People v. Grever

Docket Nos. 99930, 99945 cons.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee and

Cross- Appellant, v. ROBERT GREVER, Appellant and

Cross-Appellee.

Opinion filed June 2, 2006.

JUSTICE KILBRIDE delivered the judgment of the court,

with opinion.

Chief Justice Thomas and Justices Freeman, McMorrow,

Fitzgerald, Garman, and Karmeier concurred in the judgment

and opinion.

OPINION

Defendant, Robert Grever, is a former township supervisor

of Ela Township, Lake County. Defendant was found guilty of

12 counts of official misconduct (720 ILCS 5/33B3(a), (c) (West

1998)), for his failure to report amounts his wife owed to the

township for his mother-in-law=s care at the county nursing

home.

Defendant was charged by indictment in the circuit court of

Lake County with multiple counts of official misconduct.

Following a bench trial, defendant was found guilty of all

charges. The appellate court reversed five and affirmed three

of the convictions. 353 Ill. App. 3d 736.

The State and defendant filed petitions for leave to appeal.

This court allowed each petition and consolidated the two. 177

Ill. 2d R. 315. The central, overarching issue in this appeal is

whether the indictment was sufficient to state a charge of

official misconduct for these convictions. We now affirm in part

and reverse in part.

BACKGROUND

0n February 13, 2002, defendant was charged by

indictment with 12 counts of official misconduct. The first six

counts pertained to a different year from 1993 through 1998,

and charged that defendant, while acting in his official capacity

as the Ela Township supervisor:

Aintentionally failed to perform a mandatory act, in that

he failed to inform the Ela Township Board of

[i]ndebtedness of Mae Chvojka and Ruth Grever to the

Winchester House paid for by Ela Township within 30

days of the annual township meeting as required by [60

ILCS 1/70B15(c)(v)], in violation of 720 ILCS 5/22B3(a)

***.@

Counts VII, VIII, and IX of the indictment each referenced a

different person who benefitted from defendant=s alleged

official misconduct and charged that defendant:

Awith the intent to obtain a personal benefit for [Mae

Chvojka (count VII), Ruth Grever (count VIII), and

Robert Grever (count IX)] performed acts in excess of

his lawful authority, in a series of acts designed to

promote a single intent, he submitted bills to the Ela

Township Board for payment by the township for the

stay of Mae Chvojka at the Winchester House despite

the fact that neither Mae Chvojka, nor any

representative on her behalf [was] reimbursing the

township as required by Ela Township, in violation of

720 ILCS 5/33B3(c) ***.@

Counts X, XI, and XII of the indictment each pertained to a

different person who benefitted from defendant=s alleged

official misconduct from 1992 through 1998, and charged that

defendant:

Awith the intent to obtain a personal benefit to [Mae

Chvojka (count X), Ruth Grever (count XI), Robert

Grever (count XII)], performed acts in excess of his

official authority in a series of acts designed to promote

a single intent, in that he concealed the existence of a

debt owed by his wife, Ruth Grever, and her mother,

Mae Chvojka, to Ela Township and withheld collection

action regarding said debt, in violation of 720 ILCS

5/33B3(c) ***.@

Defendant=s motion to dismiss the indictment on statute of

limitations grounds was denied. Following a bench trial,

defendant was found guilty on all 12 counts charged in the

indictment. Defendant=s posttrial motions, including a motion in

arrest of judgment, were denied. Counts VIII, IX, XI, and XII of

the indictment were merged with counts VII and X, and

convictions were entered on counts I through VI, VII, and X of

the indictment.

The appellate court reversed the convictions for counts I, II,

and III, finding them to be outside the statute of limitations, and

reversed the conviction for count VII, finding it failed to state an

offense, and further concluding that the State failed to prove

defendant guilty beyond a reasonable doubt. The appellate

court also reversed the conviction for count X, noting that count

X failed to state an offense, and determining that the State

failed to prove defendant guilty beyond a reasonable doubt.

