author: PRESIDING JUSTICE INGLIS

text:
    CHERYL HEIDEN, Plaintiff-Appellee, v. CRAIG OTTINGER, Defendant-Appellant and Cross-Appellee (Robert Chapski, Cross-Appellant).
    Second District
    No. 2 — 92—0649
    Opinion filed June 11, 1993.

      Robert A. Lewinthal, of Lewinthal, Sklamberg & Associates, of North-brook, for appellant.
    Robert A. Chapski and Randy K. Johnson, both of Law Office of Robert A. Chapski, Ltd., of Elgin, for Robert A. Chapski.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Craig Ottinger (the father) appeals a judgment of the circuit court of Kane County which required him to pay $6,507.40 to the former attorney of Cheryl Heiden (the mother) in a paternity suit. The mother’s former attorney, Robert Chapski, filed a cross-appeal contesting the court’s denial of his petition for fees, sanctions and costs under Supreme Court Rule 137 (134 Ill. 2d R. 137). The father argues: (1) that the trial court did not have jurisdiction under the Illinois Parentage Act of 1984 (the Act) (Ill. Rev. Stat. 1991, ch. 40, par. 2501 et seq.) to order the father to pay attorney fees directly to Chapski; (2) that Chapski did not have a right to continue to pursue the father for fees after the mother had discharged him; (3) that the mother had a right to settle the paternity litigation without Chapski’s consent and, in that settlement, accept responsibility for payment of her own fees and expenses; (4) that Chapski was estopped from proceeding with post-trial motions by filing citations on his judgment against the father; and (5) that the denial of the father’s petition for sanctions under Rule 137 was an abuse of discretion.

The father makes one further contention, that the trial judge should not have vacated an order of June 13, 1989, awarding $5,200 in attorney fees to the mother from the father. On May 3, 1990, the court vacated the June 13 order and entered an order requiring the father to pay $5,200 directly to Chapski. The father claims that the May 3 order was an abuse of discretion. Chapski brought a motion, which was taken with the case, in which he asks us to strike this argument as incomprehensible. The father has filed a motion, which was also taken with the case, in which he asks permission to file a response to Chapski’s motion to strike. We find both motions to be moot because the order of May 3, 1990, which vacated the June 13, 1989, order, was itself vacated on December 5, 1990, on the father’s motion. With regard to the order of June 13, 1989, the father has already received the relief he is seeking here since the vacatur of the May 3, 1990, order operated to revive the June 13, 1989, order. (See Bromberg v. People (1907), 136 Ill. App. 602; see also Zanzig v. H.P.M. Corp. (1985), 134 Ill. App. 3d 617, 625.) The motions are thus denied as moot.

This case began when the mother filed a paternity suit against the father on June 25, 1986. The mother hired Chapski to represent her. A judgment of paternity was entered on March 16, 1989. On the same date, Chapski filed a petition for attorney fees. The father was ordered to pay the mother $5,200 for attorney fees on June 13, 1989. In July 1989, Chapski filed another petition seeking additional fees.

On September 25, 1989, after discussing the matter with the father, the mother and the father signed a settlement agreement drawn up by the father’s lawyer. The agreement, inter alia, called for each party to pay his or her own costs and expenses and for the father to pay for the defense of any action brought against the mother by Chapski to obtain attorney fees. The record contains a letter, dated the next day, September 26, whereby the mother discharges Chapski as her attorney. Then, on September 28, 1989, the father and Chap-ski’s client, the mother, went to court and had the settlement approved by the court without Chapski’s knowledge. They also had the suit dismissed. The order approving the settlement, like the settlement agreement, provided that each party was to pay his or her own costs and expenses.

After learning of the settlement, Chapski tried in vain to have the order approving the settlement vacated. Later, on May 3, 1990, Chap-ski was successful in getting the court to vacate its order of June 13, 1989, awarding $5,200 to the mother. Chapski got the court to enter an order awarding the $5,200 directly to Chapski from the father. However, as mentioned, the May 3 order was vacated on December 5, 1990. On March 17, 1992, after Chapski filed his fifth petition for attorney fees, the court ordered the father to pay Chapski $6,507.40 in attorney fees. This order of March 17, 1992, is the order from which the father appeals. Chapski cross-appeals the denial, also on March 17, of his motion for sanctions and fees under Rule 137.

APPEAL

First, we address the father’s claim that the trial court did not have jurisdiction under the Act to order the father to pay attorney fees directly to Chapski. The “Costs” provision of the Act states:

“Except as otherwise provided in this Act, the court may order reasonable fees of counsel *** to be paid by the parties in accordance with the relevant factors specified in Section 508 of the Illinois Marriage and Dissolution of Marriage Act, as amended.” (Ill. Rev. Stat. 1991, ch. 40, par. 2517.)

Section 508 of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) allows the court to order that attorney fees “be paid directly to the attorney, who may enforce such order in his name, or that they be paid to the relevant party.” Ill. Rev. Stat. 1991, ch. 40, par. 508(c).

We have not found a case factually on point with the present case, but we believe that by allowing courts in paternity suits to award attorney fees “in accordance with the relevant factors” in section 508, the Act permits awards of attorney fees payable directly to attorneys. It is significant that section 17 does not limit the subparagraphs of section 508 that are incorporated into section 17. If attorneys in suits under the Act were not to be awarded attorney fees directly, section 17 could have exempted subparagraph (c) of section 508 from incorporation, which is the subparagraph allowing attorneys to obtain judgments in their own names. Moreover, whether an attorney requesting fees under the Act should be paid directly, or whether an order providing for an award from one party to another is sufficient to ensure the attorney’s payment, is certainly a “factor” to be considered when fashioning an award of attorney fees. Thus, we conclude that Chapski could obtain a judgment for attorney fees in his own name under the Act.

Having decided that Chapski could obtain a judgment for attorney fees in his own name, we come to the crux of the case: whether Chap-ski could pursue the father, rather than the mother, whom Chapski had represented, after Chapski had been discharged by the mother and after the mother and father had settled the case with an agreement to pay their own attorney fees. The father argues that because Chapski was not a party to the suit, he should not have been allowed to prolong the litigation after the parties had settled and discharged him. Under the facts of this case, however, we hold that Chapski was correctly allowed to pursue the father for attorney fees, even after his discharge and the settlement of the case.

First, we recognize that a client has “an absolute right” to settle her case without her attorney’s consent. (See Herman v. Prudence Mutual Casualty Co. (1969), 41 Ill. 2d 468, 476; see also Rules of Professional Conduct, Rule 1.2(a) (134 Ill. 2d R. 1.2(a)) (lawyer must honor client’s decision whether to accept settlement offer).) The mother could thus settle her action with the father directly.

What troubles us is that the mother settled not only the merits of her suit, but also the issue of responsibility for attorney fees, before discharging Chapski and without any notice to Chapski, who was still her attorney of record. (See Rules of Professional Conduct, Rule 1.16(a)(4) (134 Ill. 2d R. 1.16(a)(4)) (lawyer shall withdraw from employment if discharged by client); Supreme Court Rule 13(c)(2) (134 Ill. 2d R. 13(c)(2)) (attorney cannot withdraw his appearance for party without leave of court and notice to other parties).) Even more troubling is that the attorney representing the father drew up a settlement agreement for the parties, who then went to court and had the settlement approved and the suit dismissed, all while the mother was still represented by counsel. It thus appears that counsel for the father violated Rule 4.2 of the Rules of Professional Conduct (134 Ill. 2d R. 4.2), which prohibits lawyers hired to represent a party from communicating with other represented parties on the subject of the representation without the consent of those other parties’ attorneys.

