JOSEPH M. FERGUSON, аs Inspector General of the City of Chicago, Plaintiff-Appellant, v. MARA S. GEORGES, as Corporation Counsel of the City of Chicago, Defendant-Appellee.
No. 1-10-1152
First District (6th Division)
April 29, 2011
956
Mara S. Georges, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and J. Mark Powell, Assistant Corporation Counsel, of counsel), for appellee.
JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.
Justice McBride concurred in the judgment and opinion.
Justice Cahill dissented, with opinion.
OPINION
This matter is before us to determine whether defendant, Mara Georges, in her official capacity as the corporation counsel of the City
BACKGROUND
This case revolves in large part around the powers and duties of the Inspector General and the Corporation Counsel. Therefore, a brief discussion of their respective offices is helpful. The office of Inspector General (IGO) is a municipal office created by chapter 2-56 of the Chicago Municipal Code (Municipal Code).
The powers and duties of the Inspector General extend to the conduct of “all elected and appointed officers of the city government in the performance of their official dutiеs” and “all employees of the city government in the performance of their official duties,” except for members of the city council and their employees.
The powers of the IGO include the power “[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.”
The office of the Corporation Counsel is created by section 2-60-020 of the Municipal Code.
In the case at bar, in January 2007, the IGO began investigating how a former City of Chicago (City) employee was awarded a sole-source contract seemingly in violation of the City‘s ethics and contracting rules. According to the Inspector General‘s complaint, “[s]ole-source” contracts are contracts awarded without a competitive process. Non-competitive procurements are allowed ***, but only under very limited circumstances following a rigorous internal process. The IGO‘s investigation to date suggests that the City‘s process for awarding the contract under investigation was manipulated by City employees.” The investigation involved current and former City employees acting in their capacity as City employees. During the course of the investiga-
On August 15, 2008, as part of its investigation, the IGO sent a written request to the City‘s law department for all documents relevant to the award of the contract to the former employee. The law department provided some documents, but redacted others on the basis of attorney-client privilege or the work product doctrine. The redacted documents included “(i) communications among Law Department attorneys; (ii) communications between Law Department attorneys and other City employees; (iii) notes by two Law Department attorneys regarding conversations with City emрloyees; and (iv) charts and notes by one Law Department attorney—all regarding the matter *** under investigation.” The IGO told the law department that it did not believe that the City could properly shield the documents using either the attorney-client privilege or the work product doctrine.
On October 8, 2009, the IGO served a subpoena on the Corporation Counsel as head of the law department for the documents requested. Along with the subpoena, the IGO included a letter summarizing the legal arguments it believed supported its position, as well as a suggested memorandum of understanding concerning the way in which the documents should be handled. On October 15, 2009, the Corporation Counsel madе 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 private counsel, the Inspector General1 in his official capacity filed suit against the Corporation Counsel in her official capacity, seeking a declaratory judgment, a writ 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 jurisdiction since the Inspector General lacked the capacity to sue, (2)
A hearing on the Corporation Counsel‘s motion was held on April 21, 2010. After hearing the parties’ arguments, the trial court found that the Inspector General did not have the authority to engage its own attorney and that the attorney-client privilege was available to the Corporation Counsel. The trial court entered an order dismissing the Inspector General‘s complaint with prejudice. The Inspector General timely appealed.
ANALYSIS
On appeal, the Inspector General raises two issues: (1) the trial court erred in finding that the attorney-client privilege applied to shield the subpoenaed documents and (2) the trial 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 intragovernmental dispute and therefore nonjusticiable. We address the issues concerning jurisdiction and the Inspector General‘s capacity to sue first.
Intragovernmental Dispute
The Corporation Counsel first argues that we lack jurisdiction over the instant matter because “this is effectively a suit by the City against the City.” Whether the instant issue is justiciable presents an issue of law, which we review de novo. Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008). The Corporation Counsel cites to Tanner v. Solomon, 58 Ill. App. 2d 134 (1965), in support of the argument that the instant suit is nonjusticiable. However, Tanner involved a very different situation than the one at issue here. In Tanner, one member of the Addison Board of Fire and Police Commissioners brought suit against the two other board members based on a dispute over candidates for the police department. Tanner, 58 Ill. App. 2d at 135-36. In finding that the board member was unable to bring suit against the other board members, the court first noted that there was case law holding that one agency of government could bring suit against another governmental agency to resolve a dispute. Tanner, 58 Ill. App. 2d at 137. However, the court pointed out that in the case before it, “one member of a governmental body is suing the other members of that same body.” (Emphasis added.) Id. at 137. The court concluded that “it would not be a salutary thing for the
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 office suing the head of a different municipal office. While they are both departments within the same municipal corporation, we have considered analogous situations in the past and are willing to do so again. See, e.g., Burnette v. Stroger, 389 Ill. App. 3d 321 (2009) (Cook County public defender brought suit against president of Cook County board of commissioners); Read v. Sheahan, 359 Ill. App. 3d 89 (2005) (members of Cook County board of corrections brought suit against Cook County sheriff); Sampson v. Graves, 304 Ill. App. 3d 961 (1999) (City of Harvey aldermen brought suit against City of Harvey mayor). Accordingly, we find that the dispute here is justiciable.
