clear the legislature deemed this remedy to be comparable and analogous to that of double jeopardy. This is further borne out by the committee comments to section 3 — 4, which provide:

“Also, in order to give effect to the compulsory-joinder provisions of Section 3 — 3, a bar to subsequent prosecution must be recognized when, in the former prosecution, an offense was not charged which should have been charged if it were to be tried at all. [Citation.] Since the compulsory-joinder requirement is not in the present Illinois statute, this provision in subsection 3 — 4(b)(1) will, to that extent, establish an addition to the grounds of double jeopardy in this State.” (Ill. Ann. Stat., ch. 38, par. 3 — 4, Committee Comments, at 127 (Smith-Hurd 1989).)

Therefore, we conclude that the supreme court, by use of the phrase “former jeopardy,” intended to include all those situations as set forth in section 3 — 4 wherein a former prosecution is asserted as a bar to a subsequent prosecution.

Now, as to the merits, defendant maintains the trial court erred in denying his motion to dismiss. He believes the present prosecution is barred by an earlier prosecution for a similar offense. A brief factual review is necessary.

On September 8, 1988, defendant was charged in Vermilion County case No. 88 — CF—210 with committing five counts of the offense of child pornography. (Ill. Rev. Stat. 1987, ch. 38, par. 11— 20.1(a)(2).) The information alleged that on July 14, 1988, he possessed and disseminated a videotape portraying such material. The videotape had been mailed to an undercover policeman.

On the same date, the police received a search warrant for defendant’s residence and numerous items were recovered. In December 1988, as the parties prepared for trial, it was discovered that among those items were several advertisements which also contained pictures of an allegedly similar nature. When no plea agreement could be reached, case No. 88 — CF—210 was set for trial. On the eve of this trial, June 12, 1989, the State filed the instant case alleging three counts of possession of child pornography based on defendant’s possession, on September 8, 1988, of the above-mentioned advertisements. Defendant was subsequently convicted in case No. 88 — CF— 210.

Defendant believes the trial in case No. 88 — CF— 210 acts as a bar to the present prosecution. He bases his argument on the perceived fundamental unfairness of the procedure, relying on People v. Golson (1965), 32 Ill. 2d 398, 207 N.E.2d 68, and on application of sections 3 — 3 and 3 — 4 of the Code. Ill. Rev. Stat. 1987, ch. 38, pars. 3 — 3, 3— 4.

Section 3 — 3 of the Code is also known as the compulsoryjoinder statute. It provides in relevant part:

“(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.
(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, pars. 3 — 3(a), (b).)

Once a defendant has been prosecuted for an offense, the State is barred from prosecuting him for any other offense which, pursuant to section 3 — 3, should have been joined with the original prosecution. Ill. Rev. Stat. 1987, ch. 38, par. 3-4(b)(l).

Our supreme court, in a case involving the offenses of homicide and concealment of a homicide, recently explained the application of section 3 — 3:

“The fact that the shootings and the acts of concealment were related is irrelevant. There is no requirement of joinder where multiple offenses arise from a series of related acts. (People v. Griffin (1967), 36 Ill. 2d 430, 433-34; People v. Patete (1980), 91 Ill. App. 3d 655; People v. Whitlow (1977), 48 Ill. App. 3d 425.) ‘Section 3 — 3 is not intended to cover the situation in which several offenses *** arise from a series of acts which are closely related with respect to the offender’s single purpose or plan.’ (Ill. Ann. Stat., ch. 38, par. 3 — 3, Committee Comments, at 202 (Smith-Hurd 1972).) Indeed, the drafters considered and rejected an earlier version of section 3 — 3(b) which would have required a single prosecution when multiple offenses arose from the same ‘conduct’ (Ill. Ann. Stat., ch. 38, par. 3 — 3, Committee Comments, at 201 (Smith-Hurd 1972)); the term ‘conduct’ could, of course, refer to a series of acts (Ill. Rev. Stat. 1981, ch. 38, par. 2 — 4; see People v. Griffin (1967), 36 Ill. 2d 430, 433-34). The purpose of this section as enacted was to preclude successive prosecutions where more than one person was injured by a single act of the accused, such as setting off an explosive. Ill. Ann. Stat., ch. 38, par. 3 — 3, Committee Comments, at 201 (Smith-Hurd 1972); People v. Crabtree (1980), 82 Ill. App. 3d 87.
Because the murder and concealment charges were based on separate acts, the compulsory-joinder statute did not require prosecution of both offenses in the same proceeding.” Mueller, 109 Ill. 2d at 385-86, 488 N.E.2d at 526-27.

In the case at bar, defendant was prosecuted for possessing and disseminating, on July 14, 1988, a videotape containing child pornography. The present case involves possession, on September 8, 1988, of advertisements allegedly containing similar material. It is evident, then, that these are separate acts. The fact the offenses involve similar conduct and violations of the same statutory provision is of little consequence. As the committee comments explained, “Section 3 — 3 is not intended to cover the situation in which several offenses — either repeated violations of the same statutory provision or violations of different provisions — arise from a series of acts which are closely related with respect to the offender’s single purpose or plan.” (Emphasis added.) (Ill. Ann. Stat., ch. 38, par. 3 — 3, Committee Comments, at 102 (Smith-Hurd 1989).) Accordingly, since section 3 — 3 does not mandate the cases be tried together, the provisions of section 3 — 4 which would bar the present prosecution are inapplicable.

