                                         2016 IL App (1st) 151795
                                                                                 THIRD DIVISION
                                                                                 July 20, 2016

     No. 1-15-1795


     FREDERICK C. VEAZEY,                                 )              Appeal from the
                                                          )              Circuit Court of
            Plaintiff-Appellant,                          )              Cook County, Illinois.
                                                          )
     v.                                                   )              No. 14 CH 12484
                                                          )
     RICH TOWNSHIP HIGH SCHOOL                            )              The Honorable
     DISTRICT 227; BRIDGET IMOUKHUEDE;                    )              Mary Lane Mikva,
     and EMMANUEL IMOUKHUEDE,                             )              Judge Presiding.
                                                          )

            Defendants-Appellees.                         )



            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 Rich Township High School District 227 Board of Education (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
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     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
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     her. 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.



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¶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

       proceeding, he lacked standing to bring his claims. The trial court granted the motions to dismiss

       with prejudice “for reasons stated in open court.”
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¶ 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
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       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.

              *** 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
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       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.
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       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

       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.


                 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.
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¶ 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 for 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,
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       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 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
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       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
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       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 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&infobase=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.)
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       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 employee and


               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).
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        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
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       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 to

       grant Veazey leave to amend his complaint.

¶ 38          Reversed and remanded with directions.




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