{ "id": 1295582, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS WILKINSON et al., Defendants-Appellees", "name_abbreviation": "People v. Wilkinson", "decision_date": "1996-11-15", "docket_number": "No. 3\u201495\u20140775", "first_page": "727", "last_page": "739", "citations": [ { "type": "official", "cite": "285 Ill. App. 3d 727" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "546 N.E.2d 1091", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "1096" } ], "opinion_index": 0 }, { "cite": "190 Ill. App. 3d 701", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2517823 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "708-09" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/0701-01" ] }, { "cite": "568 N.E.2d 870", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "873" }, { "page": "875" } ], "opinion_index": 0 }, { "cite": "142 Ill. 2d 495", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236738 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "502" }, { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0495-01" ] }, { "cite": "560 N.E.2d 303", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "308" } ], "opinion_index": 0 }, { "cite": "137 Ill. 2d 162", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251559 ], "year": 1990, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0162-01" ] }, { "cite": "429 N.E.2d 901", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "903" } ], "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 117", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3071674 ], "year": 1981, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0117-01" ] }, { "cite": "485 N.E.2d 1325", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "1330" } ], "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 836", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499702 ], "year": 1985, "pin_cites": [ { "page": "842-43" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0836-01" ] }, { "cite": "214 Ill. App. 201", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5451382 ], "weight": 2, "year": 1919, "pin_cites": [ { "page": "207" }, { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/ill-app/214/0201-01" ] }, { "cite": "389 N.E.2d 911", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "928" }, { "page": "929" } ], "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 381", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5581520 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "392" }, { "page": "404, 406" }, { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0381-01" ] }, { "cite": "415 N.E.2d 1354", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "1360" } ], "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 856", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5535363 ], "year": 1981, "pin_cites": [ { "page": "862-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0856-01" ] }, { "cite": "451 N.E.2d 892", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "895" } ], "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 905", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3557491 ], "year": 1983, "pin_cites": [ { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0905-01" ] }, { "cite": "388 N.E.2d 1244", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "1248" }, { "page": "1248" } ], "opinion_index": 0 }, { "cite": "75 Ill. 2d 383", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2990291 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "392" }, { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/75/0383-01" ] }, { "cite": "537 N.E.2d 18", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "19" }, { "page": "19" } ], "opinion_index": 0 }, { "cite": "181 Ill. App. 3d 419", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498692 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "422" }, { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0419-01" ] }, { "cite": "412 N.E.2d 1057", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1980, "pin_cites": [ { "page": "1061" }, { "page": "1061" }, { "page": "1060" }, { "page": "1061" } ], "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3158367 ], "weight": 7, "year": 1980, "pin_cites": [ { "page": "5" }, { "page": "5" }, { "page": "3" }, { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0001-01" ] }, { "cite": "631 N.E.2d 738", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "740" } ], "opinion_index": 0 }, { "cite": "259 Ill. App. 3d 492", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2873294 ], "year": 1994, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0492-01" ] }, { "cite": "630 N.E.2d 811", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "815" } ], "opinion_index": 0 }, { "cite": "158 Ill. 2d 46", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780271 ], "year": 1994, "pin_cites": [ { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0046-01" ] }, { "cite": "650 N.E.2d 