                              Illinois Official Reports

                                     Appellate Court



                  Vrakas v. County of Will, Illinois, 2015 IL App (3d) 140424



Appellate Court          GEORGE VRAKAS, DAVID J. ADAMS, RONALD ADAMS,
Caption                  ROSE      ALBANO,     DOREICE    ALEXANDER,     APRIL
                         ARAMBASICH, ROBERT D. BAIKIE, KAREN M. BAKER,
                         TERENCE A. BERGIN, CHERYL L. BEVERLY, JANETTE E.
                         BISHOP, PATRICIA JEAN BLACKWELL, JOSEPH DEE
                         BRANNON, RICHARD BREEN, STEVEN G. BROOKS, LARRY
                         B. BROWN, ANDRE CARTER, LATASHA CHANDLER, BRYAN
                         E. CHESTER, DEBORAH COLEMAN, JOHN M. DISERA,
                         RICHARD L. EARTLY, DANIEL J. FLANNERY, JAMES J.
                         FRANC, JULIUS J. GAMBINO, BARBARA S. GORDON, MARY
                         BRIDGET GRAHAM, JOSEPH M. GROZIK, MICHAEL
                         HARKINS, RONALD HICKS, RAYMOND E. HOCH, JEFF
                         JOHNSON, PATRICK JONES, CHARLES E. KAVANAUGH, JR.,
                         ADRIENNE D. KNAZZE, KATHERINE L. KNICKREHM, GARY
                         D. KOCA, RICKY KURTH, PAMELA R. LOGGINS, DANIEL
                         LOPEZ, JAMES R. LUNA, JR., GINA MAROTTA, ROY MARTIN,
                         JAMES DAVID MAXWELL, SHANNON L. McALYNN,
                         MICHELLE M. MOFFETT, JOHN T. NEWBERRY, MICHAEL J.
                         OLINO, RANDY L. OWENS, RENAE PARKER, KIMBERLY
                         PASSEHL, SONI B. PEARSON, TIMOTHY J. QUIGLEY, DALE
                         SANTERELLI, JANETTE SHIPERAK, GREGORY A. SICINSKI,
                         KEVIN M. SPENCER, STUART K. TAYLOR, LISA TICHY,
                         LOUAAI AHMAD TOMALIEH, TRESSIE VANCE, SIRVEEA
                         WARD, SCOTT A. WEIFFENBACH, MICHAEL A. WHITE,
                         CHRISTOPHER WILHELMI, and MARY ZARAGOZA, Plaintiffs-
                         Appellants, v. COUNTY OF WILL, ILLINOIS; WILL COUNTY
                         SHERIFF’S OFFICE; and PAUL KAUPAS, Will County Sheriff,
                         Defendants-Appellees.




District & No.           Third District
                         Docket No. 3-14-0424
     Rule 23 order filed      June 30, 2015
     Motion to publish
     allowed                  August 27, 2015
     Opinion filed            August 27, 2015



     Decision Under           Appeal from the Circuit Court of Will County, No. 09-L-960; the Hon.
     Review                   John Anderson, Judge, presiding.



     Judgment                 Affirmed in part and reversed in part.
                              Cause remanded with directions.



     Counsel on               Margaret A. Angelucci (argued) and Amanda Clark, both of Asher,
     Appeal                   Gittler & D’Alba, Ltd., of Chicago, for appellants.

                              Lawrence J. Weiner (argued), of Laner Muchin Ltd., of Chicago, and
                              Philip A. Mock, Assistant State’s Attorney, of Joliet, for appellees.



     Panel                    PRESIDING JUSTICE McDADE delivered the judgment of the
                              court, with opinion.
                              Justices Carter and O’Brien concurred in the judgment and opinion.




                                                OPINION

¶1         The plaintiffs, 66 individuals employed full-time as correctional deputies, sergeants, and
       lieutenants, filed a civil action against the defendants, Will County, the Will County sheriff’s
       office, and Will County sheriff Paul J. Kaupas (collectively, Will County), seeking
       compensation for an alleged impairment of pension benefits. The circuit court granted
       summary judgment in favor of Will County, and the plaintiffs appealed. On appeal, the
       plaintiffs assert numerous reasons why the circuit court erred when it granted summary
       judgment in favor of Will County, including their belief that they have been statutorily
       qualified for the pension benefits since the dates of their hires. We affirm in part, reverse in
       part, and remand with directions.


