text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL D. WALKER, a/k/a Carl D. Logan, Defendant-Appellant.
    Fourth District
    No. 4—89—0175
    Opinion filed January 4,1990.
    Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and James W. Ackerman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Carl Walker, a/k/a Carl Logan, appeals his conviction and two-year prison sentence for theft. Defendant contends the State failed to meet its burden of proof where no evidence establishing ownership of the vehicle was introduced but only a photograph establishing the make and model of the vehicle was presented to the jury. We affirm.

On September 30, 1988, defendant was charged by information with two counts of felony theft. (Ill. Rev. Stat. 1987, ch. 38, pars. 16 — 1(a)(1), (d)(1).) Count I alleged defendant, on September 14, 1988, exerted unauthorized control over a 1985 Yamaha motorcycle owned by Robert Fullenwider. Defendant pleaded not guilty, and a jury trial commenced on January 18,1989.

Only the facts necessary to resolve the issue on appeal need be reviewed.

Fullenwider testified that on September 13, 1988, at approximately 7 p.m., he parked his Yamaha FJ 1100 motorcycle in front of his house on Clinton Street in Decatur and removed the keys. Fullenwider stated he purchased the motorcycle in 1985. Fullenwider discovered the bike missing at noon on September 14, 1988, and called the police. He stated he recovered the bike “the next day or the day after. Soy City had it.” People’s exhibit No. 1, a photograph, was identified by him as “the Yamaha FJ 1100.” In response to questions whether it was a motorcycle, he answered “yes” and whose motorcycle is it, he answered “mine.” Fullenwider further testified the photograph was not accurate because since the photo was taken, he had been in a hit-and-run accident, with the bike and the seat had been changed. When asked if the picture “fairly and accurately depict[s] your motorcycle,” he answered, “Looks like it. That’s it.” And, in response to a question, “Did you own that motorcycle on September 13th, 1988?” he answered, “Yes.” Fullenwider was not cross-examined concerning the authenticity of People’s exhibit No. 1.

State’s witnesses Parker and Jones also identified People’s exhibit No. 1 as the motorcycle. In addition, Officer Swanson testified, “it looks like the motorcycle that I saw being loaded in the pickup truck.” The exhibit was admitted into evidence without objection.

The jury returned a verdict of guilty on two counts of theft. The defendant’s motion for a new trial was denied. At the sentencing hearing on February 2, 1989, the trial court, on motion by the parties, vacated the verdict and judgment on count II, which alleged receipt of stolen property. The court imposed a sentence of two years’ imprisonment on count I.

Defendant argues the evidence against him for felony theft of the motorcycle established only the make and model but not ownership of the motorcycle in Fullenwider. Specifically, defendant points out no certificate of title or registration was introduced at trial. Defendant also contends the chain of custody of evidence in this case is deficient because it does not establish Fullenwider recovered the motorcycle from the police. Thus, defendant maintains his conviction for theft must be reversed because he was not proved guilty beyond a reasonable doubt.

The State argues the defendant’s conviction is supported by the evidence and inferences drawn therefrom by the jury. The State also points out defense counsel admitted Fullenwider’s ownership of the vehicle during closing argument and, therefore, cannot now argue it was not proved at trial.

A court of review will not set aside a criminal conviction unless the evidence as to each element of the crime is so unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Adams (1985), 109 Ill. 2d 102, 485 N.E.2d 339; People v. Almo (1985), 108 Ill. 2d 54, 483 N.E.2d 203.) To sustain a conviction for theft of a motor vehicle, the State must prove all the material elements of the offense, including ownership. (People v. Irons (1976), 39 Ill. App. 3d 993, 995, 350 N.E.2d 754, 758.) Evidence establishing the make and model of a stolen vehicle, without more, has been found insufficient to prove ownership. People v. Williams (1962), 24 Ill. 2d 214, 181 N.E.2d 353; People v. Stone (1979), 75 Ill. App. 3d 571, 394 N.E.2d 810; People v. Hope (1979), 69 Ill. App. 3d 375, 387 N.E.2d 795; Irons, 39 Ill. App. 3d 993, 350 N.E.2d 754.

Section 115 — 9(a), provides in part:

“[T]he court shall receive as competent evidence, a photograph of property over which the accused is alleged to have exerted unauthorized control or to have otherwise obtained unlawfully, if the photograph:
(1) will serve the purpose of demonstrating the nature of the property; and
(2) is otherwise admissible into evidence under all other rules of law governing the admissibility of photographs into evidence. *** If a photograph is found to be competent evidence under this subsection, it is admissible into evidence in place of the property and to the same extent as the property itself.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 9(a).)

This section specifically permits the use of the photograph in this case. The picture, along with the testimony of Fullenwider, Parker, Jones, and Swanson, established beyond a reasonable doubt ownership.

Fullenwider identified the photograph as his motorcycle and the motorcycle which is the subject of the theft. The exhibit was admitted into evidence without objection, and it properly identified the property which was the subject of the theft and is sufficient to prove ownership in Fullenwider. Williams, Stone, Hope and Irons do not require a different result. All of those cases deal with factual situations not similar to the case at hand.

The State did prove Fullenwider’s ownership of the vehicle with competent evidence.

For the foregoing reasons, the defendant’s conviction and sentence of felony theft are affirmed.

Affirmed.

KNECHT, P.J., and STEIGMANN, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILBUR SCHARLAU, Defendant (Ernie A. Cox et al., Defendants-Appellants).
    Fourth District
    No. 4—89—0300
    Opinion filed January 4,1990.

      Matthias A. Lydon, of Lydon & Griffin, of Chicago, and Everett L. Laury, of Hutton, Laury, Hesser & Lietz, and M. Eugene Wright, both of Danville, for appellants.
    Craig H. DeArmond, State’s Attorney, of Danville, for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The genesis of this appeal is the settlement of a lawsuit brought pursuant to the Voting Rights Act of 1965 (42 U.S.C. § 1973b (1982 & Supp. V 1987)) (Voting Rights Case). The Voting Rights Case involved an allegation that the City of Danville’s election practices diluted minority vote. Almost immediately after the voting rights complaint was filed in Federal court, the city commissioners for Danville (Commissioners) and the city’s corporate counsel, defendants, began negotiating a' settlement. During the salient times involved in the instant case, the Danville city council consisted of the Commissioners. The mayor had resigned. Wilbur Scharlau, the finance commissioner, was acting mayor. On February 25, 1987, the Federal court approved the settlement proposal and entered a consent decree. The settlement changed the form of Danville’s municipal government from a mayor-commissioner system to a mayor-alderman system. It eliminated city-wide elections. However, as part of the settlement, the Commissioners were to be retained as nonelected department heads for three years.

On July 17, 1987, indictments issued alleging that during the negotiation process, the Commissioners and their corporate counsel conspired to and did violate conflict-of-interest statutes by providing for their continuation as administrators of various departments. On December 12, 1988, a superseding indictment was filed. (Ill. Rev. Stat. 1987, ch. 24, par. 3 — 14—4(a); Ill. Rev. Stat. 1987, ch. 102, par. 3(a); Ill. Rev. Stat. 1987, ch. 38, par. 33 — 3(c).) On February 17, 1989, the trial court found the State had proved the allegations of counts I, II, III, IV, V, VI, and VIII beyond a reasonable doubt. It found Wright was not guilty of official misconduct as alleged in count VIL Subsequently, the court entered judgment against the Commissioners on count V, official misconduct (Ill. Rev. Stat. 1987, ch. 38, par. 33—3(c)), and the court entered judgment against Wright on count VI, official misconduct (Ill. Rev. Stat. 1987, ch. 38, par. 33—3(c)). The court sentenced the Commissioners to two years’ conditional discharge and fined them each $1,000. The court sentenced Wright to two years’ conditional discharge, 90 days in jail, and fined him $5,000.

Defendants appeal, arguing neither section 3 — 14—4(a) of the lilinois Municipal Code (Municipal Code) (Ill. Rev. Stat. 1987, ch. 24, par. 3—14—4(a)), section 3(a) of the Corrupt Practices Act (Ill. Rev. Stat. 1987, ch. 102, par. 3(a)), nor section 33—3(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 33—3(c)) applies in the instant fact situation. Defendants also argue legislative immunity prohibits any criminal prosecution. Finally, they contend reliance is an available defense to any allegation of a conflict of interest.

We reverse.

The facts relevant to this matter will be summarized as briefly as possible as defendants do not contest the sufficiency of the evidence.

PROCEDURAL BACKGROUND

An eight-count indictment issued alleging the Commissioners for the City of Danville and their corporate counsel, Wendell Wright, had committed several offenses in the process of negotiating the settlement of the Voting Rights Case.

