Niebur affidavit of facts in Cicero case
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July 8, 1998 STATEMENT OF SUPERINTENDENT DAVID NIEBUR I accepted the position of police superintendent for the Town of Cicero because I wanted to make a difference. It was well known that the police department was in turmoil and 15 to 20 years behind the times in terms of management and operations. I took the position with the intention of reforming the police department and making the residents of Cicero proud of their police officers. I thought that was the reason I was hired! During the four months I was police superintendent, I did initiate many positive changes in the department. The Town president publicly boasted about my job performance and stated that I had turned the morale of the department around in a short time. I was doing the job for which I was hired. It was not until I began investigating Ram towing and the irregularities in the Town’s towing practices that I was no longer considered a reformer. I was suspended by the Town president from my position as police superintendent in retribution for my cooperation with the FBI and the state police in their investigations of the Town’s towing practices and alleged corruption. We are filing this lawsuit today because we are being wrongfully punished for exercising our rights under the law. However, this lawsuit today is not just about two police executives wrongfully punished for exposing corruption and wrongdoing within government. This action is needed to let all police officers nationwide know that they cannot be fired and maliciously slandered because they did what was right. It will also provide assurance to police executives to do what is necessary in their towns, cities, and counties, even when their positions are threatened. For me, the decision to report apparent wrongdoing was the only choice available and one made without hesitation. It is my sincere desire for all law enforcement officers facing a similar situation to be confident to make the same decision. Now I will turn this over to my attorneys for further comments and questions. STATEMENT OF MICHAEL D. BERSANI This morning on behalf of Cicero Superintendent of Police David Niebur and Deputy Superintendent of Police Phillip Bue we filed a multi-count federal civil rights lawsuit against the Town of Cicero, Town President Betty Loren-Maltese, Town Counsel Merrick Scott Rayle, the Cicero Police Board, and the individual police commissioners, including Clarence Gross. The crux of our lawsuit is that the Defendants violated Superintendent Niebur’s and Deputy Superintendent Bue’s civil rights by wrongfully suspending and seeking their dismissals. We believe additionally that the retaliatory suspensions and dismissal charges are the product of a conspiracy among the Defendants to deprive Niebur and Bue of their civil rights and to cover up improprieties and wrongdoing involving the Town’s towing practices. In this lawsuit we are seeking money damages, declaratory relief, and injunctive relief. We have filed motion for a preliminary injunction which asks the federal judge to enjoin the Town, Loren-Maltese, and the Cicero Police Board from firing Niebur and Bue until the merits of the case can be decided in federal court. We believe that the proceedings before the Cicero Police Board are a sham and that the only way we can defend the Town’s charges and obtain vindication for these civil rights violations is before a fair and impartial federal judge and jury. Contact: Michael D. Bersani IN THE UNITED STATES DISTRICT COURT )
COMPLAINT NOW COME the Plaintiffs, DAVID R. NIEBUR and PHILLIP T. BUE, by and through their attorneys, MICHAEL D. BERSANI and MICHAEL W. CONDON of HERVAS, SOTOS,CONDON & BERSANI, P.C., and complain of the Defendants, TOWN OF CICERO, BETTYLOREN-MALTESE, individually and in her official capacity as the President of the Town of Cicero, MERRICK SCOTT RAYLE, individually and in his official capacity as Town Counsel, THE BOARD OF FIRE, POLICE AND PUBLIC SAFETY COMMISSIONERS OF THETOWN OF CICERO, CLARENCE GROSS, individually and in his official capacity as Chairman of the Cicero Board of Fire, Police and Public Safety Commissioners, JOYCE BARLOGA, RICHARD CARAVETTA, ANTHONY MARZANO, and DAISY CIUFFO, in their individual and official capacities as members of the Cicero Board of Fire, Police and Public Safety Commissioners as follows: NATURE OF THE ACTION 1. This is a civil action for monetary damages and declaratory and injunctive relief. Defendants have deprived Plaintiffs of their rights under the First and Fourteenth Amendments to the United States Constitution by suspending Plaintiffs from their employment without due process and in retaliation for their exercise of free speech. Plaintiffs bring this action under 42 U.S.C. �� 1983 and 1988 and the First and Fourteenth Amendments to the United States Constitution. Plaintiffs also bring this action under the laws of the State of Illinois. JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to 28 U.S.C. �� 1331 and 1343(a), as well as supplementary jurisdiction pursuant to 28 U.S.C. � 1367(a). 3. Declaratory and injunctive relief is authorized pursuant to 28 U.S.C. �� 2201 and 2202 and Rules 57 and 65 of the Federal Rules of Civil Procedure. 4. Venue is proper in this judicial district pursuant to 28 U.S.C. � 1391, because the Defendants reside in this judicial district and because the acts giving rise to the claims alleged in this Complaint occurred within this district. THE PARTIES 5. Plaintiff David R. Niebur (“Plaintiff” or’ “Niebur”) is the Superintendent of Police for the Town of Cicero. Niebur has over thirty years of experience as a law enforcement official. 2 Prior to his employment in Cicero, Niebur served as the Chief of Police in Collinsville, Illinois and Joplin, Missouri. Niebur earned a Master degree in Business Administration from the University of St. Thomas, St. Paul, Minnesota, and a Master degree in Science of Management (with an emphasis on public management) from Lesley College, Boston, Massachusetts. Niebur is also a graduate of the FBI Academy. 6. Plaintiff Phillip T. Bue (“Plaintiff” or “Bue”) is the Deputy Superintendent of Police for the Town of Cicero. Bue has over twenty-five years of experience as a law enforcement official.. Prior to his employment in Cicero, Bue served as the Chief of Police in Hanover Park, Illinois and Sedalia, Missouri, as well as the Undersheriff/Chief of Department Operations, Pueblo County Police Department, Colorado. Bue earned a Master of Science degree in Management from National-Lewis University, Evanston, Illinois, and a Bachelor of Arts degree in Criminal Social/Justice and Law Enforcement Administration from Lewis University, Romeoville, Illinois. 7. The Defendant Town of Cicero is a municipal corporation organized under the laws of the State of Illinois. 8. Defendant Betty Loren-Maltese (“Loran-Maltese”) is the President of the Town of Cicero. She is a final policymaker and decisionmaker for the Town of Cicero with regard to all acts and decisions alleged in this Complaint. Loren-Maltese is sued in her individual and official capacities. Loren-Maltese is also the Committeeman for the Town Republican Organization of Cicero. As Committeeman, Loren-Maltese controls all operations of the Organization. 9. Defendant Merrick Scott Rayle (“Rayle”) is Town counsel. Rayle is sued in his individual and official capacity. 3 10. Defendant Board of Fire, Police and Public Safety Commissioners (“Police Board”) is a statutorily authorized administrative body charged with the supervision of discipline of Cicero police officers, the Superintendent and Deputy Superintendent of Police. The Police Board derives its power and authority from Division 2.1 of Article 10 of the Illinois Municipal Code, 65 Ill. Comp. Stat. 5/10-2.1 et seq. (West 1993), and Sections 2-94 to 2-99 of the Cicero Code of Ordinances. All members of the Police Board were appointed by Loren- Maltese. Loren-Maltese controls all actions and decisions of the Police Board. 11. Defendant Clarence Gross (“Gross”) is the Chairman of the Police Board. He is a political supporter of Loren-Maltese and a member of the Town Republican Organization of Cicero. Gross is also employed by the Town as its Director of Internal Services, and he is the Town’s Deputy Liquor Commissioner. Gross was appointed and/or hired to all offices and positions by Loren-Maltese. Gross is sued in his individual and official capacities. 12. Defendant Richard Caravetta (“Caravetta”) is a member of the Police Board. Caravetta was appointed to the Police Board by Loren-Maltese. Upon information and belief, Caravetta is a political supporter of Loren-Maltese. Caravetta is sued in his individual and official capacities. 13. Defendant Joyce Barloga (“Barloga”) is a member of the Police Board and a political supporter of Loren-Maltese. Barloga was appointed to the Police Board by Maltese. Barloga is sued in her individual and official capacities. 14. Defendant Anthony Marzano (“Marzano”) is a member of the Police Board and a political supporter of Loren-Maltese. Marzano was appointed to the Police Board by Loren-Maltese. Marzano is also the father of Pat Deganutti, who is employed by the Town of Cicero 4 and Loren-Maltese as Loren-Maltese’s executive assistant. Deganutti is also a member of the Town Republican Organization of Cicero. 