                                                  -2-
¶2                                               FACTS
¶3       On November 10, 2009, the plaintiffs sued Will County1 for an alleged impairment of
     pension benefits. The complaint alleged, inter alia, that some of the plaintiffs were reclassified
     into the sheriff’s law enforcement employees pension plan (SLEP) (40 ILCS 5/7-142.1 (West
     2008)) on December 1, 2005, and some were reclassified into SLEP on December 1, 2006, but
     that all of the plaintiffs should have been accruing SLEP benefits prior to those dates. Counts I
     and II of the complaint alleged a pecuniary loss and sought, inter alia, an order requiring Will
     County to purchase pension credits for the plaintiffs. Count III of the complaint alleged that the
     pension contributions were “wages” under the Attorneys Fees in Wage Actions Act (705 ILCS
     225/1 et seq. (West 2008)) such that the plaintiffs were also entitled to attorney fees.
¶4       During pretrial matters, the parties filed factual stipulations with the circuit court. Among
     the stipulations were agreements that the plaintiffs were considered “sworn personnel” by the
     Merit Commission of the sheriff’s office, that the Merit Commission had jurisdiction over the
     plaintiffs, and that the duties of the plaintiffs substantially overlapped with SLEP-eligible
     deputies.
¶5       Among the numerous documents filed with the circuit court were copies of certain
     collective bargaining agreements (CBAs). Under these CBAs, some of the plaintiffs were
     included in SLEP as of December 1, 2005, and some plaintiffs were included in SLEP as of
     December 1, 2006. In exchange for their inclusion into SLEP, the plaintiffs (through their
     union representatives) agreed to a reduction in wage increases for a certain period of time.
¶6       Also filed with the circuit court were copies of all of the plaintiffs’ written oaths, which
     were executed on either December 1, 2005, or December 1, 2006. An affidavit from Kaupas
     stated that he had been the Will County sheriff since 2002, and that he administered the deputy
     oath to all of the plaintiffs on or around either December 1, 2005, or December 1, 2006.
     However, his affidavit also stated the following: “[t]here were several Plaintiffs whom had,
     unbeknownst to me, been appointed and sworn as deputies by prior Sheriffs, but whom I had
     no knowledge sufficient to form a belief that they had previously become eligible for
     membership in the SLEP pension fund.” Included in the record are copies of deputy oaths for
     the following four plaintiffs: Ronald D. Adams (June 30, 1986), Terence A. Bergin (October
     31, 2001), Deborah Coleman (December 21, 1987), and Christopher Wilhelmi (January 14,
     1985).
¶7       During pretrial matters, in December 2013, Will County filed a motion for summary
     judgment, which it revised in March 2014. In support of its motion, Will County argued that:
     (1) the Illinois Constitution did not per se create any enforceable contractual right for the
     plaintiffs; (2) under the applicable statutory provisions of the Illinois Pension Code (40 ILCS
     5/1-101 et seq. (West 2008)) and the Counties Code (55 ILCS 5/1-1001 et seq. (West 2008)),
     the plaintiffs did not meet the requirements of SLEP until December 1, 2005, or December 1,
     2006, and therefore they have no contractual claim for SLEP benefits prior to those dates; (3)
     certain CBAs controlled the plaintiffs’ SLEP rights and precluded the claims the plaintiffs
     were making; (4) the plaintiffs never made SLEP contributions prior to the 2005 and 2006
     dates, so they had no constitutional right to SLEP benefits before those dates; (5) by entering

         1
          The original complaint named 58 plaintiffs, but amendments to the complaint increased the total to
     66 and also added the Illinois Municipal Retirement Fund as a defendant.

                                                    -3-
       into the CBAs, the plaintiffs waived any right to SLEP benefits before those 2005 and 2006
       dates; (6) the plaintiffs’ claims were barred by either laches or applicable statutes of limitation,
       or both; (7) granting the plaintiffs’ requested relief would constitute amendments of the SLEP
       law and the Counties Code, which was a violation of separation of powers; and (8) count III
       should be dismissed because Will County never failed or refused to pay any “wages,” which
       they were under no obligation to do anyway.
¶8         Will County appended numerous documents to its motion for summary judgment. Two of
       these documents were: (1) a 1973 letter from the executive director of the Illinois Municipal
       Retirement Fund (IMRF) relating to membership in the then-newly created SLEP fund and (2)
       what appeared to be a portion of a handbook on IMRF sheriff’s law enforcement personnel,
       which was last revised in 1994, that detailed SLEP coverage requirements (collectively, the
       IMRF documents). An affidavit was submitted by IMRF’s general counsel stating that the
       IMRF documents were submitted to the plaintiffs on December 3, 2013.
¶9         On May 6, 2014, the circuit court heard arguments on Will County’s motion for summary
       judgment, as well as a cross-motion for summary judgment orally made by the plaintiffs. At
       the outset of the hearing, the court stated:
                    “If I grant the motion, it will probably just be a one-page order because, if you
               appeal it, it is de novo review. It really doesn’t matter why I make the decision that I do.
               The Appellate Court is not going to care, I don’t think, because it is de novo review.”2
       At the close of the hearing, the court took the matter under advisement and reiterated:
                    “As I said, I am going to issue a ruling by mail. If I grant summary judgment, it is
               just going to be a one-page order. Again, if there is an appeal, the standard of review on
               appeal, on a summary judgment motion, it is de novo. So it really isn’t going to much
               matter I think my reasons for granting summary judgment.”
       On May 12, 2014, the circuit court issued a written decision in which it granted Will County’s
       motion for summary judgment and denied the plaintiffs’ cross-motion for summary judgment.
       With regard to counts I and II of the complaint, the court stated that it was granting summary
       judgment “for the reasons identified” in Will County’s summary judgment motion. With
       regard to count III, the court construed Will County’s argument for dismissal as a request for
       summary judgment. The plaintiffs appealed.

