## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

Ferguson v. Patton , 2013 IL 112488

Caption in S upreme Court: J OSEPH M. FERGUSON, Inspector Gene ral of the Cit y o f Chicag o, Appellee
, v. STEPHEN R. PATTON, Corporation Counsel of the City of Chicag o, Appellant.

Docke t No. 112488

Filed Marc h 21, 2013

Held ( Note : Thi s sy ll abus

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by t h e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The I llinois Municipal Code g ives authority to initiate leg al proce eding s

on behalf of a city only to its corpo ra t i on counsel; and a municipal inspector gener al to whom city ordinanc e had g iven authority to issue subpoenas never

theless lacke d authority to reta in private co u nsel and bring an action in circ uit court ag ainst the city ’s law depar tment seeking production of doc uments.

Dec ision Under Review Appea l from the Appellate Court for the First District; hear d in that court

on appea l from the Circuit Court of Cook Co u nty , the Hon. Nanc y J

. Arnold, Judge, pr esiding

.

J udg ment Appellate c ourt judg ment reve rsed in par t and vac ated in par

t. Circuit court judg ment aff irmed in part a

nd vacated in part.Counsel on

Appea l Stephen R. Patton, Corporation Counsel, o f C hicag o (B enna Ruth Solomon, M y

riam Z rec zny Kaspe r and J. Mark Powell, of counse l), for appellant.

Alexander Polikoff, of Chica g o, for a ppellee.

J ustices J USTI CE KARMEI ER delive r e d th e judgme nt of the court, with opinion.
Chief J ustice Kilbride and J ustices Fr eema n, Thomas
, and Gar

man

concur red in the judg ment and opinion.
J ustices B urke a

nd Theis took no part in the de cision.

OP INION

¶ 1 The issue in this case is whether the Inspector Gene ral of the City of Chicag o may reta in private counsel to bring an action in circ uit court to compel the City o f Chicag o’s Corporation C o u n s el to produce unreda cted copies of documents soug ht by the Inspector Gene ral as part of an official i n v est iga tion into municipal corr

uption. The circuit court of

1 Cook County answe red that ques t i o n in the neg ative, dismiss ing the Inspector Gene ral’s action on the g rounds that the I nspector Gene ral lacke d authority to reta in private counsel to bring suit and, in t h e al ternative, beca use it ag ree d with the Corporation Counsel that the reda cted documents wer e protec ted by the attorney -client privileg e. The ap p el l at e court

reve rsed and rema

nded, with one justice dissenting. 409 I ll. App. 3d 956. For the rea sons that follow, we now reve rse in part and vacate in part the appellate court’s judgme nt and aff irm in part and va cate in part the judg ment of the c ircuit court.

¶ 2 BA CKGROUND ¶ 3 The off

ice of Inspector G ener al of the City of C hicag o is a municipal offic e cr eate d by chapte r 2-56 of the Chicag o Municipal Code (Chicag o Municipal Code § 2-56-010 et s eq. (adde d Oct. 4, 1989)). T h e I n s p ector Gene ral is appointed by the may or of Chicag o with
approva l of the city council for a four- y ear term. Chicag o Municipal Code § 2-56-020 (adde d Oct. 4, 1989). A mong the power s and duties of his offic e ar e:

Wh en thi s li ti gatio n comm enc ed, Ma r a S

. G eor ges ser ved as Corp ora ti on Couns el

. Ms

. 1 Geor ges was sub sequen tl y suc cee ded in off ic e by Ste phe n Pat ton

. Mr

. Pat to n h a s n o w bee n sub st itute d as a par ty by o rde r of thi s Cou rt . Bec aus e M s. Ge orges andMr . Pat ton ar e i nvolved i n the se pro cee din gs sol el y in the ir off ic ia l cap aci ti es, thi s opi nio n wil l not dif fe re nti at e bet ween the m when set ti ng out t he f

act s a nd d is cus si ng the le gal ar gum ent s i n t he c ase

.

-2-“(a ) To rec eive and reg ister complaints and information conce rning misconduct, ineffic iency

and wa ste within the city g overnme nt; (b) To investigate the perf ormanc e of g overnme ntal office rs, empl oy ees, functions and prog rams, either in response to complaint or on the inspector g ener al’s

own initiative, in order to detec t and pre v en t misconduct, ineffic iency and waste within the prog rams and ope rations of the c ity g overnme nt; (c) To promote econom y , eff iciency
, eff

ectivene ss and integ rity in the administration of the prog rams and operations of the city g overnme nt by revie wing
prog rams, identifying any ineffic iencies, waste and potential for misconduct there in, and rec ommending to the may or and the city council policies and methods for the elimination of ineffic iencies a nd waste, a

nd the pre vention of misconduct; (d) To repor

t to the may or conce rning results of investigations undertaken by the office of inspector

g ener al; (e) To reque st information related to an investigation from any employ ee, office r, ag ent or lice nsee of

