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No. 2--03--0073

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE KAPALA delivered the opinion of the court:

Defendant, Robert Grever, a former township supervisor of Ela Township, Lake County, appeals from his eight convictions of official misconduct (720 ILCS 5/33--3(a), (c) (West 1998)) in connection with a delinquent debt owed to the township for his mother-in-law's care at the county nursing home. We affirm in part and reverse in part.

I. BACKGROUND

Defendant was charged by indictment with 12 counts of official misconduct. The first six counts, each pertaining to a different year from 1993 through 1998, charged that defendant:

"committed the offense of OFFICIAL MISCONDUCT, in that the said defendant, a public officer, the Ela Township Supervisor, while acting in his official capacity, intentionally failed to perform a mandatory act, in that he failed to inform the Ela Township Board of [the] [i]ndebtedness of Mae Chvojka and Ruth Grever to Ela Township for healthcare services provided by the Winchester House [and] paid for by Ela Township, within 30 days of the annual township meeting as required by 60 Illinois Compiled Statutes 1/70--15(c)(v), in violation of 720 ILCS 5/33--3(a) ***."

The next three counts of the indictment, each pertaining to a different person who benefitted from defendant's actions, charged that defendant:

"On or about 1992 through 1996, *** committed the offense of OFFICIAL MISCONDUCT, in that the said defendant, a public officer, the Ela Township Supervisor, while acting in his official capacity, with the intent to obtain a personal benefit for [Mae Chvojka (Count VII), Ruth Grever (Count VIII), Robert Grever (Count IX)], performed acts in excess of his lawful authority, in a series of acts designed to promote a single intent, he submitted bills to the Ela Township Board for payment by the township for the stay of Mae Chvojka at the Winchester House despite the fact that neither Mae Chvojka nor any representative on her behalf [was] reimbursing the township as required by Ela Township, in violation of 720 ILCS 5/33--3(c) ***."

The last three counts of the indictment, each pertaining to a different person who benefitted from defendant's actions, charged that defendant:

"On or about 1992 through 1998, *** committed the offense of OFFICIAL MISCONDUCT, in that the said defendant, a public officer, the Ela Township Supervisor, while acting in his official capacity, with the intent to obtain a person benefit to [Mae Chvojka (count X), Ruth Grever (count XI), Robert Grever (count XII)], performed acts in excess of his official authority in a series of acts designated to promote a single intent, in that he concealed the existence of a debt owed by his wife, Ruth Grever, and her mother, Mae Chvojka, to Ela Township and withheld collection action regarding said debt, in violation of 720 ILCS 5/33--(c) ***."

Prior to trial, the court heard and denied defendant's motion to dismiss the indictment on the ground that the charges were barred by the statute of limitations. Defendant waived his right to a trial by jury and the matter proceeded to bench trial.

At trial, the State called the administrator of Winchester House, Steven Nussbaum. He explained that the Winchester House is a nursing home owned by Lake County that has been in operation for more than 150 years. Nussbaum became the administrator in 1997. Nussbaum identified the Lake County ordinance enacted in 1978 that authorized agreements between the County of Lake and the various townships of Lake County regarding Winchester House. That ordinance provided that the township supervisor of each township shall be responsible to pay the bills that township residents incurred at Winchester House. Nussbaum related that, pursuant to the ordinance, the various townships and Lake County had entered into agreements under which each township was assigned a number of beds at Winchester House proportionate to its population. Each township was thereby permitted to use Winchester House for its citizens. According to Nussbaum, when a bed of a particular township became available, Winchester House would notify that township's supervisor's secretary and ask that the next application be forwarded.

Nussbaum identified the amended agreement between the County of Lake and a former supervisor of Ela Township dated April 19, 1978. According to this agreement, the township supervisor of Ela Township agreed to be responsible for payment of all charges for patients admitted to Winchester House from Ela Township. Nussbaum testified that this agreement was terminated in December 1999 and a different procedure went into effect. However, the agreement was in force in 1991, and was still in effect in 1997 when he became administrator. Nussbaum explained that, under the agreement, Winchester House would send to each township supervisor a monthly bill indicating a total for that township's residents and an itemized bill for each private-pay resident. Each township, in turn, would send one monthly check to Winchester House.

