## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

Board of Education of Peoria School District No. 150 v. Peoria Federation of Support Staff, Security/Policem en’s Benevolent & Prot ective Ass’n Uni t No. 114 , 2012 IL App (4th) 110875

Appellate Court Caption THE BO ARD OF E D U CA T I O N O F PE O RI A SC HOOL DI STRI CT NO. 150, PEORI A COUNTY, I L L I NOI S, Plaintiff-Appellant, v. THE P E O R I A F E D E R A T I O N O F S U P P O R T S T A F F
, SECURI TY/POL I CEMEN’S BEN EVOL ENT AND PROTE CTI VE ASSOCI ATI ON UNI T NO. 114; THE I L L I NOI S EDUCATI ONAL L AB OR REL AT I ONS BO ARD; and THE I L L I NOI S L AB OR REL ATI ONS BO ARD, STATE PANEL , Def endants-A

ppellees.

District & N o. Four th District
Docke t No. 4-11-0875

Arg ued
Filed J une 19, 2012
J uly 25, 2012

Held (Note : Thi s syl lab u s

con s ti tut es no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er o

f D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiff school district’ s action alleg ing that the amendment to the I llinois Public L abor Relations Act that rec lassified as public employ ees

cer tain peac e office rs previously d eemed educational employ ees, inc lu d in g th e s e c u

r it y o f fice rs employ ed by plaintiff, was unconstitutional

s p ec ial leg islation that did not apply to plaintiff and that the I llinois Educational L ab or R elations Boa rd st ill had ex clusive j urisdiction over labor disputes betwee n the district and its secur ity office rs was sufficie nt to withstand the motion to dismiss filed by the I llinois Educational L abor Relations Boa

rd and the I llinois L abor Relations Boar d.Dec ision Under

Review Appea l from the Circuit Court of Sang amon County
, No. 11-MR-106; the Hon. J ohn Schmidt, J udg e, pre siding.

J udg ment Reverse d and re manded.

Counsel on Appea l Stanley B. Eisenhammer (ar g ued), Eliz abeth J ensen, and Christopher M. Hoffma nn, all of Hodg es, L oizz i, Eisenhammer
, Rodick & Kohn L L P, of Arling ton Heig hts, for appe llant.

L isa Madig an, Attorney Gene ral, of Chicag o (Michae l A. Sco d ro , Solicitor Gene ral, and Sh ar o n A. Purcell (ar g ued), Assistant Attorney Gene ral, of c ounsel), for appellee s I llinois Educational L abor Relations Boa rd and I llinois L abor Rela tions Boar d, State Panel.

Shane M. Voyles (ar g ued), of Police Be nevolent L abor Co m m i t tee, of Springf ield, for appellee s Peoria Fe deration o f S u pport Staff and Security /Poli ceme n’s Be nevolent and Protective Association Unit No. 114.

Panel J USTI CE COOK delivere d the judg ment of the c ourt, with opinion.
J ustices Steigmann and Appleton concur red in the judgme nt and opinion.

OP INION

¶ 1 This appea l conce rns the validity of Public Act No. 96-1257 (Pub. Act 96-1257, § 5 (ef f. J uly 23, 2010) (ame nding section 3 of the I llinois Public L abor Relations Act (Public L abor Relations Act) (5 I L CS 315/ 3 (W es t 2 0 1 0)) and the jurisdictions of the I llinois L abor Relations Boa

rd and the I llinois Educational L abor Relations Boa rd (Educational L abor Relations Bo ar d) with respe ct to police and secur ity office rs employ ed direc tly by school districts. Public Act No. 96-1257 expands the scope of the Public L abor Relations A ct and the j urisdiction of t he I llino i s L abor Relations Boa rd by rec lassifying as public employ ees

cer tain peac e office rs previously considere d educational–not public–e mploy ees. Under the Public L abor Relations Act as amende d, these peac e offic ers, their employ ers, and the relations betwee n them are now g overne d by the Public L abor Relations Act, rathe r than the previously applicable I llinois Educational L abo r Re la tions Act (Educational L abor Relations Act) (115 I L CS 5/1 to 21 (West 2010)), and overse en by the I llinois L abor Relations Boa rd, rathe r than the Educ ational L abor Relations Boar d.

