                                 2015 IL App (1st) 133454
           Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.

                                                             SECOND DIVISION
                                                                   May 19, 2015
______________________________________________________________________________

                                     IN THE
                         APPELLATE COURT OF ILLINOIS
                            FIRST JUDICIAL DISTRICT
_________________________________________________________________________________


AMERICAN FEDERATION OF STATE,              )               Petition for Review of a Decision
COUNTY, AND MUNICIPAL EMPLOYEES            )               and Order of the Illinois Labor
(AFSCME), COUNCIL 31,                      )               Relations Board, State Panel.
                                           )
       Petitioner,                         )
                                           )
(Glen Bell, Lisa Krebs, Carol Gibbs, David )
Johnson, and Maureen Haugh-Stover,         )               Nos.
                                           )               S-DE-14-005, S-DE-14-008
       Individual Objectors).              )               S-DE-14-009, S-DE-14-010,
                                           )               S-DE-14-017, S-DE-14-021,
v.                                         )               S-DE-14-026, S-DE-14-028,
                                           )               S-DE-14-030, S-DE-14-031,
THE STATE OF ILLINOIS, THE DEPARTMENT)                     S-DE-14-032, S-DE-14-034,
OF CENTRAL MANAGEMENT SERVICES, and )                      S-DE-14-039, S-DE-14-040,
THE ILLINOIS LABOR RELATIONS BOARD, )                      S-DE-14-041, S-DE-14-042,
STATE PANEL,                               )               S-DE-14-043, S-DE-14-044,
                                           )               and S-DE-14-045
       Respondents.                        )


      PRESIDING JUSTICE SIMON delivered the judgment of the court, with opinion.
      Justices Neville and Pierce concurred in the judgment and opinion.


                                          OPINION

¶1     This case deals with a statute aimed at increasing efficiency in the state government by

reducing collective bargaining unit membership among management-level state employees. The
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


goal of the statute is to ensure that certain employees' undivided loyalty will be to the executive

branch, as collective bargaining unit membership inhibits their ability to manage subordinates with

whom they share common interests as collective bargaining members. To further that stated

objective, the General Assembly passed a statute that gave the Governor the authority to

"designate" up to 3,580 state employment positions. "Designate" in this context means that the

Governor can file a petition and, so long as the employment position qualifies for exemption under

certain statutory parameters, the employee occupying that position becomes excluded from his or

her collective bargaining unit.

¶2     Under the authority of that statute, the Governor filed petitions identifying the positions

occupied by the individual objectors in these cases (individuals) for exclusion from their collective

bargaining units. The Governor's designations were approved by the Illinois Labor Relations

Board, thereby excluding the individuals from their collective bargaining units. AFSCME, on

behalf of the designated employees, filed this appeal arguing that the statute is unconstitutional.

We reject AFSCME's arguments, and, therefore, we affirm the decisions of the Illinois Labor

Relations Board.

¶3                                      BACKGROUND

¶4     In 2011, the Illinois General Assembly began to debate measures that would remove state

workers in management positions from their collective bargaining units with the goal that those

employees would act as managers and would not act with any allegiance to their fellow collective

bargaining unit members. The stated objective of these legislative efforts was to increase

efficiency in the state government. In 2013, the General Assembly passed a public act that

narrowed the class of those that could be considered "public employees" and set up a process by



                                                -2-
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


which the Governor could designate up to 3,580 positions as excluded from collective bargaining

units. Months later, the General Assembly passed another public act that exempted certain

specific state employment positions from designation—positions that may have otherwise been

considered to have fallen within the ambit of those subject to designation under the initial public

act. The public acts were approved and signed into law by the Governor on April 5, 2013, and

together they became section 6.1 of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/6.1

(West Supp. 2013)) .

