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                                  Appellate Court                            Date: 2017.08.01
                                                                             12:49:22 -05'00'




                  Sweeney v. City of Decatur, 2017 IL App (4th) 160492



Appellate Court       BRADLEY L. SWEENEY, Plaintiff-Appellant, v. THE CITY OF
Caption               DECATUR, Defendant-Appellee.



District & No.        Fourth District
                      Docket No. 4-16-0492



Filed                 March 24, 2017



Decision Under        Appeal from the Circuit Court of Macon County, No. 16-L-18; the
Review                Hon. Albert G. Webber, Judge, presiding.



Judgment              Affirmed.



Counsel on            Jon D. Robinson (argued), of Bolen Robinson & Ellis, LLP, of
Appeal                Decatur, for appellant.

                      Jerrold H. Stocks (argued) and Edward F. Flynn, of Featherstun,
                      Gaumer, Postlewait, Stocks, Flynn, Hubbard, of Decatur, for appellee.



Panel                 PRESIDING JUSTICE TURNER delivered the judgment of the court,
                      with opinion.
                      Justices Harris and Steigmann concurred in the judgment and opinion.
                                             OPINION

¶1       In February 2016, plaintiff, Bradley L. Sweeney, filed a two-count complaint against
     defendant, the city of Decatur (City), his former employer, and Tim Gleason, the City’s
     manager. In April 2016, plaintiff filed an amended complaint against only the City. In
     response, the City filed a combined motion to dismiss the amended complaint under section
     2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2014)). After a June
     2016 hearing, the Macon County circuit court granted the City’s motion and dismissed with
     prejudice plaintiff’s amended complaint under section 2-615 of the Code (735 ILCS 5/2-615
     (West 2014)).
¶2       Plaintiff appeals, contending the circuit court erred by dismissing his claim (1) brought
     under section 15(b) of the Whistleblower Act (740 ILCS 174/15(b) (West 2014)) because that
     provision (a) only requires disclosure of suspected law violations to a government or law
     enforcement agency and (b) does not require the employee to also refuse to participate in the
     activity and (2) of common-law retaliatory discharge based on the public policy protecting
     (a) whistleblowing and (b) the freedom of speech under the first amendment (U.S. Const.,
     amend. I). We affirm.

¶3                                        I. BACKGROUND
¶4       In the February 2016 complaint, plaintiff asserted a claim of common-law retaliatory
     discharge and a violation of the Whistleblower Act (740 ILCS 174/1 et seq. (West 2014))
     against the City and Gleason. The City and Gleason filed a section 2-619.1 motion to dismiss.
     After an April 2016 hearing, the circuit court granted the motion to dismiss under section
     2-615 and allowed plaintiff to replead.
¶5       Plaintiff’s April 2016 amended complaint again asserted retaliatory discharge and
     Whistleblower Act claims but only against the City. The amended complaint alleged that, in
     January 2015, Ryan McCrady, then the City’s manager, appointed plaintiff as the City’s police
     chief. As the police chief, plaintiff reported directly to the city manager. In March 2015,
     Gleason became the City’s manager. In May 2015, Gleason told plaintiff to provide a police
     car and uniformed officer to drive him to the St. Louis airport to catch a plane for a vacation
     after the City’s State of the City address. Plaintiff reported to Gleason his personal use of
     public resources was improper. Gleason then ordered plaintiff to have the car waiting at the
     City’s civic center to transport him to St. Louis. Plaintiff discussed the situation with the
     deputy chief of police, Jim Getz, who agreed Gleason’s personal use of the officer and police
     car was improper but volunteered to drive Gleason. While on duty, Getz drove Gleason to the
     St. Louis airport in his police vehicle. Plaintiff “involuntarily allowed,” but did not order,
     Gleason’s personal use of police resources. After Gleason returned from vacation, plaintiff
     again told Gleason his use of a police car and driver for his personal use was improper. While
     Gleason stated he understood plaintiff’s objection to his use of the officer and car, their
     relationship was difficult after the conversation. Plaintiff alleged Gleason’s actions violated
     (1) the official misconduct statute (720 ILCS 5/33-3 (West 2014)); (2) the City’s police
     department’s general order No. 11-03, which prohibits the use of departmental vehicles
     outside the City’s limits for personal business; (3) chapter eight of the City’s code, which
     prohibits a City officer or employee from the solicitation or acceptance of gifts prohibited by
     the State Officials and Employees Ethics Act (Ethics Act) (5 ILCS 430/1-1 et seq. (West

