# Schermerhorn v. County of McHenry, Illinois

> District Court, N.D. Illinois · February 12, 2025

URL: https://www.frixlaw.com/law-library/cases/10798963

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** February 12, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10798963

## How later opinions describe it (automated extraction)

- noting that a “few hours warning” could satisfy
- noting that “[m]any of the reasons for restrictions on employee speech appear to apply with much less force in the context of elected officials.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

Leslie Schermerhorn,

Plaintiff,
Case No.: 3:22-cv-50215
v.
Judge Iain D. Johnston
County of McHenry, Illinois,

Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Leslie Schermerhorn sued Defendant County of McHenry (“the County” or
“the Board”), alleging that the County violated her First Amendment and Due
Process rights. The County moved for summary judgment. For the reasons below,
the Court grants-in-part and denies-in-part the County’s Motion.
Background
To support its State Board of Education, Illinois created thirty-eight Regional Offices
of Education (“Regional Office”). Dkt. 1 ¶ 5; Dkt. 9, ¶ 5. Each Regional Office is
administered by a Regional Superintendent of Schools (“Superintendent”). The
Superintendent is a State employee, elected by the voters in the respective regions
for four-year terms. 105 ILCS 5/3-1; Dkt. 74 ¶ 4. Among other responsibilities, the
Superintendent authors reports, conducts audits, and supervises Regional Office
employees. A county board may remove a Superintendent from office for neglect,
violation of law, or omission of duty. 105 ILCS 5/4-10; Dkt. 74 ¶ 13.
Schermerhorn was last elected as the McHenry County Regional Office
Superintendent in 2018, running unopposed. Dkt. 72 ¶ 2; dkt. 74; ¶ 2. On September
1, 2021, Schermerhorn testified before Illinois legislative commissions about the
Regional Office’s finances. Dkt. 72 ¶ 6; dkt. 74; ¶ 6. She testified in her official
capacity as Superintendent and it related to her official duties. Dkt. 63 ¶¶ 9–10; dkt.
71 ¶¶ 9–10. In that testimony, Schermerhorn said that the McHenry County Board
put her through a “series of debacles,” by eliminating certain positions and
implementing new accounting systems. Dkt. 72 ¶ 7; dkt. 74 ¶ 7. A newspaper
reported on Schermerhorn’s testimony. Dkt. 72 ¶ 10; dkt. 74 ¶ 10.
Approximately a week later, on September 9, 2021, the County Board chairman
advised the Board’s Finance and Audit Committee that he found Schermerhorn’s
testimony “concerning and very inaccurate.” Dkt. 72 ¶ 8; dkt. 74 ¶ 8. Other Finance
& Audit Committee members similarly found Schermerhorn’s testimony “extremely
disappoint[ing].” Dkt. 72 ¶¶ 10–12; dkt. 74 ¶¶ 10–12. The Chairman asked County
administrators to compile ten years of Regional Office audits. Dkt. 72 ¶ 9; dkt. 74 ¶
9. Those reports showed “significant deficiencies” in the Regional Office’s account
and financial records over the prior five years, all of which coincided with
Schermerhorn’s time in office. Dkt. 63 ¶¶ 4–5; dkt. 71 ¶¶ 4–5.
On November 14, 2021, the County Board published a notice on its website that the
County Board would vote on whether to remove Schermerhorn on November 16,
2021.1 Dkt. 63 ¶ 15; dkt. 71 ¶ 15. The notice included a factual basis for the
resolution. Dkt. 63 ¶ 21; dkt. 71 ¶ 21. Schermerhorn “regularly reviewed” the Board’s
meeting notices. Dkt. 63 ¶ 19; dkt. 71 ¶ 19. And Schermerhorn reviewed this notice
approximately forty-eight hours before the vote. Dkt. 63 ¶ 22; dkt. 71 ¶ 22. She did
not receive personal notice or direct correspondence from the Board. Dkt. 72 ¶ 14;
dkt. 74 ¶ 14.
Schermerhorn knew that she would only be given three minutes to present her case
at the meeting, and believed that was an insufficient amount of time. Dkt. 72 ¶ 19;
dkt. 74 ¶ 19. Her attorney notified the County Board the day before the meeting,
arguing that the vote would violate Schermerhorn due process rights. Dkt. 72 ¶ 18;
dkt. 74 ¶ 18.
Schermerhorn did not attend the meeting. Dkt. 72 ¶ 19; dkt. 74 ¶ 19. Instead, she
watched the proceedings in real time on the County’s online portal. Dkt. 63 ¶ 38; dkt.
71 ¶ 38. She admitted that some County members would have “meaningfully
weighed” Schermerhorn’s arguments if she presented them at the meeting. Dkt. 63
¶¶ 26–35; dkt. 71 ¶¶ 26–35. She also admitted that many of the County’s noted
deficiencies of her office were “valid criticisms.” Dkt. 63 ¶ 43; dkt. 71 ¶ 43. At the end
of the meeting, the County Board unanimously voted to remove Schermerhorn as
Superintendent, citing its authority under 105 ILCS 5/4-10. Dkt. 72 ¶ 13; dkt. 74 ¶
13.
Analysis
Summary judgment is proper “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if a reasonable jury
could return a verdict for the nonmovant, construing the evidence and all reasonable

