THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARMECITA WILLIAMS, Defendant-Appellant, 393 Ill. App. 3d 77

JUSTICE NEVILLE delivered the opinion of the court: On September 30, 1998, codefendants Gregory Stroud, Carmecita Williams, Sean Stroud, and Dwight Chandler were charged with violating the criminal drug conspiracy statute. 720 ILCS 570/405.1 (West 1998). In addition, Williams was also charged with official misconduct. 720 ILCS 5/33 — 3(b) (West 1998). At the conclusion of the State’s case, the trial court granted Williams’ motion for a directed verdict on the criminal drug conspiracy count. After a joint bench trial, the trial court found Williams guilty of official misconduct.

The trial court sentenced Williams to 24 months’ probation and 250 hours of community service. On appeal, Williams presents four issues for our review: (1) whether a person must violate a law in order to be guilty of official misconduct (720 ILCS 5/33 — 3(b) (West 1998)); (2) whether the State proved her guilty of official misconduct beyond a reasonable doubt; (3) whether the official misconduct statute is unconstitutional because it is overbroad and vague; and (4) whether trial counsel was ineffective for failing to file a motion to dismiss the fatally defective indictment.

We find that Williams did not violate a law; therefore, we reverse Williams’ conviction and vacate her sentence. I. BACKGROUND Williams was a suspect in an undercover investigation of an alleged drug ring. Williams was charged with criminal drug conspiracy and official misconduct. The official misconduct indictment alleged that Williams: “A public employee, namely an employee of the village of Glen-wood, Illinois, in her official capacity as police dispatcher knowingly performed

an act which she knew is forbidden by law to perform, to wit: she notified Greg Stroud about police activity near his residence in South Holland, Illinois, in order to facilitate illegal drug-dealing by Greg Stroud, in violation of

Chapter 720,

Section 5/33 — 3(

b) of the Illinois Compiled Statutes 1997 as amended ***.” A. The State’s Case Alex DiMare, a retired deputy chief of the Glenwood police department, testified that Williams was hired in October 1997 as a radio dispatcher in the communications room of the police department. As a dispatcher, Williams disseminated information gathered from the public to the police or she disseminated internal information from the department to the officers. When Williams was hired, she was told, both orally and in writing, the rules and regulations of the department and given instructions about confidential information.

DiMare identified exhibit 30 as pages from the police department’s rules and regulations providing instructions for the dissemination of confidential information. DiMare testified that during Williams’ tenure with the department, he spoke with Williams on the telephone several times and was familiar with her voice. After the State played the tapes from the intercepted telephone conversations, DiMare testified that he recognized Williams’ voice. DiMare identified a time card for Williams that indicated she was at work on July 12, 1998.

DiMare also verified that on July 12, 1998, the South Suburban Emergency Response Team (SERT) was assisting the police department with a barricaded subject and that it was the dispatcher’s responsibility to notify members of the SERT team and the local agencies. DiMare further testified that the information Williams gave Stroud was confidential and that she violated the police department’s rules and regulations regarding the dissemination of confidential information. Dimare opined that Williams jeopardized the investigation and the officers’ safety. B.

Williams’ Case Williams testified that Stroud is the father of her 14-year-old son. Williams also testified that on July 12, 1998, she was working full time as a dispatcher for the Glenwood police department and made two telephone calls to Stroud from work and one call from her home. Williams explained that she made the calls because her son told her that Stroud’s son was listening to a police scanner, which Williams found to be suspicious. Williams testified that she made the calls and hoped that Stroud would tell her if something suspicious was going on at his house.

Williams testified that she did not receive any dispatch or disclosure that the police were at the college conducting surveillance on the day she made the telephone calls. She further testified that she did not know Stroud was dealing narcotics and she did not make the phone calls in order to facilitate any narcotics dealing. On cross-examination, Williams testified that she made up the statement that there were “eyes staged at the college,” but that she obtained the information regarding the SERT team while she was at work.

She acknowledged that she was told about the rules and regulations discussing confidential information, but she claimed that she did not give out any confidential information. The trial court found Williams guilty of official misconduct and sentenced her to 24 months’ probation and 250 hours of community service. Williams filed a posttrial motion and argued that the State failed to prove her guilty beyond a reasonable doubt. The trial court denied the motion. II. ANALYSIS Williams contends the State failed to prove her guilty beyond a reasonable doubt of official misconduct.

