district in this case the appellate court held that they can never do so plaintiff would submit that the principles of statutory construction the object of  all is to implement the will of the legislature would yield a third conclusion which is that the public entities have always remain amenable to suit for compensatory damages since the inception of the tort and remains so today no obviously this case requires the illinois tort community statute and we ask the court to undertake that review in conjunction with the other statutes and the relevant case authority that bear on the issue when you do so we think that the conclusion is unavoidable that the legislature intended for public employees to be covered by the workman's comp statute the steffen ition of the employer in the statute is the state and each county city town township and cooperated village body politic municipal corporation the definition of employee is every person in the service of the state or a city or county or a town or township an organized village i mean  municipal corporation there or is there this is powerful evidence that the legislature intended the workmen's comp act to cover public employees given that that's the case can it be that this same legislature intends for a public employer to be able to fire a public employee covered by admittedly covered by the workman's comp act for exercising their rights under the act we submit that that cannot be the case now this case act through human agents and while it would certainly be disingenuous for me to assert that they do not do so it is the ruling of this court in bucknor that despite that fact that is that human beings are the in fact the agencies of the municipality the law of agency doesn't apply why not because in the in the retaliatory discharge setting what this court has said is that only the employer can commit the tort and it is argument that if only the employer can commit the toy that the employee is definitional e excluded from the toilet and that therefore with respect to section two one of nine of the act the employee is not in fact the actor if that's the case then two one zero nine wouldn't apply so if the court determines that it will follow the same logic that it pursued in the buckeye case that is that the that the law of agency does not apply when the only regally meaningful actor for purposes of retaliatory discharge is the public employer i wonder how do we get around mr grossman that the and does it is there any anything you can point to that we the reason for his nine liability namely what it what we said and buckner do does it matter what the reason is if we go right to the point meaning of section two want to know nine which would seem to indicate that just under the plain reading of two one zero nine that the employer could not be liable because to one on and provides as you know of local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable in buck fines in the retail you tory discharge setting that an employee cannot be liable so wouldn't want to own nine says that there are go the employer can't be like that is the logic of the second district's opinion i proffered you an alternative a close reading of the statute this court called the the tort of retaliatory discharge into existence it controls the contours of the tort this court can define the elements of the torah or tell it or discharge it in ways that it's deems prudent what you see is what you did in what this court did in for instance because the employee is definitional ie excluded from the board that's correct lochner the public employer can't rely on the immunity derivative of the employee immunity that's correct but how do we get there i mean how how you know butler was our creation how do we get there when you look at the plain reading of two one on the well i think it's i think you can categorize two one zero nine as a statute which allows and a public employer to avoid the vicarious liability for its employees but i offered you an example of if to make it more concrete if this were a statute instead of a common law action in the statute where the root of the session would probably rate public employers shall be liable to people who have been fired for exercising their right their rights protected by public policy don't need to talk about employees it is a primary direct now and a derivative obligation of the employer that's what that's what i read that you said in but  that's the case then i mean look we're all lawyers we've defined we define the terms and then we apply those terms this court has said the only entity we can committed is the employer that should mean something for this case and for that for this case it means that when you look at the statue get to say who's an actor that we did the statute that would get you your honor just was it specifically refers to who's acting an act or mission of the employee bucknor says play is not involved specifically whole set because the argument was in a case that well you know we should apply the law of agency this court said no we're not going to doesn't make sense in the setting if it doesn't make sense in that setting it doesn't make sense here so your argument is really that the employee is here and i mean it looks like maybe it's tricky you know we're trying to get out of something whether but these things how do you prove that the employer retaliated against for any reason what evidence rather than the firing itself i've confessed that it would be disingenuous of me to say that there are not human actress involved but as so often in the law there are people take actions and the question is whether those actions are legally meaningful well are we going to impose reiber already on the employee we think not it is not it just doesn't make sense in this context that is to ret for say and i don't see why that doesn't apply here i asked the court to consider if you were of this scenario a quality in city office  some comedy officer in chicago maybe there's fifty people sitting at their desk or cubicle and the manager roxanne and says by the way anybody who has the after being injured on the job here to claim workman's comp would be fired now can this be what the legislature intended i think that's that's really what i'm asking  i mean we can have a semantic argument about you know who's an actor and who's not and i think that's important because otherwise i have no case but really this court is the is the rommany on a conference of basis for public employees are included in public employee can can't really be the case