The opinion
ILLINOIS OFFICIAL REPORTS
Appellate Court
People ex rel. Madigan v. Bertrand, 2012 IL App (1st) 111419
Appellate Court THE PEOPLE ex rel. LISA MADIGAN, Attorney General of Illinois,
Caption Plaintiff and Intervenor-Appellee, v. JOSEPH G. BERTRAND, JR., in
His Individual Capacity, Defendant-Appellant (The Board of Education
of Bremen Community High School District 228; The Board of
Education of Forest Ridge School District 142, and Kurt Staehlin,
Plaintiffs-Appellees; Joseph G. Bertrand, Jr., in His Official Capacity as
President of the Board of Trustees of Bremen Township Trustees of
Schools Township 36N, Range 13E; Julienne Mallory, Individually and
in Her Official Capacity as Trustee of the Board of Trustees of Bremen
Township Trustees of Schools Township 36N, Range 13E; The Board of
Trustees of Bremen Township Trustees of School Township 36N, Range
13E; and Joseph McDonnell, Individually and in His Official Capacity as
Treasurer of the Board of Trustees of Bremen Township Trustees of
Schools Township 36N, Range 13E, Defendants).
District & No. First District, Sixth Division
Docket No. 1-11-1419
Filed September 28, 2012
Held The settlement agreement defendant entered into with plaintiff board of
(Note: This syllabus education in connection with defendant’s action seeking an order
constitutes no part of requiring plaintiffs to honor his election to a seat on the board was void
the opinion of the court under section 3(a) of the Public Officer Prohibited Activities Act and on
but has been prepared the ground that the agreement was never properly approved.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CH-27682; the
Review Hon. Michael B. Hyman, Judge, presiding.
Judgment Affirmed.
Counsel on Anthony G. Scariano, James A. Petrungaro, and Jacqueline M. Litra, all
Appeal of Scariano, Himes & Petrarca, Chtrd., of Chicago, for appellant.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and Laura Wunder, Assistant Attorney General, of
counsel), for appellee People ex rel. Madigan.
William F. Gleason, Christopher L. Petrarca, and Raymond A. Hauser,
all of Sraga Hauser, LLC, of Flossmoor, for other appellees.
Panel JUSTICE HALL delivered the judgment of the court, with opinion.
Presiding Justice Lampkin and Justice Garcia concurred in the judgment
and opinion.
OPINION
¶1 Defendant-appellant Joseph G. Bertrand, Jr., individually, appeals from a circuit court
judgment on the pleadings which determined that a monetary settlement agreement he
entered into with the Board of Trustees of Bremen Township Trustees of Schools Township
36 North, Range 13 East (the Board) was void because it was not properly approved by the
Board and because Bertrand, as an elected trustee of the Board, acted under a conflict of
interest as defined and prohibited by section 3(a) of the Public Officer Prohibited Activities
Act (Act) (50 ILCS 105/3(a) (West 2010)),1 when he participated in the negotiations of the
settlement agreement in which he had a financial interest.
¶2 The current language in section 3(a) of the Act provides in relevant part that “[n]o person
holding any office, either by election or appointment under the laws or Constitution of this
1
Formerly, the Public Officer Prohibited Activities Act was commonly known as the Corrupt
Practices Act (Ill. Rev. Stat. 1987, ch. 102, ¶ 3(a)). We will refer interchangeably to cases
interpreting both statutes.
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State, may be in any manner financially interested directly *** or indirectly ***, in any
contract or the performance of any work in the making or letting of which such officer may
be called upon to act or vote. *** Any contract made and procured in violation hereof is
void.” 50 ILCS 105/3(a) (West 2010) ; see also 9 Ill. L. and Prac., Cities, Villages, and
Other Municipal Corporations § 439 (2012).
