Crull, Misti v. Sunderman, William

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-4093

MISTI CRULL,

Plaintiff-Appellee,

v.

WILLIAM SUNDERMAN, JOHN W. RAPP,

Justice, LINDSAY PARKHURST, et al.,

Defendants-Appellants.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 01 C 1583—John W. Darrah, Judge.

____________

ARGUED OCTOBER 24, 2003—DECIDED SEPTEMBER 17, 2004

Before BAUER, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge. Misti Crull brought this action

pursuant to 42 U.S.C. § 1983 against her former employer,

the State of Illinois Judicial Inquiry Board (“JIB”), individual

JIB members and employees. She alleged constitutional

1

violations as a result of the termination of her employment.

1

Ms. Crull also alleged a deprivation of her liberty interests

resulting from defamatory comments. Subsequently, however,

the defendants moved for summary judgment on the ground that

(continued...)

2 No. 02-4093

The district court dismissed the JIB as a party be-cause it

was immune from suit in federal court. The parties then

filed cross-motions for summary judgment. The remaining

defendants asserted that summary judgment was appropriate

because Ms. Crull had no property interest in her continued

employment, and, therefore, they were entitled to qualified

immunity. The district court denied both motions. The

defendants appealed. We now reverse the judgment of the

district court.

I

BACKGROUND

A. Facts

1. Parties

The 1970 Illinois Constitution created the JIB for the pur-

pose of investigating judicial misconduct and mental or

physical incapacity of the State’s judges. See Ill. Const. art. VI,

§ 15(b). The JIB is composed of board members (“Board”),

a full-time Executive Director, two full-time investigators

and other support staff. The Executive Director is appointed

by the Board to supervise the investigators, to assist with

budget preparation and to be the spokesperson to the

media, among other responsibilities. The JIB hired Ms. Crull

in 1997 as an investigator. Defendants, William Sunderman

and Justice John W. Rapp, were members of the Board in

1997, and defendant Lindsay Parkhurst became a board

1

(...continued)

Ms. Crull had responded in an interrogatory that she no longer

wished to pursue her deprivation of liberty claim. The court

dismissed the liberty interest claim in August 2001. Ms. Crull

does not appeal this dismissal.

No. 02-4093 3

member in 1999. Mr. Sunderman became Chairman of the

JIB in August 1999 and was Chairman at the time the Board

terminated Ms. Crull’s employment. Finally, defendant

Kathy Twine was the JIB Executive Director at the time of

this appeal; she had been named to that position in 1998.

Ms. Twine replaced the former Executive Director, Sue

Tohinaka, after Tohinaka’s death in 1997. Ms. Twine also

fills the role of General Counsel to the JIB. See R.13 ¶ 7.

2. Purpose and Structure of the Judicial Inquiry Board

As stated above, the 1970 Illinois Constitution created the

JIB to conduct investigations and to receive or initiate

complaints concerning judges. See Ill. Const. art. VI, § 15(b)

& (c). The Board may file complaints with the Courts

Commission if there is a reasonable basis to charge a judge

with misconduct or to allege physical or mental disability

which renders the judge unable to perform judicial duties.

See id. at § 15(c).

The JIB’s first meeting was held on October 6, 1971, and

was called to order by Governor Richard Ogilvie. At that

initial meeting, Governor Ogilvie described the agency as an

independent agency and commented that the only authority

the Governor’s office had over the agency was to appoint

seven of its nine members. In 1992, after an inquiry from the

JIB, the Chief Legal Counsel of the Department of Central

Management Services (“CMS”) provided a legal opinion

that stated that the JIB was not subject to the provisions of

2

the Personnel Code. See R.41, Ex.4, Letter of Oct. 19, 1992.

In 1993, the Attorney General concluded that the JIB was an

2

Generally, the Personnel Code sets forth the policies and pro-

cedures for the hiring and firing of employees in state agencies

under the jurisdiction of the Governor.

4 No. 02-4093

independent state agency, part of the judiciary, and,

therefore, was exempt from the state personnel rules. See id.,

Letter of Feb. 24, 1993. The JIB formally adopted the Attor-

ney General’s opinion in 1993. See id., Minutes of March 12,

1993.

Unlike other state employees, generally speaking JIB em-

ployees are not hired from the CMS list of eligible employ-

ees but by the Board; the Board’s hiring decisions were not

restricted by the requirements of CMS. The JIB employees

do not have a written contract for any specific employment

period, and the Board has no formal grievance or discharge

procedures. In some respects, however, JIB employees

receive similar treatment to CMS employees. Both parties

agree that during the relevant time period (1) JIB employees

were evaluated on CMS forms, (2) vacation day forms stated

“Personnel Code Vacation Days Earned” and (3) JIB

adopted the model sexual harassment policy promulgated

by the Governor for agencies within his jurisdiction. See

Appellee’s Br. at 4; Appellants’ Br. at 13. Additionally, Ms.

Crull’s life and health insurance were administered through

CMS. Ms. Crull asserts that, when the JIB had no policy of

their own, it would follow the state employee Personnel

Code. The defendants claim that they looked to the state

policies “just to get a parameter” but have not necessarily

followed the policies as provided by the Personnel Code.

Appellants’ Br. at 12.