¶5      Beginning in August 2013, consistent with the procedures set forth in the Act, the

Department of Central Management Services, on behalf of the Governor, filed petitions with the

Illinois Labor Relations Board (ILRB) seeking to exclude certain public employment positions

from collective bargaining units. AFSCME, on behalf of the individuals, contested their removal

from their collective bargaining units and filed objections to the petitions. The ILRB approved

the Governor's decision to strip the individuals' collective bargaining rights. In four of the five

administrative cases before us, the ILRB relied exclusively on the positions' title—"senior public

service administrator"—for its determination that the Governor's action was appropriate. Section

6.1(b)(2) of the statute permits the Governor to designate, and the ILRB to approve the

designation, based solely on the position's title. "Senior public service administrator" is one of

the position titles that the statute authorizes the Governor to designate. The ILRB rejected the

individuals' request for an evidentiary hearing as well as their constitutional challenges. In the

other of the five cases currently before us, the ILRB found that the positions were Rutan-exempt

(see generally Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)) and exempt from

jurisdiction B of the Personnel Code (20 ILCS 415/8b). Section 6.1(b)(3) of the statute permits



                                                -3-
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


the Governor to designate employees, and the ILRB to approve the designation, based on those

criteria.

¶6          The statute at issue is the Illinois Public Labor Relations Act (5 ILCS 315/1 et seq. (West

2012)). The statutory section challenged by the individuals is titled "Gubernatorial designation of

certain public employment positions as excluded from collective bargaining." 5 ILCS 315/6.1

(West Supp. 2013). That section, in pertinent part, provides:

                  "The Governor is authorized to designate up to 3,580 State

                  employment positions collectively within State agencies directly

                  responsible to the Governor, and, upon designation, those positions

                  and employees in those positions, if any, are hereby excluded from

                  the self-organization and collective bargaining provisions of Section

                  6 of this Act. Only those employment positions that have been

                  certified in a bargaining unit on or after December 2, 2008, that have a

                  pending petition for certification in a bargaining unit on April 5, 2013

                  (the effective date of Public Act 97-1172), or that neither have been

                  certified in a bargaining unit on or after December 2, 2008 nor have a

                  pending petition for certification in a bargaining unit on the effective

                  date of this amendatory Act of the 97th General Assembly are eligible

                  to be designated by the Governor under this Section. The Governor

                  may not designate under this Section, however, more than 1,900

                  employment positions that have been certified in a bargaining unit on

                  or after December 2, 2008." 5 ILCS 315/6.1(a) (West Supp. 2013).



                                                   -4-
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


The statute goes on to provide metrics to instruct the Governor as to which positions

qualify for designation.

                       "To qualify for designation under this Section, the

               employment position must meet one or more of the following

               requirements:

                               (1) it must authorize an employee in that position to

                       act as a legislative liaison;

                               (2) it must have a title of, or authorize a person who

                       holds that position to exercise substantially similar duties as

                       an, Agency General Counsel, Agency Chief of Staff, Agency

                       Executive Director, Agency Deputy Director, Agency Chief

                       Fiscal Officer, Agency Human Resources Director, Senior

                       Public Service Administrator, Public Information Officer, or

                       Chief Information Officer;

                               (3) it must be a Rutan-exempt, as designated by the

                       employer, position and completely exempt from jurisdiction

                       B of the Personnel Code;

                               (4) it must be a term appointed position pursuant to

                       Section 8b.18 or 8b.19 of the Personnel Code; or

                               (5) it must authorize an employee in that position to

                       have significant and independent discretionary authority as an

                       employee.



                                                 -5-
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


                       Within 60 days after the Governor makes a designation under

               this Section, the Board shall determine, in a manner that is consistent

               with the requirements of due process, whether the designation

               comports with the requirements of this Section." 5 ILCS 315/6.1(b)

               (West Supp. 2013).

The statute also provides that the Governor has only 365 days to designate the positions as exempt

from collective bargaining (5 ILCS 315/6.1(d) (West Supp. 2013)) and expressly provides that

some positions that might otherwise qualify as managerial under the Act cannot be designated (5

ILCS 315/6.1(e), (f) (West Supp. 2013)).

¶7     On appeal, AFSCME interposes challenges to the procedural dictates of the statute as well

as facial challenges to its constitutionality. Specifically, AFSCME argues that section 6.1: (1) is

an unconstitutional delegation of legislative authority to the executive branch; (2) is an

unconstitutional violation of the individuals' equal protection rights; (3) constitutes

unconstitutional special legislation; and (4) unconstitutionally deprives the individuals of due

process of law. Further, AFSCME argues: (5) that the ILRB's refusal to hold an evidentiary

hearing on the actual job duties of each position was a misinterpretation of the statute that denied

the individuals due process of law; and (6) that the statute impermissibly impaired the collective

bargaining agreement that was in place at the time of the designations.