1 The Parties don’t reference November 14th, but they frequently note that a notice was
published “forty-eight hours” before the hearing, which occurred on November 16th.
inferences in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248–49 (1986); Rickher v. Home Depot, Inc., 535 F.3d 661, 664 (7th Cir. 2008).
Schermerhorn’s Complaint raises two counts under Section 1983, a First Amendment
claim and a Due Process claim. The Court addresses each in turn.
1) First Amendment Claim
Schermerhorn alleges that the Board fired her in retaliation for her testimony to the
state legislature, violating her First Amendment rights. In its Motion, the Board
relies on Pickering v. Bd. of Educ., 391 U.S. 563 (1968) and Garcetti v. Ceballos, 547
U.S. 410 (2006), arguing that the First Amendment doesn’t protect Schermerhorn’s
testimony. Dkt. 65, pgs. 4–6. In Response, Schermerhorn argues that Pickering and
Garcetti are inapposite, because those cases concerned employees whereas she’s an
elected official. Dkt. 70, pgs. 4–6. The Seventh Circuit hasn’t addressed whether
Garcetti applies to elected officials, and this is a matter of first impression in the
Northern District.
In Pickering, the Supreme Court held that a “[s]tate has interests as an employer in
regulating the speech of its employees that differ significantly from those it possesses
in connection with regulation of the speech of the citizenry in general.” 361 U.S. at
568. When the state acts as an employer, courts must “balance” the interests of the
citizen–employee in commenting on “matters of public concern,” and the employer–
state’s interest’s in promoting workplace efficiency. Id.
Elaborating on Pickering, the Court held in Garcetti that courts should conduct a two-
part analysis. 547 U.S. at 418. First, did the employee speak “as a citizen on a matter
of public concern.” If the answer is no, there’s no First Amendment claim. Id. If the
answer is yes, then a possible First Amendment claim exists, if the state lacked
adequate justification for treating the employee differently from the general public.
Id.
All that’s well and good. However, the Court agrees with Schermerhorn (and
numerous other courts)2 that Pickering/Garcetti doesn’t apply to elected officials like
herself. Here’s why:

2 In her Response’s appendix, Schermerhorn collects fifteen post-Garcetti opinions either
rejecting Garcetti’s application to elected officials or reasoning that the rationales shouldn’t
apply, including Zerla v. Stark County, No. 1-19-cv-01140, 2019 U.S. Dist. LEXIS 124586
(C.D. Ill. July 25, 2019); Greenman v. City of Hackensack, 486 F. Supp. 3d 811, 823–27 (D.N.J.
2020); Hedquist v. Patterson, 14-cv-0045, 2017 U.S. Dist. LEXIS 218078 (D. Wyo. April 14,
2017); Melville v. Town of Adams, 9 F. Supp. 3d 77 (D. Mass. 2014); Will Bradshaw v.
Salvaggio, 20-cv-01168, 2020 U.S. Dist. LEXIS 250873 (W.D. Tex. Oct. 28, 2020); Holloway
v. Clackamas River Water, 3:13-cv01787, 2014 U.S. Dist. LEXIS (D. Or. Dec. 9, 2014);
Zimmerlink v. Zapotosky, Civ. No. 10-237, 2011 U.S. Dist. LEXIS 53186 (W.D. Pa. April 11,
2011).
Two years before Pickering, the Supreme Court stressed that in a representative
government, “the manifest function of the First Amendment requires that legislators
be given the widest latitude to express their views on issues of policy.” Bond v. Floyd,
385 U.S. 116, 135–36 (1966). The Amendment’s “central purpose” is to ensure
“uninhibited, robust, and wide-open” debate on public issues. Id. Indeed, legislators
have “an obligation,” the Court found, to take positions on controversial political
questions so that their constituents can be fully informed,” able to assess the elected
official’s qualifications, and represented in government debates. Id. So, the Supreme
Court imagines two parallel doctrines, one for public employees, who are entitled to
only limited First Amendment protections, and the other for elected officials for whom
the Amendment applies with full force.
And Bond aside, it wouldn’t make sense for Pickering/Garcetti to govern elected
officeholders. Premised on public employee efficiency and management concerns,
Pickering and Garcetti’s rationale “is[n’t] applicable to elected officials.” Boquist v.
Cortney, 32 F.4th 764 (9th Cir. 2022); see also Werkheiser v. Pocono Twp., 780 F.3d
172, 178–80 (3d Cir. 2015) (noting that “[m]any of the reasons for restrictions on
employee speech appear to apply with much less force in the context of elected
officials.”); Rangara v. Brown, 566 F.3d 515 (5th Cir. 2009) rev’d on banc on mootness
grounds, 584 F.3d 206 (5th Cir. 2009) (“None of the Supreme Court’s public employee
speech decisions qualifies or limits the First Amendment’s protections of elected
officials’ speech.”). The Garcetti Court sought to “ensure[] that government employers
could supervise employees without constitutionalizing every grievance.” Warren v.
DeSantis, 90 F.4th 1115, 1129–31 (11th Cir. 2024). “But the electorate controls
elected officials and disciplines them by withholding votes if it disapproves of their
performance.” Id.3 See also Hanania v. Loren Maltese, 319 F. Supp. 2d 814, 830 (N.D.
Ill. 2004) (a pre-Garcetti case noting the “significant distinction” between
policymaking employees and elected officials, and that the doctrinal exception doesn’t
apply to the latter).
The people of McHenry County last elected Schermerhorn to serve as their
Superintendent in 2018. Under Illinois law, Schermerhorn held an elected office and,
barring misconduct, was entitled to a four-year term. The State gave the Board the
power to remove Schermerhorn, but she otherwise held her own office and supervised
her own staff.
Testifying in her official capacity as Superintendent and in relation to those duties,
Schermerhorn informed the legislature about what she considered to be the Board’s
failures. The First Amendment protected her right—perhaps obligated her—to do so.
Her constituents likewise deserved to have their elected representative express those

