text:
    (No. 77-CC-2130
    James Climons, Claimant, v. State of Illinois, Respondent.

      Opinion filed April 9, 1979.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant has shown by a preponderence of the evidence that in September, 1976, an employee of the Stateville Correctional Center took from Claimant an AM-FM radio having a value of $159.00. There was no explanation given Claimant for this action, and the radio has never been returned to him.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al, 57 Ill. App. 2d 90,207 NE2d 84.

In Chesterfield, The Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d 172, at 174, as follows:

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $159.00.


source: Caselaw Access Project

author: Polos, C.J.

license: Public Domain

text:
    (No. 77-CC-2187
    Western Waterproofing Company, Claimant v. State of Illinois, Respondent.

      Opinion filed April 9, 1979.

    Richard A. Hollis, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Polos, C.J.

This matter is before the Court on the stipulation of the parties. That stipulation establishes that Claimant, Western Waterproofing Company, was awarded a contract for certain work on the Armory Building at Dixon, Illinois. After the contract was awarded and the work commenced, Claimant determined that in order to adequately complete the job, it was necessary to replace windows around the upper perimeter of the Armory. This involved removing the old glazing and replacing the glass where missing or broken with new glazing prior to painting.

The Capitol Development Board was the contracting agency on behalf of the using agency, the Military and Naval Department. The project manager overseeing the work on behalf of the Capitol Development Board was one Mr. J. Delaney, who is no longer employed by the State. It appears that Mr. Delaney, upon receiving a proposal from Claimant, approved the proposal and told Claimant to proceed with the additional work. The work was completed, but a “Request For Proposal And Change Order” was never processed. The “request” was recommended by the contractor, by the using agency, and by the Capitol Development Board. However the change order was never approved and issued by the Capitol Development Board. The Capitol Development Board had provided for a ten percent contingency in their appropriations and allocations for this contract, and there were adequate funds remaining in the project at the time the verbal authorization was given by Mr. Delaney and the work performed.

Claimant is requesting the sum of $1,344.00 for the additional work performed, and there is no question as to the reasonableness of that charge, or the quality of the work performed.

The State of Illinois has agreed to submission of this matter on the foregoing stipulation, and agrees that an award should be made at the discretion of the Court.

On consideration of the foregoing, it is hereby ordered that Claimant be, and hereby is, awarded the sum of $1,344.00.


author: Per Curiam.

text:
    (No. 77-CC-2236
    Fisher Scientific Co., Claimant, v. State of Illinois, Respondent.

      Order filed November 8, 1978.

   Per Curiam.

This matter comes before the Court on a motion to dismiss filed by Respondent.

Respondent’s motion states as follows:

“1. That the claim herein seeks the recovery of $2,025.00 for the delivery of one electrometer to the Illinois Department of Law Enforcement.
2. That prior to the filing of this claim, Claimant filed an identical claim seeking $2,025.00 for the delivery of one electrometer to Respondent (Fisher Scientific Co., 32 Ill.Ct.Cl.__)
3. That a third claim was filed by Claimant subsequent to the claim herein for $8,100.00 for the delivery of four electrometers. (78-CC-718)
4. That Claimant, in fact, delivered four electrometers to Respondent as alleged in the third complaint. (78-CC-718)
5. That the claim herein duplicates a portion of the third complaint/7S-CC-718y)
6. That Ill. Rev. Stat., Ch. 37, Sec. 26, (1977) states that there shall be but one satisfaction of any cause of action.
7. That Ill. Rev. Stat., Ch. 110, Sec. 48(c), (1977) states that another action pending between the same parties for the same cause is a ground for dismissal.”

Motion for dismissal in this cause is hereby granted and said cause dismissed. All the matters contained herein can be disposed of in Case No. 78-CC-718.


text:
    (No. 77-CC-2300
    Roy E. Hofer, Claimant, v. State of Illinois, Respondent.

      Opinion filed October 4, 1978.

    Gary M. Ropski, Attorney for Claimant.
    William J. Scott, Attorney General; Francis M. Donovan, Assistant Attorney General, for Respondent.
   Per Curiam.

The Claimant in this case seeks recovery under two counts. The first count prays for an award of $8,134.20 under a contract and supplemental agreement for legal services entered into between the Illinois Pollution Control Board and the Claimant, Roy E. Hofer, of the law firm of Hume, Clement, Brinks, William, and Olds, Ltd., (hereinafter referred to as the Hume firm). The second count prays for an award of $14,786.70 under a theory of quantum meruit for legal services provided to the Illinois Pollution Control Board by the Hume firm.

This cause is before this Court on the basis of the complaint filed on November 29,1977, and a joint stipulation of facts entered into by the parties hereto. The complaint and the stipulation set forth the following facts:

1. On July 29, 1976, Russel R. Eggert, Assistant Attorney General and Acting Chief, Southern Region, Environmental Control Division of the Attorney General’s Office sent a letter to Jacob D. Dumelle, Chairman, Illinois Pollution Control Board (hereinafter referred to as the Board) in which permission was granted to the Board to appear through counsel of its choice in Caterpillar Tractor Company v. Pollution Control Board, et al., Third District No. 76-114 (hereinafter referred to as the Caterpillar litigation).
2. Pursuant to the grant of authority contained in said letter, the Board entered into an Agreement with Roy E. Hofer on August 12,1976. The Agreement authorized Hofer to represent the Board and to incur disbursements necessary in Hofer’s judgment in the Caterpillar litigation before the Ill. App. 3d. The Board agreed to pay for the legal services rendered and disbursements incurred, by Hofer and other lawyers and personnel of the Hume firm in representing the Board in the Caterpillar litigation, said legal services not to exceed $5,000.00 unless approved by the Board. No limit was placed on the amount of disbursements allowable according to Hofer’s judgment.
3. On October 4,1976, the Ill. App., 3d entered an order pursuant to Ill. Rev. Stat., Ch. 14, para. 6 “Illinois Attorney General Act” confirming the appointment of Hofer as substitute counsel for the Board.
4. On February 17,1977, the Board and Hofer entered into a supplemental agreement approving a $6,500.00 fee for legal services rendered by Hofer and the Hume firm through January 31,1977, in the Caterpillar litigation and further authorized Hofer and the Hume firm to provide legal services in representing the Board at oral argument before the Ill. App., 3d in the Caterpillar litigation. The fee for said legal services was not to exceed $1,250.00 unless approved by the Board. Once again, no limit was placed on the amount of disbursements allowed by the supplemental agreement according to Hofer’s judgment.
5. Claimant, Hofer, has provided the services required in said agreement (August 12,1976) the supplemental agreement (February 17,1977), has incurred disbursements as a result thereof and has performed all other obligations required of him by the agreement and supplemental agreement.
6. In fulfilling the terms of said agreement and supplemental agreement, Hofer and an associate of the Hume firm spent 129.5 hours and 152 hours respectively for a total of 281.5 hours working on the Caterpillar litigation. For this time, pursuant to said contracts, Claimant seeks an award of $7,750.00 or $27.53 per hour.
7. In fulfilling the terms of his contracts with the Board, Claimant Hofer incurred disbursements in the amount of $384.20 for Xeroxing, long distance telephone calls, and filing fees during the course of the Caterpillar litigation.
8. Claimant, Hofer’s total claim under his contracts with the Board is for $8,134.20.
9. The Respondent, the Illinois Pollution Control Board, and the Claimant have entered into a joint stipulation agreeing that the Claimant, Roy E. Hofer, be awarded the sum of $8,134.20.

The award stipulated by the parties hereto is justified because the agreement and supplemental agreement were entered into with the permission of the Attorney General. Furthermore, the appointment of Hofer as counsel for the Board was confirmed by the Ill. App., 3d, pursuant to Ill. Rev. Stat., ch. 14, para. 6 (“Illinois Attorney General Act”).

It is established law in the State of Illinois that the Attorney General “is the law officer of the people, as represented in the State Government, and its only legal representative in the Courts. “Fergus v. Russel, 270 Ill. 304; Stein v. Howlett, 52 Ill. 2d 570; People ex rel. Scott v. Briceland, 65 Ill. 2d 485.” See also 1970 Illinois Constitution, Article V, Section 15; Ill. Rev. Stat. ch. 14, para. 4. As the State’s sole legal officer, the Attorney General has the power to permit other attorneys to assist him in performing his responsibilities such as those of representing a State agency, the Illinois Pollution Control Board.