3. Hiring of Ms. Crull

When Ms. Crull was hired in 1997 as an investigator for

the JIB, she was not hired through CMS; she applied directly

to the JIB. Ms. Crull interviewed with Executive Director

Tohinaka and, like other JIB employees, did not meet with

the Board prior to her offer of employment. At some point

No. 02-4093 5

during the hiring process, Executive Director Tohinaka told

Ms. Crull that she would be placed on a six-month proba-

tionary period, after which “they have to have a reason to

fire you.” R.44, Ex.3 at 21. Ms. Crull also offered testimony

that she “was assured that the structure of the JIB was

designed to produce credibility and due process for the JIB

staff” as well as for the judges they investigate. R.44, Ex.4,

Crull Aff. ¶ 2. Executive Director Tohinaka sent Ms. Crull a

letter advising her of the date on which she should begin

work, her starting salary and that she would receive “full

State of Illinois Employee Benefit[s].” R.44, Ex. 4, Letter of

Sept. 30, 1997. The Board set Ms. Crull’s salary, which does

not depend on any set pay scale.

In a 1999 letter responding to Ms. Crull’s inquiries about

sick leave, the Labor Relations Manager/Chief Labor

Relations Counsel for the CMS informed Ms. Crull that the

JIB was “not under the jurisdiction of the Governor.” R.41,

Ex.9. The letter informed Ms. Crull to address the issues

with Executive Director Twine and explained that CMS

Labor Relations “generally do[es] not give advice regarding

matters that are not within the Governor’s jurisdiction.” Id.

Further, in June 2000, Board Chairman Sunderman told Ms.

Crull she was an at-will employee.

4. JIB Employees Placed on Probation

In addition to Ms. Crull, at least four other JIB investiga-

tors were placed “on probation” when they started their em-

ployment. “[F]ormer Executive Director Sue Tohinaka

and . . . Executive Director Twine had discretion to put

employees on probation . . . .” R.46 ¶ 14. Investigators Tom

Jennings, John Valencia, Wayne McClory and Dan Marello

were all placed on a six-month probationary period upon

being hired. Furthermore, based on an initial conversation

6 No. 02-4093

with Executive Director Tohinaka, McClory believed he

could be fired only for cause after his six months’ probation.

The Board placed Executive Director Twine on probation as

a new employee in January 1998 and removed her from

probation at their October 9, 1998 Board meeting. See R.44,

Ex.19 at 2.

Several employees also were placed back on probation

when they experienced difficulties in performing their re-

sponsibilities. Executive Director Tohinaka told Jennings

that he was being returned to probationary status. Executive

Director Twine told John Valencia that his probation had

been extended for another six months. See R.44, Ex.9. Both

employees were provided a written explanation of why they

were placed back on probation and an opportunity to

improve their performance. Finally, the defendants ac-

knowledge that “[t]he JIB, through interim Director Sandra

Otaka, also extended McClory’s probation during the

transition between Executive Directors after Tohinaka’s

death so that the new director ‘could fire [him] more easily.’”

Appellant’s Br. at 16 (quoting R.44, Ex.8, McGuire Dep. at

69-70) (alteration in original).

5. Board’s Past Termination of Employees

Prior to Ms. Crull’s termination, there is evidence of only

one other termination, the Board’s termination of Jennings

in March 1997. The Board did not provide Jennings with a

hearing but made its decision based on “Director Tohinaka’s

packet of materials . . . including Tom Jennings’ March 5,

1997 memo in response to his February 24, 1997 Annual

Performance Review.” R.41, Ex.14. In announcing its deci-

sion to terminate Jennings, the Board expressly stated the

decision was “with authorization” to the Executive Director

“to determine a suitable effective date which gives him at

least two weeks notice.” Id. at 1-2.

No. 02-4093 7

Prior to Ms. Crull’s dismissal, the Board became concerned

about her ability to conduct investigations. Specifically, the

Board was concerned about “her judgment, her ability to

write unbiased reports, her reliance on unsubstantiated ru-

mors and her ability to separate rumors from credible evi-

dence.” R.41, Ex.12 at ¶ 5. The outside counsel also ex-

pressed concerns about even using her as a witness before

the Courts Commission. See id. The Board determined to

terminate Ms. Crull because it had lost confidence in her

investigative abilities. See id.; see also Appellant’s Br. at 11

(citing to record). On October 13, 2000, Ms. Crull attended

a meeting with three Board members, defendants Sunderman,

Rapp and Parkhurst, and the Executive Director, Kathy

Twine. At this meeting, those present informed Ms. Crull

that the Board had voted unanimously to terminate her

employment. She was given no prior warning or hearing

but was provided two additional weeks of pay.

B. District Court Proceedings

On March 6, 2001, Ms. Crull filed this action pursuant to

42 U.S.C. § 1983. Specifically, Ms. Crull alleged that she had

a constitutionally protected property interest in her employ-

ment and that her dismissal violated her Fourteenth

Amendment rights to due process of law.

Both parties filed motions for summary judgment. In rul-

ing on the motions, the district court focused on whether

Ms. Crull had put forth facts establishing a property interest

in her continued employment. The court determined that a

property interest could arise from an independent source,

such as state law, or by a clearly implied promise of contin-

ued employment. The second method, the court explained,

included any mutually explicit understandings between the

parties. See R.62 at 7.

8 No. 02-4093

The court refrained from determining whether a state stat-

ute or regulation created such an obligation, noting that the

parties disputed this point and there was no case law

discussing whether the Personnel Code applied to the JIB.

The court determined that the resolution of that issue was

unnecessary because there was a genuine issue of material

fact regarding whether a property interest arose based on a

clearly implied promise of continued employment. Ac-

cordingly, the court denied the motions for summary judg-

ment.

