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                                     Appellate Court                            Date: 2016.09.29
                                                                                10:22:45 -05'00'




           Veazey v. Board of Education of Rich Township High School District 227,
                                 2016 IL App (1st) 151795



Appellate Court         FREDERICK C. VEAZEY, Plaintiff-Appellant, v. THE BOARD OF
Caption                 EDUCATION OF RICH TOWNSHIP HIGH SCHOOL DISTRICT
                        227,  BRIDGET    IMOUKHUEDE,           and     EMMANUEL
                        IMOUKHUEDE, Defendants-Appellees.



District & No.          First District, Third Division
                        Docket No. 1-15-1795


Filed                   July 20, 2016



Decision Under          Appeal from the Circuit Court of Cook County, No. 14-CH-12484; the
Review                  Hon. Mary Lane Mikva, Judge, presiding.



Judgment                Reversed and remanded with directions.



Counsel on              Center for Open Government Law Clinic of Chicago-Kent College of
Appeal                  Law and Krislov & Associates, Ltd. (Clinton A. Krislov, of counsel),
                        both of Chicago, for appellant.

                        Johnson, Jones, Snelling, Gilbert & Davis, P.C. (Jeffrey B. Gilbert, of
                        counsel), and Robert E. Lehrer, both of Chicago, for appellees Bridget
                        Imoukhuede and Emmanuel Imoukhuede.

                        Franczek Radelet P.C., of Chicago (John A. Reiias, Jacqueline F.
                        Wernz, and Nicki B. Bazer, of counsel), for appellee Board of
                        Education of Rich Township High School District 227.
     Panel                    PRESIDING JUSTICE MASON delivered the judgment of the court,
                              with opinion.
                              Justices Pucinski and Lavin concurred in the judgment and opinion.


                                                OPINION

¶1         Plaintiff Frederick Veazey filed suit seeking, among other relief, a declaratory judgment
       that a vote by defendant the Board of Education of Rich Township High School District 227
       (Board) to reinstate defendant Dr. Bridget Imoukhuede’s employment with back pay and
       attorney fees was illegal because the Board allowed Imoukhuede’s husband and Board
       member, defendant Emmanuel Imoukhuede, to cast the tie-breaking vote in violation of
       defendant Rich Township High School District 227’s (District) anti-nepotism policy. The trial
       court sua sponte invoked the Administrative Review Law (Review Law) (735 ILCS 5/3-101
       et seq. (West 2014)) and dismissed Veazey’s second amended complaint, finding that he
       lacked standing to challenge the Board’s vote because he was not a party to the administrative
       proceedings. We agree with Veazey that his challenge was directed to the legality of the
       Board’s vote and not the propriety of Imoukhuede’s reinstatement thus rendering the Review
       Law inapplicable. We also agree that Veazey has standing to pursue that challenge. But
       because Veazey’s second amended complaint fails to sufficiently plead facts supporting
       taxpayer standing, an issue not addressed by the trial court, we remand and direct the trial court
       to grant leave to amend. Consequently, we reverse the trial court’s dismissal of Veazey’s
       second amended complaint and remand for further proceedings.

¶2                                            BACKGROUND
¶3         During the 2012-13 school year, the District employed Imoukhuede, a tenured teacher, as
       the assistant principal of alternative programs. The District hired Imoukhuede in 1990; her
       husband was first elected to the Board in 2007.
¶4         On March 19, 2013, the District adopted the following anti-nepotism policy:
                   “For the purposes of this section, a relative is defined as a child, parent,
               grandparent, sibling, cousin, or spouse who is connected to another in that regard by
               way of legal (adoption, marriage, or otherwise), blood, in-law, step, or foster
               relationship.
                   An individual who is a relative of either a District employee or a Board member is
               ineligible to be hired by the District unless there are no other qualified applicants for
               the position. This policy does not apply to individuals who have already been hired,
               even if their relative is subsequently elected to the board.
                   Employees and Board members will not participate in employment decisions
               concerning either their relative or the position for which their relative has
               applied/currently holds. This includes, but is not limited to, decisions regarding hiring,
               employment status, reappointment, placement, evaluation, pay rate, salary increases,
               promotion, tenure, and awards.”
¶5         At a Board meeting held on July 30, 2013, with a quorum of Board members present, four
       members voted in favor of a resolution to suspend Imoukhuede without pay and discharge her.

