Village Officials on the Hook for Sly Recordings

(CN) - The mayor of Bellwood, Ill., and its police chief lost their appeal of a class action accusing them of surreptitiously recording phone calls from the village's finance department.

Former village comptroller Nicholas Narducci sued Mayor Donald Lemm, Police Chief Gregory Moore and other village officials under the U.S. Constitution and a federal wiretapping law, claiming the village should have notified him and other finance employees when it began recording five finance department phone lines in 1994.

The recording plan had been proposed by former comptroller Joe Lagen, who was concerned about the growing number of threats from angry residents whose water services had been turned off, usually for failure to pay utility bills.

Officials also thought the emergency recording system would help root out abuse of village phones for personal calls and would shed light on complaints about finance department employees being rude to callers.

A few years after Narducci replaced Lagen, he said he learned about the illegal recording scheme.

U.S. District Judge Milton Shadur dismissed the former comptroller's state-law claims and any federal constitutional claims involving calls made after Narducci learned about the recording in February 2000. But Shadur allowed the class action to proceed on the remaining illegal search and wiretap claims.

The defendants appealed, asserting their immunity to the class-action allegations.

However, the Chicago-based federal appeals court refused to reverse Shadur's ruling.

"Given that the allegations in this case include the recording of every phone call, for at least a six-year period, with no notice to the affected employees ... Narducci has presented sufficient evidence of a violation of the Fourth Amendment to withstand summary judgment," Judge Flaum wrote.

The employees' privacy rights were clearly established at the time, the court added.

It also dismissed the officials' motion for summary judgment on the remaining wiretapping claims, saying they failed to raise that defense in their initial appeal.

"Lemm and Moore were the moving party for summary judgment; if they felt entitled to terminate the proceedings because of qualified immunity, they were required to bring that issue to the court's attention," Flaum wrote.

"Finally, as the district court pointed out, the present case has been litigated since 2001, while the motions for summary judgment were submitted in 2006; five years is ample time for the defendants to develop the issue and present it in their initial motion."

Bellwood is a small community just west of Chicago.

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