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       2014)); (4) the Ethics Act; and (5) article VIII, section 1(a), of the Illinois Constitution of 1970
       (Ill. Const. 1970, art. VIII, § 1(a)), which provides “[p]ublic funds, property or credit shall be
       used only for public purposes.” Plaintiff contends Gleason knew or should have known his
       personal use of the police car and officer was improper because he was then a member of the
       Illinois Law Enforcement Training and Standards Board and a former police lieutenant.
¶6          The complaint further alleged that, in January 2016, Gleason asked plaintiff to make a
       public statement supporting Gleason’s request for a new local motor fuel tax at the City council
       meeting. Plaintiff refused to make the requested public statement. Gleason responded with
       hostility and told plaintiff to leave his office. The complaint alleged matters of tax policy were
       outside the scope of plaintiff’s job duties as police chief.
¶7          On February 2, 2016, Gleason and the City department heads, including plaintiff, met at
       the City’s civic center. During the meeting, Gleason requested input from those present. When
       it came to his turn, plaintiff responded the City had other potential revenue sources and stated
       his opposition to a further tax increase. Gleason became furious and ordered plaintiff to leave
       the meeting. Later that day and the next day, Gleason asked plaintiff the following questions:
       “ ‘Do you know who you work for?’ and ‘Do you want to keep your job as Police Chief?’ ” On
       February 4, 2016, Gleason asked plaintiff to resign. When plaintiff refused to resign, he
       received a written notice of termination.
¶8          As to his retaliatory discharge claim, plaintiff alleges his termination was in retaliation for
       his (1) “disclosure regarding Gleason’s personal use of a Decatur police car and uniformed
       officer”; (2) “refusal to make a public statement at the City Council meeting supporting
       Gleason’s proposed motor fuel tax”; and (3) “February 2, 2016 statement in opposition to
       increasing taxes when he believed other sources of income were available to the City.” He
       alleges his retaliatory termination violated on or more of the following clear mandates of
       public policy:
                “(1) enforcing the State’s criminal code and ethics regulations, (2) the policy of
                furthering investigation of a crime within a police department, (3) preventing the
                private use of public resources, in violation of Article VIII(1)(a) of the Illinois
                Constitution, (4) protecting the First Amendment rights of public employees to speak
                on matters of public concern outside the scope of their job duties, and (5) protecting the
                First Amendment right of a [sic] public employees to not be coerced by their
                government employers into engaging in political speech.”
¶9          Regarding his claim under the Whistleblower Act, plaintiff asserted he disclosed certain
       information to Gleason, who was his sole supervisor and authorized by the City to receive such
       information on behalf of the City. He had a reasonable belief the information disclosed to
       Gleason concerned violations of the Illinois Constitution, as well as state laws, rules, and ethics
       regulations. Moreover, plaintiff contends Gleason, acting for and on behalf of the City in his
       capacity as city manager, retaliated against him by terminating his employment due to
       plaintiff’s disclosure of information to Gleason, which plaintiff reasonably believed disclosed
       a violation of state law.
¶ 10        In May 2016, the City filed a combined motion to dismiss the amended complaint under
       section 2-619.1 of the Code. The section 2-615 part of the motion asserted plaintiff’s
       retaliatory discharge claim should be dismissed for failure to state a clear mandate of public
       policy undermined by the discharge of an at-will employee. The City also argued both claims
       should be dismissed because they failed to allege whistleblowing activity. Moreover, the