that the only people in the state of illinois who will not benefit from simply i would i would suggest that because the the the terms of the workman's comp were so broad that for instance if you have a clerk that works for you any trips and he falls and he were to claim workman's comp if the second district is correct and you can fire the person for doing so you can fire your clerk for being injured on the job or if in a different setting a public employee was called to that went out of its way to to to detail at length dozens of types of public employees they're going to be covered by the workman's comp and at that legislature would approve of  that the quotes judy is to me is to is to resolve them if at all possible reasonably so that neither one of the statutes loses effect clearly if conceptually has merit the thing that i'm having problems with is the fact that we would have to write language into two one zero nine i there you talk about the workers compensation compensation rightfully so public policy arguments i imagine we're going you can't have any action against the employee the east the plain language of two one zero nine says that what we went through that it says why is this now if they don't like our decision up to them to amend the toward immunity act rather than us to rewrite two one zero nine which i think is down to what you're asking us to do and that's what i'm having problems with well the words are very clear to one on one now we may have in would ask the court to look at or remind the court that i believe that the argument that you're positing was the losing argument in kelsey versus motorola which was justice underwood our private cause civil action that position did not command a majority of the court i believe that session was five to one run just the start why we shouldn't we shouldn't exercise our authority and create this cause of action the accusing the majority of rewriting statute what i'm saying is this court has asserted now for i don't know i'm a how many almost thirty years the in the first district says that that that means that it's only where it's not discretionary that is where two two two two or one doesn't apply we argue but neither two to one nor two one zero nine good morning your honour's my name is greg james and together with my colleague and co counsel at dutton we have the privilege of representing the waukegan park district before this court a your honour's this case presents no factual issues there's no dispute that the plaintiff gregory smith had job duties that required him to operate power tools and other machinery and there is also no dispute that he refused to take a reasonable suspicion drug test pursuant to a policy of the waukegan park district he was discharged for refusing to take that drug test and there is no dispute about these facts because we submitted an affidavit with our motion to dismiss that establishes all of those facts and it is undisputed and  challenged so we believe that the plaintiff must lose this case on that basis alone but even if he did have a claim it would court's opinion depends on giving a literal reading to the plain clear on ambiguous language of the toward immunity act and that two one o nine says if the employees  nine liability for the employee equals and then liability for the employee or the public entity close quote we agree and that is fatal to the plaintiff's claim and the admission in the reply brief is even more lethal to the plaintiff claims i know the court has read all the briefs in the record but i think it warrants than that plaintiff acknowledges that the decision to fire an employee is almost always a discretionary act as it was in this case plaintiff conceded this point in the trial court the appellate court and concedes that now in this court so your honors i really think that the agreements that counsel have and the undisputed facts would end this case mr triggs affidavit demonstrates unequivocally that he had to both interpret and apply policy and exercise discretion he had to make choices he did not operate according to a set of facts that prescribe exactly what he must do this is not the case as the hypothetical that pla fs counsel suggested where the policy states any employee who files a workers compensation claim shall be fired regard less there wouldn't be any judgment or discretion in that decision that would be clear you know edict of their policy if a park district passed an ordinance or a local governmental entity pass an ordinance like that there would be no discretion involved that would be a ministerial act i think and as far as policy goes this is soon the argument assumes that  employers are going to do the wrong thing when they can our legislature has determined that it is important that governmental entities and employees enjoy immunity from suit there's a difference between this court having created a duty which this court is absolutely entitled to do under the common law there's no question about that but when the legislature  creates defenses or immunities under the separation of powers document doctrine i don't think this court would accept any invitation to rewrite of the statutes here and the statutes could not be clear when it comes to public policy employers should be able to terminate employees who they believe warrant terminations here and this record undisputed the plaintiff was an admitted drug user of eighteen years who said that he smoked marijuana every day before coming to work and after work he was asked to take a drug test that is correct your honor but but we did we read the decision in now and it was then meter versus terry and park district that said if you're going to raise this as an affirmative defense and your defense is not established on the pleadings alone you better support it with an affidavit and so here we did in that affidavit just as burke was not refuted or challenged in any way the plaintiff could have asked to take discovery the plaintiff could have come up with a rule one ninety seven affidavit and said you know what we think there something's wrong with this have it instead what we have here is a case where the facts are totally undisputed and and these facts it it seems clear at least to me that our client acted in furtherance of public policy because the public would be extremely disappointed if this employee  you know who was that admitted drug user heard a patron didn't tighten a swing set a child flew off in the air or ran over somebody splutter his own with a lawnmower so truly if this sort of decision is not protected