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Appellate Court Date: 2016.09.29
10:22:45 -05'00'
Veazey v. Board of Education of Rich Township High School District 227,
2016 IL App (1st) 151795
Appellate Court FREDERICK C. VEAZEY, Plaintiff-Appellant, v. THE BOARD OF
Caption EDUCATION OF RICH TOWNSHIP HIGH SCHOOL DISTRICT
227, BRIDGET IMOUKHUEDE, and EMMANUEL
IMOUKHUEDE, Defendants-Appellees.
District & No. First District, Third Division
Docket No. 1-15-1795
Filed July 20, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 14-CH-12484; the
Review Hon. Mary Lane Mikva, Judge, presiding.
Judgment Reversed and remanded with directions.
Counsel on Center for Open Government Law Clinic of Chicago-Kent College of
Appeal Law and Krislov & Associates, Ltd. (Clinton A. Krislov, of counsel),
both of Chicago, for appellant.
Johnson, Jones, Snelling, Gilbert & Davis, P.C. (Jeffrey B. Gilbert, of
counsel), and Robert E. Lehrer, both of Chicago, for appellees Bridget
Imoukhuede and Emmanuel Imoukhuede.
Franczek Radelet P.C., of Chicago (John A. Reiias, Jacqueline F.
Wernz, and Nicki B. Bazer, of counsel), for appellee Board of
Education of Rich Township High School District 227.
Panel PRESIDING JUSTICE MASON delivered the judgment of the court,
with opinion.
Justices Pucinski and Lavin concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Frederick Veazey filed suit seeking, among other relief, a declaratory judgment
that a vote by defendant the Board of Education of Rich Township High School District 227
(Board) to reinstate defendant Dr. Bridget Imoukhuede’s employment with back pay and
attorney fees was illegal because the Board allowed Imoukhuede’s husband and Board
member, defendant Emmanuel Imoukhuede, to cast the tie-breaking vote in violation of
defendant Rich Township High School District 227’s (District) anti-nepotism policy. The trial
court sua sponte invoked the Administrative Review Law (Review Law) (735 ILCS 5/3-101
et seq. (West 2014)) and dismissed Veazey’s second amended complaint, finding that he
lacked standing to challenge the Board’s vote because he was not a party to the administrative
proceedings. We agree with Veazey that his challenge was directed to the legality of the
Board’s vote and not the propriety of Imoukhuede’s reinstatement thus rendering the Review
Law inapplicable. We also agree that Veazey has standing to pursue that challenge. But
because Veazey’s second amended complaint fails to sufficiently plead facts supporting
taxpayer standing, an issue not addressed by the trial court, we remand and direct the trial court
to grant leave to amend. Consequently, we reverse the trial court’s dismissal of Veazey’s
second amended complaint and remand for further proceedings.
¶2 BACKGROUND
¶3 During the 2012-13 school year, the District employed Imoukhuede, a tenured teacher, as
the assistant principal of alternative programs. The District hired Imoukhuede in 1990; her
husband was first elected to the Board in 2007.
¶4 On March 19, 2013, the District adopted the following anti-nepotism policy:
“For the purposes of this section, a relative is defined as a child, parent,
grandparent, sibling, cousin, or spouse who is connected to another in that regard by
way of legal (adoption, marriage, or otherwise), blood, in-law, step, or foster
relationship.
An individual who is a relative of either a District employee or a Board member is
ineligible to be hired by the District unless there are no other qualified applicants for
the position. This policy does not apply to individuals who have already been hired,
even if their relative is subsequently elected to the board.
Employees and Board members will not participate in employment decisions
concerning either their relative or the position for which their relative has
applied/currently holds. This includes, but is not limited to, decisions regarding hiring,
employment status, reappointment, placement, evaluation, pay rate, salary increases,
promotion, tenure, and awards.”
¶5 At a Board meeting held on July 30, 2013, with a quorum of Board members present, four
members voted in favor of a resolution to suspend Imoukhuede without pay and discharge her.
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The record does not reflect whether Emmanuel voted on the resolution. The Board’s resolution
was adopted and became effective on August 6, 2013.