According to Nussbaum, Mae Chvojka was an Ela Township citizen who became a resident at Winchester House on September 19, 1991. She remained at Winchester House until she died on December 12, 1996. Nussbaum identified a document authorizing Mae Chvojka's admission to Winchester House that was signed by defendant as Ela Township supervisor. That same document indicated that Ela Township would assume financial responsibility for Mae Chvojka's charges in accordance with the existing agreement between Ela Township and the County of Lake. The document also indicated that Winchester House could submit the monthly bill for her care to the township supervisor. Other Winchester House records identified by Nussbaum indicate that Mae Chvojka was a private-pay patient, that Ruth Grever was responsible for her bills, that private-pay patients were billed for their care by the township supervisor's office, and that Ruth Grever's address was the billing address for Mae Chvojka's charges.

Nussbaum went on to identify a group exhibit consisting of the bills that were submitted to Ela Township regarding Mae Chvojka's care at Winchester House. The bills were admitted into evidence. Nussbaum testified further that if a township wanted someone removed from Winchester House because of nonpayment, the township supervisor would contact Winchester House. The only way Winchester House would know if a private-pay resident's bill was not being paid was through the township supervisor.

The State also called Margaret L. Staples, who testified that she served as defendant's secretary at Ela Township from 1985 to 2001. Staples said that she was familiar with the arrangement between Ela Township and Winchester House concerning Ela Township residents. Staples said that the policy of Ela Township was that the township would pay the bills for each township resident staying at Winchester House and that the township would then seek reimbursement. Staples opened the mail that came into the township supervisor's office. Winchester House would send Ela Township a monthly bill for private-pay Ela Township residents who were in Winchester House. Staples explained that the bill had a top sheet with the total charges for that month. In addition, there were three copies of each private-pay resident's bill that included the name and address of the party responsible for paying the bill. Staples would forward a copy of the bill to the responsible party and would place a copy of the total bill, as well as a copy of each individual bill, on defendant's desk. A copy of the total bill went to the township board meeting to be approved for payment. Staples testified that the board received only the total bill for all the Ela Township residents staying in Winchester House, not the individual residents' bills.

Staples testified further that after the Board approved the Winchester House bill, a check was drawn on the general assistance fund of the Ela Township treasury and sent to Winchester House. When payment came in from the responsible party, Staples would record the amount of the check and the check number, and make out a deposit slip for depositing the funds into the bank. Staples said that she had created a file for each private-pay Ela Township resident in Winchester House, and that the files were kept in a locked file cabinet. Staples recorded how much was paid on a form that was kept in each resident's file. The form was available to Staples and defendant. Staples believed that these files were not available to the general public without a Freedom of Information Act (5 ILCS 140/1 et seq. (West 2000)) request.

Staples related that in August 1991, defendant's wife, Ruth Grever, took out an application to admit her mother, Mae Chvojka, to Winchester House. Staples processed the application and made a file for Chvojka. Chvojka went into Winchester House as a private-pay resident and was subject to the same terms and agreements as everyone else in Ela Township. Staples said that the record sheet she kept showed that Ruth Grever paid for Chvojka's first four months of care at Winchester House but that no payments were made after January 1992. Staples said that she processed the bills for Chvojka's care just like the rest of the bills and that the township board approved and paid her bill, along with the rest, each month. Staples continued to send the bills to Ruth. The township was not reimbursed for approximately $195,000 that it paid to Winchester House for Chvojka's care. According to Staples, in reference to his wife's failure to pay her mother's past-due bills, defendant said on several occasions, "I don't know what she's doing in regard to those bills." Defendant did not direct Staples to call Ruth and ask for the money or to take any action to collect the money. Staples said that she thought that Ruth would eventually pay the bill because Ruth would say to Staples from time to time, "I have to pay that." After Chvojka died and the bills for her care stopped coming from Winchester House, Staples did nothing to collect the debt from Ruth. The information regarding the outstanding bills, known only to Staples and defendant, just sat in Chvojka's file.

