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03/26/96 PEOPLE STATE ILLINOIS v. BRUCE BOSMANN

March 26, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, EX. REL. WILLIAM J. ULRICH, SR., PLAINTIFF-APPELLANT,
v.
BRUCE BOSMANN, YUSOFF DAWOOD, FIRYAL S. KHAN-DAWOOD, GERALD MOSS, KAREN HITCHCOCK, ANTONIO SCOMMEGNA, STANLEY IKENBERRY AND THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE MICHAEL J. GETTY, JUDGE PRESIDING.

The Honorable Justice Scariano delivered the opinion of the court: Hartman, P.j., and DiVito, J. concur.

The opinion of the court was delivered by: Scariano

The Honorable Justice SCARIANO delivered the opinion of the court:

Dr. Yusoff Dawood and his wife, Dr. Firyal S. Khan-Dawood, formerly faculty members of the University of Illinois College of Medicine ("the University") until approximately December 31, 1989, accepted appointments at the University of Texas Medical School effective January 1, 1990. While at the University, they allowed funds from research grants and contracts, which were available for discretionary use by the University, to accumulate in University accounts under their supervision. University policy and State law prohibited the transfer of these funds to the University of Texas.

Prior to leaving the University, and as late as October and November 1989, the Dawoods purchased scientific and other equipment and paid for them from these funds. On December 21, 1989, the Dawoods requested approval in writing from Dr. Antonio Scommegna, Head of the Department of Obstetrics and Gynecology, to take this and other research equipment with them to the University of Texas in order to continue their research.

Dr. Bruce Bosmann, Senior Associate Dean of the College of Medicine, approved the Dawoods' removal request, and Dr. Scommegna, Dr. Gerald Moss, Dean of the College of Medicine, and Dr. Karen Hitchcock, Vice Chancellor of Research, concurred in his approval; accordingly, Dr. Dawood removed the property for his own use at the University of Texas. Internal auditors at the University subsequently determined that the equipment was removed without proper authorization.

On September 29, 1992, the University filed suit against Dr. Dawood, seeking to recover (1) $113,220, representing payments owed to the University for work that Dr. Dawood had performed as a "principal investigator" while in its employ, and for which Dr. Dawood had requested and received from the companies direct payment to him at the University of Texas; (2) $174,705, representing the cost of equipment belonging to the University which was removed by Dr. Dawood to the University of Texas in violation of the State Property Control Act, and (3) punitive damages and costs.

On December 8, 1993, a "Settlement Agreement and Release" was entered into by the University and Dr. Dawood which purported to release him from all claims against him in return for his assignment to the University of grant funds of $113,220. The University also expressly released the Dawoods from all of its claims and rights related to the transferred personal property. On June 9, 1994, the University's suit against the Dawoods was dismissed with prejudice.

On February 3, 1994, plaintiff notified the Illinois Attorney General of his intention to file this suit. The attorney general neither responded to this notice, nor instituted his own action. Plaintiff's first amended complaint ("complaint"), filed on September 12, 1994, was brought against Stanley Ikenberry, President of the University, Doctors Bosmann, Scommegna, Moss, Hitchcock, (collectively "University administrators"), and the Dawoods under the "Recovery of Fraudulently Obtained Public Funds Act" (the "Recovery Act"). Plaintiff's position throughout these proceedings has been that the University was joined solely because it had a custodial interest in the property alleged to have been wrongfully obtained by the Dawoods. (The University and its administrators are collectively referred to as the "University defendants.")

Plaintiff's complaint against Dr. Bosmann and the Dawoods alleged that: accumulated funds under the control of the Dawoods belonged to the University of Illinois and by law were to remain the property of the University; the Dawoods were not entitled to take these funds with them to the University of Texas, and "as part of a fraudulent scheme or device, in anticipation of their leaving the University of Illinois for a faculty appointment at the University of Texas, and in order to evade state law and University policy, in October and November of 1989, Dawood and Khan-Dawood spent more than $44,000 for the purchase of scientific and other equipment using University funds; these purchases were made for the express purpose of removing the purchased equipment to the University of Texas for the use there by Dawood and Khan-Dawood"; in December 1989, the Dawoods submitted a request to remove the equipment recently purchased and other equipment ("removal request"). This request enumerated 58 specific items of equipment and was attached to plaintiff's complaint as an exhibit.

Plaintiff further alleged that Dr. Bosmann approved the Dawoods' removal request knowing, among other things, that: all the property in the Dawoods' removal request was owned by the State of Illinois; the removal request included equipment purchased within two months of the Dawoods' scheduled departure and included new equipment still in its original packaging; the University would receive no consideration for the equipment sought to be removed to Texas; and that the request was not allowable under University policy or State law. Plaintiff further alleged that Dr. Bosmann informed Dr. Moss, Dr. Hitchcock, and Dr. Scommegna of all of these facts, and each of them "knowingly aided [the Dawoods] to remove property belonging to the State of Illinois, which was in violation of University policy and State law, and in furtherance of a fraudulent scheme or device." President Ikenberry is alleged to have delegated his responsibilities to the other administrators, and is "deemed" to have also knowingly aided the improper removal of State property. Plaintiff sought damages from each of the University administrators and the Dawoods in excess of $100,000, payable to the State of Illinois.

In August, 1994, all defendants moved to dismiss plaintiff's complaint. On December 13, 1994, in granting all of the defendants' motions to dismiss plaintiff's actions against them, the trial judge stated:

"With regard to the Board of Trustees of the University of Illinois the Court finds that claims against the university are claims against the state for purposes of sovereign immunity. As such, plaintiff's claims as to the University are claims against the State of Illinois, and under Illinois law the Court of Claims has exclusive jurisdiction to hear and determine all claims against the State of Illinois. Consequently the Court of Claims and not this court has jurisdiction over the claims against the Board of Trustees of the University of Illinois.

With regard to Bosmann, Moss, Scommegna and Hitchcock, the plaintiff alleges that they acted in dereliction of their duties in their position with the university by approving defendant Dawood's request to remove property. With regard to Ikenberry, the plaintiff alleges liability based vicariously on his position as the president of the university.

As agents of the university acting within the scope of their official authority defendants are acting as the state. As a result they are cloaked in the same immunity as the Board of Trustees, therefore, the action against ...


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