Record and brief — Anderson v. City of Northlake

uonned

. Office -Supreme Court, U.S.

No.8 1-356 “ELLE D

AUG 24 1981

In THE scien "aie

Supreme Court of the United States

Ocroser Term, 1980

———_

WILLIAM ANDERSON, ROBERT BACON, JAMES CERVONE,

DOMENIC DiIULIO, WILLIAM GRUNDY, RICHARD HAACK,

DONALD HALAWITH, ERNEST HUSTEDT, HARVEY JOHN.

SON, STEVEN KALBACH, FRANCIS H. KELLY, JAMES LAR-

RIVEE, EDWARD MANKE, DONALD MICHALSKI, BERNARD

NESSEL, NORMAN NISSEN, THOMAS O’CULL, SIGMUND

TRYKOSKI, WALTER WAGEMANN, JOSEPH WILLIAMS and

THOMAS LAZZARA,

Petitioners,

CITY OF NORTHLAKE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

STANLEY H. JAKALA

3219 Maple Avenue

Berwyn, Illinois 60402

(312) 788-5733

Attorney for Petitioners

Midwest Law Printing Co, Chicago 60611, (312) 321.0220

QUESTIONS PRESENTED FOR REVIEW

I. Can a proprietary interest be created in overtime

pay by an implied contract?

II. Can a proprietary interest in longevity pay be

created by ordinance?

III. Can such proprietary interests be abrogated

retroactively by subsequent ordinances eliminating such

proprietary interests?

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .... i

TABLE OF AUsHORITIES. .00.00.............ccccceccseeeees iii

EL eee 2

I 3

CONSTITUTIONS INVOLVED. ...............cccceseeeee 3

STATEMENT OF THE CASE oo...........cccccccccosees 4

REESE SESSA Oe EEE 6

I aa a ll

APPENDIX:

A. Opinion Of The Honorable Nicholas J.

Bua Of The United States District Court,

For The Northern District Of Illinois,

Eastern Division, Dated November 13,

EET Ae eae la

B. Opinion Of The United States Court Of

Appeals For The Seventh Circuit, Chi-

cago, Illinois, Dated May 26, 1981 ........ 7a

TABLE OF AUTHORITIES

Cases

Allied Structural Steel Co. v. Warren Spannaus

fF hf fee 8, 9, 10

Arnett v. Kennedy, 416 U.S. 134 .0........cceeeeeeeee 7,8

Bishop v. Wood, 44 L.W. 4820 (1976) ...............0. 6, 8

Perry v. Sinderman, 33 L. Ed. 2d 570 (1972) ........ 6, 8

United States v. City of Chicago, 549 F.2d 415 .... 7, 8

United States Trust Co. v. New Jersey, 431 U.S. 1

SETI ETRE re PSO PO en OE 9, 10

In Tue

Supreme Court of the United States

Octoser Term, 1980

WILLIAM ANDERSON, ROBERT BACON, JAMES CERVONE,

DOMENIC DiIULIO, WILLIAM GRUNDY, RICHARD HAACK,

DONALD HALAWITH, ERNEST HUSTEDT, HARVEY JOHN-

SON, STEVEN KALBACH, FRANCIS H. KELLY, JAMES LAR-

RIVEE, EDWARD MANKE, DONALD MICHALSKI, BERNARD

NESSEL, NORMAN NISSEN, THOMAS O’CULL, SIGMUND

TRYKOSKI, WALTER WAGEMANN, JOSEPH WILLIAMS and

THOMAS LAZZARA,

Petitioners,

CITY OF NORTHLAKE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

soles

OPINIONS BELOW

On November 30, 1980, the Honorable Nicholas J. Bua

of the United States District Court for the Northern Dis-

trict of Illinois, Eastern Division, denied petitioners’ Mo-

tion for Summary Judgment that the City of Northlake,

Illinois, respondent, had created a property interest in

continued overtime pay for hours worked in excess of 40

pursuant to an implied contract to that effect and that

the City of Northlake, Illinois, had created a property

interest via ordinance for payment of longevity pay and

that the City of Northlake’s attempt by subsequent or-

dinances eliminating such overtime pay and longevity

pay was an abrogation of the petitioners’ property rights

in violation of the due process and equal protection

clause of the Fourteenth Amendment of the United

States Constitution, the ex post facto and impairment of

obligations clauses, Article I, Par. 10, Cls. 1, of the Un-

ited States Constitution.

In denying the petitioners’ Motion for Summary Judg-

ment, the Honorable Nicholas J. Bua granted a sum-

mary judgment in favor of the respondent on the legal

theory that the petitioners did not demonstrate a

legitimate claim of entitlement to overtime and longevi-

ty pay. (Order of November 30, 1980, of the Honorable

Nicholas J. Bua is reprinted herein as Appendix A).

On May 26, 1981, the United States Court of Appeals

for the Seventh Circuit, Chicago, Illinois, affirmed the

judgment of the Honorable Nicholas J. Bua by adopting

his order of November 30, 1980, as the unpublished

order of the Appellate Court which ordered is reprinted

herein as Appendix B.

liens

JURISDICTION

1. The federal questions were raised by the

petitioners in their Complaint for Declaratory Judgment

to the effect that the City of Northlake, Illinois, Or-

dinance #0-01-78, passed on January 10, 1978, elimi-

nating overtime pay and Ordinance #0-3-78, passed

on February 20, 1978, eliminating longevity pay consti-

tuted a vio! ition of Article I, Par. 10, Cls. 1 of the United

States Constitution, impairment of obligation of con-

tracts, and a violation of the due process and equal

protection clause of the Fourteenth Amendment of the

United States Constitution, 28 U.S.C. 1331 and 1343,

and 28 U.S.C. 2201 and 2202, 42 U.S.C. 1983.

2. The Petition for Certiorari was filed within 90

days after the entry of the judgment by the United

States Court of Appeals for the Seventh Circuit,

Chicago, Illinois, on May 26, 1981.

CONSTITUTION INVOLVED

Amendment I:

“Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.”

a

Amendment XIV:

“Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any

law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

STATEMENT OF THE CASE

That prior to January 10, 1978, the petitioners had

been paid overtime for working in excess of 40 hours

per week.