the city ; (f) To conduct public hear ings, at his discretion, in the course of an investigation here under; (g ) To administer oaths and to examine witnesses under oath; (h) To issu e s u b p oenas to compel the attendanc e of witnesses for purposes of examination and the production of documents and other items for inspection and/or duplication. I ssuance of subpoenas shall be subject to the restric tions contained in Section 2-56-040; [and] (i) To promulg ate rules and regulations for the conduct of investigations and
p u b l ic hear ings consistent with the require ments of due proce ss of law and equ al protec tion under the law.” Chicag o Municipal Code § 2-56-030 (adde d Oct. 4, 1989). ¶ 4 I n acc ordanc e with subsection (b) of this ordinanc e, th e I n s p ec t or Gene ral initiated an investigation in J anuar

y of 2007 reg arding possible improprieties with respe ct to how a former City

employ ee ha d been a

war ded a City

contra ct without goingthroug h the normal competitive proce ss. During the course of the investigation, the Inspector Gene ral submitt ed

a written reque st to the City ’s law depar tm en t (t h e L aw Depa

rtment) for all documents rele vant to the awa

rding of the contra ct. The Inspector Gene ral’s au t h o ri ty to make this
reque st was based on section 2-56-030( e) of the Municipal Code (Chicag o Municipal Code § 2-56-030( e) (adde d Oct. 4, 1989)), which we have just quoted, an d h as n o t been questioned. ¶ 5 Section 2-56-090 of the M unicipal C ode (Chica g o Municipal Code § 2-56-090 (added Oct. 4, 1989)) , provides:

“It sha ll be the duty of ever y office r, employ ee, depar tment, a g ency , contra ctor, subcontrac tor and licensee of the city
, and ever y applicant for cer

tification of elig ibilit y for a city contra ct or prog ram, to cooper ate with the i nspector ge nera l in
any investigation or hear ing undertaken pursuant to this chapte r. Eac h depar tment’s premises, equipment, personne l, books, rec ords and paper s shall be made available

-3-as soon as prac ticable to the inspector g ener al. Every city contra ct an d ever y bid,
p ro p o s al, application or solicitation for a city contra ct, and ever y application fo r

cer tification of elig ibilit y for a city contra ct or prog ram shall contain a statement that the per son understands a

nd will abide by

all provisions of this chapter.” Simi larly
, Ex ecutive Orde r No. 2005-2 issued by the may or of the City provides, in rele vant part, that “[i] t is the duty of ever

y employ ee and depar

tment [of the City ] to cooper ate with the I nspector Gene ral in any investiga tion o r h ear ing. Eac h depar tment’s premises, equipment, per sonnel, books, rec ords and paper s shall be made rea dily available to the Inspector G ener al.” ¶ 6 I n meeting its obligations under the fore g oing provisions, the L aw Depa rtment provided the reque sted documents. Howeve r, only s o m e of those documents wer e disclosed in full. Others wer e reda cted based on claims of attorney -client p ri vileg e or pursuant to the work product doc trine. ¶ 7 The reda cted documents wer e listed by the L aw De p ar t m ent on a privileg e log. T he documents have been descr ibed g ener ally as “( i) communications among L aw Depa rtment attorney s; (ii) c o mm

u n ic a ti o n s b e tw e e n L a

w D e p a r tm e nt a ttor ney s and other City employ ees; (iii) notes by two L aw Depa rtment attorney s reg arding conver sations w ith City employ ees; and (iv) char

ts and notes by one L aw Depa rtment attorney

—all reg arding th e m at t er * ** under inve stigation.” ¶ 8 The I nspector Gene ral’s office did not believe that the L aw Depa rtment was entitled to limit acc ess to the documents’ full contents based on e ither attorne y -client privileg e or the work product doctrine, an d it conveyed that view to the L aw Depa rtment. When the L aw Depa rtment ref

used to rec onsider its pos i t i o n, the Inspector Gene ral issued a subpoena direc ting the City ’s Corporation Counsel, who heads the L aw Depa rtment, t o p ro d u ce the documents in question. I ssuance of the subpoena was acc omplished under authority of section 2-56-030( h) of the Municipal Code (Chicag o Municipal Code § 2-56-030( h) (adde d Oc t

. 4, 1989)) and in the manner set forth in section 2-56-040 of the Code (Chicag o Municipal Code § 2 -5 6 -0 4 0 (adde d Oct. 4, 1989)). The subpoena was acc ompanied by a letter from the I nspector Gene ral ex p l ai n i ng in detail why he did not believe the L aw Depa rtment’s claims of attorne y -client privileg e and work product to be meritorious under the law. ¶ 9 The Corporation Counsel submitt ed a timely written objection to the Inspector Gene ral’s subpoena. That objection t rig g ere d a provision of section 2-56-040 of the Municipal Code which states that “[f]or seven day s afte r rec eipt of a timely objection to a su b p o en a, the inspector
g ener al shall take no action to e nforc e the subpoena or to initiate prosec ution of the
person to whom the subpoena is direc ted. During this seven- day period, the inspector
g ener al shall consider

the grounds for the objection and ma y attempt to resolve the objection throug h neg otiation with the person to whom the subpoena is direc ted.” Chicag o Municipal Code § 2-56-040 ( added O ct. 4, 1989). ¶ 10 When the requisite period passed without resolution of the dispute, the Inspector Gene ral