There can be no question that in this case the Board looked to the Attorney General for representation in the Caterpillar litigation, as reflected in the July 29,1976, letter from Russel R. Eggert. The letter then states:

“[Permission is herewith granted to the Pollution Control Board to appear through counsel of its own choice ...

Therefore, this Court is faced with a situation wherein the Attorney General, after due deliberation, granted permission to a State agency to retain outside counsel to appear on its behalf before a Court of this State.

Because the Board sought and obtained permission from the Attorney General to retain private counsel beforehand, the Attorney General retained his role of chief legal officer of the State, and his duties of directing the legal affairs of the State and its agencies. Far from hampering the execution of the Attorney General’s duties, the hiring of outside counsel permitted the Attorney General to accomplish his responsibility of ensuring that the Board was properly represented, when other considerations apparently made it difficult, inconvenient or impossible for him or his staff to do so personally.

The facts, now before this Court, further reflect that the Ill. App., 3d, entered an order pursuant to the “Attorney General Act” confirming Claimant, Hofer, as the substitute counsel for the Board. The propriety of Hofer’s appointment as counsel is therefore unquestioned.

The second count of the complaint filed herein seeks recovery of $14,786.70 under a theory of quantum meruit. It is established law in the Court of Claims that recovery against the State of Illinois cannot be had in quantum meruit. Schutte & Koerting Company, et al v. State of Illinois, 22 Ill.Ct.Cl. 591,626. Therefore, Claimant’s plea for relief under Count II of the complaint herein is hereby denied.

Accordingly, based upon the complaint and attached exhibits and the joint stipulation and attached exhibits, this Court hereby awards the Claimant, Roy E. Hofer, the amount of $8,134.20 in full payment and satisfaction for legal services rendered pursuant to the agreement (August 12,1976) and supplemental agreement (February 17, 1977) with the Illinois Pollution Control Board for representation in the Caterpillar litigation before the Ill. App., 3d.


text:
    (No. 77-CC-2385
    Bob Shelton, Claimant, v. State of Illinois, Respondent.

      Opinion filed June 28, 1978.

   Polos, C.J.

This is a claim brought by Bob Shelton, an inmate of Stateville Correctional Center, for the loss of certain items of personal property allegedly of the value of $20.45.

At the hearing of the cause, Claimant established by the preponderance of the evidence that on September 23,1977, he was a prisoner in the Joliet Correctional Center, Joliet, Illinois. On that date he was ordered transferred to the Stateville branch. At that time he was the owner of and had in his possession in his cell at Joliet various items of personal property. Prior to transfer, his property was inventoried by a guard and put in a paper bag and a box for transfer. The items in question are a pair of slacks and a pair of jeans purchased new at the Commissary on September 13,1977, for $20.45 and never worn. These were among the items placed in the paper sack.

Three weeks after arriving at Stateville he was given all of his personal property except the jeans and the slacks which were not in the paper bag.

Claimant duly filed a grievance, but the missing property was never found.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of and inmate transfer between penal institutions.

In Bonner v. Coughlin, 517 F. 2d 1311 (1975), our Court of Appeals acknowledged a prisoner’s rights to sue in Illinois Court of Claims for loss of property occasioned by the negligent acts of State employees.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App. 2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 1350 2d 172, at 174, as follows:

“An actual contract or one implied in fact, is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence. Claimant’s prima facie case, therefore, stands unrebutted.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $20.45.


text:
    (No. 78-CC-2446
    Roy E. Hofer, Claimant, v. State of Illinois, Respondent.

      Opinion filed October 4, 1978.

      Gary M. Ropski, Attorney for Claimant.
    William J. Scott, Attorney General; Francis M. Donovan, Assistant Attorney General, for Respondent.
   Per Curiam.

The Claimant in this case seeks recovery under a theory of contract in two counts. Both counts are founded upon a contract and supplement thereto between Claimant, Roy E. Hofer, of the law firm of Hume, Clement, Brinks, William and Olds, Ltd., (hereinafter referred to as the Hume Firm) and the Illinois Pollution Control Board (hereinafter referred to as the Board). The first count prays for an award of $21,684.76 pursuant to the terms of the contract and supplement thereto. The second count prays for an award of $29,956.01 under a theory of quantum meruit for the value of services rendered pursuant to the contract and supplement thereto. For purposes of this opinion only the first count will be considered.

This cause is before this Court on the basis of the complaint and exhibits filed on December 14,1977, and a joint stipulation of facts and attachments thereto entered into by all the parties. The complaint, joint stipulation and the associated exhibits reveal the following facts:

1. On December 30,1975, Richard W. Cosby, Chief of the Environmental Control Division of the Attorney General’s Office sent a letter to Jacob Dumelle, Chairman, Illinois Pollution Control Board, in which permission was granted to the Board to retain counsel to represent the Board in the Illinois Environmental Protection Agency v. Illinois Pollution Control Board case (hereinafter referred to as the First District litigation).
2. On June 10, 1976, Richard W. Cosby sent another letter to Jacob Dumelle in which permission was granted to the Board to retain counsel to represent the Board in the Peterson/Puritan appeal (hereinafter referred to as the Fourth District litigation).
3. Pursuant to the grants of authority from the Attorney General contained in said letters, the Board entered into two agreements (the First and Fourth District Agreements) with Roy E. Hofer on August 12,1976. The First District Agreement authorized Hofer to represent the Board and to incur disbursements necessary in Hofer’s judgment therefore in the First District litigation. The Board agreed to pay for the legal services rendered and disbursements incurred by Hofer and other lawyers and personnel of the Hume firm in representing the Board in the First District litigation, said legal services not to exceed $5,000.00 unless approved by the Board. No limit was placed on the amount of disbursements allowable according to Hofer’s judgment. The Fourth District Agreement was similar in substance except that the legal services and disbursements were for Hofer’s representing the Board before the 111. App., 4d litigation.
4. On January 28,1977, the Supreme Court of Illinois granted the Board’s petitions for leave to appeal in the First and Fourth District litigation.
5. On J anuary 28,1977, Hofer and the Board entered into two supplemental agreements (First and Fourth District Supplemental Agreements). In the First District Supplemental Agreement, the Board authorized Hofer and the Hume firm to provide legal services in representing the Board before the Supreme Court of Illinois in the First District litigation. The Board agreed to pay the disbursements authorized by Hofer and the legal services he and others of the Hume firm rendered on behalf of the Board in said litigation. The fee for said legal services was not to exceed $5,000.00 unless approved by the Board. No limit was placed on the amount of disbursements allowable according to Hofer’s judgment. The Fourth District Supplemental Agreement was similar in substance except that the legal services and disbursements were for Hofer’s representing the Board before the Illinois Supreme Court in the Fourth District litigation.
6. Claimant, Hofer, has provided the legal services required in the First and Fourth District Agreements and the supplements thereto, has incurred disbursements asa result thereof, and has performed all other obligations required of him by said agreements and supplemental agreements.
7. In fulfilling the terms of said agreements and supplemental agreements, Hofer and firm associates in the Hume firm spent a total of 523.25 hours working on the First and Fourth District litigation before the Ill. App., (First and Fourth Districts) and the Illinois Supreme Court. For this time, pursuant to said agreements and supplements thereto, Claimant seeks an award of $20,000.00 or approximately $28.22 per hour.
8. In fulfilling the terms of the agreements and Supplements thereto, Hofer incurred disbursements of $325.00 in the First District litigation, $261.00 in the Fourth District litigation, and $1,098.76 in the appeal of said litigation to the Illinois Supreme Court, for a total of $1,684.76. These disbursements were for Xeroxing, long distance telephone calls, filing fees and normal expenses associated with a Supreme Court appeal.
9. Claimant, Hofer’s, total claim in this case pursuant to the terms of the agreements and Supplements thereto with the Board is for $21,684.76.
10. The Respondent, the Board and the Claimant have entered into a joint stipulation agreeing that the Claimant, Roy E. Hofer, be awarded the sum of $21,684.76.

