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G-776 - 03/22/2005 - BOARD - Ordinances Supporting Documentsr;f Law Offices KUBIESA, SPIROFF, GOSSELAR & ACKER, P.C. 533 WEST NORTH AVENUE, SUITE 204 ELMHURST, ILLINOIS 60126 TELEPHONE (630) 516 -1800 FAX (630) 516 -1808 TO: Trustee Susan Chase Korin Village of Oak Brook FROM: nneth T. Kubiesa, Village Attorney DATE: February 11, 2005 RE: Indemnification by the Village of Ad Hoc Committee Members You have asked my written opinion on whether or not the resident members of the "ad hoc committee" are provided indemnification by the Village with regard to the activities of the ad hoc committee. It is my opinion that the resident members of the ad hoc committee are not provided indemnification by the Village, under the Village Code or state statute with reference to the ad hoc committee. I base this opinion on the following analysis. A "scope of authority" requirement is implicit in all indemnification ordinances, statutes and contracts. Wright v. City of Danville, 174 I11.2d. 391 (1996) since the ad hoc committee is not an "official" Village committee (by your own admission), nor authorized by the Village Code or Municipal Code, the resident members of the ad hoc committee have no legal authority from the Village. Thus, the actions of the resident members of the ad hoc committee cannot be within the scope of their legal authority, since they have no legal authority and the Village cannot indemnify them. Additionally, any defamatory material published in the report of the ad hoc committee, by its nature would be beyond any scope of authority of the ad hoc committee, even if the committee had any legal authority. In Catalano v. Pechous, 69 I11.App.3d 797, 807 25 Ill.Dec. 838 (lst Dist. 1978) the Village Clerk of Berwyn was held liable for defamatory comments made concerning a matter that was outside of the scope of the official duties of the Village Clerk. Defamatory comments are rarely within the scope of authority of any public official or municipal committee member. H WarciaWOMKorm memo mdem 1 doe If you have any questions or comments concerning this opinion, please let me know. A copy of each case that I cite in this memorandum is included herewith for your reference. KTK:mt cc: President Kevin Quinlan (w /enc.) Village Manager Richard Boehm (w /enc.) Board of Trustees (w /enc.) H \Marcia \VOB\Konn memo mdem I doe 675 N E 2d 110 174 111 2d 391, 675 N E 2d 110, 221111 Dec. 203 (Cite as: 174 M.2d 391, 675 N.E.2d 110, 221 M.Dec. 203) Is Supreme Court of Illinois Wendell WRIGHT et al , Appellees, V. The CITY OF DANVILLE, Appellant No. 78181. Dec 19, 1996 Former commissioners and corporate counsel of city brought action for indemnity against city for attorney fees and litigation expenses incurred in defending criminal charges of official misconduct and conflict of interest The Circuit Court of Vermilion County, Robert B Cochonour, J., dismissed, and plaintiffs appealed The Appellate Court, 267 I11.App.3d 375, 204 Ill Dec. 681, 642 N E.2d 143, reversed. City petitioned for leave to appeal. The Supreme Court, Nickels, J, held that. (1) city ordinance was invalid to extent it attempted to indemnify officials convicted of crimes for their attorney fees and costs incurred in their unsuccessful criminal defense, (2) plaintiffs' criminal conduct was outside scope of their employment such that city owed no statutory duty to defend or indemnify them in criminal action, and (3) plaintiffs were not entitled to common -law indemnity Reversed West Headnotes [1] Pretrial Procedure X622 307Ak622 Most Cited Cases Question presented by motion to dismiss for failure to state cause of action is whether sufficient facts are contained in pleadings which, if established, would entitle plaintiff to relief S H A. 735 ILCS 5/2 -615 [2] Pleading X343 302043 Most Cited Cases Circuit court should dismiss cause of action on pleadings only if it is clearly apparent that no set of facts can be proven which will entitle plaintiff to Page 2 of 11 Page 1 recovery S H A. 735 ILCS 5/2 -615 [3] Appeal and Error C=863 30k863 Most Cited Cases If cause of action is dismissed on the pleadings, questions on appeal are whether genuine issue of material fact exists and whether defendant is entitled to judgment as matter of law S H A. 735 ILCS 5/2 -619 [4] Appeal and Error X854(1) 30k854(l) Most Cited Cases Dismissal on the pleadings may be affirmed on any grounds which are called for by record regardless of whether circuit court relied on those grounds or whether circuit court's reasoning was correct S H A 735 ILCS 5/2 -619 [5] Municipal Corporations X163 268kl63 Most Cited Cases o [5] Municipal Corporations X861 268k861 Most Cued Cases Ordinance allowing home rule unit to indemnify city appointees for legal fees incurred in unsuccessful defense of criminal charges violated constitutional requirement that public funds be spent only for public purpose; unsuccessful criminal defense involving holder of public office, but not ansing out of lawful exercise of duties of that office, was purely private litigation, and defraying its cost was outside bounds of proper "public purpose " S H A Const Art. 8, § 1; Danville, III, Ordinance No 7237. [6] Municipal Corporations X63.15(5) 268k63 15(5) Most Cited Cases Although legislative body may have broad discretion in determining what constitutes "public purpose," within meaning of state constitutional section providing that expenditure of public funds must be for public purpose, that discretion is not unlimited and courts will intervene when public property is devoted to purely private use S H A. Const Art 8, § 1 © 2005 Thomson/West No Claim to Ong U S Govt Works http: / /pnnt.w,estlaw. com/delivery.html ?dest =atp &format = HTMLE &datald =B0055 800000... 2/11/2005 675 N E 2d 110 174 Ill.2d 391, 675 N E 2d 110, 221111 Dec. 203 (Cite as: 174 I11.2d 391, 675 N.E.2d 110, 221 111.Dec. 203) and conflict of interest Ill Rev Stat 1989, ch. 24, ¶ 3 -14 -4, ch 38, ¶ 33 -3(c), ch 102, ¶ 3 [181 Municipal Corporations�163 268k163 Most Cited Cases Former commissioners and corporate counsel of city were not entitled to common -law indemnity from city for attorney fees and litigation expenses incurred in unsuccessfully defending criminal charges of official misconduct and conflict of interest, commissioners and corporate counsel were not acting pursuant to authority or within scope of their employment when they negotiated settlement of voting rights lawsuit to illegally advance commissioners' , own personal interests by preserving their employment, and they were not serving public purpose. I11.Rev Stat 1989, ch 38, ¶ 33 -3 * *112 *393 ** *205 Craig H DeArmond of Kurth & DeArmond, Danville, for appellant. Everett L Laury and Gregory G. Lietz, of Hutton, Laury, Hesser, Lietz & Wilcox, Danville, for appellees Justice NICKELS, delivered the opinion of the court Plaintiffs, Ernie A. Cox, Jerome D Brown, and Raymond T. Randall, former commissioners of the City of Danville, Kevin Scharlau, as executor of the estate of former commissioner Wilbur Scharlau, and Wendell Wright, former corporation counsel, filed a complaint seeking reimbursement from the city of attorney fees and litigation expenses incurred in defending the criminal prosecution of the commissioners and corporation counsel The circuit court of Vermilion County found that indemnity was not warranted and dismissed the complaint under sections 2 -615 and 2 -619 of the Code of Civil Procedure (735 ILCS 5/2 -615, 2 -619 (West 1994)) The appellate court reversed, holding that genuine issues of material fact existed which precluded judgment as a matter of law for the city 267 I11.App.3d 375, 204 Ill Dec 681, 642 N E 2d 143 We granted the city's petition for leave to appeal (155 I11.2d R. 315), and we reverse BACKGROUND The present appeal arises out of attempts by plaintiffs to recover attorney fees and litigation Page 4 of 11 Page 3 expenses incurred by the former commissioners and corporation counsel in their defense of criminal charges of official misconduct and conflict of interest. The criminal prosecutions resulted from the manner in which the *394 group negotiated the settlement of a lawsuit - filed against the commissioners and the city * *113 ** *206 In January 1987, a group of African- Amencan residents of Danville filed a lawsuit in federal district court against the city and its commissioners alleging that the nonpartisan, at- large, citywide process for electing commissioners excluded African- Amencan representation and diluted minority voting strength, thereby violating the Voting Rights Act of 1965 (42 U S C § 1973b (1982 & Supp V 1987)). The commissioners and corporation counsel negotiated a proposed settlement of the voting rights lawsuit which would change the form of government from a mayor - commissioner system to a mayor - alderman system with aldermen elected from seven two- member districts. The settlement also provided that the present commissioners would be appointed as administrators of the various departments that corresponded with their current respective commission duties. These newly created administrative positions would be guaranteed for a minimum of three years at salaries the commissioners would set themselves The Vermilion County State's Attorney, arguing that the proposed settlement was a conflict of interest, issued subpoenas for the commissioners and corporation counsel to appear before the grand jury The federal district court enjoined the grand jury proceedings and added the State's Attorney to the proceedings before it. Subsequently, the federal district court held hearings on the proposed settlement. These hearings revealed that the commissioners and the corporation counsel knew that they could not prevail in the voting rights litigation The commissioners contended, however, that they needed to stay in office for a period of time after the new aldermen were elected in order to ensure a smooth transition into the new system of government The federal district court approved and entered the consent *395 decree settling the voting rights suit and dissolved the injunction against the State's Attorney. © 2005 Thomson/West No Claim to Ong U S Govt Works http: / /pnnt. westlaw .comldelivery.html ?dest =atp& format = HTMLE &datald= B0055800000.. 2/11/2005 ,X 675 N E 2d 110 174 111 2d 391, 675 N E 2d 110, 221 I11.Dec 203 (Cite as: 174 I11.2d 391, 675 N.E.2d 110, 221 M.Dec. 203) Council, or any appointee of the Mayor or any member of the City Council, of the city Under this indemnification, the city shall pay all expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the city Such indemnification by the city shall apply to any criminal action or proceeding, if the indemnified person had no reasonable cause to believe his conduct was unlawful, and any act or omission within the scope of the office or employment." Danville, Ill , Ordinance No 7237 (eff March 10, 1987). The city subsequently filed a combined motion to dismiss pursuant to sections 2 -615 and 2- 619(a)(9) of the Code of Civil Procedure (735 ILLS 5/2 -615, 2- 619(a)(9) (West 1994)) In support of its motion, the city submitted certified copies of the trial court's findings in the criminal prosecution of the commissioners and corporation counsel and this court's opinion affirming the criminal convictions The circuit court, finding *398 no basis for indemnity under either the ordinances or common law indemnity, granted the city's motion to dismiss The circuit court also observed that the commissioners' act of amending the ordinance to provide additional indemnity "tainted the circumstances in such a way" that indemnity was improper The appellate court reversed 267 Ill App 3d 375, 204 Ill Dec 681, 642 N E 2d 143. It concentrated on the language, of the indemnity ordinance and determined that the plaintiffs could conceivably prove a set of facts that would enable them to recover and, therefore, the city was not entitled to judgment as a matter of law The city argues before this court that the appellate court must be reversed and the trial court's dismissal of the action affirmed because (1) Danville's indemnity ordinance is invalid as against the public policy which prohibits the indemnification of expenses ansing from one's own willful misconduct, (2) the doctrine of collateral estoppel precludes * *115 ** *208 plaintiffs from relitigating the issue of scope of employment which was determined by the commissioners' and corporation counsel's criminal convictions, and (3) plaintiffs cannot Page 6 of 11 Page 5 recover under a theory of common law indemnity because they are the ones who engaged in wrongful conduct ANALYSIS [ 1 ] [2] [3 ] [4] The question presented by a motion to dismiss pursuant to section 2 -615 is whether sufficient facts are contained in the pleadings wluch, if established, would entitle the plaintiff to relief Urbaitis v Commonwealth Edison, 143 I112d 458, 475, 159 Ill Dec. 50, 575 ME 2d 548 (199 1) The circuit court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recovery Illinois Graphics Co v Nickum, 159 I11.2d 469, 488, 203 Ill Dec 463, 639 N E 2d 1282 (1994) If a cause of action is dismissed pursuant to a section 2 -619 motion on the pleadings, the questions on appeal are whether a genuine issue of material fact exists and *399 whether the defendant is entitled to a judgment as a matter of law. Illinois Graphics Co, 159 I11.2d at 494, 203 Ill Dec 463, 639 N E 2d 1282 Nevertheless, a dismissal pursuant to section 2 -619 may be affirmed o_ n any grounds which are called for by the record regardless of whether the circuit court relied on those grounds or whether the circuit court's reasoning was correct Beckman v Freeman United Coal Mining Co, 123 I112d 281, 286, 122 Ill Dec 805, 527 N E.2d 303 (1988). I Validity of the Indemnity Ordinance The city contends that plaintiffs cannot recover under the indemnity ordinance because it is invalid as against public policy In support of this argument, the city cites cases for the general proposition that agreements to indemnify against one's own willful misconduct are contrary to public policy and thus unenforceable. See, eg, Davis v Commonwealth Edison Co, 61 I112d 494, 500 -01, 336 N E 2d 881 (1975) However, the city's reliance on such precedent is misplaced. All the cases cited involved indemnification under provisions of an insurance policy or other type of contract See Davis, 61 1112d at 495 -96, 336 N E 2d 881 (indemnity clause in construction contract), West Suburban Mass Transit District v Consolidated R Corp, 210 Ill App 3d 484, 489 -91, 155 Ill Dec. 187, 569 N E 2d 187 (1991) (indemnity clause in agreement regarding use of railroad tracks), Rubenstein Lumber Co v Aetna © 2005 Thomson/West. No Claim to Ong U S Govt Works http: / /pnnt.westlaw. comldelivery.html ?dest =atp &format= HTMLE &dataid =B005 5 800000... 