Sweeney v. City of Decatur ( 2017 )

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Appellate Court Date: 2017.08.01
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Sweeney v. City of Decatur, 2017 IL App (4th) 160492Appellate Court BRADLEY L. SWEENEY, Plaintiff-Appellant, v. THE CITY OF
Caption DECATUR, Defendant-Appellee.
District & No. Fourth District
Docket No. 4-16-0492
Filed March 24, 2017
Decision Under Appeal from the Circuit Court of Macon County, No. 16-L-18; the
Review Hon. Albert G. Webber, Judge, presiding.
Judgment Affirmed.
Counsel on Jon D. Robinson (argued), of Bolen Robinson & Ellis, LLP, of
Appeal Decatur, for appellant.
Jerrold H. Stocks (argued) and Edward F. Flynn, of Featherstun,
Gaumer, Postlewait, Stocks, Flynn, Hubbard, of Decatur, for appellee.
Panel PRESIDING JUSTICE TURNER delivered the judgment of the court,
with opinion.
Justices Harris and Steigmann concurred in the judgment and opinion.
OPINION
¶1 In February 2016, plaintiff, Bradley L. Sweeney, filed a two-count complaint against
defendant, the city of Decatur (City), his former employer, and Tim Gleason, the City’s
manager. In April 2016, plaintiff filed an amended complaint against only the City. In
response, the City filed a combined motion to dismiss the amended complaint under section
2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2014)). After a June
2016 hearing, the Macon County circuit court granted the City’s motion and dismissed with
prejudice plaintiff’s amended complaint under section 2-615 of the Code (735 ILCS 5/2-615
(West 2014)).
¶2 Plaintiff appeals, contending the circuit court erred by dismissing his claim (1) brought
under section 15(b) of the Whistleblower Act (740 ILCS 174/15(b) (West 2014)) because that
provision (a) only requires disclosure of suspected law violations to a government or law
enforcement agency and (b) does not require the employee to also refuse to participate in the
activity and (2) of common-law retaliatory discharge based on the public policy protecting
(a) whistleblowing and (b) the freedom of speech under the first amendment (U.S. Const.,
amend. I). We affirm.
¶3 I. BACKGROUND
¶4 In the February 2016 complaint, plaintiff asserted a claim of common-law retaliatory
discharge and a violation of the Whistleblower Act (740 ILCS 174/1 et seq. (West 2014))
against the City and Gleason. The City and Gleason filed a section 2-619.1 motion to dismiss.
After an April 2016 hearing, the circuit court granted the motion to dismiss under section
2-615 and allowed plaintiff to replead.
¶5 Plaintiff’s April 2016 amended complaint again asserted retaliatory discharge and
Whistleblower Act claims but only against the City. The amended complaint alleged that, in
January 2015, Ryan McCrady, then the City’s manager, appointed plaintiff as the City’s police
chief. As the police chief, plaintiff reported directly to the city manager. In March 2015,
Gleason became the City’s manager. In May 2015, Gleason told plaintiff to provide a police
car and uniformed officer to drive him to the St. Louis airport to catch a plane for a vacation
after the City’s State of the City address. Plaintiff reported to Gleason his personal use of
public resources was improper. Gleason then ordered plaintiff to have the car waiting at the
City’s civic center to transport him to St. Louis. Plaintiff discussed the situation with the
deputy chief of police, Jim Getz, who agreed Gleason’s personal use of the officer and police
car was improper but volunteered to drive Gleason. While on duty, Getz drove Gleason to the
St. Louis airport in his police vehicle. Plaintiff “involuntarily allowed,” but did not order,
Gleason’s personal use of police resources. After Gleason returned from vacation, plaintiff
again told Gleason his use of a police car and driver for his personal use was improper. While
Gleason stated he understood plaintiff’s objection to his use of the officer and car, their
relationship was difficult after the conversation. Plaintiff alleged Gleason’s actions violated
(1) the official misconduct statute (720 ILCS 5/33-3 (West 2014)); (2) the City’s police
department’s general order No. 11-03, which prohibits the use of departmental vehicles
outside the City’s limits for personal business; (3) chapter eight of the City’s code, which
prohibits a City officer or employee from the solicitation or acceptance of gifts prohibited by
the State Officials and Employees Ethics Act (Ethics Act) (5 ILCS 430/1-1 et seq. (West
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2014)); (4) the Ethics Act; and (5) article VIII, section 1(a), of the Illinois Constitution of 1970
(Ill. Const. 1970, art. VIII, § 1(a)), which provides “[p]ublic funds, property or credit shall be
used only for public purposes.” Plaintiff contends Gleason knew or should have known his
personal use of the police car and officer was improper because he was then a member of the
Illinois Law Enforcement Training and Standards Board and a former police lieutenant.
