specially concurring:
If the defendants in this case were unaware that by accepting the reimbursement authorized by the county board they were acting in excess of their authority, could they nevertheless be convicted of official misconduct? While the statute does not require that one knowingly act in excess of one’s authority, should that mental state be implied as a matter of statutory construction? If so, the indictment should be dismissed for failing to allege a necessary element of the offense. See People v. Valley Steel Products Co., 71 Ill. 2d 408, 375 N.E.2d 1297 (1978) (dismissing indictment for failure to allege implied mental state); People v. Grant, 101 Ill. App. 3d 43, 427 N.E.2d 810 (1981) (same); People v. Malone, 71 Ill. App. 3d 231, 389 N.E.2d 908 (1979) (same).
However, in People v. Scharlau, 141 Ill. 2d 180, 199, 565 N.E.2d 1319, 1328 (1990), our supreme court, in reference to the official misconduct statute, stated "[kjnowledge that the action in question violates the statute by being outside the officer’s lawful authority is not an element.” In view of this unambiguous statement, dismissal in this case for failure to allege a mental state appears foreclosed. The argument that section 33 — 3(c) requires an implied mental state was not directly raised in Scharlau, nor was it presented in this case. I believe that if this issue was squarely presented to our supreme court, it would find that a mental state is required. To hold otherwise would risk "creat[ing] a felony out of conduct that was wholly innocent.” People v. Tolliver, 147 Ill. 2d 397, 401, 589 N.E.2d 527, 529 (1992). Given that official misconduct is a Class 3 felony punishable by forfeiture of office and a potential prison sentence of two to five years, such a result should not be countenanced. "It would be unthinkable to subject a person to a long term of imprisonment for an offense he might commit unknowingly.” Valley Steel, 71 Ill. 2d at 425, 375 N.E.2d at 1305. See also People v. Farmer, 165 Ill. 2d 194, 650 N.E.2d 1006 (1995) (finding that offense of possessing contraband in a penal institution required implied mental state of knowledge).
I would also emphasize that defendants’ arguments regarding alleged improprieties by the Grundy County State’s Attorney and the improper use of immunized testimony are not resolved by this decision. No evidentiary hearing was held, nor did the trial court rule on those matters. Therefore, they are, at this time, not ripe for review and may be considered by the trial court on remand.
Finally, in my opinion, the only "crime” committed in this case was the failure to ask the court to appoint Jeremy Margolis as a special State’s Attorney. It is absolutely clear that the Grundy County State’s Attorney could not properly defend the board members after he had sought to have them indicted. In its February 14 indemnification resolution, the county board authorized defendant Kaufmann to hire Margolis and it requested the court to appoint him as a special State’s Attorney. No petition was filed with the court and, therefore, reimbursing the defendants for legal expenses was technically in excess of the board’s authority. I reluctantly concur.
JUSTICE LYTTON joins in this concurrence.