2/11/2005 675NE2d 110 174 111 2d 391, 675 N E 2d 110, 221111 Dec 203 (Cite as: 174 I11.2d 391, 675 N.E.2d 110, 221 ll1.Dee. 203) charges may be a proper public purpose, it is generally held in these *402 jurisdictions that a valid public purpose exists only when the authority of the municipality is limited to the reimbursement of legal expenses incurred in a successful defense See Lomelo v City of Sunrise, 423 So.2d 974, 976 -77 (Fla App 1983) (costs of defending public official for misconduct charges served public purpose only because official was acquitted of charges); Ellison v Reid, 397 So 2d 352, 354 (Fla App.1981), Snowden v Anne Arundel County, 295 Md. 429, 439, 456 A.2d 380, 385 (1983) (indemnity ordinance served public purpose primarily because it limited reimbursement to only those public officials who had successfully defended themselves against criminal charges), Bowens v City of Pontiac, 165 Mich.App 416, 420, 419 N W.2d 24, 26 (1988) (Shepherd, J, concurring); Sonnenberg v Farmington Township, 39 Mich App 446, 449, 197 N.W.2d 853, 854 (1972), Kroschel v City of Afton, 512 N W 2d 351, 355 (Minn App 1994), Valerius v City of Newark, 84 N.J 591, 596, 423 A.2d 988, 991 -92 (1980), Beckett v Board of Supervisors, 234 Va. 614, 619 n 7, 363 S E 2d 918, 921 n 7 (1988) Still, other states have held that the cost of defending a public official from criminal or official misconduct charges is never a proper public purpose See Hall v Thompson, 283 Ark 26, 28 -29, 669 S W.2d 905, 906 -07 (1984), Bowling v Brown, 57 Md.App. 248, 260, 469 A 2d 896, 902 (1984), Corning v Village of Laurel Hollow, 48 NY 2d 348, 353 -54, 398 N E.2d 537, 540 -41, 422 N Y S 2d 932, 935 -36 (1979), Township of Manalapan v Loeb, 126 NJ Super 277, 278 -79, 314 A 2d 81, 81 -82 (1974) (no authority for indemnification * *117 ** *210 of municipal officer for costs of defending criminal charges which amount to official misconduct); Silver v Downs, 493 Pa. 50, 55 -57, 425 A 2d 359, 362 -64 (1981), see also 56 Am.Jur.2d Municipal Corporations § 208 (1971) (municipality has no power to reimburse an official for expenses incurred in defense of official misconduct *403 charges); 63A Am Jur 2d Public Officers and Employees § 406 (1984) (members of governing body may not expend public funds to shield themselves from consequences of own unlawful and corrupt acts), 3 McQuillan on Municipal Corporations § 12 137 10 (3d rev ed 1990) (municipality cannot expend money to reimburse its officer for expenses incurred in defending official misconduct charges) Under Page 8of11 Page 7 the principles of all these cases, plaintiffs would not be able to recover the expenses of the unsuccessful criminal defense of the commissioners and corporation counsel from the city Further, the purpose of indemnification, so as not to inhibit capable individuals from seeking public office, has no relevance in the context of the criminal conduct involved in tlus case No official of public government should be encouraged to engage in criminal acts by the assurance that he will be able to pass defense costs on to the taxpayers of the community he was elected to serve See Powers v Union City Board of Education, 124 NJ Super 590, 596, 308 A.2d 71, 75 (1973) To the contrary, holding public officials personally liable for the expenses incurred in unsuccessfully defending charges of their criminal misconduct in office tends to protect the public and to secure honest and faithful service by such servants Indeed, allowing expenditure of public funds for such use would encourage a disregard of duty and place a premium upon neglect or refusal of public officials to perform the duties unposed upon them by law Bowling v Brown, 57 Md App 248, 258, 469 A 2d 896, 901 (1984) ( "[T]o reimburse [convicted public officials] for their legal expenses would not encourage the 'faithful and courageous discharge of duty on the part of public officials' [Citation ] On the contrary, it would encourage the reverse ") The types of individuals who are drawn to these corrupt practices should not be given any incentive to seek public office. *404 Our holding is also compatible with the articulated purpose of the official misconduct and conflict of interest statutes, which is to keep the loyalties of public officials to their public trust undivided and to compel them to act in a lawful manner while acting in their official capacities Fellhauer v City of Geneva, 142 I112d 495, 506, 154 Ill Dec 649, 568 N E.2d 870 (1991), Scharlau, 141 1112d at 198, 152 Ill Dec. 401, 565 N.E.2d 1319, People v Samel, 115 Ill App.3d 905, 910 -11, 71 Ill Dec 738, 451 N E.2d 892 (1983) To allow the use of public funds to reimburse a convicted official for his legal expenses would shield that official from the entire consequences of his illegal conduct, thus frustrating the purpose of those statutes In conclusion, the city has neither the duty nor the authority to reimburse plaintiffs for © 2005 Thomson/West No Claim to Ong U S Govt Works http./ /pnnt.westlaw.comldelivery.html ?dest =atp& format = HTMLE &dataid= BO055800000... 2/11/2005 675 N E 2d 110 174 I112d 391, 675 ME 2d 110, 221111 Dec 203 (Cite as: 174 I11.2d 391, 675 N.E.2d 110, 221 M.Dec. 203) III 2d at 196, 152 Ill.Dec 401, 565 N E 2d 1319 [ 13 ] [ 14] Additionally, the group's actions, which resulted in their convictions of official misconduct and conflict of interest charges, were clearly committed for their own interests A conviction for corrupt practices establishes that a public official exploited his fiduciary position for his personal benefit City of Chicago ex rel Cohen v Keane, 64 III 2d 559, 565, 2 Ill Dec 285, 357 N.E 2d 452 (1976) Furthermore, the essence of a violation of the statute "is that a public official has attempted to personally enrich himself or another by an act exceeding his 'lawful authority' as a *407 public servant" People v Samel, 115 Il1.App 3d 905, 909, 71 Ill Dec 738, 451 N.E.2d 892 (1983) The official misconduct statutes are intended to punish the activities of public officials who have exploited their official positions to the detriment of the public good People v Steinmann, 57 I11.App 3d 887, 897, 15 Ill Dec 411, 373 ME 2d 757 (1978) The commissioners and corporation counsel admitted that they would not * *119 ** *212 have settled the voting rights action without the provisions ensuring their continued employment for a fixed term and the right to set their own salaries. In addition, the group knew that they were not legally entitled to these provisions Such self - dealing can be nothing more than acting purely in one's own interests See Board of Chosen Freeholders of the County of Burlington v Conda, 164 NJ Super 386, 390, 396 A 2d 613, 617 (1978) (misconduct involving personal gain at public expense cannot be said to benefit the public) While the commissioners' and corporation counsel's public employment provided the opportunity for their misconduct, by no stretch of the imagination could their actions be deemed an extension of their legitimate functions as elected officials Therefore, their conduct neither arose out of nor was incidental to the performance of their duties and, thus, was not within the scope of their employment See Bowling v Brown, 57 Md App 248, 258, 469 A 2d 896, 901 (1984), Valerius v City of Newark, 84 NJ 591, 596, 423 A 2d 988, 990 -91 (1980) (criminal conviction for misuse of office constitutes a "perversion and prostitution" of duties and establishes that the acts were not within scope of employment), Powers v Union City Board of Education, 124 NJ Super 590, 596, 308 Page 10 of 11 Page 9 A 2d 71, 75 (1973) (criminal misconduct originating out of performance of duties was not act occurring within the scope of those duties) In this case, the record clearly reveals that the commissioners and corporation counsel stepped aside from their *408 duties as officers of the City of Danville and acted for the sole, unlawful, independent, and personal purpose of promoting their own interests As a matter of law, their actions were outside the scope of their employment such that the city owed no statutory duty to defend or,indemnify them in the criminal action III. Collateral Estoppel The city also contends that inherent in the commissioners' and corporation counsel's criminal convictions is the determination that they also acted outside the scope of their employment. The city then reasons that the doctrine of collateral estoppel thus bars plaintiffs from relitigating the scope of employment issue in this case Plaintiffs respond that scope of employment was not an issue decided in People v Scharlau Alternatively, plaintiff Kevin Scharlau independently argues that he cannot be bound by any determinations made in People v Scharlau because Wilbur Scharlau's conviction was vacated Notwithstanding these contentions, we determined today that, as a matter of law, by virtue of their criminal convictions the commissioners and corporation counsel acted outside the scope of their employment Furthermore, we determined that the public purpose doctrine prevents reimbursement of plaintiffs in this instance. Therefore, we need not address whether People v Scharlau decided the scope of employment issue or the effect of collateral estoppel upon this litigation. IV. Common Law Indemnity [ 15] [ 16] [ 17] Plaintiffs also contend that they are entitled to reimbursement of their legal expenses under a common law theory of indemnity. They cite cases for the general proposition that a principal is required to indemnify an agent for losses resulting from the good -faith execution of the agency See *409Lundy v Whiting Corp, 93 Ill App 3d 244, 258, 48 Ill Dec. 752, 417 N E 2d 154 (1981), American Telephone & Telegraph Co v Leveque, 30 Ill App 2d 120, 128, 173 N E 2d 737 (1961), Lomelo v City of Sunrise, 423 So 2d 974, 976 © 2005 Thomson/West No Claim to Ong. U.S. Govt Works http //pnnt.westlaw com/delivery html ?dest =atp& format = HTMLE &dataid= B0055800000... 2/11/2005 Page 2 of 14 eAlaw. 387 N E 2d 714 Page 1 69 Ill App 3d 797, 387 N E 2d 714, 25 Ill Dec. 838, 4 Media L Rep 2094 (Cite as: 69 Ill.App.3d 797, 387 N.E.2d 714, 25 IH.Dec. 838) H Appellate Court of Illinois, First District, Second Division Joseph G CATALANO et al, Plaintiffs- Appellants, v Robert C. PECHOUS et al., Defendants - Appellees No. 77 -1472. Dec 19, 1978. Supplemental Opinion on Denial of Rehearing March 20, 1979 City aldermen brought libel action against city clerk, newspaper reporter, and publisher. The Cook County Circuit Court, Daniel'P Coman, J, entered summary judgment in favor of defendants, and plaintiffs appealed. The Appellate Court, Downing, J., held that. (1) city clerk's statement, in reference to award of garbage collection contract to a private scavenger firm, that "240 pieces of silver changed hands 30 for each alderman" could not be given an innocent construction and was libelous per se, (2) the clerk's statement did not fall within scope of executive privilege cases, since the statement related wholly to activities and responsibilities of persons over whom the clerk had no authority and for whose activities he had no responsibility; furthermore, the statement represented a factual charge that the aldermen had been bribed to award the contract and, as such, the statement did not constitute fair comment or criticism and was not so privileged, but (3) publication of the clerk's statement was privileged as the report of the official conduct of public officials, and therefore summary judgment was properly granted in favor of the publisher and reporter, absent proof raising a genuine issue of fact as to the existence of actual malice, 1. e , knowledge of falsity or reckless disregard for truth or falsity Affirmed in part, reversed and remanded in part West Headnotes [11 Libel and Slander C;:::133 23703 Most Cited Cases Although slanderous words are generally actionable only upon a proper averment of special damages, if such words may be fit into the categories of libel per se, damages are presumed [2] Libel and Slander C=33 23703 Most Cited Cases Classes of words held to be libelous per se are- those imputing the commission of a criminal offense, (2) infection with a communicable disease of any kind which, if true, would tend to exclude one from society; (3) the inability to perform or want of integrity in the discharge of duties of office or employment, and (4) those prejudicing a particular party in his profession or trade. [3] Libel and Slander X33 23703 Most Cited Cases In determining whether words are libelous per se, they must be taken in the sense which listeners and readers of common and reasonable understanding would attribute to them. [4] Libel and SlanderOD:;�33 23703 Most Cited Cases To constitute libel per se, the offensive accusation need not state the commission of a crime in terms of art or with the particularity of an indictment [5] Libel and Slander X123(2) 237kl23(2) Most Cited Cases Question whether the words complained of are libelous per se is for the court to determine [6] Libel and SlanderC�1 237k1 Most Cited Cases There is no general rule defining what words are defamatory and, therefore, each case depends on its own facts [7] Libel and Slander X10(2) 237k10(2) Most Cited Cases City clerk's statement, in reference to award of garbage collection contract to a private scavenger firm, that "240 pieces of silver changed hands - -30 for each alderman" could not be given an innocent © 2005 Thomson/West No Claim to Ong U S Govt Works http:/ /pnnt.westlaw.comldelivery.html ?dest =atp &format = HTMLE &dataid =BO05 5 800000.. 2/11/2005 387NE2d714 69 Ill App 3d 797, 387 N E 2d 714, 25 Ill Dec 838, 4 Media L Rep 2094 (Cite as: 69 I11.App.3d 797, 387 N.E.2d 714, 25 II1.Dec. 838) [18] Libel and Slander X51(3) 237k5l (3) Most Cited Cases [18] Libel and Slander C=51(5) 237k51(5) Most Cited Cases City aldermen's denial of taking payoffs in connection with award of garbage collection contract could not be said to have created serious doubts as to the truth of city clerk's statements, as regarded issue whether the statements were published by newspaper with actual malice. [19] Appeal and Error x'891 30k891 Most Cited Cases Although the Appellate Court is permitted, under Supreme Court rule, to amend the record by correcting errors or by adding matters that should have been included, new evidence not offered during the trial of a cause cannot be introduced for the first time on appeal. Supreme Court Rules, rule 366(a)(3), S H A ch 110A, § 366(a)(3). [20] Pleading «245(4) 302k245(4) Most Cited Cases [20] Process 162 313kl62 Most Cited Cases No application for amendment of pleadings or process will be considered if made after the cause has been submitted for decision Supreme Court Rules, rule 362, S H A ch 110A, § 362 [21] Appeal and Error 891 30k891 Most Cited Cases City clerk, sued for libel by city aldermen, would not be allowed to file the affidavit of a newspaper reporter in an effort to challenge the accuracy of the clerk's alleged libelous statement, since the clerk did not submit the reporter's affidavit or newspaper article to the Appellate Court until long after the case had been submitted for its decision, since, in fact, they were not submitted until after the Appellate Court's opinion had been issued, and since the material could have been available to the clerk during the course of the trial, the preparation of the appeal, and prior to oral argument Supreme Court Rules, rules 362, 366(a)(3), S H A. ch. 110A, §§ 362, 366(a)(3) [22] Appeal and Error�835(2) 30k835(2) Most Cited Cases Page 4of14 Page 3 New evidence which had been overlooked by defendant, not by the Appellate Court, did not fall within Supreme Court rule permitting rehearing on "points claimed to have been overlooked or misapprehended by [this] court" in its original opinion Supreme Court Rules, rule 367(b), S H A ch 110A, § 367(b) [23] Appeal and Error X169 30kl69 Most Cited Cases [23] Appeal and Error X171(1) 30k171(1) Most Cited Cases (Formerly 30kl71) [23] Appeal and Error °r 761 30061 Most Cited Cases [23] Appeal and Error 762 30062 Most Cited Cases [23] Appeal and Error X835(2) 30k835(2) Most Cited Cases Although Supreme Court rule providing in part that "points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing" is not jurisdictional and may be overridden by the need for a dust result and uniform body of precedent, there are linutations, an appellate court should not consider different theories, or new questions, if proof might have been offered to refute or overcome them had they been presented at the trial Supreme Court Rules, rule 341(e)(7), S H A. ch 110A, § 341(e)(7) [24] Appeal and Error X835(2) 30k835(2) Most Cited Cases Although, in libel action, city clerk's pro se answer generally denying all of plaintiff aldermen's allegations put the date and content of quoted statement in issue, the clerk's subsequent pleadings not only failed to challenge its accuracy as it appeared throughout the parties' pleadings, memoranda and briefs, but also reiterated those alleged inaccuracies, accordingly, any alleged misapprehension of the date and content of the statement could only be attributed to defendant's course of conduct throughout the litigation and his failure to raise the issue prior to submission of the case for Appellate Court decision, and his efforts to correct the alleged inaccuracies came too late. © 2005 Thomson/West No Claim to Ong U S Govt Works http: / /pnnt.westlaw.com/delivery html ?dest =atp& format =HTMLE &dataid= B0055800000... 