Irby-First Amended Complaint

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***EFILED***

Case Number 2021L 000077


Date: 4/21/2021 12:35 PM
Thomas McRae
Clerk of Circuit Court
Third Judicial Circuit, Madison County Illinois

IN THE CIRCUIT COURT FOR


THE THIRD JUDICIAL CIRCUIT
MADISON COUNTY, ILLINOIS

CEDRIC IRBY )
)
Plaintiff, )
)
v. ) Case No. 21 L 0077
)
METRO EAST SANITARY DISTRICT, )
METRO EAST SANITARY DISTRICT )
BOARD OF COMMISSIONERS and, )
RICK FANCHER, individually and as )
agents of Metro East Sanitary District, )
)
Defendants. )

FIRST AMENDED COMPLAINT

COMES NOW, Plaintiff Cedric Irby by and through his attorneys Loftus & Eisenberg,

Ltd., and for his cause of action against Defendants, states as follows:

1. The Metro East Sanitary District (“MESD”) is tasked with maintaining a complex

system of levees designed and built by the U.S. Army Corps of Engineers to protect thousands of

lives, homes, and jobs from potentially catastrophic floods. Accordingly, it is imperative that those

trusted with its operation are employed based on their merit. Unfortunately, the MESD has long

made employment decisions based on political affiliations at great risk to those living within its

jurisdiction and detriment of public trust in the government and morale of government employees.

2. Plaintiff Cedric Irby brings this lawsuit to rectify the injustice of political patronage

not only to him, but to the people living in the MESD’s boundaries. Irby, who was hired by and

associated with a Republican administration, was terminated from the MESD without cause,

notice, or opportunity to be heard, at the same meeting at which a new Democratic Executive

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Case No. 21 L 0077
Director was appointed by a newly Democratic-controlled MESD Board of Commissioners, in

violation of not only his employment contract, but his First and Fourteenth Amendment Rights.

3. The Supreme Court has long held that no matter the prevailing political party, “[t]o

the victor belong only those spoils that may be constitutionally obtained,” and many public

employment decisions based on party affiliation are unconstitutional. Rutan v. Republican Party,

497 U.S. 62, 64 (1990) (Republican patronage; citing Elrod v. Burns, 427 U.S. 347 (1976)

(Democratic patronage)). But as detailed in the Illinois Reform Commission’s 2009 Report,

“widespread abuse involving patronage hiring” remains. As Governor JB Pritzker noted in his

2020 State of the State Address, “[t]he old patronage system needs to die, finally and completely.”

This Action seeks to aid in that important endeavor.

Jurisdiction and Venue

4. Venue is proper in this court because this action involves the making and

performance of a contract with a public entity principally located in this county and the majority

of complained of acts were committed in this county, over which this Court has jurisdiction. 735

ILCS 5/2-103; 735 ILCS 5/2-209.

The Parties

5. Defendant Metro East Sanitary District (MESD) is a non-home rule Illinois sanitary

district formed pursuant to the Sanitary District Act of 1917, 70 ILCS 2405/0.1 et seq., and

organized under the Metro-East Sanitary District Act of 1974, 70 ILCS 2905 et seq., for the

purpose of developing, constructing, and maintaining hundreds of miles of ditches, levees, and

drainage systems for the Metro East area (the “District”), which includes Madison and St. Clair

Counties. The MESD is headquartered at 1800 Edison Avenue in Granite City, Illinois, and as of

December 2019 had a combined fund balance of $8,107,933, with the majority of revenue obtained

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Case No. 21 L 0077
from property taxes. The MESD owns approximately 2,776 acres and employs approximately 45

full-time employees. The MESD can sue and be sued in that name.

6. Defendant MESD Board of Commissioners (hereinafter sometimes referred to as

the “Board”) governs and operates Defendant MESD and has the authority to adopt, enforce, and

monitor all policies for the management and governance of the District. 70 ILCS 2905/3-1; 70

ILCS 2905/3-5.

7. Defendant Rick Fancher has served as the Executive Director of the MESD since

January 21, 2020. 70 ILCS 2905/4-2. During all relevant times, Defendant Fancher acted under

color of state law and resided in Madison County, Illinois.