On January 10, 1978, the City of Northlake, Illinois,

passed Ordinance #0-01-78 which eliminated overtime

pay for working in excess of 40 hours and substituted

payment of straight time for excess hours accrued prior

to January 10, 1978, and provided for compensatory

time after January 10, 1978.

That prior to February 28, 1978, the petitioners were

paid longevity pay pursuant to Northlake, Illinois, Or-

dinance #0-1-66.

That on February 28, 1978, the City of Northlake,

Illinois, passed Ordinance #0-3-78 providing that longev-

ity accruing prior to February 25, 1978, would be

acknowledged, since it was considered a vested right

and that, after February 28, 1978, longevity pay would

no longer be paid.

==

That petitioners filed a complaint for declaratory

judgment and other relief pursuant to 42 U.S.C. 1983,

the due process and equal protection clause of the

Fourteenth Amendment of the United States Constitu-

tion, the ex post facto and impairment of obligation of

contracts clause, Article I, Par. 10, Cls. 1 of the United

States Constitution.

In their complaint for declaratory judgment and other

relief, the petitioners alleged that the City of Northlake,

Illinois, in passing Ordinance #0-01-78, on January 10,

1978, eliminating overtime pay for work in excess of 40

hours by substituting straight time for such excess

hours accrued prior to January 10, 1978, and payment of

compensatory time after January 10, 1978, and in pass-

ing Ordinance #0-3-78, on February 28, 1978, elimi-

nating longevity pay after February 28, 1978, constituted

a violation of Article I, Par. 10, Cls. 1 of the United

States Constitution pertaining to ex post facto and

impairment of obligation of contracts clause, and a

violation of the due process and equal protection clause

of the Fourteenth Amendment of the United States Con-

stitution.

In connection with the complaint for declaratory judg-

ment and other relief, the respondent filed a motion to

dismiss the complaint which motion was denied.

Subsequently, the respondent filed its answer admit-

ting that the ordinances in question had been passed,

but that they had not violated the constitutional con-

siderations as raised by the complaint for declaratory

judgment and other relief as filed by the petitioners.

a

ARGUMENT

The issues are whether proprietary interests were

created in overtime and longevity pay which had

been abrogated retroactively by subsequent City of

Northlake, Illinois, ordinances eliminating such pro-

prietary interests in violation of petitioners’ United

States constitutional rights relating to due process and

equal protection under the Fourteenth Amendment and

impairment of obligation of contracts under Article I,

Par. 10, Cls. 1.

In Bishop v. Wood, 44 LW 4820 (1976), at Page 4821,

the Court states:

“A property interest in employment can, of

course, be created by ordinance or by an implied

contract.”

Prior to January 10, 1978, the City of Northlake, II-

linois, paid overtime to the petitioners for working in ex-

cess of 40 hours per week.

The basis for the overtime payment was the issuance

of a written directive on August 19, 1974, by then and

current Chief Lee R. Gehrke and the Treasurer’s office

that overtime worked after 40 or 48 hours would be paid

at time and one-half.

Such a directive constituted an implied contract that

entitled the petitioners to overtime pay pursuant to the

observations as stated on page 580, Perry v. Sinderman,

33 L. Ed. 2d 570 (1972), wherein the Court recognizes

that an employer by his words and conduct can create

an implied contract which observations are quoted as

follows:

= =

“A written contract with an explicit tenure pro-

vision clearly is evidence of a formal understanding

that supports a teacher’s claim of entitlement to

continued employment unless sufficient “cause” is

shown. Yet absence of such an explicit contractual

provision may not always foreclose the possibility

that a teacher has a “property” interest in re-

employment. For example, the law of contracts in

most, if not all, jurisdictions long has employed a

process by which agreements, though not for-

malized in writing, may be “implied.” 3 A. Corbin

on Contracts Pars. 561-572A (1960). Explicit con-

tractual provisions may be supplemen by other

agreements implied from “the promisor’s words and

conduct in the light of the surrounding cir-

cumstances.” Id., at Par. 562. And, “(t)he meaning of

(the promisor’s) words and acts is found by relating

them to the usage of the past.” (408 US 602)

As a consequence, when the City of Northlake, II-

linois, passed an ordinance on January 10, 1978, #0-01-

78, eliminating overtime pay, it, in effect, amended a

contractual relationship that was based upon an implied

contract in violation of the ex post facto and impairment

of contracts clause of the United States Constitution and

the due process and equal protection clause of the

Fourteenth Amendment of the United States Constitu-

tion.

To support the petitioners’ position that the elimina-

tion of longevity pay violated their constitutional rights

as described, petitioners cite Arnett v. Kennedy, 416 U.S.

134 and United States v. City of Chicago, 549 F.2d 415,

which hold that ordinances or statutes that provide for

due process hearings prior to discharge and promotions

pursuant to state law create property or vested rights

which must be observed.

anf

Therefore, on the basis of Bishop v. Wood, Perry v.

Sinderman, Arnett v. Kennedy, and United States v. City

of Chicago, the petitioners had a prior implied contrac-

tual relationship for the overtime pay and an ordinance

for the longevity pay that created vested rights which

the City of Northlake, Illinois, could not impair retroac-

tively without meeting certain criteria.

To impair a vested right retrospectively, the state or

city must meet four criteria pursuant to Allied Struc-

tural Steel Co. v. Warren Spannaus et al., 57 L.Ed. 727

(1978), which criteria are identified at page 735 as:

First, the state legislature had declared in the Act

itself that an emergericy need for the protection of

homeowners existed. ld., at 444, 78 L.Ed. 413, 54

S. Ct. 231, 88 ALR 1481.

Second, the state law was enacted to protect a basic

societal interest, not a favored group. Id., at 445, 78

L.Ed. 413, 54 S.Ct. 231, 88 ALR 1481.

Third, the relief was appropriately tailored to the

emergency that it was designed to meet. Ibid.

Fourth, the imposed conditions were reasonable.

Id., at 445-447, 78 L.Ed. 413, 54 S. Ct. 231, 88 ALR

1481.

