McHenry County Blog

First McHenry County Sheriff’s Deputy Bob Schlenkert was fired by Sheriff Keith Nygren and sued for reinstatement.

He won in Appellate Court, but Nygren stalled for months and months before authorizing payment of the back pay ordered paid.

Next came Zane Seipler, who won reinstatement from

• an arbitrator
• Judge Thomas Meyer’s affirmation of the arbitrator’s decision
• the 2nd Appellate Court

Still, probably because former GOP primary opponent Seipler has been such a pain in the butt to Nygren, the Sheriff is appealing the unanimous Appellate Court decision to the Illinois Supreme Court.

In the meantime, Deputy Sheriff Scott Milliman was put on administrative leave after his name and story surfaced on McHenry County Blog (see below for links to stories) in Seipler’s wrongful termination suit.

And he was fired in August.

Now, it’s Milliman’s turn to go on the offensive.

He has sued

• McHenry County (read us taxpayers),
• Sheriff Keith Nygren,
• Undersheriff Andrew J. Zinke,
• Commander John L. Miller,
• Bryan Krause,
• Sgt. Steven Schmitt and
• Lt. Ken Nielson

Why?

Milliman explains that he testified in a deposition in Seipler’s wrongful termination suit on November 23, 2010, about

• Excessive force used by McHenry County Deputy Sheriffs
• Retaliation suffered by Milliman and other deputy sheriffs for reporting unlawful conduct of other deputy sheriffs
• Allegations that Nygren was directly involved in ticket fixing in McHenry County
• Nygren’s acceptance of bribes intended to influence his actions as Sheriff
• Nygren’s involvement in a scheme to fraudulently procure SBA loans for individuals and share in the proceeds of the loans knowing that the loans were going to default
• Milliman’s cooperation with the FBI investigation into corruption in McHenry County
• Evidence of racial profiling by McHenry County Deputy Sheriffs
• General corruption within the McHenry County Sheriff’s Office

The Northwest Herald may have gotten a copy of the transcript, an unradacted copy of which was denied others, including McHenry County Blog, but Milliman’s summary above will give you an idea of its explosive contents.

Indeed there is information included above which was not revealed in the NW Herald article.

Milliman claims that Nygren put him on administrative leave in retaliation to what he said in the Seipler deposition.  In addition, Milliman was forced to undergo psychological testing. Milliman says that Miller provided false information to the psychologist “to influence the outcome of the testing.”

In addition, in violation of a Federal Court Order mandating secrecy of depositions, “Miller and Nygren” provide the evaluator a copy of it.

“Immediately prior to the deposition,”Milliman asserts that “Krause took away Milliman’s squad car and replaced it with an old, unsafe, dysfunctional squad car” in order “to intimidate him and influence his testimony.”

Milliman outlines April 4th and April 18th retrieval of his law enforcement equipment and personal items, the latter “in order to create a pretext for his termination.”

May 5th Milliman filed a complaint with the Equal Employment Opportunity Commission.

Then, Zinke entered the picture:

“In early August of 2011 defendant Zinke met with Milliman and told him that his deposition testimony had violated the general orders of the Sheriff’s Department and that he would be seeking Milliman’s termination.”

And, on August 17th, he was fired.  Milliman contends it was “in retaliation for Milliman’s deposition testimony, EEOC charges and association with Zane Seipler.”

Milliman states he has lost wages and suffered other economic loss and has suffered and continues to suffer extreme mental anguish, embarrassment and emotional distress.

Milliman contends his First Amendment Rights of Freedom of Speech and Association have been violated.

He says what he said “constitute(s) speech on matters of public concern” and that it resulted in retaliation, resulting in hia having “suffered a chilling effect upon the exercise of his constitutional right of freedom of speech.”

But that’s not all.

There is also a third count entitled,

CIVIL CONSPIRACY – State Law Claim

Milliman claims, “..defendants Nygren, Miller, Krause, Schmitt and Nielson intentionally worked together for the common plan and purpose of harming the plaintiff as described above, and otherwise injure him.”

The suit says, the individuals’ “actions were willful, wanton, intentional and malicious” and, because of that asks for punitive damages.

A final count points out that McHenry County is required to pay any judgment.

What’s Milliman want?

• “A preliminary and permanent injunction restraining the defendants from continuing to violate the constitutional rights of the plaintiff including reinstatement to his position as a Deputy Sheriff
•  ”Judgment for compensatory damages in favor of the plaintiff and against the defendants in an amount in excess of Fifty Thousand Dollars ($50,000.00)
• “Judgment for punitive damages in favor of the plaintiff and against the individual defendants in an amount to be determined by the jury”
• Attorney’s fees.

The only good news is that the County has a stop-loss arrangement with its insurance carrier which “only” requires taxpayers to absorb the first $100,000 of legal fees.

You can read the entire case here.
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Links to the articles containing the entire 10,000+ word transcript from December 15th can be found here.

• Part 1
• Part 2
• Part 3
• Part 4
• Part 5
• Part 6
• Part 7
• Part 8
• Part 9
• Part 10

Other articles that might be of interest:

• Rockford McHenry County Sheriff’s Department Revelations Move to Woodstock Courthouse in Call for Special Prosecutor
• Where’s the Beef?

This is the final installment of Zane Seipler’s attorney Blake Horwitz’ request that sanctions be levied against McHenry County Sheriff Keith Nygren for actions taken by Nygren, his staff and his attorney James Sotos.

Paragraphing and formatting has been added in the text to make the text easier to read on a computer screen as we move to the sanctions that are requested.