and that discretionary our clients will not be able to you know they'll have information that maybe they're there folks use drugs and if they were often a cop leave they're going to have to be afraid about suing them they won't be able to make those discretionary decisions mr james just to you know this is a little disjointed time wise the earlier response to the affidavit are you then saying that because there's no response you've established factually that there's a discharge without retaliation is that your argument then you don't even then that is one of our arguments sure honor that and this record this court could determine that that there as a matter of fact this employee eve was terminated for a non retaliatory reason but i think that the reason this case came up here was so that the court could address the more important issue which is whether or not the toward immunity act will and i think that that is true it's clearly set forth in the affidavit michael trigg talked about the policy he talked about the reasons for the policy and he talked about a number of things that he had to consider way the judgment calls that he had to make about what to do you know should this be a suspension should this be a warning should this be a terminations what will i do in the next hey sophists happens not only that your honor it is it's my belief and it's been stated by some courts the second district i think has sat it the plainest counsel has agreed with that and in johnson versus mers another decision of the second district they all recognized as i think everybody would that decisions about whether to hire or fire employees is inherently discretionary for public officials i can think of few acts that are more important to their jobs for that require more judgment because it's those employees that are actually going to do all the acting for the public en when i meet with a board and they're going to select a director i tell them this is the most important decision that you will make as a board because this person is going to have a big impact on what they do so you better be careful who you fire and one employer employers go to fire employees you know that my firm just doesn't play that law when they go to fire employees we scrutinize that and we make sure you know are you sure that you're making the right judgment here are you doing what's appropriate are you doing what's best for your business and all takes discretion it's as much about judgment as it is about law well mr james does the act to protect give immunity for any discretion for any acts it was an act of the governmental body your honor i want to make sure that i answer your question are you asking me if there's any limits on the discretion your honor yes your honor there are limits even to discretionary immunity i believe that the all too to all one says that except as otherwise provided by statute so if there is a statute that proscribed precisely what it is that the employer must do then i think that there would be a limit on the discretion in there is an example found for example in the in the part and i i don't know if this was cited in the briefs but i want to answer your honor's question so i can give you a citation that's in the park code at twelve o five slash eight this twenty three on criminal background investigations there it says clearly that for example no park district shall knowingly employ a person who has been found to be the perpetrator of sexual or physical abuse of any minor under eighteen years of age and it also sets forth that that everybody has a background check and park district can't employ that person until they have a background check that statute also says there are certain persons that you cannot employ and so i believe that because this is a clear statutory directive and a limitation and what the government is allowed to do longer available period to a pub in the public's you know answer can i answer that question yes and no and explain if you're ok the answer is that this court can obviously creates common law duties and this court knows we taught me there's a difference between a duty and immunity so persons can raise a cause of action toward immunity act doesn't say you can't file a suit but the immunity has to be raised it's an affirmative defense that it puts the burden on the defendant to to raise that and to prove the defense up so there may be situations where there will be a question about whether a terminations was truly discretionary so his employer can either in the public so you are right your honor i think that if a person you know once this court decides the issue of it decides that in favor of that bandana i think that if a person would file the suit for retail year tour he does charge against a governmental entity and the court holds that to one hundred nine is an absolute bar i think under rule one thirty seven at any and he attorney would realize this is going to be raised as a defense and you can't proceed so even when i say it isn't a place to go across the street and if they don't want that they can certainly say that two one zero nine doesn't apply in the retailer very disturbed and i agree with your honor that this is a legislative decision and that the legislature you know it's certainly within their purview to enact or change change laws to torture me act or any other statu honour's i i think that the distinction you know about buckner and and is really not terribly important it clearly establishes the law i mean it tells us an individual cannot be held liable but bucknor didn't consider the immunities i think the bad involved private clients no governmental entities and if we were handling that case i think we would have asserted those these immunities and said that two to one hundred nine compiled combined what you want to would have provided immunity so it was this court that said individuals can't be liable but this whole argument about agency at the end of the day i don't think it would matter because the immunities would still still apply mr james if i might just revisit where we last left off on this question of limitations of discretion and immunity is there any way when you really have to dash to one of those one of your immunity offenses  is there any way that the government or unit could have a policy that would protect retaliatory discharges or that the exercise of discretion could be immune exercising discretion to discharge somebody for  that was rule number one you better always answer the question  disturbance i think it could your honor it could i think