BRIEF AN APPENDIX OF DEFENDANT-APPELLATchicagoinspectorgeneral.org/.../03/...Supreme-Court-Opening-Brief-.pdf · BRIEF AN APPENDIX OF DEFENDANT-APPELLAT STEPHEN R. PATTON ... The

No. 112488

IN THESUPREME COURT OF ILLINOIS

JOSEPH M. FERGUSON ~ in his official capacity asInspector General of the City of Chicago,

Plaintiff-Appellee,v.

STEPHEN R. PATTON, in his official capacity asCorporation Counsel of the City of Chicago,

Defendant-Appellant.

On Appeal from the Appellate Court of IllinoisFirst Judicial District, No. 10-1152

There Heard on Appeal from the Circuit Court of Cook County, IllinoisCounty Department, Chancery Division, No. 09 CH 43287

BRIEF AN APPENDIX OF DEFENDANT-APPELLAT

STEPHEN R. PATTONCorporation Counsel

of the City of Chicago30 North LaSalle Street, Suite 800Chicago, Illinois 60602(312) 744-3173

BENNA RUTH SOLOMONDeputy Corporation Counsel

MYIAM ZRECZNY KASPERChief Assistant Corporation Counsel

J. MARK POWELLAssistant Corporation Counsel

Of Counsel

ORAL ARGUMENT REQUESTED

',-:

POINTS AN AUTHORITIES

Page(s)

ARGUMENT ....................................... ...........7

Wackrow v. Niemi,231 ILL. 2d 418 (2008) ....................................... 9

I. THIS IS A NONJUSTICIALE INTRAMUNICIP ALDISPUTE. ...............................................9

Lyons v. Ryan,201 IlL. 2d 529 (2002) ....................................... 9

A. The Courts Lack Jurisdiction Over A Suit By OneCity Department Against Another City Department. ... 9

Tanner v. Solomon,58 ILL. App. 2d 134 (1965) ................................ 9, 10

In re Estate of Wellman,174 IlL. 2d 335 (1996) ...................................... 10

Bellevile Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc.,199 IlL. 2d 325 (2002) ...................................... 10

Schlicher v. Board of Police & Fire Commissioners,363 IlL. App. 3d 869 (2006) ................................. 10

City of Elmhurst v. Kegerreis,392 IlL. 195 (1945) ........................................ 10

City of Chicago v. Beythel Outcast Church,375 IlL. App. 3d 317(2007) .............................. 10-11

Hume v. Town of Blackberry,131 IlL. App. 3d 32 (1985) .................................. 11

Johnston v. City of Chicago,258 IlL. 494 (1913) ........................................ 11

Kinzie v. Trustees of the Town of Chicago,3 ILL. 187, 1839 WL 2873 (1839) ............................. 11

1

1 Eugene McQuillin, The Law of Municipal Corporations § 2.07.10(3d Ed. 1999) . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Darby v. Pasadena Police Department,939 F.2d 311 (5th Cir. 1991) ................................ 11

1 Eugene McQuilin, The Law of Municipal Corporations § 2.02

(3d Ed. 1999) ............................................ 11

1 Eugene McQuilin, The Law of Municipal Corporations § 2.03

(3d Ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11

City of Trenton v. State of New Jersey,262 U.S. 182 (1923) ....................................... 11

Maureen A. Flanagan, Municipal Charters,The Electronic Encyclopedia of Chicago (Chicago Historical Society 2005),

http://encyclopedia.chicagohistory.org/pages/23L.html ........ 11-12

Maureen A. Flanagan, Charter Reform in Chicago (1987) ............. 12

2 Edmund J. James, The Charters of the City of Chicago (1898)http://www. archive.org/stream/charterscitychiOOiligoog#page/n6/mode/2up ............................................. 12

65 ILCS 5/2-2-12 (2010) ......................................... 12

3 Eugene McQuillin, The Law of Municipal Corporations § 12.39(3d Ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

IlL. Const. art. VII, § 6(ü ........................................ 12

3 Eugene McQuillin, The Law of Municipal Corporations § 12.40(3d Ed. 1999) ............................................ 12

Braxton v. National Capital Housing Authority,396 A.2d 215 (D.C. App. 1978) ........................... 12-13

Des Moines Park Board v. City of Des Moines,

290 N.W. 680 (Iowa 1940) .................................. 13

Lewis v. City of Chicago,496 F.3d 645 (7th Cir. 2007) ................................ 13

11

Chan v. Wodnicki,123 F.3d 1005 (1997) ...................................... 13

Dr. Martin Luther King, Jr. Movement Inc. v. City of Chicago,435 F. Supp. 1289 (N.D. IlL. 1977) ........................... 13

Stevanovic v. City of Chicago,385 IlL. App. 3d 630 (2008) ................................. 13

Paredes v. City of Odessa,128 F. Supp. 2d 1009 (W.D. Tex. 2000) ....................... 13

Luysterborghs v. Pension & Retirement Board,927 A.2d 385 (Conn. Super. Ct. 2007) ........................ 13

City Council v. Bowen,649 So. 2d 611 (La. Ct. App. 1994) ........................... 13

17 Eugene McQuillin, The Law of Municipal Corporations § 49:2(3d Ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Ill. Const. art. 7, § 6CD .......................................... 14

Municipal Code of Chicago, IlL. § 2-56-020 (2011) . . . . . . . . . . . . . . . . . . . . . 14

65 ILCS 5/3.1-15-10 (2010) ...................................... 14

Municipal Code of Chicago, ILL. § 2-4-030 (2011) . . . . . . . . . . . . . . . . . . . 14, 15

Municipal Code of Chicago, IlL. § 2-4-020 (2011) .................. 14, 15



Pechous v. Slawko,64 IlL. 2d 576 (1976) ....................................... 15

Peters v. City of Springfeld,57 IlL. 2d 142 (1974) ....................................... 15

David C. Baum, A Tentative Survey of Illinois Home Rule (Part 1): PowersAnd Limitations,1972 U. IlL. L.F. 137 (1972) ................................. 15

III

70 ILCS 3605/3 (2010) .......................................... 16

70 ILCS 3605/5 (2010) .......................................... 16

70 ILCS 1505/3 (2010) .......................................... 16

105 ILCS 5/34-2 (2010) ......................................... 16

110 ILCS 805/3-11 (2010) ....................................... 16

B. The Appellate Court Supplied No Valid Legal BasisFor Its Jurisdictional Ruling. ....................... 16

Burnette v. Stroger,389 IlL. App. 3d 321 (2009) ................................. 17

Read v. Sheahan,359 IlL. App. 3d 89 (2005) .................................. 17

Sampson v. Graves,304 Ill. App. 3d 961 (1999) .............................. 17,20

1 Eugene McQuilin, The Law of Municipal Corporations § 2.46(3d Ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

1 Eugene McQuilin, The Law of Municipal Corporations § 2.46.10(3d Ed. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Edward J. Berwind, Inc. v. Chicago Park District,393 IlL. 317 (1946) ........................................ 18

West Chicago Park Commissioners v. City of Chicago,152 IlL. 392 (1894) ........................................ 18

Lilly v. County of Cook,60 ILL. App. 3d 573 (1978) .................................. 18

55 ILCS 5/3-9001 et seq. (2010) ................................... 19

55 ILCS 5/3-4000 et seq. (2010) ................................... 19

55 ILCS 5/3-15001 et seq. (2010) .................................. 19

55 ILCS 5/3- 15004 (2006) ....................................... 19

iv

IlL. Const. art. VII, § 4(c) ........................................ 19

55 ILCS 5/3-6001 (2010) ........................................ 19

Moy v. County of Cook,244 IlL. App. 3d 1034 (1993) ............................. 19,20

IlL. Const. art. 7, § 4(c) .......................................... 20

55 ILCS 5/3-4007(b) (2010) ...................................... 20

IlL. Const., art. 7, § 4(b) ......................................... 20

65 ILCS 5/3.1-15-5 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

65 ILCS 20/21-5 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

65 ILCS 20/21-11 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

65 ILCS 20/21-12 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Municipal Code of Chicago, IlL. § 2-4-020 (2011) ..................... 20


II. THE MAJORITY ERRONEOUSLY HELD THAT THEINSPECTOR GENERA HAS CAPACITY TO SUE. . . . . . . . .. 21

A. The City Did Not Grant The Inspector GeneralPower To Sue. ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21

17 McQuilin, The Law of Municipal Corporations § 49:2(3d Ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

3 McQuilin, The Law of Municipal Corporations § 12.40

(3d Ed. 1999) ............................................ 21

Braxton v. National Capital Housing Authority,396 A.2d 215 (D.C. App. 1978) .............................. 21

Des Moines Park Board v. City of Des Moines,290 N.W. 680 (Iowa 1940) .................................. 21

v

Lewis v. City of Chicago,496 F.3d 645 (7th Cir. 2007) ................................ 21

Chan v. Wodnicki,123 F.3d 1005 (1997) ...................................... 21

Dr. Martin Luther King, Jr. Movement Inc. v. City of Chicago,435 F. Supp. 1289 (N.D. IlL. 1977) ........................... 21

Stevanovic v. City of Chicago,385 IlL. App. 3d 630 (1st Dist. 2008) ....................... 21-22

Paredes v. City of Odessa,128 F. Supp. 2d 1009 (W.D. Tex. 2000) ....................... 22

Luysterborghs v. Pension & Retirement Board,927 A.2d 385 (Conn. Super. Ct. 2007) ........................ 22

City Council v. Bowen,649 So. 2d 611 (La. Ct. App. 1994) ........................... 22

Darby v. Pasadena Police Department,939 F.2d 311 (5th Cir. 1991) ................................ 22

Municipal Code of Chicago, IlL. § 2-56-030 (2011) .................... 22

Municipal Code of Chicago, IlL. § 2-60-020 (2011) . . . . . . . . . . . . . . . . . . 22, 24

Municipal Code of Chicago, IlL. § 2-56-040 (2011) .................... 23

U.S. Bank National Association v. Clark,216 ILL. 2d 334 (2005) ...................................... 23

In re Application of County Collector,132 ILL. 2d 64 (1989) ....................................... 23

Municipal Code of Chicago, IlL. § 2-4-020 (2011) . . . . . . . . . . . . . . . . . . . . . . 24


Cinkus v. Vilage of Stickney Municipal Officers Electoral Board,228 IlL. 2d 200 (2008) ...................................... 25

vi

Department of Public Aid v. Kessler,72 ILL. App. 3d 802 (1979) .................................. 26

Burnette v. Stroger,389 ILL. App. 3d 321 (2009) ........................ 26, 27, 28, 29

Burnette v. Terrell,232 IlL. 2d 522 (2009) ...................................... 27

Maloney v. Bower,113 IlL. 2d 473 (1986) ...................................... 27

55 ILCS 5/3-4000 et seq. (2010) ................................... 28

55 ILCS 5/3-4007(b) (2010) ...................................... 28

Johnson v. Halloran,194 IlL. 2d 493 (2000) ...................................... 28

Hubbard v. Board of Trustees of Retirement System,

23 N.W.2d 186 (Mich. 1946) ................................ 29

67 C.J.S. Officers § 227 (2002 & Supp. 2010) ........................ 30

67 C.J.S. Officers § 322 (2002 & Supp. 2010) ........................ 30

Tanner v. Solomon,58 IlL. App. 2d 134 (1965) .................................. 30

B. The Inspector General Can Properly Perform HisDuties Without Independent EnforcementAuthority. ........................................ 31

Municipal Code of Chicago, ILL. § 2-56-030 (2011) . . . . . . . . . . . . . . . . . . . . . 31






Vll


5 U.S.C. App. § 2(A) (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 32

5 U.s.C. App. § 11(2) (2008) .......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

National Aeronautics & Space Administration v. Federal LaborRelations Authority,527 U.S. 229 (1999) ....................................... 32

5 U.S.C. App. § 6(a) (2008) ........... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

5 U.s.C. App. § 6(b) (2008) ......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

5 U.S.C. App. § 3(a) (2008) ......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

5 ILCS 430/20-10 et seq. (2010) ................................... 33

Cook County, ILL., Code of Ordinances § 2-281 et seq. (2011) ........... 33

Houston, Tex., Executive Order No. 1-39 Rev. (Mar. 1,2011),available at http://www.houstontx.gov/legal/1-39.pdf ........... 33

Jacksonvile, Fl., Executive Order 07-09 (Aug. 28, 2007),

available at http://generalcounsel.coj.com/

ExecutiveOrders/2007~09.pdf ............................... 33

City of Los Angeles, Ca., City Charter § 573 (2011),

available at www.amlegal.com/library/ca/osangeles.shtml ....... 33

New York, N.Y., Executive Order No. 16 (July 26, 1978),available at http://www.nyc.gov/html/doi/tml/about/report.shtml#sl .................................... 33

San Jose, Ca., City Charter § 805,

available at http://www.sanjoseca.gov/clerk/charter.asp#Art8 .. 33-34

Philadelphia, Pa., Executive Order No. 4-94 (Nov. 28, 1994),

available at http://www.phila.gov/oig/pdfs/Executive_Order_4-94.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 34

Philadelphia, Pa., City Charter § 4-400 (2011),

available at http://www.amlegal.com/library/pa/philadelphia.shtml ..................................... 34

Vlll

Detroit, Mich. City Charter, art. 7.5, ch. 3 (rev. 2011),available at http://2009dcrc.org/Documents/CC3_Broadside%5B1%5D.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

New Orleans City Code Ordinance § 2-1120 (2011),available at http://www.nolaoig.org/uploads/FilelPolicies/OIG%20ordinance%202-1120%20Rev%20Apr%202011.pdf ....... 34

D.C. Code § 1-301.115a (2011),available at http://government.westlaw.com/inkedslice/default.asp?RS=GVT1.0& VR=2.0&SP=dcc- 1000&Action= Welcome 34

Fuchs v. Bidwill, 65 ILL. 2d 503 (1976) .............................. 35

Municipal Code of Chicago, IlL. § 2-56-040 . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

C. The Majority Erroneously Condoned The InspectorGeneral's Retention Of Private CounseL. ............. 35

Suburban Cook County Regional Office of Education v. Cook County Board,282 IlL. App. 3d 560 (1996) ........................... 36,37,39

55 ILCS 5/3-9008 (2010) ........................................ 37

15 ILCS 205/6 (2010) ........................................... 37

5 ILCS 430/20-45(b) (2010) ...................................... 37

Environmental Protection Agency v. Pollution Control Board,69 IlL. 2d 394 (1977) .................................... 37, 38

Tully v. Edgar,286 IlL. App. 3d 838 (1997) .............................. 38,39

In re Petition of McNulty,60 IlL. App. 3d 701 (1978) .................................. 38

In re Mortimer,44 ILL. App. 3d 249 (1976) .................................. 38

People ex reI. Sklodowski,162 IlL. 2d 117(1994) ...................................... 38

15 ILCS 205/4 (2010) ........................................... 39

ix

105 ILCS 5/3A-15 (2010) ........................................ 39

Municipal Code of Chicago, IlL. § 2-60-020(b) (2011) .................. 39

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

x

NATURE OF THE CASE

The City of Chicago Inspector General's Offce ("I GO") requested that

the City of Chicago Department of Law produce certain documents in

connection with an investigation. The Law Department produced responsive

documents, some in their entirety and others with redactions of information

that was subject to the attorney-client privilege, work-product protection, or

both. The IGO then served a subpoena for unredacted copies of the

privileged documents. After the Law Department timely objected based on

privilege, the Inspector General retained counsel and sued the Corporation

Counsel to compel production of unredacted copies of the documents. The

Inspector General did not dispute that the information was protected by the

attomey-client privilege, but argued that a City department cannot assert

privilege in an IGO investigation.

The circuit court dismissed the complaint on the grounds that the

privilege was available to the City in an IGO investigation and that the

Inspector General lacks the capacity to sue. The Inspector General appealed.

The appellate court, over a dissent, reversed and remanded. The court held

that the dispute was justiciable and that the Inspector General has capacity

to sue, and ordered the circuit court to review the documents in camera and

make factual findings whether they are privileged. This court allowed the

Corporation Counsel's petition for leave to appeaL. All questions are raised

on the pleadings.

1

ISSUES PRESENTED

1. Whether the courts lack subject matter jurisdiction over a

dispute between the heads of two administrative divisions of the same

municipal corporation.

2. Whether the Inspector General lacks the capacity to sue,

because he is an arm of municipal government rather than a distinct legal

entity; the relevant ordinance does not give him litigating authority; and a

court lacks the power to appoint counsel to represent him.

JURISDICTION

The circuit court entered judgment dismissing the complaint on April

21,2010. C. 128; A64.i The Inspector General filed a notice of appeal on

April 27,2010. C. 129; A22. The appellate court had jurisdiction pursuant to

IlL. Sup. Ct. R. 303. On April 29, 2011, the appellate court reversed the

judgment of the circuit court and remanded. A2-A21. The Corporation

Counsel timely filed a petition for leave to appeaL. This court allowed the

Corporation Counsel's petition on September 28,2011, AI, and has

jurisdiction pursuant to IlL. Sup. Ct. R. 315.

i The record on appeal consists of one volume of common law record,

cited as "C._," and a report of proceedings, cited as "Tr. _."

2

ORDINANCES INVOLVED

The following sections of the Chicago Municipal Code are set forth in

the appendix to this brief:

Mayor's appointment powers and duties:Municipal Code of Chicago, IlL. § 2-4-010 (2011)

Mayor's supervisory authority:Municipal Code of Chicago, IlL. § 2-4-020 (2011)

Mayor's ordinance enforcement authority:Municipal Code of Chicago, IlL. § 2-4-030 (2011)

Office of Inspector General:Municipal Code of Chicago, ILL. §§ 2-56-010 to 2-56-170 (2011)

Corporation Counsel - Appointment - Powers and duties:Municipal Code of Chicago, IlL. § 2-60-020 (2011)

STATEMENT OF FACTS

On November 4,2009, First Deputy Inspector General Mary Hodge,

through counsel the IGO had retained, filed this action in her official capacity

against the City's former Corporation Counsel in her official capacity. C.3-

12. In December 2009, after the City Council confirmed Joseph Ferguson as

Inspector General, he was substituted as plaintiff. C.46.2 The complaint

alleged as follows. In January 2007, the IGO began investigating the

involvement of former and current City employees in the City's award of a

sole-source contract to a former City employee, and ultimately conducted

2 The current Corporation Counsel was substituted in this court by

order of October 18, 2011.

3

multiple interviews and reviewed documents from five City departments or

offices. C. 6 'H'H 12, 14. As part of the investigation, on August 15, 2008, the

IGO requested in writing that the Law Department turn over all documents

relating to the contract award. C. 6 'H 15. The Law Department produced

responsive documents, but redacted some based on claims of attorney-client

privilege and/or work-product protection. C. 6 'H 15; C. 22-23. The IGO

responded that it believed a City department may not assert privilege in an

IGO investigation. C. 7 'H 17. On October 8, 2009, the IGO served a

subpoena on the Corporation Counsel seeking unredacted copies of the

documents. C.21. The Corporation Counsel objected to the subpoena and,

following unsuccessful negotiations, refused to produce the documents

without redactions. C. 6 'H'H 20-22. According to the complaint, this

prevented the IGO from completing its investigation. C. 6 'H 24. The

complaint sought a declaration that the Corporation Counsel may not assert

privilege in response to a request for documents by the IGO as part of an

"official IGO investigation"; a writ of mandamus compelling the Corporation

Counsel to disclose the withheld information; and an order enforcing the

subpoena. C. 9-12.

The Corporation Counsel moved to dismiss the complaint pursuant to

735 ILCS 5/2-619 and 5/2-615 (2010). C. 46-47, 52-70. The Corporation

Counsel argued that dismissal was warranted because chapter 2-56 of the

Chicago Municipal Code, which creates the IGO and defines its powers ("IGO

4

ordinance"), does not abrogate the attorney-client privilege and, in any event,

the Corporation Counsel is barred by the rules of professional conduct from

disclosing confidential client communications, even to the IGO, without the

clients' informed consent; that the Inspector General lacks the capacity to

sue; and that the court lacks jurisdiction to entertain a dispute between two

officers of the same govemmental entity in their official capacities. C. 56-68.

In response, the Inspector General did not doubt that the attorney-

client privilege was available to the City under other circumstances, but

argued that the privilege was unavailable in the context of an IGO

investigation. C.95-102. The Inspector General also argued that he has

authority to sue to enforce a subpoena. C. 102-04.