3 The Eleventh Circuit “remained skeptical about applying Garcetti,” but declined to decide
the questions because it found the First Amendment applied even under Garcetti.
views. Indeed, her testimony could have informed whether her constituents would
elect her for another term. And even if Garcetti applied to elected officials in general,
the rationale wouldn’t hold water in this case because the Board didn’t have day-to-
day supervisory responsibility over Schermerhorn.
In its Brief, the Board presumed that Garcetti applied and concluded that the First
Amendment didn’t protect Schermerhorn’s speech. It didn’t consider her elected-
official status. In Reply, the Board points to a few cases around the time Garcetti was
decided that found Garcetti applicable to elected officials. See Hartman v. Register,
1:06-cv-33, 2007 U.S. Dist. LEXIS 21175 (S.D. Ohio, June 17, 2007) (finding the
distinction between elected officials and employees “inconsequential” under Garcetti);
Shields v. Charter Twp. of Comstock, 617 F. Supp. 2d 606 (W.D. Mich. 2009) (same);
Hogan v. Twshp. of Haddon, No. 04-2036, 2006 U.S. Dist. LEXIS 87200 (D.N.J. Dec.
1, 2006) (applying Garcetti to an elected official, but not considering whether that
status mattered); Parks v. City of Horseshoe Bend, 480 F. 3d 837 (8th Cir. 2009)
(writing in a footnote that Garcetti would apply to the elected official, but not
discussing the rationale). To the extent those courts considered the question at all—
as opposed to summarily concluding Garcetti applied—the Court finds the many
decisions cited earlier far more persuasive.
Switching gears, the Board’s Reply also refocuses its argument, contending that it
was entitled to terminate Schermerhorn because of her poor performance. In essence,
the Board contends it had an independent basis to terminate her, so her testimony—
protected or not—wasn’t the impetus. Without citing the decision, this argument is
basically a Mt. Healthy defense. See Dkt. 73, pgs. 2–3. Critically, reliance on Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) is an affirmative
defense for which the County bears the burden of proof. Brown v. Leflore Cnty., 150
F. Supp. 3d 753, 769 (N.D. Miss. 2015). The Mt. Healthy affirmative defense also goes
to causation, which is makes reliance on this defense doubly more problematic at the
summary judgment stage. Id.
But the Court must consider the facts in the light most favorable to Schermerhorn,
and draw reasonable inferences in her favor. It’s possible the Board fired
Schermerhorn because they believed her conduct constituted neglect or omission of
duty. But the evidence also shows that Board members were upset about her
testimony, see dkt 72 ¶¶ 8–12, and that they fired her only a couple of months after
it. A reasonable jury could conclude, based on those facts, that the Board retaliated
against her. So, because the speech was protected, the Court can’t grant the Board’s
Motion on the First Amendment claim.
2) Due Process Claim
Schermerhorn also alleges that the Board violated her procedural due process rights.4
“[D]ue process is flexible and calls for such procedural protections as the particular
situation demands.” Morrisey v. Brewer, 408 U.S. 471, 481 (1972). At a minimum,
due process requires (1) oral or written notice of the charges, (2) an explanation of the
employer’s evidence, and (3) an opportunity to tell her side of the story. Staples v.
City of Milwaukee, 142 F.3d 383, 385 (7th Cir. 1998) (citing Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532 (1985).
Schermerhorn doesn’t argue that the Board failed element (2) (an explanation of the
employer’s evidence). Instead, her argument focuses on prongs (1) and (3), namely
that the Board’s notice was problematic and that the allotted opportunity to respond
was insufficient. The Court addresses those two issues in turn.
a) Notice
The Court understands Schermerhorn to raise two issues with the Board’s notice.
First, the Board’s method of notifying her (via its website) was constitutionally
insufficient. Second, the notice’s timing in relation to the hearing (forty-eight hours
ahead) was inadequate.
i) Method of Notice
The Board issued a public notice on its website forty-eight hours before the scheduled
meeting. That notice listed Schermerhorn’s employment termination vote as an
agenda item and included a proposed resolution memorializing the Board’s bases for
terminating her. Schermerhorn “regularly reviewed” the Board’s online notices. Yet,
Schermerhorn essentially argues that the public notice didn’t meet due process
requirements, because there were more effective means to establish personal notice.
See dkt. 70 pgs. 9–11 (highlighting cases establishing that notice should be
“reasonably calculated” to afford notice, that the “means employed must be such as
one desirous of actually” notifying a party, and that courts generally view notification
via publication suspiciously) (citations omitted).
But, as the Board argues, Schermerhorn admits she had actual notice two days before
the hearing. So, even if there were publication issues—Schermerhorn’s cites to
newspaper publication cases seem inapposite—she was actually aware of the
underlying allegations, satisfying due process. See United Student Aid Funds, Inc. v.
Espinosa, 559 U.S. 260, 272 (2010) (rejecting due process challenge where creditor