¶3 Section 3(a) of the Act is a conflict-of-interest provision designed to deter public officials
from placing themselves in positions where their private pecuniary interests conflict or may
conflict with their official public duties. See, e.g., People v. Savaiano, 66 Ill. 2d 7, 15 (1976)
(stating that one of the purposes of this provision is to deter public officials from allowing
themselves to be placed in situations where they may be called upon to act or vote in the
making of a contract in which they have an interest; the evil exists because the official is able
to influence the process of forming the contract); Brown v. Kirk, 33 Ill. App. 3d 477, 483
(1975) (stating that the purpose of this section of the Act is to deter public officers from
participating in official decisions that would benefit them financially to the prejudice of those
whom they serve), rev’d on other grounds, 64 Ill. 2d 144 (1976); Shoresman v. Burgess, 412
F. Supp. 831, 837-38 (E.D. Ill. 1976) (interpreting this section of the Act as fairly informing
public officials of their duty to avoid becoming interested, either directly or indirectly in
contracts which may inure to their personal benefit).
¶4 We provide a brief background of the parties and the facts giving rise to this appeal. The
Board is a body politic and corporate, consisting of three duly elected trustees authorized to
exercise those powers and duties described in article 5 of the Illinois School Code (School
Code) (105 ILCS 5/5-1 et seq. (West 1998)). During the relevant time period, the three
elected trustees were Bertrand, Ms. Julienne W. Mallory, and Mr. Michael T. Duggan.
¶5 Mr. Joseph J. McDonnell is the Board treasurer. Plaintiffs-appellees the Board of
Education of Bremen Community High School District 228 and the Board of Education of
Forest Ridge School District 142, are two publicly elected boards of education subject to the
jurisdiction of the Board. Plaintiff-appellee Mr. Kurt Staehlin is a taxpayer residing in Oak
Forest, Illinois.
¶6 On April 17, 2007, Bertrand successfully ran in an election for a seat as a trustee on the
Board, defeating the incumbent. Bertrand was certified by the Cook County elections clerk
as the victor. The Board, however, refused to seat Bertrand, claiming that he was ineligible
for the seat because he resided in the same elementary school district as Ms. Mallory.
¶7 Bertrand filed suit against the Board and other defendants in the circuit court of Cook
County seeking a declaratory judgment ordering the Board to honor the certified election
results and seat him as a trustee. Bertrand also sought to recover damages and attorneys fees
under claims of civil rights violations pursuant to the Civil Rights Act of 1991 (42 U.S.C.
§§ 1983, 1988 (2006)) and for damages related to an alleged civil conspiracy to deprive him
of his trustee seat.
¶8 Bertrand prevailed on his claim to be seated as a trustee on the Board, but his claims for
damages and fees were dismissed by the circuit court. The final pending count for alleged
civil conspiracy was dismissed without prejudice on May 20, 2010.
¶9 On June 7, 2010, the Board held a meeting. The only trustees present at the meeting were
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Bertrand and Ms. Mallory. Also in attendance were Bertrand’s attorney, the Board’s
attorneys (via teleconference), and treasurer Mr. McDonnell and his attorney. During the
meeting, the Board went into an executive session to discuss a proposed settlement of the
lawsuit involving Bertrand.
¶ 10 At the conclusion of the executive session and upon reconvening the open portion of the
meeting, Ms. Mallory moved for the Board to award Bertrand the sum agreed upon in the
executive session ($220,000, in two installments, jointly payable to Bertrand and his
attorney) in return for his full release of all claims in the lawsuit. Bertrand seconded the
motion and the matter was put to a vote. Ms. Mallory voted in favor of the motion while
Bertrand abstained from voting. Based upon this vote, Ms. Mallory directed the Board’s legal
counsel to prepare a settlement agreement between the Board and Bertrand.
¶ 11 On June 14, 2010, the circuit court entered a final order dismissing all of Bertrand’s
claims against the Board and other defendants.
¶ 12 On June 22, 2010, the Board held a special meeting where several members of the public
expressed dissatisfaction with the proposed settlement agreement. One of the Board’s
attorneys maintained that the Board had improperly approved the settlement agreement. Ms.
Mallory stated that she believed it was wrong for the outgoing members of the Board to
refuse to seat Bertrand and that he was entitled to his attorney fees for his lawsuit.