2/11/2005 387NE2d714 69 Ill App 3d 797, 387 ME 2d 714, 25 Ill Dec 838, 4 Media L Rep 2094 (Cite as: 69 I1I.App.3d 797, 387 N.E.2d 714, 25 I11.Dee. 838) change to a private service and who had been employed by Waste Management, Inc (WMI), the parent company of Clearing, within a month of the award of the contract, John DeBoer, the Clearing representative at the December 29 meeting, Joseph Sevick, whose occupation is not of record; Don Redicliffe, a WMI employee, Mayor Emil Vacm, a source whose name remains unknown; and a number of other persons as part of his general investigation of suburban garbage pick -up services Defendant Fineman first spoke with defendant Pechous early in April During the conversation, defendant Pechous made the following statements which were later quoted in the article "Something smells in this contract more than garbage * * * I said at the council meeting when the contract was first awarded that I think 240 pieces of silver changed hands 30 for each alderman * * * There was dust something suspicious about the way that contract was approved * * * I've said all along that if it were ever discovered how that contract was really approved, there'd be some vacant chairs in the city council * * * There are dust too many unanswered questions in the contract. The whole thing was railroaded through, and we can't help but think there was some stronger motivation behind it " Defendant Fineman's article entitled "Berwyn Trash Pact Raises Stink/Berwyn Garbage Agreement Raises Stunk" appeared * *719 ** *843 in the May 12 -13, 1976 edition of Suburban Week, a weekly supplement to the then *802 Chicago Daily News and the Chicago Sun -Times published by defendant Field Defendant Fineman reported that the plaintiffs had vehemently denied having taken payoffs, each claiming that defendant Pechous's statements were politically motivated insofar as Pechous was the democratic candidate for state representative and all but one of the plaintiffs were republicans Fineman further reported John Van Tholen, Jr's support of the Clearing contract, his appointment as Berwyn streets superintendent, the nullification of that appointment, and his subsequent employment by WMI The article further stated that an inside industry source claimed that Van Tholen had been given the WMI job "as a reward for having made sure the Berwyn contract was given to Clearing " Page 6 of 14 Page 5 However, Fineman quoted Van Tholen's denial of these charges, and also reported the plaintiffs' denials that Van Tholen had influenced their decision in awarding the contract Fineman's article then reviewed the bids opened at the December 29 meeting These bids were from C Groot Automatic Disposal Company, Van Der Molen Disposal Company, and Clearing, and were $3 55, $3 20, and $3 15 per month per family respectively Based on the Securities and Exchange Commission documents that he had reviewed, Fineman reported that the C. Groot Company was owned by John C. Groot, a WMI stockholder and one of WMI's eight founders The article stated that a WMI spokesman had confirmed that Groot was one of its stockholders but had denied any connection between the two firms However, Fineman also reported an inside industry source's claim that the Groot bid was never intended to be competitive with Clearing's bid In conclusion Fineman reported that the December 29 bids were thrown out and the plaintiffs ordered to readvertise for bids by Circuit Court Judge Francis Delaney Reportedly this action was taken in response to suits filed against the plaintiffs by the Berwyn democratic administration officials and a private scavenger firm. Fineman went on to note that Clearing's second bid was still the lowest and that it had again been awarded the contract in February However, the article continued stating that some Berwyn officials were considering turning over information on the award of the first contract to federal authorities. On June 28, 1976, plaintiffs filed a three count libel complaint Count I alleged that defendant Pechous's "240 pieces of silver" statement made at the council meeting and his other statements made to defendant Fineman were intended to lead his listeners to believe that the plaintiffs were bribed to vote for the contract or that they voted for personal gain in violation of their fiduciary duties of office Plaintiffs further alleged that these statements were understood in that manner, were false, and were uttered with malice Count II iterated the allegations of Count I, alleged *803 that malice was the gist of the action, and sought punitive damages. Count III alleged that defendants Fineman and Field's article contained statements that accused the © 2005 Thomson/West. No Claim to Ong U S Govt Works http. / /pnnt.westlaw.comldelivery.html ?dest =atp &format= HTMLE &dataid= B0055800000... 2/11/2005 387NE2d714 69 Ill App 3d 797, 387 N E 2d 714,25 Ill Dec 838, 4 Media L Rep 2094 (Cite as: 69 I11.App.3d 797, 387 N.E.2d 714, 25 M.Dec. 838) untrue On September 22, 1977, the trial court granted summary judgment for defendant Pechous and denied the plaintiffs' cross - motion In so doing, the court found that the defendant's statements did not fall within the scope of the executive privilege cases, but that they were capable of an innocent construction It is from these findings and rulings that the plaintiffs appeal I We first consider the decision as to defendant Pechous Plaintiffs challenge all * *721 ** *845 of defendant Pechous's statements quoted in the Suburban Week article. However, the plaintiffs' arguments in their briefs and at oral argument before this court were directed to his "240 pieces of silver" statement. For these reasons, we will consider only whether this statement is libelous per se, not privileged, and was made with actual malice *805 A. [ 1 ] [2] At the outset, we note that the plaintiffs label this statement as being libelous per se Technically, since this was an ,oral statement it should be characterized as being slanderous. (See Ward v Forest Preserve District (2nd Dist.1957), 13 Ill App 2d 257, 261, 141 N E.2d 753 ) However, although slanderous words are generally actionable only upon a proper averment of special damages ( Mitchell v Tribune Co (1st Dist 1951), 343 Ill App 446, 447, 99 N E.2d 397, Cert denied, 342 US 919, 72 S Ct 366, 96 L Ed 687), if such words may be fit into the categories of libel per se, damages are presumed Those classes of words held to be libelous per se are as follows (1) those imputing the commission of a criminal offense, (2) infection with a communicable disease of any kind which, if true, would tend to exclude one from society; (3) the inability to perform or want of integrity in the discharge of duties of office or employment, and (4) those prejudicing a particular party in his profession or trade. Coursey v Greater Niles Tp Pub Corp (1 st Dist 1967), 82 Ill App 2d 76, 81 -82, 227 N E.2d 164, Aff'd 40 111 2d 257, 239 N E 2d 837 The plaintiffs contend that defendant Pechous's Page 8 of 14 Page 7 "240 pieces of silver" statement falls within the first, third, and fourth categories However, defendant Pechous argues that this statement is "(S)ymbolic speech which does not necessarily impute the taking of a bribe but more commonly implies only the betrayal of trust. The aldermen could be viewed as having generally betrayed their public trust, as Judas betrayed Christ's trust * * * 11 Thus, the defendant relies on the innocent construction rule which holds that words allegedly libelous must be read as a whole and in their best possible sense, and if they are capable of an innocent construction, they must be declared nonactionable at law (Jacobs v Gasoline Retailers' Ass'n (1st Dist 1975), 28 I11 App 3d 7, 10, 328 N E 2d 187 ) We disagree with the trial court's acceptance of the defendant's innocent construction [3][4][5][6] In determining whether words are libelous per se, they must be taken in the sense which listeners and readers of common and reasonable understanding would attribute to them ( Lorillard v Field Enterprises, Inc (1st Dist 1965), 65 Ill App 2d 65, 72, 213 N.E.2d 1 ) To constitute libel per se, the offensive accusation need not state the commission of a crone in terms of art or with the particularity of an indictment (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 111 2d 345, 348, 243 N E 2d 217 ) The question whether the words complained of are libelous per se is for the court to determine (Brewer v Hearst Pub Co (7th Cir 1950), 185 F 2d 846, 849 ) There is no general rule defining what words are defamatory and, therefore, each case depends on its own facts *806 Korbar v Hite (1st Dist 1976), 43 Ill App 3d 636, 639, 2 Ill Dec 158, 357 N E 2d 135, Cert denied 434 U S 837, 98 S.Ct. 127, 54 L Ed 2d 98 [7] In construing the meaning of defendant Pechous's statement that "240 pieces of silver changed hands 30 for each alderman" in its most natural and obvious sense, we do not see how this statement can be given an innocent construction (See Welch v Chicago Tribune Co (1st Dist 1975), 34 Ill App 3d 1046, 1053, 340 N E 2d 539; Coursey v Greater Niles Tp. Pub Corp (1st Dist 1967), 82 Ill App 2d 76, 82, 227 N E 2d 164, Aff d 40 111 2d 257, 239 ME 2d 837 ) Although this statement does not charge the crimes of bribery or official misconduct (I11.Rev Stat.1977, ch. 38, pars 33 -1, © 2005 Thomson/West No Claim to Ong U S Govt Works http: / /pnnt.westlaw.comldelivery.html ?dest =atp &format = HTMLE &datald =B0055 800000... 2/11/2005 Page 10 of 14 387NE2d714 Page 69 I11 App 3d 797, 387 N.E.2d 714, 25 Ill Dec 838, 4 Media L Rep 2094 (Cite as: 69 I11.App.3d 797, 387 N.E.2d 714, 25 I11.Dec. 838) responsibility, we agree with the trial court's finding that defendant Pechous's "240 pieces of silver" statement does not fall within the scope of the executive privilege cases Secondly, defendant Pechous contends that his statement was conditionally privileged as fair comment and criticism on a matter of public interest, and that the plaintiffs have failed to prove his maliciousness to defeat this privilege Since we find this privilege *808 mapplicable, it is unnecessary for us to determine whether it was defeated [9][10] Four criteria must be met in order that fair comment be deemed not actionable (1) the publication must be of an opinion, (2) it must relate not to an individual but to his acts, (3) it must be fair in the sense that the reader can see a factual basis for comment and draw his own conclusions, and (4) it must relate to a matter of public interest ( Brewer v Hearst Pub Co. (7th Cir. 1950), 185 F 2d 846, 850 ) Whether these criteria are met may be determined as a matter of law Hahnemannian Life Ins Co v Beebe (1868), 48 Ill 87 [ 11 ] [ 12] We recognize that a writer cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it might be ( Hotchner v Castillo -Puche (2d Cu- 1977), 551 F 2d 910, 913 ) However, although the boundary line between fact and opinion is not a precise one (Buckley v. Littell (2d Cu- 1976), 539 F 2d 882, 883), we disagree with the defendant's contention that his "240 pieces of silver" statement represents merely an opinion In Buckley v Littell (2d Cir 1976), 539 F 2d 882, the court construed the defendant's statement that, "Like Westbrook Pegler, who lied day after day * * * about Quentin Reynolds and goaded him into a lawsuit, Buckley could be taken to court by any one of several people who had enough money to hire competent legal counsel and nothing else to do" as an assertion of fact relating to Buckley's journalistic ability In so finding, the court stated that "Regardless of what other implicit but unelaborated comparisons Littell was attempting to draw between Buckley and Pegler, and regardless of whether he was attempting to say that Buckley lied about individuals precisely in the same way that Pegler did, * * * it seems to us that this thud remark as it appears on its face states that Buckley was engaging in libelous journalism " (Buckley, supra at 896 ) Similarly, defendant Pechous's comparison of the plaintiffs' actions to Judas' betrayal of Christ's trust and Ins acceptance of money is clear. Regardless of whether the defendant was attempting to say that the plaintiffs literally received pieces of silver in the same way Judas did, the factual nature of this statement is apparent in the direct correlation between the number of pieces of silver and the number of aldermen on the council at the time the contract was awarded Even assuming that this statement was merely one of opinion, liability for libel may attach when a negative characterization of a person is coupled with a clear but false implication that he was privy to facts about the plaintiffs and their actions Hotchner v Castillo -Puche (2d Cir 1977), 551 F 2d 910,913 For the foregoing reasons, we find that defendant Pechous made a *809 factual charge that the plaintiffs had been bribed to award the contract to Clearing. As such, the defendant's "240 pieces of silver" statement does not constitute fair comment or criticism and is not privileged [13] Furthermore, we are of the opinion that the plaintiffs have shown that defendant Pechous made his "240 pieces of silver" * *724 ** *848 statement with actual malice, I e , with reckless disregard of whether it was true or false [14] The United States Supreme Court has held that actual malice may be inferred. when the investigation for a story which is not "hot news" is grossly inadequate in the circumstances (Curtis Publishing Co v Butts (1967), 388 U S 130, 156 -58, 87 S Ct. 1975, 18 L Ed 2d 1094.) In this case, defendant Pechous's answers to interrogatories indicate that he made no formal investigation of the circumstances surrounding the award of the contract Defendant Pechous merely stated that the minutes from the December 29 meeting indicated a substantial deviation from prescribed municipal contracting procedures © 2005 Thomson/West No Claim to Orig U S Govt Works http. / /print.westlaw. com/delivery.html ?dest =atp &format = HTMLE &datald =B 0055 800000... 