Specifically, she contends that, assuming she disseminated confidential information, the State failed to prove that her acts violated a “law” as required by the official misconduct statute. The State maintains that it proved Williams guilty of official misconduct because Williams violated the rules and regulations of the Glenwood police department by disseminating confidential information to Stroud. A.

The Standard of Review “In assessing whether the evidence was sufficient to sustain a verdict, a reviewing court’s inquiry is ‘ “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.)’ ” People v. Cardamone, 232 Ill. 2d 504, 511 (2009), quoting People v. Bush, 214 Ill. 2d 318, 326 (2005), quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); People v. Collins, 106 Ill. 2d 237, 261 (1985).

Before we decide whether the evidence was sufficient to establish Williams’ guilt of official misconduct, we must determine, as Williams requests, whether her acts violated a “law.” In order to determine if Williams’ acts violated a “law,” this court must construe the word “law” in the official misconduct statute. Therefore, because construing the word “law” presents this court with a legal question and not a factual question regarding the sufficiency of the evidence, our review is also de novo. People v. Grever, 222 Ill. 2d 321, 328 (2006), citing People v. Collins, 214 Ill. 2d 206, 214 (2005). B.

The Official Misconduct Statute Requires Public Officials to Commit Acts That Violate Laws

Section 33 — 3(

b) of the Criminal Code of 1961 provides that “[a] public officer or employee commits misconduct when, in his official capacity, he *** [kjnowingly performs

an act which he knows he is forbidden by law to perform.” 720 ILCS 5/33 — 3(b) (West 1998). The official misconduct statute clearly requires the knowing performance of

an act forbidden by “law.” 720 ILCS 5/33 — 3(b) (West 1998). In Grever, the Illinois Supreme Court held that the official misconduct statute requires the charging instrument to specify the “law” allegedly violated in the course of committing the offense. Grever, 222 Ill. 2d at 335. If the official misconduct statute requires the public official to perform

an act forbidden by “law” and, if the Grever court reqúires the indictment to specify the “law” the public official has violated in the course of committing the offense, then a “law” other than the official misconduct law must be violated to commit the offense of official misconduct. Grever, 222 Ill. 2d at 335; 720 ILCS 5/33 — 3(b) (West 1998). Therefore, we hold that the official misconduct statute is violated (1) when a public officer or employee knowingly commits

an act that violates a “law,” and (2) when the act that violates a law is committed, the public officer or employee is acting in his official capacity. Grever, 222 Ill. 2d at 335; 720 ILCS 5/33 — 3(b) (West 1998). C. The Sufficiency of the Evidence Having determined that a law must be violated to be convicted of official misconduct, we must consider the evidence presented by the State. The State called DiMare, a former Glenwood police officer, to testify about the Glenwood police department’s rules and regulations.

DiMare read the following rules and regulations from the Glenwood police department into evidence: “Section one of the department rules and regulations provides that members shall treat as confidential the official business of the police department and shall not reveal police information outside the department except as provided elsewhere by the rules and regulations as required by law or competent authority. Information contained in the police reports, other information ordinarily accessible only to members of the department, shall be confidential.

Names of informants, complainants, witnesses, and other persons known to the police are to be considered confidential. Silence shall be maintained to safeguard such information unless authorized by the commanding officer.

Section three of the department rules and regulations provides that members shall not discuss or impart confidential information to anyone except those whom it was intended or as directed to by their commanding officers or under the due process of law.

Section four of the rules and regulations provides that members shall not communicate information which may delay arrest or aid the person to escape, destroy evidence, or remove stolen property. They shall not communicate information regarding an arrest or a case to which they are assigned except with the consent of their commanding officers. Members shall not communicate information relating to proposed or actual arrests or cases investigated or to be investigated except to the arresting officers or the officers assigned to that case or the commanding officer. They shall not give information or refer to any case outside the department or agency except through official channels.