Ruth M. Grever testified that she married defendant in 1956. On September 19, 1991, Ruth's mother, Mae Chvojka, moved into Winchester House as a private-pay patient. Ruth agreed that she was handling her mother's financial affairs at that time and that, therefore, she was responsible for paying for her mother's care. Ruth said that she understood that the bills for her mother's care at Winchester House were to be paid by Ela Township and that she was responsible for reimbursing the township. At the time Chvojka moved into Winchester House, she had various assets including several bank accounts and complete ownership of her home. Ruth testified that she reimbursed the township for the first four Winchester House bills that the township paid on her mother's behalf. Thereafter, and through the time that her mother died, Ruth did not reimburse the township for the Winchester House bills the township paid on her mother's behalf. After her mother's death in December 1996, until the township filed a lawsuit against her in September 1999, Ruth paid nothing toward the amount owed to Ela Township.

Ruth testified further that her mother had various bank accounts including a checking account into which approximately $7,500 in social security benefits were deposited annually. Ruth also said that her mother's house was sold in November 1993, netting proceeds of $97,000, of which $89,000 was deposited into her mother's checking account. Ruth took the remaining $8,000 in cash. Ruth said that she kept $500 of the $8,000 and may have given the remaining $7,500 to defendant. Ruth admitted that she spent in excess of $133,000 of her mother's money during the time that her mother was in Winchester House and after she died. Among those expenditures were various purchases of clothing for herself between October 1995 and October 1997 totaling $30,000. Ruth also testified to various expenditures for and on behalf of defendant including dining expenses, suits, clothing, golf items, paint for their home, a laptop computer for their home office, and their joint state and federal income tax liability.

According to Ruth, she contacted Staples in 1995 about the possibility of obtaining public aid. Defendant filed a petition for divorce in January 1999. In May 1999, Ruth revealed to her divorce lawyer the issue of the money owed to the township as a result of her mother's stay at Winchester House. Subsequently, Ruth was sued by Ela Township. Defendant's and Ruth's divorce became final in August 2000. After a trial in November 2001, a judgment was entered against Ruth and in favor of Ela Township in the amount of $133,000.

Ruth said that her mother went into Winchester House in mid-September 1991. Ruth received a bill in October and for the next three months she received a bill for the previous month's charges. Ruth paid all of those bills on behalf of her mother. According to Ruth, after the first four months she never received another bill from the township. Ruth explained that she did not get any of the mail that came to the house after January 1992. In the first part of 1992, when Ruth told Staples that she wanted to pay the bill, Staples told her that "[defendant] is the supervisor." Ruth brought the matter up several times per year and Staples would either say nothing or say "[defendant] is the supervisor." Ruth said that she never intended to leave the township unreimbursed for her mother's Winchester House bill. Ruth said she did not pay the bill when she went into defendant's office and saw Staples because she did not have her mother's checkbook. Ruth explained that after she wrote the four checks to Ela Township for her mother's care at Winchester House she no longer had custody of the checkbook for her mother's checking account. According to Ruth, defendant had the checkbook and would give Ruth blank checks out of it periodically. This is how Ruth wrote all the checks on her mother's account totaling more than $133,000. Ruth testified that she often argued with defendant and asked him to let her pay her mother's bill to the township. Ruth denied ever telling defendant that she could spend her parents' money anyway she wanted. Ruth also denied telling her daughter, Victoria, in 1999, that she had a plan to ruin defendant politically, professionally, and financially.

The State also called Lucy Prouti, who, at the time of her trial testimony, was the current Ela Township clerk. Prior to being elected as Ela Township clerk, Prouti served as an Ela Township trustee from 1991 to 2001. Prouti said that defendant was the Ela Township supervisor during the period that she served as a township trustee. According to Prouti, the township supervisor ran the day-to-day business of the township. Prouti explained that four township trustees, the township clerk, and the township supervisors were at the monthly township board meetings. At the board meetings the supervisor would bring in the township's bills and the trustees would go through them and vote to pay them. Prouti testified that when she voted on bills she relied on the supervisor's honesty with the board and the accuracy of all of the bills he submitted for payment. Prouti explained further that the township also held annual township meetings. Within 30 days of the township meeting, the supervisor provided a statement of the township's finances. When asked about Ela Township's policy regarding private-pay patients at Winchester House during the years in question here, Prouti said that Winchester House billed the township and the township would pay Winchester House. In turn, the township would bill the family of the private-pay patient and the family would reimburse the township.