¶8     The Illinois Public Labor Relations Act provides that final rulings made by the ILRB under

section 6.1 of the statute are directly appealable to this court. To date, it appears that no courts

have addressed the constitutionality of section 6.1. For analytical clarity, we will address the

procedural questions first and then proceed to analyze whether the statute is substantively



                                                -6-
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


unconstitutional.

¶9                                           ANALYSIS

¶ 10                                  I. Procedural Questions

¶ 11    The ILRB did not weigh any evidence and we review its decisions on questions of law de

novo. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998). The

cardinal rule of statutory construction is to ascertain and give effect to the legislature's intent.

Acme Markets, Inc. v. Callanan, 236 Ill. 2d 29, 37 (2009). The best evidence of legislative intent

is the language used in the statute itself, which must be given its plain and ordinary meaning.

Roselle Police Pension Board v. Village of Roselle, 232 Ill. 2d 546, 552 (2009).

¶ 12                                       A. Due Process

¶ 13    The government cannot deprive a person of life, liberty, or property without due process of

law. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2. Procedural due process requires that

when a constitutional right is at stake, the person whose right is at issue is entitled to notice and a

meaningful opportunity to be heard. Chisem v. McCarthy, 2014 IL App (1st) 132389, ¶ 14.

AFSCME argues that section 6.1 deprives the designated employees of their procedural due

process rights because it denies them the opportunity to lodge meaningful objections to the

designations. AFSCME additionally contends that the time requirements set forth in the statute

do not afford the designated employees their due process rights because the statute only gives them

10 days to file objections and requires the ILRB to act on each of the Governor's petitions within

60 days.

¶ 14    A prerequisite to a procedural due process challenge is that the challenger has a

constitutionally protected right that is threatened. Id. Here, AFSCME has made no showing that



                                                  -7-
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


the individuals have such a right. Moreover, there is nothing in the record that would demonstrate

that it is impossible or even impractical to comply with the time restraints set forth in the statute.

In fact, AFSCME was able to file its objections and the ILRB was able to consider them and rule

on them within the time allotted by the statute. Facial challenges to statutes require the challenger

to demonstrate that the statute cannot be constitutionally applied under any circumstances.

Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023, ¶ 38.

The time requirements set forth in section 6.1 can be met and, without presenting any evidence that

the time requirements effectively prevent an employee from meaningfully challenging the

Governor's action, AFSCME has failed to demonstrate that procedural due process concerns

render the statute unconstitutional.

¶ 15                                   B. Evidentiary Hearing

¶ 16   AFSCME challenges the ILRB's refusal to grant the individuals an evidentiary hearing and

contends that the individuals do not, in fact, perform managerial duties and that they should have

had an opportunity to prove that assertion. It argues that, if the statute is aimed at only removing

managers from collective bargaining units in order to increase efficiency, it should not, either

intentionally or unintentionally, remove nonmanagerial employees from their collective

bargaining units. However, based on the statute's plain language, which is what the ILRB

rightfully relied upon here, designated employees are not entitled to an evidentiary hearing when

their position is clearly among those subject to designation under the statute. AFSCME does not,

and could not, argue that the individuals do not qualify for designation as it is undisputed that the

individuals in four of the five cases are senior public service administrators and those in the other

case are Rutan-exempt. See 5 ILCS 315/6.1(b)(2), (3) (West Supp. 2013).



                                                 -8-
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


¶ 17   Therefore, regardless of the substantive constitutionality of the statute, there was no

procedural violation by the ILRB in this case. The plain language of the statute requires that the

ILRB simply look at the employees' job titles, which it did properly, and nothing in the statute

entitled the individuals to an evidentiary hearing.

¶ 18                         II. Substantive Constitutional Questions

¶ 19   We review the constitutionality of a statue de novo. Kanerva v. Weems, 2014 IL 115811,

¶ 33. Statutes are presumed to be constitutional, and the party challenging the validity of a statute

bears the burden of rebutting this presumption. Hayashi, 2014 IL 116023, ¶ 22. If it is

reasonably possible, we are to construe a statute in a manner that upholds its validity and

constitutionality. Id.