In count I, the State alleged Wilbur Scharlau, Ernie Cox, Jerome Brown, and Raymond Randall (hereinafter the Commissioners) violated section 3 — 14—4(a) of the Municipal Code by knowingly entering into an agreement to settle the Voting Rights Case, which required that the Commissioners be guaranteed positions as department heads for a term of three years following the general election held after the resolution of the Voting Rights Case. The department head positions did not currently exist in Danville and could be eliminated after three years. Count I further alleged defendants had no right to guaranteed positions or payment for them. Therefore, negotiating guaranteed positions as part of conducting business for the city constituted direct pecuniary interest in violation of section 3 — 14—4(a) of the Municipal Code. Ill. Rev. Stat. 1987, ch. 24, par. 3—14—4(a).

In count II, the State alleged the Commissioners and Wendell Wright, with the intent to violate section 3 — 14—4(a) of the Municipal Code, knowingly agreed to require the retention of the Commissioners as stated in count I as a condition for settling the Voting Rights Case. The count further alleged the Commissioners, in furtherance of the conspiracy, authorized and directed Wright to negotiate the settlement and include terms on their behalf. The negotiations were made part of the final consent decree.

In count III, the State alleged defendants as elected or appointed officers entered an agreement regarding city business, the settlement, wherein the Commissioners had a personal direct interest. (Ill. Rev. Stat. 1987, ch. 102, par. 3(a).) In count IV, the State alleged all defendants conspired to commit a conflict of interest as alleged in count III. Ill. Rev. Stat. 1987, ch. 38, par. 8 — 2.

In count V, the State alleged the Commissioners committed official misconduct between December 14, 1986, and February 26, 1987, when they, as public officers, knowingly and with the intent to obtain a personal advantage, performed an act in excess of their lawful authority. The act alleged was the negotiation of the carryover provision which allegedly violated section 3 — 14—4(a) of the Municipal Code and section 3(a) of the Corrupt Practices Act (Ill. Rev. Stat. 1987, ch. 102, par. 3(a)). Ill. Rev. Stat. 1987, ch. 38, par. 33 — 3(c).

In count VI, the State alleged Wright, as a public employee, committed official misconduct when he knowingly and with the intent to obtain a personal advantage for others, performed acts in excess of his legal authority. (Ill. Rev. Stat. 1987, ch. 38, par. 33 — 3(c).) Count VII alleged Wright committed official misconduct by performing acts which he knew he was forbidden by law to perform, negotiating the settlement with the transition provision. In count VIII, the State alleged the Commissioners committed conflict of interest by knowingly offering to take or receive directly money and other things of value to influence their action in an official character. Ill. Rev. Stat. 1987, ch. 102, par. 3(a).

TRIAL EVIDENCE

On December 12, 1987, a bench trial began. The circuit court reviewed the file of the Federal proceedings and the transcripts of two grand jury proceedings which occurred during the investigation of the instant case. The parties stipulated that two Commissioners had retired and two were working as department heads at the time of the trial.

FEDERAL COURT PROCEEDINGS

On January 14, 1987, a lawsuit was filed against Danville and its Commissioners alleging the nonpartisan, at-large, city-wide voting for commission members excluded black representation and diluted the black voting strength. On February 3, 1987, the parties in the Voting Rights Case filed a stipulation for a consent decree. The stipulation stated that in reaction to the litigation, a referendum on a change of a form of government had been set for April 7, 1987. The parties agreed to a new form of government, which would consist of a mayor, aldermen and department heads. The February 3, 1987, stipulation provided: (1) for three years after the first general election held under the new form of government, the Commissioners would continue in office as the administrators of various departments, which corresponded to their duties as Commissioners; (2) the administrators would not be members of the city council and would not have any legislative duties; (3) the administrators could only be removed for misfeasance or malfeasance; (4) an eight-member vote of the city council would be necessary to remove them; (5) salaries for the new positions were to be set by the current city counsel (Commissioners); and (6) the salaries could not be changed for four years.

Judge Harold Baker entered a consent decree, which incorporated the stipulation’s language, on February 3, 1987. A supplemental consent decree was filed on February 9, 1987. On February 10, 1987, Judge Baker vacated the previously entered decrees and rescheduled a hearing on the proposed settlement. He also enjoined the election scheduled for February 24, 1987, in Danville. On February 12, 1987, Thomas Mellen filed a motion to intervene in the Federal ease. The substance of his objections was that the negotiation process engaged in by the Commissioners violated conflict-of-interest statutes and public policy. The Vermilion County State’s Attorney, Craig DeArmond, was also made a party in the action.

On February 20, 1987, a second hearing on the settlement began. DeArmond was present at the hearing. James Craven, one of plaintiffs’ attorneys, testified that he was the principal negotiator of the settlement. Craven stated the proposed decree provided the Commissioners would become department heads after the transition to the new form of government. The major concession the Voting Rights Case plaintiffs made in the negotiation process was the length of the Commissioners’ term as department heads. The Voting Rights Case plaintiffs acquiesced partially in defendants’ demand or a request for a transition term. Craven stated he did not know when the retention issue arose in the negotiations. The corporate counsel initiated a discussion on the transition period. They then talked about the length of the transition.

A dispute between the Voting Rights Case plaintiffs and the defendants developed over who should set the salaries for the new positions and the interpretation of the February 3, 1987, consent decree’s language. Defendants’ attorney stated that the present Commissioners would not set their salaries, they just would not reduce them. The February 20, 1987, hearing was continued until the dispute could be resolved.

A third hearing on the settlement of the Voting Rights Case occurred on February 25, 1987. At the hearing, defendants’ attorney stated the agreement had been changed to provide for the removal of the department heads for misfeasance, malfeasance, or nonfeasance. Second, the settlement had been amended to provide the new mayor and aldermen could review salaries for the department heads but could not reduce them absent good faith.

Judge Baker stated that after a settlement was entered, he would dissolve the injunction against DeArmond, DeArmond would be free to pursue whatever paths he wished as a prosecutor, and the defendants would have to defend against the action.

Wendell Wright, corporate counsel for Danville, testified the Commissioners were aware of the Springfield voting rights lawsuit. They assumed similar factors applied in Danville. Two days after the resolution of the Springfield case, the Danville city council met and passed a resolution to place a referendum on the ballot in the April 1987 election about a change in government. If the referendum passed, the new mayor-alderman government would begin in 1991. After the resolution passed, Wright talked to Craven. Craven indicated plaintiffs would not wait four years for the change in government and would seek an injunction prohibiting elections under the commission form of government. After the Commissioners decided to place the change in the form of government on the ballot, changing the form of government was not a matter of discussion.

The Commissioners wanted the election to take place and told Wright to continue negotiating but prepare for litigation. Wright stated he and plaintiffs’ attorney discussed “quickly and fairly early” the present Commissioners continuing in office as department heads for a transition period. The Commissioners wanted the department-head positions to be elected on a city-wide basis. The Voting Rights Case plaintiffs said no election, but agreed to appointed positions.

Wright stated further the city and the Voting Rights Case plaintiffs reached an impasse. After Craven discussed a transition term with his clients, he offered a two-year transition, with the Commissioners becoming appointed department heads. Wright discussed this proposition with the Commissioners, who rejected the proposal because the transition time was too short. The Commissioners felt a total change in government form could not be made in two years. Subsequently, the voting rights plaintiffs agreed to a three-year holdover.

Wright stated further that he and the Commissioners in conjunction with the three-year package discussed the possibility of reprisals by the new aldermen. Therefore, the Commissioners wanted salary protection for the department heads and employees. This was a very important issue at the last meeting, but had been discussed before. The Commissioners asked Wright to tell Craven the three-year provision was acceptable, subject to a stipulation protecting department heads and their employees during the three-year period. Wright further testified his position as corporate counsel was not covered in the consent decree.

Wright stated the Commissioners did not discuss the time necessary for vesting of pensions while discussing the settlement. Salaries were not directly discussed during the negotiations.

At the conclusion of the hearing, Judge Baker entered a minute order. He found the plaintiffs had a reasonable likelihood of success on the merits. The Voting Rights Case plaintiffs and defendants had negotiated a settlement in light of the expense, divisiveness of litigation, and defendants' strong concern for an orderly transition. The court found defendants had articulated a reasonable basis for the three-year transition term and their retention in administrative capacities. Judge Baker found the settlement did not violate Illinois conflict-of-interest statutes. He noted the Voting Rights Case was a complex and potentially expensive matter, where a settlement which included a transition period provided stability and continuity of government. Judge Baker noted the Commissioners did not violate their fiduciary duty to the City of Danville. Judge Baker dissolved the injunction preventing grand jury investigations. The grand jury met in conjunction with the instant case on March 23, 1987, July 13, 1987, and July 17,1987.

