Opinion · Appellate Court of Illinois
Lutkauskas v. Ricker
2013 IL App (1st) 121112
- Type
- Opinion
- Court
- Appellate Court of Illinois
- Jurisdiction
- Illinois
- Date
- 2013-11-22
- Topic
- litigation
ILLINOIS OFFICIAL REPORTS Appellate Court Lutkauskas v. Ricker, 2013 IL App (1st) 121112 Appellate Court ANTHONY LUTKAUSKAS, TAXPAYER FOR AND ON BEHALF OF Caption LEMONT-BROMBEREK COMBINED SCHOOL DISTRICT 113A, Plaintiff-Appellant, v. DR. TIMOTHY RICKER, ROBERT BECKWITH, JOHN WOOD, DR. MARY GRICUS, LISA WRIGHT, KEVIN DOHERTY, DAVID LEAHY, GWEN O’MALLEY, SUE MURPHY, AL ALBRECHT, UNDERWRITERS AT LLOYD’S, LONDON, KNUTTE ASSOCIATES P.C.
Citator
UpLaw has not yet analyzed Lutkauskas v. Ricker. The absence of a flag is not a finding that it is good law.
- Cited by
- 5 opinions
ILLINOIS OFFICIAL REPORTS
Appellate Court
Lutkauskas v. Ricker, 2013 IL App (1st) 121112
Appellate Court ANTHONY LUTKAUSKAS, TAXPAYER FOR AND ON BEHALF OF
Caption LEMONT-BROMBEREK COMBINED SCHOOL DISTRICT 113A,
Plaintiff-Appellant, v. DR. TIMOTHY RICKER, ROBERT BECKWITH,
JOHN WOOD, DR. MARY GRICUS, LISA WRIGHT, KEVIN
DOHERTY, DAVID LEAHY, GWEN O’MALLEY, SUE MURPHY,
AL ALBRECHT, UNDERWRITERS AT LLOYD’S, LONDON,
KNUTTE ASSOCIATES P.C. AND OTHER PERSONS WHOSE
NAMES ARE NOT YET KNOWN, Defendants-Appellees.–LAURA
REIGLE, DUANE BRADLEY, LOUIS EMERY, AND JANET
HUGHES, TAXPAYERS FOR AND ON BEHALF OF LEMONT
BROMBEREK COMBINED SCHOOL DISTRICT 113A, Plaintiffs-
Appellants, v. DR. TIMOTHY RICKER, ROBERT BECKWITH, JOHN
WOOD, DR. MARY GRICUS, LISA WRIGHT, KEVIN DOHERTY,
DAVID LEAHY, GWEN O’MALLEY, SUE MURPHY, AL
ALBRECHT, UNDERWRITERS AT LLOYD’S, LONDON, KNUTTE
ASSOCIATES P.C. AND OTHER PERSONS WHOSE NAMES ARE
NOT YET KNOWN, Defendants-Appellees.
District & No. First District, Fourth Division
Docket No. 1-12-1112
Filed September 30, 2013
Rehearing denied November 18, 2013
Held The trial court’s dismissal of a complaint against two employees of a
(Note: This syllabus school district and seven members of the school board alleging that
constitutes no part of section 20-5 of the School Code was violated when money from the
the opinion of the court district’s working cash fund was spent without a school board resolution
but has been prepared approving the transfer of funds from the working cash fund was affirmed,
by the Reporter of since plaintiffs failed to allege that the money was spent for anything
Decisions for the other than legitimate school expenses, and in the absence of such
convenience of the allegations, plaintiffs did not have standing under section 20-5 to recover,
reader.)
on behalf of the district, money transferred without a board resolution.
Decision Under Appeal from the Circuit Court of Cook County, Nos. 11-CH-35191, 10-
Review CH-53428, 10-CH-53429; the Hon. LeRoy K. Martin, Jr., Judge,
presiding.
Judgment Affirmed.
Counsel on Natalie Brouwer Potts, of Center for Open Government, Law Offices of
Appeal IIT Chicago-Kent College of Law, and Clinton A. Krislov, of Krislov &
Associates, Ltd., of Chicago, for appellants.
Raymond J. Jast and Kimberly E. Blair, both of Wilson, Elser,
Moskowitz, Edelman & Dicker LLP, of Chicago, for appellee Certain
Underwriters at Lloyd’s London.
Thomas F. Falkenberg, Alyssa M. Reiter, and Kirstin B. Ives, all of
Williams Montgomery & John Ltd., of Chicago, for appellee Knutte &
Associates, P.C.
Edward M. Kay, Paige M. Neel, and Mark J. Sobczak, all of Clausen
Miller P.C., for appellee Timothy Ricker.
Justino D. Petrarca, Kevin B. Gordon, and James A. Petrungaro, all of
Scariano, Himes & Petrarca, Chtrd., of Chicago, for other appellees.
-2-
Panel JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
Justice Fitzgerald Smith concurred in the judgment and opinion.
Justice Pucinski dissented, with opinion.
OPINION
¶1 In this consolidated appeal, five taxpayer plaintiffs, acting on behalf of the Lemont
Bromberek Combined School District 113A, seek reversal of the circuit court’s dismissal of
their claims brought against two school district employees, seven school board members, the
district’s accounting firm, and the district’s surety. Plaintiffs alleged that the district
employees and board members violated section 20-5 of the School Code (105 ILCS 5/20-5
(West 2010)) when they engaged in or permitted a pattern of spending money from the
district’s working cash fund without a school board resolution approving the transfer of funds
from the working cash fund. For the reasons that follow, we affirm.
¶2 BACKGROUND
¶3 Article 20 of the School Code
¶4 Plaintiffs’ complaints center on a violation of article 20 of the School Code, which
authorizes certain school districts to create working cash funds. See 105 ILCS 5/20-1 (West
2010). The working cash fund allows a district to “have in its treasury at all time sufficient
money to meet demands thereon for expenditures for corporate purposes” before the district
receives taxes designated for those purposes. Id.
In other words, “the purpose of the working
cash fund is to provide a reserve upon which school districts may draw in anticipation of tax
collections.” In re Application of Walgenbach, 104 Ill. 2d 121, 125
(1984). To fund the
working cash fund, the district “may incur an indebtedness and issue bonds as evidence
thereof” (105 ILCS 5/20-2 (West 2010)) or may levy taxes (105 ILCS 5/20-3 (West 2010)).