Once it determined there was a triable issue of fact re-

garding Ms. Crull’s property interest in continued employ-

ment, the district court addressed the defendants’ claim of

qualified immunity. The court started with the two-step

inquiry for qualified immunity claims. First, it asked whether

Ms. Crull had stated a violation of her constitutional rights.

The court determined that Ms. Crull did raise a triable issue

as to whether she could only be terminated for cause.

Therefore, the court held, Ms. Crull had alleged a violation

of her constitutional rights, namely a deprivation of a

property interest without due process.

Second, the court addressed whether these rights were

clearly established at the time of the alleged violation. Al-

though there was no precedent on whether a JIB employee

had a property interest in her continued employment, the

case law was clear, the court determined, that a property

interest could arise from a clearly implied promise of con-

tinued employment. The court concluded that “it has long

been established that a property right in employment could

arise from the practices and promises of the state em-

ployer.” Id. at 10. Because Ms. Crull had come forward with

a triable issue of fact regarding whether this type of prop-

erty interest existed, summary judgment could not be

granted for the defendant.

No. 02-4093 9

II

DISCUSSION

A. Standards for Qualified Immunity

The defendants appeal the district court’s denial of their

motion for summary judgment on qualified immunity. This

decision is reviewed de novo. See McGrath v. Gillis, 44 F.3d

567, 569 (7th Cir. 1995). At this stage, we must view the facts

in the light most favorable to Ms. Crull, the nonmoving

party. Summary judgment is only appropriate when “the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986). Summary judgment should be

granted when the facts, viewed in the light most favorable

to the nonmoving party, fail to establish an essential

element of the nonmoving party’s claim on which she will

bear the burden of proof at trial. See Beauchamp v. City of

Noblesville, Ind., 320 F.3d 733, 742 (7th Cir. 2003).

To establish qualified immunity, a court must first ask

whether, “[t]aken in the light most favorable to the party

asserting the injury, do the facts alleged show the [defen-

dants’] conduct violated a constitutional right?” Saucier v.

Katz, 533 U.S. 194, 201 (2001). Second, the court must deter-

mine if the right was clearly established at the time of the

violation. See id. In addressing these questions, we also must

inquire as to whether the facts, viewed in the light most

favorable to Ms. Crull, demonstrate a violation of her

3

constitutional rights.

3

Ms. Crull suggests that this court lacks jurisdiction to hear this

appeal because it was an interlocutory appeal based on disputed

(continued...)

10 No. 02-4093

B. Violation of a Constitutional Right

Ms. Crull alleges she was deprived of her property inter-

est in violation of the Due Process Clause of the Fourteenth

Amendment when she was fired without notice or a hearing.

The burden is on her to demonstrate that she possessed a

property interest in her employment with the JIB that is pro-

tected by the Constitution. See Johnson v. City of Fort Wayne,

91 F.3d 922, 943 (7th Cir. 1996). “A protected property

interest in employment can arise from a state statute,

regulation, municipal ordinance, or an express or implied

contract—those ‘rules or understandings that secure certain

benefits and that support claims of entitlement to those

benefits.’ ” Id. (quoting Border v. City of Crystal Lake, 75 F.3d

270, 273 (7th Cir. 1996)); see Heck v. City of Freeport, 985 F.2d

305, 310 (7th Cir. 1993) (“[P]roperty interests in the employ-

ment context arise in two ways: by an independent source

such as state law securing certain benefits, or by a clearly

implied promise of continued employment.” (internal quo-

tations omitted)). Because Ms. Crull was employed in

Illinois, we must examine Illinois law to determine if she

had a property interest in her employment with the JIB. See

Johnson, 91 F.3d at 943.

3

(...continued)

factual issues. We note, however, that “a district court’s denial of

a claim of qualified immunity, to the extent that it turns on an

issue of law, is an appealable ‘final decision’ within the meaning

of 28 U.S.C. § 1291 notwithstanding the absence of a final judg-

ment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Therefore, we

previously have stated that “we have jurisdiction over an appeal

when the issue is simply whether, construing the disputed facts

in the light most favorable to the plaintiff, the defendant violated

any of the plaintiff’s clearly established constitutional rights.”

Knox v. Smith, 342 F.3d 651, 656 (7th Cir. 2003).

No. 02-4093 11

4

1. State Statute or Regulation

“The presumption in Illinois is that employment is at-

will . . . .” Border, 75 F.3d at 274. The relevant statute that

Ms. Crull offers to rebut this presumption is the Personnel

Code. See 20 Ill. Comp. Stat. 415/1-25. The Personnel Code

establishes “a system of personnel administration under the

Governor, based on merit principles and scientific meth-

ods.” 20 Ill. Comp. Stat. 415/2. Its rules generally provide

employees subject to its procedures a hearing prior to

termination for cause. See 20 Ill. Comp. Stat. 415/8b.16

(“[The rules prepared by CMS shall provide] [f]or hearing

before discharge or demotion with the prior approval of the

Director of Central Management Services only for cause

after appointment is completed, after the person to be dis-

charged or demoted has been presented in writing with the

reasons requesting such discharge or demotion.”). Neither

party disputes that the Personnel Code provides a property

interest in continued employment for the employees who

5

fall under its coverage.

As we noted, Ms. Crull must be able to demonstrate that,

under Illinois law, a JIB employee has a property interest in

her employment. She must establish that the Personnel Code

actually applies to her position. Therefore, we now consider

whether the Personnel Code applies to JIB employees.

4

The district court did not address whether Ms. Crull had a

property interest created by statute or regulation.

