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Killman v. Martin

August 25, 2006


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


This matter comes before the Court on Plaintiff Edward Killman's Motion for Summary Judgment (d/e 26), Defendants Timothy Martin, Robert Millette, Brian Piersma and James Reinhart's Motion for Summary Judgment (d/e 28), and the Defendants' Motion to Strike Plaintiff's Exhibits "C" and "D" Attached to Plaintiff's Memorandum of Law in Support of His Motion for Summary Judgment (d/e 31). In April 1998, the Illinois Department of Transportation (Department) hired Killman. Killman was an active member of the Republican Party. Killman was hired as a Local Agency Liaison (Position) for District 9 of the Department. The Position's official job description states that the Position performs confidential duties for which political affiliation is an appropriate employment consideration. Killman, however, never performed any of the duties of the Position. Rather, he was assigned to work as the building and grounds manager for the Department's District 9 headquarters. After the Democrats won the Governor's office in 2003, the Defendants fired Killman. Killman now claims he was fired because of his political affiliation in violation of his First Amendment rights. He also claims that he was denied his property interest in his job without due process. The Defendants argue that the Position was one for which political affiliation is an appropriate consideration. The Defendants also argue that Killman was an at-will employee who had no property interest in his job. The Court agrees with the Defendants. The Motion for Summary Judgment is therefore allowed.

The Defendants also ask the Court to strike the Affidavits of Steve Babb and Donald Lingle attached to Killman's Memorandum of Law In Support of his Motion for Summary Judgment. The Defendants argue that the Affidavits are contradicted by Babb and Lingle's deposition testimony. The Defendants also argue portions of the Affidavits are not based on personal knowledge. The Motion to Strike is allowed in part. The Court will disregard any portions of the two Affidavits that are not based on personal knowledge or that contradict the deposition testimony of the affiant. Fed. R. Civ. P. 56(e); F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 634 (7th Cir. 2005).*fn1

The Court will Now Address the Cross-Motions for Summary Judgment


Killman has been a registered Republican all of his adult life. He is a Republican precinct committeeman and has been a Republican Party Chairman for Williamson County, Illinois. Killman worked on a contract basis for the state of Illinois from 1994 to 1997. In 1997, Killman met with Mike McCormick, an advisor to then Republican Governor Jim Edgar. McCormick assisted Killman in getting another six-month employment contract with a state agency. In March 1998, Killman's contract was about to expire. Killman contacted McCormick again. McCormick told Killman to report for work at the Department's District 9 Office on April 1, 1998. Killman was then hired into the Position. The hiring decision for the Position came from the Governor's Office. Memorandum of Law in Support of Defendants' Motion for Summary Judgment (d/e 29) (Defendant's Memorandum), Exhibit 4, Deposition of Brian Piersma at 17-18, 150-51.*fn2

The Position is classified as a Technical Advisor IV within the Department. Killman understood that he was being hired in a Technical Advisor IV position. His monthly salary was $2,810.00. Defendant's Memorandum, Exhibit 1, Deposition of Edward Killman at 73, and Exhibit 6, Personnel File of Edward Killman (Personnel File) at 14. All technical positions were exempt from compliance with the Illinois Personnel Code. Defendants' Memorandum, Exhibit 20, Personnel Policies Manual (Manual) at 2; 20 ILCS 415/4c(12).

The Position was also listed as "Rutan exempt" by the Department. The phrase "Rutan exempt" refers to the Supreme Court decision that held that, except in limited situations, a state could not consider political affiliation in hiring. Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). Pursuant to the Rutan decision, the state of Illinois began designating the limited types of jobs for which political affiliation was an appropriate consideration as "Rutan exempt." The Position was so designated. Thus, the Position was both Rutan exempt and exempt from the civil service restrictions and protections in the Personnel Code. As discussed later, such positions were referred to as "double exempt."

The official job description for the Position stated, in part: The environment of this position is characterized by extreme political sensitivity which complicates the task of developing and maintaining consistent and cooperative relations with local agencies. This position must continually be aware of the sensitive relationship between the district in the remainder of the state.

The greatest challenge of this position is to provide timely assistance to local agencies in obtaining MFT funds for their use. Typical problems include maintaining status of transportation projects to keep the general public and state legislators apprised of progress.

This position personally serves as district spokesperson on the issue of allocation of Motor Fuel Tax (MFT) funds. The incumbent develops and maintains liaison functions with local agencies and municipalities to assist in understanding and maximizing additional funds as they become available as well as the development of transportation projects. S/He serves as liaison with county board members seeking information and assistance on the funding situation for their area, informs state legislators of the status of transportation projects in their areas, and performs other duties as assigned by the District Engineer. Under general supervision, the incumbent has latitude to accomplish responsibilities of the position. Matters of a unique nature are referred to the supervisor with recommendations for solution. This position is constrained by departmental rules and regulations.

Internal contact includes the Executive Office and Bureau of Local Roads and Streets personnel. External contacts include the mayors, regional planning commissions, local agencies, state legislators and the general public to ensure effective coordination and monitoring of transportation programs and projects.

The effectiveness of this position is measured by the degree to which harmonious relationships between the state and local agencies are achieved and the degree to which limited available resources address the wide array of needs in District Nine. Defendants' Memorandum, Exhibit 7, Job Description for Local Agency Liaison.

The Department also has a Personnel Policy Manual (Manual). Defendants' Memorandum, Exhibit 20, Manual. The Foreword to the Manual stated, in part:

This manual is provided to better acquaint you with the personnel policies of the Illinois Department of Transportation and does not constitute a contract of employment in whole or in part. The Department reserves the right to add, amend or delete any benefit or policy stated herein at any time, except as otherwise committed by collective ...

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