15. Defendant Daisy Ciuffo (“Ciuffo”) (a/k/a Daisy Figueroa) is a member of the Police Board. She is a political supporter of Loren-Maltese and a member of the Town Republican Organization of Cicero. Ciuffo was appointed to the Police Board by Loren-Maltese. Ciuffo is sued in her individual and official capacities. 16. At all times material to this Complaint, Defendants acted under color of the statutes, customs, ordinances, and usage of the State of Illinois and the Town of Cicero. FACTUAL BACKGROUND NIEBUR AND BUE HIRED BY LOREN-MALTESE TO 17. On or about December 9, 1997, after a year-long national search, the Town hired Niebur as its Superintendent of Police. The Town was assisted in its search by the Illinois Chiefs of Police, who had interviewed and assessed seven candidates and recommended Niebur after rating him qualified for the position. 18. In hiring Niebur, Loren-Maltese labeled him as a “reformer.” She stated publicly that “[h]is leadership will make a big difference in the Police Department. He demands professionalism and honesty. [Hiring Niebur] should make the residents feel safer.” 19. In hiring Niebur, Loren-Maltese stated publicly that reforming the police department would be a challenge. 20. In accepting the position, Niebur promised a “nationally recognized department that interacts with the community” and “a more diverse force reflective of community and one 5 that is visible and proactive.” Niebur stated that Cicero residents would not recognize their department in one year. 21 . Niebur and the Town entered into a written Employment Agreement effective January 1, 1998, and ending on December 31, 2001. Pursuant to the agreement, Niebur was given the principal charge of planning, organizing, directing, staffing, and coordinating police operations and, in general, overseeing the operational performance of the Police Department including, without limitation, enforcing its rules and regulations. The Town agreed to pay Niebur $95,000 per year, plus benefits. Niebur’s Agreement is attached hereto as Exhibit A and incorporated herein by reference. 22. On December 29, 1997, Loren-Maltese formally appointed Niebur as Superintendent of Police, and the appointment was unanimously confirmed by the Town Board of Trustees that same night. 23. On or about March 1, 1998, the Town and Loren-Maltese hired Bue as its Deputy Superintendent of Police. Like Niebur, Bue was hired as an “outsider” to reform the Cicero Police Department. 24. Bue and the Town entered into a written Employment Agreement effective March 10, 1998, and ending on March 1, 2001. Pursuant to the agreement, Bue was given the charge of assisting in the planning, organizing, directing, staffing, and coordinating of police operations and, in general, overseeing the operational performance of the Police Department, including, without limitation, enforcing its rules and regulations. The Town agreed to pay Bue $86,000 per year, plus benefits. Bue’s Agreement is attached hereto as Exhibit B and incorporated herein by reference. 6 25. In March 1998 Bue was formally appointed by Loren-Maltese, and the appointment was unanimously confirmed by the Town Board of Trustees. NIEBUR AND BUE INSTITUTE POSITIVE AND 26. Prior to December 1, 1997, the Cicero Police Department was 15 to 20 years behind the times in terms of management, operations, training, professionalism, and integrity. According to Loren-Maltese, the “department [was] in turmoil.” 27. During their employment with the Town, and consistent with the purpose for which they were hired, Niebur and Bue initiated positive and successful changes in the Cicero Police Department including, but not limited to, the following:
LOREN-MALTESE PUBLICLY PRAISED 28. During Niebur’s and Bue’s tenure with Cicero, Loren-Maltese kept abreast of and was aware of all daily ongoings and operations within and pertaining to the Cicero Police Department. 29. Within days of Niebur starting his new job, Loren-Maltese stated that he had done more in two days than anyone had done in five years. Consequently, Loren-Maltese put Niebur on the Town payroll starting in early December 1997, even though his contract did not begin until January 1, 1998. 9 30. In the January 9, 1998, edition of the Cicero Observer, which was published and distributed to Cicero residents by Loren-Maltese’s political organization, Loren-Maltese wrote a column entitled “1997 Had High Points As Well As Low.” In that column, Loren-Maltese boasted about “[t]he appointment of David Niebur as new police chief” and “[r]evamping our police department hierarchy.” 31. In the February 8, 1998, edition of the Cicero Observer, Loren-Maltese gave Niebur an “A” for his job performance, stating that he had “turned the morale of the department around and ha[d] already made significant changes in the department in a short time.” Loren Maltese also stated that “[t]here is a different atmosphere in the department. There is a new sense of discipline, of pride in most of the men.” 32. In the February/March 1998 edition of The Cicero Town News, a news letter published by the Town for the residents of Cicero, the Town boasted that Niebur had installed a sense of pride in the Cicero Police Department, which had been missing from the Department Loren-Maltese was quoted in the newsletter as stating that:
33. Commenting on Niebur’s and Bue’s roles as “reformers,” Loren-Maltese also stated publicly that “[t]hese two men are going to make history.” 10 34. On March 24, 1998, Loren-Maltese chaired a dinner celebrating Niebur’s job performance. Loren-Maltese “sang Niebur’s and Bue’s praises” to a group of prominent Cicero businessmen and women. 35. At a Town Board meeting on March 24, 1998, the Town Board of Trustees gave Niebur a special commendatory Resolution for his participation in diverting a rally in Cicero by the Ku Klux Klan. The Resolution noted Niebur’s “accomplishment and dedication since [his] earliest tenure in the Town.” The Resolution called Niebur a “difference-maker” and “a rare breed in the 1990s.” 36. In the April 1998 edition of The Cicero Town News, the Town praised the efforts | of Niebur, Bue, and others in diverting the KKK rally. The Town reported that Niebur and others saved the Town from the rally and in the process saved lives, injuries, and taxpayer money. 37. In the April 1998 edition of The Cicero Town News, the Town reported that: There is a new spirit in the Cicero Police Department. New leadership. Specifically the department’s head, David Niebur, has given the rank and file a sense of pride and dignity in their work. 38. The April 1998 edition of The Cicero Town News was mailed to residents on April 23, 1998. 39. On April 23, 1998, The Interfaith Leadership Project of Cicero, Berwyn and Stickney, which is a not-for-profit community based organization comprised of churches, businesses and schools, praised Niebur for his “commitment to work with the community on public safety issues” and applauded Niebur for his “recognition of problems and intent to change police practices in Cicero’s large Latino community.” 11 40. Prior to April 24, 1998, neither Loren-Maltese nor any member of the Town Board of Trustees expressed any dissatisfaction or negative evaluation of Niebur’s or Bue’s job performances. 41. Niebur and Bue performed their duties in a satisfactory, competent, and professional mariner. Prior to April 24, 1998, neither man was accused of any job derelictions or any acts of misconduct, and neither man had received any disciplinary action of any kind in connection with their employment. NIEBUR AND BUE SUSPENDED BY LOREN-MALTESE 42. In 1996 the Federal Bureau of Investigation (“FBI”) and the United States Attorney’s Office began investigating Town officials for official misconduct and corruption. Loren-Maltese is reported to be a target of that investigation. 43. Beginning in early December of 1997, Niebur was approached on multiple occasions by FBI agents who asked him to cooperate with various aspects of their investigation. Niebur, and subsequently Bue, agreed to assist the FBI. 44. In February 1998 Cicero residents complained to Niebur that their cars were being towed for no apparent reason and that they were forced to pay hundreds of dollars to reclaim towed vehicles. As a result, Niebur and subsequently Bue began investigating the Town’s towing practices. 45. Niebur asked the City Clerk for a copy of the Town’s contract with Ram Recovery, Inc. (“Ram”), which has been the Town’s exclusive towing operator since April of1997. The Clerk told Niebur that she did not have a copy of the contract, and that he would have 12 to see Sam Jelic, who is the Town’s Superintendent of Public Works. Jelic is a member of the Town Republican Organization of Cicero. 46. Niebur subsequently met with Jelic, who refused to turn over a copy of the contract to Niebur. Jelic told Niebur to see Loren-Maltese about the contract. 47. Niebur and Bue learned that Jelic’s daughter worked for Ram.48. Several Town employees told Niebur and Bue that Jelic and Gross had financial interests in Ram. 49. Niebur and Bue learned that Ram had been awarded the towing contract by the Town Board of Trustees under suspicious circumstances in April of 1997. 