specially concurring:
While I agree on balance with the conclusion of the majority, I have difficulty with the suggestion that where a sufficient deterrent exists to inhibit an employer from committing a given illegal act, there is no need to extend the retaliatory discharge remedy to protect an employee who is discharged for exposing that illegal act. Under that approach, assuming an overall positive correlation between the severity of punishment and the nature of the misconduct, there would be an inverse correlation between the gravity of an employer’s illegal conduct and the retaliatory discharge protection which would be afforded to an employee who is discharged for exposing it or for refusing to participate in it. Such a result would be ironic as well as unrealistic. It would mean that an employee’s exposure, for example, of an act of murder by his employer or of narcotics trading would go unprotected since the criminal penalties for such offenses are uniformally severe and that only exposure of minor misdemeanors would then qualify.
While there is language in the supreme court opinion of Fellhauer v. City of Geneva (1991), 142 Ill. 2d 495, 568 N.E.2d 870, which appears to support that conclusion, I do not believe it is intended to reach beyond the factual context of that case. There our supreme court refused to recognize a claim by a discharged city employee, Fellhauer, for retaliatory discharge when he was fired by the mayor of Geneva, Illinois, for interfering with the mayor’s negotiations with certain electric power suppliers, Fellhauer argued that he was discharged, among other things, for refusing to cooperate with the mayor’s solicitation of campaign contributions from city vendors. The court concluded that in the face of a countervailing legislative policy which gives the mayor a right to remove any of his appointees (see Ill. Rev. Stat. 1987, ch. 24, par. 3 — 11—1), the tort of retaliatory discharge should be restricted to protect employees who expose or interfere with illegal conduct of their employer where such conduct is not otherwise sufficiently deterred through other sanctions. I also note that in Fellhauer the court did not agree that plaintiff sufficiently alleged official misconduct on the part of the mayor in the first place.
Ultimately, however, even in Fellhauer, the court recognized that although deprived of the remedy of retaliatory discharge, the employee under legislative mandate still had recourse to a legislative remedy insofar as he could be restored to the position from which he was removed by a two-thirds vote of the city council. See Fellhauer, stating:
"The requirement that a meeting be convened shortly after the dismissal, and the power of two-thirds of the members of the city council to restore the officer to the position from which he was removed, protect the officer’s interest in securing a livelihood and provide an appropriate forum in which to resolve the merits of the dismissal.” Fellhauer, 142 Ill. 2d at 509.
Here, where we do not confront a countervailing statutory policy concerning the right of an elected official to remove Ms appointees and where no alternative remedy for the employee is available, the existence of independent sanctions to inhibit the employer from violating the ICC regulation should not be dispositive of the employee’s right to claim retaliatory discharge.
The case of Fowler v. Great American Insurance Cos. (N.D. Ill. 1987), 653 F. Supp. 692, to which the majority also refers does not, in my view, focus upon this issue. There, Fowler, a marketing supervisor, was ordered by his employer not to accept new insurance business from a number of its agencies which the employer had targeted to be closed down. Instead of his compliance, Fowler wrote letters to these agencies informing them that new business would be accepted from them. When terminated, Fowler sued his employer, claiming that he was fired for implementing a policy promoted by the Insurance Code to avoid the dissolution of insurance agencies by requiring the insurance carrier to attempt to work out a rehabilitation program with them. The court first rejected the notion that the rehabilitation policy which Fowler purported to implement was a public policy within the ambit of protection offered by the tort of retaliatory discharge. (See Palmateer v. International Harvester Co. (1981), ,85 Ill. 2d 124.) The court then further stated that even if protected, the plaintiffs activities did not warrant such protection since it was unnecessary for that plaintiff to thwart his employer’s instructions by actually transacting new insurance business with those agencies targeted for termination. It would have been quite sufficient for him to simply report his employer’s instructions to the Department of Insurance. Thus, the court in Fowler concluded, contravention by the plaintiff of his employer’s orders was unnecessary and therefore did not warrant protection. By the same token, the court in Fowler does not suggest that had Fowler been discharged for reporting the employer’s instructions to the Department of Insurance, he would have been barred from tort recovery for retaliatory discharge by reason of any direct sanctions which could have been entered against the employer by the Department of Insurance for its substantive policy violations. I therefore do not find any resonance in Fowler of the proposition that the availability of a retaliatory discharge remedy should be restricted where the employer’s illegal conduct which the employee sought to expose is otherwise sufficiently deterred.
I’m also not fully aligned with the majority in holding that where an employee is discharged for exposing his employer’s illegal conduct to the proper policing authority, his discharge will not trigger a retaliatory discharge action unless the illegal conduct which he exposed is, itself, violative of a public policy. While the holding in Fellhauer v. City of Geneva does tilt in that direction, it would represent a substantial modification of the original position of our supreme court in Palmateer v. International Harvester. In Palmateer the supreme court appeared to suggest that the right to cooperate with the police in their investigation is in and of itself a protected public policy regardless of the nature or gravity of the underlying crime which was under investigation. See Fowler v. Great American Insurance Cos., 653 F. Supp. 692.
However, in this case, unlike Palmateer, we need not confront that issue. Here, plaintiff did not allege that he was fired for whistle-blowing or for cooperating with a police investigation as in Palmateer. Rather, the complaint alleges that plaintiff advised and admonished his employer about compliance with ICC regulations and went further by preparing drafts of written contracts which he circulated among his employer’s personnel and supervisors for use in contracting with his employer’s interstate carriers. Thus here, unlike Palmateer, the plaintiff did not allege that he reported the alleged illegal activities of his employer to a government enforcement agency. Instead he alleged that he attempted, by himself, without his employer’s authorization, to internally override his employer’s business practices, albeit for the purpose of bringing about his employer’s compliance with ICC regulations. The facts here are therefore more analogous to Fowler rather than to Palmateer and would, therefore, not suffice to invoke the public policy which may well arise under Palmateer to protect an employee who "blows the whistle” or otherwise cooperates with a police investigation of any criminal activity.
Accordingly, subject to the foregoing qualms and qualifications, I concur with the conclusion of the majority.