Vukmarkaj v. Dart

2019 IL App (1st) 182486-U

• Court: Appellate Court of Illinois
• Decided: December 13, 2019
• Docket: 1-18-2486
• Status: Unpublished

Opinion

2019 IL App (1st) 182486-U

SIXTH DIVISION December 13, 2019

No. 1-18-2486

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

LEKA VUKMARKAJ, ) Appeal from ) the Circuit Court of Cook Plaintiff-Appellant, ) County. ) v. ) ) THOMAS J. DART, Sheriff of Cook County, in His ) Official and Individual Capacities; THE COOK COUNTY ) SHERIFF’S MERIT BOARD; JAMES P. NALLY, ) No. 17 CH 12793 Chairman; BYRON BRAZIER, Vice-Chairman; JOHN ) DALICANDRO, Secretary; GRAY MATEO-HARRIS, ) Board Member; BRIAN RIORDAN, Board Member; ) VINCENT WINTERS, Board Member; JENNIFER BAE, ) Board Member; KIM WIDUP, Board Member; PATRICK ) BRADY, Board Member; and THE COUNTY OF COOK, ) a Unit of Local Government and Indemnor, ) The Honorable ) Thomas R. Allen, Defendants-Appellees. ) Judge Presiding.

PRESIDING JUSTICE MIKVA delivered the judgment of the court. Justices Cunningham and Connors concurred in the judgment.

ORDER

¶1 Held: The de facto officer doctrine bars the plaintiff officer’s claim that the decision terminating him was void because one irregularity he raised about the constitution of the Cook County Sheriff’s Board has already been challenged and addressed, and the other irregularity was not raised before the circuit court and is therefore not proper for consideration on appeal. No. 1-18-2486

¶2 After an administrative hearing, the Cook County Sheriff’s Merit Board (hereinafter Merit

Board or Board) issued a decision granting Sheriff Thomas J. Dart’s request to terminate Leka

Vukmarkaj as a correctional officer with the Cook County Department of Corrections. The circuit

court affirmed the Board’s decision. On appeal, Officer Vukmarkaj contends that the Merit

Board’s decision is void and must be vacated because the Merit Board was illegally constituted at

the time of the termination proceedings. For the following reasons, we affirm the Board’s finding

that Officer Vukmarkaj’s termination is valid under the de facto officer doctrine.

¶3 I. BACKGROUND

¶4 A. The Sheriff’s Complaint

¶5 The Merit Board received Sheriff Dart’s complaint, in which he sought to terminate Officer

Vukmarkaj, on March 17, 2015. In the complaint, the Sheriff alleged that while Officer Vukmarkaj

was working in the receiving and classification center on August 19, 2012, he used excessive force

against Gregory Lamb, a detainee, by striking Mr. Lamb “several times in the head/face area and

in the body with a closed fist,” and then striking Mr. Lamb “several more times while [he] was on

the ground and being restrained by [another correctional officer].” The Sheriff further alleged that

Officer Vukmarkaj failed to include in his reports that he struck Mr. Lamb several times in the

face and head area and about the body with a closed fist or that he struck Mr. Lamb several more

times while he was on the ground and being restrained by another correctional officer.

¶6 B. The Merit Board’s Decision

¶7 After the Merit Board heard the charges against Officer Vukmarkaj on April 25, June 27,

August 2, and August 29, 2016, the Board issued its decision on August 22, 2017. The Board found

that Officer Vukmarkaj “used excessive force, was less th[a]n credible in his testimony and [was]

inaccurate in his written reporting of the event.” The Board concluded, after “evaluat[ing] the

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credibility of the witnesses and the supporting evidence,” that Officer Vukmarkaj violated the

Cook County Sheriff’s Orders and article X, paragraph B-3, of the Rules of the Cook County

Sheriff’s Merit Board. The Merit Board granted the Sheriff’s request to terminate and remove

Officer Vukmarkaj effective March 13, 2015.

¶8 C. Circuit Court Proceedings

¶9 On September 21, 2017, Officer Vukmarkaj filed his initial complaint for administrative

review of the decision to terminate him in the circuit court. Officer Vukmarkaj alleged that the

Merit Board’s decision was against the manifest weight of the evidence and clearly erroneous,

violated due process and the Illinois Uniform Peace Officers’ Disciplinary Act, and “that the

discipline imposed [wa]s arbitrary and capricious, unrelated to the requirements of the service,

[wa]s based on trivial allegations, and d[id] not constitute sufficient cause for termination.” Officer

Vukmarkaj named Sheriff Dart and the Merit Board as defendants. As its answer to the complaint

for administrative review, the Merit Board filed a certified copy of the record of its proceedings.