Section five of the rules and regulations provides that members shall not make known to any person the contents of any directive order which they may receive unless required by the nature of the order.” 1. The Police Department’s Rules and Regulations Are Not Laws First, because the Glenwood police department’s rules and regulations were introduced into evidence, we must decide whether the rules and regulations are “laws” within the purview of the official misconduct statute. The official misconduct statute provides, as previously pointed out, that “[a] public officer or employee commits misconduct when, in his official capacity, he *** [kjnowingly performs

an act which he knows he is forbidden by law to perform.” 720 ILCS 5/33 — 3(b) (West 1998). We note that Williams does not challenge the fact that she has to be a public employee to violate the official misconduct statute. We note, however, that there is no violation of the official misconduct statute unless the defendant is a public official or public employee. 720 ILCS 5/33 — 3(b) (West 1998).

Therefore, after reviewing the facts, we find that Williams was a public employee because (1) she was authorized to perform official functions (dispatched information for the Glenwood police department), and (2) she was paid by Glenwood, a municipality of the State. See 720 ILCS 5/2 — 17 (West 1998). While the official misconduct statute uses the word “law” (720 ILCS 5/33 — 3(b) (West 1998)), the Criminal Code does not define the word “law.” See 720 ILCS 5/1 — 1 et seq. (West 1998).

We note, however, that the Illinois Supreme Court has held that the term “law” includes a civil or penal statute, supreme court rule, administrative rule or regulation, or tenent of professional responsibility. See Fellhauer v. City of Geneva, 142 Ill. 2d 495, 506 (1991), citing People v. Bassett, 169 Ill. App. 3d 232, 235 (1988); People v. Weber, 133 Ill. App. 3d 686, 690-91 (1985) (“law” includes civil or penal statute, supreme court rule, administrative rule or regulation, or tenet of professional code).

Finding no definition for the word “law” in the Criminal Code, we will use the Fellhauer court’s definition of the word “law” to determine whether the Glenwood police department’s rules and regulations are “laws.” We find that the Glenwood police department’s rules and regulations are not civil statutes (735 ILCS 5/1 — 101 et seq. (West 1998)); they are not penal statutes (720 ILCS 5/1 — 1 et seq. (West 1998)); they are not supreme court rules (see 134 Ill. 2d R 1); they are not administrative rules or regulations (5 ILCS 100/1 — 1 et seq. (West 1998)); and they are not tenents of professional responsibility. 134 Ill. 2d R. 1.1.

Accordingly, we hold that the Glenwood police department’s rules and regulations are not “laws” as defined by the supreme court in Fellhauer. Fellhauer, 142 Ill. 2d at 506. Nevertheless, the State insists that the Glenwood police department’s rules and regulations were administrative rules and regulations. We note that an administrative agency in the proper exercise of its rulemaking power promulgates rules and regulations, which are an expression of legislative policy. People v. Becker, 315 Ill. App. 3d 980, 1000 (2000).

We also note that “[a]dministrative rules and regulations have the force and effect of law and, like a statute, enjoy a presumption of validity.” Becker, 315 Ill. App. 3d at 1000. The Criminal Code does not define the term “agency.” 720 ILCS 5/1 — 1 et seq. (West 1998).

However, the Illinois Administrative Procedure Act defines an “agency” as “each administrative unit or corporate outgrowth of the State government that is created by or pursuant to statute, other than units of local government and their officers, school districts, and boards of election commissioners.” (Emphasis added.) 5 ILCS 100/1 — 20 (West 1998).

The Illinois Constitution defines “[ujnits of local government” as “counties, municipalities, townships, special districts, and units, designated as units of local government by law, which exercise limited governmental powers or powers in respect to limited governmental subjects, but does not include school districts.” Ill. Const. 1970, art. VII, §1. The Illinois Constitution also defines “[m]unicipalities” as “cities, villages and incorporated towns.” Ill. Const. 1970, art. VII, §1.

Therefore, we find that Glenwood is a municipality (65 ILCS 5/2— 3 — 1 (West 1998) (incorporation of town as a village occurs after the submission of a question to the electors)), and it is not an administrative agency that was created by or pursuant to a statute with the power to promulgate rules or regulations. 5 ILCS 100/1 — 20 (West 1998); Ill. Const. 1970, art. VII, §1. Next, we find that the Glenwood police department was created by the municipality of Glenwood, a unit of local government, and not by a state statute.

