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Powers v. Richards

June 20, 2006

ROBERT POWERS, PLAINTIFF,
v.
GEORGE E. RICHARDS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on the Defendants' Motion for Summary Judgment (d/e 37). Plaintiff Robert Powers was discharged as Executive Secretary of the Illinois Civil Service Commission (Commission) in May 2003. He claims that the Defendants discharged him because of his political affiliation in violation of his First Amendment rights. He also alleges that he was denied his property interest in his job without due process. The evidence presented shows no violation of Powers' constitutional rights. The Motion for Summary Judgment is therefore allowed.

STATEMENT OF FACTS

From August 16, 2002, to October 1, 2002, Powers was the Deputy Director of the Illinois Department of Central Management Services (CMS). Illinois Governor George Ryan's term in office was about to end, and Governor Ryan was not running for re-election. Governor Ryan, a Republican, had appointed a number of state employees to four-year term appointments during his administration. Under Illinois law, certain positions may be filled for four-year terms. These employees cannot be fired during the terms except for cause. At the end of the terms, these employees may be terminated or renewed for any reason. 20 ILCS 415/8b-18 & 8b-19.

Several of Governor Ryan's term appointees had terms that were scheduled to end shortly after the new governor would come into office. The new governor then would decide whether to keep the Ryan appointee or pick someone else for each such position. The Defendants allege that Powers and others in the Ryan administration participated in a scheme designed to extend these Ryan employees' terms, and so deny the new governor the ability to fill these positions. Under the scheme, each affected term employee resigned his or her term and took another position in government that was not a term position. The employee stayed in the new position for approximately four days. Thereafter, the employee returned to his or her prior position under a new four-year term appointment made during the Ryan administration. The new governor would not be able to fill these positions when he took office in early 2003 because the "new" term appointments for these Ryan employees would last until September 2006. See Memorandum in Support of State Officials' Motion for Summary Judgment (d/e 38) (Defendants' Memorandum), Exhibit 2, Affidavit of George Richards (Richards Affidavit), attached Exhibit A, Memorandum of Tom Londrigan (Londrigan Memo).

The Defendants claim that Powers fraudulently executed personnel documents as part of this scheme. Between September 6, 2002, and September 13, 2002, Powers signed in the signature box labeled "Director of CMS" on Personnel Action Forms (CMS-2s) for term employees Frank Cavallaro, Susan Gowen, and Lori Skinner. The Defendants claim that Powers executed these documents knowing that the CMS Director Michael Schwartz had refused to sign the documents and had refused to authorize the personnel actions. Richards Affidavit, attached Exhibit C, Memorandum of H. Edward Wynn (Wynn Memorandum). Powers claims that Director Schwartz approved of the personnel actions reflected in the documents and directed that someone in the Governor's office sign them on his behalf. Powers states that his immediate supervisor Diane Ford ordered him to sign the documents in Director Schwartz's signature boxes. Memorandum of the Plaintiff, Robert Powers, in Opposition to the Defendants' Motion for Summary Judgment (d/e 41) (Plaintiff's Memorandum), Exhibit 1, Affidavit of Robert Powers (Powers Affidavit), ¶ 13-14.

Beginning October 1, 2002, Powers became the Executive Secretary of the Commission. The Commission is a bipartisan body established to review personnel decisions to ensure that state civil service employees are afforded the rights and protections of the Illinois Personnel Code and related rules. 20 ILCS 415/7a, 415/10. See Plaintiff's Memorandum, Exhibit 4, History of the Illinois Civil Service Commission. As the Executive Secretary, Powers had extensive authority to formulate and implement policy for the Commission. The duties of the Executive Secretary include establishing or approving broad basic policies of the Commission. The Executive Secretary also advises the Commission on policy issues and executes the decisions of the Commission. The Executive Secretary makes all final administrative decisions for the Commission. The Executive Secretary also has the authority to interpret the intent of the Illinois Personnel Code for state officials. The Executive Secretary also represents the Commission at meetings, conferences and other events. Defendants' Memorandum, Exhibit 5, Position Description for Executive Secretary.

On April 14, 2003, the newly elected Illinois Governor Defendant Rod Blagojevich, a Democrat, recommended to the Commission that Powers should be fired because of his alleged involvement in the scheme to extend the terms of Ryan appointees. Richards Affidavit, ¶ 3. On April 15, 2003, the Governor's legal counsel, Defendant Thomas Londrigan, sent a letter to the Commission outlining the allegations against Powers. Id., ¶ 4. On April 17, 2003, the Commission met in executive session and decided to place Powers on administrative leave with pay.

Edward Wynn, General Counsel of CMS, then investigated the allegations. Wynn provided the Commission with an investigative report dated May 14, 2003. His report identified the CMS-2s that Powers had signed in the Director's signature box. Wynn stated that his investigation established that Powers did not have authority to sign on behalf of Director Schwartz. Wynn also concluded that Schwartz had refused to sign or approve the CMS-2s, and Powers knew this at the time he signed them. Wynn concluded that this conduct strongly supported terminating Powers as Executive Secretary of the Commission. Wynn Memo at 4-5.

On May 15, 2003, the Commission met in executive session and agreed to suspend Powers with pay. At the May 15, 2003, meeting the Commission authorized the Commission Chairman, Defendant George Richards, to hold a pre-disciplinary hearing and authorized Richards to impose discipline up to and including discharge unless Powers presented some exculpatory evidence in his defense at the hearing. Richards Affidavit, ¶ 8, Defendants' Memorandum, Exhibit 4, Illinois v. Powers, Illinois Civil Service Commission Docket No. DA-104-03, Transcript of Proceedings (Transcript) at 91-92.

On May 21, 2003, Richards sent Powers a letter notifying him of the charges against him and listing potential witnesses. The notice stated the first charge against Powers as follows:

1. On or about September 6, 2002 through September 13, 2002, you signed your name in the box labeled "Director of Central Management Services" on the Personnel Action Forms (CMS-2) for Central Management Services (CMS) employees Frank Cavellaro, Susan Gowen and Lori Skinner as though you were the Director of CMS. Your actions constitute an unlawful act under the Personnel Code in violation of Section 13 (20 ILCS Section 13). Specifically, you made a false statement, certificate or mark with respect to an appointment when you (1) were not authorized to sign the documents on behalf of the Director of CMS; (2) knew that the Director of CMS had not approved the transactions as required by the Personnel Rules; and (3) knew that, in the case of re-employment to the term position, the position had not been filled in compliance with Section 302.820(a) of the Personnel Rules. In the case of Frank Cavellaro, you altered the effective date of the CMS-2 "Reinstatement to Term Appointment".

Richards Affidavit, Exhibit D, May 21, 2003, letter.

On May 29, 2003, Richards held the pre-disciplinary hearing. At the hearing, Richards told Powers the charges against him and explained the evidence against him. Richards Affidavit, ΒΆ 10. Powers explained to Richards at the hearing that Deborah Hensey, Bureau Chief of the Department of Personnel at CMS, told him that Schwartz had approved the transactions, but did not want to sign these particular forms personally because the transactions concerned CMS employees. Powers stated that Hensey told him that Director Schwartz had authorized someone in the Governor's office to sign the forms in his place, and Powers' ...


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