Money from the working cash fund “may be used by the school board for any and all school
purposes and may be transferred in whole or in part to the general funds or both of the school
district and disbursed therefrom in anticipation of the collection of taxes lawfully levied for
any or all purposes.” 105 ILCS 5/20-4 (West 2010). When the district receives taxes as
anticipated, “the fund shall immediately be reimbursed therefrom until the full amount so
transferred has been retransferred to the fund.” Id.
Under Section 20-5 of the School Code,
the board must pass a resolution directing the transfer of monies from the working cash fund:
“Moneys in the working cash fund shall be transferred from the working cash fund
to another fund of the district only upon the authority of the school board which shall
from time to time by separate resolution direct the school treasurer to make transfers of
such sums as may be required for the purposes herein authorized.” 105 ILCS 5/20-5
(West 2010).
-3-
Section 20-5 sets forth specific information to be contained within the resolution (e.g., “the
taxes in anticipation of which [a] transfer is to be made and from which the working cash
fund is to be reimbursed”). See id.
¶5 Section 20-10 allows a school district to abate the working cash fund at any time, by
adoption of a resolution, and “direct the transfer at any time of moneys in that fund to any
fund or funds of the district most in need of the money.” 105 ILCS 5/20-10 (West 2010).
Similarly, section 20-8 allows a district to abolish its working cash fund, by adoption of a
resolution, and “direct the transfer of any balance in such fund to the educational fund at the
close of the then current school year.” 105 ILCS 5/20-8 (West 2010).
¶6 Original Taxpayer Complaints
¶7 On December 17, 2010, four taxpayer plaintiffs filed two separate, but nearly identical,
lawsuits, which were subsequently consolidated into one action. Hughes brought the first
complaint and Reigle, Bradley, and Emery brought the second. The lawsuits named as
defendants the district superintendent, the district treasurer, and seven school board members
(collectively, the district defendants) in their individual capacities.
¶8 Plaintiffs alleged that the district defendants violated section 20-5 of the School Code,
when they repeatedly transferred (or allowed the transfer of) money from the district’s
working cash fund without board resolution. Plaintiffs alleged that between 2007 and 2010,
the district spent in excess of the amounts allocated to a number of individual funds that
provide capital for the district’s annual activities. To make up for shortfalls in these funds,
the district drew money from the working cash fund. Plaintiffs further alleged that the district
defendants never reimbursed the working cash fund, and instead the school board passed
resolutions to abate and abolish the working cash fund. On December 2, 2009, members of
the board passed a resolution to partially abate the working cash fund in the amount of
$4,849,442, leaving a remainder of $643,500. On April 28, 2010, the board approved a
resolution to abolish the working cash fund, with the money to be permanently transferred
to the education fund.
¶9 Plaintiffs sought relief under section 20-6 of the School Code, which provides:
“Any member of the school board of any school district to which this Article is
applicable, or any other person holding any office, trust, or employment under such
school district who wilfully violates any of the provisions of this Article shall be guilty
of a business offense and fined not exceeding $10,000, and shall forfeit his right to his
office, trust or employment and shall be removed therefrom. Any such member or other
person shall be liable for any sum that may be unlawfully diverted from the working cash
fund or otherwise used, to be recovered by such school district or by any taxpayer in the
name and for the benefit of such school district in an appropriate civil action; provided
that the taxpayer shall file a bond for all costs and be liable for all costs taxed against the
school district in such suit, and judgment shall be rendered accordingly. Nothing herein
shall bar any other remedies.” 105 ILCS 5/20-6 (West 2010).
Under the authority of section 20-6, plaintiffs sought an order declaring the district
defendants forfeit their offices and employment with the district, assessing a $10,000
-4-
statutory fine against each of the district defendants, and entering judgment against the
defendants personally for “an amount sufficient to make [the district] whole and replace the
public funds shown by the evidence to have been unlawfully diverted” from the working cash
fund.
¶ 10 Along with these claims, plaintiffs brought a single count for “accountant negligence”
against the district’s former accountant, Knutte and Associates, alleging that Knutte issued
clean audit reports, but knew or should have known of the district defendants’ transfer of
funds in violation of the School Code. Plaintiffs also brought claims against an entity
affiliated with Certain Underwriters at Lloyd’s London (Underwriters), the surety that
bonded the school treasurer. Plaintiffs alleged that the surety was obligated to pay damages
caused to the district by the treasurer’s “failure to faithfully discharge the duties of his office
according to law.”
¶ 11 On July 27, 2011, the circuit court struck the claims against the district defendants with
leave to replead. Judge Novak ruled that plaintiffs did not have standing to seek criminal
penalties prescribed in section 20-6, and as to any civil recovery, the court ruled that the
allegations were insufficient to allege a violation of section 20-5. The court dismissed the
claims against Knutte with prejudice, finding that plaintiffs did not have standing to bring
the claim. Pursuant to Illinois Supreme Court Rule 304(a) (eff. Jan. 1, 2006), the court ruled
that there was no just cause to delay appeal of the claim against Knutte. The surety was
apparently not properly named as a defendant, and plaintiffs later voluntarily dismissed their
complaints against the improperly named entity.
¶ 12 The First Amended Consolidated Complaint
and the Lutkauskas Complaint
¶ 13 On August 29, 2011, plaintiffs filed a first amended consolidated complaint, again
alleging that the district defendants violated article 20 of the School Code, but adding a
breach of fiduciary duty claim against the district defendants. Plaintiffs restated their claims
against the properly named entity for the surety, Underwriters at Lloyd’s. On October 11,
2011, a fifth taxpayer plaintiff, Lutkauskas, filed his complaint, which was later consolidated
with the other two taxpayer complaints. The Lutkauskas complaint was identical to the first
amended consolidated complaint of the other plaintiffs, but added new claims against Knutte
for accounting malpractice, negligence, breach of fiduciary duty, and aiding the district
defendants in violating the School Code.
¶ 14 Both the amended consolidated complaint and the Lutkauskas complaint provided
additional detail regarding the alleged illegal transfer of funds. Specifically, plaintiffs alleged
“[i]t appears that the District monies, though specifically appropriated to specific
funds/purposes, were held in a commingled account. Thus, when money was spent beyond
the legal appropriation for a particular fund, it actually drained or diverted the Working Cash
Fund, without the appropriate Board Action and documentation for such dispersions.” The
complaint also cited email correspondence among the district defendants purporting to show
that they were aware that the working cash funds were being used between 2007 and 2010
without board resolutions approving any transfers.