¶ 20                                  A. Delegation of Power

¶ 21   The legislative, executive, and judicial branches are separate. Ill. Const. 1970, art. II,

§ 1. No branch shall exercise the powers properly belonging to another branch. Id. The power

to make laws belongs solely to the legislature, and the legislature cannot delegate its power to

make law. Chicagoland Chamber of Commerce v. Pappas, 378 Ill. App. 3d 334, 348 (2007).

Thus, a statute is unconstitutional if the legislature abdicates its lawmaking function by vesting the

executive branch with the authority to perform its legislative function. County of Cook v. Ogilvie,

50 Ill. 2d 379, 384 (1972). This means that the legislature cannot delegate its power to determine

what the law should be, but it can delegate the power to execute the law as long as it provides

sufficient standards to guide the delegatee in the enforcement of the law. East St. Louis

Federation of Teachers, Local 1220 v. East St. Louis School District No. 189 Financial Oversight

Panel, 178 Ill. 2d 399, 423 (1997).



                                                -9-
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


¶ 22   AFSCME argues that the delegation here is improper because it gives the Governor

legislative authority by authorizing him to determine classifications of employees under the Act

without sufficient guiding principles. Also, AFSCME contends that since the designations

selected by the Governor cannot be reversed by a future governor, they have the effect of law.

¶ 23   When delegating its authority, the legislature must provide sufficient identification of: (1)

the persons and activities potentially subject to regulation; (2) the harm sought to be prevented;

and (3) the general means intended to be available to the delegatee to prevent the identified harm.

Stofer v. Motor Vehicle Casualty Co., 68 Ill. 2d 361, 372 (1977). Section 6.1 specifically

identifies certain categories of management-level employees as the people that are subject to the

regulation. It cannot truly be disputed that the harm meant to be remedied—efficiency in

government—is not identified. The statute's purpose is discernible from the words of the statute,

not to mention the legislative history. Section 6.1 also provides a detailed framework to guide the

Governor in his exercise of discretion to expedite removing from collective bargaining units those

employees whose duties are incompatible with collective bargaining unit membership and to

address the problem of excessive union membership of management-level public sector

employees in Illinois.

¶ 24   The Governor was not given a blank check. He was limited to expressly stated positions,

by numerical stipulations, and by the newness of the positions' entry into a collective bargaining

unit. The General Assembly also set up the framework in such a way that the Governor's action

was subject to review by the ILRB. AFSCME argues that the statute gives the Governor so much

discretion that he is essentially making the law. But the strictures on the authority given to the

Governor are express and they merely instruct the Governor on how to execute and implement the



                                               - 10 -
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


law so that he can achieve the general statutory objective. The policy decision itself was made by

the General Assembly. The General Assembly simply gave the Governor detailed guidelines to

carry out the implementation of the statute so as to effectuate an important state interest.

¶ 25    As a practical matter, section 6.1 barely delegated any authority to the Governor that he did

not already possess. All along, the status of the law has been that "managerial employees" are

precluded from exercising the right to bargain collectively. 5 ILCS 315/3(n) (West 2012).

Under the framework existing before section 6.1 was enacted, the executive branch was entitled to

file a petition with the ILRB to exclude positions from collective bargaining units. The only

difference under section 6.1 is that instead of the ILRB conducting an investigation into the duties

and functions of the position before exclusion (80 Ill. Adm. Code 1210.170 (2003)), the statute

defers to the Governor's knowledge and experience. That was a rational way to achieve the

objective of increased efficiency in positions directly responsible to the Governor. See Dorst v.

Pataki, 687 N.E.2d 1348, 1349-50 (N.Y. 1997) (holding that the legislature can constitutionally

delegate its authority directly to the governor so that the governor can use his expertise to fill in the

details and interstices of its policy choices).

¶ 26    The positions delineated in section 6.1 are occupied by employees who answer to the

Governor and should serve at his pleasure. The General Assembly determined that the Governor

was in the best position to decide which of the positions needed to be excluded from collective

bargaining units so that the State would operate most efficiently. The General Assembly can

delegate to others the authority to do those things which it might properly do, but cannot do as

understandingly or advantageously. R.L. Polk & Co. v. Ryan, 296 Ill. App. 3d 132, 140 (1998).