50. In the course of their investigation, Niebur and Bue discovered that the Cicero Police Department had kept no records during Ram’s tenure documenting how vehicles towed by Ram were being reclaimed by their owners, sold at auctions, or otherwise disposed of Illinois law required that the Cicero Police Department maintain reports of such transactions for a period of one year. 625 Ill. Comp. Stat. 5/4-210 (West 1993). 51. Niebur met with Loren-Maltese and informed her that the Police Department was required to keep records documenting the disposition of vehicles towed by Ram. Loren-Maltese stonewalled Niebur, promising but never producing the records. 52. Niebur and Bue approached Jelic about the records on multiple occasions. Jelic stonewalled Niebur and Bue, promising but never delivering the records. 53. Niebur and Bue repeatedly asked Ram’s owner, Alan Imyak, for the transaction records, which Imyak also promised but never produced. 13 54. Niebur and Bue were “tipped off” by FBI agents that someone at the Cicero Police Department was deleting stolen cars from the Illinois State Police computer registry of stolen vehicles. The agents told Niebur and Bue that they suspected that Ram was selling stolen cars. 55. In late March 1998 Bue learned that, starting April 1, 1998, Ram would start towing 300 cars per night per the Town’s street sweeping ordinance. 56. Concerned about the inordinate number of cars to be towed in a single night, Bue attempted to institute a new procedure whereby no vehicles would be towed for the first two weeks of April and that, instead, residents would be given a ticket and an informational flyer about the street sweeping ordinance. Bue’s policy also authorized his officers to alert residents before their cars were towed. 57. Bue was blocked in his attempt to institute the new procedure by Loren-Maltese and the Town Board of Trustees who, in direct response to Bue’s actions, unanimously passed a resolution on March 24, 1998, stating that there would be no exceptions to the April 1 towing under the street sweeping ordinance. Bue was handed a copy of the resolution by Jelic, who told Bue without solicitation and quite defensively that he was not making money for Ram. 58. Following a car jacking incident, a Cicero police of ricer informed Niebur that the victim of the car jacking had made a request to retrieve his vehicle from Ram’s impoundment lot without having to pay the towing fee. The officer told Niebur that only three people could approve such a request: Loren-Maltese, Pat Deganutti, and Sam Jelic. 59. On April 21, 1998, Bue caught Imyak red-handed rummaging through tow sheets in the Records Bureau of the Cicero Police Department. These tow sheets documented vehicles 14 towed by Ram. Upon being discovered by Bue, Imyak threw down a stack of records and ran directly to Loren-Maltese’s office. 60. Within 15 minutes, Bue was called up to Loren-Maltese’s office and was “reprimanded” by Jelic and Loren-Maltese’s executive assistant, Pat Deganutti, for interfering in the Town’s towing policies. Deganutti informed Bue that towing was an executive function handled by the Town President’s office and not the Police Department. 61. Fearing that Imyak had been tampering with tow sheet records and suspecting misconduct and corruption between Ram and Town officials, including Loren-Maltese, Niebur and Bue notified the Illinois State Police and the FBI. 62. Pursuant to Niebur’s request, the Illinois State Police removed several boxes of tow sheet records on April 22, 1998, and started an independent investigation. 63. Duplicate copies of the tow sheets taken by the Illinois State Police were kept and maintained in the Cicero Police Department. Defendant Rayle inspected the duplicate copies on April 22, 1998. 64. On that same day, Niebur and Bue consulted with Defendant Rayle about their suspicions regarding Ram and Town officials. Bue told Rayle that he found Imyak rummaging through police records. Niebur and Bue also informed Rayle that they had been contacted by the FBI, who suspected that Ram was recovering and selling stolen vehicles and that Town officials were involved. Niebur and Bue also told Rayle that they suspected that Jelic and Gross had financial interests in Ram. Rayle told Niebur and Bue that he would “smooth this over with Betty [Loran-Maltese].” 15 65. On April 23, 1998, Niebur and Bue were served with subpoenas to appear before a federal grand jury investigating official misconduct and corruption in the Cicero government, including matters pertaining to Ram’s towing operations. FBI agents advised Niebur and Bue not to talk to Rayle or any other Town official, about Ram or the towing records. 66. On April 23, 1998, Loren-Maltese acknowledged in a memorandum issued to Niebur and Bue that both men had “created questions concerning the implementation” of the Ram contract, and that Niebur and Bue had “made allegations of wrongdoing, misconduct, or breach of public trust attributed to Town employees concerning the execution” of the Ram contract. Pursuant to Cicero Ordinance Number 27-97, Loren-Maltese designated Rayle to investigate Niebur’s and Bue’s “allegations of wrongdoing, misconduct, or breach of public trust” relating to the Ram contract. Loren-Maltese “-directed and authorized [Niebur and Bue] to cooperate with [Rayle] in connection with the investigation.” 67. Ordinance Number 27-97, passed by the Board of Trustees and approved by Loren-Maltese on April 7, 1997, gave Loren-Maltese unfettered power and authority to create a Special Investigation Division of her Of flee answering only to her and which real purpose was, in this case, to white wash wrongdoing involving Ram and Town officials. 68. On April 24, 1998, Niebur and Bue informed Rayle that they would not answer any questions about Ram or the records seized by the Illinois State Police because they were under a grand jury subpoena and because the U.S. Attorney’s Office through the FBI advised them not to speak with Rayle or other Town officials. 69. Despite her knowledge that Niebur and Bue were investigating Ram and the Town’s towing practices, and that they were cooperating with federal and state authorities 16 investigating those same matters, Loren-Maltese in conspiracy with Rayle and others, and as retribution for Niebur’s and Bue’s attempts to expose Town corruption, suspended Niebur and Bue with pay on April 24, 1998. 70. Niebur and Bue were ordered by Loren-Maltese to immediately surrender all Town-issued uniforms, firearms, identification, and automobiles. Loren-Maltese directed both Niebur and Bue that they could “[n]o longer hold [themselves] out to the public as affiliated in any respect with the Department of Police . . . [and that their] authority to so act [was] terminated.” PUBLIC OUTRAGED BY THE SUSPENSIONS 71. The Cicero community was immediately outraged by Loren-Maltese’s actions. The Interfaith Leadership Project issued a scathing press release defending Niebur’s accomplishments with the Town. The Project stated that Niebur was both “accessible and accountable to the community,” and that “th]is concern for the community was a refreshing change from previous administrations.” The Project lauded Niebur for disbanding the Gang Crimes Unit “after identifying it for what it truly was: a group of undisciplined, untrained police officers, who frequently harassed Latino youth.” The Project praised Niebur’s efforts in overhauling the Police Department, stating that he “was just beginning to produce results.” The Project challenged Loren-Maltese, stating that Cicero deserved “the best Police Chief we can get. We had such a Chief in David Niebur.” 72. Outsiders also recognized the suspensions as retributive and retaliatory. Federal authorities called Niebur and Bue “reformers” and publicly confirmed that they were working with the U.S. Attorney’s Office and FBI prior to being suspended. The Illinois State Police 17 official responsible for removing the tow sheet records called Niebur and Bue “outstanding individuals who were trying to do the right thing.” 73. The Chicago Tribune published an editorial within days of the suspensions, stating that “[i]t’s impossible . . . to escape the conclusion that Niebur was run out of Cicero because he was looking too closely at Cicero.” 