specially concurring in part and dissenting in part:
I concur in part with the majority’s analysis because the Merit Law clearly imposes some limits upon a sheriffs ability to bargain about a number of áreas related to discipline. However, I conclude the majority’s order is too restrictive in its holding because it (1) does not fully comport with our holding in BOG, 170 Ill. App. 3d at 472, 524 N.E.2d at 762 (“Illinois courts have not yet interpreted the civil service laws as conferring exclusive jurisdiction upon the Merit Board to determine matters pertaining to discharges”) and (2) does not grant the necessary deference to Illinois’ public policy favoring collective bargaining, as enunciated by the Supreme Court of Illinois in City of Decatur, 122 Ill. 2d at 364, 522 N.E.2d at 1224 (“We do not believe that the legislature intended to make the broad duties imposed by the [Labor] Act hostage to the myriad of State statutes and local ordinances pertaining to matters of public employment. *** To construe the accommodation provision of section 7 narrowly would, we believe, frustrate the declared policy of the State”).
Moreover, contrary to the relatively definitive assertions in the majority opinion, some disciplinary and promotional procedures set forth in the Merit Law do appear optional. For example, section 3 — 8013 of the Merit Law specifically states that “[disciplinary measures *** may be taken by the sheriff. Such disciplinary measures may include suspension of any certified person for reasonable periods, not exceeding a cumulative 30 days in any 12-month period.” (Emphasis added.) 55 ILCS 5/3 — 8013 (West 1996). The use of the term “may” indicates that the sheriff exercises his discretion to impose disciplinary measures of less than 30 days in any 12-month period. Therefore, at a minimum, those measures within the discretion of the sheriff would appear to be barginable.
In addition, section 3 — 8014 of the Merit Law is not written in such an encompassing or exhaustive manner that it includes all procedural aspects of imposing discipline. See 55 ILCS 5/3 — 8014 (West 1996). Some procedural aspects associated with removal, demotion, or suspension have, therefore, likely been left to local discretion because they have not been detailed in the statute. Consistent with our holding in BOG and section 7 of the Labor Act (5 ILCS 315/7 (West 1996)), if a procedure is not specified or precluded by statute, it can be supplemented and, therefore, should be bargainable.
The first district’s City of Markham decision, on which we partially rely, is noteworthy because it paid surprisingly little deference to Illinois’ public policy favoring collective bargaining. In addition, the holding in City of Markham is unnecessarily broad. For instance, the narrow finding in City of Markham, that an arbitrator lacked the authority to impose interest arbitration on a non-home-rule municipality because a non-home-rule municipality lacks the power to abolish or amend statutory mandates (City of Markham, 299 Ill. App. 3d at 618, 701 N.E.2d at 155-56), is sound and demonstrates the incremental but effective development of labor law. City of Markham then unnecessarily extends this narrow holding beyond its means by asserting that “the parties are precluded from bargaining over employee discipline altogether.” City of Markham, 299 Ill. App. 3d at 618, 701 N.E.2d at 155. This finding is inconsistent with our previous holding in BOG and should not be adopted.
The Merit Law provides opportunity for supplementation in areas (1) not specified by statute, and (2) where the sheriff has expressly been granted discretion. Our decision in BOG suggests that we afford the parties the opportunity to (1) ascertain what these areas are and (2) bargain about them. I respectfully suggest, therefore, that the more appropriate course of action would be to remand so that the parties can more adequately define what areas associated with employee discipline are subject to collective bargaining and what areas are precluded by the Merit Law.