-4-reta ined private lawyers to bring this cause of action ag ainst the Corporation Counsel in the

circ uit court of Cook County

. The Inspector Gene ral’s complaint was in three counts. Count 2 I reque sted a decla

ratory judgme nt that the Corporation Counsel has a duty to cooper ate with the I nspector Ge n eral and was not entitled to withhold or reda ct the reque sted documents b as ed on attorney -client privileg e or the work product doctrine. Count I I soug ht a writ o f mandamus to compel the Corporation Counsel to comply with the subpoena “by producing unreda cted copies of any and all subpoenae d materia ls to the [ Inspector Gener al ] wi t hin 7 day s.” Count I I I soug ht the same relief
, but throug h direc t enfor ceme nt o f t h e s u b poena rathe r than mandamus

. ¶ 11 The Corporation Counsel moved t o d i s m i s s the Inspector Gene ral’s cause of ac tion pursuant to section 2-619 of the Code of Civil P roce dure ( 735 I L CS 5/2-619 (West 2010) )

on the following g rounds: (1) that the Inspector Gene ral lacke d capa city to sue and the circ uit
court had no jurisdiction over the dispute, (2) that the court should ref rain from enter

taining disputes betwee n two parties which are p ar t of the same g overnme ntal entity
, and (3) that municipal ordi n an ce s do not require disclosure of materia ls protec ted by attorney -client privileg e or wher e the disclosure would violate supreme court rules. In the same combined motion (see 735 I L CS 5 / 2 -619.1 (West 2010)), the Corporation Counsel challeng ed the sufficie ncy of the Inspector Gene ral’s pleading s pursuant to sect i on 2-615 of the Code of Civil Procedur e (735 I L CS 5/2-615 (West 2010)), ar gu i n g that the complaint failed to adequately

plead a cause of ac tion for dec lara tory judgme nt or mandamus. ¶ 12 Afte r t h e p ar t i es briefe d the issues, a hear ing was held on the Corporation Counsel’s motion. At the conclusion of that hear ing, the circ uit court opined that the Inspector Gene ral lacke d au thority to reta in counsel to bring the litigation and that the decision to secur e outside counsel to repr esent the Inspector Gene ral with respe ct to the subpoena was a matter which shoul d have been left to the C orporation Counsel in his cap ac i t y as attorney for the city . The c ircuit court then w ent on to addre ss the merits of the dispute and c oncluded that the I nspector Gene ral’s office was not entitled to the materia ls it reque sted beca use they wer e protec ted by attorney client privileg e. The circ uit court there fore g rante d the Corporation Counsel’s motion and dismi ssed the I nspector G ener al’s ca

use of a ction with prejudice

. ¶ 13 A divided appellate court reve rsed and rema nded for further proce eding s. 409 I ll. App. 3d 956. Be fore rea ching the I nspector Gene ral’s arguments, the appellate court majority first reje cted an argument advanc ed by the Corporation Coun s el that the dispute prese nted a nonjusticiable matter which the circ uit court h ad no jurisdiction to even consider. Distinguishing various case s cited by the Corporation Counsel, the appellate court held that this action, which was broug ht by the head of one municipal depar tment ag ainst the head of

a differ ent municipal depar tment, did prese nt a matter appropr iate for resol u tion by the courts. 409 I ll. App. 3d at 960-61. ¶ 14 Turning then to the merits, the appellate court identified the issue befor e it as “the narr ow question of whether the I nspector Gene ral was entitled to hire a private att o rn ey t o sue to

T he re cor d ind ic at es tha t the pri vate la wyers reta in ed by the I nsp ect or Gene ra l ar e pro vidin g 2 the irse rvice s pro bon o

.

-5-enfor ce the subpoena serve d on the Corporation Counsel.” 4 0 9 I l l

. App. 3d at 961.

Ex amining the ordinanc es g overning the Inspector Gene ral’s power s and respo n s ib il it ies, the appellate court conclude d t h at wh i le those ordinanc es did not expli citly confe r on the Inspector Gene ral’s office the authority to hire counsel to enfor ce subpoenas in circ uit court, such authority could rea sonably be inferr ed from the ordinanc e provisions a uthorizi ng it to issue subpoenas and requiring it to take no action t o enforce the subpoena or to initiate
prosec ution of the person to whom the sub p o en a i s direc ted for a specifie d period wher e written objections to the subpoena have been made (see Chicag o Municipal Code § 2-56-040 (adde d Oct. 4, 1989)) . 409 I ll. App. 3d at 962-64. ¶ 15 The appellate court further rea s o n ed that permitting the Inspector Gene ral to bringan action in circ uit court to enfor ce a subpoena ag ainst the Corporation Counsel was nece ssary to enable t h e I n s p ec tor Gene ral to acc omplish the purposes for which his office was establis h ed
, n amely
, “to detec t and preve nt misconduct, ineffic iency and waste within the
prog rams and operations of the city go v ernme nt” (Chicag o Municipal Code § 2-56-030 (ad d ed Oc t

