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Former Gardner fire department requests case be heard by state Supreme Court

Published: Friday, June 13, 2014 9:25 p.m. CST

GARDNER – The Gardner Fire Protection District was victorious against the former Gardner Volunteer Fire Department at the appellate level, but the department isn't giving up and is trying to get the case before the Illinois Supreme Court.

"I think it should be attractive [to the supreme court] because it is unique circumstances concerning a government body, the district, forcing the department, a nonprofit providing service," Timothy Rathbun, attorney for the former department with Rathbun, Cservenyak & Kozol.

A petition to appeal the Appellate Court of Illinois Third District’s decision to the Illinois Supreme Court is currently pending after being filed last month.

"I don't believe the Supreme Court should grant the petition to appeal," attorney for the fire protection district, Richard Porter of Hinshaw & Culbertson said. "Even if it did, I find it highly unlikely it would reverse the decision,"  

The litigation first began years ago when the fire protection district terminated its contract for services with the volunteer department. Under that arrangement, the department, run by former fire Chief Randy Wilkey, provided fire protection services to Gardner using tax dollars provided by the district.

The district accused the department of using its money for legal fees to argue an election for district trustees. In addition, the department had a credit card balance of about $47,000 it refused to account for.

The department argued then it could not misappropriate its own funds. The department then filed suit that the district terminated their contract “arbitrarily and capriciously,” and it was not in the district’s discretion to do so.

About a year ago, Grundy County Judge Robert Marsaglia ordered the fire district had the right to terminate the contract of the volunteer department when the department no longer provided satisfactory services.

The department filed an appeal of Marsaglia’s decision, and in February the Appellate Court ruled the original court properly granted the fire district’s motions.

"The main reason [for petitioning the supreme court] is because it seems to be an injustice to deny a volunteer fire department for no other reason than political infighting in a small town," Rathbun said. "There is something missing ... it's a travesty. If you don't want people to be fireman, OK. But to destroy it ... I personally think it's disgusting. It was just destroyed."

Both attorneys said the Supreme Court does not have to commit to a time line on deciding whether to accept the case. But Porter said he expects it will decide in the next couple of months.

"We do not have to respond [to the petition]," he said. "If it is granted then obviously we have to respond to the appeal and once again incur more expense for the appeal.

"I don't see any basis here to reverse the opinion."

The whole battle between the district and department started when former department chief Wilkey refused to give the district board original receipts from which to pay the department’s bills, according to previous statements by district representatives and Wilkey.

Eventually, when Wilkey refused to give originals, the district refused to pay the bills. This led to the feud going to court and the district no longer recognizing Wilkey as chief.

In October 2013, when a previous ruling in favor of the district came in, the fire district and its new chief, Terry Jensen, took over the Gardner fire station. It had previously taken over equipment through court order.

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