5

See Powell v. Jones, 305 N.E.2d 166, 169 (Ill. 1973); Prato v. Vallas,

771 N.E.2d 1053, 1064 (Ill. App. Ct. 2002) (“A public employee

who may be terminated only for cause has a property interest in

his employment within the meaning of the due process guaran-

tees of the United States and Illinois Constitutions.”).

12 No. 02-4093

a. applicable constitutional provisions

Article VI of the Constitution of the State of Illinois ad-

dresses the Judiciary. Within that article, Section 15 specifi-

cally speaks to the retirement and discipline of judges. Sub-

section “b.” creates the JIB. See Ill. Const. art. VI, § 15(b).

That section then specifies that the Supreme Court shall

select two members and the Governor seven; the members

shall serve for four-year terms, not to exceed eight years of

service. Subsection “c.” then addresses the authority and

duties of the Board and subsection “d.” provides that “[t]he

Board shall adopt rules governing its procedures. It shall

have subpoena power and authority to appoint and direct

its staff.” Ill. Const. art. VI, § 15(d).

b. scope of the Personnel Code

The purpose of the Personnel Code is “to establish for the

government of the State of Illinois a system of personnel

administration under the Governor, based on merit principles

and scientific methods.” 20 Ill. Comp. Stat. 415/2 (emphasis

added). The “Jurisdictions, exemptions” section defines the

scope of the Personnel Code by stating that “[a]ll offices and

positions of employment in the service of the State of Illinois

shall be subject to the provisions of this Act unless ex-

empted in this or any other Act.” 20 Ill. Comp. Stat. 415/4.

Among the specifically exempted positions are:

(1) All officers elected by the people.

(2) All positions under the Lieutenant Governor, Secre-

tary of State, State Treasurer, State Comptroller, State

Board of Education, Clerk of the Supreme Court, and

Attorney General.

(3) Judges, and officers and employees of the courts,

and notaries public.

No. 02-4093 13

(4) All officers and employees of the Illinois General

Assembly, all employees of legislative commissions, all

officers and employees of the Illinois Legislative Reference

Bureau, the Legislative Research Unit, and the Legislative

Printing Unit.

20 Ill. Comp. Stat. 415/4c.

c. parties’ contentions

The defendants focus on the word “under” in Section 2 of

the statute. They contend that Section 2 limits the scope of

the Personnel Code to only those civil service employees

“under the Governor.” Correlatively, they assert that the

Personnel Code does not apply to entities outside the

Governor’s authority and control. Because the JIB was cre-

ated under Article VI of the state constitution, the section

that concerns the Judiciary, the defendants assert that the JIB

is not “under the Governor” for purposes of the Personnel

Code. The defendants argue that any other reasoning would

bring the Personnel Code statute in conflict with the con-

stitutional grant of authority permitting the Board to ap-

point and direct its staff. The application of the Personnel

Code to the independent JIB would permit, according to the

defendants, the legislative branch to interfere with the JIB’s

constitutional authority, contrary to the Illinois Constitu-

tion. See Ill. Const. art. II, § 1 (“The legislative, executive and

judicial branches are separate. No branch shall exercise

powers properly belonging to another.”).

Ms. Crull, in contrast, asserts that 20 Ill. Comp. Stat. 415/4

applies the Personnel Code to all positions in the service of

the State of Illinois except for those positions exempted from

the statute. She submits that JIB employees are not exempt.

Specifically, she notes that many of the exempt organiza-

tions in Section 4 are not properly considered “under” the

Governor’s jurisdiction.

14 No. 02-4093

d. application

When the Personnel Code is read as a whole, it does not

unambiguously state whether it applies to the JIB. Section 4,

describing the “jurisdictions” and “exemptions” of the

chapter, states that the code applies to all positions “in the

service of the State of Illinois” unless exempted, 20 Ill.

Comp. Stat. 415/4; however, Section 2, discussing the pur-

pose of the chapter, states that the Personnel Code is to

establish “a system of personnel administration under the

Governor.” 20 Ill. Comp. Stat. 415/2 (emphasis added). The

JIB clearly is one of the “offices and positions of employ-

ment in the service of the State of Illinois,” but it is difficult

to see how it is an agency “under the Governor.”

We think a textual analysis of these provisions provides

a fairly secure basis for determining, as various organs of

Illinois government discussed earlier in the opinion have,

that the Board is not subject to the Personnel Code. Never-

theless, for the sake of argument, we shall assume that these

texts leave some doubt and look beyond the text to verify

the intent of those provisions. At the outset, we note that

Illinois courts grant “considerable deference to an agency’s

interpretation of a statute it administers”; however, “an

agency’s interpretation is not binding as to questions of law

and will be rejected if erroneous.” See Denton v. Civil Serv.

Comm’n, 679 N.E.2d 1234, 1236 (Ill. 1997). The CMS is the

agency in charge of administering the Personnel Code, and,

therefore, we give their interpretation appropriate defer-

ence.

The CMS, in a letter responding to the Board’s questions

whether the Personnel Code applied, stated that JIB “em-

ployees have been considered exempt from the Personnel

Code since the 1970 Constitution became effective.” R.41,

Ex.4, Letter of Oct. 19, 1992, at 1. The Chief Legal Counsel

for CMS further opined that “[w]hen the Constitution be-

No. 02-4093 15

came effective, its grant of authority to the Board to appoint its

employees [Section 15(d)] was contrary to and inconsistent

with the provisions of the Personnel Code.” Id. The CMS

concluded that this constitutional grant of authority “was an

expression of intent that employees of the Board are exempt

from the Personnel Code.” Id. The CMS also took note of the

impact that the Personnel Code would have on other

branches of government because it requires that most em-

ployees only be fired for cause. In light of this restriction, the

CMS reasoned, the Personnel Code would impose “more than

a peripheral, indirect, or collateral change in personnel

administration.” Id. at 2. The CMS concluded that employ-

ees of the JIB “are exempt from the provisions of the

6

Personnel Code.” Id. at 3.