8. At all times herein relevant, Plaintiff Irby resided in Glen Carbon in Madison

County, Illinois. Irby has dedicated his life to public service. After serving three years in the army,

Irby was discharged as a Specialist 4. He then served sixteen years as a correctional officer and

sergeant, thirteen years as Deputy Juvenile Officer, and about nine years as a public special

education school teacher. He worked for Defendant MESD from June 2018 until January 21, 2020.

Irby has never been a member of a political party.

Factual Allegations

9. The MESD regularly hires employees based on their party affiliation to the

detriment of the District. As State Representative Charlie Meier noted in a May 29, 2019,

statement, “for thirteen of the last sixteen years, MESD was operating under a deficit. It was

drowning in debt for years while the politically connected failed to make the necessary repairs to

adequately provide flood control in the sanitary district.”

10. The MESD has come under fire for its patronage hiring. A recent complaint alleges

that the MESD replaced Bob Shipley with Stephen Adler as executive director, and superintendent

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Case No. 21 L 0077
Walter Greathouse, Jr., with Doug Hulme “based on political affiliations” in 2017. Dunham v.

MESD et. al., No. 2020 L 001545, ❡❡ 4-5 (Cir. Ct. Mad. Cty. Nov. 2, 2020.) Defendant Fancher,

then maintenance superintendent for Madison County, “personally promised” the plaintiff that he

“would get his job back at MESD” once the Democratic Party regained control of the MESD. Id.

❡ 8.

11. The Executive Director is chief executive and administrative officer of the District.

70 ILCS 2905/4-2.

12. In 2018, Irby submitted a job application to the Madison County Administrative

Services Office in response to a public job posting. Based on his application, experience, and

multiple interviews, Administrative Services suggested Irby would be a good fit for an open

position at the MESD. Irby had not previously been involved in local political activities and did

not know anyone who worked for the MESD at the time.

13. On or about June 27, 2018, Adler hired Irby as a St. Clair County Deputy

Superintendent.

14. On or about January 17, 2019, Adler promoted Irby to St. Clair County

Maintenance Superintendent, and they entered into an employment agreement, attached as Exhibit

A and incorporated as if fully stated herein.

15. The employment contract included a description of Irby’s job duties.

16. Early in Irby’s employment at MESD, Irby’s foreman, Scott Hilmlan, told Irby that

he believed the MESD had only hired Irby because Irby was a “Black Republican.”

17. Irby met his individualized performance goals for 2019.

18. According to its audit, MESD operated at a budget surplus in 2019.

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Case No. 21 L 0077
19. On or about December 17, 2019, the MESD Board approved a 3% compensation

raise for Irby.

20. On or about December 31, 2019, the MESD Board voted unanimously to replace

Stephen Adler with Andrew “Andy” Economy as Executive Director.

21. The Board then entered into an employment agreement with Economy.

22. The agreement provided Economy “the contractual and legal authority to enter into

written employment contracts to employ a management team to support the operations of the

Metro East Sanitary District, including but not limited to the positions of Assistant Executive

Director, Superintendents and other management employees he deems necessary.”

23. The agreement further provided Economy “the sole and absolute authority to select

his management team, set their salaries, benefits and all other terms and conditions of their

employment, including but not limited to positions of Assistant Executive Director,

Superintendents and other management employees he deems necessary. The Board of

Commissioners shall be legally bound to honor and abide by all such employment contracts the

Employee enters into with any member of his management team and the Board of Commissioners

shall not have any legal right or authority to terminate, alter, modify or overturn the Employee’s

decisions related to his selection, compensation, benefits and all other terms and conditions of

employment the Employee establishes for members of his management team.”

24. The next day, January 1, 2020, an Illinois law that limited MESD’s executive

director contracts became effective. 70 ILCS 2905/3-3 (2020).

25. Economy then entered into an employment contract with Adler to become Chief

Deputy Executive Director and with Donald Sawicki as Deputy Executive Director.

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Case No. 21 L 0077
26. Economy presented Irby with a new employment contract offering Irby an annual

salary of $85,457.66 in addition to performance bonuses. The new term would run through

December 31, 2021, and would permit early termination only in specific circumstances, and

provided for 20 weeks’ severance unless Irby was terminated for misconduct.

27. On or about January 16, 2020, Irby signed that employment contract and began

performing under that contract. A true and accurate copy of the contract is attached as Exhibit B

and incorporated as if fully stated herein.

28. Irby’s duties were set forth in Addendum A to that agreement.

29. On or about January 21, 2020, the MESD replaced Economy with Fancher as

Executive Director and discussed the implications of that termination on Economy’s contract in

Executive Session.

