Opinion
1-23-0550
01-16-2024
CHICAGO FIRE FIGHTERS UNION, LOCAL NO. 2, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS A.F.L.-C.I.O.-C.L.C., Plaintiff-Appellant, v. CITY OF CHICAGO, CHICAGO FIRE DEPARTMENT, CITY OF CHICAGO DEPARTMENT OF HUMAN RESOURCES, LORI LIGHTFOOT, in her official capacity as Mayor of the City of Chicago, ANNETTE NANCE HOLT, in her official capacity as Commissioner of the Fire Department, and CHRISTOPHER OWEN, in his official capacity as Commissioner of the City of Chicago Department of Human Resources, Defendants-Appellees.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County No. 21-CH-5715 The Honorable Caroline Kate Moreland, Judge Presiding.
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Lavin and Coghlan concurred in the judgment.
ORDER
FITZGERALD SMITH, PRESIDING JUSTICE
¶ 1 Held: Judgment on the pleadings in favor of municipal defendants is affirmed on labor union's claim that employee vaccination policy was not imposed in conformance with procedural requirements of ordinance.
¶ 2 This appeal presents the question of whether the plaintiff, Chicago Fire Fighters' Union, Local No. 2, International Association of Fire Fighters, A.F.L.-C.I.O-C.L.C. (Union), which is a party to a collective bargaining agreement (CBA) with the City of Chicago (City), may pursue a claim that the COVID-19 vaccination policy imposed by the City on its employees is ultra vires and void ab initio on the basis that the City failed to comply with the procedural requirement of publishing newspaper notice of proposed human resources or personnel rules under section 2-74050 of the Municipal Code of Chicago (eff. Dec. 7, 2005). The trial court entered judgment on the pleadings against the Union, reasoning that an arbitrator had ruled on grievances filed by the Union that the vaccination policy was a valid exercise of the City's authority under the parties' CBA, that the arbitrator's ruling was final and binding on the parties, and that the arbitrator's determination that the policy was valid trumped the Union's contention that the policy was not enacted in conformance with the publication requirements of the ordinance. The Union argues that the trial court erred in entering judgment on the pleadings, arguing that it engaged in an inadequate analysis of whether the CBA was "contrary" to the ordinance and thus superseded it. See 5 ILCS 315/15(b) (West 2020). We affirm the judgment of the trial court.
¶ 3 BACKGROUND
¶ 4 In late-August 2021, the City announced its intent to require that all its employees be fully vaccinated against COVID-19 by October 15, 2021. On September 24, 2021, the City sent an email to its employees with more detailed information about what this requirement would involve, stating it was "continuing to work with our labor partners on finalizing a vaccination policy that is effective, fair, and workable." The Union disputes that the City involved it negotiations or collective bargaining over the vaccination policy.
¶ 5 On October 8, 2021, the City sent its employees an e-mail attaching the "City of Chicago COVID-19 Vaccination Policy" and informing them that the finalized policy was effective that day. In pertinent summary, this policy provided that, effective October 15, 2021, as a condition of employment, all City employees must either be fully vaccinated against COVID-19 (meaning two weeks past the second dose of a Pfizer or Moderna vaccine or the first dose of a Johnson &Johnson vaccine) or undergo biweekly testing for COVID-19. The option for testing expired December 31, 2021, after which time full vaccination was required. The policy allowed for exemptions for reasons relating to disability, medical conditions, or religious beliefs. All employes were required to report their vaccination status by October 15, 2021. The policy provided that employees who failed to comply with the policy would be placed in non-disciplinary, no-pay status until they came into compliance with its requirements.
¶ 6 As stated above, the City and the Union are parties to a CBA. The Union represents certain employees of the City assigned to the Chicago Fire Department and subject to the City's vaccination policy. On October 12, 2021, the Union filed a grievance with the Chicago Fire Department alleging, inter alia, that the City was violating the due process and collective bargaining rights of the fire fighters by its unilateral implementation of the vaccination policy. Beginning on October 15, 2021, the City began placing employee fire fighters on non-disciplinary, no-pay status for failing to comply with the policy. The Union also filed additional grievances on behalf of individual fire fighters who had been placed on non-disciplinary, no-pay status, alleging that the City was violating the CBA by taking this action.
¶ 7 With the City not having responded to its grievances by November 10, 2021, the Union filed the verified complaint for declaratory and injunctive relief in the present action. In addition to the City, other defendants included the Chicago Fire Department, the City of Chicago Department of Human Resources, Lori Lightfoot, in her official capacity as the Mayor of the City of Chicago, Annette Nance Holt, in her official capacity as the Commissioner of the Chicago Fire Department, and Christopher Owen, in his official capacity as the Commissioner of the Chicago Department of Human Resources. (We refer to the defendants collectively as the City.)