The point of delegating a task to the executive branch is to allow the executive to efficiently



                                                  - 11 -
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


accomplish a particular objective using its experience and expertise when the legislative branch

could not perform the task with the same expertise or efficiency. As the Supreme Court of the

United States has recognized, "our jurisprudence [concerning legislative delegation] has been

driven by a practical understanding that in our increasingly complex society, replete with ever

changing and more technical problems, Congress simply cannot do its job absent an ability to

delegate power under broad general directives.” Mistretta v. United States, 488 U.S. 361, 372

(1989). Recognizing the Governor's unique position as the chief executive charged with

managing the workers covered by section 6.1, the General Assembly sought to solve the broader

efficiency problem by giving the Governor the authority to expediently exclude top-level

managers from their collective bargaining units.

¶ 27   Despite AFSCME's protestations, the fact that the statute only had an effective period of

365 days in which the Governor could implement its provisions does not render the delegation

unconstitutional. Furthermore, there is nothing in section 6.1 that prohibits subsequent statutory

enactments on this subject should the General Assembly see fit. The State offers multiple rational

reasons why the General Assembly might have wanted the Governor to act within 365 days. For

example, there is a policy underpinning labor relations generally that favors the expeditious

resolution of labor disputes (Department of Central Management Services v. American Federation

of State, County & Municipal Employees (AFSCME), 298 Ill. App. 3d 640, 646-47 (1998)) that

justifies an abbreviated effective period. In addition, were the grant of authority to endure in

perpetuity, one could envision an endless cycle of designations and de-designations causing a

chaotic environment in public sector employment. In light of all considerations, a one-year grant

of limited authority was reasonable and does not make the delegation unconstitutional.



                                               - 12 -
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


¶ 28                        B. Equal Protection and Special Legislation

¶ 29    Equal protection and special legislation challenges are judged by the same standard.

General Motors Corp. v. State of Illinois Motor Vehicle Review Board, 224 Ill. 2d 1, 30-31 (2007).

Both focus on whether a law treats similarly situated individuals differently. See id.

Accordingly, we examine the two issues together. 1

¶ 30    The guarantee of equal protection requires that the government treat similarly situated

individuals in a similar manner. In re A.P., 2014 IL App (1st) 140327, ¶ 29. While the United

States and the Illinois Constitutions contain separate equal protection clauses (U.S. Const., amend.

XIV; Ill. Const. 1970, art. I, § 2), the Illinois Supreme Court has chosen to apply the same analysis

to Illinois equal protection claims that is used by federal courts to assess federal equal protection

claims. In re Derrico G., 2014 IL 114463, ¶ 88. The parties both argue under the presumption

that the rational basis test applies, which is correct because section 6.1 neither affects a

fundamental right nor does it proceed along suspect lines. For a statute to pass constitutional

muster under the rational basis test, the legislative action must bear a rational relationship to a

legitimate legislative purpose and cannot be arbitrary or unreasonable. Condominium Ass'n of

Commonwealth Plaza v. City of Chicago, 399 Ill. App. 3d 32, 45 (2010).

¶ 31    Similarly, the Illinois Constitution provides that the General Assembly cannot pass special

laws when a general law is or can be made applicable. Ill. Const. 1970, art. IV, § 13. This means

that the General Assembly is prohibited from passing laws that confer a special benefit on a select

group to the exclusion of others that are similarly situated. Best v. Taylor Machine Works, 179 Ill.

        1
           Although AFSCME never raised a special legislation challenge below and it could be considered
forfeited (Connor v. City of Chicago, 354 Ill. App. 3d 381, 386 (2004)), because it is intertwined with and
requires essentially the same analysis as its equal protection challenge, we have addressed both in this
section.


                                                  - 13 -
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


2d 367, 391 (1997). The purpose of the special legislation clause is to prevent the legislature from

creating arbitrary classifications that discriminate in favor of a select group without a sound,

reasonable basis. Id. There are two requisite elements to a successful special legislation

challenge: (1) the statutory classification at issue discriminates in favor of a select group, and (2)

the classification is arbitrary. Board of Education of Peoria School District No. 150 v. Peoria

Federation of Support Staff, Security/Policeman's Benevolent & Protective Ass'n Unit No. 114,

2013 IL 114853, ¶ 23. The Constitution does not prohibit all legislative classifications, and

where, as here, there is no fundamental right or suspect class at issue, disparate treatment of

similarly situated groups is valid as long as it is rationally related to a legitimate state interest. Big

Sky Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d 221, 237-38 (2005).