. 4, 1989)). 409 I ll. App. 3d at 965. The court discounted the idea that the Inspector Gene ral should have put the decision of whether specia l counsel should be reta ined in the hands of the Corporation Counsel, holding that such a proce dure would “fr ustrate the independe nt investiga

tive duties” of the Inspector Gene ral’s office (409 I ll. App. 3d at 965) and “w o u l d b e exalting form over substance” wher e, as here
, “such a clea r conflict of interest” is pre sent (409 I ll. App. 3d at 966). ¶ 16 After

concludingthat the Inspector G ener al was a uthorized to retain private counsel to initiate this challeng e to the Corporation Counsel’s decision to reda ct cer tai n o f t he documents, the appellate court majority addre ssed whether the Corporation Counsel’s claim of attorney-client privileg e was meritorious. The court held that, as a g ener al m at t er , t h e attorney -cl i en t privileg e is available to municipal corpor ations. I t noted, however, that the burden of establishing whether the privileg e applies i n a p ar t i cu lar case is on the party seeking to shield the documents. The appellate court could find no evidenc e in the rec ord that the Corporation Counsel had made such a showing here
, and it conclude d t h at t h ere was insufficient information in the rec ord conce rning the documents in question to permit revie w of the trial court’s deter

mination that the documents wer e protec ted by the priv i l ege

. I t there fore held that the appropr i at e co u rs e was to rema nd to the trial court “for the limit ed purpose of conducting an in cam era inspection of t he unredac ted documents” and making
appropr iate fa ctual finding s. 409 I ll. App. 3d at 966-67. ¶ 17 The dissenting justice reje cted the maj o ri t y ’s co n cl u s i o n that the authority to retain private counsel to bring suit ag ainst the Corporation Counsel was confe rre d on the Inspector Gene ral by implication unde r the ordinanc e establishing the Inspector Gene ral’s office and defining its responsibilities. I n the dissenter’s view, the power to deter mine whether judicial
proce eding s s hould be broug ht to enfor ce a subpoena is vested by the Chicag o Municipal Code in the m ayor of the C ity
, not the Inspector G ener al. Indeed, the dissenter opined that the I nspector Gene ral has no leg al exis tence independe nt of the City and is there fore not even “a leg al entity capa

ble of bring ing suit.” 409 I ll. App. 3d at 968 (Cahill, J
., dissenting)

. The dissenter would have af

firmed dismissal of the ac tion on that basis. Id. ¶ 18 The Corporation Counsel petitioned this court for leave to appea l (I ll. S. Ct. R. 315 (ef f.

-6-Fe b. 26, 2010)), arguing, as it did in the appellate court, that the dispute is nonjusticiable and

that the circ uit court there fore lacke d subject matter jurisdiction to consider the Inspector Gene ral’s claims. The Corporation Counsel further contende d that the appellate court’s judgme nt’s rec og nizi ng the rig ht of the Inspector Gene ral to reta in counsel and fi l e s u it conflicts with the sy stem ad o p t ed by the City in its municipal code and impermissibly abridg es the power confe rre d on the Corporation Counsel by that code to manag e the City ’s leg al af fairs. ¶ 19 We allowed the Corporation Counsel’s petition. Once the matter was acc epted for revie w and the Corporation Counsel filed his brief, the Inspector Gene ral soug ht cross relief

. See I ll. S. Ct. R. 315(h) (ef

f. Fe b. 26, 2010). He argues that we should reve rse that portion of the appellate court judgme nt which rema nds for an in came ra revie w of the reda cted documents. In the I nspec t o r Gene ral’s view, further revie w of the documents by the circ uit court is

unnece ssary beca

use, as a matter of l aw, the Corporation C ounsel is not entitled to invoke attorney -client privileg e.

¶ 20 ANALYSI S ¶ 21 We beg in our revie w with the question o f wh et h er t he dispute betwee n the Inspector G ener al and the Corporation Counsel prese nted a justiciable controve r s y s u b je c t to r e s o lu

ti o n by the circ uit court. The rea son we must b egi n t h ere is that the exis tence of a “justiciable matter” is a prer equisite to the circ uit court’s subject matter jurisdiction u n d er ar t i cle VI
, s ec t i o n 9
, o f the I llinois Constitution of 1970 (I ll. Const. 1970, art. VI
, § 9). Bellev ille Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc.
, 199 I ll. 2d 325, 334 (2002); In re M.W

. , 232 I ll. 2d 4 0 8
, 4 2 6 (2 009). Absent a justiciable matter, the circ uit court had no authority to proce ed. ¶ 22 Whether a cause of action should be dismiss ed based on a lack of justiciabilit y prese nts

a question of law, which we revie w de novo

. Morr-Fitz, Inc. v. Blagojevich
, 231 I ll. 2d 474, 488 (2008). The constitution itself does not define the term “justiciable matters,” nor did our former constitution, wh er e t h e t er m first appea red (see I ll. Const. 1970, art. VI
, § 9; I ll. Const. 1870
, ar t

. VI (a mended 1964), § 9). Instead, courts are left to define the term on a

case -by -ca se basis. In re Estate of Burgeson , 125 I ll. 2d 477, 485 (1988). ¶ 23 T h e co u rt s h av e h el d that justiciabilit y encompa sses a rang e of conce pts, “such as advisory opinions, feig ned and collusive case s, standing
, ripene ss, mootness, political questions, and administrative questions.” Morr-Fitz, Inc. v. Blagojevich
, 231 I ll. 2d at 488; Alternate Fuels, Inc. v. Director of the Illinois Environmental Protection Agenc y , 215 I ll. 2d 219, 230 (2004). The overa rching purpose of the doctrine is to rese rve the exercise of judicial authority for situations wher e an a ctual contr oversy exis ts. “Actua l” in this contex t “does not mean that a wrong must have been committed and injury inflicted. Rather, it require s a showing that the underly ing fac ts and issues of the case are not moot or premature, so as to require the court to pass judgme nt on mere abstrac t propositions of law, rende r an advisory opinion, or gi v e leg al advice as to future events. [C itations.] The case must, there fore
, prese nt a concr ete dispute admitting of an immediate and definitive deter mination of the parties’ rig hts, the resolution of which