74. Niebur’s and Bue’s suspicions regarding Ram and the Town’s towing practices were confirmed by a Chicago Tribune expose, published on May 8, 1998, detailing how four stolen vehicles were towed in May of 1997 and sold by Ram without notice to the owners that Ram had in fact towed and sold the vehicles. At least one of those cars was towed by Ram pursuant to Cicero’s street sweeping ordinance. RAYLE WHITEWASHES RAM TOWING INVESTIGATION 75. On May 20, 1998, in furtherance of the conspiracy to retaliate against Niebur and Bue for cooperating with federal and state authorities and for exposing Town corruption, Rayle submitted to his co-conspirator, Loren-Maltese, a written report whitewashing his investigation into Ram and the Town’s towing practices. In his report Rayle falsely concluded, among other things, that there was no criminal or civil wrongdoing in connection with the award or implementation of the Ram contract, and that there was no evidence that Jelic or Gross committed or were aware of any improprieties with regard to Ram. 76. As part of the overall conspiracy alleged herein, the very same individuals exonerated by Rayle—Jelic and Gross—participated extensively in Rayle’s investigation. Jelic and Gross were not only interviewed by Rayle with respect to their involvement in the Town towing operations, but they actively participated in the investigation. Jelic and Gross were 18 present for interviews with several individuals, including Ram owners Allen and Marc Imyak and Rich Neuhauser, as well as interviews with other Town employees involved in the Town’s towing operations. NIEBUR AND BUE SUSPENDED WITHOUT PAY BY SHAM POLICE BOB 77. In conspiracy with Loren-Maltese and other Defendants, and as retribution for Niebur’s and Bue’s attempts to expose Town corruption, Rayle filed dismissal charges on behalf of the Town against Niebur and Bue with the Cicero Police Board on May 4, 1998, and May 12, 1998, respectively. Said charges accused Niebur and Bue of failing to cooperate with Loren-Maltese’s “investigation” of Ram towing. As part of the conspiracy, the Police Board falsely determined that probable cause existed for the charges and suspended Niebur and Bue without pay pending a hearing on the charges. Gross was present at, presided over, and actively participated in the probable cause and suspension hearings. 78. Neither Niebur nor Bue were given notice of the hearings or any meaningful opportunity to respond to the charges or clear their names prior to being suspended .79. The Police Board is a sham. Fundamentally, the Police Board lacks jurisdiction to suspend and fire Niebur and Bue. Pursuant to Town ordinances, only the Town President has the power to appoint, suspend, and fire the Superintendent and Deputy Superintendent of Police. Furthermore, pursuant to Division 2.1 of the Illinois Municipal Code, only the Town President can remove or discharge a chief of police appointed pursuant to ordinance and then only upon written charges confirmed by a majority vote of the corporate authorities. 65 Ill. Comp. Stat. 5/10-2.1-4, 10-2.1-17 (West 1993). 19 80. Based on the above statutes and ordinances, Niebur and Bue filed separate motions to dismiss, arguing that the Police Board lacked jurisdiction. Niebur and Bue also moved to rescind the probable cause determinations and suspensions based upon the Police Board’s lack of jurisdiction. The motions were denied by the Police Board on June 16 and 23, 1998, respectively. 81. In addition to lacking jurisdiction to suspend and fire Niebur and Bue, the Police Board is illegally constituted. The individual members are political supporters of Loren-Maltese and, upon information and belief, more than two members belong to the same political party, which is a violation of 65 Ill. Comp.Stat. 5/10-2.1-3 (West 1993) and Section II-3� of the Police Board Rules and Regulations. 82. In addition, Gross is legally prohibited from holding the office of police commissioner and office of deputy liquor commissioner. Both 65 Ill. Comp. Stat. 5/10-2.1-3 and Section II-3(D) of the Police Board’s Rules and Regulations prohibit a person from serving as a police commissioner and holding other offices in the Town. Such a conflict is treated as an automatic resignation from the Police Board. 83. Gross is also a Town employee. Therefore, he is a subordinate to the charging party, Loren-Maltese and the Town Board of Trustees. Under Illinois law, this employment relationship alone is enough to disqualify Gross as a police commissioner. 84. Further, as Director of Internal Services, Gross oversaw and supervised the Town’s towing operations and, unbeknownst to Niebur and Bue, had personally allowed Ram’s owner, Alan Imyak, to enter the Police Department’s Records Bureau and tamper with the tow sheet records eventually seized by the Illinois State Police. 20 85. Without waiving its objection to the Police Board’s jurisdiction, Niebur and Bue filed identical motions to disqualify Gross as a member of the Police Board. Gross recused himself relative to Niebur’s charges, stating that he was a “percipient” witness to those charges. However, Gross refused to recuse himself as to Bue’s charges, and the Police Board denied Niebur’s and Bue’s motions to disqualify Gross and motions to rescind the probable cause determinations and suspensions. 86. Niebur and Bue remain suspended without pay. Dismissal charges are currently pending before the Police Board. . COUNT I 87. Plaintiffs repeat and reallege paragraphs 1 through 86 as though fully set forth herein. 88. The First Amendment protects a wide spectrum of free speech, including a public employee’s right to communicate with federal and state law enforcement authorities about official misconduct and corruption in the workplace. The First Amendment also protects the public’s right to be informed of the operations of government. 89. By cooperating with the FBI, the U.S. Attorney’s Office, and the Illinois State Police in their investigations of official misconduct and corruption in the Cicero government, Niebur and Bue were engaged in protected speech under the First Amendment. 90. By suspending Niebur and Bue for cooperating with the federal and state authorities, the Defendants unlawfully retaliated against Niebur and Bue for exercising their rights under the First Amendment. 21 91. No reasonable cause or justification existed to suspend Niebur and Bue from their employment. 92. The proffered reasons for Niebur’s and Bue’s suspensions and dismissal charges were false, pretextual, and retaliatory in violation of the First Amendment. 93. Niebur’s and Bue’s communications with the federal and state authorities regarding Cicero corruption and official misconduct did not disrupt the efficient activities and functioning of the Cicero Police Department. 94. Defendants’ wrongful acts proximately caused said constitutional violations and resulted in lost wages and benefits, other economic damages, and emotional pain and suffering. WHEREFORE, the Plaintiffs, DAVID R. NIEBUR and PHILLIP T. BUE, respectfully request that this Court: A. Enter a declaratory judgment stating that Defendants violated Plaintiffs’ rights under the First Amendment to the United States Constitution; B. Preliminarily and permanently enjoin Defendants from continuing to violate Plaintiffs’ rights under the First Amendment to the United States Constitution (1) by enjoining the Town, Loren-Maltese, and the Cicero Police Board from hearing and deciding dismissal charges against Niebur and Bue, (2) by ordering the immediate reinstatement of Plaintiffs to their respective positions, and payment of back pay and benefits, and (3) by ordering the immediate expungement from Plaintiffs’ personnel records any documents which reflect adversely on Plaintiffs as a result of the actions taken in this case; C. Award Plaintiffs compensatory damages against Defendants, jointly and severally, in the amount of One Million Dollars ($ 1,00O,000); 22 D. Award Plaintiffs punitive damages against the individual Defendants in their individual capacities in the amount of One Million Dollars ($1,000,000); E. Award Plaintiffs costs and reasonable attorneys’ fees, pursuant to 42 U.S.C.� 1988; F. Grant such other relief as is just and necessary. COUNT II 95. Plaintiffs repeat and reallege paragraphs 1 through 94 above as though fully set forth herein. 96. Defendants’ application of Cicero Ordinance Number 27-97 unreasonably and unconstitutionally interferes with and infringes upon Niebur’s and Bue’s exercise of their right of free speech guaranteed them of the First and Fourteenth Amendments. 97. Defendants’ wrongful acts proximately caused said constitutional violations and resulted in lost wages and benefits, other economic damages, and emotional pain and suffering. WHEREFORE, the Plaintiffs, DAVID R. NIEBUR and PHILLIP T. BUE, respectfully request that this Court: A. Enter a declaratory judgment stating that Ordinance Number 27-97 on its face and as applied violates Plaintiffs’ rights under the First and Fourteenth Amendments; B. Preliminarily and permanently enjoin Defendants from continuing to violate Plaintiffs’ rights under the First Amendment to the United States Constitution (1) by enjoining the Town, Loren-Maltese, and the Cicero Police Board from hearing and deciding dismissal charges against Niebur and Bue, (2) by ordering the immediate reinstatement of Plaintiffs to their 23 respective positions, and payment of back pay and benefits, and (3) by ordering the immediate expungement from Plaintiffs’ personnel records any documents which reflect adversely on Plaintiffs as a result of the actions taken in this case; C. Award Plaintiffs compensatory damages against Defendants, jointly and severally, in the amount of One Million Dollars ($ 1,000,000); D. Award Plaintiffs punitive damages against the individual Defendants in their individual capacities in the amount of One Million Dollars ($1,000,000); E. Award Plaintiffs costs and reasonable attorneys’ fees, pursuant to 42 U.S.C. � 1988; and F. Grant such other relief as is just and necessary. COUNT III 98. Plaintiffs repeat and reallege paragraphs 1 through 97 above as though fully set forth herein. 99. Pursuant to their Employment Agreements, the Town could not terminate Niebur’s or Bue’s employment except for cause as specified in the Agreements. 