¶6 The complaint further alleged that, in January 2016, Gleason asked plaintiff to make a
public statement supporting Gleason’s request for a new local motor fuel tax at the City council
meeting. Plaintiff refused to make the requested public statement. Gleason responded with
hostility and told plaintiff to leave his office. The complaint alleged matters of tax policy were
outside the scope of plaintiff’s job duties as police chief.
¶7 On February 2, 2016, Gleason and the City department heads, including plaintiff, met at
the City’s civic center. During the meeting, Gleason requested input from those present. When
it came to his turn, plaintiff responded the City had other potential revenue sources and stated
his opposition to a further tax increase. Gleason became furious and ordered plaintiff to leave
the meeting. Later that day and the next day, Gleason asked plaintiff the following questions:
“ ‘Do you know who you work for?’ and ‘Do you want to keep your job as Police Chief?’ ” On
February 4, 2016, Gleason asked plaintiff to resign. When plaintiff refused to resign, he
received a written notice of termination.
¶8 As to his retaliatory discharge claim, plaintiff alleges his termination was in retaliation for
his (1) “disclosure regarding Gleason’s personal use of a Decatur police car and uniformed
officer”; (2) “refusal to make a public statement at the City Council meeting supporting
Gleason’s proposed motor fuel tax”; and (3) “February 2, 2016 statement in opposition to
increasing taxes when he believed other sources of income were available to the City.” He
alleges his retaliatory termination violated on or more of the following clear mandates of
public policy:
“(1) enforcing the State’s criminal code and ethics regulations, (2) the policy of
furthering investigation of a crime within a police department, (3) preventing the
private use of public resources, in violation of Article VIII(1)(a) of the Illinois
Constitution, (4) protecting the First Amendment rights of public employees to speak
on matters of public concern outside the scope of their job duties, and (5) protecting the
First Amendment right of a [sic] public employees to not be coerced by their
government employers into engaging in political speech.”
¶9 Regarding his claim under the Whistleblower Act, plaintiff asserted he disclosed certain
information to Gleason, who was his sole supervisor and authorized by the City to receive such
information on behalf of the City. He had a reasonable belief the information disclosed to
Gleason concerned violations of the Illinois Constitution, as well as state laws, rules, and ethics
regulations. Moreover, plaintiff contends Gleason, acting for and on behalf of the City in his
capacity as city manager, retaliated against him by terminating his employment due to
plaintiff’s disclosure of information to Gleason, which plaintiff reasonably believed disclosed
a violation of state law.
¶ 10 In May 2016, the City filed a combined motion to dismiss the amended complaint under
section 2-619.1 of the Code. The section 2-615 part of the motion asserted plaintiff’s
retaliatory discharge claim should be dismissed for failure to state a clear mandate of public
policy undermined by the discharge of an at-will employee. The City also argued both claims
should be dismissed because they failed to allege whistleblowing activity. Moreover, the
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section 2-615 motion to dismiss contended the allegations regarding the first amendment failed
to state a cause of action and the element of causation was defeated. The section 2-619 portion
of the motion asserted (1) the allegations in the amended complaint and Gleason’s affidavit
establish a cause, other than a retaliatory one, for plaintiff’s termination; and (2) causation fails
because plaintiff’s termination was remote from the date of the alleged whistleblowing.
