Narducci v. Village of Bellwood

Decision Date11 August 2006
Docket NumberNo. 01 C 1425.,01 C 1425.
Citation444 F.Supp.2d 924
PartiesNicholas NARDUCCI, Plaintiff, v. VILLAGE OF BELLWOOD, et al., Defendant.
CourtU.S. District Court — Northern District of Illinois

John Edwin Partelow, Chicago, IL, for Plaintiff.

Thomas George Dicianni, Ellen Kornichuk Emery, Ancel, Glink, Diamond, Bush, Dicianni & Krafthefer, P.C., Darcy L. Proctor, Keri-Lyn Joy Krafthefer, Robert K. Bush, Ancel, Glink, Diamond, Bush, Dicianni & Rolek, P.C, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

Nicholas Narducci ("Narducci") has brought a four-count class action Complaint against the Village of Bellwood ("Bellwood" or "Village"), Bellwood's Police Chief Gregory Moore ("Moore"), Bellwood's Mayor Donald Lemm ("Lemm") and Unknown Trustees and Employees of Bellwood, charging them with violations of the Fourth Amendment,1 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), of the Illinois Eavesdropping Act ("Eavesdropping Act") and of the Illinois common law duty to refrain from unlawful intrusion into the seclusion of another. After this Court had granted class certification under Fed. R.Civ.P. ("Rule") 23 and dismissed Narducci's Title III claim against Bellwood, all defendants filed a Rule 56 motion for summary judgment on the remaining claims. For the reasons articulated below, that motion is denied in part and granted in part.

Summary Judgment Standards

Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).2 For that purpose courts "consider the evidentiary record in the light most favorable to the nonmoving party . . . and draw all reasonable inferences in his favor" (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir.2002)). But to avoid summary judgment a nonmovant "must produce more than a scintilla of evidence to support his position" that a genuine issue of material fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir.2001)) and "must set forth specific facts that demonstrate an issue of triable fact" (id.). Ultimately summary judgment is appropriate only if a reasonable jury could not return a verdict for the nonmovant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). What follows is a summary of the facts viewed in the light most favorable to Narducci, but only so long as those facts are supported by record evidence.3

Background

Bellwood is an incorporated village in Cook County, Illinois. Its day to day operations are overseen by a Mayor acting much "like a CEO" (D.St.¶ 120), while policy is set by both a six-member Board of Trustees ("Board") and the Mayor, who serves as Board President (id. ¶¶ 118-19, 120, 122). Beneath the Mayor and the Board, Bellwood's governance is divided into various departments such as the Fire, Police and Finance Departments, each with its own head (id. ¶¶ 120, 125, 137). Each department head reports to the Mayor, who has the ultimate authority to direct and supervise them, including veto power over changes they might otherwise institute in operating procedures or policies (id. ¶¶ 123-25).

In the Finance Department the Village comptroller serves as department head, and the department is further overseen by a Finance Committee, which comprises a chairman and two rotating members, all drawn from the Board and appointed at the Mayor's discretion (D. St. ¶¶ 31, 88-89, 138; N. Add. St. ¶ 168). Some Finance Department policies and procedures can be approved by the Mayor alone, while others such as "budgetary things" must be brought before the Board (D.St.¶¶ 141-44).

Board meetings are held twice a month (D.St.¶ 89), often preceded by informal "pre-board meetings" among the Board the Mayor, the Village attorney and the Village clerk (id. ¶¶ 131, 133). Those informal sessions are normally just "preparatory" meetings used to clarify agenda items, and no votes are taken or formal approvals given until the formal meeting (id. ¶ 134). In at least some instances, however, Village policies are set during the "pre-board meetings" (id. ¶ 109; N. Add. St. ¶¶ 166-67).

In 1990 Bellwood began to operate a 911 emergency phone system, overseen by the Bellwood Emergency Telephone System Board ("Emergency Board")(Gary Modrow ("Modrow") Dep. ¶¶ 48-49). Phone calls on the lines attached to the emergency system were recorded, with the recording equipment being kept in the Police Department and managed by the "service commander" (N. Add.St.¶¶ 31-32).