¶ 10 Before the parties began briefing the administrative review issue, Officer Vukmarkaj filed

an amended complaint on March 12, 2018, relying on this court’s opinion in Taylor v. Dart, 2017

IL App (1st) 143684-B (filed May 12, 2017). In his amended complaint, Officer Vukmarkaj

alleged that “[a]t the time of the Merit Board’s decision terminating [his] employment, the

Sheriff’s Merit Board was illegally constituted pursuant to the terms of the Cook County Sheriff’s

Merit Board Act, 55 ILCS 5/3-7001, et seq.” Specifically, Officer Vukmarkaj alleged that because

the Merit Board was not constituted according to the Merit Board Act, the Merit Board’s decision

was void under Taylor. Based on this theory, Officer Vukmarkaj sought declaratory judgment, and

injunctive and “make whole” relief, including reinstatement, back pay and benefits.

¶ 11 The Sheriff moved to dismiss Officer Vukmarkaj’s amended complaint on May 3, 2018.

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The Sheriff first argued that, because Officer Vukmarkaj had not exhausted his administrative

remedies, the trial court lacked jurisdiction to consider the claim that the Merit Board was illegally

constituted. The Sheriff further argued that the Merit Board’s decision to terminate Officer

Vukmarkaj could not be vacated because (1) Public Act 100-562 applied retroactively to validate

the interim appointments, (2) the unlawfully appointed Merit Board members were de facto

officers whose actions are deemed valid, and (3) the provisions of section 3-7002 of the Counties

Code (55 ILCS 5/3-7002 (West 2016)) are directory, not mandatory, and departures from the

statute do not invalidate the Merit Board’s actions.

¶ 12 While the Sheriff’s motion to dismiss was pending, we issued our opinion in Lopez v. Dart,

2018 IL App (1st) 170733. In Lopez, this court held that the de facto officer doctrine should not

be applied to the first challenger of an improper appointment to invalidate the Merit Board’s

decision, but that the de facto officer doctrine barred claims by subsequent plaintiffs arguing that

their termination decisions should be reversed based on the illegal appointment of one of the Merit

Board’s members. Id. ¶¶ 58-59. The circuit court granted the Sheriff’s motion to cite Lopez as

additional authority in support of his motion to dismiss Officer Vukmarkaj’s amended complaint.

¶ 13 On October 25, 2018, the circuit court granted the Sheriff’s motion to dismiss, noting that

this court’s opinion is Lopez was “dead on” and directly applied to the issues before it. The circuit

court denied the Sheriff’s other pending motions to dismiss as moot.

¶ 14 This appeal followed.

¶ 15 II. JURISDICTION

¶ 16 The circuit court affirmed the decision of the Merit Board on October 25, 2018. Officer

Vukmarkaj filed a timely notice of appeal from that decision on November 26, 2018. This court

has jurisdiction over this appeal pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994)

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and Rule 303 (eff. July 1, 2017), governing appeals from final judgments entered by the circuit

court in civil cases.

¶ 17 III. ANALYSIS

¶ 18 A. The Constitution of the Merit Board

¶ 19 Officer Vukmarkaj contends that the decision of the Merit Board is void because the Board

was illegally constituted at the time it granted the Sheriff’s request to terminate him. Officer

Vukmarkaj, relying on our decision in Taylor v. Dart, 2017 IL App (1st) 143684-B, contends that

the Board was improperly constituted because three members of the Board—Byron Brazier, John

Dalicandro, and Kim Widup—were retroactively approved and five members of the Board—Brian

Riordan, Patrick Brady, Jennifer Bae, Vincent Winters, and Gray Mateo-Harris—were all

appointed by the Sheriff to interim terms of less than six years, and therefore his termination is

void. In response, the Sheriff argues that the Board’s decision is not void because the de facto

officer doctrine applies and because a December 2017 amendment to section 3-7002 of the

Counties Code (55 ILCS 5/3-7002 (West 2016)) retroactively allows the Sheriff to make

appointments to terms shorter than six years.