1006", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "finding that offense of possessing contraband in a penal institution required implied mental state of knowledge" } ], "opinion_index": 1 }, { "cite": "165 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483554 ], "year": 1995, "pin_cites": [ { "parenthetical": "finding that offense of possessing contraband in a penal institution required implied mental state of knowledge" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/165/0194-01" ] }, { "cite": "589 N.E.2d 527", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "529" } ], "opinion_index": 1 }, { "cite": "147 Ill. 2d 397", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278489 ], "year": 1992, "pin_cites": [ { "page": "401" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/147/0397-01" ] }, { "cite": "565 N.E.2d 1319", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "1328" } ], "opinion_index": 1 }, { "cite": "141 Ill. 2d 180", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238693 ], "year": 1990, "pin_cites": [ { "page": "199" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/141/0180-01" ] }, { "cite": "389 N.E.2d 908", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 1 }, { "cite": "71 Ill. App. 3d 231", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5582538 ], "year": 1979, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/71/0231-01" ] }, { "cite": "427 N.E.2d 810", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 1 }, { "cite": "101 Ill. App. 3d 43", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3084782 ], "year": 1981, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/101/0043-01" ] }, { "cite": "375 N.E.2d 1297", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "parenthetical": "dismissing indictment for failure to allege implied mental state" }, { "page": "1305" } ], "opinion_index": 1 }, { "cite": "71 Ill. 2d 408", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5450514 ], "weight": 2, "year": 1978, "pin_cites": [ { "parenthetical": "dismissing indictment for failure to allege implied mental state" }, { "page": "425" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/71/0408-01" ] } ], "analysis": { "cardinality": 968, "char_count": 26161, "ocr_confidence": 0.757, "pagerank": { "raw": 5.348625924822957e-08, "percentile": 0.3362151615789183 }, "sha256": "76206d269649c38953a8c710ba30aa946dd6fd059c5592cc963255abbe70eb31", "simhash": "1:a23834f477da5506", "word_count": 4264 }, "last_updated": "2023-07-14T19:02:27.033630+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS WILKINSON et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE MICHELA\ndelivered the opinion of the court:\nThe circuit court of Grundy County dismissed a two-count indictment charging appellees Thomas Wilkinson, John Bollinger and Donald Kaufman with official misconduct in violation of section 33\u2014 3(c) of the Criminal Code of 1961. 720 ILCS 5/33 \u2014 3(c) (West 1994). The State appeals. For the reasons set forth below, we affirm in part and reverse in part.\nA Grundy County grand jury investigated whether members of the Grundy County board acted improperly concerning the bid and eventual award of a county contract for computer equipment. The targets of this investigation, Wilkinson, Bollinger and Kaufman (appellees), retained private counsel, Jeremy Margolis, to represent their interests during the pendency of the grand jury investigation. On November 1, 1994, Margolis filed a petition to appoint a special prosecutor to conduct the grand jury investigation and to enjoin the Grundy County State\u2019s Attorney\u2019s office from any involvement with the grand jury investigation. On November 7, 1994, the court ruled a special prosecutor was necessary, and upon the agreement of the parties and of Will County State\u2019s Attorney James Glasgow, the court appointed the Will County State\u2019s Attorney\u2019s office to conduct the grand jury investigation. The investigation ended on February 1, 1995, when the grand jury returned a no bill. On February 14, 1995, the Grundy County board passed a resolution indemnifying the appellees for their legal expenses incurred during the grand jury investigation. The resolution stated that the Grundy County State\u2019s Attorney was the county board\u2019s statutory legal counsel, but that a perceived conflict of interest prevented their receipt of statutory legal representation from that office. The resolution further stated that in order to obtain legal representation, the court must appoint a special State\u2019s Attorney pursuant to section 3 \u2014 9008 of the Counties Code. 55 ILCS 5/3 \u2014 9008 (West 1994). The county board further resolved that Margolis be appointed as \"Special State\u2019s Attorney\u201d for his legal representation of the appellees during the grand jury investigation. However, no legal motion was filed with the court to appoint Margolis, or any other competent counsel, as a special State\u2019s Attorney nunc pro tunc or at any time during these proceedings.