The Corporation Counsel replied that Illinois law applies the privilege

to a municipal corporation to the same extent as to a private entity, that the

IGO ordinance expressly permits objections to subpoenas, and that the

parties' interests here are adversarial rather than common. C. 112-18. The

Corporation Counsel also argued that the Inspector General has no common-

law authority to sue. C. 118-20.

Mter oral argument, Tr. 5-41; A26-A62, the court granted the motion

to dismiss, concluding that the Corporation Counsel had properly invoked

privilege and that the Inspector General lacks the capacity to sue, Tr. 38-41;

A59-A62; C. 128; A64.

The Inspector General appealed, C. 129; A22, and the appellate court,

5

by a 2 to 1 vote, reversed and remanded, A2-A2L. Citing cases that did not

address justiciability or involve disputes between two heads of municipal

departments, the court held it had jurisdiction because it had "considered

analogous situations in the past," and was "wiling to do so again." A8.

Next, the majority held the Inspector General had capacity to sue the

Corporation Counsel and could retain his own attorney to do so. A9-A16. In

reciting the applicable ordinances, the majority recognized that the

Corporation Counsel is charged with conducting "all the law business" of the

City. A4. The court nevertheless concluded that the prohibition of the IGO

ordinance that the Inspector General "shall take no action to enforce (a)

subpoena" or "to initiate prosecution" for seven days after an objection is

made, indicated that "at least in the limited situation where the Corporation

Counsel is served with a subpoena by the Inspector General and objects to its

enforcement. . . the Inspector General may seek to enforce the subpoena in

the circuit court by hiring its own counseL" A11-A13. The majority stated

that requiring the Inspector General to take to the Mayor a dispute with the

Corporation Counsel would "tie (his) hands." A15. The majority also ruled

that the Inspector General could retain private counsel without involving the

Corporation CounseL. A16. Finally, the majority declined the Inspector

General's request for review of the "finding" that the attorney-client privilege

was available absent information "concerning the documents at issue," such

as their authors and recipients. A18. The court remanded for the "limited

6

purpose" of in camera review of and factfinding about the documents. A18.

The dissent observed that the Inspector General's subpoena power is

"administrative, and the scope is circumscribed by the plain language of the

ordinance: a dispute over enforcement ultimately lands on the desk of the

mayor, who must decide how to resolve it." A20. The dissent further

explained that "(tlo grant to the Inspector General the power to bypass the

city's attorney and the mayor himself and seek a declaratory judgment on the

nature and extent of his power is to grant to a city officer appointed by the

mayor powers the city council did not (and probably could not) delegate."

A20. The Municipal Code "provides that where the legislation does not

explicitly provide for enforcement, the mayor is the enforcement officer."

A20. The dissent also observed that "(tlhe case cited by the majority in

support of its conclusion" was "not persuasive." A20. There was "(nJo

pronouncement" in the case law that Inspectors General are independent

agencies, and Inspectors General "remain, at the city, county and state level,

offices within units of government." A20. They "do not have a legal existence

independent of the unit of government of which they are a part." A21.

ARGUMENT

In this lawsuit, the Inspector General retained private counsel and

sued the Corporation Counsel, attempting to cast aside the vital and well-

established attorney-client privilege. The case lacks a valid legal basis and

the circuit court properly dismissed it. There is no jurisdiction over the

7

dispute, and the Inspector General lacks capacity to sue. The appellate

court's contrary decision is unsupportable.

As an official-capacity suit by one appointed head of a municipal office

against another, both of whom lack legal existence independent from the

City, this is an intra-municipal dispute over which the courts lack

jurisdiction. Instead, such disputes must be resolved internally by the

Mayor. The appellate court erroneously found the action justiciable, relying,

without explanation, on cases that did not address justiciabilty and involved

the county or elected officials. But this dispute is not comparable; the

structure of county government is materially different from that of a

municipal corporation, and this case involves appointed officials whom the

Mayor supervises.

The Inspector General also lacks authority to bring suit. Nothing in

the IGO ordinance grants the Inspector General independent legal existence

or the power to bring lawsuits for the City. Rather, the Municipal Code vests

all authority over the City's legal affairs in the Corporation Counsel alone.

In finding capacity to sue, the appellate court ignored the grant of exclusive

litigating authority to the Corporation Counsel and read authority into the

IGO ordinance that the City Council did not include. The Inspector General

must adhere to the limits that the City Council imposed, and has ample tools

to perform his functions effectively without the power to sue. Likewise,

because the Corporation Counsel alone has litigating authority under the

8

Code, there was no basis for the appellate court's related determination that

the Inspector General could retain an attorney without the involvement of

the Corporation CounseL.

This court reviews a dismissal under section 2-619 de novo. See,~,

Wackrow v. Niemi, 231 IlL. 2d 418,422 (2008). Under this standard, the

judgment of the appellate court should be reversed and the Inspector

General's complaint should be dismissed. The appellate court's decision

improperly makes courts the arbiters of internal governmental disputes,

upends settled statutory construction principles, and runs afoul of

fundamental rules and constitutional limitations regarding the organization

of a municipal corporation.

I. THIS is A NONJUSTICIALE INTRAMUNICIP AL DISPUTE.

Whether claims are justiciable is a question of law that is reviewed de

novo. See Lyons v. Ryan, 201 Ill. 2d 529,534 (2002). By holding that the

courts have jurisdiction over this suit between two parts of City government,

the appellate court's decision contravenes the rules that a party cannot be

both plaintiff and defendant in the same case and that intramunicipal

disputes are nonjusticiable.

A. The Courts Lack Jurisdiction Over A Suit By OneCity Department Against Another City Department.

In Tanner v. Solomon, 58 ILL. App. 2d 134 (1965), one member of a

municipal board sued the other board members for declaratory relief, alleging

they had permitted applicants who did not meet applicable criteria to become

9

police officers or to become eligible for such positions. See id. at 135-36. The

court held that the plaintiff, who sued in his capacity as a member of the

board rather than as a taxpayer, did not have an interest sufficient to confer

standing. See id. at 138. Rather, he raised an "intra-agency disputer )," in

which ''judicial interference" was inappropriate. Id. And, since standing is a

"component of justiciability," In re Estate of Wellman, 174 ILL. 2d 335, 344

(1996), which must exist for the court to have subject matter jurisdiction, see,

~, Bellevile Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 IlL. 2d 325,

334 (2002), it follows that a court lacks jurisdiction to entertain

intramunicipal disputes.

This case, too, pits members of the same legal entity against each

other. The Inspector General brought suit in his official, not individual,

capacity; and he has sued the Corporation Counsel in that officer's official,

not individual, capacity as welL. To begin with an issue on which even the

Inspector General has offered no disagreement, a complaint filed against a

municipal officer in his official capacity is an "action against the

governmental entity of which the (official) is a part." Schlicher v. Board of

Police & Fire Commissioners, 363 IlL. App. 3d 869,883 (2006); see also,~,

City of Elmhurst v. Kegerreis, 392 IlL. 195,204 (1945). Thus, it is clear that

this suit against the Corporation Counsel in his official capacity is a suit

against the City. It is equally clear that the City, like any party, "'may not be

both plaintiff and defendant in an action.'" City of Chicago v. Beythel

10

Outcast Church, 375 IlL. App. 3d 317,320 (2007) (quoting Hume v. Town of

Blackberry, 131 IlL. App. 3d 32, 35 (1985)). Accordingly, for the Inspector

General or his office to maintain a suit against the City, he must somehow

have a legal existence separate from the City as a whole. As we now explain,

there can be no question that the IGO, like any other division of City

government, lacks that separate legal existence. This lawsuit, therefore, is

effectively an action by and against the City.

A municipality is organized as a corporation, see,~, Johnston v. City

of Chicago, 258 ILL. 494,499 (1913); Kinzie v. Trustees of the Town of

Chicago, 3 IlL. 187, 1839 WL 2873, at *1 (1839); see generally 1 Eugene

McQuilin, The Law of Municipal Corporations § 2.07.10 (3d Ed. 1999), that

is, a "single legal entity independent of its officers," Darby v. Pasadena Police

Department, 939 F.2d 311, 313 (5th Cir. 1991).

As such, municipalities derive their existence from the State. 1 McQuilin,

supra, §§ 2.02, 2.03; see also, ~, City of Trenton v. State of New Jersey, 262

U.S. 182, 189 (1923) (municipal corporation is a "political subdivision of the

State" that "exists by virtue of the exercise of the power of the state through

its legislative department") (internal quotations omitted). As a special

charter municipality, Chicago was established by and retains the governing

structure Illinois imposed by charter in the nineteenth century, even though

the Illinois Constitution of 1970 added home-rule powers. See Maureen A.

Flanagan, Municipal Charters, The Electronic Encyclopedia of Chicago

11

(Chicago Historical Society 2005), http://encyclopedia.chicagohistory.org/

pages/231.html; see also Maureen A. Flanagan, Charter Reform in Chicago

157 (1987) (Chicago "stil has a nineteenth-century type of municipal

government"). And the City's charter makes clear the City is a single legal

entity: "The inhabitants of said city shall be a corporation by the name of the

City of Chicago; and by that name sue and be sued, complain and defend in

any court. . .." Second Charter (the Consolidating Act of February 14, 1851),

reprinted in 2 Edmund J. James, The Charters of the City of Chicago 132

(1898) (available at http://www.archive.org/stream/

charterscitychiOOiligoog#page /n6/mode/2up); cf. 65 ILCS 5/2-2-12 (2010)

(city incorporated under Illinois Municipal Code is body "politic and

corporate" that may sue and be sued in corporate name).

To be sure, a municipality may create departments or offices to

conduct certain activities on behalf of the municipality, see 3 McQuillin,

supra, § 12.39, and home-rule municipalities are empowered to "provide for

(their) officers, their manner of selection and terms of office," either through a

referendum or as "otherwise authorized by law," IlL. Const. art. VII, § 6(D.

But simply creating an office or department is not sufficient to make it a

legal entity separate from the municipal corporation itself; rather, the

department or office must become a corporation in its own right. See 3

McQuilin, supra, § 12.40 (municipal department that is not a corporate body

cannot be sued or sue); see also,~, Braxton v. National Capital Housing

12

Authority, 396 A.2d 215, 216-17 (D.C. App. 1978) (per curiam) ("A

noncorporate department or other body within a municipal corporation is not

sui juris."); Des Moines Park Board v. City of Des Moines, 290 N.W. 680, 681

(Iowa 1940) (city park board lacked "independent or corporate existence").

Consistent with these principles, the courts have repeatedly held that

City departments have no legal existence independent from the City itself.

See, ~, Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir. 2007) (City

was "real party in interest" in suit naming Chicago Police Department as

defendant) (citing Chan v. Wodnicki, 123 F.3d 1005, 1007 (1997)). See also,

~, Dr. Martin Luther King, Jr. Movement Inc. v. City of Chicago, 435 F.

Supp. 1289, 1294 (N.D. IlL. 1977) (Department of Streets and Sanitation does

not "enjoy independent legal existence"); Stevanovic v. City of Chicago, 385

IlL. App. 3d 630, 631 (2008) (noting dismissal of Chicago Fire Department

"because it is not a legal entity separate from the City"). Cases discussing

other municipalities are to the same effect. See also,~, Paredes v. City of

Odessa, 128 F. Supp. 2d 1009, 1013 (W.D. Tex. 2000) (police department was

"not a separate legal entity apart" from municipality); Luysterborghs v.

Pension & Retirement Board, 927 A.2d 385,387-88 (Conn. Super. Ct. 2007)

(since state law did not treat municipal departments as distinct legal

entities, municipal pension board was not a juridical entity); City Council v.

Bowen, 649 So. 2d 611,616 (La. Ct. App. 1994) (city council was part of

larger body politic).

13

Thus, unless the municipality provides otherwise, see 17 McQuilin,

supra, § 49:2, officers who head municipal departments and offices are

members of the same legal entity - the municipal corporation - and an

official-capacity dispute between them is an intracorporate matter not subject

to judicial resolution. The City has taken no such steps to so dramatically

alter its corporate structure.

Indeed, this sort of change to the City's corporate structure could be

done, if at all, only by referendum. The Illinois Constitution requires

"approval by referendum" for a home-rule unit like the City to "adopt, alter,

or repeal a form of government provided by law." IlL. Const. art. 7, § 6(D.

The Inspector General exercises an executive function in City government.

But central to the City's form of government is that it has a unitary

executive. In other words, the Mayor alone exercises final executive

authority. The Mayor is the "chief executive (municipal) officer," 65 ILCS

5/3.1-15-10 (2010); Municipal Code of Chicago, IlL. § 2-4-030; see also Second

City Charter (the Consolidating Act of February 14, 1851), reprinted in 2

James, supra, at 140, and, as such, "supervise(s) the conduct of all" City

officers, Municipal Code of Chicago, Ill. § 2-4-020. This includes the

Inspector General, who is appointed by the Mayor, see Municipal Code of

Chicago, IlL. § 2-56-020. Indeed, the Inspector General is specifically

required to report to the Mayor on the progress of his investigations and

provide an explanation if any investigation remains open for more than a

14

year. See Municipal Code of Chicago, ILL. § 2-56-080. Moreover, the

Municipal Code requires the Inspector General to "report to the mayor

concerning results of investigations undertaken by (the IGO)," Municipal

Code of Chicago, IlL. § 2-56-030(d), and file his reports, which include

recommendations for discipline, with the Mayor, see id. at § 2-56-060. In

turn, the Municipal Code, as part of the Mayor's supervisory authority,

requires the Mayor to "examine the grounds of all reasonable complaints

made against any (City officer) and cause their violation of duty and other

offenses, if any, to be promptly punished." Id. at § 2-4-020.

It follows that any attempt by the City Council to create an appointed

officer who is legally independent from the City itself would alter the City's

form of government. It would strip the Mayor of some of his executive power

and reallocate it to another official, granting that official final authority, at

least in his field of responsibility. A change in the relationship of legislative

and executive branches of municipal government is subject to the referendum

requirement under the Illinois Constitution. See,~, Pechous v. Slawko, 64

IlL. 2d 576, 582 (1976); Peters v. City of Springfeld, 57 IlL. 2d 142, 149 (1974);

David C. Baum, A Tentative Survey of Illinois Home Rule (Part 1): Powers

And Limitations, 1972 U. IlL. L.F. 137, 148-50 (1972). Legal independence for

the Inspector General would fall within this principle, because it would mean

that the legislative branch took some final decisionmaking authority from the

Mayor and gave it to the Inspector GeneraL. Here, the City did not take that

15

step to make the Inspector General legally distinct from the municipal

corporation. Nor did the State attempt to do so; the Illinois Municipal Code

does not even address the subject of municipal inspectors general.3

Accordingly, the IGO has no different legal status than any other

administrative division of City government. A suit by the Inspector General

in his official capacity against the Corporation Counsel in his official capacity

is therefore nonjusticiable.

B. The Appellate Court Supplied No Valid Legal BasisFor Its Jurisdictional Ruling.

In addressing justiciability, the appellate court did not attempt to

distinguish Beythel Outcast Church, and purported to distinguish Tanner on

the ground that here, "we do not have one individual suing another

individual from the same body but instead have the head of one municipal

office suing the head of a different municipal office." A8. If this is a

distinction at all, it is immateriaL. As we explain above, municipal officials

sued or suing in their official capacity as the head of a municipal office are

3 The General Assembly plainly knows how to create legally distinct

local governmental entities when it wants to do so. It has created a numberof special districts operating within the City, including the Chicago TransitAuthority, see 70 ILCS 3605/3, 3605/5 (2010) (creating a "body politic andmunicipal corporation under the name Chicago Transit Authority"); theChicago Park District, see 70 ILCS 1505/3 (2010) ("the Chicago Park Districtshall constitute a body politic and corporate"); the Chicago Board ofEducation, see 105 ILCS 5/34-2 (2010) (Chicago Board of Education is "a bodypolitic and corporate"); and the City Colleges of Chicago, see 110 ILCS 805/3-11 (2010) (board of each community college district is a "body politic andcorporate").

16

not legally distinct from the City itself. Thus, a suit between them is a suit

by the City against itself, and is not justiciable.

Beyond that, the court's singular stated basis for allowing the suit to

proceed was that it had "considered analogous situations in the past and

(was) wiling to do so again." A8. But the prior cases do not support the

holding on justiciability. To begin with, none of them even discusses or

mentions justiciability, so none is authoritative on that issue. The appellate

court did not explain why those cases should nevertheless be followed here.

In fact, any analogy to the prior cases is at best superficiaL. None was

an action between two appointed heads of municipal offices or departments.

Two were disputes within county rather than municipal government, see

Burnette v. Stroger, 389 IlL. App. 3d 321, 322 (2009) (Cook County public

defender sued Cook County board president); Read v. Sheahan, 359 IlL. App.

3d 89, 90 (2005) (members of Cook County Board of Corrections sued Cook

County sherifD, and the third was an action by elected members of a

municipality's legislative branch against the elected head of its executive

branch, see Sampson v. Graves, 304 IlL. App. 3d 961,962-63 (1999) (City of

Harvey aldermen sued city's mayor). These cases are readily

distinguishable. The county cases, Read and Burnette, may be put to the

side for at least two reasons: first, municipal and county governments have

distinct legal structures, and second, those cases also involved one or more

elected officials while this case involves only appointed ones. As for

17

Sampson, it involved a municipality, but was a suit between elected officials.

Municipal and county governments are materially different.

Municipal corporations are organized primarily to give "inhabitants of a

specified territory. . . the powers of local self-government," while counties are

quasi-municipal corporations - they possess some attributes of a municipal

corporation but lack corporate status, and are organized for the purpose of

exercising some state government functions and not exclusively for the

benefit of citizens within their boundaries. 1 McQuillin, supra, §§ 2.46,

2.46.10; see also,~, Edward J. Berwind, Inc. v. Chicago Park District, 393

Ill. 317,335 (1946) (municipal corporations are created "'at the direct

solicitation or by the free consent'" of their inhabitants, while counties, as

"'quasi municipal corporations,'" have a few characteristics of corporate

existence but are created by the sovereign "'without any particular

solicitation, consent, or concurrent action of the people who inhabit them"')

(quoting West Chicago Park Commissioners v. City of Chicago, 152 IlL. 392,

403-404 (1894)).

Consistent with this peculiar structure, counties, including home-rule

units like Cook County, must by law include a number of offices that, because

they are state-created and perform some state functions, are not mere arms

of county government. See,~, Lily v. County of Cook, 60 ILL. App. 3d 573,

579-80 (1978) (county commission created by state statute "was something

more than a mere department of County government"). State-created offices

18

performing state functions at the county level include the State's attorney,

see 55 ILCS 5/3-9001 et seq. (2010); the public defender, see id. § 5/3-4000 et

seq.; and the department of corrections, see 55 ILCS 5/3-15001 et seq. (2010),

which until 2008 included the board of corrections, see 55 ILCS 5/3-15004

(2006). The State requires counties to have a sheriff as well. See IlL. Const.

art. VII, § 4(c); see also 55 ILCS 5/3-6001 (2010) (sheriff is commissioned by

the Governor). Because counties lack a corporate structure and include

officials performing state functions, there may be room for judicial resolution

of a dispute between certain county officers or agencies. At a minimum, it is

clear such a dispute would not be an intracorporate matter.

Disputes involving elected officials, whether at the county or municipal

level, are also different. The distinction between elected and appointed

officials is significant. Elected officials do not have a supervisor, as

appointed officials do, and answer instead to the electorate. Thus, unlike

appointed officials, they cannot simply take their disputes to a superior for

resolution.

These principles preclude any meaningful attempt to liken the present

case with Read, Burnette, and Sampson. Read was a suit between state-

created entities performing state functions: the sheriff and the board of

corrections. And the state statutes defining the Sheriffs powers "manifest

the Sheriffs independence. . . from the control of the county board." Moy v.

County of Cook, 244 IlL. App. 3d 1034, 1039 (1993). In addition, the sheriff

19

and the board stood apart because the sheriff is elected. See IlL. Const. art. 7,

§ 4(c). As an elected official, he "answers only to the electorate, not to the

county board." Moy, 244 IlL. App. 3d at 1039. Similarly, Burnette was an

action by one state-created official performing state functions, the public

defender, see 55 ILCS 5/3-4007(b) (2010), against the elected President of the

Cook County Board of Commissioners, see IlL. Const., art. 7, § 4(b). And

although Sampson did involve a municipality, it was an action between

elected officials. See 304 IlL. App. 3d at 962-63 (City of Harvey aldermen

sued city's mayor).4 This case involves two appointed municipal officials

whom the Mayor supervises. See Municipal Code of Chicago, IlL. §§ 2-4-020

(2011); see also id. § 2-4-010 (Mayor appoints all City officers except where a

statute provides otherwise). This means that disputes between appointed

officials wil be resolved by the Mayor rather than a court.

