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.
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¶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.
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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.
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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.
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¶ 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.
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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.
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