ILLINOIS POLLUTION CONTROL BOARD
    January
    26,
    1984
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    )
    PCB 76—84
    SANTA FE PARK ENTERPPISES,
    INC.,
    Respondent.
    ORDER OF THE BOARD
    (By
    J.
    Anderson):
    On January
    4,
    1984,
    Santa
    Fe moved the Board to “appoint a
    Special Attorney General to represent the interests of the State
    of Illinois in upholding the constitutionality of PA 82—654 on
    appeal
    from an order of the Board,. ,in the Illinois Appellate
    Court,
    First District,
    under authority of 14
    Ill.
    Ann.
    Stat.
    6 (sic)”
    (Motion.
    p.
    1),
    The Attorney General
    filed a response
    in opposition on January 26,
    1984, and included a request for
    attorney’s fees for preparation of said response.
    In support of its motion,
    Santa Fe cites Sommer v.
    Goetze,
    102 Ill.
    App.3d 117 (1981),
    interpreting Ill.
    Rev.
    Stat.
    ch.
    14,
    par.
    6 as authorizing
    an administrative agency to appoint a special
    attorney general to represent one party in a proceeding before it.
    In that case,
    a Tazewell County deputy sheriff “allegedly
    exchanged
    heated words...in an East Peoria tavern” with an assistant states’s
    attorney.
    The Tazewell County sheriff brought a complaint against
    his deputy before the Tazewell County Sheriff’s Merit Commission,
    which resulted in the deputy’s dismissal.
    In that disciplinary
    proceeding,
    the case was prosecuted on behalf of the sheriff by the
    assistant state’s attorney who had been involved in the alteration
    with the deputy.
    Ill.
    Rev,
    Stat,
    ch,
    14,
    par.
    6 provides
    in pertinent part
    that
    “Whenever the attorney general or state’s attorney...is
    interested in any cause or proceeding,
    civil or criminal,
    which
    it
    is or may be his duty to prosecute or defend,
    the court in which said cause or proceeding is pending
    may appoint some competent attorney to prosecute or
    defend such cause or proceeding...”
    56-55
    The court
    not.ed that appointment of a special
    State’s Attorney
    is not mandatory, hut that “,~here, where the assistant State’s
    Attorney was the complainant and key eyewitness,
    we hold that it
    was an abuse of discretion to refuse appointment of a disinterested
    attorney to prosecute the charges brought against
    the
    deputy”,
    citing ~9
    _v.Moretti,
    349
    Ill.
    App.
    67,
    109 N.E.
    2d 915
    (1952).
    Santa Fees reliance on the Sommer case is misplaced, given
    the circumstances of this action,
    The Board notes that on
    January 12,
    1984 Santa
    Fe
    applied
    for
    leave to appeal the Board’s
    September 23,
    1983 Order
    in
    the Appellate Court, First District in
    Santa Fe Park En~prises, Inc V. 1~e~pleand Illinois Pollution
    Control Board,No,
    84-426.
    Even assuming
    that the attorney general’s
    advocacy of the unconsititutionality of P.A,
    82—654 is the type
    of “interest”
    to be avoided by appointment of a special attorney
    general,
    the statute
    clearly provides that
    only the tribunal hear-
    ing the action may
    make such an appointment,
    Santa Fe’s motion
    is denied as being beyond ~he scope
    of the
    Board~sauthority and
    jurisdiction.
    Assuming the Board has authority to entertain
    it, the Attorney
    General’s request for attorney~sfees is denied,
    While Santa Fe’s
    Motion may have been misguided and misdirected, the Board cannot
    find that its filing was
    “in
    bad faith”,
    as alleged in the Attorney
    General’s Motion.
    IT IS SO
    ORDERED.
    I, Christan
    L,
    Moffett, Clerk of the Illinois Pollution
    Control Board, hereby certify that the above Order
    was adopted
    on the
    ~~~day
    of
    ~
    1984 by a
    vote of
    _____
    ____
    tan L,
    Moffet, Clerk
    Illinois Pollution Control
    Board
    56-56

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