dissenting:
I would affirm the judgment of the circuit court.
Upon existing authority, an assistant public defender is not a “county employee,” but has the status of a public officer. As an officer the ordinance relating to county employees is not applicable. Such precedent was stated in People ex rel. Cook County v. Majewski (1975), 28 Ill. App. 3d 269, 328 N.E.2d 195.
The indicated rationale of Majewski is that section 1 of “An Act in relation to the office of Public Defender” (Ill. Rev. Stat. 1979, ch. 34, par. 5601) provides that there “is created the office of Public Defender ° ° Section 2 of the Act provides for the appointment of such officer by a majority of the judges of the circuit in that county. Section 6 of the Act (Ill. Rev. Stat. 1979, ch. 34, par. 5606) provides for necessary assistants to the public defender and includes the language that the public defender:
“* * ° shall have power to appoint, in such manner as the judges before mentioned shall direct, such number of assistants, * * * as such judges shall deem necessary for the proper discharge of the duties of the office, who shall serve at the pleasure of the Public Defender.” (Emphasis added.)
The statute provides that the assistant public defender shall engage in “the proper discharge of the duties of the office e An office has been defined as “a public position created by the constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed.” See Ill. Const. 1870, art. V, §24.
In Ferri v. Ackerman (1979), 444 U.S. 193, 204, 62 L. Ed. 2d 355, 363, 100 S. Ct. 402, 409, it was said with reference to the duties of counsel appointed in the Federal court:
“Although it is true that appointed counsel serves pursuant to statutory authorization and in furtherance of the federal interest in insuring effective representation of criminal defendants, his duty is not to the public at large, except in that general way. His principal responsibility is to serve the undivided interests of his client. Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the Government and to oppose it in adversary litigation.”
The duties of an assistant public defender are of like kind and quality. In Majewski, the court stated:
“Clearly, the representation of indigent defendants is a requirement of due process of law which constitutes a delegation of sovereignty to the office of the public defender.” 28 Ill. App. 3d 269, 272, 328 N.E.2d 195, 196.
Implicit in the characterization of the plaintiff as an “employee” is that she be subject to the direction and control of the employing county. That factor is inconsistent with the nature of the office created.
Sections 2 and 6 of the Act (Ill. Rev. Stat. 1979, ch. 34, pars. 5602 and 5606) are consistent in that the public defender shall serve “at the pleasure of the judges competent to appoint,” and the assistant public defender serves at the pleasure of the public defender. It is inconsistent that a county ordinance shall be construed to have the effect that the statutory language “at the pleasure of” is not really applicable but that one must first meet the policy of the county ordinance directed to the discharge of the employees of the county.
The pleadings of plaintiff do not contend that the discharge was for an unlawful purpose within the context of Branti v. Finkel (1980), 445 U.S. 507, 63 L. Ed. 2d 574. 100 S. Ct. 1287.