¶6 Pursuant to the School Code (105 ILCS 5/34-85 (West 2014)), Imoukhuede contested the
Board’s resolution and requested a hearing. Following the hearing, the hearing officer found
that the Board’s decision to discharge Imoukhuede was arbitrary and capricious and against the
manifest weight of the evidence. The hearing officer also found that the Board violated
Imoukhuede’s due process rights. The hearing officer recommended Imoukhuede’s
reinstatement to the same position or a substantially equivalent position and reimbursement for
all lost income and benefits, including reasonable attorney fees.
¶7 The Board held a special meeting on June 9, 2014, to vote on whether to accept the hearing
officer’s recommendation to reinstate Imoukhuede. Emmanuel initially indicated he would
abstain from voting. When the matter was called for a vote, three members voted in favor of
adopting the hearing officer’s recommendation and three members voted against. A tie vote
would have meant that the resolution did not pass and Imoukhuede would not be reinstated.
Emmanuel reversed his position and ultimately cast the deciding vote in favor of reinstating his
wife, creating a 4 to 3 majority.
¶8 On July 15, 2014, the Board held another meeting to consider whether to adopt the hearing
officer’s recommendation that Imoukhuede be awarded back pay and attorney fees. Five
members of the Board—constituting a quorum—were present. This time, Emmanuel
expressed no reservations about participating in the vote. Three board members, including
Emmanuel, voted in favor of payment of back pay and attorney fees and two members voted
against it. One of the board members voting against the resolution explained that payment was
not mandated by any court but merely reflected the hearing officer’s recommendation.
¶9 After the Board’s vote, Veazey, as a taxpayer residing within the District’s boundaries,
filed a complaint against Imoukhuede, the Board, and Emmanuel. Veazey initially proceeded
pro se but was later represented by counsel who amended his complaint twice. Veazey’s
second amended complaint included the following counts: (1) a claim under the declaratory
judgment provision of the Code of Civil Procedure (Code) (735 ILCS 5/2-701 (West 2014))
seeking a determination that the Board conducted an illegal vote by permitting Emmanuel to
cast votes in favor of resolutions benefitting his wife in violation of the District’s anti-nepotism
policy, (2) a claim asserting it was “inequitable” for Imoukhuede to retain the funds received
from the Board’s illegal vote, and (3) a claim seeking recovery of fraudulently obtained public
funds (735 ILCS 5/20-103 (West 2014)) based on the allegation that Emmanuel engaged in a
fraudulent scheme to reinstate his wife with back pay in violation of the anti-nepotism policy.
Veazey withdrew a previously pled count asserting a taxpayer claim to recover funds
improperly expended belonging to a municipality (65 ILCS 5/1-5-1 (West 2014)) in
recognition of the fact that the Board was not a municipality.
¶ 10 Imoukhuede responded with a section 2-619.1 (735 ILCS 5/2-619.1 (West 2014))
combined motion to dismiss pursuant to section 2-615 (735 ILCS 5/2-615 (West 2014)) and
section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2014)) of the Code. The Board and
Emmanuel together filed a section 2-619(a)(9) motion to dismiss. Both motions to dismiss
asserted primarily that no actual controversy existed to support a cause of action for
declaratory judgment and that the anti-nepotism policy lacked the force and effect of law.
¶ 11 During the hearing on the motions, the trial judge sua sponte determined that the Review
Law was the only avenue of review and because Veazey was not a party to the administrative
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proceeding, he lacked standing to bring his claims. The trial court granted the motions to
dismiss with prejudice “for reasons stated in open court.”
¶ 12 After the trial court’s ruling, Emmanuel lost his bid for re-election to the Board. Following
the election, the new Board was granted leave to appear through substitute counsel. The
Board’s new counsel filed a motion seeking “clarification” as to whether the trial court based
its ruling on the Review Law, and if so, the Board claimed error arguing, in part, that the
Review Law had no applicability to the reinstatement, and not dismissal, of an employee.
¶ 13 The court clarified its conclusion that the Review Law applied and Veazey could not
challenge the Board’s decision. The court also observed that the Board likewise could not have
sought review under the Review Law but refrained from addressing any rights the Board may
have in any other proceeding.
