Appeal from the Circuit Court of Kankakee County; the Hon.
Daniel W. Gould, Judge, presiding.
JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
The plaintiff, Glenn Mulligan, appeals a decision of the circuit court of Kankakee County which dismissed his complaint against the village of Bradley and Kenneth Hayes, president of the board of trustees, following plaintiff's termination as village administrator.
Plaintiff's complaint was in four counts and sought damages for breach of contract, malicious prosecution, and a civil rights violation for being deprived of a "property right" in his employment position and that his firing was politically motivated.
The claims of malicious prosecution and the alleged civil rights violations were dismissed by the circuit court for failure to state a cause of action.
The circuit court then granted the village's motion for judgment on the pleadings with respect to plaintiff's claim for breach of contract.
The factual background for the complaint is derived, in part, from the minutes of the meetings of the village board.
On October 8, 1979, Mulligan, as president of the board of trustees of the village of Bradley, appointed trustee Novak as chairman of a committee of the whole, to study the question of whether there was a need for a full-time employee to look into the village business and to look out for the general growth and well-being of the village.
In the interim between the October 8 meeting and the next regular meeting of the board of trustees on October 29, 1979, Mulligan discussed the necessity of creating a new position of village administrator with committee chairman Novak and other members of the board of trustees. Mulligan not only urged the board members to vote in favor of creating the position of village administrator, but to vote in favor of offering the position to him.
The October 29 meeting commenced with Mulligan presiding as village president. Novak reported that although they had interviewed other candidates for the position as village administrator, they had decided to offer the position to village president Mulligan.
A resolution was read and approved which created the new position of village administrator. Four trustees voted in favor of the resolution and two trustees voted against it. Mulligan did not vote. A motion was then made to offer the contract to Mulligan. The motion passed five to one, with Mulligan abstaining. Mulligan offered his resignation as village president, which was accepted by a unanimous vote of the trustees. Mulligan accepted the position of village administrator for a period of three years commencing November 1, 1979, up to and including October 31, 1982. No appropriation ordinance was ever made to pay the $27,000 per year salary and annual 7% pay raises.
The position of village administrator involved soliciting and assisting the relocation of business entities into the village of Bradley. Hayes, who had been Mulligan's former political adversary in the village, became president of the village board. The contract provided that either party to the agreement could terminate it by 30 days' written notice during the first year, 60 days' written notice the second year, and 90 days' written notice the third year. There was no provision in the contract that it could only be terminated "for cause."
On May 4, 1981, Hayes fired Mulligan after a hearing. Thereafter, Mulligan was subpoenaed to testify before the grand jury of Kankakee County. Mulligan alleged that Hayes instigated the criminal proceedings without probable cause and with malice. The grand jury returned a "No Bill," and Mulligan filed suit against the village of Bradley and Hayes on the grounds enumerated above.
In granting a judgment on the pleadings to the defendant village with respect to plaintiff's allegation of a breach of contract, the circuit court held that the plaintiff's agreement with the village was void and unenforceable for two reasons. First, the court believed that section 8-1-7 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 8-1-7) prohibits the making of a contract unless an appropriation has been made concerning the contract. Second, the court indicated that in its opinion, the contract was void and unenforceable because it violated both section 3 of "An Act to prevent fraudulent and corrupt practices * * *" and section 3-14-4 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 102, par. 3; ch. 24, par. 3-14-4), which both prohibit an elected or appointed official from having an interest in a contract upon which he may be called upon to vote or when the consideration of the contract is paid from the public treasury.
• 1 We believe that there exists ample evidence in the record which supports the decision of the circuit court in declaring the contract in question to be void and unenforceable on the basis of plaintiff's conflict of interest. Nor are we deterred from such a conclusion by the grand jury's refusal to return an indictment, since there existed alternative authority to declare the agreement null and void without the necessity of finding a criminal violation had occurred (i.e., Ill. Rev. Stat. 1979, ch. 24, par. 8-1-7; Hogan v. City of Centralia (1979), 71 ...