¶ 11 On May 26, 2016, the circuit court held a hearing on the City’s motion to dismiss. After
hearing the parties’ arguments, the court took the matter under advisement. On June 7, 2016,
the court entered a lengthy docket entry, dismissing with prejudice plaintiff’s amended
complaint under section 2-615 of the Code. On June 30, 2016, plaintiff filed a timely notice of
appeal in sufficient compliance with Illinois Supreme Court Rule 303 (eff. Jan. 1, 2015).
Accordingly, we have jurisdiction of this appeal under Illinois Supreme Court Rule 301 (eff.
Feb. 1, 1994).
¶ 12 II. ANALYSIS
¶ 13 In this case, the circuit court dismissed with prejudice plaintiff’s complaint under section
2-615 of the Code (735 ILCS 5/2-615 (West 2014)). A section 2-615 motion to dismiss
challenges the complaint’s legal sufficiency based on defects apparent on its face. Blumenthal
v. Brewer, 2016 IL 118781, ¶ 19. In ruling on such a motion, “a court must accept as true all
well-pleaded facts and all reasonable inferences that may be drawn from those facts.”
Blumenthal, 2016 IL 118781, ¶ 19. The court must determine “whether the allegations of the
complaint, when construed in the light most favorable to the plaintiff, are sufficient to establish
a cause of action upon which relief may be granted.” Blumenthal, 2016 IL 118781, ¶ 19. This
court reviews de novo the grant of a section 2-615 motion to dismiss. Blumenthal, 2016 IL
118781, ¶ 19. We also review de novo an issue of statutory construction. Murphy-Hylton v.
Lieberman Management Services, Inc., 2016 IL 120394, ¶ 17.
¶ 14 A. Whistleblower Act Claim
¶ 15 Section 15(b) of the Whistleblower Act (740 ILCS 174/15(b) (West 2014)) provides the
following: “An employer may not retaliate against an employee for disclosing information to a
government or law enforcement agency, where the employee has reasonable cause to believe
that the information discloses a violation of a State or federal law, rule, or regulation.” Thus, to
establish a cause of action under section 15(b), the employee must show (1) an adverse
employment action by his or her employer, (2) which was in retaliation (3) for the employee’s
disclosure to a government or law enforcement agency (4) of a suspected violation of an
Illinois or federal law, rule, or regulation. See Taylor v. Board of Education of the City of
Chicago, 2014 IL App (1st) 123744, ¶ 52, 10 N.E.3d 383. At issue in this case is whether
plaintiff made a disclosure to a government or law enforcement agency.
¶ 16 In Brame v. City of North Chicago, 2011 IL App (2d) 100760, ¶ 12, 955 N.E.2d 1269, the
Second District construed section 15(b) of the Whistleblower Act to only require the employee
to report the suspected violation to a government or law enforcement agency, and “no
exceptions apply if a government or law-enforcement agency is also the employer.” The
Brame court explained that, if the legislature had intended the Whistleblower Act not to apply
to reports made to an employee’s own government or law enforcement agency employer, it
would have expressly stated such a limitation. Brame, 2011 IL App (2d) 100760, ¶ 12, 955
N.E.2d 1269. It further noted, “[i]t is difficult to perceive that the legislature did not intend the
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[Whistleblower] Act to protect a police officer from retaliation for reporting the illegal conduct
of fellow officers to his superiors in the department.” Brame, 2011 IL App (2d) 100760, ¶ 12,
955 N.E.2d 1269. Additionally, the Brame court distinguished the federal cases, which held an
employee’s reporting within the employee’s own company of an alleged criminal violation did
not fall under section 15(b) of the Whistleblower Act, because the employers in those cases
were not government or law enforcement agencies. Brame, 2011 IL App (2d) 100760, ¶ 12,
955 N.E.2d 1269. The Brame case involved a lieutenant in the police department, who reported
alleged criminal activity by the police chief to the mayor, who was the chief executive officer
of the city and had general supervision and control of the police department. Brame, 2011 IL
App (2d) 100760, ¶¶ 1, 7, 955 N.E.2d 1269.
