text:
    (No. 78-CC-0653
    Ellis Shaw, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 12, 1981.

    Stanley K. Stewart, for Claimant.
    William J. Scott, Attorney General (Paul Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is a claim for back salary from September 1, 1973, through June 30,1977. At the time of his discharge, Claimant was a Conservation Inspector III with the Department of Conservation, State of Illinois. In September of 1973, Claimant requested a hearing with the State Civil Service Commission on his discharge. The Civil Service Commission upheld his discharge in July 1974. In August 1974, Claimant filed an action in the Circuit Court of Will County under the Administrative Review Act, asking that the decision of the Civil Service Commission be overturned. In December of 1976, the Circuit Court of Will County overturned the order of the Civil Service Commission and ordered Claimant reinstated with full back pay and benefits as though he had never been discharged. Also in December of 1976, the State appealed the order of the Circuit Court of Will County to the Appellate Court of Illinois, Third Judicial District. In August 1977, the parties entered into a stipulation to dismiss the appeal, and in September 1977, Claimant was reinstated to the position of Conservation Police Lieutenant in the Department of Conservation with full back pay and benefits.

There is no disagreement that (1) the salary due Claimant for this period was $55,418.00, (2) the earnings received in mitigation were $8,410.66, and (3) that the unemployment insurance figures in mitigation were $2,132.00. The net figure from these amounts is $44,875.34, which the parties agree is due Claimant.

At the hearing on this cause before the commissioner Claimant dropped his claim for Social Security benefits because he was not covered under Social Security. Further, he dropped his claim for insurance benefits and for holiday pay because this Court has determined in prior cases that these items are not compensable elements of damages in cases such as the one at bar.

The area of disagreement between the parties is whether Claimant is entitled to a cash award for the vacation days he did not get to enjoy during the four-year period of his wrongful discharge. Over this period Claimant alleged he would have become entitled to eighty vacation days, the maximum amount he is entitled to accumulate. He is now making claim for compensation for the balance or $2,523.20, based on forty days at $63.08 (his prorated daily salary).

The State took the position at the hearing and in its brief that Claimant is not entitled to the forty days pay for which this claim is made or the forty days for which Claimant’s account has been credited. We refuse to decide the issue regarding the forty days for which Claimant was given credit. There was no claim brought for them. Also, this Court does not have jurisdiction to require a department to add or subtract vacation days from their own accounts.

With respect to the balance claimed, it is incumbent upon Claimant to establish that he had a right to compensation for said days. In the ordinary case Claimant must be able to point to a provision in his employment contract which allowed such compensation. (Cummings v. Chicago, Aurora & Elgin Ry. Co. (1952), 348 Ill. App. 537, 109 N.E.2d 378; In re Pringle Engineering and Manufacturing Co., 164 F.2d 299.) An interoffice memorandum providing for vacation pay was sufficient in Durlak v. Sun Chemical Co., 336 Ill. App. 310, 83 N.E.2d 372. In Olson v. Rock Island Bank (1975), 33 Ill. App. 3d 914, 339 N.E.2d 39, the evidence upon which an award of vacation pay was made was an oral contract and bank policy.

In the case at bar there was no written contract entered into evidence. It is not unusual for an employee of the State not to have an individual contract for employment. Terms and conditions of State employees are also governed by statutes and rules promulgated pursuant thereto. There does not appear to be any disagreement as to the number of vacation days involved. A person in Claimant’s position would have become entitled to take eighty days off work had he worked during the four-year period of his discharge, according to rule. There are other rules pertaining to vacation time though, specifically Rules 3 — 250, 3 — 270, and 3 — 290, all properly promulgated by the Department of Personnel. Rules 3 — 250 and 3 — 270 provide that active employees cannot accumulate vacation days for more than 24 months and that they lose their accumulated vacation time if they do not use it within such 24-month period. Rule 3 — 290 provides:

Section 3 — 290 Salary in Lieu of Vacation. No salary payment shall be made in lieu of vacation earned but not taken except on termination of employment for eligible employees with at least 6 months of continuous service in which case the effective date of termination shall not be extended by the number of days represented by said salary payment. (Emphasis added.)

Respondent argues that, since the Circuit Court of Will County ruled that Claimant be reinstated in his position with full back pay and benefits as though he had never been discharged, his employment has in effect been continuous. Therefore, under Rules 3 — 250 and 3 — 270 Claimant has forfeited his accrued vacation time by not using it within the prescribed time limits. We think that Respondent’s application of these rules to the facts presented in this case was correct.

Rule 3 — 290 does not support Claimant’s position either. Even assuming that Claimant was indeed discharged, his discharge would necessarily have occurred prior to the time he began to accumulate the vacation time for which claim was made. Rule 3 — 290 only provides that an employee shall be paid for vacation days accrued and not used at time of termination. In this case the record is silent as to how many vacation days, if any, Claimant had accrued at time of termination.

Claimant did not cite any other rule in support of his position but has cited three previous decisions of this Court. Primary reliance was placed on Shimeall v. State, 32 Ill. Ct. Cl. 760. In Shimeall the Court stated that there was nothing in the record to indicate that Claimant should be barred from this additional claim (for compensation for vacation days) and cited Harrington v. State, 30 Ill. Ct. Cl. 67, wherein accrued vacation pay was a proper element for a claim. In the case at bar the issue was raised and there is evidence in the record that compensation for vacation days should be barred.

Harrington v. State, supra, was also the second case cited by Claimant. In Harrington, vacation pay was a proper element for a claim, as the Court noted. However, Harrington is not relevant to the case at bar. In Harrington, the Claimant had earned vacation days prior to his termination and claimed entitlement to payment for that vacation time after his termination. Thus the facts therein fell within Rule 3 — 290 and Mr. Harrington was properly granted an award.

The third case cited by Claimant was MacDougall et al. v. State, 30 Ill. Ct. Cl. 629. That case involved compensation for overtime and the rule pertaining thereto. As such it is not applicable to the case at bar. Moreover a specific provision in the rule regarding overtime provided for payment of the claim made. None has been cited in the case at bar.

The Illinois Supreme Court stated that “(T)he theory underlying a suit for back salary is to make the employee whole — to compensate him to the extent that the wrongful discharge has caused a financial loss.” (People ex rel. Bourne v. Johnson (1965), 32 Ill. 2d 324, 205 N.E.2d 470, 473.) In the instant case the employee is being made whole by the award ordered below. To award compensation for vacation days under the circumstances in this case would make him more than whole. Ail employee who actually worked during the time of Claimant’s wrongful discharge would not be entitled to compensation for the vacation days on which Claimant based his claim. Moreover, it cannot be said that Claimant has proven a financial loss above which the award granted below compensates. He pointed to no statute, rule, or contract which entitled him to vacation pay on the facts of his case.

Claimant’s claim for vacation compensation pay is hereby denied for failure to meet the burden of proof of entitlement to such pay. It is hereby ordered that Claimant be, and hereby is, awarded the agreed sum of $44,875.34 with appropriate modification of this award to be made by the Clerk of the Court of Claims by attachment of an appendix hereto reflecting appropriate employer contributions and employee deductions and withholdings.


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 78-CC-0746
    Olivia Flunder, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 1, 1980.

    Davis, Miner & Barnhill (George F. Galland, Jr., of counsel), for Claimant.
   Holderman, J.

While this case involved only $122.00 in back pay, nevertheless many basic rules and principles are involved which we feel should be set forth.

The Claimant was employed in a civil service position in the Illinois Department of Public Aid. On February 16, 1975, Claimant was promoted to a clerk typist III, grade 5, step 5. Between August 4, 1976 and February 7, 1977, Claimant was on maternity leave from her position. On June 16, 1977, Claimant was given a grade 5, step 6 increase in pay based upon the Department of Personnel Pay Plan in effect prior to July 1, 1977. Claimant was properly paid pursuant to the Department of Personnel Pay Plan as a clerk typist, grade 5, step 6, from June 16, 1977, through June 30, 1977. Claimant terminated her employment on July 14, 1977, and was a clerk typist, grade 5, step 6 at the time of her termination and was paid at that level.

On July 1, 1977, a collective bargaining agreement, RC-14-OCB, between State of Illinois, Department of Personnel and American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME) became effective for the period July 1, 1977, to June 30, 1979. The specific portion of the contract agreement, which applied to this claim is Article XXXIII, Section 6.

“Section 6. Steps
Effective December 1,1976, any bargaining unit employee at step 5 or 6 with 12 or more months creditable service as that term is defined in the Pay Plan shall be advanced to the next higher step and the employee shall be given a new creditable service date of December 1, 1976.
Subsequent to December 1,1976, employees with fewer than 12 months creditable service on step 5 or 6 and those who move to step 5 or 6 on or after December 1,1976, shall be advanced to the next higher step on the first day of the month within which 18 months creditable service is reached.”

According to the provisions of Section 6 of the collective bargaining agreement, Claimant would be entitled to step 6 at the time she returned from her maternity leave on February 7, 1977, until June 17, 1977, when she had already received the step 6 increase. The salary differential for the period in question between grade 5, step 5 and step 6 was $28.00 per month and totalled $122.00 for the period in question.

All of the earnings for this step increase pursuant to the collective bargaining agreement pertained to a period before the effective date of the collective bargaining agreement.