¶ 32    There is no dispute, nor can there be, that the State's interest in governmental efficiency is

legitimate. Thus, we must decide only whether this statute's means of achieving that interest are

rational and are neither arbitrary nor unreasonable. Napleton v. Village of Hinsdale, 229 Ill. 2d

296, 307 (2008). Under rational basis review of a classification for purposes of disparate

treatment, the law is presumed to be constitutional, and the state is not required to actually

articulate the law's purpose or produce evidence to sustain the rationality of the classification.

Wisconsin Education Ass'n Council v. Walker, 705 F.3d 640, 653 (7th Cir. 2013) (citing Heller v.

Doe, 509 U.S. 312, 320 (1993)). Instead, there is a weighty burden on the challenger, who must

negative every basis which might support the law because it should be upheld if there is any

reasonably conceivable set of facts supporting the classification. Id.

¶ 33    To be clear, the statute does not aim to strip particular people of their collective bargaining

rights, but is instead focused on those persons' employment positions. Section 6.1 does, in fact,



                                                  - 14 -
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


permit certain employees to be treated differently than others, but not in an unconstitutional

manner. There is no constitutional right to public sector collective bargaining (Smith v. Arkansas

State Highway Employees, Local 1315, 441 U.S. 463, 465 (1979)) and the statutory right was

given only to nonmanagers (5 ILCS 315/4 (West 2012)). The legislative framework has long

been that managers were not permitted to collectively bargain, but the legislature found that many

managers had become members of collective bargaining units anyhow. If the individuals were, in

fact, managerial employees, then they had no right to collectively bargain in the first place, so

removing them from collective bargaining units would not violate their constitutional rights

because they had neither a fundamental right nor any property right at stake. See Kasak v. Village

of Bedford Park, 514 F. Supp. 2d 1071, 1078 (N.D. Ill. 2007) (stating that a public employee who

acts as a supervisor, with responsibility to exert control over the employees whom he supervises,

has no constitutional right to organize with those same employees in a labor union). Thus, it is

not even clear that equal protection concerns are implicated here.

¶ 34   However, even if equal protection concerns are present, we still find that there was a

reasonably conceivable set of facts that supports the government treating the individuals

differently from other public workers that might be generally classified as managerial-type

employees. AFSCME admits that there is a tremendous variance in the duties performed by

different high-level positions in different state agencies even if the positions have the same

working title or are in the same pay grade. Therefore, it is rational to assume that the General

Assembly could countenance removing some employees from bargaining units while allowing

others to remain. Here, the General Assembly delegated to the Governor the power to classify

certain top-level employees as distinct from other general managerial workers. Under the



                                               - 15 -
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


circumstances, separating certain managerial employees from other managerial-type employees is

a permissible classification where the State's needs demand that the Governor has undivided

loyalty from some chosen top-level managers. See State Management Ass'n of Connecticut, Inc.

v. O'Neill, 529 A.2d 1276, 1281 (Conn. 1987) (holding that neither state nor federal equal

protection concerns prevented the state from separately classifying "supervisory employees" as

distinct from "managerial employees" to ensure that the state has the undivided loyalty of its

top-level personnel).

¶ 35   It was reasonable for the legislature to make a determination that the Governor's

participation was warranted to remove certain high-level managers from collective bargaining

units so that he could effectively run his executive department as he sees fit. The Governor is in

the best position to know which employees' positions entail policy-related and discretionary

responsibilities and which do not. Rather than inefficiently micro-managing the process itself or

requiring the Governor and the ILRB to go through the lengthy classification process for each

employee, the General Assembly gave the Governor an efficient tool to reassign employees whose

positions he believed were incompatible with collective bargaining unit membership. Giving the

Governor the authority to classify those from whom the State demands undivided loyalty as

unsuitable for collective bargaining unit membership is a reasonable method to achieve the direct

objective of section 6.1. The task of classifying persons inevitably requires that some persons

who have an almost equally strong claim to favored treatment be placed on different sides of the

line. Mathews v. Diaz, 426 U.S. 67, 83-84 (1976). While section 6.1 might not be a perfect fit or

even a complete solution to the efficiency problem, it does further the General Assembly's asserted

objective of balancing the overall number of management-type employees in collective bargaining



                                              - 16 -
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


units.