Prouti testified further that it was the supervisor's duty to bring outstanding debts owed to the township to the attention of the township board. Prouti also said that the supervisor's job included consulting with the township attorney regarding the possibility of taking action to collect such debts and to bring possible litigation to the attention of the township board. According to Prouti, Ela Township did not give defendant the authority either to allow his family members to stay at Winchester House for free or to submit Winchester House bills to the township for payment for which the township was not being reimbursed. Prouti was not aware of any confidentiality policy that prohibited defendant from disclosing that someone was not reimbursing the township for a Winchester House bill.

Prouti explained that a board audit report was a list of all the bills that were accumulated during the month and that it served as a request that the bills be paid by the township. The township supervisor, the township clerk, and the township trustees would sign the bottom of the audit report as having been audited and approved for payment. Prouti identified the township board audit reports for each month from September 1991 through March 1997. These documents contain an aggregate bill for the Ela Township residents in Winchester House and do not include the residents' names or their individual bills. Prouti also identified the township supervisor's annual statements of the financial affairs of the township. These supervisor's statements were filed within 30 days of each annual township meeting. The financial statements filed in 1992 through 1999 do not disclose the outstanding debt owed to the township by Ruth Grever for her mother's charges at Winchester House. Prouti also identified the minutes from the annual township meetings in 1993 through 1999, which show that defendant did not reveal to the township board his wife's outstanding debt to the township as a result of his mother-in-law's charges at Winchester House. Each month during these years the board voted to approve payment of the Winchester House bills for all the private-pay Ela Township residents staying at Winchester House. Prouti also identified the minutes from the township board meetings in 1991 through 1998, which show that defendant did not reveal to the township board his wife's outstanding debt to the township as a result of his mother-in-law's charges at Winchester House.

Prouti said that defendant did not reveal to the township board his wife's outstanding debt to the township until the August 1999 board meeting. At that meeting the board went into executive session and defendant told the board about his wife's delinquent payments owed to the township for the charges for her mother's care at Winchester House. A decision was made to seek a legal remedy for the debt against Ruth Grever and her mother's estate.

On cross-examination Prouti related that she has never seen the township's Winchester House billing policy in writing. To Prouti, "policy" is synonymous with "the way things are done." Prouti said that she does not remember the Ela Township board passing a single resolution from 1991 to 2000. Prouti said that she does not remember any trustee questioning a Winchester House bill that was submitted for payment.

William L. Donnan testified that he was an Ela Township trustee for 13 years beginning in 1981, and was the Ela Township clerk for the following seven years. As such, Donnan said that he was at every township board meeting, except one, for 20 years. Donnan related that as trustee he relied on the township supervisor to provide him with accurate information regarding the township's bills. Donnan said that the township supervisor was responsible for communicating with the township attorney and for bringing to the attention of the township board any possible litigation. Donnan testified further that before August 1999 defendant did not disclose to the township board that his wife, Ruth Grever, and his mother-in-law, Mae Chvojka, were not reimbursing the township for Chvojka's Winchester House bills. Prior to August 1999, defendant did not make such disclosure in any board audit report presented at the monthly township board meetings or in his annual supervisor's statement of the financial affairs of the township.

Richard Cowen testified that he became the attorney for Ela Township in 1981 and served as such until 2002. Cowen explained that the private-pay Winchester House patients' charges were paid by the township and the township was responsible for collecting from the person managing each patient's funds. According to Cowen, it was the supervisor's responsibility to bring to Cowen's attention any possible legal action or other issues concerning the township. Cowen said that if a person was not reimbursing the township for a Winchester House bill he would know about it only if the supervisor notified him. If Cowen was made aware of such a situation, he would advise the township board as to its options for recovering the amount due. In March 1994, defendant wrote Cowen a letter regarding a Winchester House patient's representative who was not reimbursing the township for the patient's Winchester House bill. In the letter, defendant indicated that the amount due to the township was $8,773.07 and suggested that the township take action to attempt to collect the money. Cowen explained that in that case the patient had died and the amount due the township represented some four or five months of Winchester House services. Cowen related that the ultimate decision to file a lawsuit in such a case would be made by the township board. Cowen testified further that in July 1999, defendant first brought to his attention the fact that his wife, Ruth Grever, had not reimbursed Ela Township for the care of her mother for a number of years. Defendant told Cowen that his wife owed the township a couple of hundred thousand dollars, that she kept promising to pay but had not, and that they needed to consider legal action. Shortly thereafter, Cowen attended an Ela Township board meeting during which an executive session was called. During the executive session Cowen, by referring to the conversation he had with defendant, brought the matter to the attention of the board. The board authorized his filing a lawsuit against Ruth Grever for the amount due to the township.

