IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

THOMAS BARWIN,

Plaintiff,

v.

VILLAGE OF OAK PARK,

Defendant.
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Case No:



JURY TRIAL DEMANDED
COMPLAINT

Plaintiff Thomas Barwin (Mr. Barwin or Plaintiff) states for his Complaint against
the Village of Oak Park (Village or Defendant) as follows:
INTRODUCTION

1. Mr. Barwin has been a dedicated public servant for more than three decades, with
his commendable career including work as a police officer, city administrator, and village
manager. From mid-2006 through early 2012, Mr. Barwin was the Village Manager for the
Village of Oak Park, during which time he received raises and bonuses, and numerous accolades
in recognition of his achievements.
2. Mr. Barwins successes as Village Manager include leading Oak Park through the
recent financial crisis and maintaining or improving Village operations, as rated by Oak Park
residents, while trimming staff by 20%. The Village also had the lowest crime rates in four
decades during Mr. Barwins tenure. Additionally, Mr. Barwin worked diligently to minimize the
Villages environmental footprint. As a result of these ground-breaking efforts, by 2012 more
than 90% of the Villages local governmental, residential, and business electricity usage was
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generated by sustainable wind power sources, a development that was not only good for the
environment but also saved Village residents and businesses millions of dollars in electricity
costs.
3. Despite the fact that Mr. Barwin was able to achieve a wide range of objectives
during an incredibly challenging economic climate, in February of 2012 the Board held a closed
session meeting to discuss Mr. Barwins performance. During that closed session, the individual
Trustees rated Mr. Barwin and the Village directed that a separation package be prepared and
offered in exchange for his resignation. After this decision was made, without any input from or
notice to Mr. Barwin or the public, Mr. Barwin was asked to meet with Village President David
Pope and Trustee Colette Lueck to review his annual performance evaluation. At this meeting,
Mr. Pope and Ms. Lueck advised Mr. Barwin that he had only two choices: he could resign and
receive a Board-directed severance package, or be fired for cause at the next Village Board
meeting, which had to be publicly noticed within 60 hours.
4. Following this conversation, Mr. Pope presented Mr. Barwin with performance
appraisal scoring sheets from his performance review and asked whether he wanted to discuss
them. Since Mr. Barwin had already been told that his tenure as Oak Parks Village Manager had
ended, he asked whether discussing his performance review with only two trustees would be a
worthwhile exercise, especially in the absence of a board quorum. Mr. Pope indicated that it
would be futile. As a result, and in fear of losing his severance package and reputation, Mr.
Barwin resigned within the timeline he was given.
5. By refusing to discuss Mr. Barwins 2011 evaluation with him before terminating
his employment, the Village breached its employment Agreement with Mr. Barwin and violated
its obligations of good faith and fair dealing. Specifically, while Mr. Barwin was considered an
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at-will employee, the Village was contractually obligated to provide Mr. Barwin with an
opportunity to discuss his evaluations. By not allowing Mr. Barwin to be heard, or otherwise
respond in any way to the information the Board relied upon in making its decision, the Village
breached the Agreement. Additionally, after Mr. Barwins forced resignation, the Village refused
to allow Mr. Barwin to purchase reciprocal out-of-state pension credits, despite the fact that the
Village had assured him it would do so. As a result of the Villages actions, Mr. Barwin has
suffered damages, and accordingly brings this action against the Village for its breach of an
employment contract and under the theory of promissory estoppel.
THE PARTIES
6. Plaintiff Thomas Barwin is a citizen of the State of Florida. Mr. Barwin has
devoted his life to public service, beginning his career as a police officer and eventually serving
as City Manager and Chief Executive/Administrative Officer in three different states. He is
currently the City Manager of Sarasota, Florida.
7. Defendant Village of Oak Park is a Municipality in the state of Illinois that
follows a Managerial Form of Municipal Government as described by 65 ILCS 5/5-3-7, in which
an elected legislative body, consisting of the President and a Board comprised of six Trustees,
hires a professional manager to oversee the day-to-day operation of government services and
programs, and to carry out the policy directives set out by the elected officials.
JURISDICTION AND VENUE
8. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1332. Plaintiff
Mr. Barwin is a citizen of Florida and Defendant Village of Oak Park is a Municipality in the
state of Illinois. The amount in controversy is greater than $75,000, exclusive of interest and
costs.
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9. This action properly lies in the Northern District of Illinois, Eastern Division,
pursuant to 28 U.S.C. 1391(b)(2), in that Mr. Barwin performed a substantial portion of his job
duties in Illinois, the decisions giving rise to these claims arose in this judicial district, and many
of the relevant witnesses are located in this District.
FACTS
Mr. Barwin and the Village Enter into a Village Manager Employment
Agreement and Mr. Barwin Joins the Village as Village Manager