¶ 13 Ms. Mallory moved to approve the settlement agreement. Bertrand seconded the motion
and the matter was put to a vote. Ms. Mallory voted in favor of the motion, Mr. Duggan
voted against the motion, and Bertrand abstained from voting. Based upon this vote, Bertrand
declared that the motion had passed. The settlement agreement and a release was
subsequently executed on June 25, 2010.
¶ 14 On June 28, 2010, the plaintiffs-appellees filed a seven-count verified complaint against
Bertrand, the Board, and Ms. Mallory seeking a declaration that the settlement agreement
was void. An amended verified complaint was filed the next day. The Attorney General of
the State of Illinois intervened as a plaintiff on behalf of the People.2
¶ 15 On April 18, 2011, the circuit court entered a memorandum opinion and order granting
plaintiffs’ motion for a judgment on the pleadings, finding that the settlement agreement was
void because it was not properly approved by the Board and because it was procured in
violation of section 3(a) of the Act. The circuit court also granted the plaintiffs’ motion to
strike the affirmative defense of immunity raised by Bertrand under section 15 of the Citizen
Participation Act (735 ILCS 110/15 (West 2008)). Bertrand appeals to this court. For the
reasons that follow, we affirm.
¶ 16 ANALYSIS
¶ 17 This case involves a judgment on the pleadings in plaintiffs’ favor. A motion for a
judgment on the pleadings is similar to a motion for summary judgment. Pekin Insurance Co.
2
Plaintiffs-appellees and the intervening Attorney General will hereafter be referred to as
plaintiffs.
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v. Wilson, 237 Ill. 2d 446, 455 (2010). Judgment on the pleadings is proper where the
pleadings disclose no genuine issues of material fact and that the movant is entitled to
judgment as a matter of law. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill.
2d 381, 385 (2005).
¶ 18 In ruling on such a motion, only those facts apparent from the face of the pleadings,
matters subject to judicial notice, and judicial admissions in the record may be considered.
M.A.K. v. Rush-Presbyterian-St. Luke’s Medical Center, 198 Ill. 2d 249, 255 (2001). All
well-pleaded facts and all reasonable inferences from those facts are taken as true. Id. Our
review is de novo. Id.
¶ 19 In this appeal, Bertrand raises a number of arguments as to why he believes the circuit
court erred in finding that the settlement agreement was void for being in violation of section
3(a) of the Act. We find no merit in any of these arguments.
¶ 20 Bertrand’s arguments regarding section 3(a) of the Act turn on statutory construction.
Issues of statutory construction are questions of law, which we review de novo. Krautsack
v. Anderson, 223 Ill. 2d 541, 553 (2006). The primary rule of statutory construction is to
ascertain and give effect to the intent of the legislature. Croissant v. Joliet Park District, 141
Ill. 2d 449, 455 (1990). The best evidence of this intent is the language of the statute itself,
which must be given its plain and ordinary meaning. Krautsack, 223 Ill. 2d at 553.
¶ 21 Because all provisions of a statutory enactment are viewed as a whole, words and phrases
should not be construed in isolation, but must be interpreted in light of other relevant
provisions of the statute. In re Detention of Lieberman, 201 Ill. 2d 300, 308 (2002).
Accordingly, in determining the intent of the legislature, the court may properly consider not
only the language of the statute, but also the reason and necessity for the law, the evils sought
to be remedied, and the purpose to be achieved. Id.
¶ 22 Bertrand contends that the circuit court erred in finding that the settlement agreement was
void under section 3(a) of the Act, because the court improperly determined that the
settlement agreement was a “contract” subject to section 3(a). He acknowledges that the
settlement agreement is a contract under the common law, but maintains that it is not a
contract within the meaning of section 3(a) of the Act, because it was not a business-type
transaction but rather a means of disposition of litigation. Bertrand relies on the reasoning
in People v. Scharlau, 141 Ill. 2d 180 (1990), for this proposition.