-2-¶ 2 I n Marc h 2011, plaintiff, the Boa rd o f E d u ca t i on of Peoria School District No. 150, Peoria County
, I llinois
, filed a two-count complaint for decla ratory and injunctive relief
ag ainst def

e ndants, the Peoria Fe deration of Support Staff, Security /Poli ceme n’s Be nevolent and P rotec tive Association Unit No. 1 1 4 (U n i t No. 114); the Educational L abor Relations Boa rd; and the I llinois L abor Relations Board, State Panel. I n count I
, plaintiff challeng ed the constitutionalit y of Public Act No. 96-1257, claiming it violates the prohibition a g ainst specia l leg islation (I ll. Const. 1970, art. I V, § 13). I n count I I
, plaintiff alleg ed that the Educational L abor Relations Boa rd, not the I l l i n o i s L abor Relations Boa rd, had exclusive administrative jurisdiction over unfair labor prac tice claims betwee n plaintiff and Unit No. 114 and any rele vant barg aining -unit deter minati o n s , n o twithstanding the amendatory public
act. I n September 2011, the trial court g rante d t h e l ab o r boards’ motion to dismiss both
counts of the complaint. Plaintiff appea ls. We ag ree wi t h p l ai n t iff that dismiss al was improper a

nd, acc ording ly , reve rse a nd rema nd.

¶ 3 I . BA CKGROUND ¶ 4 Acc ording to the complaint, plaintiff is the only I llinois school district that maintains its

own police forc e–that is, employ s office rs direc tly

. (In g ener al, other districts obtain police protec tion for th ei r s ch ools by coordinating with local police depar tments.) Currently
, plaintiff’s police forc e consists of 26 office rs who have rec eived or have been schedule d to

rec eive instruction under the I llinois Police Training Act (50 I L CS 705/1 to 12 (West 2010)). Since 1989, office rs empl oy ed by plaintiff have been repr esente d by iterations of a union

cer tified by the Educationa l L abor Relations Boa rd. These barg aining units have been responsible for enter ing collective- barg aining ag ree ments reg arding the conditions of office rs’ employ

ment with plai n t i ff. The most rec ent such ag ree ment expired on J une 30, 2010. ¶ 5 I n Dec ember 2010, plaintiff and Unit No. 114 b ega n n ego t i at i n g a n ew collectivebarg aining ag ree ment. Neg otiations broke down when plaintiff cea sed allowing members of Unit No. 114 to attend neg otiations during work hours. I n a Dec ember 2010 letter to plaintiff,

a union repr esentative stated, “I am prepa red to file a char g e, duplicate if nece ssary with the [Educational L abor Relations Boa rd] an d t he [I llinois L abor Relations Boa rd], over the District’s retaliation to the uni t by threatening to discon t i n ue the status quo for barg aining during working hours.” ¶ 6 A fu rt h e r d i s p u t e a ro s e re gar d i n g wh i ch l ab o r re l at i o n s ac t

– P u b l i c o r Educational–gove rned neg otiations. This question turned on the applicability of Public Act No. 96-1257. The union maintained that, pursuant to Public Act No. 96-1257, neg otiations fell under the Public L abor Relations Act. Plaintiff maintained t h e E d u cational L abor Relations Act continued to apply to the barg aini n g b ec au s e the public act (1) was unenfor cea

ble, unconstitutional specia l leg islation and (2) did not apply
, by its terms, to plaintiff and Unit No. 114. On Marc h 3, 2011, Unit No. 114 applied for cer tification with the I llinois L abor Relations B oard as the barg aining repr esentative of “[a]ll full-ti me and parttime g uar d s , agents, secur ity and police employ ees” employ ed by plaintiff–the barg aining unit previously

cer tified by the Educational L abor Relations Boar d.