10. In 2006, the Village of Oak Park conducted a nationwide search for a new Village
Manager. At the time, Mr. Barwin had already been widely recognized as a highly successful
City Manager for Ferndale, Michigan. Because of his reputation as an innovative and effective
leader, the Village offered Mr. Barwin the opportunity to serve as its next Village Manager and
induced him to accept the position with a competitive salary and a relocation package. When Mr.
Barwin expressed concern that he might not qualify for a pension in Ferndale, Michigan or Oak
Park, Illinois if he accepted the offer, the Village told Mr. Barwin that as a matter of Village
policy and past practice, he could purchase his time from Michigan and apply it towards his
eight-year vesting requirement to receive a pension from the Illinois Municipal Retirement Fund
(IMRF). The Village also told Mr. Barwin that previous Village Managers and other
management-level staff had been allowed to purchase out-of-state pension credits, indicating that
if he worked for fewer than eight years as Manager, the Village would allow Mr. Barwin to
purchase enough time for his pension to vest.
11. Mr. Barwin and the Village completed their negotiations in or about June of 2006
and signed a Village Manager Employment Agreement (the Agreement), which became
effective on or about June 29, 2006, and is attached as Exhibit A. The Agreement was an at-will
employment contract in compliance with 65 ILCS 5/5-3-7, which requires that a Village
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Manager be removable at any time by a majority vote of the members of the Board of Trustees.
Although the Agreement was for at-will employment, it did contain a provision laying out the
procedures to be followed in order for Mr. Barwins employment to be terminated. Specifically,
pursuant to Section 9 of the Agreement, Mr. Barwin could be removed by a majority vote of the
trustees at a noticed public meeting, or he could resign after receiving an offer from the Board to
do so at a public meeting, among other procedures.
12. Section 12 of the Agreement also required the Village to perform an annual
performance review of Mr. Barwin. At a minimum, each review had to afford both parties an
opportunity to: (1) prepare a written evaluation; (2) meet and discuss the evaluation; and (3)
present a written summary of the evaluation results. Additionally, the performance review
provision required that Mr. Barwin receive a final written evaluation within 30 days of the
evaluation meeting between Mr. Barwin and the Village.
13. In addition, Section 9 of the Agreement specified the events which give rise to the
termination of the Agreement, two of which are: (1) the Majority of the Village Board votes to
terminate Mr. Barwin at a duly authorized public meeting; and (2) Mr. Barwin resigns following
an offer to accept resignation by the majority of the governing body at a duly-noticed meeting. If
Mr. Barwin was terminated for reasons other than for cause, the Agreement provided that Mr.
Barwin would be entitled to a severance package. The severance package included nine months
pay and continuation of certain benefits for nine months. Under the Agreement, if Mr. Barwin
was terminated for cause, he would not receive the severance package.
Mr. Barwin Performs His Contractual Obligations