See 65 ILCS 5/11 — 1—1 (West 1998) (the corporate authorities of each municipality may pass and enforce all necessary police ordinances). The Glenwood police department promulgated the department’s rules and regulations. Therefore, because neither the municipality of Glenwood nor its police department is an administrative agency, the Glenwood police department’s rules and regulations are not administrative rules or regulations that are an expression of legislative policy and they do not have the force of law. See Carver v. Nall, 186 Ill. 2d 554, 561 (1999) (quoting and applying

section 1 — 20 of the Administrative Procedure Act (5 ILCS 100/1 — 20 (West 1996))), overruled on other grounds, Nudell v. Forest Preserve District, 207 Ill. 2d 409 (2003). 2. The Acts Performed Must Violate Laws Second, we must examine Williams’ acts. In order for Williams to be found guilty of official misconduct, the State had to prove (1) that Williams performed

an act that violated a “law,” and (2) that when Williams committed

an act that violated a “law,” she was a public employee. 720 ILCS 5/33 — 3(b) (West 1998). While we need not determine the validity of the indictment for purposes of this appeal, we examine the indictment to determine the “law” Williams is alleged to have violated. We note that the indictment for official misconduct did not allege that Williams violated a police department rule or regulation. Instead, the indictment simply alleged that Williams “knowingly performed

an act which she knew is forbidden by law to perform, to wit: she notified Greg Stroud about police activity near his residence in South Holland, Illinois, in order to facilitate illegal drug-dealing by Greg Stroud, in violation of

Chapter 720,

Section 5/33— 3(

b) of the Illinois Compiled Statutes 1997 as amended.” As previously noted, the Grever court held that the official misconduct statute requires the charging instrument to specify the law allegedly violated in the course of committing the offense. Grever, 222 Ill. 2d at 335. Here, the only “law” referred to in the indictment is the official misconduct statute. The official misconduct’s statute’s requirement that the public employee perform

an act forbidden by “law” would have to be

an act forbidden by a “law” other than the official misconduct statute. 720 ILCS 5/33 — 3(b) (West 1998). However, by only presenting evidence that Williams violated the Glenwood police department’s rules and regulations, which are not “laws” as defined by Fellhauer (Fellhauer, 142 Ill. 2d at 506), the State failed to present evidence which established that Williams performed

an act that is forbidden by a “law.” Accordingly, we hold that Williams did not violate the official misconduct statute because there is no evidence in the record that she performed

an act forbidden by a “law.” 3. Laws Are Promulgated by the Legislature The dissent relies on DiMare’s testimony and takes the position, based upon

article VII of the Illinois Constitution, that the Village of Glenwood is a home rule municipality. Ill. Const. 1970, art. VII, §6. Therefore, the dissent reasons (1) that the confidentiality rules Williams is alleged to have violated are part of the Village of Glenwood police department’s rules and regulations, (2) that the confidentiality rules were approved and codified as an ordinance by a home rule municipality, and (3) that a violation of the ordinance is a violation of a “law” within the meaning of the official misconduct statute. 720 ILCS 5/33 — 3(b) (West 1998).

An examination of the Illinois Constitution reveals that only the legislature promulgates laws. See Ill. Const. 1970, art. IV §§8(b), (c) (the General Assembly shall enact laws only by bill and no bill shall become a law without the concurrence of a majority of the members elected to each house). Further examination of the Illinois Constitution reveals that home rule units of government, including municipalities, promulgate ordinances. See Ill. Const. 1970, art. VII, §6(c) (article VII delineates the powers of home rule units and provides that municipalities promulgate ordinances).

The Illinois Constitution makes it clear that only the legislature promulgates laws and that a home rule municipality only promulgates ordinances. Compare Ill. Const. 1970, art. IV §§8(b), (c); Ill. Const. 1970, art. VII, §6(c). Therefore, we find that even if, as the dissent suggests, the Glenwood police department’s rules and regulations are ordinances, the police department’s rules and regulations are not “laws.” Ill. Const. 1970, art. IV §§8(b), (c); Ill. Const. 1970, art. VII, §6(c).