In this particular case, Claimant has asked this court to grant additional retroactive back pay differential for a step 6 increase from February 7, 1977, through June 17, 1977, when she actually received her step 6 increase, based on Article XXXIII, Section 6 of the Collective Bargaining Agreement which became effective July 1, 1977. The entire amount of the $122.00 pay differential for this period pertained to the period prior to the effective date of the collective bargaining agreement. This claim is in direct conflict with the prohibition of Ill. Rev. Stat. 1977, ch. 127 par. 145, which provides:

“Amounts paid * ° * for personal services 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 or other voucher and no additional sum shall be paid, * * “ which payments would constitute in fact an additional payment for work already performed * ° ° except ° ° “ based upon the effective date of a collective bargaining agreement ° ° ° shall not be construed as an additional payment ° °

Even though this statutory provision provides for some changes due to collective bargaining agreements, it does not allow any change prior to the effective date of the collective bargaining agreement. Therefore, since this claim pursuant to the collective bargaining agreement is entirely prior to the effective date of the contract and is in direct conflict with Ill. Rev. Stat. ch. 127, par. 145, this claim must be denied as in violation of statutory prohibition of additional back pay.

The General Assembly has established the basic rule of law pertaining to the payment for personal services in Ill. Rev. Stat. 1977, ch. 127, par. 145 which states 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 or other voucher and no additional sum shall be paid ° ° ” 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.”

The rule of law in this State is that where there is any conflict between the provisions of a contract and State Statute, the statute prevails and the contract provisions are invalid. This rule of law has been recently pronounced as applicable to collective bargaining agreements in Sibley, et al. v. Health and Hospitals’ Governing Com mission of Cook County, et al., 317 N.E.2d 642, 646 where the court stated:

“A contract which violates a valid statute is void. There is no exception to this rule, for the reason that the law cannot enforce a contract which it prohibits. (DeKam v. City of Streator, 1925, 316 Ill. 123, 146 N.E. 550; Green v. Hutsonville Twp. High School Dist. No. 201 1934, 356 Ill. 216, 190 N.E.267). The Act creating the present Commission clearly sets forth the methods by which merit service employees such as petitioners may be severed from employment. The provision in the union contracts referring to mandatory retirement age could not affect the rights of the petitioners conferred to them under a valid statute.”

Claim denied.


author: Roe, C. J.

text:
    (No. 78-CC-0861
    James V. Grobe, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 13, 1981.

    Farrell, Edgerton and Hatfield, for Claimant.
    Tyrone C. Fahner, Attorney General (Sheila M. King, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This claim arose out of the loss of personal property due to theft by an escaped inmate or inmates of the Boys School at St. Charles, Illinois. Recovery is sought under the Court of Claims Act, Ill. Rev. Stat. 1977, ch. 47, par. 439.8 and Ill. Rev. Stat. 1977, ch. 23, par. 4041.

According to Claimant’s complaint, on or about October 24,1977, Claimant’s 1974 Dodge Van containing his personal property was parked at his residence at Fairground Crossing Apartments, 225 Walnut Drive, St. Charles, Illinois. At some time after 12:00 a.m. Claimant’s vehicle was stolen from the parking lot by one or more escaped inmates from the Boys School. The vehicle, although damaged, was subsequently recovered along with some of the personal property.

A claim for the damage has previously been presented to Claimant’s insurer. The insurer paid $161.60 for the loss of personal property, the entire repair bill for the damage to the vehicle, and the entire cost of a rental vehicle. Claimant has attached to his complaint as a bill of particulars a list of personal property allegedly removed from his vehicle and for which he has not recovered any monies. The stated value of said property is $1,158.90.

Upon investigation of the claim, the Respondent offered and Claimant has agreed to accept, pending our approval the sum of $500.00 in full satisfaction of his claim. We approve said stipulation.

It is hereby ordered that Claimant be, and hereby is, awarded the sum of $500.00 (five hundred dollars and no cents) in full satisfaction of any and all claims presented to Respondent in the case at bar.


author: Per Curiam.

text:
    (No. 78-CC-0906
    Florence Crittenton Peoria Home, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 16, 1981.

    Timothy Bertschy, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

The record in this cause indicated the purpose of the expenditure by the Department of Children and Family Services for which this claim was filed was for services provided to several unmarried mothers served by the Department of Children and Family Services during fiscal year 1977 and 1978 and that the Attorney General has entered into a Joint Stipulation with the Claimant based upon information forwarded to his office by said Department, as evidenced by the departmental report attached to the Joint Stipulation.

Accordingly, this Court finds that this was a properly authorized expenditure at prices reasonable, usual and customary in the area where received. No part of this expenditure has been paid and the total outstanding is $5,136.84. Money was appropriated under appropriation and fund #001-41817-4400-09-00 of which appropriation sufficient funds lapsed and were returned to the State Treasury.

The sole reason said claim was not paid is due to the lapse of the appropriation for the period during which the debt was incurred.

It is hereby ordered that the Claimant be awarded, in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause, the sum of $5,136.84 (five thousand one hundred thirty-six and 84/100 dollars).


text:
    (No. 78-CC-0938
    Eileen McCormick, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 19, 1980.

    Rehearing denied September 17, 1980.

    Cornfield and Feldman, for Claimant.
   Holderman, J.

This matter coming to be heard upon the motion of Respondent to dismiss the claim herein, and it appearing to the court that Claimant has received due notice of said motion, and the court being fully advised in the premises, finds:

A. That the Claimant, Eileen McCormick, an employee of the Department of Mental Health and Developmental Disabilities, claims temporary assignment pay on the basis that she was not promoted according to the provisions of a memorandum of understanding entered into by the Union and the Department.

B. That the Claimant filed a grievance, pursuant to the procedure set forth in the Collective Bargaining Agreement, which was settled at step 4A of that procedure.

C. That step 4 of the grievance procedure within the bargaining agreement provides for compulsory arbitration which divests the Director of Personnel of his ultimate authority to adjudicate employee grievances.

D. That Ill. Rev. Stat. 1977, ch. 127, par. 63b108c, proscribes the Director of Personnel from entering into agreements calling for compulsory arbitration, and the Departmental rules, having the force and effect of law, provide that the Director of Personnel can never be bound by the decision of an arbitration panel.

E. That the grievance procedure within the bargaining agreement, insofar as it provides for compulsory arbitration, is directly contrary to Departmental Rules and the provisions of the Personnel Code, and cannot serve as a basis for an award by the Court of Claims. Selby v. Health and Hospital Governing Commission of Cook County (1974), 22 Ill. App. 2d 632, 317 N.E.2d 642.

F. That the administrative procedure followed in this case, insofar as it violated the procedural requirement of the Personnel Code, is void and unenforceable. Chicago Rys. Co. v. Commerce Commission (1929), 336 Ill. 51,167 N.E. 846.

G. That Claimant has otherwise failed to exhaust its administrative remedies in accordance with the requirements of Ill. Rev. Stat. 1977, ch. 37, par. 439.24 — 5 and Court of Claims Rule 6.

H. That the failure to exhaust valid administrative remedies shall be grounds for dismissal pursuant to Court of Claims Rule 9, Triuty v. Board of Trustees of the University of Illinois (1974), 29 Ill. Ct. Cl. 222.

That pursuant to the above findings it is hereby ordered that the respondent’s motion be, and the same is, hereby granted, and the claim herein is hereby dismissed.


text:
    (No. 78-CC-0952
    Donald H. Bauman, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 7, 1981.

    Caldwell, Berner & Caldwell (Michael T. Caldwell, of counsel), for Claimant.
    William J. Scott, Attorney General (John R. Fanone, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is an action against the State of Illinois for money damages on a claim sounding in tort brought by Claimant, Donald Bauman, for personal injuries he received in an automobile accident that occurred on April 11, 1977, on Illinois Route 47 near the intersection of Wanda Lane in Woodstock, Illinois, when the vehicle the Claimant was driving was struck by a motor vehicle being operated by Illinois State Police Officer Thomas P. Burke. The Court of Claims has jurisdiction of this cause pursuant to section 8 (d) of “An Act to create the Court of Claims to Prescribe its Powers and Duties . . . (etc.).” Ill. Rev. Stat., ch. 37, par. 439.8 (d).

At the time of the occurrence Claimant was travelling south on Route 47 near its intersection with Route 14. He intended to make a left hand turn onto a street known as Wanda Lane lying northerly of Route 14. Illinois 47 is a two lane highway running in a generally north-south direction which widens into four lanes in the vicinity of its intersection with Wanda Lane. As he approached Wanda Lane the southbound traffic ahead of him was stopped. He was travelling in the inner southbound lane, and as he approached Wanda Lane, he turned on his left turn signal, slowed down almost to a stop, and made the turn.

Illinois Trooper Thomas P. Burke, on duty and operating a State Police squad car, had received a call concerning an accident on Route 14 east of Route 47. Proceeding southbound on Route 47, when he reached the area of Wanda Lane he noticed twenty to twenty-five cars stopped in front of him at the red lights at Route 14. He pulled out into the inner northbound lane and reached Wanda Lane at the same time that Claimant was attempting to turn left into it. Claimant turned left in front of him when he was approximately 25 feet from Claimant’s car. He struck Claimant’s car in the center of the driver’s side and knocked it 300 feet into a field. Claimant was severely injured. The accident occurred around 2:00 o’clock in the afternoon.

“Page 72. The highway is four-lanes as you approach the intersection of Route 47 and Wanda Lane.
Page 73.1 was travelling in the inside southbound lane of traffic on the east side of the road. That is the traffic lane that is closest to the center of the highway. The southbound traffic immediately ahead of me was stopped as I approached the intersection of Route 47 and Wanda Lane.
Page 74. As I approached the stopped traffic I was making a left turn. I was intent on making a left turn. I turned on my left turn signal.
Page 76.1 was approximately 200 feet from Wanda Lane when I turned the signal on. I was driving very slow. There was traffic travelling in the same direction immediately behind me. I do not know how many cars there were. I had my turn signals on when I got to the intersection of Wanda Lane and Route 47.
Page 77.1 proceeded to make a left hand turn as a car was coming by on the outside northbound lane. As it passed, Í proceeded to turn into Wanda Lane.
I don’t really remember if I came to a complete stop or not, before attempting to negotiate the left-hand turn. I was going very slow when I made the turn.”