-5-
¶ 15 On March 15, 2012, the district defendants and Underwriters at Lloyd’s moved to dismiss
plaintiffs’ first amended consolidated complaint and the Lutkauskas complaint. Knutte filed
a motion to dismiss the Lutkauskas complaint. The trial court granted these motions. While
the defendants asserted various bases on which to dismiss the complaints, Judge Martin ruled
that plaintiffs’ complaint failed to state a claim and the district defendants had legislative
immunity. Judge Martin also stated that plaintiffs were “basically arguing a windfall” and
that “nothing in the complaint *** would tell the reader that money was used for some
purpose other than for school purposes.” As a result, the court ruled that Underwriters at
Lloyd’s had no liability as surety and dismissed the complaints against it. With respect to
Knutte, the circuit court dismissed Lutkauskas’s claims with prejudice on the basis of res
judicata. Plaintiffs appealed.
¶ 16 ANALYSIS
¶ 17 Defendants moved to dismiss under sections 2-619 and 2-615 of the Code of Civil
Procedure (735 ILCS 5/2-615, 2-619 (West 2010)). A motion to dismiss under section 2-615
of the Code (735 ILCS 5/2-615 (West 2010)) challenges the legal sufficiency of the
complaint. Wakulich v. Mraz, 203 Ill. 2d 223, 228
(2003). Section 2-619 of the Code of Civil
Procedure allows dismissal where, in pertinent part, plaintiff does not have standing to bring
an action. 735 ILCS 5/2-619(2) (West 2010).
¶ 18 We review the circuit court’s dismissal of plaintiffs’ complaints de novo. Feltmeier v.
Feltmeier, 207 Ill. 2d 263, 266
(2003). This court may affirm the circuit court’s dismissal for
any reason appearing in the record. See Gunthorp v. Golan, 184 Ill. 2d 432, 438
(1998) (the
trial court may be affirmed on any basis in the record without regard to whether the trial court
relied upon that ground or whether the trial court’s rationale was correct); Geick v. Kay, 236 Ill. App. 3d 868, 873
(1992) (although the trial court’s order did not specify whether the
counts were being dismissed under section 2-615 or section 2-619, the reviewing court may
affirm a correct decision for any reason appearing in the record, regardless of the basis relied
upon by the trial court); Mitsias v. I-Flow Corp., 2011 IL App (1st) 101126, ¶ 47
(appellate
court has jurisdiction to consider issue not reached by circuit court on motion to dismiss,
where issue was properly raised in the circuit court but court granted motion to dismiss on
another basis).
¶ 19 On appeal, defendants raise a host of arguments in support of affirming the district
court’s dismissal of the taxpayers’ complaints. Defendant Timothy Ricker filed a brief on his
own behalf, arguing that: (1) plaintiffs are not entitled to any relief because the district did
not suffer any monetary damages and any recovery would constitute an unjust windfall; (2)
the breach of fiduciary duty claims fail because plaintiffs have not alleged damages; (3)
plaintiffs lack standing to seek criminal penalties prescribed in section 20-6; (4) legislative
immunity bars any claim against Ricker; (5) plaintiffs failed to plead a cause of action under
section 20-6 or for breach of fiduciary duty; (6) claims in the Lutkauskas complaint are time-
barred; (7) plaintiffs lack standing to bring the instant case because they never demanded the
district bring the action itself; and (8) plaintiffs’ complaints were properly dismissed because
they fail to name an indispensable party. The remaining district defendants raise many of the
-6-
same arguments, but also argue that (1) claims against certain district defendants should be
dismissed because none of the allegations in the complaint as to the working cash fund
transfers were directed at these individuals; and (2) the claims should be dismissed against
the school district defendants in their individual capacities. Defendant Knutte asserts that the
trial court properly dismissed all counts against it by Lutkauskas based on the doctrine of res
judicata. Finally, defendant Underwriters at Lloyd’s raises several arguments as to why it has
no obligation to pay under the treasurer bond, assuming that any of the allegations against
defendant Beckwith are not dismissed for other reasons.
¶ 20 Claims Against the District Defendants
¶ 21 Among the various arguments raised in support of dismissal by the district defendants,
we need only address two narrow issues relating to the remedies sought by the taxpayer
plaintiffs against the district defendants.
¶ 22 In their complaints, plaintiffs first ask the court to fine each of the defendants and order
their removal from office under the first sentence of section 20-6:
“Any member of the school board of any school district to which this Article is
applicable, or any other person holding any office, trust, or employment under such
school district who wilfully violates any of the provisions of this Article shall be guilty
of a business offense and fined not exceeding $10,000, and shall forfeit his right to his
office, trust or employment and shall be removed therefrom.” 105 ILCS 5/20-6 (West
2010).
The district defendants argue that the forfeiture of office and fines prescribed in the first
sentence of section 20-6 are penalties only the State of Illinois can impose. In its July 27,
2011 ruling dismissing Reigle’s and Hughes’ original complaints, the circuit court agreed.
Judge Novak held that only an appropriate government actor, not taxpayer plaintiffs, would
have standing to pursue these remedies under the statute. The Lutkauskas complaint, which
postdated the July 27, 2011 dismissal decision, also sought forfeiture and fines from
defendants. In dismissing the Lutkauskas complaint, Judge Martin agreed with Judge
Novak’s ruling, stating that the School Code “contemplate[s] the State’s Attorney or the
[Attorney General’s] office really being the entity to bring a cause of action and look for
penalties or removal from office.”
¶ 23 When considering the proper construction of section 20-6, we strive to “ascertain and
give effect to the legislature’s intent.” See, e.g., Citizens Opposing Pollution v. ExxonMobil
Coal U.S.A., 2012 IL 111286, ¶ 23
(citing In re Donald A.G.,221 Ill. 2d 234, 246
(2006)).
“The best indication of this intent remains the language of the statute itself, which must be
given its plain and ordinary meaning.” Id.
We presume that the legislature did not intend
absurdity, inconvenience, or injustice. Id.
¶ 24 In this case, we agree with the circuit court that the first sentence of section 20-6 sets
forth criminal penalties. The first sentence of section 20-6 speaks to a party “guilty of a
business offense.” 105 ILCS 5/20-6 (West 2010). The term “business offense” is specifically
defined in the Unified Code of Corrections. See 730 ILCS 5/5-1-2 (West 2008) (“ ‘Business
Offense’ means a petty offense for which the fine is in excess of $1,000.”). Our supreme
-7-
court has described the specific penalties imposed in section 20-6 (a “fine” and “forfeit[ure]”
of the “right to office”) as criminal in nature. See In re Walgenbach, 104 Ill. 2d 121, 125
(1984) (stating that section 20-6 “provides for criminal sanctions against any member of a
school board who wilfully violates the provisions of article 20”). And we have recognized
that the General Assembly may seek to enforce compliance with a statute by specifying that
a violation constitutes a “business offense,” which we described as a “criminal penalty.” See
Parra v. Tarasco, Inc., 230 Ill. App. 3d 819, 823
(1992) (noting that Illinois Choke-Saving
Methods Act imposed a “criminal penalty,” where it provided that anyone violating it “is
guilty of a business offense and shall be fined $500” ).