2/11/2005 387 NE 2d 714 69 I11 App 3d 797, 387 N E.2d 714, 25 Ill Dec 838, 4 Media L Rep 2094 (Cite as: 69 I11.App.3d 797, 387 N.E.2d 714, 25 I11.Dec. 838) 576, 580, it was held that "In the instant case both parties moved for summary judgment and thereby the court was invited to decide the issues by reference to its file. It is clear that all material facts were before the court, the issues were defined, and the parties were agreed that only a question of law was involved In this view, the parties were correct *811 and the entry of summary decree for one or the other was proper " [17] To determine whether the statements were published with the requisite actual malice, we must look to the defendants' subjective state of mind (St Amant, supra, 390 U S at 731, 88 S Ct 1323 ) The Supreme Court's ruling in St Amant that a false statement charging criminal conduct by a public official did not constitute publication with "reckless disregard" despite the fact that the writer lacked personal knowledge of the plaintiffs activities, relied on the affidavit of a person whose reputation for veracity was unknown, and failed to check the allegations with persons who might have known facts indicates that only egregious conduct by the defendant will constitute "reckless disregard" for the truth As in St Amant, the plaintiffs have failed to meet their constitutionally unposed burden of proof The plaintiffs first stress the alleged falsity of defendant Pechous's statements published by defendants' Fineman and Field However, whether the statements in the article were true or false is not the issue to be resolved by this court (Bon Au Hotel, Inc v Time, Inc (5th Cu- 1970), 426 F 2d 858, 867 ) The issue is whether the plaintiffs presented "sufficient evidence to permit the conclusion that the defendant(s) in fact entertained serious doubts as to the truth of (their) publication " (St Amant, supra at 731, 88 S Ct at 1325 ) We find that the plaintiffs presented no such evidence as to these defendants. On the contrary, as indicated in the facts, the defendants supplied the trial court with voluminous evidence establishing that they had fully investigated the circumstances surrounding defendant Pechous's charges and that their decision to publish the article was circumspect [18] We also find unpersuasive the plaintiffs' assertion that their denial of taking payoffs created serious doubts as to the truth of defendant Pechous's Page 12 of 14 Page 11 statements In Edwards v National Audubon Society, Inc (2nd Cir. 1977), 556 F 2d 113, 121, Cert denied, 434 U S. 1002, 98 S.Ct 647, 54 L Ed 2d 498, the court stated "Surely liability under the 'clear and convincing proof standard of New York Times v Sullivan cannot be predicated on mere denials, however vehement, such denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error " In view of the controversial nature of the plaintiffs' actions in awarding the refuse collection contract which was uncovered by defendants' Fineman and Field's investigation, ** *850 * *726 we find that these defendants' acceptance of defendant Pechous's statements without serious doubt as to their truthfulness was warranted and did not constitute the egregious conduct necessary to establish actual malice *812 For the foregoing reasons, we find the article privileged under New York Times v Sullivan (1964), 376 U S 254, 84 S Ct 710, 11 L Ed 2d 686, and find it unnecessary to address the other privileges asserted by these defendants. III. We reverse the trial court's grant of summary judgment for defendant Pechous and its denial of the plaintiffs' motion for summary judgment as to defendant Pechous and remand the cause to the circuit court of Cook County for further, proceedings consistent with the views expressed herein We affirm the trial court's grant of summary judgment for defendants Fineman and Field Affirmed in part, reversed and remanded in part STAMOS, P J , and PERLIN, J , concur SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING DOWNING, Justice Petitions for rehearing were filed by plaintiffs and defendant Pechous All parties filed responses pursuant to court order Defendant Pechous also, on January 9, 1979, filed a motion for leave to file an © 2005 Thomson/West No Claim to Ong U S Govt Works. http //pnnt. westlaw .com /dellvery.html ?dest =atp& format = HTMLE &dataid= B0055800000 .. 2/11/2005 387 N E.2d 714 69 Ill App 3d 797, 387 N E 2d 714, 25 Ill Dec 838, 4 Media L Rep 2094 (Cite as: 69 Ill.App.3d 797, 387 N.E.2d 714, 25 III.Dee. 838) supporting memoranda in which he incorporated the "240 pieces of silver 30 for each alderman" statement At no time did defendant Pechous argue to the trial court that he had made the statement on January 12, 1976, and that he had not said "30 for each alderman " Moreover, defendant Pechous's briefs submitted to this court contain numerous references to the statement as quoted by defendants Fineman and Field, I.e , "240 pieces of silver 30 for each alderman " Furthermore, although the plaintiffs' statement of facts asserted that defendant Pechous made the statement on December 29, 1975 as quoted in the article, defendant Pechous's nine -page restatement of the facts in his brief never questioned this assertion During oral argument before this court defendant Pechous did not question the accuracy of the quote, nor was the date challenged [23] Supreme Court Rule 341(e)(7) provides in part that "points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing " (Ill Rev Stat.1977, ch 110A, par 341(e)(7)) Although this rule is not jurisdictional and may be overridden by the need for a dust result and uniform body of precedent, as stated by our supreme court in Hux v Raben (1967), 38 111 2d 223, 225, 230 N E 2d 831, 832 "There are limitations '(A)n appellate court should not, and will not, consider different theories, or new questions, if proof might have been offered to refute or overcome them had they been presented at the trial' (Citations omitted )" Obviously, the matters in defendant Pechous's post - opinion motion could have, yes, should have been presented in the trial court or at the very latest before oral argument in this court [24] Although defendant Pechous's pro se answer generally denying all of the plaintiffs' allegations put the date and content of the quoted statement in issue, his subsequent pleadings not only failed to challenge its accuracy as it appeared throughout the parties' pleadings, memoranda, and briefs, but also reiterated these alleged inaccuracies It is our opinion that any alleged misapprehension of the date and content of the quoted statement can only be attributed to the defendant's course * *728 ** *852 of conduct throughout this litigation and his failure to raise this issue prior to the submission of Page 14 of 14 Page 13 the case for our decision Because we believe that the defendant's efforts to correct these alleged inaccuracies have come too late, we must *815 consider the statement as quoted in the article to be accurate. See People v C& A R R Co (1911), 253 Ill 191, 196 -198, 97 N E 310 In this same post - opinion motion, defendant Pechous also sought to amend the record to include those portions of the Berwyn City Code which create and define the duties of the Board of Health of that city His petition for rehearing argues that as a member of the Board of Health at the time he made the statement, his statement was "legitimately related to matters committed to his responsibility" and therefore was privileged under Blau- v Walker (1976), 64 111 2d 1, 349 N.E 2d 385 The defendant's motion to file these ordinances at this point in the litigation suffers from the same infirmities noted previously with respect to the Hardy affidavit and article Moreover, even if we were to take judicial notice of these ordinances, we note that the defendant advances this new theory for the first time in his petition for rehearing. Under these circumstances, we think that it can hardly be said that the defendant's argument is grounded on a point- which we misapprehended or overlooked Furthermore, we find nothing in this theory which would aid defendant Pechous Petitions for rehearing denied, defendant Pechous's motion denied STAMOS, P J, and PERLIN, J, concur 69 Ill App 3d 797, 387 N E.2d 714, 25 Ill Dec 838, 4 Media L. Rep. 2094 END OF DOCUMENT © 2005 Thomson/West No Claim to Orig U S. Govt. Works http . / /pnnt.westlaw.com/delivery html ?dest =atp& format = HTMLE &datald= B0055800000... 2/11/2005 Item 9.E. AGENDA ITEM Regular Board of Trustees Meeting of February 22, 2005 SUBJECT: Discussion of Indemnification of Employees, Officers and Commission/Committee Members FROM: Richard B Boehm, Village Manager BUDGET SOURCE /BUDGET IMPACT: RECOMMENDED MOTION: Background /History: At the Regular Board of Trustees Meeting of February 8, 2005 Trustee Korin asked for discussion of this topic after a written opinion was provided by Attorney Kubiesa. -r L On February 11 Attorney Kubiesa provided an opinion to Trustee Korin. Attached is a copy of that opinion. Last saved by charty J \AGENDA MEMOSWinutes doe Last printed 2/18/2005 12 51 PM � &� 9. D. 5. anyone in his firm. 6. That the ordinance should also provide for the terms of an agreement not -to- exceed the term of the President or even though it may exceed one year or any such other terms as appropriate from a legal standpoint. 7. Finally, that the Village Attorney should be instructed to review the recordings of these proceedings so that he is able to comply with all the provisions of this motion and present an appropriate ordinance for consideration to the Board February 28th, 2005. VOICE VOTE. Ayes. Trustee Aktipis, Caleel, Korin, Yusuf and Zannis. Nay: Trustee Craig Motion carried. Trustee Craig asked how much this would cost. President Quinlan stated the cost would be for the drafting of the ordinance by the Attorney of a few hundred dollars. E ISCUSSION OF INDEMNIFICATION OF EMPLOYEES OFFICERS AND COMMISSION /COMMITTEE MEMBERS At the Regular Board of Trustees Meeting of February 8, 2005 Trustee Korin asked for discussion of this topic after a written opinion was provided by Attorney Kubiesa On February 11 Attorney Kubiesa provided an opinion to Trustee Korin Trustee Korin asked that Agenda Item 9 E. and 9 F be moved to the next Board meeting. She requested that the Village Clerk include In the Village Board's next agenda the discussion of indemnification of employees, officers and commission/committee members and a motion to direct the Village Attorney to create an ordinance. She also requested that there is a specific Illinois State Statute that she had given previously to Attorney Kubiesa where it outlines coverage for indemnification of ad hoc committee members to be included in the packet. In regards to the Ad Hoc Committee Report, Trustee Korin asked that the next agenda include a motion to adopt the Ad Hoc Audit Committee Report. F. AD HOC COMMITTEE REPORT — moved to the next Village Board meeting per Trustee Korin. 10. NEW BUSINESS: A CONFIRMATION OF APPOINTMENTS B ORDINANCES & RESOLUTIONS 1) A RESOLUTION ADOPTING THE 2005 LEGISLATIVE POSITIONS OF THE DUPAGE MAYORS AND MANAGERS CONFERENCE VILLAGE OF OAK BROOK Minutes Page 15 of 20 FEBRUARY 22, 2005 L� Item 9•D• AGENDA ITEM Regular Board of Trustees Meeting of March 8, 2005 SUBJECT: Discussion of Indemnification of Employees, Officers and Commission/Committee Members FROM: Trustee Korin BUDGET SOURCE /BUDGET IMPACT: RECOMMENDED MOTION: Motion to direct the Village Attorney to draft an ordinance for Indemnification of Employees, Officers and Commission /Committee Members Background /History: This discussion was continued from the Regular Board of Trustees Meeting of February 22, 2005. Trustee Korin asked that the attached section of the State Statute (745 ILCS 10/1 -202) be included in the Board packet. Recommendation: Trustee Korin recommended that a motion be passed directing the Village Attorney to draft an ordinance for Indemnification of Employees, Officers and Commission/Committee Members. Last saved by charty J \AGENDA MEMMIndemimfication 0308 doe Last printed 3/4/2005 5 13 PM Page 2 of 4 Westlaw. Page 1 745 ILCS 10/1 -202 C Formerly cited as IL ST CH 85 ¶ 1 -202 West's Smith -hurd Illinois Compiled Statutes Annotated Currentness Chapter 745 Civil Immunities Act 10 Local Governmental and Governmental Employees Tort Immunity Act (Refs & Annos) "L4 Article I General Provisions "o Part 2 General Provisions (Refs & Annos) -+ 10 /1 -202. Employee § 1 -202 "Employee" includes a present or former officer, member of a board, commission or committee, agent, volunteer, servant or employee, whether or not compensated, but does not include an independent contractor CREDITS) Laws 1965, p 2983, § 1 -202, eff Aug 13, 1965 Amended by P A. 84 -1431, Art 1, § 2, eff Nov 25, 1986 FORMER REVISED STATUTES CITATION Formerly Ill Rev Stat 1991, ch 85, ¶ 1 -202. HISTORICAL AND STATUTORY NOTES P A 84 -1431 substituted "a present or former" for "an ", and inserted "agent, volunteer" LAW REVIEW AND JOURNAL COMMENTARIES Liability of local governments and their employees in Illinois 58 Ill B J 620 (1970) LIBRARY REFERENCES Municipal Corporations X214(1) Westlaw Topic No. 268 C J S Municipal Corporations §§ 598, 600 to 601, 604 NOTES OF DECISIONS Going to and coming from work 4 Independent contractor 2 Performance of governmental function 1 Volunteer 3 1 Performance of governmental function © 2005 Thomson/West. No Claim to Orig U S. Govt Works http,/ /pnnt.westlaw.com /delivery.html ?dest =atp& format = HTMLE &datald= AO05580000O 2/23/2005 1 Page 3 of 4 Page 2 745 ILCS 10 /1 -202 Veterinarian, sued for damages by minor who suffered reaction to rabies shots necessitated by loss of possibly rabid cat entrusted to veterinarian's care, was not immune from liability under Local Governmental and Governmental Employees Tort Immunity Act on theory that rabies control is exclusively governmental function and that veterinarian was engaged in rabies control and was thus governmental employee to such extent Placko v Fawver, App. 3 Dist 1977, 13 Ill Dec 492, 55 Ill App 3d 759, 371 N E 2d 187 Municipal Corporations � 744 Liability of county, if any, incurred in course of swine flu vaccination program as result of negligent actions of program workers is the same whether workers are county employees or volunteers 1976 Op Atty Gen No S 1171 2 Independent contractor Many factors in the relationship of the parties are to be considered in detemmning whether person has status of employee or independent contractor, and no single one is determinative, most important factor is the right to control the manner in which the work is done, while others include the method of payment, the work schedule, the right to discharge, who provides the tools, materials or equipment, the skill required in the work to be done, whether the worker's occupation is related to that of the employer, and who deducts or pays for insurance, social security and taxes Warren v Williams, App. 1 Dist 2000, 246 Ill.Dec 487, 313 Ill App 3d 450, 730 N E.2d 512, appeal denied 250 Ill.Dec. 468, 191 Ill.2d 562, 738 N E.2d 937 Labor And Employment C� 29 Village attorney who entered appearance on behalf of village, and village police officer, in civil rights action by arrestee was an "independent contractor" of village, rather than an "employee," and thus, village was not obligated under Local Governmental and Governmental Employees Tort Immunity Act to indemnify attorney in legal malpractice action brought after default judgment was entered against officer in civil rights action, while village bylaws referred to position, attorney represented other clients and worked out of his own office, and village did not control manner or detail employed by attorney in accomplishing any desired result Warren v Williams, App 1 Dist 2000, 246 Ill Dec 487, 313 Il1.App 3d 450, 730 N E.2d 512, appeal denied 250 Ill Dec 468, 191 I112d 562, 738 N E 2d 937 Municipal Corporations 220(l) Independent contractor hired by fire protection district to provide fire protection services was not an "employee" within this act, and thus, fire protection district could not levy taxes to pay cost of workers' compensation, liability insurance, and unemployment insurance for independent contractor's employees providing fire protection service for the district In re Elk Grove Rural Fire Protection Dist., App 1 Dist 1986, 102 Ill Dec 430, 148 Ill App 3d 921, 500 ME 2d 52, appeal denied. Municipal Corporations C= 961 3 Volunteer Student volunteers, who had applied for the position of student guard to assist the freshman swimming class, were public employees for whose actions the school distract was entitled to immunity under Local Governmental and Governmental Employees Tort Immunity Act in wrongful death action brought following drowning death of class member, student volunteers were not compensated for their services, and were under the direct supervision of certified teacher Trotter v School Dist 218, App 1 Dist.2000, 247 Ill Dec. 899, 315 Ill App 3d 1, 733 N E 2d 363, appeal denied 250 Ill Dec 467, 191 Ill 2d 561, 738 N E 2d 936 Schools C=1 89 4 Definition of local government employees included as "volunteer" unpaid student manager of school volleyball team, for purposes of statute of limitations for bringing civil suit against local governments and their employees, with respect to injury allegedly suffered when manager wheeled volleyball stand onto gymnasium floor and stand separated from its support and landed on a woman's foot Sunderland v Tri -City Community Unit School Dist No 1, App 4 Dist 1990, 140 I11.Dec 341, 193 Ill App 3d 266, 549 N E 2d 992, appeal denied 142 Ill Dec 889, 131 Ill 2d 567, 553 N E 2d 403 Municipal Corporations IC;:::, 742(3) © 2005 Thomson/West. No Claim to Orig U S. Govt Works http. / /pnnt. westlaw .comldelivery.html ?dest =atp& format= HTMLE &datald= AO05580000O... 2/23/2005 Page 4 of 4 Page 3 745 ILCS 10/1 -202 4 Going to and coming from work Under truck rental agreement with city whereby contractor agreed to provide truck service, including a competent driver and his pay, items of equipment necessary to render a complete truck service, and contractor provided his own gas and oil, hired and paid truck operator, instructed operator to park truck near his home after finishing fob for day, and if truck did not function contractor would have to provide a different truck, and, at time of accident concerning collision with minor plaintiff, operator was on his way home from work and was not at that time engaged in any activity for city but was acting under instructions of contractor, truck operator was not city's "employee" Chambers v Palagg;, App 1967, 88 Ill App 2d 221, 232 N E 2d 69. Automobiles 187(2) 745 I L C S 10/1 -202, IL ST CH 745 § 10/1 -202 END OF DOCUMENT Current through P A 93 -1086 of the 2004 Reg Sess © 2005 Thomson/West © 2005 Thomson/West No Claim to Orig. U S Govt. Works http •// pnnt.westlaw.com/delivery.html? dest= atp& fonnat= HTMLE &datald= AO05580000O .. 