14. On or about June 29, 2006, Mr. Barwin assumed his role as Village Manager. In
this capacity he performed the duties and functions specified in Chapter 2, Article 4 (Village
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Manager) of the Oak Park Village code, and other legally permissible and proper duties and
functions.
15. During his tenure as Village Manager, Mr. Barwin performed exceptionally well.
Mr. Barwin persevered through the financial crisis that began in 2008, as well as through various
Village Board changes, and drastically trimmed the ballooning deficit the Village had
accumulated. Mr. Barwin also oversaw an aggressive $6 million annual capital improvement
program and the completion of four major public works projects including: 1) the award-winning
redevelopment of North Marion Avenue; 2) the landscaped reconfiguration of North Avenue
from Harlem to Oak Park Avenue; 3) the $7 million improvement of Roosevelt Road from
Austin to Harlem, which was primarily funded by grants; and 4) substantial improvements of
South Marion, which is now known as the Pleasant District.
16. In addition to these achievements, Mr. Barwin also made great strides in
establishing environmental sustainability as Oak Parks cause for the new century, efforts for
which he and the Village received substantial and deserved praise and attention. For example, in
2012 and 2013, as a result of initiatives launched by Mr. Barwin, the Village received the U.S.
Environmental Protection Agencys Green Power Community Challenge Award, an honor
presented to only two cities in the United States each year. Also under Mr. Barwins
management, the crime rate in the Village was the lowest it had been in 39 years, public art
programs flourished, and shop local initiatives significantly increased local business activity and
Village sales tax collections
17. In an apparent effort to retain its successful Village Manager, and in addition to
its previous representations regarding purchasing pension service credits, the Village told Mr.
Barwin before and well after he joined the organization that it would allow the purchase of out-
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of-state pension credits earned during his time in Michigan so that he would have enough credits
to receive a pension from the IMRF. Acting in reliance on that promise, Mr. Barwin chose not to
pursue several other opportunities, stayed with Oak Park, and deferred his purchase of pension
credits even though he became eligible to do so after only 2 years of service. It made logical
sense for Mr. Barwin to delay those purchases as long as he continued to serve as Village
Manager because each month he worked was one less month he would have to purchase in order
for the benefits to vest, and the Village had consistently represented that it would allow Mr.
Barwin to make those purchases.
The Village Breaches the Village Manager Employment Agreement
18. Following his 2010 performance evaluation, though commending Mr. Barwins
overall performance, the Board expressed concern over a few areas under his supervision.
Specifically, the Board wanted to see improvement in the Human Resources, Building, Planning,
and Law departments, even though those departments had recently been significantly downsized
for budgetary reasons.
19. After receiving feedback from the Board, Mr. Barwin asked if the Board was
losing confidence in his leadership. The Board responded that at that time they still had
confidence in him, but that they would perform a mid-year review to determine his progress in
the areas of concern. The Board conducted a mid-year review approximately six months after the
2010 performance review, but the Board did not indicate that Mr. Barwins performance was
deficient in any way, nor did they indicate to Mr. Barwin that they were losing confidence in
him.
20. The Board then conducted a 2011 annual performance review of Mr. Barwin.
Following evaluations by individual board members, the Board invited Mr. Barwin to a February
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13, 2012 closed meeting of the Village Board to discuss his evaluation and the possibility of a
raise. At that time, Oak Park residents had just ranked Village services in the top tier of
comparable communities in the United States, and Village residents and businesses had recently
saved $4 million in electricity costs.
21. Mr. Barwin was in California accepting a national award for the Villages
sustainable energy program during the weekend before the Monday meeting, and subsequently
rearranged his travel plans so he could attend the closed session Village Board meeting.
However, just as he was preparing to travel back to Oak Park, the Board told him that he was no
longer invited to attend.
22. At the closed meeting regarding Mr. Barwins annual evaluation, which was held
in Mr. Barwins absence on February 13, 2012, the Board members discussed Mr. Barwins
performance. According to the meeting transcripts, despite exceptionally high performance in the
Village departments that account for 80% of its expenditures, visible improvement in the Human
Resources Department, and changes underway in the Law Department, the Board voted in the
closed meeting to end Mr. Barwins employment as Village Manager of Oak Park.
23. The day after the Boards private meeting, Mr. Barwin was advised that Village
President David Pope and Trustee Colette Lueck wanted to meet with him later that day. Given
his strong performance during the previous year, Mr. Barwin believed that he was being called in
to discuss his annual bonus as well as a potential pay raise. However, during that meeting, which
was held without notice or a quorum of Board members, Mr. Pope and Ms. Lueck advised Mr.
Barwin that following his performance review the Board had authorized a separation package if
he would agree to resign within 48 hours and sign a release of claims against the Village. Mr.
Barwin was also informed that, if he did not resign, the Board would vote to terminate him for
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cause the following Monday, at which point he would receive no severance. Mr. Pope went on to
advise Mr. Barwin that a separation agreement was already being drafted, and would be ready
for Mr. Barwin to review within 24 hours.
24. It was only after this conversation, during which Mr. Pope and Ms. Lueck made it
clear that Mr. Barwins tenure as Village Manager of Oak Park was over, that Mr. Barwin was
presented with scoring sheets from his performance review and asked whether he wanted to
discuss them. Since Mr. Barwin had already been told that his employment would be terminated
if he did not resign, Mr. Barwin asked whether a discussion of his performance review with no
Board quorum present would serve any purpose, and Mr. Pope indicated that it would not. Given
the timeline of events described above, it is clear that the Board did not give Mr. Barwin a
meaningful opportunity to discuss his performance evaluation before reaching the decision to
terminate his employment.
25. After all of the successes Mr. Barwin had achieved as Village Manager, he was
taken entirely by surprise by the Boards sudden decision and lost several days of sleep,
experiencing a great amount of stress and emotional harm while agonizing over the reasons for
the Boards actions and what to do. Prior to that meeting he had no indication that he would be
terminated and had in fact achieved positive ratings in all major categories on his performance
review. Mr. Barwin had also begun to improve operations in the areas in which the Board had
expressed some concern, specifically in Human Resources, and had been working with the Board
to recruit a new Village attorney for the Law department. However, because he feared the Board
would vote him out for cause, at which point he would lose his severance package and risk
damaging his previously unblemished reputation, Mr. Barwin agreed to resign within very short
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period he was given to decide, while reminding Mr. Pope of the promises made to him regarding
his pension credits.
26. After submitting his pressured resignation, Mr. Barwin again requested that the
Village honor its promises and allow him to purchase enough out-of-state pension credits
towards his IMRF pension plan for his benefits to vest. The Village had done so for previous
Village Managers and had represented to Mr. Barwin that they would do the same for him.
However, despite the Villages promises and their own prior practices, the Village denied his
request, thereby depriving him of his ability to receive an Illinois pension.
27. The Villages actions, as described above, were conducted without regard for the
Performance Evaluation provision of Mr. Barwins employment Agreement, in that Mr. Barwin
was not given the opportunity to meet with the full Board and discuss his evaluation or any areas
of concern that may have been identified therein, he was not provided with a complete written
summary of the evaluation results, and he did not have the chance to prepare a written response
to the evaluation, despite the fact that each of those steps is mandated by his Agreement.
28. It is not unreasonable to think that, with direction and counseling regarding any
Board concerns, and a clear understanding that his job was on the line, Mr. Barwin would have
been able to respond to the Villages satisfaction and convince the Board members to keep him
on as Village Manager. For example, Mr. Barwin could have advised Village Board members
that the director of one of the units over which the Board had expressed concern often had to be
out of work as his young son was battling cancer at the time, a fact which the Board may have
found significant when using that departments performance to evaluate Mr. Barwin. Instead, in
breach of the Agreement and in violation of their obligations of good faith and fair dealing, the
Village forced Mr. Barwin to resign without giving him a chance to defend his performance or
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respond to any concerns. The Village also failed to keep its promise to Mr. Barwin to allow him
to purchase reciprocal out-of-state pension service credits, upon which Mr. Barwin reasonably
relied.
Mr. Barwin Suffered Damages Because of the Villages Breach of the
Employment Agreement and Failure to Honor its Promises

