State's Attorney blinks on Koziol

The following press release was issued by the McHenry County State's Attorney

PRESS RELEASE

December 18, 2012
FOR IMMEDIATE RELEASE:

Deputy Sheriff Sergeant John Koziol brought forth allegations that Undersheriff Andrew Zinke committed a crime when he violated multiple General Orders of the McHenry County Sheriff.  The allegations were presented in a Petition, with a supporting sworn Affidavit, to appoint a Special Prosecutor.  It was filed in the McHenry County Circuit Court by and through his attorney, Jonathan D. Nye, on October 30, 2012, alleging that the violations of multiple general orders constituted the commission of Official Misconduct, a Class 3 Felony (720 ILCS 5/33-3) (b) (c) which carries a term in the Department of Corrections from two to five years and a maximum fine of $25,000.  Subsequently, on November 2, 2012, the Petition was heard before Judge Thomas Meyer and denied.  We immediately initiated an investigation and requested the Office of the State’s Attorney Appellate Prosecutor to make themselves available for assistance and/or consultation.

After an investigation and review, it is the conclusion of the State’s Attorney’s Office that even if all of the facts as set forth in Sergeant Koziol’s Petition and Affidavit were true (that is, the purported leaking of the DEA investigation by Undersheriff Zinke), such conduct is not illegal under Illinois law.  While some may consider the dissemination of what would appear to be highly confidential and sensitive information an alarming and problematic matter, such conduct does not violate the Official Misconduct Statute.  Accordingly, the question of whether the allegations were true and whether the information was disseminated is a question for Sheriff Nygren to investigate and make a determination.  In short, whether or not the Undersheriff violated the general orders of the Sheriff is a question for the Sheriff to resolve.

The Supreme Court of Illinois, in People v. Williams, 239 Ill.2d 119, 940 N.E.2d 50 (2010) made it clear that a police department’s rules and regulations (i.e. Sheriff’s General Orders) are not laws and therefore any violation of such rules do not and cannot support a charge of Official Misconduct.  In Williams, a police dispatcher was accused of leaking information to another person about a drug investigation.  The Supreme Court stated:  “[ ] we emphasize that our holding should not be interpreted as an approval of defendant’s conduct.  The conduct here is certainly troublesome and unjustifiable.  We hold that defendant did not commit the offense of official misconduct only because the confidentiality rules at issue here cannot be construed as ‘laws’ under the statute.”  Williams, 239 Ill.2d at 134.