specially concurring:
While I agree that the summary judgment entered by the trial court in this case should be affirmed, I write separately to register my disagreement with the legal analysis employed by the majority in reaching that conclusion.
Extending the decision in Welch v. Johnson, 147 Ill. 2d 40, 588 N.E.2d 1119 (1992), the majority concludes that the legislature did not intend removal from the ballot as a sanction for a candidate’s willful filing of a false statement of economic interest. 292 Ill. App. 3d at 1079. I disagree.
In Welch, the supreme court held that the circuit courts have original jurisdiction over challenges to the truthfulness, correctness, and completeness of statements of economic interest filed in relation to candidacies for elective office (Welch, 147 Ill. 2d at 46), but it concluded that removal from the ballot is not a proper sanction for the filing of inadvertently untrue, inaccurate, or incomplete statements of economic interest (Welch, 147 Ill. 2d at 56). The Welch court was careful to point out that its decision should not be taken as an expression of opinion on the sanctions available for the filing of willfully false or incomplete statements of economic interest. Welch, 147 Ill. 2d at 57. If, as the majority holds, removal from the ballot is not an available sanction for the willful filing of a false statement of economic interest, one can only wonder as to the purpose of the challenge that the Welch court found to be within the jurisdiction of the circuit courts and the relief that might be granted in such an action.
The purpose of the Elinois Governmental Ethics Act (Ethics Act) (5 ILCS 420/1 — 101 et seq. (West 1994)) is to instill in the public trust and confidence in government and its officials by preventing conflicts of interest. Stein v. Howlett, 52 Ill. 2d 570, 289 N.E.2d 409 (1972). To that end, the Ethics Act mandates that candidates for public office file verified written statements of economic interest (see 5 ILCS 420/ 4A — 101 (West 1994)) that are "true, correct and complete” to the best of the candidate’s "knowledge and belief’ (see 5 ILCS 420/4A— 103, 104 (West 1994)). Failure to file a statement of economic interest, "as provided by law,” renders a candidate ineligible for office. Ill. Const. 1970, art. XIII, § 2.
To my mind, the filing of a willfully false statement of economic interest is the functional equivalent of filing no statement at all. In either case, the very purpose of the Ethics Act is frustrated. Further, the filing of a willfully false statement of economic interest is not the filing of a statement "as provided by law,” since the statute mandates the filing of a true and correct statement.
The majority goes on to hold that its decision "makes clear that no private right of action exists under the statutes for the willful filing of a false statement.” (Emphasis added.) 292 Ill. App. 3d at 1079-80. If the majority means to imply that any action for sanctions by reason of a violation of the Ethics Act must be brought by either the Attorney General or the State’s Attorney of the appropriate county and cannot be brought by a private citizen, the general proposition finds support in the decision of this court in Allen v. Love, 112 Ill. App. 3d 338, 445 N.E.2d 514 (1983). However, the question of whether a private individual can bring such an action is one of standing. The defendant never moved to dismiss this action by reason of the plaintiff’s lack of standing and never raised the issue in his brief. Because lack of standing is an affirmative defense (Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 494, 524 N.E.2d 561 (1988)) which, if not raised before the trial court, is waived (Steier v. Batavia Park District, 283 Ill. App. 3d 968, 971, 670 N.E.2d 1215 (1996)), it should not be addressed, sua sponte, by this court.
My disagreement with the reasoning of the majority notwithstanding, I too believe that summary judgment was appropriate under the facts of the case before us.
Summary judgment is to be granted when the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 — 1005(c) (West 1994); Carruthers v. B.C. Christopher & Co., 57 Ill. 2d 376, 313 N.E.2d 457 (1974). In ruling on a motion for summary judgment, the court must construe the pleadings and evidentiary material on file strictly against the movant (Kolakowski v. Voris, 83 Ill. 2d 388, 415 N.E.2d 397 (1980)), and draw all reasonable inferences from that evidentiary material that are favorable to the respondent (Lapidot v. Memorial Medical Center, 144 Ill. App. 3d 141, 494 N.E.2d 838 (1986)). Evidentiary material submitted in support of a motion for summary judgment will be taken as true, however, unless contradicted by counterevidentiary material submitted in opposition. Carruthers, 57 Ill. 2d at 380; Fooden v. Board of Governors, 48 Ill. 2d 580, 272 N.E.2d 497 (1971).