Second, we recognize that a client, ordinarily, can discharge her attorney “at any time, with or without cause.” (Balla v. Gambro, Inc. (1991), 145 Ill. 2d 492, 503.) In the usual case then, the mother would seem to have been within her rights in discharging Chapski and settling her lawsuit. The facts as they stand in this case, however, give rise to a distinct inference that there was an attempt to hinder Chap-ski’s recovery of payment for the services he rendered. We conclude that the actions of the mother and father did not prevent Chapski from pursuing the father to recover attorney fees.

We have found no cases arising under the Act which have specifically spoken to a discharged attorney’s right to pursue his former client’s adversary for fees after the suit had settled. Several related cases are nonetheless instructive.

In Gitlin v. Hartmann (1988), 175 Ill. App. 3d 805, this court held that an attorney who had represented the defendant in a suit under the Act, and who had apparently withdrawn, was required to bring his application for attorney fees against the defendant in the still-pending visitation proceedings, not in a separate suit. (Gitlin, 175 Ill. App. 3d at 808-11.) The Gitlin court extended its holding in In re Marriage of Baltzer (1986), 150 Ill. App. 3d 890, that an attorney who had been discharged by his client in a dissolution of marriage suit and who had filed a petition for fees in that suit had to pursue his fees in that pending action and could not bring a new suit against his former client. (Baltzer, 150 Ill. App. 3d at 893-96.) Baltzer held that the dissolution court had jurisdiction over the attorney to decide the fee issue. It noted that “attorneys for the litigants in a dissolution proceeding are considered as parties in interest in an action for attorney fees to the extent that while such fees are generally awarded to the client, they properly ‘belong’ to the attorney.” (Baltzer, 150 Ill. App. 3d at 893.) Thus, under Gitlin, as an extension of Baltzer, Chap-ski could at least pursue the mother in a still-pending paternity suit for the payment of his fees after the mother had discharged him.

We must next decide whether Chapski could attempt to obtain his fees from the father rather than the mother after his discharge. We see no reason why the fact that Chapski was discharged by the mother should limit him to recovering his fees from her. Again, Baltzer is instructive. There, the court stated that the trial court hearing the discharged attorney’s petition for fees under section 508 of the Dissolution Act could order payment of those fees by either party to the dissolution action. (Baltzer, 150 Ill. App. 3d at 894.) As noted, section 17 of the Act incorporates the provisions of section 508 of the Dissolution Act. We thus conclude that the fact that Chapski was discharged by the mother would not prohibit him from pursuing the father for payment of his fees in a still-pending paternity action.

The issue now becomes whether the parties’ settlement agreement, specifically that portion requiring the parties to be responsible for their own costs and expenses, barred Chapski from going after the father for his fees. There is no denying that the mother had a right to settle her case without Chapski’s consent. (See Herman v. Prudence Mutual Casualty Co. (1969), 41 Ill. 2d 468, 476.) The question is whether Chapski had such an interest in the payment of his fees that the mother could not unilaterally decide which party would pay.

Initially, we believe that a settlement of the merits of the present suit, without more, would not have prevented Chapski from seeking payment of his fees by the father. In In re Marriage of Conway (1986), 139 Ill. App. 3d 1062, the court held that the trial court in a dissolution action had jurisdiction to consider a petition for attorney fees filed against the husband by the wife’s attorney even though the parties had remarried, thus abating the dissolution suit. (Conway, 139 Ill. App. 3d at 1065-66.) Conway relied in part on In re Marriage of Dague (1985), 136 Ill. App. 3d 297, in which attorneys who had represented a wife in dissolution proceedings were allowed to maintain a petition for fees against the husband after the wife had died and the suit had abated (Dague, 136 Ill. App. 3d at 300). Just as Conway broadened the holding in Dague to apply to a case in which abatement occurred due to remarriage rather than the death of a party, we believe the same result would obtain in a case in which the merits of the suit were settled by the parties. Further, we see no reason for the holdings in Conway and Dague to be limited to cases brought under the Dissolution Act, especially since the attorney fee provisions of the Act and the Dissolution Act are analogous.

As this court stated in Baltzer, an attorney has standing to maintain a claim for attorney fees in a dissolution action because he is a party in interest with regard to attorney fees. (Baltzer, 150 Ill. App. 3d at 893; see also In re Marriage of Pagano (1989), 181 Ill. App. 3d 547, 555.) We need not decide whether, in the usual case, parties may settle the issue of responsibility for attorney fees when they settle their dispute. This is not a run-of-the-mill case in which the parties pursue only their own best interests. Rather, as the record reveals, a strong inference arises here that there was a concerted effort made to place obstacles in the path to Chapski’s reimbursement. First, the mother did not have the financial ability to pay the several thousand dollars Chapski was ostensibly owed. On June 13, 1989, three months before the settlement agreement was executed, the trial court found in an order that the mother did not have the ability to pay her attorney fees. In the same order, the court found that the father did have the financial ability to contribute to the mother’s attorney fees. Moreover, the mother testified at a March 17, 1992, hearing that she still was unable to pay attorney fees.

Second, it is apparent from the record that the mother harbors animosity toward Chapski. The mother testified at the March 17, 1992, hearing that she was unsatisfied with Chapski’s work on the present suit and believed Chapski’s actions caused the statute of limitations to run on a lawsuit against her former employer. She stated, “Therefore, I cannot sit here and say I owe money. I didn’t get what I wanted. I did not get what I wanted.”

Third, the second trial judge to preside over this action specifically found that there was an attempt to “stiff” Chapski on his attorney fees. Due to the egregious nature of the facts in this case, we find that the portion of the parties’ settlement agreement that called for each party to pay his or her own attorney fees is void.

The case of In re Marriage of Kessler (1982), 110 Ill. App. 3d 61, is not to the contrary. In Kessler, the appellate court held that it was improper for the trial court to have assessed a portion of the wife’s attorney fees against the husband in a dissolution action where the parties had executed a settlement agreement requiring each party to pay his or her own attorney fees. (Kessler, 110 Ill. App. 3d at 74-75.) The court upheld the attorney fee portion of the settlement agreement for three reasons: the terms of the agreement were clear and unequivocal, the agreement was freely and knowingly entered into by the parties and approved by the court, and there was no showing that the wife was unable to pay her fees. (Kessler, 110 Ill. App. 3d at 75.) The court further noted that the parties’ intent would be given full force and effect since it was not “repugnant to another rule of law [or] *** against public policy.” Kessler, 110 Ill. App. 3d at 75; see also Cimino v. Cimino (1968), 93 Ill. App. 2d 412, 416.

Unlike Kessler, it is admitted in this case that the mother does not have the ability to pay her attorney fees. We also believe that giving effect to the parties’ intentions here would most likely run afoul of Rule 4.2 of the Rules of Professional Conduct (134 111. 2d R. 4.2) prohibiting retained attorneys from communicating with other represented parties in the same matter on the subject of representation without the consent of those other parties’ attorneys. The record here shows that the settlement agreement was drawn up by the father’s lawyer and executed by the parties, all without Chapski’s knowledge and while he was attorney of record for the mother. We will not condone such actions. We therefore hold that, under the circumstances here presented, the provision in the settlement agreement requiring each party to pay his or her own attorney fees is void. Thus, the trial court properly awarded attorney fees to Chapski payable by the father. It is not necessary to our decision to pass on the validity of the settlement agreement in its entirety.