Portions of Trooper Burke’s abstracted occurrence testimony are quoted below:

“Page 30. On April 11, 1977,1 was involved in an accident at about 2:00 in the afternoon.
Page 33. I was operating a State Police squad car on that date. I was proceeding to another accident at the time. The other accident was on Route 14 East of Route 47 approximately a mile.
Page 34.1 was around Route 120 and Wonder Lake Road when I received the call. It is in the neighborhood of ten miles from the scene. It probably took about eight or nine minutes from the spot where I received the call to the place where the accident occurred.
Page 35. As I got onto Route 47,1 passed about two cars going southbound.
Page 37.1 was in the right hand lane. I pulled out just prior to the accident to pass the farther traffic. I was going about 45 miles per hour. There were in the neighborhood of 20 cars stopped in front of me at the red lights on Route 14, 20, or 25 maybe. I was just a few hundred feet to the north, from the intersection of Route 47 and 14 when I pulled out.
Page 38.1 believe I was south of the viaduct when I pulled out... I was in lane number two, or I was in the inner lane of the northbound traffic at the point of collision. I was proceeding southbound. The car I came into contact with when I pulled out was stopped in front of me to the best of my knowledge.
Page 39. He was either the third or fourth car. I had passed either two or three. There was no northbound traffic approaching as I pulled out. Both lanes of northbound traffic were vacant. I saw the other car just a split second, as it pulled out left in front of me. When I first saw it it was stopped in the lane of traffic.
Page 40. I saw the car suddenly pull left in front of me. I slammed on my brakes. I couldn’t do anything else. I knew there was going to be a collision. About one second elapsed between the time I first saw the car pull out turning left and time the collision occurred.
The right front of my car hit the driver’s side, right behind the pillar of the other car, right in the center of the car, the left hand side.
Page 50. It appeared to me, that the car was stopped and just pulled out of traffic making a left turn in front of me. I thought he was going to make a U-turn because he didn’t want to wait for all the cars stopped ahead of him. It was the only thing I could think of at the time. I remember thinking he was going to make a U-turn there.
1 never saw the driver of the vehicle.”

I. Was Respondent guilty of any actionable wrong?

At the outset it should be noted that to determine Respondent’s liability, if any, for Trooper Rurke’s conduct in driving his emergency vehicle, the Trooper’s conduct is to be measured against a specific statutory standard:

“11 — 205. Public officers and employees to obey Act — Exceptions.
(a) ° ° “
(b) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not returning from a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
(c) The driver of an authorized emergency vehicle may:
1. 0 0 0
2. 0 0 0
3. 0 « 0
4. Disregard regulations governing direction of movement or turning in specified directions.
(d) The exceptions herein granted to an authorized emergency vehicle, other than a police vehicle, shall apply only when the vehicle is making use of either an audible signal when in motion or visual signals meeting the requirements of Section 12 — 215 of the Act. (Emphasis supplied).
(e) The foregoing provisions do not relieve the driver of an authorized emergency vehicle from the duty of driving with due regard for the safety of all persons, nor do such provisions protect the driver from the consequences of his reckless disregard for the safety of others.
(f) * * * ” (Ill. Rev. Stat., chap. 95½, par. 11 — 205.)

Section 11 — 907 of the same chapter, outlining the duties of drivers on the approach of authorized emergency vehicles is as follows:

“11 — 907. Operation of vehicles and streetcars on approach of authorized emergency vehicles, (a) Upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals meeting the requirements of this Chapter or a police vehicle properly and lawfully making use of an audible or visual signal, the driver of every other vehicle on the same roadway shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the righthand edge or curb of the highway clear of any intersection and shall stop if possible and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer. (Emphasis supplied).
(b) . o o
(c) This Section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.” (Ill. Rev. Stat., chap. 95M, par. 11 — 907.)

The above two sections appear to distinguish between the use of an audible signal by a police vehicle and by other types of emergency vehicles.

Fortunately, paragraph 12 — 601, not cited by either Claimant or Respondent, defines more clearly when a siren shall be used:

“12 — 601. Horns and warning devices.
(a) 0 ° •
(b) No vehicle shall be equipped with nor shall any person use upon a vehicle any siren, whistle, or bell, except as otherwise permitted in this subsection. Any authorized emergency vehicle as defined in Chapter 1 of this Act may be equipped with a siren, whistle, or bell, capable of emitting sound audible under normal conditions from a distance of not less than 500 feet, but such siren, whistle or bell, shall not be used except when such vehicle is operated in response to an emergency call or in immediate pursuit of an actual or suspected violator of the law in either of which events the driver of such vehicle shall sound such siren, whistle, or bell, when necessary to warn pedestrians and other drivers of the approach thereof.” (Emphasis supplied.) (Ill. Rev. Stat., chap. 9551, par. 12 — 601.)

From reading all three statutory sections together we learn that a police officer in responding to an emergency call must use his siren “when necessary to warn pedestrians and other drivers” of his approach, and that in every event he must drive “with due regard for the safety of others.” Finally, the provisions of chapter 95M will not protect him “from the consequences of his reckless disregard for the safety of others.”

In order to determine the issue of whether Respondent was guilty of any actionable wrong in this occurrence, two key questions of fact must be answered.

(1) Was Trooper Burke using his siren at the time of the collision and immediately before? If not,

(2) Should he have been using his siren?

It is uncontested that as Officer Burke undertook to pass on the wrong side of the road the line of twenty to twenty-five stopped southbound cars his flashing red lights were operating. It is contested as to whether he was using his siren. In the opinion of the Court the weight of the evidence is that he was not using it, or at least was not using it sufficiently so as to perform its function of warning other drivers of his approach.

Trooper Burke testified that he was south of the viaduct when he pulled out just a few hundred feet north of the intersection of Routes 47 and 14. The shortness of the distance can be seen by examining Claimant’s Exhibit No. 3 taken at the intersection of Routes 47 and 14 looking northwards to the viaduct. Prior to reaching the viaduct he had passed two cars, one of which pulled off to the side of the road. At a pretrial discovery deposition he testified that he turned his siren on at Route 120 and Wonderlake Road and kept it on all the way until the accident. But at the hearing of the case he testified that he was using his siren intermittently.

The driver of the car that pulled off the road when Trooper Burke passed it was one Mrs. Laura Martell. She testified as follows:

“Page 9. The police car, when I first saw it, was coming up behind me. I glanced up in the rearview mirror. He was directly behind me coming up fast, and he was going to go around me. He has his red lights on, but no siren.
He started to come past me. I pulled off the road ....
Page 10.1 pulled off so he wouldn’t have to swing around me so far, and he was in the left hand lane at that point. I was more or less watching him as I got back on the road. The police car was in the left lane and its lights were still working.
Page 11. As long as I saw it, I never heard a siren. There was no siren operating. Then I came upon the scene of the accident * “

On cross-examination she testified:

“Q. Do you know for sure there wasn’t a siren or you just didn’t hear one?
A. There was not a siren.
Q. You didn’t hear one?
A. No, I would have heard it.”

Another witness, one William H. Schwake, in a car stopped at the intersection, testified as follows:

“Page 22. On April 11, 1977,1 was near Wanda Lane by the viaduct.
Page 24. As we approached the intersection of Route 14, the traffic was heavy. The intersection is controlled by traffic control signals. We had to stop first because of a red light. We stopped through that red light and through a green light because of the rescue squad going through at that time.
Page 25. The rescue squad was going south on Route 14.1 don’t recall if there were other squad cars or not. I couldn’t tell if the rescue squad had its lights on. I heard the siren, but I couldn’t tell if it was the rescue squad or what. I assumed it was. I heard a crash behind us. I heard nothing else before the crash.
Page 26. The crash came from behind us. The first car we saw was a car going by us erratically and it ended up in a ditch. The next one was a state trooper’s car and it ended up in the ditch almost right along side us.”

Claimant testified as follows:

“Q. As you approached the intersection of Wanda Lane and Route 47 did you hear any sirens?
A. No sir, I did not.
Q. Specifically, did you hear any sirens coming from the north going south behind you?
A. No, sir.”

To summarize the testimony of the three witnesses: Mrs. Martell testified positively that Trooper Burke was not using his siren. Witness Schwake testified that he assumed the siren he heard was coming from the emergency vehicle on Route 14. Claimant did not hear a siren.

If Trooper Burke was using his siren at all, he was not using it in such a fashion as to satisfy the statutory injunction to warn other vehicles of his approach. Mrs. Martell was aware of his approach only because she saw him in her rear view mirror. Witness Schwake was not aware of his approach until he hurtled past after the collision and ended up in a ditch. Claimant was not aware of his approach at all.

Considering the fact that the officer was passing 20 to 25 vehicles, on the wrong side of the road, in the immediate vicinity of an intersection into which three driveways and Wanda Lane opened and while travelling 45 miles per hour, it was mandatory that he use his siren steadily.

It is clear that Officer Burke should have foreseen that use of his siren, or more use of his siren than he made, was necessary to warn motorists of his approach.

In Kirshenbaum v. City of Chicago, 43 Ill. App. 3d 529, 357 N.E.2d 571 (involving an intersection collision and therefore not strictly in point on the facts), the Court held that a police officer’s failure to sound his siren was, under the circumstances of the case, willful and wanton negligence. Also see Sundin v. Hughes, 107 Ill. App. 2d 195, 246 N.E.2d 100 (a case only involving pleadings).