The award stipulated by the parties hereto is justified because the agreements and supplemental agreements were entered into with the permission of the Attorney General.

It is established law in the State of Illinois that the Attorney General “is the law officer of the people, as represented in the State Government, and its only representative in the Courts.” Fergus v. Russel, (1915), 270 Ill. 304; Stein v. Howlett(1972), 52 Ill. 2d 570; People ex rel. Scott v. Briceland, 65 Ill. 2d 485. See also 1970 Illinois Constitution, Article V, Section 15; Ill. Rev. Stat. ch. 14, para. 4. Pursuant to his position as the State’s sole legal officer, the Attorney General has the power to permit other attorneys to assist him to perform his responsibilities, such as those of representing a State agency, the Illinois Pollution Control Board.

It is apparent from the facts before this Court that prior to contracting with Mr. Hofer, the Board did seek the permission of the Attorney General to retain outside counsel. Two letters from Richard W. Cosby, Assistant Attorney General, granting such permission pre-date the agreements with Mr. Hofer. Regarding the First District litigation, the Board obtained authority from the Attorney General to retain outside counsel on December 30, 1975. Similarly, in the Fourth District litigation, the Attorney General withdrew his appearance on behalf of the Board on June 9, 1976, and granted permission to the Board to represent itself on June 10, 1976. Both the First and Fourth District Agreements between the Board and Mr. Hofer are dated August 12,1976.

Because the Board sought and obtained permission from the Attorney General to retain private counsel beforehand, the Attorney General retained his role of chief legal officer of the State, and his duties of directing the legal affairs of the State and its agencies. Far from hampering the execution of the Attorney General’s duties, the hiring of outside counsel permitted the Attorney General to accomplish his responsibility of ensuring that the Board was properly represented, when other considerations apparently made it difficult, inconvenient or impossible for him or his staff to do so personally.

As to the second count of the complaint filed in this action, Claimant prays for an award of $29,956.01 based on a theory of quantum meruit. It is established law in the Court of Claims that recovery cannot be had under quantum meruit against the State of Illinois. Schutte & Koerting Company, et al. v. State of Illinois, 22 Ill.Ct.Cl. 591,626. Therefore, Claimant’s recovery under Count II of the complaint herein is hereby denied.

Accordingly, the Claimant, Roy E. Hofer, is hereby awarded the amount of $21,684.76 in full payment and satisfaction for legal services rendered and disbursements incurred pursuant to the First District Agreement (August 12,1976), and Fourth District Agreement (August 12, 1976), and First District Supplemental Agreement (January 28,1977) and the Fourth District Supplemental Agreement (January 28,1977) between the Claimant and the Illinois Pollution Control Board for legal representation before the Illinois Appellate Courts, First and Fourth Districts and subsequently before the Illinois Supreme Court.


author: Polos, J.C.

text:
    (No. 77-CC-2458
    Delbert Scott, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 18, 1978.

   Polos, J.C.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

The record establishes that on July 26,1977, Claimant was in possession of a Panasonic AM FM radio and tape player, and a television set. These items had been purchased in November, 1976, and September, 1975, respectively, for a total of $194.00. On July 26, 1977, Claimant was taken from the Stateville Correctional Center to St. Joseph Hospital in Joliet, Illinois, and prison authorities took possession of the aforesaid property. The items were not returned to Claimant upon his return from the hospital.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App. 2d 90, 207 NE2d 84.

In Chesterfield, The Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $194.00.


text:
    (No. 77-CC-2491
    Louis C. Malone, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 2,1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant complains that he was deprived of the possession of a stereo tape player. On cross examination, Claimant admitted that prison officials had found his stereo after the instant claim was filed, and had offered to return it to him, but that he refused to accept return of the item.

As the property in question is no longer lost, and has been made available to Claimant, the Court finds that this claim has been rendered moot.

It is therefore ordered that this cause be, and hereby is, dismissed.


text:
    (No. 78-CC-0015
    Illinois Valley Sheltered Workshop, Claimant, v. State of Illinois, Respondent.

      Opinion filed August 9, 1978.

   This cause coming on to be heard on the motion of Respondent to dismiss, and the Court being fully advised in the premises.

It is hereby ordered that Respondent’s motion to dismiss be, and hereby is, denied.

It is further ordered, in view of the departmental report herein which admits liability on this claim, that Claimant be, and hereby is, awarded the sum of $360.00 in full satisfaction of its claim.


text:
    (No. 78-CC-0055
    James Thomas a/k/a James Pasley, Claimant, v. State of Illinois, Respondent.

      Order filed November 14, 1978.

   This cause coming to be heard on the motion of the Respondent to dismiss, due notice given to the Claimant, and the Court being fully advised, finds that pursuant to Rule 14 of the Court, the report of the Department of Corrections is prima facie evidence that the Respondent exercised ordinary care with regard to the deposit of the check at issue. The deposit of the check into the account of an individual by the same name of the Claimant does not create a cause of action against Respondent in the absence of an allegation that the duty of ordinary care owed to Claimant was breached. There is no allegation of any breach of duty owed to the Claimant.

It is hereby ordered that the motion of the Respondent to dismiss, be and the same is hereby granted and the complaint is dismissed.


text:
    (No. 78-CC-0359
    Mason & Meents Construction Co., Claimant, v. State of Illinois, Respondent.

      Opinion filed August 21, 1978.

   Per Curiam.

On August 3, 1978, this Court entered an order granting motion of Respondent to dismiss.

This order was based upon representation that the Claimant was a corporation which had filed its own claim.

Since the above order was entered, the Court has received a letter from Claimant, dated May 30, 1978, setting forth that Claimant is not a corporation but is a co-partnership.

The previous order of dismissal is hereby revoked and award is entered in the amount of $4,658.40 in favor of Claimant.


author: Holderman, J.

text:
    (No. 78-CC-0516
    James F. Shimeall, Claimant, v. State of Illinois, Respondent.

      Opinion filed March 15, 1979.

    Stanley K. Stewart, Attorney for Claimant.
    William J. Scott, Attorney General; Paul M. Senpiehl, Assistant Attorney General, for Respondent.
   Holderman, J.

This matter comes before the Court on complaint filed by Claimant for back salary allegedly due him as a result of a discharge. The claim covers wages lost from March 5,1973, through June 30,1977.

At the time of his discharge from his certified position, Claimant was a Technical Advisor V with the Department of Personnel. On approximately May 20, 1977, the Civil Service Commission of the State of Illinois, ruled that Claimant’s discharge from his certified position was improper and illegal and ordered the Department of Personnel to reinstate Claimant in his position.

Because of ambiguities in the Civil Service Commission’s order, in June, 1977, Claimant and a co-complainant, one Robert Rayford, filed an Administrative Review Action in the Circuit Court of Sangamon County, Illinois. In October, 1977, Claimant and the defendants in the Administrative Review Action, namely, the Civil Service Commission and the Department of Personnel, settled the Administrative Review Action, the written settlement agreement filed in the case providing in part as follows:

“2. Mr. James F. Shimeall will be reinstated as a Technical Advisor V, Pay Grade 25, Step 7, in the Department of Personnel, effective November 15, 1977. Mr. Shimeall has been offered and accepted a position with another State Agency; and Mr. Shimeall will apply for voluntary reduction and transfer to that position in another State Agency effective November 16,1977.
3. Mr. Shimeall and Mr. Rayford are entitled to full back salary and benefits for the period from March 5,1973, to the effective dates of Mr. Shimeall’s transfer and Mr. Rayford’s resignation, subject to mitigation for earnings received from other employment and to other rules and requirements of the Court of Claims of the State of Illinois.
4. Mr. Shimeall and Mr. Rayford will file their claims in the Court of Claims for salary and benefits for the period from March 5,1973, to June 30, 1977. Said claims shall be for the salary and benefits of paragraph three less the following:
a. Accrued vacation time for Mr. Shimeall totalling six weeks which Mr. Shimeall will retain and which the State Agency to which he will transfer has agreed to accept.
5. Department of Personnel will immediately process a supplemental payroll to pay Mr. Shimeall and Mr. Rayford the following amounts, which represent full compensation for the time period from July 1,1977, through October 31,1977, for Mr. Rayford, and from July 1,1977, through November 15, 1977 for Mr. Shimeall:
a. Mr. Shimeall: $8,550.50
b. Mr. Rayford: $4,205.00
It is understood that the Department shall deduct from the above-stated amounts appropriate deductions for Federal and State Income tax, FICA (Federal Insurance Contributions Act), and State Employees’ Retirement System of Illinois.
6. a. Mr. Shimeall and Mr. Rayford will receive full-time credit toward their retirement for the period from March 5,1973, through October 31,1977, for Mr. Rayford, and through November 15,1977, for Mr. Shimeall.
b. Mr. Shimeall and Mr. Rayford are entitled to pay back to the State Employees Retirement System of Illinois, all contributions required to receive said credit and any amounts previously withdrawn. Said repayments shall be due to the System when the award from the Court of Claims is received pursuant to the Rules and Regulations of the System.”