Accordingly, because the Glenwood police department’s rules and regulations are not laws, if the police department’s rules and regulations are violated, there is no violation of the official misconduct statute. Compare Ill. Const. 1970, art. IV §§8(b), (c), with Ill. Const. 1970, art. VII, §6(c); see also 720 ILCS 5/33 — 3(b) (West 1998). D. A Recent Supreme Court Decision We note that the Illinois Supreme Court recently decided Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1 (2009), and held that the Residential Tenant Landlord Ordinance imposes a “statutory penalty” within the meaning of

section 13 — 202 of the Code of Civil Procedure (735 ILCS 5/13 — 202 (West 2004)). Specifically, utilizing the general civil principle of statutory construction that statutes are given their fullest, rather than narrowest, possible meaning, the Illinois Supreme Court found that the legislature intended municipal ordinances and state statutes to be included in the term “statutory” contained in

section 13 — 202 of the Code. Landis, 235 Ill. 2d at 11, citing Collins v. Board of Trustees of the Firemen’s Annuity & Benefit Fund, 155 Ill. 2d 103, 111 (1993), and Lake County Board of Review v. Property Tax Appeal Board, 119 Ill. 2d 419, 423 (1988). We note that we are construing the word “law” in a criminal statute, the official misconduct statute. 720 ILCS 5/33 — 3(b) (West 1998). We also note that in criminal cases, criminal statutes are narrowly construed in favor of the accused. See United States v. Santos, 553 U.S. 507, 514, 170 L. Ed. 2d 912, 920, 128 S.

Ct. 2020, 2025 (2008) (“The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them”), citing United States v. Gradwell, 243 U.S. 476, 485, 61 L. Ed. 857, 864, 37 S. Ct. 407, 410 (1917); McBoyle v. United States, 283 U.S. 25, 27, 75 L. Ed. 816, 818-19, 51 S. Ct. 340, 341 (1931); United States v. Bass, 404 U.S. 336, 347-49, 30 L. Ed. 2d 488, 496-98, 92 S. Ct. 515, 522-23 (1971); see also People v. Grever, 222 Ill. 2d 321, 338 (2006), citing People v. Christensen, 102 Ill. 2d 321, 328 (1984) (“We strictly construe criminal statutes in favor of the accused”).

Therefore, because the instant case involves the construction of a criminal statute rather than a civil statute, we do not believe that the general civil rule of statutory construction that statutes are given their fullest possible meaning applies to the instant case. Accordingly, we find the civil statutory construction rules used in Landis inapplicable to the instant criminal case. III.

CONCLUSION In conclusion, the official misconduct statute required the State to prove that Williams violated a “law”; the State presented evidence that Williams violated the Glenwood police department’s rules and regulations, which are not “laws”; therefore, because the Glenwood police department’s rules and regulations, are not “laws,” Williams did not violate the official misconduct statute. 720 ILCS 5/33 — 3(b) (West 1998).

Because the State failed to present evidence which established that Williams violated a law as required by the official misconduct statute, we reverse this case for evidentiary insufficiency. People v. Olivera, 164 Ill. 2d 382, 393 (1995). When there is evidentiary insufficiency, the only proper remedy is a judgment of acquittal. Olivera, 164 Ill. 2d at 393. Accordingly, we reverse Williams’ conviction and enter a judgment of acquittal, and we need not address her remaining claims on appeal. Reversed. STEELE, J., concurs.

The plaintiffs had filed for injunctive relief against Highlands, and the cases were consolidated for review. Dwight Chandler’s motion for a directed verdict was also granted at the conclusion of the State’s case. The dissent relies on DiMare, the former Glenwood police department official, who testified that the Glenwood police department’s rules and regulations applied to Williams. This court will not rely on DiMare’s

interpretation of the Glenwood police department’s rules and regulations. The

interpretation of a statute or rules and regulations raises a question of law over which this court has de novo review; therefore, we will ignore DiMare’s lay opinion on an ultimate issue: whether the Glenwood police department’s rules and regulations apply to Williams. People v. Parcel of Property Commonly Known as 1945 North 31st Street, Decatur, Macon County, Illinois, 217 Ill. 2d 481, 499 (2005), citing Petersen v. Wallach, 198 Ill. 2d 439, 444 (2002); In re Marriage of Rogers, 213 Ill. 2d 129, 135-36 (2004) (how a statute is interpreted is not a matter left to the trial court’s discretion).

According to the Glenwood Municipal Code, the Glenwood police department’s rules and regulations apply to members of the police department, which includes: (1) one chief of police, (2) one deputy chief of police, (3) 4 sergeants and 19 patrol officers, and (4) such other members as may be provided for from time to time by the village president and board of trustees. Village of Glenwood Municipal Code art. II, §§58 — 31, 58 — 42 (eff. May 1, 2007). Civilian employees, like Williams, are not members of the police department. Therefore, the rules and regulations do not apply to Williams.