In sum, the appellate court improperly relied on cases involving county

or elected officials to allow this intramunicipal lawsuit to proceed. Those

cases do not even discuss jurisdiction and are not analogous. This approach

threatens to wreak havoc in the affairs of municipalities throughout Illinois,

because the court identified no limit to the kinds of disputes within a

4 Some elected municipal officials - the mayor, aldermen, city clerk,

, and city treasurer - are provided for by statute. See 65 ILCS 5/3.1-15-5(2010) (Illinois Municipal Code); 65 ILCS 20/21-5, 21-11, 21-12 (2010)(Revised Cities and Vilages Act of 1941). But their function is strictly local,unlike the county officials we have discussed. The question whether electedofficials of a municipal corporation may sue independently of themunicipality in their official capacity is not presented in this case.

20

municipal corporation that are justiciable. The judgment should be reversed.

II. THE MAJORITY ERRONEOUSLY HELD THAT THEINSPECTOR GENERAL HAS CAPACITY TO SUE.

The majority below also held that the Inspector General has the power

to retain an attorney and fie a lawsuit to enforce a subpoena without

involving the Corporation CounseL. This holding was also erroneous and

should be overturned.

A. The City Did Not Grant The Inspector GeneralPower To Sue.

"Unless the political entity that created the department (of a city) has

taken explicit steps to grant that department the authority, the department

lacks the capacity to sue or be sued." 17 McQuillin, supra, § 49:2. The City

took no steps, explicit or otherwise, to grant the IGO or the Inspector General

the capacity to sue. As we explain above, the IGO is but an arm of City

government, without a separate legal existence from the City itself. This

means not only that a lawsuit by him against another City department is

nonjusticiable, but more generally that the Inspector General lacks the

capacity to sue at alL. Again, the various divisions of a municipal corporation

do not have their own corporate status; without that, they lack the capacity

to bring lawsuits or be sued. See,~, 3 McQuillin, supra, § 12.40; Braxton,

396 A.2d at 216-17; Des Moines Park Board, 290 N.W. at 681. See also,~,

Lewis, 496 F.3d at 656 (citing Chan, 123 F.3d at 1007); Dr. Martin Luther

King, Jr. Movement, 435 F. Supp. at 1294; Stevanovic, 385 IlL. App. 3d at

21

631; Paredes, 128 F. Supp. 2d at 1013; Luysterborghs, 927 A.2d at 387-88;

Bowen, 649 So. 2d at 616. As one court has pointedly stated, a suit against a

municipal department (there, a police department) could not proceed any

more than one could "against the accounting department of a corporation."

Darby, 939 F. 2d at 313. Nor did the State take any action to grant the

Inspector General independent legal status, as we have also explained. And

without legal status, the Inspector General cannot sue or be sued.

Because the Inspector General lacks capacity to independently sue in

his own name, the suit he filed here is, at most, a suit by the City. But the

Inspector General has no authority to bring litigation on behalf of the City,

either. The IGO ordinance delineates all of the IGO's powers, which for the

most part are merely investigatory. See Municipal Code of Chicago, IlL. § 2-

56-030(b), (d), (e), (h) (2011). Indeed, the IGO ordinance gives the Inspector

General no litigating authority of any kind. Rather, the City Council vested

that authority and related powers in the Corporation Counsel alone. The

Corporation Counsel has the duty to "(s)uperintend and conduct all the law

business" of the City, id. § 2-60-020(a), and to "(a)ppear for and protect" the

City's rights and interests in litigation, id. § 2-60-020(b). Accordingly, the

Inspector General - or, for that matter, any City officer other than the

Corporation Counsel - cannot sue on the City's behalf without the

Corporation CounseL.

In holding otherwise, the majority below relied on the requirement

22

that the Inspector General, for seven days after receiving a timely objection

to a subpoena, "take no action to enforce" the subpoena or "to initiate

prosecution" of the objector. Municipal Code of Chicago, IlL. § 2-56-040; see

A13. The majority found the "most natural reading" of this to be that after

seven days, the Inspector General himself may take "some sort of

enforcement action," A13, even though it acknowledged that the ordinance

actually does not "direct the Inspector General's actions" when negotiations

to resolve a timely objection fail, A11. But the "most natural reading" of

"take no action to enforce" is simply that there is a seven-day period of no

activity to enforce. The ordinance does not remotely express what the

Inspector General may do after seven days. And the provision that within

the seven-day period the Inspector General shall take no action to "initiate

prosecution," rather than "to prosecute," recognizes that the Inspector

General is a step removed from prosecution.

In creating independent litigating authority after seven days, the

majority overstepped. Where statutory language is clear, it must be given its

plain and ordinary meaning; a court may not "construe a statute by altering

its language in a way that constitutes a change in the plain meaning" of the

statute. U.S. Bank National Association v. Clark, 216 IlL. 2d 334,346

(2005).5 The majority opinion contravenes this rule in two ways: it grants

5 The same rules govern interpretation of statutes and ordinances.

See, ~, In re Application of County Collector, 132 IlL. 2d 64, 72 (1989).

23

the Inspector General authority that is not in the IGO ordinance, and it fails

to give effect to the ordinance reposing in the Corporation Counsel alone the

authority over "all the law business" of the City. Municipal Code of Chicago,

IlL. § 2-60-020(a). Subpoena enforcement is part of the City's "law business,"

so any enforcement by the Inspector General displaces the exclusive power of

the Corporation CounseL.

It does not matter why the Inspector General wants the power to take

a subpoena to court for enforcement - whether because of a conflict with the

Corporation Counselor otherwise. He lacks that authority regardless of the

reason the Corporation Counsel declines to proceed on a subpoena. In that

event, as the dissent here recognized, the dispute "lands on the desk of the

mayor, who must decide how to resolve it." A20. As we have noted, the

Mayor has supervisory authority over City officials, see Municipal Code of

Chicago, ILL. § 2-4-020, so a conflict between such officials is appropriately

resolved by him.

In addition, as the City's "chief executive officer," the Mayor "shall

have authority to act, or to designate the officer who shall act, in the

enforcement of any ordinance of the city in all cases where an ordinance fails

to specify the officer who shall be charged with the duty of enforcement."

Municipal Code of Chicago, IlL. § 2-4-030 (2011). Again, even the majority

acknowledged that the IGO ordinance does not expressly direct the Inspector

General's action or set out enforcement procedures when an objection to a

24

subpoena reaches an impasse. See AlL. When there is a perceived gap in

enforcement authority - whether because the Corporation Counsel has an

apparent conflict of interest or otherwise - the authority to resolve such

issues plainly belongs to the Mayor under section 2-4-030. The majority cast

aside this provision on the basis that it "merely gives the mayor the authority

to act. . .. It does not provide that the mayor is the sole enforcement officer."

A12-A13. But this is a default provision, so it comes into play whenever

there is no other enforcement officer. And while the majority speculated

there could be other officers with ultimate default enforcement authority, the

ordinance certainly does not identify one; nor would it make sense for there

to be a gap in authority under the default provision itself. By contrast, giving

the chief executive that authority makes perfect sense.

Reading the IGO ordinance in conjunction with the Corporation

Counsel ordinance and the provisions regarding the authority of the Mayor,

it is plain that the Inspector General must take enforcement issues to the

Corporation Counsel, and, if there is a disagreement, to the Mayor. There is

no authority for the Inspector General to simply retain his own counsel and

sue. This construction is faithful to the rule of statutory construction that

legislation should be read in harmony with other provisions pertaining to the

same subject. See,~, Cinkus v. Vilage of Stickney Municipal Officers

Electoral Board, 228 IlL. 2d 200, 218 (2008). Here, the subject of enforcement

generally is covered by the ordinances on the Mayor's and the Corporation

25

Counsel's authority, which can easily be read consistently with the IGO

ordinance's reference to "take no action to enforce" or "initiate prosecution."

When the time comes for action, the Inspector General must ask the

Corporation Counsel to pursue enforcement, and then take any dispute with

the Corporation Counsel to the Mayor. Unlike the majority's reading, this

construction is consistent with both the Municipal Code and the very

structure of municipal government.

None of the cases the majority cited supports its decision. The

majority looked to Department of Public Aid v. Kessler, 72 IlL. App. 3d 802

(1979), see A11-A12, even though it acknowledged that Kessler did not

address which state agency or office was the "proper party" to bring the

enforcement action there, A12. And the agency that issued the subpoena in

Kessler was being represented by the Attorney General, see 72 IlL. App. 3d at

803, not outside counsel retained by that agency. Thus, while the court found

that "the absence of standards and procedures" for enforcement in a statute

granting a state agency the power to issue subpoenas did not show that the

agency lacked enforcement authority, id. at 804, the court did not suggest

that government agencies may independently enforce subpoenas without the

government's lawyer. In any event, whatever else can be said of Kessler, it

plainly does not bear on the capacity to sue of a municipal, as opposed to a

state, department or office.

Burnette v. Stroger, 389 IlL. App. 3d 321 (2009), see A13-A14, does not

26

support the majority's position, either, as the dissent recognized, A20-A21.

That case involved the county board president's decision to layoff certain

employees and to require other personnel in the Public Defender's office to

take unpaid furlough days. See 389 IlL. App. 3d at 322. The Public Defender,

through appointed counsel, challenged the president's decision, and the

president moved to dismiss on the ground, among others, that the Public

Defender lacked the capacity to sue. See id. at 323-25. The appellate court

disagreed, explaining that under the applicable statutory scheme, the Public

Defender was entitled to indemnification and partial immunity, which clearly

contemplated that he could sue; and that this court had "repeatedly"

permitted public defenders to sue to "protect and define" their authority. Id.

at 328-29. And as the dissent noted, Burnette relied on case law recognizing

the "unique role of public defenders as independent agencies within the

criminal justice system." A20. See Burnette, 389 IlL. App. 3d at 328 (citing,

among others, Burnette v. Terrell, 232 IlL. 2d 522,539 (2009) (under Counties

Code, Cook County Public Defender has sole authority to assign work to

assistant public defenders); Maloney v. Bower, 113 IlL. 2d 473,479 (1986)

("legislatively created office" of public defender need not take on duties

beyond "important responsibilities" imposed by statute)). None of this is true

of the Inspector General.

Indeed, the Public Defender, as we have noted, unlike the Inspector

General, is not purely an arm of local government, but was separately

27

created by statute, see 55 ILCS 5/3-4000 et seq. (2010), to perform State

functions, like preserving the "fundamental right of the people of the State of

Illinois," including indigent defendants, to "quality representation" in

criminal and related matters, id. 5/3-4000. The Public Defender is part of the

"county public defender systems" that the General Assembly established

"throughout the State." Id. What is more, he receives two-thirds of his

salary from the State, see id. 5/3-4007(b), not the county. Thus, the Public

Defender, while formally a county office rather than an agency of the State,

see, ~, Johnson v. Halloran, 194 IlL. 2d 493,497-98 (2000), stil fits in a

distinctly independent category.

The majority strained to analogize the Inspector General, citing his

role to investigate wrongdoing of other City officials; the duty of City

employees and others to cooperate with IGO investigations; and the Inspector

General's fixed term and protection from removal without cause. See A14-

A15. But the courts have never equated that kind of political independence

with authority to sue. Nor does Burnette's observation that it would "make

no sense to create an entity that could not even defend its right to exist," 389

IlL. App. 3d at 328; A14, support this lawsuit. The State, which has created

suable local entities, as we have observed, likewise created the Public

Defender. In context, then, Burnette's reference to the "right to exist" means

the right to exist as a legally independent, state-created office that is not a

mere arm of county government. That kind of office is not at issue here; the

28

IGO, as a creature of municipal law, has no right to exist as anything other

than an administrative division of the City - and one the City Council could

eliminate altogether at that.

Moreover, in Burnette, the "right to exist" of the Public Defender's

office was actually at stake since it could be unable to meet its statutory

obligation to provide "effective representation" to indigent defendants if the

president of the county board could usurp the Public Defender's authority to

manage his office and make personnel-related decisions. 389 ILL. App. 3d at

331-32. Nothing like the IGO's right to exist is involved here. No litigating

authority is necessary for the Inspector General to investigate, request

information, issue subpoenas, make recommendations, or do anything else

the IGO ordinance authorizes him to do. The Inspector General must do his

job within his limited powers and the structure of the City's government.

The Inspector General has argued that he has, in effect, inherent

authority to sue because the "general rule" is that public officers may sue

commensurate with their public duties, even if no statute expressly confers

such authority. See Answer to Petition for Leave to Appeal 10; No. 1-10-

1152, Reply Brief 5 (App. Ct.). For this proposition, the Inspector General

cited Hubbard v. Board of Trustees of Retirement System, 23 N.W.2d 186,

189 (Mich. 1946), and 67 C.J.S. Officers §§ 227, 322 (2002 & Supp. 2010); but

of these, only Hubbard describes this as a general rule, and it does so based

entirely on Michigan law. That this may be the rule in Michigan does not

29

make it so in Illinois.6 Moreover, the plaintiff in Hubbard was the mayor of a

city, not an appointed official like the Inspector General. As for C.J.S., the

first cited section states only that officers generally have the implied power to

take actions necessary for the effective exercise of their express powers. See

67 C.J.S. Offcers § 227. This is unilluminating, not only because no Illinois

cases are cited, but because it does not say authority to litigate may be

implied or even mention the power to sue. The other section, which also cites

no Illinois cases, characterizes relevant decisions as split on the question

whether authority to sue must be conferred by legislation or may rest on

implied authority "coextensive with (officers') public trusts and duties." Id.

§ 322.7 Nor does anything in the cited sections take account of the

organizational structure of a municipal corporation. The notion that the

Inspector General has implied litigating authority is plainly incorrect.

6 Tanner did not cite Hubbard for the "general rule" the Inspector

General posits, but simply to show that courts have entertained disputesbetween government agencies. See 58 ILL. App. 2d at 137. And the courtwent on to distinguish these cases anyway, on the ground that they did notinvolve one member of a governmental body suing the "other members of thatsame body." Id.

7 Tellingly, the same section states that "plain and unequivocal

words or imperative public necessity" are required for one public board orofficer to sue another board or officer "of the same public corporation toadjust conflicting contentions as to the boundaries of their respective rightsor powers." 67 C.J.S. Officers § 322. Thus, to the extent this section addsanything here, it is that even if justiciable, an intracorporate dispute may notbe litigated without an unambiguous grant of authority or "imperative"public necessity - neither of which the Inspector General has.

30

B. The Inspector General Can Properly Perform HisDuties Without Independent EnforcementAuthority.

Contrary to the majority's decision, requiring the Inspector General to

consult with the Corporation Counsel and, if necessary, the Mayor, does not

"tie (his) hands," render his investigative process "meaningless," A15, or

"frustrate the very purpose for which the (IGO) was created," A10. Among

other things, the Inspector General has all the tools any other investigator

has, plus the power to request information related to an investigation, see

Municipal Code of Chicago, IlL. § 2-56-030(e); examine witnesses under oath,

issue subpoenas compelling the appearance of witnesses and production of

information, and conduct public hearings, see id. §§ 2-56-030(f), (g), (h); and

make recommendations "for correction of any ilegal conduct, inefficiencies or

waste," id. §§ 2-56-030(c), 2-56-065. In addition, the IGO ordinance imposes

a duty to cooperate in IGO investigations on all officers, employees,

departments, agencies, contractors, subcontractors and licensees of the City,

and every applicant for certification of eligibility for a city contract or

program, see id. § 2-56-090; prohibits retaliation for cooperating in an IGO

investigation, see id. § 2-56-100; and authorizes serious penalties - including

fines, imprisonment, or discipline, including discharge - against those who

obstruct an investigation or improperly refuse to cooperate, see id. §§ 2-56-

140, -160. Beyond that, the Inspector General has the authority to share his

investigations with law enforcement agencies, see id. § 2-56-110, all of which

31

have additional tools at their disposal; and may publicly disclose information

concerning his investigations in some circumstances, see id.

Thus, the lack of power to sue does not relegate the Inspector General

to an ineffectual position. Instead, it honors the precise structure that the

City Council, consistent with the organization of municipal government, put

in place: the Inspector General has broad investigative power and political

independence, but his office remains an arm of City government. As the

dissent observed, although the powers of Inspectors General "are broad

within the unit of which they are a part, including the power to share

investigation materials with law enforcement agencies, Inspectors General

do not have a legal existence independent of the unit of local government of

which they are a part." A21.

Indeed, it is not unusual for Inspectors General to lack the authority to

unilaterally sue to enforce subpoenas. Thus, a conclusion here that the

independent power to unilaterally sue to enforce a subpoena is critical to the

very ability of an Inspector General to function would mean federal

Inspectors General and a whole host of others across the State and the

country, who likewise lack that power, are ineffectuaL. For example, the

federal Inspector General Act ("IGA") assigns federal Inspectors General to

operate within each of several federal agencies. See 5 U.S.C. App. §§ 2(A),

11(2) (2008); see also National Aeronautics & Space Administration v.

Federal Labor Relations Authority, 527 U.S. 229, 241 (1999) (under IGA,

32

investigators of the Inspectors General are "employed by, act on behalf of,

and operate for the benefit of' agency of which they are part).. The IGA does

not give those Inspectors General the unilateral power to sue without the

involvement of the Attorney General. In fact, federal Inspectors General are

required to use "procedures .other than subpoenas" to obtain information from

federal agencies, id. § 6(a)(4); see also id. § 6(b)(1), and may issue subpoenas

only to outside parties.8

Similarly, in Illinois, the respective enabling acts give neither the

state Executive Inspectors General, see 5 ILCS 430/20-10 et seq. (2010), nor

the Independent Inspector General of Cook County, see Cook County, Ill.,

Code of Ordinances § 2-281 et seq. (2011), the authority the appellate court

granted the Inspector General here. Many Inspectors General or similar

offices in other cities, including Houston, Jacksonvile, Los Angeles, New

York, and San Jose, also function without an affirmative grant of the power

to unilaterally sue to enforce a subpoena. See Houston, Tex., Executive

Order No. 1-39 Rev. (Mar. 1, 2011); Jacksonvile, Fl., Executive Order 07-09

(Aug. 28, 2007); City of Los Angeles, Ca., City Charter § 573 (2011); New

York, N.Y., Executive Order No. 16 (July 26, 1978); San Jose, Ca., City

8 Federal Inspectors General report to and are subject to the "general

supervision" of the head of the agency or office of which they are a part,although no official within the agency may act to thwart an audit orinvestigation. 5 U.S.C. App. § 3(a).

33

Charter § 805.9

Likewise, there is no basis for the majority's sweeping claim that

absent authority for the Inspector General to sue to enforce a subpoena

against the Corporation Counsel, the Law Department would be "immune

9 While Philadelphia's Inspector General has the power to issue

subpoenas, see Philadelphia, Pa., Executive Order 4-94, available athttp://www.phila.gov/oig/pdfs/Executive_Order_4-94.pdf. the executive orders

defining his powers do not grant him authority to sue, and any enforcementpower he has is subject to the authority of that city's law department to"supervise, direct and control all of the law work of the City," Philadelphia,Pa., City Charter § 4-400 (2011), available at http://www.amlegal.com/library/ pa/philadelphia.shtml. As for other large cities, Baltimore, Detroit,New Orleans, and Washington, D.C., authorize their Inspectors General toenforce subpoenas, but none provides that the Inspector General may file anenforcement action without the City's lawyer. In fact, in Baltimore, even theissuance of a subpoena requires approval of the City Solicitor. Seehttp://www.baltimorecity .gov/Government/ AgenciesDepartments/InspectorGeneral.aspx. And, other than Detroit's enabling legislation, nonestates that the Inspector General may retain counsel to pursue enforcement.See Detroit, Mich. City Charter, art. 7.5, ch. 3 (rev. 2011), available athttp://2009dcrc.org/Documents/ CC3_Broadside%5B1 %5D.pdf; New OrleansCity Code Ordinance § 2-1120 (2011), available athttp://www.nolaoig.org/uploads/FilelPolicies/OIG%200rdinance%202-1120%20Rev%20Apr%202011.pdf; D.C. Code § 1-301.115a (2011), available at http://government.westlaw.com/inkedslice/defaul t.asp?RS=GVTl. 0& VR=2. O&SP=dcc- 1 OOO&Action= Welcome. Notably,

Detroit's revised charter expressly confers authority on the Inspector Generalto retain counsel where he has a conflict of interest with "another branch" ofcity government. See Detroit, Mich., City Charter § 7.5-312. The ChicagoMunicipal Code includes no similar provision.