We next address the father’s claim that Chapski was estopped from filing post-trial attorney fee petitions by filing citations to discover assets against the father. The father argues that estoppel comes into play because a motion for post-trial relief stays the enforcement of a judgment and because citations to discover assets can only be filed where there has been a prior final and enforceable judgment. We find this argument to be waived.

The father mentions in his brief three citations to discover assets and a motion for sequestration proceedings. However, he does not provide in his argument any cites to the voluminous record in this case. Moreover, the father merely sketches his argument in a single 10-line paragraph containing minimal cites to authority for general propositions of law. An adequate argument here would need to at least provide a background as to when the citations were filed in relation to the many orders entered, modified and vacated in this case. “A reviewing court is entitled to have issues clearly defined with pertinent authority cited and coherent arguments presented; arguments inadequately presented on appeal are waived. *** A reviewing court will not become an advocate for, as well as the judge of, points the appellant seeks to raise.” Holmstrom v. Kunis (1991), 221 Ill. App. 3d 317, 325; see also 134 Ill. 2d R. 341(e)(7).

The father next argues that the trial court erred in refusing to grant his motion for sanctions under Rule 137. Although the father appears to claim in his brief that his Rule 137 motion was denied on its merits, it was actually denied on September 5, 1991, based on the failure of the father or his attorneys to appear at a hearing on Chap-ski’s motion to dismiss the Rule 137 motion. The father thereafter filed a motion to vacate the September 5 order. The record is then silent as to the disposition of the motion. In an ex parte letter to the trial judge dated October 11, 1991, the father’s attorney states that the Rule 137 motion was originally scheduled for hearing on November 25, 1991. He complains that he received no notice of the September 5 hearing date and that nothing was scheduled for a hearing on September 5. The attorney closes by implying that he would be arguing the Rule 137 motion on November 25. There is no transcript of any November 25 proceedings included in the record. Thus, we have no way of knowing what transpired with regard to the Rule 137 motion or the motion to vacate the September 5 order.

It is the appellant’s burden to supply us with a record that is complete and sufficient to decide the issues in controversy, and in the absence of an adequate record, it is presumed that the trial court’s judgment conforms to the law and has an adequate factual basis. (Lakeland Property Owners Association v. Larson (1984), 121 Ill. App. 3d 805, 808.) Because we are left in the dark with regard to this issue, we will not disturb the judgment below on the issue of the father’s Rule 137 motion.

CROSS-APPEAL

In his cross-appeal, Chapski argues that the trial court erred in denying his motions for Rule 137 sanctions, or, in the alternative, that the trial court should not have denied his final Rule 137 motion without an evidentiary hearing.

Having reviewed the transcript of proceedings, we see that Chap-ski was indeed given a hearing on his motion. At the hearing on March 17, 1992, Chapski told the judge that he wanted to dispose of the motion that day, which was the day it was filed. Chapski was then given an opportunity to present evidence and argument on the motion. Chapski and the father’s attorney argued the merits of the motion. Chapski’s claim that he was denied a hearing is without merit.

However, the trial judge denied the motion without making any specific findings on the matter. This was contrary to the rule announced in In re Estate of Smith (1990), 201 Ill. App. 3d 1005, where the court cautioned trial courts to make specific findings on sanction issues. (Smith, 201 Ill. App. 3d at 1009-10.) We recognize that the trial court has the discretion to award sanctions under Rule 137 (see Singer v. Brookman (1991), 217 Ill. App. 3d 870, 879), but we cannot tell whether that discretion was abused on the present record. Moreover, we agree with the Smith court’s concern that deciding a sanction issue without explicit findings would “tend[ ] to establish too many ad hoc rules of law as to the correct result in any given case.” (Smith, 201 Ill. App. 3d at 1010.) Consequently, we vacate the order of the circuit court denying Chapski’s motion for Rule 137 sanctions and remand for further proceedings on that issue. We affirm the remainder of the judgment of the circuit court of Kane County.

Affirmed in part; vacated in part and remanded.

GEIGER and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    ROBERT B. MONGE et al., Plaintiffs-Appellants, v. THE CITY OF PEKIN et al., Defendants-Appellees.
    Third District
    No. 3 — 92—0410
    Opinion filed May 10, 1993.
    Modified on denial of rehearing June 29, 1993.

      Thomas E. Letter, of The Letter Group, of Peoria (Sandra J. Birdsall, of counsel), for appellants.
    Moehle, Swearingen & Associates, Ltd., of Pekin (Valerie Moehle Umholtz, of counsel), for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Robert B. Monge and Norma J. Monge appeal from the dismissal of their complaint against the City of Pekin, the mayor and three city commissioners for breach of contract and tortious interference with the contracts and business expectancy of plaintiffs. We reverse the order of dismissal.

Plaintiffs alleged that the Pekin city council on April 15, 1991, approved the purchase of certain real estate owned by plaintiffs in the sum of $370,000 and also approved a contract with plaintiffs for private development of certain downtown property. Plaintiffs also alleged that the city entered into the written contracts but subsequently refused to perform under the contracts. Plaintiffs further alleged that Robert Monge is in the business of real estate development and had undertaken a project to redevelop downtown Pekin pursuant to a development agreement with the city in 1986, in furtherance of which a tax increment financing district (TIE) was adopted by the city. In accordance with the downtown plan, Monge purchased certain property for the city with the agreement that the city would purchase the property from him using TIE bonds.

Additionally, plaintiffs alleged that the contracts approved and entered into on April 15, 1991, were the culmination of four years of work to bring about construction of a new office building and other redevelopment. Plaintiffs also alleged that the city council acted improperly on April 15, 1991, in holding a second meeting that night and voting by resolution to rescind the ordinances which effected plaintiffs’ final agreement with the city.

Defendants’ motion to dismiss asserted that the alleged contracts between the city and Monge were ultra vires and were nullified by resolutions rescinding and repealing the contract on April 15, 1991, and by ordinances approved on August 26, 1991. Attached to the motion were copies of city council minutes for April 15 which disclose that a regular meeting of the city council was called to order by Mayor Larry W. Homerin at 6:30 p.m. and that several ordinances were approved, including ordinances. Nos. 1804, 1805, and 1806. The minutes indicate that the council adjourned “sine die” (final adjournment) at 6:55 p.m.

Additional minutes of the same date show that a regular meeting of the city council was called to order by Mayor Donald C. Williams at 7:03 p.m. and that the mayor presented the city clerk with a copy of the abstract of votes of the April 2 consolidated election. The council then approved a motion to receive and file the oaths and bonds of the new. council members. After approving appointment of various officials, the council then approved resolutions rescinding and repealing ordinances Nos. 1804, 1805, and 1806, among others. Thereafter, the council approved a motion to table those ordinances indefinitely.

In granting the motion to dismiss, the trial court held that the terms of the former city council members expired before the first regular or special meeting of the council after the April 2 election and, therefore, that the actions taken on April 15 approving the contracts with plaintiffs were without authority. The court dismissed the counts involving the contract with prejudice, and plaintiffs filed a motion to reconsider. Defendants responded to the motion with exhibits and affidavits disclosing that the oaths and bonds of the newly elected mayor and commissioners were approved by the clerk of the circuit court, filed with the county clerk, and given to the city clerk, all on April 10, 1991.