GRAND JURY PROCEEDINGS

Wendell Wright testified that a day or two after the Voting Rights Case was filed, he talked about settlements with plaintiffs’ attorney. At that time, the Commissioners had no position regarding settlement. They had placed a question on the change of government on the April election ballot. Wright told plaintiffs’ attorney the referendum should solve the problem. The change of government question had been placed on the ballot because Wright knew and advised the council that the commission form of government had not withstood attack in Springfield. The Commissioners’ first position in negotiating was that the regular election should take place, the change of government question be voted on, and a four-year transition occur.

Once it was clear that the Voting Rights Case plaintiffs would seek an injunction to prevent elections under the commission form of government, the Commissioners took the position that the form of government would change but department heads, corresponding with the branches of government the Commissioners supervised, should be elected for a four-year term on a city-wide basis. The Voting Rights Case plaintiffs’ position was that this still diluted black voting strength.

Therefore, the Commissioners authorized Wright to move to a four-year, appointed department-head position. The Voting Rights Case plaintiffs agreed to appointed department heads in exchange for a quick election under the new form of government. The Voting Rights Case plaintiffs were willing to have a two-year holdover of present Commissioners as department heads to facilitate the transition.

Wright testified further that he took this proposal back to the city council. They did not approve it. The Voting Rights Case plaintiffs proposed a three-year holdover to ensure a proper transition, with early elections. There was a general agreement that the Commissioners would become department heads. Wright stated nothing in the Voting Rights Act required a retention of Commissioners in any form. The Commissioners could possibly have settled the case without retention. Wright did not think the elected Commissioners had a vested right or interest to continued employment after the change in the form of government. Had they failed to gain reelection, they would not have continued in any form of employment.

All Commissioners were running for reelection in 1987. Wright’s first negotiating position on transition was that the Commissioners should stay in office for four years. The Commissioners felt that they were sacrificing their personal positions because all would have been reelected and stayed in office for four years, had the Voting Rights Case not started. After plaintiffs proposed a two-year transition, the Commissioners rejected it because the Commissioners felt they had made all of the concessions.

Ernie Cox, the commissioner of streets and public improvements, stated his current term ended in April 1987. He had been a commissioner for eight years and was running for reelection. The first issue resolved was the change in form of government. On February 3, 1987, the council passed Ordinance No. 7229, proposing a change in the form of government. The primary dispute from then on was retention of the current council in some capacity and the salary issue. The first proposal was for a full election. The second was for elected department-head positions. Then, the Voting Rights Case plaintiffs proposed a two-year retention as department heads. The current council turned it down because they wanted an election. Originally, the current council would set salaries for the department-head positions, then move into the position after the election of the new form of government. This position changed about a week before the final fairness hearing. The lawsuit would not have been settled absent resolution of the transition period and salary issues. As he understood the settlement, he was guaranteed a position as a department head for at least three years after the September general election.

At one point during the negotiations, the council discussed the qualifying time remaining before vesting of Scharlau’s pension. However, the pension was not a reason for the retention period exceeding two years. The two-year transition period was insufficient time to transform government. The department heads were to retain the same salaries as the Commissioners unless the new council and mayor reduced it.

Jerome Brown testified he had been the health and safety commissioner for four years. His term would have expired in April 1987. At the outset, the city council determined that because of the similarities between Danville and Springfield, the form of government would have to change. Brown wanted the scheduled elections to continue. He felt he would win reelection. Salaries were not discussed. Brown believed the salary question was undecided until the fairness hearing. The council discussed retention for transition in some form from the outset of negotiations. The amount of service time necessary to vest retirement benefits was brought up once. Cox and Randall had already qualified for retirement benefits. Scharlau, the acting mayor, needed IV2 years. Brown needed four years. Wright was present when the council discussed retirement.

Ray Randall stated he had been the commissioner of public property for 12 years. He was running unopposed for reelection in April 1987. Randall understood there was no legal requirement that Commissioners be retained in the new government. Salaries were the last item of negotiation. Randall originally thought the current council could not set the department-head salaries. However, he was told this was permissible. The salary problem was resolved at the last fairness hearing.

The council members mentioned pension rights but did not discuss them while discussing the settlement offers. He opposed the two-year proposal because he felt strongly the department-head positions should be elected. Randall agreed keeping a position after the change in government was a direct personal benefit.

Scharlau testified he was commissioner of accounts and finance and acting mayor for the City of Danville. Scharlau did not believe the council considered settling the suit, absent a transition with a carryover period. His eligibility for retirement had nothing to do with the length of transition. He did not intend to insure continuing employment for himself or for the other council members.

All of the Commissioners testified their principal concern was that an orderly transition occur. They felt settlement was best to preclude expense for the city and resolve the dispute.

ANALYSIS

Initially, defendants argue section 3 — 14—4(a) of the Municipal Code and section 3(a) of the Corrupt Practices Act do not apply to situations where the subject of a lawsuit against the city is the form of its government and its officials negotiate a settlement. Since these statutes do not apply, defendants contend they could not have been convicted of official misconduct based upon violations of these statutes. Under the facts presented in the instant case, we agree.

Section 3 — 14—4(a) of the Municipal Code states:

“No municipal officer shall be interested, directly or indirectly, in his own name or in the name of any other person, association, trust or ■ corporation, in any contract, work or business of the municipality, or in the sale of any article, whenever the expense, price or consideration of the contract, work, business or sale is paid either from the treasury or by any assessment levied by any statute or ordinance.” (Ill. Rev. Stat. 1987, ch. 24, par. 3—14—4(a).)

Section 3(a) of the Corrupt Practices Act states:

“No person holding any office, either by election or appointment under the laws or constitution of this state, may be in any manner interested, either directly or indirectly, in his own name or in the name of any other person, association, trust or corporation, in any contract or the performance of any work in the making or letting of which such officer may be called upon to act or vote.” (Ill. Rev. Stat. 1987, ch. 102, par. 3(a).)

Section 33 — 3 of the Criminal Code of 1961 (Code) states in part:

“Official Misconduct. A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts:
(a) Intentionally or recklessly fails to perform any mandatory duty as required by law; or
(b) Knowingly performs an act which he knows he is forbidden by law to perform; or
(c) With intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 33—3.

The interpretation and construction of statutory provisions are governed by the principle that the legislature’s intention shall be ascertained and given effect. (Benjamin v. Cablevision Programming Investments (1986), 114 Ill. 2d 150, 499 N.E.2d 1309; People v. Savaiano (1976), 66 Ill. 2d 7, 359 N.E.2d 475; Edwards v. Sterling Drugs, Inc. (1988), 167 Ill. App. 3d 181, 521 N.E.2d 296.) The entire statute, its nature, object, and purpose to be attained must be considered. (Edwards, 167 Ill. App. 3d 181, 521 N.E.2d 296.) In construing statutes, each word or provision will be given a reasonable meaning. Courts will not presume the statute contains surplus language. (Bloese v. Board of Education of Community Unit School District No. 300 (1985), 138 Ill. App. 3d 460, 485 N.E.2d 1276.) Where the terms of a statute are not defined, they will be given their ordinary meaning, unless this would defeat the legislative intent. (People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473.) However, penal statutes will be strictly construed. (Midwest Television, Inc. v. Champaign-Urbana Communications, Inc. (1976), 37 Ill. App. 3d 926, 347 N.E .2d 34.) Ambiguities in criminal statutes should be interpreted in favor of lenity. Thus, they are resolved in favor of the defendant. People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48; People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627.

The language of section 3 — 14—4(a) states no officer shall be interested directly or indirectly in “any contract, work or business of the municipality” whenever the expense, price, or consideration of the contract, work or business or sale is paid from the treasury or by assessment. (Ill. Rev. Stat. 1987, ch. 24, par. 3 — 14—4(a).) Similarly, section 3(a) of the Corrupt Practices Act provides that no person holding office “may be in any manner interested, either directly or indirectly” in “any contract” upon which such officer may be called upon to act or vote. (Ill. Rev. Stat. 1987, ch. 102, par. 3(a).) Official misconduct as charged here occurs when a public officer or employee “with the intent to obtain a personal advantage” performs an act in excess of his lawful authority. The act alleged here is negotiating a settlement of the voting rights lawsuit which included a transition period.

A conviction of official misconduct as charged in section 33 — 3(c) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 33 — 3(c)) requires: (1) an act by a public officer or employee in his official capacity which exceeds his lawful authority and (2) an intent to obtain a personal advantage for himself or for another. (People v. Sims (1982), 108 Ill. App. 3d 648, 439 N.E .2d 518.) Knowledge that the officer is acting outside of his lawful authority is not an element. (People v. Kleffman (1980), 90 Ill. App. 3d 1, 412 N.E .2d 1057.) Official capacity means accomplishment by use of one’s position as an officer or employee. (People v. Steinmann (1978), 57 Ill. App. 3d 887, 373 N.E.2d 757.) If a defendant performs an official act intending to obtain a personal advantage, and in doing so exceeds his authority, he commits official misconduct. See generally People v. Mehelic (1987), 152 Ill. App. 3d 843, 504 N.E.2d 1310.