100. The Agreements, therefore, gave Niebur and Bue a property interest in their positions as Superintendent of Police and Deputy Superintendent of Police, respectively. This property interest is protected by Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. � 1983. 101. The suspension of Niebur and Bue from their positions as Superintendent and Deputy Superintendent of Police, respectively, and the attempt to fire Niebur and Bue through a 24 sham Police Board, without cause and without adequate notice and a meaningful opportunity to be heard, has deprived and will continue to deprive Niebur and Bue of their property interests without due process of law in violation of the Fourteenth Amendment. 102. Defendants’ wrongful acts proximately caused said constitutional violations and resulted in lost wages and benefits, other economic damages, and emotional pain and suffering. WHEREFORE, the Plaintiffs, DAVID R. NIEBUR and PHILLIP T. BUE, respectfully request that this Court: A. Enter a declaratory judgment stating that Defendants violated Plaintiffs’ rights under the Fourteenth Amendment to the United States Constitution; B. Preliminarily and permanently enjoin Defendants from continuing to violate Plaintiffs’ rights under the Fourteenth Amendment to the United States Constitution (1) by enjoining the Town, Loren-Maltese, and the Cicero Police Board from hearing and deciding dismissal charges against Niebur and Bue, (2) by ordering the immediate reinstatement of Plaintiffs to their respective positions and payment of back pay and benefits, and (3) by ordering the immediate expungement from Plaintiffs’ personnel records any documents which reflect adversely on Plaintiffs as a result of the actions taken in this case; C. Award Plaintiffs compensatory damages against Defendants, jointly and severally, | in the amount of One Million Dollars ($1,000,000); D. Award Plaintiffs punitive damages against the individual Defendants in their individual capacities in the amount of One Million Dollars ($ 1,000,000); E. Award Plaintiffs costs and reasonable attorneys’ fees, pursuant to 42 U.S.C.� 1988; 25 F. Grant such other relief as is just and necessary. COUNT IV 103. Plaintiffs repeat and reallege paragraphs 1 through 102 above as though fully set forth herein. 104. Niebur and Bue possess constitutionally protected liberty interests in their reputations and their ability to find employment as law enforcement officials. 105. On May 4 and 12, 1998, respectively, the Town, Loren-Maltese, and Rayle published written charges against Niebur and Bue seeking their dismissals in retaliation for cooperating with federal and state authorities investigating official misconduct and corruption in the Cicero government. The Town, Loren-Maltese, and Rayle falsely accused Niebur and Bue of violating certain departmental rules of conduct, including statements falsely accusing Niebur and Bue of engaging in conduct which destroyed the public respect and confidence in the Police Department. Niebur and Bue were also falsely charged with breaching fiduciary duties of good faith and trust in discharging their duties. The Town, Loren-Maltese, and Rayle also falsely charged Niebur with “a persistent pattern of misconduct.” These retaliatory and false charges, which led to Niebur’s and Bue’s suspensions by the Cicero Police Board, stigmatized Niebur and Bue and have effectively limited their ability to pursue their careers as law enforcement officials. 106. Defendants stigmatized Niebur and Bue as undesirable as law enforcement of ricers by suspending them on the basis of retaliatory and false charges without providing Niebur and Bue a meaningful opportunity to clear their names in violation of their rights under the Fourteenth Amendment and 42 U.S.C. � 1983. 26 WHEREFORE, the Plaintiffs, DAVID R. NIEBUR and PHILLIP T. BUE, respectfully request that this Court: A. Enter a declaratory judgment stating that Defendants violated Plaintiffs’ rights under the Fourteenth Amendment to the United States Constitution; B. Preliminarily and permanently enjoin Defendants from continuing to violate Plaintiffs’ rights under the Fourteenth Amendment to the United States Constitution (1) by enjoining the Town, Loren-Maltese, and the Cicero Police Board from hearing and deciding dismissal charges against Niebur and Bue, (2) by ordering the immediate reinstatement of Plaintiffs to their respective positions and payment of back pay and benefits, and (3) by ordering the immediate expungement from Plaintiffs’ personnel records any documents which reflect adversely on Plaintiffs as a result of the actions taken in this case; C. Award Plaintiffs compensatory damages against Defendants, jointly and severally, in the amount of One Million Dollars ($ 1,000,000); D. Award Plaintiffs punitive damages against the individual Defendants in their individual capacities in the amount of One Million Dollars ($1,000,000); E. Award Plaintiffs costs and reasonable attorneys’ fees, pursuant to 42 U.S.C.� 1988; F. Grant such other relief as is just and necessary. COUNT V 107. The Plaintiffs repeat and reallege paragraphs 1 through 106 as though fully set forth herein. 27 108. The individual Defendants, acting together and under color of law, reached an understanding and agreement, engaged in a course of conduct, and otherwise conspired among and between themselves and with other unnamed and/or unknown co-conspirators, to deprive Niebur and Bue of their Constitutional rights, and did deprive them of their Constitutional rights, as alleged herein, including their right to be free from retaliation for exercising their right to free speech and their right to due process of law, as protected by the First and Fourteenth Amendments to the United States Constitution. 109. In furtherance of this conspiracy or conspiracies, the Defendants committed the overt acts alleged herein, including, but not limited to, suspending Niebur and Bue in retaliation for their cooperation with federal authorities regarding official misconduct and corruption in the Cicero government, falsely charging Niebur and Bue with purported disciplinary offenses as a pretext for said retaliation, and convening a sham Police Board having no jurisdiction to fire Niebur and Bue and having no intent to provide Niebur and Bue with fair and impartial hearing on said charges. 110. Said acts of Defendants were undertaken wilfully and maliciously and deprived Niebur and Bue of their rights under the First and Fourteenth Amendments and 42 U.S.C. � 1983. 111. Said conspiracy or conspiracies and overt acts proximately caused said Constitutional violations, and said injuries, pain suffering, mental anguish, legal expenses, loss of income as alleged herein. WHEREFORE, the Plaintiffs, DAVID R. NIEBUR and PHILLIP T. BUE, respectfully request that this Court: 28 A. Enter a declaratory judgment stating that Defendants violated Plaintiffs’ rights under the First and Fourteenth Amendments to the United States Constitution; B. Preliminarily and permanently enjoin Defendants from continuing to violate Plaintiffs’ rights under the First and Fourteenth Amendments to the United States Constitution (1) by enjoining the Town, Loren-Maltese, and the Cicero Police Board from hearing and deciding dismissal charges against Niebur and Bue, (2) by ordering the immediate reinstatement of Plaintiffs to their respective positions, and (3) by ordering the immediate expungement from Plaintiffs’ personnel records any documents which reflect adversely on Plaintiffs as a result of the actions taken in this case; C. Award Plaintiffs compensatory damages against Defendants, jointly and severally, in the amount of One Million Dollars ($ 1,000,000); D. Award Plaintiffs punitive damages against the individual Defendants in their individual capacities in the amount of One Million Dollars ($1,000,000); E. Award Plaintiffs costs and reasonable attorneys’ fees, pursuant to 42 U.S.C.� 1988; F. Grant such other relief as is just and necessary. COUNT VI 112. Niebur repeats and realleges Paragraphs 1 through 111 as though fully set forth herein.. 29 113. Niebur and the Town entered into a written “Employment Agreement”(Agreement), a copy of which is attached hereto as Exhibit A. Loren-Maltese executed the Agreement on behalf of the Town. 114. The term of the Agreement is three (3) years, starting on January 1, 1998, and ending on December 31, 2001. The Town agreed to pay Niebur $95,000 per year, plus certain benefits set forth in the Agreement. 115. The Agreement could be terminated by the Town, in relevant part, upon the occurrence of any one of the following events:
116. During his employment, Niebur performed all the conditions and requirements of his position as Superintendent of Police in a satisfactory manner, and he committed none of the acts proscribed by the Agreement. 117. Prior to April 24, 1998, Loren-Maltese and the Town repeatedly and continuously praised Niebur for his satisfactory job performance. 30 118. Prior to April 24, 1998, Niebur was never told by Loren-Maltese or any other Town official that his performance was unsatisfactory, that he failed to meet the conditions and requirements of the Agreement, or that he had in any way violated the terms of the Agreement. 119. It was not until Niebur began investigating and uncovering official misconduct and corruption relating to the Town towing contract, and until he made it known to Loren-Maltese and the Town that he was cooperating with the federal grand jury investigation, that the Town breached the Agreement by unlawfully and illegally suspending him from his employment and kicking him out of the Police Department and Town government. 120. The Town, by and through the actions of the individual Defendants, has breached the Agreement. As a result of the breach, Niebur has incurred actual contract damages for wages due under the Agreement. Niebur has also incurred damages for the value of his lost benefits. WHEREFORE, the Plaintiff, DAVID R. NIEBUR, respectfully requests that this Court enter an order of judgment granting Niebur the following:
COUNT VII 121. Bue repeats and realleges Paragraphs 1 through 1 19 as though fully set forth herein. 31 122. Bue and the Town entered into a written “Employment Agreement” (Agreement),a copy of which is attached hereto as Exhibit B. Loren-Maltese executed the Agreement on behalf of the Town. 123. The term of the Agreement is three (3) years, starting on March 10, 1998, and ending on March 1, 2001. The Town agreed to pay Bue $86,000 per year, plus certain benefits set forth in the Agreement. 124. The Agreement could be terminated by the Town, in relevant part, upon the occurrence of any one of the following events:
125. During his employment, Bue performed all the conditions and requirements of his position as Deputy Superintendent of Police in a satisfactory manner, and he committed none of the acts proscribed by the Agreement. 126. Prior to April 24, 1998, Loren-Maltese and the Town repeatedly and continuously praised Bue for his satisfactory job performance. 32 127. Prior to April 24, 1998, Bue was never told by Loren-Maltese or any other Town official that his performance was unsatisfactory, that he failed to meet the conditions and requirements of the Agreement, or that he had in any way violated the terms of the Agreement. 128. It was not until Bue began investigating and uncovering official misconduct and corruption relating to the Town towing contract, and until he made it known to Loren-Maltese and the Town that he was cooperating with the federal grand jury investigation, that the Town breached the Agreement by unlawfully and illegally suspending him from his employment and kicking him out of the Police Department and Town government. 129. The Town, by and through the actions of the individual Defendants, has breached the Agreement. As a result of the breach, Bue has incurred actual contract damages for wages due under the Agreement. Bue has also incurred damages for the value of his lost benefits. WHEREFORE, the Plaintiff, PHILLIP T. BUE, respectfully requests that this Court enter an order of judgment granting Bue the following:
COUNT VIII 130. Plaintiffs repeat and reallege paragraphs 1 through 129 as though fully set forth herein. 33 131. It is the public policy of the State of Illinois that public employees step forward and report official misconduct and corruption in their workplace. 132. Niebur and Bue, on numerous occasions, asked questions concerning the implementation of the Ram towing contract and expressed suspicions of wrongdoing, official misconduct, and breaches of the public trust attributed to Town employees and officials regarding the award of the towing to Ram by the Town. In addition, Niebur and Bue communicated their concerns and suspicions to federal and state authorities. 133. Defendants suspended Niebur and Bue and now seek to terminate their employment in retaliation for reporting official misconduct and corruption involving Town employees and officials and for cooperating with federal and state investigations, said actions being in violation of the public policy of the State of Illinois. 134. No reasonable cause or justification existed to suspend or seek the dismissal of Niebur and Bue from their employment. 135. By wrongfully suspending and seeking dismissal of Niebur and Bue without reasonable cause or justification, and for the retaliatory reasons set forth above, Defendants violated public policy of the State of Illinois. WHEREFORE, the Plaintiffs, DAVID R. NIEBUR and PHILLIP T. BUE, demand actual or compensatory damages, jointly and severally, against the Defendants, and because the individual Defendants acted maliciously, wantonly, or oppressively, Plaintiffs demand punitive damages, plus the costs of this action, and such other and additional relief as this Court deems equitable and just. 34 COUNT IX 136. Plaintiffs repeat and reallege paragraphs 1 through 135 as though fully set forth herein. 137. The conduct and actions of the Defendants as alleged herein were extreme and outrageous, were done intentionally, wilfully and wantonly, and/or knowing there was a high probability that their conduct would cause Plaintiffs severe emotional distress as alleged herein. 138. As a direct and proximate result of Defendants’ extreme and outrageous conduct, Plaintiffs were injured and experienced severe emotional distress constituting intentional infliction of emotional distress under Illinois law. WHEREFORE, the Plaintiffs, DAVID R. NIEBUR and PHILLIP T. BUE, demand actual or compensatory damages, jointly and severally, against the Defendants, and because the individual Defendants acted maliciously, wantonly, or oppressively, Plaintiffs demand punitive damages, plus the costs of this action, and such other and additional relief as this Court deems equitable and just. COUNT X 139. Plaintiffs repeat and reallege paragraphs 1 through 136 above as though fully set forth herein. 140. The individual Defendants named herein held offices and/or employment with the Town of Cicero. 141. These Defendants committed the acts alleged above under color of law and in the scope of their employment and/or offices with the Town of Cicero. 35 WHEREFORE, the Plaintiffs, DAVID R. NIEBUR and PHILLIP T. BUE, pursuant to745 Ill. Comp. Stat. 10/9-102, demand judgment against the Defendant, Town of Cicero, in the amounts awarded to Plaintiffs against the individual Defendants as damages, attorneys’ fees, costs and interest, and for whatever additional relief this Court deems equitable and just. DEMAND FOR JURY TRIAL Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiffs demand a trial by jury on all issues so triable in the matter. s/Michael D. Bersani MICHAEL D. BERSANI 36 EXHIBIT A EMPLOYMENT AGREEMENT THIS AGREEMENT is made between The Town of Cicero, Illinois (“The Town”). an Illinois municipal corporation transacting business at 4937 West 25th Street, Cicero. Illinois 60804, and David R.Niebur (“Niebur”),whose current residence is Joplin. Missouri. WHEREAS, Niebur currently is employed as Police Chief by the City off Joplin, Missouri: and WHEREAS; THE TOWN desires to employ Niebur as Chief of its Department of Police, and Niebur desires to accept that employment. NOW, THEREFORE, in consideration of the mutual agreements set forth below, the parties agree as follows: 1. THE TOWN hereby employs Niebur as Chief of its Department of Police. and Niebur agrees so to be employed on the terms set out below. 2. THE TERM of this Agreement shall be three years beginning January 1,1998, and ending December 31, 2001, or until such earlier date as may be specified in a written notice delivered by either THE TOWN or Niebur to the other party stating that this Agreement shall terminate at an earlier date pursuant to Paragraph 8 below. 3. As of the effective date of this Agreement, Niebur shall supervise and direct the entire operation of THE TOWN’S Department of Police, and perform such additional, different, or other duties as may be delegated to him by THE TOWN President, who pursuant to Section 2-16 of THE TOWN’s Code of Ordinances, is conservator of the peace. Further: A. In consultation with THE TOWN President, Niebur shall have principal charge of planning, organizing, directing, staffing, and coordinating police operations, and, in general, overseeing the operational performance of the Department of Police, including, without limitation, enforcing its rules and regulations. B. The power of appointment, discharge, or suspension of officers of theDepartment of Police and Public Safety officers is vested exclusively in THE TOWN’s Board of Fire. Police, and Public Safety Commissioners, pursuant to Section 27-4 of THE TOWN’s Code of Ordinances, and Section 10-2.1-17 of the Illinois Municipal Code (65 ILCS 5/10-2.1-17). POLICE CHIEF EMPLOYMENT AGREEMENT / Page 1 C. Niebur shall devote substantially all of his working time and best efforts to his duties as Chief of the Department of Police, except during reasonable vacation periods and periods of illness or incapacity. He shall observe and abide by the reasonable policies and decisions of THE TOWN President and THE TOWN’S Board Of Trustees. 4. During the employment period, Niebur shall receive a salary at the gross rate of Ninety-Five Thousand Dollars ($95,000.00) per year — from which all payroll and related deductions shall be made – payable in such installments as prevail for all other TOWN employees. THE TOWN also shall provide at its expense during the employment period disability, health, and life insurance in amounts and on terms no less favorable than provided for any other TOWN Department Head pursuant to TOWN policy. 