And finally the legislation was limited to the dura-

tion of the emergency, Id., at 447, 78 L. Ed. 413, 54

S. Ct. 231, 88 ALR 1481.

Applying the criteria of the Allied Structural Steel

Co. decision to the amending Northlake crdinances

that elir.‘nated overtime and longevity pav, those ordi-

nances did not address themselves to any emergency for

eliminating the overtime and longevity pay; they were

not enacted to protect a basic societal interest, since the

ordinances did not enumerate any necessity for

economizing village expenditures for the benefit of the

~~

Northlake, [llinois, citizens; the elimination of the over-

time and longevity pay was not tailored to any

emergency; the elimination of the overtime and longevi-

ty pay was not reasonable in that it deprived the

petitioners of promised monies in conjunction with their

consideration to be employed as police officers for the

City of Northlake, Illinois; that the ordinances were not

limited to any duration of an emergency as no emergen-

cy was described.

As a result, on the basis of the Allied Structural Steel

Co. decision, the Northlake, Illinois, ordinances elimi-

nating the overtime and longevity pay did impair

the vested rights of the petitioners retrospectively in

violation of the impairment of contracts clause and ex

post facto law of the United States Constitution.

Furthermore, in conjunction with the United States

Trust Co. v. New Jersey, 431 U.S. 1 (1977), the Court

asserts that a vested right can be impaired in violation

of the Fourteenth Amendment of the United States Con-

stitution via retrospective application of newly created

statutes to that effect as evidenced by the following

language of that decision:

“(1) Retrospective civil laws, if sufficiently harsh

and oppressive, may violate the due process clause,

even when no vested right of any kind has been im-

aired, 45 LW at 4422, n.13. See also Usery v.

urner Elkhorn Mining Co., 428 U.S. 1, 14-20

(1976).

(2) Although there is no vested right to the con-

tinued existence of a particular law, a particular

law may create or result in a vested right where the

“language and circuinstances” so indicate, and the

right cannot be impaired by repeal of the statute

or ordinance, see 45 LW at 4422, n.14. See also

cain

Indiana, ex rel. Anderson v. Brank, 303 U.S. 95,

104-105 (1938).

(3) Although the state may not “contract away”

its right to exercise the police power, such a power

may not be used to impair a contract or vested

right created by the state unless “reasonable and

necessary” to accomplish a compelling state purpose

that could not have been foreseen at the time the

right was created, 45 LW 4425 at n.28.

(4) Where a contract or vested right is complete-

ly extinguished by an exercise of the police power,

the holders of such a right are entitled to “just com-

pensation” from the state, see 45 LW at 4422, n.16.

See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

(1922).”

In considering the United States Trust Co.'s four

criteria, the Allied Structural Steel Co. court held on

page 438:

“ _. Yet there is no showing in the record before us

that this severe disruption of contractual expec-

tations was necessary to meet an important general

social problem.” ... .

Therefore, analyzing the Northlake, Illinois amending

ordinances, there is no showing by the City of North-

lake, Illinois that those ordinances were necessary and

reasonable for the purpose of severely disrupting the

contractual expectations of the petitioners in their

vested rights to overtime and longevity pay in order to

meet a general important social problem.

= =

CONCLUSION

For the reasons given, this petition should be granted.

Respectfully submitted,

STANLEY H. JAKALA

3219 Maple Avenue

Berwyn, Illinois 60402

(312) 788-5733

Attorney for Petitioners

August 21, 1981

—la—

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

WILLIAM ANDERSON, ROBERT BACON, JAMES CERVONE,

DOMENIC DIIULIO et al.,

Plaintiffs,

No. 78 C 1755 v.

City OF NORTHLAKE,

Defendant.

Before the Honorable Nicholas J. Bua,

Judge, United States District Court

ORDER

The matter at bar is an action brought pursuant to 42

U.S.C. § 1983 by certain police officers of the City of

Northlake, wherein they seek declaratory and injunctive

relief for alleged violations of their constitutional rights.

Subject matter jurisdiction with respect to the cause

properly lies under 28 U.S.C. § 1343(3). The sole defen-

dant herein is the City of Northlake. The controversy in

this matter arose when the Northlake City Council

passed an ordinance which eliminated longevity increases

from police officers’ pay and changed their rate of over-

time compensation. The plaintiffs contend that said or-

dinance is unconstitutional.

Presently before the court is the plaintiffs’ motion for

summary judgment. Rule 56(a), Fed. R. Civ. P. This mo-

tion of the plaintiffs will, for the reasons stated below,

be denied. Also, although the defendant has not formally

lite

cross-moved for such, summary judgment will be

entered in favor of the City of Northlake.' See Watkins

Motor Lines, Inc. v. Zero Refrigerated Lines, 381 F.

iste 363 (N.D. Ill. 1974), affd, 525 F.2d 538 (7th Cir.

1 ‘

In the matter at bar those facts material to the plain-

tiffs’ cause do not appear to be in dispute. As was noted

above, the controversy herein revolves around an or-

dinance passed by the City Council of the City of

Northlake, to become effective on January 9, 1978,

which eliminated longevity increases and changed the

rate of overtime pay for the Northlake police force.

Longevity pay had originally been established in a 1966

ordinance which provided that all City of Northlake

employees were to be given a two percent longevity raise

during their fifth, sixth and seventh years of employ-

ment. Prior to the January, 1978 ordinance, overtime

pay had apparently been based upon custom and prac-

tice, as supplemented by periodic memoranda issued by

the Chief of Police. One such memorandum, dated

August 19, 1974, directed that the City Treasurer com-

pensate all members of the Northlake Police Depart-

ment at the rate of time and one-half for overtime work.

The plaintiffs claim that the ordinance in question is

unconstitutional for three reasons: (a) because it pur-

portedly deprives them of a protected property interest,

in violation of the Due Process Clause of the Fifth and

Fourteenth Amendments; (b) because it impermissibly

impairs a contractual obligation owed by the City to the

police officers, in violation of the Contract Clause; and

(c) because the ordinance constitutes an ex post facto

' A court, when ruling upon a motion for summary judg-

ment, may if the situation at bar reasonably allows for such to

be done properly render summary judgment in favor of a non-

— party, even when no formal cross-motion has been

ade by suc es ee _under Rule 56. 10 C. Wright and A.