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       section 2-615 motion to dismiss contended the allegations regarding the first amendment failed
       to state a cause of action and the element of causation was defeated. The section 2-619 portion
       of the motion asserted (1) the allegations in the amended complaint and Gleason’s affidavit
       establish a cause, other than a retaliatory one, for plaintiff’s termination; and (2) causation fails
       because plaintiff’s termination was remote from the date of the alleged whistleblowing.
¶ 11       On May 26, 2016, the circuit court held a hearing on the City’s motion to dismiss. After
       hearing the parties’ arguments, the court took the matter under advisement. On June 7, 2016,
       the court entered a lengthy docket entry, dismissing with prejudice plaintiff’s amended
       complaint under section 2-615 of the Code. On June 30, 2016, plaintiff filed a timely notice of
       appeal in sufficient compliance with Illinois Supreme Court Rule 303 (eff. Jan. 1, 2015).
       Accordingly, we have jurisdiction of this appeal under Illinois Supreme Court Rule 301 (eff.
       Feb. 1, 1994).

¶ 12                                           II. ANALYSIS
¶ 13       In this case, the circuit court dismissed with prejudice plaintiff’s complaint under section
       2-615 of the Code (735 ILCS 5/2-615 (West 2014)). A section 2-615 motion to dismiss
       challenges the complaint’s legal sufficiency based on defects apparent on its face. Blumenthal
       v. Brewer, 2016 IL 118781, ¶ 19. In ruling on such a motion, “a court must accept as true all
       well-pleaded facts and all reasonable inferences that may be drawn from those facts.”
       Blumenthal, 2016 IL 118781, ¶ 19. The court must determine “whether the allegations of the
       complaint, when construed in the light most favorable to the plaintiff, are sufficient to establish
       a cause of action upon which relief may be granted.” Blumenthal, 2016 IL 118781, ¶ 19. This
       court reviews de novo the grant of a section 2-615 motion to dismiss. Blumenthal, 2016 IL
       118781, ¶ 19. We also review de novo an issue of statutory construction. Murphy-Hylton v.
       Lieberman Management Services, Inc., 2016 IL 120394, ¶ 17.

¶ 14                                   A. Whistleblower Act Claim
¶ 15        Section 15(b) of the Whistleblower Act (740 ILCS 174/15(b) (West 2014)) provides the
       following: “An employer may not retaliate against an employee for disclosing information to a
       government or law enforcement agency, where the employee has reasonable cause to believe
       that the information discloses a violation of a State or federal law, rule, or regulation.” Thus, to
       establish a cause of action under section 15(b), the employee must show (1) an adverse
       employment action by his or her employer, (2) which was in retaliation (3) for the employee’s
       disclosure to a government or law enforcement agency (4) of a suspected violation of an
       Illinois or federal law, rule, or regulation. See Taylor v. Board of Education of the City of
       Chicago, 2014 IL App (1st) 123744, ¶ 52, 10 N.E.3d 383. At issue in this case is whether
       plaintiff made a disclosure to a government or law enforcement agency.
¶ 16        In Brame v. City of North Chicago, 2011 IL App (2d) 100760, ¶ 12, 955 N.E.2d 1269, the
       Second District construed section 15(b) of the Whistleblower Act to only require the employee
       to report the suspected violation to a government or law enforcement agency, and “no
       exceptions apply if a government or law-enforcement agency is also the employer.” The
       Brame court explained that, if the legislature had intended the Whistleblower Act not to apply
       to reports made to an employee’s own government or law enforcement agency employer, it
       would have expressly stated such a limitation. Brame, 2011 IL App (2d) 100760, ¶ 12, 955
       N.E.2d 1269. It further noted, “[i]t is difficult to perceive that the legislature did not intend the

