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05/31/96 WILLIAM DELONEY v. BOARD EDUCATION

May 31, 1996

WILLIAM DELONEY, INDIVIDUALLY, AND KAPLAN & BEGY, A PARTNERSHIP, INDIVIDUALLY AND AS EQUITABLE SUBROGEE OF WILLIAM DELONEY, PLAINTIFFS-APPELLANTS,
v.
BOARD OF EDUCATION OF THORNTON TOWNSHIP, SCHOOL DISTRICT NO. 205, COOK COUNTY, ILLINOIS, DEFENDANTS-APPELLEES.



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

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr. and Hourihane, JJ., concur.

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON delivered the opinion of the court:

Plaintiffs William Deloney and Kaplan & Begy, appointed counsel to Deloney, *fn1 filed this action against defendant Board of Education of Thornton Township, School District No. 205 (the Board), seeking to recover attorneys fees and costs incurred by Kaplan & Begy in its successful representation of Deloney, a former employee of the defendant Board, in a civil rights action brought against Deloney by a student enrolled in School District No. 205. Upon both parties' motions for summary judgment, the trial court entered judgment denying plaintiffs' motion and granting defendant's cross-motion for summary judgment. The plaintiffs appeal.

The first issue presented on appeal is whether the allegations of the civil rights complaint filed against the school employee categorically control the school board's duty to indemnify the employee for defense costs. In the event that the complaint is so controlling, the second issue presented is whether the school board must indemnify its employee where the civil rights complaint alleged that the employee's misconduct occurred within the scope of his employment but characterized the wrongful conduct by the employee as being aggravated criminal sexual abuse.

The complaint seeking indemnification, filed on August 5, 1993, alleged that Deloney was employed as a truant officer by the Board from January 28, 1985 to March 28, 1989. The complaint further alleged that on August 8, 1991 a civil rights lawsuit was filed against Deloney based on conduct that was alleged to have occurred while he was employed by the Board and within the scope of that employment. A copy of the civil rights lawsuit was attached to the complaint. In the civil rights lawsuit the plaintiff therein (hereinafter referred to as the civil rights plaintiff) alleged that in 1987, she was 16 years old and sought to be enrolled in Thornton High School. She alleged that Deloney, as part of his duties for the Board, reviewed her enrollment application. Additional allegations in the civil rights lawsuit, relevant to the instant appeal, provided:

"6. In the course of reviewing plaintiff's enrollment request as part of his duties for School District Number 205, Deloney met with plaintiff and told her that he would not let her enroll unless she had sex with him.

7. Plaintiff gave into his demands ***.

8. Plaintiff continued to give into Deloney's demands until July of 1988 ***.

***

10. In December of 1988, defendant Deloney was indicted for aggravated criminal sexual assault and official misconduct. In May of 1990, Deloney pleaded guilty to aggravated criminal sexual abuse."

The complaint in the case at bar alleged that the Board refused Kaplan and Begy's tendered defense of the civil rights lawsuit filed against Deloney and that Kaplan and Begy defended Deloney and obtained a jury verdict in Deloney's favor on September 30, 1992. That verdict was upheld on appeal.

The instant action for attorneys fees and costs is premised on the Board's statutory duty to defend and indemnify its employees for conduct occurring within the scope of employment. Those duties are set forth in section 10-20.20 of the Illinois School Code (Ill. Rev. Stat. 1991, ch. 122, par. 10-20.20 now at 105 ILCS 5/10-20.20 (West 1994)) (the School Code). *fn2 That section of the School Code provides that it is the duty of the school board to:

"indemnify *** employees *** against civil rights damage claims and suits, constitutional rights damage claims and suits *** including defense thereof, when damages are sought for negligent or wrongful acts alleged to have been committed in the scope of employment or under the direction of the board." Ill. ...


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