Certified public accountant David Bark testified that he has performed the yearly audits for Ela Township since 1981. Bark explained that Ela Township was on a cash-receipts accounting system. Bark identified the annual audits he prepared for the township from 1992 to 1999. Bark said that during that period defendant never informed him that his wife and mother-in-law owed Ela Township money for the mother-in-law's care at Winchester House. Bark first heard about the debt sometime during 1999 or 2000 while conducting the audit and talked to defendant about it in January or February 2001.

On cross-examination, Bark testified that the cash-receipts method of accounting is more prevalent among governmental bodies than is the accrual method. Bark explained that the cash-receipts method of accounting is a cash-in, cash-out system in that money received is reported as receipts and money paid out is reported as expenditures. Bark also explained that the modified accrual method reflects receivables and payables where the cash-receipts method does not. Bark said that the amount owed to the township for Mae Chvojka's stay at Winchester House would be considered an account receivable. According to Bark, under the cash-receipts method of accounting, an account receivable would not be reported until such time as it was paid. In Bark's audits of the township's financial records, he never saw listed any accounts receivable of any type. The annual audited financial statements of the township that he prepared contained no accounts receivable. According to Bark, the supervisor's annual statement of the financial affairs of the township show no accounts receivable, and that is consistent with the township's use of the cash-receipts accounting method.

Investigator Dean Kharasch of the Lake County State's Attorney's office testified that he interviewed defendant after his arrest in February 2002. According to Kharasch, when he asked defendant whether it was within his duties as township supervisor to notify the township board about anyone failing to make private-pay Winchester House payments to Ela Township, defendant said, "that's my job to let the board know." When Kharasch asked defendant why he waited so long to tell the township board about the outstanding debt, defendant said that he thought the money would be paid.

At the close of the State's evidence, defendant moved for a judgment of acquittal. The trial court denied that motion.

Defendant called Victoria Grever, who testified that she is defendant's and Ruth Grever's youngest daughter. In 1997 or 1998, Victoria overheard her parents arguing over the Winchester House bills. According to Victoria, defendant was pleading with Ruth to pay the bills. Ruth responded by saying that it was her parents' money, that she could do what she wanted with it, and that defendant should butt out. Ruth also said that she did not tell defendant what to do with his parents' inheritance so she did not want defendant to tell her what she could or could not do with her inheritance. Victoria also testified that in June 1999, she had an argument with Ruth during which Ruth told Victoria that before she died she was going to find a way to ruin defendant professionally, politically, personally, and financially.

Defendant testified that he was Ela Township supervisor from 1981 to 2001. In the fall of 1991, his mother-in-law Mae Chvojka was admitted to Winchester House as a private-pay patient. At the time Chvojka was admitted into Winchester House, defendant was aware of various assets owned by Chvojka including her home, various bank accounts, and her income from social security and a pension. Defendant knew that Ela Township was reimbursed only for the first four Winchester bills that it paid on behalf of Chvojka during her approximately 64-month stay at Winchester House. Defendant said that he had no choice but to present the bills that came into the township to the township board for approval of payment. Defendant did not tell the township attorney about the outstanding bill until July 20, 1999. Defendant did not disclose the debt sooner because he believed and trusted that Ruth Grever would eventually pay the bill owed to the township. According to defendant, the supervisor's annual statement of the financial affairs of the township was generated by a computer program and did not include information regarding the nonpayment of the amount owed to the township for Chvojka's Winchester House care. Defendant admitted that it was the duty of the township supervisor and the township board to take legal action if the township was not being reimbursed for its payment of Winchester House bills on behalf of private-pay residents. Defendant also acknowledged that he was the only person who had knowledge of the outstanding debt due to the township for Chvojka's Winchester House care and that the members of the board would not know about it unless he told them. Defendant was aware that for 7