¶ 25 In response, plaintiffs claim that they “are asking for–and entitled to–forfeiture of office
by the District 113A Defendants still holding office (not Ricker, who resigned as
Superintendent) and monetary penalties, notably that will go to the District, not Plaintiffs.”
Beyond this mere assertion, however, plaintiffs provide no authority for why they, as private
taxpayers acting on behalf of the school district, have the power to impose criminal penalties
for what is a criminal violation. Nor do plaintiffs provide any authority for the proposition
that statutory penalties for a “business offense” can be awarded as a remedy in a civil action.
Accordingly, we agree with the circuit court that plaintiffs did not have standing to seek
forfeiture of office or to impose fines in a civil suit.
¶ 26 While the first sentence of section 20-6 speaks to criminal violations, the second sentence
of section 20-6 references “an appropriate civil action” brought by the district or “by any
taxpayer in the name and for the benefit of such school district.” Private taxpayers may bring
suit on behalf of the district to recover “any sum that may be unlawfully diverted from the
working cash fund or otherwise used.” 105 ILCS 5/20-6 (West 2010).
¶ 27 Plaintiffs seek to recover “an amount sufficient to make District 113A whole and replace
the public funds shown by the evidence to have been unlawfully diverted from the Working
Cash Fund.” The complaint alleges that at times between 2007 and 2010, the district drew
money out of the working cash fund in order to cover shortfalls in other funds. Later in 2009
the board formally approved the fund’s abatement, with all money being transferred to some
other funds (the complaint does not specify which funds). In 2010, the board formally
approved the fund’s abolishment, with the remaining money being transferred to the
education fund.
¶ 28 The district defendants argue that there are no allegations that they used the funds at issue
“for anything other than legitimate District expenses.” According to defendants, allowing the
taxpayer plaintiffs to recover from defendants in this circumstance “would result in a
windfall to the District by reimbursing it for money it never lost.” Judge Martin agreed,
stating that plaintiffs were “basically arguing a windfall” and that “nothing in the complaint
*** would tell the reader that money was used for some purpose other than for school
purposes.” Plaintiffs argue that because section 20-5 plainly forbids interfund transfers
without board resolution, any money transferred without board resolution should be
considered a “sum *** unlawfully diverted from the working cash fund” recoverable by the
taxpayer plaintiffs on behalf of the district. 105 ILCS 5/20-6 (West 2010). According to
-8-
plaintiffs, defendants are personally liable for $5,492,942.1
¶ 29 The parties’ dispute about the proper remedy reflects an underlying disagreement about
whether the monies at issue were “unlawfully diverted.” The School Code does not define
“unlawful diversion” or “diversion,” and we may consult a dictionary to ascertain the plain
and ordinary meaning of those terms. Gaffney v. Board of Trustees of the Orland Fire
Protection District, 2012 IL 110012, ¶ 60
. Moreover, “words and phrases having well-
defined meanings in the common law are interpreted to have the same meanings when used
in statutes dealing with the same or similar subject matter as that with which they were
associated at common law.” Scott v. Dreis & Krump Manufacturing Co., 26 Ill. App. 3d 971, 983
,326 N.E.2d 74
(1975); People v. Bailey,375 Ill. App. 3d 1055, 1061
(2007). We look
to the common law meaning of terms even in statutes dealing with new or different subject
matter, to the extent that they appear fitting and absent evidence indicating a contrary
meaning. Advincula v. United Blood Services, 176 Ill. 2d 1, 17
(1996). ¶ 30 At the time section 20-6’s predecessor statute (1933 Ill. Laws 265
) was enacted, Black’s
Law Dictionary defined “diversion” as “[a] turning aside or altering the natural course of a
thing,” with the term being “chiefly applied to the unauthorized changing the course of a
water course to the prejudice of a lower proprietor, or to unauthorized or illegal use of
corporate funds.” Black’s Law Dictionary 600 (3d ed. 1933). In a line of cases considering
interfund loans, our supreme court has repeatedly defined the “diversion” of funds or the
“unlawful diversion” of funds as use for some improper purpose or some purpose specifically
prohibited by statute. As relevant to the issue here, the court explained, “Municipal officers
have no right to divert moneys from one fund to another and different fund for which it was
not appropriated. But the word ‘divert’ is used in the sense of turning such fund permanently
from its purpose or the final appropriation of it to some other use.” Gates v. Sweitzer, 347 Ill. 353, 359
(1932); see also Michaels v. Barrett,355 Ill. 175, 185-86
(1934) (rejecting
argument that statute providing for use of part of motor fuel tax to pay interest and principal
on emergency relief bonds is an “unlawful diversion” of portion of privilege tax allotted to
counties for road purposes, where collected taxes become public money and may be applied
to whatever purpose legislature determines).
¶ 31 Building from Gates and similar cases, our supreme court has found an improper
diversion of funds where funds are used for a different purpose than allowed by statute. In
People ex rel. Brenza v. Gilbert, 409 Ill. 29
(1951), for example, the court considered a
temporary transfer of funds from a working cash fund for corporation purposes to the county
highway fund. The court distinguished those cases finding no “diversion” of funds when
monies were loaned from one fund to another: “The present case is different from [those
cases] in that there is at least an implied prohibition against using the working cash fund for
anything except the purpose of financing the corporate fund of the county.” Brenza, 409 Ill. 1
Plaintiffs actually claim that defendants could be liable for as much as $12 million, but that
figure is only used in the complaint with reference to plaintiffs’ allegations that Knutte issued
improper audits: “The effect of these audits was that the illegal misspending, overspending and
illegal transfers described above were concealed, resulting in losses to the district of more than $12
million.”
-9-
2d at 37. Similarly, in People ex rel. Redfern v. Penn Central Co., 47 Ill. 2d 412
(1971), the
court considered whether the transfer from the education to the Illinois municipal retirement
fund amounted to “an unlawful diversion of monies from one fund to another.” Redfern, 47 Ill. 2d at 416
. The court found that the transfer did amount to an unlawful diversion, where
the statute at issue did not allow for “loans between the educational fund and the Illinois
municipal retirement fund.” Id. at 418
.