¶ 8 The Union's complaint contained three counts. In count I, the Union sought a declaratory judgment that the City's vaccination policy was ultra vires and voidab initio because the City had failed to adhere to the requirements of section 2-74-050 of the Municipal Code of Chicago (eff. Dec. 7, 2005) for publishing notice and allowing public comment on "human resources rules" or "personnel rules." In count II, the Union sought an injunction in aid of arbitration, to compel the City to proceed to expedited arbitration of its grievances challenging the vaccination policy, to preserve the status quo pending such arbitration, and to restrain the City from enforcing the vaccination deadlines pending arbitration. In count III, the Union alleged that the City's unilateral imposition of the vaccination policy and refusal to bargain with the Union on the issue violated section 14(1) of the Illinois Public Labor Relations Act (5 ILCS 315/14(1) (West 2020)) and the terms of the parties' CBA.
¶ 9 Along with its complaint, the Union also filed a verified emergency motion for a temporary restraining order (TRO), seeking to enjoin the City for implementing its vaccination policy until a final decision was reached on the matter. The City filed a response to the emergency motion for a TRO on November 16, 2021, stating among other things that the Union and the City had come to agreement that the Union's grievances would be heard by arbitrator George T. Roumell in early December 2021. The trial court denied the Union's emergency motion for a TRO.
¶ 10 On December 15, 2021, arbitrator Roumell issued an opinion and award denying the grievances filed by the Union. In effect, he found that the City's imposition of the vaccination policy was an exercise of its rights under the CBA" 'to unilaterally determine matters of inherent managerial policy and to implement decisions with respect thereto,'" which was not limited by other provisions of the CBA. He also found that the placement of fire fighters on no-pay status for failure to become vaccinated by a date certain does not violate the CBA, but he deferred a decision on whether the CBA permitted no-pay status for merely failing to report vaccination status.
¶ 11 The City thereafter filed a motion for judgment on the pleadings as to all three counts of the complaint. Only count I was contested and is thus pertinent to this appeal. As to count I, the City argued that the arbitrator's binding determination that its implementation of the vaccination policy was a lawful exercise of its authority under the CBA was controlling on the question of the policy's validity. It argued that, because Illinois law provides that the CBA "shall supersede any contrary statutes, charters, ordinances, rules or regulations relating to wages, hours and conditions of employment and employment relations adopted by the public employer or its agents" (5 ILCS 315/15(b) (West 2020)), a vaccination policy found to be validly imposed under the CBA could not be rendered void by its purported nonconformance with a separate municipal ordinance.
¶ 12 In response, the Union argued that genuine issues of material fact existed as to count I that precluded entry of judgment on the pleadings. In summary, the issues of fact identified by the Union pertained to the process by which the City's internal departments had approved and implemented the vaccination policy. Its argument was that discovery and evidence was needed to prove whether the vaccination policy was a "human resources rule" or "personnel rule," thereby triggering the requirements of publishing newspaper notice under section 2-74-050 of the Municipal Code of Chicago (eff. Dec. 7, 2005). The Union further argued that it could not be concluded from the pleadings alone that a conflict existed between the CBA and the ordinance. It argued that the CBA had nothing to do with the claim being raised in count I, and it noted that the grievances before arbitrator Roumell had not involved the issue of the procedural method by which the vaccination policy had been implemented.
¶ 13 The trial court granted judgment on the pleadings in favor of the City as to all counts of the verified complaint and dismissed it with prejudice. The trial court's reasoning largely tracked the City's argument as set forth above. This appeal followed.
¶ 14 ANALYSIS
¶ 15 The Union's sole argument on appeal is that the trial court erred in granting judgment on the pleadings in favor of the City on count I of its complaint. The Union argues that the trial court failed to adequately consider whether section 2-74-050 of the Municipal Code of Chicago (eff. Dec. 7, 2005) was "contrary" to any provisions of the parties' CBA, when it applied the rule that a CBA "shall supersede any contrary *** ordinances *** relating to wages, hours and conditions of employment and employment relations adopted by the public employer." See 5 ILCS 315/15(b) (West 2020). The Union argues that neither the City nor the trial court has identified any actual conflict between section 2-74-050 and any provision of the CBA. The Union argues that this is not a question that can be resolved based solely on the pleadings in this case.
¶ 16 "Any party may seasonably move for judgment on the pleadings." 735 ILCS 5/2-615(e) (West 2020). A motion for judgment on the pleadings is essentially a motion for summary judgment limited to the pleadings, and it is properly granted when the pleadings disclose no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. In re Appointment of Special Prosecutor, 2019 IL 122949, ¶ 52. In ruling on such a motion, the court considers only those facts apparent from the face of the pleadings, matters subject to judicial notice, and judicial admissions in the record. Id. All well-pleaded facts and reasonable inferences therefrom are taken as true. Id. The standard of review is de novo. Id. ¶ 22.