2/23/2005 9 C 4) Village purchase a set quantity (the Village retains the right to either increase or decrease quantities at our sole option) Staff also has the option to purchase the police equipment through other sources in cases of emergency if needed sooner than it can be supplied by Kale Uniforms Motion by Trustee Yusuf to table this agenda item to the next Village Board meeting and direct staff to seek competitive bids from other area vendors He suggested Ray O'Herron who is closer geographically but he does not know if the firm could meet the specifications of the Village and determine the price President Quinlan asked Trustee Yusuf to continue the agenda item Motion by Trustee Yusuf, seconded by Trustee Aktipis, to continue this agenda item to the next Village Board meeting and direct staff to seek proposals for the purchase of these items VOICE VOTE. Motion carried P rchasing Director Kapff explained that the Village went out to bid in 2003 Ray 'Herron did submit a bid at that time and they did not meet the specifications of the Police uniforms based on the research of the Police Department DISCUSSION OF INDEMNIFICATION OF EMPLOYEES, OFFICERS AND CONEVHSSION/COMMITTEE MEMBERS This discussion was continued from the Regular Board of Trustees Meeting of February 22, 2005 Trustee Korin asked that section 745 ILCS 10/1 -202 of the State Statutes be reviewed by the Board Trustee Korin recommended that a motion be passed directing the Village Attorney to draft an ordinance for Indemnification of Employees, Officers and Commission/Committee Members Trustee Korin stated that during the work of the Ad Hoc Audit Committee the issue arose whether or not the resident members would be covered by indemnification. When the Village Attorney was asked whether or not there would be coverage for that type of position but for any type of Committee the Village has created, they were told there wasn't coverage She stated State Statute Section 1 -2 02 which defines "an employee as including President, former officer, member of the Board, Commission or Committee, agent, volunteer, servant or employee whether or not compensated but does not include an independent contractor " She believes that there is precedence within the State Statute for that type of coverage Because the Board was told by the Village Attorney that there wasn't that coverage, she contacted IRMA (Intergovernmental Risk Management Association) that the Village has to cover certain issues and indeed the members of the Ad Hoc Audit Committee and any other committee is covered under that policy She suggested that some type of specific VILLAGE OF OAK BROOK Minutes Page 23 of 44 March 16, 2005 Z� 9 D language should be included in the Village Code that pertains to members outside of the Village Board She asked if the Board is in agreement of this request and that Attorney Spiroff draft an ordinance for the Village Code President Quinlan stated that he agrees with this proposal as the Zoning Board of Appeals, Plan Commission and other committees are protected doing the work of the Village Motion by Trustee Korin, seconded by Trustee Aktipis, to direct the Village Attorney to draft an ordinance that states specific language for Indemnification of Employees, Officers, Commission and Committee members VOICE VOTE Motion carried E MOTION TO CLARIFY PREVIOUS MOTIONS CREATING AND AUTHORIZING THE WORK OF THE AD HOC AUDIT COMMITTEE At the special Village Board meeting of March 2, 2005 the Board of Trustees passed a motion to clarify the previous motions creating and authorizing the work of the Ad Hoc Audit Committee by granting additional time in which to submit its report, up to and including March 22, 2005, and be authorized to compare the legal fees of the current attorney and the prior attorney to report on whether the appointment of the current attorney and his firm was indeed "budget neutral" and whether retaining an attorney in a firm provides a greater benefit to the Village of Oak Brook as opposed to hiring an in -house part-time attorney Trustee Korin has again requested that this subject be placed on the agenda of the Board of Trustees meeting of March 16, 2005 Motion by Trustee Korin, seconded by Trustee Caleel, to clarify the previous motions creating and authorizing the work of the Ad Hoc Audit Committee by granting additional time in which to submit its report, up to and including March 22, 2005, and be authorized to compare the legal fees of the current attorney and the prior attorney to report on whether the appointment of the current attorney and his firm was indeed "budget neutral" and whether retaining an attorney in a firm provides a greater benefit to the Village of Oak Brook as opposed to hiring an in -house part -time attorney VOICE VOTE Motion carried Motion by Trustee Korin, seconded by Trustee Caleel, to adopt the Ad Hoc Audit Committee Report as presented. ROLL CALL VOTE Ayes 6 - Trustees Aktipis, Caleel, Craig, Korin, Yusuf and Zannis Nays. 0 - None Absent 0 - None Motion carried F DISCUSSION AND ADOPTION OF THE AD HOC COMMITTEE REPORT This topic was continued from the Regular Board of Trustees Meeting of February 22, VILLAGE OF OAK BROOK Minutes Page 24 of 44 March 16, 2005 Map 4 r� r � • I Item 9.8.1) AGENDA ITEM Regular Board of Trustees Meeting of March 22, 2005 SUBJECT: Indemnification of Village Officers and Employees FROM: Kenneth T. Kubiesa, Village Attorney BUDGET SOURCE/BUDGET IMPACT: None RECOMMENDED MOTION: I move to pass Ordinance 2005 - IDEM -BD +PL -EXI -G -776, An Ordinance Adopting a Comprehensive Amendment to Chapter 3 (General Penalty) of Title I (Administration) of the Village Code of the Village of Oak Brook, Illinois to Provide for Indemnification of Village Officers and Employees. Background /History: As directed by the Village Board at the March 16, 2005 Special Village Board Meeting, the following Ordinance was drafted to amend the Village Code to provide for indemnification of Village Officers and Employees. The ordinance approves a comprehensive amendment to Chapter 3, General Penalties, of Title 1, Administration, to revise the chapter and thereby create a new Chapter 3 entitled, General Provisions. This revised chapter 3 will include the existing General Penalties section and add the new Indemnification language that states "defend and indemnify any officer or employee, which shall include members of any of its boards, commissions and committees..." Recommendation: I recommend that Ordinance 2005 - IDEM -BD +PL -EXI -G -776 be passed. Last saved by Default C \Documents and Settings \jmoline \Local Settings \Temporary Internet Files \OLKDB \Indem doc Last printed 3/18/2005 5 25 PM 6 authorize expenditures as amended. ROLL CALL VOTE Ayes 6 - Trustees Aktipis, Caleel, Craig, Korin, Yusuf and Zannis Nays 0 - None Absent 0 - None. Motion carried A Accounts Payable for Period Ending March 18, 2005 - $305,912 97 Significant Items included in Above 1) DuPage Water Commission - $140,325 58 B Approval of Payroll for Pay Period Ending March 12, 2005 - $568,252 04 C. Community Development Referrals 1) IL Commerce Plaza LLC — 2021 Spring Road — Text Amendment and Special Use 2) Inter Continental Development — 2221 Camden Court — Text Amendment, Special Use and Variation to the Zoning Ordinance D Authorization to Seek Bids or Proposals or Negotiate Contracts 1) Copiers for West Wing Departments and Police Department E. Authorization to Hire, Promote or Reassign Duties of Village Employees F Budget Adjustments G Treasurer's Report — February, 2005 H An Ordinance Authorizing the Sale, Donation or Disposal of Certain Items of Personal Property by the Village of Oak Brook I Community Water Supply Testing Fund 7. ITEMS REMOVED FROM CONSENT AGENDA J. Ratification of Chief of Police Employment Agreement President Quinlan had previously announced that this Agenda Item was removed as there wasn't any information available to discuss 8 BOARD & COMNIISSION RECOMMENDATIONS - None presented 0 UNFINISHED BUSINESS A CONFIRMATION OF APPOINTMENTS - None presented B ORDINANCES & RESOLUTIONS 1) AN ORDINANCE ADOPTING A COMPREHENSIVE AMENDMENT TO CHAPTER 3 (GENERAL PENALTY) OF TITLE 1 (ADMINISTRATION) OF THE VILLAGE CODE OF THE VILLAGE OF OAK BROOK, ILLINOIS TO PROVIDE FOR INDEMNIFICATION OF VILLAGE OFFICERS AND EMPLOYEES As directed by the Village Board at the March 16, 2005 Special Village Board VILLAGE OF OAK BROOK Minutes Page 5 of 21 March 22, 2005 9 B 1) Meeting, the following Ordinance was drafted to amend the Village Code to provide for indemnification of Village Officers and Employees The ordinance approves a comprehensive amendment to Chapter 3, General Penalties, of Title 1, Administration, to revise the chapter and thereby create a new Chapter 3 entitled, General Provisions This revised chapter 3 will include the existing General Penalties section and add the new Indemnification language that states "defend and indemnify any officer or employee, which shall include members of any of its boards, commissions and committees Trustee Caleel asked if this included persons that were not officers or Board members of the Village. President Quinlan clarified that the language includes anyone doing work designated by the Board of Trustees So any official Committee formed by the Board would be considered protected under the same rules as the Board of Trustees and Village President Trustee Caleel asked that it be read into the record Trustee Korin stated the Ordinance reads "To indemnify any officer or employee which shall include members of any Boards, Commissions and Committees " Motion by Trustee Korin, seconded by Trustee Aktipis, for Passage of Ordinance 2005 - IDEM- BD +PL -EXI -G -776, "An Ordinance Adopting a Comprehensive Amendment to Chapter 3 (General Penalty) of Title 1 (Administration) of the Village Code of the Village of Oak Brook, Illinois to Provide for Indemnification of Village Officers and Employees " ROLL CALL VOTE Ayes 6 - Trustees Aktipis, Caleel, Craig, Korin, Yusuf and Zannis. Nays 0 - None Absent. 0 - None Motion carried. 2) AN ORDINANCE AMENDING TITLE 1, CHAPTER 4 OF THE OAK BROOK VILLAGE CODE REGARDING CALLING FOR REGULAR AND SPECIAL MEETINGS As directed by the Village Board at the March 16, 2005 Special Village Board Meeting, the following Ordinance was drafted to further clarify the Village Code as it applies to the annual notice of meetings, special meetings, rescheduled meetings, reconvened meetings and continued meetings This ordinance also establishes written notice as the requirement for calling a special meeting listing both email and facsimile requests as acceptable forms of written requests Further, the ordinance identifies when and how items may be acted upon at the various meetings Trustee Korin asked when a meeting is rescheduled, reconvened or continued, the language in the ordinance states "that action must be taken by the Board " She stated this is not very specific The language from Steward Diamond's office stated a motion must be made She asked what does action mean and if action requires a VILLAGE OF OAK BROOK Minutes Page 6 of 21 March 22, 2005 0 675 N E 2d 110 174 111 2d 391, 675 N E 2d 110, 221111 Dec. 203 (Cite as: 174 I11.2d 391, 675 N.E.2d 110, 221 Ill.Dec. 203) [7] Municipal Corporations 163 268kl63 Most Cited Cases Criminal conduct of former commissioners and corporate counsel of city in negotiating settlement of voting rights lawsuit to include provisions ensuring commissioners' continued employment for fixed term and the right to set their own salaries was not within scope of their employment, and thus, they could not recover their criminal- litigation expenses under indemnification ordinance or any statute. S H A. 745 ILCS 10/2 -302, 9 -102; Ill Rev Stat 1989, ch 38, ¶ 33 -3, Danville, III, Ordinance No 7237 [8] Labor and Employment X3045 231Hk3045 Most Cued Cases (Formerly 255002(2) Master and Servant) Employer can be liable for torts of his employee only if those torts are committed within scope of employment [9] Labor and Employment C:--13047 231Hk3047 Most Cited Cases (Formerly 255002(6) Master and Servant) While even criminal acts of employee may fall within scope of employment, if employee's actions are different from type of acts he is authorized to perform or were performed purely in his own interest, he has departed from scope of employment [10] Labor and Employment X3045 231HU045 Most Cited Cases (Formerly 255002(2) Master and Servant) [10] Labor and Employment X3047 231 HU 047 Most Cited Cases (Formerly 255k307 Master and Servant) [10] Labor and Employment °` 3062 23lHk3062 Most Cited Cases (Formerly 255k307 Master and Servant) Employer is not responsible for acts which are clearly inappropriate to or unforeseeable in accomplishment of authorized result, serious crimes are generally unforeseeable because they are different in nature from what employees in lawful occupation are expected to do Restatement (Second) of Agency § 231 [11] Labor and Employment X3047 231Hk3047 Most Cited Cases Page 3 of 11 Page 2 (Formerly 255002(6) Master and Servant) If deviation from -scope of employment is exceedingly marked and unusual, employee may be found to be outside scope of employment as matter of law [12] Officers and Public Employees 0103 283k103 Most Cited Cases No elected official can be authorized to act in a manner that violates official misconduct and conflict of interest statutes. Ill Rev.Stat 1989, ch 24, ¶ 3 -14 -4, ch. 38, ¶ 33 -3(c), ch 102, ¶ 3 [13] Officers and Public Employees C=121 283kl21 Most Cited Cases Essence of violation of official misconduct statute is that public official has attempted to personally enrich himself or another by act exceeding his lawful authority as public servant Ill Rev.Stat 1989, ch 38, ¶ 33 -3(c) [14] Officers and Public Employees X121 283k121 Most Cited Cases Official misconduct statutes are intended to punish activities of public officials who have exploited their official positions to detriment of public good I11.Rev.Stat 1989, ch 38, ¶ 33 -3(c) [15] Principal and Agent 85 308k85 Most Cited Cases Principal is required to indemnify agent for losses resulting from good -faith execution of agency [16] Indemnity X60 208k60 Most Cited Cases (Formerly 208k13 2(3)) When two tort- feasors have breached duty to plaintiff, passively negligent tort- feasor may be allowed to shift liability to actively negligent tort- feasor [17] Municipal CorporationsC;::�163 268k163 Most Cited Cases Theory that when two tort- feasors have breached duty to plaintiff, passively negligent tort- feasor might be allowed to shift liability to actively negligent tort- feasor was not applicable to action brought by former commissioners and corporate counsel of city against city seeking indemnity for attorney fees and litigation expenses incurred in defending criminal charges of official misconduct © 2005 Thomson/West No Claim to Ong U S Govt Works http.// pnnt. westlaw .comldelivery.html ?dest =atp& format = HTMLE &dataid= BO055800000... 