¶ 10                                        ANALYSIS
¶ 11      On appeal, the plaintiffs assert numerous reasons why the circuit court erred when it
       granted summary judgment in favor of Will County; in essence, their brief reads like a reply to
       Will County’s summary judgment motion. Included in the plaintiffs’ brief is their belief that


           2
             The trial court is quite simply wrong. While it is true that our review of a motion granting
       summary judgment is de novo, it is not true that “[t]he Appellate Court is not going to care” how the
       trial court reached its decision. This case was filed in November 2009 and the written decision issued in
       May 2014. The trial court presided over the litigation for 4½ years and its reasoning for awarding
       summary judgment, while not determinative, could add to this court’s understanding of the issues. In
       addition, the parties were left without a clear explanation of why they had won or lost. Significantly, the
       parties were deprived of a focus for their arguments on appeal. They were instead forced to submit
       briefs that were essentially mirrors of their summary judgment memoranda filed in the trial court.

                                                       -4-
       they statutorily qualified for SLEP benefits before the December 2005 and 2006 dates of their
       formal inclusion into SLEP.
¶ 12       Summary judgment is appropriate “if the pleadings, depositions, and admissions on file,
       together with the affidavits, if any, show that there is no genuine issue as to any material fact
       and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
       (West 2008). The materials reviewed when determining whether summary judgment should be
       granted are to be viewed in the light most favorable to the nonmoving party.
       Clark Investments, Inc. v. Airstream, Inc., 399 Ill. App. 3d 209, 212-13 (2010). We review a
       circuit court’s grant of summary judgment de novo. Hall v. Henn, 208 Ill. 2d 325, 328 (2003).
¶ 13       Article 7 of the Pension Code provides for the IMRF, which serves as the pension system
       for municipal employees, including county employees. 40 ILCS 5/7-101 to 7-224 (West 2008).
       General pension benefits are contained in section 7-142 (40 ILCS 5/7-142 (West 2008)), and
       increased pension benefits for “[s]heriff’s law enforcement employees” are contained in
       section 7-142.1 (40 ILCS 5/7-142.1 (West 2008)). A “sheriff’s law enforcement employee” is
       defined, in relevant part, as “[a] county sheriff and all deputies, other than special deputies,
       employed on a full time basis in the office of the sheriff.” 40 ILCS 5/7-109.3(a)(1) (West
       2008).
¶ 14       Certain provisions of the Counties Code also operate to further define sheriff’s law
       enforcement employees. Pursuant to section 3-6008 of the Counties Code, “[e]ach sheriff may
       appoint one or more deputies, not exceeding the number allowed by the county board of his or
       her county.” 55 ILCS 5/3-6008 (West 2008). The Counties Code further requires that such
       appointments be in writing (55 ILCS 5/3-6009 (West 2008)), and that “[e]ach deputy shall,
       before entering upon the duties of his or her office, take and subscribe an oath or affirmation, in
       like form as is required of sheriffs, which shall be filed in the office of the county clerk” (55
       ILCS 5/3-6010 (West 2008)). Sheriffs are required to take a specific oath: “[h]e or she shall
       also, before entering upon the duties of his or her office, take and subscribe the oath or
       affirmation prescribed by Section 3 of Article XIII of the Constitution, which shall be filed in
       the office of the county clerk of his or her county.” 55 ILCS 5/3-6004 (West 2008); Ill. Const.
       1970, art. XIII, § 3 (requiring the following oath: “ ‘I do solemnly swear (affirm) that I will
       support the Constitution of the United States, and the Constitution of the State of Illinois, and
       that I will faithfully discharge the duties of the office of ................ to the best of my ability’ ”).
¶ 15       This oath was taken and signed by all 66 plaintiffs on either December 1, 2005 or
       December 1, 2006. The record also reflects at least four of the plaintiffs met the requirements
       to be included in SLEP prior to the 2005 and 2006 dates. The appropriate oaths had been taken
       by the following four plaintiffs prior to the 2005 and 2006 dates: Ronald D. Adams (June 30,
       1986), Terence A. Bergin (October 31, 2001), Deborah Coleman (December 21, 1987), and
       Christopher Wilhelmi (January 14, 1985). Because these four plaintiffs met the requirements
       to be included in SLEP prior to the 2005 and 2006 dates, we hold that summary judgment was
       improperly granted against them.
¶ 16       We also note that Will County states in its brief that six of the plaintiffs had in fact been
       sworn in as deputies by prior sheriffs. However, neither Will County nor the plaintiffs
       identified these other two plaintiffs. Assuming there are two other plaintiffs who took the
       appropriate oath prior to the 2005 and 2006 dates, we hold that summary judgment was
       improperly granted against them.