A review of authorities addressing conflict of interest will be helpful. In Brown v. Kirk (1976), 64 Ill. 2d 144, 151, 355 N.E.2d 12, 16, the court noted that section 3(a) of the Corrupt Practices Act is addressed not only to the actual bad-faith abuse of power for an officer’s personal benefit, but also is designed to prevent the creation of relationships which carry with them the potential for such abuse. The statute prevents the creation of such relationships by removing the temptation of becoming involved in them.

An illustrative case is People v. Savaiano (1976), 66 Ill. 2d 7, 359 N.E.2d 475. In Savaiano, the chairman of a finance committee and member of the county forest preserve commission participated in negotiations for the purchase of land by the county. The county eventually instituted eminent domain proceedings to acquire the property. However, Savaiano, while holding his public offices, also owned an interest in the property. Although the sale to the county was not completed, Savaiano sold his interest to a third party at a profit. He was convicted of having an interest in the contract as proscribed by the Corrupt Practices Act. The supreme court held the statute applied to self-dealing which occurred during the negotiation process. The supreme court found support for its conclusion in the high standard of conduct to which public officers are held. It noted the broad, sweeping language of the statute supported its conclusions as well.

In People v. Simpkins (1977), 45 Ill. App. 3d 202, 210, 359 N.E.2d 828, 833, the court held an indictment charging defendant with violations of the Municipal Code and Corrupt Practices Act due to his wife’s employment by the city water department while he was mayor did not charge an offense. However, the court discussed the purpose of the conflict-of-interest statutes. It noted that the statutes express a strong public policy against self-dealing by public officials.

Thus, the language of the statutes and their purpose present a sweeping prohibition against public officials and officers engaging in conduct which divides their loyalty between their personal interests and their fiduciary duties. The Commissioners and the corporate counsel in the instant case had a personal interest in continued employment during the transition period which resulted from the negotiations. A personal interest includes an interest in continued employment or income. (Mulligan v. Village of Bradley (1985), 131 Ill. App. 3d 513, 475 N.E.2d 1029; Robertson v. Binno (1978), 56 Ill. App. 3d 390, 371 N.E.2d 681; People v. Weber (1985), 133 Ill. App. 3d 686, 479 N.E.2d 382.) Bad faith or intentional wrongdoing is not necessary to support a conviction under statutes prohibiting self-dealing. (See Miller v. County of Lake (1980), 79 Ill. 2d 481, 404 N.E.2d 222.) Therefore, defendants’ arguments that they had good intentions and that their end result benefitted the city would not preclude conviction.

However, the express language of the statutes does not define the terms “interest” or “contract.” They do not state that the personal interest must be wholly separate from the officer or employee’s public duty or public interest. Nor, do the statutes address a mixed-interest case. Therefore, the statutes contain an inherent ambiguity in the present situation.

A review of the precedents presented to us and our research have shown that Illinois cases addressing conflict of interest all deal with situations where the official’s personal interest could be severed entirely from his official duties. (See generally Savaiano, 66 Ill. 2d 7, 359 N.E.2d 475; Mulligan, 131 Ill. App. 3d 513, 475 N.E.2d 1029.) Additionally, the personal interest resulted from a factor wholly within the control of the official. Here, the defendants had a duty to resolve the Voting Rights Case in the best manner for the citizens of Danville. None of the parties question the advisability of a transitional period, which would bridge the uncertainty created by a total change in the form of government. The Voting Rights Case also presented a direct challenge to the Commissioners’ continuation in office and thus directly impacted a personal interest in continued employment. The fiduciary duty of the defendants and any personal interest, thus, were inextricably linked together by the situation presented to them. We know of no fashion in which the defendants could have negotiated the best settlement for the City and have avoided any discussion of transitional governments where personal interests would be impacted. Therefore, in a mixed-interest situation such as that presented in the instant case, the conflict-of-interest statutes are not violated by negotiating a settlement which includes an incidental personal benefit. Settlement of the lawsuit was within the scope of the defendants’ public duties, their actions were open to public scrutiny, and no practical manner existed for the defendants to remove themselves from the negotiation and settlement process. Additional support for our position is found in Savaiano, wherein the supreme court stated:

“[H]is activities *** through his agent and associates were not conclusively within his official duties as a member of a legislative body.” (Savaiano, 66 Ill. 2d at 18, 359 N.E.2d at 481.)

Here, all of the activities of defendant Commissioners were within their official duties as members of a legislative body.

Significant also is the fact that the settlement was tentative until its approval by the Federal court. Here, all parties recognize that the Federal court could have rejected the settlement with its transition period. Federal courts have been admonished to refuse approval when State laws are violated during the settlement process or by the settlement itself. (Derrickson v. City of Danville (7th Cir. 1988), 845 F.2d 715.) In Derrickson, the Federal court held the consent hearings involved in the instant case did not preclude the instant State criminal proceedings, because the State’s Attorney was not given a full opportunity to address the issue in Federal court. The Derrickson court noted Federal courts should not approve settlements which were reached in violation of State law. Here, we find the Illinois confliet-ofinterest statutes were not violated.

Because of our resolution of defendants’ first contention, the other issues they raise need not be addressed.

For the above reasons, we reverse the trial court.

Reversed.

KNECHT, P.J., and STEIGMANN, J., concur.


author: JUSTICE LUND

text:
    BONNIE BAKER, Plaintiff-Appellee, v. STEVEN BAKER, Defendant-Appellant.
    Fourth District
    No. 4—89—0113
    Opinion filed January 11,1990.

      Walter L. Stodd, of Pontiac, for appellant.
    Randell S. Morgan, of Kinate & Morgan, of Fairbury, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff Bonnie Baker, n/k/a Bonnie Albert, and defendant Steven Baker were married on June 12, 1965. The marriage was dissolved on May 6, 1970. On March 17, 1988, Bonnie filed a petition for a rule to show cause and a motion for judgment against Steven alleging he was significantly in arrears in child support payments. Following a hearing, the circuit court of Livingston County entered judgment against Steven in the amount of $10,469. This represented a finding of past-due child support in the amount of $6,600, a penalty levied against Steven, pursuant to section 505(d) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 505(d)), in the amount of $1,320, and an interest charge on the arrearage of $2,549. In addition, Steven was ordered to pay Bonnie’s attorney fees. Steven appeals. We affirm.

The parties had two children from their marriage, Sandra, born September 5, 1965, and Daniel, born July 22, 1969. The original decree provided Bonnie would have physical custody of the children, subject to Steven’s visitation rights. Steven was to provide child support payments to Bonnie for both children. Child support was originally set at $10 per week per child, or $20 per week. This amount took into consideration the fact that Steven was attending college at that time. In 1971, following a petition filed by Bonnie, the court increased the payments to $65 per child per month, or $130 per month. Bonnie again petitioned the court in 1974 for an increase, and Steven’s payments were raised to $150 per month, or $75 per child per month. Both Bonnie and Steven remarried following the divorce. Steven moved to New York in the late 1970’s and has resided there for all times pertinent to this appeal.

The dispute in this case centers around an informal change in custody arranged for Sandra during her high school years. An agreement was reached between Steven and Bonnie, whereby Sandra would live with Steven following Sandra’s graduation from the eighth grade. The length of the stay was not determined beforehand. Steven alleges the agreement allowed him to cease paying any child support to Bonnie. In other words, Steven alleges the agreement was for Steven to support Sandra, and Bonnie to support Daniel. Bonnie denies any arrangement was made regarding child support. Bonnie alleges the agreement was for a transfer of custody only. Bonnie filed her petition for rule to show cause and motion for judgment, seeking payment of child support arrearages for both Sandra and Daniel. The trial court concluded Steven should not be held liable for unpaid child support for Sandra because he had made all required payments to Bonnie while Sandra lived with her. Equitable principles relieved Steven of any liability for payment while Sandra lived in New York with him. The court found Steven liable for arrearages representing unpaid child support for Daniel. The court found Steven’s failure to pay support for Daniel unjustified, and entered judgment against Steven for the arrearage. Steven was also ordered to pay interest, attorney fees, and a penalty provided by statute. On appeal, Steven argues he should not be held liable for the arrearages based on the equitable doctrines of estoppel and laches. Steven also argues the failure to pay does not support a finding of contempt. Finally, Steven challenges the award of interest, attorney fees, and the statutory penalty as an abuse of the trial court’s discretion. Following is a summary of the testimony from the hearing.

