three roach the podium ellis we've both sides counsel richard has a assistant attorney general representing the defendant dr would occur and i would ask for no more than fifteen ok thank you we have read the briefs you looked at the pieces so we heard you just stick to what you work under would occur we we do not argue that we argue that under the executive are to call it was for the governor to appoint another assistant director and for the of whitaker being the supervisor which is what justice murphy just pointed out so he not and would have not been employed by the state of illinois has been the director he certainly would not have been in a position to terminate employment for attempt terminate employment with the assistant director and so therefore the question would be so therefore doesn't the basis of plane arise out of what would occur did for this to his employment whitaker's employment now with the state of illinois because it was an authorized he stepped outside of his role as director and docking has the right to sue him directly and it's not a matter for the court claims all right i understood i suggest is not enough just to make an the elements forces interference that he had an employment relationship and that the team was unjustified in i'm sorry that that that that that would occur in employment relationship and certainly a statute should be able to do that would occur also argues that he had a qualified privilege to remove doubt and yet he acted  that you could present your own argument with justice quinn raise some questions as i gave you my address knows you're in your and i always figure that oral argument is for the benefit of the court more than anything else  might my family accuses me of being hard of hearing and i suggest that they mumble but i haven't gone in for the hearing test yet let me make sure that i speak loudly and clearly i'd like to clarify with respect to the provisions of r the duration of the term shall be until a for a two year period starting the third monday in january a broad number of years until a successor is appointed and qualified i may have used the word conformed in my brief and i'd like to correct that i don't know it may be true it may not be true that confirmation by the senate is necessary but the statute uses the term qualified and the succeeding provision of the code refers to qualification as taking you know if i think in posting up by so i don't want to leave any misimpression there there is no allegation that there was an ill motive at all in connection with the  the terminations there's no doubt the doctor would occur who takes is true the allegations of the complaint for purpose of the motion to dismiss but isn't going to admit that in the real world they're all true that he did so in his capacity as director and we will accept for the sake of this motion to dismiss in this appeal that he did not have the technical legal authority to terminate dr dr docking before a successor was appointed but the question in this case is not whether dr docking had a statutory right to be reinstated to the position or to hold a position during the stub period and maybe that was for the benefit of the public so that the office wouldn't remain vacant not for the benefit of the office holder that could be enforced in a private right of action against the state for mandamus those are realistic questions but they're not the questions before the court here the question before the court here is whether the claim stated in the complaint which is based solely on one theory which is tortious interference with contract whether that was properly dismissed assuming the truth of the well pled factual allegations but not the factual conclusions or legal conclusions in the complaint and i suggest that for the principal reason that the lawyers clear that those statutes don't create a contract and that the complaint in the motion for leave to file it couldn't be clear that it was proceeding strictly on the basis that these two statutes which create the position of assistant director and that specify the duration of office for that position and that's correct twenty of the amended complaint it said to page six of the appendix of the plaintiff's opening brief that they allegedly create the existence of a valid and enforceable contract between dr backing and the state of illinois that's the linchpin of this tortious interference with catterick claim and if it's wrong which we assert it is and there is no contract created by that statute regardless of whether there's a statutory right that could be enforced then there can't be torturous interference with contract and that's what this court held in the leavitt vs chorused case is that statutes and ordinances that specify the salary or compensation and  whether these statutes by themselves along because that's all that's a wedge before the court created a private contract in the world has been clear for many many many years that when you have a public office that's created by statu and the terms of which are created by statute there isn't a contract and there's a sound policy behind it which is that to the extent that the legislature creates the position it can change the legislative terms of their position and the supreme court has repeatedly held that those legislative changes can't be attacked on the constitutional theory that they appear the obligation of contract because they don't create a contract the legislature retains the authority when it sets the terms and provisions of public offices to amend us in less the statute specifically by its language reflects an intention to create private contractual rights and that simply is not present here i i can't say from personal knowledge that there isn't a court of claims suit pending but our position is that to the extent that there is any valid claim for compensation by the plaintiff that could be brought and that claim is one that is viable against the state that that is where it belongs the soudan immunity argument was made but on appeal we've stuck to sort of the simpler i think narrower and easier ground which is that to the extent that there is now a geisha and that the alleged action by dr whitaker in implementing determination at the end of this two year period was all true very s and didn't involve a discretionary function that the issue here isn't really one of sovereign immunity i do want to emphasize however though that to the extent that the plaintiff is right and had to put had the statutory authority to be in this position during this stuff period until successor was appoint qualified that the proper remedy was to bring him in damus action within the will narrow time limits that are a lot for those agents in fact they did bring a mandamus action and a some of defensive latches was filed because it's well recognized that somebody seeking public office under a claim that they were improperly denied the right to occupy the