By Bob Uphues
A federal judge ruled last week that a former North Riverside police sergeant's nearly decade-old complaint that he was defamed by a former mayor and suffered retaliation from other village officials for supporting the administration's political opponent can go to trial.
U.S. District Judge Charles R. Norgle Sr. on Aug. 4 denied a motion to dismiss the case, saying there is a genuine dispute over the facts of the case, and that he won't intervene by prejudging them.
Police Sgt. Frank Schmalz filed the suit in federal court in November 2013, claiming that he was passed over for promotion and was taken off a plum gang-and-drug task force assignment because he and the police union he led supported Rocco DeSantis for village president in 2013, against Hubert Hermanek Jr.
"After seven long years, Frank is relieved to finally get his day in court to show the truth about what happened to him in the police department after the 2013 election," said Schmalz's attorney, Jeffrey R. Kulwin, in an email to the Landmark.
The defendants in the case are the village, Hermanek, former Police Chief Lane Niemann and former Mayor Kenneth Krochmal.
Hermanek and Niemann are accused of violating Schmalz's First Amendment rights by retaliating against him following the election. Krochmal is accused of defaming Schmalz.
It's unclear when a trial might begin, but Norgle ruled last week that an updated final pretrial order with jury instructions be submitted to him no later than Oct. 5.
"Due to COVID-19 issues, the court cannot today set a date for jury trial," Norgle wrote on Aug. 4. "However, in due course, counsel will be advised in sufficient time to allow for comprehensive pretrial preparation and notification to all witnesses."
DeSantis, also a former North Riverside police officer, was an elected trustee when he announced in 2012 that he would seek election as mayor the following year. The incumbent, Kenneth Krochmal, was not running for a second term, pitting DeSantis, an independent, against Hermanek, a fellow trustee and mayoral candidate for the VIP Party.
It was a chaotic, often nasty election campaign that eventually saw DeSantis' name removed from the ballot and Hermanek elected to his first term as mayor.
Schmalz was a vocal, visible supporter of DeSantis and the slate he led, which ran under the Transparency and Accountability in Politics (TAP) Party banner. Schmalz stood to gain from a DeSantis victory in the form of being named police chief, and he was an enthusiastic campaigner, including standing outside the doors at the North Riverside Village Commons polling place on Election Day, encouraging voters to support his candidate.
It was there that Krochmal allegedly "profanely and publicly" defamed Schmalz, according to the court record.
Shortly after the election, Hermanek named Niemann police chief. Niemann removed Schmalz from the WEDGE gang-and-drug task force two weeks after the election and refused to promote him to lieutenant that summer despite a vacancy.
Schmalz claims that his political activities resulted in his removal from WEDGE, while Niemann and Hermanek claimed they were the result of Schmalz's duty-related injuries dating back to the summer of 2012.
Schmalz's last day on duty was June 28, 2013. He would subsequently undergo knee replacement surgery and submitted an application for full duty-related disability in 2015. That application was approved the following year.
Even the progress of lawsuit has been unusual. The case has taken so long it has been overseen by three different U.S. District Court judges and one administrative law judge.
The original complaint was thrown out, but Schmalz soon refiled it. The case appeared to have been settled for $60,000 in 2016, but Schmalz balked. Administrative Law Judge Mary Rowland sided with Schmalz, allowing the suit to continue.
Rowland would make another appearance in the case in 2018, when Schmalz sought text messages between Hermanek and Niemann related to Schmalz's dismissal from WEDGE.
Schmalz's inquiry led to the revelation that dozens of text messages between Hermanek and Niemann had been lost despite a court order to preserve evidence.
Rowland said the lost messages were the result of "gross negligence" and ordered the defendants to pay for the attorneys' fees related to Schmalz's inquiry on that subject.
She also ruled that Schmalz would be allowed to present evidence to a jury regarding the lost messages and their relevance to the case, and that the jury be instructed to consider that information when rendering a verdict.