Appeal from the Circuit Court of Cook County. No. 09 CH 43287 Honorable Nancy J. Arnold,Judge Presiding.
The opinion of the court was delivered by: Justice Robert E. Gordon
JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Justice McBride concurred in the judgment and opinion.
Justice Cahill dissented, with opinion.
This matter is before us to determine whether defendant, Mara Georges, in her official capacity as the corporation counsel of the City of Chicago (Corporation Counsel), is required to produce unredacted copies of documents that she claims are shielded by the attorney-client privilege to Joseph Ferguson, in his official capacity as inspector general of the City of Chicago (Inspector General). After the Inspector General served the Corporation Counsel with a subpoena for the documents and the Corporation Counsel refused to provide them, the Inspector General retained private counsel and brought suit against the Corporation Counsel to compel production of the unredacted documents pursuant to the subpoena. The Corporation Counsel filed a motion to dismiss pursuant to both sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2008)). The trial court granted the Corporation Counsel's motion to dismiss, finding that the Inspector General did not have the authority to retain private counsel and that the documents were protected by the attorney-client privilege. The Inspector General appealed. For the reasons that follow, we reverse.
This case revolves in large part around the powers and duties of the Inspector General and the Corporation Counsel. Therefore, a brief discussion of their respective offices is helpful. The Office of Inspector General (IGO) is a municipal office created by chapter 2-56 of the Chicago Municipal Code (Municipal Code). Chicago Municipal Code §2-56-010 et seq. (added Oct. 4, 1989). The duties of the IGO include "investigat[ing] the performance of governmental officers, employees, functions and programs," either in response to a complaint or on the Inspector General's own initiative, in order to "detect and prevent misconduct, inefficiency and waste within the programs and operations of the city government." Chicago Municipal Code §2-56-030 (added Oct. 4, 1989).
The powers and duties of the Inspector General extend to the conduct of "all elected and appointed officers of the city government in the performance of their official duties" and "all employees of the city government in the performance of their official duties," except for members of the city council and their employees. Chicago Municipal Code §2-56-050 (added Oct. 4, 1989). The powers and duties of the Inspector General also extend to the conduct of "all contractors and subcontractors in the providing of goods or services to the city pursuant to a contract"; "business entities in seeking contracts or certificates of eligibility for city contracts"; and "persons seeking certification of eligibility for participation in any city program." Chicago Municipal Code §2-56-050.
Every "officer, employee, department, agency, contractor, subcontractor and licensee of the city" has a duty to cooperate with the Inspector General in any investigation or hearing undertaken pursuant to the Municipal Code. Chicago Municipal Code §2-56-090 (added Oct. 4, 1989). The investigatory files and reports of the IGO are confidential and cannot be released to any person or agency other than the United States Attorney, the Illinois Attorney General or the State's Attorney of Cook County.
The powers of the IGO include the power "[t]o issue subpoenas to compel the attendance of witnesses for purposes of examination and the production of documents and other items for inspection and/or duplication." Chicago Municipal Code §2-56-030. Once the Inspector General issues a subpoena, the person to whom the subpoena is directed may file an objection to the subpoena. "For seven days after receipt of a timely objection to a subpoena, the inspector general shall take no action to enforce the subpoena or to initiate prosecution of the person to whom the subpoena is directed." Chicago Municipal Code §2-56-040 (added Oct. 4, 1989).
The office of the Corporation Counsel is created by section 2-60-020 of the Municipal Code. Chicago Municipal Code §2-60-020 (added Sept. 5, 2007). The Corporation Counsel is the "head of the department of law of the city." Chicago Municipal Code §2-60-020. The duties of the Corporation Counsel include "[s]uperintend[ing] and *** conduct[ing] all the law business of the city." Chicago Municipal Code §2-60-020. The Corporation Counsel is also required to "[a]ppear for and protect the rights and interests of the city in all actions, suits and proceedings brought by or against it or any city officer, board or department" or brought against an administrative law officer and is responsible for defending "any member, officer or employee of the board of health, police department or fire department" who is sued personally for damages based on his or her official duties. Chicago Municipal Code §2-60-020.
In the case at bar, in January 2007, the IGO began investigating how a former City of Chicago (City) employee was awarded a sole-source contract seemingly in violation of the City's ethics and contracting rules. According to the Inspector General's complaint, " '[s]ole-source' contracts are contracts awarded without a competitive process. Non-competitive procurements are allowed ***, but only under very limited circumstances following a rigorous internal process. The IGO's investigation to date suggests that the City's process for awarding the contract under investigation was manipulated by City employees." The investigation involved current and former City employees acting in their capacity as City employees. During the course of the investigation, the IGO interviewed 18 people, requested and received documents from 5 City departments, and reviewed thousands of documents.
On August 15, 2008, as part of its investigation, the IGO sent a written request to the City's law department for all documents relevant to the award of the contract to the former employee. The law department provided some documents, but redacted others on the basis of attorney-client privilege or the work product doctrine. The redacted documents included "(i) communications among Law Department attorneys; (ii) communications between Law Department attorneys and other City employees; (iii) notes by two Law Department attorneys regarding conversations with City employees; and (iv) charts and notes by one Law Department attorney - all regarding the matter *** under investigation." The IGO told the law department that it did not believe that the City could properly shield the documents using either the attorney-client privilege or the work product doctrine.
On October 8, 2009, the IGO served a subpoena on the Corporation Counsel as head of the law department for the documents requested. Along with the subpoena, the IGO included a letter summarizing the legal arguments it believed supported its position, as well as a suggested memorandum of understanding concerning the way in which the documents should be handled. On October 15, 2009, the Corporation Counsel made an objection to the subpoena. On October 21, 2009, the IGO responded to the Corporation Counsel's objection with a letter stating that the IGO disagreed with the grounds of the objection. The Corporation Counsel did not comply with the subpoena.
On November 4, 2009, through private counsel, the Inspector General*fn1 in his official capacity filed suit against the Corporation Counsel in her official capacity, seeking a declaratory judgment, a writ of mandamus, and enforcement of the subpoena to compel the Corporation Counsel to produce unredacted copies of the documents requested by the subpoena. The Corporation Counsel filed a motion to dismiss the complaint pursuant to sections 2-619 and 2-615 of the Code. The Corporation Counsel argued that the complaint should be dismissed pursuant to section 2-619 because (1) the trial court lacked jurisdiction since the Inspector General lacked the capacity to sue, (2) the trial court should not entertain a dispute between two parties within the same governmental entity, and (3) the documents were protected by the attorney-client privilege. The Corporation Counsel also argued that the complaint should be dismissed pursuant to section 2-615 because the complaint did not adequately state a cause of action for declaratory judgment or mandamus.
A hearing on the Corporation Counsel's motion was held on April 21, 2010. After hearing the parties' arguments, the trial court found that the Inspector General did not have the authority to engage its own attorney and that the attorney-client privilege was available to the Corporation Counsel. The trial court entered an order dismissing ...