¶ 23 In Scharlau, our supreme court addressed the issue of whether a consent decree
constituted a “contract” subject to section 3(a) of the Act. The facts in Scharlau revealed that
a group of black residents from the city of Danville, Illinois, filed a federal lawsuit against
the city and its elected commissioners, who were nearing the end of their four-year terms,
alleging that the city’s process for electing commission members excluded African-American
representation and diluted minority voting strength in violation of the Voting Rights Act of
1965 (42 U.S.C. § 1973b (1982 & Supp. V 1987)). In an attempt to settle the lawsuit, the
parties filed a stipulation for a consent decree. As part of the consent decree, the
commissioners created temporary administrative positions for themselves that would
continue their employment for at least three years after the general election. Scharlau, 141
Ill. 2d at 185-86.
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¶ 24 The federal district court initially entered a consent decree incorporating the stipulation’s
language, but then later vacated the order and held hearings on the proposed settlement
agreement. Id. at 185. Several parties, including the Vermilion County State’s Attorney, filed
motions to intervene, arguing that the negotiation process used by the defendants to procure
the consent decree violated certain state conflict-of-interest statutes, including section 3(a)
of the Act. Id. at 186-88. The federal district court ultimately determined that the negotiation
process did not violate Illinois law and it entered the consent decree. Id. at 186.
¶ 25 Shortly after the consent decree was entered, the defendants stood trial in the circuit court
of Vermilion County on charges of violating state conflict-of-interest statutes, including
section 3(a) of the Act. The circuit court found all defendants guilty. Id. at 187-88. The
appellate court reversed the circuit court, finding, among other things, that section 3(a) of the
Act was inherently ambiguous because it did not define the term “contract.” People v.
Scharlau, 193 Ill. App. 3d 280, 292 (1990).
¶ 26 Our supreme court reversed the appellate court and affirmed the judgment of the circuit
court. Scharlau, 141 Ill. 2d at 204. In affirming the judgment of the circuit court, the supreme
court determined that the appellate court had violated a basic principle of statutory
construction, the plain-meaning rule, when it focused on too narrow a portion of the statute
in attempting to define the term “contract.” Scharlau, 141 Ill. 2d at 193. The court stated that
a consent decree cannot be characterized as a court order, but must be interpreted as if it were
an independent contractual agreement, controlled by the law of contracts. The court
determined that the consent decree at issue constituted a contract for purposes of section 3(a)
of the Act, because it consisted of a covenant not to sue in exchange for a promise of
employment. Id. at 195-96.
¶ 27 The court further explained that the context in which the term “contract” is used appears
to imply traditional business-type transactions, but that the plain meaning of the term extends
to a myriad of situations. Id. at 194. Therefore, in Scharlau, the court’s analysis of the term
“contract” did not limit the definition to business-type transactions as Bertrand suggests.
Moreover, the contractual language employed in the consent decree reviewed in Scharlau is
similar to the language used in the settlement agreement in this case, where the consent
decree consisted of a covenant not to sue in exchange for employment and the settlement
agreement consisted of a covenant not to pursue an appeal in exchange for money. The
settlement agreement created an obligation on the part of the Board to pay $220,000 in public
funds to Bertrand and his attorney.
¶ 28 Bertrand next argues that the settlement agreement is not a contract under section 3(a)
of the Act because he had a significant chance of succeeding on his section 1983 claim on
appeal, which would have included an award of attorney fees under section 1988. This
argument is flawed because even assuming Bertrand had succeeded in his appeal and been
awarded attorney fees, it does not follow that the settlement agreement is not a contract for
purposes of section 3(a) of the Act. Bertrand’s chances of success in the underlying appeal
are irrelevant in assessing a violation under section 3(a) of the Act.
¶ 29 Bertrand next contends that the settlement agreement is not a contract under section 3(a)
of the Act because unlike Scharlau, the underlying action could not have been settled without
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him, reasoning that the commissioners in Scharlau were ancillary to the settlement
agreement between the voting rights plaintiffs and the city of Danville, and they were not
necessary parties to the settlement agreement as was he. Bertrand argues that unlike the
commissioners in Scharlau, the underlying case could not have been settled without him
being a party to the settlement agreement. Bertrand is incorrect. The commissioners in
Scharlau were individually named parties to the lawsuit and, as such, their consent was
required in order for the settlement and consent decree to be valid.