2/11/2005 675NE2d 110 174 111 2d 391, 675 N E 2d 110, 221 Ill Dec. 203 (Cite as: 174 I11.2d 391, 675 N.E.2d 110, 221 M.Dec. 203) Less than two weeks later, the commissioners enacted a new indemnity ordinance. The ordinance, suggested by the corporation counsel, added indemnification for city appointees, which included the positions of corporation counsel and the new department administrators In addition to civil indemnity, the ordinance provided indemnity for criminal actions if the person seeking indemnity had no reasonable cause to believe his conduct was unlawful and the act or omission was within the scope of the office or employment Soon thereafter, the State's Attorney reconvened the grand fury At the grand fury proceedings, the commissioners testified that they would receive personal benefits under the federal consent decree and that they would never have agreed to the settlement without the retention provisions In addition, the corporation counsel testified that the group felt that they were being asked to sacrifice their personal positions and that "if they were going to give up something, they were entitled to something in return " Subsequently, the grand fury returned an eight -count indictment against the commissioners and corporation counsel charging official misconduct and conflict of interest The federal district court again enjoined the state prosecution on the grounds that it had previously resolved the issue of the commissioners' and corporation counsel's criminal liability However, the federal court of appeals reversed, finding that the district court had only determined that the city had the power to enter into the decree, and not that the negotiation process was lawful. Derrickson v City of Danville, 845 F 2d 715, 723 (7th Cir 1988) Subsequently, the group stood trial in the circuit court of Vermilion County on the criminal charges of *396 violating conflict of interest (Ill Rev Stat 1989, ch 24, par 3 -14 -4, ch 102, par 3) and official misconduct (Ill Rev.Stat.1989, ch 38, par 33 -3) statutes During the bench trial, the commissioners and corporation counsel admitted that they had no right to require that they retain their fobs as a condition of settling the voting rights litigation and that they were not legally entitled to retention The circuit court found all of the commissioners and the corporation counsel guilty of official misconduct (Ill Rev.Stat.1989, ch 38, par. 33 -3(c)) and violating the prolubrtions against Page 5 of 11 Page 4 municipal officials holding pecuniary interests in governmental contracts (Ill Rev Stat 1989, ch 24, par 3- 14 -* *114 ** *207 4(a), ch 102, par 3(a)) The commissioners were each sentenced to two years' conditional discharge and fined $1,000 The corporation counsel was sentenced to two years' conditional discharge, 90 days' imprisonment, and fined $5,000 While the appeal of their convictions was still pending before the appellate court, Commissioner Wilbur Scharlau died. The appellate court abated all proceedings against Scharlau ab initio and vacated his conviction Subsequently, the appellate court reversed the convictions (People v Scharlau, 193 I11.App.3d 280, 140 Ill Dec 260, 549 N E 2d 911 (1990)), however, this court reversed the appellate court and reinstated the convictions People v Scharlau, 141 Ill 2d 180, 152 Ill Dec 401, 565 N E.2d 1319 (1990)). Thereafter, the commissioners and corporation counsel were unsuccessful in seeking a writ of habeas corpus in federal court. Wright v DeArmond, 977 F 2d 339, 343 -44 (7th Cir 1992) As a result of this prolonged litigation, the group incurred attorney fees and litigation expenses of $321,31147 The present appeal arises out of plaintiffs' two -count complaint filed in the circuit court of Vermilion County seeking reimbursement of the attorney fees and litigation expenses, but not criminal fines, from the city The *397 complaint was based on two Danville nndemmty ordinances, number 7192 (Danville, Ill., Ordinance No 7192 (eff July 8, 1986)) and number 7237 (Danville, Ill , Ordinance No 7237 (eff March 10, 1987)) (count I), and on common law indemnity (count II) The pertinent ordinance was passed by the commissioners subsequent to the entry of the consent decree in federal district court The relevant language from the ordinance follows- "Where the Mayor, member of the City Council, or any appointee of the Mayor or any member of the City Council, has acted in his official capacity, the City shall indemnify the Mayor, member of City Council, or any appointee of the Mayor or member of the City Council who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding by reason of the fact that the person is or was the Mayor, member of the City © 2005 Thomson/West No Claim to Ong U S Govt Works http•ll print. westlaw .com /delivery.html ?dest =atp& format = HTMLE &dataid= B0055800000... 2/11/2005 675 N E.2d 110 174 111 2d 391, 675 N E.2d 110, 221111 Dec 203 (Cite as: 174 I11.2d 391, 675 N.E.2d 110, 221 M.Dec. 203) Life & Casualty Co, 122 Ill App 3d 717, 717 -18, 78 Ill Dec 541, 462 N E 2d 660 (1984) (indemnity clause of insurance policy) As the city itself observes, this case involves no contract or bargained -for agreement which plaintiffs rely on for indemnity Rather, plaintiffs rely on an indemnity ordinance which was passed by the commissioners to place liability on the municipality for certain litigation brought against its officials The General Assembly has expressly authorized local public entities to indemnify their officers and employees in certain situations See 745 ILCS 10/2 -302 (West 1994) (local public entity may indemnify employees for judgment and costs *400 of certain civil actions, however, it may not indemnify punitive damage awards); 745 ILCS 10/9 -102 (West 1994) (local public entity is empowered to pay certain tort judgments entered against an employee) [5] However, even if the indemnity ordinance does not violate public policy, public policy is not the only limitation a local public entity encounters when it determines how to expend its public funds. The expenditure of public funds must be, for a public purpose Ill Const 1970, art. VIII, § 1, see also Elsenau v City of Chicago, 334 Ill 78, 81, 165 N E 129 (1929); City of Elmhurst ex rel Mastrino v City of Elmhurst, 272 Ill App.3d 168, 173, 208 Ill Dec. 673, 649 N.E.2d 1334 (1994), 65 ILCS 5/8- 1 -2 (West 1994). Defraying the costs of purely private litigation has always been outside the bounds of a proper public purpose See, e g, City of Chicago v Williams, 182 I11. 135, 55 N E. 123 (1899), City of Elmhurst ex rel Mastrino, 272 Ill App 3d at 173, 208 Ill Dec 673, 649 N E 2d 1334 [6] Plaintiffs assert that the indemnity ordinance was enacted for a public purpose and to benefit the city Although a legislative body may have broad discretion in determining what constitutes a public purpose * *116 ** *209 (People ex rel City of Salem v McMackin, 53 I112d 347, 355, 291 N E 2d 807 (1972)), that discretion is not unlimited and courts will intervene when public property is devoted to a purely private use (City of Elmhurst ex rel Mastrino, 272 Ill App.3d at 173, 208 Ill Dec 673, 649 N E 2d 1334) An unsuccessful criminal defense involving the holder of a public office, but not ansing out of the lawful exercise of the duties of that office, is purely private litigation (see Guerine Page 7of11 Page 6 v City of Northlake, 1 I11.App 3d 603, 274 N E 2d 625 (1971)), and as such, absorbing the costs of such litigation cannot be considered a proper public purpose (City of Elmhurst ex rel Mastrino, 272 I11.App 3d at 173, 208 I11.Dec 673, 649 N.E.2d 1334) Moreover, even a home rule unit, such as Danville, may only exercise powers and perform functions pertaining to its government and affairs Ill Const 1970, art VII, § 6(a) Legal expenses privately *401 incurred by holders of public office pursuant to their conviction of criminal official misconduct and corruption charges cannot reasonably be said to pertain to a home rule unit's government and affairs. Plaintiffs cite City of Montgomery v. Collins, 355 So 2d 1111 (Ala 1978), for the general proposition that it is a proper corporate purpose for a municipality to expend public funds to defend its officials from criminal charges Collins, 355 So 2d at 1114 In City of Montgomery v. Collins, the Supreme Court of Alabama determined that defense of police officers from criminal penury charges was a proper corporate purpose However, in doing so, the court relied primarily on the fact that the city risked liability in subsequent civil litigation should the police officers be convicted. Collins, 355 So.2d at 1114 -15 This concern is inapplicable in the instant case First, in City of Montgomery v Collins there was no indemnity statute or ordinance at issue. Contrarily, the Illinois General Assembly has already addressed the indemnity of local public employees and the corresponding civil liability of their employing cities See 745 ILCS 10/2 -302, 9- 102 (West 1994). Additionally, the commissioners and corporation counsel were convicted of official misconduct and conflict of interest charges for holding an interest in a government contract The city is at no risk of becoming involved in civil litigation with an inured third party as a result of the convictions In fact, if there was any victim of the commissioners' and corporation counsel's actions, it was the city itself See City of Chicago ex rel Cohen v Keane, 64 Ill 2d 559, 567 -68, 2 I11.Dec 285, 357 N E 2d 452 (1976) (recognizing a city's right to recover from its officials who are convicted of corruption charges) Although plaintiffs are correct in their assertion that courts in some jurisdictions have determined that defending a public official from criminal © 2005 Thomson/West No Claim to Ong U S. Govt. Works http• / /pnnt.westlaw.com/delivery html ?dest =atp& format =HTMLE &datald= B0055800000.. 2/11/2005 675 N.E 2d 110 174 111 2d 391, 675 N E 2d 110, 221111 Dec 203 (Cite as: 174 I11.2d 391, 675 N.E.2d 110, 221 I11.Dec. 203) legal fees incurred in the unsuccessful defense of criminal official misconduct and conflict of interest charges Therefore, to the extent it attempts to indemnify officials convicted of crimes for their attorney fees and costs incurred in their unsuccessful criminal defense, we hold the Danville ordinance invalid In so holding, we expressly make no determination regarding the authority of any municipality or home rule unit to indemnify its officers and employees who are found not guilty of criminal conduct II. Scope of Employment [7][8] In the event that the public purpose doctrine did not prevent reimbursement of plaintiffs for their criminal litigation expenses, plaintiffs still could not recover under the ordinance or any statute because the commissioners' and corporation counsel's actions, as a matter of law, were outside the scope of their employment We disagree with the appellate court's determination that scope of employment is not a real issue in the case Acting within the scope of their office or employment is a prerequisite for plaintiffs to receive mdemnity under the specific terms of the ordinance Danville, Ill , Ordinance No. 7237 (eff March 10, 1987) Moreover, a *405 statutory requirement for any indemnification of employees of local public entities is that the underlying act occurred within the * *118 ** *211 scope of employment 745 ILCS 10/2 -302, 9 -102 (West 1994) Finally, under a traditional respondeat superior analysis, an employer can be liable for the torts of his employee, however, only for those torts that are committed within the scope of that employment See Pyne v Witmer, 129 111 2d 351, 359, 135 Ill Dec 557, 543 N E 2d 1304 (1989), see generally Restatement (Second) of Agency § 219 (1958) Therefore, because there are no means for the city to indemnify the commissioners and corporation counsel unless their actions were within the scope of their employment, it is dispositive in this case [9] [ 10] [ 11 ] While even the criminal acts of an employee may fall within the scope of employment (see, e g, Webb v Jewel Cos, 137 Ill App 3d 1004, 1006, 92 Ill Dec. 598, 485 N E.2d 409 (1985), Restatement (Second) of Agency § 231 (1958)), if the employee's actions are different from the type of acts he is authorized to perform or were performed purely in his own interest, he has departed from the Page 9of11 Page 8 scope of employment (see Sunseri v Puccia, 97 Ill App 3d 488, 493, 52 Ill Dec 716, 422 N.E.2d 925 (1981), Restatement (Second) of Agency § 228(2) (1958)) Moreover, an employer is not responsible for acts which are clearly inappropriate to or unforeseeable in the accomplishment of an authorized result Serous crimes are generally unforeseeable because they are different in nature from what employees in a lawful occupation are expected to do See Restatement (Second) of Agency § 231, Comment a (1958); see also Webb, 137 Ill App 3d at 1006, 92 I11.Dec. 598, 485 N E.2d 409, Nelson v Nuccio, 131 Ill App 2d 261, 263, 268 N E 2d 543 (1971). Further, if a deviation is exceedingly marked and unusual, the employee may be found to be outside the scope of employment as a matter of law. Pyne, 129 I11.2d at 361, 135 Ill Dec 557, 543 N E.2d 1304 [ 12] We recognize that this case does not involve the circumstances typically present in a traditional respondeat *406 superior analysis- -when an inured third party attempts to hold an employer vicariously liable for the torts of an employee Nevertheless, the principles advanced in the context of imposing vicarious liability upon an employer are applicable in cases seeking to impose duties upon a public entity to indemnify and defend its employees because both liabilities are premised upon employee acts occurring within the scope of employment. See Deloney v Board of Education, 281 Ill App 3d 775, 217 Ill Dec 123, 666 N.E.2d 792 (1996). In applying these principles to the case at bar, it is clear that the commissioners' and corporation counsel's self - dealing was committed solely for their personal benefit and had no relation to their positions as elected officials Although the commissioners had authority to negotiate a settlement of the voting rights lawsuit, utilizing the negotiations to illegally advance their own personal interests by preserving their employment was an action obviously different from those they were authorized to perform No elected official can be authorized to act in a manner that violates official misconduct and conflict of interest statutes Hall v Thompson, 283 Ark 26, 28 -29, 669 S W 2d 905, 906 -07 (1984) (official duties of a public official never require him to participate in criminal activities) Moreover, tlus court has already determined that the commissioners' and corporation counsel's acts were unauthorized. Scharlau, 141 © 2005 Thomson/West No Claim to Ong U S Govt Works http: / /pnnt.westlaw com/delivery.html ?dest =atp& format = HTMLE &dataid= B0055800000... 2/11/2005 675 N E 2d 110 174 111 2d 391, 675 N E.2d 110, 221 111 Dec 203 (Cite as: 174 1H.2d 391, 675 N.E.2d 110, 221 EI.Dec. 203) (Fla App 1983), Ellison v Reid, 397 So 2d 352, 354 (Fla App 1981), State ex rel Crow v City oy St Louis, 174 Mo 125, 148, 73 S W 623, 630 (1903) However, none of these cases support plaintiffs' position _ American Telephone & Telegraph Co v Leveque and Lundy v Whiting Cof p both dealt with the issue of implied indemnity among point tortfeasors Specifically, when two tortfeasors have breached a duty to a plaintiff, the passively negligent tortfeasor may be allowed to shift liability to the actively negligent tortfeasor See American Telephone & Telegraph Co, 30 Ill App 2d at 127 -28, 173 N E.2d 737, Lundy v Whiting Corp, 93 111 App.3d at 258, 48 Ill Dec 752, 417 N E 2d 154 This theory is not applicable to the instant case and plaintiffs have conceded as much in their briefs. * *120 ** *213 [18] The other cases offered by plaintiffs stand for the propositions that a public official acting pursuant to authority, within the scope of employment, and while serving a public purpose may be indemnified by a municipality for expenses he incurs See Lomelo, 423 So 2d at 976, Ellison, 397 So 2d at 354, State ex rel Crow, 174 Mo at 148, 73 S W at 630 We have already determined that the commissioners and corporation counsel were not acting pursuant to authority or within the scope of their employment and they were not serving a public purpose Therefore, plaintiffs' action for common law indemnity also must fail CONCLUSION -For the foregoing reasons, the judgment of the appellate court is reversed. The judgment of the circuit court dismissing the complaint is affirmed Appellate court judgment reversed, circuit court judgment armed BILANDIC, C J, took no part in the consideration or decision of tlus case 174 Ill 2d 391, 675 N E 2d 110, 221 Ill Dec 203 END OF DOCUMENT © 2005 Thomson/West No Claim to Ong U S Govt Works Page 11 of 11 Page 10 http:/ /pnnt.westlaw.comldelivery.html ?dest =atp& format = HTMLE &datald= B0055800000... 