It is acknowledged by the Respondent that the gross pay due Claimant for the period March 5,1973, through June 30,1977, was $124,690.64.

Claimant introduced into evidence copies of his federal income tax returns for the years 1973 through and including 1977, and gave testimony as to his earnings during such period. It is found that Claimant’s admit their claim should be reduced by $30,517.89 for mitigation purposes. Included in the total mitigation earnings submitted by Claimant was the sum of $2,092.00 partnership earnings for the period of January 1, 1977, to July 1, 1977. However, his 1040 tax return showed an income of $10,292.00 for 1977 from the partnership. Lacking any other reasonable approach, we are prorating one-half of that amount, or $5,146.00, to the first six months of 1977. Thus, instead of $2,092.00 earnings in mitigation for this period, we are adding an additional $3,054.00. This makes a total of $33,571.58 in mitigation, instead of $30,517.89. The State argues that a $5,000.00 withdrawal by the Claimant from the partnership in December should be charged to the extent of 80 percent to the time before November 15, 1977, since 80 percent of the work of a certain condemnation litigation was performed prior to then. This is not convincing as it would then be necessary to audit the books of the partnership on the accrual basis to determine exactly how much was earned before a certain date and how much after. While our approach has to be logical and consistent with acceptable accounting practices, we are making our findings consistent with the cash basis method of bookkeeping followed by the firm in 1977 and previous years.

Claimant makes certain additional claims. He claims what would have been the State’s contribution to health and life insurance policies if he had been on the State payroll from March 5,1973, through June 30, 1977. While the guideline furnished by the Circuit Court of Sangamon County, Illinois, to this Court sets forth that Claimant is entitled to full back salary and benefits, to date, this Court has never included in back salary and benefit awards, any sum for the State’s contribution to the employees’ group hospital and life insurance coverage. This part of the claim is denied.

Claimant also claims pay for 45 holidays and 30 vacation days during the period March 5,1973, through June 30, 1977. There is no basis for Claimant’s claim for holidays. As brought out in the testimony, the semimonthly pay period for which State employees are paid includes all holidays. If an employee is required to work on a holiday he is entitled to compensatory time off for that particular holiday, or he can add it to his vacation time as an extra day. However, since Claimant was not working for the State during the period of his wrongful discharge, obviously he was not required to work on holidays. Thus he earned no compensatory or vacation time for such holiday work. That portion of Claimant’s additional claim is denied.

As part of Claimant’s settlement with the Department of Personnel he was awarded 30 days accrued vacation time to be accepted by the State Agency to which he transferred. He claims an additional 30 days because a full 60 days vacation time was lost. There is nothing in the record to indicate that Claimant should be barred from this additional claim. In Harrington v. State 30 Ill.Ct.Cl. 67, this Court recognized accrued vacation pay as proper for a claim. Claimant is awarded $3,570.00 for the 30 days vacation pay.

In summary, this Court makes an award based on the following gross figures:

Gross pay due...................... $124,690.64
Plus vacation pay due.............. 3,570.00
Total .......................... $128,260.64
Less mitigation earnings........... 33,571.58
Gross Award................... $ 94,689.06

Accordingly, there is hereby awarded to Claimant the amount of $94,689.06 for back salary, plus the State’s contribution to the State Employees’ Retirement System and to FICA. From the aforesaid award to Claimant there shall be deducted amounts for the Claimant’s Federal and State income tax withholding and amounts for the Claimant’s contributions to the State Employees’ Retirement System and to FICA.


text:
    (No. 78-CC-0523
    John Parsons, Claimant, v. State of Illinois, Respondent.

      Opinion filed March 15, 1979.

    Shimeall and Stewart, Attorneys for Claimant.
    William J. Scott, Attorney General; Paul M. Sengpiehl, Assistant Attorney General, for Respondent.
   Holderman, J.

This matter comes on before the Court on a complaint for wages allegedly due him as a result of the layoff as provided for in Ill. Rev. Stat., Ch. 127, Sec. 63b 111.

From the stipulation and evidence introduced at the hearing, it appears:

A. That on October9,1973, Claimant was discharged from his certified position as Executive V, Grade 25 with the Industrial Commission.
B. That on October 16,1973, Claimant filed an appeal with the State Civil Service Commission of Illinois alleging that his removal from his position was illegal and fraudulent and contrary to the Personnel Code of Illinois.
C. That subsequently the Civil Service Commission of the State of Illinois conducted a hearing into Claimant’s removal from his certified position.
D. That on May 23,1975, the Civil Service Commission of the State of Illinois ruled that Claimant’s removal was justified.
E. That on June 26,1975, Claimant appealed said Ruling to the Circuit Court of Cook County under the provision of the “Administrative Review Act.”
F. That on March 31, 1976, the Circuit Court of Cook County overturned the decision of the Civil Service Commission and ordered Claimant to be put back in his job.
G. That on April 15,1976, the State of Illinois appealed said order of the Circuit Court of Cook County to the Appellate Court of Illinois 1st District.
H. That on June 29, 1977, the Appellate Court of Illinois 1st District affirmed and upheld the decision of the Circuit Court of Cook County and ordered Claimant to be reinstated. On July 1,1977, Claimant was reinstated to his certified position by the Industrial Commission of the State of Illinois.

The only issue before the Court is the amount of compensation as wages due the Claimant because of his wrongful discharge. It was stipulated that the amount due as wages amounted to $102,621.35. To be deducted from this sum is the amount of earnings he had while away from his State of Illinois employment, which sum is to be deducted in mitigation of his total claim, as provided for in the Act.

While employed by the State of Illinois, Claimant also worked as a consultant to various companies in the evenings and on weekends. Some time after being laid off Claimant obtained full-time employment with the Federal Reserve Board. He received from his full-time employer compensation, which, when added to his unemployment compensation, amounted to the sum of $69,788.27. While working full-time with the Federal Reserve Board he continued to do consulting work evenings and on weekends, just as he had while working for the State.

During the period prior to his employment with the Federal Reserve Board, Claimant worked a total of 22 hours at $50.00 an hour rate, receiving $1,100.00 for such consulting work. Respondent claims that his $1,100.00 should be deducted from the sum of $32,833.08, which is the amount Respondent claims is due him after deducting his regular employment wages from the stipulated wages which would have been paid him by the State of Illinois.

Respondent bases this on the fact that this was the only amount of earnings he received during that particular off period.

In Wagner v. State 26 Ill.Ct.Cl. 402, we allowed a discharged employee to retain for himself, wages he earned during hours which were in excess of the hours he worked for the State. While working for the State he worked 45 hours a week. When suspended he worked 60 hours a week. The Court did not require him to use in mitigation the extra wages earned during the extra 15 hours. The present case is similar in spirit and to compel Claimant to account for wages made during extra hours would be unreasonable.

The Court holds that Claimant is entitled to back salary in gross amount of $102,621.35 less $69,788.27 income earned, including unemployment compensation, in mitigation of the loss.

Accordingly, there is hereby awarded to Claimant the amount of $32,833.08 for back salary, plus the State’s contribution to the State Employees’ Retirement System and to FICA. From the aforesaid award to Claimant there shall be deducted amounts for the Claimant’s Federal and State income tax withholding and amounts for the Claimant’s contributions to the State Employees’ Retirement System and to FICA.


