Court filing claims former Village Manager was fired without cause.
Leave it to Elaine Johnson, columnist at the Downers Grove Sun, and founder/publisher/editor/reporter/chief bottle washer at DGreport to get the story and documents everyone other media outlet is missing. DG could do worse if she ever decides local hard news is her long term cup of tea.
Cara Pavlicek was officially fired on May 20th, 2008. So everybody got lawyered up by early July, over three months ago, and the suit was filed September 2nd. It appears none of our village attorney staff are directly involved in this, which feeds fuel to one original gossip thread. As you may recall, the Village Attorney reports directly to the council, not to the Village Manager. Pavlicek had acquired a reputation (deserved or not is outside the scope of this post) as a micromanager who wanted her say/way on everything.
William J. Arendt of the Law Firm of William J. Arendt & Associates, P.C, 7035 Veterans Blvd., Suite A, Burr Ridge, Illinois 60527 is acting as her attorney who filed the suit, as is Steven M. Hartmann of Freeborn and Peters LLP, 311 S. Wacker Drive, Chicago IL 60606, who made the original demands for payments in early July. If you’re counting, that’s two law firms that deal in employee litigation that will be billing in this on the plaintiff’s behalf, and expecting to be paid, so any court or out of court settlement will have to include paying these guys too.
The village appears to have retained John B. Murphey of Rosenthal, Murphey, and Coblentz, 30 N. LaSalle St. Suite 1624, Chicago IL, 60602, to act on their behalf. From looking around, hiring outside legals is fairly common, and this firm specializes in Municipal Law. That current Mayor Ron Sandack works at Guido & Franzen, located in the same building 14 floors up (suite 3010), is probably coincidence. That’s another partner at a downtown law firm with the billing clock running. This one is for sure on the village’s dime regardless of the outcome.
The suit hinges on whether the termination was with or without cause. Going to trial might force the village to cite, explain, and defend the decision. The village has been very tight lipped about that now challenged cause, so there is some expectation they would not get suddenly and willingly talky about it.
From Pavlicek’s contract, emphasis mine:
C. The severance provisions set forth in Section 3, Paragraph A of this Agreement shall not apply, however, in the following instances:
1. In the event the Manager is terminated for Cause. For purposes of this Section, “Cause” shall be defied as:
a) The commission of a material act of fraud affecting or involving the Village;
b) The conviction of any crime that involves moral turpitude or constitutes a felony in the jurisdiction involved;
c) Any willful and demonstrable failure to substantially perform the duties of the Manager (other than such failure resulting from mental or physical incapacity) or material breach of any of the Manager’s obligations under this Agreement, and the failure to timely cure such failure or breach after receipt of reasonable written notice from the Village Council; or
d) Something that the law and sound public opinion recognize as a good cause for her no longer occupying the position.
2. In the event the Manager voluntarily resigns her position with the Village.
Myself and others have parsed this before. a) and b) would require public arrest records being generated, which were decidedly not. d) would require either a recitation of what law would trigger good cause, or public input in order to form said sound public opinion (unless council assumed they correctly reflect the public’s opinion on this matter).
When reading the fairly standard Employment Contract the only Termination for Cause section that might have pertinence involves c) written notice to Pavlicek from council. That means a paper trail that might result in a poster featuring that written notice being shown a jury at the trial. One glaring omission to the contract is performance reviews. None are spec’d, and none were ever formally written up. Pavlicek did get a series of raises to her pay, a de facto positive performance review, at least twice during her employment, most recently less than a year prior to being fired. Positive performance reviews, even indirect via pay raises, cast some doubt on the subsequent termination for cause.
By asserting Pavlicek’s termination was for cause, council effectively bypassed the severance clause in the contract. This may prove to be a mistake, as severance sections are designed to prevent subsequent lawsuits.
There was also no Prehire Arbitration Agreement. Court litigation could last years, and run up legal bills on both sides to hundreds of thousands of dollars, and tie up resources in our local government. Arbitration of discharge, as predicated by a PAA can conclude inside of a year, and since time consuming discovery and motion practice is not generally permitted, it ends up being less expensive than a court trial.
There is also the possibility that by saying the termination was for cause, DG may have effectively defamed Pavlicek, negatively effecting her opportunities at future employment. By claiming cause, and if that cause is later proven and judged untrue by the court in a jury trial, it may be shown council intended to injure her in her profession by indicating that she was incompetent to perform her professional duties.
If the village settles, the proceedings would probably be discussed and approved in executive session, and the details of the out of court settlement kept confidential as part of the agreement. Any monies paid out would show up in the budget somewhere, probably with minimal explanation.
If the suit goes to trial a jury, regardless of the selection process, may be sympathetic to a working mom portrayed as being wrongly dismissed without cause, even though the village maintains cause exists. Both sides know this.
It remains to be seen what tack the village will take, but once a lawsuit is filed it is common practice to button up and decline any comment on an issue that is in litigation, so no one should expect much in the way of information from either side.