Both sides have argued as to whether Claimant was guilty of contributory neligence. Contributory negligence would not be a defense if Trooper Burke were found to be guilty of willful and wanton negligence. Then only contributory willful and wanton negligence would be a defense. Clearly, Claimant was not guilty of contributory willful and wanton negligence. A fair reading of the record is that he was not guilty of ordinary contributory negligence but the question is not altogether free from doubt.

Claimant testified that he looked in both rear view mirrors and did not see Trooper Burke approaching. The cars in back of him would have obscured his view through his inside rear view mirror, and with reference to his outside rear view mirrors, it is known that all rear view mirrors have blind spots. In other words, if Trooper Burke had been further to the rear when Claimant looked, he probably would have seen him in his outside rear view mirror, but a car that is almost abreast of you is frequently not picked up in the mirror. As Trooper Burke testified, “I was only about 25 feet in back of him when I saw him start to pull out to the left and to the rear. I locked up my brakes when I saw him pull out.” Also, Claimant would have had no reason to expect that a car would be approaching from the rear on the wrong side of the road.

II. Were the actions of Respondent the proximate cause of the accident?

In line with the foregoing analysis the failure of Trooper Burke to use his siren, or use it sufficiently to warn other motorists of his approach, was the proximate cause of the collision and of Claimant’s damages.

III. Measure of damages.

Claimant received severe and painful temporary injuries, but except for damage to nine teeth, no permanent injuries. His specials were all paid for by insurance. Under the authority of National Bank of Bloomington v. State of Illinois, No. 73-CC-0467, filed July 28, 1980, there can be no recovery for these specials.

Claimant summarized his injuries in his brief as follows:

“That Donald Bauman was seriously and severely injured is obvious. He suffered several fractured ribs, dangerous internal bleeding and was almost totally disabled for the better part of three months. He experienced constant severe pain and has never fully recovered the vitality he had before the accident.”

Considering the injuries to his mouth also, it is hereby ordered that Claimant be, and hereby is, awarded the sum of $35,000.00.


text:
    (No. 78-CC-1031
    Midwest Family Resource Association, Ltd., an Illinois Corporation, Claimant, v. The State of Illinois, Respondent.

      Order filed July 5, 1979.

    Rehearing denied April 27, 1981.

    Sidney C. Kleinman, Ltd., for Claimant.
   Holderman, J.

This matter comes before the Court on a motion by Respondent for summary judgment, motion of Claimant for partial summary judgment, and Respondent’s reply to Claimant’s motion for partial summary judgment.

Respondent’s motion for summary judgment sets forth that Claimant, by and through its sole owner, Dr. Borstein, contacted the Department of Children and Family Services on three separate occasions, on August 1, 1974, on January 28, 1975, and on July 1, 1975. Said motion further sets forth that since 1968 Dr. Borstein had been employed by the Illinois Department of Mental Health and Developmental Disabilities, and that since 1971, he had been employed as Director of Family Services, Illinois Institute for Juvenile Research.

Respondent also refers to certain contracts entered into between Claimant and Respondent.

The record discloses that Claimant was granted an exemption certificate on September 5, 1975, which exemption was given after the contracts were executed and after twelve months of performance on the contracts.

The objection of Respondent to the payment of this claim is that at the time the work was done, the Claimant did not have an exemption, as required by statute, and therefore the contracts were illegal and void.

It is the contention of Claimant that the exemption of the Governor is retroactive and therefore its claims were valid.

It is the opinion of this Court that there is not any statutory provision which allows for a Governor’s exemption from the Purchasing Act (Ill. Rev. Stat., ch. 127, par. 132.11 — 1), to be applied retroactively, and therefore any and all claims based upon work prior to the Governor’s exemption of September 5, 1975, are void.

Motion for summary judgment by Respondent as to all of the work performed before the exemption date is granted, and a hearing is set to determine what, if any, work was performed after said exemption was granted.


author: Poch, J.

text:
    (No. 78-CC-1120
    George W. Stack, Claimant, v. The State of Illinois and Illinois Department of Corrections, Respondents.

      Opinion filed August 4, 1980.

    George W. Stack, pro se, for Claimant.
    William J. Scott, Attorney General (Sue Mueller, Assistant Attorney General, of counsel); for Respondents.
   Poch, J.

This is a claim in which the Claimant alleges that the State of Illinois is liable for failure to provide Claimant with adequate medical care while Claimant was in the custody of the Illinois Department of Corrections.

Claimant alleges that on or about January 15, 1978, the metal straps or braces in a leg brace worn by Claimant were replaced with plastic straps of insufficient strength and number, so that the brace was of no use to the Claimant thereafter. Further, Claimant alleges that he has been refused proper medication and was prescribed “different kinds of medication”, all of which was improper. Claimant also alleges that his eyes have never been examined since his arrival at the Vienna Correctional Center. Further, Claimant claims that he has been required to do light custodial work because of his demands for proper medication. Finally, Claimant alleges that he has been denied proper medical treatment for the reason that funds were not available from the early part of 1978 until July or August of 1978. Claimant prays for personal injury damages in the sum of $100,000.00.

Upon the trial of this cause, Claimant testified that his complaint is essentially that a certain leg brace worn by him prior to this commitment to the Department of Corrections was altered or destroyed by agents of Respondent in the replacement of plastic parts for metal parts.

Claimant’s testimony was somewhat difficult to understand. His basic complaints and the complaints of a witness produced'by the Claimant were that inadequate medical treatment had been given to both the Claimant and to Claimant’s witness, Robert Russell, at the Vandalia branch of the Illinois Correctional Department.

Claimant failed to offer any evidence of the breach of any standard of care that would be applicable either to Respondent or to physicians generally in the treatment of personal injuries. Claimant offered no evidence of the nature of injuries which he claims he sustained as a result of mistreatment at the hands of the Respondent or its agents. The record is absolutely barren of any information from which Claimant’s claim could be sustained.

It is hereby ordered that the claim of Claimant be denied.


text:
    (No. 78-CC-1137
    Thomas Saviano, Claimant, v. The State of Illinois, Respondent.

      Order filed May 8, 1981.

    Thomas Saviano, pro se, for Claimant.
   Roe, C. J.

This cause coming on to be heard on the motion of Respondent, due notice having been given, and the Court being fully advised;

This claim is for a refund of that portion of tax paid on the purchase of cigarettes at retail at some point or points in time during the period January 1, 1967, to December 1, 1971, which was held to have been improperly collected. Pursuant to an order of the Circuit Court of Cook County in the case of Dorothy Hradek v. Marshall Korshak, 66-CH-7491, funds were deposited in a financial institution which acted as a clearing house for refunding the money. Claimant was issued a check for his refund but it was never cashed. The funds held in trust by the financial institution were returned to the State treasury. Therefore Claimant was unable to seek reimbursement from the financial institution and filed in this Court.

Upon careful examination of the evidence it appears that this is a just claim and that money is owing to Claimant.

It is hereby ordered that Claimant be awarded the sum of $13.40 in full satisfaction of any and all claims arising out of this cause of action.


text:
    (No. 78-CC-1168
    Louis Aarons, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 12, 1981.

    Louis Aarons, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

Claimant, Louis Aarons, in this cause seeks the sum of $858.00 in back salary. Claimant, Louis Aarons, is employed by the State of Illinois, Department of Mental Health. As of January 1978, Claimant had been working at Salary Grade 25 Step 7. In December 1977, Claimant’s immediate supervisor resigned. It was Claimant’s testimony that shortly thereafter he orally requested a job audit. This oral request was allegedly made on more than one occasion. No job audit took place as a result of these oral requests.

On approximately June 5, 1978, Claimant made a formal written request for a job audit. The audit took place shortly thereafter and as a result of this audit on or about June 30,1978, the Department of Personnel issued an opinion that Claimant’s position had changed and therefore Claimant was entitled to be upgraded to Grade 27 Step 5. Claimant was paid according to this upgraded position as of July 1, 1978.

It is Claimant’s contention that he was entitled to be paid at the upgraded rate from January 1978 to July 1978 because Claimant alleges that he assumed the new duties and responsibilities at that time.

It is the Respondent’s position that Claimant is not entitled to any back pay because it is the policy of the Department of Personnel to implement job audit decisions at the beginning of the first payroll period following the date of decision. Such a policy has its basis in Ill. Rev. Stat., ch. 127, par. 145, which states 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 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 principal or based upon the effective date of a collective bargaining agreement between the State, or a State agency and an employee group, or payment of funds as an adjustment to wages paid employees or officers of the State for the purpose of correcting a clerical or administrative error or oversight or pursuant to a bapkpay order issued by an appropriate State or Federal administrative or judicial body or officer shall not be construed as an additional payment for work already performed.”

The above quoted statute clearly applies to the present circumstances and the policy of the department is sound.

The Claimant further maintains that he was entitled to the job audit based on his requests. Claimant admittedly was familiar with the procedures involving the request of a job audit. Rule 1 — 20 of the Department of Personnel is the governing provision and states as follows:

“ALLOCATION: It is the responsibility of each agency head to report to the Director any significant changes in the duties of every position within the agency. At the request of any agency, or at the discretion of the Director, a survey, audit, or such other investigation as may be deemed necessary by the Director shall be made to determine the proper allocation of any position to a class. Upon written request of an employee, such investigation as may be deemed necessary by the Director shall be made to determine the proper allocation of the employee’s position. After making such survey, audit, or other investigation, the Department of Personnel shall notify the agency in which such position is located of its decision as to the proper allocation of the position in question.
It shall be the responsibility of the head of the agency in which the position is located to notify the incumbent in said position of the decision of the Department of Personnel.”