Plaintiffs then responded with affidavits indicating that the former mayor and commissioners had been sworn into office on May 4, 1987, and had held office continuously until adjournment of the city council on April 15, 1991. Plaintiffs also filed minutes of the Pekin city council for May 4, 1987, and May 2, 1983, revealing that it was customary for the old council to meet, act upon any old business, and then adjourn sine die, with the new council convening immediately thereafter. Each time, the city clerk administered the oath of office to the commissioners and mayor, and then action was taken concerning the appointment of officers and other business..

The trial court denied the motion to reconsider, ruling that the term of the old city council members had expired prior to April 15. Plaintiffs then perfected this appeal.

The determinative issue on appeal is whether the actions of the outgoing mayor and city council in adopting ordinances Nos. 1804, 1805, and 1806 and in signing the contracts were valid as to plaintiffs. One of the statutory provisions at issue is in section 3 — 2—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1991, ch. 24, par. 3 — 2—2 (now 65 ILCS 5/3 — 2—2 (West 1992)), which applies generally to the election of municipal officers, as follows:

“§3 — 2—2. The schedule, manner of conducting, voting at, and contesting municipal elections shall be as provided in the general election law.
The terms of elected municipal officers shall commence at the first regular or special meeting of the corporate authorities during the month of April following the proclamation of the results of, the regular municipal election at which such officers were elected, except as may otherwise be provided by ordinance fixing the date for inauguration of newly elected officers of a municipality. No such ordinance shall fix the time for inauguration of newly elected officers later than the first regular or special meeting of the corporate authorities in the month of May following such election.”

Article 4 of the Illinois Municipal Code applies to those municipalities, including the City of Pekin, having a commission form of government. Section 4 — 4—1 provides that, before entering upon the duties of office, all officers elected under article 4 shall take the oath prescribed by the constitution and shall file the subscribed oath with the municipal clerk. Prior to an amendment effective September 26, 1991, section 4 — 4—2 required the mayor and commissioners to execute bonds of at least $3,000 with the bonds to be approved by the circuit court of the county in which the municipality is located and to be “filed with, recorded, and preserved by the county clerk of the specified county.” (Ill. Rev. Stat. 1987, ch. 24, par. 4 — 4—2.) (The amendment to section 4 — 4—2 requires these bonds to be filed with the municipal clerk.)

Section 4 — 3—4 (65 ILCS 5/4 — 3—4 (West 1992)) provides: “Except as otherwise provided in this article, the mayor and commissioners elected under Section 4 — 3—1 shall hold their respective offices for the term of 4 years and until their successors are elected and qualified.” Also of note is a provision in section 3 — 1—1 of the Municipal Code that article 4 controls in the event of conflict between the provisions of article 3 and article 4.

Plaintiffs contend that, as of 6:30 p.m. on April 15, 1991, the new mayor and commissioners had not yet qualified since the results of the election were not proclaimed and their oaths and bonds were not filed with the municipal clerk until after the 7:03 p.m. council meeting was called to order. Therefore, the mayor and commissioners elected in 1987 were still in office and the ordinances approved by them on April 15 were valid.

Defendants’ position is that their terms of office began “at the first regular *** meeting” of the city council following April 10, 1991, the date they qualified for their respective offices by executing and filing their oaths and bonds as required by sections 4 — 4—1 and 4 — 4— 2 of the Code. In other words, their terms began at 6:30 p.m. April 15, 1991, and the actions of the former mayor and commissioners were a nullity.

Comparing the pleadings and affidavits filed in this cause with the applicable statutory provisions leads to the conclusion that defendants have not established that defendants’ term of office commenced at 6:30 p.m. on April 15, 1991. The defendants’ bonds were approved by the clerk of the circuit court, not by the circuit court as required by statute, and minutes of the 7:03 p.m. council meeting on April 15 indicate that the oaths and bonds were accepted for filing at that time, in keeping with the established custom of past years. At best, defendants have demonstrated a question of fact as to whether the old mayor and council were de jure officers with authority to enact the ordinances in question at 6:30 p.m. on April 15, 1991. The motion to dismiss should not have been granted.

Furthermore, as plaintiffs point out, even if the mayor and commissioners were not serving de jure, the facts alleged indicate that they were de facto officers, and their acts were binding as to plaintiffs. The applicable rule was set forth in Mank v. Board of Fire & Police Commissioners (1972), 7 Ill. App. 3d 478, 483, 288 N.E.2d 49, 52:

“As was said in People v. Woodruff, 9 Ill. 2d 429, 137 N.E.2d 809, on page 437,137 N.E.2d on page 813:
‘It is a well settled principle that the acts of officers de facto are as valid and effectual where they concern the public or the rights of third persons as though they were officers de jure and that the title to an office cannot be decided in a collateral suit but only in a direct proceeding for that purpose.’ ”

An officer performing the duties of an office under color of title is an officer de facto, and such acts are valid so far as third parties who have an interest in them are concerned. (People ex rel. Chillicothe Township v. Board of Review of Peoria County (1960), 19 Ill. 2d 424, 167 N.E.2d 553.) Here the mayor and council were performing the duties of their respective offices at 6:30 p.m. and were doing so under color of title in that their successors had not yet assumed office. Thus, the old officers continued to hold office, at least de facto, when they met in formal session at 6:30 p.m. In fact, the terms of the mayor and commissioners did not expire, according to section 4 — 3—4 of the Municipal Code, until four years from the date they took office, i.e., four years from May 4, 1987. This fact, too, gave color of title to their actions as city officers.

We conclude that the trial court erred in dismissing plaintiffs’ complaint. Accordingly, we reverse the order of dismissal and remand for further proceedings.

Reversed and remanded.

STOUDER and LYTTON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL A. MESSAMORE, Defendant-Appellee.
    Third District
    No. 3-92-0251
    Opinion filed May 28, 1993.
    Modified on denial of rehearing June 30, 1993.

      Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Michael A. Messamore, was charged with unlawful possession of cannabis with intent to deliver, unlawful possession of cocaine, and violating the controlled substance tax act. The defendant filed a motion to suppress the evidence challenging the legality of the stop of the automobile in which he was riding as a passenger. Following a hearing, the trial court granted .the defendant’s motion. The State appeals, and we affirm.

The record shows that police officers Michael Johnston and Ernest Goering testified at the suppression hearing. They stated that on September 5, 1991, at about 10 p.m., they received a call. from their dispatcher that a caller had reported a suspicious vehicle driving in the area of Hadley and Meadowbrook. The caller had described the vehicle as a dark green or blue Oldsmobile but was unable to state the year or model of the vehicle. In addition, the caller gave no specific details about the vehicle upon which he based the conclusion that it was suspicious except that it had been circling the area for approximately half an hour. ■

The record shows that the caller gave his name to the dispatcher. However, that information was not given to Officers Johnston and Goering. The officers admitted that they knew nothing about the caller’s identity, and, as such, they had no idea if the caller was reliable. Other evidence showed that the call may have been made by a citizen of a residential watch area. However, the officers also had no knowledge of that information.