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       The record does not reflect whether Emmanuel voted on the resolution. The Board’s resolution
       was adopted and became effective on August 6, 2013.
¶6          Pursuant to the School Code (105 ILCS 5/34-85 (West 2014)), Imoukhuede contested the
       Board’s resolution and requested a hearing. Following the hearing, the hearing officer found
       that the Board’s decision to discharge Imoukhuede was arbitrary and capricious and against the
       manifest weight of the evidence. The hearing officer also found that the Board violated
       Imoukhuede’s due process rights. The hearing officer recommended Imoukhuede’s
       reinstatement to the same position or a substantially equivalent position and reimbursement for
       all lost income and benefits, including reasonable attorney fees.
¶7          The Board held a special meeting on June 9, 2014, to vote on whether to accept the hearing
       officer’s recommendation to reinstate Imoukhuede. Emmanuel initially indicated he would
       abstain from voting. When the matter was called for a vote, three members voted in favor of
       adopting the hearing officer’s recommendation and three members voted against. A tie vote
       would have meant that the resolution did not pass and Imoukhuede would not be reinstated.
       Emmanuel reversed his position and ultimately cast the deciding vote in favor of reinstating his
       wife, creating a 4 to 3 majority.
¶8          On July 15, 2014, the Board held another meeting to consider whether to adopt the hearing
       officer’s recommendation that Imoukhuede be awarded back pay and attorney fees. Five
       members of the Board—constituting a quorum—were present. This time, Emmanuel
       expressed no reservations about participating in the vote. Three board members, including
       Emmanuel, voted in favor of payment of back pay and attorney fees and two members voted
       against it. One of the board members voting against the resolution explained that payment was
       not mandated by any court but merely reflected the hearing officer’s recommendation.
¶9          After the Board’s vote, Veazey, as a taxpayer residing within the District’s boundaries,
       filed a complaint against Imoukhuede, the Board, and Emmanuel. Veazey initially proceeded
       pro se but was later represented by counsel who amended his complaint twice. Veazey’s
       second amended complaint included the following counts: (1) a claim under the declaratory
       judgment provision of the Code of Civil Procedure (Code) (735 ILCS 5/2-701 (West 2014))
       seeking a determination that the Board conducted an illegal vote by permitting Emmanuel to
       cast votes in favor of resolutions benefitting his wife in violation of the District’s anti-nepotism
       policy, (2) a claim asserting it was “inequitable” for Imoukhuede to retain the funds received
       from the Board’s illegal vote, and (3) a claim seeking recovery of fraudulently obtained public
       funds (735 ILCS 5/20-103 (West 2014)) based on the allegation that Emmanuel engaged in a
       fraudulent scheme to reinstate his wife with back pay in violation of the anti-nepotism policy.
       Veazey withdrew a previously pled count asserting a taxpayer claim to recover funds
       improperly expended belonging to a municipality (65 ILCS 5/1-5-1 (West 2014)) in
       recognition of the fact that the Board was not a municipality.
¶ 10        Imoukhuede responded with a section 2-619.1 (735 ILCS 5/2-619.1 (West 2014))
       combined motion to dismiss pursuant to section 2-615 (735 ILCS 5/2-615 (West 2014)) and
       section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2014)) of the Code. The Board and
       Emmanuel together filed a section 2-619(a)(9) motion to dismiss. Both motions to dismiss
       asserted primarily that no actual controversy existed to support a cause of action for
       declaratory judgment and that the anti-nepotism policy lacked the force and effect of law.
¶ 11        During the hearing on the motions, the trial judge sua sponte determined that the Review
       Law was the only avenue of review and because Veazey was not a party to the administrative

