Heyl Royster

Ordinances and Pre-Employment Promises Breached May be Basis for Employment Litigation

march 3, 2017

By: Theresa Powell, tpowell@heylroyster.com

In Boswell v. City of Chicago, 2016 IL App (1st) 150871, the First District Appellate Court reversed the dismissal of a claim for breach of contract and promissory estoppel by a former executive director of the City of Chicago’s office of compliance, Anthony Boswell. The First District evaluated plaintiff’s complaint de novo and held that the allegations construed in the light most favorable to the plaintiff were sufficient to state a cause of action. Boswell, 2016 IL App (1st) 150871, ¶ 15.

An Ordinance May be the Basis of An Employment Contract

As it related to the breach of contract claim, the Court noted that Boswell had pled facts to establish (i) the existence of a valid contract; (ii) he performed the contract; (iii) the City breached the contract; and (iv) damages resulted from the breach. Id. ¶ 18, citing McCleary v. Wells Fargo Securities, L.L.C., 2015 IL App (1st) 141287, ¶ 19.

After acknowledging that an ordinance is presumed not to create a private contractual right, but should be seen as a declaration of policy, the court nevertheless found that Boswell’s allegations were sufficient to overcome the noted presumption. The court held that Boswell should be allowed to proceed with his efforts to show that the language of the ordinance which created a position that only he would fill, was sufficiently specific to lead him to believe that the ordinance terms were equivalent to an employment contract. The ordinance language provided that the position would be for a term of four years and that removal of the position before such term could only be for cause. The court further noted that the termination provisions were specific and required written notice, the opportunity for hearing and an affirmative vote by the majority of the members of the city council. These provisions were seen as potential employee rights and procedures that were absent in prior cases where the Court declined to allow claims based upon ordinance language. See Dopkeen v. Whitaker, 399 Ill. App. 3d 682 (1st Dist. 2010) and Unterschuetz v. City of Chicago, 246 Ill. App. 3d 65, 72-73 (1st Dist. 2004).

Boswell’s complaint alleged statements of fact that he was told he was expected to do things “the right way” to comply with a consent decree that prohibited nepotism and patronage. Boswell alleged that after he was hired, his efforts to do his job properly were met with harassment and retaliation. Boswell, 2016 IL App (1st) 150871, ¶ 9. These efforts led to his “constructive termination” via his decision to resign from his position. Id. ¶ 12.

Pre-employment Promises May be Sufficient for Promissory Estoppel Claim

The court further held that Plaintiff’s allegations were sufficient to assert in the alternative, a claim for promissory estoppel. Such claims require allegations that the City made an unambiguous promise; reliance on the promise; the reliance was expected and foreseeable; and Boswell relied upon the promise to his detriment. Id. ¶ 32. Once again, the court noted that such claims against public bodies are disfavored and allowed in rare circumstances. Id. ¶ 31. citing Chicago Limousine Service v. City of Chicago, 335 Ill. App. 3d 489, 499 (1st Dist. 2002). Nevertheless, the court found that in this case, Boswell’s allegations were sufficient to warrant reversal of the trial court’s decision to dismiss the claims.

While the court held that Boswell’s allegations met the minimal requirements to defeat a motion to dismiss under both theories asserted, it noted that once a court finds there to be an enforceable contract, there may be no recovery under promissory estoppel. Parties may pursue both theories to trial, but may only recover under one.

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