Officer Johnston testified that after receiving the call he saw a dark green Oldsmobile at the intersection of Hadley and Bedford, which is two blocks from Hadley and Meadowbrook. He followed the vehicle for approximately four to six blocks. During that time the driver of the vehicle did not commit any traffic violations. The owner of the vehicle did not have a suspended or a revoked license and the vehicle’s license plate and sticker were proper.

Johnston testified that he then activated the lights on his squad car. The driver of the Oldsmobile drove about one-eighth to one-fourth of a mile before stopping in a parking lot. Johnston stated that he thought this was a long time to pull over since the driver could have stopped next to the curb in the area where he first activated the lights. However, no evidence was admitted showing that the driver of the vehicle saw the officer activate his lights in that particular area. Johnston admitted that he stopped the Oldsmobile based solely on the fact that a citizen reported that the vehicle was suspicious.

Following the hearing, the trial court granted the defendant’s motion to suppress, finding that the stop was illegal. The State appeals, alleging that the officers had specific, articulable facts to justify an investigatory stop of the vehicle.

Police may make investigatory stops of private citizens even though there is no probable cause to make an arrest. However, to justify the stop, the police officer must be able to point to specific, articulable facts which, when taken together with the rational inferences from those facts, reasonably warrant the intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) A trial court’s findings on a motion to suppress will not be reversed unless they are manifestly erroneous. People v. Bolar (1990), 205 Ill. App. 3d 597, 563 N.E.2d 1225.

We also note that a mere suspicion or hunch is insufficient to warrant a stop. (People v. Safiran (1992), 229 Ill. App. 3d 639, 593 N.E.2d 1027.) In addition, we note that while reasonable cause to stop an individual may be based on an anonymous informant’s tip, case law provides that some indicia of reliability must be provided to justify the stop. Such evidence should include independent corroboration by the police of the information provided by the caller and evidence that the information provided was specific enough to show that the caller had access to reliable information. People v. Crest (1989), 188 Ill. App. 3d 768, 544 N.E.2d 825; People v. Moraca (1984), 124 Ill. App. 3d 561, 464 N.E.2d 312; Alabama v. White (1990), 496 U.S. 325, 110 L. Ed. 2d 301,110 S. Ct. 2412.

In the case at hand, we find that the anonymous informant’s tip was brief and vague, and that the officers did not independently corroborate the tip before making the stop. As the record shows, the only information provided by the caller was that a suspicious dark green or blue Oldsmobile was in the area. We note that the caller did not describe any activity from which the officers could form a reasonable suspicion justifying a stop.

In addition, the officers themselves did not observe the defendant engaging in any suspicious activity before stopping him. Johnston testified that while he was following the vehicle no traffic violations were committed. He also noted that the vehicle’s identification was proper. In fact, he admitted that the sole basis of the stop was the caller’s tip. Accordingly, we find that the information given to the officers, Johnston and Goering, did not establish that the caller was reliable.

We now turn to the State’s contention that since the caller was a citizen from a neighborhood watch area, he was entitled to a presumption of reliability. We note that the State has cited no authority for such a proposition, nor has it provided this court with any valid rationale to accept such a position. We therefore decline to find that an anonymous citizen claiming to be from a neighborhood watch area is entitled to a presumption of reliability.

The State’s final contention on appeal is that the stop was justified because the driver of the vehicle took one-eighth to one-fourth of a mile to stop after Johnston activated his lights. In support of its position, the State cites Village of Gurnee v. Gross (1988), 174 Ill. App. 3d 66, 528 N.E.2d 411, wherein the court found that the defendant’s failure to immediately stop, combined with other circumstances, justified the investigatory stop.

We decline to follow Gurnee since in cases involving anonymous tips the legality of the stop is dependant upon the specificity of the caller’s information and the police officer’s independent corroboration of this information. We note that these requirements must be met before a stop is initiated. To hold otherwise would allow police officers to justify a stop using events occurring after their reasonable suspicion was supposed to have been formed to support their actions. Since such a finding would clearly violate the law as set forth in Terry v. Ohio, we reject the State’s contention that actions occurring after the stop was initiated can be used to justify the stop.

Based on this evidence, we find that the State failed to show that the stop was justified. As such, we cannot say that the trial court’s decision in granting the defendant’s motion to suppress was manifestly erroneous.

Accordingly, the decision of the circuit court of Will County is affirmed.

Affirmed.

McCUSKEY, P.J., and SLATER, J., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    LAND AND LAKES COMPANY et al., Petitioners-Appellants, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    Third District
    No. 3 — 92—0496
    Opinion filed May 27, 1993.
    Modified on denial of rehearing June 30, 1993.

      Stephen F. Hedinger, of Mohan, Alewelt, Prillaman & Adami, of Springfield (Fred C. Prillaman, of counsel), for petitioners.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for respondent Pollution Control Board.
    Lyman C. Tieman, of Lyman C. Tieman & Associates, of Joliet, for respondent Village of Romeoville.
    James Glasgow, State’s Attorney, of Joliet, and Matthew M. Klein and Glenn C. Sechen, both of Schain, Firsel & Burney, Ltd., of Chicago (Richard I. Siegel and Misty Turner, Assistant State’s Attorneys, of counsel), for respondent County of Will.
    Nancy A. McKeating, of Schwartz & Freeman, of Oakbrook Terrace, for amici curiae.

   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The petitioners, Land and Lakes Company, JM C Operations, Inc., and N B D Trust Company of Illinois, as trustee under trust No. 2624EG, own and operate the Willow Ranch landfill (landfill). The landfill is located in Will County within the corporate boundaries of the Village of Romeoville (Village). The Village denied the petitioners’ application for site approval of a proposed expansion of the landfill. The Illinois Pollution Control Board (Board) affirmed the Village’s decision, and the petitioners appeal from the Board’s ruling.

The petitioners raise six issues on appeal: (1) whether-the landfill siting approval process of section 39.2 of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1991, ch. 111½, par. 1039.2), which provides for decision making by local legislative bodies, is unconstitutional; (2) whether the Board erred in allowing Will County to intervene in the proceedings; (3) whether the Board lacked jurisdiction to reconsider its decision after the Board made its initial ruling; (4) whether the Board erred in failing to hold the Village bound by the factual assertions the Village made before the Board; (5) whether the Board erred in entering an order remanding the cause to the Village; and (6) whether the Board erred in determining that the proposed landfill expansion was not necessary to accommodate the waste needs of the intended service area.

Based upon our review of the record, we conclude that Will County deprived the petitioners of a fundamentally fair hearing on the application for site approval of the proposed landfill expansion. Will County’s attorney failed to disclose to the Village’s hearing officer that Will County was taking legal action to prevent the reopening of the Wheatland Prairie Landfill (Wheatland). As a result, the Village’s hearing officer made his findings of fact based upon the incorrect assumption that Wheatland was an available site to accept waste from the area intended to be served. As a consequence, we reverse the Board’s rulings and remand the cause to the Village for a completely new public hearing.

In March 1990, an advisory referendum was held in the Village. In response to the question of whether the Village should approve the expansion of the landfill, 1,561 voters voted against the landfill expansion, while only 323 voters supported the proposal. The petitioners subsequently filed an application for local siting approval of the landfill expansion pursuant to section 39.2 of the Act (Ill. Rev. Stat. 1991, ch. 111½, par. 1039.2). The 1,100-page application set out detailed documentation regarding the relevant statutory criteria required for siting approval. (See Ill. Rev. Stat. 1991, ch. 111½, par. 1039.2(a).) A public hearing concerning the application was held before a hearing officer hired by the Village. Will County also participated in the public hearing as a party.