30. According to the minutes of the January 21, 2020 MESD meeting, Fancher’s “First

order of business would be to remove Steve Adler, Don Sawicki and Cedric Irby as employees.”

The Minutes do not provide any reason for the termination of the three employees. The Board

unanimously concurred with Fancher’s employment decisions upon a roll call vote.

31. The same day, Fancher requested Irby report to the main MESD office to turn in

his keys, truck, and cell phone. Fancher informed Irby that the MESD board would make a final

determination on his exit compensation.

32. The MESD failed to pay Irby any severance owed under the employment

agreement. Ex. B § 6.

33. Fancher replaced Irby with Hillman (Irby’s former foreman), who is involved with

the Granite City Township Democratic Precinct Committeemen. Hillman’s annual salary was

$88,025.60 as of January 30, 2021, according to the MESD’s public disclosure.

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Case No. 21 L 0077
34. Fancher has previously run for office as a member of the Democratic party and

formed a political committee, Friends of Rick Fancher, for that purpose. He is active in the Granite

City Democratic Party.

35. Irby does not identify with any political party but has made publicly reported

contributions to Republican candidate Kurt Prenzler, whose campaign website seeks donations to

“combat the Democratic machine.”

36. Adler has previously run for office as a member of the Republican Party and formed

a political committee, Citizens for Stephen Adler, for that purpose.

37. On information and belief, Sawicki identifies as a Republican and would have

pulled Republican ballots in primary elections.

Defendants’ Policies and Widespread Practices

38. The wrongdoing described herein and which led to Plaintiff’s injuries stem from

policies and a practice of the MESD.

39. Said violations were the result of what is believed to be MESD widespread practice

of political patronage, which rewards supporters with promotions and jobs within MESD and

punishes those who do not agree with the prevailing political party.

40. The violations that caused Plaintiff’s injuries and the claims set forth in this

Complaint were also the result of MESD’s failure to intervene to prevent its Executive Director

from violating the law.

41. MESD’s failure to train, supervise, and discipline its officers and employees

effectively condones, ratifies, and sanctions the kind of misconduct alleged herein.

42. Constitutional violations such as those that occurred in this case are encouraged

and facilitated as a result of Defendants’ practices and policies.

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Case No. 21 L 0077
Plaintiff’s Damages

43. As a direct and proximate result of the misconduct herein described, Plaintiff lost

his employment and benefits as an employee of MESD, as well as suffered the embarrassment,

humiliation, and stigma associated with being terminated.

44. As a result of Plaintiff’s termination, Plaintiff’s reputation in the community has

been negatively impacted.

Count I
BREACH OF CONTRACT

45. Plaintiff Irby restates and incorporates paragraphs 1 through 44 of this Complaint

as if fully set forth herein.

46. MESD offered Irby employment as described in definite and certain terms in

Exhibit B.

47. Irby accepted that offer and signed the contract on or about January 16, 2020.

48. In consideration for the agreement, Irby began to perform under that contract in

exchange for compensation.

49. Irby performed all required contractual conditions.

50. MESD breached that agreement by, among other things, terminating Irby on or

about January 21, 2020, in violation of Section 5 of that agreement, which permits early

termination of the contract only in specific, non-applicable circumstances.

51. MESD provided Irby no reason or explanation for his termination.

52. As a direct and proximate result of that breach, Irby has suffered damages, as

described above.

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Case No. 21 L 0077
Count II
First Amendment Violation Under Section 1983
(vs. FANCHER, Individually, and as an agent of Defendant MESD)
53. Plaintiff restates and incorporates paragraphs 1 through 44 of this Complaint as if

fully set forth herein.

54. Section 1983 provides for a civil action against “every person who, under color of

any statute, ordinance, regulation, custom, or usage ... subjects or causes to be subjected any …

person ...to the deprivation of any rights, privileges, or immunities secured by the Constitution and

laws.” 42 U.S.C. § 1983.

55. Defendant Fancher, acting under color of state law as Executive Director of the

MESD, terminated Plaintiff’s employment and the Board concurred.

56. Defendants offered no explanation for terminating Irby despite being contractually

required to do so.

57. Defendants terminated Irby, along with Adler and Sawicki, for identifying with the

Republican Party rather than the Democratic Party.