Similarly, defendant’s fundamental unfairness argument must fail. Defendant’s position is that since the State had the evidence in its possession for over eight months prior to filing this charge, and since this case is for similar conduct as the first, the State is attempting to wear him down by successively prosecuting him on the same evidence in the two cases, which violates the due process of law. He observes the supreme court found such fundamental unfairness in Golson and believes this court should also.

We preliminarily observe that the Golson court, noting that section 3 — 3 was not in effect at the time of that crime, seems to suggest that section 3 — 3 supplants this argument. (Golson, 32 Ill. 2d at 411-12, 207 N.E.2d at 75-76.) However, to the extent this analysis is still tenable, it is evident it has no impact on the present case.

In Golson, the defendants were charged with murder as conspirators to a codefendant who shot and killed two victims during a robbery. They were convicted in one trial involving one victim and received a 50-year sentence. The State, finding the sentence insufficient, tried the defendants for the second murder, and they each received a 199-year sentence to run consecutive to the sentence imposed at the first trial. Both cases involved the same evidence. The supreme court, finding fundamental unfairness, reversed. Its decision was predicated on the fact these defendants were involved in a “single act of misconduct.” (Golson, 32 Ill. 2d at 412, 207 N.E.2d at 76.) However, the present case, as earlier explained, does not involve one act of misconduct but separate and distinct acts. Thus, Golson is distinguishable and inapplicable.

The fact the State had the evidence in its possession for eight months prior to filing this charge does not affect the result. The important question is not when or how long the State possessed the evidence, but whether the crimes are based on separate acts. Likewise, the use of the evidence in this offense in the trial for the first case is of little significance. No authority has been cited or found for the proposition that use of evidence of a defendant’s criminal activity in a trial for an offense based on a separate act somehow bars the subsequent prosecution of the criminal activity in its own right. The authority is probably missing because the proposition makes little sense. The bottom line is that the offenses asserted in this case are based on different acts from the earlier prosecution. There is no fundamental unfairness in prosecuting a defendant in separate trials for similar statutory violations based on separate and distinct acts.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE STEIGMANN

text:
    AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—89—1000
    Opinion filed April 5, 1990.
    Rehearing denied June 8, 1990.

      Gilbert A. Cornfield, of Cornfield & Feldman, and Jacqueline A. Kinnaman, of American Federation of State, County and Municipal Employees, both of Chicago, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William D. Frazier, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    R. Theodore Clark, Jr., and Thomas J. Piskorski, both of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, and Steven A. Veazie, of University of Illinois, of Urbana, for respondent Board of Trustees of the University of Illinois.
    Edward B. Miller and James A. Spizzo, both of Pope, Ballard, Shepard & Fowle, Ltd., of Chicago, for respondents Board of Governors of State Colleges and Universities and Board of Trustees of Southern Illinois University at Carbondale and Edwardsville.
    Clive Follmer, of Follmer & West, of Urbana, for respondent University Civil Service Merit Board.
   JUSTICE STEIGMANN

delivered the opinion of the court:

This appeal comes to us from a decision of the Illinois Educational Labor Relations Board (IELRB). The IELRB held the State University Civil Service System Merit Board (Merit Board) was not a joint employer with its constituent universities of the employees represented by the American Federation of State, County, and Municipal Employees (AFSCME). (University of Illinois Board of Trustees, 5 Pub. Employee Rep. (Ill.) par. 1035, No. 86 — CA—0087—C (Illinois Educational Labor Relations Board, Feb. 2, 1989).) We conclude the IELRB’s decision was supported by the manifest weight of the evidence and affirm its decision.

On September 16, 1986, the Merit Board proposed the deletion of section 250.50(8) of its rules relating to service bonus points. (80 Ill. Adm. Code §250.50(8) (1985).) Service bonus points were points awarded to current university employees when they sought employment within the university in a different employment track than the one in which they were currently employed. Employees in this situation were required to compete with other prospective employees in an examination process. However, current employees were awarded bonus points based on their seniority. One additional point was given for each year of employment by the university up to a maximum of 10 points. These points provided an advantage to current employees when seeking to change their career track within the university system.

AFSCME sent the respondents, the Merit Board, the Board of Regents of the Regency University System (BOR), the Board of Governors of the State Colleges and Universities (BOG), and the Board of Trustees of Southern Illinois University (SIU), letters demanding that the Merit Board and the universities bargain over the proposed rule change. All of the respondents refused to bargain over the proposed rule change. The Merit Board contended it was an independent third party and was not an employer for the purposes of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 1701 et seq.). It argued it had no duty to bargain over its proposed rule change. Each of the universities individually responded with a number of contentions as to why they were not required to bargain, based on their individual circumstances. They were, however, united in arguing they were not required to bargain a change in the Merit Board rules since, although these rules were binding on them, they had no authority over the Merit Board with respect to its rules.

