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DULCEAK v. PAXSON

September 2, 1992

IN THE MATTER OF PATRICIA DULCEAK, Plaintiff,
v.
REID PAXSON and CITY OF NORTHLAKE, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Patricia Dulceak ("Dulceak") brings this civil rights action pursuant to 42 U.S.C. ยง 1983 against Reid Paxson and the City of Northlake, an Illinois municipality, alleging abridgments of her First Amendment rights. She also alleges common law complaints against both Defendants for libel and slander. Defendants, in a combined motion, request that this court, pursuant to Federal Rule of Civil Procedure 12(b)(6), dismiss the complaint in its entirety. For the reasons set forth below, we grant Defendants' motion.

 In considering a motion to dismiss, the court accepts the factual allegations of the complaint as true. See Hughes v. Rowe, 449 U.S. 5, 10, 101 S. Ct. 173, 176, 66 L. Ed. 2d 163 (1980) (per curiam) (citing Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972); Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir. 1990); Brown v. State's Atty., 783 F. Supp. 1149, 1151 (N.D.Ill. 1992). Furthermore, unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief," a court should not grant a motion to dismiss. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). See also Yeksigian, 900 F.2d at 102 (7th Cir. 1990). Accordingly, the court views the well-pleaded complaint's allegations, as well as reasonable inferences therefrom, in the light most favorable to the plaintiff. See Balabanos v. North Am. Invest. Group, Ltd., 708 F. Supp. 1488, 1491 n.1 (N.D. Ill. 1988) (citing Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986)).

 II. Background

 For the purposes of this motion, the facts underlying this dispute are as follows:

 Dulceak is currently a member and Acting Secretary of the Zoning Board of Appeals and Plan Commission of the City of Northlake ("Zoning Board"). She previously held the additional position of Chairperson. On February 21, 1991, the Zoning Board met to discuss, among other things, Vencor Hospital's request for a Special Use Permit.

 At the meeting, several residents expressed concerns about the permanent index numbers that were included on Vencor's application. Additionally, residents raised issues about the impact of the special use on certain easements that were allegedly to revert back to them as property owners. Dulceak's minutes note the residents' concerns and report that the city attorney, Francis Bongiovanni ("Bongiovanni"), agreed to ensure that all property index numbers and legal descriptions of the property were in order before presenting Vencor's application to the City Council for a final decision. The Zoning Board then voted unanimously that "the request for Special Use with said correction of PIN numbers and Legal Description will be presented to the City Council for the final decision as to whether they will be given the Permit." (Cplt., Exh. A-3.)

 Prior to the next regularly scheduled City Council meeting, Bongiovanni drafted a memorandum containing written findings of fact based upon the February 21, 1991 Zoning Board meeting, supporting a recommendation that Vencor's application for a special use be granted. *fn1" The memo purported to be from the Northlake Zoning Board. *fn2" The City Council received, and apparently relied upon, this memo in connection with its decision to approve Vencor's application. (See Cplt, Exh. A-13, P 5.)

 Sometime after the City Council meeting, Dulceak learned of the memo and discovered that the memo, rather than her own minutes, had been submitted to the City Council. Dulceak raised the issue at the next meeting of the Zoning Board, held on March 21, 1991. In the minutes of that meeting, Dulceak, acting as Secretary, reported that "[the Board is] now getting back to discussing the minutes of our last meeting which were altered by the City Attorney Mr. Bongiovanni, in Findings of Fact presented to the Councilmen/women at the last Council Meeting in place of the original minutes written by our Acting Secretary Pat Dulceak." (Cplt., Exh. A-16.) Two Zoning Board members objected to the memo on the basis that "the revised minutes did not reflect the major questions raised by the Commission Members to Property Index Numbers and Easement Lands." (Cplt., Exh. A-16.) In response to these objections, Bongiovanni "was very defensive and said he did his findings based on what the Administration felt should appear on the Agenda for the Council Meeting." (Id.) The Board voted six to one to accept the minutes as written by the City Attorney. *fn3"

 On April 18, 1991 the Zoning Board met again. At that meeting, the Board reconsidered its earlier vote to accept the "altered" minutes prepared by Bongiovanni. The Board voted unanimously to accept the minutes of February 21, 1991 as written by Dulceak and to reject Bongiovanni's minutes. In addition to the vote, four Board members criticized Bongiovanni's memo for undermining the Zoning Board's role in zoning decisions. *fn4" (Cplt., Exh. A-23.)

 On April 20, 1991, Mayor Paxson signed and served a Notice of Hearing ("Notice") indicating that on April 29, 1991 he would hold a public hearing to show cause for Dulceak's removal as Chairperson and member of the Zoning Board. *fn5" (See Cplt., Exh. B-1.) The Notice cited Dulceak's failure to adequately perform her duties as Chairperson of the Zoning Board as well as her failure to maintain appropriate ethical standards as the basis for her removal. (See Cplt., Exh.B-1-B-2, PP 1 & 2.) The Notice outlined several specific ...


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