The appellate court affirmed the convictions for counts IV, V,

and VI. 353 Ill. App. 3d 736.

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The State filed a petition for leave to appeal the reversal of

counts VII and X, and defendant filed a petition for leave to

appeal the affirmance of counts IV, V, and VI. This court

allowed each petition and consolidated the two. 177 Ill. 2d R.

315.

ANALYSIS

In a posttrial motion in arrest of judgment, defendant argued

that the indictment was insufficient to state a charge of official

misconduct. Defendant appeals the appellate court=s affirming

the denial of his motion in arrest of judgment on counts IV, V,

and VI. The State appeals the appellate court=s reversal of the

trial court=s denial of defendant=s motion in arrest of judgment

on counts VII and X.

The United States Constitution and the Illinois Constitution

afford criminal defendants the right to be informed of Athe

nature and cause@ of the accusations against them. U.S.

Const., amend. VI; Ill. Const. 1970, art. I, '8. Further, section

111B3 of the Code of Criminal Procedure of 1963 requires that

a charging instrument set forth Athe nature and elements of the

offense charged.@ 725 ILCS 5/111B3(a)(3) (West 1998). A

motion in arrest of judgment must be granted by the trial court

when the indictment does not set forth the elements of an

offense. 725 ILCS 5/116B2(b)(1) (West 1998); People v. Lutz,

73 Ill. 2d 204, 209 (1978). We must, therefore, determine

whether counts IV, V, VI, VII, and X of the indictment charge

offenses punishable by the criminal law of the State of Illinois.

I. Defendant=s Appeal

Defendant stands convicted of three counts of official

misconduct for failing to include the indebtedness of his wife for

his mother-in-law=s nursing home services paid by Ela

Township in his annual statement of the township=s financial

affairs. Counts IV, V, and VI of the indictment charged

violations of subsection (a) of the official misconduct statute,

requiring proof that defendant, in his official capacity,

intentionally or recklessly failed to perform a mandatory duty as

required by law. 720 ILCS 5/33B3(a) (West 1998).

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Section 70B15(c) of the Township Code (Code) (60 ILCS

1/70B15(c) (West 1998)) requires the supervisor to file with the

township clerk an annual statement of the township=s financial

affairs showing:

A(i) the balance (if any) received by the supervisor

from his or her predecessor in office or from any other

source; (ii) the amount of tax levied the preceding year

for the payment of township indebtedness and charges;

(iii) the amount collected and paid over to the supervisor

as supervisor; (iv) the amount paid out by the supervisor

and on what account, including any amount paid out on

township indebtedness, specifying the nature and

amount of the township indebtedness, the amount paid

on the indebtedness, the amount paid on principal, and

the amount paid on interest account; and (v) the amount

and kind of all outstanding indebtedness due and

unpaid, the amount and kind of indebtedness not yet

due, and when the indebtedness not yet due will

mature.@ 60 ILCS 1/70B15(c) (West 1998).

The indictment was predicated on defendant=s alleged

intentional failure to report the amounts specified in

subparagraph (v) of section 70B15(c). In his posttrial motion in

arrest of judgment, defendant argued that counts IV, V, and VI

of the indictment failed to charge an offense because

subparagraph (v) only required him to report indebtedness and

did not require him to report amounts due the township. The

trial court rejected this argument and denied defendant=s

motion. The appellate court affirmed, reasoning that the plain

language of the statute requires the conclusion that the phrase

Athe amount and kind of all outstanding indebtedness due and

unpaid@ means Aboth the amount the township owes to others

that is due and has not been paid and the amount that others

owe to the township that is due and has not been paid.@ 353 Ill.

App. 3d at 751.

Defendant=s appeal presents an issue of statutory

construction. The construction of a statute is a question of law,

and thus review is de novo. People v. Collins, 214 Ill. 2d 206,

214 (2005). Our primary objective in construing a statute is to

give effect to the intention of the legislature. People ex rel.