On October 20, 1986, AFSCME filed an unfair labor practice charge against the Merit Board and the University of Illinois as joint employers. On November 12, 1986, AFSCME amended its unfair labor practice charge to add the remaining respondents to the Merit Board and the University of Illinois. A public hearing on the proposed rule change was held by the Merit Board on November 18, 1986, and AFSCME raised its objections at this hearing. On April 6, 1987, the Merit Board approved a motion rescinding the seniority bonus point rule. The rescission was made effective on May 8,1987.

The IELRB investigated the charge filed by AFSCME and issued a complaint for hearing on March 20, 1987. The parties stipulated to the facts and exhibits and requested the matter be presented directly to the IELRB. The IELRB issued its order on February 2, 1989. (University of Illinois Board of Trustees, 5 Pub. Employee Rep. (Ill.) par. 1035, No. 86 — CA—0087—C (Illinois Educational Labor Relations Board, Feb. 2, 1989).) The IELRB rejected the assertion that the Merit Board and the other respondents were joint employers of the workers in question and dismissed the complaint as to it; AFSCME appealed this portion of the order, docketed No. 4 — 89—1000. The IELRB went on to find the universities’ refusal to bargain over the rule change constituted a violation of the Act, and found the respondents had a duty to bargain with regard to the proposed change in the Merit Board rule, but that any provisions negotiated were subject to approval or rejection by the Merit Board; the universities appealed this portion of the order, Board of Regents v. Illinois Educational Labor Relations Board (1990), 202 Ill. App. 3d 559.

AFSCME’s sole contention on appeal is that the IELRB incorrectly found that the Merit Board was not an employer or joint employer under the statutory definition or applicable case law. Courts may not interfere with the discretionary authority vested in an administrative agency unless that authority is exercised in an arbitrary and capricious manner or the administrative decision is contrary to the manifest weight of the evidence. (Hardin County Education Association, IEANEA v. Illinois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 528 N.E.2d 737.) A decision is contrary to the manifest weight of the evidence only when, after viewing the evidence in the light most favorable to the administrative agency, the court determines that no rational trier of fact could have agreed with the agency’s decision. Service Employees International Local Union No. 316 v. Illinois Educational Labor Relations Board (1987), 153 Ill. App. 3d 744, 505 N.E.2d 418.

The question in this case is whether the IELRB’s application of the Act to the facts of this case is so unreasonable that the opposite conclusion, that the Merit Board is an employer or joint employer, is clearly evident. Central to the resolution of this question is section 2 of the Act. This section provides the following:

“As used in this Act: (a) ‘Educational employer’ or ‘employer’ means the governing body of a public school district, combination of public school districts, *** public community college district or State college or university, and any State agency whose major function is providing educational services.” Ill. Rev. Stat. 1985, ch. 48, par. 1702(a).

AFSCME has not argued that the Merit Board is a governing body, nor does it have any of the usual indicia of a governing body, i.e., it does not set educational policy, it does not select the faculty, or control the budgets of the universities which it serves. In fact, the Merit Board does not even actually select the university employees which are represented by the union here. Its function is to provide a civil service structure. It tests and provides the names of suitable applicants to the university for its selection. It also sets and oversees the general employment policies of the universities in regard to their nonacademic employees.

Since the Merit Board is not a governing body, to be an employer under the definition, it must be an agency whose major function is providing educational services. Under a common understanding of the term, the Merit Board provides no such services. Its services are related to education only in the sense that the organizations which its serves are universities. The actual function of the Merit Board would in no way be changed if it served any other State department or agency. To state it in terms of the statutory language, the Merit Board does not “provide educational services,” but rather provides services to educational institutions. The language of the statute indicates it is the nature of the services, rather than the party to whom those services are provided, which is determinative.

How, then, does the AFSCME argue the Merit Board is an educational employer? It relies on a number of cases cited in its brief which hold that, where one public body effectively controls the budget of another, the controlling body should be found to be a joint employer to make effective collective bargaining possible. AFSCME contends that because the Merit Board is comprised of a representative from each of the universities subject to its rules, there is so close an identity between them that they must be found to be joint employers.

Our supreme court has recently considered the issue of joint-employer status in the context of public labor law in Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, 474-75, 537 N.E.2d 784, 794-95. There the court stated the following:

“As labor law has developed, largely in a Federal and private-sector context, the test for existence of joint employers has come to be defined as whether ‘two or more employers exert significant control over the same employees — where from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment.’ (National Labor Relations Board v. Browning-Ferris Industries of Pennsylvania, Inc. (3d Cir. 1982), 691 F.2d 1117, 1124.) Relevant factors include the putative joint employer’s role in ‘hiring and firing; promotions and demotions; setting wages, work hours, and other terms and conditions of employment; discipline; and actual day-to-day supervision and direction of employees on the job.’ [Citations.]”

In Orenic, the court was called on to determine whether the nonjudicial employees of the circuit courts were employees of the judiciary, or whether they were jointly employed by the judiciary and the local county government. While noting the county exercised considerable fiscal control over the operations of the circuit courts, the supreme court found the circuit courts retained an inherent power over their employees and the power to compel the county to provide adequate facilities and staff for the courts. Based on this analysis, it found the county governments were not joint employers for the purposes of collective bargaining. While the current case lacks the constitutional separation of powers question which underlies Orenic, the test which the supreme court formulated to determine the status of a putative joint employer is equally applicable.