Concluding the court filing is a plea for

“Sanctions

“Defendants’ conduct warrants a Rule 37 sanctions in the form an entry of a default judgment against Defendants and/or a ruling as to their affirmative defenses. Fed. R. Civ. P. 37 authorizes the court to sanction a party for failing to obey an order or ruling to provide discovery. Fed. R. Civ. P. 37(b)(2)(A).

“Such sanctions may include

• ‘prohibiting the disobedient party from supporting . . . designated . . . defenses,’
• ‘striking pleadings in whole or in part’ or
• ‘rendering a default judgment against the disobedient party.’

“Fed. R. Civ. P. 37(b)(2)(A)(ii), (iii) and (vi); see also Newman v. Metropolitan Pier & Exposition Auth., 962 F.2d 589, 591 (7th Cir. 1992)(approving entry of default judgment as sanction for defendant’s failure to comply with orders).

“For purposes of Rule 37(b) sanctions, “order” or ‘ruling’ are broadly construed. See Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994).

“A formal, written order by the court is not required. See Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992)(Rule 37(b) sanctions imposed on party that engaged in ‘evasive and dilatory discovery tactics’). Also see Godlove v. Bamberger, 903F.2d 1145, 1148 (7th Cir. 1990) (granting the Court broad discretion); Thomas Consol. Indus., Inc. v. Herbst, 456 F.3d 719, 724 (7thCir. 2006) (citing Maynard v. Nygren, 332 F.3d 462, 467-68 (7th Cir. 2003).

Also see Sameron v. Enter. Recovery Sys., Inc., 579 F.3d 787, 795 (7th Cir. 2009) (tendering sensitive documents to a member of the press demonstrates a willful violation).

“Sheriff Nygren misrepresented himself to this Court to induce this Court to believe that he had not tendered the deposition transcript to the Northwest Herald.

“This misrepresentation can result in severe sanctions. Montaño v. City of Chicago, 535 F.3d 558, 564 (7th Cir. 2008).

“Regardless of the Nygren fraud upon the Court, Sheriff Nygren and the other officers, including Defendant Miller, clearly tendered the deposition transcript to third parties (Zinke, Rivera and Ellis).

“The parties, as officers, knew that the deposition was confidential and sensitive but flaunted that knowledge and did what they wanted. The intent and motive is clear – if you speak out against the Sheriff, you will be punished.

“The distribution of the confidential police report preceded the Milliman episode.

“The distribution violated Illinois Statutory law. 20 ILCS 2630/7.

“The Sotos firm received the document and the Defendants distributed it to fellow officers to taint their perspective of Mr. Seipler.

“Terminating sanctions is appropriate for flagrant violation of this Court’s order. Greviskes v. Univ. Research Assoc., Inc., 417 F.3d 752, 754 (7th Cir. 2005).

“The above record demonstrates that terminating sanctions is in order.”

Judge Frederick J. Kapala will be the one to decide on both McHenry County Sheriff Keith Nygren’s attorney’s request for sanctions against Zane Seipler and Seipler’s attorney’s counter request against Nygren.

Besides violating the confidentiality court order in former Sheriff’s Deputy Zane Seipler’s wrongful termination case, his attorney Blake Horwitz argues in his motion for sanctions that defendant McHenry County Sheriff’s lawyer James Sotos has wrongfully withheld a long video interview made of Seipler by the Department.

As before, paragraphing and formatting has been added in the text to make the text easier to read on a computer screen.

“The Video Recording

“This Court recently granted Plaintiff leave to re-take the deposition of two Defendants, Lutz and Miller, given Defendants’ failures in producing a lengthy video taken of the Plaintiff during the Plaintiff’s internal investigation into racial profiling and ticket writing. See Order, Dkt No. 311, October 12, 2011.

“Plaintiff desires to remind the Court that three affidavits were filed in support of the Defendants’ position that the video was somehow lost. (Exhibit J, Affidavits of Defendants Miller and Lutz and Affidavit of Elizabeth Barton). These affidavits were filed by party defendants and their counsel (Ms. Barton) in response to Plaintiffs motion to compel and this Court’s order (Dkt No. 134) [Foot Note 3].

“This Court will recall Mr. Sotos’ recent oral argument before the Court, where he stated that the hour long video was recently ‘found’, but only after the Plaintiff’s deposition was taken.

“During Mr. Sotos’ argument, this Court on repeatedly referenced the ‘convenient’ post-deposition find and then granted Plaintiff’s motion to compel as to the two Defendants.

“Notably, Defendant Affiant Seith stated that she gave the CD to the Sotos law firm (Exhibit J, pg 5, para 6) but then the video became ‘missing’ (Id. para. 8).

“Ms. Barton, a Sotos Associates states that she performed a ‘reasonably search’, including Mr. Sotos’ involvement, to obtain the video (Exhibit J, para 5 and 7).

“Apparently, the search became more reasonable after the Plaintiff testified.”

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Foot Note 3 – “As to Plaintiff’s motion to compel the production of an audio-video recording of the internal investigation of Plaintiff, Defendants are ordered to complete a reasonable search to produce the compact disc. According to the Defendants’ affidavit, a copy of the disc was sent to Heidi Parker, but no explanations have been proffered as to efforts to locate this copy, or any other copies that may exist. Within 21 days, Defendants shall either produce a copy of the compact disc, or submit an affidavit to the court to explain why Ms. Parker’s copy is unavailable.”

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In addition to asking for sanctions, Seipler attorney Horwitz asks for “attorneys’ fees for having prevailed with regard to depositions of Miller and Lutz (concerning the newly found video).”

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More tomorrow.

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Other articles in the series:

• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 1
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 2
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 3
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 4