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Sherman v. Cryns, 203 Ill. 2d 264, 279 (2003). The language of

the statute is the best indication of legislative intent. Cryns, 203

Ill. 2d at 279. The statute should be evaluated as a whole, and

each provision construed in connection with every other

section. Lulay v. Lulay, 193 Ill. 2d 455, 466 (2000). When the

language is unambiguous, we must apply the statute without

resorting to further aids of statutory construction. People v.

Glisson, 202 Ill. 2d 499, 504-05 (2002).

The appellate court noted that Aindebtedness@ means the

condition or state of owing money. 353 Ill. App. 3d at 751-52,

citing Black=s Law Dictionary 771 (7th ed. 1999). Subparagraph

(ii) refers to the amount of tax levied for payment of Atownship

indebtedness and charges.@ Subparagraph (iv) refers to

amounts paid on Atownship indebtedness.@ Subparagraph (v),

on the other hand, refers to Aall outstanding indebtedness.@

According to the appellate court, the fact that the legislature did

not qualify the word Aindebtedness@ in subparagraph (v) to

indicate by whom or to whom the indebtedness is owed, as

was done in subparagraphs (ii) and (iv) of section 70B15(c),

indicates the legislature=s intent to include both indebtedness

owed by the township and owed to the township. 353 Ill. App.

3d at 752.

The appellate court rejected defendant=s argument that

amounts owed to the township are properly designated as

accounts receivable. The statute contains no reference to

Aaccounts receivable@ and thus, defendant argued, the term

Aindebtedness@ cannot include Aaccounts receivable.@ The

appellate court, without further elucidation, held that the term

Aall outstanding indebtedness@ covered both amounts owed by

the township and amounts owed it, including accounts

receivable. 353 Ill. App. 3d at 752.

The appellate court reasoned that the words Atownship

indebtedness,@ as used in other subparagraphs of the statute,

are Asimply not the same@ as the words Aall outstanding

indebtedness@ used in subparagraph (v). Therefore, the court

rejected defendant=s argument that because all other

references to Aindebtedness@ in the statute referred to amounts

owed by the township, the term as used in subparagraph (v)

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should be given the same construction. 353 Ill. App. 3d at 752-

53.

Finally, the appellate court concluded that a full statement

of the financial affairs of the township would logically require

the supervisor to show both the amounts owing on its own

indebtedness as well as amounts due the township from other

persons or entities. Any other result, according to the appellate

court, would be absurd. 353 Ill. App. 3d at 754.

At the outset, we observe that defendant was not charged

with failure to provide a full statement of the financial affairs of

the township. Even if the indictment had contained that

allegation, the parameters of a full statement are set out in

subparagraphs (i) through (v) of section 70B15. A >Where a

statute lists the things to which it refers, there is an inference

that all omissions should be understood as exclusions.= @ Mattis

v. State Universities Retirement System, 212 Ill. 2d 58, 78

(2004), quoting Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill.

2d 141, 151-52 (1997). Thus, the source of the mandatory duty

that is the predicate for the indictment must be found in the

express language of subparagraph (v) of the section.

Section 70B15(c) sets out the fiscal duties of the township

supervisor, its chief financial officer. Subsection (c) prescribes

the contents of an annual report to be filed with the township

clerk, set out serially in subparagraphs (i) through (v). In

accordance with the rule of statutory construction requiring

evaluation of each provision in connection with every other

provision, we must consider the objective of all the

requirements of subsection (c).

Subparagraph (i) requires disclosure of amounts received

from the predecessor in office or any other source.

Subparagraph (ii) requires disclosure of the amount of tax

levied in the preceding year for payment of township

indebtedness.

Subparagraph (iii) requires disclosure of the amount

collected and paid over to the supervisor in his capacity as

supervisor.

Subparagraph (iv) requires disclosure of any amounts paid

out on township indebtedness.