-7-will aid in the termination of the controve rsy or some part there of. [C itations.] ” (Interna l quotation marks omitted.) National Marine, Inc. v. Illinois Environmental Protection Agenc

y , 159 I ll. 2d 381, 390 (1994). See also Bellev ille Toyota, Inc. v. Toyota Motor Sales, U.S.A ., Inc. , 199 I ll. 2d at 335. ¶ 24 The controve rsy befor e us meets this test. There is nothing hy pothetical or abstrac t about it. The I nspector Gene ral issued a subpoena as authorized by the Municipal Code in further ance of an investigat i o n i t h ad the power to undertake, the Corporation Counsel objec t ed t o t h e subpoena and ref used to comply with it for rea sons the Inspector Gene ral believes are not supported by law, and the di spute betwee n the t wo d ep artments would be deadloc ked absent a judicial deter mination as to what, if any , leg al rec ourse the Inspector Gene ral now ha s. ¶ 25 We find no merit to the C orporation Counsel’s sug g est i o n t h at justiciabilit y should be found lacking on the g rounds that the courts of I llinois have no authority to intervene in what is essentially an “intra- ag ency ” dispute. The Corporation Counsel is corr ect that the appellate
court should not have rel i ed o n Burnette v. Stroger
, 389 I ll. App. 3d 321 (2009), Read v. Sheahan , 359 I ll. App. 3d 89 (2005), and Sampson v. Grav es , 304 I ll. App. 3d 961 (1999), in reje cting his justiciabilit y argument. S ee 409 I ll. App. 3d at 960-61. Neither Read nor Sampson contains any d i s cu s s i o n at all of justiciabilit y or any thing else touching on the
power of the judicial branc h to consider and resolve disputes betwee n differ ent branc hes or depar tments of local g overnme nt, and in Burnette
, the issue was not the court’s power to hear and decide the controve rsy , but whether the plaintiff had capa city to bring suit and standing to liti g ate the pa

rticular matter at issue. ¶ 26 That said, the Corporation Counsel’s ar gu m en t s re gar ding the power of the courts to resolve this controve rsy

must neverthele ss fail. Ultimately , resolution of this case turns on

a construction of the provisions o f the Chicag o Municipal Code reg ulating the respe ctive authority of the I nspector Gene ral, the Corporation Counsel and the may or. The construction of statutes and ordinanc es is a quintessential judicial power

. That power is v es ted in the courts ( Gove rnmental Interinsurance Exchange v. Judge
, 221 I ll. 2d 19 5
, 2 1 1 ( 2006); I ll. Const. 1970, art. VI
, § 1). Nothing in the I llinois Constit ution pr ohibits the exercise of that
power mere ly beca

use the provisions under revie w p er t ai n t o the power s confe rre d on municipal o ff

i ci al s by local ordinanc e, and no claim has been made that undertaking the revie w nece ssary for resolution of this case will improperly involve the courts in a political question (see Kluk v. Lang
, 125 I ll. 2d 306, 322 (1988); Moore v. Grafton Townshi p Board of Trustees
, 20 1 1 I L Ap p (2 d) 110499, ¶¶ 5-8) or otherwise trig g er separ ation of power s

conce rns under article I I
, section 1, of the I llinois Constit ution (I ll. Const. 1970, art. I I
, § 1). ¶ 27 W e al s o re

j ect any notion that the Inspector Gene ral lacke d standing to contest t h e Corporation Counsel’s ref usal to provide unre dacte d copies of the subject documents. The doctrine of standing is desig ned to prec lude persons who have no interest in a dispute from bring ing suit (

Raintree Homes, Inc. v. Village of Long Grove
, 209 I ll. 2d 248, 262 (2004)) and require s a person seeking to invoke the jurisdiction of the court to have some rea l interest in the cause of action or a leg al or equitable rig ht, title or interest in the subject matter of the
controve rsy (

Hines v. Turley , 246 I ll. App. 3d 405, 416-17 (1993))

. The I nspector Gener al

-8-clea rly has a rea l interest in the matter at issue here

. The subpoena in question was issued by him pursuant to his authority under the Chicag o Municipal Co d e, and his ability to seek enfor ceme nt of the subpoena in light of the Corporation Counsel’s object i o n s wi ll have a direc t and signific ant impact on how he under takes his investig atory

responsibilities under the law. ¶ 28 Having clea

red these hurdles, we next consid er wh et h er t h e I n s p ec tor Gene ral wa s authorized to take action in response to the Corporation Counsel’s ref usal to comply with its lawfully issued subpoenas. The answe r, ag ain, is y es. As indicated ear lier in t h i s opinion, section 2-56-040 of the Municipal Code provides, in part, that “[f]or seven day s afte r rec eipt of a timely objection to a subpoena, the inspector g ener al shall take no action to enfor ce the subpoena or to initiate prosec ution of the person to whom the subpoena is direc ted.” Chicag o Municipal Code § 2-56-040 (adde d Oct. 4, 1989 ). I f t he Inspector Gene ral is require d to temporar ily ref

rain from action when an objection has been filed, it nece ssarily follows that

once the requisite seven- day period has elapse d without resolution of th e o b j ec tions and compliance with the subpoenas, action by the Inspector Gene ral to enfor ce the subpoena or to initiate prosec ution of t he person to whom the s ubpoena is direc ted i s per m i t t ed