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       [Whistleblower] Act to protect a police officer from retaliation for reporting the illegal conduct
       of fellow officers to his superiors in the department.” Brame, 2011 IL App (2d) 100760, ¶ 12,
       955 N.E.2d 1269. Additionally, the Brame court distinguished the federal cases, which held an
       employee’s reporting within the employee’s own company of an alleged criminal violation did
       not fall under section 15(b) of the Whistleblower Act, because the employers in those cases
       were not government or law enforcement agencies. Brame, 2011 IL App (2d) 100760, ¶ 12,
       955 N.E.2d 1269. The Brame case involved a lieutenant in the police department, who reported
       alleged criminal activity by the police chief to the mayor, who was the chief executive officer
       of the city and had general supervision and control of the police department. Brame, 2011 IL
       App (2d) 100760, ¶¶ 1, 7, 955 N.E.2d 1269.
¶ 17        Even assuming, arguendo, Brame’s holding that the disclosure to an employer in a
       government or law enforcement agency falls under section 15(b) of the Whistleblower Act is
       correct, the facts alleged in plaintiff’s amended complaint are different from those in Brame.
       Here, plaintiff did not report Gleason’s alleged violation of Illinois law to Gleason’s superior.
       According to plaintiff’s amended complaint, when Gleason requested the use of a police car
       and officer to drive him to the St. Louis airport, plaintiff “reported to Gleason that this personal
       use of public resources would be improper.” After Gleason used the police car and officer,
       plaintiff “again disclosed to Gleason that his use of a police car and driver for his personal
       purposes was improper.” Plaintiff further alleges Gleason, as a member of the Illinois Law
       Enforcement Training and Standards Board and a former police lieutenant, knew or should
       have known his personal use of police car and officer was improper. Thus, we address whether
       telling the alleged government violator his acts are improper constitutes “disclosing
       information” under section 15(b) of the Whistleblower Act.
¶ 18        When presented with an issue of statutory construction, the reviewing court’s primary
       objective is to ascertain and give effect to the legislature’s intent. Murphy-Hylton, 2016 IL
       120394, ¶ 25. The statutory language, given its plain and ordinary meaning, best indicates the
       legislature’s intent. Murphy-Hylton, 2016 IL 120394, ¶ 25. Moreover, we must evaluate the
       statute as a whole, “construing words and phrases in context to other relevant statutory
       provisions and not in isolation.” Murphy-Hylton, 2016 IL 120394, ¶ 25. In doing so, we should
       not render any language superfluous. Murphy-Hylton, 2016 IL 120394, ¶ 25. “Additionally,
       the court may consider the reason for the law, the problems sought to be remedied, the
       purposes to be achieved, and the consequences of construing the statute one way or another.”
       Murphy-Hylton, 2016 IL 120394, ¶ 25.
¶ 19        The Merriam-Webster dictionary defines the verb “disclose” as “to expose to view” or “to
       make known or public.” Merriam-Webster Online Dictionary, http://www.merriam-
       webster.com/dictionary/disclose (last visited Feb. 3, 2017). Thus, the employee must have
       exposed to view or made known information. Informing the violator his or her actions are
       improper does not expose to view or make known the alleged improper activity. That
       conclusion is consistent with the First District’s explanation of the Whistleblower Act, which
       states:
               “The [Whistleblower] Act protects employees who call attention in one of two specific
               ways to illegal activities carried out by their employer. It protects employees who
               either contact a government agency to report the activity or refuse to participate in that
               activity. An employee who does not perform either of the specifically enumerated
               actions under the [Whistleblower] Act cannot qualify for its protections.” (Emphases

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               added.) Sardiga v. Northern Trust Co., 409 Ill. App. 3d 56, 62, 948 N.E.2d 652, 657
               (2011).
       Moreover, “the purpose of the Whistleblower Act is to protect statutorily defined employees
       who report violations of state or federal laws, rules, or regulations ‘because the reported
       wrongful conduct or unsafe condition affected the health, safety[,] or welfare of Illinois
       residents as a whole.’ ” (Emphases added.) Larsen v. Provena Hospitals, 2015 IL App (4th)
       140255, ¶ 47, 27 N.E.3d 1033 (quoting Sutherland v. Norfolk Southern Ry. Co., 356 Ill. App.
       3d 620, 627, 826 N.E.2d 1021, 1027 (2005)). Simply having a conversation with the
       wrongdoer about the impropriety of his or her actions is not exposing the alleged improper
       activity, making it known, or reporting the wrongful conduct. The fact the violator is the
       employee’s boss does not alter the analysis, as the information is still not disclosed. We hold
       section 15(b) of the Whistleblower Act does not protect an employee who simply notes the
       impropriety of conduct with the alleged wrongdoer, as that does not constitute the disclosure of
       information under the Whistleblower Act.
¶ 20       Since plaintiff alleges the disclosure of information was made to Gleason, the violator, we
       agree with the circuit court plaintiff failed to state a cause of action under the Whistleblower
       Act. Given our conclusion, we do not address the parties’ other arguments related to the
       Whistleblower Act.