¶ 32 In accord with these cases considering the “unlawful diversion” of funds, we conclude
that the plaintiffs cannot recover a monetary award from the defendants, for they have not
alleged that the money transferred from the working cash fund was put toward some
improper purpose forbidden by the statute. Plaintiffs do not allege that defendants violated
the School Code by spending monies from the working cash fund on something other than
legitimate school expenses. See 105 ILCS 5/20-4 (West 2010) (“Moneys in the fund may be
used by the school board for any and all school purposes and may be transferred in whole or
in part to the general funds or both of the school district and disbursed therefrom in
anticipation of the collection of taxes lawfully levied for any or all purposes ***.”). Rather,
plaintiffs allege that the board did not pass any resolution as to the transfer of funds (at least
until the board passed resolutions to abate and then abolish the fund, thereby permanently
transferring the working cash funds). We acknowledge that article 20 also contemplates that
money is to be temporarily loaned for tax anticipation purposes, and the working cash fund
is to be reimbursed when those taxes are collected. Plaintiffs alleged that defendants were
using working cash funds to cover shortfalls due to deficit spending, without ever
reimbursing the working cash fund. But here, the school board effected a permanent transfer
of the money by passing resolutions to abate and abolish the working cash fund. While
plaintiffs contend that the resolutions to abate and then abolish the working cash fund were
simply made to “cover up” earlier transfers, they do not allege that the resolutions were
improper. Where plaintiffs do not allege that the funds were spent for an improper purpose,
and where the defendants have effected a permanent transfer of working cash funds as
allowed by article 20, plaintiffs cannot show any loss to the district as a result of defendants’
alleged actions.
¶ 33 Although plaintiffs offer no authority for their proposed interpretation of the statute, they
suggest that the legislature must have meant to allow recovery in a civil suit under these
circumstances to ensure compliance with the statute. Plaintiffs contend that district officials
“could evade any accountability for their illegal conduct regarding the Working Cash Fund
by, even after the fact, simply abolishing the fund.” Our holding is not so broad. We
conclude only that plaintiffs here cannot seek to recover personally from district officials
under the civil recovery provision of section 20-6. If defendants did willfully violate section
20-5, a party with standing could seek to impose the serious criminal penalties prescribed in
section 20-6. Indeed, the statute provides for criminal penalties for willful violations of “any
of the provisions of this Article” and then separately provides for a civil suit to recover funds
“unlawfully diverted.” As defendants acknowledge, “the statute contains a means to enforce,
where appropriate, willful violations of Article 20 where no actual damages result.”
¶ 34 Accordingly, we affirm the circuit court’s dismissal of plaintiffs’ complaints under
section 2-619. Under section 20-6, the taxpayer plaintiffs do not have standing to seek the
-10-
criminal penalties of forfeiture of office or fines. Section 20-6 also does not authorize a civil
suit to recover vast sums of money personally from district defendants for the alleged
violation of section 20-5, where there are no allegations that monies from the working cash
fund was spent on something other than legitimate school expenses. Without those
allegations, plaintiffs do not otherwise have standing to recover, on behalf of the district,
money transferred without board resolution, notwithstanding the alleged violation of section
20-5.
¶ 35 Plaintiffs’ breach of fiduciary duty count fails for a similar reason. Like the alleged
section 20-5 violation, the breach of fiduciary duty claim rests on the district defendants’
failure to pass a board resolution to approve the withdrawal of money from the working cash
fund. As with the School Code violation, plaintiffs seek to recover “an amount sufficient to
make [the district] whole and replace the public funds shown by the evidence to have been
unlawfully diverted from the Working Cash Fund.” As explained above, however, plaintiffs
fail to allege any loss to the district resulting from the district defendants’ failure to obtain
approval for fund transfers. Plaintiffs have thus failed to allege any damages to support their
claim for breach of fiduciary duty. See Bernstein & Grazian, P.C. v. Grazian & Volpe, P.C.,
402 Ill. App. 3d 961, 976
(2010) (To prevail on a claim for breach of fiduciary duty, plaintiff
must show the existence of a fiduciary duty, the breach of that duty, and damages
proximately caused by the breach.).
¶ 36 Plaintiffs respond that the complaint describes the “deleterious effects of overspending
and damages caused to the district.” Specifically, plaintiffs point to the complaints’
allegations that “spending beyond appropriation in one year produces negative balances in
cash accounts, which carry over to the next year. Further expenditures beyond appropriations
in the years following dig an even deeper fiscal deceit upon the taxpayers, and others, that
keeps growing, until the District simply runs out of cash, as it appears to be nearing.” On
appeal, however, plaintiffs make clear that there is no cause of action based on this alleged
budget deficit spending; according to plaintiffs, those allegations only “provide context” for
the causes of action. Moreover, as noted above, plaintiffs specifically seek to recover those
funds that have been transferred without board approval. We therefore affirm the circuit
court’s dismissal of the breach of fiduciary duty claim. As both counts against the district
defendants were properly dismissed, we also affirm the district court’s dismissal of any
claims against Underwriters for Lloyd’s.
¶ 37 Lutkauskas’s Claims Against Knutte
¶ 38 The only remaining claims for consideration are Lutkauskas’s claims against Knutte. The
circuit court dismissed Lutkauskas’s claims on the basis of res judicata, finding that the final
judgment in favor of Knutte in the previous taxpayer suit barred Lutkauskas’s claims. On
appeal, Lutkauskas challenges this ruling and also argues that “[d]ue process considerations
were not given appropriate deference” when the circuit court dismissed his claims against
Knutte.
¶ 39 The doctrine of res judicata provides that “a final judgment on the merits rendered by a
court of competent jurisdiction bars any subsequent actions between the same parties or their
-11-
privies on the same cause of action.” Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334
(1996). “Res judicata bars not only what was actually decided in the first action but also
whatever could have been decided.” Hudson v. City of Chicago, 228 Ill. 2d 462, 467
(2008).
The doctrine applies if three requirements are met: (1) a final judgment on the merits has
been rendered by a court of competent jurisdiction; (2) the parties or their privies are
identical in both actions; and (3) an identity of cause of action exists. Id.
A determination of
whether a claim is barred under the doctrine of res judicata is a question of law, which is
subject to de novo review. Arvia v. Madigan, 209 Ill. 2d 520, 526
(2004).
¶ 40 Lutkauskas and Knutte agree that the first requirement for res judicata is met: where the
circuit court dismissed plaintiffs’ complaints against Knutte with prejudice on July 27, 2011,
there was a final judgment on the merits. As to the second requirement, Lutkauskas argues
that because “he was not a party in the previous lawsuit and his claims were brought as a
separate taxpayer acting in his individual capacity,” the parties were not identical or were not
in privity.