The petitioners presented the testimony of three witnesses regarding the first statutory criterion, which requires that “the facility is necessary to accommodate the waste needs of the area it is intended to serve” (111. Rev. Stat. 1991, ch. llV-k, par. 1039.2(a)(1)). Charles Haas, an environmental consultant, had prepared a study of the petitioners’ intended service area which included portions of Will, Du Page and Cook Counties. Haas testified the landfill expansion was necessary to meet the waste disposal needs of the intended service area. Haas stated in his written report that “[u]nless additional capacity is placed on line, a deficiency [in disposal capacity] will occur as soon as 1992 for the service area and 1993 for Will County.” Haas excluded Wheatland from his analysis. While Wheatland had available capacity and was located within the intended service area, the record discloses that Wheatland ceased receiving waste as of March 1990. During cross-examination by a Will County assistant State’s Attorney, Haas was pointedly asked whether Wheatland could, in fact, reopen at any time. Haas answered, “Yes.” The assistant State’s Attorney then asked Haas a lengthy series of questions about whether Wheat-land should have been included in Haas’ report. Haas later testified that there was no reasonable expectation Wheatland would ever reopen.

Rolf Campbell, a planning and zoning consultant, and James Ambrose, vice-president of environmental affairs for Land and Lakes, also testified that the proposed landfill expansion was needed. During cross-examination, Will County’s assistant State’s Attorney asked both Campbell and Ambrose whether Wheatland could be reopened at any time. Both responded that it could.

Kevin Standbridge, Will County’s solid waste director, testified on behalf of Will County on the issue of need. He testified the landfill expansion was not necessary to meet the waste disposal needs of either Will County or the petitioners’ intended service area. Standbridge testified that Wheatland had only temporarily suspended its landfill operations. He specifically stated the closing “is in no way a permanent or *** long term closing of the facility.”

Following the public hearing, Will County submitted its written argument and proposed findings of fact. Will County argued that existing landfills, including Wheatland, were available to fill the waste disposal needs of the intended service area. Will County further argued that Haas’ testimony on behalf of the petitioners was unpersuasive because he did not consider Wheatland in assessing need. Will County stated, “Haas discounted Wheatland even though he admitted it was closed only to reserve space for when it could bring a better price, and that it could reopen at any time.”

Based upon this evidence, the Village’s hearing officer prepared a recommended decision and his findings of fact. The hearing officer recommended to the Village that the petitioners’ application be denied. He found the Village did not have jurisdiction to approve the proposed siting application because the petitioners had failed to notify two neighboring landowners of the filing of the application. The hearing officer also recommended to the Village that the application be denied because the petitioners had failed to meet the burden of proving that the landfill expansion was needed. The Village’s hearing officer specifically found that Wheatland should have been taken into account by the petitioners’ witnesses because it could be reopened at any time and “[tjhere was no evidence that there is any technical problem with the Wheatland site.” The hearing officer further found it was likely that Wheatland would be reopened before the remaining capacity was exhausted in the intended service area.

The Village Board held a meeting on December 6, 1990, to review the petitioners’ application for site approval. On the same day, the petitioners filed a motion to supplement the record. Attached to the motion was a copy of a complaint filed by Will County. The complaint stated that Will County was seeking to enjoin any further operation of Wheatland based upon alleged environmental hazards. A docket sheet was also attached to the motion. The docket sheet indicated that the case was still pending in the circuit court of Will County.

At the meeting, Will County argued that the petitioners’ motion to supplement the record should be denied. Will County contended the lawsuit was not relevant to the petitioners’ application because no injunction had been entered by the circuit court. The attorney representing the petitioners disagreed, stating:

“I can’t really believe what I’m hearing from lawyers who are involved in a lawsuit right down the road in Joliet that says that Wheatland Prairie Landfill is such a bad place, so environmentally unsafe that it should be shut down and yet they stand before this Board in all of our hearings that lasted over three weeks [and] said that Wheatland Prairie should be considered in your consideration of need.”

The Village Board granted the petitioners’ motion and agreed to take judicial notice of the lawsuit. The Village’s hearing officer was also present at the meeting. However, the hearing officer stated at the meeting that he did not know there was a lawsuit fending regarding Wheatland.

At a meeting held on December 12, 1990, the Village voted to deny the petitioners’ application for site approval. The written resolution adopted by the Village stated that the petition was denied because the petitioners failed to give proper notice of the filing of their siting application. Also, we note the Village’s resolution included the hearing officer’s recommended findings regarding Wheatland. Finally, the Village’s resolution denying the petitioners’ application for site approval also included written “conditions to approval.”

The petitioners then filed an appeal with the Board. The Board allowed Will County to intervene in the appeal, over the objection of the petitioners.

The petitioners argued to the Board that they were entitled to a new hearing because the proceedings before the Village lacked fundamental fairness. The petitioners specifically contended that Will County took part in an active campaign to deprive the petitioners of a fundamentally fair hearing before the Village. The petitioners noted that Will County failed to inform the Village’s hearing officer that Will County was suing to permanently close Wheatland. The petitioners also argued that, absent a decision in their favor on the other grounds raised, “this cause should be remanded to the Village for further proceedings calculated to assure fundamental fairness.”

The Board issued its initial decision on August 26, 1991. The Board disagreed with the Village’s jurisdictional ruling concerning legal notice. The Board determined that the petitioners had properly notified all property owners within 250 feet of the subject property as required by the Act (Ill. Rev. Stat. 1991, ch. 111½, par. 1039.2(b)). However, the Board also determined that the Village failed to notify two State legislators of the public hearing. The notice to the legislators was statutorily required by section 39.2(d) of the Act. (Ill. Rev. Stat. 1991, ch. 111½, par. 1039.2(d).) The Board held that the Village’s failure to provide the required legal notice to the State legislators voided the Village’s ruling on the petitioners’ application for site approval. As a consequence, the Board concluded that the Village failed to render a valid decision within the mandatory time period provided by the Act (Ill. Rev. Stat. 1991, ch. 111½, par. 1039.2(e)). Finally, the Board concluded that as a result of the Village’s failure to render a valid decision within the statutory time limits, the Act mandated approval of the petitioners’ application even though the Village had denied the application.

After the Village and Will County both filed a joint motion to reconsider, the Board rendered a new decision on December 6, 1991. The Board concluded that it had the necessary legal authority to reconsider its earlier determination. On reconsideration, the Board found that proper notice had, in fact, been given to the two State legislators. The Board then remanded the cause to the Village so that it could clarify its earlier ruling. The Board stated that a denial of the application by the Village which included written “conditions to approval” was confusing and therefore not permissible. The Board instructed the Village that the sole issue to be decided on remand was whether the petitioners met their burden of proving a need for the proposed landfill expansion.

On January 8, 1992, the Village adopted a resolution finding the proposed landfill expansion was not necessary to accommodate the waste needs of the intended service area. The Village’s decision was based solely on the evidence admitted into the record during the 1990 public hearing. No further public hearing was held and no additional evidence was considered by the Village. The petitioners again appealed to the Board. The Board affirmed the Village’s determination. The Board concluded that the Village’s findings were not against the manifest weight of the evidence. This appeal follows.