Steven testified that he faithfully made his child support payments until 1979. In the spring of 1979, Bonnie contacted him and asked if he would allow Sandra to move into his household. Steven agreed. When Sandra moved to New York, he dropped his monthly payment to $75 from $150. He paid the reduced amount from July 1979 until February 1980. At that time, he discovered the reason Bonnie had suggested Sandra leave Illinois. Sandra had been sexually abused by her stepfather. Steven testified that when he found this out, he got so angry he did not send any further child support payments.

On May 18, 1980, he talked with Bonnie by telephone. Steven testified that in this conversation he confronted Bonnie with the information concerning the abuse to Sandra. Bonnie asked that Steven not bring the matter to court because she feared losing custody of Daniel also. Steven told Bonnie that he could not bear the financial burden of providing counseling for Sandra and also continue making child support payments for Daniel. According to Steven, he and Bonnie agreed that he would care for Sandra, and Bonnie would care for Daniel. Steven testified that over the next few years, he paid $6,735 for professional counseling for his daughter. This amount was an out-of-pocket expense as his medical insurance did not cover the costs of psychological services.

Steven acknowledged receiving letters from Bonnie in the years following 1980 which discussed child support. Steven received letters in January 1981, February 1981, and March 1982, which stated that he was behind in his child support payments and that he should send her the money. The amount of money requested in the letters reflected the payments due for Daniel. Steven stated that it seemed Bonnie was attempting to change her mind regarding the May 1980 agreement, but he had resolved to hold firmly to its terms. If she wanted to change the terms, he felt she could go to court to change the conditions of their agreement.

Sandra graduated from high school in 1983 and moved back to Illinois. Steven sent no further child support payments for Daniel even though Sandra became emancipated in 1983. Steven explained that he believed the agreement that each parent would care for one child was still in effect after Sandra graduated. Steven did state that he provided medical insurance for Daniel and paid any out-of-pocket costs Daniel incurred for medical care.

Steven testified to some financial difficulties during the years he lived in New York, including a period of unemployment. His tax returns were admitted into evidence, and they showed his income for the years 1980 through 1987 to be as follows: 1980, $19,200; 1981, $21,247; 1982, $22,905; 1983, $26,330; 1984, $31,926; 1985, $38,564; 1986, $33,982; 1987, $32,875.

Sandra testified that she was sexually abused and that she underwent counseling for a period of 2xk years in order to deal with the resulting emotional and psychological wounds.

Bonnie testified that she initially contacted Steven in the spring of 1979 to arrange for Sandra to move to New York. The arrangement was open-ended. Sandra could move back any time she wanted. Bonnie stated she did not go to court to have the arrangement approved because she could not afford it. Also, she did not want to put the children in the position of having to choose between the parents as a result of the family strife.

Bonnie disagreed with Steven’s version of the substance of the May 1980 telephone conversation. She testified that the conversation lasted only a few minutes. Steven told her that Sandra would need professional counseling, and Bonnie agreed that Steven should do whatever was best for her. According to Bonnie, there was no discussion about child support payments. She stated she did not agree at that time, or any time thereafter, to forego child support payments. She stated that her letters to Steven were for the purpose of reminding him of child support obligations. Bonnie stated her belief that Steven should still be responsible for the full $150 per month even after Sandra moved to New York to live with Steven. She acknowledged that her letters seemed to focus on the support owed for Daniel only. Bonnie was employed in various jobs during the years 1980 to 1987, but her income was never more than $6,000 per year.

Steven first argues the trial court should have found in his favor based on the principle of equitable estoppel. Based on the telephone conversation in May 1980, Steven argues Bonnie agreed to an arrangement, whereby Steven would support Sandra, and Bonnie would support Daniel. The trial court did take into account Bonnie’s consent to a transfer of custody for Sandra. It relieved Steven of any liability for child support while Sandra was living in New York with Steven. Steven argues the court should have gone further and found Steven was not liable for unpaid support owing for Daniel. We disagree.

The law regarding modification of child support responsibilities was recently discussed in Blisset v. Blisset (1988), 123 Ill. 2d 161, 167-68, 526 N.E.2d 125, 127-28:

“The modification of a child support obligation is a judicial function, administered exclusively by the court as a matter of discretion. (Finley v. Finley (1980), 81 Ill. 2d 317, 329.) The court is obligated in marital dissolution proceedings to protect the best interests of the children involved. (See Ill. Rev. Stat. 1983, ch. 40, par. 602; see also Ill. Rev. Stat. 1983, ch. 40, par. 502.) Moreover, although property disposition agreements between spouses are binding upon the court, unless unconscionable, in marital dissolution proceedings, the court is not bound by agreements providing for the support, custody, and visitation of the children. (Ill. Rev. Stat. 1983, ch. 40, par. 502(b).) Allowing former spouses to modify a court-ordered child support obligation by creating a new agreement between themselves without judicial approval would circumvent judicial protection of the children’s interests. Former spouses might agree to modify child support obligations, benefitting themselves while adversely affecting their children’s best interests. Parents may not bargain away their children’s interests. (See Huckaby v. Huckaby (1979), 75 Ill. App. 3d 195, 199; Anthony v. Anthony (Iowa 1973), 204 N.W.2d 829, 833.) It is for this reason, then, that parents may create an enforceable agreement for modification of child support only by petitioning the court for support modification and then establishing, to the satisfaction of the court, that an agreement reached between the parents is in accord with the best interests of the children. See Finley v. Finley (1980), 81 Ill. 2d 317, 329; Hart v. Hart (Mo. App. 1976), 539 S.W.2d 679.”

Any agreement for modifying child support made solely between Steven and Bonnie was unenforceable as a matter of law.

The court in Blisset also discussed the principle of equitable estoppel:

“A claim of equitable estoppel exists where a person, by his or her statements or conduct, induces a second person to rely, to his or her detriment, on the statements or conduct of the first person. (Dill v. Widman (1952), 413 Ill. 448, 455-56.) The party asserting a claim of estoppel ‘must have relied upon the acts or representations of the other and have had no knowledge or convenient means of knowing the true facts’ (Dill, 413 Ill. at 456), and such reliance should be reasonable. Rockford Life Insurance Co. v. Department of Revenue (1986), 112 Ill. 2d 174, 185.” (Blisset, 123 Ill. 2d at 169, 526 N.E.2d at 128.)

In the instant case, the trial court found that no agreement was actually made. Even if an agreement was made, the trial court concluded the agreement could not serve as the basis for equitable relief. We agree.

The trial court was justified in finding that no agreement was made. The only evidence of the agreement was Steven’s testimony concerning the telephone conversation of May 18, 1980. Although Bonnie acknowledged that the transfer of Sandra’s physical custody was made with her consent, she disputed the existence of any agreement concerning child support payments. Moreover, in the years following, Bonnie wrote letters to Steven stating that he had failed to make child support payments, and requesting that he make up the arrearages. The payments she requested in her letters were equivalent to what Steven should have paid for Daniel. That an agreement existed for the transfer of Sandra’s custody is clear from the record. Under a theory of estoppel, Bonnie should not be able to collect child support for Sandra. However, the trial court could properly find that no agreement existed to discontinue child support payments for Daniel based on the facts of this case.

Further, Steven has not shown that his reliance was reasonable, or that it resulted in a detriment to him. In light of Bonnie’s subsequent request for payment of back child support, it was not reasonable for Steven to believe that he had an agreement permitting him to forego his legal obligation. This is especially true in light of Steven’s knowledge and experience in court concerning child support modification matters. Steven had been to court at least three times on the issue of child support. He was well aware of the importance of obtaining court approval of a modification of child support. Also, we are not convinced that Steven may claim that his sole support of Sandra constituted the type of detriment necessary to establish an equitable estoppel claim. Sandra’s counseling was necessary, but this medical expense was one for which he was already obligated under the terms of the divorce decree. While the cause was the sexual abuse that occurred under Bonnie’s roof, the cure was one for which Steven was obligated as Sandra’s parent. The tragedy which occurred to Sandra resulted in the serious need for professional help. Sandra was fortunate in that her father was able to afford the necessary counseling. Nevertheless, this event cannot be used to excuse Steven’s legal obligation to support Daniel. As the court noted, the support level for Daniel was not unreasonable in light of Steven’s income.

The import of Steven’s arguments is that he had an agreement and, if Bonnie was going to change it, she had the responsibility to go to court to do so. This is wrong. The rule in this State is that an enforceable agreement comes through the courts. If Steven wanted to modify the decree, it was his obligation to do so.