The evidence here shows the Merit Board has an important supervisory function in regard to hiring, firing, promotions, et cetera. The statutory scheme charges the Merit Board with setting the general ranges of compensation for employees covered by the system. The Merit Board examines and certifies potential employees to create a pool of candidates from which the universities select employees. However, it is the universities that make the final selection of employees. The universities bargain for and recommend the appropriate ranges of compensation. In regard to promotions, the Merit Board, once again, merely selects appropriate candidates for the university to choose from. Clearly, the Merit Board has no responsibility for the day-to-day supervision of the employees or for discipline. While the Merit Board has some influence on the terms of employment, this influence in large part is limited to the approval of terms negotiated by the universities and the selection of employees in accordance with the statutory criterion and its own rules.

Section 36d of “An Act to create the State Universities Civil Service System” (Ill. Rev. Stat. 1985, ch. 241/a, par. 38b3), setting forth the powers and duties of the Merit Board, provides that it is the universities themselves which are authorized to negotiate with the employee representatives. The Merit Board is then to act on the recommendation of the universities resulting from these negotiations. (Ill. Rev. Stat. 1985, ch. 241/2, par. 38b3.) It is the legislative intent, as expressed in statute, that the universities are the parties to bargain with the employee representatives. No provision or authorization is made for negotiations between the Merit Board and any representative of the employees.

Simply because a reviewing court finds that an opposite conclusion might be equally as reasonable, or that it would have reached a different conclusion, is not sufficient grounds to set aside an agency’s decision. In order to do so, the facts must indicate that the opposite conclusion is clearly evident. (Fagiano v. Police Board (1984), 123 Ill. App. 3d 963, 463 N.E.2d 845.) Any merit to AFSCME’s argument that the Merit Board exercises sufficient control of the terms and conditions of employment to warrant a finding that it is a joint employer falls far short of that required to show the IELRB’s decision should be overturned. It cannot be said here that the contrary conclusion is clearly evident and, for this reason, the IELRB’s determination is affirmed.

Affirmed.

LUND and SPITZ, JJ., concur.


author: JUSTICE REINHARD

text:
    RENAISSANCE RESTAURANT AND LOUNGE, INC., Plaintiff and Counterdefendant-Appellee, v. PETER GAVRILOS, Adm’r of the Estate of George Gavrilos, a/k/a George Gavrilos, Deceased, Defendant and Counterplaintiff-Appellant.
    Second District
    Nos. 2—89—0608, 2—89—0800 cons.
    Opinion filed April 24, 1990.
    Modified on denial of rehearing May 24, 1990.
    Keith E. Roberts, Sr., and Robert R. Verchota, both of Donovan & Roberts, P.C., of Wheaton, and Edward A. Bartosch and Peter J. Best, both of Park Ridge, for appellant.
    Aldo E. Botti and John R. Wimmer, both of Botti, Marinaccio, DeSalvo & Pieper, Ltd., of Oak Brook, and George D. Kareazes, of Martin & Karcazes, Ltd., of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant and counterplaintiff, Peter Gavrilos, administrator of the estate of George Gavrilos, deceased (Gavrilos), appeals from an order of the circuit court of Du Page County, following submission of the case to the trial judge on issues of law, denying his request to terminate his lease with plaintiff and counterdefendant, Renaissance Restaurant & Lounge, Inc. (Renaissance), and declaring as valid the original, unaltered lease between the parties.

On appeal, Gavrilos contends that Renaissance’s unauthorized, material alteration of a duplicate lease rendered that instrument and the original, unaltered lease void and unenforceable.

During his lifetime, George Gavrilos owned certain property in Elk Grove Village, Illinois. In 1980, he leased the property to 2310 Elmhurst Road, Inc. In 1982, 2310 Elmhurst Road, Inc., assigned the lease to Renaissance. During the term of the lease, George Gavrilos died, and Peter Gavrilos was appointed administrator of his estate. A dispute arose between Renaissance and Gavrilos concerning certain past-due rent and tax payments, and Gavrilos served Renaissance with a notice of default. Renaissance filed a suit for injunctive and declaratory relief against Gavrilos in the circuit court of Cook County. As relevant to this appeal, the complaint alleged that Gavrilos had failed to make necessary repairs to the roof and that this had resulted in damage to the premises and Renaissance’s business. Renaissance requested that Gavrilos be placed under a temporary restraining order enjoining him from terminating Renaissance’s right to possession of the premises and further requested that Gavrilos be required to repair the roof. A copy of the lease was attached to the complaint. This lease states, among other things, that lessor accepts responsibility for repair of the roof and the parking lot.

The circuit court of Cook County denied the request for a temporary restraining order. The case was subsequently transferred to che circuit court of Du Page County, the actual location of the subject premises. When the case was transferred to Du Page County, Gavrilos filed a forcible entry and detainer action alleging that Renaissance owed over $34,400 for rent and $9,400 for taxes, and the cases were consolidated.

