Illinois Statutory and Common Law Immunity.

The Appellate Court recently issued a published opinion reversing the dismissal of a Kane County slander suit filed by a former police officer of the City of Aurora against former Police Chief Robert Brent. The officer, Joseph Stratman, alleged that he was slandered when then-Chief Brent labeled him a mentally disturbed individual in interviews conducted by the FBI and the Drug Enforcement Administration (DEA). This article will discuss those aspects of the opinion addressing whether Chief Brent was protected from suit either by the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-201) (hereafter "the Tort Immunity Act" or "the Act") or common-law executive immunity. (Although a variety of waiver arguments were presented to the reviewing court, these aspects of the case and its procedural posture will not be reviewed in the articles published in the Bar Briefs.)

Stratman's third amended complaint alleged that he had been slandered by his former boss due to comments Brent made to the FBI and the DEA after Stratman had applied for the law enforcement positions with those agencies. The complaint alleged that Brent had made the following slanderous remarks to agents of the federal government:

1. Stratman had been involved as an Aurora police officer in an accident in which he fatally shot a burglary suspect in 1979;
2. Stratman's behavior became unpredictable after the shooting and he became incapable of handling stress;
3. Officers of the Aurora Police Department gave Stratman the nickname "Code Red", thereby referring to a mentally disturbed person;
4. Brent had been monitoring Stratman's behavior with an eye toward finding just cause to fire him and was relieved when Stratman resigned his position;
5. Brent would not rehire Stratman and he would make strenuous efforts to prevent his return, including subjecting him to every possible psychological screening;
6. The police department might mutiny if Stratman were rehired and other officers would not work with him; and Brent would not recommend Stratman for employment as a federal law enforcement officer.

In the trial court, Brent claimed that he was immune from suit under section 2-201 of the Tort Immunity Act, since he allegedly was performing a discretionary act as a local chief of police when discussing Mr. Stratman's past performance as an officer. That section of the Act states:

"Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused."

However, the Appellate Court ruled that Brent was not entitled to immunity since he failed to satisfy two legal requirements under this statute.

Firstly, Brent was not exercising discretion in this situation, since he had no legal duty to provide prospective employers with information regarding a former employee. In other words, Brent's actions were not considered matters of official discretion because they were not unique to this law enforcement position. In fact, the Court noted that Brent's acts did not differ from those of any other past employer who might be requested to provide information regarding a former employee.

This portion of the ruling comports with the purpose of the Act to shield officials from lawsuits attacking their decisions made on behalf of a governmental unit. The legislature was understandably concerned with policymakers having to spend inordinate amounts of time and effort defending decisions necessary to the functioning of municipal government. However, since the defense never supported its immunity argument with any reference to a statutory or municipal enactment or regulation, Brent stood in the same legal position as any other former employer who chose to take a swine at a former employee.

Secondly, immunity was denied because Brent was not acting in a policymaking fashion when providing his statements during the interviews. Despite the language of the statute, the defense argued that the existence of a policy determination was not an independent requirement for the application of this type of immunity. However, the Court followed the case of Harinek v. City of Chicago, 283 Ill.App.3d 491, 496 (1996) in determining that Brent had neither pled nor proved this element of the immunity defense.

The defense relied heavily upon the authority of Johnson v. Mers, 279 Ill.App.3d 372, 380 (1996) in advancing its statutory immunity argument. However, the Court distinguished Johnson, since that case involved a decision whether to hire a municipal police officer. Thus, the Johnson defendant/police chief had a duty to make hiring decisions for his department which were unique to his office. The Court drew a sharp distinction between the initial decision to hire a police officer for a local community as compared to providing recommendations for future law enforcement employment. Since Brent did not have any legal duty to the citizens of the United States to ensure the hiring of persons he deemed qualified for law enforcement responsibilities, his statements were not protected by the Act.

Likewise, Brent's claim that he was protected from liability by virtue of common-law executive immunity were rejected. Under the common law, a wide range of executive officials with policy responsibilities can claim absolute immunity from suit for their official actions. But, just as in the case of statutory immunity, that person must act within the scope of his or her official duties. Since the Court did not find the existence of any legal duty owed by Brent, the application of this privilege was rejected in this case.