also dissenting:
In stating the facts underlying this litigation, the majority notes that the parties “have differing interpretations of the events that led to this action.” It then proceeds to recount each side’s version of what occurred as if the matter remains in dispute. The flaw in this approach is that the matter has proceeded to final judgment following a jury trial in the federal courts. Plaintiff prevailed on her claim under section 19c.1 of the Personnel Code (20 ILCS 415/19c.1 (West 2002)) and was awarded $138,379.
Although defendants have filed an appeal from the judgment with the federal court of appeals, that appeal does not challenge the sufficiency of the evidence supporting the jury’s finding in favor of plaintiff on the question of liability. If the facts supporting liability are not questioned in the federal action, they cannot be questioned here. We do not sit as a court of review for the federal district court. The matter is before us on certification of questions of law from the United States Court of Appeals for the Seventh Circuit. Our function is limited to answering those questions. Yang v. City of Chicago, 195 Ill. 2d 96, 102 (2001).
Given the procedural posture of this case, we must assume that plaintiff, a state employee, suffered adverse disciplinary action in retaliation for having disclosed that some of her coworkers were improperly taking time off work without using benefit time. We must further assume that the retaliatory action taken against plaintiff contravened section 19c. 1(2) of the Personnel Code (20 ILCS 415/19c.l(2) (West 2002)). Contrary to the majority, I would hold that plaintiff was entitled to assert a private right of action to recover damages for the injuries she sustained as a result of that statutory violation. In my view, plaintiff was a member of the class for whose benefit section 19c. 1 of the Personnel Code was enacted, the injury she suffered was one the statute was designed to prevent, a private right of action is consistent with the underlying purpose of the statute, and implying a private right of action is necessary to provide an adequate remedy for violation of the statute. See Rodgers v. St. Mary’s Hospital of Decatur, 149 Ill. 2d 302, 308 (1992).
The majority reaches the opposite result by perpetuating an analytical error made in Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455 (1999). As the court did in that case, the majority here directs attention away from the particular legislative provision that was violated and focuses instead on broad and generic purposes behind the statutory scheme to which that provision belongs. It justifies this approach by invoking the doctrine that when interpreting legislative enactments, we must read the statute as a whole. That doctrine, however, is inapplicable to this case. It pertains to situations where there is a dispute over how particular terms of a statute should be construed. See, e.g., Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990). When ascribing meaning to the words used in a statute, we look to the statute as a whole because we assume that the legislature intended to act consistently and to give meaning to every word and phrase it employed. How it used terms in one part of a statute is a useful guide to understanding how it intended to use terms elsewhere.
The problem facing us in this case is different. There is no debate as to what the terms of section 19c.1 mean. Its provisions are clear and unambiguous. What confronts us here is the much larger question of whether Illinois law allows aggrieved employees to sue for damages when the statute is violated. Ultimately, that is a question of public policy (see Corgan v. Muehling, 143 Ill. 2d 296, 314-15 (1991)), not textual analysis.
Even if the majority’s approach were sound, its result is not. The Nursing Home Care Act at issue in Fisher v. Lexington Health Care, Inc. may have been intended primarily to benefit nursing home residents, rather than nursing home employees. The Personnel Code, however, is concerned exclusively with state employees and the terms and conditions of their employment. From beginning to end, it focuses entirely on personnel matters. That is why it is called the Personnel Code. Under these circumstances, the majority’s assertion that personnel employed by the state are merely “incidental” beneficiaries of the state’s Personnel Code is untenable.
It is true that enforcement of the Personnel Code will also benefit the state and the people of Illinois. But improving the common good is supposed to be the ultimate objective of every law the General Assembly enacts. If we use that as the standard, there will be no set of circumstances in which the requirements for implying a private right of action will ever be satisfied. Justice Harrison’s charge in Fisher v. Lexington Health Care, Inc. that implied private rights of action have been abolished in Illinois (Fisher, 188 Ill. 2d at 469 (Harrison, J., dissenting)) will be borne out. That is not a result I am willing to endorse.
I likewise reject the majority’s assertion that recognizing a private right of action would be inconsistent with the Personnel Code’s purposes. The Code’s overarching objective is to create a system of personnel administration based on merit and scientific principles. 20 ILCS 415/2 (West 2002). Eliminating mismanagement, waste, abuse of authority, and the violation of laws and regulations by government employees are integral to that goal. The problem is that those types of inefficiencies and wrongdoing are among the most difficult to police. The nature of governmental bureaucracies is such that graft, corruption, mismanagement, and illegal conduct are often undetectable by outsiders. Keeping government efficient and honest depends on the vigilance of those most involved in its day-to-day operations, its employees. Those employees, however, are unlikely to step forward and speak out unless they are assured that they will not be the target of retribution by their coworkers and superiors.