Miller tice and Procedure § 2720; Watkins Motor

Lines, Inc. v. Braet Refrs ted Lines, 381 F. Supp. 363 (N.D.

Ill. 1974), affd, 525 F.2d 538 (7th Cir. 1975).

—

law. Of most significance with respect to these conten-

tions is the question of whether the plaintiffs had any

protected property interest in the continued receipt of

longevity pay increases and time and one-half overtime

compensation. In this regard, the issue presented is

whether, under Illinois law, the above-noted 1966 or-

dinance and/or 1974 memorandum created in the plain-

tiffs a protected property interest which was violated by

passage of the 1978 ordinance.

For due process purposes, to have a cognizable proper-

ty interest in governmental benefits it is not enough that

the claimant has a demonstrated need for such benefits;

rather he must have a legitimate claim of entitlement to

them. Confederation of Police v. City of Chicago, 481 F.

Supp. 566, 569 (N.D. Ill. 1980). Such an entitlement may

stem from a state law conferring the benefit in issue, or

from rules or mutually explicit understandings which

would support the claim presented. Jd. at 569. Regard-

ing this question, the plaintiffs claim that the 1966 or-

dinance and 1974 memoraidum both are sufficient sup-

port for a claim of entitlement. The sufficiency of this

contention, however, must be decided by reference to

state law. Bishop v. Wood, 426 U.S. 341 (1976).

Under Illinois law, it is well settled that public

employees do not have a property interest in the con-

tinued application of any specific rate or method of com-

pensation. Chicago Patrolmen’s Ass'n v. City of Chicago,

56 Ill. 2d 503, 508 (1974). Unless it can be shown that

the legislative act in issue will operate to deny to the

plaintiff compensation for services rendered prior to the

enactment’s effective date, there can be no basis for find-

ing that the enactment violates due process. Jordan v.

Metropolitan Sanitary District, 15 Ill. 2d 369 (1958). In

the present case, under the terms of the 1978 ordinance

passed by the Northlake City Council, all of the longevi-

ty increases that had accrued during the 1966 ordinance

was in effect were to be prorated as of the date of repeal

and added to the employee’s base pay. Similarly, pay-

ment of overtime *’ ‘he rate of time and one-half was to

be continued until the effective date of the 1978 or-

—4a—

dinance. That being so, under Illinois law the 1978

statute did not deprive the plaintiffs of any property

rights arising from the 1966 ordinance or 1974

memorandum.

The 1966 ordinance and the 1974 memorandum, stand-

ing alone, thus did not create in the plaintiff police of-

ficers any property interests cognizable under the due

process clause. The plaintiffs, though, also argue that,

through those acts, a contractual relationship was es-

tablished between the parties which created in the of-

ficers a protected property interest in the continued

receipt of all of the contractually provided for benefits.

If such a contractual relationship could in fact be

demonstrated, the plaintiffs’ argw:nent in this respect

would have merit. For the rezsuns stated below,

however, the court finds that no valid contract existed

between the parties.

To determine whether a contract existed between the

arties, the 1966 ordinance and the 1974 memorandum

h must be examined. As to whether the 1966 or-

dinance gave rise to such a contractual relationship, the

rules of statutory construction must be applied. See City

of East St. Louis v. Union Electric Co., 37 Ill. 2d 537

(1967). Whether a statute creates contractual rights is to

a great extent dependent upon the language used. Jn re

Application of Skidmore, 75 Ill. 2d 33 (1979). When the

legislative act in question is one fixing salaries for

public employees, however, there is a presumption that

the statute was not meant or intended to create private

contractual rights, but rather was intended merely to

declare a policy to be pursued until the legislature

declared otherwise. Dodge v. Board of Education of

Chicago, 302 U.S. 74 (1937). See also Crumpler v. County

of Logan, 38 Ill. 2d 146 (1967). In the case at bar, this

presumption is supported by two factors. The first is an

affidavit of the Northlake City Attorney, submitted by

him: in his capacity as author of the 1966 ordinance,

wherein he states that, in passing said ordinance, the

City of Northlake never intended to confer to its

employees any private contractual rights. The accuracy

=

of this statement, it should be noted, has not in any way

been challenged or refuted by the plaintiffs.

Also supportive of the aforementioned presumption is

the language of the statute itself. The 1966 ordinance

was entitled “An Ordinance Establishing the Personnel

Policy for the City of Northlake, Illinois.” Its stated pur-

pose was to set forth a uniform policy concerning

Northlake personnel to better permit sound administra-

tion of the government. This language, rather than

evidencing an intent by the City to enter into a binding

contract, appears much more to conform to the Dodge

Court’s presumption that legislation of this type is in

most instances only a policy statement.

From the above, it thus must be concluded that,

because the requisite intent was lacking, no contract

between the parties was created by the 1966 ordinance.

Regarding the 1974 memorandum, although it was not a

legislative act, the determination of whether that docu-

ment created legally enforceable contractual rights in

the plaintiffs requires resolution of the same issue; i.e.

whether the parties, by this action, intended that a con-

tract be created. United States v. O. Frank Heinz Con-

struction Co., 300 F. Supp. 396, 399 (S.D. Ili. 1969).

When the essential facts are not in dispute, the ques-

tion of the existence of a contract is solely one of law.

300 F. Supp. at 399. From the facts in this matter, it

does not appear reasonable to conclude that the City of

Northlake intended for the 1974 memorandum to con-

stitute a binding agreement. That document, for exam-

ple, was only one of several such memoranda that had

been issued from time to time, all apparently for

budgetary considerations. Because the rate of overtime

compensation had been altered on several occasions in

the past, the fact that the memorandum in question did

not set forth any period of duration also is noteworthy.

The plaintiffs, in addition, have not presented any viable

reasons for concluding that this particular memoran-

dum was intended to be contractually binding, when

other such memoranda clearly had not been so intended.