Steven also argues Bonnie’s request for back child support should be relieved under the equitable doctrine of laches. Steven argues Bonnie slept on her rights for eight years before filing the instant action to recover back child support. During this time, Steven argues he was harmed by the expense he incurred in providing Sandra with counseling and the other support which would normally have been Bonnie’s responsibility. However, we note the issue of Sandra’s child support was resolved in Steven’s favor. As for Daniel’s support, Steven was not relieved of this responsibility. Steven was put on notice through Bonnie’s letters that she expected the child support for Daniel. Steven’s acceptance of responsibility for Sandra did not relieve him of his responsibility for Daniel.

Steven next argues it was error for the court to find him in contempt. Steven argues the whole situation was brought about by Bonnie, and he should not be held in contempt for a situation which he did not cause. It was Bonnie who first contacted Steven and asked if he would be willing to take Sandra into his household. However, the trial court found Steven in contempt for his failure to pay for Daniel’s support, and the failure to provide any justification for the nonpayment of this support. The trial court was correct. Steven had a legal obligation to support Daniel. The failure to comply with this obligation constitutes contempt for an order of the court. (Ill. Rev. Stat. 1987, ch. 40, par. 505(b).) The court rejected Steven’s equitable claims, leaving him with an unjustified failure to pay child support. We again emphasize that Steven’s actions, with respect to Sandra, were found to relieve him of his responsibility for her support. The obligation for which he is now called to account stems from his failure to pay Daniel’s support.

Next, Steven argues the court should not have allowed Bonnie to receive interest on the child support owed. The allowance of interest is a matter which lies in the sound discretion of the trial court. The court’s determination will not be reversed absent an abuse of discretion. (Finley v. Finley (1980), 81 Ill. 2d 317, 332, 410 N.E.2d 12, 19.) The trial court determined that Steven should pay interest because his income levels for the period 1980 to 1987 indicated an ability to pay. The trial court found Steven’s obligation of $75 per month for Daniel to be an inadequate sum in light of Steven’s income. Also, Steven rests his case on the fact that he took Sandra into his household during her high school years. Following graduation in 1983, she returned to Illinois to live. Yet, Steven failed to pay any child support for Daniel even after Sandra became emancipated. We find the trial court’s determination to impose interest was not an abuse of discretion.

Steven also objects to the award of attorney fees to Bonnie. The trial court found Steven was unjustified in failing to pay support for Daniel, and that Steven should be held responsible for the attorney fees and costs incurred by Bonnie. Section 508(b) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 508(b)) permits the court to award attorney fees where a party has incurred the fees in attempting to enforce a court order and the failure to comply with the order was unjustified. The allowance of attorney fees rests within the discretion of the trial court, and will not be overturned absent an abuse of discretion. (In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1117, 421 N.E.2d 1308, 1315.) Bonnie’s attorney was awarded $2,872 for 38.3 hours of work, along with costs of $117.45. The total award to Bonnie’s attorney was $2,989.45. The requirements of the statute have been met. We find no abuse of discretion in this award.

Finally, Steven argues the court erred in imposing a onetime 20% penalty on the unpaid balance for child support, pursuant to statutory authority. Section 505(d) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 505(d)) provides:

“A one-time charge of 20% is imposable upon the amount of past-due child support owed on July 1, 1988 which has accrued under a support order entered by the court. The charge shall be imposed in accordance with the provisions of Section 10 — 21 of the Illinois Public Aid Code and shall be enforced by the court upon petition.”

Steven argues the penalty was imposed improperly, as there is no evidence that Bonnie received public aid. Steven is correct. The penalty is to be applied according to the provisions of the Illinois Public Aid Code (Ill. Rev. Stat. 1987, ch. 23, par. 1 — 1 et seq.). The clear implication of section 10 — 21 of the Illinois Public Aid Code (Ill. Rev. Stat. 1987, ch. 23, par. 10 — 21) is that a person must be a public aid recipient before this one-time charge of 20% may be imposed. Because Bonnie was not a public aid recipient, the penalty was applied in error. We, therefore, reverse that portion of the order awarding a 20% penalty of $1,320.

For the reasons stated above, the order of the circuit court of Livingston County is reversed insofar as the award of a 20% penalty of $1,320. The remainder of the order is affirmed.

Affirmed in part; reversed in part.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE KNECHT

text:
    GARY TRACY, Plaintiff-Appellant, v. MONTGOMERY WARD & COMPANY et at., Defendants-Appellees.
    Fourth District
    No. 4—89—0334
    Opinion filed January 18, 1990.

      Jerome Mirza & Associates, Ltd., of Bloomington (Eileen M. O’Sullivan, of counsel), for appellant.
    Nathan R. Miller, of Prusak & Winne, Ltd., of Peoria, for appellee HCI Heinz Construction, Inc.
    John L. McCullin and Beth Kemp, both of Brown, James & Rabbitt, P.C., of St. Louis, Missouri, for appellee Montgomery Ward & Company.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff timely filed a tort action alleging defendants breached the Structural Work Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.), proximately causing injury to his back. The circuit court of McLean County granted defendants’ motions for summary judgment and dismissed plaintiff’s complaint with prejudice. Plaintiff appeals. We affirm the judgment of the circuit court.

Defendant HCI Heinz Construction, Inc. (HCI), was general contractor in the construction of a shopping mall in Normal, Illinois. Clifford Kaufman and Sons Construction Company (Kaufman), a subcontrator involved in building the mall, hired plaintiff as a laborer. Plaintiff assisted block and bricklayers, bringing them blocks, bricks, and mortar. The block and bricklayers stood on wood planks that lay across the top of tubular scaffolding.

On October 25, 1980, plaintiff, then 35 years old, was working on construction of Montgomery Ward’s (Ward’s) store. Chauncy James (James), a laborer employed by Kaufman to erect and maintain scaffolding, requested plaintiff and two other laborers assist him in moving an assembled section of scaffolding. The section needed to be turned 90 degrees and moved six to seven feet. While lifting and moving the section, which weighed more than 100 pounds and was 20 to 25 feet tall, plaintiff ruptured the L4-L5 disk in his back.

Plaintiff filed a complaint against defendants alleging the scaffold was not erected and constructed in a safe, suitable, and proper manner, and was not placed and operated so as to give adequate protection to the life and limb of persons employed to work with it, as laborers such as plaintiff were required to move and lift several sections of scaffold which were too heavy and dangerous to move. The complaint alleged defendants wilfully violated the Act. (Ill. Rev. Stat. 1987, ch. 48, pars. 60 through 69.) Plaintiff alleged the wilful violation of the Act by defendants was the proximate cause of his injuries. He sought damages in excess of $15,000 and costs.

Ward and HCI moved for summary judgment in January 1986. On March 10, 1986, Judge Keith Campbell denied defendants’ motions for summary judgment.

Discovery, which occurred primarily during 1985, revealed James, Kaufman’s employee, had control over and responsibility for the scaffolding used by Kaufman employees. James’ supervisor was also a Kaufman employee. The laborers giving depositions testified they believed both Ward and HCI had supervisors at the jobsite each day, but these supervisors never gave orders to Kaufman’s laborers or directed their work. Only one deponent could remember the name of Ward’s supervisor. In a response to interrogatories, Ward claimed it provided no equipment, in the form of scaffolding or ladders, for the project.

HCI moved for reconsideration of the previous order denying summary judgment and again for summary judgment on March 28, 1988. Ward filed a similar motion on April 14, 1988. Plaintiff moved for leave to file an amended complaint on November 9, 1988, while defendants’ motions for reconsideration and for summary judgment were pending. On March 23, 1989, Judge Dozier granted defendants’ motions for summary judgment and denied plaintiff leave to file an amended complaint.

Plaintiff filed a motion for reconsideration and for leave to file an amended complaint on April 13, 1989. On April 20, 1989, Judge Caisley allowed plaintiff to file the amended complaint first proposed on November 9, 1988, and then applied the summary judgment motions granted March 23, 1989, to the amended complaint. Plaintiff filed a timely notice of appeal.

Plaintiff raises several issues on appeal. First, he argues the circuit court should not have granted defendants’ motions for reconsideration of the first decision denying summary judgment because defendants presented no new facts which would alter the basis of the first decision. Next, plaintiff contends defendants were not entitled to summary judgment as a matter of law. Finally, plaintiff argues defendants were in charge of the work and wilfully violated the Act.

We begin with the first issue raised. Judge Campbell denied defendants’ motions for summary judgment in March 1986. Two years later defendants moved for reconsideration of Judge Campbell’s order. Judge Dozier granted summary judgment for defendants. Plaintiff notes summary judgment is a drastic means of disposing of a case and should be granted only when the right to summary judgment of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) Because two judges reached opposite conclusions on the summary judgment motions, plaintiff argues the decision was not clear and free from doubt and thus the court should not have granted defendants’ motions.

