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11/02/89 P. Reginald Fellhauer, v. the City of Geneva Et Al.

November 2, 1989

P. REGINALD FELLHAUER, PLAINTIFF-APPELLANT

v.

THE CITY OF GENEVA ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

546 N.E.2d 791, 190 Ill. App. 3d 592, 137 Ill. Dec. 846 1989.IL.1738

Appeal from the Circuit Court of Kane County; the Hon. Barry E. Puklin, Judge, presiding.

APPELLATE Judges:

JUSTICE LINDBERG delivered the opinion of the court. DUNN, J., concurs. JUSTICE INGLIS, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiff, P. Reginald Fellhauer, the former director of the electrical department of the City of Geneva, Illinois, appeals from a portion of an order entered in the circuit court of Kane County on November 10, 1988, dismissing with prejudice for failing to state a cause of action on four counts of plaintiff's complaint directed at defendant, Richard Lewis (Lewis), the mayor of the City of Geneva. Plaintiff timely appeals from a judgment which is final as to all of plaintiff's claims against Lewis and in which the trial court made the required finding of appealability pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). The issue on appeal is whether the trial court erred in granting Lewis' motion pursuant to section 2-615 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-615) to dismiss the four counts of plaintiff's first amended complaint for failing to state a cause of action.

On February 18, 1986, plaintiff filed a two-count complaint for retaliatory discharge. Count I named the City of Geneva (the City) and Richard Lewis, individually, as defendants and sought compensatory damages. Count II's allegations of fact were identical to count I and sought punitive damages against both defendants. Plaintiff's complaint was based on allegations that he was discharged from his position as the director of the electrical department in retaliation for his refusal to perform various activities. Plaintiff's first complaint alleged that he had been appointed to his position as director of the electrical department on April 29, 1974. Lewis, having been duly elected, was sworn in as mayor of the City on May 7, 1985. During 1984 and the spring of 1985, plaintiff was involved with extensive negotiations with the Wisconsin Electrical Power Company which culminated in the signing of a written agreement on April 23, 1985, between WEPCO and the City for the provision of electrical power to the City at a substantial cost savings to the City as opposed to its previous agreement with Commonwealth Edison. During the second half of 1984 and the spring of 1985, Lewis was campaigning for the office of mayor of the City. In February 1985, Lewis allegedly approached plaintiff and asked plaintiff to "slow down" the negotiations between WEPCO and the City in order to prevent the then acting mayor, Edgar Crane, from receiving the political benefit that would result from the successful Conclusion of the ongoing negotiations between WEPCO and the City. Plaintiff refused to alter the course of the negotiations between WEPCO and the City.

Following Lewis' election to the office of mayor of the City in May 1985, Lewis allegedly solicited political contributions from city vendors in order to retire Lewis' election campaign deficit. Some of the vendors solicited by the mayor asked plaintiff if it was necessary to make the contributions in order to continue to do business with the City. Plaintiff informed the vendors that such contributions were not necessary. Plaintiff also referred the matter to the city attorney for clarification of the propriety of such requests.

Plaintiff also alleged that shortly after Lewis became mayor, Lewis asked plaintiff to "sell out the contract with WEPCO" and negotiate a "better deal with Edison." Plaintiff responded that he, plaintiff, believed that such a course of action would be a breach of the existing contractual commitment with WEPCO and asked Lewis whether such a course of conduct might subject the City to liability to WEPCO. Lewis proceeded to negotiate with Commonwealth Edison with the intention of obtaining a better deal for the City in the purchase of electrical power.

Plaintiff alleges that due to his concerns with Lewis' actions he wrote a letter to the Wisconsin attorney representing the City in its dealings with WEPCO and asked for clarification of the situation. Thereafter, Lewis instructed the City's Wisconsin attorney to have no further dealings with the plaintiff. Lewis also instructed plaintiff to cease his involvement in the electric-supply issue.

