" This court has reviewed the allegations in Plaintiffs' Second Amended Complaint, and concludes that this is still true, notwithstanding Plaintiffs' conclusory allegation that Hamilton was engaging in "non-discretionary, ministerial duties." See Kevin's Towing, Inc. v. Thomas, 814 N.E.2d 1003, 1010 (Ill.App.Ct. 2004) (it was clear based upon factual allegations that the Mayor was not following a set policy in a routine manner). This court concludes that its prior Opinion dismissing the claims against Hamilton was correct.

When determining whether immunity attaches under section 2-201, courts look at the conduct itself rather than the intent behind it. Kevin's Towing, Inc. v. Thomas, 351 Ill.App.3d 540, 548 (2004).

However, the parties dispute which section controls the outcome of this case. See Kevin's Towing, Inc. v. Thomas, 351 Ill.App.3d 540, 547, 286 Ill.Dec. 777, 814 N.E.2d 1003 (2004) (while the negligent performance of discretionary duties cannot subject a municipality to tort liability, the negligent performance of ministerial duties can); see also Hanley v. City of Chicago, 343 Ill.App.3d 49, 56, 277 Ill.Dec. 140, 795 N.E.2d 808 (2003) (the discretionary immunity under section 2–201 immunizes against liability for both negligence and willful and wanton misconduct). ¶ 37 Plaintiff argues that the duty to maintain property under section 3 –102 rendered the College's handling of the sidewalk deviation a ministerial function.

The defendants argue that workforce determinations are within the scope of employment of public officials, like Swanson, and draw on several cases for support. See Brooks v. Daley, 2015 Ill. App. (1st) 140392 (2015), ¶¶ 18, 30, 29 N.E.3d 1108, 1114, 1116-17 (mayor and chief of staff were within scope of employment in forcing plaintiff's resignation because they "serve in positions involving the determination of policy and exercise of discretion," which encompasses hiring and firing of high-ranking city officials); Kevin's Towing, Inc. v. Thomas, 351 Ill. App. 3d 540, 549, 814 N.E.2d 1003, 1011 (2004) (mayor's decision to revoke towing contract with plaintiff was a policy decision and entitled to immunity, even if undertaken out of "corrupt or malicious motives"). While public officials enjoy a wide berth regarding what acts are covered by scope of employment, it is not absolute.

Workers filling potholes were engaged in policy decisions because they allocated their time and resources among the various potholes to be repaired, and a principal's denial of a student's request to leave school early due to bad weather was a policy decision because it involved balancing the student's interest with the school's interest in an orderly dismissal. Kevin's Towing, Inc. v. Thomas , 351 Ill. App. 3d 540, 548, 286 Ill.Dec. 777, 814 N.E.2d 1003, 1010 (2d Dist. 2004) (citations omitted). Reviewing its precedent, the Illinois Supreme Court has also noted that a policy determination or exercise of discretion requires a "conscious decision."

More specifically, "Section 2-201 bars a plaintiff's claim if the action leading to plaintiff's injury involved both a policy decision and a discretionary act." McDonald v. Camarillo, 2010 WL 4483314, *2 (N.D.Ill. 2010) (citing Harinek v. 161 North Clark St. Ltd. P'ship, 692 N.E.2d 1177, 1181 (Ill. 1998); see also Kevin's Towing, Inc. v. Thomas, 814 N.E.2d 1003, 1007 (Ill.App.Ct. 2004) ("employee's act or omission leading to the alleged injury must be both a policy determination and an exercise of discretion").

Regardless of whether Held's acts constitute policy decisions, the court cannot decide at this point in the case whether Held's failure to disseminate information and implement special services are discretionary acts. Whether a decision is discretionary is determined on a case-by-case basis based on all the facts and circumstances. Snyder v. Curran Twp., 167 Ill. 2d 466, 474 (1995); Kevin's Towing, Inc. v. Thomas, 351 Ill. App. 3d 540, 547 (2004). Moreover, defendants have the burden of proof on the issue and plaintiffs need not address it in their complaint.

See Village of Bloomingdale v. CDG Enter., Inc., 196 Ill. 2d 484, 752 N.E.2d 1090, 1098 (2001). See also Kevin's Towing, Inc. v. Thomas, 351 Ill. App. 3d 540, 814 N.E.2d 1003, 1008 (2d Dist. 2004); Apex Oil, 2006 WL 566451 at *7; Hanania II, 319 F. Supp. 2d at 836;Harris v. City of West Chicago, Ill., 2002 WL 31001888 *9 (N.D. Ill. Sept. 3, 2002). When applying Illinois law, this court is to follow Seventh Circuit holdings unless subsequent state court rulings convince the court that the Seventh Circuit holding is no longer good law.

See Village of Bloomingdale, 196 Ill. 2d at 497, 752 N.E.2d at 1100 ("section 2-104 plainly grants immunity for injury caused by the 'denial [of] any permit' and is, therefore, controlling.") (emphasis in original). See also Kevin's Towing, Inc. v. Thomas, 351 Ill. App. 3d 540, 545, 814 N.E.2d 1003, 1008 (2d Dist. 2004) (immunity does not require showing that the public authority acted in good faith). The Village Defendants' motion to dismiss Count VIII is granted.

We must look primarily at Alderman Moreno's conduct itself, rather than the intent behind it. Kevin's Towing, Inc. v. Thomas, 351 Ill. App. 3d 540, 548 (2004). And, Alderman Moreno's actions were entirely consistent with the requirements for section 2-201 immunity.