¶ 14 Shortly after that ruling, the Board’s new counsel filed a complaint against the
Imoukhuedes. In the new action, the Board, contrary to its defense of the vote in Veazey’s
case, took the position that Emmanuel (1) violated the anti-nepotism policy by voting in favor
of reinstating his wife, (2) created a conflict of interest by voting in favor of reinstating his
wife, and (3) fraudulently concealed from the Board that his wife had announced her
retirement prior to the vote to reinstate her. The Board also asserted that Imoukhuede acted in
bad faith when she requested a hearing regarding her suspension even though she had already
retired. The Board further contended that the Imoukhuedes were unjustly enriched by the funds
paid to Imoukhuede and sought recovery of the fraudulently obtained public funds (735 ILCS
5/20-103 (West 2014)). The Board’s complaint against the Imoukhuedes is not at issue in this
appeal.
¶ 15 ANALYSIS
¶ 16 We are cognizant of the fact that the Board in the trial court advocated against Veazey and
defended the legality of its vote. Although the Board still takes the position that it was not
guilty of any wrongdoing, in this court the Board is now advocating in favor of Veazey’s
position both that the Review Law is not applicable and that Veazey has taxpayer standing.
The Board’s about-face was occasioned by the intervening election and not by any change in
the law. But the doctrines of invited error, waiver, and judicial estoppel prevent the Board from
taking one position in the trial court and a different position on appeal. Sakellariadis v.
Campbell, 391 Ill. App. 3d 795, 800 (2009). Accordingly, we disregard the Board’s
contentions on appeal urging reversal of the trial court’s dismissal of Veazey’s complaint and
concentrate on the arguments advanced by Veazey and the Imoukhuedes.
¶ 17 Veazey challenges the trial court’s dismissal of his complaint based on the court’s
conclusion that his only available remedy for review of the Board’s vote was under the Review
Law. Veazey asserts that his claims regarding the illegality of the Board’s vote were unrelated
to the merits of Imoukhuede’s reinstatement or the administrative hearing. We agree with
Veazey that the Review Law is not applicable to his challenge to the Board’s action in allowing
a board member with a direct financial interest to cast deciding votes in violation of the
District’s anti-nepotism policy.
¶ 18 The Review Law applies to:
“every action to review judicially a final decision of any administrative agency where
the Act creating or conferring power on such agency, by express reference, adopts the
provisions of Article III of this Act or its predecessor, the Administrative Review Act.
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*** In all such cases, any other statutory, equitable or common law mode of review of
decisions of administrative agencies heretofore available shall not hereafter be
employed.” 735 ILCS 5/3-102 (West 2014).
Section 24-16 of the School Code (105 ILCS 5/24-16 (West 2014)) adopts the Review Law
and applies it to “all proceedings instituted for the judicial review of final administrative
decisions of the hearing officer for dismissals pursuant to Article 24A of this Code or of a
school board for dismissal for cause under Section 24-12 [removal or dismissal of teachers in
contractual continued service] of this Article.” (Emphasis added.) 105 ILCS 5/24-16 (West
2014). An “administrative decision” means “any decision, order or determination of any
administrative agency rendered in a particular case, which affects the legal rights, duties or
privileges of parties and which terminates the proceedings before the administrative agency.”
735 ILCS 5/3-101 (West 2014).
¶ 19 Here, Veazey’s complaint clearly challenges the Board’s conduct in allowing Emmanuel to
vote on matters concerning his wife, asserting that his vote should have been disregarded
because it was cast in violation of the anti-nepotism policy. Indeed, Veazey requested a
declaratory judgment that the Board’s June 9 and July 15, 2014, votes—adopting the hearing
officer’s recommendation for reinstatement with back pay and reasonable attorney fees—were
invalid and void because they were conducted contrary to the anti-nepotism policy. Nothing in
the complaint challenged or sought review of the merits of the administrative decision, i.e.,
whether Imoukhuede should be reinstated or awarded back pay and attorney fees. While a vote
to reject the hearing officer’s recommendation and uphold Imoukhuede’s dismissal would
have been subject to the Review Law, the Board’s vote to reinstate her is not. Consequently,
the Review Law does not apply because the allegations of the complaint on their face challenge
only the manner in which the Board voted and not the merits of the Board’s vote.