position has to bring that action quickly so the government isn't at the position of having to pay for services that i provide next claimed that he wasn't paid for the work that he did while he was in the position he wants to be paid for work that he didn't do for the position after he was terminated from it and he's not seeking for the payment from the state he's seeking for the payment from the director employee and officer indemnification and the state pursuant to a determination early made by the attorney general i don't think that's part of the issues the court needs to decide but it's relevant background if the state either can refuse state is also the statutory insurance carrier if you will i usually don't bring up you know insurance availability in cases like this because the focus is on the liability between the parties but the reality is that the state i'm going to the system to turn in general i'm representing him pursuant to that statute i'm not representing the state here the state is not my client the state is dr whitaker and if a judgment were obtained against him the reality is he would pursuant to that indemnification act and the judgment over to the state existence of such statutory protection doesn't trigger side community and i think the law as it is clear the fact that the state provides this type of reassurance and protection for of some employees and officers does not mean that this  know going into the mental thinking behind us one of the reasons we didn't argue that in this case is because at least the complaint alleges that the director had no discretion at all to terminate dr duchene in this case so it doesn't implicate best specter of which also protects against personal i believe claims against officials that the the so the key point i want to come back to is that the law has been clear for many years and the plaintiff doesn't cite a single case to the contrary that a statutory right with respect to the duration or compensation of a public office doesn't create a private contract for good and sound policy reasons and without private patrick there's no tortious interference with cantor there's another distinction which works in the background and i don't want to develop i just want to mention here which is the distinction between a public a public official or officer and a public employee the civil administrative code also says that beyond all these people that are named in the code specifically the offs that are created  the various departments can also have employees subject to the personnel codes provisions we're not dealing with it here we're dealing with a public office and a statute that creates the terms of it and the sole question is does that create a private employment contract and the the plaintiff's argument as well he's not it will therefore he must have an appointment contract and then it is a a false dichotomy it creates a false between ten year in an employment contract and it's wrong on every ground you can have in the private sector certainly you can have an express elaborate written contract with all sorts of terms and conditions and that's an employment contract that says oh and by the way the employee can be terminated at will there's nothing wrong with it and in the public side you can have statutes or even constitutional provisions that specify the duration of a term of office so that it's not a well in the person can only be removed upon certain grounds but that's still not an employment contract it's just a statute and it's telling that the very case that the plaintiff cites in the reply brief the pleasure driveway park district case says that an employer normally may discharge an employee without cause or reason or for any cause or reason in the absence of contract or statutory provision those are two alternatives you can have the right not to be terminated well employment contract will concede that pursuant to a statute that's what we have here it's not a contract and without a contract there can't be a tortious interference with cataracts plain and simple i essentially said everything else in my brief that i'd like to see to discuss i could briefly touch upon the second alternative ground for from the judgement which is there's a policy that requires people to get a judgment restoring them to a position before they seek recovery for unpaid salary during the time when they were not in their position and it protects the public thinks it's you can't sit on your hands and say oh well wait wait wait do no work for the government but then they have to pay me for that whole period that i'm not working it creates certainty it creates predictability and it requires a promise because a suit to be restored to that position has to be brought quickly and it avoids the government being put at the risk of having to pay for services that are rendered now you know the argument here is made oh no no we're just establish the right to their position as part of this damages suit against dr whitaker that's not what the case is whole they required bed that the judgment went to the person reinstated not that there just be some declaration of the legal rights involved and the second argument made is that all that doesn't apply this is toward suit against an individual not a claim against the government and so those policy considerations don't apply and i would say if that were enough of a distinction to to displace this principle then every time that there's a suit like this you may have the same person sent if you sit on your hands you provide no services to the government and then you go to the to the controller or the treasurer or the budget officer and say you're personally liable because the law required you to cut me  for my salary even though i wasn't doing any work and i'm suing you for you know tortious interference with my rights it's the same policy it's the government offices the right to obtain those services into and that and for there not to be any liability for services that are rendered during that period of time so for those reasons and those set forth in my brief unless the court has any other questions i urge the court to affirm the judgment dismissing this action if you cast thank you your honors everything follows from that that's why we're here today with the crowd you said it was a technical violation it wasn't a technical violation he had no authority to do what he did this is the rule of law  can't wish it away that way and second of all there hasn't been any briefing about whether the state senate is a mere formality we believe when you read the statute article five it will be clear that the illinois senate had to confirm as that word is is generally known bet it wasn't simply the governor appointing but even so the governor did not appoint someone and dr d you're creating employment are our cases our pleasure driveway and the gus case and they do create that exception and we argue dead in your now brief