. I f that

wer e not so—if the City Council did not intend to confe r such authority on the Inspector Gene ral—the seven- day waiting period would serve no purpose. Be cause we must construe

a statute, if possible, so that no part of it is rende red meaning less or superf luous ( Sheffler v. Co mmonw ealth Edison Co.
, 2011 I L 110166, ¶ 77), and because we use the s ame rule s o f construction when interpre ting municipal ordinanc es as we do when con s t ru i ng statutes ( P o oh-Bah Enterprises, Inc. v. County of Cook
, 232 I ll. 2d 463, 492 (2009))
, we therefor e conclude that the I nspector Gene ral has, indeed, been g rante d authority to t ake “ac tion to enfor ce subpoenas o r t o initiate prosec ution of the person to whom the subpoena was direc ted” wher e, as in this case , the requisite time period has passed without resolution of the objections. ¶ 29 This bring s us to the centr al and dispositi ve issue in the ca s e: wh et h er t h e authority confe rre d on t h e I nspector Gene ral to take “ac tion to enfor ce subpoenas or to initiate
prosec ution of the person to whom the subpoena was direc ted” includes the power to unilatera lly reta in counsel of his own choosing to initiate enfor ceme nt proce ed ings or prosec utions in circ uit court in his own name. Contr ar y to the view taken by the appellate court majority , we hold that it does not. ¶ 30 The office of the Inspector Gene ral is not, itself, a unit of local g overnme nt under I llinois law. See I ll. Const. 1970, art. VI I
, § 1. I t is mere ly a depar tment of the municipal g overnme nt of the City of Chicag o. I t was established by municipal ordinanc e (Chicag o Municipal Code § 2-56-010 et s eq. (adde d Oct. 4
, 1 9 8 9 )), not state st atute, and has no leg al s tatus separ ate and apar t from the City

. See Dr. Martin Luther King, Jr. Move ment Inc. v. City of Chicago
, 435 F. Supp. 1289, 1294 (N.D. I ll. 1977) (apply ing I llinois law to h o l d t h at Chicag o depar tment of streets and sani t at i o n “i s mere ly an org anizational division of the City and does not enjoy independe nt leg al exis tence ”); Jordan v. City of Chicago, Departme nt of Police
, 505 F. Supp. 1, 4 (N.D. I ll. 1980) (Chicag o police depar tment me rely a depa

rtment of the City which does not have separ ate leg al exis tence ); Stevanov ic v. City of Chicago
, 385 I ll. App. 3d 630, 631 (2008) (noting dismiss al of Chicag o fire depar tment as a defe ndant in

-9-a neg lige nce action ag ainst the City on the g rounds that the depar tment itself was not a leg al entity separ ate f

rom the City). ¶ 31 The scope of t h e I n s p ec t o r Ge n er al ’s power and responsibility was define d by the Chicag o city council in chapte r 2-56 of the City ’s Municipal Code (Chicag o Municipal Code § 2-56-010 et seq. (adde d Oct. 4, 1989)), which we have quoted extensively in this opinion. Nothing in chapte r 2-56 confe rs on the I nspector Ge n er al the authority to file proceeding s in circuit court to enfor ce any of the ordina

nces pe rtaining to his responsibilit ies under the Chicag o Municipal Code or to re tain private c ounsel to do so on his behalf. ¶ 32 By law, the power to file such proce eding s belong s, instead, to the Corporation Counsel. Section 21-11 of the I llinois Municipal Code expressly provides that the corpor ation counsel “shall appea

r for and protec t th e ri gh t s an d interests of the city in all actions, suits, and
proce eding s brought by or aga inst it or any city officer, board or department .” (Emphases added.) 65 I L CS 20/21-11 (West 2010). Section 2-60- 020 of the Chi cag o Municipal Code (Chicag o Municipal Code § 2-60-020 (ame nded Sept. 5, 2007)) likewise states that the Corporation Counsel is char g ed with responsibility for “conduc t[ ing] all the law business of the city ” (Chicag o Municipal Code § 2-60-020( a) (ame nded Sept. 5, 2007)) and “shall *** [a] ppear for and protec t the rig hts and interests o f the city in all actions, suits and
p roce eding s broug ht by or ag ainst it or any city office r, board or depar tment” (C h i ca go Municipal Code § 2-60-020( b) (ame nded Sept. 5, 2007)). “Shall,” when used in the Chicag o Municipal Code, means that something is mandatory unless the Code “explicitly ” provides otherwise, which it does not do in this context. Chicag o Municipal Code § 1-4-100 (ame nded May 9, 2012). ¶ 33 The I nspector Gener al’s claim to possess the authority to litigate matters arising under the C hicag o Municipal Code cannot be square d with the pl ain and unambiguous lang uag e of the fore g oing provisions. Given the clea r lan gu age o f the provisions, and rea ding them toge ther, as we must, we ag ree with the dissenting justice below that the Inspector Gene ral, acting as he was solely in his officia l capa city as an office r of the C ity of C hicago
, h ad no rig ht to reta in p ri v at e counsel to initiate proce eding s in circ uit court in further ance of an officia l investiga