-3-¶ 7 On Marc h 15, 2011, plaintiff filed its two-count complaint ag ainst Unit No. 114 and the

labor boards. I n count I
, plaintiff alleged P u b l i c Act No. 96-1257 was unconstitutional. Plaintiff sought, in par

t, a dec laration of the s tatute’s unconstit utionality and an injunction
ag ainst its enfor ceme nt. In count I I
, plaintiff alleg ed Public Ac t No. 96-1257 was inapplicable. Plaintiff soug ht, in part, a decla ration that the o ff

i ce rs i t employ s are not

co v er ed by the statutory amendment and that the Educa tional L abor Relations Board continued to have exclusive jurisdiction over labor disputes betwee n plaintiff and Unit No. 114 and an injunction barr ing the I llinois L abor Relations Boa rd from asser

ting jurisdiction over the parties. ¶ 8 I n April 2011, the labor boards filed a motion to dismiss under section 2-615 of the Code of Civil P roce dure (735 I L CS 5/2-615 (West 2010) ). They contende d that the fa cts alleg ed in eac h count o f t h e co m p l aint, if proved, would not state a claim for relief

. That same month, Unit No. 114 filed a separ ate section 2-615 motion to dismiss, appending materia ls it alleg ed ref

uted plaintiff’s claim t h at t h e p u b l ic act did not apply to the parties. I n September 2011, the trial court denied Un i t No

. 1 14’s motion but g rante d the boards’
, dismiss ing the action with pre judice. ¶ 9 This appea l followed.

¶ 10 I I . ANAL YSI S ¶ 11 On appea l, plaintiff argues eac h count of its complaint alleg ed fac ts sufficie nt to state a claim for r elief. We a g ree

.

¶ 12 A. Section 2-615 a nd the Standard of

Review ¶ 13 A section 2-615 motion to dismi s s ch al l en ges t h e leg al sufficie ncy of the complaint. Simpkins v. CSX Transport ation, Inc.
, 2012 I L 110662, ¶ 13. Dismissal under section 2-615 is appropr iate only if “it is clea rly appa re n t t h at n o set of fac ts can be proved that would entitle the plaintiff to rec overy .” Id. I n ruling on such a motion, the court construes the alleg ations in the complaint liberally and in the light m o s t fa v o rable to the plaintiff and

acc epts as true all well-plea ded fac ts and all rea sonable infere nces that may be draw n from those fac ts. Id. We revie w the trial court’s order g ranting the labor boards’ motion to dismiss de novo

. Id.

¶ 14 B. O vervie w of the Public L abor Relations Act and Public Act No. 96- 1257 ¶ 15 T h e P u b l i c L ab o r R elations Act regulates labor relations b et we en p u b l i c- s ec t o r employ er s and employ ees, “including the desig nation of employ ee repr esentatives,
neg otiation of wag es, hours and other conditions of employ ment, and resolution of disputes arising under collective barg aining ag ree ments.” 5 I L CS 315/2 (Wes t 2 0 10). The entities whose labor rela

tions the act cover s are descr ibed in sections defining “public employ ee” and “public employ er.” 5 I L CS 315/3(n), (o) (West 2010). Be fore and afte r amendment, subject only to enumer ated exceptions, school districts and their employ ees are specific ally exc lu ded

-4-from these definitions. 5 I L CS 315/3(n), ( o ) (West 2008); 5 I L CS 315/3(n), ( o ) (West 2010).

(I nstead, school districts and their employ ees, respe ctively
, are g ener ally consi dere d educational employ ers and educational employ ees u n d er the Educa tional L abor Relations Act. 115 I L CS 5/2(a), (b) (West 2010).) Under Public Act No. 96-1257, “a school district in the employ

ment of peac e office rs in its own police depar tment in exis tence on the eff ective date of this amendatory Act of the 96th G ener al Assembly” is now a public employ er as an exception to the g ener al exemption cover ing school districts. 5 I L CS 315/3( o ) (West 2010). Corresponding ly
, under the amendment, “pea ce office rs employ ed by a school district in its

own police depar

tment in exis tence on the eff ective date of this amendatory Act of the 96th Gene ral Assembly ” are now public employ ees as an exception to the g ener al exemption of school districts’ employ ees. 5 I L CS 315/ 3(n) ( West 2010). ¶ 16 The rele vant eff ect of Public Act No. 96-1257 on labor relations co ncer ns employ ees’ rig ht to s t ri k e. Un d er both the Educational L abor Relations Act and the Public L abor Relations Act, employ ees are g ener ally permitted to strike when collective barg aining brea ks down, subject to enumer ated conditions. 115 I L CS 5/12 (West 2010); 5 I L CS 315/7, 13, 14 (West 2010). Howeve r, the Public L abor Relations Act prec ludes public employ ees employ ed as secur ity personne l, peace o ff i cers, or firef