                                                    -3-
       proceeding, he lacked standing to bring his claims. The trial court granted the motions to
       dismiss with prejudice “for reasons stated in open court.”
¶ 12        After the trial court’s ruling, Emmanuel lost his bid for re-election to the Board. Following
       the election, the new Board was granted leave to appear through substitute counsel. The
       Board’s new counsel filed a motion seeking “clarification” as to whether the trial court based
       its ruling on the Review Law, and if so, the Board claimed error arguing, in part, that the
       Review Law had no applicability to the reinstatement, and not dismissal, of an employee.
¶ 13        The court clarified its conclusion that the Review Law applied and Veazey could not
       challenge the Board’s decision. The court also observed that the Board likewise could not have
       sought review under the Review Law but refrained from addressing any rights the Board may
       have in any other proceeding.
¶ 14        Shortly after that ruling, the Board’s new counsel filed a complaint against the
       Imoukhuedes. In the new action, the Board, contrary to its defense of the vote in Veazey’s
       case, took the position that Emmanuel (1) violated the anti-nepotism policy by voting in favor
       of reinstating his wife, (2) created a conflict of interest by voting in favor of reinstating his
       wife, and (3) fraudulently concealed from the Board that his wife had announced her
       retirement prior to the vote to reinstate her. The Board also asserted that Imoukhuede acted in
       bad faith when she requested a hearing regarding her suspension even though she had already
       retired. The Board further contended that the Imoukhuedes were unjustly enriched by the funds
       paid to Imoukhuede and sought recovery of the fraudulently obtained public funds (735 ILCS
       5/20-103 (West 2014)). The Board’s complaint against the Imoukhuedes is not at issue in this
       appeal.
¶ 15                                              ANALYSIS
¶ 16        We are cognizant of the fact that the Board in the trial court advocated against Veazey and
       defended the legality of its vote. Although the Board still takes the position that it was not
       guilty of any wrongdoing, in this court the Board is now advocating in favor of Veazey’s
       position both that the Review Law is not applicable and that Veazey has taxpayer standing.
       The Board’s about-face was occasioned by the intervening election and not by any change in
       the law. But the doctrines of invited error, waiver, and judicial estoppel prevent the Board from
       taking one position in the trial court and a different position on appeal. Sakellariadis v.
       Campbell, 391 Ill. App. 3d 795, 800 (2009). Accordingly, we disregard the Board’s
       contentions on appeal urging reversal of the trial court’s dismissal of Veazey’s complaint and
       concentrate on the arguments advanced by Veazey and the Imoukhuedes.
¶ 17        Veazey challenges the trial court’s dismissal of his complaint based on the court’s
       conclusion that his only available remedy for review of the Board’s vote was under the Review
       Law. Veazey asserts that his claims regarding the illegality of the Board’s vote were unrelated
       to the merits of Imoukhuede’s reinstatement or the administrative hearing. We agree with
       Veazey that the Review Law is not applicable to his challenge to the Board’s action in allowing
       a board member with a direct financial interest to cast deciding votes in violation of the
       District’s anti-nepotism policy.
¶ 18        The Review Law applies to:
                “every action to review judicially a final decision of any administrative agency where
                the Act creating or conferring power on such agency, by express reference, adopts the
                provisions of Article III of this Act or its predecessor, the Administrative Review Act.