¶ 17 Even assuming, arguendo, Brame’s holding that the disclosure to an employer in a
government or law enforcement agency falls under section 15(b) of the Whistleblower Act is
correct, the facts alleged in plaintiff’s amended complaint are different from those in Brame.
Here, plaintiff did not report Gleason’s alleged violation of Illinois law to Gleason’s superior.
According to plaintiff’s amended complaint, when Gleason requested the use of a police car
and officer to drive him to the St. Louis airport, plaintiff “reported to Gleason that this personal
use of public resources would be improper.” After Gleason used the police car and officer,
plaintiff “again disclosed to Gleason that his use of a police car and driver for his personal
purposes was improper.” Plaintiff further alleges Gleason, as a member of the Illinois Law
Enforcement Training and Standards Board and a former police lieutenant, knew or should
have known his personal use of police car and officer was improper. Thus, we address whether
telling the alleged government violator his acts are improper constitutes “disclosing
information” under section 15(b) of the Whistleblower Act.
¶ 18 When presented with an issue of statutory construction, the reviewing court’s primary
objective is to ascertain and give effect to the legislature’s intent. Murphy-Hylton, 2016 IL
120394, ¶ 25. The statutory language, given its plain and ordinary meaning, best indicates the
legislature’s intent. Murphy-Hylton, 2016 IL 120394, ¶ 25. Moreover, we must evaluate the
statute as a whole, “construing words and phrases in context to other relevant statutory
provisions and not in isolation.” Murphy-Hylton, 2016 IL 120394, ¶ 25. In doing so, we should
not render any language superfluous. Murphy-Hylton, 2016 IL 120394, ¶ 25. “Additionally,
the court may consider the reason for the law, the problems sought to be remedied, the
purposes to be achieved, and the consequences of construing the statute one way or another.”
Murphy-Hylton, 2016 IL 120394, ¶ 25.
¶ 19 The Merriam-Webster dictionary defines the verb “disclose” as “to expose to view” or “to
make known or public.” Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/disclose (last visited Feb. 3, 2017). Thus, the employee must have
exposed to view or made known information. Informing the violator his or her actions are
improper does not expose to view or make known the alleged improper activity. That
conclusion is consistent with the First District’s explanation of the Whistleblower Act, which
states:
“The [Whistleblower] Act protects employees who call attention in one of two specific
ways to illegal activities carried out by their employer. It protects employees who
either contact a government agency to report the activity or refuse to participate in that
activity. An employee who does not perform either of the specifically enumerated
actions under the [Whistleblower] Act cannot qualify for its protections.” (Emphases
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added.) Sardiga v. Northern Trust Co., 409 Ill. App. 3d 56, 62, 948 N.E.2d 652, 657
(2011).
Moreover, “the purpose of the Whistleblower Act is to protect statutorily defined employees
who report violations of state or federal laws, rules, or regulations ‘because the reported
wrongful conduct or unsafe condition affected the health, safety[,] or welfare of Illinois
residents as a whole.’ ” (Emphases added.) Larsen v. Provena Hospitals, 2015 IL App (4th)
140255, ¶ 47, 27 N.E.3d 1033 (quoting Sutherland v. Norfolk Southern Ry. Co., 356 Ill. App.
3d 620, 627, 826 N.E.2d 1021, 1027 (2005)). Simply having a conversation with the
wrongdoer about the impropriety of his or her actions is not exposing the alleged improper
activity, making it known, or reporting the wrongful conduct. The fact the violator is the
employee’s boss does not alter the analysis, as the information is still not disclosed. We hold
section 15(b) of the Whistleblower Act does not protect an employee who simply notes the
impropriety of conduct with the alleged wrongdoer, as that does not constitute the disclosure of
information under the Whistleblower Act.