ighte rs from striking and instead provides for interest arbitration betwee n them and their employ ers. 5 I L CS 315/14, 17 (West 2010); see also 5 I L CS 315/2 (West 2010) (“It is the public policy of the State of I llinois that wher e the rig ht of employ ees to s t ri k e i s p ro h ibited by law, it is nece ssary to aff ord an alternate, expeditious
, equitable and eff ective proce dure for the resolution of labor disputes ***.”). This court has explained that the rig ht to interest arbitra tion rese rved for employ ees prohibited from striking resulted from a quid pro quo of “ec onomic wea pon[s] .” State of Illinois Departme nt of Central Managem ent Servic es v. State of Illino i s L a b or Relations Board, State Panel
, 373 I ll. App. 3d 242, 253, 869 N.E.2d 274, 2 8 3 (2 0 0 7) (her einaf ter CMS ). Depr iving such secur ity
, police, and firef ighting employ ees of the rig ht to strike due
to the indispensable nature of their service s puts them at a b ar gai n ing disadvantag e with
respe ct to their employ ers; the legi s l ature soug ht to corr ect this imbalance in barg aining
po we r b y af

fording such employ ees “ac cess to an economic barg aining wea pon that is qualitatively simil ar to the rig ht to strike”– i.e.
, interest arbitration. Id. at 255, 869 N.E.2d at 284.

¶ 17 C. Count I : Special-L eg islation Cl aim ¶ 18 I n count I of its complaint, plaintiff alleg es Public Ac t No

. 9 6 -1 2 5 7 v i o l at es t he constitutional prohibiti on ag ainst special leg islation. That pr ohibition states, “T he Ge nera l Assembly shall pass no specia l or local law when a g ener al law is or can be made applicable

. Whether a g ener al law is o r can be made applicable shall be a matter for judicial deter minat i o n.” I ll. Const. 1970, art. I V, § 13. The specia l-leg islation clause prohibits the leg islature from “conf

err ing a specia l benef

it or privileg e upon one person or g roup and excluding others that are simil arly situated.” Crusius v. Illinois Gaming Board , 216 I ll. 2d 315, 325, 837 N.E.2d 88, 94 (2005). I n other wo rd s , “[ w] hile the leg islature has broad discretion to make statutory classifications, the specia l leg islation clause preve nts it from making classifications that arbitra rily discriminate in favo r o f a selec t g roup.” Id. Two

-5-elements compri se a specia l-leg islation challeng e: (1) “the statutory classification at issue

discriminates in favor

of a se lect g roup,” a

nd (2) “ the classific ation is arbitrar y .” Id. ¶ 19 I n det er m i n i n g wh ether a statutory classification is arbitra ry , the same standards of scrutiny apply to equal- protec tion and specia l-leg islation challeng es. Id. Where, as here
, no fundame ntal rig ht or suspect class is aff ecte d by the statute in question, we apply “the defe rential rational basis test.” Id. Under that test, a st atute is consti t u t i o n al s o long as the distinction it draw s betwee n g roups i s “ra tion al l y related t o a legitimate st ate interest.” Id. That is, the statute must be upheld if the c ourt “c an re asonably conce ive of any set of fa cts that justifies distinguishing the class the statute benef its from the class outside its scope.” Id.
, 837 N.E.2d at 94-95. ¶ 20 Plaintiff’s complaint makes out a cla im th a t Pu blic Act No. 96-1257 is specia l leg islation. That is, the complaint alleg es fac ts which, if prov ed
, would show that the public act discriminates in favor

of a se lect g roup and that the distinction i t draws is ar bitrary

. ¶ 21 Assuming it applies to these parties, the rele vant distinctions made by Public Act No. 96- 1257, we find, are (1) betwee n peac e office rs empl o y ed by plaintiff, the only district

curr ently employing police office rs di rec tly
, and any peac e off icer s who may

be employ ed direc tly by other school districts in the fu ture; and (2) betwee n plaintiff and any school district that, in the future, may employ peac e off icer s directly