tion undertaken by his d ep ar t ment. We could not hold otherwise without

rea ding into t h e C h i cag o Municipal Code both a g rant of power to the Inspector Gene ral which the city council did not confe r and a l i m i t ati on on the power of the Corporation Counsel which the city council did not authorize. That, of course , would be impermissible. Hines v. D epartment of Public Aid , 221 I ll. 2d 222, 230 ( 2006) (cour t must enforce statute

as written and may not annex new provisions or substitut e differ ent o nes, or rea d into the
statute exceptions, limit ations, or conditions which the leg islature d i d n ot express). In

rea ching this conclusion, we expr es s no view on whether the Chicag o city council could deleg ate limit ed litigatio n au t h o rity to the Inspector Gene ral if it chose to do so. We hold only that it has not done so y et. Under the law as it pr esently exis ts, f iling suit on behalf of the City
, its office rs and depar tments is the responsibility of the Corporation Counsel. In the normal course of events, the Inspector Gene ral must there fore l o o k to the Corporation Counsel when judicial enf orce ment of a subpoe na is nec essar y

. ¶ 34 Of course , asking the Corporation Counsel for leg al repr esentation to enfor ce a subpoena is problematic wher e, as in the unusual situation befor e us here
, the Corporation Counsel, in

-10-his official c apac ity , is the very person who w as subpoena ed. The se circ umstances prese nt

an obvious conflict of interest within the meaning of Rule 1.7(a) of the Rules of Professional Conduct (I ll. R. Prof. Conduct (2 0 10) R. 1.7(a) (ef f. J an. 1, 2010)), a provision which is binding on lawy ers such as the Corporation Counsel who serve as public office rs (I ll. R. Prof. Conduct (2010) R. 1.11(d) (ef f. J an. 1, 2010)). Be cause the conflict is so patent, we do not believe it was nece ssary for the Inspector Gene ral to reque s t re p re sentation from the Corporation Counsel befor e taking further action in the wake of the Corporation Counsel’s ref usal to fully

comply with the subpoena. At the same time, how ever , the exist ence of the conflict did not confe r on the I nspector Gene ral any rig ht to g o beyond his specifie d authority under the Chicag o Municipal Code and unilatera lly decide to hir e his own lawy ers to bring suit. ¶ 35 I n approving the I nspector Gene ral’s unilatera l action, the appellate court opined that he had “f ollowed prope r proc edure s for the appointment of special counsel.” 409 I ll. App. 3d
at 965-66. But that is not so. I llinois law contains various provisions g overning the proce dure for ap p ointment of specia l counsel to repr esent a g overnme ntal ag ency or officia l in a particula r matter wher e the statutorily desig nated attorney cannot act. See 55 I L CS 5/3-9008 (West 2010) (per

mitti ng appointment of attorney to repr esent county wher e State’s Attorney is “sick or absent, or unable to attend, or is interested in any cause or proce eding ”); 15 I L CS 205/6 (West 2010) (same with respe ct to appointment of attorney to act in situations wher e the duty to prosec ute or defe nd b el o n g s to State Attorney Gene ral); 5 I L CS 430/20-45(b) (West 2010) (same wher e Attorney Gene ral cannot repr esent Ex ecutive I n s p ector Gene ral befor e Ex ecutive Ethics Commi ssion). None of those sta t u tes applies to the Corporation Counsel f or the City of Chicag o. Moreove r, even in situations wher e the fore g oing statutes do apply
, they require judicial revie w and approva l of the appointment reque st. No such
approva l w as reque sted or g rante d in this case bef ore the Inspector G ener al filed suit. That

was not an oversig ht. In the circ uit court, one of the Inspector Gene ral’s private lawy ers argued that beca

use there is no statute analog ous to the ones cited above for appointment of specia l counsel at the municipal level, he “wa s not sure any court appointment of counsel is

nece ssary” in this case. ¶ 36 Throug hout these proce eding s, the I n s pector Gene ral has asser ted that his decision to unilatera lly reta in private counsel to repr esent him in his officia l capa city is supported by the appellate court’s decision in Suburban Cook County Regional Office of E ducation v. Cook County Board
, 282 I ll. App. 3d 560 (1996). Although the appellate court found this authority helpful, there are basic diff ere nces be tween this case and that one, which dea lt, in relevant part, with whether the Attorney Gene ral was obligated to provide repr esentation to a reg ional superintende nt of educa

tion when the State’s Attorney ref used to do so. There is no need to elabor ate on the differ ence s betwee n the t wo ca s es

. For purposes of this discussion, it is sufficie nt to note an aspec t of Suburban Cook County Regional Office of Education which the appellate court appar ently overlooke d. In the course of its discussion, the court in Suburban Cook County Regional Office of Ed u cation specific ally held that the reg ional superintende nt did “ not have the rig ht to unilatera lly selec t a private attorney to repr esent him in his officia l capa city .” (Emphasis added.) Id. at 570. That, of course , is prec isely what the