Links to the sources regarding Inspectors General or similar offices ofHouston, Jacksonvile, Los Angeles, New York, and San Jose are as follows,respectively: http://www .houstontx.gov/legal/1 -39. pdf;http://generalcounsel.coj.com/ ExecutiveOrders/2007 -09. pdf;www.amlegal.com/library/ca/osangeles.shtml;http://www.nyc.govlhtml/doi/tml/about/report.shtml#sl; andhttp://www.sanjoseca.gov/clerk/charter.asp#Art8.

34

from investigation," All, or that "(i)t would be unrealistic and nonproductive

for the Inspector General to request that the Corporation Counsel take action

to enforce a subpoena against her own office," A13. For one thing, the

majority wrongly presumed the Corporation Counsel would not cooperate in

an investigation; the law actually presumes "that a public official performs

the functions of his office according to law, and that he does his duty," Fuchs

v. Bidwil, 65 IlL. 2d 503, 510 (1976) (internal quotations omitted), and in this

context one of those obligations is to cooperate with the IGO.io And, as we

have explained, the Inspector General has extensive investigatory tools and

powers at his disposal, which he can exercise to gather information without

suing the Law Department. He can also recommend discipline or discharge

of employees who wrongfully refuse to cooperate in his investigations, and in

some instances publicize the result of his investigations. And finally, the

Mayor has the authority to intervene, as the majority acknowledged. A15.

C. The Majority Erroneously Condoned The InspectorGeneral's Retention Of Private CounseL.

Regarding appointment of special counsel, the appellate court did what

it claimed it would not do: resolve, among other things, "the procedure to be

followed in the event the Corporation Counsel has a conflict of interest." A9.

In so doing, the majority again found authority where none exists in the IGO

ordinance and ignored the exclusive authority of the Corporation Counsel.

10 The ordinance makes clear that any objection to a subpoena is not

failure to cooperate. See Municipal Code of Chicago, IlL. § 2-56-040.

35

The majority recognized that no ordinance provides for appointment of

counsel where the Corporation Counsel is "interested" in a case, A9, but

nonetheless found the Inspector General "followed proper procedures for the

appointment of special counsel" when he retained counsel, sued, and then

mentioned to the circuit court that it could retroactively approve the

retention, A16. But again, the City Council allocated to the Corporation

Counsel authority over "all the law business" of the City, and it did not

qualify that role where the Corporation Counsel has a conflict. In such

circumstances, the Corporation Counsel may surely as part of this authority

retain counsel for the Inspector General, and if he does not, the Mayor can

resolve the issue. Accordingly, the majority overstepped in concluding that

the Inspector General could proceed to court with his own attorney and seek

the court's after-the-faet approvaL. Indeed, allowing such an action could

make the City financially responsible for the costs of litigation over which its

chief executive and chief legal officer would have no control.

On this point, the majority relied on Suburban Cook County Regional

Office of Education v. Cook County Board, 282 IlL. App. 3d 560 ("Suburban

ROE") (1996), see A16, but that case is inapposite. There, a regional

superintendent of schools, an elected official, asked the State's Attorney to

represent him in a àispute with the county board over funding. See id. at

563-64. When the State's Attorney, citing his obligation to represent the

board, declined to represent him, the superintendent retained private

36

counsel, sued the board, and petitioned the court to appoint his counsel as a

special State's Attorney under 55 ILCS 5/3-9008 (2010) (where State's

Attorney is sick or absent, unable to attend, or "interested" in a proceeding,

court may appoint counsel). See 282 ILL. App. 3d at 567-68. The circuit court

denied the petition but appointed a special Attorney General instead. See id.

at 568. Noting that the superintendent was entitled by statute to have the

State's Attorney rather than the Attorney General represent him, the

appellate court held, among other things, that although the State's Attorney

was not "interested" in the action as the appointment statute uses that term,

he had a conflict of interest that the court could redress by appointing a

Special State's Attorney. See id. at 569-75.11 As we have explained, no

provision in the Chicago Municipal Code similarly empowers a court to

appoint counsel to represent a department or official when the Corporation

Counsel is "interested" in the dispute or otherwise unable to provide

representation. For the same reason, Environmental Protection Agency v.

Pollution Control Board, 69 IlL. 2d 394 (1977) ("EPA v. PCB"), see A9, does

not support the retention of private counsel here. There, the court recognized

that the appointment statute gave the courts authority to appoint counsel

when the Attorney General is "interested" in the dispute, but held that the

11 A comparable provision authorizes a court to appoint a special

Attorney General where the Attorney General is unable to providerepresentation. See 15 ILCS 205/6 (2010). And another provision provides

for appointment of counsel to represent Illinois's Executive Inspector Generalwhen the Attorney General cannot. See 5 ILCS 430/20-45(b) (2010).

37

statute did not apply because in that case, the Attorney General was not

"interested." EPA v. PCB, 69 IlL. 2d at 400-02.

In Tully v. Edgar, 286 ILL. App. 3d 838 (1997), the court stated that the

authority to appoint counsel in Suburban ROE was based on the common-law

power "to appoint private counsel to abate (a) conflict." Id. at 845-46.

Suburban ROE does not actually say this, but regardless it would not mean

the statute authorizing appointment of a special State's Attorney played no

role in the decision. Indeed, the cases Suburban ROE discussed in finding

the power to appoint a special State's Attorney where a conflict exists all

addressed appointment of a special Attorney General or State's Attorney, for

which statutory authority existed. Two explicitly identified the prior

appointment statute as the source of authority. See In re Petition of

McNulty, 60 IlL. App. 3d 701, 703-04 (1978); In re Mortimer, 44 IlL. App. 3d

249, 251 (1976).12 The third, People ex reI. Sklodowski, 162 IlL. 2d 117, 126-

27 (1994), did not mention the source of appointment authority, so it does not

support the notion that such authority exists absent a statute conferring it.

Regardless, even an entirely independent, common-law source of

authority to appoint counsel would not justify the court's intervention here.

Suburban ROE and Tully involved situations, unlike here, where an elected

12 The prior appointment statute authorized appointment of either a

special Attorney General or a special State's Attorney, as appropriate. SeeMcNulty, 60 ILL. App. 3d at 703-04. In all other respects, that version of thestatute is virtually identical to the current appointment statutes.

38

legal offcer has a conflict in providing representation to an independent,

elected officiaL. See Tully, 286 IlL. App. 3d at 847; Suburban ROE, 282 IlL.

App. 3d at 567.13 Indeed, no authority of which we are aware extends that

kind of power to allow appointment of counsel to the head of a municipal

government office like the Inspector GeneraL. This likely reflects that, as we

have explained, the various divisions within a municipal corporation are

simply administrative divisions without separate legal existence. In

addition, in Tully and Suburban ROE, the plaintiff officials had the statutory

right to be represented by the Attorney General and the State's Attorney,

respectively. See 286 IlL. App. 3d at 846 (citing 15 ILCS 205/4 (2010)); 282

IlL. App. 3d at 569-70 (citing 105 ILCS 5/3A-15 (2010)). Here, by contrast, the

Inspector General has no right to require the Corporation Counsel to bring a

lawsuit that in his judgment is not in the interests of the City. Again, the

Corporation Counsel's duty is, among other things, to "protect the rights and

interests of the city" in actions brought by or against it or "any city officer,

board or department," Municipal Code of Chicago, IlL. § 2-60-020(b). And the

Corporation Counsel's decision not to bring an action at the behest of another

officer may be reviewed by the Mayor. This structure reveals that any

dispute about subpoena enforcement, including a subpoena issued to the Law

13 The official seeking representation in Tully was an elected member

of a state university board of trustees. See 286 ILL. App. 3d at 839, 846.

Suburban ROE also involved an elected official, and one who, as a state-created officer, was not simply an arm of county government. See 282 IlL.App. 3d at 569-70.

39

Department, presents an internal conflict within the corporation; it is

therefore not amenable to judicial resolution.

Like the court's jurisdictional ruling, the holding that the Inspector

General is capable of suit and may exercise that capacity without involving

the Corporation Counsel has troubling implications for City government. It

compromises the ability of municipalities to order their internal affairs

without the threat of judicial revision. Worse stil, the decision allows an

official with, at most, political independence, to take legal action on behalf of

the City without involving the very City official who actually has litigating

authority, not to mention the Mayor, who supervises all City officers. This

means that the City, a single legal entity, wil have difficulty taking a single

consistent position in lawsuits affecting the interests of the City as a whole,

and that there wil be protracted litigation over which official properly

represents the City in each case.

CONCLUSION

For all these reasons, this court should reverse the judgment of the

appellate court and reinstate the judgment of the circuit court.

40

BY:

Respectfully submitted,

STEPHENR. PATTONCorporation Counsel

of the City of Chicago

~&~. KPOWEssistant Corporation Counsel

Suite 80030 North LaSalle StreetChicago, Illinois 60602(312) 744-3173

41

APPENDIX

TABLE OF CONTENTS TO THE APPENDIX

PAGE(S)

Supreme Court Order, Sept. 28, 2011 .............................. Al

Appellate Court Opinion, Apr. 29, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . A2-A21

Notice of Appeal, Apr. 27,2010 (C. 129) ........................... A22

Report of Proceedings Before the Circuit Court,Apr. 21,2010 ............................................ A23-A63

Order of the Circuit Court, entered Apr. 21, 2010 (C. 128) . . . . . . . . . . . . . A64

Ordinances Involved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A65-A76

Table of Contents of the Record on Appeal ..................... A77-A79

, .Supreme Court of Illinois

Clerk of the CourtSupreme Court Building

Springfield, Illinois 62701

(217) 782-2035

112488September 28, 2011

Mr. J. Mark PowellCity of Chicago Dept. of Law30 N. LaSalle Street, Suite 900Chicago, IL 60602

No. 112488 - Joseph M. Ferguson, etc., respondent, v. Mara S.Georges, etc., petitioner. Leave to appeal,Appellate Court, First District.

The Supreme Court today ALLOWED the petition for leave to

appeal in the above entitled cause.

We call your attention to Supreme Court Rule 315 (h) con-

cerning certain notices which must be filed.

6,3\, .\.;...~... "..I- Y \\t~'Jt\\

S£l '3 ß ttl"

Al

NOTiceTh text of this opinion maybe change or correctedprir to th time fo filing of8 Petiion for Rehnng orth dlspotl of th øm.

No. 1-10-1152

JOSEPH M. FERGUSON, as Inspector General of the

City of Chicago,

Plaintif-Appellant,

v.

MA S. GEORGES, as Corporation Counsel of theCity of Chicago,

Defendant-Appellee.

FIRST DISTRICTSixrn DIVISION

APRI 29,2011

))))))))/)))))

Appeal from theCircuit Court ofCook County.

No. 09.CH 43287

HonorableNancy 1. Arold,Judge Presiding.

mSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.

Justice McBride concurred in the judgment and opinon.Justice Cahill dissented, with opinion.

OPINION

This matter is before us to determne whether defendant, Mara Georges, in her offcial

capacity as the corporation counsel of the City of Chicago (Corporation Counsel), is required to

produce unredacted copies of documents that she claims are shielded by the attorney-client

privilege to Joseph Ferguson, in his offcial capacity as inspector general of the City of Chicago

(Ispector General). Afer the Inspector General served the Corporation Counsel with a

subpoena for the documents and the Corporation Counsel refused to provide them, the Inspector

General retained private counsel and brought suit against the Corporation Counsel to compel

production of the unredacted documents pursuant to the subpoena. The Corporation Counsel

filed a motion to dismiss pursuant to both sections 2-615 and 2-619 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2008)). The trial court granted the

A2

No. 1-10-1152

Corporation Counsel's motion to dismiss, fiding that the Inspector General did not have the

authonty to retain private counsel and that the documents were protected by the attorney-client

pnvilege. The Inspector General appea)ed. For the reasons that follow, we reverse.

BACKGROUN

This case revolves in large part around the powers and duties of the Inspector General and

the Corporation CounseL. Therefore, a bnef discuSsion of their respective offces is helpfuL. The

Offce of Inspector General (IGO) is a municipal offce created by chapter 2-56 of the Chicago

Municipal Code (Municipal Code). Chicago Municipal Code §2-56-01O et seq. (added Oct. 4,

1989). The duties ofthe IGO include "investigat(ing) the pedormance of governental offcers,

employees, fuctions and programs," either in response to a complaint or .on the Inspector

. General's own initiative, in order to "detect and prevent misconduct, ineffciency and waste within

the programs and operations of the city governent." Chicago Municipal Code §2-56-030

(added Oct. 4, 1989).

The powers and duties of the Inspector General extend to the conduct of "all elected and

appointed offcers of the city governent in the pedormance of their offcial duties" and "all

employees of the city governent in the pedormance of their offcial duties," except for members

of the city council and their employees. Chicago Municipal Code §2-56-050 (added Oct. 4,

1989). The powers and duties of the Inspector General also extend to the conduct of "all

contractors and subcontractors in the providing of goods or servces to the city pursuant to a

contract"~ "business entities in seelcing contracts or certificates of eligibilty for city contracts"~

and "persons seeking certifcation of eligibilty for paricipation in any city program." Chicago

2

A3

No. 1-10-1152 .

Municipal Code §2-56-050.

Eveiy "offcer, employee, department, agency, contractor, subcontractor and licensee of

the city" has a duty to cooperate with the Inspector General in any investigation or hearig

undertaken pursuantto the Municipal Code. Crucago Municipal Code §2-56-090 (added Oct. 4,

1989). The investigatoiy files and reports of the IGO are confdential and canot be released to

any person or agency other than the United States Attorney, the Ilinois Attorney General or the

State's Attorney of Cook County.

The powers of the lGO include the power "(t)o issue subpoenas to compel the attendance

of witnesses for purposes of exannation and the production of documents and other items for

inspection and/or duplication." Chicago Municipal Code §2-56-030. Once the Inspector General

issues a subpoena, the person to whom the subpoena is directed may file an objection to the

subpoena. "For seven days afer receipt of a timely objection to a subpoena, the inspector general

shall take no action to enforce the subpoena or to initiate prosecution of the person to whom the

subpoena is directed." Crucago Municipal Code §2-S6-040 (added Oct. 4, 1989).

The offce of the Corporation Counsel is created by section 2-60-020 of the Municipal

Code. Chicago Municipal Code §2-60-020 (added Sept. 5,2007). The Corporation Counsel is

the "head of the deparment oflaw of the city." Crucago Municipal Code §2-60-020. The duties

of the Corporation Counsel include "(s)uperintend(ing) and *** conduct(ing) all the law business

of the city." Chicago Municipal Code §2-60-020. The Corporation Counsel is also required to

. "(a )ppear for and protect the rights and interests of the city in all actions, suits and proceedings

brought by or against it. or any city offcer, board or deparment" or brought against an

3

A4

regaràing conversations with City employees; and (iv) charts and notes by one Law Depa.rtment

attorney - all regarding the matter *** under investigation." The 100 told the law department

4

AS

No. 1-10-1152

that it did not believe that the City could properly shield the documents using either the attomey-

client pnvilege or the work product doctnne.

On October 8,2009, the lGO served a subpoena on the Corporation Counsel as head of

the law department for the documents requested. Along with the subpoena, the lGO included a

letter summarzing the legal arguments it believed supported its position, as well as a suggested

memorandum of understanding concerng the way in which the documents should be handled.

On October 15,2009, the Corporation Counsel made an objection to the subpoena. On October

21,2009, the IGO responded to the Corporation Counsel's objection with a letter stating that the

IGO disagreed with the grounds of the objection. The Corporation Counsel did not comply with

the subpoena.

On November 4,2009, through pnvate counsel, the Inspector General1 in his offcial

capacity :fled suit against the Corporation Counsel in her offcial capacity, seeking a declaratory

judgment, a wnt of mandamus, and enforcement of the subpoena to compel the Corporation

Counsel to produce unredacted copies of the documents requested by the subpoena. The

Corporation Counsel filed a motion to dismiss the complaint pursuant to sections 2-619 and 2-

615 of the Code. The Corporation Counsel argued that the complaint should be dismissed

pursuant to section 2-619 because (1) the trial court lacked junsdiction since the Inspector

1 The complaint was filed by First Deputy Inspector General Mary E. Hodge. At the time,

the position of Inspector General was vacant, as the current Inspector General had not yet been

approved by the city council, so Hodge was the head of the IGO. Afer the current Inspector

General was confrmed by the city council, he was substituted as plaintif in December 2009.

5

A6

No. 1-10-1152

General lacked the capacity to sue, (2) the trial court should not entertai a dispute between two

paries within the same governental entity, and (3) the documents were protected by the

attorney-client privilege. The Corporation Counsel also argued that the complait should be

dismissed pursuant to section 2-615 because the complaint did not adequately state a cause of

action for declaratory judgment or mandamus.

A hearg on the Corporation Counsel's motion was held on Apri 21, 2010. Afer

hearing the pares' arguments, the tral court found that the Inspector General did not have the

authority to engage its own attorney and that the attorney-client privilege was avaiable to the

Corporation CounseL. The trial court entered an ord-er dismissing the Inspector General's..

complaint with prejudice. The Inspector General timely appealed.

ANALYSIS

On appeal, the Inspector General raises two issues: (1) the tral court erred in finding that

the attorney-client privilege applied to shield the subpoenaed documents and (2) the tral court

erred in finding that the Inspector General did not have the authority to retain a private attorney.

The Corporation Counsel also argues that we lack jurisdiction over the instant matter because it is

an intragovernental dispute and therefore non justiciable. We address the issues concerning

jurisdiction and the Inspector General's capacity to sue fist.

Intragovernmental Dispte

The Corporation Counsel fist argues that we lack jurisdiction over the instant matter

because "this is effectively a suit by the City against the City." W~nether the instant issue is

justiciable presents an issue oflaw, which we review de novo. Morr-Fitz, Inc. v. Blagojevich,

6

A7

No. 1-10-1152

231 Il. 2d 474, 488 (2008). The Corporation Counsel cites to Tanner v. Solomon, 58 m. App.

2d 134 (1965), in support of the argument that the instant suit is non justiciable. However,

Tanner involved a very diferent situation than the one at issue here. In Tanner, one member of

. the Addison Board of Fire and Police Commssioners brought suit against the two other board

members based on a dispute over candidates for the police deparment. Tanner, 58 TIL App. 2d at

135-36. In fiding that the board member was unable to brig suit agaist the other board

members, the court fist noted that there was case law holding that one agency of governent

could bring suit against another goveinental agency to resolve a dispute. Tanner, 58 TIL App.

2d at 137. However, the court pointed out that in the case before it, "one member of a

governental body is suing the other members of that same bod." (Emphasis added.) Tanner,

58 TIL App. 2d at 137. The court concluded that "it would not be a salutar thing for the courts

to step in and resolve these disputes on the application of every minority member whose opinions

*** have been over-ridden by the majority." Tanner, 58 TI. App. 2d at 138.

In the case at bar, we do not have one individual suing another individual from the same

body but instead have the head of one municipal offce suing the head of a different municipal

offce. Whe they are both deparments withi the same municipal corporation, we have

considered analogous situations in the pa~t and are wiling to do so again. See, e.g., Burnette v.

Stroger, 389 TIL App. 3d 321 (2009) (Cook County public defender brought suit against president

of Cook County board of commssioners); Readv. Sheahan, 359 TI. App. 3d 89 (2005) (members

of Cook County board of corrections brought suit against Cook County sheriff; Sampson v.

Graves, 304 Il. App. 3d 961 (1999) (City of Harvey aldermen brought suit against City of Harvey

7

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No. 1-10-1152

mayor). Accordingly, we fid that the dispute here is justiciable.

Capacity to Sue

In granting the Corporation Counsel's motion to dismiss, the tnal court found that the

Inspector General lacked the capacity to sue the Corporation CounseL. The Inspector General

argues that the tnal court erred in grantig the motion to dismiss on that basis. We review the

trial court's grant of the motion to dismiss de novo. Progressive Insurance Co. v. Wiliams, 379

Il. App. 3d 541, 544 (2008). As a preliminar matter, we note that the issue before us is the

narow question of whether the Inspector General was entitled to hire a pnvate attorney to sue to

enforce the subpoena served on the Corporation CounseL. We do not purport to resolve any

broader questions involving a nght of the Inspector General to hie an attorney in any other

circumstance or the procedure to be followed in the event the Corporation Counsel has a confict

of interest.