As a preliminary matter, the Board contends that we do not have jurisdiction to hear this appeal because the petitioners did not seek a rehearing before the Board prior to filing the notice of appeal. The Board relies upon Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 547 N.E.2d 437. This court recently rejected the same argument in Strube v. Pollution Control Board (1993), 242 Ill. App. 3d 822, 825-26. We continue to follow the reasoning set forth in Strube. Accordingly, we hold that we have jurisdiction to hear this appeal. Once again, we conclude that petitioners are not required to request a rehearing before the Board prior to filing their notice of appeal.

The petitioners initially argue that the landfill siting process set out in section 39.2 of the Act violates the separation of powers clause of the Illinois Constitution since it provides for decision making by local legislative bodies (Ill. Const. 1970, art. II, §1). The petitioners contend the Act violates separation of powers principles because it allows local municipal authorities, which are legislative bodies, to perform judicial acts.

The Act was amended in 1981 to give local authorities the specific power to approve landfill site locations. (Ill. Rev. Stat. 1991, ch. 111½, par. 1039.2; E & E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill. 2d 33, 37, 481 N.E.2d 664, 665.) Prior to the amendment, it was the responsibility of the Illinois Environmental Protection Agency to approve landfill sites and expansions. (E & E Hauling, 107 Ill. 2d at 37, 481 N.E.2d at 665.) The courts of this State have clearly recognized that local governing bodies are engaging in an adjudicatory function when they make landfill site determinations. See E & E Hauling, 107 Ill. 2d at 43, 481 N.E.2d at 668; A.R.F. Landfill, Inc. v. Pollution Control Board (1988), 174 Ill. App. 3d 82, 89, 528 N.E.2d 390, 394-95.

All statutes are presumed constitutional. The party challenging a statute has the burden of clearly establishing any constitutional infirmity. (Opyt’s Amoco, Inc. v. Village of South Holland (1992), 149 Ill. 2d 265, 277, 595 N.E.2d 1060, 1066.) Our supreme court has historically regarded the doctrine of separation of powers to mean that the whole power of two or more of the branches of the government may not be lodged in a single branch of government. (McAlister v. Schick (1992), 147 Ill. 2d 84, 91, 588 N.E.2d 1151, 1154; Strukoff v. Strukoff (1979), 76 Ill. 2d 53, 58, 389 N.E.2d 1170, 1172.) Thus, the doctrine of separation of powers does not contemplate rigidly separated compartments of government or a complete divorce among the three branches of the government. (McAlister, 147 Ill. 2d at 95, 588 N.E.2d at 1155-56; Strukoff, 76 Ill. 2d at 58, 389 N.E.2d at 1172.) Nor does our Illinois Constitution forbid every exercise of power by one branch of the government which includes functions usually exercised by another branch of government. (McAlister, 147 Ill. 2d at 95, 588 N.E.2d at 1156.) “The separate spheres of governmental authority may overlap.” McAlister, 147 Ill. 2d at 95, 588 N.E.2d at 1156.

Section 39.2 of the Act specifically gives local governing bodies the authority to make determinations approving or disapproving applications for landfill expansions. The Act enumerates the specific criteria that local governing bodies are required to consider in making landfill site determinations. (Ill. Rev. Stat. 1991, ch. 111½, par. 1039.2(a).) Further, the Act sets forth a time schedule which must be strictly followed in the decision-making process. (Ill. Rev. Stat. 1991, ch. 111½, pars. 1039.2(d), (e).) The Act also provides that local government decisions may be reviewed by an administrative agency (Ill. Rev. Stat. 1991, ch. 111½, par. 1040.1(a)), and the appellate court (Ill. Rev. Stat. 1991, ch. 111½, par. 1041(a)). Following our review of the Act, we find the Act does not provide an improper concentration of decision-making power in one branch of government. Therefore, we conclude the petitioners failed to meet their burden of establishing that section 39.2 of the Act is unconstitutional.

The petitioners also argue the Board erred in allowing Will County to intervene in the appeals process. The petitioners specifically contend the Board lacked statutory authority to allow Will County’s intervention. The petitioners assert that it is well established that third-party objectors are precluded from joining as parties in an appeal from the denial of a landfill siting application. (See Waste Management of Illinois, Inc. v. Pollution Control Board (1987), 160 Ill. App. 3d 434, 444, 513 N.E.2d 592, 598; McHenry County Landfill, Inc. v. Environmental Protection Agency (1987), 154 Ill. App. 3d 89, 95, 506 N.E.2d 372, 376.) The petitioners rely primarily upon County of La Salle ex rel. Peterlin v. Pollution Control Board (3d Dist. 1986), 146 Ill. App. 3d 603, 497 N.E.2d 164. In that case, we concluded the Board properly denied La Salle County’s petition for leave to intervene. Peterlin, 146 Ill. App. 3d at 611, 497 N.E.2d at 170.

In the instant appeal, the Board allowed Will County’s intervention based upon Pioneer Processing, Inc. v. Environmental Protection Agency (1984), 102 Ill. 2d 119, 464 N.E.2d 238. In Pioneer Processing, our supreme court held that the Attorney General had authority to seek appellate review of a decision of the Pollution Control Board, even though the Attorney General was not a party to the underlying proceedings. The court noted that the Attorney General, as the chief legal officer of the State, had “the "duty and authority to represent the interests of the People of the State to insure a healthful environment.” Pioneer Processing, 102 Ill. 2d at 138, 464 N.E.2d at 247.

Here, the Board found the State’s Attorney of Will County was a constitutional officer whose rights and duties are analogous to those of the Attorney General. The Board reasoned that the State’s Attorney of Will County, as a State official representing the public interest, was different from a private citizen acting as a third-party objector. Thus, the Board reasoned the State’s Attorney of Will County had standing to intervene so he could act on behalf of the citizens of Will County. We agree with the Board’s analysis and reasoning.

In appropriate circumstances, such as we find here, the Board has the authority to allow State officials who represent the public interest to intervene in appeal proceedings before the Board. We also find it was appropriate for the Board to allow Will County to intervene in this case since it was a party to the initial proceedings before the Village. Also, the State’s Attorney of Will County sought intervention because of his “interest in protecting the health and environment within which the People of Will County must live and work.” Finally, we conclude the Board’s determination was distinguishable from our prior decision in Peterlin. There is no indication in Peterlin that La Salle County argued before this court that it should have been allowed to intervene to represent the public interest based upon the supreme court’s reasoning in Pioneer Processing. See Peterlin, 146 Ill. App. 3d at 611, 497 N.E.2d at 170.

The petitioners next argue that the Board did not have authority to reconsider its decision after it initially ruled in favor of the petitioners. The petitioners argue that the Board does not have the legal authority to reconsider its rulings because the Act specifically does not provide for reconsideration or rehearing. We find this argument to be meritless.

The Act grants the Board the authority to adopt procedural rules “as may be necessary to accomplish the purposes of this Act.” (111. Rev. Stat. 1991, ch. lll1^, par. 1026.) The Board’s rules provide that parties may file a motion for reconsideration or modification of a final order within 35 days of the order. (35 111. Adm. Code §§101.246, 101.300 (1991).) This court has previously recognized that, while there is no authority for the Illinois Environmental Protection Agency to reconsider its rulings, the Board does have that authority. Reichhold, Chemicals, Inc. v. Pollution Control Board (1990), 204 Ill. App. 3d 674, 678, 561 N.E.2d 1343,1345.