Claimants admits that he did not make the written request required by the rule until early June 1978. At this time the audit was promptly undertaken and the pay increase immediately implemented at the end of the pay period.

For the foregoing reason, the Claimant’s claim is denied.


text:
    (Nos. 78-CC-1229, 78-CC-1231 not cons.
    Springfield Sanitary District, Claimant, v. The State of Illinois, Respondent.

      Order filed July 28, 1980.

    Gillespie, Cadigan & Gillespie (Patrick J. Cadigan, of counsel), for Claimant.
   Roe, C. J.

This matter coming on to be heard upon the motions of Respondent to dismiss the claims herein, and, it appearing to the Court that Claimant has received due and timely notice of said motion, and, the Court being fully advised in the premises;

The Court hereby finds:

1. That Rule 14 of the Rules of the Court of Claims of the State of Illinois states that departmental reports issued by State departments or agencies are prima facie evidence of the facts set forth therein.

2. That the departmental reports issued by the Illinois Military and Naval Department, a State department or agency, indicate that there were insufficient funds remaining in the proper line item appropriation to pay these claims and the funds were not available to transfer into that line item appropriation under the 2% transfer statute. Ill. Rev. Stat., ch. 127, par. 149.2.

3. That Claimant has not responded to the motion to dismiss.

4. That article VIII, section 2(b) of the Constitution of the State of Illinois, 1970, states that:

“The General Assembly by law shall make appropriations for all expenditures of public funds by the State. Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year.”

5. That article XIII, section 4 of the Constitution of the State of Illinois states that:

“Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.”

6. That pursuant to article VIII, section 2(b) of the Constitution of the State of Illinois, 1970, and article XIII, section 4, the legislature of the State of Illinois has enacted Ill. Rev. Stat. 1977, ch. 127, par. 166, which states:

“No officer, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in any amount in excess of the money appropriated, unless expressly authorized by law.”

7. That as no officer, institution, department, board or commissioner of the State may contract indebtedness in excess of the amount of money appropriated to it by the legislature of the State of Illinois, such contracts by statute are void.

8. That because the Military and Naval Department has contracted beyond the money appropriated to it for fiscal year 1979 for reimbursement of facility’s expenditures, that contract is void.

9. That for the Court of Claims to award any sum to the Claimant in this matter would in effect be a deficiency appropriation in violation of article VIII and chapter 127, paragraph 166.

10. That as this contract is void by operation of law.

Wherefore, it is hereby ordered that this cause be and the same hereby is dismissed.


text:
    (No. 78-CC-1250
    Christie Lou Herron, a Minor, by Robert B. Herron, her next friend, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 26, 1981.

    Herrick, Rudasill and Moss, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant, Christie Lou Herron, was born August 24, 1963, and lived with her parents at 1903 West Calhoun in Springfield, Illinois, on August 11, 1977. On that date she went to the Illinois State Fairgrounds with a friend, Joanne Ippert, her sister, Cathy, and another friend. They went to a refreshment stand and bought a soft drink and then went to a playground area to sit on a teeter'-totter while they drank their drink. The ground was wet and they sat on the teeter-totters rather than sit on the wet ground.

Joanne Ippert and Christie started to go up and down on the teeter-totter and Joanne then remarked she was going to get off but Christie did not hear her. When Joanne got off, Christie’s end of the teeter-totter fell to the ground. When it came down, there was a bolt protruding from the handle of the teeter-totter and it struck her in the vagina. The bolt protruded from the handle and had two large nuts on it facing the person sitting on the teeter-totter.

Christie went to the emergency room at Memorial Hospital in Springfield and was treated there by the emergency room doctor and later she was treated by Dr. Metzmaker. She saw a Dr. Hirschowitz and was still suffering some pain to the vagina at the time of the hearing.

At the time of the injury, Claimant was wearing jeans and they were not torn. She suffered bruises to a portion of her anatomy but they were relatively minor. Surgery was not required and the only treatment recommended was that she go home from the emergency room and rest and sit in warm water to alleviate the pain and help the healing. Claimant testified she followed this procedure for a considerable period of time and that it did alleviate the pain. She stated she was confined to a couch at her home for several days after the incident as it was too painful for her to move.

It is Respondent’s contention that the sudden removal of Joanne Ippert from the teeter-totter caused the injury to Claimant.

It is Claimant’s contention that even if the act of Joanne Ippert was removed, the injury would have still been possible.

The exhibits introduced in this case graphically illustrate the protrusion of the bolt that caused the injury to Claimant. The bolt in question, as shown by the exhibits, had two rather large nuts on it, and it protruded from the handle for a considerable distance. One of the exhibits, showing the samé type of teeter-totter, has a handle with only one nut rather than the two nuts that were on the teeter-totter involved in the injury to Claimant.

The seat faces the handle on which this bolt is fastened. It is quite apparent that an individual sitting on the seat who was pushed forward for any reason whatsoever would be in a position to strike the protruding bolt. When the teeter-totter comes down, the law of gravity forces the occupant of the seat into a position to be struck by the bolt on some portion of the body. The fact that there were double nuts instead of a single nut enlarges the chances of an injury being suffered.

Claimant cites the case of Mayberry v. Cage, 322 Ill. App. 655, where the Court states:

“The proprietor of a public place of amusement owes a duty ... to use ordinary care to make the premises as reasonably safe as may be consistent with the practical operation of the business . . .”

Claimant also relies upon the case of Kahn v. James Burton Co., 5 Ill. 2d 622, 625, in which the Court goes into the cost of the preventive measure weighed against the potential for injury. Claimant also cites the case of Corcoran v. Village of Libertyville, 73 Ill. 2d 325. In the Kahn case, the Court also stated:

. . Where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency likely to cause injury to one incapable of appreciating the risk, where the cost of remedying the condition is slight compared to the risk, there is a duty of the owner or person in possession and control to remedy the conditions . . .”

Certainly the Respondent, who maintained the fairgrounds and placed the teeter-totter for the use of children, should have known that the teeter-totter was being used by children and the danger of being injured by the protruding bolt was well known.

It is the opinion of this Court that the Respondent was negligent, that the proximate cause of the injury was the protrusion of the bolt which, in the language of one of the witnesses for Respondent, showed that a single bolt would have served the same purpose and cut down the protrusion to at least half of that which existed at the time of the accident, and that the State is liable for the injury of Claimant.

Evidence in the record is very meager as to the costs accrued to Claimant’s parents as a result of their daughter’s injury.

Award is hereby entered in favor of Claimant in the amount of $3,500.00.


text:
    (No. 78-CC-1279
    Marie E. Anaya, Claimant, v. The State of Illinois, Respondent.

      Order filed September 10, 1980.

    Marie E. Anaya, pro se, for Claimant.
   Roe, C. J.

This cause coming on to be heard on the Court’s own motion to dismiss and the Court being fully advised;

Claimant filed this claim based upon Ill. Rev. Stat., ch. 15, pars. 210.10, 210.16, seeking replacement of a lost warrant. Although the complaint was based upon provisions included in the Comptrollers Act, the bill of particulars and the departmental report incorporated by reference into a motion for summary judgment by Respondent indicate that the Claimant was not issued a warrant by the Comptroller but that it was issued by the Department of Labor.

Said documents also indicate that a hearing was held on this matter by the Division of Unemployment Insurance in that department and Claimant was denied reissuance of the monies. It is clear that Claimant is now seeking review of that prior decision. The issue raised by the Court is whether or not the Court of Claims has jurisdiction to review an administrative decision of the Department of Labor.

First, we turn to the provisions of the Administrative Review Act, Ill. Rev. Stat., ch. 110, par. 264. Section 2 of the Act defines its scope. It provides that the Act shall apply to and govern every action to review judicially a final decision of any administrative agency where the Act creating or conferring power on such agency, by express reference, adopts the provisions of the Act. Section 1 of the Act defines what is contemplated by the terms “decision” and “administrative agency.” The agency and its decision involved in the case at bar clearly fall within said definitions.

The second step is to determine whether or not the Act creating the agency incorporated the provisions of the Administrative Review Act. Ill. Rev. Stat, ch. 48, par. 520 does by express reference adopt the Act.

Having thus determined that the Administrative Review Act applies in situations such as the instant case, we turn to section 5 of the Act. Section 5 states that jurisdiction to review final administrative decisions is vested in the Circuit Courts. As former Chief Justice Perlin stated in Rockford Memorial Hospital Association v. State, 26 Ill. Ct. Cl. 215, 218:

It has been an established rule of this Court, where the Claimant has an adequate remedy in a court of general jurisdiction, the Court of Claims has no jurisdiction, (citing cases)
In Barret v. State, 13 Ill. Ct. Cl. 13, 17, the Court stated, “The Legislature in creating the Court of Claims did not intend that it should usurp the powers of, contradict, or compete with courts of general jurisdiction.”

It is hereby ordered that this claim be and hereby is dismissed for lack of jurisdiction.


text:
    (No. 78-CC-1311
    Harold E. Hum, Claimant, v. The State of Illinois, Respondent.

      Order filed June 15, 1981.

    Harold E. Hum, pro se, for Claimant.
   Holderman, J.

This cause comes before this Court on Respondent’s motion to dismiss.