. ¶ 22 Citi ng CMS
, the labor boards ini t i al l y ar gu e p l ai n t iff failed to alleg e the public act discriminates i n favor of a selec t g roup because the interest arbit ra t i o n p ro vided for peac e office rs who are public employ ees under the amendment to the Public L abor Relations Act is equivalent to and no more favor able t han the rig ht to strike enjoy ed by educational employ ees. That is, acc ording to the labor boards, assuming Public Act No. 96-1257 applies
to these parties, the police office rs plaintiff employ s are no better off, relative to plaintiff, as public employ ees under the amendment, who are permitted to pursue interest arbitrati on, than as educa

tional employ ees, who are permitted t o s trike. The boards argue, “[Pl aintiff]
may pref er to proce ed under one alternative rathe r than the other, but its pref ere nce does not state a c laim for spec ial leg islation.” ¶ 23 We disag ree with this asser tion. Plaintiff is in a unique position to evaluate the eff ect of the Public L abor Relations Act’s interest-a rbitration scheme for police and secur ity employ ees on plaintiff’s influence on labor neg otiations with Unit No. 114. Thus, espec ially considering the court’s duty when ruling on a motion to dismiss to construe the pleading s in the light most favor able to the plaintiff, we are inclined to g ive plaint i ff t h e b enefit of the doubt w hen it a sserts that Public Act No. 96-1257, if it applies to the se parties, favor s Unit No. 114 and dis favor s plaintiff by substitut ing int erest arbitration for the employ ees’ rig ht to strike. ¶ 24 Fur

ther, contra

ry to the labor boards’ implication, this court did not, in CMS
, evaluate the desirability of interest arbitration versus striking from either the employ ee’ s or the employ er’ s p er spective, let alone conclude the alternative proce eding s wer e a wash for all parties. Rather, this court mere ly explained that interest arbitration was intended to be a qualitatively simil ar substitut e for striking. The parties have cited no case s stating or holding the rig ht to strike benef

its an employ ee as much as the rig ht to eng ag e in interest arbitration,

-6-which is the cru x of the labor boards’ position. I t rema ins possible that, in application, by

allowing them to pursue i n t er est arbitra tion, the leg islature overc orre cted the perc eived imbalance betwee n police an d secur ity employ ees and their employ ers created by denying these employ ees the rig ht to strike, even if arbitration is a theore tically equivalent “ec onomic

wea pon.” ¶ 25 Plaintiff also raises a leg itimate c oncer

n that the statutory

distinctions i dentified a

bove

are arbitra ry –that is, that they are not rationally related to a leg itimate state interest. Her e, the labor boa rds asser t that Publi c Ac t No. 96-1257 advanc ed the state’s interest in tr eating all police office rs simil arly with respe ct to the rig ht t o s t ri ke, reg ardle ss of whether they are employ ed by a school district or a conven t i o nal police depar tment. Whil e leg itimate, the interest asser

ted by the labor boards cannot rationally acc ount for the identified distinctions. ¶ 26 By i t s t er m s, only peac e office rs “employed by a school district i n i t s o wn p o l i ce depar tment in ex i s t ence on the eff ective date” of Public Act No. 96-1257 are define d as public employ ees under the amende d Public L abor Relations Act. 5 I L C S 3 1 5 / 3 (n) (West 2010). B y specific ally

ref err ing to of

fice rs “employ ed by a school district in its own police depar tment,” the public act distinguishes betwee n office rs who are employ ed by local police depar tments but work in and for the schools–who wer e alre ady treated as public employ ees and covere d by the P ublic L abor Relations Act–fr om office rs direc tly employ ed by school districts–who wer e previously considere d educational employ ees under t h e Educational L abor Relations Act. This rea sonably addre sses the leg is l at u re ’s leg itimate interest in

en suring that police office rs employ ed direc tly by school districts, who provide servic es

nece ssary to the public safe ty , like all other off icer s, are barr ed fr om striking. ¶ 27 Howeve r, the distinction betwee n office rs employ ed by schools and those employ ed by other entities is not the troubling distinction. The rele vant differ ence s are in (1) the statute’s
treatment of office rs curr ently employ ed by school districts and those who may be employ ed by other school districts in the future and (2) its corr esponding treatment o f t h e s chool districts employ i n g such office rs. We note Unit No. 114’s claim that, notwithstanding its plain lang uag e, Public Act No. 96-1257 applies prospec tively