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    (No. 78-CC-0586
    Douglas Brown, Claimant, v. State of Illinois, Respondent.

      Opinion filed February 18, 1979.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Ilinois, and that the State is liable as a bailee for the return of that property.

The record herein establishes by the preponderance of the evidence that in July, 1977, Claimant requested permission for a color television set, a gift from friends. He had in his cell at the time a black and white 12 inch Admiral costing $99.00. Residents are not allowed to have two television sets in their cells, so Claimant surrendered the black and white Admiral set to Mr. Elmer L. Maxwell, Property Control Office, to be picked up by a friend. On September 4,1977, employees at the front gate erroneously gave the television set to the wrong person. The institution has never recovered the television set.

Additionally a pair of work shoes costing $39.93 were confiscated from Claimant on January 22,1977, by officers of the institution, and never returned, and a sterling silver neck chain costing $30.00 was confiscated from Claimant by officers of the institution on May 8,1977, and never returned.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90,207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

At the trial of the cause the State presented no testimony to explain the failure of the institution to return Claimant’s items of property to him, and presented no testimony of its freedom from negligence.

It is therefore ordered that Claimant be, and hereby is awarded the sum of $168.95.


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    (No. 78-CC-0623
    Dr. Ralph H. Council, Claimant, v. State of Illinois, Respondent.

      Order filed on November 29, 1978.

   This matter comes before the Court on a motion by Respondent to dismiss this cause.

In a recent case, Jewel Food Stores, Division of Jewel Companies, Inc. v. State of Illinois, No. 77 CC 095, this Court made a ruling in cases of this nature.

Based upon said decision, Respondent’s motion to dismiss is hereby denied and an award is entered in the amount of $236.41 in favor of Claimant.


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    (No. 78-CC-0648
    Evelyn Cole, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 29,1978

   Per Curiam.

This matter comes before the Court on a stipulation by Respondent which states as follows:

“1. That the complaint herein originally sought $144.00 in license fee overpayments.
2. That pursuant to an order of the Court dated August 3, 1978, the allowable recovery on this claim was reduced to $24.00.
3. That according to the report submitted by the Illinois Secretary of State, dated May 10,1978, Claimant in fact made overpayments of her license fee.
4. That under Ill. Rev. Stat., Ch. 95 1/2, Sec. 3-824 (6), 1977, the Secretary of State is authorized to make refunds of overpayments made within six months prior to a refund application.
5. That the $24.00 cannot be directly refunded by the Secretary of State in that the amounts were paid by Claimant one and two years ($12.00 each year) before she requested a refund.
6. That under Ill. Rev. Stat., Ch. 95 1/2 Sec. 3-824 (d), 1977, the Claimant must apply to the Court of Claims for this refund.
7. That there being no disputed questions of fact, Respondent agrees to an entry of an award of $24.00.

There being no matters under dispute, an award is hereby entered in the amount of $24.00.


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    (No. 78-CC-0701
    Earnest Jennings, Claimant, v. State of Illinois, Respondent.

      Opinion filed April 6, 1979.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

The record herein establishes that on August 13, 1976, when he arrived at the Joliet Correctional Center, penitentiary authorities took from Claimant his toliet articles and cigarettes having a value of $15.43. Claimant was told that he would receive the articles shortly after processing, but the articles were never returned to him.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90,207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

Respondent has presented no evidence to explain the disappearance of Claimant’s property, and no testimony to rebut the presumption of negligence that arises from the loss of the bailed property.

It is therefore ordered that Claimant be, and hereby is awarded the sum of $15.43.


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    (No. 78-CC-0707
    Edward M. Campbell, Sr., Claimant, v. State of Illinois, Respondent.

      Opinion filed February 1, 1979.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of the property.

The record herein establishes that on January 17, 1977, Claimant, while confined at Stateville Correctional Center, had in his possession a 12 inch black and white Panasonic television set for which he had paid $82.50. On said date he went out on a writ to the Cook County Jail where he remained until February, 1978. In February, 1978, he was returned to Stateville.

During his absence from Stateville, Claimant’s television was confiscated by prison guards, during the course of a shakedown inspection, and it has never been returned to him.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of the cause the State presented no testimony to explain the failure of the institution to return Claimant’s items of property to him, and presented no testimony of its freedom from negligence.

Claimant’s prima facie case, therefore, stands unrebutted.

It is therefore ordered that Claimant be, and hereby is awarded the sum of $82.50.


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    (No. 78-CC-0844
    Charles Hill, Claimant, v. State of Illinois, Respondent.

      Opinion filed April 6, 1979.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of the property.

The record herein establishes that on December 20, 1976, while confined at Stateville Correctional Center, Claimant had in his possession a General Electric Clock Radio for which he paid $19.97. On that date the radio was taken from him by a guard, because it was playing too loud. The disciplinary committee denied him the use of the radio for 60 days, and at the end of the 60-day period, the radio could not be found.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of the cause the State presented no testimony to explain the failure of the institution to return Claimant’s items of property to him, and presented no testimony of its freedom from negligence.

Respondent has conceded liability in this matter, and has presented no testimony to explain the loss of Claimant’s property.

It is therefore ordered that Claimant be, and hereby is awarded the sum of $19.97.


text:
    (No. 78-CC-1511
    Nadine Y. Feader/Weinstock, Claimant, v. State of Illinois, Respondent.

      Opinion filed May 31, 1979.

   Per Curiam.

In the case of John J. Beard v. State of Illinois, 32 Ill.Ct.Cl.__, the Respondent stipulated, in part, as follows:

“This case arises out of an RC 14 Collective Bargaining Agreement. The effective dates of the agreement are July 1, 1977, to June 30, 1979. The relevant provision is found in Article XXXIII, Section 4 on page 62 of the Agreement which reads as follows:

“All employees in the bargaining unit shall receive a lump sum payment of $10.00 per month for each $10,000,000.00 ‘excess’ of actual revenues over projections as determined under Section 3, up to a maximum of $50.00 per month (a maximum payment of $600.00 for the year).
Any such payment shall be applied retroactively to all employees for all time paid during Fiscal Year 1978, and the monthly increase shall be added to the base rates for all classifications and steps set out in Appendix A, effective July 1, 1978. Employees not on the active payroll for the full 12 months of Fiscal Year 1978 shall be entitled to the lump sum retroactive payment on a pro-rated basis. Any employee who has voluntarily quit or been discharged during Fiscal Year 1978 will be required to make claim for retroactive payments due within 60 days of the end of the Fiscal Year to the Employer.”

Pursuant to said Article XXXIII, Section 4 the employees’ union demanded a lump sum payment to the employees. The Department resisted the amount of the increase demanded and the matter was eventually settled by an arbitrator who ruled that $40.00 per month was to be paid retroactively to each employee for each month of service served during the Fiscal Year 1978. Subsequently, the Eightieth General Assembly passed House Bill 3237 which provided the funds for the payment of the retroactive lump sum payment to the employees.

The issues before this Court are as follows:

1. Does Ch. 127, para. 145 prohibit the retroactive pay envisioned by Article XXXIII, Section 4 of RC 14 Collective Bargaining Agreement?

2. May the Director of Personnel agree to and abide by an arbitrator’s decision?

Chapter 127, para. 145 paraphrased provides in essential part as follows:

“Amounts paid from appropriations for personal service of any officer or employee of the State,* * *, shall be considered as full payment for all services rendered between the dates specified in the payroll * * * which payment would constitute in fact an additional payment for work already performed and for which remuneration had already been made, except that wage payments made pursuant to the application of the prevailing rate principle or based upon the effective date of the collective bargaining agreement between the State, or a State agency and an employee group shall not be construed as an additional payment for work already performed.”

In view of the fact that the retroactive pay provided for in the collective bargaining agreement was based upon the effective date of the collective bargaining agreement, the relevant section does not violate Ill. Rev. Stat., Ch. 127, para. 145.

As to the second issue, as to whether the Director of Personnel has the authority to agree to and abide by arbitration, Respondent would like to point out the following. Nowhere in the Personnel Code is the Director given the authority to delegate or relegate his powers or responsibilities to determine or negotiate working conditions, etc. However, as set forth earlier, the facts in this claim are that the General Assembly passed an appropriation bill for the sole purpose of the payment of this lump sum retroactive payment to these employees, thereby ratifying and thereby validating by subsequest legislation the actions of the Director of Personnel and making moot the question as to his authority to submit to arbitration.