The pivotal role of “whistle-blowing” employees in ensuring the operation of a modern and efficient state workforce and the importance of protecting such employees from retribution were recognized by the General Assembly when it enacted section 19c. 1 of the Personnel Code. Relegating whistle-blowers to internal grievance procedures is not sufficient to achieve the General Assembly’s purposes. All bureaucracies tend to protect themselves. Knowing this, experienced employees will realize that they are not likely to find a hospitable forum in a grievance system maintained by the very entity whose agents are involved in the wrongdoing. Furthermore, even if a whistle-blowing employee does prevail, the protections available are limited. Under the administrative remedies touted by the majority, the most an aggrieved employee can hope for is the prospect that eventually, after battling his employer administratively and obtaining judicial review of the administrative agency’s decision, he may be able to keep his job and have adverse references to the disciplinary action he suffered removed from his personnel file. That is small consolation for acts that require such courage and are so beneficial to the people of our state. The result, in my view, is that employees will simply stop coming forward to report wrongdoing. For all practical purposes, the safeguards promised by section 19c. 1 of the Personnel Code will be rendered meaningless.
There is no merit to the majority’s suggestion that the availability of criminal penalties under the Personnel Code obviates the need for implying a private right of action. The criminal penalties imposed by the statute are modest, as they were in Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 185 (1978), which recognized a private right of action for retaliatory discharge based on the Workers’ Compensation Act. We wrote in Kelsay.
“The imposition of a small fine, enuring to the benefit of the State, does nothing to alleviate the plight of those employees who are threatened with retaliation and forgo their rights, or those who lose their jobs when they proceed to file claims under the Act. It is conceivable, moreover, that some employers would risk the threat of criminal sanction in order to escape their responsibility under the Act. Further, the fact that an act is penal in nature does not bar a civil remedy, and where a statute is enacted for the benefit of a particular class of individuals!!,] a violation of its terms may result in civil as well as criminal liability, even though the former remedy is not specifically mentioned.” Kelsay v. Motorola, Inc., 74 Ill. 2d at 185.
These considerations apply with equal force here.
Protecting state employees from retaliation for disclosing violations of laws, rules and regulations is a matter of ongoing concern for the General Assembly. Last May it adopted a new State Officials and Employee Ethics Act. The Act, which originated as House Bill 3412, contained whistle-blowing provisions similar to those set forth in section 19c. 1 of the Personnel Code and provided criminal penalties for its violation just as the Personnel Code does. In addition, it made clear that an aggrieved employee could seek redress in the courts and be awarded “all remedies necessary to make [him] whole and to prevent future violations of [the Act].” 93d Ill. Gen. Assem., House Bill 3412, 2003 Sess. Although the Governor amendatorily vetoed the legislation, his veto was overridden by both houses in the General Assembly. The vote was unanimous. The legislature could not have expressed its views more decisively. If we ever had grounds for believing that the General Assembly opposed the idea of allowing whistle-blowers employed by the State to seek redress in the courts, those grounds are lost. See also Pub. Act 93— 544, eff. January 1, 2004 (Whistleblower Act) (authorizing private sector whistle-blowers to bring civil actions for damages and obtain additional relief, including reinstatement and attorney fees).
The majority is wrong to reject an implied private right of action under section 19c. 1 of the Personnel Code based on comparison with section 12a of the statute (20 ILCS 415/12a (West 2002)). The majority claims that section 12a provides for a private right of action and that if the General Assembly had intended to allow employees to seek a private right of action under section 19c. 1, it would have included comparable language there as well. What the majority overlooks is that the remedy authorized by section 12a is qualitatively different from the one at issue here. Section 12a does not authorize a state employee to bring a private right of action to collect damages for violation of the Personnel Code. It merely authorizes private citizens to sue to enjoin certain state employees from making payments in contravention of the statute. Any monies improperly disbursed in contravention of the statute are recoverable, but they must be paid into the state treasury. There is no provision for damages at all. It is therefore irrelevant to the matter at issue here.2
For the foregoing reasons, I would hold that the plaintiff in this case was entitled to seek and obtain an award of damages for the injuries she sustained as a result of defendants’ violation of the whistle-blower provisions of the Personnel Code. I therefore respectfully dissent.
The majority’s discussion of section 12a is also perplexing for its invocation of the maxim that where a statute list the things to which it refers, there is an inference that all omissions should be understood as exclusions. The majority’s discussion addresses separate and distinct sections of a statute, not lists of things within a statutory provision. There is no list of things in section 12a or anywhere else in the Personnel Code pertaining to implication of private rights of action for damages.