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               *** In all such cases, any other statutory, equitable or common law mode of review of
               decisions of administrative agencies heretofore available shall not hereafter be
               employed.” 735 ILCS 5/3-102 (West 2014).
       Section 24-16 of the School Code (105 ILCS 5/24-16 (West 2014)) adopts the Review Law
       and applies it to “all proceedings instituted for the judicial review of final administrative
       decisions of the hearing officer for dismissals pursuant to Article 24A of this Code or of a
       school board for dismissal for cause under Section 24-12 [removal or dismissal of teachers in
       contractual continued service] of this Article.” (Emphasis added.) 105 ILCS 5/24-16 (West
       2014). An “administrative decision” means “any decision, order or determination of any
       administrative agency rendered in a particular case, which affects the legal rights, duties or
       privileges of parties and which terminates the proceedings before the administrative agency.”
       735 ILCS 5/3-101 (West 2014).
¶ 19       Here, Veazey’s complaint clearly challenges the Board’s conduct in allowing Emmanuel to
       vote on matters concerning his wife, asserting that his vote should have been disregarded
       because it was cast in violation of the anti-nepotism policy. Indeed, Veazey requested a
       declaratory judgment that the Board’s June 9 and July 15, 2014, votes—adopting the hearing
       officer’s recommendation for reinstatement with back pay and reasonable attorney fees—were
       invalid and void because they were conducted contrary to the anti-nepotism policy. Nothing in
       the complaint challenged or sought review of the merits of the administrative decision, i.e.,
       whether Imoukhuede should be reinstated or awarded back pay and attorney fees. While a vote
       to reject the hearing officer’s recommendation and uphold Imoukhuede’s dismissal would
       have been subject to the Review Law, the Board’s vote to reinstate her is not. Consequently,
       the Review Law does not apply because the allegations of the complaint on their face challenge
       only the manner in which the Board voted and not the merits of the Board’s vote.
¶ 20       More importantly, if we were to find that a challenge to the Board’s voting procedure was
       subject to the Review Law, then there would be no means for nonparty individuals to hold the
       Board, and its members, accountable for their conduct in acting contrary to polices governing
       their actions. Adopting the Imoukhuedes’ position would extend the law’s scope beyond the
       review of administrative decisions and would encompass any claim with a tangential
       connection to an administrative proceeding. But the Review Law is an exclusive method of
       review limited to specific cases and the areas of its applicability must be clearly defined.
       Chestnut v. Lodge, 34 Ill. 2d 567, 571 (1966). Likewise, a claim properly reviewed under the
       Review Law eliminates any other statutory, equitable, or common-law remedies. Sierra Club
       v. Office of Mines & Minerals, 2015 IL App (4th) 140405, ¶ 24. In this case, expansion of the
       Review Law’s applicability to preclude a challenge relating to the Board’s voting procedures
       (which is wholly independent of any procedural irregularities relating to administrative review
       proceedings) is unwarranted. Because Veazey’s claims fall outside the scope of the Review
       Law, its provisions do not bar his claims.
¶ 21       Moreover, we are mindful of the practical effect of the Board’s vote adopting the hearing
       officer’s recommendation to reinstate Imoukhuede with back pay and attorney fees.
       Presumably, had the Board adhered to its own policy and prohibited Emmanuel from voting,
       the resolution would not have passed and Imoukhuede would not have been reinstated. In that
       case, Imoukhuede would have had the right as an aggrieved party to seek judicial review of her
       dismissal under the Review Law pursuant to the School Code. 105 ILCS 5/24-16 (West 2014).
       Ultimately, the Board would have incurred additional expense in litigating the matter, and the

                                                  -5-
       end result may have been the same: Imoukhuede’s reinstatement with back pay and attorney
       fees.1 Nonetheless, we cannot ignore Veazey’s allegation that the Board acted illegally in
       allowing Emmanuel to vote and further cannot accept the Imoukhuedes’ contention that such a
       vote by a public body is immune from judicial oversight. See Tanner v. Solomon, 58 Ill. App.
       2d 134, 137 (1965) (finding the Review Law had no relevance to a claim where one board
       member sought a declaratory judgment relating to the actions of two other members of the
       same board). Consequently, the trial court erred in dismissing Veazey’s complaint based on its
       finding that Veazey’s only relief was under the Review Law.
¶ 22       We next consider whether Veazey’s complaint warrants dismissal on any other basis. As
       an initial matter, we note that Veazey’s second amended complaint included claims for
       declaratory judgment, equitable relief, and recovery of fraudulently obtained public funds, but
       Veazey limits his arguments on appeal to the viability of his declaratory judgment claim.
       Accordingly, we too limit our review to that claim as Veazey has waived review of any other
       claim. See Vancura v. Katris, 238 Ill. 2d 352, 369 (2010) (points not argued in appellant’s brief
       “ ‘are waived and shall not be raised in the reply brief, in oral argument, or on petition for
       rehearing’ ” (quoting Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008))).
¶ 23       We first consider, under section 2-619(a)(9), whether the circumstances of this
       case—involving a taxpayer’s challenge to an allegedly invalid vote by a public body, which
       resulted in the expenditure of public funds—fits within that category of cases where taxpayers
       have standing to sue. A section 2-619 motion to dismiss admits the legal sufficiency of the
       complaint but asserts an affirmative defense or other matter that avoids or defeats the
       plaintiff’s claim. Relf v. Shatayeva, 2013 IL 114925, ¶ 20; DeLuna v. Burciaga, 223 Ill. 2d 49,
       59 (2006). “Affirmative matter” includes any defense other than one that negates an essential
       allegation of a plaintiff’s cause of action. Kedzie & 103rd Currency Exchange, Inc. v. Hodge,
       156 Ill. 2d 112, 115 (1993). Lack of standing is an affirmative defense. Wexler v. Wirtz Corp.,
       211 Ill. 2d 18, 22 (2004). We review the trial court’s ruling on a section 2-619 motion to
       dismiss de novo. Lutkauskas v. Ricker, 2015 IL 117090, ¶ 29.
¶ 24       Taxpayers may have standing to sue either in their personal capacity as taxpayers or
       derivatively on behalf of a local governmental unit (taxpayer derivative). Taxpayer plaintiffs
       have direct standing to enjoin the misuse of public funds, which arises from the taxpayers’
       ownership of the public funds and their liability to replenish the public treasury for the
       deficiency caused by the misappropriation. Scachitti v. UBS Financial Services, 215 Ill. 2d
       484, 493-94 (2005) (citing Barco Manufacturing Co. v. Wright, 10 Ill. 2d 157, 160 (1956)).
       The misuse of public funds for illegal purposes is “damage” entitling taxpayers to sue. Id. at
       494. On the other hand, in a taxpayer derivative action, the taxpayer brings an action on behalf
       of a local government entity to enforce a cause of action belonging to that entity. Id.; Lyons v.
       Ryan, 201 Ill. 2d 529, 534-35 (2002).
¶ 25       The nature of Veazey’s declaratory judgment claim falls squarely within those cases that
       have recognized a taxpayer challenge to the wrongful depletion of public funds. Martini v.
       Netsch, 272 Ill. App. 3d 693, 697 (1995). Veazey’s action is based on the Board’s expenditure
       of District funds to reinstate Imoukhuede and pay her back pay and attorney fees, which
       Veazey asserts resulted from illegal Board votes. The facts of this case demonstrate the need