2/11/2005 387NE2d714 69 Ill App 3d 797, 387 N E.2d 714, 25 Ill Dec 838, 4 Media L Rep 2094 (Cite as: 69 I11.App.3d 797, 387 N.E.2d 714, 25 I11.Dec. 838) construction and was libelous per se [8] Libel and Slander�39 23709 Most Cited Cases [8] Libel and Slander C;----148(2) 237k48(2) Most Cited Cases City clerk's statement, in reference to garbage collection contract awarded to private scavenger firm, that "240 pieces of silver changed hands - -30 for each alderman" did not fall within the scope of the executive privilege cases, since the statement related wholly to activities and responsibilities of persons over whom the clerk had no authority and for whose activities he had no responsibility, furthermore, the statement represented , a factual charge that the aldermen had been bribed to award the contract and, as such, the statement did not constitute fair comment or criticism and was not so privileged [9] Libel and Slander X48(1) 237k48(1) Most Cited Cases Four criteria must be met in order that fair comment be deemed not actionable (1) the publication must be of an opinion, (2) it must relate not to an individual but to his acts, (3) it must be fair in the sense that the reader can see a factual basis for comment and draw his own conclusions, and (4) it must relate to a matter of public interest [10] Libel and Slander h123(8) 237kl23(8) Most Cited Cases As regards the four criteria which must be met in order that fair comment be deemed not actionable, the question whether these criteria are met may be determined as a matter of law [11] Libel and Slander C=6(1) 237k6(1) Most Cited Cases A writer cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it might be [12] Libel and Slander X10(2) 237k10(2) Most Cited Cases City clerk's statement, in reference to award by aldermen of a garbage collection contract, that "240 pieces of silver changed hands - -30 for each alderman" could not be said to represent merely an Page 3 of 14 Page 2 opinion, and even assuming the statement was merely one of opinion, liability for libel may attach when a negative characterization of a person is coupled with a clear but false implication that he was privy to facts about plaintiffs and their actions [13] Libel and Slander °` 51(5) 237k51(5) Most Cited Cases City aldermen, sung city clerk, newspaper reporter and publisher for libel, established that the clerk's "240 pieces of silver" statement was made with actual malice, 1 e , with reckless disregard of whether it was true or false. [14] Libel and Slander�51(1) 237k51(1) Most Cited Cases Actual malice may be inferred when the investigation for a story which is not "hot news" is grossly inadequate in the circumstances [15] Libel and Slander X42(2) 237k42(2) Most Cited Cases Publication of city clerk's statement, in reference to award of garbage collection contract, that "240 pieces of silver changed hands - -30 for each alderman" was privileged as the report of the official conduct of public _ officials, and therefore summary judgment, in libel action brought by the aldermen, was properly granted in favor of newspaper publisher and reporter, absent proof raising a genuine issue of fact as to the existence of actual malice, i e , knowledge of falsity or reckless disregard for truth or falsity [16] Libel and Slander X123(8) 237kl23(8) Most Cited Cases A defendant in a defamation action brought by a public official cannot automatically insure a favorable verdict by testifying that he published with a belief that the statements were true, and the question of whether publication was made in good faith without knowledge of falsity or in reckless disregard of truth or falsity is generally a question for the fury. [17] Libel and Slander X51(1) 23 7k51(1) Most Cited Cases To determine whether statements were published with actual malice, the court must look to the defendants' subjective state of mind © 2005 Thomson/West No Claim to Ong U S Govt Works http. / /pnnt westlaw.com/delivery.html ?dest =atp& format = HTMLE &datald= B0055800000.. 2/11/2005 387 N E.2d 714 69 Ill App.3d 797, 387 N E 2d 714, 25 I11.Dec 838, 4 Media L Rep 2094 (Cite as: 69 Ill.App.3d 797, 387 N.E.2d 714, 25 I11.Dec. 838) Supreme Court Rules, rules 341(e)(7), 362, 366(a)(3), S.H A ch 110A, §§ 341(e)(7), 362, 366(a)(3) *799 * *717 ** *841 `Edward V Hanrahan, Chicago, for plaintiffs- appellants James E Gierach, Gierach, Stambulis & Schussler, Ltd, Oak Lawn, for defendant - appellee Robert C Pechous *800 Thomas G. Ryan, Donald B Hilliker, Chicago (Isham, Lincoln & Beale, Chicago, of counsel), for defendants - appellees Mark Fineman and Field Enterprises, Inc DOWNING, Justice Plaintiffs, seven aldermen of the city of Berwyn (Berwyn), Illinois, appeal an order of the circuit court of Cook County denying their motion for summary judgment and granting summary judgments in favor of defendant Robert C Pechous and defendants Mark Fineman and Field Enterprises, Inc Defendant Pechous's statements, made while serving as Berwyn's city clerk and quoted in an article written by Fineman and published by Field, form the basis of this libel suit. The only issue on appeal is whether the trial court erred in denying the plaintiffs' motion for summary judgment and in granting the defendants' motions We affirm as to defendants Fineman and Field, and reverse and remand as to defendant Pechous Prior to January 1976, Berwyn had its garbage collected by city employees. On December 19, 1975, the plaintiffs as trustees of Berwyn voted to advertise for bids from private scavenger firms and to open the bids submitted on January 12, 1976 On December 29, 1975, several representatives from private scavenger firms attended the Berwyn Public ** *842 Works Committee meeting Following the adjournment of this meeting, the regular city council meeting was held Of the representatives attending the Public * *718 Works Committee meeting, only the three who had previously submitted bids remained for the regular council meeting At this meeting the plaintiffs opened these firms' bids and accepted the lowest bid submitted by the Clearing Disposal Company (Clearing) The plaintiffs then voted to declare an emergency and create a $600,000 emergency appropriation for the Page 5 of 14 Page 4 private scavenger service It was during this meeting that defendant Pechous first made the following allegedly libelous statement- "Two hundred and forty pieces of silver changed hands thirty for each alderman " The controversial nature of the award of the contract to Clearing is reflected in the actions taken by other city officials and bidders shortly thereafter On January 5, 1976, Thomas Hett, the city attorney, sent the council a letter stating that its action in declaring an emergency was illegal and questioning the wisdom of the change to a private scavenger firm On the same day, Emil Vacin, Berwyn's mayor, vetoed the award of the contract to Clearing in a letter, stating that he found the plaintiffs' actions at the December 29 meeting "questionable (and) patently unfair " The mayor's letter further questioned why all of the prospective bidders who were present at the Public Works Committee meeting had not been told to remain for the regular meeting A second letter from Mayor Vacin to *801 the plaintiffs vetoed the $600,000 appropriation The plaintiffs' letter in response notified the mayor of their decision to override his veto On January 12, 1976, Mayor Vacin returned the unsigned contract along with a letter reaffirming his veto on the ground that the contract was not in the best interest of the city The results of a survey of Berwyn residents favoring the retention of the city employees for garbage collection were sent to the mayor and to the plaintiffs by the Public Works Committee The city employees charged that the plaintiffs' actions violated their collective bargaining agreement. One of the private scavenger firms planning to submit a bid by the original January 12 deadline notified the city of its intention to bring suit to have the December 29 bidding declared illegal Ultimately, the circuit court threw out the December 29 bids and ordered the plaintiffs to readvertise Defendant Fineman began his investigation of the Clearing contract early in April 1976 During the course of his investigation, he reviewed the foregoing letters and documents, the minutes of the relevant meetings, and the contract Before writing the article, defendant Fineman talked to the following people John Van Tholen, Jr, a former Berwyn employee who had spoken in favor of the © 2005 Thomson/West No Claim to Ong U S Govt Works http• / /pnnt westlaw .com /delivery.html ?dest =atp& format = HTMLE &dataid= B0055800000 .. 2/11/2005 387NE2d714 69 Ill App 3d 797, 387 N E.2d 714, 25 Ill Dec 838, 4 Media L Rep 2094 (Cite as: 69 I11.App.3d 797, 387 N.E.2d 714, 25 IH.Dec. 838) plaintiffs of taking bribes ( Pechous's statements), attributed the employment of Van Tholen to the plaintiffs' illegal and improper action, and charged plaintiffs with further "suspicious" and illegal behavior Count III further alleged that these accusations and implications were false and that the article was written and published knowing that such statements were false or with reckless disregard of their truth or falsity Defendant Pechous's answer generally denied the plaintiffs' allegations. Defendants Fmeman and Field's answer admitted publishing the article but denied all other allegations Defendants Fmeman and Field also asserted as affirmative defenses that the article was published about public officials and was not published with knowledge of its falsity or probable falsity, that the article was devoted to the public interest, and that defendant Pechous's statements in the article were made at the Berwyn council meeting, and therefore the publication of these statements could not form the basis of a libel action against them. * *720 ** *844 On October 26, 1976, defendants Fmeman and Field moved for summary judgment reasserting the foregoing privileges and contending that defendant Pechous's "240 pieces of silver" statement was an expression of opinion, and that all of the quoted statements were capable of an innocent construction Defendant Foreman's affidavit stated that he did not believe any statements in the article were false. On May 31, 1977, the plaintiffs responded to this motion and filed a cross - motion for summary judgment The plaintiffs contended that the article and the statements of defendant Pechous were incapable of an innocent construction and that the article was not privileged because. (1) defendant Pechous's statements were made in his private capacity and were reported by the defendants three months after the fact, and (2) the constitutional privilege applies only to reports of the actions of public officials in the performance of their public duties and does not apply even then when the statements are libelous per se. The plaintiffs' cross - motion was supported by the affidavit of one of the plaintiffs, stating generally that defendant Pechous had no part to play in awarding the contract The affidavits of three other plaintiffs Page 7of14 Page 6 filed on June 9, 1977 generally rebutted defendant Fmeman's statement that he did not believe any of the statements to be untrue and stated that they believed that the article was published with reckless disregard of whether the statements within it were true or false On the basis of these pleadings, and defendant Fmeman's answers to interrogatories, investigatory documents, and notes, the trial court granted summary judgment for defendants Fineman and Field on June 9, *804 1977 The court found that defendant Pechous's statements did not fall within the scope of Lulay v Peoria Journal -Star, Inc (1966), 34 111 2d 112, 214 N E 2d 746 (reports of governmental acts and utterances), or Blair v. Walker (1976), 64 Ill 2d 1, 349 N E 2d 385 (executive privilege), and that there was a question of fact as to whether the article was published with actual malice as defined in New York Tunes v Sullivan (1964), 376 US 254, 84 S Ct. 710, 11 L Ed 2d 686 However, the trial court also found that the application of the innocent construction rule of John v Tribune Co (1962), 24 I11.2d 437, 181 ME 2d 105, Cert. denied 371 US 877, 83 S Ct 148, 9 L.Ed 2d 114, rendered the statements in the article nonactnonable Accordingly, the court dismissed the action against defendants Fmeman and Field and denied the plaintiffs' cross - motion On July 18, 1977, defendant Pechous also moved for summary judgment on the grounds that hus "240 pieces of silver" statement was an assertion of opinion, that this and the other statements published in the article were capable of an ' innocent construction, and even of libelous, were privileged under the holdings of New York Times, supra, and Blau-, supra. Defendant Pechous's affidavit stated that he did not act with malice in making the comments, and that as city clerk he had exercised his constitutional right to inform the Berwyn residents of his opinion of the plaintiffs' actions. The plaintiffs again filed a cross - motion for summary judgment asserting that defendant Pechous's statements were incapable of an innocent construction, were not privileged under Blair, supra, or under Lulay, supra, and were made with actual malice. Plaintiff Myrtle D Slawko's affidavit stated that defendant Pechous had no part to play in awarding the contract and that his statements were © 2005 Thomson/West No Claim to Ong U S. Govt Works. http:/ /pnnt.westlaw.comldelivery.html ?dest =atp &format = HTMLE &dataid =BOO5 5800000... 