The petitioners also contend the Board should not have reconsidered its ruling because the Village was bound by its prior judicial admission that two State legislators did not receive notice of the public hearing. At the first hearing before the Board, the Village and Will County presented the affidavits of two State legislators concerning the notice issue. The petitioners argued that neither legislator made an express affirmative statement that he did not receive notice of the public hearing. However, the Village argued the affidavits established that neither legislator received notice of the public hearing.

The Village’s original position before the Board was that it was the petitioners’ responsibility to provide notice of the public hearing. The Village and Will County both mistakenly believed the two State legislators did not receive notice. As a consequence, the Village and Will County erroneously argued that because the petitioners failed to give notice, the Village did not have jurisdiction over the siting application. After the Board finally concluded it was the duty of the Village to give the notice, the Village searched its records and found proof that the Village clerk had, in fact, sent the required notice. Based upon this new information, the Board then reconsidered its decision and changed its initial ruling.

Will County contends the Village was not bound by its argument before the Board concerning notice because that argument was the result of either mistake or inadvertence. Will County argues that admissions are not conclusive when they are made either through mistake or inadvertence. See American National Bank & Trust Co. v. Erickson (1983), 115 Ill. App. 3d 1026, 1029, 452 N.E.2d 3, 6; Colgan v. Premier Electrical Construction Co. (1981), 92 Ill. App. 3d 407, 412, 414 N.E.2d 1364, 1368.

Based upon the unique facts in this record, we find the Board properly reconsidered its initial ruling. If we forced the Village to be bound by a factually incorrect argument, then we would be holding that an erroneous ruling could never be corrected. We do not intend such an absurd result. We find the Board properly corrected its ruling to be consistent with the proof contained in the record.

The petitioners next argue the Board erred in remanding the cause to the Village for clarification of the resolution. The petitioners contend the Board clearly found the resolution to be invalid. Petitioners argue the only proper ruling the Board could have made under the circumstances was to find the Village failed to render a valid decision within the time limit required by the Act. If we accepted the petitioners’ argument, we would automatically approve the siting application for expansion of the landfill. However, we find the petitioners’ argument is not persuasive on this issue. Therefore, automatic approval of petitioners’ application is denied.

Section 39.2(e) of the Act provides, “[i]f there is no final action by the county board or governing body of the municipality within 180 days after the filing of the request for site approval the applicant may deem the request approved.” (111. Rev. Stat. 1991, ch. lllVs, par. 1039.2(e).) A “final action” by the local authority “need only be sufficiently final to justify an appeal to the [Board].” McHenry County Landfill, Inc. v. Environmental Protection Agency (1987), 154 Ill. App. 3d 89, 98, 506 N.E.2d 372, 378; see also McLean County Disposal, Inc. v. County of McLean (1991), 207 Ill. App. 3d 477, 488, 566 N.E.2d 26, 33 (final action necessary is the initial order of the local authority which approves or denies the siting application).

Here, the record shows the Village issued a written resolution within the statutory time limit required by the Act. The resolution clearly denied the petitioners’ application for site approval based upon the Village’s determination that it did not have jurisdiction to approve the application. We find unpersuasive the argument that the Village failed to take final action because of the Board’s remand order. The Village’s decision was final and therefore justified an appeal to the Board. McLean County Disposal, 207 Ill. App. 3d at 480, 566 N.E.2d at 28.

The petitioners additionally argue, however, that the Board’s remand order was not a sufficient cure to the “fundamentally unfair” hearings conducted by the Village. We agree. Courts have previously noted that a public hearing before a local governing body is the most critical stage of the site approval process mandated by section 39.2 of the Act. (McLean County Disposal, Inc. v. County of McLean (1991), 207 Ill. App. 3d 477, 480, 566 N.E.2d 26, 28.) This is because the public hearing clearly provides the only opportunity for public comment in the entire administrative process. The Act provides that, in reviewing a section 39.2 decision on site approval, the Board must consider the fundamental fairness of the procedures used by the local governing body in reaching its decision. (Ill. Rev. Stat. 1991, ch. HV-k, par. 1040.1(a).) Because the public hearing procedure is so critical, we conclude that the Board should have made meaningful inquiry into whether fundamental fairness occurred during the public hearing. Based on the record, we determine the petitioners were not given a full and complete opportunity to present evidence in support of their application. (Cf Fairview Area Citizens Taskforce v. Pollution Con trol Board (1990), 198 Illl. App. 3d 541, 549, 555 N.E.2d 1178, 1183.) Therefore, we hold that the petitioners were denied their right of fundamental fairness during the public hearing held by the Village.

Here, we find the availability or nonavailability of the Wheatland landfill is extremely crucial to the issue of whether the petitioners’ proposed landfill expansion is needed. Will County did not disclose at the public hearing before the hearing officer that it was involved in litigation seeking to enjoin the reopening of Wheatland. That litigation is based upon Wheatland’s alleged environmental problems. Instead, Will County’s assistant State’s Attorney cross-examined the petitioners’ witnesses seeking admissions from them that Wheatland could be reopened at any time. Will County in fact presented evidence before the hearing officer that Wheatland’s closing was only temporary. Following the presentation of evidence, Will County then urged the hearing officer to consider Wheatland as an available site to accept waste.

When the petitioners became aware of Will County’s pending lawsuit against Wheatland, they filed a motion to supplement the record. Will County argued that the motion should be denied. The Village granted the petitioners’ motion and took judicial notice of the lawsuit. However, the Village included in its resolution the hearing officer’s proposed findings of fact regarding Wheatland. We determine that the Village’s resolution was improper because the hearing officer clearly stated on the record that he was not aware of Will County’s lawsuit when he made his findings. As a result, we find the Village improperly considered the factually incorrect findings of the hearing officer. Accordingly, we conclude that fundamental fairness requires the Village to conduct a completely new hearing so sufficient inquiry can be made concerning the availability of the Wheatland site as well as all other issues.

Will County argued before the Board and this court that the petitioners’ proposed expansion is not necessary because of Wheatland’s availability. However, at oral argument, Will County admitted that its lawsuit which seeks the permanent closing of Wheatland is still pending. Furthermore, Will County also admitted to this court that Wheat-land has been closed during the entire pendency of these proceedings, including this appeal. We cannot condone Will County’s gamesmanship. It was improper for Will County to mislead the hearing officer into making factually incorrect assumptions concerning Wheatland’s availability while at the same time taking court action to have Wheat-land permanently closed.

Where fundamental fairness requires supplemental proceedings before the local governing body, the Board may remand the cause to that body for additional proceedings. (Laidlaw Waste Systems (Madison), Inc. v. Pollution Control Board (1992), 230 Ill. App. 3d 132, 139, 595 N.E.2d 600, 605; City of Rockford v. County of Winnebago (1989), 186 Ill. App. 3d 303, 309, 542 N.E.2d 423, 428.) We conclude that, based upon the record, the Board erred when it did not remand this cause to the Village with instructions that the Village conduct a completely new public hearing to assure fundamental fairness in the administrative process.

For the reasons indicated, we reverse the rulings of the Board and remand the cause to the Village so it can hold a new public hearing on the petitioners’ application for expansion of the landfill.

Reversed and remanded.

STOUDER and BRESLIN, JJ., concur.