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Thursday, April 24, 2003 02:20 pm

Husch-hush investigation

What the city forgot to mention about the law firm looking into the Frazier case

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Christopher A. Nichols "represent(s) management in . . . discrimination, civil rights, union collective bargaining negotiations and disputes"

It was the kind of lawsuit that seemed almost hopeless. The Winchester ammunitions plant in East Alton had laid off about a quarter of its salaried employees, and a group of these workers banded together to sue, claiming age discrimination. A similar case, filed by a single worker, had already resulted in a $850,000 judgment against Winchester's parent company, the Olin Corporation. What jury wouldn't have sympathy for these plaintiffs--16 middle-aged men and women with an average tenure of almost three decades at this plant?

Winchester's lawyers were worried when the jury pool turned out to be heavily populated by union families. But 10 of the 16 plaintiffs had relinquished their union protection by accepting promotions--a fact the lawyers realized could work in their favor. Instead of excluding union sympathizers from the jury, they purposely loaded it with nine people from union families. "Union workers understand . . . that if you've left the union, you're giving up the safety of seniority," one Winchester lawyer said.

After a seven-week trial in February and March of 2000, the jury found no discrimination.

This win was so impressive it caught the attention of the National Law Journal, which cited it as one of the "Top 10 Defense Wins" of 2000. The same law firm was cited again in 2001 for defending a Kansas sheriff's department against charges of race discrimination by a group of 14 jail employees, all African-Americans, who were offended by a poster listing "Five Rules for Feeding Monkeys."

Consecutive "Top Defense Wins" are almost unheard of for any law firm, says NLJ managing editor Steve Fromm. "It means they're a real top-shelf defense firm."

So why was this remarkable achievement not mentioned to members of the Springfield City Council when former mayor Karen Hasara hired this same law firm--Husch & Eppenberger, known to local readers as "the Peoria law firm"--to investigate the complaints of black officers in the Springfield Police Department?

Council member Judy Yeager falls silent at the news. "Interesting," she says finally. "Very interesting." Then she asks: "Were we schnookered?"

Like several other aldermen Illinois Times contacted, Yeager was surprised to learn that Husch & Eppenberger's labor and employment lawyers specialize in defending corporations and government entities against employee claims of discrimination, harassment, and retaliation, and against efforts to unionize. Other groups in the firm specialize in defending corporations against product liability claims, toxic torts, Superfund remediation, racketeering charges, medical malpractice claims, and antitrust allegations.

"I'm a Pollyanna," Yeager says. "People have to hit me between the eyes for me to believe that someone might be attempting to manipulate the system. Now with this information, it's like, 'Oh, crap! It has happened again!'

"Part of why I'm like this is I'm appalled by people who play games and do strategizing," Yeager says. "I'm amazed when it finally dawns on me that I have been a part of something and I didn't see it coming." Neither Hasara nor her former chief of staff, Brian McFadden, were available for comment.

Hasara hired Husch & Eppenberger last November ostensibly to conduct an "independent outside investigation"--as Alderman Chuck Redpath recalls--of SPD's handling of two cases involving African-American police officers: The case of former officer Renatta Frazier, publicly and erroneously accused for almost a year of failing to prevent the rape of another officer's daughter; and the case of Lieutenant Rickey Davis, who discovered that he was being followed by a pair of SPD internal affairs officers. Both Davis and Frazier are among the nine former and current black SPD officers who are plaintiffs in a lawsuit against the city claiming racial discrimination.

Husch & Eppenberger's investigation was scheduled to take about three weeks to complete, for a cost of less than $15,000, which meant Hasara could sign the contract without council approval. However, the probe lasted more than five months and will cost at least $50,000. The firm has not yet submitted its final bill.

"The whole thing kind of bothered me when she did a no-bid contract," Redpath says. "We kept asking for prices and asking for answers and we got neither. Once it started hitting the $30,000 range, we started wondering what the heck are we paying for?"