¶ 21                                        B. Retaliatory Discharge
¶ 22        Plaintiff also challenges the circuit court’s dismissal of his common-law retaliatory
       discharge claim. In Illinois, a longstanding rule exists that an at-will employee, such as
       plaintiff, may be discharged by his employer at any time and for any reason. Michael v.
       Precision Alliance Group, LLC, 2014 IL 117376, ¶ 28, 21 N.E.3d 1183. In Kelsay v. Motorola,
       Inc., 74 Ill. 2d 172, 181-82, 384 N.E.2d 353, 357 (1978), our supreme court recognized the tort
       of retaliatory discharge as a narrow exception to the aforementioned rule. “To sustain a cause
       of action for retaliatory discharge, an employee must prove: (1) the employer discharged the
       employee, (2) the discharge was in retaliation for the employee’s activities (causation), and
       (3) the discharge violates a clear mandate of public policy.” Michael, 2014 IL 117376, ¶ 31, 21
       N.E.3d 1183. On appeal, plaintiff asserts his discharge violated the public policy protecting
       whistleblowing and freedom of speech. The City asserts plaintiff did not raise an issue on the
       dismissal of retaliatory discharge claim arising from whistleblower activity. We disagree, as
       plaintiff asserts in his brief that the circuit court ignored his whistleblowing allegations raised
       in his retaliatory discharge claim.
¶ 23        While a precise definition of what constitutes a clearly mandated public policy does not
       exist, “a review of Illinois case law reveals that retaliatory discharge actions have been allowed
       in two settings: where an employee is discharged for filing, or in anticipation of filing, a claim
       under the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 1992)); or where an
       employee is discharged in retaliation for the reporting of illegal or improper conduct,
       otherwise known as ‘whistleblowing.’ ” Michael, 2014 IL 117376, ¶ 30, 21 N.E.3d 1183. In
       those situations, “an employer could effectively frustrate a significant public policy by using
       its power of dismissal in a coercive manner.” Michael, 2014 IL 117376, ¶ 30, 21 N.E.3d 1183.
       Thus, the situations necessitate a cause of action for retaliatory discharge to vindicate the
       public policy underlying the employee’s activity and deter the employer’s conduct that is
       inconsistent with that policy. Michael, 2014 IL 117376, ¶ 30, 21 N.E.3d 1183. Additionally,

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       our supreme court has stated, “public policy concerns what is right and just and what affects
       the citizens of the State collectively. It is to be found in the State’s constitution and statutes
       and, when they are silent, in its judicial decisions.” Palmateer v. International Harvester Co.,
       85 Ill. 2d 124, 130, 421 N.E.2d 876, 878 (1981).

¶ 24                                          1. Whistleblowing
¶ 25       The allegations in plaintiff’s amended complaint regarding whistleblowing are the same
       ones he makes in his claim under the Whistleblower Act. As with his Whistleblower Act claim,
       plaintiff does not allege facts showing he reported or disclosed information about Gleason’s
       alleged violation of Illinois law. In other words, plaintiff did not blow the whistle on Gleason.
       The alleged facts in plaintiff’s amended complaint simply show plaintiff twice told Gleason his
       actions were improper. Thus, like with his claim under the Whistleblower Act, plaintiff has
       failed to plead facts supporting an instance of whistleblowing and cannot plead a violation of a
       clear mandate of public policy based on whistleblowing.