We see no reason to dispute this interpretation of the

statute. The CMS’s interpretation is well grounded and

firmly supported by traditional principles of statutory con-

struction. When the creation of the JIB is viewed in context

with the Personnel Code as a whole, it is clear that those

procedures were not intended to be applied against the JIB.

6

This interpretation is consistent with the Attorney General’s

comments in response to the JIB’s inquiry whether the Personnel

Code applied to its employees. See R.41, Ex.4. It also is consonant

with the more recent letter from the Chief Labor Relations Counsel

for CMS, Nancy Pittman, responding to Ms. Crull. Ms. Pittman

informed Ms. Crull in August of 1999 that she could not answer

Ms. Crull’s questions because the JIB was not “under the ju-

risdiction of the Governor.” R.41, Ex.9. This interpretation also

conforms with JIB’s statements to its employees. For example, in

adopting a vacation policy based on the Personnel Code, the

Board expressly noted that “the Board is not governed by the

Personnel Code” but adopted the policy because it was in the best

interest of the public to do so. R.41, Ex.6.

16 No. 02-4093

Structural principles of constitutional and statutory inter-

pretation support this conclusion. The JIB was created in the

1970 Illinois Constitution; the Personnel Code has been in

existence since 1955. Obviously, the Personnel Code did not

specifically address the JIB at the time of its enactment; the

JIB did not exist. The Personnel Code, however, exempts all

elected officers, “all Judges, and officers, and employees of

the courts, and notaries public,” and all employees of the

Illinois General Assembly, including employees of legi-

slative commissions. 20 Ill. Comp. Stat. 415/4c. In sum,

Section 4c exempts nearly all legislative and judicial posi-

tions, leaving only those positions in the executive branch

subject to the Personnel Code.

Historical factors support this structural view. Prior to the

1970 creation of the JIB, its functions were exercised by the

Illinois Supreme Court. See Owen v. Mann, 475 N.E.2d 886,

890 (Ill. 1985). The JIB’s predecessor, the Illinois Courts

Commission, was therefore exempt from the Personnel Code

because it was under the auspices of the Supreme Court.

Although JIB employees may not be considered judges or

employees of the courts—those employees specifically listed

in Section 4c(3)—the JIB was created as part of Article VI

which addresses the Judiciary, and it seems equally likely

that the Personnel Code was not intended to apply to them.

The Board also was given explicit power to “appoint and

direct its staff.” Id. § 15(d). The placement of the JIB in the

Judiciary Article with this express grant of authority pro-

vides a very substantial reason to question the Personnel

Code’s application to the JIB. See Ill. Const. art. II, § 1 (“The

legislative, executive and judicial branches are separate. No

branch shall exercise powers properly belonging to another.”).

In accord with this express power to appoint and direct its

staff and establish rules governing its procedures, the only

significant role another branch has over the personnel oper-

ations of the Board is that the Governor is permitted to

No. 02-4093 17

appoint seven members while the Illinois Supreme Court

selects two. Applying the Personnel Code’s restrictions to

such an entity would impinge on the express grant of

power. Because the JIB did not exist when the Personnel

Code exemptions were enacted, because its predecessor was

exempt and because Section 4c generally exempts positions

in the legislative and judicial branches, it is reasonable to

conclude that Section 2 of the Personnel Code applies only

to those positions “under” the Governor, which excludes the

JIB from its reach.

Moreover, the CMS interpretation is consistent with the

practices and interpretations over the entire 30-year life of

the agency. It is consistent with Governor Ogilvie’s com-

ments at the JIB’s initial meeting in 1971, that the JIB was an

independent agency beyond his authority. See R.41, Ex.2 at

2. It is also supported by the JIB’s practice of not hiring

employees through the CMS system and setting their own

procedures regarding personnel.

Accordingly, we conclude that the Personnel Code does

not apply to JIB employees. Therefore, Ms. Crull does not

have a property interest arising from the Personnel Code.

This conclusion, however, does not end our inquiry, and we

must now turn to consider other potential sources of

property interests.

2. Clearly Implied Promise of Continued Employment

Although Ms. Crull did not have a property right arising

from an explicit contractual agreement or the Personnel

Code, property rights are not created solely by these sources.

“ ‘[P]roperty’ interests subject to procedural due process

protection are not limited by a few rigid, technical forms.

Rather, ‘property’ denotes a broad range of interests that are

secured by ‘existing rules or understandings.’ ” Perry v.

Sindermann, 408 U.S. 593, 601 (1972) (internal citations omit-

18 No. 02-4093

ted). Ms. Crull may establish a property interest in her

employment if she can demonstrate the existence of an

unwritten “common law of employment” providing a right

to be terminated only for cause. Id. “A common law of

employment is established through rules or ‘mutually

explicit understandings’ and not solely through past practices

of the employer.” Hermes v. Hein, 742 F.2d 350, 355 (7th Cir.

1984) (internal citations omitted); see Perry, 408 U.S. at 601;

Miller v. Crystal Lake Park Dist., 47 F.3d 865, 867 (7th Cir.

1995) (noting that a “ ‘mutually binding obligation’ is just

fancy language for ‘contract’ ”); Powell, 305 N.E.2d at 169

(noting that “every public employee does not have a right

to continued employment,” but “a public employee can

have such a right dependent upon the surrounding circum-

stances including existing rules and understandings”).

