People ex rel. Madigan v. Bertrand

• Decision Date: 28 September 2012
• Docket Number: No. 1–11–1419.,1–11–1419.
• Parties: The PEOPLE ex rel. Lisa MADIGAN, Attorney General of Illinois, Plaintiff and Intervenor–Appellee, v. Joseph G. BERTRAND, Jr., in His Individual Capacity, Defendant–Appellant (The Board of Education of Bremen Community High School District 228; The Board of Education of Forest Ridge School District 142, and Kurt Staehlin, Plaintiffs–Appellees; Joseph G. Bertrand, Jr., in His Official Capacity as President of the Board of Trustees of Bremen Township Trustees of Schools Township 36N, Range 13E; Julienne Mallory, Individually and in Her Official Capacity as Trustee of the Board of Trustees of Bremen Township Trustees of Schools Township 36N, Range 13E; The Board of Trustees of Bremen Township Trustees of School Township 36N, Range 13E; and Joseph McDonnell, Individually and in His Official Capacity as Treasurer of the Board of Trustees of Bremen Township Trustees of Schools Township 36N, Range 13E, Defendants).
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 111419

978 N.E.2d 681

365 Ill.Dec. 426

The PEOPLE ex rel. Lisa MADIGAN, Attorney General of Illinois, Plaintiff and Intervenor–Appellee,

v.Joseph G. BERTRAND, Jr., in His Individual Capacity, Defendant–Appellant (The Board of Education of Bremen Community High School District 228; The Board of Education of Forest Ridge School District 142, and Kurt Staehlin, Plaintiffs–Appellees; Joseph G. Bertrand, Jr., in His Official Capacity as President of the Board of Trustees of Bremen Township Trustees of Schools Township 36N, Range 13E; Julienne Mallory, Individually and in Her Official Capacity as Trustee of the Board of Trustees of Bremen Township Trustees of Schools Township 36N, Range 13E; The Board of Trustees of Bremen Township Trustees of School Township 36N, Range 13E; and Joseph McDonnell, Individually and in His Official Capacity as Treasurer of the Board of Trustees of Bremen Township Trustees of Schools Township 36N, Range 13E, Defendants).

No. 1–11–1419.

Appellate Court of Illinois, First District, Sixth Division.

Sept. 28, 2012.

Anthony G. Scariano, James A. Petrungaro, and Jacqueline M. Litra, all of Scariano, Himes & Petrarca, Chtrd., of Chicago, for appellant.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Laura Wunder, Assistant Attorney General, of counsel), for appellee People ex rel. Madigan.

William F. Gleason, Christopher L. Petrarca, and Raymond A. Hauser, all of Sraga Hauser, LLC, of Flossmoor, for other appellees.

OPINION

Justice HALL delivered the judgment of the court, with opinion. Presiding Justice Lampkin and Justice Garcia concurred in the judgment and opinion.

[365 Ill.Dec. 429]¶ 1 Defendant-appellant Joseph G. Bertrand, Jr., individually, appeals from a circuit court judgment on the pleadings which determined that a monetary settlement agreement he entered into with the Board of Trustees of Bremen Township Trustees of Schools Township 36 North, Range 13 East (the Board) was void because it was not properly approved by the Board and because Bertrand, as an elected trustee of the Board, acted under a conflict of interest as defined and prohibited by section 3(a) of the Public Officer Prohibited Activities Act (Act) (50 ILCS 105/3(a) (West 2010)),¹ when he participated in the negotiations of the settlement agreement in which he had a financial interest.

¶ 2 The current language in section 3(a) of the Act provides in relevant part that “[n]o person holding any office, either by election or appointment under the laws or Constitution of this State, may be in any manner financially interested directly * * * or indirectly * * *, in any contract or the performance of any work in the making or letting of which such officer may be called upon to act or vote. * * * Any contract made and procured in violation hereof is void.” 50 ILCS 105/3(a) (West 2010); see also 9 Thomas P. Boggess et al., Ill. L. and Prac., Cities, Villages, and Other Municipal Corporations § 439 (West 2012).

¶ 32028756099;00194;;LQ;ILSTCH102P3;1000008; Section 3(a) of the Act is a conflict-of-interest provision designed to deter public officials from placing themselves in positions where their private pecuniary interests conflict or may conflict with their official public duties. See, e.g., People v. Savaiano, 66 Ill.2d 7, 15, 3 Ill.Dec. 836, 359 N.E.2d 475 (1976) (stating that one of the purposes of this provision is to deter public officials from allowing themselves to be placed in situations where they may be called upon to act or vote in the making of a contract in which they have an interest; the evil exists because the official is able to influence the process of forming the contract); Brown v. Kirk, 33 Ill.App.3d 477, 483, 342 N.E.2d 137 (1975) (stating that the purpose of this section of the Act is to deter public officers from participating in official decisions that would benefit them financially to the prejudice of those whom they serve), rev'd on other grounds,64 Ill.2d 144, 355 N.E.2d 12 (1976); Shoresman v. Burgess, 412 F.Supp. 831, 837–38 (E.D.Ill.1976) (interpreting this section of the Act as fairly informing public officials of their duty to avoid becoming interested, either directly or indirectly in contracts which may inure to their personal benefit).

