specially concurring:
While I concur with the conclusion that plaintiff failed to state a cause of action in retaliatory discharge (count I), I am somewhat troubled by the breadth of the majority’s rationale.
The majority holds that recognition of a cause of action for retaliatory discharge is not necessary to vindicate the public policy underlying the official misconduct statute because that statute contains its own strong deterrents to violations (Ill. Rev. Stat. 1987, ch. 38, par. 33 — 3), and the policies of the Illinois Municipal Code favoring mayoral discretion in the removal process pose a significant counterbalancing weight (Ill. Rev. Stat. 1987, ch. 24, par. 3—11—1).
I do not question the maintenance of a. proper balance among the employer’s interest in operating a business efficiently and profitably, the employee’s interest in earning a livelihood and society’s interest in seeing its public policies carried out. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 129.) Therefore, consideration of the impact that recognition of such a claim for retaliatory discharge might have upon mayoral discretion is appropriate. I do, however, question the notion that the penalties, imposed by the official misconduct statute, sufficiently advance the underlying public policy and deter inconsistent employer conduct to the extent that a claim for retaliatory discharge is not cognizable under certain circumstances.
In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, this court held that despite the existence of criminal sanctions, in the form of fines, which might be imposed upon employers for violating the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.4(h)), a civil remedy for damages was necessary to ensure that underlying public policies of the Act were not frustrated. This court stated that the imposition of the small fine, which enured to the benefit of the State, did nothing to alleviate the plight of employees threatened with retaliation for exercising their rights under the Act. We recognized that some employers might conceivably risk the imposition of criminal sanctions in order to escape their responsibility under the Act. Furthermore, we understood that simply because an act is penal in nature, it does not necessarily follow that a civil remedy is thereby barred.
Similarly, in Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, we held that despite the existence of section 5851 of the Energy Reorganization Act (42 U.S.C. §§5851(a), (b) (1982)), which protects an employee from employer retaliation by allowing reinstatement and recovery of compensatory damages, a cause of action for retaliatory discharge was, nevertheless, cognizable.
In keeping with our analysis in Kelsay and Wheeler, the forfeiture of office by a public employee, or the criminalization of his conduct, does not necessarily effect the prevention of pressured official misconduct, nor do such penalties obviate the need for additional remedies. In sum, I do not think that the deterrent effects of the official misconduct statute (imposed solely upon employees) ought to be afforded the weight the majority presupposes. I can readily envision a future situation in which a public employee’s “whistle-blowing” conduct is unambiguously supported by the public policy underlying the official misconduct statute with the result that the majority’s rationale concerning “deterrents” simply does not work.
Rather than relying upon a balancing of policy interests and appropriate implementations, I believe that the result here would have been realized simply by considering whether plaintiff's discharge contravened clearly mandated public policy. (Palmateer, 85 Ill. 2d at 134.) Here is an instance of the alleged actions hardly being supported by the public policy, underlying the official misconduct statute, so that the discharge could be said to contravene that policy. Indeed, plaintiff cites to no law that would have been violated by his acquiescence to defendant’s request to delay the WEPCO negotiations as required by the misconduct statute (see Abrams v. Echlin Corp. (1988), 174 Ill. App. 3d 434, 440), and only alleges that he properly advised public vendors regarding contributions and made inquiry of the city attorney. Certainly, the nature of the interests at stake here is sufficiently muddled so that a cause of action for retaliatory discharge has not been alleged.
JUSTICES CLARK and HEIPLE join in this special concurrence.