The Claimant in the instant case, John Beard, was employed by the Department of Public Aid during Fiscal Year 1978 from July 20,1977, to January 31,1978, as a Clerk II, a classification on the RC-14 bargaining unit. Inasmuch as this Claimant was not in active status for all 12 months of Fiscal Year 1978, Article XXXIII, Section 4 of the RC14 contract agreement provides that such employees are entitled only to a lump sum retroactive payment on a pro-rated basis for the number of months worked contingent upon their making claim for the retroactive benefits within 60 days of the end of Fiscal Year 1978.

This Claimant filed his claim on October 6, 1978 (not within the original 60 days), however, the Director of Personnel extended the filing date to October 14, 1978.

This Court adopts the comments of the Respondent, in the above stipulation, insofar as the Beard case is analogous to the present case, as the position of this Court on the law.

The Claimant in the instant case, Nadine Y. Reader/W einstock was employed by the Department of Public Aid. This Claimant, as was Mr. Beard, was employed for only a portion of the period of the retroactive benefits and is, therefore, entitled to only a prorated payment.

Accordingly, there is hereby awarded to Claimant the amount of $240.00 plus the State’s contribution to the State Employee’s Retirement System and to F.I.C.A. From the aforesaid award to Claimant there shall be deducted amounts for the Claimant’s Federal and State income tax withholding and amounts for the Claimant’s contributions to the State Employees’ Retirement System and to F.I.C.A.


text:
    (No. 78-CC-1048
    Charles F. Kelly, Claimant, v. State of Illinois, Respondent.

      Order filed September 29, 1978.

   This matter comes before the Court on a motion filed by Respondent to dismiss the complaint.

As basis for said motion, Respondent calls attention to the fact that the accident giving rise to the present cause of action occurred on December 1,1976, as set forth in the complaint.

Statutory notice was filed ten months and six days after the accident occurred.

Respondent’s motion to dismiss sets forth as follows:

“That Ill. Rev. Stat. Ch. 37, Para. 439.22-1,1977 provides in pertinent part that:
“Actions for personal injuries — Notice — Contents Para. 22-1. Within six months from the date that such an injury was received or such cause of action accrued, any person who is about to commence any action in the Court of Claims against the State of Illinois... for damages on account of any injury to his person shall file (a Notice of Intent to Sue)...”

Respondent further sets forth:

“That Ill. Rev. Stat. Ch. 37, Para. 439-22-2,1977 provides in pertinent part that:
“If the notice provided for by Section 22-1 is not filed as provided in that Section, any such action commenced against the State of Illinois... shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further action in the Court of Claims for such personal injury...”

The Court finds that Claimant has failed to comply with the statutory notice requirement, motion to dismiss is granted and said cause dismissed.


text:
    (No. 78-CC-1057
    Craig Springfield, Claimant, v. State of Illinois, Respondent.

      Order filed July 25,1978.

   Per Curiam.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that his property was lost, misplaced, stolen or destroyed while he was imprisoned, and that the loss of his property was proximately caused by the negligence of employees of the State of Illinois.

In Bargas v. State, 32 Ill.Ct.Cl._, this Court held that the State of Illinois does not owe a duty to inmates of its penal institutions to safeguard property which inmates keep in their cells. In the companion case of Doubling v. State, 32 Ill.Ct.Cl.1, we further held that only where the State takes actual physical possession of the property of an inmate, as during the course of his transfer between penal institutions, does a duty arise to use reasonable care in protecting the inmate’s property.

The complaint in this action does not allege that Claimant’s property was delivered to agents of the State, but rather that the property disappeared or was damaged in Claimant’s cell. Under our reasoning in Bargas v. State, supra, and Doubling v. State, supra, the complaint herein fails to state a claim upon which relief can be granted.

It is therefore ordered that this cause be, and hereby is, dismissed.


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    (No. 78-CC-1112
    Carl Welchman, Claimant, v. State of Illinois, Respondent.

      Order filed July 25,1978.

   Per Curiam.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that his property was lost, misplaced, stolen or destroyed while he was imprisoned, and that the loss of his property was proximately caused by the negligence of employees of the State of Illinois.

In Bargas v. State, 32 Ill.Ct.Cl__, this Court held that the State of Illinois does not owe a duty to inmates of its penal institutions to safeguard property which inmates keep in their cells. In the companion case of Doubling v. State, 32 Ill.Ct.Cl.1, we further held that only where the State takes actual physical possession of the property of an inmate, as during the course of his transfer between penal institutions, does a duty arise to use reasonable care in protecting the inmate’s property.

The complaint in this action does not allege that Claimant’s property was delivered to agents of the State, but rather that the property disappeared or was damaged in Claimant’s cell. Under our reasoning in Bargas v. State, supra, and Doubling v. State, supra, the complaint herein fails to state a claim upon which relief can be granted.

It is therefore ordered that this cause be, and hereby is, dismissed.


text:
    (No. 78-CC-l 175
    George Coles, Claimant, v. State of Illinois, Respondent.

      Order filed August 9, 1979.

   Per Curiam.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that his property was lost, misplaced, stolen or destroyed while he was imprisoned, and that the loss of his property was proximately caused by the negligence of employees of the State of Illinois.

In Bargas v. State, 32 Ill.Ct.Cl.__, this Court held that the State of Illinois does not owe a duty to inmates of its penal institutions to safeguard property which inmates keep in their cells. In the companion case of Doubling v. State, 32 Ill.Ct.Cl.1, we further held that only where the State takes actual physical possession of the property of an inmate, as during the course of his transfer between penal institutions, does a duty arise to use reasonable care in protecting the inmate’s property.

The complaint in this action does not allege that Claimant’s property was delivered to agents of the State, but rather that the property disappeared or was damaged in Claimant’s cell. Under our reasoning in Bargas v. State, supra, and Doubling v. State, supra, the complaint herein fails to state a claim upon which relief can be granted.

It is therefore ordered that this cause be, and hereby is, dismissed.


text:
    (No. 78-CC-1189
    Arthur J. Inman, Claimant, v. State of Illinois, Respondent.

      Order filed October 23, 1978.

   This cause coming on to be heard on the motion of the Respondent and the Court being fully advised in the premises find that the legislature has failed to appropriate funds for the purpose of paying the type of fee claimed herein.

Chapter 38, Section 1005-2-4 (c) (2) provides as follows:

“(2) Upon filing with the Court of a verified statement of legal services rendered by the private attorney appointed pursuant to paragraph (1) of this sub-section, the Court shall determine a reasonable fee for such services. If the defendant is unable to pay the fee, the Court shall enter an order upon the State to pay the entire fee or such amount as defendant is unable to pay from funds appropriated by the General Assembly for that purpose.” (Emphasis added)

The statute is clear that the fee claimed herein may be awarded only from funds appropriated by the General Assembly for that purpose and inasmuch as funds were not appropriated there can be no award.

It is therefore ordered that this case be and the same is hereby dismissed.


text:
    (No. 78-CC-1223
    George McLellan, Claimant, v. State of Illinois, Respondent.

      Order filed August 9, 1978.

   Per Curiam.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that his property was lost, misplaced, stolen or destroyed while he was imprisoned, and that the loss of his property was proximately caused by the negligence of employees of the State of Illinois.

In Bargas v. State, 32 Ill.Ct.Cl.__, this Court held that the State of Illinois does not owe a duty to inmates of its penal institutions to safeguard property which inmates keep in their cells. In the companion case of Doubling v. State, 32 Ill.Ct.Cl.1, we further held that only where the State takes actual physical possession of the property of an inmate, as during the course of his transfer between penal institutions, does a duty arise to use reasonable care in protecting the inmate’s property.

The complaint in this action does not allege that Claimant’s property was delivered to agents of the State, but rather that the property disappeared or was damaged in Claimant’s cell. Under our reasoning in Bargas v. State, supra, and Doubling v. State, supra, the complaint herein fails to state a claim upon which relief can be granted.