5. Pursuant to Section 2-123 of THE Town’s Code of Ordinances, Niebur shall make his residence and maintain his domicile within THE TOWN no later than ninety (90) days after commencing his employment, and he shall keep such residence and domicile during the terms of his employment, failing which this Agreement — and all obligations of THE TOWN pursuant to it – shall terminate immediately. 6. Niebur shall receive the following additional benefits: A. He may attend two professional conferences within the continental United States in any calendar year. THE TOWN will provide travel expenses for Coach Class, lodging, and pay any registration costs in connection with the conferences. Additionally, THE TOWN will reimburse Niebur for all reasonable ancillary expenses he incurs in attending the conferences. B. He shall be eligible for such paid vacation for such intervals and on terms no less favorable than provided for any other TOWN Department Head pursuant to TOWN policy, except he commences his employment with accrued paid vacation time of thirty (30) days. C. He shall be eligible for such sick leave, and paid leave for personal reasons on terms no less favorable than provided for any other TOWN Department Head pursuant to TOWN policy, except he commences his employment with accrued paid sick and personal leave of twelve (12) days. D. He may recommend to the TOWN President two persons – who may or may not be with the TOWN’S Department of Police as of the effective date of this Agreement–‘to be appointed deputy Chiefs. The TOWN President shall not withhold her POLICE CHIEF EMPLOYMENT AGREEMENT / Page 2 consent to the appointment of the persons so recommended except for reasons of principled disagreement. E. He shall be provided with an automobile under an arrangement at least equivalent to those presently in effect with respect to other Town Department Heads pursuant to TOWN policy. F. He shall be eligible to participate in any or all retirement or related plans in the amounts and on terms no less favorable than provided for any other Chief of Police who has made the election under Section 3-109. 1 (4o ILCS 5/3-109.1) to participate in the Illinois Municipal Retirement Fund (the ‘MRF’). THE TOWW agrees to execute all documentation necessary to facilitate Niebur’s ability to transfer eligible creditable service to the MRF to the extent he is entitled by applicable Law so to do, but assumes no responsibility if Niebur is unable to make the transfer or otherwise is unable to participate in the MRF in the manner he desires. G. He shall be reimbursed for Professional dues and subscriptions necessary for his continued full participation in national, regional, state, and local associations and organizations reasonably appropriate to his professional growth and advancement. H. He shall be provided with a full-time secretary, together with a Pentium 166 megahertz computer and internet connection at TOWN expense. I. For business or personal use, he shall be provided with a full-size to read or red police vehicle, equipped with a mobile telephone. all at TOWN expense. J. He shall be provided with all police uniforms needed for his duties and the TOWN shall pay cleaning costs. 7.THE TOWN shall pay the following relocation expenses in Niebur’s behalf:
8. This Agreement may be terminated as follows.
Upon termination of employment for the reasons stated above, Niebur shall be entitled to receive only but all such compensation hereunder accrued and unpaid as of the date of termination. All or any subsequent compensation and benefits required to be paid Niebur under the terms of this Agreement shall be forfeited. 9. THE TOWN shall defend, hold harmless, and indemnify Niebur against any tort or professional liability claim arising out of alleged acts or omissions occurring in the line of duty, except THE TOWN shall not indemnify against any final judgment for acts constituting gross negligence or reckless or criminal misconduct. 10. Any Notice required or permitted under this Agreement shall be in writing, and sent by Registered or Certified Mail, postage prepaid, to either party at his or its address. Such Notice shall be deemed given on the day when delivered in person, or the third business day after the date on which mailed. 11. The invalidity or un-enforceability of this Agreement, or any of its terms, shall not affect its validity as a whole, which shall remain in full force and effect. POLICE CHIEF EMPLOYMENT AGREEMENT/ Page 4 12. The language contained in this Agreement shall be deemed to be that approved by all parties to it and their lawyers. No rule of “strict construction” shall be applied against either of the parties. 13. This Agreement constitutes the entire agreement of the parties to it. No oral modification of the Agreement shall have any force or effect. All or any relevant amendments to the Code of Ordinances of THE TOWN material to this Agreement shall be incorporated herein upon adoption by THE TOWN’s Board of Trustees. All or any other amendments to this Agreement shall be in writing and executed by the parties. 14. This Agreement shall be governed by the Laws of the State of Illinois.
EFFECTIVE AS OF JANUARY 1, 1998 Attest:Mariln Colpo__________________________ MARILYN COLPO,CLERK TOWN of CICERO POLICE CHIEF EMPLOYMENT Page .5 EXHIBIT B THE TOWN OF CICERO THIS AGREEMENT is made between The Town of Cicero, Illinois (“THE TOWN”), an Illinois municipal corporation transacting business at 4937 West 25th Street, Cicero, Illinois 60804, and Phillip T. Bue (“BUE”), whose current residence is Hanover Park, Illinois: WHEREAS, Bue currently is employed in Law Enforcement; and WHEREAS, THE TOWN desires to employ Bue as Deputy Chief of its Department of Police, and Bue desires to accept that employment. NOW, THEREFORE, in consideration of the mutual agreements set forth below, the parties agree as follows: 1. THE TOWN hereby employs Bue as Deputy Chief of its Department of Police, and Bue agrees so to be employed on the terms set out below. 2. THE TERM of this Agreement shall begin March 1, 1998, and end March 1, 2001, or until such earlier date as may be specified in a written notice delivered by either THE TOWN or Bue to the other party stating that this Agreement shall terminate at an earlier date pursuant to Paragraph 7 below. 3. As of the effective date of this Agreement, Bue shall serve as an Administrative Operations Officer of the Department of Police, and perform such additional, different, or other duties as may be delegated to him by the Chief of the Department of Police and by THE TOWN President, who, pursuant to Section 216 of THE TOWN’s Code of Ordinances, is conservator of the peace. Further,
Deputy Police Chief Employment Agreement / Page 1
4. During the employment period, Bue shall receive a salary at the gross rate of Eighty-Six Thousand ($86,000.00) Dollars per year ~ from which all payroll and related deductions shall be made—payable in such installments as prevail for all other TOWN employees. THE TOWN also shall provide at its expense during the employment period disability, health and life insurance in amounts and on terms no less favorable than provided for any other TOWN employee similarly situated pursuant to TOWN policy. 5. Pursuant to Section 2-123 of THE TOWN’s Code of Ordinances, Bue shall make his residence and maintain his domicile within THE TOWN no later than one hundred eighty (180) days after commencing his employment, and he shall keep such residence and domicile during the terms of his employment, failing which this agreement—and all obligations of THE TOWN pursuant to it—shall terminate immediately. 6. Bue shall receive the following additional benefits:
.Deputy Police Chief Employment Agreement / Page 2
7. This Agreement may be terminated as follows:
Deputy Police Chief Employment Agreement / Page :3 8. THE TOWN shall defend, hold harmless, and indemnify Bue against any tort or professional liability claim arising out of alleged acts or omissions occurring in the line-of duty, except THE TOWN shall not indemnify against any final judgment for acts constituting gross negligence or reckless or criminal misconduct. 9. Any Notice required or permitted under this Agreement shall be in writing, and sent by Registered or Certified Mail, postage prepaid, to either party at his or its address. Such Notice shall be deemed given on the day when delivered in person, or the third business day after the date on which mailed. 10. The invalidity or unenforceability of any provision of this Agreement, or any of its terms, shall not affect its validity as a whole, which shall remain in full force and effect. 11. The language contained in this Agreement shall be deemed to be that approved by all parties to it and their lawyers. No rule of “strict construction” shall be applied against either of the parties. 12. This Agreement constitutes the entire agreement of the parties to it. No oral modification of the Agreement shall have any force or effect. All or any relevant amendments to the Code of Ordinances of THE TOWN material to this Agreement shall be incorporated herein upon adoption by THE TOWN’s Board of Trustees. All or any over amendments to this Agreement shall be in writing and executed by the parties. 13. This Agreement shall be governed by the Laws of the State of Illinois.