Capacity to Sue
In granting the Corporation Counsel‘s motion to dismiss, the trial court found that the Inspector General lacked the capacity to sue the Corporation Counsel. The Inspector General argues that the trial court erred in granting 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. Williams, 379 Ill. App. 3d 541, 544 (2008). As a preliminary matter, we note that the issue before us is the narrow question of whether the Inspector General was entitled to hire a private attorney to sue to enforce the subpoena served on the Corporation Counsel. We do not purport to resоlve any broader questions involving a right of the Inspector General to hire an attorney in any other circumstance or the procedure to be followed in the event the Corporation Counsel has a conflict of interest.
In the case at bar, the trial court‘s decision was based in part on the Illinois Supreme Court case of Environmental Protection Agency v. Pollution Control Board, 69 Ill. 2d 394 (1977) (EPA). That case concerned a request by the Illinois Pollution Control Board to be represented by counsel other than the Attorney General in certain situations. EPA, 69 Ill. 2d at 397. The court noted that the Attorney General was the chief legal officer of the State of Illinois and had the duty of acting as the legal representative of state agencies. Id. at 399. The Board pointed to a statutory provision providing that private counsel could be appointed where the Attorney General was “interested” and argued that the Attorney General was interested in that case. Id. at 400. However, the court held that the Attorney General was only “interested” under the statute in two situa-
In the case at bar, the Municipal Code does not include an analogous provision allowing for appointment of private counsel if the Corporation Counsel is “interested.” If there was, this would be a simple case, since the Corporation Counsel is a party to the litigation. Accordingly, we examine the provisions of the Municipal Code to determine 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.”
The parties 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.)
The dissent reads the plain language of the ordinance to require a dispute over the enforcement of a subpoena to be ultimately deter-
While there is no case discussing the Inspector General‘s subpoena pоwer, we find Department of Public Aid v. Kessler, 72 Ill. App. 3d 802 (1979), to be instructive. In Kessler, the Illinois Department of Public Aid (IDPA) served a subpoena on the defendant and, when the defendant did not comply, filed an action in the circuit court to enforce it. Kessler, 72 Ill. App. 3d at 803. The defendant argued that the IDPA did not have the power to enforce the subpoena in the circuit court because there was no statutory provision providing it that power. Id. 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 IDPA from attempting to enforce the subpoena in court because the absence was not significant “inasmuch as the circuit courts, rather than the agency itself, are the entities with the authority to do the enforcing.” Id. 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 party for bringing such an action, which 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 authority. Here, there is authority for the Inspector General to issue a subpoena, but there is no explicit authority for the IGO to enforce that subpoena. However, if the Inspector General has the authority to issue а subpoena, it certainly can be reasonably inferred that the authority to issue includes the authority to enforce. Like Kessler, despite the lack of procedures concerning enforcement of the subpoena, we find that the Inspector General may enforce the subpoena through recourse in the circuit court.
The dissent states that section 2-4-030 of the Municipal Code “provides that where the legislation does not explicitly provide for enforcement, the mayor is the enforcement officer.” 409 Ill. App. 3d at 968. However, section 2-4-030 merely gives the mayor the authority
Additionally, in the ordinance here, there is a reference to the enforcement of the subpoena in the clause that prohibits the Inspector General from taking any action to enforce the subpoena for seven days following an objection. We agree with the Inspector General that the most natural reading of this clause indicates that after 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 whо is objecting 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 office. 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.)
We find support for our conclusion in our decision in Burnette, 389 Ill. App. 3d 321. In that case, the Cook County public defender brought suit against the president of the Cook County board of commissioners after the board approved a budget amendment that included laying off personnel in the public defender‘s office. 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 providing that authority. Id. at 327-28. After 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 define the scope of their statutory authority.” Id. 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 of
In the case at bar, the Inspector General‘s investigation is being frustrated by the Corporation Counsel‘s refusal to comply with a subpoena.2 Without the ability to bring an action to enforce the subpoena, the Inspector General has no means to challenge the Corporation Counsel‘s refusal other than asking the mayor to resolve the dispute. The ordinance creating the IGO could not have been designed tо tie the Inspector General‘s hands in this way because in doing so its investigative process would be meaningless. The IGO was created “to detect and prevent misconduct, inefficiency and waste within the programs and operations of the city government.”