It is therefore ordered that this cause be, and hereby is, dismissed.


text:
    (No. 78-CC-1262
    Willie Donnie Scales, Claimant, v. State of Illinois, Respondent.

      Order filed. September 11, 1978.

   Per Curiam.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that his property was lost, misplaced, stolen or destroyed while he was imprisoned, and that the loss of his property was proximately caused by the negligence of employees of the State of Illinois.

In Bargas v. State, 32 Ill.Ct.Cl.__, this Court held that the State of Illinois does not owe a duty to inmates of its penal institutions to safeguard property which inmates keep in their cells. In the companion case of Doubling u. State, 32 Ill.Ct.Cl.1, we further held that only where the State takes actual physical possession of the property of an inmate, as during the course of his transfer between penal institutions, does a duty arise to use reasonable care in protecting the inmate’s property.

The complaint in this action does not allege that Claimant’s property was delivered to agents of the State, but rather that the property disappeared or was damaged in Claimant’s cell. Under our reasoning in Bargas v. State, supra, and Doubling v. State, supra, the complaint herein fails to state a claim upon which relief can be granted.

It is therefore ordered that this cause be, and hereby is, dismissed.


text:
    (No. 78-CC-1269
    James Ramsey, Claimant, v. State of Illinois, Respondent.

      Opinion filed February 1,1979.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of the property.

The record herein establishes that on December 7, 1976, Claimant, while confined at Stateville Correctional Center had in his possession an eight track, AM/FM tape player for which he had paid $119.98. At about four o’clock p.m. on said day, his tape player was taken from him by a guard, because he was playing it too loud. The disciplinary committee denied him the use of the tape player for 90 days. At the end of the 90 days the tape player could not be found in the property control room, and has never been returned to Claimant.

The Respondent has conceded liability, and Claimant’s claim is fully documented by Exhibits attached to complaint.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $119.98.


text:
    (No. 78-CC-1292
    John E. Butcher, Claimant, v. State of Illinois, Respondent.

      Order filed September 11, 1978.

   Per Curiam.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that his property was lost, misplaced, stolen or destroyed while he was imprisoned, and that the loss of his property was proximately caused by the negligence of employees of the State of Illinois.

In Bargas v. State, 32 Ill.Ct.Cl.__, this Court held that the State of Illinois does not owe a duty to inmates of its penal institutions to safeguard property which inmates keep in their cells. In the companion case of Doubling v. State, 32 Ill.Ct.Cl.1, we further held that only where the State takes actual physical possession of the property of an inmate, as during the course of his transfer between penal institutions, does a duty arise to use reasonable care in protecting the inmate’s property.

The complaint in this action does not allege that Claimant’s property was delivered to agents of the State, but rather that the property disappeared or was damaged in Claimant’s cell. Under our reasoning in Bargas v. State, supra, and Doubling v. State, supra, the complaint herein fails to state a claim upon which relief can be granted.

It is therefore ordered that this cause be, and hereby is, dismissed.


text:
    (No. 78-CC-1306
    Marzell Reed, Claimant, v. State of Illinois, Respondent.

      Order filed November 2, 1978.

   Per Curiam.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that his property was lost, misplaced, stolen or destroyed while he was imprisoned, and that the loss of his property was proximately caused by the negligence of employees of the State of Illinois.

In Bargas v. State, 32 Ill.Ct.Cl.__, this Court held that the State of Illinois does not owe a duty to inmates of its penal institutions to safeguard property which inmates keep in their cells. In the companion case of Doubling v. State, 32 Ill.Ct.Cl.1, we further held that only where the State takes actual physical possession of the property of an inmate, as during the course of his transfer between penal institutions, does a duty arise to use reasonable care in protecting the inmate’s property.

The complaint in this action does not allege that Claimant’s property was delivered to agents of the State, but rather that the property disappeared or was damaged in Claimant’s cell. Under our reasoning in Bargas v. State, supra, and Doubling v. State, supra, the complaint herein fails to state a claim upon which relief can be granted.

It is therefore ordered that this cause be, and hereby is, dismissed.


text:
    (No. 78-CC-1307
    Leo Palmeri, Claimant, v. State of Illinois, Respondent.

      Opinion filed May 8, 1979.

    Patrick J. Cadigan, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

This claim arises out of the purchase of a State motor vehicle from the Illinois Department of Administrative Services.

This Court Finds:

1. That a stipulation of fact was entered into by the Claimant and the Illinois Department of Administrative Services. These facts were later introduced into evidence at a hearing, and were uncontraverted by the Respondent. These facts are as follows:

a. That on June 24,1978, the Respondent held an auction of surplus State vehicles at the State Fairgrounds in Springfield, Illinois.

b. That at the time and place aforesaid, a certain 1967, GMC bus with Vin No. SDH 4502043 was displayed for sale by Respondent; that said vehicle as offered for display had a certain mileage number written on the windshield of said vehicle.

c. That the Respondent, although not obligated to furnish an odometer certificate did furnish one following the conclusion of the auction.

d. That the vehicle in question had previously been used by the Department of Mental Health and Developmental Disabilities and the maintenance records for the vehicle were not obtained by Respondent prior to the State vehicle auction of June 24,1978.

e. That the odometer reading of 44,656 miles was inaccurate, that the original odometer had been replaced in 1972 by Mental Health and that the vehicle actually had in excess of 300,000 miles.

f. That the estimated fair market value of the vehicle, considering the need for a major engine overhaul and the true mileage, is $500.00.

g. That the vehicle was purchased at the State auction on June 24,1978 for $4,500.00.

2. The testimony of Claimant proved out these facts as stated in No. 1 above. The Claimant was qualified as an expert witness and testified that the true market value of the vehicle in question was $500.00. He also stated that the vehicle was tendered back to the State for the purchase price, but was refused.

3. The State, by counsel, cross-examined Claimant but his testimony remained uncontravented. The State offered no evidence or rebuttal witnesses.

4. The right to file briefs were waived by counsel for both parties.

It is hereby ordered that the sum of $4,000.00 be, and is hereby awarded to Claimant, Leo Palmeri, in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


text:
    (No. 78-CC-1325
    Robert Cladwell, Claimant, v. State of Illinois, Respondent.

      Opinion filed February 15, 1979.

   Per Curiam.

The record in this cause indicated the purpose of the expenditure by the Department of Transportation for which this claim was filed was set forth in Case #AA-105-78 before the Civil Service Commission of the State of Illinois and therein the commission held the petitioner was improperly classified as a Clerk IV when in fact the proper classification should have been Safety Responsibility Analyst I.

The Attorney General filed an extensive Memorandum of Law to which this Court subscribes, in the main. The text of the Memorandum with certain deletions by the Court, is as follows:

“This claim arises out of an employee request for a job audit and reallocation to a higher job classification, and subsequent claim for retroactive salary commensurate with a retroactive reallocation.

The Claimant in the case at bar pursued his request for reallocation through the remedy provided by the Civil Service Commission where he was found to have been entitled to be reallocated.

Following the Civil Service Commission ruling, the Department of Personnel determined the Claimant to be entitled to certain back pay and arranged for payment of retroactive salary differential for the then current fiscal period and instructed him that he would have to go to the Court of Claims for the differential falling in the lapsed fiscal period.

The amount claimed is $812.00 and is from the period of time April 16, 1977 through June 30,1978.

Ill. Rev. Stat., Ch. 127, Para. 145 provides as follows:

“Amounts paid from appropriations for personal service of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the dates specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made, except that wage payments made pursuant to the application of the prevailing rate principle or based upon the effective date of a collective bargaining agreement between the State, or a State agency and an employee group shall not be construed as an additional payment for work already performed.” (Emphasis added.)

The first part of the above cited statute is a clear and unequivocal prohibition of any additional payments “for work already performed” for payroll periods “for which remuneration had already been made,” and presumably accepted, while the latter portion makes two exceptions to the general prohibition. The two exceptions are the retroactive payment to tradesmen who are paid in accordance with the pay scale prevailing in the geographic area of their employment, and the second exception has to do with claims for retroactive pay “based upon the effective date of a collective bargaining agreement.”