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Finally, subparagraph (v) requires disclosure of all unpaid

indebtedness and the maturity date of unpaid indebtedness not

yet due.

Defendant argues that because the noun Aindebtedness@ is

modified by the adjective Atownship@ in subparagraphs (iii) and

(iv), the noun Aindebtedness@ in subparagraph (v) should be

also understood to reference township indebtedness and not to

include amounts owed to the township. In Guillen v. Potomac

Insurance Co. of Illinois, 203 Ill. 2d 141 (2003), we considered

a similar argument. We were required to decide whether

section 143.17a(b) of the Illinois Insurance Code mandated an

insurance company to maintain proof of mailing a notice of a

premium increase on an insurance policy in a form acceptable

to the United States Postal Service or other commercial mail

delivery service. See 215 ILCS 5/143.17a(b) (West 1992).

Subsection (a) of section 143.17a, applicable to notice of an

intention not to renew, specifically contains that requirement.

See 215 ILCS 5/143.17a(a) (West 1992). Subsection (b),

however, requires only that the company shall maintain proof

of mailing or proof of receipt, and does not specify the nature of

the required proof (215 ILCS 5/143.17a(b) (West 1992)). We

applied the general rule of statutory construction that when the

same words appear in different parts of the same statute, they

should be given the same meaning absent some contextual

indication that the legislature intended otherwise. Accordingly,

we held that the term Aproof of mailing@ should be given the

same meaning in both subsection (a) and subsection (b).

Guillen, 203 Ill. 2d at 152.

Here, the legislature has used the adjective Atownship@ to

modify the noun Aindebtedness@ in subparagraphs (iii) and (iv)

but omitted the adjective in subparagraph (v). We discern no

contextual indication that the legislature intended to reference

the indebtedness of any other person or entity in subparagraph

(v) and, thus, conclude the provision refers to unpaid

indebtedness of the township, both current and not yet due.

The modifiers Aall@ and Aoutstanding,@ as used in subparagraph

(v), do not enlarge the meaning of Aindebtedness@ to include

amounts owed to the township. Rather, those terms describe

the types of unpaid township indebtedness the supervisor must

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report. Hence, subparagraph (ii) references the amount of

taxes collected to apply to township indebtedness;

subparagraph (iv) references paid township indebtedness, and

subparagraph (v) references unpaid township indebtedness.

This is a logical progression, and our construction does not

produce an unjust or absurd result.

The State argues that this interpretation renders

subparagraph (v) superfluous because it requires the same

reporting of township indebtedness mandated by subparagraph

(iv). We have explained, however, that the reporting

requirements are clearly different, as subparagraph (iv) refers

to indebtedness actually paid during the reporting period, while

subparagraph (v) refers to unpaid indebtedness. Therefore,

subparagraph (v) imposes additional reporting requirements

and is not superfluous.

We agree with defendant that amounts owed to the

township are properly characterized as accounts receivable.

AAccount receivable@ is defined as Aa balance due from a

debtor on a current account.@ Merriam-Webster=s Collegiate

Dictionary 8 (10th ed. 1999). See also Black=s Law Dictionary

18 (8th ed. 2004) (defining Aaccount receivable@ as A[a]n

account reflecting a balance owed by a debtor@). In another

context, the legislature has recognized the distinction between

debts and accounts receivable. See 65 ILCS 5/8B2B9.2(c)

(West 2005) (requiring a municipal budget officer to examine

all books relating to Adebts and accounts receivable@).

Accordingly, it is fair to assume the legislature would have

used the latter term had it intended to include those amounts in

the reporting requirements of section 70B15(c). AIndebtedness@

and Aaccounts receivable@ are discrete concepts, one involving

the perspective of a debtor, and the other of a creditor. The

plain language of section 70B15(c) only addresses amounts

owed by the township, not amounts owed to it. Hence, it does

not require reporting of accounts receivable, including the

amounts owed the township for nursing care to defendant=s

mother-in-law.