¶ 20 Since plaintiff alleges the disclosure of information was made to Gleason, the violator, we
agree with the circuit court plaintiff failed to state a cause of action under the Whistleblower
Act. Given our conclusion, we do not address the parties’ other arguments related to the
Whistleblower Act.
¶ 21 B. Retaliatory Discharge
¶ 22 Plaintiff also challenges the circuit court’s dismissal of his common-law retaliatory
discharge claim. In Illinois, a longstanding rule exists that an at-will employee, such as
plaintiff, may be discharged by his employer at any time and for any reason. Michael v.
Precision Alliance Group, LLC, 2014 IL 117376, ¶ 28, 21 N.E.3d 1183. In Kelsay v. Motorola,
Inc., 74 Ill. 2d 172, 181-82, 384 N.E.2d 353, 357 (1978), our supreme court recognized the tort
of retaliatory discharge as a narrow exception to the aforementioned rule. “To sustain a cause
of action for retaliatory discharge, an employee must prove: (1) the employer discharged the
employee, (2) the discharge was in retaliation for the employee’s activities (causation), and
(3) the discharge violates a clear mandate of public policy.” Michael, 2014 IL 117376, ¶ 31, 21
N.E.3d 1183. On appeal, plaintiff asserts his discharge violated the public policy protecting
whistleblowing and freedom of speech. The City asserts plaintiff did not raise an issue on the
dismissal of retaliatory discharge claim arising from whistleblower activity. We disagree, as
plaintiff asserts in his brief that the circuit court ignored his whistleblowing allegations raised
in his retaliatory discharge claim.
¶ 23 While a precise definition of what constitutes a clearly mandated public policy does not
exist, “a review of Illinois case law reveals that retaliatory discharge actions have been allowed
in two settings: where an employee is discharged for filing, or in anticipation of filing, a claim
under the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 1992)); or where an
employee is discharged in retaliation for the reporting of illegal or improper conduct,
otherwise known as ‘whistleblowing.’ ” Michael, 2014 IL 117376, ¶ 30, 21 N.E.3d 1183. In
those situations, “an employer could effectively frustrate a significant public policy by using
its power of dismissal in a coercive manner.” Michael, 2014 IL 117376, ¶ 30, 21 N.E.3d 1183.
Thus, the situations necessitate a cause of action for retaliatory discharge to vindicate the
public policy underlying the employee’s activity and deter the employer’s conduct that is
inconsistent with that policy. Michael, 2014 IL 117376, ¶ 30, 21 N.E.3d 1183. Additionally,
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our supreme court has stated, “public policy concerns what is right and just and what affects
the citizens of the State collectively. It is to be found in the State’s constitution and statutes
and, when they are silent, in its judicial decisions.” Palmateer v. International Harvester Co.,
85 Ill. 2d 124, 130, 421 N.E.2d 876, 878 (1981).
¶ 24 1. Whistleblowing
¶ 25 The allegations in plaintiff’s amended complaint regarding whistleblowing are the same
ones he makes in his claim under the Whistleblower Act. As with his Whistleblower Act claim,
plaintiff does not allege facts showing he reported or disclosed information about Gleason’s
alleged violation of Illinois law. In other words, plaintiff did not blow the whistle on Gleason.
The alleged facts in plaintiff’s amended complaint simply show plaintiff twice told Gleason his
actions were improper. Thus, like with his claim under the Whistleblower Act, plaintiff has
failed to plead facts supporting an instance of whistleblowing and cannot plead a violation of a
clear mandate of public policy based on whistleblowing.