. To the contra ry , assuming the amendment applies t o p l ai n tiff and Unit No. 114, beca use t he class of officers affe cted by the amendment closed on J uly 23, 2010 (the public act’ s eff ective date)
, any office rs direc tly employ ed by school districts other than plaintiff in the future will rema in under the purview of the Educational L abor Relations Act, not the Public L abor Relations Act. Offic ers cover ed by the Educational L abor Relations Act, like plaintiff’s police forc e befor e the amendment, will be allowed to strike but will be prec luded from pursuing interest ar b i t ration. I f the leg itimate interest justify ing the cl as sification in the amendment is to ensure that police office rs, no matter who employ s them, are not allowed to strike, then the distinction betwee n police employ ees of school districts curr ently employ ing police office rs and those of school d i s t ri ct s that may employ police in the future is irrational. No leg itimate state interest identified by the parties–a nd n one we can conce ive of–ac counts for the closing of the aff ecte d class by ref

ere nce to th e s ta

tute’s eff ective date. The date- based distinction may have been rational i f, for instance, some ear lier leg islation fore closed any school district not alre ady in employ

ment of its own police office rs from direc tly employ ing them in the future, but we have found no such pr ohibition.

-7-¶ 28 The leg islature defi n ed t h e cl as s aff ecte d by Public Act No. 96-1257 by ref ere nce to school districts direc tly employing police office rs on a date when the leg i s l at u re b eli eved only plaintiff and its office rs would be aff ecte d. See 96th I ll. Gen

. As s em., Senate Procee dings, Mar. 18, 2010, at 74 (Senator Koehler rema rking
, “The only place this aff ects in the State is Peor ia public schools. What it does *** is it takes awa y the rig ht to strike by
t h e police group and it puts any contra ct di sputes into interest arbitration.”); 96th I ll. Gen. Assem., House Procee dings, Apr. 29, 2010, at 49 (Repre sentative Smit h indicating
, “This is not specific to Peoria. I t wo u l d apply to any school district that employ s its own police office rs, and we’ re told that Peoria’s the only one that does that.”). The prohibition a g ainst specia l leg is la

tion does not per se prohibit leg islation reg ulating a g ener ally define d class that happens to have only one member. Eleme ntary Scho o l District 159 v. Schiller
, 221 I ll. 2d 130, 154, 849 N.E.2d 349, 364 (2006) (“N othing in that provision bars the leg islature from

enac ting a law specific ally addre ssing the conditions of an entity that is uniquely situated.”). Howeve r, in this case , assuming the public act app l i es t o t h ese parties, the leg islature arbitra rily set the classification in Public Act No. 96-1257 so that only plaintiff can be aff ecte d even if it loses, by possibly unfore seen circ u m s t ances, its distinction as the only school district in the state that maintains its own police forc e. ¶ 29 Our conclusion that plaintiff adequately alleg ed that the distinctions drawn by the statute at issue are arbitra

ry is unaff

ecte d by the labor boards’ asser tion that no other school district is likely to beg in direc tly employ ing police office rs in the fore seea ble future. Plaintiff’s rig ht
not to be disadvantag ed by specia l leg islation is at issue now in ong oing barg aining and labor disputes. We will not wait to see whether another school district actua lly establishes its own police forc e in the future; plaintiff’s constitutional challeng e does not depen d o n this conting ency

.

¶ 30 D. Count I I : Applicability of the Public Act ¶ 31 I n count I Iof the c omplaint, plaintiff alleg ed the I llinois L abor Rela tions Boar d lacke d administrative jurisdiction over pl ai n t i ff an d Unit No. 114 under Public Act No. 96-1257 beca use, acc ording to plaintiff, plaintiff did not employ “pea ce office rs” and did not maintain “its own p o l i ce depar

tment” as those terms were used in the P ublic L abor Relations Act’s amende d definitions of public employ ee and public employ er. This states a claim for which the trial court is authorized to g rant relief
, including the decla