Renaissance filed an amended complaint asking for a declaration of the parties’ rights under the lease and under a certain note and security agreement, a permanent injunction restraining Gavrilos from terminating Renaissance’s right to possession, and a mandatory injunction requiring Gavrilos to repair the roof and the parking lot. Renaissance also filed a motion for a mandatory injunction compelling Gavrilos to fix the roof and the parking lot. In response to the motion for a mandatory injunction, Gavrilos asserted that the part of the lease dealing with responsibility for repairs to the roof and the parking lot was ambiguous and unclear. Gavrilos later filed a supplemental response to the motion stating that he had found the lease in question and that his lease states that it is the lessee, not the lessor, who is responsible for repairs to the roof and the parking lot. The court granted Renaissance leave to repair the roof and the parking lot “without prejudice to the issue of which party is responsible to pay for the repairs and whether said repairs are necessary.”

Gavrilos filed an answer and a counterclaim and, subsequently, filed an amended answer, including affirmative defenses, and an amended counterclaim. In the affirmative defenses, Gavrilos restated that there are conflicting versions of the lease, asserted that the lease attached to Renaissance’s complaint was not the lease executed by the parties, and alleged that Renaissance altered the document without the consent or knowledge of George Gavrilos. Gavrilos stated that the alteration was material, that it rendered the lease unenforceable and voidable by him, and that he elected to declare the lease void. Neither the original nor the amended counterclaim mentions the alteration of the lease as a ground for relief, referring primarily to the past-due rent and tax payments. In the original counterclaim, however, Gavrilos did request that Renaissance be ordered to pay for all repairs made since Renaissance took possession under the lease and that Renaissance be ordered to vacate the premises. Gavrilos attached a copy of his version of the lease to the counterclaim.

Renaissance responded to the affirmative defenses by admitting that Gavrilos’ lease was the lease originally executed by the parties; Renaissance asserted, however, that the Gavrilos lease was amended by “the execution of the lease attached as Exhibit B to Renaissance’s First Amended Complaint.” Renaissance denied that the changes were made without the consent and knowledge of George Gavrilos. The court granted Gavrilos leave to depose one of Renaissance’s attorneys, Hercules Bolos, for the purpose of determining the circumstances surrounding the execution of the two leases.

Gavrilos filed a second amended counterclaim which does not mention the alteration of the lease or the cost of repairs, but refers only to the past-due rent and taxes. As relevant to this appeal, Renaissance responded that Gavrilos’ lease is a true and correct lease which was executed by the parties; however, that lease was superseded by Renaissance’s lease.

Apparently, the parties subsequently reached agreement on most of the issues between them, as they stipulated that an unaltered, duplicate original lease was in existence. They agreed to present the case to the trial judge on an issue of law: whether, even if Renaissance had altered a duplicate original of the lease without the consent of Gavrilos, Renaissance could still enforce its rights under the unaltered, duplicate original lease.

The trial court found the unaltered, original lease to be a valid lease between the parties which could be enforced by Renaissance.

Initially we note that the issue of whether Gavrilos had the right to terminate the lease and require Renaissance to vacate the premises based on Renaissance’s misconduct in materially altering one copy of the lease without the consent of the lessor and then seeking to enforce the altered lease in court was properly before the trial court. Gavrilos generally raised the issue as part of his affirmative defense and in his response to Renaissance’s motion for a permanent injunction. Furthermore, Gavrilos attached a copy of the unaltered lease to his amended counterclaim.

On appeal, Gavrilos’ position is that Renaissance attempted to perpetrate a fraud by filing a verified complaint seeking to enforce an intentionally and materially altered lease and that such action renders the altered lease and the original, unaltered lease voidable. Renaissance contends that, where there is an unaltered original of an instrument, the alteration of a duplicate original does not affect the operation and validity of the unaltered original, and even an unauthorized alteration will not forfeit the altering party’s right to enforce the terms of the unaltered original.

The trial court agreed with Renaissance and denied Gavrilos’ request for an order terminating the lease and requiring Renaissance to vacate the premises.

The general rule has been stated as follows:

“[Wjhere a written executory contract has, by one of the parties thereto without the consent of the other, been altered from its condition when signed and delivered, such alteration, if material, — that is, if it so changes its terms as to give it a different legal effect from what it originally had, — renders the instrument void and destroys it as a basis of recovery, either in its altered form or in its original condition, by the party making the alteration.” Cities Service Oil Co. v. Viering (1949), 404 Ill. 538, 547, 89 N.E.2d 392, 398.

There is an exception to this general rule which provides:

“Where an instrument has been executed in duplicate, the unauthorized alteration of one of the copies does not ordinarily affect the validity, operation, or effect of the other copy. While in such a case it might be said that the instrument in which the alteration is made is an altered instrument, nevertheless the contract, or the evidence thereof, is not affected, since it is still evidenced by an unaltered instrument — that is, by the duplicate which was not altered.” 4 Am. Jur. 2d Alteration of Instruments §10, at 12 (1962) (citing cases where fraudulent or knowing and unconsented to alteration of one copy of an instrument did not prevent the party so altering from sustaining the agreement based on an unaltered copy).

See Jones v. Hoard (1894), 59 Ark. 42, 26 S.W. 193 (knowing and unconsented to alteration of duplicate lease does not render other duplicate lease unenforceable); see also 15 S. Williston, Contracts §1910, at 842 n.8 (3d ed. 1972).

In Illinois, the rule has been similarly stated, although in a different factual context than the above authorities:

“If any changes were made in the duplicate they would not invalidate the original.” Singer v. Murphy (1930), 338 Ill. 620, 629, 170 N.E. 777, 781.

