Court Sides with Former Orland Hills Cop in Whistleblower Case

An appellate court decision handed down on Monday will give a former Orland Hills police officer another shot to have his First Amendment case heard.

The 7th Circuit Appellate Court decision reversed a dismissal ordered by a lower court on David Kristofek's suit against the Village of Orland Hills and its police chief.

Kristofek's suit claims that his First Amendment rights were violated, and his firing was retaliation for speaking with the Federal Bureau of Investigation about a traffic stop that was fixed for a local politician's son. The suit names Village of Orland Hills and Orland Hills Police Chief Thomas Scully as defendants and accuses them of violating the Illinois Whisteblower's Act.

The defendants argued what Kristofek said to the authorities "did not involve a matter of public concern, principally because his sole motive was to protect himself from civil and criminal liability," according to the appellate court decision.

The defendants relied on the self-interest argument as the only basis for arguing against an appeal, according to the decision. Kristofek's complaint against the village doesn't say his sole motive was self-interest and that the presence of a self-interested motivation doesn't eliminate other possible reasons for bringing the case.

The decision also states that Kristokfek successfully argued, but just barely, that Scully had, at least, "defacto authority" to establish policy for hiring and firing employees. Kristokfek argued that Scully was in charge of the department and made decisions about terminating employees that were not reviewed by another authority, such as the village board.

Scully now is back as part of the lawsuit, said Kristofek's attorney Jerry Marconi. The lower court ruling had halted the First Amendment rights claims and left only Whistleblower portion for the state courts. Only an agency can be sued in the Whistleblower act.

A loss in appeal also not only would have been bad news for Kristofek but, his attorney said, would have sunk people who work in the public sector everywhere.

“If they affirmed it, it would have told government employees to keep their mouths shut," said attorney Jerry Marconi.

On Nov. 12, 2010, two months in as a part-time cop with Orland Hills, Kristofek pulled over a 2000 Kia that was found to have a suspended registration, according to the original suit. The driver failed to offer proof of insurance and was arrested. Kristofek was told by the driver that he was the son of a former mayor in a nearby town and was asked to be let go.

Kristofek was given a cell phone with a woman claiming to be the driver's mother on the line, who also asked him to let the driver off, according to the suit. Kristofek continued with the arrest and had the car towed.

While filling out paperwork at the station, Kristofek was told to turn over the traffic stop file to Orland Hills Deputy Chief Michael Blaha and delete all written records of the incident in the department's computers, according to the suit.

A message left for Scully at the police department was not returned Tuesday evening.

Blaha later said to Kristofek that he did well and the decision of letting the driver go was "above you and I," according to the suit.

During Police Law Institute training in 2011, Kristofek faced a question that cited case law suggesting a police officer could be charged with official misconduct for not completing an arrest similar to the 2010 traffic stop, according to the suit. This led Kristofek to speak with the Federal Bureau of Investigation about the incident. Scully confronted Kristofek on April 21, 2011, three weeks after the training and after he told other Orland Hills officers about speaking with the FBI.

Kristofek was given a choice by Scully to either quit or be fired, according to the suit.

Scully said Kristofek couldn’t be trusted anymore, according to the suit. After refusing to, Kristofek was immediately led out of the station.

Orland Hills objected to an unemployment benefits claim by Kristofek, saying he was "insubordinate," according to the suit.

Looking for more police news?

• Alleged Shoplifter Tells Police 'You Got Me': Blotter
• ARREST WARRANTS: Wanted in Orland Park

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