dissenting:
I respectfully dissent from the majority opinion. While the majority has accurately stated the facts, additional facts are helpful to understand the whole picture and my view of this issue. At trial, the State presented extensive evidence to support its case that Stroud led a criminal drug conspiracy by conducting a cocaine distribution ring out of his home and that on the night of July 12, 1998, three calls were intercepted that were attributed to defendant. The first two calls were made from a telephone line registered to the Village of Glenwood at a time that defendant was working as a dispatcher. The third call originated from defendant’s personal telephone line. The first call from the village was placed at 9:48 p.m. and the transcript of the phone call reads, in pertinent part:
“DEFENDANT: Keep your scan[n]er on there is some stuff going on in your area[.]
MR. STROUD: Say what[?]
DEFENDANT: Keep your scanner on[.]
MR. STROUD: What up?
DEFENDANT: OK I’m at work[.]
MR. STROUD: What do you heart?]
DEFENDANT: I’m at work[.]
MR. STROUD: OK[J DEFENDANT: OK[.]”
The second recorded call was placed 20 minutes later, at 10:08 p.m., from the same number and the transcript reads in pertinent part:
“DEFENDANT: You have some eyes staged at the college[.]
MR. STROUD: Say again!.]
DEFENDANT: At the college!.]
MR. STROUD: At the college!.]
DEFENDANT: Yeah[.]
MR. STROUD: What! — A [b]urglary or something?
DEFENDANT: Huh! — No—Some eyes[.] You know what I’m Maying?
MR. STROUD: Yeah[.]
DEFENDANT: At the co — co—co—
MR. STROUD: I know what you’re sayingt.]
DEFENDANT: OK[.]
MR. STROUD: ThanksL]
DEFENDANT: Don’t worry about that other stuff you’re hearing about the barricaded subject that’s not what I’m talking about!.]
MR. STROUD: Yeah — Yeah when you get off call me[.]
DEFENDANT: I sure will!.]”
The final call came from defendant’s home telephone number and was intercepted at 11:30 p.m. on July 12, 1998, and the transcript of the call reads, in pertinent part:
“MR. STROUD: Yeahf.]
DEFENDANT: Yeah it’s me[.]
MR. STROUD: What up?
DEFENDANT: Uh — I don’t know exactly what — what’s going on — It ain’t like I really heard nothing!.] It’s like OK this guy over there on 160 something and South Park he done barricade his house — Barricade his self in the house and we had to send a SERT team over there so we—
MR. STROUD: You all district go that far?
DEFENDANT: Huh?
MR. STROUD: You all district go that far?
DEFENDANT: Yeah we all District 3 — Even South Holland!.]
MR. STROUD: OK[.]
DEFENDANT: And uh — We send a SERT team in the area we have to let any agents know in the area that we’re coming through and there’ll be a lot of radio traffic so either they can change frequencies or whatever and I know I had to send it via computer!.]
MR. STROUD: Alright!.]
DEFENDANT: I had to send it over to they use posts like post one — post two for locations!.]
MR. STROUD: Alright!.]
DEFENDANT: I just so happen to know where post 20 is and that’s South Suburban College!.]
MR. STROUD: Uh huh[.]
DEFENDANT: So I’m not sure what agency you know if there’s FBI — DEA—or ATF or whatever but we just know there’s agents in the area — Eh you know and they at South Suburban cause that’s where I had to send the message to[.]
íj;
MR. STROUD: Huh? — Would have to be one of them ATF or FBI?
DEFENDANT: Yeah — It’s one of them it’s it’s either ATF[,] FBI or DEA cause those are the only ones that let us know where they at!.]
MR. STROUD: OK[.]
DEFENDANT: Those three agents you know those three departments will let us know that they in the area not exactly where they at but they in the area so like I said they give us different posts they’ll—
MR. STROUD: Now what — What frequency frequency — X3 (stuttering) is the one[?]
^ ^ ^
DEFENDANT: OK you pick up Hazelcrest!,] Homewood!,] Glen-wood — Thornton and Glenwood is in there!.]
MR. STROUD: OK — (Unintelligible) See what that’s about let me know!.]
DEFENDANT: Yeah basically they probably won’t I probably won’t hear nothing but if I do I’ll let you know!.]
MR. STROUD: OK bet[.]
DEFENDANT: Alright!.]
MR. STROUD: Everybody alright?
DEFENDANT: Yeah they OK!.]
MR. STROUD: Oke Doke[.]
DEFENDANT: Alright!.]
MR. STROUD: Hey thanks!.]”