¶ 26                                        2. Freedom of Speech
¶ 27        Moreover, on appeal, plaintiff alleges the circuit court erred by dismissing his retaliatory
       discharge claim based only on his statements in opposition to increasing taxes at a February 2,
       2016, staff meeting. As stated, our supreme court has only recognized retaliatory discharge
       causes of action in the areas of Workers’ Compensation claims and whistleblowing. See
       Michael, 2014 IL 117376, ¶ 30, 21 N.E.3d 1183. Plaintiff asserts Illinois law has also
       recognized a retaliatory discharge claim when an employee is discharged in retaliation for first
       amendment speech. However, the case cited by plaintiff recognized “a public policy favoring
       thorough investigation of police and fire department affairs and citizen compliance with such
       investigations.” Daniel v. Village of Hoffman Estates, 165 Ill. App. 3d 772, 775, 520 N.E.2d
       754, 756 (1987). There, the employee claimed she was fired for complying with an order from
       the board of fire and police commissioners to produce any documents relevant to a dismissal
       proceeding. Daniel, 165 Ill. App. 3d at 775, 520 N.E.2d at 756. The case only addressed the
       first amendment right to free speech in the context of a federal claim and not the retaliatory
       discharge claim.
¶ 28        The Illinois Supreme Court has addressed whether the first amendment establishes a
       clearly mandated public policy in the context of a private employer. In Barr v. Kelso-Burnett
       Co., 106 Ill. 2d 520, 523, 478 N.E.2d 1354, 1355 (1985), the employees sought to raise a claim
       of retaliatory discharge against their private employer based on, inter alia, their first
       amendment right to freedom of speech. Our supreme court concluded the employees’
       discharge did not violate any clear mandate of public policy. Barr, 106 Ill. 2d at 526, 478
       N.E.2d at 1356. In reaching that conclusion, the court found “the constitutional guarantee of
       free speech is only a guarantee against abridgement by the government, Federal or State; the
       Constitution does not provide protection or redress against private individuals or corporations
       which seek to abridge the free expression of others.” Barr, 106 Ill. 2d at 526, 478 N.E.2d at
       1356. It also noted neither the Illinois Constitution nor the Illinois Human Rights Act (Ill. Rev.
       Stat. 1983, ch. 68, ¶ 1-10 et seq.) contain provisions mandating “the inclusion of the right of
       free speech into those rights which are applicable to the employer-employee relationship.”
       Barr, 106 Ill. 2d at 528, 478 N.E.2d at 1357.


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¶ 29       In this case, plaintiff’s employer is a municipality, not a private employer. No Illinois case
       law has addressed whether the first amendment creates a public policy protecting speech made
       by public employees. The United States Supreme Court has recognized “the First Amendment
       protects a public employee’s right, in certain circumstances, to speak as a citizen addressing
       matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). In Garcetti, 547
       U.S. at 418, the Supreme Court established a two-step inquiry into whether a public
       employee’s speech is entitled to first amendment protection. The two-step inquiry was
       reaffirmed by the Supreme Court in its most recent case on the issue, Lane v. Franks, 573 U.S.
       ___, 134 S. Ct. 2369 (2014). The two-step inquiry is as follows:
               “ ‘The first requires determining whether the employee spoke as a citizen on a matter of
               public concern. If the answer is no, the employee has no First Amendment cause of
               action based on his or her employer’s reaction to the speech. If the answer is yes, then
               the possibility of a First Amendment claim arises. The question becomes whether the
               relevant government entity had an adequate justification for treating the employee
               differently from any other member of the general public.’ ” Lane, 573 U.S. at ___, 134
               S. Ct. at 2378 (quoting Garcetti, 547 U.S. at 418).
¶ 30       In his brief, plaintiff fails to set forth the two-step inquiry and explain how the facts alleged
       in his amended complaint satisfy that inquiry. Instead, he focuses on demonstrating his speech
       was on a matter of public concern. However, the main focus of the first step is distinguishing
       between employee speech and citizen speech. See Lane, 573 U.S. at ___, 134 S. Ct. at 2378. A
       matter of public concern is only part of the first inquiry and does not alone establish protected
       speech. Plaintiff fails to adequately argue and plead facts showing he was speaking as a citizen
       at Gleason’s department head meeting. Accordingly, we find plaintiff has failed to show the
       facts in his amended complaint establish a clearly mandated public policy protecting his
       speech at the February 2016 meeting. Thus, the circuit court’s dismissal with prejudice of his
       retaliatory discharge claim based on the first amendment was also proper.

¶ 31                                       III. CONCLUSION
¶ 32       For the reasons stated, we affirm the Macon County circuit court’s judgment.

¶ 33       Affirmed.




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