——

If the City lacked the intent to create a contract

through the use of the formal ordinance procedure, it is

difficult to oo that this intent was present in the

issuing of an informal periodic memorandum. That such

a conclusion is proper is supported by the aforemen-

tioned affidavit of the Northlake City Attorney—an af-

fidavit which has gone unanswered by plaintiffs—where

he again states that the City had no contractual intent.

From the facts before the court, it thus must be conclud-

ed both that the City of Northlake, in issuing the 1974

memorandum, never intended to enter into a contract

with plaintiffs, and that no valid or enforceable contract

ever existed.

Since no contract existed between the parties, the

plaintiffs’ alternative contention that the defendant,

through the actions complained of, impaired its

obligations under the police officers’ contract (thus

violating the Contract Clause), also cannot stand. Final-

ly, as the 1978 ordinance did not make criminal that

which was an innocent act before its passage, it does not

constitute ex post facto law. See United States v. Sutton,

521 F.2d 1385 (7th Cir. 1975).

CONCLUSION

Under the undisputed facts of the case, the plaintiffs’

theories for recovery are contrary to the law. That being

so, their motion for summary judgment is denied. Also,

as the defendant is, from the facts presented, clearly en-

titled to judgment as a matter of law, summary judg-

ment will be entered for the City of Northlake.

It Is So ORDERED.

/s/ Nicholas J. Bua

United States District Judge

DATED: November 13, 1980

—7a—

APPENDIX B

[UNPUBLISHED ORDER Not To BE CITED

Per Circuir RULE 35]

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 13, 1981

May 26, 1981.

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. WILBUR F. PELL, JR., Circuit Judge

Hon. EARL R. LARSON, Senior District Judge*

WILLIAM ANDERSON, et al.,

Plaintiffs-A ppellants,

No. 80-2758 v.

City Or NORTHLAKE,

Defendant-A ppellee.

= from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 78-C-1755—Nicholas J. Bua, Judge.

ORDER

Plaintiffs, certain police officers employed by defen-

dant, the City of Northlake, appeal from a district court

order granting summary judgment against them and in

favor of defendant. Having read the briefs and heard

oral argument, we are persuaded that the district

* The Honorable Earl R. Larson, Senior District Judge of

the District of Minnesota, is sitting by designation.

ow

court’s judgment is correct for the reasons stated by

Judge Bua in his attached decision and order of

November 13, 1980. We adopt that decision and order

and affirm the district court’s order and entry of judg-

ment.

Affirmed.

uonisoddg:

Office - Supreme Court, U.S. |

FILED

No. 81-356

In Tue

Supreme Court of the United States

Ocroser Texm, 1980

WILLIAM ANDERSON, ROBERT BACON, JAMES CERVONE,

DOMENIC DiIULIO, WILLIAM GRUNDY, RICHARD HAACK,

DONALD HALAWITH, ERNEST HUSTEDT, HARVEY JOHN-

SON, STEVEN KALBACH, FRANCIS H. KELLY, JAMES LAR-

RIVEE, EDWARD MANKE, DONALD MICHALSKI, BERNARD

NESSEL, NORMAN NISSEN, THOMAS O’CULL, SIGMUND

TRYKOSKI, WALTER WAGEMANN, JOSEPH WILLIAMS and

THOMAS LAZZARA,

Petitioners,

CITY OF NORTHLAKE,

Respondent.

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

ROBERT A. NOVELLE of

Serpico, Novetie, Dvorak

& Navicato, Lrp.

54 West Randolph Street

Chicago, Illinois 60601

(312) 641-5566

Attorney for Respondent,

Crry or NorTHLAKE

j Ate ANDER t

_ See

- —

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

3 98)

}

|

QUESTIONS PRESENTED

Whether the 1966 Northlake Ordinances and 1974

Memorandum created any property or contractual

rights in Plaintiffs-Petitioners which were unconstitu-

tionally abrogated or impaired by the 1978 amending

Ordinances.

TABLE OF CONTENTS

LIST OF AUTHORITIES. ............cccccseseseeeseeeeeeeneees iii

NATURE OF THE CASE. .........ccccscsessssssseeceenees 2

STATEMENT OF FACTS. ........cccccsssssessesesenenenees - 2

ARGUMENT ......c.cccscocscscscovserececeseccecerereresscescssssssovees 3

CONCLUSION ....ccccscorssccsccccscsescsccccsccosososcosovosocssosoees 8

LIST OF AUTHORITIES CITED

Cases

Bishop v. Wood, 426 U.S. 348, 96 S. Ct., 2074,

ie I CTE sdsrscorcensncnssscenumseosssensnnentnd 4, 5, 6

Chicago Patrolman’s Association v. City of Chi-

2 & & FF) | ee 6

City of East St. Louis v. Union Electric Company,

SE GE IEEE ‘sittintnesonasseciecnnecnsessedezeetinnsneate 6

Confederation of Police v. City of Chicago, 529

F.2d 89 remanded 427 U.S. 902, S.Ct. 3186, 49

ID IIIT iialisinisiecieitantatetennneemetnenngniememteninnetion 5

Confederation of Police v. City of Chicago, 547

y hk 8 m8, 4, 5

Confederation of Police v. City of Chicago, 481

F. Supp. 566, (N.D. Ill. 1980) ...............cscssseseees 5

Crumpler v. County of Logan, 38 Ill. 2d 146

I alc callin at net tarnpmenntastnentbintmennn 6

Dodge v. Board of Education of Chicago, 302 U.S.

TUITE dicisiinicicniniaetiilaniasidildeenimpecenequmesigminetenin 6

In Re: Application of Skidmore, 75 Ill. 2d 33

STITUTE: auheiisiictinciticnunnnmortensinitisiejennssceseecsersecinssssesingeetens 6

iv

Jordan v. Metropolitan Sanitary District, 15 Ill.

I ID cain sialh teicher ianmeetaaianeamsnane

Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532,

en

Montayne v. Haynes, 427 U.S. 236, 96 S. Ct.,

2543, 49 L.Ed.2d 466 (1976) ............c.ssccssssseeseees

United States v. O. Frank Heinz Construction

Company, 300 F. Supp. 396 (N.D. Ill. 1969) .....

United States v. Sutton, 521 F.2d 1385 (7th Cir.