¶ 41 At the outset, we emphasize that Lutkauskas was not “acting in his individual capacity.”
Lutkausas’s complaint leaves no doubt on that point: the complaint is brought “as a taxpayer
derivative action in the name and for the benefit of the School Board District 113A.” A
“taxpayer derivative action,” by contrast, is “brought by a taxpayer on behalf of a local
governmental unit to enforce a cause of action belonging to the local governmental unit.”
Scachitti v. UBS Financial Services, 215 Ill. 2d 484, 494
(2005). The claimed injury in such
an action “is not personal to the taxpayers, but rather impacts the governmental entity on
whose behalf the action is brought.’ [Citation.]” Id.
¶ 42 We have rejected these same arguments in Nelson v. Chicago Park District,408 Ill. App. 3d 53
(2011), a taxpayer action.2 In Nelson, three individual Chicago taxpayers and a
community organization sued the Latin School, the Chicago Park District, and others,
seeking a declaratory judgment as to an agreement between the Chicago Park District and
the Latin School regarding funding and construction of a soccer field. The parties settled, and
the suit was dismissed with prejudice. Three different taxpayers later filed suit against the
same defendants, challenging aspects of the settlement. This court affirmed the dismissal of
the suit on the basis of res judicata. We held that “[a]lthough the Latin II plaintiffs were not
parties to the Latin I lawsuit, as Chicago taxpayers, they were in privity with the individual
Latin I plaintiffs, who were also Chicago taxpayers.” Id. at 61
. This court explained that “the
relevant inquiry is whether the interests of the Latin II plaintiffs were adequately represented
in Latin I.” Id.
On that question, we concluded that “the interests of the Latin II plaintiffs
were the same as those represented in Latin I because the overriding concern in both cases
was an unlawful transfer of public property to a private party.” Id. at 62
.
¶ 43 As in Nelson, Lutkauskas and the other taxpayer plaintiffs here were in privity. The
2
Unlike a taxpayer derivative action, a “taxpayer action” is a suit brought by private persons
“on behalf of themselves and as representatives of a class of taxpayers similarly situated within a
taxing district or area.” (Emphasis added and internal quotation marks omitted.) Scachitti v. UBS
Financial Services, 215 Ill. 2d 484, 493
(2005).
-12-
plaintiffs represent the same legal interests, even more so than in Nelson, where the Latin II
plaintiffs were challenging the settlement reached in Latin I and where plaintiffs were acting
as taxpayers acting for themselves and on behalf of a class. In this case, all plaintiffs filed
taxpayer actions “in the name and for the benefit of” the district under the authority of
section 20-6 of the School Code. Moreover, Lutkauskas and his fellow taxpayers sought
recovery from the district defendants on identical grounds, and all their claims against Knutte
related to Knutte’s complicity in the district defendants’ alleged violation of the School
Code. We agree with the circuit court that there is an identify of plaintiffs among their
taxpayer suits.
¶ 44 As to the third requirement, Lutkauskas somewhat confusingly suggests that it was not
met, because he “alleged several new claims against Knutte” and these claims “sufficiently
differ from those of the preceding consolidated [c]omplaint.” Lutkauskas does not further
explain his position or cite any authority. As Knutte points out, “separate claims will be
considered the same cause of action for purposes of res judicata if they arise from a single
group of operative facts, regardless of whether they assert different theories of relief.” River
Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 311
(1998); Cooney v. Rossiter,2012 IL 113227, ¶ 21
. Put another way, “assertions of different kinds or theories of relief arising
out of a single group of operative facts constitute but a single cause of action.” Cooney, 2012 IL 113227, ¶ 22
(quoting Torcasso v. Standard Outdoor Sales, Inc.,157 Ill. 2d 484, 490-91
(1993)). Here, the factual allegations relating to Knutte in all three complaints are parallel:
each suit alleges that Knutte improperly issued clean audit opinions that failed to disclose the
district defendants’ alleged misappropriations and thereby concealed the district’s losses.
Lutkauskas offers no argument to the contrary,3 and we thus conclude that an identity of
cause of action exists. As a result, we affirm the court’s dismissal of Lutkauskas’s claims
against Knutte.
¶ 45 Lutkauskas finally argues that his due process rights were violated when the circuit court
denied him a fair opportunity to litigate “his own claims.” In Hansberry v. Lee, 311 U.S. 32
(1940), the United States Supreme Court held that it would violate the due process clause of
the fourteenth amendment to bind litigants to a judgment rendered in an earlier litigation to
which they were not parties and in which they were not adequately represented. Yet the court
has held that states “are generally free to develop their own rules for protecting against the
relitigation of common issues or the piecemeal resolution of disputes.” Richards v. Jefferson
County, 517 U.S. 793, 797
(1996). More specifically, in cases “in which the taxpayer is using
that status to entitle him to complain about an alleged misuse of public funds,” the court
reasoned that “the States have wide latitude to establish procedures not only to limit the
number of judicial proceedings that may be entertained but also to determine whether to
accord a taxpayer any standing at all.” Id. at 803
.
3
In fact, Lutkauskas apparently concedes the third res judicata requirement in his reply brief,
though his position again is not set forth with clarity. The reply brief states, without further
elaboration: “As to the third requirement, Plaintiff Lutkauskas submits that identity of cause of
action may be similar with respect to the core operative facts.”
-13-
¶ 46 Lutkauskas principally relies on three United States Supreme Court cases to support his
due process argument. In Richards v. Jefferson County, 517 U.S. 793
(1996), three county
taxpayers and the director of finance for the city of Birmingham had sued the county
challenging the validity of an occupation tax. The tax was upheld in that case (the original
suit), and two classes of taxpayers later sought declaratory judgment challenging the
constitutionality of the tax. The United States Supreme Court held that the judgment in the
original suit did not have res judicata effect, reasoning that plaintiffs “did not sue on behalf
of a class; their pleadings did not purport to assert any claim against or on behalf of any
nonparties; and the judgment they received did not purport to bind any *** taxpayers who
were nonparties.” Id. at 801
. The Richards Court distinguished the case before it from a case
(similar to the one here) where “the taxpayer is using that status to entitle him to complain
about an alleged misuse of public funds *** or about other public action that has only an
indirect impact on his interest.” Id. at 803
. ¶ 47 In South Central Bell Telephone Co. v. Alabama,526 U.S. 160
(1999), the Court
confronted similar facts. There, South Central Bell Telephone Company filed a suit
challenging an Alabama tax. Prior to South Central Bell’s suit, four foreign corporations had
challenged the same Alabama tax and lost. The Court held that the earlier judgment against
the foreign corporations did not have a res judicata effect on the South Central Bell suit.
