specially concurring:
I fully concur in the majority opinion, with one exception. The majority interprets section 2 — 201 of the Tort Immunity Act (745 ILCS 10/2 — 201 (West 1994)) as requiring an analysis of (1) the type of position held , by the employee and (2) the type of action performed or omitted by the employee. 181 Ill. 2d at 341. As to the second inquiry, the type of action involved, the majority holds that immunity will not attach unless the injury at issue resulted from an act performed or omitted by the employee in determining policy and in exercising discretion. 181 Ill. 2d at 341.1 disagree. I would hold that section 2 — 201 does not require that the act or omission satisfy the independent requirement of being a policy determination before immunity will attach.
As the majority concedes, this court has never before determined whether section 2 — 201 requires that a public entity’s act or omission be both an exercise of discretion and a policy determination. 181 Ill. 2d at 341. In my view, this is because the phrase “exercise of discretion” in section 2 — 201 has been readily understood by Illinois courts as encompassing policy determinations. In other words, the phrase “policy determination” in section 2 — 201 has not been understood as creating a separate and distinct element that must be satisfied independently for immunity to attach. See Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 381 (1997); In re Chicago Flood Litigation, 176 Ill. 2d 179, 193-95 (1997); Snyder v. Curran Township, 167 Ill. 2d 466 (1995); Mora v. State, 68 Ill. 2d 223, 234 (1977).
Nor does the plain language of section 2 — 201 support the majority’s holding. Section 2 — 201 provides in relevant part:
“[A] public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.” (Emphasis added.) 745 ILCS 10/2 — 201 (West 1994).
The majority’s interpretation of this language limits immunity to injuries resulting from policy decisions. This interpretation renders section 2 — 201’s reference to the “exercise of such discretion” mere surplusage, because policy decisions are always discretionary. In my view, if the legislature had intended to immunize only injuries resulting from policy decisions, it would have written a shorter provision plainly stating this intent. The General Assembly, however, conferred immunity on employees who are “serving in a position involving the determination of policy or the exercise of discretion.” Additionally the General Assembly provided immunity for any “act or omission in determining policy when acting in the exercise of such discretion.” (Emphasis added.) This language equates “determining policy” with the actual “exercise of such discretion.” The use of the modifier term “such” makes clear that the General Assembly did not consider “determining policy” to be separate and distinct from what constitutes an exercise of discretion. Therefore, the language of section 2 — 201, when considered as a whole, manifests the General Assembly’s intent to immunize all injuries resulting when certain public employees exercise their discretion.
The majority’s interpretation of section 2 — 201 creates a new distinction between policy determinations and other discretionary decisions and requires that both features be present before immunity will attach. I disagree with this interpretation, for the reasons stated. Nonetheless, I concur in the majority’s judgment because the fire marshal’s decisions under which the plaintiff rests her claim against the City of Chicago were discretionary and, therefore, immunity attaches under sections 2 — 109 and 2 — 201 of the Tort Immunity Act.
CHIEF JUSTICE FREEMAN joins in this special concurrence.