Effingham Daily News, Effingham, IL

Local News

September 29, 2010

Judge denies motion to dismiss lawsuit against St. Elmo mayor

VANDALIA — VANDALIA — A judge Monday denied a motion to dismiss a lawsuit against St. Elmo Mayor Larry Tish, stating more information was needed in the case.

    Judge S. Gene Schwarm gave former St. Elmo Police Chief Ken Thomason 90 days to file a second amended complaint after the original complaint accusing Tish of making slanderous and defamatory comments was dismissed in June and amended to include more specific information.

    Schwarm took aim this time at one of the paragraphs in the complaint alleging Tish stated Thomason had not solved a criminal case since he began working in St. Elmo.

    “It it true or not?” said Schwarm, adding the statement should be proven.

    Schwarm also believed when the statements were made was relevant. Thomason’s amended complaint alleges the comments by Tish calling Thomason incompetent and an idiot during a conversation with a resident were made before and after August 2009. Schwarm said the complaint needs to specify exactly when the comments were made. While there could be privilege attached to the statements if Tish made them while he was mayor, there wouldn’t be if they were made before Tish became mayor in April 2009.

    “We have reason to believe the conversation happened before and after and after Thomason was removed as chief of police,” said Thomason’s attorney Lee Barron.

    Tish’s attorney Charles Pierce asserted, as mayor and chief executive officer of the city, Tish had privilege to make such comments in reference to employees.

    “Tish discussed his employee’s performance with a particular citizen,” said Pierce. “The mayor was within his scope of employment.”

    Barron argued the issue of privilege depended on where the comments were made. He said if the comments were made at a council meeting or in closed session, then he agreed the comments would be privileged.

    “But being mayor doesn’t give him the right to go around town slandering a public official,” he added.

    While Pierce said the alleged comments were made in a supervisory capacity, Barron contended there was nothing supervisory about the statements.

    “Having a random conversation is not an official function,” said Barron.    

    While Barron admitted it was Tish’s duty to take a complaint, he said, “there’s no public policy being served by the mayor making false statements.”

    Schwarm also took issue with some wording in the amended complaint pertaining to Tish’s alleged use of the words “incompetent” and “idiot.” Although the complaint was amended to include to whom and where the words were spoken, Schwarm said the complaint needed to state why they are believed to be factual and not opinion as Pierce has argued.

    Schwarm did strike Monday a paragraph in the complaint stating Thomason and St. Elmo Police Department are so incompetent they are the “laughing stock” of Fayette County, which Barron agreed to strike to focus more on the other allegations in the complaint.

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