          1
            We express no view on the merits of the Board’s decision to dismiss Imoukhuede or the hearing
       officer’s recommendation to reinstate her as those issues are not before us.

                                                   -6-
       for according a taxpayer standing to challenge an apparently illegal vote by the Board, which
       serves as a check on the Board’s actions. Indeed, the narrow principle of taxpayer standing
       provides an individual such as Veazey a basis to challenge the Board’s alleged wrongful
       spending, i.e., conducting an illegal vote that resulted in reinstatement and payment of back
       pay and attorney fees to Imoukhuede. Barco Manufacturing Co., 10 Ill. 2d at 160 (“[i]t has
       long been the rule in Illinois that citizens and taxpayers have a right to enjoin the misuse of
       public funds, and that this right is based upon the taxpayers’ ownership of such funds and their
       liability to replenish the public treasury for the deficiency caused by such misappropriation”).
       In his capacity as a taxpayer, Veazey has standing to challenge the Board’s conduct in allowing
       Emmanuel to cast the deciding votes in favor of resolutions directly benefitting his wife and
       himself and which involved the expenditure of public funds.
¶ 26       The Imoukhuedes also argue that Veazey lacks taxpayer derivative standing. But Veazey’s
       request for a declaratory judgment does not assert a derivative claim on the Board’s behalf.
       Certainly, the Board could not bring a declaratory judgment action against itself to establish
       that Imoukhuede’s reinstatement with back pay and attorney fees was the product of an illegal
       vote. See Feen v. Ray, 109 Ill. 2d 339, 346 (1985) (a taxpayer derivative suit requires the
       governmental entity to have refused taxpayers’ requests to enforce on its own cause of action).
       Likewise, Veazey’s claims are not derivative of an action belonging to the Board based upon
       any wrongful third-party actions. See, e.g., id. at 342, 345 (taxpayer filed a complaint seeking
       to recover from a bank on behalf of a school district fraudulently deprived interest on district
       funds).
¶ 27       Moreover, it cannot be said that Veazey is suing derivatively on behalf of the District.
       Although a board of education has the power under the School Code to sue and be sued in court
       proceedings, a school district lacks the capacity to sue on its own behalf unless specifically
       permitted by a companion statute. Board of Education of Bremen High School District No. 228
       v. Mitchell, 387 Ill. App. 3d 117, 124 (2008) (citing 105 ILCS 5/10-2 (West 2006)). Neither
       party points to a companion statute that would have authorized the District to bring a cause of
       action under these facts. Because neither the District nor the Board could have brought the
       declaratory judgment action based on the Board’s illegal vote, Veazey’s claims are not
       derivative of an action belonging to the Board or the District. For this reason, the
       Imoukhuedes’ reliance on Lutkauskas and Scachitti is misplaced because Veazey’s claims are
       not derivative in nature.
¶ 28       The Imoukhuedes also claim that Veazey’s complaint warranted dismissal because the
       Board’s anti-nepotism provision is merely an internal board policy document and not a “rule”
       that can be judicially enforced. We disagree. A board of education is designated as a district’s
       governing body. Mitchell, 387 Ill. App. 3d at 120 (a board of education “ ‘furnishes the method
       and machinery for the government and management of the district’ ” (quoting Board of
       Education of District No. 88 v. Home Real Estate Improvement Corp., 378 Ill. 298, 303
       (1941))). Under the School Code, school boards have the power to adopt and enforce all
       necessary rules for the management and government of the public schools in the district. 105
       ILCS 5/10-20.5 (West 2014). A board of education’s powers include those expressly granted
       in the School Code and those implied powers necessary to effect them. Mitchell, 387 Ill. App.
       3d at 121.
¶ 29       Here, nothing in the record demonstrates that the Board distinguishes between “rules” and
       “policies” or that the Board has adopted other governing “rules.” Notably, the table of contents

