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Bernero v. Village of River Grove

United States District Court, N.D. Illinois, Eastern Division

June 22, 2018

RAYMOND BERNERO, Plaintiff,
v.
THE VILLAGE OF RIVER GROVE, a municipal corporation, and LYNN BJORVIK, in her official capacity, Defendants.

          MEMORANDUM OPINION AND ORDER

          MARY M. ROWLAND, UNITED STATES MAGISTRATE JUDGE.

         After a thirty-three year career working for the Village of River Grove, Plaintiff Raymond Bernero (“Bernero”) was terminated in August 2016. He claims that his termination was in retaliation for disclosing public corruption and other wrongful conduct by the Village's lawyers and other employees. Bernero filed a two-count complaint against Defendants the Village of River Grove (“Village”) and Lynn Bjorvik (“Bjorvik”) (collectively, “Defendants”), alleging violations of his First Amendment rights and the Illinois Whistleblower Act. Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). For the reasons stated herein, Defendants' Motion to Dismiss is DENIED.

         I. BACKGROUND

         In his Second Amended Complaint (Dkt. 28) (“SAC” or “Complaint”)[1], Bernero alleges he was first employed by the Village as an on-call firefighter and EMT until 1997 when he became Trustee of the Village. In 2006, he became Economic Development Director, a position he held until August 31, 2016, when he was terminated. (SAC ¶¶ 7-9).

         In 2003, Bernero was informed by a developer that Village Attorney Harry Smith (“H. Smith”) was simultaneously representing the seller of a bar and the Village Zoning Board of Appeals, which was responsible for approving the purchase agreement for the bar. Bernero emailed the Village Board, H. Smith, and Bart Smith (“B. Smith”, H. Smith's son and the Village's corporate counsel, collectively they are referred to as the “Village Attorneys”) and requested that H. Smith disclose whether he was representing the seller. H. Smith did not respond but B. Smith later confronted Bernero and accused him of harassing his father. (SAC ¶¶ 18-21, hereafter “Bar Sale Conflict”[2]).

         In 2009, Bernero noticed that Allstate Insurance agency became a tenant in H. Smith's commercial building without the necessary business license or permits. In July 2009, at a Zoning Board of Appeals hearing, Bernero publicly questioned H. Smith about how Allstate became a commercial tenant without the proper permits and publically questioned the Smiths' conduct in ignoring the Village Code for monetary gain. (SAC ¶¶ 30-38, “Allstate Tenant Issue”).

         In February 2011, Bernero discovered that a contract between the Village and AT&T, which had been initiated in 2007, had not been finalized until 2011. (In 2007, Bernero worked on the AT&T deal and B. Smith was tasked with completing the contract). Bernero notified the Village President and other Trustees that the contract was not completed until 2011 and as a result the Village missed out on approximately $30, 000 in revenue in 2010. (SAC ¶¶ 22-29, “AT&T Contract”). In 2013, Bernero disclosed to the Village Board that the Village Attorneys failed to apply for tax exempt status on certain land, costing the Village tens of thousands of dollars. (Id. at ¶¶ 63-69, “2013 Tax Issue”).

         In February 2015, Bernero was approached by a Special Agent of the Federal Bureau of Investigation (“FBI”). Bernero agreed to meet with the agent and answered questions about the Village. The agent asked him to identify individuals in photographs including two photographs of Village employees and to wear a recording device to help gather evidence. Bernero declined the request to wear a recording device. Bernero told Bjorvik about his meeting with the FBI (though not about the photographs) and Bjorvik, on information and belief, told the Village Attorneys about Bernero's meeting with the FBI. (Id. at ¶¶ 39-41).

         In the Spring of 2015, Impact Auto Body (“Impact”), a mechanic repair shop, began parking damaged vehicles on public property in violation of Village ordinances. Bernero attended a meeting with then-Village President Marilynn May (“May”) and Village Police Chief Rodger Loni (“Chief Loni”). May asked Chief Loni to explain why tickets were not being issued to Impact and Chief Loni responded that it was being taken care of, but Bernero later learned that Chief Loni instructed another officer to visit Impact but not to give any tickets. In May 2015, Bernero considered not renewing Impact's license and requested a meeting with Impact's owner, Mr. Kuzmicki. Village Detective Villagomez told Bernero that Mr. Kuzmicki was a “good guy” and Bernero should not cause any trouble for Mr. Kuzmicki. Villagomez asked Bernero to accompany him to meet with Mr. Kuzmicki at his body shop but Bernero insisted any meeting take place at Village Hall. When Bernero later met with Mr. Kuzmicki, Mr. Kuzmicki told Bernero that he had never received a ticket, the Village police must like him and he “takes care of the police.” Mr. Kuzmicki offered Bernero a $500 restaurant gift card, which Bernero refused.

         Bernero told May, then-Trustee Bjorvik and the Village Comptroller about Mr. Kuzmicki's offer. In response, May called Chief Loni and demanded that all illegally parked cars at Impact be removed immediately. Bernero learned from the manager of a self-storage facility that Detective Villagomez asked him to store the cars at his facility; after refusing initially, the manager agreed because he felt intimidated. Bernero told May about these events. May called Chief Loni into her office with Bernero. When Bernero explained the events related to the self-storage, Chief Loni abruptly left. Bernero believed Chief Loni thought he was wearing a listening device for the FBI. Bernero disclosed the events related to Impact and Mr. Kuzmicki, the Village police department's failure to issue tickets to Impact, the storage of the cars, and the conversation with Chief Loni to the FBI. (Id. at ¶¶ 42-61, “Impact Auto Events”).

         In Spring 2016, Bernero learned that H. Smith applied for tax exempt status on land that he said was used for municipal purposes but was actually used for commercial purposes. The lease H. Smith drafted was grossly under fair market value for the land and required the tenants to pay property taxes. Bernero disclosed the existence of the lease and improper tax exemption publicly. (Id. at ¶¶ 74-78, “Improper Tax Exemption”).

         In June 2016, at a Financial Strategy Group meeting, Bernero became aware of an Illinois Department of Insurance report about the Village's police pension fund. The report concluded that Chief' Loni's pension violated a state statute, and pointed to an ordinance that B. Smith had authored as evidence of the violation. Bernero publicly addressed this issue. (Id. at ¶¶ 70-73, “Pension Violation”).

         In mid-June 2016, after May resigned as President for personal reasons, B. Smith advised the Village Board to elect Bjorvik. The Village Board elected her as acting President. Later that month, Bjorvik requested that Bernero submit a report of his projects, points of contact and other details, and told him that B. Smith had drafted the document seeking Bernero's report. Bernero provided the information and asked why he was the only Village employee required to submit a report. Bjorvik replied that she had lost a great deal of trust in him in recent weeks because of an email Bernero sent the Mayor of Rosemont which she believed contained disparaging remarks about her and her husband. Bjorvik had not seen the email and declined Bernero's offer to read it. (Id. at ¶¶ 79-88).

         At a Fourth of July celebration in 2016, Bernero discussed the Village Attorneys' misconduct with David Guerin. (Guerin was rumored to be interested in running for Village President at the next election, which he did and is now the President.) Guerin, who was friends with the Village Attorneys, defended them. On July 7, 2016, the Village Board presented its proposed 2016-17 budget which included the salary for Bernero's position as Economic Development Director. On July 16, 2016, Bernero spoke again to Guerin and apologized for discussing politics at a celebratory event. Guerin told Bernero that if the Village ...


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