¶ 30 Moreover, Bertrand, much like the commissioners in Scharlau, was not required to
obtain a financial interest through the terms of the settlement agreement. He had already
prevailed on his claim to be seated as a trustee on the Board. Nevertheless, he chose to
pursue and receive a financial interest in the settlement agreement despite the language of
section 3(a) of the Act.
¶ 31 Bertrand next contends that unlike the commissioners in Scharlau, he did not actively
participate in negotiation of the settlement agreement. Bertrand claims that he attended the
closed portion of the Board meeting on June 7, 2010, in his capacity as a litigant and not as
a trustee. He further claims that he did not vote on the settlement measure as a trustee, but
instead, intentionally abstained from voting. None of these claims are persuasive.
¶ 32 The only trustees present at the meeting on June 7, 2010, were Bertrand and Ms. Mallory.
Bertrand was present at the meeting as the president of the Board. Pursuant to section 5-16
of the School Code, “[t]wo members shall constitute a quorum for the transaction of
business.” 105 ILCS 5/5-16 (West 1998). Therefore, absent Bertrand’s presence there would
not have been a quorum to conduct business and the meeting would have been in violation
of section 5-16 of the School Code. Bertrand’s position is further undercut by the fact that
he seconded the motion to approve the settlement agreement on two separate occasions and
then declared it passed.
¶ 33 When Bertrand decided to actively participate in the negotiation of a financial settlement
agreement between himself and the public body he represented, his personal pecuniary
interests inevitably came into conflict with his duty not to use his elected office for personal
financial gain. Conflict-of-interest statutes such as section 3(a) of the Act were enacted to
“discourage this type of ethical dilemma and the abuses that stem from it.” Scharlau, 141 Ill.
2d at 200.
¶ 34 Bertrand next contends that Illinois public policy favors settlement agreements as a
means of avoiding the time and costs associated with litigation and therefore, the circuit
court’s application of section 3(a) of the Act to invalidate the settlement agreement at issue
in this case contravenes that public policy. We must disagree.
¶ 35 Public policy is to be found in the state’s constitution and statutes and, when they are
silent, in its judicial decisions. Palmateer v. International Harvester Co., 85 Ill. 2d 124, 129
(1981). The public policy of the State of Illinois is expressed in the plain and clear language
of section 3(a) of the Act.
¶ 36 Any considerations of public policy are superfluous when the statutory language is clear.
Hadley v. Department of Corrections, 362 Ill. App. 3d 680, 687 (2005). “An inquiry into
public policy in an attempt to construe a statute is unnecessary where the statutory language
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is clear and unambiguous. [Citation.] Where, as here, the language of a statute is clear and
unambiguous, there is no occasion for judicial construction; the only proper function of a
court is to enforce the law as enacted by the legislature according to the plain meaning of the
words used.” Golladay v. Allied American Insurance Co., 271 Ill. App. 3d 465, 469 (1995).
¶ 37 In sum, we find that the circuit court correctly found that the settlement agreement was
void under section 3(a) of the Act. In the analysis that follows, we also find that the circuit
court correctly determined that the settlement agreement was void because it was never
properly approved by the Board at the meeting of June 7, 2010. In the circuit court below,
Bertrand conceded that the Board’s actions on June 22, 2010, violated the Illinois Open
Meetings Act (5 ILCS 120/1 et seq. (West 2008)), and therefore, like the circuit court, we
only address the validity of the Board’s actions at the meeting on June 7, 2010.
¶ 38 As previously mentioned, the Board consists of three duly elected trustees, authorized to
exercise those powers and duties as described in article 5 of the School Code (105 ILCS 5/5-
1 et seq. (West 1998)). Two members are required to be present at a meeting in order to
constitute a quorum (105 ILCS 5/5-16 (West 1998)), where a quorum has been defined as
the number of members necessary for a decision-making body to be legally competent to
transact business. Village of Oak Park v. Village of Oak Park Firefighters Pension Board,
362 Ill. App. 3d 357, 367 (2005).
¶ 39 However, article 5 of the School Code does not set forth the number of votes required
for the Board to take binding and proper action. Where a statute is silent as to the number of
votes necessary in order to approve a measure, the requirement is dictated by common law.
