Vote On Pension Board Protected By First Amendment

Frank Hauenschild has served in the Harvey, Illinois Fire Department for 27 years. During the last 12 years of his employment, he held the rank of captain and served as a shift commander. As a shift commander, Hauenschild had a consistent shift of 24 hours on duty followed by 48 hours off duty. This schedule allowed him to obtain a law degree and thereafter to become a practicing attorney while maintaining his job as a firefighter.

William Bell retired as Fire Chief of the Department in 1996. Upon his departure, Bell began receiving pension benefits from the Department. In 2003, the mayor appointed Bell as the Public Safety Fire Administrator, a position that did not exist before the mayor took office a few months before Bell’s appointment. The duties of the newly-created position were functionally indistinguishable from those of the Fire Chief.

At the time of Bell’s appointment, Hauenschild was a member of the board for the Harvey Firefighters Pension Fund. The Fund’s president was another firefighter, Richard Stockwell. When Bell began serving as Administrator, Stockwell terminated Bell’s pension benefits, apparently concluding that Bell had reentered active service in the Department.

Stockwell’s unilateral decision as Board president was appealable to the Board as a whole. By the time the Board heard Bell’s appeal, Hauenschild had been elected to replace Stockwell as president of the Board. In December 2003, the Board voted 4-3 to discontinue Bell’s retirement benefits. Hauenschild was one of the four who agreed with Stockwell’s initial determination that Bell was no longer eligible to receive retirement.

The day after the Fund’s hearing, Bell rescinded the yearly schedule that Hauenschild and the other two shift commanders had prepared for the Department’s staffing for 2004. The day after that, Bell removed Hauenschild from the 24-48 schedule and instead required him to work five eight-hour days, Monday through Friday. Hauenschild was moved into an office that had been converted from a storage room, located in an area for which he was not given keys.

Hauenschild was also divested of his position as the shift commander, thus terminating his supervisory duties. He was no longer permitted to respond to fire calls, and his sole duty was to update the Department’s policy manual, a task that had not been attended to for 20 years.

Hauenschild’s new schedule adversely impacted his legal practice. When Bell refused to change the schedule, Hauenschild appealed to the mayor and members of the City Council. When his appeals were unsuccessful, he resigned from the Department and brought a First Amendment freedom of speech lawsuit against the City. The basis for Hauenschild’s lawsuit was his contention that his working conditions were altered in retaliation for his vote to terminate Bell’s pension.

The City immediately moved to dismiss Hauenschild’s lawsuit. The City’s theory was that the First Amendment did not protect Bell’s vote on the Fund and did not address a matter of public concern. According to the City, “the content of Hauenschild’s speech was a simple ‘no’ vote, it took the form of an execution of his duty as a Board member to decide pension disputes, and the context was nothing but an employment decision on the personal grievance of Bell.”

The Court thought otherwise. The Court reasoned that “this case does not involve a private decision of a human resources department; rather, it centers upon a vote by a public body, charged with application of a statute governing the manner in which public funds will be spent. This is very much a matter of public concern. Relatedly, the context in which the speech allegedly arose is unusual, to say the least. Given the involvement of the mayor and the City Council members with the decision at issue we cannot share the City’s position that the matter could be nothing but a private employment dispute.”

Hauenschild v. City of Harvey, Illinois, 2005 WL 1139319 (N.D.Ill. 2005).

This article appears in the July 2005 issue