\nThe resolution passed upon the approval of the county board. The appellees abstained from voting on the resolution with the exception of Wilkinson, who was not present. Upon authorization by the county board, the appellees personally accepted $21,120.44 as reimbursement for their legal fees. Will County Assistant State\u2019s Attorneys Philip Mock and Judith BeVriendt conducted another Grundy County grand jury investigation to determine whether the acceptance of these monies constituted official misconduct. On August 16, 1995, the grand jury returned a two-count indictment charging the appellees with official misconduct. Because the language of the indictment is at issue, it is reproduced below:\n\"COUNT I\non or between June 16, 1995 and June 20, 1995, at and within Grundy County, Illinois, , a [sic] THOMAS WILKINSON, JOHN BOLLINGER, DONALD KAUFMAN, male persons, committed the offense of:\nOFFICIAL MISCONDUCT\n(CLASS 3 FELONY)\nin that, they knowingly being public officers, Grundy County Board members, in their official capacity and with the intent to obtain personal advantage for themselves and each other, performed an act in excess of their lawful authority, in that they accepted $21,120.44 from the County of Grundy for reimbursement for legal fees incurred by them as private citizens, in violation of Chapter 720, Section 5/33 \u2014 (c) [sic], of the Illinois Compiled Statutes, 1994, contrary to the Statute, and against the peace and dignity of the same People of the State of Illinois, and\nCOUNT II\non or between June 16, 1995 and June 20, 1995, at and within Grundy County, Illinois,, a [sic] THOMAS WILKINSON, JOHN BOLLINGER, DONALD KAUFMAN, male persons, committed the offense of:\nOFFICIAL MISCONDUCT\n(Class 3 Felony)\nin that, they knowingly, being public officers, Grundy County Board members, in their official capacity and with the intent to obtain personal advantage for themselves and each other, performed an act in excess of their lawful authority, in that they accepted $21,120.44 from the County of Grundy for reimbursement for legal fees incurred by them in their official capacity without first having their legal representative appointed as a Special State\u2019s Attorney, in violation of Chapter 720, Section 5/33 \u2014 3(c), of the Illinois Compiled Statutes, 1994, contrary to the Statute, and against the peace and dignity of the same People of the State of Illinois ***.\u201d\nOn August 24, 1995, the appellees filed a pretrial motion to dismiss both counts of the indictment. A hearing was held, and on September 5, 1995, the court denied the motion. The appellees filed a motion to reconsider, and on September 21, 1995, the court reversed itself and dismissed the indictment. The State filed a timely notice of appeal.\nThe indictment at issue charges the appellees violated section 33 \u2014 3(c) of the Criminal Code of 1961, which states:\n\"A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts:\n* * *\n(c) [w]ith intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority!.]\u201d 720 ILCS 5/33 \u2014 3(c) (West 1994).\nThe form of a charge is sufficient under section 111 \u2014 3 of the Code of Criminal Procedure of 1963 (the Code) when the charging instrument is \"in writing, stating the name of the offense and the relevant statutory provision violated, setting forth the nature and elements of the offense and the date and county in which the offense occurred, and naming the accused.\u201d People v. Meyers, 158 Ill. 2d 46, 51, 630 N.E.2d 811, 815 (1994); 725 ILCS 5/111 \u2014 3 (West 1994). The determination reached by a trial court on a pretrial motion to dismiss a charging instrument because it does not comply with section 111 \u2014 3 of the Code is subject to de novo review. People v. Smith, 259 Ill. App. 3d 492, 495, 631 N.E.2d 738, 740 (1994); 725 ILCS 5/111 \u2014 3 (West 1994).\nThe State argues the trial court\u2019s dismissal of the indictment is contrary to our prior holding in People v. Kleffman, 90 Ill. App. 3d 1, 412 N.E.2d 1057 (1980). We first address the appellees\u2019 contention that the State has waived its Kleffman argument on appeal. In support, the appellees cite Security Savings & Loan Ass\u2019n v. Hofmann, 181 Ill. App. 3d 419, 422, 537 N.E.2d 18, 19 (1989). We find the case distinguishable. In Hofmann, an argument raised on appeal was never before presented to the trial court, depriving the trial court of the opportunity to consider its merits. Hofmann, 181 Ill. App. 3d at 422, 537 N.E.2d at 19. In contrast, the record demonstrates the State filed written memoranda and presented oral arguments on Kleffman to the trial court, sufficiently preserving its Kleffman argument on appeal.