The Illinois Supreme Court has repeatedly held:

“[T]he circuit court has the inherent power to modify or vacate an interlocutory order granting summary judgment any time before final judgment. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 121; Leopold v. Levin (1970), 45 Ill. 2d 434, 446; Fort Dearborn Lodge No. 214 v. Klein (1885), 115 Ill. 177, 181.) It is true that this court has disapproved of one judge reviewing interlocutory orders entered by another judge where there is evidence of bad faith or ‘judge shopping’ by the party who obtains an adverse ruling.” (Rowe v. State Bank (1988), 125 Ill. 2d 203, 213-14, 531 N.E.2d 1358,1363.)

Defendants in the Rowe case moved for summary judgment, and the circuit court denied the motion. Later, the defendants moved for reconsideration of the denial of their prior motion for summary judgment. The circuit court, a different judge, granted the motion. The case had been reassigned to a second judge pursuant to an administrative order establishing criminal and civil divisions within the circuit.

The record on appeal in this case indicates the change in judges was the result of a rotation of judges in the circuit. We find no evidence of bad faith or “judge shopping” in defendants’ motions for reconsideration and for summary judgment. We must next determine whether defendants were entitled to summary judgment as a matter of law.

“It is well settled that summary judgment is appropriate where the pleadings, depositions and affidavits show that there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law.” Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421, 512 N.E.2d 1223, 1224. See also Ill. Rev. Stat. 1987, ch. 110, par. 2—1005.

The parties do not dispute the cause or extent of plaintiff’s injury. There are no issues of fact. Instead there are legal issues: whether moving scaffolding is an activity covered by the Act, whether defendants were in charge of plaintiff’s work, and whether defendants wilfully violated the Act. These questions require statutory construction and are thus issues of law to be resolved by the court. Vuletich, 117 Ill. 2d at 423, 512 N.E.2d at 1225.

“A cause of action for a violation of the Act consists of seven elements: (1) the plaintiff must have been involved in a construction activity covered by the Act; (2) the activity was being performed with reference to a structure covered by the Act; (3) a scaffold or other mechanical device as defined by the Act was being used in the activity; (4) the scaffold or device was unsafe, or not safely placed or operated; (5) the unsafe condition proximately caused plaintiffs injury; (6) the defendant had charge of the work, as that phrase has been interpreted under the Act; and (7) the defendant wilfully violated the Act.” Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 488, 531 N.E.2d 51, 55.

Plaintiff argues the activity he engaged in, moving the scaffold, is within the scope of the Act. He contends the scaffold moved was in a dangerous condition because the planking across the top was not attached to the scaffold. This made the scaffold top-heavy and unwieldy. It was impossible to keep it evenly balanced. Further, had the scaffold tipped, the planks would have fallen and might have hit the plaintiff.

“The cases have consistently required that: (1) the danger involved in the use of the alleged support device be one which the legislature was attempting to alleviate (see, e.g., Louis v. Barenfanger, 39 Ill. 2d at 450; Ashley v. Osman & Associates, Inc. (1983), 114 Ill. App. 3d 293, 298), and (2) the injury suffered be connected with the hazardous nature of the devices itemized in the Act. (Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 371; Smyrniotis v. Brockob Construction Co. (1986), 142 Ill. App. 3d 340, 343; Cooley v. Central Illinois Public Service Co. (1982), 110 Ill. App. 3d 685, 691.) In other words, both the danger and the defect must relate to the function of the device as a support. (See Gill v. Parcable, Inc. (1985), 138 Ill. App. 3d 409, 414; St. John v. City of Naperville, 108 Ill. App. 3d at 524.) The risks of using support devices include the possibility that workers or materials may fall from them, or that the supports themselves may collapse. See, e.g., Tenenbaum v. City of Chicago, 60 Ill. 2d at 371; Langley v. J.L. Simmons Contracting Co., 152 Ill. App. 3d at 903; Page v. Corley Cos., 131 Ill. App. 3d at 59.” Dvorak v. Primus Corp. (1988), 168 Ill. App. 3d 625, 631, 522 N.E.2d 881, 885.

Given the facts of this case, we conclude that moving the scaffold was not activity covered by the Act. This does not mean, however, that the Act will never apply to moving a scaffold. The facts of this case simply do not support such a decision. The record on appeal contains no evidence of a defect in the scaffold plaintiff lifted and moved. Nor does the record support plaintiff’s assertion that the scaffold tipped in his direction. Defendants were entitled to summary judgment as a matter of law. Because we have reached this conclusion, we need not address the two remaining issues plaintiff raises. Judgment of the McLean County circuit court is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE COUNTY OF TAZEWELL, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ruth Morris et al., Appellees).-R.A. CULLINAN & SONS, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ruth Morris et al., Appellees).
    Fourth District (Industrial Commission Division)
    Nos. 4—89—0170WC, 4—89—0201WC cons.
    Opinion filed December 29,1989.
    Rehearing denied February 21, 1990.

      Quinn, Johnston, Henderson & Pretorius, of Peoria (John J. Waldman and Charles D. Knell, of counsel), for County of Tazewell.
    Nathan R Miller, of Prusak & Winne, Ltd., of Peoria, for R.A. Cullinan & Sons, Inc.
    James Walker, Ltd., of Bloomington, for appellee Ruth Morris.
   JUSTICE WOODWARD

delivered the opinion of the court:

Ruth Morris (Ruth), widow of Ernest Morris (Ernest), filed a separate application for adjustment of claim against each of the respondents, R.A. Cullinan & Sons, Inc. (Cullinan), and the County of Tazewell (Tazewell). These claims against Cullinan and Tazewell were eventually joined. Ernest was found dead at the wheel of a snowplow that he had been driving on April 9, 1982. The arbitrator found that there was no causal connection between Ernest’s death and his employment. Having so found, the arbitrator did not rule on the issue of whether Tazewell was a borrowing employer and Cullinan a loaning employer. The Industrial Commission (Commission) modified the arbitrator’s decision, finding that Ernest’s death arose out of and in the course of his employment and that Tazewell was a borrowing employer and Cullinan was a loaning employer. The circuit court of McLean County confirmed the Commission’s decision.

Ruth Morris testified to the following at the arbitration hearing. Ernest had worked for over 30 years as a truck driver for Cullinan. Due to a severe snowstorm, Ernest had been plowing snow in a Cullinan truck fitted with a snowplow in the days preceding his death on April 9, 1982. Tazewell records admitted into evidence showed that Ernest drove a snowplow for eight hours on April 5, eight hours on April 6, and 13V2 hours on April 8. Ruth testified that on April 8, Ernest arrived home at 8 p.m. He fell asleep immediately on the couch, which was not his usual custom. Ruth awoke Ernest for dinner, after which he returned to sleep on the couch, again contrary to his usual custom. He arose at 3:30 a.m. on April 9 to return to snow plowing. He normally arose at 5:30 a.m. to prepare for work. Ruth noticed that on the evening of April 8, Ernest looked extraordinarily tired when he came home from work. Ruth testified that Ernest did not customarily work in excess of 12 hours, return home at 8 p.m., and then return to work less than eight hours later.

An April 13, 1982, autopsy report, which had been prepared by Dr. Robert Gregorski, was admitted into evidence. Dr. Gregorski determined the cause of Ernest’s death “to be probably due to cardiac arrhythmia secondary to cor bovinum (enlarged heart). The heart also showed evidence of old healed rehematic [sic] heart disease with mitral insufficiency.”

Ernest’s regular physician, Dr. Daniel Baer, testified via an evidence deposition taken October 1, 1984. Dr. Baer, a board-certified family practitioner, first treated Ernest in October 1979. Dr. Baer stated that at each examination he found Ernest to have cardiac arrhythmia (irregular heartbeat), he prescribed several medications, Lanoxin and Lasix, to deal with Ernest’s heart disease and its symptoms. Dr. Baer last saw Ernest on January 11, 1982, at which time his heart condition was stable.

Dr. Baer opined that stress could exacerbate cardiac arrhythmia. He also stated that Ernest’s employment as a snow-plow driver could have aggravated his heart condition and, therefore, could have caused his death.

Dr. David Best, a board-certified cardiologist, testified to the following on behalf of respondents. Ernest died because the electrical activity of his heart “became chaotic and did not effectively send impulses to the heart which would allow it to beat in a fashion that would support life.” Ernest’s death could have occurred at any time, even during periods of inactivity. An enlarged heart such as Ernest’s was prone to developing lethal cardiac arrhythmia. Ernest’s smoking did not lead to an enlargement of his heart, but his alcohol consumption may have led to its enlargement. Dr. Best described Ernest as being moderately overweight, a condition which did not cause his enlarged heart.