IIIT "li ic tatiDadeaataiiatiballdie ttaitaiesatsecieatetareniatbbaniealiin

In Tue

Supreme Court of the United States

Ocroser Term, 1980

WILLIAM ANDERSON, ROBERT BACON, JAMES CERVONE,

DOMENIC DiIULIO, WILLIAM GRUNDY, RICHARD HAACK,

DONALD HALAWITH, ERNEST HUSTEDT, HARVEY JOHN.

SON, STEVEN KALBACH, FRANCIS H. KELLY, JAMES LAR.

RIVEE, EDWARD MANKE, DONALD MICHALSKI, BERNARD

NESSEL, NORMAN NISSEN, THOMAS O’CULL, SIGMUND

TRYKOSKI, WALTER WAGEMANN, JOSEPH WILLIAMS and

THOMAS LAZZARA,

Petitioners,

CITY OF NORTHLAKE,

Respondent.

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

a

NATURE OF THE CASE

The Petitioners have adequately stated the nature of

the case and repetition thereof would serve no useful

purpose.

STATEMENT OF FACTS

The facts material to this cause are not in dispute. The

controversy revolves around an Ordinance passed by the

City of Northlake, to become effective January 9, 1978,

which eliminated longevity increases and changed the

rate of overtime pay for the Northlake police force.

Longevity pay had originally been established in a 1966

Ordinance which provided that all City employees were

to be given a two percent (2%) longevity raise during

their fifth (5th), sixth (6th) and seventh (7th) years of

employment. Prior to the January 1978 Ordinance in

question, overtime pay had been based upon custom and

practice as supplemented by periodic memoranda issued

by the Chief of Police. One such Memorandum dated

August 19, 1974, which is in issue in the case at bar,

being the last one issued prior to the 1978 Ordinance,

directed overtime be paid at a rate of time and one-half.

anjun

ARGUMENT

THE NORTHLAKE ORDINANCES IN QUESTION

CHANGING THE MANNER OF COMPENSATION FOR

OVERTIME PAY AND ELIMINATING LONGEVITY

PAY DO NOT VIOLATE ANY CONSTITUTIONALLY

1S la PROPERTY RIGHTS OF THE PLAIN-

This case involves a controversy arising when the

Northlake City Council passed an ordinance which

eliminated longevity increases for police officer’s pay

and changed their rate of overtime compensation. The

Petitioners contend this ordinance is unconstitutional in

that it constitutes an impairment of contracts and a

denial of a property right without due process of law.

Petitioners are in error in both respects since no

contractual rights are involved and Plaintiffs possess no

property rights in the matters at issue herein.

It is conceded by the parties that there are no written

or acknowledged express employment contracts between

the parties conveying any salary rights or governing pay

provisions and the sole basis of relief is Petitioner’s

contention of the existence of a constitutionally protected

property right and/or an implied contract. None of the

cases cited by Petitioners in their Petition are on point

in establishing such a right as a matter of law. The

citations are taken out of context and none of the cases

cited create, establish or stand for the propositions

Petitioners seek to establish, namely a constitutionally

protected property right to continued pay, free from

alteration, decrease, amendment or any impairment

during the course of continued employment. The Peti-

tioners’ cases singularly involve property rights in

governmental employment itself and obtaining such

anew

employment; not the conditions or terms of such

employment.

It must be pointed out here that no issue of selective

enforcement or equal protection is raised by Petitioners

and it is conceded that the ordinances in question treat

all policemen as a class uniformly. Likewise, there is no

claim that the ordinances will operate to deny Peti-

tioners compensation for services already rendered

prior to the enactment’s effective date. All longevity

increases that had accrued while the 1966 Ordinance

was in effect were prorated as of the date of repeal and

added to the employee’s base pay. Similarly, payment

for overtime was continued at the prior rate until the

effective date of the 1978 amending ordinance. This

clearly complied with Illinois law concerning such pay

changes, (Jordan v. Metropolitan Sanitary District, 15

Ill. 2d 369 (1958) as the lower court herein correctly

held.

Respondent believes and the lower court agreed that

Bishop v. Woods, 426 U.S. 348, 96 Sup. Ct. Rptr. 2074,

48 L.Ed.2d 684 (1976) as extended by the Seventh

Circuit Court of Appeals holding upon remand in

Confederation of Police v. City of Chicago, 547 F.2d 375

(7th Cir. 1977) contains the governing law of this case.

In Confederation, policemen contended that they were

subjected to changes in geographic assignments, work

schedules, vacation schedules, leaves of absence, demo-

tion in rank, and other conditions of employment, many

of which result in imposing greater job obligations and

burdens or having the effect of reducing or altering pay

and remuneration. The plaintiffs contended therein that

the existence of the recognized property right to public

employment cognizable under the due process clause

extended over and applied equally with full force to the

conditions of such employment. Initially, the Seventh

—~5—

Circuit agreed with this premise and held for the plain-

tiffs, (See 529 F.2d 89), but this court vacated and

remanded (427 U.S. 902, S. Ct., 3186, 49 L.Ed.2d 1196)

in light of its holdings in Bishop v. Woods, supra,

Montayne v. Haynes, 427 U.S. 236, 96 Sup. Ct., 2543, 49

L.Ed.2d 466 (1976) and Meachum v. Fano, 427 U.S. 215,

96 S. Ct. 2532, 49 L.Ed.2d 451 (1976). On remand, the

Seventh Circuit reversed itself.

Thus, the present status of the law is that there is no

federally protected property interest in the conditions

of public employment, and inclusive therein are ques-

tions of remuneration and pay. However, this court did

recognize that certain exceptions could occur, particu-

larly existence of some local law or statute or ordinance

creating an expectation that a particular employment

relationship or condition thereof will continue unless

certain defined events occur. Bishop v. Woods, supra.

Confederation of Police v. City of Chicago, supra.

For due process purposes, however, to have a cogniza-

ble property right in governmental benefits it is not

enough that the claimant have demonstrated a need for

such benefits; rather he must have a legitimate claim of

entitlement to them. Confederation of Police v. City of

Chicago, 481 F. Supp. 566 at 569 (N.D. Ill. 1980). Such a

right may stem from a State law conferring the benefit,

or from rules or mutually explicit understandings

between the parties which would contractually suggest

the claim. The sufficiency of this contention must be

decided by reference to State law. Bishop v. Woods,

supra.