\nIn Kleffman, as in the case at bar, the trial court granted an accused\u2019s pretrial motion to dismiss an indictment charging the accused with official misconduct because the indictment failed to conform to the requirements of section 111 \u2014 3(a) of the Code. Kleffman, 90 Ill. App. 3d 1, 412 N.E.2d 1057; 725 ILCS 5/111 \u2014 3(a) (West 1994). We reversed and rejected the accused\u2019s argument that facts constituting official misconduct need to be pled with exacting specificity. Kleffman, 90 Ill. App. 3d 1, 412 N.E.2d 1057.\nIn so holding, we recognized that the demand for factual specificity in a charging instrument is to satisfy the basic goals of informing the accused of the charge so that he can prepare a competent defense and protect himself from a future prosecution for the same offense. Kleffman, 90 Ill. App. 3d at 5, 412 N.E.2d at 1061; People v. Banks, 75 Ill. 2d 383, 392, 388 N.E.2d 1244, 1248 (1979). Further, in Kleffman we relied on our supreme court\u2019s statement that when the language of a statute is sufficient to meet the above goals and the charging language of an indictment tracks the statutory language, the requirements of section 111 \u2014 3(a) of the Code are met. Kleffman, 90 Ill. App. 3d at 5, 412 N.E.2d at 1061; People v. Banks, 75 Ill. 2d 383, 392, 388 N.E.2d 1244, 1248 (1979); 725 ILCS 5/111 \u2014 3(a) (West 1994).\nThe official misconduct statute is a malum prohibitum statute punishing \"an act which is not inherently immoral, but [which] becomes so because its commission is expressly forbidden by positive law.\u201d Black\u2019s Law Dictionary 865 (5th ed. 1979). We recognize that as a malum prohibitum statute, section 33 \u2014 3(c) of the Criminal Code of 1961, \"standing alone[,] does not delineate specific criminal conduct [citations], but it derives its meaning by specifying an act described as being 'in excess of [defendant\u2019s] lawful authority.\u2019 \u201d People v. Samel, 115 Ill. App. 3d 905, 909, 451 N.E.2d 892, 895 (1983); 720 ILCS 5/33 \u2014 3(c) (West 1994).\nWith the above principles in mind, we find the trial court correctly decided that count I of the indictment is defective because it does not state an act in excess of the appellees\u2019 lawful authority. Count I accuses the appellees of acting in excess of their lawful authority by accepting reimbursement for legal expenses incurred as private citizens. It is not per se an act in excess of a county officer\u2019s lawful authority when he accepts reimbursement from a body of government for legal expenses incurred as a private citizen. Thus, count I of the indictment is facially defective because it fails to plead sufficient facts specifying an act in excess of the appellees\u2019 lawful authority.\nCount II of the indictment was dismissed by the trial court in error. Unlike count I, count II accuses the appellees of acting in excess of their lawful authority when they accepted money as reimbursement for legal fees incurred while in their official capacity \"without first having their legal representative appointed as a Special State\u2019s Attorney.\u201d (Emphasis added.) We find this language sufficiently pleads an act in excess of the appellees\u2019 lawful authority.\nA State\u2019s Attorney is the statutory attorney for a county officer who requires legal representation in his official capacity. Illinois law provides that a State\u2019s Attorney has a duty to \"defend all actions and proceedings brought against *** any county *** officer, in his official capacity, within his county.\u201d 55 ILCS 5/3 \u2014 9005(a)(4) (West 1994). However, when the State\u2019s Attorney is \"interested in any cause or proceeding, *** which it is or may be his duty to *** defend, the court may appoint some competent attorney to *** defend such cause or proceeding.\u201d 55 ILCS 5/3 \u2014 9008 (West 1994).\nThe record demonstrates the appellees first secured Margolis as private legal counsel and then filed a petition to appoint a special prosecutor on November 1, 1994. On November 7, 1994, upon order of the court, the prosecution was removed from Grundy County and assigned to Will County. Once the prosecution was assigned to Will County, the State\u2019s Attorney of Grundy County remained the appellees\u2019 statutory counsel until one of the interested parties petitioned the court to appoint another attorney to fulfill the Grundy County State\u2019s Attorney\u2019s statutory duty to defend an action brought against a county officer in his official capacity. We do not believe our view to be impractical. See In re Grand Jury Investigation of Swan, 92 Ill. App. 3d 856, 862-63, 415 N.E.2d 1354, 1360 (1981).