¶ 20 At the time Officer Vukmarkaj’s termination was being considered by the Merit Board,

section 3-7002 of the Counties Code provided:

“There is created the Cook County Sheriff’s Merit Board *** consisting of *** 7

members appointed by the Sheriff with the advice and consent of three-fifths of the county

board, except that the Sheriff may appoint 2 additional members, with the advice and

consent of three-fifths of the county board, at his or her discretion. ***

Upon the expiration of the terms of office of those first appointed *** their

respective successors shall be appointed to hold office from the third Monday in March of

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the year of their respective appointments for a term of 6 years and until their successors are

appointed and qualified for a like term.” 5 ILCS 5/3-7002 (West 2016).

¶ 21 On May 12, 2017, this court issued its opinion in Taylor, which was an appeal pursuant to

Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010), for the purpose of answering two certified

questions: (1) whether the appointment of an individual to the Merit Board for a term of less than

six years was a valid appointment and (2) if the Merit Board member was not lawfully appointed,

whether the Board’s decision was rendered void as a result. Taylor, 2017 IL App (1st) 143684-B,

¶¶ 1, 20, 38. We held that an appointment of less than six years was not valid and that a decision

of the Board made with a member who had been appointed to a term of less than six years was

void. Id. ¶¶ 2, 37, 46. We noted that the plain language of section 3-7002 gave individuals

appointed to the Board the “right to be appointed to a full six-year term” and concluded that the

statute did not authorize the Sheriff “either explicitly or by implication to appoint an individual to

the Merit Board for less than a six-year term.” Id. ¶¶ 23, 37. John R. Rosales, the Board member

whose appointment was at issue in Taylor, had been appointed to a less-than-six-year term and

then had continued to serve after his term had expired. Id. ¶ 8.

¶ 22 After our decision in Taylor issued, the legislature amended the statute to specifically

authorize interim appointments by the Sheriff, effective December 8, 2017. Public Act 100-562

added the following to section 3-7002 of the Counties Code:

“Each member of the Board shall hold office until his or her successor is appointed

and qualified.

In the case of a vacancy in the office of a member prior to the conclusion of the

member’s term, the Sheriff shall, with the advice and consent of three-fifths of the county

board, appoint a person to serve for the remainder of the unexpired term.” Pub. Act.

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100-562, § 5 (eff. Dec. 8, 2017).

¶ 23 Since the 2017 amendment, this court has rejected all collateral challenges to the

composition of the Board based on the de facto officer doctrine. See, e.g., Acevedo v. Cook County

Sheriff’s Merit Board, 2019 IL App (1st) 181128; Cruz v. Dart, 2019 IL App (1st) 170915; Lopez,

2018 IL App (1st) 170733.

¶ 24 The first of these cases was Lopez, where we found that the de facto officer doctrine applied

and that, therefore, the illegally appointed Board member in that case (John R. Rosales, the same

Board member whose appointment was successfully challenged in Taylor) did not provide grounds

for invalidating the Board’s termination decision. Lopez, 2018 IL App (1st) 170733, ¶ 59.

¶ 25 Then, on January 22, 2019, this court issued its decision in Cruz. In that case, the officer

challenged the appointments of three Board members—Kim Widup, Patrick Brady, and Gray

Mateo-Harris—who were all appointed by the Sheriff to interim terms of less-than-six years. Cruz,

2019 IL App (1st) 170915, ¶ 28. This court found that although the officer challenged the

appointments of different Board members than were at issue in Taylor and Lopez, the de facto

officer doctrine applied because the officer “challeng[ed] the same ‘irregularity’ in appointment

procedures of the Board that has already come to our attention and been addressed [in Taylor].”

Id. ¶ 38.

¶ 26 Officer Vukmarkaj argues that Cruz is distinguishable from this case because the appellant

in Cruz challenged the appointments of only three Board members. The outcome of this case,

according to Officer Vukmarkaj, should be different because he challenges the appointments of

five other (that is, in addition to the Board members challenged in Cruz) Board members. This

argument of scale is unpersuasive. The “first challenger” rule, as applied in Cruz, concerns the

appointment irregularity itself, not individual Board members whose appointments are irregular.