¶ 26 2. Freedom of Speech
¶ 27 Moreover, on appeal, plaintiff alleges the circuit court erred by dismissing his retaliatory
discharge claim based only on his statements in opposition to increasing taxes at a February 2,
2016, staff meeting. As stated, our supreme court has only recognized retaliatory discharge
causes of action in the areas of Workers’ Compensation claims and whistleblowing. See
Michael, 2014 IL 117376, ¶ 30, 21 N.E.3d 1183. Plaintiff asserts Illinois law has also
recognized a retaliatory discharge claim when an employee is discharged in retaliation for first
amendment speech. However, the case cited by plaintiff recognized “a public policy favoring
thorough investigation of police and fire department affairs and citizen compliance with such
investigations.” Daniel v. Village of Hoffman Estates, 165 Ill. App. 3d 772, 775, 520 N.E.2d
754, 756 (1987). There, the employee claimed she was fired for complying with an order from
the board of fire and police commissioners to produce any documents relevant to a dismissal
proceeding. Daniel, 165 Ill. App. 3d at 775, 520 N.E.2d at 756. The case only addressed the
first amendment right to free speech in the context of a federal claim and not the retaliatory
discharge claim.
¶ 28 The Illinois Supreme Court has addressed whether the first amendment establishes a
clearly mandated public policy in the context of a private employer. In Barr v. Kelso-Burnett
Co., 106 Ill. 2d 520, 523, 478 N.E.2d 1354, 1355 (1985), the employees sought to raise a claim
of retaliatory discharge against their private employer based on, inter alia, their first
amendment right to freedom of speech. Our supreme court concluded the employees’
discharge did not violate any clear mandate of public policy. Barr, 106 Ill. 2d at 526, 478
N.E.2d at 1356. In reaching that conclusion, the court found “the constitutional guarantee of
free speech is only a guarantee against abridgement by the government, Federal or State; the
Constitution does not provide protection or redress against private individuals or corporations
which seek to abridge the free expression of others.” Barr, 106 Ill. 2d at 526, 478 N.E.2d at
1356. It also noted neither the Illinois Constitution nor the Illinois Human Rights Act (Ill. Rev.
Stat. 1983, ch. 68, ¶ 1-10 et seq.) contain provisions mandating “the inclusion of the right of
free speech into those rights which are applicable to the employer-employee relationship.”
Barr, 106 Ill. 2d at 528, 478 N.E.2d at 1357.
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¶ 29 In this case, plaintiff’s employer is a municipality, not a private employer. No Illinois case
law has addressed whether the first amendment creates a public policy protecting speech made
by public employees. The United States Supreme Court has recognized “the First Amendment
protects a public employee’s right, in certain circumstances, to speak as a citizen addressing
matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). In Garcetti, 547
U.S. at 418, the Supreme Court established a two-step inquiry into whether a public
employee’s speech is entitled to first amendment protection. The two-step inquiry was
reaffirmed by the Supreme Court in its most recent case on the issue, Lane v. Franks, 573 U.S.
___, 134 S. Ct. 2369 (2014). The two-step inquiry is as follows:
“ ‘The first requires determining whether the employee spoke as a citizen on a matter of
public concern. If the answer is no, the employee has no First Amendment cause of
action based on his or her employer’s reaction to the speech. If the answer is yes, then
the possibility of a First Amendment claim arises. The question becomes whether the
relevant government entity had an adequate justification for treating the employee
differently from any other member of the general public.’ ” Lane, 573 U.S. at ___, 134
S. Ct. at 2378 (quoting Garcetti, 547 U.S. at 418).
¶ 30 In his brief, plaintiff fails to set forth the two-step inquiry and explain how the facts alleged
in his amended complaint satisfy that inquiry. Instead, he focuses on demonstrating his speech
was on a matter of public concern. However, the main focus of the first step is distinguishing
between employee speech and citizen speech. See Lane, 573 U.S. at ___, 134 S. Ct. at 2378. A
matter of public concern is only part of the first inquiry and does not alone establish protected
speech. Plaintiff fails to adequately argue and plead facts showing he was speaking as a citizen
at Gleason’s department head meeting. Accordingly, we find plaintiff has failed to show the
facts in his amended complaint establish a clearly mandated public policy protecting his
speech at the February 2016 meeting. Thus, the circuit court’s dismissal with prejudice of his
retaliatory discharge claim based on the first amendment was also proper.
¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, we affirm the Macon County circuit court’s judgment.
¶ 33 Affirmed.
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