Section 4A — 102 of the Ethics Act (5 ILCS 420/4A — 102 (West 1994)) required that the defendant, James E. Sims, a candidate for the office of alderman in the City of Harvey, file a statement of economic interest listing, inter alia, the name of any entity from which he received income in excess of $1,200 in the preceding calendar year, and the name of any entity doing business with the City of Harvey in which he had an ownership interest with a fair market value in excess of $5,000 or from which he derived dividends in excess of $1,200 in the preceding calendar year. Sims listed no such entities.
The plaintiff charged that Sims filed a false, untrue, and incomplete statement of economic interest and sought his removal from the ballot. In his original complaint, the plaintiff charged that Sims intentionally failed to report 1996 income in excess of $1,200 received from Biotek Corporation, a company doing business with the City of Harvey, and intentionally failed to report his position as a maintenance analyst/consultant with Biotek in 1996, a year in which Biotek received in excess of $5,000 in compensation from the City of Harvey for janitorial services.
Sims filed a verified answer to the plaintiff’s original complaint wherein he denied, under oath, that he worked for or derived any income from Biotek in 1996. Sims also filed his own affidavit and the affidavit of the sole shareholder of Biotek stating that Sims did not work for or receive any income from Biotek in 1996.
Sims moved for summary judgment arguing, among other grounds, that the affidavits submitted in support of his answer belied the allegations of the plaintiff’s complaint. Although the plaintiff’s complaint was verified, its charging allegations were made on "information and belief.” Further, the plaintiff never filed counterevidentiary material in opposition to the affidavits submitted by Sims. Instead, the plaintiff filed an amendment to his complaint on the very day that Sims’s motion for summary judgment was before the court for hearing. In that amendment, the plaintiff alleged that Sims also failed to disclose his 1996 income from, and ownership interest in, North American Service & Supply (North American), a cleaning service business. However, in response to a notice to produce demanding all documentary evidence in support of the allegations in his complaint, the plaintiff produced portions of the City of Harvey’s check register reflecting that North American received a total of $876.40 in compensation for maintenance services in 1996.
Since the plaintiff submitted nothing in opposition to the affidavits submitted by Sims, those affidavits must be taken as true. As such, Sims was clearly entitled to summary judgment on the plaintiff’s original complaint relating solely to his alleged failure to disclose a relationship to and income from Biotek. The plaintiff’s eleventh-hour amendment to his complaint placed in issue Sims’s alleged failure to disclose his income from and ownership interest in North American, an entity doing business with the City of Harvey. Again, however, the plaintiff made his charges in this regard on "information and belief.”
In addition to denying that he derived any income from or held any position with Biotek in 1996, Sims averred in his affidavit that his statement of economic interest was true and correct. One of the assertions made by Sims in his statement of economic interest was that he examined the document and, to the best of his knowledge and belief, it was a true, correct and complete statement of his economic interests as required by the Ethics Act. The plaintiff submitted no evidentiary material which, if true, would have required Sims to disclose North American on his statement of economic interest. Consequently, Sims’s affidavit averring to the truth and correctness of his statement of economic interest stood uncontradicted.
Although the trial court did not base its entry of summary judgment in this case on the absence of a genuine issue of material fact on the plaintiff’s charging allegations, this court can affirm a summary judgment for any reason apparent from the record. Sentry Insurance Co. v. S&L Home Heating Co., 91 Ill. App. 3d 687, 691, 414 N.E.2d 1218 (1980). For the reasons stated above, I find no genuine issue of fact on the willfulness of Sims’s failure to disclose North American on his statement of economic interest.