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Id. ¶ 38. As this court reasoned in Cruz:

“We read Justice McMorrow’s concurring opinion [in Daniels v. Industrial Comm’n, 201

Ill. 2d 160 (2002)] as focused on allowing the first challenger of a particular problem to

bring that problem to the court’s attention. As she put it: ‘In my view, the de facto officer

doctrine should not be employed in such a way that it forecloses judicial review of matters,

such as irregularities in appointment procedures, when brought to the attention of the

judiciary as a matter of first impression.’ ” (Emphasis added.) Id. (quoting Daniels, 201 Ill.

2d at 176 (McMorrow, J., specially concurring)).

Because Officer Vukmarkaj is challenging an “irregularity” in the Board’s appointment procedures

that other challengers have already brought to our attention, i.e., the appointment of Board

members to terms of less than six years, the de facto officer doctrine applies regardless of how

many improperly appointed Board members participated in the decision to terminate Officer

Vukmarkaj. Acevedo, 2019 IL App (1st) 181128, ¶ 36 (holding challenges to interim Board

appointments of less than six years are barred by the de facto officer doctrine because this

appointment irregularity was raised in Taylor, Lopez, and Cruz).

¶ 27 In this appeal, Officer Vukmarkaj also challenges the Board’s composition based upon the

retroactive approval of three Board members. In Acevedo, the officer challenged the Board’s

constitution on the grounds that certain members had been appointed to terms of less than six years

and the appointments of other members had been retroactively approved. Id. ¶ 4. However, we

declined to consider the officer’s allegations concerning the retroactively approved Board

members because the officer failed to adequately raise this issue before the circuit court. Id. ¶ 37.

¶ 28 The same outcome is required here. Although Officer Vukmarkaj argues on appeal that the

Board was improperly constituted because certain Board members had been retroactively

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approved, he failed to raise this potential irregularity before the circuit court. In his first amended

complaint, Officer Vukmarkaj challenged the appointments of Board members Byron Brazier,

John Dalicandro, and Kim Widup—the Board members whose retroactive approval he now

challenges—solely on the basis that they were appointed to terms of less than six years. The

de facto officer doctrine bars claims related to this irregularity. Id. ¶ 36. While the retroactive

approval of Board members may be a discrete irregularity, we decline to consider any allegation

raised for the first time on appeal that Officer Vukmarkaj’s termination was void because certain

Board members were retroactively approved. See Wells Fargo Bank, N.A. v. Maka, 2017 IL App

(1st) 153010, ¶ 24 (stating that issues not raised in the trial court cannot be raised for the first time

on appeal).

¶ 29 Where, as here, the Sheriff’s employee first challenges the Board’s constitution on

administrative review, we agree with the careful reasoning of this court in Lopez, Cruz, and

Acevedo, and find that the de facto officer doctrine controls the outcome. Cf. Goral v. Dart, 2019

IL App (1st) 181646, ¶¶ 107-12 (declining to apply the de facto officer doctrine where Sheriff’s

employee challenged the Board’s constitution before the administrative proceeding’s conclusion).

¶ 30 Officer Vukmarkaj also argues that applying the de facto officer doctrine to this case “flies

directly in the face of public policy” because it would authorize the Sheriff to make deficient

appointments with impunity. This public policy concern has been addressed. After this court’s

decision in Taylor, the legislature amended the Counties Code to expressly authorize the Sheriff

to make interim appointments. See Pub. Act 100-562, § 5 (eff. Dec. 8, 2017). As for acting in the

public interest, the balancing of interests Justice McMorrow suggested in Daniels—and that we

employed in Lopez—weighs in favor of promoting the Board’s “orderly functioning” (Daniels,

201 Ill. 2d at 175 (McMorrow, J., specially concurring)), rather than invalidating a government

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agency’s decision where the abnormality in appointments has been addressed by the legislature.

¶ 31 Lastly, any unfairness in having allowed the officer in Taylor to challenge his termination

by questioning the Board’s constitution while denying Officer Vukmarkaj the same opportunity is

theoretical, not practical. Even if the Merit Board’s decision was void because of the improper

appointments, the appropriate remedy would be to remand the case to the Board for a new decision.

See id. at 167 (majority). Thus, even if we agreed with Officer Vukmarkaj that the Board’s decision

is void because certain members were improperly appointed, Officer Vukmarkaj would not

necessarily be reinstated and entitled to back pay and benefits—the relief Officer Vukmarkaj

seeks.

¶ 32 IV. CONCLUSION

¶ 33 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 34 Affirmed.