On April 15, the City Council released an executive summary of "the Peoria report," with findings that appear damaging to the nine black plaintiffs. Although the summary places blame on SPD Chief John Harris, who submitted his resignation the day after the summary was released, it also contains statements that Frazier never should have been hired, that Davis was frequently absent from his late-night shift, and that the only racism in SPD is reverse racism.

The summary also blames Courtney Cox, attorney for the nine black plaintiffs, for impeding the investigation by refusing to let the law firm interview his clients. Two of the plaintiffs, Davis and Ralph Harris, each gave the Peoria firm a five-hour interview. But when Cox heard Hasara publicly refuse to promise to make the report public, Cox advised his other clients not to be interviewed.

Besides, Cox says, the Husch & Eppenberger attorneys only asked to interview four of the plaintiffs--Davis, Harris, Frazier, and Lea Joy, "the four they were hoping to find dirt on," he says. Like Davis and Frazier, Harris and Joy are outspoken critics of the SPD administration. The other five plaintiffs have kept relatively low profiles.

Supporting evidence for claims made in Husch & Eppenberger's executive summary may be contained in the report itself. But the full report hasn't been released, and none of the four attorneys who worked on the report was available Tuesday or Wednesday to answer questions.

The firm's Web site, though, includes profiles of the four attorneys, showcasing their expertise at defending management against workers' claims. Lead attorney Christopher A. Nichols, who met several times with council members, has spent his career defending employers against claims such as age and race discrimination. Attorney SueAnn Billimack, who wrote the report, "defends charges of discrimination before various administrative agencies including the Illinois Department of Human Rights and the Equal Employment Opportunity Commission," according to the site.

None of the aldermen Illinois Times contacted knew the firm's reputation. "I had no idea who they were," Redpath says. "I didn't know what their reputation or specialty was. I only knew what [Hasara] told us.

"What I remember was that the mayor wanted somebody that was going to be fair and give us the best opinion without having any connections to either side of it, so we could get a fair assessment of what the problem was," Redpath recalls. "If you're asking me what my reaction is . . . I don't know."

Alderman Frank Kunz is a bit more cynical. "That is kind of amazing about that law firm, but it doesn't surprise me, I guess. If I'm going to hire a law firm, I'm going to hire one that has the reputation of winning the side I'm on, not the other side," he says.

Yeager, the self-described Pollyanna, says she feels betrayed. "I thought [Hasara] wanted the truth to come out--I had that trust," Yeager says. "I'm not saying she was conniving, but she was, I guess, protecting the city, which I'm assuming she needed to do. Even if this information had been exposed prior to this date, she could've looked at us and said, yeah? And your point is?"

But for another alderman, information about Husch & Eppenberger's legal specialty answers questions he'd had on his mind. Frank McNeil--the only alderman who has seen the full report--has been reading the 99-page document and considering whether or not to release it to the public.

"It makes sense now," he says, "because as I was reading the summary and the report, the question that kept occurring to me was: When are they going to talk about discrimination? When are they going to ask, 'Do you have apprehensions about minorities?' I found that very strange. These questions should've been posed. And they were never there."

Such investigations are routinely commissioned by employers being sued, says Ronald B. Schwartz, a Chicago attorney who specializes in representing plaintiffs suing employers. Schwartz is on the board of directors of the Illinois chapter of the National Employment Lawyers Association. "What I think makes this weird is the fact that they did it publicly," Schwartz says. "There's a fine line between investigation and retaliating against the plaintiffs, and if you do it in a public forum, I think that starts to tip the balance toward retaliation."

Alderman Redpath, who says he considers this investigation "kind of shady in the way it was conducted," is now wondering whether it's riskier for the city to leave the summary out there, with its sweeping but undocumented generalizations, or to go ahead and release the entire report and perhaps expose the city to more legal risk.

"It has always been my intention that everybody needs to know what's going on. Taxpayers have a right to know, and I know the majority [of the aldermen] want to get this report out there," Redpath says. "But are we setting ourselves up for a worse situation? I don't know."