This is a claim for retroactive compensation based on a difference between the union scale agreed to by the industry and the prevailing rate paid by the State during the interim period between the date of the industry labor agreement and the time the State changed its prevailing rate scale. The issue involved in this case has long been settled and is exemplified by the case of Arthur Hollender v. State of Illinois, 14 Ill. Ct. Cl. 40, wherein this Court stated in effect that merely because a contractor in a particular locality agreed to recognize and pay an increase in the hourly wage demanded by the union, the State, not having been a party to the agreement, is not bound to pay the same scale unless and until it agrees to do so. Not being the party to industry agreement, the State is free to set its policy as to prevailing rates. The policy of the State, which has long been followed, is set forth in a memorandum of the Department of Personnel dated April 17, 1972, which memorandum is attached to the departmental report. That policy is as enumerated below:

1. The International unions submit the industry contracts to the Department of Labor.
2. The Department of Labor applies its time stamp upon receipt of union contracts.
3. The Department of Labor forwards the time stamped copies of the contracts to the Department of Personnel.
4. The Department of Personnel edits the contracts to remove “pyramid” items and adjusts the hourly rates accordingly, (this is to equalize State benefits against industry benefits).
5. Prevailing rates which are time stamped before midnight of a calendar quarter and which have contractually effective dates on or before said quarter are released to be effective on the quarterly date (January 1, April 1, July 1, October 1).
6. Prevailing rates which are time stamped after midnight of the appropriate quarter are held for release on the first day of the next quarter.

This policy has been in effect for many years, and has been long recognized by this Court and is still in effect. It has also been recognized by unions throughout these years as reasonable and not arbitrary or capricious.

Inasmuch as this claim is for that period of time prior to the effective date of the State prevailing rate as determined by the Department of Personnel pursuant to their stated policy, this claim must be and is hereby denied.


text:
    (No. 78-CC-1314
    Benjamin Courtwright, Claimant, v. The State of Illinois, Respondent.

      Order filed June 15, 1981.

    Benjamin Courtwright, pro se, for Claimant.
   Holderman, J.

This cause comes before this Court on Respondent’s motion to dismiss.

This is a claim for retroactive compensation based on a difference between the union scale agreed to by the industry and the prevailing rate paid by the State during the interim period between the date of the industry labor agreement and the time the State changed its prevailing rate scale. The issue involved in this case has long been settled and is exemplified by the case of Arthur Hollender v. State of Illinois, 14 Ill. Ct. Cl. 40, wherein this Court stated in effect that merely because a contractor in a particular locality agreed to recognize and pay an increase in the hourly wage demanded by the union, the State, not having been a party to the agreement, is not bound to pay the same scale unless and until it agrees to do so. Not being the party to industry agreement, the State is free to set its policy as to prevailing rates. The policy of the State, which has long been followed, is set forth in a memorandum of the Department of Personnel dated April 17, 1972, which memorandum is attached to the departmental report. That policy is as enumerated below:

1. The International unions submit the industry contracts to the Department of Labor.
2. The Department of Labor applies its time stamp upon receipt of union contracts.
3. The Department of Labor forwards the time stamped copies of the contracts to the Department of Personnel.
4. The Department of Personnel edits the contracts to remove “pyramid” items and adjusts the hourly rates accordingly, (this is to equalize State benefits against industry benefits).
5. Prevailing rates which are time stamped before midnight of a calendar quarter and which have contractually effective dates on or before said quarter are released to be effective on the quarterly date (January 1, April 1, July 1, October 1).
6. Prevailing rates which are time stamped after midnight of the appropriate quarter are held for release on the first day of the next quarter.

This policy has been in effect for many years, and has been long recognized by this Court and is still in effect. It has also been recognized by unions throughout these years as reasonable and not arbitrary or capricious.

Inasmuch as this claim is for that period of time prior to the effective date of the State prevailing rate as determined by the Department of Personnel pursuant to their stated policy, this claim must be and is hereby denied.


text:
    (No. 78-CC-1355
    Aetna Insurance Company, Subrogee of Wayne Allen and Patricia Mueller, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 13, 1981.

    Kamm & Shapiro, Ltd. (Jerrold J. Shapiro, of counsel), for Claimant.
    William J. Scott, Attorney General (Glen Larner, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This claim is an action sounding in tort and was brought under section 8(d) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8) by Claimant Aetna Insurance Company as subrogee of two drivers, Wayne Allen and Patricia Mueller, both of whom were involved in a collision at an intersection. At the hearing on this cause the parties stipulated that Claimant’s damages were $5,613.85.

Claimant’s complaint (which alleges the direction of the vehicles incorrectly) states a cause of action as follows:

“2. (a) On or about February 4,1978, Wayne Allen was the owner of a 1976 VW Scirroco automobile which he was driving in a southerly direction on U.S. 12 at or near the intersection of Case Road.
(b) At the time and place aforesaid, Patricia Mueller was the owner of a 1974 Chevrolet Nova automobile which she was driving in a northerly direction on U.S. 12 at or near the intersection of Case Road.
(c) At the time and place aforesaid Wayne Allen made a left turn onto Case Avenue.
(d) That Wayne Allen and Patricia Mueller were free of contributory negligence.
(e) At the time and place aforesaid snow had been piled in the center of Route 12 blocking the vision of Wayne Allen of any traffic driving in a northerly direction on U.S. 12.
(f) that as a result of said snow being plowed and negligently left in the center of the road thereby blocking vision a collision occurred between the ' vehicles driven by Wayne Allen and Patricia Mueller.
(g) * *

Wayne Mueller testified on direct examination that at approximately 7:45 a.m. on February 4, 1978, he was driving north on U.S. Route 12, a four lane highway, near its intersection with Case Road. The record does not so specify, but it would appear from looking at a map that this accident occurred in Lake County, Illinois. He testified that up to 200 feet from the intersection of Route 12 and Case Road he was able to see southbound traffic on Route 12, but that closer than 200 feet his vision of the two southbound lanes was blocked by snow piled in the median of U.S. 12.

He intended to make a left turn onto Case Road. Recause of the snow, the intersection cross-over was wide enough for only one car. Snow piled six feet deep on the median completely blocked all view of the southbound lanes on Route 12.

He pulled very slowly out into the southbound lanes with no vision whatsoever of any possible oncoming traffic in the southbound lane before he could see the length of the highway. His vehicle was still rolling when he saw Miss Mueller approaching in the outer southbound lane. He tried to accelerate but she struck him.

“Q How far into the intersection did you pull to gain vision of oncoming southbound traffic?
A Well, where my eyesight was past the snow pile, so I would say the front end of the car was pretty much across the oncoming traffic of the left lane.
Q How far down the road could you see at that point?
A At that point I could see practically all the way.
Q When you say ‘practically all the way’, approximately how many feet could you see?
A Oh, I don’t know. Fifteen hundred feet.
Q Could you see the vehicle of Patricia Mueller coming southbound at that time?
A Yes I did.
Q What was the position of your car at that time with relationship to both lanes of southbound traffic? Where was the front end of your car?
A Blocking the full left-hand lane of the southbound traffic.
Q Was your vehicle at all into the right-hand lane of the southbound traffic?
A It’s hard to say, because 1 was rolling a little bit, you know. So it’s very hard to say exactly what was covering what. But I was rolling at that point. (Emphasis supplied.)
Q What did you attempt to do when you saw the vehicle of Patricia Mueller coming southbound on Route 12?
A To accelerate to get out of the way.
Q Were you able to get out of the way of her vehicle?
A No, I was not.”

Miss Mueller was travelling in the outer southbound lane and the collision took place in that lane.

On cross examination the witness testified that Miss Mueller’s car was thirty or forty feet away when he first saw it and that his car was rolling across the intersection at the time. He also testified that she might have been travelling down the middle of the road.

Miss Mueller testified that at the time of the occurrence she was travelling south in the outer southbound lane of Route 12. Because of the piled snow she could not see into the Case Road intersection. When she first saw Allen she was twenty-five to fifteen feet from him and he was crossing Route 12. She hit her brakes, but the front end of her car hit the right end of his car. She had been travelling fifty miles per hour, five miles under the speed limit.

On cross examination Miss Mueller indicated that Allen’s car did not “inch out” into the intersection as she had observed other cars do on previous occasions. When she first saw it, it was in the inner southbound lane and was going to be in her path.

Following the testimony of Miss Mueller, Claimant rested its case.

Respondent called as its witness Joseph J. Kostur, a Safety and Claims Officer of the Illinois Department of Transportation. He testified that with respect to plowing snow on a four lane highway with a raised median, the snow in the two outside lanes is plowed onto the shoulders, and the snow in the two inner lanes is piled onto the median. Where there is an intersection this results in a greater amount of snow piled onto the median in the immediate area of the intersection. Medians are never plowed because the configuration of the medians is such that the trucks would get stuck or tip over.

Mr. Kostur further testified that the State has no program to remove accumulations of snow from a median. In this particular case the snow was not removed from the median, but, following the accident, the crossover was widened to its full width, making it possible for drivers in the cross over to get a better view of oncoming southbound traffic on Route 12.

It is possible that the State was negligent in not widening the intersection cross-over prior to the accident. The intersection was blind both for drivers on Route 12 and for the driver of any vehicle in the cross-over. The fact that the cross-over was so narrow that it could be used by only one vehicle was in itself a hazardous condition.

However, the proximate cause of the collision in the case was not the negligence of the State but the negligence of Allen in rolling out into the intersection when he did not know if there was any oncoming southbound traffic on Route 12. He had every opportunity to stop his vehicle in the inner southbound lane and let Miss Mueller pass. He did not “inch out” into the intersection as Miss Mueller had observed other cars do, but rolled on out into the intersection without stopping at any point.

Claimant’s claim with regard to Allen is barred by Allen’s contributory negligence, and its claim as subrogee of Miss Mueller is barred because Allen’s negligence, and not the negligence of the State, if any, was the proximate cause of the accident.

It is hereby ordered that this claim be, and hereby is, denied.


text:
    (No. 78-CC-1428
    Griffin Electric, Inc., a Delaware Corporation, licensed to do business in the State of Illinois, Claimant, v. The State of Illinois, Respondent.