4 To demonstrate a procedural due process violation, a plaintiff must establish a cognizable
property interest and a deprivation of that property. Hudson v. City of Chi., 374 F.3d 554,
59 (7th Cir. 2004). The Board doesn’t argue that Schermerhorn lacked a property interest in
her elected position, nor would such an argument be persuasive.
received actual notice even though notice didn’t comply with bankruptcy rules).
“Although due process does not require actual notice, actual notice satisfies due
process if it apprises a party of the pendency of the action and affords an opportunity
to respond.” Oneida Indian Nation of N.Y. v. Madison County, 665 F.3d 408, 429 (2d
Cir. 2011) (internal citations omitted).5
ii) Timing of Notice
Next, the Court addresses the alleged timing issue. Schermerhorn argues that forty-
eight hours provided constitutionally insufficient time to prepare for the meeting.
The Seventh Circuit hasn’t “specified how far in advance an employee must receive
notice.” Griffin v. Bennett, 204 F. App’x 565, 567 (7th Cir. 2006). That’s unsurprising,
because hard and fast timing requirements are inherently inconsistent with due
process’ flexible standards. But this Circuit suggested that, in some circumstances,
“contemporaneous notice may suffice,” Griffin, 204 F. App’x at 567 (citing Staples),
as could notice the night before a hearing, Panozzo v. Rhoads, 905 F.2d 135 (7th Cir.
1990). Ultimately, courts should consider whether the employee had enough time to
“gather his thoughts and his evidence and [] make an informed decision about the
best way to respond to the charges.” Staples, 142 F. 3d at 386 (noting that a “few
hours warning” could satisfy).
Schermerhorn distinguishes those cases on their facts, arguing correctly that due
process is a flexible standard. But she doesn’t meaningfully explain why forty-eight
hours falls short in this case. Schermerhorn admits that she saw the notice two days
before the hearing. She had time to draft an email regarding the hearing seven hours
before it started. Dkt. 71 ¶ 16. And she even met with an attorney, who had time to
write a letter to the Board, the day before the hearing. Under Staples—and certainly
Panozzo—Schermerhorn had enough time to prepare for the meeting to satisfy due
process.
2) Opportunity to be Heard
The Board admits that, under its County Rules, it would have allotted Schermerhorn
a maximum of three minutes to respond to the resolution. Dkt. 74 ¶¶ 19, 21.
Schermerhorn contends three minutes is constitutionally insufficient in her
circumstances. Twenty-four Board members, however, testified or stipulated that
they would have “meaningfully weighed” the evidence and “might have reached a
different conclusion.” See dkt. 71 ¶¶ 26–35. The “flexible” due process standard

5 Courts outside the Second Circuit agree. See Pantle v. Magaha, No. 3:12-cv-290, 2013 U.S.
Dist. LEXIS 154905 (N.D. Fla. Oct. 29, 2013) (noting “[t]he problem for [p]laintiff is that he
admits . . . he had actual notice” and collecting other cases); Heard v. Bravo, CV 13-1236,
2016 U.S. Dist. LEXIS 192073, at *3 (D.N.M. July 19, 2016); Avoki v. City of Chester, S.C.,
No. 0:17-1141, 2019 U.S. Dist. LEXIS 145103 (D.S.C. Aug. 27, 2019).
essentially forecloses Schermerhorn’s argument that three minutes is per se
unconstitutional. The evidence demonstrates that the Board would have considered
Schermerhorn’s arguments.
But, more importantly, as the Board argues, Schermerhorn waived any right to a pre-
termination hearing when she failed to attend the meeting. See Cliff v. Bd. of School
Commrs, 42 F.3d 408, 413-14 (7th Cir. 1994) (“[T]he right to a [pre-termination]
hearing generally is waived when an employer offers [it] and the employee fails to
accept.”); Baird v. Bd. of Ed. for Warren Comm. Unit Dist. No. 205, 389 F.3d 685,
694-95 (7th Cir. 2004) (“We have frequently held that terminated employees who do
not avail themselves of pre-termination hearings waive their right to contest the
adequacy of such hearings”);° Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995)
(same). Schermerhorn on her own concluded that the three-minute slot wouldn’t
allow her enough time to meaningfully defend herself. She instead watched the
hearing in real-time online. It’s possible Schermerhorn rightly predicted the Board’s
ultimate vote, but to contest the decision after-the-fact requires her participation in
the initial hearing. Because she didn’t take that opportunity to be heard, the Court
must conclude that she waived the right to challenge it.
Conclusion
For the above reasons, the Court denies the County’s Motion [64] as to
Schermerhorn’s First Amendment claim, but grants it as to her due process claim.

Entered: February 12, 2025 By: WS —
Tain D. Johnston
United States District Judge

8 Noting the issue was “close,” the Baird Court ultimately found that the plaintiff didn’t waive
his right to contest the adequacy of the hearing, in part because he attended it.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10798963. Public record. Not legal advice.