Hoffman v. Yack , 57 Ill. App. 3d 744 ( 1978 )

Mr. PRESIDING JUSTICE CARTER

delivered the opinion of the court:

Plaintiff, Richard A. Hoffman, takes this appeal from an order of the Circuit Court of Jackson County dismissing, with prejudice, his complaint against defendants John L. Yack and the Board of Trustees of Southern Illinois University.

Plaintiff is a tenured instructor in the Commercial Graphics-Design Department of the School of Technical Careers of Southern Illinois University, and defendant Yack is the supervisor of this department of the University. The complaint filed by plaintiff is drawn in two counts. Count I alleges that defendant Yack, acting outside the scope of his employment or duties and without privilege, engaged in a course of deliberate and malicious conduct towards plaintiff including communications to plaintiff’s supervisors of false accusations as to plaintiff’s professional competency, racist views, sexual aberrational conduct and lack of integrity. It was also alleged that defendant Yack urged students to fill out poor teacher rating forms concerning plaintiff and that he diverted and intercepted plaintiff’s mail. Plaintiff contends that this course of conduct damaged his “prospectively advantageous tenured economic relationship with the University concerning raises and promotions.”

Count II alleges that the Board of Trustees as a “body politic and corporate” by acting by and through their agents and employees, including the deans and chairmen, failed to give plaintiff fair consideration with respect to salary increases and promotions because of the accusations made by Yack. Other paragraphs of this count, while framed in terminology difficult of interpretation, seem to allege that the Board, to the detriment of plaintiff, violated its duty to Yack with regard to the unsworn complaints made by him concerning plaintiff, and at the same time failed to perform its duty to plaintiff, because it did not execute the provisions of article VIII, section 5 of the statutes and bylaws of Southern Illinois University. The article and section provides for a grievance procedure of which personnel may avail themselves if they have complaints regarding their employment. On appeal, plaintiff admits that he did not initiate a grievance procedure under this section; but he alleged in his complaint that it was incumbent upon the Board to institute these procedures on his behalf, even though this section of the bylaws establishes only procedures which may be taken by aggrieved employees and does not provide for any action to be taken by the Board.

Defendants filed a motion to dismiss the action in the circuit court alleging that the statutes and bylaws of the Board of Trustees establish and require exhaustion of an administrative review and remedy for any dispute or complaint arising over personnel matters, and that plaintiff did not pursue or exhaust this remedy. Secondly, defendants maintain that the circuit court had no jurisdiction over this matter, because all causes of action sounding in tort which are filed against the Board of Trustees of Southern Illinois University must be filed in the court of claims which has exclusive jurisdiction. The lower court granted the motion to dismiss. On appeal, the issue is whether each count stated a cause of action over which the circuit court had jurisdiction.

Considering count II first, we affirm the order of the trial court dismissing the complaint against the Board of Trustees. The parties to this action seem to assume that the complaint alleges a breach of a noncontractual duty and that the cause of action, if one exists, sounds in tort. In count II, the Board of Trustees of Southern Illinois University is the party formally denominated. It is the party charged with a breach of duty to the plaintiff, and it is the party against whom the relief, by way of money damages, is sought. Thus, there is no doubt but that the action in count II, as framed by both the issues and the relief sought, is against this agency or arm of the State. See Schwing v. Miles, 367 Ill. 436, 11 N.E.2d 944; G. H. Sternberg & Co. v. Bond, 30 Ill. App. 3d 874, 333 N.E.2d 261.

If we view this matter as sounding in tort, the circuit court had no jurisdiction to hear or determine the cause, since section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1975, ch. 37, par. 439.8(d)) specifically grants exclusive jurisdiction to the Court of Claims for all tort claims against the Board of Trustees of Southern Illinois University. See People ex rel. Maciuba v. Cheston, 25 Ill. App. 3d 224, 323 N.E.2d 40 (1974).

Although plaintiff did not specifically plead a violation of his contract of employment, the facts alleged seem to raise this issue, but again, if the theory of the action would be deemed to be the breach of a contractual duty, the Court of Claims has exclusive jurisdiction by virtue of section 8(b) of the Court of Claims Act (Ill. Rev. Stat. 1975, ch. 37, par. 439.8(b)) requiring that all claims against the State be brought in that court. A State university and its board of trustees are arms of the State and are not independent or autonomous of the State. An action premised on a breach of contract brought against the board is a suit against the State over which the circuit court has no jurisdiction. Tanner v. Board of Trustees, 48 Ill. App. 3d 680, 363 N.E.2d 208 (1977); see also Kane v. Board of Governors, 43 Ill. App. 3d 315, 356 N.E.2d 1340 (1976).