There is no dispute that the copy of the lease was altered sometime after its execution and the alteration was material because it changed the legal effect of the original terms by shifting responsibility for the cost of repairs of the roof and parking lot from the lessee to the lessor. It is equally undisputed that a duplicate, unaltered lease was in existence in the possession of an attorney for Renaissance. Consequently, under the exception to the general rule, the unaltered duplicate lease evidences the true agreement between the parties and as such is valid and enforceable.

While we recognize that Renaissance arguably may have possessed an improper motive in submitting the altered lease as an exhibit with its complaint, a fact we are careful to note has not yet been established on this record, we do not perceive the question of Renaissance’s motive or intent to be pertinent to the issue raised by Gavrilos. As there is a distinction between an unauthorized alteration of the lease and its improper use as part of the pleadings, a distinction not clearly enunciated in Gavrilos’ brief, the alternatives available to Gavrilos are distinct. Gavrilos may very well have recourse for Renaissance’s conduct in submitting the materially altered lease as part of its pleadings, an issue that is not before us, but this would not include rendering the lease voidable.

Because of our disposition, we need not address the alternative grounds for affirmance urged by Renaissance.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS and DUNN, JJ., concur.


author: JUSTICE INGLIS

text:
    LISA APPLEBY, Plaintiff-Appellant, v. DONALD T. MILLER, JR., et al., Defendants-Appellees.
    Second District
    No. 2—89—0822
    Opinion filed May 3, 1990.
    Rehearing denied June 1, 1990.

      Kenneth C. Chessick, M.D., S.C.', of Schaumburg (John W. Fisk, of counsel), for appellant.
    Kenneth W. Traum, of Kostantacos, Traum, Reuterfors & McWilliams, P.C., and Thomas & Hinshaw, Culbertson, both of Rockford, and Johnson, Cusack & Bell, Ltd., and Dean M. Athans, of Taslitz, Smith & Hemmesch, both of Chicago, for appellees Donald T. Miller, Jr., Steven J. Disanti, H. Shils, Alan Cheung, Marabella Alhambra, Rajakankumar Naik, and Kishwaukee Community Hospital.
    Heyl, Royster, Voelker & Allen, of Springfield, and Douglas J. Pomatto, of Heyl, Royster, Voelker & Allen, of Rockford (Karen L. Kendall, of counsel), for appellee Colwell Systems, Inc.
   JUSTICE INGLIS

delivered the opinion of the court:

On September 20, 1988, plaintiff, Lisa Appleby, brought suit against Dr. Donald T. Miller, a dentist, and other medical providers alleging that negligent treatment was rendered to her. Additionally, in count X of the complaint, plaintiff brought a products liability claim against defendant “Unknown Seller of Medical Form” alleging that the unknown seller sold a defective medical history intake form to Miller, her dentist, which was used by Miller on September 23, 1986, and thereafter in his treatment of her. Plaintiff alleged that the form was defective in that it failed to inquire as to whether plaintiff had a history of a heart murmur, cardiac valvular disease, or mitral valve prolapse; it failed to inquire as to whether it was recommended to plaintiff that she take prophylactic antibiotics; and it failed to provide notice or warning of its incomplete inquiry or listing of a potential patient’s medical history, and/or the potential consequences thereof. The complaint alleged that Miller had relied upon the information compiled pursuant to the medical form and that such reliance was, or should have been, foreseeable by defendant unknown seller. It was alleged that as a direct and proximate result of the defective form, plaintiff has suffered bacterial endocarditis, coma, brain artery aneurysm, and hemiparesis. Attached to the complaint was the affidavit of plaintiff’s attorney stating that the name of the seller of the medical form was unknown and could not be determined at that time.

On January 25, 1989, plaintiff filed a motion for leave to file her first amended complaint. Pursuant to the amended complaint, plaintiff substituted Colwell Systems, Inc., for defendant unknown seller. The substantive allegations of the pleadings remained virtually unchanged. The trial court granted plaintiff’s motion on February 2, 1989, and the amended complaint was filed instanter.

On April 20, 1989, defendant Colwell filed a motion to dismiss plaintiff’s amended complaint alleging, inter alia, that it failed to state a cause of action based upon strict products liability and that the action against Colwell was barred by the statute of limitations.

On June 15, 1989, after hearing oral arguments, the trial court granted defendant Colwell’s motion to dismiss with prejudice. The court reasoned that the medical form “is not a product which would invoke the public policy considerations advanced to support the imposition of strict liability.” The trial court stated that “there are no facts pled which would show that the plaintiff was a consumer or user as contemplated by the products liability cases or that the form was the proximate cause of the plaintiff’s injuries.” The court further held that the action was beyond the statute of limitations and that section 2 — 413 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 413) could not assist plaintiff in making the action timely. The decision of the trial court was incorporated into a written order entered July 17, 1989. Plaintiff timely appeals, raising the following issues: (1) whether plaintiff’s amended complaint sufficiently stated a cause of action under a strict products liability theory so as to withstand a motion to dismiss; and (2) whether the trial court erred in finding that plaintiff’s complaint failed to satisfy the statute of limitations and in denying her leave to file a second amended complaint. We affirm.