The State argues that section 70B15(c) must be read in

conjunction with section 70B30 of the Code because this court

has held that statutes Ashould also be construed in conjunction

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with other statutes addressing the same subject.@ In re

Application for Judgment & Sale of Delinquent Properties for

the Tax Year 1989, 167 Ill. 2d 161, 168-69 (1995). Section

70B30 provides:

A(a) Within 30 days before the annual township

meeting, the supervisor shall account to the township

board for all moneys received and disbursed by the

supervisor in his or her official capacity.

(b) The supervisor shall provide each member of the

township board with a copy of his or her statement filed

in accordance with Section I of the Public Funds

Statement Publication Act as soon as possible after

filing the statement.@ 60 ILCS 1/70B30 (West 2004).

We note that this provision is consistent with the requirement

that the supervisor Ashall keep a just and true account of the

receipts and expenditures of all moneys that come into the

supervisor=s hands by virtue of the office, in a book to be

provided for that purpose at the expense of the township.@ 60

ILCS 1/70B25 (West 1998).

It is apparent from a comparison of section 70B30 with

section 70B15(c) that both statutes address the content of the

supervisor=s annual report. The State argues that because the

statement referenced in section 70B30(b) must detail Aall

moneys received and disbursed,@ the two statutes could only

be reconciled if the annual report included debts owed to the

township. Logic does not compel this conclusion. Both statutes

require the supervisor to report moneys received. Neither

statute, however, requires reporting moneys owed to the

township. Defendant is not accused of failure to report receipts

and disbursements, and the record does not support any

inference that he failed to comply with those requirements.

Therefore, defendant has complied with section 70B30(b) as

well as 70B15(c).

We conclude that section 70B15(c)(v) did not require

defendant to include his mother-in-law=s indebtedness in his

annual supervisor=s report. Therefore, the indictment,

predicated on his failure to include that debt, does not charge

an offense. Accordingly, the trial court erred in denying

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defendant=s motion in arrest of judgment, and the appellate

court erred in affirming the trial court. Hence, we reverse the

judgment of the appellate court as to counts IV, V, and VI of

the indictment. This resolution of defendant=s challenge to

those counts fully disposes of the issue presented by

defendant=s appeal, and thus, we need not consider the

remaining arguments advanced by the parties in defendant=s

appeal.

II. State=s Appeal

We now turn to the State=s appeal. The State contends the

appellate court erroneously interpreted section 33B3(c) of the

Code (720 ILCS 5/33B3(c) (West 1998)), in determining that

counts VII and X of the indictment were insufficient to state a

charge of official misconduct.

Counts VII and X charge defendant with violating section

33B3(c) of the Criminal Code of 1961, stating, in relevant part:

AOfficial Misconduct. A public officer or employee

commits misconduct when, in his official capacity, he

commits any of the following acts:

***

(c) With intent to obtain a personal advantage for

himself or another, he performs an act in excess of his

lawful authority[.]@ 720 ILCS 5/33B3(c) (West 1998).

Whether counts VII and X sufficiently allege a crime under

section 33B3(c) again requires interpretation of the statute, and

the standard of review of an issue of statutory construction is

de novo. Collins, 214 Ill. 2d at 214. This court has recognized

that the official misconduct statute requires that the charging

instrument Aspecify the >law= allegedly violated by the officer or

employer in the course of committing the offense.@ Fellhauer v.

City of Geneva, 142 Ill. 2d 495, 506 (1991).