On cross-examination, Dr. Best stated that he had never examined Ernest. Dr. Best stated that the enlarged heart was caused by an underlying mitral valve disease that Ernest had had for a number of decades. Dr. Best opined that “it would seem that [Ernest] would have had increased fatigue” on the evening of April 8 and the morning of April 9. Dr. Best further stated that such fatigue could or might have been one of the causative factors in the onset of cardiac arrhythmia that Ernest sustained on April 9.

Tazewell initially argues that the Commission’s finding that Ernest’s employment caused his death was against the manifest weight of the evidence. We disagree.

It is the Commission’s duty to determine the facts and to determine whether there was a causal relationship between the employment and the injury. (County of Cook v. Industrial Comm’n (1977), 69 Ill. 2d 10.) Where the medical evidence is conflicting as to causation, it is for the Commission to determine which testimony is to be accepted. (Illinois Valley Irrigation, Inc. v. Industrial Comm’n (1977), 66 Ill. 2d 234.) The Commission is entitled to draw reasonable inferences from both direct and circumstantial evidence. Reviewing courts will not disregard those permissible inferences merely because other inferences might be drawn. Beloit Foundry v. Industrial Comm’n (1976), 62 Ill. 2d 535.

Contrary to respondent’s assertions that the Commission’s decision is not supported by the evidence, we find the evidence clearly indicates that Ernest’s cardiac arrhythmia was caused in part by fatigue related to excessive exertion while plowing snow. Both medical experts, Dr. Baer and Dr. Best, opined that the snow plowing Ernest performed on April 8 could have led to excessive fatigue which, in turn, could have or might have been a contributing factor to his state of ill being. This evidence is analogous to the evidence relied upon by our supreme court in County of Cook v. Industrial Comm’n (1977), 69 Ill. 2d 10, to uphold an award of compensation to a worker whose heart attack was due in part to his employment.

Moreover, the evidence shows that Ernest’s work schedule on April 8 and 9 was substantially different than his regular course of daily work. He had plowed snow 13V2 hours on the 8th, and after an abbreviated and irregular night of sleep, returned to work earlier than was usual for him to continue plowing his assigned roads on the 9th. This work activity was therefore distinguished from Ernest’s usual work day. As such, the Commission reasonably inferred that he was subjected to a greater degree of stress than that to which he was normally exposed, and this stress constituted a contributing factor, which aggravated his cardiac arrhythmia. County of Cook, 69 Ill. 2d at 19.

We find that the Commission’s decision that Ernest’s employment contributed in part to his condition of ill-being is not against the manifest weight of the evidence.

Respondent Tazewell next argues that the Commission erred in finding that it was a borrowing employer. Initially, we note that the issue of whether an employee has been borrowed by a second employer is a question of fact to be determined by the Commission. (M & M Electric Co. v. Industrial Comm’n (1974), 57 Ill. 2d 113, 117.) A court of review will not disturb the Commission’s finding on this question unless contrary to the manifest weight of the evidence. The test for determining the loaned employee’s status consists of two elements, namely, (1) whether Tazewell had the right to direct and control the manner in which Ernest performed the work; and (2) whether there existed a contract of hire between Ernest and Tazewell. The existence of a loaned employee situation is generally a question of fact to be determined by the Commission. A.J. Johnson Paving Co. v. Industrial Comm’n (1980), 82 Ill. 2d 341, 348.

Jack Moser testified on behalf of respondent Cullinan, where he was employed as corporate secretary in charge of data processing and payroll. He stated that the agreement between Tazewell and Cullinan for snow removal was strictly oral and had been in effect for approximately 30 years. The agreement called for Cullinan to provide a truck and driver to plow snow on county roads. Tazewell owned and supplied the plow and paid to mount it on the Cullinan truck. Tazewell also supplied the salt that was spread on the roads. Cullinan paid the driver and was reimbursed by Tazewell for the driver's services and a fee for truck usage.

Mr. Moser further testified that Cullinan did not have an employee who oversaw the driver’s snow plowing assignments, which were made by Tazewell. Conversely, Tazewell had an employee whose job it was to supervise plowing the county’s roads. Tazewell told the drivers when to commence plowing, when to apply salt, and how many hours to work. Ernest’s regular work for Cullinan consisted of driving trucks, primarily to deliver loads of “hot mix.”

On cross-examination, Mr. Moser testified that a driver was told by Tazewell which road he would plow during the winter season. Cullinan carried insurance on the truck used for snow plowing.

■ Terry Gardner testified that he was Tazewell’s superintendent of highways. He arranged with Cullinan to have certain roads plowed. The agreement for said services was oral and commenced prior to his tenure with Tazewell. The agreement provided that Cullinan would furnish a truck and driver to plow certain portions of the county’s roadways. The agreement was renegotiated each year, as the roads to be plowed by Cullinan changed from year to year. By the winter of 1981-82, due to Tazewell’s purchase of snow plowing equipment, Cullinan’s position was reduced to that of providing a backup snow plowing unit. In December 1981, one of Tazewell’s trucks was damaged, and Tazewell requested that Cullinan furnish a truck and driver for the rest of the winter. Additionally, Mr. Gardner stated that Ernest was never paid directly by Tazewell, nor did the county ever withhold social security, Federal or State income tax from any payments made to Cullinan for services rendered. No county trucks were ever driven by Cullinan employees. Tazewell had no say as to which driver Cullinan furnished.

On cross-examination, Mr. Gardner admitted that Tazewell controlled the snow removal process, which was supervised by one of his assistants.

Tazewell argues that the record provides no support for a finding that it exercised the type and quality of control which should be required to make it a borrowing employer. Tazewell contends that the record discloses that Ernest was merely told which roads to plow whenever there was a snowstorm. Tazewell further maintains that the record does not establish whether Ernest actually received instructions directly from Tazewell rather than Cullinan. Thus, Tazewell argues that this case is akin to cases in which an employee, in the course of special service, was not controlled by a second employer but merely responded to the instructions of his employer’s customer.

Contrary to these assertions, the evidence demonstrates that Tazewell had the right to direct and control the manner in which Ernest performed the work. Tazewell determined when Ernest would plow snow and it set out the particular area which Ernest plowed. Moreover, Tazewell owned the blade used in the plowing of snow and paid for mounting the blade on the Cullinan truck. No evidence indicated that Cullinan directed or controlled Ernest’s work as he plowed snow for Tazewell. The fact that Cullinan paid Ernest and was reimbursed by Tazewell is a mere bookkeeping technicality and, in this instance, has no bearing upon the substance of this issue.

As to the second element of the test, i.e., whether a contract existed between Tazewell and Ernest, there is no dispute that there was an oral arrangement between Cullinan and Tazewell whereby Cullinan would furnish a truck and driver to plow assigned areas in the county.

Critical to the employment relationship between Ernest and Tazewell is the existence of an employment contract, express or implied. (Johnson Paving, 82 Ill. 2d 341.) To establish such a contract, there must be at least an implied acquiescence by the employee in the relationship. (Johnson Paving, 82 Ill. 2d 341.) The evidence indicates: that Ernest was aware the snow plowing was being performed by Tazewell; that he accepted Tazewell’s control over his work; and that he followed Tazewell’s instructions as to what roads to plow, when to plow the roads, and when to stop plowing the roads. The evidence clearly demonstrates Ernest’s acquiescence in the relationship.

Tazewell cites Mosley v. Northwestern Steel & Wire Co. (1979), 76 Ill. App. 3d 710, for the proposition that a person cannot become an employee of the second employer unless the second employer has the power to discharge or fire the employee. Contrary to this assertion, the case law demonstrates that said power to discharge is but one of the factors to be considered in determining employer liability. See Johnson Paving, 82 Ill. 2d at 347-48.

Moreover, Tazewell argues that an employee in the special service of a second employer cannot be considered a loaned servant unless he is wholly free from the first employer and wholly subject to the control of the second employer. (Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825.) Tazewell’s reliance on Richard is misplaced. Richard is a personal injury case, involving negligence of a loaned employee, rather than a workers’ compensation action. In Johnson Paving, our supreme court stated:

“We have long recognized the borrowed-employee doctrine as being applicable to cases arising under the Workmen’s Compensation Act. [Citations.] In so recognizing we have also deemed in compensation cases the most dominant circumstance in identifying the employer *** to be the right to control the manner in which the work is to be done. [Citations.]” (Emphasis added.) (Johnson, 82 Ill. 2d at 347.)

Clearly, the standard put forward in Richard and relied upon by Tazewell is not applicable in workers’ compensation actions.

For reasons stated above, we find that the Commission’s decision that Tazewell was the borrowing employer is not against the manifest weight of the evidence.

Accordingly, we affirm the judgment of the circuit court.

Affirmed.

BARRY, P.J., and McNAMARA, McCULLOUGH, and LEWIS, JJ., concur.