it could i think that they could create a policy that does not allow for the exercise of any judgment or discretion for example if this does assume a governmental entity did decide to terminate employee because they were up sacked that that employee had exercised aeration the workers compensation act now these folks have bosses and they have elected boards those boards don't get paid anything they serve the public i don't i think that people generally can be counted on to do the right thing park districts can pass ordinances and they can tell they could they can make a hard and fast rule about what to do in a prescribed set of facts that would take their discretion away from them but the legislature for your honor i'm not sure about that i believe that this court could say if they have a policy that admits that doesn't allow for any discretion it's absolutely mandatory that you'd then look at whether it was a mystic ministerial ac discretionary act in the court could say well that's ministerial you're not exercising any discretion you're doing exactly what you were told to do according to a prescribed set of facts and you don't have discretionary immunity you if there's no individual for an amp individual liability for an employee there can be no liability for the governmental employer bucker views of the two want to nine has written reta how do we get there in this well i understand mr chief justice that you're very concerned about why are you going to be usurping the legislature's authority if you if you somehow rule that in this setting despite the language of two one zero nine the public employees are still entitle to pursue a policy for you know an action for tell us were discharged and you know that's your job do you worry about that because you're a supreme court justice and you don't want to usurp the another branches powers but i come back to what i said before which was look if that were the case then even be an announcement of the tort would then trench upon the ground a hug that is preserved for the legislature and i'm suggesting that not only is was it appropriate but that the legislature has conceded that it was appropriate because it hasn't done anything to that would bear on the rights of individuals to claim you know retaliatory discharge i mean after all i assume that the legislature if it wanted to could pass a law saying nobody's entitle to file a claim for protest to a discharge it's gone and they haven't done that and more than that they've they've also lived with the few cases we can talk about  about that that have approved of the filing of claims against public entities for telling i discharge including this court's decision in boils which it's which said in no uncertain terms a claim for up retaliatory just charge can be pursued against a public entity now if i'm a legislator or i can say i can turn of somebody and say you know george i read where the supreme court is saying that you can sue a public entity for totally discharge and i'm pretty sure though that when we wrote section two want to nine it it pretty much means you can't but they haven't done that you know what else they haven't done though no vicarious liability employee employer and they haven't changed to want to name either i mean so in fairness i mean they've had our decision for ten years that just based on the plain reading of the statute in our decision  this whole scenario is what i refer to in my brief as an alien toy or or just kind of accidental situation there it's it makes little sense to talk about the  legislature's intent when the act that is the only two immunity act preceded the announcement of the toilet by some thirteen years so what do we do you know here we are worse that work faced with a situation where clearly nobody anticipated the one that when the only legislature wrote the bill my to the new york nobody anticipated that there would be such a thing as a retaliatory discharge time and now when in the process of shaping its contours believe this court has tried to shape the torch in ways that you think conform to it to what's necessary to protect public policy i'm suggesting that the public policy of the state is so clear with regard to employees being protected by workman's comp that the degree of soliciting shown by the legislature for those employees over beers the public policy in favor of the workman's comp and that's a decision you know those are the judgment calls that you get to get to make but what i'm saying is it if you would pull any of the legislative horse over there and ask them do you think that a person who's injured on the job or at in in an editor at a public entity which is in title is quite workman's comp i would be very surprised if one hundred percent of them would not say of course of course that's why we wrote the statute now it may be the case and by the way i i want to address something that mr james said because the issue about the facts underlying this case never said anything about the facts other than to resize them and say rather than the issue is should they be prevented from pursuing this action because of two thousand and nine and buckner and two to one there was issue and that's what i mean we would we thought that the purpose of yes the answer is yes and the reasons we thought the purpose of the evidence was to establish that this was a discretionary yet and i've conceded that point i think would be disingenuous not to you it is were employment situation i've been working for thirty years i've never seen a firing that wasn't some at least in some measure discretionary discretionary the question is whether that you know a lot to believe then leads to a finding that be that the claim cannot be for touch or discharge cannot be pursued and i mean i've suggested that when you ultimately ultimately ultimately what you look at is the the legislative intent and the legislative intent is to protect people who have been injured on the job even in public employment counsel what you have just a few seconds like this what should i what should our ruling be what should be end of our opinion public policy and the the the the definition of the terms as you've defined them of retaliatory discharge we spend most of our time going to will and what about two to a one since you admit it's discretionary how do you get around there what i say is about two to one is that even just the same they say about to run even when you have the language there but the question you have to cite is whether it's an act or mission of an employee at whether they're acting with