In Fellhauer, the plaintiff filed a cause of action for

retaliatory discharge against his former employer, the City of

Geneva. Plaintiff, the former director of the city=s electrical

department, claimed his employment was terminated for his

refusal to comply with the mayor=s requests to delay

negotiations for electrical power until after his election and for

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refusing to cooperate in the mayor=s solicitation of

postcampaign contributions from city vendors. Plaintiff claimed

that compliance with the mayor=s requests would have violated

the official misconduct statute, thus satisfying the requirement

that to state a valid claim for retaliatory discharge, an employee

must show that the dismissal was against clearly mandated

public policy. See Palmateer v. International Harvester Co., 85

Ill. 2d 124, 134 (1981). On appeal, this court reviewed the

official misconduct statute to determine whether plaintiff=s

allegations were sufficient to state a claim for retaliatory

discharge, and stated:

Aa charge of official misconduct under section 33B3

must specify the >law= allegedly violated by the officer or

employer in the course of committing the offense.@

Fellhauer, 142 Ill. 2d at 506.

The State argues that in Fellhauer, this court referred to the

official misconduct only in dicta. The State=s argument

assumes Fellhauer=s analysis of the official misconduct statute

is nonprecedential.

This court has observed the distinctions between obiter

dictum and judicial dictum. In Nudell v. Forest Preserve District,

207 Ill. 2d 409 (2003), we noted:

A >The term Adictum@ is generally used as an

abbreviation of obiter dictum, which means a remark or

opinion uttered by the way. Such an expression or

opinion as a general rule is not binding as authority or

precedent within the stare decisis rule. [Citation.] On the

other hand, an expression of opinion upon a point in a

case argued by counsel and deliberately passed upon

by the court, though not essential to the disposition of

the cause, if dictum, is a judicial dictum. [Citations.] And

further, a judicial dictum is entitled to much weight, and

should be followed unless found to be erroneous.

[Citation.] Even obiter dictum of a court of last resort can

be tantamount to a decision and therefore binding in the

absence of a contrary decision of that court. [Citation.]= @

Nudell, 207 Ill. 2d at 416, quoting Cates v. Cates, 156

Ill. 2d 76, 80 (1993).

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In Fellhauer, whether plaintiff would have been guilty of

official misconduct if he had complied with the mayor=s request

to delay negotiations was directly at issue. The parties briefed

and argued application of the official misconduct statute in the

context of a retaliatory discharge action. This court noted that it

was questionable whether plaintiff sufficiently alleged facts

demonstrating official misconduct because he failed to specify

a law that would have been violated by his compliance with the

mayor=s request. Fellhauer, 142 Ill. 2d at 506-07. This court

determined, however, that it was not necessary to resolve the

issue because recognition of a retaliatory discharge claim was

not necessary to vindicate the public policy underlying the

official misconduct statute. Fellhauer, 142 Ill. 2d at 507. The

discussion in Fellhauer meets the definition of judicial dictum.

Accordingly, while not essential to the decision, we find

Fellhauer=s analysis of the official misconduct statute entitled to

substantial weight.

Accordingly, we conclude that the indictment must, at a

minimum, allege facts that would show defendant violated an

identifiable statute, rule, regulation, or tenet of a professional

code and demonstrate how defendant exceeded his lawful

authority. Fellhauer, 142 Ill. 2d at 506; see People v. Bassett,

169 Ill. App. 3d 232, 235 (1988). Although Fellhauer was a civil

action for retaliatory discharge, resolving the issue in that case

depended upon an interpretation of the official misconduct

statute and is, therefore, relevant to our analysis.

The State admits that counts VII and X do not specify any

law that was violated by defendant. Rather, the State argues

that defendant acted outside his lawful authority by breaching

an Auncodified@ fiduciary duty to the public, Apredicated on

basic moral principles.@ The State cites to Black=s Law

Dictionary 624 (6th ed. 1991), to define this Afiduciary capacity@

or Afiduciary relation,@ and summarizes A[t]his general duty to

act in an ethical and fair manner@ as being the basis of

defendant=s exceeding his lawful authority. The State

recognizes that A[t]here was no specific statute which required

defendant to apprise the township board of the failure of any

person or entity to pay a bill owed to the township@ but argues

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that submitting the bills was an Aestablished practice of his

position.@

The State supports its arguments concerning the general

common law doctrine of Afiduciary duty@ of public officials with

citations to civil cases. The right to a civil remedy for breach of

a statutorily created fiduciary duty is clear. See Madlener v.