                                                  -7-
       to the Board’s policy manual included in the record states that the District’s policies “are both
       legally compliant as well as appropriate for our students and the community.” And although
       the entirety of the Board’s policies is not included in the record, they are posted on the Board’s
       website. Those policies are comprehensive and cover topics such as the hiring, retention, and
       discipline of teachers and other District employees, as well as student discipline. See Rich
       Township High School District Board of Education Policy Manual, available at
       http://policy.microscribepub.com/cgi-bin/om_isapi.dll?clientID=632324763&depth=2&infob
       ase=rich_227.nfo&softpage=PL_frame (last visited July 18, 2016); People v. Crawford, 2013
       IL App (1st) 100310, ¶ 118 n.9 (we may take judicial notice of information “on a public
       website even though the information was not in the record on appeal”); Advocate Health &
       Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 759 (2004) (a court may take judicial
       notice of public records if such notice will aid in the efficient disposition of the case).
       Moreover, contrary to the Imoukhuedes’ position that the anti-nepotism policy is merely an
       unenforceable suggestion, the Board’s counsel advised the Board that it must abide by its own
       policies. Consequently, we find that the anti-nepotism policy, like the other policies in the
       manual, is binding on the Board.
¶ 30       Furthermore, the Board’s online policy manual includes a policy addressing the District’s
       governance and expressly provides the Board with the authority “to adopt, enforce, and
       monitor all policies for the management and governance of the District’s schools.” (Emphases
       added.) Rich Township High School District Board of Education Policy Manual § 2:10,
       available at http://policy.microscribepub.com/cgi-bin/om_isapi.dll?clientID=632324763&
       depth=2&infobase=rich_227.nfo&softpage=PL_frame (last visited July 18, 2016). For this
       additional reason, the suggestion that the anti-nepotism policy serves as an informal guide and,
       thus, an unenforceable “suggestion” is not well-taken. Instead, it is clear that the Board
       adopted its policies based on the authority given to it both under the School Code and by the
       District and that its “policies” carry the force of law. See Heifner v. Board of Education of
       Morris Community High School District No. 101, 32 Ill. App. 3d 83, 87 (1975) (rules adopted
       pursuant to statutory authority have the force of law); Tyska v. Board of Education of Township
       High School District 214, 117 Ill. App. 3d 917, 923 (1983) (school board rules have the force
       of law). Consequently, a vote taken in violation of the anti-nepotism policy may be deemed
       illegal.
¶ 31       The Imoukhuedes further contend that even if the anti-nepotism policy may be judicially
       enforced, the Board did nothing illegal and Veazey, therefore, has no cause of action to declare
       the Board’s vote void. The Imoukhuedes point to the portion of the anti-nepotism policy
       expressly stating that “[t]his policy does not apply to individuals who have already been hired,
       even if their relative is subsequently elected to the board.” The Imoukhuedes rely on that
       language and the fact that Imoukhuede was already a District employee before Emmanuel’s
       election to the Board to assert that the Board’s vote was not illegal since the policy did not
       apply. But when read in context, 2 the cited exclusion clearly relates to the hiring of an
           2
             The applicable paragraph reads: “An individual who is a relative of either a District employee or a
       Board member is ineligible to be hired by the District unless there are no other qualified applicants for
       the position. This policy does not apply to individuals who have already been hired, even if their
       relative is subsequently elected to the board.” Rich Township High School District Board of Education
       Policy Manual § 2:90, available at http://policy.microscribepub.com/cgi-bin/om_isapi.dll?clientID=
       3234065578&depth=2&infobase=rich_227.nfo&softpage=PL_frame (last visited July 18, 2016).