¶ 17 The Union's argument implicates the interpretation of a municipal ordinance. The same principles of statutory interpretation apply to the interpretation of municipal ordinances. Palm v. 2800 Lake Shore Drive Condominium Ass 'n, 2013 IL 110505, ¶ 48. The fundamental objective of statutory interpretation is to ascertain and give effect to the drafters' intent. Id. An ordinance's language, which must be given its plain and ordinary meaning, is the best indicator of the drafters' intent. Sloper v. City of Chicago, Department of Administrative Hearings, 2014 IL App (1st) 140712, ¶ 16. The interpretation of an ordinance presents a question of law, which is also a matter subject to de novo review. Trilisky v. City of Chicago, 2019 IL App (1st) 182189, ¶ 29.
¶ 18 As stated above, the theory of count I of the Union's verified complaint is that the vaccination policy is ultra vires and void ab initio because it was not adopted in conformance with the procedural requirements of section 2-74-050 of the Municipal Code of Chicago (eff. Dec. 7, 2005). That ordinance provides:
"The commissioner of human resources shall issue human resources rules, which may also be referred to as personnel rules. Prior to the effective date of such rules, the commissioner of human resources shall give public notice in one or more newspapers of general circulation, and in no case shall such publication be less than ten days before the effective date of the proposed rule or amendment to the rule. Such public notice shall include information concerning where the rules can be reviewed and where comments may be directed. Nothing contained herein shall prohibit the commissioner of human resources from giving other appropriate public notice. The rules shall provide:
(1) For the preparation, maintenance and revision of a position classification plan for all positions in the senior executive service, career service and department employment service, based upon similarity of duties performed and responsibility assigned, so that the same qualifications may reasonably be required for and the same schedule of pay may equitably be applied to all positions in the same class;
(2) For the annual submission of a pay plan to the mayor;
(3) For the recruitment and selection of persons in the career service on the basis of their relative fitness, and job-related selection procedures in the department employment service;
(4) For the establishment of eligible lists for appointment and promotion in career service, upon which lists shall be placed the names of successful candidates in order of their relative excellence in the respective examinations. The commissioner may substitute rankings such as excellent, well-qualified and qualified for numerical ratings and establish eligible lists accordingly. Such rules may provide for lists by area or location, by department or other agency, for removal of those not available for or refusing employment, for minimum and maximum duration of such lists, and for such other provisions as may be necessary to provide rapid and satisfactory service to the operating agencies. The rules may authorize removal of eligibles from lists if those eligibles fail to furnish evidence of availability upon forms sent to them by the commissioner;
(5) For the certification to an appointing authority of the names (a) of the five highest persons available on the appropriate eligible list to fill each vacancy, or (b) from the highest ranking group if the list is by rankings instead of numerical ratings;
(6) For promotions which shall give appropriate considerations to the applicant's qualifications, record of performance and ability;
(7) For probationary periods after original career service appointment not to exceed one year; (8) For emergency employment for not more than 90 days with the consent of
the commissioner and for provisional employment when there is no appropriate eligible list available. No such provisional appointment shall continue longer than nine months, nor shall successive provisional appointments be allowed;
(9) For keeping records of performance of employees in the career service, which performance records shall be considered in determining salary increments or increases for meritorious services; as a factor in promotions; as a factor in reinstatements; and as a factor in discharges and transfers. Appropriate performance records will be maintained for other employees;
(10) For layoffs in the career service, by reason of lack of funds or work, or abolition of a position, or material change in duties or organization, and for reemployment of employees so laid off;
(11) For implementation and administration of the grievance procedure provided by this chapter;
(12) For the establishment of disciplinary measures such as suspension, demotion in rank or grade, or discharge. For all permanent employees in the career service, such measures shall provide for a statement of the charges on which discipline is based, together with an explanation of the evidence supporting the charges and an opportunity for the employee to respond to the charges in writing before action is taken, appeals after such disciplinary action, and a hearing on the charges upon request of the employee in case of discharge, demotion or suspension exceeding 30 days, and review of suspensions not exceeding 30 days, consistent with the requirements of due process of law. The charges and explanation of evidence need not be in any particular form, but must be sufficient to apprise the
employee of the matters on which discipline may be based. The employee's response must be reviewed by the department head or designee responsible for making the decision, provided that such designee may not be the person who initiated the charges against the employee. No permanent employee in the career service may be discharged, demoted or suspended for more than 30 days unless the statement of charges and any matters in support are first reviewed by the departments of law and human resources, before the employee is notified of such action;
(13) For development and operation of programs to improve work effectiveness, including training, education, safety, health, welfare, counseling, recreation and employee relations;
(14) For the establishment of procedures for departmental review of disciplinary actions taken against departmental employment service employees. All such procedures shall be approved by the commissioner of human resources;
(15) For such other policies and administrative regulations, not inconsistent with this law, as may be proper and necessary for its enforcement." (Emphasis added). Id.