Relying on Richards, the Court explained that the two relevant cases involved different
plaintiffs and different tax years; that neither was a class action; and that no party claimed
there was privity or some other special relationship between the two sets of plaintiffs.
¶ 48 In Taylor v. Sturgell, 553 U.S. 880
(2008), two individuals, Herrick and Taylor, each
brought separate claims under the Freedom of Information Act, seeking the same public
records. Addressing a question of federal common law, the Supreme Court rejected the
doctrine of preclusion by “virtual representation,” holding that the prior judgment against
Herrick did not bar Taylor from maintaining his lawsuit because Herrick had not adequately
represented Taylor in the prior suit. Taylor, 553 U.S. at 885
.
¶ 49 While Lutkauskas again characterizes himself as an “individual taxpayer” or an
“individual plaintiff” bringing “his own claims,” we reiterate that he brought his claims on
behalf of the district. That critical fact, repeatedly ignored by Lutkauskas on appeal, renders
inapposite the cases he relies on to support his due process argument. Unlike all of those
cases, here Lutkauskas and his fellow taxpayers were representing the interests of the district.
They sought recovery from the district defendants on the same grounds, and all their claims
against Knutte related to Knutte’s concealment of the district defendants’ alleged violation
of the School Code. We find no merit to Lutkauskas’s due process argument.
¶ 50 CONCLUSION
¶ 51 For the foregoing reasons, we affirm the circuit court’s dismissal of plaintiffs’
complaints.
¶ 52 Affirmed.
-14-
¶ 53 JUSTICE PUCINSKI’s dissent to be filed later.
¶ 54 JUSTICE PUCINSKI, dissenting.*
¶ 55 I respectfully dissent from the decision of the majority. I would reverse and remand with
instructions to allow plaintiffs to file amended complaints. This is largely because many of
the issues raised in these consolidated cases have so little case law that there is a dearth of
direction from any reliable source. More to the point, the trial court should not have granted
the section 2-615 and section 2-619 motions to dismiss.
¶ 56 This appeal is the result of various events in three consolidated circuit court of Cook
County chancery cases:
(1) No. 10 CH 53428, a declaratory judgment case filed by Laura Reigle, Duane
Bradley and Louis Emery on behalf of Lemont Bromberek Combined School District
113A, plaintiffs, v. Dr. Timothy Ricker et al., defendants;
(2) No. 10 CH 53429, a declaratory judgment case filed by Janet Hughes on behalf
of Lemont Bromberek Combined School District 113A, plaintiff, v. Dr. Timothy Ricker
et al., defendants; and
(3) No. 11 CH 35191, a derivative action filed by Anthony Lutkauskas, taxpayer for
and on behalf of Bromberek Combined School District 113A, plaintiff, v. Dr. Timothy
Ricker et al., defendants.
¶ 57 These three cases were consolidated in the circuit court and have also been consolidated
on appeal; however, the appellate court caption differs slightly.
¶ 58 Plaintiffs are, respectively (at the time the complaints were filed): Laura Reigle, Duane
Bradley and Louis Emery, residents of and taxpayers in the school district; Janet Hughes,
resident of and taxpayer in the school district; and Anthony Lutkauskas, resident of and
taxpayer in the school district.
¶ 59 Defendants consistent to all three cases are, respectively: Dr. Timothy Ricker, a school
district employee, serving as superintendent; Robert Beckwith, formerly school treasurer and
business manager for the school district; John Wood, formerly president of the board of
education of the school district; Dr. Mary Gricus, assistant superintendent of the school
district; Lisa Wright, former president and vice president of the school district; Kevin
Doherty, former vice president and current member of the school district; David Leahy,
former member of the school district; Gwen O’Malley, former secretary of the school
district; Sue Murphy, former president and current member of the school district; Al
Albrecht, former member of the school district; and Knutte Associates, P.C., and other
persons whose names are not yet known.
¶ 60 In the two 2010 chancery cases Lloyd’s Illinois, Inc., was a named defendant. In the 2011
chancery case, Lloyd’s Illinois, Inc., was dropped as a defendant and Underwriters at Lloyd’s
London was named instead.
*
Justice Pucinski’s dissent filed October 24, 2013.
-15-
¶ 61 The two 2010 cases were consolidated on March 15, 2011, and that consolidated case
was consolidated again with the 2011 case on November 14, 2011. All three are consolidated
for appeal.
¶ 62 The district defendants’ (employees, past employees, present and past school board
members and officers) section 2-619 motion to dismiss was granted when the court decided
that they enjoyed immunity because their actions were the result of budget making, which
is a legislative act and is discretionary. However, the statute in question, section 20-5 of the
Illinois School Code, requires a resolution to be passed before any money can be transferred
out of the working cash fund. That requirement is mandatory: “Moneys [from] the working
cash fund shall be transferred from the working cash fund to another fund of the district only
upon the authority of the school board which shall from time to time by separate resolution
direct the school treasurer to make transfers ***.” (Emphases added.) 105 ILCS 5/20-5 (West
2010). Further, even if the school board members had some legislative immunity, it is hard
to see how that legislative immunity covered two current or former employees of the school
district.
¶ 63 The legislative source of the permission to make the transfers at all is very clear, through
the use of the mandatory terms: shall, only, and by separate resolution. That language makes
the act of deciding to transfer the funds discretionary to be sure, but the way it is to be done
is not discretionary at all; it is mandated or ministerial, which takes it out of the tort
immunity argument. “ ‘Discretionary acts are those which are unique to a particular public
office, while ministerial acts are those which a person performs on a given state of facts in
a prescribed manner, in obedience to the mandate of legal authority, and without reference
to the official’s discretion as to the propriety of the act.’ ” (Emphases omitted.) Van Meter
v. Darien Park District, 207 Ill. 2d 359, 371-72
(2003) (quoting Snyder v. Curran Township,
167 Ill. 2d 466, 474
(1995)).
¶ 64 I agree with plaintiffs that the core actions–or more specifically, inactions–of the district
defendants were not budget making because the actions were not in the budget; they were
accomplished by shuffling paper. Beckwith never put the transfers on the agenda. Therefore
there was no vote. Therefore there was no legislative action. Therefore there is no legislative
immunity. Further, since the mystery money was never appropriated in a line item it was not
part of the district defendants’ budget process but was, instead, part of a pattern of
transferring money without authorization.
¶ 65 The district defendants were also granted dismissal on a section 2-615 motion. However,
the pleadings clearly show that these defendants’ actions did not conform to the legislative
requirement for separate resolutions each time a transfer was made, the pleadings contained
allegations sufficient to demonstrate this fact, and the pleadings, therefore, state a cause of
action which is granted by the Illinois School Code.