¶ 20 More importantly, if we were to find that a challenge to the Board’s voting procedure was
subject to the Review Law, then there would be no means for nonparty individuals to hold the
Board, and its members, accountable for their conduct in acting contrary to polices governing
their actions. Adopting the Imoukhuedes’ position would extend the law’s scope beyond the
review of administrative decisions and would encompass any claim with a tangential
connection to an administrative proceeding. But the Review Law is an exclusive method of
review limited to specific cases and the areas of its applicability must be clearly defined.
Chestnut v. Lodge, 34 Ill. 2d 567, 571 (1966). Likewise, a claim properly reviewed under the
Review Law eliminates any other statutory, equitable, or common-law remedies. Sierra Club
v. Office of Mines & Minerals, 2015 IL App (4th) 140405, ¶ 24. In this case, expansion of the
Review Law’s applicability to preclude a challenge relating to the Board’s voting procedures
(which is wholly independent of any procedural irregularities relating to administrative review
proceedings) is unwarranted. Because Veazey’s claims fall outside the scope of the Review
Law, its provisions do not bar his claims.
¶ 21 Moreover, we are mindful of the practical effect of the Board’s vote adopting the hearing
officer’s recommendation to reinstate Imoukhuede with back pay and attorney fees.
Presumably, had the Board adhered to its own policy and prohibited Emmanuel from voting,
the resolution would not have passed and Imoukhuede would not have been reinstated. In that
case, Imoukhuede would have had the right as an aggrieved party to seek judicial review of her
dismissal under the Review Law pursuant to the School Code. 105 ILCS 5/24-16 (West 2014).
Ultimately, the Board would have incurred additional expense in litigating the matter, and the
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end result may have been the same: Imoukhuede’s reinstatement with back pay and attorney
fees.1 Nonetheless, we cannot ignore Veazey’s allegation that the Board acted illegally in
allowing Emmanuel to vote and further cannot accept the Imoukhuedes’ contention that such a
vote by a public body is immune from judicial oversight. See Tanner v. Solomon, 58 Ill. App.
2d 134, 137 (1965) (finding the Review Law had no relevance to a claim where one board
member sought a declaratory judgment relating to the actions of two other members of the
same board). Consequently, the trial court erred in dismissing Veazey’s complaint based on its
finding that Veazey’s only relief was under the Review Law.
¶ 22 We next consider whether Veazey’s complaint warrants dismissal on any other basis. As
an initial matter, we note that Veazey’s second amended complaint included claims for
declaratory judgment, equitable relief, and recovery of fraudulently obtained public funds, but
Veazey limits his arguments on appeal to the viability of his declaratory judgment claim.
Accordingly, we too limit our review to that claim as Veazey has waived review of any other
claim. See Vancura v. Katris, 238 Ill. 2d 352, 369 (2010) (points not argued in appellant’s brief
“ ‘are waived and shall not be raised in the reply brief, in oral argument, or on petition for
rehearing’ ” (quoting Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008))).
¶ 23 We first consider, under section 2-619(a)(9), whether the circumstances of this
case—involving a taxpayer’s challenge to an allegedly invalid vote by a public body, which
resulted in the expenditure of public funds—fits within that category of cases where taxpayers
have standing to sue. A section 2-619 motion to dismiss admits the legal sufficiency of the
complaint but asserts an affirmative defense or other matter that avoids or defeats the
plaintiff’s claim. Relf v. Shatayeva, 2013 IL 114925, ¶ 20; DeLuna v. Burciaga, 223 Ill. 2d 49,
59 (2006). “Affirmative matter” includes any defense other than one that negates an essential
allegation of a plaintiff’s cause of action. Kedzie & 103rd Currency Exchange, Inc. v. Hodge,
156 Ill. 2d 112, 115 (1993). Lack of standing is an affirmative defense. Wexler v. Wirtz Corp.,
211 Ill. 2d 18, 22 (2004). We review the trial court’s ruling on a section 2-619 motion to
dismiss de novo. Lutkauskas v. Ricker, 2015 IL 117090, ¶ 29.