With regard to Illinois law, the Illinois Supreme

Court, the Seventh Circuit Court of Appeals and this

court have already specifically held that no State

statutory, regulatory or judicial sources exist conveying

—t—

such an expectancy, concerning conditions of employ-

ment of police officers involving municipal employment

and methods and levels of pay. Confederation of Police v.

City of Chicago, supra. Chicago Patrolman’s Association

v. City of Chicago, 56 Ill. 2d 503 (1974). The 1966

Ordinances and the 1974 Memorandum relied upon by

Petitioners thus, standing alone, did not create in the

Petitioners any property interests cognizable under the

due process clause.

Remaining for consideration then, is the issue raised

by Petitioners concerning the existence of a contractual

relationship concerning pay provisions between the par-

ties. Again this is a question which must be determined

under State Law. Bishop v. Woods, supra. A review of

the facts and circumstances in the case at bar amply

demonstrates that no contract can be implied herein.

Petitioners have already conceded the absence of an

express (written or oral) contract.

Under Illinois Law, to determine whether the 1966

Ordinance and/or 1974 Memorandum gave rise to an

implied contractual relationship, the rules of statutory

construction must be applied. City of East St. Louis v.

Union Electric Company, 37 Ill. 2d 537, (1967). Whether

a statute creates contractual rights is to a great extent

dependent upon the language used. Jn Re: Application of

Skidmore, 75 Ili. 2d 33 (1979). However, when the legis-

lative enactment in question is one of fixing salaries for

public employees, there is a presumption that the stat-

ute was not meant nor intended to create private con-

tractual rights, but rather was merely intended to declare

a policy to be pursued until the legislative body in ques-

tion declared otherwise. Dodge v. Board of Education of

Chicago, 302 U.S. 74 (1937), Crumpler v. County of

Logan, 38 Ill. 2d 146 (1967).

ealies

In the case at bar, Petitioners have not demonstrated

nor attempted to put forth or argue any factors rebutting

or refuting this presumption. On the other hand, two

important factors exist, as the court below pointed out,

clearly supporting this presumption that the 1966 Ordi-

nance or 1974 Memorandum were merely policy decla-

rations concerning pay. First the Affidavit of the City

Attorney clearly established the intent of the Respond-

ent City. It should be further noted that this Affidavit

has gone unchallenged and unrebutted in this record.

Secondly, the title of the Ordinance itself clearly recites

the Respondent’s intent at the time of drafting. The

Ordinance was entitled, “An Ordinance Establishing

The Personnel Policy for the City of Northlake, Illinois”.

Its stated purpose was to merely set forth a uniform pol-

icy to better permit sound administration of the govern-

ment. From the above, it must be concluded that because

the requisite intent was lacking, no contract, implied or

otherwise, was created between the parties.

With regard to the 1974 Memorandum, the Court

below found an additional factor indicative of an absence

of intent on the part of Respondent in creating any con-

tractual rights. These factors are worthy of reiteration

herein and consideration. The Memorandum in question

was only one of several such Memoranda that had been

issued from time to time, all for budgetary considera-

tions. These Memoranda have in the past on several

occasions, altered the rate of overtime compensation.

None of these Memoranda set forth any period of dura-

tion. Finally, if the Respondent lacked intent to create a

contract through use of a formal Ordinance procedure,

it is inconceivable to imply such an intent as being

present in the issuing of the informal Memorandum.

Thus, since no contract existed between the parties,

Petitioners’ alternative theory must likewise fail. No im-

onlin

pairment of obligations violative of the contract clause

can result in the absence of any contractual or proprietary

interest. Finally, since no ex post facto violation occurred

herein rendering criminal that which was an innocent

act prior to passage, (United States v. Sutton, 521 F. 2d

1385 (7th Cir. 1975), the Court below was totally correct

in granting summary judgment to Respondents. When

the essential facts are not in dispute, the question of the

existence of a contract is solely a question of law. United

States v. O. Frank Heinz Construction Company, 300 F.

Supp. 396, 399 (N.D. Ill. 1969).

CONCLUSION

For the above reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

ROBERT A. NOVELLE of

Serpico, Novetie, Dvorak

& Navicato, Lrp.

54 West Randolph Street

Chicago, Illinois 60601

(312) 641-5566

Attorney for Respondent,

Crry or NorTHLaAKE

joug Ajdoy

S JBUOIIIOd ©

No. 81-356

In Tue

Supreme Court of the United States

Ocroser Term, 1980

WILLIAM ANDERSON, ROBERT BACON, JAMES CERVONE,

DOMENIC DiIULIO, WILLIAM GRUNDY, RICHARD HAACK,

DONALD HALAWITH, ERNEST HUSTEDT, HARVEY JOHN-

SON, STEVEN KALBACH, FRANCIS H. KELLY, JAMES LAR-

RIVEE, EDWARD MANKE, DONALD MICHALSKI, BERNARD

NESSEL, NORMAN NISSEN, THOMAS O’CULL, SIGMUND

TRYKOSKI, WALTER WAGEMANN, JOSEPH WILLIAMS and

THOMAS LAZZARA,

Petitioners,

CITY OF NORTHLAKE,

Respondent.

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

REPLY TO BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

STANLEY H. JAKALA

3219 Maple Avenue

Berwyn, Illinois 60402

(312) 788-5733

Attorney for Petitioners

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

In Tue

Supreme Court of the Anited States

Ocroser Term, 1980

WILLIAM ANDERSON, ROBERT BACON, JAMES CERVONE,

DOMENIC DiIULIO, WILLIAM GRUNDY, RICHARD HAACK,

DONALD HALAWITH, ERNEST HUSTEDT, HARVEY JOHN-

SON, STEVEN KALBACH, FRANCIS H. KELLY, JAMES LAR-

RIVEE, EDWARD MANKE, DONALD MICHALSKI, BERNARD

NESSEL, NORMAN NISSEN, THOMAS O’CULL, SIGMUND

TRYKOSKI, WALTER WAGEMANN, JOSEPH WILLIAMS and

THOMAS LAZZARA,

Petitioners,

CITY OF NORTHLAKE,

Respondent.