In the case at bar, the trial court's decision was based in par on the ilinois Supreme

Court case of Environmental Protection Agency v. Pollution Control Board, 69 il. 2d 394

(1977) (EPA). That case concerned a request by the ilinois Pollution Control Board to be

represented by counsel other than the Attorney General in certain situations. EPA, 69 Il. 2d at

397. The court noted that the Attorney General was the chief legal offcer of the state of ilinois

and had the duty of acting as the legal representative of state agencies. EPA, 69 il. 2d at 399.

The board pointed to a statutory provision providing that pnvate counsel could be appointed

where the Attorney General was "interested" and argued that the Attorney General was interested

in that case. EPA, 69 nl. 2d at 400. However, the court held tIiat the Attorney General was only

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No. 1-10-1152

"interested" under the statute in two situations: when the Attorney General was invòlved with the

case as a private individual or when the Attorney General was an actual par to the action. EPA,

69 TI. 2d at 400-01. The court concluded: "It seems to us that if the Attorney General is to have

the unqualifed role of chieflegal offcer of the State, he or she must be able to direct the legal

afais of the State and its agencies. *** To allow the numerous State agencies the libert to

employ private counsel without the approval of the Attorney General wolild be to invite chaos

into the area of legal representation of the State." EPA, 69 TIL 2d at 401-02.

In the case at bar, the Municipal Code does not include an analogous provision alowing

for appointment of private counsel if the Corporation Counsel is "interested." If there was, ths

would be a simple case, since the Corporation Counsel is a par to the litigation. Accordingly,

we examine the provisions of the Municipal Code to determne if there is a source of authority for

the Inspector General's suit.

The Municipal Code provides the IGO with the power to investigate and "(t)o issue

subpoenas to compel the attendance of witnesses for purposes. of examination and the production

of documents and other items for inspection and/or duplication." Chicago Municipal Code §2-56-

030. The courts should not frstrate the very purpose for which the offce ofInspector General

was created. Once the Inspector General issues a subpoena, the person to whom the subpoena is

directed may fie an objection to the subpoena. "For seven days after receipt of a timely objection

to a subpoena, the inspector general shall take no action to enforce the subpoena or to intiate

prosecution of the person to whom the subpoena is directed." Chicago Municipal Code §2-56-

040.

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The paries disagree as to the meaning of section 2-56-040. The Inspector General argues

that it must have the power to enforce the subpoena because the ordinance provides that for seven

days, "the inspector general shall take no action to enforce the subpoena." (Emphasis added.)

Chicago Municipal Code §2-56-040. It claims that the language of the ordinance meas that afer

seven days, the Inspector General may take action to enforce the subpoena. The Corporation

Counsel, on the other hand, argues that the language does not mean that the "action to enforce" is

taken by the Inspector General. Instead, she claims that the Corporation Counsel has control over

any action to enforce the subpoena. Ifthat would be the case then the 100 couid never

investigate the Corporation Counsel because that offce would be immune from investigation since

they would be the only entity to enforce the subpoena.

The dissent reads - the plain language of the ordinance to require a dispute over the

enforcement of a subpoena to be ultimately determed by the mayor. However, the plain

language of the ordinance does not address the procedure to be followed in the case of such a

dispute. The only references to a dispute 'are the intruction that for seven days following an

objection, "the inspector general shall take no action to enforce the subpoena" and that during

that Seven days, the Inspector General "may attempt to resolve the objectionthrough negotiation

with the person to whom the subpoena is directed." Chicago Municipal Code §2-56-040. The

ordinance does not direct the Inspector General's actions in the c"ase an attempt to resolve the

dispute fais.

\-"Thile there is no case discussing the Inspector- General's subpoena power, we find

Department of Public Aid v. Kessler, 72 Il. App. 3d 802 (1979), to be instructive. In Kessler,

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No. 1-10-1152

the TIinois Department of Public Aid (IDPA) served a subpoena on the defendantand, when the

defendant did not comply, filed an action in the circuit court to enforce it. Kessler, 72 TI. App. 3d

at 803. The defendant argued that the IDP A did not have the power to enforce the subpoena in

the circuit court because there was no statutory provision providing it that power. Kessler, 72 TI.

App. 3d at 804. The court held that despite the fact that there were no "standards and

procedures" in the statute granting the IDPA the power to compel the production of books and

papers by subpoena, the statute did not bar the IDP A from attempting to enforce the subpoena in

court because the absence was not signicant "inasmuch as the circuit courts, rather than the

agency itself, are the entities with the authonty to do the enforcing." Kessler, 72 IlL. App. 3d at

804.

The Corporation Counsel is correct when she notes that Kessler did not address the

question of whether the agency or the Attorney General was the proper part for bnnging such an

action, wluch is an issue in this case. However, Kessler is instructive in that the court allowed the

agency to bring an action to enforce the subpoena despite the lack of explicit statutory authonty.

Here, tltere is authority for the Inspector General to issue a subpoena, but there is no explicit

authorítY for the 100 to enforce that subpoena. However, if the Inspector General has the

authority to issue a subpoena, it certainly can be reasonably inferred that the authonty to issue

includes the authonty to enforce. Like Kessler, despite the lack of procedures concernng

enforcement of the subpoena, we find that the Inspector General may enÍorce the subpoena

through recourse in the circuit court.

The dissent states that section 2-4-030 of the Municipal Code "provides that where the

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No. 1-10-1152

legislation does not explicitly provide for enforcement, the mayor is the enforcement offcer."

However, secton 2-4-030 merely gives the mayor the aurhority to act, or "to designate the offcer

who shall act, in the case where the ordinance fails to specif the offcer who is charged with the

duty of enforcement. It does not provide that the mayor is the sole enforcement offcer.

Additionally, in the ordinance here, there is a reference to the enforcement of the subpoena

in the clause that prohibits the Inspector General from takg any action to enforce the subpoena

for seven days followig an objection. We agree with the Inspector General that the most natural

reading of this clause indicates that afer seven days, the Inspector General may take some sort of

enforcement action. In most cases, that could include the Corporation Counsel's involvement;

however, in this case, it is the Corporation Counsel who is objectig to the subpoena. It would be

unrealistic and nonproductive for the Inspector General to request that the Corporation Counsel

take action to enforce a subpoena against her own offce. Further, the ordinance provides that the

"the inspector general shall take no action to enforce the subpoena or to initiate prosecution of

the person to whom the subpoena is directed." (Emphasis added.) Chicago Municipal Code §2-

56-040. Once again, this implies that the Inspector General has the authority to take some sort of

action concernng the subpoena. Accordingly, we fid, at least in the limited situation where the

Corporation Counsel is served with a subpoena by the Inspector General and objects to its

enforcement, that the Inspector General may seek to enforce the subpoena in the circuit court by

hig its own counseL.

We find support for our conclusion in our decision in Burnette, 389 Il. App. 3d 321. In

that case, the Cook County public defender brought suit against the president of the Cook County

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board of commssioners afer the board approved a budget amendment that included laying off

personnel in the public defender's offce. Burnette, 389 IlL. App. 3d at 322. One issue in the case

was whether the public defender was an entity capable of bringing suit; the president argued that

the public defender was not, since there was no statute explicitly provietng that authority.

Burnette, 389 Il. App. 3d at 327-28. Afer noting that the statutory scheme did contemplate that

the public defender was an entity capable of suit, we pointed out that "it would make no sense to

create an entity that could not even defend its right to exist" and that "our supreme court has

repeatedly permitted public defenders to sue, in order to protect and defie the scope of their

statutory authority." Burnette, 389 IlL. App. 3d at 328.

The dissent takes issue with our reliance on Burnette, noting that Burnette involved the

recognition of the unique role of public defenders as independent agencies within the criminal

justice system and stating that no such pronouncement has been made in the case o.f Inspectors

General. Whle, as the dissent notes, this is a case of first impression, we find Burnette to be

instructive, as is Kessler, because of the nature of the IGO. The Inspector General occupies a

unique role withi the City of Chicago's governent. The Inspector General is entrusted with

"investigat(ingJ the pedormance of governental offcers, employees, functions and programs,"

either in response to a complaint or on the Inspector General's own intiative, in order to "detect

and prevent misconduct, ineffciency and waste within the programs and operations of the city

governent." Chicago Municipal Code §2-56-030. As such, every "offcer, employee,

deparment, agency, contractor, subcontractor and licensee of the city" has a duty to cooperate

with the Inspector General in any investigation or hearig undertaken pursuant to the Municipal

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Code. Chicago Municipal Code §2-56-090. In recogntion of this unique role, the Inspector

General is appointed for a fixed term and can only be removed from the offce for cause. Chicago

Municipal CQde §2-56-020, §2-56-130.

In the case at bar, the Inspector General's investigation is being frstrated by the

Corporation Counsel's refusal to comply with a subpoena.2 Without the ability to bnng an action

to enforce the subpoena, the Inspector General has no means to challenge the Corporation

Counsel's refusal other than askig the mayor to resolve the dispute. The ordinance creating the

IGO could not have been designed to tie the Inspector General's hands in this way because in

doing so its investigative process would be meanngless. The IGO was created "to detect and

prevent misconduct, ineffciency and waste within the programs and operations of the city

governent." Chicago Municipal Code §2-56-030. To achieve its goals, the Inspector General

must be allowed to bnng an action in the circuit court to enforce a subpoena against the

C~rporation Counsel to further its investigative duties.

The tnal court found that the Inspector General shouln have approached the Corporation

Counsel, at which point "it would be up to her to determne that there was a confict." If there

was a confict, "which there obviously is," the Corporation Counsel would have needed to either

seek authonzation from the city council to engage special counselor ask the tnal court to appoint

special counseL. We do not agree with ths procedure and fid it to frstrate the independent

2 Whether the refi.sal to comply with the subpoena was proper is discussed below. For the

purposes of the discussion here, it is only relevant that the Corporation Counsel refused to comply

with the subpoena. '".14

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No. 1-10-1152

investigative duties of the Inspector General. We furter find that the Inspector General followed

proper procedures for the appointment of special counseL.

As we found earlier, the Inspector General has the authority to bring suit against the

Corporation Counsel in this case. With such a clear confct of interest, it would be exalting form

over substance to require the Inspector General to ask the Corporation Counsel to determe

whether a confict of interest existed. Moreover, the Inspector General informed the trial court

that it had the discretion to appoint private counsel to represent him. It was not necessary for the

request to come from the Corporation CounseL. See Suburban Cook County Regional Offce of

Education v. Cook County Board, 282 IlL. A.pp. 3d 560, 575 (1996) (fiding that a proper

procedure for appointment of a special State's Attorney in the case of confct between offcials

the State's Attorney is obligated to represent "would reqùire the invocation of the cour's

discretion by either the State's Attorney or the offcials" (emphasis added)). The Corporation

Counsel notes that the Inspector General merely mentioned the court's authority in its brief and at

the hearng on the motion to dismiss, claig that the issue w!is not properly raised and should be

fodeited. However, we choose to consider the is~ue. Flynn v. Ryan, 199 II. 2d 430,438 n.l

(2002) (waiver ís an admonition to the parties, nota liÌntation upon the powers of courts of

review). Accordingly, we fid that the trial court's grant of the Corporation Counsel's motion to

dismiss on this basis must be reversed.

Attorney-Client Privilege

Since we have determned that we have jurisdiction over the instant matter and the

Inspector-General was within its authority to bring suit against the Corporation Counsel, we

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No. 1-10-1152

consider the issue of whether the trial court erred in finding that the Corporation Counsel could

assert the attorney-client privilege to shield documents from the Inspector General. Agai our

review of the trial court's dismissal under section 2-619 is de novo. Van Meter v. Darien Park

District, 207 m. 2d 359, 368 (2003).

The purpose of the attorney-client priviege is "to encourage and promote full and fran

consultation between a client and legal advisor by removing the fear of compelled disclosure of

information." Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Il. 2d 103, 117-18 (1982).

However, because the privilege poses a bar to the discovery of relevant and material facts, it is an

exception to the general duty to disclose and is interpreted narowly. Consolidation Coal, 89 Il.

2d at 118.

As a general matter, the attorney-client priviege is available to a municipal corporation.

In re Informa.tion to Discipline Certain Attorneys of the Sanitary District of Chicago, 351 m.

206,268 (1932). However, there has been little case law as to the availability of the privilege or

its scope in the context of an action between two governent agencies. The Inspector General

asks us to impose a rule that the attorney-client privilege is not available to City attorneys in an

offcial IGO investigation into the City's misconduct. The Corporation Counsel advocates for the

opposite rule: that the privilege applies to "communications between governental entities and

governental counseL." However, we cannot accept either pary's argument here.

In the case at bar, the Corporation Counsel has not shown that the documents at issue are

covered by the attorney-client privilege. As the party seeking to shield the documents, the

Corporation Counsel has the burden of establishig that "the communcation originated in a

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No. 1-10-1152

confdence that it would not be disclosed, was made to. an attorney acting in his legal capacity for

the purpose of securing legal advice or servces, and remained confdentiaL." Consolidation Coal,

89 m. id at 119. However, we canot find any evidence in the record that the Corporation

Counsel made such a showing before the trial court and there is insuffcient information in the

record concerning the documents at issue for us to review the trial court's fiding of priviege.

There are no detais as to the creators of the documents, their recipients, or the contents of

any of the documents. There are also no details concernig the titles, duties, or authority of any

of the individuals involved with the documents. The only information in the record is a statement

in the Inspector General's coInplaint indicating that the redacted documents included "(i)

communications among Law Department attorneys; (ii) communications between Law

Deparment attorneys and other City employees; (iii) notes by two Law Deparment attorneys

regarding conversations with City employees; and (iv) charts and notes by one Law Deparment

attorney - al regarding the matter *** under investigation"; there was also a redacted copy of

the privilege log attached as an exhbit to the complaint. Moreover; there is no indication in the

record that the trial court reviewed unredacted copies of the documents in camera to determne

whether they were covered by the attorney-client privilege. Without this information, we cannot

review the propriety of the trial court's fiding. Accordingly, we remand the case to the trial

court for the lin:ted purpose of conducting an in camera inspection of the unredacted documents

and making factual findings consistent with the concerns outliiied above.

CONCLUSION

We find that the Inspector General had the authority to bring the instant suit against the

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~.Nø~ 1-10-1152

Corporation CounseL Additionaly, we find that we lack suffcient information to determne

. whether the subpoenaed documents are shielded by the attorney-client priviege and remand the

case to the trial court for that limited purpose.

Reversed and remanded with instructions.

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No. 1-10-1152

JUSTICE CAiL dissenting:

I sympathize with the diffculty the majority faced in this case: as a matter of first

impression, what to do with an attempt by a city offcer to bring a declaratory judgment action

against a fellow city offcer who just happens to be the attorney for the city. The majority

concludes that the enabling ordinance for the Inspector General of the city, while not explicitly

granting him power to seek the aid of the courts to enforce rus subpoenas, must of necessity,

grant him that power by implication. I canot agree and must dissent.

As I read the Inspector General's enabling ordinance, his subpoena power is

administrative, and the scopeis circumscribed by the plain language of the ordinance: a dispute

over enforcement ultimately lands on the desk of the mayor, who must decide how to resolve it.

To grant to the Inspector General the power to bypass the city's attorney and the mayor himself

and seek a declaratory judgment on the nature and extent of his power is to grant to a city offcer

appointed by the mayor powers the city council did not (and probably could not) delegate. The

municipal code provides that where the legislation does not explicitly provide for enforcement, the.,.\mayor is the enforcement offcer. Chicago Municipal Code §2-4-03.0 (1990).

The case cited by the majority in support of its conclusion, Burnette v. Stroger, 389 Il.

App. 3d 321,905 N.E.2d 939 (2009), in which the Cook County public defender was alowed to

sue the Board of Commissioners, is not persuasive. Burnette relied on supreme court opinons

that recognized the unique role ofpubIic defenders as independent agencies vvithin the criminal

justice system. No such pronouncement has been made in the case of Inspectors General, who

remain, at the city, county and state level, offces within units of governent. Although their

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No. 1-10-1152

powers are broad within the unit of which they are a par, includig the power to share

investigation materials with law enforcement agencies, Inspectors General do nòt have a legal

existence independent of the unit of governent of which they are a par.

I would af the dismissal of this action on the grounds that the Inspector General of

the City of Chicago is not a legal entity capable of bringing suit.

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( 7 -~~ c: ~\~(8/13/08) CCG 0256

Notice of Appeal

APPEAL TO THE APPELLATE COURT OF ILLINOIS /"~"-Ð~FROM THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS \. t~ß\N.

COUNTY DEPARTMENT, CHANCERY DIVISIONIDISTRICT;,

--. - Plaintiff Appell ~Reviewing Court No. J 0- ) JS-(bJOSEPH M. FERGUSON, in his offcia caacity as lnspetor Genera of the City of Chicao

NOTICE OF APPEAL

Circuit Court No. 09 CH 3287oa:to-l:r~

co:i°0~r-zni.;:

;J.

v.

Defendant/ Appell ~

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MA S. GEORGES, in her offcial caity as Corpraon Cowil of th City of Chicago

(Check if applicable. See llL Sup. Ct. Rule 303(a)(3).)o Joining Prior Appeal 0 Separate Appeal 0 Cross Appeal

..JI:Ias..

Appellant's Name: JOSEPH M. FERGUSON

Appellant's Attorney (if applicable): ALEXANDER POLIKOFF

Address: BUSINSS AND PROFESSIONAL PEOPLE FOR THE PUBLIC INTEREST, 25 EAST WASHINGTON STREET, SUITE 1515

City/State/Zip: CHICAGO, IL 60602

Telephone Number: 312-641-5570

EJ Cook County Attorney C : 46354 or 0 Pro se 99500 (Choose one)

Appellee's Name: MARA S.

Appellee's Attorney (if applicable): KEVIN M. FORDE

Address: KEVIN M. FORDE, LTD., 111 WEST WASHINGTON STREET, SUITE 1100

City/State/Zip: CHICAGO, IL 60602

Telephone Number: 312-641 -144 1

IZ Cook County Attorney Code: 23414 or 0 Pro se 99500 (Choose one)

An appeal is taken from the order or judgment described below:

Date ofthe judgment/order being appealed: 04/21/10

Name of judge who entered the judgment/order being appealed: HON. NANCY J. AROLD

Relief sought from Reviewing Court: REVERSAL OF THE TRIAL COURT ORDER GRAING THE MOTION TO

DISMISS

! understand that a ~~Request for Preparatin oÍ Recorå on Appeai" form (CCA 0025) must be completed and the initialpayment of $11 0 made prior to the preparation of the Record on Appeai. The Cierk's Offce wil!! begin preparation ofthe ROA unti the Request form and payment are received. Failure to request preparation of the ROA in a timely manner,i.e., at least 30 days before the ROA is due to the Appellate Court, may req' e Ap ellant to fie a request for extension()f time with the Appellate Court. A ~~Request for Preparation of S e ental cord n Appeal" form (CCA 0023)must be completed prior to the preparation of the Supplemental RO

DOROTHY BROWN, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

C00129 A22

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Ferguson v. Georges

Date: April 21, 2010

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0J/ì~ Ferguson v. Geò~ges

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STATE OF ILLINOIS )

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COUNTY OF coo K

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT - LAW DIVISION

JOSEPH M. FERGUSON, in his

official capacity as

Inspect9r General of the

Ci ty of Chicago,

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Plaintiff,

vs. No. 09 CH 43287

MARA S. GEORGES, in her

official capacity as

Corporation Counsel of the

City of Chicago,

Defendant.

REPORT OF PROCEEDINGS at the hearing of

the above-entitled cause before the Honorable Nancy

Arnold, Judge of said Court, on the 21st day of

April, 2010, at the hour of 11: 20 p. m.

AMICUS COURT REPORTERS, INC.312.641.3500

617 e460c-Oea4-4218-8baS-Sf80c81 fOb 70

00003 A24

Page 2

Ferguson v. Ged..ges

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APPEARACES:BUSINESS AND PROFESSIONAL PEOPLE FOR THE

PUBLIC INTEREST

(25 East Washington StreetSuite 1515

Chicago, Illinois 60602312.641.5570), byMR. ALEXANDER POLIKOFF andMS. KATE E. POMPER,

3

4

5

6On behalf of the Plaintiff;

7

8

KEVIN M. FORDE, LTD.