When basing a property interest on mutually explicit

understandings, however, extreme care must be taken in

evaluating the nature, quality and clarity of the purported

understandings. Not anyone can bind the government. It is

“firmly established that the ‘mutually explicit understand-

ings’ that constitute property interests under the holding of

Perry cannot be based on the representations of government

officials who are not authorized to make such representa-

tions.” Wolf v. City of Fitchburg, 870 F.2d 1327, 1334 (7th Cir.

7

1989). We must be mindful of this restriction when consid-

ering the facts that may demonstrate a mutually explicit

understanding.

7

See Fittshur v. Vill. of Menomonee Falls, 31 F.3d 1401, 1408 (7th

Cir. 1994); Santella v. City of Chicago, 936 F.2d 328, 331-32 (7th Cir.

1991); Wolf v. Larson, 897 F.2d 1409, 1413 (7th Cir. 1990); Smith v.

Bd. of Educ. of the City of Chicago, 853 F.2d 517, 521 (7th Cir. 1988);

Common v. Williams, 859 F.2d 467, 472 (7th Cir. 1988); Hadley v.

County of Du Page, 715 F.2d 1238, 1242-43 (7th Cir. 1983).

No. 02-4093 19

a. executive director

Ms. Crull primarily relies upon a statement by Executive

Director Tohinaka at the time Ms. Crull was hired to es-

tablish her property interest. Ms. Crull submitted affidavit

testimony that Tohinaka told her that there was a six-month

probationary period after which “they have to have a reason

to fire you.” R.44, Ex.3 at 21. According to Ms. Crull, this led

her to believe that she would be subject to progressive

discipline and that she would be given a hearing prior to

termination. Ms. Crull, however, does not offer any indica-

tion that the Executive Director had the actual authority to

establish her employment conditions.

Ms. Crull admits that she “did not present any facts or ex-

hibits regarding the Executive director’s authority, and the

district court did not consider the issue.” Appellee’s Supp.

Br. at 1; see Appellee’s Br. at 14. Ms. Crull explains that she

did not proffer such evidence because the defendants

“never made assertions regarding the authority of the JIB

Executive Director in their statement of material Facts (Doc.

41).” Appellee’s Supp. Br. at 1. Ms. Crull acknowledges,

however, that the defendant offered deposition testimony

and an affidavit regarding the power of the Executive Direc-

tor. See Appellants’ Br. at 14 n.4. The Executive Director has

no authority, according to the defendants, to establish

agency policy or make employee decisions without the

approval of the Board. Specifically, Executive Director Twine

averred that in her position as Executive Director she did

not have the power to fire anyone. See R.44, Ex.6 at 13. The

defendants submitted evidence that the Board, and not the

Executive Director, determines whether to promote an

employee, see R.41, Ex.14, to give an employee a raise, see

R.44, Ex.6 at 14-16, and to adopt other personnel policies for

the JIB, see R.44, Ex.19 at 2. When the Board hires employees,

the Board sets the salary and does not offer employment

20 No. 02-4093

contracts for any time frame. See R.41, Ex.19 ¶ 4. The Board

considers investigators at-will employees, and it has no

policy that employees can be fired only for cause. See id.

Ms. Crull had to support her assertion of mutually explicit

understanding of continued employment by offering

statements from someone who could bind the Board. See

Wolf, 870 F.2d at 1334; see also n.9 infra. Ms. Crull had the

burden, not only to demonstrate a property interest, see, e.g.,

Lawshe v. Simpson, 16 F.3d 1475, 1483 (7th Cir. 1994), but to

demonstrate that the person making statements had the

authority to create a property interest, see Schoenberger v.

Chicago Transit Auth., 405 N.E.2d 1076, 1136 (Ill. App. Ct.

1982) (“The authority to bind a principal will not be pre-

sumed, but rather, the person alleging the authority must

prove its source . . . .”); see also Yugoslav-American Cultural

Ctr. v. Parkway Bank & Trust Co., 682 N.E.2d. 401, 406 (Ill.

App. Ct. 1997) (noting that the burden on the person seek-

ing to bind the principal “is difficult to meet because, where

the existence of an agency is an issue, the mere statements

of the alleged agent, made outside the presence of the

principal and not subsequently approved by him, do not

establish the existence of the principal-agent relationship”).

Ms. Crull did not produce the facts to support her claim.

Ms. Crull also submits that there are facts in the record

that suggest the Executive Director had the apparent author-

ity to change her employment terms. It is well established

that, generally speaking, “[a] principal is bound equally by

the authority that he actually gives his agent and by that he

appears to give.” Amcore Bank v. Hahnaman-Albrecht, Inc.,

759 N.E.2d 174, 183 (Ill. App. Ct. 2001). However, this gen-

eral rule must be applied with great circumspection when

a state entity is the principal.

The JIB is a creature of the Illinois Constitution. It is

composed of members that are appointed for limited terms.

The Constitution specifically provides the Board with the

No. 02-4093 21

authority to appoint and direct its staff. This is an unlikely

situation in which to apply the common law principles of

apparent authority, which would effectively permit the

statements of one Executive Director, an employee of the

Board, to bind all subsequent Boards and thus to restrict the

Board’s specific constitutional grant of authority. See Heck v.

City of Freeport, 985 F.2d 305, 311 (7th Cir. 1993) (noting that

property interests arising from mutually explicit under-

standings only could occur “if consistent with official law”).