Neither of these exceptions are involved in this case. This case involves an administrative error in failing to properly classify and compensate the Claimant for the work performed.

It is the position and opinion of the Attorney General that it was not the intent of the Legislature that para. 145 of Ch. 127 bar this Court from granting recoveries in cases arising out of grievances for reallocation or reclassification.

This Court has in the past granted awards for retroactive salary adjustment in cases involving clerical errors in either the calculation of a payroll voucher or where an automatic annual pay increase was erroneously missed.

In the case of Poskus v. State of Illinois, 26 Ill.Ct.Cl. 107, this Court awarded a half-time doctor a retroactive salary adjustment, after quoting from para. 145, stating in part:

“Nowhere is it contended that Claimant is requesting additional compensation for services performed, or that he has performed extra services. He is not asking payment for more than was appropriated, or for more than his contract of employment specifically provided, i.e., half the salary of a full-time physician. Because the contract of work was in a definite amount, and the sum paid to him by Respondent was admittedly below this amount, it cannot be contended that he was ‘apparently paid for services in full.’ Respondent’s agents have clearly established that the sole reason for the nonpayment of the requested amount was a mistake. They have further established that Claimant was entitled to the sum of $1,812.25, which would have been paid to him but for Respondent’s mistake. Respondent cannot profit from its own errors.”

In the case at bar, not only should this claim be awarded because of the State’s error in allocation but it should be granted because it is not prohibited by Ch. 127, para. 145.

As stated earlier, it is the opinion of the Attorney General that the Legislature did not intend that para. 145 of Ch. 127 provide a means by which errors, either clerical or otherwise, made by the State work for the benefit of the State at the expense of its employee.

A cardinal rule of statutory construction is to ascertain and give effect to the true intent and meaning of the Legislature enacting a law. Electrical Contractors Association of the City of Chicago v. Illinois Building Authority, 33 Ill. 2d, 587. Where an employee is erroneously allocated to a lower paying position than his duties call for, he is being erroneously paid too low a salary and has, therefore, not been previously paid for services performed. As such retroactive payments would not be payments ‘for which remuneration had already been made’ the exclusion contained in para. 145 would not apply.

After having reviewed the record in this matter including the joint stipulation of the parties, we find that Claimant is entitled to back salary in the gross amount of $812.00 plus employer contributions of $63.01 for a total employee benefit of $875.01 which should be disbursed by the Comptroller and credited as follows:

The Claimant is, therefore, granted an award by this Court in the amount of $812.00 gross salary plus fringe benefits as set forth above.


text:
    (No. 78-CC-1332
    Zack Morris, Jr., Claimant, v. State of Illinois, Respondent.

      Order filed November 2, 1978.

   Per Curiam.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that his property was lost, misplaced, stolen or destroyed while he was imprisoned, and that the loss of his property was proximately caused by the negligence of employees of the State of Illinois.

In Bargas v. State, 32 Ill.Ct.Cl.__, this Court held that the State of Illinois does not owe a duty to inmates of its penal institutions to safeguard property which inmates keep in their cells. In the companion case of Doubling v. State, 32 Ill.Ct.Cl.1, we further held that only where the State takes actual physical possession of the property of an inmate, as during the course of his transfer between penal institutions, does a duty arise to use reasonable care in protecting the inmate’s property.

The complaint in this action does not allege that Claimant’s property was delivered to agents of the State, but rather that the property disappeared or was damaged in Claimant’s cell. Under our reasoning in Bargas v. State, supra, and Doubling v. State, supra, the complaint herein fails to state a claim upon which relief can be granted.

It is therefore ordered that this cause be, and hereby is, dismissed.


text:
    (No. 78-CC-1451
    Elmer E. Weltin Claimant, v. State of Illinois, Respondent.

      Opinion filed May 31, 1979.

   Per Curiam.

In the case of John J. Beard v. State of Illinois, 32 Ill.Ct.Cl.__, the Respondent stipulated, in part, as follows:

“This case arises out of an RC 14 Collective Bargaining Agreement. The effective dates of the agreement are July 1, 1977, to June 30, 1979. The relevant provision is found in Article XXXIII, Section 4 on page 62 of the Agreement which reads as follows:

‘All employees in the bargaining unit shall receive a lump sum payment of $10.00 per month for each $10,000,000.00 ‘excess’ of actual revenues over projections as determined under Section 3, up to a maximum of $50.00 per month (a maximum payment of $600.00 for the year).
Any such payment shall be applied retroactively to all employees for all time paid during Fiscal Year 1978, and the monthly increase shall be added to the base rates for all classifications and steps set out in Appendix A, effective July 1, 1978. Employees not on the active payroll for the full 12 months of Fiscal Year 1978 shall be entitled to the lump sum retroactive payment on a pro-rated basis. Any employee who has voluntarily quit or been discharged during Fiscal Year 1978 will be required to make claim for retroactive payments due within 60 days of the end of the Fiscal Year to the Employer,’

Pursuant to said Article XXXIII, Section 4 the employees’ union demanded a lump sum payment to the employees. The Department resisted the amount of the increase demanded and the matter was eventually settled by an arbitrator who ruled that $40.00 per month was to be paid retroactively to each employer for each month of service served during the Fiscal Year 1978. Subsequently, the Eightieth General Assembly passed House Bill 3237 which provided the funds for the payment of the retroactive lump sum payment to the employees.

The issues before this Court are as follows:

1. Does Ch. 127, para. 145 prohibit the retroactive pay envisioned by Article XXXIII, Section 4 of RC 14 Collective Bargaining Agreement?

2. May the Director of Personnel agree to and abide by an arbitrator’s decision?

Chapter 127, para. 145 paraphrased provides in essential part as follows:

“Amounts paid from appropriations for personal service of any officer or employee of the State, ***, shall be considered as full payment for all services rendered between the dates specified in the payroll *** which payment would constitute in fact an additional payment for work already performed and for which remuneration had already been made, except that wage payments made pursuant to the application of the prevailing rate principle or based upon the effective date of the collective bargaining agreement between the State, or a State agency and an employee group shall not be construed as an additional payment for work already performed.”

In view of the fact that the retroactive pay provided for in the collective bargaining agreement was based upon the effective date of the collective bargaining agreement, the relevant section does not violate Ill. Rev. Stat., Ch. 127, para. 145.

As to the second issue, as to whether the Director of Personnel has the authority to agree to and abide by arbitration, Respondent would like to point out the following. Nowhere in the Personnel Code is the Director given the authority to delegate or regulate his powers or responsibilities to determine or negotiate working conditions, etc. However; as set forth earlier, the facts in this claim are that the General Assembly passed an appropriation bill for the sole purpose of the payment of this lump sum retroactive payment to these employees, thereby ratifying and thereby validating by subsequent legislation the actions of the Director of Personnel and making moot the question as to his authority to submit to arbitration.

The Claimant in the instant case, John Beard, was employed by the Department of Public Aid during Fiscal Year 1978 from July 20,1977 to January 31,1978 as a Clerk II, a classification on the RC 14 bargaining unit. Inasmuch as this Claimant was not in active status for all 12 months of Fiscal Year 1978, Article XXXIII, Section 4 of the RC 14 contract agreement provides that such employees are entitled only to a lump sum retroactive payment on a prorata basis for the number of months worked contingent upon their making claim for the retroactive benefits within 60 days of the end of Fiscal Year 1978.

This Claimant filed his claim on October 6, 1978, (not within the original 60 days), however, the Director of Personnel extended the filing date to October 14, 1978.”

This Court adopts the comments of the Respondent, in the above stipulation, insofar as the Beard case is analogous to the present case, as the position of this Court on the law.

The Claimant in the instant case, Elmer E. Weltin, was employed by the Department of Veteran’s Affairs. This Claimant, as was Mr. Beard, was employed for only a portion of the period of the retroactive benefits and is, therefore, entitled to only a pro-rata payment.

Accordingly, there is hereby awarded to Claimant the amount of $280.00 plus the State’s contribution to the State Employee’s Retirement System and the F.I.C.A. From the aforesaid award to Claimant there shall be deducted amounts for the Claimant’s Federal and State income tax withholding and amounts for the Claimant’s contributions to the State Employees’ Retirement System and to F.I.C.A.