specially concurring in part and dissenting in part:
This is a consolidated appeal from two cases brought by the sheriff of Cook County and the County of Cook. In one case, we are asked to directly review the Labor Board’s finding that the County of Cook and the sheriff violated the Labor Act. Here, I concur with the majority’s conclusion that the Labor Board incorrectly found a violation of the Labor Act. However, I disagree with the majority’s rationale for two reasons.
First, I do not agree that certification is considered void ab initio because certain minimum hiring requirements are not met. We have drawn a distinction between the acts of a state agency that are void and those that are voidable. Cook County Sheriff Sheahan v. Bianchi, 296 Ill. App. 3d 310, 695 N.E.2d 73 (1998). If an employee was certified as a result of an arbitrary or capricious hiring system, the employee is treated as never having been certified. In that case, the certification is considered void ab initio pursuant to O’Grady v. Cook County Sheriff’s Merit Board, 260 Ill. App. 3d 529, 536, 632 N.E.2d 87, 92 (1994). On the other hand, if an otherwise unqualified employee was certified as a result of a mistake of fact, the employee is treated as certified. In this situation, the certification is considered voidable. Where certification is voidable, an employee only may be decertified “for cause.” Bianchi, 296 Ill. App. 3d at 313, 695 N.E.2d at 75.
However, in the cases before us (except for Yancy) there has not yet been an inquiry to determine whether the Merit Board acted within its statutory authority by certifying these employees. The sheriff alleged before the Merit Board two theories for decertification. As the majority notes, the complaints addressed the test scores of the certified employees. Additionally, the sheriff alleged that, because an employee or employees of the Merit Board fraudulently assigned passing scores, the Merit Board abdicated its authority in violation of the Merit Act. Until the Merit Board’s actions are examined, it is impossible to say the certifications here are void ab initio.
My second concern with the majority opinion is that it does not sufficiently address what I see to be the central issue in this case— who is to decide whether these certifications were void or voidable. Notably, the issue of collective bargaining was not raised in the prior decertification cases upon which the majority relies. Bianchi, 296 Ill. App. 3d 310, 695 N.E.2d 73; Vanko v. Sheahan, 278 Ill. App. 3d 302, 662 N.E.2d 512 (1996); O’Grady, 260 Ill. App. 3d 529, 632 N.E.2d 87.
We are asked to decide whether the Labor Board correctly found that the County of Cook and the sheriff of Cook County breached their duty to bargain. To answer that question we must first determine whether the inquiry into how the Merit Board “certified” the employees in this case is a subject of mandatory collective bargaining. The supreme court established a three-part test to determine which matters must be bargained in Central City Education Ass’n, IEA/NEA v. Illinois Educational Labor Relations Board, 149 Ill. 2d 496, 599 N.E.2d 892 (1992).
The first part of the test requires a determination of whether the matter is one of wages, hours and terms and conditions of employment. Central City, 149 Ill. 2d at 523, 599 N.E.2d at 905. If the answer to this question is no, the employer is under no duty to bargain and the other two parts of the test do not need to be employed. I believe the issue as to how the original Merit Board proceeded in certifying employees is not a bargainable issue. Whether there was an abuse of authority such that the Merit Board acted arbitrarily or fraudulently is not a determination that affects the terms and conditions of employment.
This issue is not a labor dispute regarding the conditions surrounding employment. Rather, the issue is whether the prerequisites to certification were compromised in bad faith by the former Merit Board. The purpose of the certification process is to further recognized merit principles of public employment. O’Grady, 260 Ill. App. 3d at 536-37, 632 N.E.2d at 93. These principles are designed to eliminate patronage, ensure that the best qualified people get the jobs, and foster open access to the process. O’Grady, 260 Ill. App. 3d at 537, 632 N.E.2d at 93. If the prerequisites are compromised, these principles are not fulfilled. Because the Merit Board has the authority to promulgate and enforce the prerequisites, as the majority opinion discussed, it has the expertise to determine whether the principles were violated. This determination is necessary to protect the integrity of the system and, therefore, cannot be the subject of bargaining.
Additionally, the void/voidable distinction protects both the certification process and the employees from being decertified unfairly. If the certification process was conducted arbitrarily or fraudulently, the void ab initio standard from O’Grady applies and the “employees” were never employees covered by the collective bargaining agreement. If arbitrary or fraudulent conduct cannot be shown, the voidable standard of Bianchi applies and the employees only may be dismissed for cause. Based on the only evidence before the Merit Board that the employees did not satisfy the minimum test score, Bianchi indicates that the employees’ certifications are voidable and they may not be decertified except “for cause.”
The other case in this consolidated appeal requires us to review the circuit court’s order reversing the penalty of discharge imposed by the Merit Board against Lonnie Yancy. I disagree with the majority opinion’s conclusion that the court erred by reversing the penalty and substituting its judgment for the Merit Board’s.
Based on Bianchi and my previous discussion, Yancy only may be discharged “for cause.” As there were no findings to warrant termination “for cause,” the circuit court was correct in determining that a penalty less than discharge was required. Therefore, I would affirm the decision of the circuit court.
For the foregoing reasons, I concur in judgment as to the case against the Labor Board (No. 1 — 96—0465), but dissent in the case involving Lonnie Yancy (No. 1 — 97—2612).