Indeed, Illinois courts have held that “it is contrary to the

effective administration of a political subdivision to allow

elected officials to tie the hands of their successors with

respect to decisions regarding the welfare or the subdivi-

sion.” Cannizzo v. Berwyn Township, 741 N.E.2d 1067, 1071

(Ill. App. Ct. 2000) (citing the rule established in Millikin v.

County of Edgar, 32 N.E. 493 (1892)).

Applying the rule to municipalities, the court in Cannizzo

held that an elected board did not have authority to employ

persons in positions that were important to the effective

administration of the board beyond its term. See id.; see also

Grassini v. DuPage Township, 665 N.E.2d 860 (Ill. App. Ct.

1996). Because the board in Cannizzo used staggered

appointments, the length of time used to measure or limit

the board’s power was the term of the elected official

appointing the board. The court determined that a three-

year employment contract extended beyond the board’s

authority and was void ab initio. See Cannizzo, 741 N.E.2d at

1074.

Furthermore, in circumstances outside the context of hir-

ing employees, the use of apparent authority by government

employees to bind the State has been circumscribed consid-

erably in Illinois. A party who deals with a governmental

body assumes the risk of ascertaining whether the agent is

22 No. 02-4093

acting within the bounds of the agent’s authority or whether

8

the agent is outside his authority.

Even if apparent authority applied in the present situa-

tion, Ms. Cole has not come forward with facts to establish

the apparent authority of the JIB Executive Director to guar-

antee that employees would be terminated only “for cause,”

8

See Rubidoux v. Northeastern Illinois Univ., 51 Ill. Ct. Cl. 275, 1998

WL 1758261, at *9 (1998) (noting that the doctrine of apparent

authority “has limited, if any, application to the State, where

contractors are required to ascertain at their peril the true

authority of purported agents of the State”); see also County of

Cook v. Patka, 405 N.E.2d 1376, 1380-81 (Ill. App. Ct. 1980) (“Any-

one dealing with a governmental body takes the risk of accurately

ascertaining that he who purports to act for that body stays within

the bounds of his authority and this is so even though the agent

himself may have been unaware of the limitations on his author-

ity.”); Ernat v. State of Illinois, 36 Ill. Ct. Cl. 82, 90 (1984) (stating

that “[t]he State cannot be bound by agents with apparent

authority rather than actual authority in most situations because

such a policy could be disastrous to the State’s budget”); cf.

Gersch v. Dep’t of Prof ’l Regulation, 720 N.E.2d 672, 681 (Ill. App.

Ct. 1999) (“A public entity cannot be estopped by an act of its

agent which is beyond the authority expressly conferred upon

that official.”); Hamwi v. Zollar, 702 N.E.2d 593, 598 (Ill. App. Ct.

1998) (“A municipality cannot be estopped by an act of its agent

beyond the authority expressly conferred upon that official.”);

Akmakjian v. Dep’t of Prof’l Regulation, 679 N.E.2d 783, 787 (Ill.

App. Ct. 1997) (refusing to permit representations beyond the

agent’s actual authority to estop a governmental body). But cf.

Genie Constr. Co. v. Illinois, 51 Ill. Ct. Cl. 153, 1999 WL 33246466,

at *9 (1999) (“Where the State vests a person with apparent

authority to order services, the Claimant reasonably relied upon

his apparent authority to bind the State, and the Claimant

performed the services, the State cannot deny that the person had

actual authority to bind the State.” (internal citations omitted)).

No. 02-4093 23

would be subject to progressive discipline and would be ter-

minated only after a hearing. “[A]pparent authority arises

when a principal, through words or conduct, creates a rea-

sonable impression that the agent has the authority to perform

a certain act.” Amcore Bank, 759 N.E.2d at 183-84 (internal

citations omitted). Apparent authority must be traced to

some word or act of the principal, here the Board, that cre-

ates a reasonable impression that the agent, the Executive

Director, has the authority to act with respect to the matter

at issue, here the nature of the employment relationship.

In support of her claim of apparent authority, Ms. Crull

asserts that the Executive Director has been permitted to

“establish[ ] employment policies without the approval of

the Board, including the ‘policy for daily operations’ and

rules on personal and sick days. (Doc. 41, Ex. 7, Ex. 9A).”

Appellee’s Br. at 15. However, the authority cited for this

proposition does not support Ms. Crull’s assertion. Exhibit

7 is a cover memo from the Executive Director informing JIB

employees of changes in the “Policy for Daily Operations.”

Nothing in the cover memo or in the policy itself suggests

that the policy was adopted without Board approval; to the

contrary, in fact, with respect to “Vacation and Personal

Days,” the policy states that “[a]lthough JIB is not covered

by the State Personnel Code, the Board has adopted the

accumulated vacation leave policy applicable to all State

employees.” R.41, Ex.7 at 2 (emphasis added). Similarly,

Exhibit 9A simply is an explanation of how the sick-time

policy will be administered, i.e., hourly increments in which

employees may use sick time; it does not suggest that the

Executive Director has the authority to make unilateral poli-

cies with respect to terms and conditions of employment,

for instance, the actual number of sick days to which an

employee is entitled. Furthermore, with respect to the only

other termination of employment that took place prior to

Ms. Crull’s, it was the Board that made the termination

24 No. 02-4093

decision (notably without a hearing). Finally, in announcing

its decision to terminate Jennings, the Board expressly

stated in its decision that it was authorizing the Executive

Director to “determine a suitable effective date which gives

him at least two weeks notice.” R.41, Ex.14. Far from giving

the impression that the Executive Director has the authority

to set terms of employment, these actions lead to the

9

conclusion that the authority rests strictly with the Board.