In January 1986, while Lewis was still negotiating with Commonwealth Edison, plaintiff attempted to inform the members of the electric committee and the utility committee of the city council of the City's position on the power-supply issue. On January 20, 1986, after telling plaintiff that he intended to discuss the power-supply issue with the city council, Lewis instructed plaintiff "not to say anything." Plaintiff then wrote a letter to Lewis in which plaintiff requested a clarification as to what information he should provide the aldermen of the City and for a clarification of his duty as director of the electrical department. Immediately following receipt of plaintiff's letter, Lewis terminated plaintiff's employment with the City, a decision later approved by the city council.

Plaintiff also alleged that as part of his duties as director of the electrical department, as contained in the relevant sections of the City's Municipal Code, he had a duty to inform the aldermen of the City of all facts relevant to power-supply issues regarding Lewis' negotiations with Commonwealth Edison.

Plaintiff further alleged that Lewis in bad faith and in violation of public policy discharged plaintiff in retaliation for: (1) refusing to interfere with the course of the negotiations which resulted in the WEPCO City power-supply agreement, where such interference was requested by Lewis for the sole purpose of obtaining a political advantage; (2) refusing to cooperate with Lewis' attempts to solicit post-election campaign contributions from city vendors; and (3) refusing to withhold information regarding Lewis' attempts to negotiate with Commonwealth Edison from the city council in violation of plaintiff's duties as director of the electrical department pursuant to sections 2 -- 70 and 12.17 of the Municipal Code of the City of Geneva (Municipal Code) (Geneva, Ill., Municipal Code ch. 2, par. 2 -- 70; ch. 12, par. 12.17 (Supp. 1978 & Supp. 1985)).

Lewis, pursuant to section 2-615 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-615), moved to dismiss plaintiff's complaint, arguing that: (1) as mayor, Lewis had discretion to remove an appointed officer such as plaintiff (see Ill. Rev. Stat. 1987, ch. 24, par. 3-11-1 (relied upon by Lewis)); (2) Lewis was immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) for discretionary acts within the scope of his employment (Ill. Rev. Stat. 1987, ch. 85, par. 2-201); and (3) plaintiff's complaint failed to allege that Lewis' retaliatory discharge of plaintiff violated a clearly mandated public policy.

In response, plaintiff filed a motion to strike Lewis' section 2-615 motion as improper because it asserted factual matter beyond the pleadings and raised other affirmative matter and defenses which are properly raised in a section 2-619 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2-619) and not in a section 2-615 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2-615). Plaintiff's response also replied to the arguments of Lewis' motion. Plaintiff's response argued in relevant part that his discharge for refusal to take certain actions violated a clearly mandated public policy as evidenced by the crime of official misconduct (Ill. Rev. Stat. 1987, ch. 38, par. 33-3) in that had he interfered with the WEPCO negotiation for Lewis' political advantage, plaintiff believed he would be committing a crime. Plaintiff also relied on the Municipal Code defining his duties, which he had alleged would be violated if he acquiesced in Lewis' request not to discuss Lewis' and Commonwealth Edison's negotiations with the city council.

Lewis, in response, cited an Appellate Court, First District case, Morton v. Hartigan (1986), 145 Ill. App. 3d 417, 495 N.E.2d 1159, for the proposition of law that the tort of retaliatory discharge can only be brought against an employee's employer, not a supervisor. The trial court refused to consider Lewis' assertions of qualified immunity, finding those matters improper for consideration under a section 2-615 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2-615). The trial court found that plaintiff's complaint for retaliatory discharge sufficiently alleged facts indicating that plaintiff's discharge was a violation of a clearly mandated public policy. However, the trial court found that Morton did bar a retaliatory discharge claim against Lewis. The trial court's order dismissed plaintiff's claims against Lewis for retaliatory discharge with prejudice, however, with leave to otherwise file an amended complaint based on the trial court's view that plaintiff might be able to state a cause of action for tortious interference with contractual relations.

On February 13, 1987, plaintiff filed his first amended complaint. Count I was simply a reallegation of the retaliatory discharge claim of count I of ...


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