ratory and injunc t i v e relief plaintiff re quests. ¶ 32 I n gen er al
, plaintiffs must exhaust available administrative reme dies befor e they seek equitable relief from administrative action. Office of t h e Lake County State’s Attorney v. Illinois Human Rights Comm’n , 200 I ll. App. 3d 151, 155, 558 N.E.2d 668, 671 (1990). I n this case , as t he labor

boards c ontend and the trial court found, plaintiff failed to awa it the I llinois L abor Relations Boa rd’s fina l administrative deter mination whether to c ertify Unit No. 1 1 4 as t h e exclusive barg aining repr esentative of the secur ity and police office rs employ ed by

plaintiff. ¶ 33 Neve rtheless, an exception to the ex h au s t i o n require ment exis ts for challeng es to an administrative ag ency ’s jurisdiction. Id. at 156, 558 N.E.2d at 671; see also County of Kane

-8-v. Carlson
, 116 I ll. 2d 186, 199, 507 N.E.2d 482, 486 (1987) (“The rule [ of ex haust i o n o f

reme dies] does not apply when a party challeng es the constitutionalit y of a statute on its fac e [citations] or contests the authority or juri s d i ct i o n of the administrative ag ency [citations] ***.”). For example, in one of two consolidated appea ls in County of Kane
, the chief judge of a judicial circ uit challeng ed the I llinois L abor Relations Boa rd’s jurisdiction over char g es of unfair labor prac tices filed ag ainst him by a union of probation office rs. County ofKane
, 116 I ll. 2d at 199, 507 N.E.2d at 486. Along with c onstitut ional challeng es to the authority of the statute based on the separ ation of power s, the chief judge argued he was not a public employ er a

nd, thus, “not within the scope of the [Publi c L abor Relations] Act.” Id. at 201, 507 N.E.2d at 487. B eca

use he challeng ed the labor board’s jurisdi ction, and bec ause “ the questions prese nted [were] entirely l ega l and [di d] not require fac t finding by the administrative age ncy or an a pplication of its particular expertise,” the supre me cour t held the judge was not require d to exhaust administrative reme dies befor e seeking decla ratory and injunctive relief

in the trial court. Id. at 199-200, 507 N.E.2d at 486. ¶ 34 Simi larly
, in Lake County
, 200 I ll. App. 3d at 153-54, 558 N.E.2d at 669, in a complaint befor e the trial court seeking decla ratory and injunctive relief
, a State’s Attorney challeng ed the jurisdiction of the Dep ar t m ent of Human Rights over an assistant State’s Attorney ’s char g e befor e th at ag ency of rac e- and sex-based discrimination. Among other things, the State’s Attorney alleg ed the assistant State’s Attorney was not an “employ ee” and the State’s Attorney was not an “employ er” or a “per son” as used in the I llinois Human Rights Act (I ll. Rev. Stat. 1987, ch. 68, ¶¶ 2-101(A)
, (B ), 1-103(L )). Lake County
, 200 I ll. App. 3d at 153- 54, 558 N.E.2d at 669. The trial court dismiss ed for lack of jurisdiction be cause the State’s Attorney failed to e x haust administrative re medies. Id. at 153, 558 N.E.2d at 670. ¶ 35 The appellate co u rt , h o we ver, found the trial court had jurisdiction over the State’s Attorney ’s complaint bec ause it attacke d the administrative jurisdiction of the De partment of Human Rights and there fore was exempt from exhaustion require ments. Id. at 156-57, 558 N.E.2d at 672. As in County of Kane
, t h e appellate court found the State’s Attorney ’s jurisdictional challeng e raised “entire ly leg al” questions. (Interna l quotation marks omitted.) Id. The appellate court held, “The State’s Attorney need not first subject himself to an exercise of jurisdiction of the [Human Rights] Co m m i s s i o n, which is not authorized by law[,] simply to obt ai n a d ecision from which he could” pursue administrative relief and, ultimately
, appea l. Id. at 157, 558 N.E.2d at 672 ; see also id. (“ ‘[W ]here the reme dy of administrative and judicial revie w would come only afte r a hear ing which the [admin is trative
ag ency ] has no jurisdiction to hold, it can be said that, as a matter of law, [t he plaintiff] has

