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NICKUM v. VILLAGE OF SAYBROOK

July 28, 1997

MADELINE NICKUM, PLAINTIFF,
v.
VILLAGE OF SAYBROOK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Mihm, Chief Judge.

  ORDER

This matter is now before the Court on Magistrate Judge Robert J. Kauffman's Report and Recommendation ("R & R"), Defendant Village of Saybrook's Motion to Dismiss Counts I, III, IV and Portions of Count II of the Complaint [# 27], Defendant Richard Robbins' Motion to Dismiss Count X of the Complaint [# 23], Defendant Russell Robbins' Motion to Dismiss Count XI of the Complaint [# 21], and Defendants Ronald Stauffer and Ruby Johnson's Motion to Dismiss Counts V, VI, VII, VIII, and XIII [# 30].

On January 28, 1997, the Magistrate Judge filed a Revision to the Report and Recommendation ("Revision") [# 64]. The Revision addressed a typographical error in the summarizing paragraph of the original Report. The Revision also expanded on the original Report's reasoning behind the recommendation to deny the Village's Motion to Dismiss Count II of the Complaint.

For the reasons set forth below, the Court adopts the recommendations in the R & R as to Counts I, II, and III and rejects the recommendation as to Count IV; thus, the Village's Motion to Dismiss Counts I, III, and IV of the Complaint is DENIED, and the Village's Motion to Dismiss Count II is GRANTED in part and DENIED in part. The Court adopts the recommendation in the R & R as to Count V and rejects the recommendation in the R & R as to Count VI; thus, Johnson and Stauffer's Motion to Dismiss Counts V and VI is DENIED. The Court adopts for other reasons the recommendations in the R & R as to Counts VII and VIII; thus, Johnson and Stauffer's Motion to Dismiss Counts VII and VIII is GRANTED in part and DENIED in part. The Court adopts for other reasons the recommendation in the R & R as to Count X; thus, Richard Robbins' Motion to Dismiss Count X of the Complaint is GRANTED in part and DENIED in part. The Court adopts for other reasons the recommendation in the R & R as to Count XI; thus, Russell Robbins' Motion to Dismiss Count XI of the Complaint is GRANTED in part and DENIED in part. The Court adopts the recommendation in the R & R as to Count XIII; thus, Johnson and Stauffer's Motion to Dismiss Count XIII of the Complaint is DENIED.

Background

The Complaint includes the following allegations. Plaintiff, Madeline Nickum. ("Nickum"), was hired on June 19, 1993 as Police Chief of the Village of Saybrook ("Village") by appointment of the then Village President with consent of the Village Board. (Complaint, ¶ 12). Upon commencing her employment, Nickum was given a copy of the Village's Law Enforcement Manual ("Manual") adopted by the Village Board as "binding" on September 12, 1988. Id. at ¶ 26. Nickum began her employment with the Village on June 19, 1993. Id.

Concerning officer discipline, the relevant sections of the Manual state the following:

  ¶ 706. Any officer . . . who violates any provision
  of the rules and regulations or provisions of the
  Village regarding law enforcement personnel . . .
  or who is guilty of un-officer like conduct, or who
  is incompetent to perform is [sic] duties is
  subject to appropriate disciplinary [action].
  ¶ 707-An officer shall be subject to reprimand,
  reduction in pay, suspension from duty, dismissal,
  or any one or more of the foregoing penalties
  according to the nature and aggravation of his
  offense.
  ¶ 708. Whenever disciplinary action is taken or
  recommended . . . a written report must be
  submitted immediately . . . containing the
  following information:
  (a) The full name and rank of the person being
  recommended for disciplinary action.
  (b) The date(s), time(s), and location(s) of the
  misconduct.
  (c) The section(s) number of this manual violated
  or a common description of the infraction if not
  covered in a section of this manual.
  (d) A complete statement of the facts of
  misconduct.

(e) The punishment imposed or recommended.

  (f) The written signature of the mayor. ¶ 709. When
  the investigation of any infraction has been
  completed, a copy of the facts including the
  recommended disciplinary action will be given to
  the offending officer. This report must include the
  rule or regulation the member is alleged to have
  violated, and the facts uncovered to substantiate
  the charge.

(Complaint at Ex. 2).

On June 14, 1995, Nickum, acting in her capacity as the Village's Police Chief, placed Danny Tomlinson ("Tomlinson") under arrest for driving under the influence of alcohol. Id. at ¶ 13. Tomlinson was also charged with resisting arrest and aggravated battery against Nickum. Id. Tomlinson is married to the niece of Ronald Stauffer ("Stauffer"), the Village President. Id. at ¶ 14.