¶ 36     AFSCME also argues that the legislation is unconstitutional because the General Assembly

limited designations to newer entrants to collective bargaining units and because it passed a second

public act that added specific exceptions concerning which positions could be designated.

However, in its debates, the General Assembly recognized that collective bargaining unit

membership among managers was an increasingly serious issue over the past several years. The

General Assembly could have concluded that this statute was a rational way to stem the problem

and reverse the upward trend. The General Assembly's rationale appears to be something of a

grandfather clause, which does not implicate equal protection concerns here because the parties

are not similarly situated. See Jucha v. City of North Chicago, No. 13 C 8629, 2014 WL

4696667, at *7 (N.D. Ill. Aug. 6, 2014). In addition, the express exceptions set forth in

subsections (e) and (f) could reasonably be seen to demonstrate that the General Assembly was

simply further refining the grant of authority to the Governor in order to give even more thorough

direction to guide his exercise of delegated authority. It may also be that the General Assembly

eventually recognized that the positions set forth in subsections (e) and (f) were, in fact,

compatible with collective bargaining unit membership.

¶ 37     AFSCME intimates that the General Assembly had some ulterior motive for its

classification—i.e., some animus directed at AFSCME—because employees in other collective

bargaining units were protected from designation. A governmental classification must be upheld

against an equal protection challenge if there is any reasonably conceivable state of facts that could

supply a rational basis for the classification. Heller v. Doe, 509 U.S. 312, 320 (1993). It is

entirely irrelevant for constitutional purposes whether the conceived reason for the challenged



                                                - 17 -
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


distinction actually motivated the legislature. United States R.R. Retirement Board v. Fritz, 449

U.S. 166, 179 (1980). Even a showing of animus is insufficient where there is an otherwise

legitimate state purpose and a rational basis for its implementation. Wisconsin Education Ass'n,

705 F.3d at 654. Here, as set forth above, the law is rationally related to an important state

interest. In addition though, the record reveals that certain members of AFSCME received the

benefit of the statute. The Governor was also the one to make the ultimate decisions under the

statute so the motivations of the General Assembly are irrelevant. There is no indication in the

record that the Governor used the authority granted to him in an arbitrary or capricious manner.

Thus, we are not persuaded that the existence of any improper motive is demonstrative of the

unconstitutionality of the statute.

¶ 38   Some additional considerations militate in favor of upholding the statute. For example,

AFSCME provides no reasoning as to why it simply did not have these positions reclassified at

some point prior to designation. If the employees are not really managers, then they could have

filed clarification petitions and had their positions certified as general public employees and

avoided designation altogether. In addition, AFSCME has not made any showing that these

designations are even conclusive. If AFSCME's arguments are correct, meaning that the

individuals are not actually managers, AFSCME has provided no reason why the individuals

cannot simply file a clarification petition to be reclassified as public employees thereby

reobtaining collective bargaining unit membership. It seems as though AFSCME is simply trying

to have it both ways: for the individuals to keep their managerial status and the benefits that come

along with that; and also to keep their collective bargaining unit membership and the benefits that

come along with that.



                                               - 18 -
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


¶ 39    Because we find that the State has a legitimate interest in the efficiency of state government

and a rational basis for treating some top-level managers differently than other managerial-type

workers, we find that the statute does not violate the individuals' equal protection rights.

¶ 40                                  C. Substantive Due Process

¶ 41    AFSCME's arguments that section 6.1 violates the individuals' substantive due process

rights are forfeited because they were not raised before the ILRB. Connor, 354 Ill. App. 3d at

386. Regardless, all of the substantive due process arguments made by AFSCME are

significantly intertwined with the other substantive constitutional questions and have been duly

addressed above. AFSCME's claim that the statute violates the individuals' substantive due

process rights fails.

¶ 42                                   D. Impairment Of Contract

¶ 43    AFSCME argues that section 6.1 unconstitutionally impairs the collective bargaining

agreement that was in place when the statute was passed. 2 AFSCME maintains that the

individuals had ongoing contractual rights that endured, and could not be impaired, at least until

the operative collective bargaining agreement expired.