We are not persuaded by plaintiff s argument that the action against the Board in count II is not one against the State, because it is based on what he terms as “non-governmental” activity. This argument is premised on plaintiff’s theory that the Board’s conduct was of a nongovernmental nature, because the Board failed to execute or omitted performance of a duty which plaintiff alleges was owed to him, as opposed to the negligent performance of a duty. It is basic that a breach of duty can consist of either an act of commission or an act of omission, and plaintiff cannot in this way circumvent the fact that the allegations made and the relief sought are against the Board of Trustees in its capacity as an arm of the State.

Accordingly, we hold that the plaintiffs claim in count II was improperly filed in the circuit court and find it unnecessary to reach the other arguments made by defendant in support of the trial court’s dismissal of this count.

We next consider the count I claim against defendant Yack. Whether a suit against an employee of the State is in reality a suit against the State, and thus one that must be heard in the Court of Claims, depends upon the nature of the alleged conduct of the employee and the relief sought. (People ex rel. Maciuba v. Cheston, at 226.) The identification of the claim as being against Yack individually is not alone determinative. Rather, if a judgment for plaintiff could subject the State to liability or operate so as to control the actions of the State, then the suit is deemed to be one against the State. (Schwing v. Miles; Ritchey v. Maksin, 49 Ill. App. 3d 974, 365 N.E.2d 127 (5th Dist. 1977).) Here, an examination of count I shows that Yack’s conduct was alleged to have been outside the scope of his employment and was further alleged to have been deliberate and malicious. Secondly, plaintiff seeks only money damages from Yack as an individual. In count I he does not seek to recover damages from the university nor does he pray for any relief which would in any way affect or alter the policies and practices of the university with regard to its employees. Considering then the conduct alleged and the relief sought, we cannot envision how a judgment for plaintiff, if premised upon Yack’s wrongful acts outside the scope of his position or authority, would affect or control the actions of the State or subject it to liability. Thus, under the well-established rule enunciated in Schwing v. Miles and recentiy reiterated in Ritchey v. Maksin, we determine that the count I claim against Yack personally is not barred by the doctrine of sovereign immunity in contravention of “An Act in relation to immunity for the State of Illinois” (Ill. Rev. Stat. 1975, ch. 127, par. 801); nor is it within the exclusive jurisdictional purview of the Court of Claims (Ill. Rev. Stat. 1975, ch. 37, par. 439.8).

Defendant Yack also contends, however, that the complaint states no cause of action against him on the premise that he is not liable for defects in judgment in carrying out duties of a governmental character, where to do so requires the exercise of discretion and judgment. While the principle upon which defendant relies is correct (see Mower v. Williams, 402 Ill. 486, 84 N.E.2d 435; Lusietto v. Kingan, 107 Ill. App. 2d 239, 246 N.E.2d 24; List v. O’Connor, 21 Ill. App. 2d 399, 158 N.E.2d 103), it is here alleged that Yack’s actions were deliberate, malicious and not within the scope of his duties. When an employee of the State exceeds his authority by wrongful acts, he ceases to be a representative of the State, and the injured party may seek relief from the wrongdoer personally, as long as the action does not control the operations of the State or subject to it liability. Mower v. Williams; Noorman v. Department of Public Works & Buildings, 366 Ill. 216, 8 N.E.2d 637; Joos v. Illinois National Guard, 257 Ill. 138, 100 N.E. 505; Ritchey v. Maksin.

Defendant also maintains that his conduct was privileged by the employment relationship whereby he was under a duty to advise his supervisors of matters which were material to the employment of plaintiff. Again, defendant misconceives the issue in that it is alleged that certain wrongful acts performed, including false accusations, were not in furtherance of or within the scope of his duties as a supervisor.

Accordingly and for the reasons discussed herein, we find that the trial court erred in dismissing count I of the complaint, and the judgment of the trial court dismissing count I is reversed and remanded. The judgment of the circuit court dismissing count II is affirmed.

Affirmed in part, and reversed in part and remanded.

KARNS, J., concurs.