(111 West Washington StreetSuite 1100Chicago, Illinois 60602312.641.1441), byMR. KEVIN M. FORDE andMR. KEVIN R. MALLOY,

9

10

11On behalf of the Defendant.

12131415161718192021

REPORTED BY: ANGELA M. INGHAM, CSR, RPR

222324

AMICUS COURT REPORTERS i INC.312.641.3500

617 e460c.Oea4-218.8ba5.5f80c81 fOb70

00004 A25

Page 3

Ferguson v. Geo~ges

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THE COURT: Good morning. Sorry to have kept

you waiting.

THE CLERK: Case No. 09 CH 43287, Ferguson vs.

Georges.

MR. FORDE: Good morning, your Honor, Kevin

Forde and Kevin Malloy on behalf of the defendant,

Georges.

MR. POLIKOFF: Alex Polikoff and Kate Pomper on

behalf of the plaintiff.

THE COURT: Good morning. This is your motion

to dismiss?

MR. FORDE: Yes, your Honor.

THE COURT: Is it all counts?

MR. FORDE: Pardon?

THE COURT: Is it all counts?

MR. FORDE: Yes, your Honor, and 1111 explain

it. A personal matter, your Honor, I have an

appointment that requires me to leave at 12: 15 .

THE COURT: We i 11 be done.

MR. FORDE: I would think so.

TaE COURT: I have read everything.

MR. FORDE: Mr. Polikoff and 1 were confident

of that.THE COURT: I i m even more sorry to keep you so


617 e460c.Oea4-4218.8ba5.5f80c81 fOb70

00005 A26

Page 4

Ferguson v. Geo_4es

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late.MR. FORDE: Oh, no, it won't be a problem.

Your Honor, yes, there's a 615 motion on

two of the three counts of this complaint; and

we i 11 rely on the briefs on that. We move to

dismiss the mandamus and a declaratory judgment

count. There is a still a count to enforce the

subpoena, so we have to get to the 619 motions in

any event, and I think that's what we want to

concentrate on today anyway.

We have moved to dismiss for basically

three separate reasons. The attorney/clientprivilege applies here. Second, this plaintiff

14 heading a city department has no separate authority15 to bring the case; and, third, there's no judicial16 controversy here because this is basically a case17 of The City vs. The City.18 The only other introduction I would like19 to make is to state that, before we got into this,20 before Ms. Georges refused to produce the21 documents, she not only used her own judgment and

22 that of her staff, but she consulted with two23 outside experts who advised her that her24 professional responsibilities were to not produce


617 e460c.Oea4-4218.8ba5-5f80c81fOb 70A27

I§flnr¡~

Page 5

Ferguson v. Geo~~es

1 the documents because the attorney/client privilege

2 clearly applied here. i would say with some degree

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of confidence that our research demonstrates that

she and they were absolutely right.

5 We sent your Honor a few days ago, a week

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or so ago, a decision which just came down from the

Seventh Circuit in Sandra TE vs. South Berwin

8 School District; and I'll refer to it as the Berwin

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School District case. That's Seventh Circuit

decision of March 30, 2010.

We submit that as additional authority,

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and it is absolutely right on point in many

respects. It's also significant in that we spent a

lot of time briefing what the Seventh Circuit meant

in their earlier opinion.

One of the coincidences is the earlier

opinion that we debated was written by Judge Diane

Wood, and she is on the panel in the most recent

case. So in a sense, there's even more force to

the explanation of the Seventh Circuit as to what

they meant in that grand jury case that the

22 plaintiff relied. The case is similar as the

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Sidley case. In that case, Scot t Lazar and

Sidley & Austin were conducting an internal

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Ferguson v. Geo~~es

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investigation just like this situation. The

investigation couldn i t reveal criminal misconduct,

much more serious.

The issue were statements by interviews,

and on two pages of that opinion, Pages 15 and

16 - - and I believe we gave you the slip opinion,

but I see you have the Lexis. We do have the

Westlaw copy here, but I i m referring to the slip

opinion.

THE COURT: Okay. I can find that.

MR. FORDE: The Court says the plaintiff

suggests that shielding the contents of Sidley's

interview with School District personnel paid for

by the taxpayers and involving a matter of grave

public concern is contrary to public interest and

should not be permitted. That's exactly what

they i ve argued here.

The Seventh Circuit then goes on and

rej ects that argument and refers to their decision

in In Re: Witness before the Grand Jury, and then

they go on and say but we did not articulate in

that case a generally applicable exception for

communications between government employees and

taxpayer paid counsel.

.

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The significance of the statement I just

emphasized is that they have been arguing the

plaintiffs in this case have been arguing that we

are seeking an exception, and the Seventh Circuit

there said no, that grand jury cases are an

exception.

And what i s really compelling about the

Seventh Circuit decision is not only what they hold

but why. They go on and they say this kind of

10 confidential communication between attorney and

11 client promotes the public interest by advising12 clients to conform their conduct of the law and by13 addressing legal concerns that may inhibit clients14 from engaging in otherwise lawfully and socially15 beneficial activities. When they said that, they

16 were citing a Supreme Court case that did not deal17 with a public sector.18 They then go on and explain the public19 interest is best served when agencies of the20 government have access to the confidential advice21 of counsel regarding the legal consequences of

22 their past and present acti vi ties and how to23

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conform their future operations to the requirements

of the law.


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Ferguson v. Geo~jes

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They then cite the sister circuit, the

Sixth Circuit, which incidentally earlier we had

cited a case in the Sixth Circuit which had said

that even in a grand jury case you can't get -- .'

even a grand jury can't get confidential

communications between a city council member and

city council - - counsel, attorney for a city, and a

city employee.

But that case, Ross vs. The City of

Memphis, the Court stated we see no reason that the

11 function is no longer served, that is, all of the12 benefits to the administration of justice that13 result from a vigorous application of the14 attorney/client privilege simply because the15 corporation is a municipality or, more broadly,16 that the organization or agency is a government

17 entity.18 Governments must not only follow the laws

19 but are under additional constitutional and ethical20

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obligations to their citizens. The privilege helps

ensure that conversations between municipal

officers and attorneys will be honest and complete.

In so doing, it encourages and facilitates the

fulfillment of these obligations.

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Ferguson v. GeoièS

"

Those articulations of what i s going on

here and why it is so important dispose of every

argument that the Inspector General has raised

here.

And I would say if that Seventh Circuit

case, the City of Berwin case, if that had come

before someone in this building - - and it was a

case that could have been brought in the state

court - - a judge of this court, because they

were -- they, that is, the Seventh Circuit, was

applying federal law.

If this were before a judge in this

building, hel she would not be required to even look

at those cases because there is an Illinois case

that we cited and discussed that is right on point,

and that is the Sanitary District case.

And the Sanitary District case is not only

the controlling precedent for Illinois courts, but

the Sixth Circuit, the Seventh Circuit, and the

Second Circuit all in which we quoted at length,

especially the Second Circuit case in our earlier

brief, all explain why that i s not only the law but

good law.

So we would urge the Court to dismiss the

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Ferguson v. Geo.~es

1 complaint because the claimed exception to the

2 at torney / client privilege in which the complaint is

3 based is not founded on sound principles of law.

4 There are two other reasons that I'll address very

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briefly that your Honor should dismiss the case.

We have pointed out that the Inspector

7 General has no authority. Like any other

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department, it has no authority to hire lawyers and

file lawsuits; and we cited Quillen (phonetic) and

other authorities on municipal law to that point.Most of these arguments weren't even

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addressed by the plaintiff, but I think your Honor

can see the common sense to it, that the head of

the Sanitary District can't go hire a lawyer and

file a lawsuit because he or she disagrees with the; -,

~ .

interpretation of an ordinance by the City Council.

And here, keep in mind, it wasn't even --

keep in mind here that the officer who initiated

these proceedings wasn't even the Inspector

General. It was a Deputy Inspector General. There

was no Inspector General when this case was

initiated, but that just emphasizes the point that

city officers cannot go filing lawsuits without

consent of the City Councilor some higher

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authority.1

I.THE COURT: Is the current -- Ferguson, what's

the first name of Ferguson? That i s the current I:

person, right?

MR. FORDE: Yes, your Honor. I:I

I~MR. POLIKOFF: Joseph Ferguson.

THE COURT: Thank you.

MR. FORDE: Finally, the final point is, and it

really follows from the previous point / we submit

that the Court has no jurisdiction to entertain the

case because / as we demonstrated, Mr. Ferguson is

bringing this case in his official capacity as a

city officer. That means it's the City of Chicago.

Ms. Georges was sued in her official capacity. So

she has been sued in effect as the City of Chicago.

So we have a case here of City vs. City. If the

case were called City vs. City / if that's how the

clerk had called it / you would say why is this

here.

I'm reminded of those commercials by

Coca-Cola if you remember them. When Coca-Cola

came out with a new drink and the traditional Coke

people in the commercial were going to the

corporate counsel and saying you've got to sue them


617 e460c-Oea4-4218-8ba5-5f80-c81fOb 70A34

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and stop them because this is hurting the sales of

our product, the traditional Coke; and the

corporate counsel was saying we can i t sue Coke;

we're Coke.

They're both the city. And that i s theTanner case. That's the basis for the Tanner case

that we cited.

So, your Honor, in conclusion, we think

Counts I and II should be dismissed based on 615.

We think all counts should be dismissed pursuant to

Section 619 and that this action to enforce the

subpoenas be dismissed with prej udice. That's all

I have to say, your Honor.

THE COURT: Thank you. Mr. Pol ikof f?

MR. POLIKOFF: Thank you, your Honor. I have

four points to make. Each one of them is brief.

The first point is that a trio of Illinois

Supreme Court decisions, Waste Management,

Consolidation Coal, and Birkett, collectively

establish the Illinois law that under the

circumstances of this case the attorney/client

privilege is unavailable to the Corporation

Counsel.

Your Honor will recall in Waste Management


617 e460c-Oea4-4218.8ba5.5f80c81 fOb70

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Ferguson v. Ged~~es

1 the Supreme Court ruled that the common interest

2 doctrine and the duty of cooperation were separate, ¡

3 quote, dispositive reasons for denying the claim of

4 attorney/client privilege in that case.iI,'

5 What does the Corporation Counsel offer

6 you as to why each of these reasons is not

7 similarly disposi ti ve here?

As to the common interest doctrine, the

Corporation Counsel i s only answer is that the

interests of the parties in this case are, quote,

directly adverse. That i s at the reply memorandum

Page 5 i but that, of course, is no answer at all,

for in Waste Management where the interest of the

parties -had also become directly adverse theSupreme Court said that the insurance company IS

right to disclosure in the face of an

attorney/client privilege claim, quote, exists

irrespecti ve of the now adversarial nature of theparties i relationship. That i s at Page 195 144

Illinois 2nd.

The other dispositive ground in Waste

22 Management is the duty of cooperation which, by

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eliminating any reasonable expectation of

confidentiality which, of course, is an essential

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Ferguson v. Geo~des

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element of a claim of at torney/ client privilege,renders the privilege unavailable within the

compass of that duty of cooperation.

The Corporation Counsel i s response to this

Waste Management holding is that we're essentially

arguing, she says, that the ordinance in this case,

which is the instrument that creates the duty of

cooperation, was intended to eliminate an

attorney/client privilege that's enshrined in the

common law. That i s the argument she attributes to

us. Yet there is no evidence, she says, that the

city counsel intended to do that.

There are two problems with that response ~

of the Corporation Counsel. The first is that

Waste Management doesn't talk about evidence that

the parties to the contract in Waste Management

intended to eliminate the privilege. It holds

rather that the duty to cooperate by removing the

expectancy of confidentiality renders the privilege

unavailable, a holding that has nothing to do with

whether the parties there or, by extension, the

city counsel here in enacting the ordinance did or

did not, quote, intend anything about the

attorney/client privilege when they created the:'

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Ferguson v. Geo~~es

1 duty of cooperation. Under Waste Management, it 1 S

2 the duty of cooperation, not subjective intention,

3 that produce legal consequences.

4 The second problem with the Corporation

5 Counsel's response to the duty of cooperation point

6 is that the one case she cites for the availability

7 of the privilege to government lawyers in an

8 official investigation of government misconduct,

9 the case Mr. Forde just referred to as the Sanitary

District case, does not, in fact i involve ordiscuss any such official investigation of a

government misconduct. I'

The case is a disciplinary proceeding

initiated by the Chicago Bar Association in the

early 1930s in which the issue was whether

individual lawyers should or should not keep their

licenses. That's the case, 351 Illinois 206, In

Re: Information to Discipline Certain Attorneys and

so on.

Moreover, your Honor i whatever may have

been the Supreme Court's reasons 77 years ago for

respecting a claim of privilege by a defendant

lawyer in a disciplinary hearing, in subsequent

decades the Court has expressed several reasons for

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Ferguson v. GeòLges

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limiting the availability of the attorney/client

privilege, and it's limited them.

I i ve already referred to two of them, the

Waste Management case, the common interest doctrine

and the duty of cooperation. Even before Waste

Management, however, in the Consolidation Coal case

cited in the memoranda, the Illinois Supreme

Court that's at 89 Illinois 2nd 103. The

9 Illinois Supreme Court quoting Justice Cardozo on

10 the responsibility of judges considering11 attorney/client questions to mediate between12 competing social policies said that the recognition13 of a privilege does not mean that it's without14 conditions or exceptions; and the Court went on to15 condemn the, quote, zone of silence, the large zone16 of silence, that would result if appropriate17 conditions and exceptions were ignored.18

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In denying the claim of privilege in that

case, the Consolidation Coal Court emphasized that

the privilege is an exception to the general duty

to disclose and that too broad an application of it

would be, quote, fundamentally incompatible with

Illinois public policy that places a high value on

the ultimate ascertainment of truth.


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Ferguson v. Geoi~es

1 And following Consolidation Coal, the

2 Supreme Court's Birkett opinion elaborated on the

3 importance of this public policy, that is,4 ascertaining the truth in the governmental context,

5 saying that governmental privileges are

6 particularly disfavored because they, quote,

7 threaten to undermine the public trust.

8 And in addi tion, as your Honor knows,

9 Birkett said not only that creating a new privilege

10 is a matter best deferred to the legislature but11 that the same thing is true of extending an12

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existing privilege into a new area; and that, of

course, is exactly what we have here, an attempt to

extend an existing privilege into an area where it

has never before been applied which would hardly

be, I would add, as the Supreme Court has

17 admonished in both Consolidation Coal and Waste

18 Management strictly confining the attorney/client19 privilege, quote, within its narrowest possible20 limits.21 i i m sure your Honor understands that we do22 not contend, we do not contend that a government

23 body including the City of Chicago can never claim24 the attorney/client privilege. We contend only

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Ferguson v. Geo".~es

1 that the privilege is not available and should not

2 for the first time in Illinois judicial history be

3 made available to government attorneys in the

4 context of an official investigation into possible

5 government misconduct.

6 There i S no Illinois precedent to support a

7 contrary view; but this trio of decisions, Waste

8 Management, Consolidation Coal, and Birkett,

9 collectively establish a body of Illinois law to

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which in our view the Corporation Counsel has

supplied no principal response and which we think

is determinative of the attorney/client privilege

issue in this case. That's my first point.THE COURT: I i m going to ask you a question on

your first point. In terms of your argument on

Waste Management, don't you think that. the holding

in that case was a little more limited because of

the specific situation in which it was decided,

which is .the unique role that a lawyer serves when

he is hired by an insurance company to defend an

insured?

22 A unique role was well established years

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before as he really in effect is representing two

parties, and he has an intrinsic conflict in there,

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Ferguson v. Geo~~es

1 but he's got a duty to both parties. Don 1 t youi

I~2 think the Waste Management decision is somewhat

3 limited because that was a unique situation?

4 MR. POLIKOFF: Those were the facts in the"

5 case, your Honor; but here, too, we have a lawyer,

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the Corporation Counsel, representing all of the

city departments. In the context of Waste

Management, we have a similarity in that regard.

9 Waste Management did not emphasize, didn 1 t

10 even talk about the specifics of the insurance

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company lawyer representation context situation in

discussing the two doctrines upon which it relied. I'

In fact, it says at one point in its opinion it is

the commonality of interest that determines the

application of the common interest doctrine.

We think the facts are different, as your

Honor i S question makes obvious. We think the

principles are the same. And when you add to those

principles the subsequent decisions, subsequent to

the so-called Sanitary District case, in the other

two cases I mentioned, the Consolidation Coal case

and the Birkett case, collectively these

pronouncements of the Supreme Court taken together

with the admonition repeated more than once that

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Ferguson v. Geò~~es

1 the attorney/client privilege should be narrowly I:

2 confined within the maximum possible limits taken I.;

3 together with the governmental context, we think

4 although facts are different in each case, ofL

5 course, we think the collective body of wisdom from

6 those three cases dictates the rule here,

7 especially the - - remember these are all Supreme

8 Court cases, and they say anytime you want to

9 extend an existing privilege, attorney/client

privilege, into a new area where it i S never before

been applied, judges should trot carefully.

My second point - - shall I move to that,

your Honor?

THE COURT: Please.

MR. POLIKOFF: - - is that apart from this in

our view controlling body of Illinois law there is

a body of law that Mr. Forde has referred to in the

form of a group of federal decisions that explores

the unique duty of government attorneys to

cooperate with an official investigation into

government misconduct rather than to frustrate it

by asserting the privilege.Al though these cases aren It precedential

here, as we all recognize, they compellingly

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Ferguson v. Geot':es

1 re-enforce in policy terms the result already

2 dictated by the Illinois law I referred to and the3 public policy I referred to, particularly Birkett's4 statement that governmental privileges, quote,

5 undermine the public trust.

6 The essential response of the Corporation

7 Counsel to these federal cases in the memoranda is

8 to argue that sound legal advice to government

9 officials can promote lawful conduct ¡but, of

10 course, the benefit of sound legal advice is11

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thoroughly discussed in those cases. Yet a

majority of them go the other way on the basis of

what I will summarize as the public's interest in

good government and transparency in government

affairs.The most recent case from the Seventh

Circuit does not indicate a different approach.

Here you had the Sanitary - - excuse me, here you

had the school board hiring Scott Lazar as

essentially a private attorney to investigate and

help on its - - investigate the facts and help itfigure out what the right thing to do.

if Bill Clinton in the federal cases we

cited hired a private attorney, sure, he would have


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had the benefit of the privilege. We did not have

in the South Berwin case an official body such as

an Inspector General investigating misconduct of

the school board. If that had been the case, it

would have been an entirely different -- II

THE COURT: Does it make any difference?

MR. POLIKOFF: Pardon me?

THE COURT: Does it make any difference?

MR. POLIKOFF: It makes a huge difference in my

opinion, your Honor. Government officials are

entitled to the benefit of the attorney/client

privilege if they hire attorneys who represent them

personally. As the cases indicate clearly, they

14 are not entitled to that benefit if they're using15 official counsel.16 In Bill Clinton's two cases, he used the17 office of legal counsel, the government attorneys.18

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He was denied the attorney/client privilege. The

Stventh Circuit here, when Governor Ryan was using

the official government attorney, he was denied the

attorney/client privilege.All of these cases recognize that if they

want to hire private counsel as they did in the

Scott Lazar case that's perfectly okay and they get


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1 the benefit of the privilege.2 The public policy, your Honor, embodied

3 here emphasizes as the Illinois Supreme Court did

4 the importance of transparency in government; and

5 the Court explicitly in the Birkett case deprecates

6 the, quote, chilling effect, which is the way they7 talk about the benefit of attorney/client privilege8

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to government employees, deprecates. It says in

the absence of the privilege they i re not convinced

that the chilling effect that everybody worries

about would happen. That i s the Illinois Supreme

Court, I emphasize, saying that and putting down

the significance of it when we i re talking about

official government attorneys being hired by

government employees.

There i S mention, i'll say only briefly,

about the rules of professional responsibility.They don't point in a di fferent direction. Supreme

19 Court Rule i. 6 on confidentiality explicitly states20 that dtsclosure may be made for the purpose of

21 complying with law; and it further says that the22 question of whether the law requires disclosure in23

24

the face of an attorney/client privilege claim is,quote, beyond the scope of these rules.

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617 e460c-Oea4-4218-8ba5-5f80c81fOb70A46

fl n. tÈ Ii' ~

Ferguson v. \Geo:tgesPage 24

1 So it i s obvious that an attorney/client

2 question before this Court isn i t answered by the

3 rules of professional conduct ¡rather, it i S for

4 this Court to determine as we believe the Illinois

5 law compels disclosure under the circumstances of

6 this case. So that's my second point, the body of

7 federal law pointing in the same direction.