On December 23, 1995, citizen Dwayne Kinsell told Nickum that citizen Lorraine Kingsley ("Kingsley") and citizen Norma Roth were overheard and recorded on his police scanner discussing a plan to defraud Country Companies Insurance Company by adding a fraudulent statement to an existing insurance claim. Id. at ¶ 415. He then gave Nickum the tape recording of their conversation ("the tape"). Id. Nickum sought the advice of Terri Dimmick ("Dimmick"), a McLean County Assistant State's Attorney, regarding what she should do with the tape. Id. at ¶ 16. Dimmick advised Nickum to use her discretion. Id. Follow this meeting, Nickum met with Sheriff Michael Emery, and they approached Kingsley with the tape. Id. at ¶ 17. Upon exposing the existence of the tape to Kingsley, Nickum gave her the tape recorded conversation and suggested to her that she amend her insurance claim. Id.

On January 25, 1996, the Federal Bureau of Investigation ("F.B.I.") investigated a report they had received concerning eavesdropping techniques employed by the Village Police Department. Id. at ¶ 18. After the F.B.I. finished its investigation, the United States Attorney's office concluded that Nickum had violated no federal laws in her handling of the tape. Id. at ¶ 19. In May of 1996, a similar finding concerning possible violations of state law was reported by the McLean County State's Attorney's office, the Illinois Attorney General's office, and the Illinois State Police. Id. at ¶¶ 20-22.

At several Village Board meetings in the spring of 1996, members of the Village community, including Rudy Johnson ("Johnson"), a Trustee of the Village, Thomas Craig ("Craig"), Richard Robbins, Russell Robbins, and Karen Hawthorne ("Hawthorne"), voiced concerns that Nickum had been involved in incidents of illegal eavesdropping while employed by the Village, had violated suspects' civil rights, and had committed perjury during prior employment as a police officer. Id. at ¶¶ 48, 65. The Complaint alleges that prior to these meetings, Stauffer, Johnson, Craig, Russell Robbins, Richard Robbins, and Hawthorne conspired to make allegations at the meetings which they knew or had reason to know were false as well as to execute a campaign against Nickum in order to promote her dismissal. Id. at Counts VII-XII. Stauffer presided over the subsequent Village Board meetings, acting in his capacity as Village President. Id. at ¶ 49.

On April 30, 1996, Stauffer made the decision to prohibit Nickum from making arrests and patrolling or engaging in any other activity normally associated with police work. Id. at ¶ 59. Subsequently, she was told to refer all police-related matters to the McLean County Sheriff's Department. Id. at ¶ 60.

On May 14, 1996, Stauffer "published a `Charge' against Nickum" ("charge") and presented it to the Village Board. Id. at ¶ 44. The charge stated that Nickum should be dismissed because she "had lost the public trust and confidence as well as the respect of and credibility with a great number of the citizens of the Village of Saybrook," leading to an alleged concern about the safety of both Nickum and the residents of the Village. Id. at ¶ 60. Nickum was not given a chance to respond to these allegations. Id. at ¶ 61. On May 20, 1996, the Village Board voted to approve Stauffer's charge and subsequently dismissed Nickum pursuant to the Municipal Code of the Illinois Statutes, 65 ILCS § 5/3.1-35-10.*fn1 Id. at ¶ 24. Her dismissal took effect on May 31, 1996 at 11:59 p.m. Id. at ¶ 45.

Stauffer "announced" that the Village would not pay Nickum her salary for the two weeks between May 14, 1996, the date of the charge, and May 31, 1996, the date of her dismissal. Id. at ¶ 90. Nickum received a check on June 3, 1996 from the Village stamped "paid in full." Id. at ¶¶ 88-89. The check included a note stating that the check represented Nickum's regular bi-weekly pay and was intended to be in full satisfaction of the Village's obligation to her. Id. at ¶ 89.

Nickum filed this suit on July 17, 1996. Defendant Richard Robbins filed a Motion to Dismiss Count X of Nickum's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant Russell Robbins filed a similar Motion to Dismiss regarding Count XI. The Village filed a Motion to Dismiss Counts I, III, IV, and portions of Count II. Defendants Stauffer and Johnson filed a Motion to Dismiss Counts V, VI, VII VIII, and XIII again pursuant to Federal Rule of Civil Procedure 12(b)(6).

Discussion

I. Standard of Review

In resolving a motion to dismiss, this Court must consider all well-pled facts as true and must draw all inferences in favor of the non-moving party. Bontkowski v. First Nat. Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993), cert. denied, 510 U.S. 1012, 114 S.Ct. 602, 126 L.Ed.2d 567 (1993). In ruling on a motion to dismiss, courts consider whether relief is possible under any set of facts that could be established consistent with the allegations in the Complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). This Court will dismiss a claim only if it is beyond doubt that no set of facts would entitle the Plaintiff to relief. Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir. 1993).

II. Counts of the Complaint

A. Breach of Contract

Under Illinois law, the presumption of at-will employment is rebuttable upon a showing of contractual rights created by an employee ...


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