29. As a result of the Villages breach of the Agreement, as well as its refusal to keep
the promises it made to allow Mr. Barwin to purchase the pension credits he would need for his
benefits to vest, Mr. Barwin has suffered, and will continue to suffer, damages including but not
limited to harm to his reputation, lost potential professional opportunities, lost earnings, lost
pension benefits and future income through the IMRF, as well as emotional harm and
embarrassment.
30. Mr. Barwin was able to mitigate some of his lost wages by finding employment as
a City Manager in Sarasota, Florida. However, it took him six months to obtain such
employment, at which point he had to uproot his life and relocate to Florida. Additionally, Mr.
Barwin has not been able to replace the future income and benefits he should have been entitled
to from the IMRF if the Village had kept its promise to allow him to purchase his out-of-state
pension credits.
31. Furthermore, due to the circumstances surrounding his departure from Oak Park,
Mr. Barwins reputation has suffered significant harm. Local news outlets and individuals in Oak
Park, Sarasota, and other communities in which he sought subsequent employment have
speculated as to why Mr. Barwin suddenly left Oak Park at a time when it was receiving such
positive recognition at the national level. This particularly affected him in attempts to find
substitute employment in Illinois, as well as in his current position as City Manager of Sarasota,
Florida in that it unnecessarily and improperly diminishes the confidence employers may have in
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him as a manager. Accordingly, and for all of these reasons, Mr. Barwin brings the following
claims:
CAUSE OF ACTION
Count I: Breach of Contract