In 1993 Joe Lagen ("Lagen") was Bellwood's comptroller (D.St.¶ 30), Robert Frascone ("Frascone") was its Chief of Police (N. Add.St.¶ 147), Paul Keller ("Keller") was a trustee and served as chair of the Finance Committee (D.St.¶¶ 84, 94), Modrow was the Police Department's service commander (N. Add.St.¶ 34) and Lemm began to serve his first term as Mayor (D.St.¶ 117). That cast of characters was in place when, sometime before January 4, 1994, Finance employees began to be threatened by irate customers (D.St. ¶¶ 47-52). In response Lagen came to a "pre-board" meeting to propose that calls on the Finance Department lines also be recorded (id. ¶¶ 97, 101; N. Add. St. 11173). Lagen added as a secondary reason that "employees in the finance department were on the phone too much making personal calls" (D.St.¶ 54). Lemm and the entire Board, among others, were present at that meeting (N. Add.St.¶ 174). There the Board authorized Lagen to carry out the proposed recording of calls (D. St. ¶¶ 108-110; N. Add. St. ¶ 179). Lemm also approved the plan (D.St¶ 171) and also supported the taping, at least in part because his office had received complaints about disrespectful and unprofessional behavior by Finance Department employees (id. ¶¶ 157-59).

Next the Board requested that the "Emergency Board" connect the Finance Department lines to the 911 recorder, and the Emergency Board approved that request (N. Add.St.¶¶ 68-69). Lagen then had his secretary send Modrow a January 4, 1994 memo instructing Modrow to begin recording five specific Finance Department lines (D.St.¶¶ 65-66). Within 30 days the lines were connected to the 911 recorder overseen by Modrow (id. ¶ 59; N. Add. St. ¶¶ 63-65). No notice of the recordings was posted on or near the phones, and while initially there may have been an audible beep on the recorded lines, it was eventually removed and Narducci never heard one (N. Add.St.¶¶ 19, 50, 78, 159, 181, 203). No one was assigned to monitor those recordings, and Lagen himself never listened to any of them (D.St. ¶¶ 61-62). Nor did Lemm ever follow up with Lagen or anyone else as to the effectiveness of the recordings (id. ¶ 179).

In March 1996 Moore replaced Frascone as Police Chief (D.St.¶ 257). As Chief Moore had the power to "enact police policies and procedures" and to instruct Police Department employees to do specific tasks (N. Add.St.¶¶ 33, 38). At some point before taking office, Moore had been told that Finance Department phone calls were being recorded (D.St.¶ 267). Once he became Chief, even though he was unaware of any warrant having been obtained, he took no steps to verify that such taping was going on, nor did he act to stop the taping until instructed to do so by the comptroller (id. ¶¶ 270, 286; N. Add. St. ¶ 36). While Lemm and Frascone claim that Moore had the power to stop the taping (N. Add.St.¶¶ 109, 157), Moore contends that he did not (D.St.¶¶ 274, 280-81).4

In 1997 or 1998 Narducci replaced Lagen as Bellwood's comptroller (D.St.¶¶ 1-2). During Narducci's tenure he received no complaints of rude or unprofessional behavior by Finance Department employees, nor were there any reports of threats (N. Add.St.¶¶ 23-25). Narducci served as an independent contractor and worked at Bellwood two to three days a week, making phone calls from "wherever there was an open desk" (D.St.¶¶, 5-6). In addition to Bellwood-related calls, Narducci would also make private calls—including calls conducting confidential business with other villages for which he worked—using Finance Department phones as well as his cell phone (id. ¶¶ 14, 18; N. Add. St. ¶ 11). Narducci would generally make those calls in the "open area" of the Finance Department (D.St.¶ 18), but when making a confidential call he would move to a less congested area to ensure the privacy of his conversation (Narducci Dep. 58-59).

Narducci first became aware that calls on the Finance Department's phones were being recorded during a meeting with Modrow and Moore, among others, on February 28, 2000 (D.St.¶¶ 7-9). After that meeting Narducci informed two trustees that he believed the taping was illegal, notified the State's Attorney and the FBI and wrote a March 1, 2000 memo to Moore directing him to stop the recording (N. Add.St.¶¶ 10, 13-14). In the meantime Narducci continued to use those Finance Department phones for Bellwood business, but he used his cell phone for all confidential calls (D.St.¶¶ 19-20). When Narducci informed his other municipal clients that some of their phone calls had been recorded, many of those clients, like Narducci himself, were concerned about that breach in confidentiality (id. ¶ 18; Narducci Dep. 84-85, 91-92).

After receiving Narducci's memo, Moore instructed Modrow to disconnect the Finance Department phone lines from the recording equipment (D.St. ¶286). Moore understood the lines to have been disconnected sometime in March 2000, and to his knowledge they were never reconnected (id. ¶ 291). According to Modrow, however, the lines remained connected at least until he left Bellwood in February 2002 (N. Add.St.¶¶ 75, 161). On February 28, 2001 Narducci filed this action.

Unknown Trustees and Employees of Bellwood

Narducci's Complaint initially alleged wrongdoing not only by named defendants Moore, Lemm and Bellwood but also by "unknown trustees...

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