Defendant admitted that she made these three phone calls and that she knew Stroud had a police scanner. Defendant testified that she did not know he was a narcotics dealer. Defendant claimed that she did not know whether police or agents were staged near Stroud’s home but she was just “throwing something at him.” Defendant testified that she called about the nearby barricade situation and made up the other information to give him the impression police were watching and see if he was doing anything illegal.
On cross-examination, defendant admitted that when she started working for the police department she was informed of the rules of the department and given a written copy of the rules. Defendant testified that she was told what confidential information was and that it was a violation of the rules to discuss or impart confidential information to anyone except those to whom the information was directed. Defendant admitted that this policy was important to ensure the safety of policemen in their work. However, defendant reiterated her claim that she did not disclose any confidential information.
Alex DiMare testified that dispatchers are civilian public employees who are responsible for disseminating information amongst police officers. DiMare testified that all employees of the department are trained and given verbal and written materials regarding the department’s rules and regulations. DiMare testified that those trainings and materials specifically cover the department’s rules and policy concerning confidential information. DiMare testified that the rules and regulations were adopted by the village trustees in 1985 and in effect from that time through DiMare’s retirement on June 28, 2000.
As ordered by this court following oral argument, the parties submitted supplemental briefs on the issue of whether the Glenwood police department’s rules and regulations were “law” for purposes of the official misconduct statute. The State provided copies of the Village of Glenwood ordinances covering the police department. In addition, the State provided the minutes of the November 19, 1985, meeting where the village trustees approved the rules and regulations package, as testified to by DiMare. Based on this information and the actions of the defendant, I believe the conviction for official misconduct should be affirmed. The key differences I have with the majority opinion are the exclusion of the codified rules and regulations from the definition of “law” and the use of the rules and regulations to exclude defendant as a civilian employee.
1. The Village of Glenwood Police Department Rules and Regulations
The official misconduct statute was designed to prevent public officials from abusing their position in violation of the law for personal gain or criminal enterprise. Fellhauer v. City of Geneva, 142 Ill. 2d 495, 506 (1991). While “law” is not defined in the statute, the majority notes that our supreme court stated that a violation of the statute may arise from behavior forbidden by statute, supreme court rule, administrative rules and regulations, or tenets of a professional code. Fellhauer, 142 Ill. 2d at 506. They conclude that affirming defendant’s conviction based on the police department rules and regulations would be too far an extension from the already expansive reading of “law” by the Fellhauer court.
The majority runs through constitutional and statutory provisions to demonstrate how local ordinances do not fit within the categories enumerated in Fellhauer. The majority also distinguishes the recent finding of our supreme court that the legislature intended to include municipal ordinances and state statutes in the term “statutory” contained in the limitations provision of section 13 — 202 of our Code of Civil Procedure because it followed the principle of giving statutes their fullest possible meaning. Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 11 (2009). In the absence of proof that the legislature intended a narrower meaning of the ambiguous term statutory, the court followed the broader interpretation of statutory found in numerous sources that hold municipal ordinances as laws of the state.
I disagree with the majority’s view that the ordinance must be shoehorned into the language of Fellhauer or that Landis must be distinguished because this case involves a criminal statute. Rather, I believe that our supreme court’s subsequent decision provided guidance that this approach is too narrow and the rules and regulations at issue here should be considered laws. In fact, both the majority and dissent in Landis describe ordinances as “laws,” the simple requirement in this case. Landis, 235 Ill. 2d at 9-13, 17-18.
In People v. Howard, 228 Ill. 2d 428 (2008), our supreme court recently considered what constitutes a predicate unlawful act for purposes of section 33 — 3(c) of the official misconduct statute. In finding an indictment for the defendant’s use of a city credit card for personal items in violation of the state constitution sufficient, the Howard court considered and expanded the holdings in Fellhauer and People v. Grever, 222 Ill. 2d 321 (2006). Howard, 228 Ill. 2d at 432-33. In Grever, the court refused to impose criminal liability under the official misconduct statute based upon the “amorphous concept of a ‘breach of fiduciary duty.’ ” Grever, 222 Ill. 2d at 338. The Howard court found that a violation of the Illinois Constitution, as the supreme law of this state, was not an amorphous concept and could serve as a predicate act. The court concluded this was consistent with the finding in Grever that a violation need not be specifically described in the Criminal Code. Howard, 228 Ill. 2d at 437, quoting Grever, 222 Ill. 2d at 337.
The Howard court noted its concern that such a ruling could enhance the specter of overzealous prosecution of official misconduct allegations. However, it softened this concern with the reality that winning a conviction under the statute is not a simple matter, “particularly if a prosecutor should attempt to utilize the statute without considering that its reach is not limitless.” Howard, 228 Ill. 2d at 438. Furthermore, the court pointed out that there is no de minimis exception within the statute and indicated this issue may only be considered by the legislature. The court concluded that this issue was ripe for such review and strongly suggested that this occur. Howard, 228 Ill. 2d at 438-39.