The trial court found that the Inspector General should have approached the Corporation Counsel, at which point “it would be up to her to determine that there was a conflict.” If there was а conflict, “which there obviously is,” the Corporation Counsel would have needed to either seek authorization from the city council to engage special counsel or ask the trial court to appoint special counsel. We do not agree with this procedure and find it to frustrate the independent investigative duties of the Inspector General. We further find that the
As we found earlier, the Inspector General has the authority to bring suit against the Corporation Counsel in this case. With such a clear conflict of interest, it would be exalting form over substance to require the Inspector General to ask the Corporation Counsel to determine whether a conflict 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 Office of Education v. Cook County Board, 282 Ill. App. 3d 560, 575 (1996) (finding that a proper procedure for appointment of a special State‘s Attorney in the case of conflict between officials the State‘s Attorney is obligated to represent “would require the invocation of the court‘s discretion by either the State‘s Attorney or the officials” (emphasis added)). The Corporation Counsel notes that the Inspector General merely mentioned the court‘s authority in its brief and at the hearing on the motion to dismiss, claiming that the issue was not properly raised and should be forfeited. However, we choose to consider the issue. Flynn v. Ryan, 199 Ill. 2d 430, 438 n.1 (2002) (waiver is an admonition to the parties, not a limitation upon the powers of courts of review). Accordingly, we find 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 determined that we have jurisdiction over the instant matter and the Inspector General was within its authority to bring suit against the Corporation Counsel, we 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. Again, our review of the trial court‘s dismissal under section 2-619 is de novo. Van Meter v. Darien Park District, 207 Ill. 2d 359, 368 (2003).
The purpose of the attorney-client privilege is “to encourage and promote full and frank consultation between a client and legal advisor by removing the fear of compelled disclosure of information.” Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 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 narrowly. Consolidation Coal, 89 Ill. 2d at 118.
As a general matter, the attorney-client privilege is available to a municipal corporation. In re Information to Discipline Certain Attorneys of the Sanitary District of Chicago, 351 Ill. 206, 268 (1932).
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 establishing that “the communication originated in a confidence that it would not be disclosed, was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services, and remained confidential.” Consolidation Coal, 89 Ill. 2d at 119. However, we cannot find any evidence in the record that the Corporation Counsel made such a showing before the trial court and there is insufficient information in the record concerning the documents at issue for us to review the trial court‘s finding of privilege.
There are no details as to the creators of the documents, their recipients, or the contents of any of the documents. There are also no details concerning 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 complaint indicating that the redacted documents included “(i) communicаtions among Law Department attorneys; (ii) communications between Law Department attorneys and other City employees; (iii) notes by two Law Department attorneys regarding conversations with City employees; and (iv) charts and notes by one Law Department attorney—all regarding the matter *** under investigation“; there was also a redacted copy of the privilege log attached as an exhibit to the complaint. Moreover, there is no indication in the record that the trial court reviewed unredacted copies of the documents in camera to determine whether they were covered by the attorney-client privilege. Without this information, we cannоt review the propriety of the trial court‘s finding. Accordingly, we remand the case to the trial court for the limited purpose of conducting an in camera inspection of the unredacted documents and making factual findings consistent with the concerns outlined above.
CONCLUSION
We find that the Inspector General had the authority to bring the instant suit against the Corporation Counsel. Additionally, we find
Reversed and remanded with instructions.
JUSTICE CAHILL dissenting:
I sympathize with the difficulty the majority faced in this case: as a matter of first impression, what to do with an attempt by a city officer to bring a declaratory judgment action against a fellow city officer 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 his subpoenas, must of necessity, grant him that power by implication. I cannot agree and must dissent.
As I read the Inspector General‘s enabling ordinance, his 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. 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 officer 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 officer.
The case cited by the majority in support of its conclusion, Burnette v. Stroger, 389 Ill. App. 3d 321, 905 N.E.2d 939 (2009), in which the Cook County public defender was allowed to sue the board of commissioners, is not persuasive. Burnette relied on supreme court opinions that recognized the unique role of public defenders as independent agencies within 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, offices within units of government. Although their powers 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 government of which they are a part.
I would affirm 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.