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

REPLY TO BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

In its brief in opposition to the Petition for Writ of

Certiorari, on page 6, the respondent states as follows:

“However, when the legislative enactment in

question is one of fixing salaries for public

employees, there is a presumption that the statute

was not meant or intended to create private con-

tractual rights, but rather was merely intended to

declare a policy to be pursued until the legislative

aafjue

body in question declared otherwise. Dodge v

Board of Bbation of Chicago, 302 U.S. 74 (1937),

Crumpler v. County of Logan, 38 I11.2d 146 (1967).”

In addition to the cited cases of Dodge and Crumpler,

the Respondent relies upon the alleged unrebutted af-

fidavit of the city attorney, that the 1966 ordinance and

1974 memorandum were not intended to create an im-

plied contract, to support the legal position that, in fact,

no implied contracts were effectuated.

However, the Dodge decision is inappropriate, since it

concerned itself with teachers who had not contributed

to annuity or pension funds thereby not attaining vested

rights which would enable them to prevent the modifica-

tion or abolishment of such funds.

In this instance, longevity pay is included in the

salaries of ‘the Petitioners from which salaries 8%% is

deducted and deposited in the pension fund as verified

by their unrebutted and unchallenged affidavits as set

forth in the Motion for Summary Judgment.

Likewise, the Crumpler decision is not apropos, be-

cause it dealt with the abolishment of a certain public

office (elimination of the Justice of the Peace) thereby

resulting in a justification for not reimbursing the

Justices of the Peace for their expenses after the abolish-

ment of that public office.

In this matter, there is no abolishment of the office

of police officer which would justify the elimination of

longevity pay.

As for the affidavit of the city attorney that the intent

of the City of Northlake was not to create an implied

contract for longevity pay, that intent was certainly con-

veyed to the Petitioners as is reflected in their affidavits

and which affidavits certainly challenge the affidavit of

the city attorney in that respect as is substantiated by

=

attaching one of such affidavits, which truly and cor-

rectly states the content of all of the other affidavits of

the Petitioners as had been attached to their Motion for

Summary Judgment, and is reprinted herein as Appen-

dix A.

Furthermore the 1966 ordinance entitled “Ordinance

Establishing Personnel Policy for the City of Northlake”

does not negate the existence of the implied contract,

since the Respondent correlates that policy as conform-

ing with the Dodge decision which decision had been

distinguished from the standpoint that the Dodge plain-

tiffs did not contribute to annuity or pension funds while

the Petitioners, herein, do contribute payments to their

pension fund for longevity pay received.

As for the 1974 Memorandum, the affidavit of the city

attorney was certainly challenged and refuted by the af-

fidavits of the Petitioners (the content of affidavits

reprinted in Appendix A), when, in those affidavits, the

Petitioners state that they had been paid overtime pay

pursuant to the 1974 Memorandum and that they had

considered the overtime pay as consideration for their

employment as City of Northlake police officers, thereby

establishing an implied contractual relationship.

Likewise, the affidavit of the city attorney relating to

the issue of whether the 1974 Memorandum created an

implied contract in overtime pay was challenged by the

Reply Brief of the Petitioners’ Motion for Summary

Judgment, when the Petitioners rebutted and refuted

that affidavit in the following manner:

“At the same time, in his affidavit Attorney John

E. Dvorak, does not cite any specific dates, specific

changes in manner of operation, nor specific

changes in amount to be paid pertaining to general

allegation that, on numerous occasions, the City of

Northlake had changed the custom and practice of

paying overtime pay.”

a

CONCLUSION

For the reasons given, this petition should be granted.

Respectfully submitted,

STANLEY H. JAKALA

3219 Maple Avenue

Berwyn, Illinois 60402

(312) 788-5733

Attorney for Petitioners

—la—

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

WILLIAM ANDERSON, ROBERT BACON, JAMES CER-

VONE, DOMENIC DiIULIC, WILLIAM GRUNDY,

RICHARD HAACK, DONALD HALAWITH, ERNEST

HUSTEDT, HARVEY JOHNSON, STEVEN KALBACH,

FRANCIS H. KELLY, JAMES LARRIVEE, EDWARD

MANKE, DONALD MICHALSKI, BERNARD NESSEL,

NORMAN NISSEN, THOMAS O’CULL, SIGMUND

TRYKOSKI, WALTER WAGEMANN, and JOSEPH

WILLIAMS,

Plaintiffs,

No. 78 C 1755 v.

CITY OF NORTHLAKE,

Defendant.

AFFIDAVIT

I, DoMENIC DiIULIO being first duly sworn upon oath,

depose and state that I have knowledge of the contents

of this affidavit; that I am authorized to make this af-

fidavit and that, if sworn as a witness, I can testify com-

petently to the facts herein set forth.

1. That I am presently employed as a police officer

for the City of Northlake.

2. That prior to January 10, 1978, I was paid over-

time pay for working in excess of 40 hours pursuant to a

written directive to this effect signed by then and

current Chief Lee R. Gehrke.

=o

3. That prior to February 28, 1978, I received

longevity pay pursuant to City of Northlake Ordinance

#0-1-66.

4. That, since my employment with the City of

Northlake, I have been a member of the Northlake

Police Pension Fund.

5. That, as a member of the Northlake Police Pen-

sion Fund, longevity pay is included in my salary upon

which 8%% is deducted from my salary and deposited in

the pension fund.

6. That, as consideration for my employment as a

police officer for the City of Northlake, overtime and

longevity pay were included in my _ contractual

relationship with the City of Northlake.

IN WITNESS WHEREOF, I have set my hand and seal

this 8 day of August, 1980.

/s/ Domenic Dilulio

Subscribed and sworn to before me

this 8 day of August, 1098.

/s/ STANLEY H. JAKALA

Notary Public

Stanley H. Jakala

Attorney for Plaintiffs

3219 Maple Avenue

Berwyn, Illinois 60402

(312) 788-5733

Id. #1550