                                                        -5-
¶ 17       The record reflects that the rest of the plaintiffs did not meet the oath requirement until they
       were sworn in as deputies by the sheriff on December 1, 2005, and December 1, 2006. See
       Roche v. County of Lake, 205 Ill. App. 3d 102, 114-15 (1990) (noting the specific oath
       requirement and holding that the plaintiffs in that case were “entitled to participate in the
       sheriff’s pension plan from the time they were employed full-time by the sheriff’s office and
       sworn as deputies”). While we acknowledge that the evidence indicated that these plaintiffs
       performed many of the same work duties as sworn deputies, that fact is not enough to
       supersede the statutory oath requirement. Because these plaintiffs did not meet the
       requirements to be included in SLEP until the 2005 and 2006 dates, we hold that the circuit
       court properly granted summary judgment against them and in favor of Will County.3
¶ 18       On remand, we direct the circuit court to conduct further proceedings for the four plaintiffs
       who in fact qualified for inclusion into SLEP prior to the 2005 and 2006 dates, as well as for
       identification of the two other plaintiffs who may have taken the appropriate oath before the
       2005 and 2006 dates. For these four to six plaintiffs, summary judgment was improperly
       granted. Further, we believe the record on appeal does not contain enough information for us to
       determine whether there is any reasonable basis on which those four to six plaintiffs could be
       prohibited from recovery despite their qualifications for inclusion into SLEP prior to the 2005
       and 2006 dates. Accordingly, the parties should be afforded the opportunity to litigate those
       questions before the circuit court on remand, including whether the plaintiffs are entitled to
       attorney fees for those four to six plaintiffs in connection with their claim in count III of the
       complaint.
¶ 19       Lastly, we acknowledge that the plaintiffs have also argued on appeal that Will County’s
       partial reliance on the IMRF documents in support of its arguments was misplaced. First, the
       plaintiffs contend that the circuit court should have stricken these documents pursuant to
       Supreme Court Rule 219(c) because they were not produced until Will County filed its original
       motion for summary judgment in December 2013. However, the plaintiffs have not developed
       this argument in their brief and have therefore forfeited this first contention. Ill. S. Ct. R.
       341(h)(7) (eff. July 1, 2008). Moreover, even without the forfeiture, there is nothing in the
       record to suggest that Will County committed any discovery violation with regard to the
       disclosure of the IMRF documents.
¶ 20       Second, the plaintiffs contend that IMRF documents were not adopted in compliance with
       the provisions of the Illinois Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West
       2008)) and therefore should carry no weight or require any deference. In response, Will
       County argues that the IMRF is not a body politic and corporate of the State and is not subject
       to the Administrative Procedure Act (see 5 ILCS 100/1-20 (West 2008), 40 ILCS 5/22-402
       (West 2008), and Guse v. Board of Trustees of the Public School Teachers’ Pension &
       Retirement Fund, 203 Ill. App. 3d 111, 114-20 (1990) (discussing whether the defendant was a
       body politic and corporate of the State)). However, the parties’ arguments in this regard are
       conclusory and undeveloped. In addition, there is nothing in the record to indicate that the
       circuit court relied on these documents in arriving at its decision–a fact alluded to by the
       plaintiffs in their brief on appeal. Further, given the circuit court’s decision not to rule on any

           3
            We also note that there is nothing in the record to indicate that the sheriff intentionally withheld the
       oaths from these plaintiffs or otherwise acted to exclude eligible individuals from receiving SLEP
       benefits.

                                                        -6-
       specific arguments made by either parties, we do not know whether the court considered these
       documents or relied upon them, or whether the court agreed with the plaintiffs that the
       documents could not be considered. On remand, should Will County again use the IMRF
       documents in support of its argument against SLEP benefits for the four to six plaintiffs, the
       parties should again be afforded the opportunity to argue their respective positions on the
       IMRF documents.

¶ 21                                       CONCLUSION
¶ 22      The judgment of the circuit court of Will County is affirmed in part and reversed in part,
       and the cause is remanded with directions.

¶ 23      Affirmed in part and reversed in part.
¶ 24      Cause remanded with directions.




                                                   -7-