¶ 19 As an initial matter, we are skeptical of the Union's argument that the vaccination policy at issue is a "human resources rule" or "personnel rule" within the meaning of the above ordinance, such as to implicate its procedural requirements of publishing notice at least ten days prior to its effective date and allowing for public comment on the rule. The reference in this ordinance to the issuance of "human resources rules, which may also be referred to as personnel rules" appears to be a reference to the "City of Chicago Personnel Rules." This is a specific compilation of rules, which has existed for decades with periodic amendments, addressing the topics enumerated in this ordinance. That said, the City did not make any argument in the trial court that the vaccination policy was not a "personnel rule" in the sense in which that term is used in section 2-74-050. The City does raise the argument on appeal that section 2-74-050 is inapplicable on its face to the vaccination policy. However, the City makes this argument only in a cursory fashion that fails to address section 2-74-050 in any way, and without adequate briefing we decline to consider it.
The court may take judicial notice of rules and regulations issued by a municipality. Azzone v. North Palos Fire Protection District, 105 Ill.App.3d 877, 879 (1982). The City of Chicago Personnel Rules are available at: https://www.chicago.gov/content/dam/citv/depts/dhr/supp info/HRpolicies/2014 PERSONNEL RULES-FINAL 2014 v3.pdf [https://perma.cc/AU7N-J8YN] .
¶ 20 Accordingly, we will assume for argument's sake that section 2-74-050 could apply to the vaccination policy. The question then is whether this ordinance is superseded by the parties' CBA. Section 15(b) of the Illinois Public Labor Relations Act provides in pertinent part that "any collective bargaining contract between a public employer and a labor organization executed pursuant to this Act shall supersede any contrary statutes, charters, ordinances, rules or regulations relating to wages, hours and conditions of employment and employment relations adopted by the public employer or its agents." 5 ILCS 315/15(b) (West 2020).
¶ 21 Citing section 15(b), the City argues that, because arbitrator Roumell made a final and binding determination that the vaccination policy was a valid exercise of the City's authority under the CBA, any claim by the Union that the City lacked the authority to implement the vaccination policy under section 2-74-050 must fail as a matter of law. The City argues that the fact that the vaccination policy has been found enforceable under the CBA means that, by definition, any other ordinance rendering the policy unenforceable would be contrary to, and thus superseded by, the CBA.
¶ 22 This argument by the City appears to have some merit. However, the Union is also correct that the issue of the City's procedural compliance with section 2-74-050 was never before arbitrator Roumell. Also, the City draws our attention to no case involving an analogous situation in which a personnel rule was upheld on the basis that it was something that a public employer was authorized to impose under a collective bargaining agreement, notwithstanding the public employer's failure to comply with the procedural requirements of an ordinance when doing so.
¶ 23 We find, however, that this case can be resolved in a more straightforward manner. Our comparison of section 2-74-050 to the terms of the parties' CBA leads us to conclude that the ordinance's requirement that the commissioner of human resources publish notice in a newspaper at least ten days before the effective date of the proposed rule, including information as to where the rule can be reviewed and comments directed, is contrary to the terms of the parties' CBA. Among the CBA provisions cited in arbitrator Roumell's opinion and award were sections 17.1 and 17.2, which pertain to the City's right to establish new or revised rules applicable to the Union and its members and require only that new or revised rules be "posted" ten days prior to the date they become effective or enforceable. Section 17.1(A) provides, "The Union agrees that it and its members shall comply, in full, with all Fire Department Rules and Regulations and Practices and Procedures that are not in conflict with the provisions of this Agreement." Section 17.2 provides:
"New or revised rules and general orders having the effect of changing a rule or regulation may be established from time to time by the Employer [(i.e., the City)]. Any such new or revised rule(s) or general order(s) shall be posted ten (10) days before they become effective or enforceable. Where possible, the Employer shall endeavor to discuss proposals for new rules and regulations and general orders with the Rules and Regulations
Committee prior to posting."
We conclude that the procedural requirement in section 2-74-050 of publishing notice in a newspaper of a proposed human resources or personnel rule is contrary to section 17.2 of the parties' CBA, which requires only the posting of a new or revised rule which the City seeks to impose on the Union or its members. For this reason, we hold that count I of the Union's verified complaint seeking to void the vaccination policy on the basis that it was not adopted in conformance with the publication requirements of section 2-74-050 fails as a matter of law. We therefore affirm the trial court's granting of judgment on the pleadings as to that count.
¶ 24 CONCLUSION
¶ 25 For the foregoing reasons, the judgment of the trial court is affirmed.
¶ 26 Affirmed.