In determining the legal sufficiency of a complaint on a motion to dismiss, the trial court is required to accept all well-pleaded facts as true. (Hubbard v. Chicago Housing Authority (1985), 138 Ill. App. 3d 1013, 1014.) However, in ruling on a motion to dismiss, the trial court must disregard mere conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. (Prudential Insurance Co. v. McCurry (1986), 143 Ill. App. 3d 222, 225; Hubbard v. Chicago Housing Authority (1985), 138 Ill. App. 3d 1013, 1014-15.) A cause of action is properly dismissed on the pleadings only where it clearly appears that no set of facts can be proved which will entitle the plaintiff to relief. Hubbard, 138 Ill. App. 3d at 1015.

To state a cause of action in strict products liability, a complaint must allege that: (1) plaintiff’s injury resulted from a condition of the product; (2) the condition of the product was unreasonably dangerous; and (3) the condition existed when it left the seller’s control. (Loos v. American Energy Savers, Inc. (1988), 168 Ill. App. 3d 558, 562; Phillips v. United States Waco Corp. (1987), 163 Ill. App. 3d 410, 417.) Thus, in a strict products liability action, a “product” must be at issue.

In determining wThat is a product, the courts have looked to the social policy justifications underlying the adoption of strict liability rather than a dictionary definition of the term “product.” (Trent v. Brasch Manufacturing Co. (1985), 132 Ill. App. 3d 586, 589.) The policy justifications to be considered include the public interest in human life and health, the manufacturer’s invitations and solicitations to use the product, its representations that the product is safe and suitable for intended use, and the justice of imposing the loss on the one creating the risk and reaping the profit. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 619.

Given these considerations, we find that the medical form in question was a service provided to the dentist rather than a product subject to strict liability. Defendant’s form merely supplied the dentist with a short list of general questions to be answered by the patient. Specifically, the form asked, under the subtitle “Health Questions,” the following yes/no questions:

“Do you feel you are now in good health?”
“Are you presently under a doctor’s care?”
“Have you ever been told you had high blood pressure?”
“Have you had heart trouble, rheumatic fever, diabetes, or hepatitis?”
“Have you ever had trouble with bleeding from injuries, or after surgery or extractions?”
“Are you allergic to, or have you had an unusual reaction to, any drug or local anesthetic?”

In addition, the form asked what pills or medication the patient was presently taking, the name and address of her physician, and the date of her last dental visit.

Given the generality of the questions and the brevity of the form, we find that it would be unreasonable to expect that the form was intended to be a comprehensive inquiry as to a patient’s medical history, and there was no evidence presented that defendant represented it as such. Rather, the apparent function of the form was to provide dentists with a list of broad questions to be answered by patients and then supplemented by the dentist as deemed appropriate. It thus appears that the gravamen of plaintiff’s complaint is not the form itself; rather, it is the dentist’s alleged negligent conduct in his use or reliance on the form. Such errors of professional judgment are held to the standard of reasonable skill under the concept of negligence, and strict liability simply does not come into play. Dubin v. Michael Reese Hospital & Medical Center (1980), 83 Ill. 2d 277, 281.

Because we have determined that the form in question is not a product, plaintiff’s complaint sounding in strict liability is legally deficient and was, therefore, properly dismissed. (Hubbard, 138 Ill. App. 3d at 1015.) Given our finding, we need not address the other issues raised on appeal.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

REINHARD and DUNN, JJ., concur.


text:
      In re MARRIAGE OF MELODY WYANT, n/k/a Melody Bugbee, Petitioner, and STEPHEN WYANT, Respondent-Appellee (The Department of Public Aid, Appellant).
    Second District
    No. 2—89—0961
    Opinion filed May 9, 1990.
    Rehearing denied June 4, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Stephen Wyant, of Dixon, appellee pro se.

   JUSTICE INGLIS

delivered the opinion of the court:

The Department of Public Aid (Department) appeals the order of the circuit court which ordered the conditional withholding of the wages of respondent, Stephen Wyant. The Department contends that, pursuant to section 706.1 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 706.1), the order should have required immediate withholding. Respondent appeared in the trial court and appears in this court pro se.

The circuit court entered a judgment of dissolution of the marriage of petitioner, Melody Wyant, and respondent on May 4, 1983. The judgment included a provision requiring respondent to pay $35 per week for child support. On November 26, 1985, the circuit court entered an order of support reducing respondent’s child support obligation to $25 per week. Additionally, the court found that respondent was $4,130 in arrears of child support. The order did not require respondent to make weekly payments toward the arrearage; however, it did provide that he was to pay “4,130.00 owed the Public Office until such arrearage is paid in full.” Although the court found an arrearage in the amount of $4,130, it does not appear that a judgment to that effect was entered.

In addition to the support order, the circuit court entered a second order on November 26, 1985, which was a conditional order for withholding. It provided that, if respondent fell one month behind in his payments, respondent’s wages could be garnished in the amount of $25 per week for currently accruing support and $10 per week towards any delinquency.