Finley, 128 Ill. 2d 147 (1989); Brown v. Kirk, 64 Ill. 2d 144

(1976); City of Chicago ex rel. Cohen v. Keane, 64 Ill. 2d 559

(1976). Nevertheless, the State has not cited, and our research

has not revealed, any case imposing criminal liability for breach

of a common law fiduciary duty.

We strictly construe criminal statutes in favor of the

accused. People v. Christensen, 102 Ill. 2d 321, 328 (1984).

Further, we may not impose criminal liability upon defendant

simply by accepting the State=s argument that some

amorphous concept of a Abreach of fiduciary duty@ has been

violated. Further, no breach of any statutorily created fiduciary

duty is alleged in the indictment, and defendant was not even

apprised that he was accused of such a breach.

Our analysis is consistent with previous appellate court

opinions on this issue. In People v. Weber, 133 Ill. App. 3d 686

(1985), the State appealed the trial court=s dismissal of

indictments charging defendant, a State=s Attorney, with official

misconduct under subparagraph (c) of section 33B3. The

indictments alleged that defendant ordered an assistant State=s

Attorney to direct a grand jury to return indictments prior to the

primary election based on improper motivation. The appellate

court held the indictments insufficient for failure to allege

violation of Aa statute, supreme court rule, administrative rule or

regulation or tenet of the Code of Professional Responsibility

with the intent to obtain personal advantage for himself or for

another.@ Weber, 133 Ill. App. 3d at 691. The appellate court

found People v. Samel, 115 Ill. App. 3d 905 (1983), instructive.

Samel held that a charge of official misconduct based on the

violation of a civil or criminal statute, supreme court rule, or

administrative rule would be sufficient even in the absence of a

penalty clause. Other panels of the appellate court have

similarly held that charges of official misconduct must allege

violation of specific laws. See People v. Adams, 64 Ill. App. 3d

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547, 548-50 (1978) (the specific criminal conduct under the

official misconduct statute derives its meaning by referring to

acts known to be Aforbidden by law@); Bassett, 169 Ill. App. 3d

at 237 (indictment for official misconduct must state some

underlying violation of a statute, rule, regulation or tenet).

In the alternative, the State argues that counts VII and X

state a cause of action when the indictment is read together

with counts IV, V, and VI of the indictment. We have already

held that counts IV, V, and VI of the indictment failed to state a

cause of action, and, for the reasons stated in our analysis of

those counts, incorporation of the allegations of counts IV, V,

and VI, does not remedy the deficiency of counts VII and X.

Accordingly, we hold that the appellate court properly

determined that the State failed to charge adequately the

Aexceeding lawful authority@ element of official misconduct

under section 33B3(c). We therefore affirm the appellate court=s

reversal of defendant=s conviction on counts VII and X.

Our holding today is mandated by the rules of statutory

construction. By no means should it be construed as an

approval of defendant=s actions. The record establishes that

defendant knew that his wife had not reimbursed the township

for her mother=s nursing home care, yet disclosure was not

made to the township board until defendant=s acrimonious

dissolution of marriage.

Defendant=s failure to report amounts owing the township is

not criminalized under the official misconduct statute only

because the legislature did not specifically provide for inclusion

of accounts receivables in the annual report. This legislative

scheme is perhaps understandable because townships

typically are not creditors.

CONCLUSION

For the foregoing reasons, we affirm the appellate court=s

reversal of defendant=s convictions on counts VII and X, and

we reverse the appellate court=s affirmance of defendant=s

convictions on counts IV, V, and VI. The judgment of the circuit

court is reversed.

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Appellate court judgment affirmed in part

and reversed in part;

circuit court judgment reversed.

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