no other adequate reme dy than the writ of prohibition [(a court ruling enjoining the ag ency from exercising jurisdiction)].’ ” (quoting People ex rel. Olin Corp. v. Departme nt of Labor
, 95 I ll. App. 3d 1108, 1112, 420 N.E.2d 1043, 1047 (1981)) ). ¶ 36 Her e, plaintiff a lleg es i t is not a public employ er a nd the member s of Unit No. 114 ar e not public employ ees beca use (1) its employ ees are not “pea ce office rs” and (2) plaintiff does
not maintain “its own police depar tment.” These alleg ations are sufficie ntly analog ous to the plaintiffs’ jurisdictional challeng es in County of Kane and Lake County that we hold plaintiff

was not require d to exhaust ad minist rative reme dies. The Public L abor Relations Act provides employ ers with no means to challeng e the I llinois L abor Relations Boa rd’s

-9-jurisdiction during the proce ss for certifying a union as the exclusive barg aining

repr esentative of its members–the action Unit N o. 114 soug ht here

. Rather, plaintiff would have been require d to awa it an adver se deter mination befor e pursuing judicial revie w in the appellate court as provided in section 9(i) of the Public L abor Relations Act (5 I L CS 315/9(i) (West 2010)), wher e it could retroa ctively challeng e the ag ency ’s jurisdiction. That result is at odds with the well-r easone d holding of Lake County

. ¶ 37 The labor boards asser t ruling on plaintiff’s jurisdictional challen ge wo uld require the trial court to rea ch the merits of Unit No. 114’s petition for cer tification as a barg aining unit by the I llinois L abor Relations Boa rd. They cite Nestle USA, Inc. v. Dunlap
, 365 I ll. App. 3d 727, 734, 852 N.E.2d 282, 288 (2006), whe re this cour t stated, “Jurisdiction s hould not be deter mined by a ruling on the merits.” I n that case , the plaintiff soug ht a decla ratory judgme nt that the I llinois Workers’ Compensation Commissi on had excee ded its statutory
power s when an arbitrator working on the ag ency ’s behalf reinstated a claim b ey o n d
, the plaintiff argued, the time allotted for doing so. Id. at 7 3 3
, 8 5 2 N. E .2d at 287. This court found t he plainti ff was attempting to “skip *** revie w [ by the adm i n i s t ra t i v e ag ency ] and seek judicial revie w by alleg ing that the arbitrator’s decision was not authorized by statute. Trial courts would be forc ed [i n such circ umstances] to first deter mine if arbitrators’ decisions wer e wr o ng in order to deter mine if they had jurisdiction.” Id. at 734-35, 852 N.E.2d at 288. This court held the plaintiff was require d to exhaust administrative reme dies. Id. at 735, 852 N.E.2d at 288. ¶ 38 This case is distinguishable from Nestle beca use plaintiff has not asked the trial court to addre ss the merits of Unit No. 114’s application for cer tification. When a majority of a g roup of publi c empl oy ees seeks cer tification as the exclusive barg aining repr esentative of that
g roup, the I llinois L abor Relations Boa rd “shall decide in eac h case , in order to assure public employ ees the fullest fre edom in exercising the rig hts guara nteed by this Act, a unit
appropr iate for the purpose of collective barg aining .” 5 I L CS 315/9( b ) (W es t 2010). The merits of such a deter

mination, as we used that term in Nestle , include amongother thi ng s whether the p et itioned unit is “appr opriate” and whether the petitioners complied with mandated voting proce dures. T h e q u estions of whether the unit’s members are public employ ees and their employ er a public employ er are jurisdictional prer equisites apar t from the m erits of the case. These are questions appropr iately addre ssed by a trial court prior to

a plaintiff’s submissi on to an administrative ag ency ’s unauthorized exercise of its jurisdiction. ¶ 39 The alleg ations of plaintiff’s complain t ar e s u ff i ci en t t o withstand the labor boa rds’ motion to dismiss

. The trial court err ed by g ranting the motion. Acc ording ly
, we reve rse and

rema nd.

¶ 40 I I I . CONCL USI ON ¶ 41 For the fore g oing rea sons, w e reve rse the trial court’s judgme nt a nd rema nd for f urther
proce eding s consistent with this opi nion.

¶ 42 Reverse d and re manded.

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