¶ 44    The contracts clause provides that states cannot pass laws that impair the obligation of

contracts. U.S. Const., art. I, § 10; Ill. Const., art. I, § 16. A statute violates the contracts clauses

of the state and federal constitutions when it operates as a substantial impairment of a contractual

relationship. Nissan North America, Inc. v. Motor Vehicle Review Board, 2014 IL App (1st)

123795, ¶ 37. All contracts are subject to the police power of the state and, as a result, the state

        2
          The State filed a motion seeking leave to file additional authority; to have the court consider the
recently decided case International Union of Operating Engineers Local 965 v. Illinois Labor Relations
Board, State Panel, 2015 IL App (4th) 140352. That motion was taken with the case, and it is now
Granted. The court has considered that case in arriving at this holding.


                                                   - 19 -
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


may infringe on a person's contractual rights in order to safeguard the interests of its people.

Consiglio v. Department of Financial & Professional Regulation, 2013 IL App (1st) 121142, ¶ 40.

To determine whether a law impermissibly impairs a contract, we examine: (1) whether there is a

contractual relationship; (2) whether the law at issue impairs that relationship; (3) whether the

impairment is substantial; and (4) whether the law serves an important public purpose. Nissan,

2014 IL App (1st) 123795, ¶ 37. Additionally, when the state is one of the parties to the contract

that is allegedly impaired, a higher level of scrutiny is imposed in our impairment analysis because

there is a possibility that the state is acting out of self-interest. Consiglio, 2013 IL App (1st)

121142, ¶ 38.

¶ 45   Section 6.1 of the statute does not constitute impermissible impairment of contract. The

contract that AFSCME complains is impaired is between it and the State, not any individuals and

the State. The designations under section 6.1 simply represent that the employees in certain

positions are no longer permitted to be members of collective bargaining units; which changes the

composition of the bargaining unit, but has no effect on any bargained-for terms of the contract.

Once an individual's statutory right to be part of that unit ceases to exist, the benefits flowing to

that individual cease as well. There is nothing in the agreement that gives a specific individual or

even a specific employment position the right to be in the collective bargaining unit. That flows

from the statute. The employee must have an enduring statutory right to be in the collective

bargaining unit in order to reap any contractual rights from the agreement.

¶ 46   Moreover, the collective bargaining agreement contemplates changes to the law and

changes to the composition of the collective bargaining unit. See State v. State, 364 Ill. App. 3d

1028, 1033-34 (2006); see also 80 Ill. Adm. Code 1210.170 (2003) (explaining that changes in



                                                - 20 -
Nos. 1-13-3454, 1-13-3605, 1-13-3908, 1-13-3909, and 1-13-3910, Cons.


statutes and case law can result in an employee's loss of the right to collectively bargain). As set

forth above, the established procedures for adding or removing positions from the collective

bargaining unit have long been in place and a reclassification of employees does not constitute a

breach or an impairment of an existing collective bargaining agreement. The individuals here had

no vested right, constitutional or otherwise, to remain in the unit until the agreement expired and

changes to their status were foreseeable. Once an employee is reclassified as a managerial

employee, he or she loses the right to any benefits flowing from the agreement going forward.

See, e.g., International Union of Operating Engineers Local 965 v. Illinois Labor Relations Board,

State Panel, 2015 IL App (4th) 140352, ¶¶ 31-32 (holding that the legislature is entitled to make

changes to the composition of a collective bargaining unit during the effective period of the

collective bargaining agreement); Illinois Office of the Comptroller, 30 PERI, ¶ 282 (ILRB State

Panel 2014) (explaining that a change in the law that occurs after the bargaining agreements are

executed that alters the bargaining unit's composition should be prospectively applied; rejecting

the collective bargaining unit's argument that the employees could only be excluded following the

expiration of the operative collective bargaining agreement). Accordingly, section 6.1 does not

impermissibly impair the collective bargaining agreement.

¶ 47                                        Conclusion

¶ 48   Having considered the legislative measures enacted by the Illinois General Assembly and

reviewed the contentions put forth by AFSCME, we affirm the decisions rendered by the Illinois

Labor Relations Board.

¶ 49   Affirmed.




                                               - 21 -