Village of Oak Park, 362 Ill. App. 3d at 367-68. The common law rule is that where a
quorum is present, a vote of the majority of those present is sufficient for a valid action. Id.
A majority means the number greater than half of any total. County of Kankakee v. Anthony,
304 Ill. App. 3d 1040, 1047 (1999).
¶ 40 A review of the record reveals that the settlement agreement was not properly approved
by the Board at the meeting on June 7, 2010, because although there was a quorum of two
present at the meeting–Ms. Malloy and Bertrand–only Ms. Malloy voted in favor of the
settlement agreement, while Bertrand abstained from voting. One vote out of a quorum of
two individuals does not constitute a majority. The proposed settlement agreement was
therefore void for lack of a valid majority vote.
¶ 41 We reject Bertrand’s contention that his vote to abstain, counted as a “yea” vote under
the Prosser rule. In Prosser v. Village of Fox Lake, 91 Ill. 2d 389, 394 (1982), our supreme
court concluded that in order to prevent frustration or abuse of the legislative process, a legal
significance or effect must be given to each failure to vote by a municipal legislature who is
present at a board meeting.
¶ 42 The Prosser rule established that when the “concurrence” of the majority is required for
passage, a vote of “pass,” “present,” or “abstain,” or a failure to vote when present,
constitutes the acquiescence or concurrence with the majority who did vote; and when the
“affirmative” vote of the majority is required, then only an actual “yea” or “aye” vote will
be counted toward passage and any attempt to vote to “abstain” or to vote in any manner
other than “yea” or “nay,” or a failure to vote, will be considered to have the effect of a “nay”
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vote. Prosser, 91 Ill. 2d at 395.
¶ 43 In this case, Bertrand had a financial interest in the proposed settlement agreement before
the Board on June 7, 2010, and under section 3(a) of the Act, he was required to abstain. To
construe such an abstention as a “yea” vote under these circumstances would create an end-
run around the statute, allowing public officials to cast affirmative votes for contracts in
which they had an interest by voting to abstain. This would be contrary to the legislative
intent behind the statute. Bertrand’s vote to abstain must be interpreted as having the same
effect as a “nay” vote.
¶ 44 Bertrand finally contends that the Citizen Participation Act provided him with immunity
and precluded the circuit court from invalidating the settlement agreement. Again, we must
disagree.
¶ 45 The Citizen Participation Act was enacted to discourage lawsuits against individuals
based on their participation in government or more specifically to discourage so-called
“strategic lawsuits against public participation” or “SLAPPs.” See generally Wright
Development Group, LLC v. Walsh, 238 Ill. 2d 620, 630-33 (2010). SLAPPs are described
as “civil actions brought to discourage citizens from exercising a constitutional right to
petition, speak freely, associate freely, or otherwise participate in or communicate with
government in opposition to the interests of the plaintiff.” Eric M. Madiar & Terrence J.
Sheahan, Illinois’ New Anti-SLAPP Statute, 96 Ill. B.J. 620, 620 (2008).
¶ 46 “SLAPPs use the threat of money damages or the prospect of the cost of defending
against the suits to silence citizen participation.” Wright Development Group, LLC, 238 Ill.
2d at 630. The Citizen Participation Act attempts to provide citizens with legal immunity
from SLAPPs. Section 15 of the Citizen Participation Act immunizes from liability all
“[a]cts in furtherance of the constitutional rights to petition, speech, association, and
participation in government,” except if those acts were “not genuinely aimed at procuring
favorable government action, result, or outcome.” 735 ILCS 110/15 (West 2008).
¶ 47 Bertrand’s conduct in accepting an unauthorized payment of public funds pursuant to the
settlement agreement at issue in this case does not qualify for protection under the Citizen
Participation Act because his conduct was obviously not in furtherance of his constitutional
rights to petition, speech, association, or participation in government. And more importantly,
the Citizen Participation Act seeks to “protect and encourage public participation in
government to the maximum extent permitted by law.” 735 ILCS 110/5 (West 2008). The
Citizen Participation Act’s text and purpose does not support a claimed right of a public
official to be paid public funds in express violation of a statute or without the proper
authorization of the disbursing body.
¶ 48 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 49 Affirmed.
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