¶ 4 We provide a brief background of the parties and the facts giving rise to this appeal. The Board is a body politic and corporate, consisting of three duly elected trustees authorized to exercise those powers and duties described in article 5 of the Illinois School Code (School Code) (105 ILCS 5/5–1 et seq. (West 1998)). During the relevant time period, the three elected trustees were Bertrand, Ms. Julienne W. Mallory, and Mr. Michael T. Duggan.

¶ 5 Mr. Joseph J. McDonnell is the Board treasurer. Plaintiffs-appellees the Board of Education of Bremen Community High School District 228 and the Board of Education of Forest Ridge School District 142, are two publicly elected boards of education subject to the jurisdiction of the Board. Plaintiff-appellee Mr. Kurt Staehlin is a taxpayer residing in Oak Forest, Illinois.

¶ 6 On April 17, 2007, Bertrand successfully ran in an election for a seat as a trustee on the Board, defeating the incumbent. Bertrand was certified by the Cook County elections clerk as the victor. The Board, however, refused to seat Bertrand, claiming that he was ineligible for the seat because he resided in the same elementary school district as Ms. Mallory.

¶ 7 Bertrand filed suit against the Board and other defendants in the circuit court of Cook County seeking a declaratory judgment ordering the Board to honor the certified election results and seat him as a trustee. Bertrand also sought to recover damages and attorneys fees under claims of civil rights violations pursuant to the Civil Rights Act of 1991 (42 USC §§ 1983, 1988 (2006)) and for damages related to an alleged civil conspiracy to deprive him of his trustee seat.

¶ 8 Bertrand prevailed on his claim to be seated as a trustee on the Board, but his claims for damages and fees were dismissed by the circuit court. The final pending count for alleged civil conspiracy was dismissed without prejudice on May 20, 2010.

¶ 9 On June 7, 2010, the Board held a meeting. The only trustees present at the meeting were Bertrand and Ms. Mallory. Also in attendance were Bertrand's attorney, the Board's attorneys (via teleconference), and treasurer Mr. McDonnell and his attorney. During the meeting, the Board went into an executive session to discuss a proposed settlement of the lawsuit involving Bertrand.

¶ 10 At the conclusion of the executive session and upon reconvening the open portion of the meeting, Ms. Mallory moved for the Board to award Bertrand the sum agreed upon in the executive session ($220,000, in two installments, jointly payable to Bertrand and his attorney) in return for his full release of all claims in the lawsuit. Bertrand seconded the motion and the matter was put to a vote. Ms. Mallory voted in favor of the motion while Bertrand abstained from voting. Based upon this vote, Ms. Mallory directed the Board's legal counsel to prepare a settlement agreement between the Board and Bertrand.

¶ 11 On June 14, 2010, the circuit court entered a final order dismissing all of Bertrand's claims against the Board and other defendants.

¶ 12 On June 22, 2010, the Board held a special meeting where several members of the public expressed dissatisfaction with the proposed settlement agreement. One of the Board's attorneys maintained that the Board had improperly approved the settlement agreement. Ms. Mallory stated that she believed it was wrong for the outgoing members of the Board to refuse to seat Bertrand and that he was entitled to his attorney fees for his lawsuit.

¶ 13 Ms. Mallory moved to approve the settlement agreement. Bertrand seconded the motion and the matter was put to a vote. Ms. Mallory voted in favor of the motion, Mr. Duggan voted against the motion, and Bertrand abstained from voting. Based upon this vote, Bertrand declared that the motion had passed. The settlement agreement and a release was subsequently executed on June 25, 2010.

¶ 14 On June 28, 2010, the plaintiffs-appellees filed a seven-count verified complaint against Bertrand, the Board, and Ms. Mallory seeking a declaration that the settlement agreement was void. An amended verified complaint was filed the next day. The Attorney General of the State of Illinois intervened as a plaintiff on behalf of the People.²

¶ 15 On April 18, 2011, the circuit court entered a memorandum opinion and order granting plaintiffs' motion for a judgment on the pleadings, finding that the settlement agreement was void because it was not properly approved by the Board and because it was procured in violation of section 3(a) of the Act. The circuit court also granted the plaintiffs' motion to strike the affirmative defense of immunity raised by Bertrand under section 15 of the Citizen Participation Act (735 ILCS 110/15 (West 2008)). Bertrand appeals to this court. For the reasons that follow, we affirm.

¶ 16 ANALYSIS

¶ 17 This case involves a judgment on the pleadings in plaintiffs' favor. A motion for a judgment on the pleadings is similar to a motion for summary judgment. Pekin Insurance Co. v. Wilson, 237 Ill.2d 446, 455, 341 Ill.Dec. 497, 930 N.E.2d 1011 (2010). Judgment on the pleadings is proper where the pleadings disclose no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill.2d 381, 385, 294 Ill.Dec. 163, 830 N.E.2d 575 (2005).

¶ 18 In ruling on such a motion, only those facts apparent from the face of the pleadings, matters subject to judicial notice, and judicial admissions in the record may be considered. M.A.K. v. Rush–Presbyterian-St. Luke's Medical Center, 198 Ill.2d 249, 255, 261 Ill.Dec. 710, 764 N.E.2d 1 (2001). All well-pleaded facts and all...