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My third point is the IG has the capacity

to bring this suit. First, the ordinance

specifically contemplates that the Inspector

General shall enforce his own subpoena. Quote, the

Inspector General shall take no action to enforce

the subpoena for seven days. That i s what the

ordinance says, 2-56-040; and it's only by ignoring

that language, your Honor, contrary to familiar

rules of statutory construction that it could be

17 said that the Inspector General lacks the capacity

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to enforce his own subpoenas.

That i S almost a complete answer to the

question of capacity; but in addition, the Burnett

case which both parties have discussed in the

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memoranda make it perfectly clear that he has

capacity to sue. Burnett is the case involving the

county public defender suing the board president

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617 e460C-Oea4-218-8ba5-5f80ClJ~bfO

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Page 25

Ferguson v. GeOldes

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over a lay-off of employees.

The Corporation Counsel's essential

response to Burnett is that that case involved, as

the Court said, the agency's, quote, right to

exist; but the Court there was speaking

hyperbolically plain. What was actually at issue

was laying off the employees. The literal

existence of the agency was not at stake in that

case; rather what was at stake was the ability of

the agency to do its job effectively. And that, of

course, is precisely what's at stake in this case,

too.

We're not talking about laying off

employees. We i re talking about whether to fashion

15 what is essentially a new tool that the city could16 use to block or undermine official investigations17 of its own misconduct.

18 Corporation Counsel also argues that in19 Burnett the plaintiff agency was created by the20 state legislature, whereas here the plaintiff21 agency was created by a city legislature; but22 that's a difference of fact, not of legal23 principle.24 Burnet t involved two agencies of the

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617 e460c-Oea4-4218-8ba5-5f80c81 fOb70A48

0"6')'7

Page 26

Ferguson v. Geo~~s

1 county suing each other, just as other cases we've

2 cited involved agencies of the state suing each

3 other.

4 In the Environmental Protection Agency

5 case, state agencies, the court said, Supreme Court

6 again said, state agencies not infrequently do sue

7 each other, and a substantial body of such cases is

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cited in Suburban Cook County.

Now the case allegedly to the contrary

that i s cited on this capacity to sue point is thisTanner vs. Solomon case which Mr. Forde has just

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referred to, but Tanner is not to the contrary,

your Honor.

In Tanner there was a three-person board

of fire and police commissioners with one of the

three suing the other two because he didn't like

losing a two-to-one vote.

In our case and in the others involving

one - - many of the others involving one part of a

single government suing another part, you have

separate agencies created by law, not one member of

a single board suing the other members.

In fact, Tanner itseit says, quote -- I'm

24 quoting from 58 Appellate 2nd at 137, quote, there

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617 e460c-Oef4-4218-8ba5-5f80c81fOb70

U 0 028 A49

lFerguson v. Geo~des

Page 27

1 are cases in which it has been held proper for one

2 agency of government to resort to the courts to

3 resol ve a controversy with another government

4 agency. In the instant case, continuing the quote i

5 one member of a governmental body is suing the

6 other members of that same body.

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Now this case is clearly in the proper-to-

resort-to-the-courts category. We've got two

separate entities here. Each one of them has

scores of employees, separate budgets. They have

independent powers and so on. They're created

separately by ordinance even though they 1 re both

parts of the same overall government.

Indeed, your Honor, the Inspector General

is set up as an unusually independent entity. For

instance, he 1 s appointed for a fixed term. This isall under the ordinance. He can only be removed

for cause after a hearing before the City Council.

He has full authority, quoting the ordinance, over

the management and operations of his office and, of

course, the power to issue subpoenas that I've

already referred to. So that i s so much for the

capacity to sue.

The reply memorandum in this case, your


617 e460C-Oea4¡f218-8ba5-5f80C81 fOb 70

fJ U 0 2 9 A50

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Page 28

Ferguson v. Geor~s

Honor, also points out that in Burnett the Court

appointed an attorney to initiate the agency suit;

and Mr. Forde talks about the chaos that would

result if anybody could go off and hire his own

attorney. But in the Suburban Cook County case,~f;