      Order filed March 26, 1981.

    Knuppel, Grosboll, Becker and Tice, for Claimant.
   Holderman, J.

This matter involves a claim filed by Griffin Electric, Inc. against the State of Illinois for services allegedly rendered to the State at Dickson Mounds Museum near Lewiston, Illinois. Claim is in the amount of $554.17.

A transcript of the record consists of testimony by one individual, the entire transcript being twenty pages long.

The record discloses that on or about June 29, 1978, Claimant received a call from the manager of Dickson Mounds Museum to come to the museum to do certain electrical repair work. On the same day, Claimant sent two men to the park to do the required electrical work. Thereafter on June 30,1978, one man had to return to the park to complete the work in question.

It is Respondent’s contention that they requested the services of one man and that the helper who was brought along on the first day by a Mr. Griffin was not needed to do the work. The only testimony concerning the necessity of the helper is by Mr. Griffin himself, an employee of Griffin Electric, Inc., who testified that it is the custom of the electric company to send two men out on a call to ascertain the difficulty and make the necessary repairs. He further testified that in this case the repairs that were made could not have been made by one man and that the bill for the helper was necessary and jusified.

This evidence is not rebutted in any manner, shape or form by Respondent.

An award is hereby entered in favor of Claimant in the amount of $554.17.


text:
    (No. 78-CC-1647
    Billy Williams, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 18, 1981.

    Gary H. Palm, for Claimant.
    Tyrone C. Fahner, Attorney General (Richard J. Grossman, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This matter coming to be heard upon the joint stipulation of the parties for the entry of judgment:

The court finds that Claimant, an inmate of the Stateville Correctional Center, seeks compensation for his possessions which were mistakenly taken or destroyed by certain employees of Respondent. That Claimant filed an action in the United States District Court for the Northern District of Illinois, Eastern Division, No. 77-C-1470. That the parties have further agreed that Claimant should be compensated the total sum of $300.00 and further that his attorneys should be awarded the sum of $100.00 as attorney fees to be deducted from said award:

It is hereby ordered that Claimant be awarded the sum of $300.00 in full and final settlement of all claims which are the subject matter of his complaint and further that the sum of $100.00 be deducted from said award and tendered to his attorneys as their fees.


text:
    (Nos. 78-CC-1659 et al.

    Norma J. Comer et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 13, 1981.

   Roe, C. J.

These claims have been grouped together by the Court for the purpose of this opinion only and are not consolidated except where otherwise noted. Although there may be certain distinguishing characteristics among each group, the issues of law presented at this time and the factual circumstances initially giving rise to each claim are essentially the same in all of the claims.

A motion to dismiss has been filed in each of the claims at various points in time. Several of the cases had been on general continuance status or had motions for general continuance pending. By our Order of October 30, 1980, all of the continued cases were restored to active calendar and all pending motions for continuances were denied. Those Claimants were granted a period of time within which to object to the motions to dismiss and the Respondent was likewise granted time to reply to any objections. The other Claimants have not had their cases continued or continuance motions pending and have had a considerable amount of time within which to object to the motions to dismiss. Very few objections were ever filed, but the Court has carefully examined each one.

All of the claims are for retroactive compensation of $40.00 per month ($20.00 per pay period) for fiscal year 1978 pursuant to Article XXXIII, Section 4 of Collective Bargaining Agreement RC-121. This contract was entered in and became effective between the State of Illinois and the American Federation of State, County and Municipal Employees (hereinafter referred to as “AFSCME”) on July 1, 1977, to run for two years up to and including June 30, 1979. The pertinent provision of the contract reads as follows:

“Section 4. Increases Based on Revenues
All employees in the bargaining unit shall receive a lump sum payment of $20,00 per month for each $10 million “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 FY 1978 shall be entitled to the lump sum retroactive pay on a pro-rate basis. Any employee who has voluntarily quit or been discharged during FY 1978 will be required to make claim for retroactive payments due within 60 days of the end of the Fiscal Year to the Employer.”

At the close of Fiscal Year 1978 a dispute arose between the State of Illinois (Bureau of the Budget) and AFSCME officials as to exactly how much money, if any, the State had by way of “excess” in actual revenues over projections as determined under Section 3 of the contract. Section 3 provides as follows:

“Section 3. Revenue Computation
As soon as data are available for Fiscal Year 1978, the parties shall meet to examine and compute the “excess” if any, of total actual receipts into the General Funds, as compared to the total projected receipts into the General Funds, as these are defined in the Memorandum of Agreement between the parties on this subject.
Should a dispute arise between the parties it shall be settled as set forth in Section 14 of this Article.”

Regardless of what the parties contracted for, it is a fundamental constitutional requirement in Illinois that the General Assembly by law shall make appropriations for all expenditures of public funds by the State. Furthermore, appropriations for a fiscal year cannot exceed funds estimated by the General Assembly to be available during that year. Therefore, unless there were already sufficient funds appropriated to cover the expenditure contemplated in the contract a new appropriation would be necessary.

There is nothing in the record to indicate sufficient appropriations were already available. However, in anticipation of the potential increases a bill was introduced in the General Assembly to appropriate funds therefor. This bill, H.B. 3237, was introduced on April 14, 1978, and essentially provided as follows:

“Section 1. The following sums, or so much thereof as may be necessary, respectively, are appropriated to the State Comptroller from the funds designated, for personal services and related employer obligations and employees and agencies under the Personnel Code which employ persons eligible for salary increases on account of actual receipts into the general funds for fiscal year 1978 in excess of the amount of projected receipts into those funds for that year, as determined by the Bureau of the Budget, which sums shall be transferred by the State Comptroller to the necessary line items of the various agencies in their fiscal year 1978 appropriations upon receipt of a certified list of eligible employees from the Bureau of the Budget."

Following this introductory portion of the bill was a list of funds out of which certain amounts were appropriated subject to the condition precedent that the Bureau of the Budget determined that a surplus existed. Section 2 of the bill provided as follows:

“Section 2. This act takes effect June 30, 1978, and if not signed into law until after that date shall be retroactive to June 30, 1978.”

The matter was brought up in budget hearings before the legislature prior to the end of fiscal year 1978. At this time the Bureau of the Budget advised the legislature that there would be no “excess.” In contrast, AFSCME claimed there would be a substantial excess and advised the legislature of its position in the same hearings.

Upon this background, H.B 3237 was passed by both Houses, and sent to the Governor who signed the bill and it became P.A. 80-1206 on June 30,1978, differing in content from the way it was when introduced only with respect to dollar amounts.

The Bureau of the Budget determined that the total actual receipts into the General Funds did not exceed the total projected receipts. In fact the Bureau of the Budget found a deficit of approximately $37 million dollars. According to the plain language of the law which would have appropriated the money for the payments the matter would have ended at that point. However, AFSCME disagreed and, relying on their contract, the parties submitted the problem to an arbitrator. Pursuant to the last paragraph of Section 3 of the contract, set out above, the parties turned to Section 14 of the same Article which provides as follows:

“Section 14. Resolution of Disputes
In the event of any disputes over the interpretation, application or implementation of Section 2 through 7 and 10 of this Article and Memorandum of Understanding related thereto such disputes shall be submitted to Eric J. Schmerz as arbitrator, or to another mutually acceptable arbitrator, who shall be selected in accordance with the grievance procedure beginning at Step 4(b), for final and binding decision.”

The arbitrator ruled that the State had received sufficient revenues in excess of those projected to make a lump sum payment equivalent to $40.00 per month retroactive salary increase. Qualifying employees who for one reason or another left State employment during the fiscal year 1978 or otherwise did not receive the payment. These Claimants are apparently relying on the last two sentences of the last paragraph of Section 4, Article XXXIII which reads as follows:

“Employees not on the active payroll for the full twelve months of FY 1978 shall be entitled to lump sum retroactive payment on a pro rata basis. Any employee who has voluntarily quit or been discharged during FY 78 will be required to make claim for retroactive payments due within 60 days of the end of the fiscal year to the employer.”

All of these cases were filed as “lapsed appropriation” type claims on the standard forms. The law in such cases, simply stated, is that when the appropriation from which a claim should have been paid has lapsed, suit is brought in the Court of Claims, and the Court will enter an award for the amount due the Claimant. The basic issue therefore is whether or not the appropriation from which these claims should have been paid has lapsed.

We begin the analysis with an examination of the appropriation. It is fundamental that there be sufficient appropriated funds that lapse from which payment could have been made. If this Court were to grant an award where insufficient funds lapsed then we would in effect be appropriating State funds ourselves. This would be beyond our jurisdiction because, as we pointed out above, the Illinois constitution expressly and exclusively places that responsibility with the General Assembly. The bill potentially appropriating the funds for payment of the increases contemplated in the contract, H.B. 3237, was signed by the Governor and thus became law. This law was enacted following budget hearings wherein the legislature was advised of the conflict of opinion as to the availability of excess receipts over projections. Thus the legislature was aware that there might be a conflict of opinion when the fiscal year came to a close. Nevertheless they made the appropriation contingent upon the finding of an “excess” by the Bureau of the Budget only. No mention was made of AFSCME or an arbitration proceeding. This is the plain meaning of the language contained in the law.

Therefore, the only way that there could have been funds appropriated to pay the salary increases (and the only way sufficient funds from which the salary increases could have been paid could have lapsed) was if the Bureau of the Budget found there to have been an “excess.” The Bureau of the Budget in fact found there to have been no “excess.” The basic issue set forth above then becomes: Inasmuch as the law potentially appropriating the money from which the payments were to have been made expressly made the appropriation contingent upon a finding by the Bureau of the Budget that there was an “excess” of receipts over projection, what were the effects of the Bureau’s finding of no “excess” and subsequent acquiesence in submission of the matter to the arbitrator?