\nWe are mindful that the practical exigencies of political life will sometimes preclude an elected official\u2019s willing receipt of legal representation from his statutory attorney and, conversely, a statutory attorney, such as a State\u2019s Attorney, may not wish to represent an elected official he has accused of a misdeed. While a State\u2019s Attorney has a duty to defend a county officer, a county officer does not have the concurrent duty to accept such legal representation in his official capacity. For example, a county officer may choose to forego statutory representation and act as a private citizen by procuring counsel, at his own expense, to defend an action brought against him in his official capacity. However, Illinois law and its underlying public policy do not impose this burden. Under section 3 \u2014 9008 of the Counties Code, either party may petition the court for relief in the form of competent counsel to fulfill the State\u2019s Attorney\u2019s statutory duty to prosecute or defend a county officer in his official capacity. 55 ILCS 5/3 \u2014 9008 (West 1994).\nIn People v. Clark, 71 Ill. App. 3d 381, 389 N.E.2d 911 (1979), a Du Page County treasurer retained private counsel to defend him in a criminal prosecution charging him, inter alia, with official misconduct. Clark, 71 Ill. App. 3d at 392, 389 N.E.2d at 928. Clark\u2019s counsel was allowed to withdraw and Clark petitioned the court to have the State\u2019s Attorney or another attorney appointed for him. Clark, 71 Ill. App. 3d at 404, 406. The trial court denied the petition and the appellate court affirmed this decision and also reversed Clark\u2019s conviction for official misconduct.\nThe court reasoned that Clark was not entitled to statutory representation because the actions for which he was accused \"were not actions taken by Clark under color of or by virtue of his public office.\u201d Clark, 71 Ill. App. 3d at 406, 389 N.E.2d at 929. Consequently, because Clark was not acting in his official capacity, the trial court did not abuse its discretion in refusing to appoint the State\u2019s Attorney or other competent counsel to defend Clark and his conviction for official misconduct was reversed. Unlike Clark, the appellees filed no petition with the court to request the appointment of an attorney to represent them in their official capacity or to authorize the appointment of their privately retained attorney nunc pro tunc.\nThe appellees contend, however, that the county board was empowered by section 5 \u2014 1018 of the Counties Code to indemnify and reimburse them for their legal fees. 55 ILCS 5/5 \u2014 1018 (West 1994). This statutory provision limits reimbursement to county board members for \"expenses necessarily incurred while in the conduct of the business of the county.\u201d 55 ILCS 5/5 \u2014 1018 (West 1994). Further, \"[a] county board may employ *** professional personnel for the members of the county board *** and [may] pay for the services of such personnel.\u201d 55 ILCS 5/5 \u2014 1018 (West 1994).\nDespite this vested discretion, our court has long held a county board is not authorized \"to employ at public expense an attorney to perform the duties of State\u2019s Attorney.\u201d Abbott v. County of Adams, 214 Ill. App. 201, 207 (1919); see also Hazen v. County of Peoria, 138 Ill. App. 3d 836, 842-43, 485 N.E.2d 1325, 1330 (1985); Sommer v. Goetze, 102 Ill. App. 3d 117, 119, 429 N.E.2d 901, 903 (1981). We therefore conclude that, under Illinois law, a public official acts in excess of his lawful authority when he fails to obtain the court appointment of legal counsel to act as a special assistant State\u2019s Attorney and accepts public funds to pay for that same privately retained legal counsel.\nWe next consider the language of count II alleging that the appellees were public officers, i.e., Grundy County board members. We find this factually sufficient. Next, we consider whether count II sufficiently alleges that the appellees acted in their official capacity. We have stated that one performs an act in his official capacity under section 33 \u2014 3(c) of the Criminal Code of 1961 if the act is \"accomplished by exploitation of his position as a public officer or employee.\u201d Kleffman, 90 Ill. App. 3d at 3, 412 N.E.2d at 1060; 720 ILCS 33 \u2014 3(c) (West 1994).\nThe appellees argue that by accepting reimbursement they were not exploiting their official positions since they were entitled to legal representation in their official capacity during the grand jury investigation. We do not dispute that the appellees were entitled to receive legal representation in their official capacity. However, as we have already discussed, the appellees were limited to accepting legal representation in their official capacity, at public expense, from their statutory attorney or an attorney appointed by the court to assume this duty. Therefore, count II sufficiently charges that the appellees received reimbursement for their legal fees within their official capacity.\nA contrary interpretation, such as an interpretation finding that the appellees accepted money as private citizens, presents the factual scenario dismissed in count I. The appellees argue that this result, obtained because count I of the indictment accuses them of acting in a private capacity and count II alternatively accuses them of acting in a.public capacity, mandates that the indictment be dismissed because it is void for duplicity. We do not agree.