the sui t was ~ - the Supreme Court - - no, I gues s ~

that i s the Appellate Court. The suit was initiated ~

~~~

with outside counsel hired by the agency just as we ~

have done only later after

THE COURT: Which case?

MR. POLIKOFF: Suburban Cook County, your

Honor, 282 Appellate 3rd at 564.

Only after the suit had been filed by the

outside counsel who had been hired to do it by the~

~

&~¡~

agency did the Court appoint that very counsel to

continue the litigation, a fact about which the~.~

~~-q

Corporation Counsel's memorandum is completely

silent. A discussion of the hiring of the private

counsel is at Page 564 and 574, your Honor, of 282i~

¡;~

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Illinois Appellate 3rd.

I'm not sure that court appointment of a

counsel is necessary in this case. In both Burnett

and Suburban Cook County we have a statute that ,

authorized court appointment when the Attorney

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617 e460c-Oea4-4218.8ba5.5f80c81fOb 70

0003 nASI

Page 29

Ferguson v. Geo~~es

1 General or a State i s Attorney could not act, as the

2 Corporation Counsel cannot act here, which I'll

3 come to in a moment; but there are no such statute,

4 no similar statute applicable at the municipal

5 level. So I'm not sure any court appointment of

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counsel is necessary.

And, by the way, counsel here is acting

8 pro bono. No question of fees is involved. And as

9 I read the cases i court appointment may be

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desirable i even necessary i if somebody is going to

be asked to pay the fees i some governmental body;

but that's not the case here.

But in any case i your Honor, you have

discretionary power to appoint counsel if you wish

to do so i just as they did in the Suburban Cook

County case.

What's plainly determinative in this

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context is the impossibility of the Corporation

Counsel representing the Inspector General in this

matter i where as we have here in this case an

attorney is actually an opposing party i there is an

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absolute ethical bar against representing both

sides as our memorandum makes clear which is noted

at the Suburban Cook County casei againi Page 564

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617e460c-Oea4-421S-Sba5-5fSOcS1fOb 70

(gif':f:i.f A52U' ¡~ H ./. ij

Page 30

Ferguson v. Geor~-es

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and 574, where it thoroughly discusses this point

and says, your Honor - - I want to emphasize this

quote, the procedure followed in this case was a

proper one. That's at Page 574 to 76 of 282

5 Appellate 2nd.

6 The procedure that was proper in that case

7 is identical to the procedure the Inspector General

8 has followed here, namely, employing an attorney to

9 initiate suit, it being clear because of an

10 absolute ethical preclusion that the Corporation11 Counsel cannot represent him in this case.12 Your Honor will be happy to know I13

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finished my third point. Now my final point

quickly

THE COURT: Not at all, Mr. Polikoff.

MR. POLIKOFF: Thank you.

My last point has to do with the

contention that declaratory judgment and mandamus

don i t lie here. As the memoranda point out, we

think that contention flies directly in the face of

the authorities that we've cited.

If we i re right about the law, for example,

that government lawyers cannot properly claim the

attorney/client privilege in an official


617 e460c-Oea4-4218-8ba5-5f80c81fOb 70

f~ l' ¿' . AS3uì i' ~6 ~l ?

Page 31

Ferguson v. Geot,~¿s

1 investigation of government misconduct, then the

2 Corporation Counsel has no discretion not to comply

3 wi th the subpoena that 1 s been duly served on her.

4 And requiring performance of a non-discretionary

5 duty, of course, is precisely the traditional

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office of the writ of mandamus.

I hate to keep citing the same case¡ but

8 in the Suburban Cook County case, again, they said

9 after this long, festering conflict that's

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described in the case the complaint was proper and

it was primarily a mandamus action. And, of

course, both declaratory judgment and mandamus lie

even if' other relief is available, and memoranda of

the Corporation Counsel concede that the so-called

direct action to enforce the subpoena lies. They

don 1 t even attack that.

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Okay. i would like with your Honor 1 s

permission to take a half a second now, maybe half

a minute, to quickly summarize my four points.

First, a group of Illinois Supreme Court

decisions, not one, not only Waste Management i but

Waste Management collectively with the Coal case i

Consolidation Coal i collectively with Birkett i you

look at those together. They collectively express


617e460c-Oea4-4218-8ba5-5f80c81 fOb 70

00033 A54

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Page 32

Ferguson v. Geot~s

1 the latest views of the Illinois Supreme Court on

2 the attorney/client issue, and we think that there

3 has been no effective response to those decisions,

4 and we think that those decisions articulate clear

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doctrinal and strong public policy reasons for thisCourt to continue to confine the attorney/client

7 privilege within the narrowest possible limits as

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the Court has said repeatedly and not to violate

that inj unction of the Supreme Court by making the

privilege available where it has never before been

made available in Illinois judicial history.

That's a quick summary of my point NO.1. It pains

me to state it so briefly.

Second point summary, the result dictated

by Illinois law and public policy is strongly

supported by the federal cases. This most recent

case doesn't change that one bit for the reason

that I stated.

Those cases emphasize the same point the

Illinois Supreme Court has itself emphasized,

namely, the importance of government transparency

and the public trust in a democratic society; and

the Illinois rules of professional conduct, as I've

pointed out, are entirely consistent with that

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617 e460c-Oea4-4218-8ba5-5f80c81fOb70

00034 ASS

Page 33

Ferguson v. Geot~~s

1 public policy.2 Thirdly, I made the point to your Honor

3 that under Illinois precedence the Inspector

4 General plainly has the capacity to bring this

5 suit; and it's absolutely clear without doubt,

6 without argument from the other side that the

7 Corporation Counsel has no authority under ethical

8 rules to represent the Inspector General in this

9 case because she's on the other side as a named

10 party.11 And fourth and finally, the Inspector12 General has utilized his capacity to proceed in a13

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correct procedural manner. He's got three counts.We think declaratory judgment and mandamus clearly

lie and in any event the direct enforcement of the

subpoena i sn 't even attacked.

Your Honor, I thank you for your patience.


MR. FORDE: Very brief reply, your Honor. As

to the attorney/client privilege and the Illinoiscases that Mr. Polikoff refers to, first of all,

Birkett has nothing to do with the attorney/clientpri vilege. They ask the Court in that case tocreate a new privilege regarding certain


617 e460c-Oea4-4218-8ba5-5f80c81 fOb 70

n .n d), OJ r: AS 6U' H ~t .~ .1,

Page 34

Ferguson v. Geoides

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deliberations of a municipality, and the Supreme

Court said we don i t create new privileges; that's

for the legislature to do. And I don't think any

of us have any disagreement with that. But it hasI:

nothing to do with attorney/client privilege.

Consolidated Coal says don't apply the

privilege too broadly, but that 1 s just a nicegeneral statement. We i re not asking that the

privilege be applied broadly. We're asking that itbe applied the way it has traditionally been

applied as the Seventh Circuit just explained.

The Sanitary District case, that did

involve an employee giving advice to an officer of

the Sanitary District, in fact, the president of

the district; and that was the advice that the

Court found could not be violated in that very

important prosecution.

And Waste Management, your Honor has

explained why the common interest doctrine doesn't

apply. They have no common interest here. In this

controversy, Ms. Georges never represented the

Inspector General. They're adverse; and, in fact,gi ving these documents to the Inspector General, he

is outside the control group. That would result in


617 e460c-Oea4-4218-8baS.Sf80c81fOb 70

AS?OOO:l~

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Page 35

Ferguson v. Geori~ßs

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a waiver of the privilege and makes these documents

available to the world, and I don't know why anyone

would propose that. So that disposes of the

attorney/client arguments. And insofar as the

5 federal law is concerned, we've discussed that

6 sufficiently.7 In insofar as the authority to retain8 counsel - - and I want to emphasize Ms. Georges and

9 i are not questioning the wisdom of the choice, but

10 it i s the point that a deputy can't go out hiring11 lawyers and bringing their own cases.12 In the Burnett case, the public defender13 went to the

State 's Attorney and asked the State's

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At torney to represent him. When he couldn't / he

went and filed the request with the Court for the

appointment of counsel. That's all I have / your

Honor.


MR. POLIKOFF: Can I jus t add one word --

THE COURT: No.

MR. POLIKOFF: on the new point about making

it available to the world?

THE COURT: No.

MR. POLIKOFF: In our view, not so.

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617 e460c-Oea4-4218-8ba5-5f80c81 fOb 70

00037 AS8

Page 36

Ferguson v. Geot~s

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THE COURT: No would be the answer.

MR. POLIKOFF: Inspector General has got a duty

of confidentiality.

THE COURT: Okay. I'm ready to rule.

First of all, the Court must express that

it is very appreciative of the thorough exposition

of the issues that appeared in both briefs, all the

briefs of both sides and the arguments today before

the Court.

In contrast, of course, ruling here will

appear no doubt to be very spare; but the Court has

relied upon the exposition in the briefs and

incorporates all that in its ruling.

So I am going to grant the motion to

dismiss, and I will dismiss the complaint with

prej udice for two reasons.The first reason is it's very doubtful

that the municipal code provides authority for the

Inspector General to engage his own attorney.

Certainly there is no provision expressly saying so

in the municipal code, nor is there any provision

for which that authority can reasonably be applied.

I would also cite the EPA vs. Pollution

Control Board of the Supreme Court from 1977


617 e460c-Oea4-4218-8baS-Sf80c81fOb70

if 0 038 A59

Page 37

Ferguson v. Geor~es

1 located at 69 Illinois 2nd 394 which certainly

2 would suggest that there is no such authority.

3 The Court concludes that Ms. Georges,

4 being the attorney for the city, it would be up to5 her to determine that there was a conflict, which

6 there obviously is, and to seek authorization from

7 ci ty council to engage special counsel for the

8 Inspector General or perhaps, as Mr. Polikoff

9 suggests today, to ask the Court, citing Suburban

10 Cook County, to appoint special counsel.11 The second reason and, I f m sure, the more

12 important reason I i m going to grant the motion to13 dismiss is the Court concludes that the complaint14 should be dismissed on its merits for the reasons15 that as a matter of law the Inspector General16 cannot seek the documents he seeks here because

17 they are protected by the attorney/client18 privilege.19 The Court agrees with the defendant that20 Illinois law strongly supports the attorney/client21 pri vilege and that that privilege has always been22 available both to private clients and their private23

24

attorneys and to government clients and their

government attorneys. The Court does not view


617 e460c-Oea4-4218-8ba5-5f80c81 fOb70A60

00 n 3 ~

Ferguson v. GeoÌ.'~s

Page 38

1 honoring the privilege in this case as an extension

2 of that privilege.3 The serious public policy behind that

4 privilege has been set out in all the cases and in

5 the briefs here today, and I don't think I need to

6 recite them to explain that I am relying on it.7 The 1932 Supreme Court Sanitary District

8 case did briefly acknowledge the existence of that

9

10

11

privilege in a government setting. Admittedly it

was not a holding in the case. There was no

discussion, but it flatly and clearly did

12 acknowledge the existence of the attorney/client13 privilege in a government setting.14 i also find the Seventh Circuit decision15 in Sandra TE from 2009 to be very explicitly saying

16 that the attorney/client privilege for government17 employees and their attorneys is operable in civil18

19

cases. In turn, that case cites the Sixth Circuit

decision in Ross, R-o-s-s, vs. The City of Memphis

20 decided in 2005.21 On that basis i the Court feels very22 comfortable believing that the attorney/client23 privilege exists here and that Ms. Georges has the24 right to assert that and that the complaint must be


617 e460c-Oea4-218-8ba5-5f80c81 fOb 70

0004:0 A61

Page 39

Ferguson v. Geo~.es

1 dismissed with prej udice.

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MR. FORDE: Thank you, your Honor.

MR. POLIKOFF: Thank you.

(Which were all the proceedings

had in the above-entitled cause

at this time.)

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617e460c-Oea4-4218-8ba5-5f80c81fOb70

0(1041 A62

Page 40

Ferguson v. Geo~ ~s

1 STATE OF ILLINOIS

SS:

2 COUNTY OF COOK

3 I, ANGELA M. INGHAM, a Notary Pub 1 i c

4 within and for the County of Cook, State of

5 Illinois, and a Certified Shorthand Reporter of

6 said state, do hereby certify that I reported in7 shorthand the proceedings had at the taking of said

8 hearing and that the foregoing is a true, complete,

9 and correct transcript of my shorthand notes as

10 taken as aforesaid, and contains all the11 proceedings given at said hearing.12 In witness whereof, I have hereunto set my13 hand and affixed my notarial seal this ~/l/ day of14 -Mhft 2010.15

~~ ~~~18

Notary Public, Cook County, Illinois

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C.S.R. license No. 084-002984


617 e460c-Oea4-21S-Sba5-5fSOcS1fOb 70

00042 A63

Orter5 i .

:::

(.~I. '; . (2/24/05) CCG N002

.:~.

r: IN THE CmCUI COURT OF COOK COUNTY, ILLINOIS

f~O~

v. No. 12 (tJ 1f3)2 i

~"Sd"l

0JfCY:5

ORDER

¡1i'i C-i".H / C O,si'r) ft be !,,,r/, ~ clf;,, 'tt: /'0 lJ Y)

-¡ ,(r)¡?/Ys / ,-t C~r/l"'?;:/f qp/1-v( /l~ l4V;~ kç¡/,c(

q,IJ If)! h f rf- ~ (J f!¡; z; f( ~ f:

L P4Mil/./ c(Jt1f k,'n 1- 1$ Ár'sPlrl r; I//Wi fCJ~èt, l'"

K &'i~tl~ rf,fe~ À ~P' C~rlT

Att. No.: 6:i i~ri t.1 e.

Name: ltvl, él1!kv.. /Att. for: 11 Ç.~nf: .

Address: Iii. W. I1f'\io!' ik . ¡lit?

vOty/Stteip: ~ Pi 7;'- G '?¡ÇO 1.

Telepbone: 30/ 6 'f- /' 't

DOROTHY BROWN, CLERK OF THE CmCUI COURT OF COOK COUNTY, ILLINOISORIGINAL-CURT FILE COO 1 2 Ö

A64

ENTERED:

Judge's No.

Dated:

ORDINANCES INOLVED

Municipal Code of Chicago, IlL. § 2-4-010 (2011)

Appointment powers and duties.The mayor shall appoint, by and with the advice and consent ofthe city council, all offcers of the city whose appointment is nototherwise provided by the laws of this state or the provisions ofthis code. Whenever a vacancy shall occur in any offce which bylaw he is empowered to fill, the mayor shall, within 30 daysafter the occurrence of such vacancy, communicate to the citycouncil the name of his appointee to such office.

Municipal Code of Chicago, IlL. § 2-4-020 (2011)

Supervisory authority - Administrative officer appointment, powersand duties.The mayor shall supervise the conduct of all the officers of thecity, and, as to all who are exempt from the provisions of thecivil service act, he shall examine the grounds of all reasonablecomplaints made against any of them and cause their violationof duty and other offenses, if any, to be promptly punished.

The mayor shall appoint, with the consent of the city council,an officer to be known as the mayor's administrative officer whoshall serve at the pleasure of the mayor. Such officer shall havehad at least five years' experience in responsible government orprivate administrative positions as shall qualify him for theduties of the office.

The mayor's administrative officer, subject to the directionand control of the mayor, shall supervise the administrativemanagement of all city departments, boards, commissions andother city agencies established by this code and the laws of thisstate.

In addition to such supervisory power, the mayor'sadministrative officer may, in respect to any or all agenciesunder his supervision, establish reporting procedures, requirethe submission of progress reports, provide for the coordinationof the activities of such agencies, and shall perform such otheradministrative and executive functions as may be delegated bythe mayor. He shall make periodic reports with suchrecommendations as he deems appropriate to the mayorconcerning the administrative management of all departments,

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boards, commissions and agencies of the city.

If the mayor's administrative officer is dismissed, he may,within 30 days thereafter, report his objections to the dismissalin writing to the city council, which report shall be printed inthe journal of proceedings of the city council for the meeting atwhich such report is submitted to the city counciL.

Municipal Code of Chicago, IlL. § 2-4-030 (2011):

Ordinance enforcement authority.The mayor, in addition to the duties, powers and functionsvested in him by statute as the chief executive officer of the cityand those specifically vested in him by the provisions of thiscode, shall have authority to act, or to designate the officer whoshall act, in the enforcement of any ordinance of the city in allcases where an ordinance fails to specify the officer who shall becharged with the duty of enforcement.


Establishment-Composition.There is hereby established an office of the municipalgovernment to be known as the office of inspector general, whichshall include an inspector general and such deputies, assistantsand other employees as may be provided in the annualappropriation ordinance.


Inspector general - Appointment and authority.The inspector general shall be appointed by the mayor, subjectto approval of the city council, and shall have responsibility forthe operation and management of the office of inspector general.He shall be appointed for a term of four years.


Inspector general - Powers and duties.In addition to other powers conferred herein, the

inspector general shall have the following powers and duties:

(a) To receive and register complaints and information

concerning misconduct, inefficiency and waste within the citygovernment;

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(b) To investigate the performance of governmental

officers, employees, functions and programs, either in responseto complaint or on the inspector general's own initiative, inorder to detect and prevent misconduct, inefficiency and wastewithin the programs and operations of the city government;

(c) To promote economy, efficiency, effectiveness and

integrity in the administration of the programs and operationsof the city government by reviewing programs, identifying anyineffciencies, waste and potential for misconduct therein, andrecommending to the mayor and the city council policies andmethods for the elimination of inefficiencies and waste, and theprevention of misconduct;

(d) To report to the mayor concerning results of

investigations undertaken by the office of inspector general;

(e) To request information related to an investigation

from any employee, officer, agent or licensee of the city;

(f) To conduct public hearings, at his discretion, in the

cour(se) of an investigation hereunder;

(g) To administer oaths and to examine witnesses

under oath;

(h) To issue subpoenas to compel the attendance of

witnesses for purposes of examination and the production ofdocuments and other items for inspection and/or duplication.Issuance of subpoenas shall be subject to the restrictionscontained in Section 2-56-040;

(i) To promulgate rules and regulations for the

conduct of investigations and public hearings consistent withthe requirements of due process of law and equal protectionunder the law.

Municipal Code of Chicago, ILL. § 2-56-035 (2011):

Monitoring employment actions.(a) Definitions. As used in this section:

"Hiring plan" means the hiring plan adopted by the Cityof Chicago in 2007 and approved, on January 18, 2008, by theCourt in Shakman, et al. v. City of Chicago, et aI, Case Number69 C 2145 (N.D. ILL.), setting forth the governing principles forcity hiring and other employment actions concerning both

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internal and external applicants and candidates. As used inthis section, references to the hiring plan shall include the planas amended from time to time.

"Employment action(s)" includes, but is not limited to,hiring, firing, promotion, demotion, lay-off, reinstatement,re-employment, transfer, reclassification, overtime, and/or theassignment of any job benefit.

(b) Powers and duties. The inspector general shallhave the authority to monitor employment actions under thehiring plan and related policies and procedures. In addition, theinspector general shall have the authority to investigate

allegations of non-compliance with the hiring plan and relatedpolicies and procedures. Complaints concerning employmentactions and related policies and procedures, including claims ofunlawful political discrimination, shall be made to the inspectorgeneral.

(c) Reporting on monitoring of employment actions.

Notwithstanding anything to the contrary, the inspector generalshall issue reports as required by the hiring plan and asotherwise necessary to carry out his functions under thissection. These reports wil be considered public records and wilbe posted, with identifying information stricken, on theinspector general's website.

The inspector general shall also issue quarterly andannual reports that include statistics on the number ofescalations (as that term is defined in the hiring plan) newlyinitiated, pending, closed with investigation, and closed withoutinvestigation. The quarterly and annual reports shall alsoinclude a description of the outcomes, findings,recommendations, and actions taken on the recommendations ofany investigation of an escalation.

The inspector general shall redact the personalidentifying information prior to posting such reports on theLG.O. website.


Subpoena issuance and contents - Objections.The inspector general shall issue subpoenas only if (a) he

is conducting an investigation authorized by this chapter; and(b) the investigation relates to misconduct within the programs

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and operation of the city government by any person described inSection 2-56-050; and (c) the inspector general has a reasonablebelief that such misconduct has occurred; and (d) the testimonyof the witness or the documents or items sought by the subpoenaare relevant to the investigation. A subpoena shall be served inthe same manner as subpoenas issued under the Rules of theIllinois Supreme Court to compel appearance of a deponent, andsubject to the same witness and mileage fees fixed by law forsuch subpoenas.

A subpoena issued under this chapter shall identify theperson to whom it is directed and the documents or other itemssought thereby, if any, and the date, time and place for theappearance of the witness and production of the documents orother items described in the subpoena. In no event shall thedate for examination or production be less than seven days afterservice of the subpoena.

No later than the:time for appearance or productionrequired by the subpoena, the person to whom the subpoena isdirected may object to the subpoena, in whole or in part. Theobjection shall be in writing, delivered to the inspector general,and shall specify the grounds for the objection. For seven daysafter receipt of a timely objection to a subpoena, the inspectorgeneral shall take no action to enforce the subpoena or toinitiate prosecution of the person to whom the subpoena isdirected. During this seven-day period, the inspector generalshall consider the grounds for the objection and may attempt toresolve the objection through negotiation with the person towhom the subpoena is directed. The seven-day period may beextended by the inspector general in order to allow completion ofany negotiations. The extension shall be in writing addressed tothe person to whom the subpoena is directed, and shall specifythe date on which the negotiation period will end. Negotiationsmay include such matters as the scope of the subpoena and thetime, place and manner of response thereto. The filing of anobjection to a subpoena, and negotiations pursuant to anobjection, shall not constitute refusal to comply with thesubpoena, or interference with or obstruction of aninvestigation.


Conduct of city officers, employees and other entities.The powers and duties of the inspector general shall

extend to the conduct of the following: (a) except as limited inA69

this section all elected and appointed officers of the citygovernment in the performance of their official duties; (b) exceptas limited in this section, all employees of the city governmentin the performance of their offcial duties; (c) all contractors andsubcontractors in the providing of goods or services to the citypursuant to a contract; (d) business entities in seeking contractsor certification of eligibility for city contracts; and (e) personsseeking certification of eligibility for participation in any cityprogram. Notwithstanding anything to the contrary containedherein, the office of inspector general shall have no power orauthority over any member of the city council, or any citycouncil employee, as defined in Section 2-55-010 of theMunicipal Code of Chicago. If the office of inspector generalreceives any complaint alleging misconduct, inefficiency orwaste against any member of the city council or any city councilemployee, as defined in Section 2-55-010 of the Municipal Codeof Chicago, the inspector general shall promptly transmit saidcomplaint to the legislative inspector general. Nothing in thissection shall preclude the inspector general from referring acomplaint or information concerning a member of the citycouncilor any employee or staff person of any member of the citycouncilor any employee or any staff person of any city councilcommittee to the appropriate federal, state or local lawenforcement authorities.


Investigation reports.Upon conclusion of an investigation the inspector general

shall issue a summary report thereon. The report shall be filedwith the mayor, and may be filed with the head of eachdepartment or other agency affected by or involved in theinvestigation. The report shall include the following:

(a) A description of any complaints or other

information received by the inspector general pertinent to theinvestigation;

(b) A description of any illegal conduct, inefficiencies

or waste observed or discovered in the course of theinvestigation;

(c) Recommendations for correction of any ilegalconduct, inefficiencies or waste described in the report;

(d) Such other information as the inspector generalA70

may deem relevant to the investigation or resultingrecommenda tions.


Response to recommendations by the inspector general.If the inspector general issues a recommendation of discipline toa department head or affected entity, that department head oraffected entity must respond to that recommendation within 30days with a written response to the inspector general. Thisresponse must include either (1) a description of any disciplinaryaction the department head has taken with respect to theemployee in question or (2) a request for a 30-day extension ofthe 30-day decision period if additional time is needed by thedepartment head to review the recommendation of discipline. Ifthe department head or affected entity did not take anydisciplinary action, or took a different disciplinary action thanthat recommended by the inspector general, the departmenthead or affected entity must describe the different action andexplain the reasons for the different action in the writtenresponse. This response must be submitted to the inspectorgeneral within the 30-day decision period. The inspector

general may approve a request for an extension of this 30-daydecision period for a period of time not to exceed 30 days ifadditional time is needed by the department head or affectedentity to review the recommendation of discipline.


Confidentiality of Informants - Exceptions.The summary report shall not mention the name of any

informant, complainant, witness or person investigated, exceptin the following instances:

(a) Where the copy of the report given to the head ofany department or agency recommends disciplinary actionagainst an employee of that agency;

(b) Where the copy of the report given to the chiefprocurement offcer makes recommendations concerning anycontractor, subcontractor, applicant for a contract, or personseeking certification of eligibility for a contract;

(c) Where the copy of the report given to the head of adepartment or agency makes recommendations conceming aperson seeking certification of eligibility for a program

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administered by the department or agency;

(d) Where the copy given to the mayor recommendsdisciplinary action against the head or any employee of anyexecutive department or agency.


Investigations not concluded within twelve months.No later than the fifteenth day of January, April, July andOctober of each year, the inspector general shall submit to the

mayor a report, accurate to the last day of the preceding month,indicating (1) the number of current investigations pending formore than twelve months; (2) the general nature of theallegations giving rise to each such investigation; and (3) thereason(s) why each such investigation is stil pending.


Cooperation in investigations.It shall be the duty of every offcer, employee,

department, agency, contractor, subcontractor and licensee ofthe city, and every applicant for certification of eligibility for acity contract or program, to cooperate with the inspector generalin any investigation or hearing undertaken pursuant to thischapter. Each department's premises, equipment, personnel,

books, records and papers shall be made available as soon aspracticable to the inspector general. Every city contract andevery bid, proposal, application or solicitation for a city contract,and every application for certification of eligibility for a citycontract or program shall contain a statement that the personunderstands and wil abide by all provisions of this chapter.


Retaliation prohibited.

No person shall retaliate against, punish or penalize any otherperson for complaining to, cooperating with or assisting theinspector general in the performance of his office.


Files and reports confidential - Public statements authorizedwhen.

Except as otherwise provided herein, all investigatoryfiles and reports of the office of inspector general shall be

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confidential and shall not be divulged to any person or agency,except to the United States Attorney, the Illinois AttorneyGeneral or the State's Attorney of Cook County, or as otherwiseprovided in this chapter. The inspector general is authorized toissue public statements in the following circumstances: (a) if aninvestigation exonerates a person who is publicly known to havebeen under investigation, where such person requests such astatement; (b) subject to the conditions set forth in subsection(b) of this section, if an investigation, audit or inspectionconcerns inefficient or wasteful management; and (c) in a publicsummary of each investigation resulting in sustained findings ofmisconduct. The public summary shall briefly state, withoutdisclosing the name of any individual who was the subject ofsuch investigation, (i) the nature of the allegation or complaint;(ii) the specific violations resulting in sustained findings; (iii)the inspector general's recommendation for discipline or othercorrective measures; and (iv) the city's response to and finaldecision on the inspector general's recommendation.


Quarterly reports to city counciL.No later than the fifteenth day of January, April, July

and October of each year, the inspector general shall fie withthe city council a report, accurate as of the last day of the

preceding month, indicating: the number of investigationsinitiated since the date of the last report; the number ofinvestigations concluded since the last report; and the number ofinvestigations pending as of the reporting date. The report shallalso include the number of investigations of the conduct ofemployees; the number of investigations of the conduct ofappointed officials; the number of investigations of the conductof elected offcials; the number of investigations of the conduct ofcontractors, subcontractors and persons seeking city contracts;the number of investigations of the cond~ct of persons seekingcertification of eligibility for city contracts or other cityprograms; the number of investigations involving allegedmisconduct; the number of investigations involving allegedwaste or inefficiency.


Inspector general - Conditions for removal from offce.The inspector general may be removed prior to the

expiration of his term only for cause and in accordance with theprovisions of this section. The mayor shall give written notice (a)

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to the city council of his intent to remove the inspector general;and (b) to the inspector general of the cause of his intendedremovaL. Within ten days after receipt of the notice, theinspector general may file with the city council a request forhearing on the cause for removaL. If no such request is madewithin ten days, the inspector general shall be deemed to haveresigned his office as of the tenth day after receipt of the noticeof intended removaL. If such a request is made, the city councilshall convene a hearing on the cause for removal of the inspectorgeneral, at which the inspector general may appear, berepresented by counsel and be heard. The hearing shall beconvened within ten days after receipt of the request thereforand conclude within 14 days thereafter. The mayor's notice ofintended removal shall constitute the charge against theinspector generaL. Removal of the inspector general for causeafter the hearing shall require the affrmative vote of a majorityof the members of the city council then holding offce.


Obstructing or interfering with investigations - Penalty.No person shall wilfully refuse to comply with a subpoena

issued by the inspector general, or otherwise knowinglyinterfere with or obstruct an investigation authorized by thischapter and conducted by an announced investigator of theoffice of inspector generaL. Any person who wilfully violates theprovisions of this section shall be subject to a fine of not lessthan $300.00 and not more than $500.00 for each such offense,or imprisonment for a period of not less than 30 days and notmore than six months, or both a fine and imprisonment. Eachday that a violation continues shall constitute a separate anddistinct offense. Actions seeking the imposition of a fine onlyshall be filed as quasi-criminal actions subject to the provisionsof the Illinois Code of Civil Procedure, as amended. Actionsseeking incarceration, or incarceration and a fine, shall be filedand prosecuted as misdemeanor actions under the procedure setforth in Section 1-2-1.1 of the Illinois Municipal Code, asamended.


Political activities prohibited.Neither the inspector general nor any employee of the

office of inspector general shall engage in any political activityas defined in Chapter 2-156 of the Municipal Code.

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Violation - Penalty - Discharge or other discipline.Any employee or appointed offcer of the city who violates

any provision of this chapter shall be subject to discharge (orsuch other discipline as may be specified in an applicablecollective bargaining agreement) in addition to any otherpenalty provided in this chapter.


Severability.If any provision, clause, section, part or application of this

chapter to any person or circumstance is declared invalid by anycourt of competent jurisdiction, such invalidity shall not affect,impair or invalidate the remainder hereof or its application toany other person or circumstance. It is hereby declared to be thelegislative intent of the city council that this chapter would havebeen adopted had such invalid provision, clause, section, part orapplication not been included herein. Nothing contained in thischapter is intended otherwise to alter or amend the rights orobligations of the city or any person affected by this ordinance.


Corporation counsel - Appointment - Powers and duties.There is hereby created the offce of corporation counseL.

He shall be appointed by the mayor, by and with the advice andconsent of the city council, and shall be the head of thedepartment of law of the city.

The corporation counsel shall perform the following

duties:

(a) Superintend and, with his assistants and clerks,

conduct all the law business of the city;

(b) Appear for and protect the rights and interests ofthe city in all actions, suits and proceedings brought by oragainst it or any city offcer, board or department, includingactions for damages when brought against such. officer in hisofficial capacity;

(c) Appear for and protect the rights and interests ofthe city in all actions, suits and proceedings brought against anyadministrative law officer appointed pursuant to Chapter 2-14,

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including actions for damages, when brought against suchofficer for performing duties for the city in his official capacity.A lawyer representing an officer pursuant to this subsection (c)may not during such period of representation appear before suchofficer. The corporation counsel may promulgate suchadditional rules as necessary to ensure the properadministration of this subsection (c);

(d) Appear for and defend any member, offcer or

employee of the board of health, police department or firedepartment who is sued personally for damages claimed inconsequence of any act or omission or neglect of his offcialduties or in consequence of any act under color of authority or inconsequence of any alleged negligence while engaged in theperformance of such duties;

(e) Certify to the city comptroller all judgments

rendered against the city as of the date following the last day onwhich appeal may be made, when in the opinion of thecorporation counsel no further proceedings are proper; provided,that when the corporation counsel is of the opinion that anappeal is not justified, he may certify such judgment to the citycomptroller at any time, and provided further, that when ajudgment is rendered against any member of the policedepartment for injury to person or property resulting from theperformance of his duties as a policeman, he shall certify suchjudgment to the city comptroller for payment by the city, when,in his opinion, such member of the police department has notbeen guilty of wilful misconduct and the corporation counsel isof the opinion that an appeal is not justified.

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TABLE OF CONTENTS OF THE RECORD ON APPEAL

Volume 1 of 2 - Common Law Record

Date Document Page(s)

Nov. 4, 2009

Nov. 4, 2009

Nov. 4, 2009

Nov. 10, 2009

Dec. 8, 2009

Dec. 9,2009

Dec. 14,2009

Dec. 16,2009

Dec. 16, 2009

Dec. 23, 2009

Dec. 23,2009

Dec. 23,2009

Dec. 16, 2009

Placita ...................................... C. 1

Chancery Division Civil Cover Sheet. . . . . . . . . . . . . . C. 2

Verified Complaint for Declaratory Judgmentand Other Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . C. 3-31

Summons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. 32

Mfidavit of Service ........................... C. 33

Appearance ................................. C. 34

Notice of Motion and Defendant'sUnopposed Motion for Extension of Time C.35-39

Notice of Motion and Plaintiffs UnopposedMotion for Substitution of Successorin Office ................. -. . . . . . . . . . . . . .. C.40-42

Circuit Court Order. . . . . . . . . . . . . . . . . . . . . . . . . . . C. 43

Order of Presiding Judge, Chancery Division. . . . . . C. 44

Notice of Filing and Defendant's Motionto Dismiss ............................... C. 45-47

Notice of Motion and Defendant's Motion forLeave to File Instanter Memorandum inSupport of Motion to Dismiss in Excess of15 pages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. 48-7û

Notice of Filing and Defendant's Memorandum InSupport of Motion to Dismiss. . . . . . . . . . . . . . .. C.71-90

Circuit Court Order On Motion forExtension of Time . . . . . . . . . . . . . . . . . . . . . . . . .. C. 90A

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Dec. 16,2009

Dec. 30, 2009

Jan. 5,2010

Feb. 4, 2010

Mar. 4, 2010

Mar. 11,2010

Apr. 21, 2010

Apr. 27,2010

Apr. 30, 2010

Apr. 30, 2010

June 24, 2010

Circuit Court Order on Motion for Substitutionof Successor in Offce ......................... C. 91

Circuit Court Order. . . . . . . . . . . . . . . . . . . . . . . .. C.91A

Circuit Court Order. . . . . . . . . . . . . . . . . . . . . . . . . . . C. 92

Plaintiffs Memorandum Opposing Motion toDismiss and Notice of Filing ............... C. 93- 109

Notice of Filing and Defendant's Reply inSupport of Motion to Dismiss . . . . . . . . . . . . . . . C. 110-26

Circuit Court Order. . . . . . .. . . . . . . . . . . . . . . . . . . C. 127

Circuit Court Order. . . . . . . . . . . . . . . . . . . . . . . . . . C. 128

Plaintiffs Notice of Appeal. . . . . . . . . . . . . . . . . . . . C. 129

Request for Preparation of Record

on Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. 130

Letter to Dorothy Brown, Clerk òf theCircuit Court of Cook County, Illinois ........ C. 131-32

Appellate Court Certification Page ............. C. 133

Volume 2 of 2 - Report of Proceedings

Date Document Page(s)

Apr. 21,2010

May 20, 2010

Apr. 30, 2010

May 20, 2010

Placita ........................................ 1

Report of Proceedings, Motion to Dismiss,before the Honorable Nancy J. Arnold, Judge of theCircuit Court of Cook County, Illinois,County Department, Chancery Division .......... 2-53

Letter to Dorothy Brown, Clerk of theCircuit Court of Cook County, Illinois . . . . . . . . . . . . . . 54

Letter to Counsel for Plaintiff .................... 56

Notice of Filing ................................ 57

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June 24, 2010 Appellate Court Certification Page ................ 58

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CERTIFICATE OF COMPLIACE

I hereby certify that this brief conforms with the requirements of Rules34l(a) and (b). The length of this brief, excluding the pages containing theRule 341(d) cover, the Rule 34l(h)(1) statement of points and authorities, theRule 341(c) certificate of compliance, the certificate of service, and thosematters to be appended to the brief under Rule 342(a), is 41 pages.

¡ia C~J. RK POWELL, Attorney

CERTIFICATE OF SERVICE

I certify that I served the Brief and Appendix of Defendant-Appellant byplacing three copies in an envelope with sufficient postage affixed anddirected to the person named below, at the address indicated, and depositingthat envelope in a United States mail box in Chicago, Illinois, before 5:00 onDecember 23,2011.

Person served:

Alexander PolikoffBusiness and Professional People for the Public Interest25 East Washington Street, Suite 1515Chicago, IL 60602