¶ 24 Taxpayers may have standing to sue either in their personal capacity as taxpayers or
derivatively on behalf of a local governmental unit (taxpayer derivative). Taxpayer plaintiffs
have direct standing to enjoin the misuse of public funds, which arises from the taxpayers’
ownership of the public funds and their liability to replenish the public treasury for the
deficiency caused by the misappropriation. Scachitti v. UBS Financial Services, 215 Ill. 2d
484, 493-94 (2005) (citing Barco Manufacturing Co. v. Wright, 10 Ill. 2d 157, 160 (1956)).
The misuse of public funds for illegal purposes is “damage” entitling taxpayers to sue. Id. at
494. On the other hand, in a taxpayer derivative action, the taxpayer brings an action on behalf
of a local government entity to enforce a cause of action belonging to that entity. Id.; Lyons v.
Ryan, 201 Ill. 2d 529, 534-35 (2002).
¶ 25 The nature of Veazey’s declaratory judgment claim falls squarely within those cases that
have recognized a taxpayer challenge to the wrongful depletion of public funds. Martini v.
Netsch, 272 Ill. App. 3d 693, 697 (1995). Veazey’s action is based on the Board’s expenditure
of District funds to reinstate Imoukhuede and pay her back pay and attorney fees, which
Veazey asserts resulted from illegal Board votes. The facts of this case demonstrate the need
1
We express no view on the merits of the Board’s decision to dismiss Imoukhuede or the hearing
officer’s recommendation to reinstate her as those issues are not before us.
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for according a taxpayer standing to challenge an apparently illegal vote by the Board, which
serves as a check on the Board’s actions. Indeed, the narrow principle of taxpayer standing
provides an individual such as Veazey a basis to challenge the Board’s alleged wrongful
spending, i.e., conducting an illegal vote that resulted in reinstatement and payment of back
pay and attorney fees to Imoukhuede. Barco Manufacturing Co., 10 Ill. 2d at 160 (“[i]t has
long been the rule in Illinois that citizens and taxpayers have a right to enjoin the misuse of
public funds, and that this right is based upon the taxpayers’ ownership of such funds and their
liability to replenish the public treasury for the deficiency caused by such misappropriation”).
In his capacity as a taxpayer, Veazey has standing to challenge the Board’s conduct in allowing
Emmanuel to cast the deciding votes in favor of resolutions directly benefitting his wife and
himself and which involved the expenditure of public funds.
¶ 26 The Imoukhuedes also argue that Veazey lacks taxpayer derivative standing. But Veazey’s
request for a declaratory judgment does not assert a derivative claim on the Board’s behalf.
Certainly, the Board could not bring a declaratory judgment action against itself to establish
that Imoukhuede’s reinstatement with back pay and attorney fees was the product of an illegal
vote. See Feen v. Ray, 109 Ill. 2d 339, 346 (1985) (a taxpayer derivative suit requires the
governmental entity to have refused taxpayers’ requests to enforce on its own cause of action).
Likewise, Veazey’s claims are not derivative of an action belonging to the Board based upon
any wrongful third-party actions. See, e.g., id. at 342, 345 (taxpayer filed a complaint seeking
to recover from a bank on behalf of a school district fraudulently deprived interest on district
funds).
¶ 27 Moreover, it cannot be said that Veazey is suing derivatively on behalf of the District.
Although a board of education has the power under the School Code to sue and be sued in court
proceedings, a school district lacks the capacity to sue on its own behalf unless specifically
permitted by a companion statute. Board of Education of Bremen High School District No. 228
v. Mitchell, 387 Ill. App. 3d 117, 124 (2008) (citing 105 ILCS 5/10-2 (West 2006)). Neither
party points to a companion statute that would have authorized the District to bring a cause of
action under these facts. Because neither the District nor the Board could have brought the
declaratory judgment action based on the Board’s illegal vote, Veazey’s claims are not
derivative of an action belonging to the Board or the District. For this reason, the
Imoukhuedes’ reliance on Lutkauskas and Scachitti is misplaced because Veazey’s claims are
not derivative in nature.