\nAn indictment cannot charge an accused with committing \"disparate and alternative acts, either one of which would constitute an offense.\u201d People v. Capitol News, Inc. 137 Ill. 2d 162, 174, 560 N.E.2d 303, 308 (1990). However, count I does not charge the appellees with an offense. Count I erroneously charges the appellees with official misconduct when acting as private citizens. The failure of count I to charge an offense does not require the dismissal of the entire indictment; rather, the trial court employed the appropriate remedy of dismissing the defective charge. See 725 ILCS 5/114\u2014 1(a)(8) (West 1994). Neither do we agree that count II charges the appellees with separate and disparate acts, either of which could result in a criminal prosecution, when it distinctly accuses them of a single act of official misconduct.\nNext, we discuss whether count II charges sufficient facts to demonstrate the appellees acted with the intent to obtain a personal advantage. 720 ILCS 5/33 \u2014 3(c) (West 1994). In Kleffman, we stated \" '[p]ersonal advantage\u2019 in this context means an advantage to a particular person as opposed to the public the officer or employee serves.\u201d Kleffman, 90 Ill. App. 3d at 4, 412 N.E.2d at 1061. Again, the appellees contend that their entitlement to legal representation removes their acceptance of $21,120.44 from the reach of the official misconduct statute. However, count II sufficiently charges that the appellees acted with the intent to gain a personal advantage because, without judicial authorization, they chose their own private attorney and accepted reimbursement for their legal fees at public expense.\nWe do not dispute the propriety of a county officer\u2019s statutory right to legal representation. However, when our legislature has provided for this circumstance through the allocation of public funds to pay for legal counsel, i.e., the State\u2019s Attorney, \"there exists in no man or set of men outside of the legislature itself the right or authority to expend, or authorize the expenditure of, other public funds for the performance of those same duties [of the State\u2019s Attorney].\u201d Abbott, 214 Ill. App. at 206.\nWe next address the argument that the indictment should be dismissed pursuant to Fellhauer v. City of Geneva, 142 Ill. 2d 495, 568 N.E.2d 870 (1991). In that case, the plaintiff recited the official misconduct statute as the basis of his retaliatory discharge claim. Fellhauer, 142 Ill. 2d at 502, 568 N.E.2d at 873. Plaintiff\u2019s complaint was dismissed for its failure to state a cause of action. Our supreme court stated that a plaintiff who bases a civil retaliatory discharge claim on \"a charge of official misconduct under section 33 \u2014 3 must specify the 'law\u2019 allegedly violated by the officer or employer in the course of committing the offense\u201d to demonstrate that his discharge was in contravention with the law\u2019s clearly mandated public policy. Fellhauer, 142 Ill. 2d at 506, 568 N.E.2d at 875. We do not find Fellhauer dispositive. To the extent the appellees rely on Fellhauer, its reasoning applies to the narrow situation when a plaintiff brings a retaliatory discharge cause of action based on the official misconduct statute and not the charging of a criminal offense by an elected official.\nWe next summarily address the appellees\u2019 additional arguments in support of their contention that the indictment should be dismissed. The appellees argue that the indictment should be dismissed because alleged impropriety by the Grundy County State\u2019s Attorney fatally tainted the grand jury process. However, as the trial court did not reach this issue and as the record reveals that no evidentiary hearing was held on this issue, we are unequipped to decide whether these alleged actions serve as an independent basis upon which the indictment may be dismissed.\nSimilarly, the appellees argue that the State improperly used immunized testimony when conducting the grand jury investigation that ultimately returned the two-count indictment at issue. We note that the appellees received use immunity when they were subpoenaed to testify before the grand jury which subsequently returned a no bill. Again, the trial court did not rule on this issue and no evidentiary hearing was held because the court dismissed the indictment on other grounds. Again, we cannot, without a more fully developed record, consider the merits of this argument.