2/11/2005 Page 9of14 387 N E 2d 714 Page 8 69 Ill App 3d 797, 387 N E 2d 714, 25 I11.Dec 838, 4 Media L. Rep 2094 (Cite as: 69 I11.App.3d 797, 387 N.E.2d 714, 25 I11.Dec. 838) 33 -3) with the particularity of an indictment, the inference raised is clear Moreover, reading this statement in its "best possible sense" (Jacobs, supra ) and * *722 ** *846 ascribing only the defendant's "betrayal of public trust" meaning to it, we find that its impugnment of the plaintiffs' integrity in the discharge of their official duties and the concomitant prejudice to then- professions is sufficient to sustain the plaintiffs' charge of libel per se (see Weber v Woods (1st Dist.1975), 31 Ill App.3d 122, 128, 334 N E 2d 857) Since an innocent reading is not plausible, summary judgment for the defendant on this ground was improper However, since the plaintiffs appeal the denial of their motion for summary judgment, it remains to be determined whether, even though libelous, defendant Pechous's statement was privileged B Defendant Pechous argues that his "240 pieces of silver" statement was absolutely privileged as made in the course of the proceedings of public officials (Blair, supra ) and constitutionally privileged as the report of the conduct of public officials He also asserts that this statement is nonactionable insofar as it was a statement of opinion made without malice in exercising his constitutional right to comment on the plaintiffs' actions We disagree Defendant Pechous asserts that his responsibility to countersign all warrants drawn upon the municipal treasurer (Ill Rev Stat 1977, ch 24, par 8 -1 -8), the prolubition against the abolishment of his office, the alteration of his term, or the manner of his selection without referendum (Il1.Const 1970, art. VII, sec 6(f)), and his position as Berwyn's city clerk denote an elected position of high rank comparable to the positions of those officials given absolute immunity in Blair v Walker (1976), 64 I11.2d 1, 349 N E.2d 385 (governor), - Loniello v Fitzgerald (1st Dist 1976), 42 Ill App.3d 900, 1 Ill Dec. 560, 356 N E 2d 842 (mayor), and Larson v Doner (2nd Dist 1961), 32 Ill App 2d 471, 178 N E 2d 399 (city commissioners) Although we recognize that a city clerk is considered an officer in a city's form of *807 government (Paglini v Police Board (1975), 61 Ill 2d 233, 236 -237, 335 N.E.2d 480), we are of the opinion that defendant Pechous has failed to show that his statement was "legitimately related to matters committed to his responsibility" (Blair, supra, 64 Ill 2d at 10, 349 N E.2d at 389) Defendant Pechous asserts that his participation in the deliberations leading up to the award of the contract, his authority to sign the contract, and his position as an elected official lend credence to the proposition that his duties were not merely ministerial, and that therefore his statement related to subject matter over which he had direct responsibility and authority. Pechous refers us to no authority which gives the city clerk the right or duty to speak out in matters over which he has no authority to cast a decisive vote in the city council Pechous refers us to no statute or ordinance granting him the authority to sign such contracts On the contrary, the Berwyn City Code provides that "all contracts exceeding in amount the sum of five hundred dollars * * * shall be let by the commissioner of public works, with the approval of the city council * * *." Berwyn City Code, sec 2 -97 [8] Finally, plaintiff Myrtle D Slawko's affidavit stated that the defendant had no part to play in the awarding of the contract In response, defendant Pechous's affidavit merely states that he "was the duly elected qualified and acting City Clerk * * * and was obliged to keep all City Records, documents and journal(s) of council meetings * * * to make available the public records in his keeping " Pechous's affidavit not only fails to refute the plaintiffs averment that he had no responsibility over the actions of the council, but also it supports the plaintiffs' contention that his duties were merely ministerial. Strictly construing the plaintiffs affidavit (Bd of Education v Green Valley Builders, Inc (2nd Dist.1973), 10 I11.App 3d 235, 237, 293 N E 2d 183) and liberally construing the defendant's (American Nat. Bank & Trust Co. v Lembessis (1st Dist 1969), 116 I11.App 2d 5, 10, 253 N E 2d 126), we find that Pechous failed to deny that Ins duties were * *723 ** *847 only ministerial and unrelated to the discretionary award of the contract and is therefore deemed to have admitted the truth of those averments (Watson v Southwest Messenger Press (1st Dist 1973), 12 I11.App 3d 968, 972, 299 N E 2d 409) Since his statement related wholly to activities and responsibilities of persons over whom he had no authority and for whose activities he had no © 2005 Thomson/West No Claim to Ong U S Govt Works http: / /pnnt.westlaw. com/delivery.html ?dest =atp& format = HTMLE &dataid =B 0055 800000... 2/11/2005 387NE2d714 69 Ill App.3d 797, 387 N.E.2d 714, 25 Ill Dec. 838, 4 Media L Rep 2094 (Cite as: 69 Ill.App.3d 797, 387 N.E.2d 714, 25 I11.Dee. 838) Furthermore, when questioned as to his personal knowledge and the factual basis for his "240 pieces of silver" statement, defendant Pechous referred to the documents and letters compiled during defendants Fineman and Field's investigation The first of these documents charging that the plaintiffs' actions were irregular was dated January 5, 1976 Therefore, at the time defendant Pechous charged the plaintiffs with having taken bribes at the December 29 meeting, he did so solely on the basis of his unsupported opinion that the proceedings were irregular [FN I] FN 1 With respect to the constitutional privilege of the New York Times v Sullivan, supra, case, defendant Pechous's brief merely adopts by reference the arguments of defendants Fineman and Field No attempt is made to explain why that case would protect Pechous when he initially made the statement at the council meeting There may have been many reasons for the alleged irregularity of the plaintiffs' actions at the December 29 meeting As a ministerial officer, defendant Pechous would not necessarily have been privy to these reasons Nevertheless, without any investigation, and without personal knowledge of facts to support his charge, defendant Pechous charged the plaintiffs with the serious crimes of bribery and official misconduct We are of the opinion that defendant Pechous must have had a "high degree of awareness of (the) * * * probable falsity" of his statement (Garrison v. Louisiana (1964), 379 U S 64, 74, 85 S Ct 209, 13 L Ed 2d 125), and that therefore he made the statement with reckless disregard of whether it was true or false In our opinion, the record does not support the claim of privilege asserted by defendant Pechous II [15] Defendant Pechous's "240 pieces of silver" statement retained its unambiguous libelous meaning in the article written and published by *810 defendants Fineman and Field Therefore, we find that the trial court erred in granting these defendants' motion for summary judgment on the ground that the article could be innocently construed However, we are not bound by the precise reasons given by the trial court in entering Page 11 of 14 Page 10 judgment (Weber v Woods (1st Dist 1975), 31 Ill App 3d 122, 132, 334 N E.2d 857 ) Upon a consideration of the whole record (Gliwa v Washington Polish Loan & Bldg Ass'n (1st Dist 1941), 310 Il1.App 465, 471, 34 N E 2d 736), we agree with the defendants' contention that them article was privileged as a report of the official conduct of public officials and that the plaintiffs have failed to defeat this privilege Therefore, despite our disposition of the case as to defendant Pechous, we find that summary judgment was properly granted in favor of defendants Fineman and Field See Weber, supra, 31 Ill App 3d at 131, 334 N E 2d 857 In applying constitutional principles to the common law of libel, the United States Supreme Court held that public officials may recover civil damages in libel actions only when they can establish by "clear and convincing evidence" that the libel was made "with knowledge that it was false or with reckless disregard of whether it was false or not" (New York Tunes Co v Sullivan (1964), 376 U S 254, 279 -80, 84 S Ct 710, 726, 11 L Ed 2d 686, Gertz v Robert Welch, Inc (1974), 418 US 323, 342, 94 S Ct 2997, 41 L Ed.2d 789 ) The plaintiffs ** *849 * *725 do not dispute that they are "public officials" within the meaning of Rosenblatt v. Baer (1966), 383 U S 75, 85, 86 S Ct- 669, 15 L Ed 2d 597 Therefore, the only question is whether in the materials before the trial fudge in connection with the defendants' motion for summary judgment, there was a genuine issue of fact as to the existence of actual malice, I e, knowledge of the falsity of defendant Pechous's statements in the article or reckless disregard for the truth or falsity of these statements The trial court found that there was We disagree [ 16] A defendant in a defamation action brought by a public official cannot automatically unsure a favorable verdict by testifying that he published with a belief that the statements were true, and the question of whether publication was made in good faith without knowledge of falsity or in reckless disregard of truth or falsity is generally a question for the fury (Durso v Lyle Stuart, Inc. (1st Dist 1975), 33 Ill App 3d 300, 306, 337 N E 2d 443, St Amant v Thompson (1968), 390 U S 727, 732, 88 S Ct 1323, 20 L Ed 2d 262.) However, in Allen v Meyer (1958), 14 I11.2d 284, 292, 152 N E 2d © 2005 Thomson/West No Claim to Ong U.S Govt Works http: / /pnnt. westlaw .comldelivery.html ?dest =atp& format = HTMLE &dataid= B0055800000... 2/11/2005 387NE2d714 69 Ill App 3d 797, 387 N E 2d 714, 25 Ill Dec 838, 4 Media L Rep 2094 (Cite as: 69 I11.App.3d 797, 387 N.E.2d 714, 25 I11.Dec. 838) affidavit of Thomas P Hardy and a certain ordinance of the city of Berwyn Based on our review of the petitions, the responses, and the said motion, we deem it necessary to make the following comments in denying each petition for rehearing as well as the motion of defendant Pechous for additional filings Our opinion was issued on December 19, 1978 On December 29, 1978, plaintiffs filed a petition for rehearing On January 9, 1979, defendant Pechous filed both the petition for rehearing and the aforesaid motion. For the first time defendant Pechous specifically challenges the accuracy of the following quote appearing in defendants Fineman and Field's article which was the basis of plaintiffs' suit "I said at the council meeting when the contract was first awarded that I think 240 pieces of silver changed hands 30 for each alderman " The complaint charged that Pechous said on December 29, 1975 "Two hundred forty pieces of silver changed hands thirty for each alderman," to which defendant answered with a general denial *813 Although it is undisputed that the contract was awarded to Clearing at the December 29, 1975 council meeting, defendant Pechous now, for the first time in the record, contends that he did not make this statement until the January 12, 1976 council meeting, and that he did not say "30 for each alderman." O In support of this argument, defendant Pechous filed the post - opinion motion in this court seeking leave to file the affidavit of Thomas P Hardy, a reporter for the Berwyn Life newspaper who attended the council meeting and wrote an article concerning the January 12, 1976 council meeting Hardy's affidavit states that defendant Pechous did not say "240 pieces of silver changed hands 30 for each alderman" at the January 12 meeting Rather, Hardy's article, submitted in support of his affidavit, quotes defendant Pechous as follows "He went on to say that '240 pieces of silver' cemented the relationship between Clearing and the aldermen, 'destroying the tap roots of democracy ' " Page 13 of 14 Page 12 [19][20][21] Although Supreme Court Rule 366(a)(3) ( Ill Rev Stat 1977, ch 110A, par 366(a)(3)) permits this court to amend the record by correcting errors or by adding matters that should have been included, it is axiomatic that new evidence not offered during the teal of a cause cannot be introduced for the first time on appeal ( Tobler Trucking Co v Industrial Corn (1967), 37 III 2d 341, 344, 226 N.E.2d 601, * *727 ** *851 Kohler v Central & Southern Truck Lines (5th Dist 1977), 45 I11.App 3d 621, 626, 4 Ill Dec 342, 360 ME 2d 89) Moreover, "(n) o application for amendment of pleadings or process will be considered if made after the cause has been submitted for decision" (Ill Rev Stat.1977, ch 110A, par 362.) Defendant Pechous did not submit the Hardy affidavit or article to this court until long after the case had been submitted for our decision In fact, they were not submitted until after the opinion had been issued It is obvious that the material could have been available to defendant Pechous during the course of the trial, during the preparation of the appeal, and prior to oral argument in this court. [22] Nor do we believe that this new evidence falls within the rule permitting rehearing only on "points claimed to have been overlooked or misapprehended by (this) court" in its original opinion (Ill Rev Stat 1977, ch 110A, par 367(b) ) This evidence was overlooked by defendant Pechous, not the court As noted in our opinion, the parties' cross - motions for summary judgment invited the trial court to decide the issues by reference to its file It was the parties' position that all material facts were before the trial court, the issues were defined, and it was agreed that only a question of law was involved ( Allen v Meyer (1958), 14 I112d 284, 292, 152 N E 2d 576) Referring to its file, the trial court found (1) the defendant's pro se *814 answer generally denying all of the plaintiffs' allegations; (2) Fineman's answers to the plaintiffs' interrogatories stating that Pechous had told him, "I said at the council meeting when the contract was first awarded that 240 pieces of silver changed hands 30 for each alderman ", (3) defendant Fineman's uncontradicted affidavit attesting to the accuracy of the quoted statement, and (4) defendant Pechous's own motion for summary judgment and © 2005 Thomson/West No Claim to Ong U.S Govt. Works. http: / /pnnt westlaw .com /delivery.html ?dest =atp& format = HTMLE &dataid= B0055800000... 2/11/2005 387 N E.2d 714 69 Ill App 3d 797, 387 N E 2d 714, 25 I11.Dec 838, 4 Media L. Rep 2094 (Cite as: 69 Ill.App.3d 797, 387 N.E.2d 714, 25 IH.Dec. 838) supporting memoranda in which he incorporated the "240 pieces of silver 30 for each alderman" statement At no time did defendant Pechous argue to the trial court that he had made the statement on January 12, 1976, and that he had not said "30 for each alderman " Moreover, defendant Pechous's briefs submitted to this court contain numerous references to the statement as quoted by defendants Fineman and Field, I e , "240 pieces of silver 30 for each alderman " Furthermore, although the plaintiffs' statement of facts asserted that defendant Pechous made the statement on December 29, 1975 as quoted in the article, defendant Pechous's nine -page restatement of the facts in his brief never questioned this assertion During oral argument before this court defendant Pechous did not question the accuracy of the quote, nor was the date challenged [23] Supreme Court Rule 341(e)(7) provides in part that "points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing " (Ill Rev Stat.1977, ch. 110A, par 341(e)(7)) Although this rule is not jurisdictional and may be overridden by the need for a dust result and uniform body of precedent, as stated by our supreme court in Hux v Raben (1967), 38 I11.2d 223, 225, 230 N E.2d 831, 832 "There are limitations. '(A)n appellate court should not, and will not, consider different theories, or new questions, of proof might have been offered to refute or overcome them had they been presented at the trial ' (Citations omitted ) " Obviously, the matters in defendant Pechous's post - opinion motion could have, yes, should have been presented in the trial court or at the very latest before oral argument in this court [24] Although defendant Pechous's pro se answer generally denying all of the plaintiffs' allegations put the date and content of the quoted statement in issue, his subsequent pleadings not only failed to challenge its accuracy as it appeared throughout the parties' pleadings, memoranda, and briefs, but also reiterated these alleged inaccuracies It is our opinion that any alleged misapprehension of the date and content of the quoted statement can only be attributed to the defendant's course * *728 ** *852 of conduct throughout this litigation and his failure to raise this issue prior to the submission of Page 14 of 14 Page 13 the case for our decision Because we believe that the defendant's efforts to correct these alleged inaccuracies have come too late, we must *815 consider the statement as quoted in the article to be accurate See People v C & A R. R Co (1911), 253 Ill 191, 196 -198, 97 N E 310 In this same post - opinion motion, defendant Pechous also sought to amend the record to include those portions of the Berwyn City Code which create and define the duties of the Board of Health of that city His petition for rehearing argues that as a member of the Board of Health at the time he made the statement, his statement was "legitimately related to matters committed to his responsibility" and therefore was privileged under Blau- v Walker (1976), 64 I112d 1, 349 N E 2d 385 The defendant's motion to file these ordinances at this point in the litigation suffers from the same infirmities noted previously with respect to the Hardy affidavit and article Moreover, even if we were to take judicial notice of these ordinances, we note that the defendant advances this new theory for the first time in his petition for rehearing. Under these circumstances, we think that it can hardly be said that the defendant's argument is grounded on a point- which we misapprehended or overlooked. Furthermore, we find nothing in this theory which would and defendant Pechous. Petitions for rehearing denied, defendant Pechous's motion denied STAMOS, P J , and PERLIN, J., concur 69 Ill App 3d 797, 387 N E.2d 714, 25 Ill Dec 838, 4 Media L Rep. 2094 END OF DOCUMENT © 2005 Thomson/West No Claim to Ong U S Govt. Works http. / /pnnt westlaw .com /delivery.html ?dest =atp& format = HTMLE &datald= B0055800000... 2/11/2005