¶ 28 The Imoukhuedes also claim that Veazey’s complaint warranted dismissal because the
Board’s anti-nepotism provision is merely an internal board policy document and not a “rule”
that can be judicially enforced. We disagree. A board of education is designated as a district’s
governing body. Mitchell, 387 Ill. App. 3d at 120 (a board of education “ ‘furnishes the method
and machinery for the government and management of the district’ ” (quoting Board of
Education of District No. 88 v. Home Real Estate Improvement Corp., 378 Ill. 298, 303
(1941))). Under the School Code, school boards have the power to adopt and enforce all
necessary rules for the management and government of the public schools in the district. 105
ILCS 5/10-20.5 (West 2014). A board of education’s powers include those expressly granted
in the School Code and those implied powers necessary to effect them. Mitchell, 387 Ill. App.
3d at 121.
¶ 29 Here, nothing in the record demonstrates that the Board distinguishes between “rules” and
“policies” or that the Board has adopted other governing “rules.” Notably, the table of contents
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to the Board’s policy manual included in the record states that the District’s policies “are both
legally compliant as well as appropriate for our students and the community.” And although
the entirety of the Board’s policies is not included in the record, they are posted on the Board’s
website. Those policies are comprehensive and cover topics such as the hiring, retention, and
discipline of teachers and other District employees, as well as student discipline. See Rich
Township High School District Board of Education Policy Manual, available at
http://policy.microscribepub.com/cgi-bin/om_isapi.dll?clientID=632324763&depth=2&infob
ase=rich_227.nfo&softpage=PL_frame (last visited July 18, 2016); People v. Crawford, 2013
IL App (1st) 100310, ¶ 118 n.9 (we may take judicial notice of information “on a public
website even though the information was not in the record on appeal”); Advocate Health &
Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 759 (2004) (a court may take judicial
notice of public records if such notice will aid in the efficient disposition of the case).
Moreover, contrary to the Imoukhuedes’ position that the anti-nepotism policy is merely an
unenforceable suggestion, the Board’s counsel advised the Board that it must abide by its own
policies. Consequently, we find that the anti-nepotism policy, like the other policies in the
manual, is binding on the Board.
¶ 30 Furthermore, the Board’s online policy manual includes a policy addressing the District’s
governance and expressly provides the Board with the authority “to adopt, enforce, and
monitor all policies for the management and governance of the District’s schools.” (Emphases
added.) Rich Township High School District Board of Education Policy Manual § 2:10,
available at http://policy.microscribepub.com/cgi-bin/om_isapi.dll?clientID=632324763&
depth=2&infobase=rich_227.nfo&softpage=PL_frame (last visited July 18, 2016). For this
additional reason, the suggestion that the anti-nepotism policy serves as an informal guide and,
thus, an unenforceable “suggestion” is not well-taken. Instead, it is clear that the Board
adopted its policies based on the authority given to it both under the School Code and by the
District and that its “policies” carry the force of law. See Heifner v. Board of Education of
Morris Community High School District No. 101, 32 Ill. App. 3d 83, 87 (1975) (rules adopted
pursuant to statutory authority have the force of law); Tyska v. Board of Education of Township
High School District 214, 117 Ill. App. 3d 917, 923 (1983) (school board rules have the force
of law). Consequently, a vote taken in violation of the anti-nepotism policy may be deemed
illegal.
¶ 31 The Imoukhuedes further contend that even if the anti-nepotism policy may be judicially
enforced, the Board did nothing illegal and Veazey, therefore, has no cause of action to declare
the Board’s vote void. The Imoukhuedes point to the portion of the anti-nepotism policy
expressly stating that “[t]his policy does not apply to individuals who have already been hired,
even if their relative is subsequently elected to the board.” The Imoukhuedes rely on that
language and the fact that Imoukhuede was already a District employee before Emmanuel’s
election to the Board to assert that the Board’s vote was not illegal since the policy did not
apply. But when read in context, 2 the cited exclusion clearly relates to the hiring of an
2
The applicable paragraph reads: “An individual who is a relative of either a District employee or a
Board member is ineligible to be hired by the District unless there are no other qualified applicants for
the position. This policy does not apply to individuals who have already been hired, even if their
relative is subsequently elected to the board.” Rich Township High School District Board of Education
Policy Manual § 2:90, available at http://policy.microscribepub.com/cgi-bin/om_isapi.dll?clientID=
3234065578&depth=2&infobase=rich_227.nfo&softpage=PL_frame (last visited July 18, 2016).
