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Bambenek v. Wright

October 2, 2007

JOHN C.A. BAMBENEK, PLAINTIFF,
v.
JAMES A. WRIGHT, EXECUTIVE INSPECTOR GENERAL, GILBERT R. JIMENEZ, DEPUTY INSPECTOR GENERAL FOR INVESTIGATIONS, AND DONNA MCNEELY, UNIVERSITY ETHICS OFFICER, DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

This case is before the court for ruling on the Motion to Dismiss (#35) filed by Defendant Donna McNeely and the Motion to Dismiss (#38) filed by Defendants James A. Wright and Gilbert R. Jimenez. Following this court's careful consideration of the arguments of the parties and the applicable legal standard, Defendants' Motions to Dismiss (#35, #38) are GRANTED.

FACTS

On June 14, 2007, Plaintiff, John C. A. Bambenek, filed his pro se Revised Verified Complaint (#31) against Defendants Wright, Jimenez and McNeely. Plaintiff stated that his civil rights claims arose under the United States and Illinois Constitutions, including the Fifth and Sixth Amendments to the U.S. Constitution, and that this court has subject matter jurisdiction under 42 U.S.C. § 1983. Plaintiff stated that Wright is the Executive Inspector General of the State of Illinois, Jimenez is the Deputy Inspector General for Investigations for the State of Illinois, and McNeely is the University Ethics Officer for the University of Illinois system. Plaintiff stated that each Defendant was being sued in his or her official capacity.

Plaintiff alleged that he is an employee of the University of Illinois at Urbana-Champaign.

His formal title is Research Programmer at the Coordinated Science Laboratory. This is an academic professional position. Plaintiff attached a copy of a Notification of Appointment to the Complaint. The Notification stated that it confirmed his appointment to the position from August 16, 2006 to August 15, 2007, at a specified annual rate of pay.

Plaintiff further alleged that, under the Illinois State Officials and Employees Ethics Act (5 Ill. Comp. Stat. 430/5-10), all employees of the State of Illinois and its agencies are required to undergo annual ethics training. Plaintiff alleged that this training is web-based and includes both a "teaching" section and a quiz to measure mastery of the material. In a footnote, Plaintiff stated that the "training" was 80 pages long. He also alleged that the "material has been substantially similar to previous years because the ethics law hasn't substantially changed." Plaintiff alleged that he completed this training on October 28, 2006. Plaintiff also alleged that the introduction to the online training reads as follows:

This course should take you approximately 30 to 60 minutes to complete.

Warning-The time that you spend and your activities in completing this course will be monitored. Your failure to read and review all of the program's subject matter may invalidate your Completion Certificate, result in your being required to complete additional ethics training and result in disciplinary action up to and including termination of employment and/or administrative fine.

Plaintiff alleged that, on December 15, 2006, Defendant Wright sent a letter to Plaintiff. Plaintiff attached a copy of the letter to his Complaint. The letter stated:

Our records for your online training activity indicate that you apparently spent only 8.78 minutes in reviewing the program's training materials prior to completing its review quiz. Contrary to instructions, you appear to have failed to carefully read and review the subject matter contained in the program's Introduction and three Lessons, and therefore you have not appropriately complied with the training as required by law. Your Certificate of Completion and record of compliance have therefore been invalidated.

You must complete the enclosed ethics training program and return its Certification form (last page of the program), bearing your signature, to your Ethics Officer no later than February 2, 2007. Your failure to complete this additional training on a timely basis, as well as any future failure to properly comply with this annual training requirement, will result in disciplinary action, up to [and] including termination of state employment. (Emphasis in original.)

Plaintiff also attached a copy of the Acknowledgement form he was required to sign. The form stated:

I have carefully read and reviewed the content of the Ethics Orientation for Noncompliant Employees of the Agencies of the Illinois Governor program and I understand its subject matter. Furthermore, I acknowledge that I am aware that ethics training is an annual requirement under the State Officials and Employees Ethics Act and that I am expected to complete such training when scheduled by the state. I also acknowledge awareness that my failure to appropriately complete such future annual training on a timely basis may result in disciplinary action, up to and including termination of state employment.

The form included a signature line and additional lines for employee identification information. The form stated, "To be properly credited for participating in Ethics Training, please submit this form via US Postal Mail" to the University Ethics Office.

Plaintiff stated that he sent a letter to Wright on January 5, 2007. Plaintiff attached a copy of this three-page letter to his Complaint.*fn1 In the letter, Plaintiff stated that Wright's allegations that he did not complete his ethics training and had violated the law were "both factually and legally without merit." Plaintiff challenged the Acknowledgement form, stating that it required him to assert that he, in fact, had committed a crime "without benefit of a hearing, trial, seeing the evidence, or otherwise challenging your claims." With the letter, Plaintiff submitted a revised form. In his Complaint, Plaintiff alleged that the revised form stated that Plaintiff "completed the [additional] training but did not include a statement of confession for a crime that the Plaintiff did not commit."

Plaintiff alleged that he had two telephone conversations with Jimenez on January 22, 2007. Plaintiff alleged that Jimenez informed him that there were no appeals, no challenges, and no hearings allowed in response to the non-compliance letters. Jimenez also informed him that his revised form was not acceptable. Plaintiff alleged that Jimenez further informed him that the Acknowledgement form, which Plaintiff alleged was a coerced statement of confession, must be signed by February 2, 2007. Plaintiff alleged that Jimenez specifically stated that failure to sign the Acknowledgement would result in disciplinary action "up to and including termination." Plaintiff alleged that Jimenez told him that the ethics law required "careful review of the material." Plaintiff alleged that Jimenez had stated in press interviews that Plaintiff and other employees were holding on to "cheat sheets." Plaintiff referred to a Chicago Sun Times article and provided a website citation for the article.

Plaintiff alleged that, because of his contract of employment, he has a "property interest of due process" and that his due process rights have been violated. Plaintiff also alleged that being decreed to have violated the ethics act "limits the Plaintiff's employment opportunities" and constitutes a violation of his "due process rights under the liberty interest as well." Plaintiff did not allege that his employment was actually terminated or affected in any way or that he actually signed any document to which he objected.

Plaintiff did allege, in Count 1, that, because Wright's letter was a summary declaration of guilt, he had been denied his right to notification of hearing, complaint and investigation. In Count 2, Plaintiff alleged that he was denied his right to a hearing. In Count 3, Plaintiff alleged he was denied his right to present evidence. In Count 4, Plaintiff alleged he was subjected to the enforcement of non-existent regulations because the instructions to the online training were "informational and not regulatory." In Count 5, Plaintiff alleged he was denied his right to see evidence. In Count 6, Plaintiff alleged he was subjected to an ex post facto regulation. In Count 7, Plaintiff alleged he was denied his right to appeal. In Count 8, Plaintiff alleged he was subjected to a vague regulation. In Count 9, Plaintiff alleged that the possible punishment to be imposed is beyond what is allowed in law. In Count 10, Plaintiff alleged that he was denied his due process right to the application of laws as written. In Count 11, Plaintiff alleged that his due process rights ...


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