“Any member of the school board of any school district to which this Article is
applicable, or any other person holding any office, trust, or employment under such
school district who wilfully violates any of the provisions of this Article shall be guilty
-16-
of a business offense and fined not exceeding $10,000, and shall forfeit his right to his
office, trust or employment and shall be removed therefrom. Any such member or other
person shall be liable for any sum that may be unlawfully diverted from the working cash
fund or otherwise used, to be recovered by such school district or by any taxpayer in the
name and for the benefit of such school district in an appropriate civil action; provided
that the taxpayer shall file a bond for all costs and be liable for all costs taxed against the
school district in such suit, and judgment shall be rendered accordingly. Nothing herein
shall bar any other remedies.” 105 ILCS 5/20-6 (West 2010).
¶ 66 The law itself makes it clear that there is a cause of action and that a taxpayer is a proper
person to bring it on behalf of the school district. In these consolidated cases, plaintiff
Lutkauskas brought a derivative action on behalf of the school district, and as such, he was
not in the same position as the plaintiffs in the first two of the three cases, who were found
not to have standing. For this reason, the section 2-615 dismissal of the Lutkauskas case as
to the district defendants was error.
¶ 67 Lutkauskas’ claims against accountant Knutte were dismissed on the basis of res
judicata. This presumes that he was in the same position and raised the same claims against
Knutte as in the earlier two cases, when in fact Lutkauskas’ claims included accountant
negligence, breach of fiduciary duty and aiding and abetting (illegal) acts. The pleadings
demonstrate that the accounting firm, Knutte, was the accountant for the school board of the
school district and it prepared annual financial reports. Those reports indicated that the
working cash fund had more than $5.4 million in it for several years when in fact the actual
account balance was $0. Either Knutte was incompetent or it was contriving to assist in
hiding the actual balance. To let it escape further scrutiny through procedural sleight of hand
is exactly what should not happen. Let this case go to full discovery. Let both sides make
their case. That is why we have trial courts.
¶ 68 In addition, during the course of the earlier two cases the accounting firm, Knutte, was
granted its motion to dismiss with prejudice and, therefore, those plaintiffs were not allowed
to amend their complaint as to the accountant. Allowing amended complaints is well within
the discretion of the trial court and would have been appropriate.
¶ 69 The complaint against the insurance company was also dismissed. The issue of Lloyd’s
being Lloyd’s Illinois was never fully resolved. It is a “Lloyd’s Illinois” stamp on the bond
in question, yet Lloyd’s Illinois was dismissed when it claimed that the complaint should
have been against Lloyd’s (of London).
¶ 70 I have a problem with the wholesale dismissal of these claims. The school board’s own
emails confirm that Beckwith did not submit statutorily required resolutions to the board for
a vote to transfer funds from the working cash fund to the other appropriated line items.
¶ 71 No one is saying that any of this money was used for exotic vacations or expensive
personal items. However, the law is very clear that the board must vote on a resolution to
transfer the funds. This is because without that public notice taxpayers would be unaware–as
these taxpayers were–that the money in the working cash fund, money which was obtained
by the issue of bonds, and at taxpayer expense, was being used in excess of the appropriated
-17-
amount for some expenses, which means ultimately that the tax levy for the district would
also be wrong or inflated.
¶ 72 For example (using fictitious numbers), if the school board wanted to spend, say, $1
million on books, it should appropriate $1 million for that purpose. That way taxpayers and
parents know what the spending looks like. Instead, in essence, this board appropriated
$750,000 for books as a line item in its budget, and then without telling anyone, transferred
in another $250,000 from the working cash fund to cover an expense that was not in the
budget, was not appropriated, was not in any public meeting or public record and was not
disclosed by the board or its accountants. That money was obtained by the sale of bonds and
is expensive money.
¶ 73 The working cash fund is supposed to be used to cover timing gaps in funding, i.e., in
cases where the property tax money does not come in before the bills are due. It is not
supposed to be used to add extra to the budgeted line items. That would defeat the whole
purpose of the resolution requirement, and in fact defeats the purpose of the working cash
fund itself.
¶ 74 In addition, Beckwith’s bond for $8 million is for him to “faithfully discharge the duties
of his office according to the law” which he clearly did not do. (Emphasis added.)
¶ 75 Certainly the School Code itself is complicated and this particular part of the legislation
adds to that complication in that it clearly sets up both a criminal and civil action in the same
paragraph, but is more specific about the criminal penalties. I believe that a fair reading of
the statute could be that the failure to consider and vote on the required resolution creates a
civil liability, which appears to be “for any sum that may be unlawfully diverted from the
working cash fund or otherwise used.” 105 ILCS 5/20-6 (West 2010). I believe a plain
reading of the language in section 20-6 makes it clear that while law enforcement officials
have the responsibility for pursuing the criminal sanctions, a taxpayer on behalf of the school
district may pursue the civil remedies, and I do not see anything in the statute that makes the
second dependent on the first.
¶ 76 I also believe that the accounting firm was dismissed prematurely and that Lloyd’s
Illinois (see seal on the bond) and Lloyd’s London were dismissed without paying enough
attention to the bond.
¶ 77 In addition, the defendants in their brief take great pains to separate a school board from
a school district. However, in this case the school district is the entity for which the school
board is the legislative body. The distinction is important, but could easily and properly be
corrected with amended pleadings, which, I believe, is the correct course of action.
¶ 78 The board and Beckwith did not follow the law. The accounting firm knew or should
have known it. The bond on Beckwith covered him for his acts. Taxpayers are correct in
saying that this finance shell game cost them money because if the board had spent only what
was appropriated, there would have been no need to raid the working cash fund to add extras
that were not appropriated, so there would have been no need for that amount of bonds to be
issued to fund the working cash fund.
-18-
¶ 79 I believe that the taxpayers should be allowed to amend their complaints, move forward
with discovery, and pursue recovery from the bonding company, Lloyd’s, for their losses in
an accounting that includes the cost of the obligation bonds and interest and from the
accountant, Knutte, for professional negligence.
¶ 80 The Center for Open Government on behalf of the taxpayer plaintiffs was not, in my
opinion, given its rightful opportunity to pursue robust discovery and amend its complaints.
¶ 81 I believe this case should be allowed to run its course and not be dismissed on the
motions. There is so little case law on section 20-5 and section 20-6 it is, I believe, an
important enough set of issues to deserve a full case. Taxpayers have a direct and specific
interest in transparency in government. I would reverse and remand.
-19-