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employee and does not purport to exclude application of the anti-nepotism policy to previously
employed individuals, i.e., there is no “grandfather” clause excluding previously hired
employees from the anti-nepotism policy.
¶ 32 Finally, we address under section 2-615 the sufficiency of the allegations of Veazey’s
complaint. A section 2-615 motion to dismiss tests the legal sufficiency of the complaint based
on defects apparent on the face of the pleading. Hadley v. Doe, 2015 IL 118000, ¶ 29; Simpkins
v. CSX Transportation, Inc., 2012 IL 110662, ¶ 13. The relevant inquiry is whether the
allegations of the complaint, when construed in the light most favorable to the plaintiff, set
forth sufficient facts to establish a cause of action upon which relief may be granted. Doe, 2015
IL 118000, ¶ 29. Given its ruling on the section 2-619 motions, the trial court did not reach
defendants’ section 2-615 challenge to the sufficiency of the complaint’s allegations. But
because we are remanding this matter for further proceedings, we will address the issue.
¶ 33 The elements of a cause of action for a declaratory judgment are “(1) a plaintiff with a legal
tangible interest; (2) a defendant having an opposing interest; and (3) an actual controversy
between the parties concerning such interests.” Beahringer v. Page, 204 Ill. 2d 363, 372
(2003). An “actual controversy” “requires a showing that the underlying facts and issues of the
case are not moot or premature, so as to require the court to pass judgment on mere abstract
propositions of law, render an advisory opinion, or give legal advice as to future events.”
(Emphasis and internal quotation marks omitted.) Id. at 375. The threshold requirement for
establishing a declaratory judgment claim is whether a plaintiff “can plead a legal theory in
which he has a personal legal interest.” Gore v. Indiana Insurance Co., 376 Ill. App. 3d 282,
291 (2007).
¶ 34 Regarding the first element, Veazey, as stated, in his capacity as a taxpayer, has an interest
in invalidating the Board’s votes because those votes directly resulted in Imoukhuede’s
reinstatement and the disbursement of funds to Imoukhuede for back pay and attorney fees. In
his second amended complaint, Veazey identified himself as a taxpayer residing in the
District’s boundaries and pled the illegality of the Board’s vote but failed to specifically plead
that, as a taxpayer, he has been or will be liable to replenish the District’s misappropriation of
funds, i.e., the payments made to Imoukhuede in conjunction with her reinstatement. Schacht
v. Brown, 2015 IL App (1st) 133035, ¶ 20. Because such allegations are absent, Veazey’s
complaint is “fatally defective.” Wirtz Corp., 211 Ill. 2d at 22. But Veazey advances arguments
on appeal on this point and he would likely be able to cure this defect if given leave to amend.
Presuming Veazey properly amends his complaint, the first element of a declaratory judgment
action would be established for pleading purposes.
¶ 35 Regarding the remaining two elements, the Imoukhuedes’ position regarding the validity
of the Board’s votes satisfies both the opposing interest and concrete controversy elements of
Veazey’s claim for declaratory relief.
¶ 36 CONCLUSION
¶ 37 In sum, the Imoukhuedes failed to demonstrate any affirmative matter or defenses
defeating Veazey’s claims. Assuming that on remand Veazey alleges facts demonstrating his
liability to replenish public funds used to pay Imoukhuede, he has standing as a taxpayer to
pursue a claim for declaratory relief challenging the votes in violation of the Board’s
anti-nepotism policy that resulted in the expenditure of those funds. Therefore, we reverse the
trial court’s order dismissing Veazey’s second amended complaint and remand with directions
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to grant Veazey leave to amend his complaint.
¶ 38 Reversed and remanded with directions.
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