                                                       -8-
       employee and does not purport to exclude application of the anti-nepotism policy to previously
       employed individuals, i.e., there is no “grandfather” clause excluding previously hired
       employees from the anti-nepotism policy.
¶ 32       Finally, we address under section 2-615 the sufficiency of the allegations of Veazey’s
       complaint. A section 2-615 motion to dismiss tests the legal sufficiency of the complaint based
       on defects apparent on the face of the pleading. Hadley v. Doe, 2015 IL 118000, ¶ 29; Simpkins
       v. CSX Transportation, Inc., 2012 IL 110662, ¶ 13. The relevant inquiry is whether the
       allegations of the complaint, when construed in the light most favorable to the plaintiff, set
       forth sufficient facts to establish a cause of action upon which relief may be granted. Doe, 2015
       IL 118000, ¶ 29. Given its ruling on the section 2-619 motions, the trial court did not reach
       defendants’ section 2-615 challenge to the sufficiency of the complaint’s allegations. But
       because we are remanding this matter for further proceedings, we will address the issue.
¶ 33       The elements of a cause of action for a declaratory judgment are “(1) a plaintiff with a legal
       tangible interest; (2) a defendant having an opposing interest; and (3) an actual controversy
       between the parties concerning such interests.” Beahringer v. Page, 204 Ill. 2d 363, 372
       (2003). An “actual controversy” “requires a showing that the underlying facts and issues of the
       case are not moot or premature, so as to require the court to pass judgment on mere abstract
       propositions of law, render an advisory opinion, or give legal advice as to future events.”
       (Emphasis and internal quotation marks omitted.) Id. at 375. The threshold requirement for
       establishing a declaratory judgment claim is whether a plaintiff “can plead a legal theory in
       which he has a personal legal interest.” Gore v. Indiana Insurance Co., 376 Ill. App. 3d 282,
       291 (2007).
¶ 34       Regarding the first element, Veazey, as stated, in his capacity as a taxpayer, has an interest
       in invalidating the Board’s votes because those votes directly resulted in Imoukhuede’s
       reinstatement and the disbursement of funds to Imoukhuede for back pay and attorney fees. In
       his second amended complaint, Veazey identified himself as a taxpayer residing in the
       District’s boundaries and pled the illegality of the Board’s vote but failed to specifically plead
       that, as a taxpayer, he has been or will be liable to replenish the District’s misappropriation of
       funds, i.e., the payments made to Imoukhuede in conjunction with her reinstatement. Schacht
       v. Brown, 2015 IL App (1st) 133035, ¶ 20. Because such allegations are absent, Veazey’s
       complaint is “fatally defective.” Wirtz Corp., 211 Ill. 2d at 22. But Veazey advances arguments
       on appeal on this point and he would likely be able to cure this defect if given leave to amend.
       Presuming Veazey properly amends his complaint, the first element of a declaratory judgment
       action would be established for pleading purposes.
¶ 35       Regarding the remaining two elements, the Imoukhuedes’ position regarding the validity
       of the Board’s votes satisfies both the opposing interest and concrete controversy elements of
       Veazey’s claim for declaratory relief.

¶ 36                                         CONCLUSION
¶ 37        In sum, the Imoukhuedes failed to demonstrate any affirmative matter or defenses
       defeating Veazey’s claims. Assuming that on remand Veazey alleges facts demonstrating his
       liability to replenish public funds used to pay Imoukhuede, he has standing as a taxpayer to
       pursue a claim for declaratory relief challenging the votes in violation of the Board’s
       anti-nepotism policy that resulted in the expenditure of those funds. Therefore, we reverse the
       trial court’s order dismissing Veazey’s second amended complaint and remand with directions

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       to grant Veazey leave to amend his complaint.

¶ 38      Reversed and remanded with directions.




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