An official misconduct charge may also be based on an administrative rule or regulation, even absent any penalty provision for that rule. People v. Becker, 315 Ill. App. 3d 980, 1000 (2000). Such a rule or regulation enjoys a presumption of validity and has the force and effect of law. Becker, 315 Ill. App. 3d at 1000. The Village of Glenwood is a home rule community and thus, under article VII of the Illinois Constitution of 1970, has “the same powers as the sovereign except where such powers are limited by the General Assembly” which must be construed liberally. City of Urbana u. Houser, 67 Ill. 2d 268, 273 (1977), citing Ill. Const. 1970, art. VII, §§6(a), (i), (m). According to the Houser court, “[i]t requires no strong prisms to see the breadth and depth of the powers of home rule units.” Houser, 67 Ill. 2d at 273.
While not a state statute or administrative rule, the rules and regulations are approved and codified as an ordinance by a home rule community and a patently important component of protecting the public safety in the Village of Glenwood. As in Howard, violation of these rules is not an amorphous concept and, with the same powers as the sovereign, the village is authorized by statute and the state constitution to pass and enforce ordinances such as these at issue. Limiting the reach of the official misconduct statute in this manner would emasculate municipalities and run counter to the purpose of that rule, but also the clear authority vested by the legislature and constitution to home rule units.
2. Application of Rules and Regulations to Defendant
The majority summarily asserts in footnote 4 that, although she was a public employee, defendant was not a member of the police department and the rules and regulations therefore did not apply to her. Citing to the Village of Glenwood Municipal Code, the majority notes it provides the police department “shall consist of one chief of police, one deputy chief of police, four sergeants and 19 patrol officers, and such other members as may be provided for from time to time by the village president and board of trustees.” Village of Glenwood Municipal Code art. II, §58 — 31 (eff. May 1, 2007). The majority concludes that, because defendant was a civilian employee she was not a member of the police department and the rules and regulations did not apply to her.
I believe that this argument runs counter to common sense and the testimony at trial. Having determined the rules and regulations are laws, I would apply them to defendant. There is no dispute that defendant was a public employee as a dispatcher for the Glenwood police department. DiMare testified that all employees of the police department are verbally instructed that the dissemination of confidential information is prohibited. As detailed above, DiMare read into the record the portions of the rules and regulations covering this issue and testified that all employees are given paper copies of these rules and that the rules apply to these employees. DiMare opined that defendant disclosed confidential information to Stroud and that this jeopardized the ongoing operation at South Suburban College, resulting in a change in the staging area by the police department.
Defendant testified that she was trained on the rules and regulations, including the confidentiality rules, when she started working for the Glenwood police department. Defendant further admitted that these rules banned the dissemination of confidential information or any information that may delay arrest or aid a person to escape. Defendant stated that she understood the public safety and the safety of police officers would be compromised if these rules were violated.
Accordingly, the testimony established that: the police department considered dispatchers as members that are subject to the rules and regulations; the rules were imparted in training and in writing; and defendant understood the rules and that they applied to her. Furthermore, the nature of defendant’s duties as a radio dispatcher naturally lead to the requirement that confidentiality rules apply to that position. Strictly construing the municipal code allows for the logical inference that a dispatcher who is privy to the confidential workings of the police department is considered a member of that department and required to follow confidentiality rules.
As the trier of fact, the trial court obviously found defendant incredible and did not accept her claims that she made up the information imparted to Stroud as part of a scheme to find out if he was up to something. Evidence showed that the Glenwood police department and other law enforcement were staged at South Suburban College at that time and this plan was modified after the telephone calls were intercepted. Based on the plain language of the transcripts of the telephone calls and trial testimony, and the inferences that may be made from each, the trial court properly found the State proved the elements of official misconduct against defendant. This was not a violation of an amorphous concept such as a fiduciary duty or simply a rule of employment. The importance of these rules and the ramifications of failing to follow them is obvious as is the application to the position of police dispatcher.
As the able majority opinion and this lengthy dissent evidence, I agree that the underlying issues in determining this matter are not simple. However, sometimes breaking an issue down to the basics is helpful and you can determine that which is difficult to articulate, or, as Justice Potter Stewart famously said of pornography, “I know it when I see it.” Jacobellis v. Ohio, 378 U.S. 184, 197, 12 L. Ed. 2d 793, 804, 84 S. Ct. 1676, 1683 (1964) (Stewart, J., concurring). Similarly, when a police dispatcher alerts a drug dealer of potential police activity aimed at him, it has to be official misconduct. Put quite simply, if this case is not an example of official misconduct, then I do not know what is.