EFFECTIVE AS OF MARCH 10 1998 ATTEST: s/Marilyn Colpo Deputy Police Chief Employment Agreement / Page 4
PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION NOW COME the Plaintiffs, DAVID R. NIEBUR and PHILLIP T. BUE, by and through their attorneys, MICHAEL D. BERSANI and MICHAEL W. CONDON of HERVAS, SOTOS,CONDON & BERSANI, P.C., and pursuant to Fed. R. Civ. Pro. 65(a), move for entry of a preliminary injunction to protect Plaintiffs from the substantial and irreparable harm that they will continue to suffer if Defendants are permitted to continue their violation of Plaintiffs’ rights under the First and Fourteenth Amendments and Illinois law. In support of this motion, Plaintiffs state the following:: 1.. Plaintiffs have filed a ten-count, civil rights complaint against the Defendants seeking relief under 42 U.S.C. � 1983 and pendent state law for Defendants’ wrongful and unlawful conduct in suspending Plaintiffs and seeking their dismissal from their positions as Superintendent and Deputy Superintendent of Police for the Town of Cicero in violation of Plaintiffs’ rights under the First and Fourteenth Amendments and Illinois law (“Complaint”). A copy of the Complaint is attached hereto as Exhibit A and incorporated herein by reference. 2. Plaintiff David Niebur is the Superintendent of Police, and Plaintiff Phillip Bue is the Deputy Superintendent of Police for the Town of Cicero. Niebur and Bue were hired by the Town on December 1, 1997, and March 1, 1998, respectively, to reform a corrupt Cicero Police Department. Niebur and Bue have performed their jobs in a satisfactory, competent, and professional manner throughout their tenure with the Town. 3. Beginning at least in 1996, the Town and its officers and employees, including police department personnel, were under investigation by the U.S. Attorney’s Office and Federal Bureau of Investigation (“FBI”). 4. From the onset of their employment with Cicero, Niebur and Bue were cooperating with FBI agents and the U.S. Attorney’s Office regarding the federal investigation. 5. As detailed more specifically in the Complaint, Niebur and Bue began their own investigation of the Town’s towing practices and Ram Recovery, Inc. (“Ram”), which is the Town’s exclusive towing operator. Defendant Loren-Maltese and other Town officials stonewalled Niebur’s and Bue’s repeated attempts to obtain information and records about Ram and the Town’s towing practices. Furthermore, based on information supplied to Niebur and Bue2 2 by FBI agents, Niebur and Bue suspected official misconduct and corruption regarding the manner in which Ram’s towing contract with the Town was awarded and implemented. 6. On April 21, 1998, Bue caught Ram’s owner, Alan Imyak, rummaging through towing records in the records room of the Cicero Police Department. 7. Believing that Imyak had or was attempting to tamper with police department records and that Town officials may be involved, Niebur and Bue contacted the Illinois State Police, who removed the towing records from the police department and started their own investigation on April 22, 1998. Niebur and Bue also contacted the FBI. 8. On April 23, 1998, Niebur and Bue were served with subpoenas to appear in person before a federal grand jury investigating corruption and official misconduct in the Cicero government. FBI agents advised Niebur and Bue not to speak with any Town officials about Ram or the Town’s towing practices. 9. On April 23, 1998, Loren-Maltese issued a memorandum to Niebur and Bue, stating that she was instituting a special investigation into the Ram towing contract pursuant to Cicero Ordinance 27-97. In the memorandum Loren-Maltese acknowledged that Niebur and Bue had expressed concerns regarding the contract and that both had expressed suspicions about wrongdoing, misconduct, and breach of public trust involving Cicero officials.. Pursuant to her purported authority under Ordinance 27-97, Loren-Maltese ordered Niebur and Bue to cooperate with Rayle, whom she had appointed special counsel to conduct her investigation. 10. On April 24, 1998, Niebur and Bue met with Rayle and informed him that they would not answer any questions about Ram or the towing records because they were subject to 3 grand jury subpoenas and because they were ordered not to do so by the FBI and U.S. Attorney’s Office. 11. Later that same day, in retaliation for cooperating with federal and state authorities, Loren-Maltese suspended Niebur and Bue with pay. Loren-Maltese ordered both men to turn in their uniforms, firearms, identification, and vehicles, and she directed both men that they could “[n]o longer hold [themselves] out to the public as affiliated in any respect with the Department of Police . . . [and that their] authority to so act [was] terminated.” 12. On May 4, 1998, the Town, through Rayle, filed dismissal charges against Niebur with the Cicero Board of Fire, Police and Public Safety Commissioners (“Police Board”). That same day, the Police Board found that probable cause existed for the charges and suspended Niebur without pay pending a hearing on the charges. 13. On May 12, 1998, the Town, through Rayle, filed dismissal charges against Bue with the Police Board. That same day, the Police Board found that probable cause existed for the charges and suspended Bue without pay pending a hearing on the charges. 14. Despite the fact that the Police Board has no jurisdiction under state statute and town ordinances to suspend and fire Niebur and Bue, the Board denied motions to dismiss and motions to rescind the suspensions subsequently filed by Niebur and Bue. 15. Despite the fact that Police Board Chairman Clarence Gross is an officer and employee of the Town and therefore has a conflict of interest under state statute, town ordinances, and Illinois common law, the Board denied Niebur’s and Bue’s motions to disqualify Gross. 4 16. Despite the fact that the Police Board Commissioners are biased and partial to the Town and Loren-Maltese, the Board nonetheless continues to move forward with Niebur’s and Bue’s firings by denying the above motions and setting a hearing date for October 5, 1998, with regard to Niebur’s charges. No hearing date has yet been set for Bue. 17. The Police Board has suspended Niebur and Bue and illegally taken jurisdiction over their employment status in retaliation for Niebur’s and Bue’s cooperation with federal and state investigations into official misconduct and corruption in Cicero government. 18. The Police Board is a sham. Upon information and belief, Loren-Maltese controls all actions and decisions of the Police Board. Loren-Maltese ostensibly uses the Police Board to discipline police officers under the pretense of complying with constitutional and statutory due process requirements. In reality, however, the Police Board is used as a tool of retribution and retaliation against of ricers who oppose her political views or, as in Niebur’s and Bue’s case, against officers who attempt to expose official misconduct and corruption involving Town officials.. 19. Plaintiffs seek a preliminary injunction to protect themselves from the substantial and irreparable injury they have sustained and will continue to sustain if the Defendants are permitted to continue their unlawful, retaliatory conduct. The current suspensions and pending disciplinary hearings have the effect of chilling Niebur’s and Bue’s exercise of their First Amendment rights. 20. Plaintiffs have no adequate remedy at law. 21. Plaintiffs will likely succeed on the merits. As detailed in the Complaint, prior to April 24, 1998, the Town and Loren-Maltese consistently, continuously, and publicly praised and 5 boasted about Niebur’s and Bue’s job performances. It was not until Niebur and Bue began investigating official misconduct and corruption relating to the Ram towing contract and until they made it known to Town officials, including Loren-Maltese, that they were cooperating with state and federal authorities investigating Town officials, including Loren-Maltese, that Defendants unlawfully suspended Niebur and Bue and sought their dismissals. 22. The genesis for the suspensions and firings is Ordinance 27-97, which purports to give Loren-Maltese unfettered and absolute authority to require Town employees to cooperate with her own investigations. If an employee fails or refuses to cooperate and answer questions, he or she faces disciplinary action, including termination of employment, regardless of the context, forum, or public interest involved in the employee’s refusal to cooperate. 23. Under these circumstances, Niebur and Bue will likely succeed on the merits of their claim that Defendants have violated and will confine to virility their First and Fourteenth Amendment rights and that Ordinance 27-97 in its application is unconstitutional. A public employee’s communications with external authorities regarding corruption and criminal misconduct in the workplace are protected by the First Amendment, and an employer’s attempt to punish an employee by disciplining the employee for making those communications violates the First Amendment. See O’Brien v. Town of Caledonia, 748 F.2d 403, 406~07 (7th Cir. 1984). 24. Plaintiffs will also likely succeed on the merits of their claims under Illinois law, which makes it illegal for an employer in this State to retaliate against an employee for reporting official misconduct and corruption in the workplace. 6 25. While the Town has charged Niebur and Bue with a variety of charges purportedly unrelated to their refusal to cooperate with Rayle about Ram towing, those charges are false and a pretext for violating Niebur’s and Bue’s constitutional rights. 26. Plaintiffs request that this Court set a hearing date for this motion within 60 days. WHEREFORE, the Plaintiffs, DAVID R. NIEBUR and PHILLIP T. BUE, pray for entry of an order:
7 Deputy Superintendent of Police for the Town of Cicero and payment of back pay and benefits from May 12, 1998, to the date of reinstatement. s/Michael D. Bersani MICHAEL D. BERSANI 8 |
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