32. Plaintiff hereby incorporates by reference, as though restated, each of the factual
allegations in paragraphs 1 through 31 above as paragraph 32.
33. Plaintiff and Defendant entered into a Village Management Employment
Agreement effective on or about June 29, 2006.
34. Mr. Barwin substantially performed his obligations under the Agreement.
35. By refusing to comply with the unambiguous performance evaluation
requirements contained in the Agreement and by forcing Mr. Barwin to resign, the Village
breached the Agreement as well the Villages duty of good faith and fair dealing.
36. As a result of this breach of contract, Mr. Barwin has suffered and will continue
to suffer damages including but not limited to harm to his reputation, lost potential professional
opportunities, lost earnings, lost pension benefits and future income through the Illinois
Municipal Retirement Fund, emotional harm, embarrassment, and harm to reputation.
WHEREFORE Plaintiff respectfully requests the following relief:
A) An award of compensatory damages in an amount to be proven at trial, but, in any
event, in excess of $75,000.00; and
B) All other relief this Court deems just, including equitable relief.
Count II: Promissory Estoppel

37. Plaintiff hereby incorporates by reference, as though restated, each of the factual
allegations in paragraphs 1 through 31 above as paragraph 37.
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38. The Village made representations to Mr. Barwin on multiple occasions, both
before and after he accepted the position as Village Manager, that it would allow the purchase of
previously earned out-of-state pension credits to allow for vesting under the Illinois Municipal
Retirement Fund. This was intended to assure Mr. Barwin that he would not forego a pension by
relocating to Illinois, and to persuade Mr. Barwin to forego other opportunities and stay on as
Village Manager of Oak Park after he had demonstrated success in that position.
39. The Village expected Mr. Barwin to rely on these promises and continue to serve
as Village Manager in order to provide the community with stability and professional
management for years to come.
40. Mr. Barwin relied on the Villages promises by not pursuing other opportunities
and staying on as Village Manager for over 5 years, and by deferring his purchase of the credits
even though he became eligible to do so after only 2 years of service.
41. After his forced resignation, while still on the active payroll, the Village refused
to allow Mr. Barwin to purchase out-of-state pension credits, despite its past practices and its
own commitments to do so, which were promises upon which Mr. Barwin had relied.
42. Mr. Barwin has suffered damages in the form of lost pension benefits and future
income through the Illinois Municipal Retirement Fund as a result of the Villages failure to keep
its promises to him, and accordingly its promises must be enforced in order to avoid injustice.
WHEREFORE Plaintiff respectfully requests the following relief:
A) An award and order of performance of payment into the Illinois Municipal
Retirement Fund by the Village for the purchase of sufficient time for Mr. Barwins
pension to vest; or
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B) Alternatively, an award of damages in an amount equivalent to the value of the
pension payments Mr. Barwin expected to receive from the Illinois Municipal
Retirement Fund had the Village honored its commitment to allow Mr. Barwin to
purchase the of out-of-state pension credits necessary for his pension to vest; and
C) All other relief this Court deems just, including equitable relief.
JURY DEMAND

Plaintiff demands trial by jury on all issues so triable.


Respectfully submitted,

Dated: August 6, 2014 THOMAS BARWIN

/s/ Ruth I. Major
_____________________
By: One of Their Attorneys


Ruth I. Major (ARDC No. 6205049)
Jason L. Alexander (ARDC No. 6298963)
The Law Offices of Ruth I. Major P.C.
30 W. Monroe, Suite 1650
Chicago, Illinois 60603
Tel: (312) 893-7544
Fax: (312) 698-9867
rmajor@major-law.com
jalexander@major-law.com

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