\nFinally, the appellees argue that the indictment is the result of a malicious prosecution because they were the only members of the county board investigated and indicted for official misconduct. The appellees cite People v. Barton, 190 Ill. App. 3d 701, 546 N.E.2d 1091 (1989), in support for their position. In Barton, an indictment was dismissed because of severe misconduct by a special prosecutor when he intentionally misled a grand jury, resulting in a violation of the defendant\u2019s right to due process under the law. Barton, 190 Ill. App. 3d at 708-09, 546 N.E.2d at 1096. The record in the instant case is sparse and devoid of a ruling by a trial court on this issue. We find no basis in the record or in the arguments presented to demonstrate prosecutorial misconduct occurred before the grand jury.\nFor the foregoing reasons, the trial court\u2019s dismissal of count II is error as a matter of law. The judgment of the circuit court of Grundy County is affirmed in part and reversed in part.\nAffirmed in part and reversed in part; cause remanded.", "type": "majority", "author": "JUSTICE MICHELA" }, { "text": "JUSTICE SLATER,\nspecially concurring:\nIf the defendants in this case were unaware that by accepting the reimbursement authorized by the county board they were acting in excess of their authority, could they nevertheless be convicted of official misconduct? While the statute does not require that one knowingly act in excess of one\u2019s authority, should that mental state be implied as a matter of statutory construction? If so, the indictment should be dismissed for failing to allege a necessary element of the offense. See People v. Valley Steel Products Co., 71 Ill. 2d 408, 375 N.E.2d 1297 (1978) (dismissing indictment for failure to allege implied mental state); People v. Grant, 101 Ill. App. 3d 43, 427 N.E.2d 810 (1981) (same); People v. Malone, 71 Ill. App. 3d 231, 389 N.E.2d 908 (1979) (same).\nHowever, in People v. Scharlau, 141 Ill. 2d 180, 199, 565 N.E.2d 1319, 1328 (1990), our supreme court, in reference to the official misconduct statute, stated \"[kjnowledge that the action in question violates the statute by being outside the officer\u2019s lawful authority is not an element.\u201d In view of this unambiguous statement, dismissal in this case for failure to allege a mental state appears foreclosed. The argument that section 33 \u2014 3(c) requires an implied mental state was not directly raised in Scharlau, nor was it presented in this case. I believe that if this issue was squarely presented to our supreme court, it would find that a mental state is required. To hold otherwise would risk \"creat[ing] a felony out of conduct that was wholly innocent.\u201d People v. Tolliver, 147 Ill. 2d 397, 401, 589 N.E.2d 527, 529 (1992). Given that official misconduct is a Class 3 felony punishable by forfeiture of office and a potential prison sentence of two to five years, such a result should not be countenanced. \"It would be unthinkable to subject a person to a long term of imprisonment for an offense he might commit unknowingly.\u201d Valley Steel, 71 Ill. 2d at 425, 375 N.E.2d at 1305. See also People v. Farmer, 165 Ill. 2d 194, 650 N.E.2d 1006 (1995) (finding that offense of possessing contraband in a penal institution required implied mental state of knowledge).\nI would also emphasize that defendants\u2019 arguments regarding alleged improprieties by the Grundy County State\u2019s Attorney and the improper use of immunized testimony are not resolved by this decision. No evidentiary hearing was held, nor did the trial court rule on those matters. Therefore, they are, at this time, not ripe for review and may be considered by the trial court on remand.\nFinally, in my opinion, the only \"crime\u201d committed in this case was the failure to ask the court to appoint Jeremy Margolis as a special State\u2019s Attorney. It is absolutely clear that the Grundy County State\u2019s Attorney could not properly defend the board members after he had sought to have them indicted. In its February 14 indemnification resolution, the county board authorized defendant Kaufmann to hire Margolis and it requested the court to appoint him as a special State\u2019s Attorney. No petition was filed with the court and, therefore, reimbursing the defendants for legal expenses was technically in excess of the board\u2019s authority. I reluctantly concur.\nJUSTICE LYTTON joins in this concurrence.", "type": "concurrence", "author": "JUSTICE SLATER," } ], "attorneys": [ "James Glasgow, State\u2019s Attorney, of Joliet (Philip A. Mock and Judith DeViendt (argued), Assistant State\u2019s Attorneys, of counsel), for the People.", "Jeremy Margolis (argued), and Rita M. Alliss, both of Altheimer & Gray, of Chicago, for appellees." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS WILKINSON et al., Defendants-Appellees.\nThird District\nNo. 3\u201495\u20140775\nOpinion filed November 15, 1996.\nSLATER, J., specially concurring, joined by LYTTON, J.\nJames Glasgow, State\u2019s Attorney, of Joliet (Philip A. Mock and Judith DeViendt (argued), Assistant State\u2019s Attorneys, of counsel), for the People.\nJeremy Margolis (argued), and Rita M. Alliss, both of Altheimer & Gray, of Chicago, for appellees." }, "file_name": "0727-01", "first_page_order": 747, "last_page_order": 759 }