Having determined that the Executive Director did not

have apparent authority to offer employment with specific

requirements for discharge, we turn to the question of

whether the Board itself created any property interest in the

employees’ continued employment.

b. Board

The practices of the Board also do not support a mutually

explicit understanding to continued employment. Ms. Crull

has not offered any evidence that the Board shared her

understanding of her employment terms. The evidence

submitted only leads to an inference that Ms. Crull had a

misunderstanding as to her entitlements. See Wolf, 870 F.2d

at 1335. There is nothing to infer that the Board reached an

agreement with her or intended her to have any form of

9

Although not addressed by the parties, we note that, in support

of her apparent authority argument, Ms. Crull points primarily

to actions of the Executive Director and the Board taken after she

accepted her employment with the Board. It is difficult, therefore,

for Ms. Crull to argue that she relied on the impressions resulting

from these later actions when she accepted her earlier-in-time

offer of employment (and, presumably, relied on the Executive

Director’s statements regarding the nature of her employment

with the Board).

No. 02-4093 25

tenure.

Ms. Crull asserts that no JIB investigator had been ter-

minated without cause and without an opportunity to im-

prove their performance. She also asserts that the JIB had a

practice of placing employees on probation prior to ter-

minating them. Ms. Crull points to evidence in the record

demonstrating that the Board voted to remove Executive

Director Twine from probation over six months after she

became the executive director. See R.41, Defendant’s State-

ment of Uncontested Facts ¶ 3 (noting that Twine became

the Executive Director in January 1998); R.44, Ex.19 at 2

(Board minutes of October 9, 1998, removing Ms. Twine

from probation). Ms. Crull also points to defendants’ statement

that “[t]he JIB, through interim Director Sandra Otaka, also

extended McClory’s probation during the transition be-

tween Executive Directors after Tohinaka’s death so that the

new director ‘could fire [him] more easily.’ ” Appellants’ Br. at

16. Finally, she points out that the Board has adopted some

10

Personnel Code policies.

Past practices of an employer are not sufficient, standing

alone, to establish a mutual understanding. See Lawshe, 16

10

The fact that the JIB adopted some provisions of the Personnel

Code does not create a genuine issue of material fact regarding

the nature of Ms. Crull’s employment. When the Board adopted

one provision of the Personnel Code, it explicitly stated it was not

required to adopt it but did so because it was in the best interest

of the public. If Ms. Crull assumed that the Board would adopt

all of the Personnel Code based on its adoption of a few policies,

this is evidence of a mistake rather than any mutual understand-

ing. “A misunderstanding of one’s entitlements, even if reason-

able, does not enlarge those entitlements.” Wolf v. City of

Fitchburg, 870 F.2d 1327, 1335 (7th Cir. 1989) (internal quotation

marks and citations omitted).

26 No. 02-4093

F.3d at 1480; see also Hermes, 742 F.2d at 355 (“[A] common

law of employment is established through rules or mutually

explicit understandings and not solely through the past

practices of an employer.” (internal citations omitted)). The

past terminations, however, do not indicate a “common

practice.” The record reveals evidence of only one other

employee fired besides Ms. Crull. In effecting this termina-

tion, it is not even evident that the Board permitted him an

11

opportunity to respond to its decision.

The evidence in the record regarding the Board’s under-

standing is that it considered JIB employees to be employed at

will. Board member Parkhurst stated in a deposition that

she considered Ms. Crull an at-will employee. See R.41,

Ex.23, Parkhurst Dep. Significantly, in June of 2000, Board

Chairman Sunderman told Ms. Crull she was an at-will

employee. R.41, Ex.15 ¶ 5. Six months prior to terminating

Ms. Crull, the Board asked outside counsel for an opinion

explaining the status of its employees, specifically whether

they were at-will employees. The outside counsel informed

11

The Board fired Tom Jennings after considering the reviews

provided by the Executive Director and Jennings’ written re-

sponse to the Executive Director’s criticism. At their March 14,

1997 meeting, the Board noted:

With respect to annual personnel reviews the Board re-

viewed Director Tohinaka’s packet of materials consisting of

reviews and attachments on all staff, including Tom

Jennings’ March 5, 1997 memo in response to his February

24, 1997 Annual Performance Review. As a result of their

discussion, the Board voted to terminate Tom’s employment

with authorization granted to Director Tohinaka to deter-

mine a suitable effective date which gives him at least two

weeks notice.

R.41, Ex.14 at 2.

No. 02-4093 27

the Board that the employees were at-will employees. See

R.44, Ex.15 at 53-56. There is no indication that the Board

ever came to a mutually explicit understanding with Ms.

Crull to provide her with a right to only be fired for cause.

Because it is the plaintiff’s burden to show mutually explicit

understanding or common law of workplace that establishes

a property interest, and because, viewing the facts in the

light most favorable to Ms. Crull, she has not met this

burden, we must conclude Ms. Crull did not have a prop-

12

erty interest in her continued employment.

Conclusion

We find that Ms. Crull failed to demonstrate a property

interest in her continued employment pursuant to any

statute, regulation or contractual agreement, either express

or from mutually explicit understandings. Accordingly, the

defendants were entitled to summary judgment. The judg-

ment of the district court is reversed.

REVERSED

12

It is not necessary, therefore, for us to consider the second

prong of the qualified immunity analysis—whether the right that

was denied was clearly established at the time the defendants

acted.

28 No. 02-4093

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-17-04