58. Patronage practices, under which “public employees hold their jobs on the

condition that they provide, in some acceptable manner, support for the favored political party,”

are prohibited by the First and Fourteenth Amendments. Elrod v. Burns, 427 U.S. 347, 359 (1976).

“The threat of dismissal for failure to provide that support unquestionably inhibits protected belief

and association, and dismissal for failure to provide support only penalizes its exercise.” Id.

59. Political loyalty or affiliation is not a valid qualification or “appropriate

requirement for the effective performance of the” Superintendent position. Branti v. Finkel, 445

U.S. 507, 507 (1980).

60. Irby’s position did not substantially entail “the making of policy and thus the

exercise of political judgment.” Allen v. Martin, 460 F.3d 939, 944 (7th Cir. 2006).

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Case No. 21 L 0077
61. Irby’s position did not “g[i]ve them access to their political superiors’ confidential,

politically sensitive thoughts.”

62. Although his position was primarily ministerial, the discretion that Plaintiff did

exercise was channeled by professional, rather than political norms. Riley v. Blagojevich, 425 F.3d

357, 360 (7th Cir. 2005).

63. The MESD Board knew about the unconstitutional termination and took no steps

to intervene.

64. As a direct and proximate result of the wrongdoing of Defendant Fancher, Irby has

suffered damages, as described above.

Count III
Due Process Violations Under Section 1983
(vs. FANCHER, Individually, and as an agent of Defendant MESD)

65. Plaintiff restates and incorporates paragraphs 1 through 44 of this Complaint as if

fully set forth herein.

66. Irby had a protected property interest in his continued employment at the MESD

through December 31, 2021, under his employment contract. (Exhibit B.)

67. Plaintiff was denied adequate notice of the charges against him, an explanation of

the evidence, and an impartial hearing with the opportunity to explain his side of the story.

68. Plaintiff was denied a pre-termination opportunity to address any asserted grounds

or reasons for his termination.

69. Plaintiff was denied notice that his termination would be considered at the Board

hearing on January 21, 2020; adequate explanation of the charges against him; and an impartial

full and fair hearing before final action was taken.

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Case No. 21 L 0077
70. Defendant Fancher, under color of law, was personally involved in the denial of

Plaintiff’s Constitutional rights.

Count IV
Illinois State Law Claim for Retaliatory Discharge
(vs. FANCHER, Individually, and as an agent of Defendant MESD)

71. Plaintiff restates and incorporates paragraphs 1 through 44 of this Complaint as if

fully set forth herein.

72. Defendant Fancher discharged Plaintiff in retaliation for Plaintiff exercising his

rights to speech and association with the Republican Party.

73. Said retaliation is in direct conflict with Illinois Constitution Art. I, Secs. 2, 4-5,

and the First Amendment to the United States Constitution.

74. Defendant Fancher was acting as an agent of Defendant MESD when he terminated

Irby’s employment.

75. As a direct and proximate result of the wrongdoing of Defendants, Plaintiff

sustained and continues to sustain damages, including lost wages, impairment of future earning

capacity, lost benefits, emotional distress, humiliation, personal indignity, and injury to his

reputation.

WHEREFORE, Plaintiff respectfully requests that this Court:

1. Enter a judgment in his favor and against Defendants jointly and severably;

2. Order Plaintiff’s reinstatement with full seniority and benefits, retroactive to the

date of Plaintiff’s discharge;

3. Award Plaintiff make-whole relief including: (1) back pay and all benefits to

include compensation sufficient to fully restore his IMRF retirement; (2)

compensatory damages for his humiliation and mental and emotional distress; (3)

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Case No. 21 L 0077
punitive damages against the individual defendants; (4) interest on compensatory

damages at a rate set by law; and (5) costs and attorney’s fees; and

4. Grant Plaintiff such other and further relief as this Court deems just and proper.

JURY DEMAND

Plaintiff, CEDRIC IRBY, hereby demands a trial by jury.

Respectfully Submitted,

CEDRIC IRBY,

By: /s/ Gail S. Eisenberg


Gail S. Eisenberg
Gail S. Eisenberg
David A. Eisenberg
Loftus & Eisenberg, Ltd.
161 N. Clark, Suite 1600
Chicago, Illinois 60601
T: 312.899.6625
gail@loftusandeisenberg.com
david@loftusandeisenberg.com
Attorney No. 6308951
Attorney No. 6292764

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Case No. 21 L 0077
Exhibit A
Exhibit B

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