On March 1, 1989, the Department executed a notice of delinquency; respondent requested a stay of the service of the withholding order on the basis that he had been paying on the arrearage. The circuit court conducted a hearing on July 5, 1989. Although the arrearage and payment figures in the transcript of the hearing are confusing, it appears from the parties’ statements that, as of July 5, 1989, respondent became obligated to pay $4,700 in child support. That amount is 188 weeks at $25 per week for the child support payments due for the period from November 29, 1985, through July 5, 1989. According to the Department's statements at the hearing, respondent made $3,035 in payments during that period. Thus, respondent fell $1,665 short for the 188-week period. While respondent increased some of his payments during that time from $25 per week to $35 per week, the extra $10 per week was applied to the 188-week period and not towards the $4,130 arrearage. Thus, the $4,130 arrearage was not reduced at all. Moreover, even with some extra $10-per-week payments, there were so many $25 payments missed that respondent still became delinquent for the 188-week period from November 29, 1985, to July 5, 1989. Thus, respondent was delinquent in the amount of $1,665 for the period from November 29, 1985, to July 5, 1989, in addition to the old arrearage of $4,130 for the period from May 4, 1983, to November 29, 1985, for a total arrearage of $5,795. Respondent has not argued or shown that these numbers were calculated wrongly.

On July 5, 1989, the circuit court entered an order for support and an order for withholding. The order for support required respondent to pay $25 week for current support accruing after July 5, 1989; entered a judgment in the amount of $5,795 against respondent; and required respondent to pay an additional $10 per week towards the judgment amount. The order for withholding required respondent’s employer or obligor to withhold the $25 per week for current support and the $10 per week for the $5,795 judgment; however, the order was not immediately effective but could be enforced only on the condition that respondent fell one month behind in his obligation.

The Department appeals only the July 5, 1989, withholding order and argues that it should have been immediately enforceable because respondent was already more than one month behind in his payments. Section 706.1 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 706.1) authorizes a circuit court to enter an order of withholding wages or other funds for child support obligations. Courts may apply the statute to collect an arrearage that accumulated before the effective date of the Act. In re Marriage of Logston (1984), 103 Ill. 2d 266, 284.

Pursuant to section 706.1 (B)(7) of the Act, a court “shall” order immediate service of an order for withholding whenever it finds an arrearage has accrued in an amount equal to at least one month’s support obligation. (Ill. Rev. Stat. 1987, ch. 40, par. 706.1(B)(7).) An arrearage is defined as the total amount of unpaid support obligation. (Ill. Rev. Stat. 1987, ch. 40, par. 706.1(A)(2).) Because respondent’s one-month support obligation is approximately $108.33 and the total arrearage was $5,795, the court was required to order immediate service of the order for withholding. The statute uses the word “shall” rather than “may,” thus indicating that the court has no discretion in issuing an order for withholding. Newkirk v. Bigard (1985), 109 Ill. 2d 28, 33; In re Marriage of Bergman (1989), 183 Ill. App. 3d 897, 900 (“Section 706.1(B)(7) mandates a court to order the immediate issuance and service of an order for withholding once it finds an obligor is in arrears in child support and the arrearage exceeds one month’s obligation”).

In addition, section 706.1(H) provides that, when the amount of the delinquency is more than one month’s support obligation, the court “shall” order immediate service of the order for withholding. (Ill. Rev. Stat. 1987, ch. 40, par. 706.1(H).) A delinquency is defined as any obligation that remains unpaid after an order for withholding has already been entered. (Ill. Rev. Stat. 1987, ch. 40, par 706.1(A)(3).) Because respondent was delinquent in the amount of $1,665, which is more than the $108.33-per-month support obligation, the court was required to order service of the withholding order immediately. Although the circuit court may have been correct in believing that in the future respondent could make the $25-plus-$10-per-week payments without the garnishment, the present law does not give the court discretion in ordering immediate withholding in the case at bar.

Respondent contends that the Act does not require the order for withholding to take effect immediately if a written agreement is reached between both parties. (Ill. Rev. Stat. 1987, ch. 40, par. 706.1(B)(1).) Respondent argues that an agreement was never attempted. However, there is no requirement that the parties attempt to agree, and the transcript indicates that the Department would not agree to anything other than immediate withholding. Also, subsection 706.1(B)(7) states: “[notwithstanding the other provisions of this subsection,” the withholding order should have immediate effect when the arrearage exceeds one month’s obligation. (Ill. Rev. Stat. 1987, ch. 40, par. 706.1(B)(7).) The use of the word “[notwithstanding” indicates that subsection 706.1(B)(7) has precedence in spite of any other provision of subsection B. Ill. Rev. Stat. 1987, ch. 40, par. 706.1(B)(7).

Finally, we note that the parties to the appeal refer to a judgment of November 26, 1985, in the amount of $4,130. A judgment is a determination by a court that a party owes a debt, and the entry of the judgment acts as a lien on all the property owned and acquired by the party. (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 101 et seq.) There is no indication in the record that the arrearage of $4,130 was incorporated into a judgment. If it were, then the judgment of July 5, 1989, in the amount of $5,795, would be erroneous because it would be duplicative of another judgment. In any event, since the finding of November 26, 1985, was not made into a judgment, the judgment of July 5, 1989, entered against respondent in the amount of $5,795 must remain effective.

For the above reasons, the order for withholding entered on July 5, 1989, is reversed in part, and the cause is remanded with directions to enter an order requiring immediate service of the withholding order.

Reversed in part and remanded with directions.

McLAREN and GEIGER, JJ., concur.