-11-Inspector G ener al did here , and it is likewise impermissible. 3

¶ 37 Although t h e C h i cago city council has elec ted not to adopt a mecha nism for judicial appoint m en t of specia l counsel wher e the Corporation Counsel cannot undertake
repr esentation becaus e of a conflict of interest, the city council has not left the Inspector Gene ral without r ecour se in case s such as this one. Under the Chicag o Municipal Code, all municipal office rs, including the Corporation Counsel, are subject to the supervision of the
may or (Chicag o Municipal Code § 2-4-020 (adde d Oct. 4, 1989)), and the Inspector Gene ral has the power and duty to repor t the results of his investigations t o t h e m ay o r (Chicag o Municipal Code § 2-56-030( d) (adde d Oct. 4, 1989)). As the City ’s chief executive office r, the may or, in turn, has ultimate responsi b i l i t y for enfor ceme nt of the City ’s ordinanc es (Chicag o Municipal Code § 2 -4 -030), and is authorized by law to impose punishment on subordinate municipal of

fice rs who are ex empt from the pr ovisions of the civil service act wher e thos e o ff

i ce rs have violated their duties or committed other offe nses. Chicag o Municipal Code § 2-4-020. I n this case , the impasse over the Inspector Gene ral’s subpoena direc tly implicates the duties of cooper ation and d i s cl osure imposed on the Corporation Counsel and all other municipal office rs by section 2-56-090 of the Chicag o Municipal Code (Chicag o Municipal Code § 2-56-090 (adde d Oct. 4, 1989)) and the may or’s E x ecutive Orde r No. 2005-2, both of which w e quoted e arlier in this opinion. Under the s y stem adopted by the Chicag o city

council, and as t he dis senting appellate court justice in this case corr ectly

rec og nized (409 I ll. App. 3d at 967 (Cahill, J
., dissenting) ), the matter is there fore one which

was within the power of the may or to resolv e. Acc ording ly
, beca use the Corporation Counsel’s conflict precluded further action by h i m o n b ehalf of t he I nspector Gener al, t he Inspector G ener al should have looke d to the may or for assistance

. ¶ 38 The I nspector Gene ral laments that this outcome will leave him with less power than he needs to proper ly undertake the investigatory functions with which he has been entrusted. In most instance s, howeve r, the I nspector Gene ral’s investigations should not be hamper ed at all by the problem prese nted by this case

. The difficulty arose here only beca use of the highly unusual circ umstance that the subpoena was direc ted to the Corporation Counsel himself. In any event, whether or not the I nspector Gener al feel s h e h as t he power he needs under the law, t h e fa ct re m ains that this is all the power the C hicag o city council has chosen to g ive him. W e ca

nnot give him more. I f there are prac tical defic iencies in the sy stem adopted by the City to help pol ice the operations of its various depar tments and the conduct of its employ ees, that is a matter for the City , not this court, to remedy

. ¶ 39 I n sum, beca

use the I nspector Gene ral should have direc ted this dispute to the may or and had no authority under the law to unilatera lly reta in private counsel to file these proce eding s

We al so cau ti on tha t, dep end ing on the ci r c u ms ta nce s, the m is app re hen si on tha t a 3
gov er nm ent off

ic ia l m ay act uni la te ra ll y and wit hout pri or cour t appr oval to re ta in pri vate cou nse l to hand le off

ic ia l busi nes s on his or her beh al f in plac e of stat uto ri ly des ignat ed coun sel m ay have
per il ous con seq uen ces for the off ic ia l in que st ion

. I f the off ic ia l sub seq uen tl y acc ept s publ ic m oni es to pay the pr i va t e l y r e ta ine d at tor ney, cha rges of off ic ia l m is con duc t m ay re sul t. See Peop le v. W ilki nso n , 285 I ll

. App. 3d 727, 735 (19 96)

. Beca use the at tor neys re ta ine d by the I nsp ect or Gene ra l

ar e r epr ese nti ng him at no cha rge, t hat is not a c onc er n he re

.
-12-in circ uit court, the circ uit court acte d proper ly when it dismiss ed the Inspector Gene ral’s

cause of action with prejudice

. We aff irm its judgme nt on that basis and reve rse the judgme nt of the a ppellate c ourt. ¶ 40 As noted at the outset of this dispositi on, the circ uit court held, in the alternative, that the Inspector Gene ral’s claim would fail on the merits beca use the documents he is seeking are protec ted by attorney-client privileg e. Be cause the Inspector Gene ral was not authorized to reta in private counsel t o b ri n g this action and the action there fore should not have been in
court to beg in with, resolution of the underly ing merits was not nece ssary to the dispositi on. T h e p o r ti ons of the circ uit and appellate court judgme nts addre ssing applicability of attorn e y

client privileg e ar e ther efor e vac ated.

¶ 41 CONCL USI ON ¶ 42 For the fore g oing rea s o n s , t h e j u d g ment of the appellate court is reve rsed in part a nd

vacated in part. The judgme nt of the circ uit court is affir med in part a

nd vacated in part.

¶ 43 Appellate c ourt judg ment reve rsed in par t and vac ated in par

t. ¶ 44 Circuit court judg ment aff irmed in part a

nd vacated in part.

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