Based upon a plain reading of the appropriation law and the fact that the Bureau found no “excess” it is clear that there was in reality no appropriation made to pay the salary increases, the condition precedent to the existence of the appropriation having failed. It follows that no appropriation then lapsed.

However, despite the Bureau’s initial determination there is no reason stated in Respondent’s motions to dismiss or anywhere else in the record which would prevent the Bureau from changing its position. The circumstances following the initial determination by the Bureau therefore become relevant as indicia of whether or not the Bureau ever took a position different from its initial one.

After the Bureau found there to have been no “excess” AFSCME disagreed and asserted its alleged rights under the collective bargaining agreement for binding arbitration. The result of the arbitration was a finding by the arbitrator that there were sufficient “excess” receipts to pay eligible employees a lump sum salary increase equivalent to $40.00 per month for each month of employment.

Although the arbitrator’s decision was purported to have been binding under the terms of the contract, it legally had no effect whatsoever with respect to the rights of the employees to receive any payments because of the language of the appropriation law. This Court has consistently held that, in accordance with the basic principles of contract law, where a provision of a contract is in conflict with the law that provision is null and void and will not be enforced in this Court. In the case at bar the provision of the contract calling for binding arbitration is in conflict with the appropriation law. That law provided that the determination of the existence of any “excess” was to be made by the Bureau of the Budget. Any contractual provision otherwise therefore has no effect. Moreover, there is nothing in the record before us to indicate that the Bureau changed its initial position by ratifying the arbitrator’s decision regardless of its legal effect.

The only exception commonly recognized by this Court to the principle that where insufficient funds or no funds lapsed from which payment of the claim would have been made the claim is denied is where the expenditure is expressly required by law. It is quite clear from the discussion above that this exception is inapplicable in these cases.

In conclusion we find that no appropriation lapsed from which these claims would have been paid. It is therefore ordered that these claims be, and hereby are, denied.


text:
    (No. 78-CC-1907
    W. Gerald Fowler, M.D., Claimant, v. The State of Illinois, Respondent.

      Order filed May 26, 1981.

    J. Michael O’Bryne, for Claimant.
   Holderman, J.

This matter coming on to be heard upon the motion of Respondent to dismiss the claim herein, due notice being given, and the Court being fully advised in the premises, finds that:

1. Claimant has brought this action, based upon a lapsed appropriation for products or services supplied during fiscal year 1978.

2. Rule 14 of the Rules of the Court of Claims of the State of Illinois states that departmental reports, submitted by State departments, are prima facie evidence of the facts set forth therein.

3. The report of the Department of Administrative Services states that at the close of fiscal year 1978 there were no funds remaining in the appropriation to pay the subject invoice, nor were there funds available for transfer.

4. Section 30 of an Act in relation to State Finance (Ill. Rev. Stat. 1979, ch. 127, par. 166), prohibits obligating the State to any indebtedness in excess of the money appropriated for a department.

Likewise, the Court of Claims has no authority to grant an award in cases where the balance of the appropriation remaining is insufficient.

It is hereby ordered that the motion of respondent be, and the same is, granted and this claim is dismissed.


text:
    (No. 79-CC-0021
    Christopher Pacelli, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 2, 1980.

    Christopher Pacelli, pro se, for Claimant.
   Roe, C. J.

A complaint has been filed by Christopher Pacelli, who was a certified employee in the Illinois Department of Mental Health, for $113.18 which represented a pay differential between the straight time rate for two holidays worked, and the double time rate to which Claimant alleges entitlement. The Department paid Claimant the equivalent of the straight time rate based upon the provision of Rule 3 — 200 and Rule 3 — 220 of the Personnel Code which was authorized pursuant to Ill. Rev. Stat. 1977, ch. 127, par. 63b 108, and these rules have the force and effect of law. Claimant alleges entitlement to double time pay for these two holidays worked based upon the Collective Bargaining Agreement, article 8, section 8.4(1 V), effective July 1, 1977, which authorized union employees to elect to receive double time pay for working legal holidays.

The issue before the court is what provision will prevail when there is a conflict between a collective bargaining contract and Rules of the Department of Personnel. The Rules, pursuant to Ill. Rev. Stat. 1977, ch. 127, par. 63b 108, have the force and effect of law, and are binding as if made directly by the Legislature. City of Chicago v. Bullis, 124 Ill. App. 7, 17, affirmed in Powell v. Bullis 77 N.E. 575, 221 Ill. 379. Any contract provision which is in conflict with existing law cannot prevail, and, is invalid.

The Personnel Rule 3 — 200 and Rule 3 — 220 specifically provided for equivalent time off or an additional vacation day which also amounts to equivalent time off. Article 8, section 8.4 (IV), of the Collective Bargaining Agreement effective July 1, 1977 provided for union employees to secure double time pay for working holidays, which is in direct conflict with the Rules of the Department of Personnel which still affect all civil service employees whether union members or non-union members.

It is therefore the opinion of this court that the claim for double time pay should be denied, and it is the Order of this court that the complaint herein should be dismissed with prejudice.


text:
    (No. 79-CC-0057
    Maron Electric Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 11, 1981.

    Neiman & Grais, for Claimant.
   Roe, C. J.

This Court finds that this claim sounding in contract is for damages caused by delays and change orders caused by the Respondent. An investigation and report of the claim by the Capital Development Board substantiates the claim.

The Claimant and Respondent have filed a joint stipulation in which they agree that this claim should be settled for $40,525.31.

Although not obligated to honor this settlement agreement, when such agreement appears to be based on sufficient facts and to be just and reasonable, we may accept it as a basis for an award.

It is hereby ordered that the sum of forty thousand five hundred twenty five and 31/100 dollars ($40,525.31) be awarded to Claimant in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause.


text:
    (No. 79-CC-0263
    Joseph V. McKenna, Claimant, v. The State of Illinois, State Board of Education, Illinois Office of Education, Respondent.

      Opinion filed September 4, 1980.

    Traynor & Hendricks, for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant filed a claim for services alleged to have been rendered in the amount of 96.57 hours of work performed as a labor arbitrator under a contract with Respondent, at the rate of $250.00 per eight-hour day.

In April of 1976, Claimant was contacted by the State Board of Education relative to the possibility of his serving as a hearing officer in certain matters. It is Claimant’s contention that he was of the opinion that the period of time for which his services would be required would be of short duration; as a matter of fact, there were many days of hearings, and Claimant on June 17, 1977, submitted a voucher in the amount of $1,157.00 which was paid, and on June 30,1977, Claimant submitted a second voucher for $3,297.30 which was paid.

The transcript of the hearing consisted of 2,700 pages encompassed in nine volumes. The deadline for Claimant’s decision was April 30,1978, but Claimant was unable to meet it because of a certain physical condition that had started troubling him. On May 17,1978, Claimant sought medical advice, and on May 23,1978, he went into a hospital for an angiogram. On May 31, 1978, Claimant had a quadruple cardiac bypass operation.

On May 30,1978, Claimant prepared a letter, sending copies to the attorneys involved and to the Illinois Office of Education. In this letter, he explained his problems, stating that he had prepared the award which was almost ready for a rewrite and made a decision. The letter further stated that after he was able to resume work, he would complete the award explaining his decision Claimant did not complete the final draft and he was asked to return the transcript and exhibits and they were filed in the Circuit Court of Will County.

On November 17,1978, Claimant prepared a voucher for his services in the amount of $3,125.00 which was not paid.

The Circuit Court of Will County, in an opinion rendered by Judge Thomas W. Vinson on July 11, 1979, stated, in part, as follows:

“The order of this Court is that, since there were no findings of fact by the hearing officer, and since the time is long expired for this applying of such findings of fact, the order of Joseph V. McKenna, Hearing Officer of May 30, 1978, is reversed in whole, and held null and void, and this cause is remanded to the Illinois State Board of Education, so that a new and different hearing officer may be selected, and hearing de novo of the issues of this cause.”

A motion to vacate this opinion was filed, and on December 12, 1979, Judge Vinson issued an order confirming the original opinion and denying the motion to vacate.

In passing upon Claimant’s letter, the Court used the following language:

“If the Order were construed to allow a later supplying of the findings of fact, then it would not be a ‘final’ order, and would not properly be before this Court. The Order is construed by this Court as a final order.”

Claimant takes the position that the work was done by Claimant and that a finding of facts and a final order was not necessary.

Respondent takes the position that Claimant did not fulfill his part of the contract and therefore the State is under no obligation to pay the claim heretofore filed by Claimant. Respondent sets forth among the rules and regulations to be followed by the arbitrator, Rule 7 entitled The Decision, which states as follows:

“7.01 The hearing officer .shall, with reasonable dispatch, make a decision in writing as to whether or not the teacher shall be dismissed. Such decision shall include findings of fact.”

The rule further states:

“7.02 This decision should be rendered no later than 30 days from the date of closing the hearing.”

It is Respondent’s position that both of these provisions were violated and that the Circuit Court of Will County found it necessary to order an entirely new hearing. Respondent also takes the position that the actions of Claimant in failing to render a finding of fact amounted to a breach of his employment contract; therefore he cannot claim compensation for something he did not do, render a valid decision to which the department could process an appeal, if necessary, and upon which a reviewing court in a suit for administrative review could rule.

It is the opinion of this Court that one tribunal, the Circuit Court of Will County, has already passed upon this matter in finding Claimant did not fulfill his contract. Award is hereby denied and this cause is dismissed.