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11/15/96 PEOPLE STATE ILLINOIS v. THOMAS WILKINSON

November 15, 1996

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
THOMAS WILKINSON, JOHN DOLLINGER AND DONALD KAUFMAN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 13th Judicial Circuit, Grundy County, Illinois. No. 95--CF--69. Honorable H. Chris Ryan, Judge Presiding.

Released for Publication December 23, 1996.

Present - Honorable Tom M. Lytton, Justice, Honorable Kent Slater, Justice, Honorable John F. Michela, Justice. Justice Michela delivered the opinion of the court: Slater, J., with Lytton, J., specially concur.

The opinion of the court was delivered by: Michela

JUSTICE MICHELA delivered the opinion of the court:

The circuit court of Grundy County dismissed a two-count indictment charging appellees Thomas Wilkinson, John Dollinger and Donald Kaufman with official misconduct in violation of section 33--3(c) of the Criminal Code of 1961. 720 ILCS 5/33--(c) (West 1994). The State appeals. For the reasons set forth below, we affirm in part and reverse in part. A Grundy County grand jury investigated whether members of the Grundy County Board acted improperly concerning the bid and eventual award of a county contract for computer equipment. The targets of this investigation, Wilkinson, Dollinger and Kaufman (appellees), retained private counsel, Jeremy Margolis, to represent their interests during the pendency of the grand jury investigation. On November 1, 1994, Margolis filed a petition to appoint a special prosecutor to conduct the grand jury investigation and to enjoin the Grundy County State's Attorney's Office from any involvement with the grand jury investigation. On November 7, 1994, the court ruled a special prosecutor was necessary and upon the agreement of the parties and of Will County State's Attorney James Glasgow, the court appointed the Will County State's Attorney's Office to conduct the grand jury investigation. The investigation ended on February 1, 1995, when the grand jury returned a no bill. On February 14, 1995, the Grundy County board passed a resolution indemnifying the appellees for their legal expenses incurred during the grand jury investigation. The resolution stated that the Grundy County State's Attorney was the county board's statutory legal counsel, but that a perceived conflict of interest prevented their receipt of statutory legal representation from that office. The resolution further stated that in order to obtain legal representation, the court must appoint a Special State's Attorney pursuant to section 3--9008 of the Counties Code. 55 ILCS 5/3--9008 (West 1994). The county board further resolved that Margolis be appointed as "Special State's Attorney" for his legal representation of the appellees during the grand jury investigation. However, no legal motion was filed with the court to appoint Margolis, or any other competent counsel, as a Special State's Attorney nunc pro tunc or at any time during these proceedings.

The resolution passed upon the approval of the county board. The appellees abstained from voting on the resolution with the exception of Wilkinson, who was not present. Upon authorization by the county board, the appellees personally accepted $21,120.44 as reimbursement for their legal fees. Will County Assistant State's Attorneys Philip Mock and Judith DeVriendt conducted another Grundy County grand jury investigation to determine whether the acceptance of these monies constituted official misconduct. On August 16, 1995, the grand jury returned a two-count indictment charging the appellees with official misconduct. Because the language of the indictment is at issue, it is reproduced below:

"COUNT I

on or between June 16, 1995 and June 20, 1995, at and within Grundy County, Illinois, a (sic) THOMAS WILKINSON, JOHN DOLLINGER, DONALD KAUFMAN, male persons, committed the offense of:

OFFICIAL MISCONDUCT

(CLASS 3 FELONY)

in that, they knowingly being public officers, Grundy County Board members, in their official capacity and with the intent to obtain personal advantage for themselves and each other, performed an act in excess of their lawful authority, in that they accepted $21,120.44 from the County of Grundy for reimbursement for legal fees incurred by them as private citizens, in violation of Chapter 720, Section 5/33-(c), of the Illinois Compiled Statutes, 1994, contrary to the Statute, and against the peace and dignity of the same People of the State of Illinois, and

COUNT II

on or between June 16, 1995 and June 20, 1995, at and within Grundy County, Illinois, a (sic) THOMAS WILKINSON, JOHN DOLLINGER, DONALD KAUFMAN, male persons, committed the offense of:

OFFICIAL MISCONDUCT

(CLASS 3 FELONY)

in that, they knowingly, being public officers, Grundy County Board members, in their official capacity and with the intent to obtain personal advantage for themselves and each other, performed an act in excess of their lawful authority, in that they accepted $21,120.44 from the County of Grundy for reimbursement for legal fees incurred by them in their official capacity without first having their legal representative appointed as a Special State's Attorney, in violation of Chapter 720, Section 5/33-3(c), of the Illinois ...


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