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updated: 1/3/2014 9:34 PM

Carol Stream fire battalion chief's hearing to start Feb. 5

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Opening arguments in the termination hearing of a Carol Stream Fire Protection District battalion chief will begin on Feb. 5.

Meanwhile, key points were addressed in a Friday status hearing related to allegations that actions to fire him are retaliation for a refusal to participate in a cover-up of possible negligence that may have contributed to a choking woman's death in 2012.

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Battalion Chief Joseph Gilles, currently suspended without pay, has been charged by Carol Stream Chief Richard Kolomay for twice refusing to sign a performance improvement plan in what Kolomay's lawyers term a "serious breach of conduct."

Gilles' attorneys say his client fell into disfavor when he was asked to investigate reports of negligence by a paramedic stemming from a call on Aug. 25, 2012. Gilles' investigation supported allegations the paramedic did not follow protocols, said Gilles' attorney John Botti, and may have contributed to the death of 81-year-old Armida Nonneman of Carol Stream three days later.

Gilles says that he recommended the paramedic be fired, and the hospital and family be notified of the alleged negligence, but that he was told by Kolomay to keep his finding a secret.

Botti filed a motion requesting that documents pertaining to the choking incident be turned over for prehearing discovery purposes.

"It goes to the defense of retaliation," Botti said. "We don't really know what the documents are; they are just holding onto them saying they are irrelevant. We think it will shed a lot of light onto that aspect of the case."

Attorneys for Kolomay argued that the request was not done in a timely fashion, and the documents were not relevant to the termination hearings.

"It appears that this is an attempt to delay the proceedings," said Meganne Trela, Kolomay's attorney. "This is an attempt to continue these fishing expeditions for information that is unrelated and irrelevant to the charges filed against Chief Gilles."

Jim Knippen, attorney for the fire commission, recommended that the motion be granted.

"At this stage we don't know what might be relevant or admissible as evidence," Knippen said. "I'm not suggesting that the defense of retaliation exists. I'm saying it might exist."

Knippen also ruled in favor of Botti's request for documents pertaining to meetings Kolomay had before the performance improvement plan.

Kolomay's attorneys had argued that they were protected by attorney/client privilege.

"Our position was we don't know if they apply because we have not seen those documents," Botti said.

Gilles, a member of the department since 1995 and promoted to battalion chief Nov. 1, 2008, received a complaint from the chief Sept. 24 leading to the initial hearing in October. He was suspended without pay in December while the hearing was continued.

Gilles' attorneys have said previously that the "issue of retaliation" related to the choking incident is clear, an allegation Kolomay's attorney said has no validity.

To that end, Knippen asked both sides to submit a memorandum of law within 10 days addressing "in disciplinary cases, where retaliation is asserted as a defense, what is the extent of the evidence that can be introduced in the retaliation defense."

"You guys have both framed the argument of relevance and materiality in regard to this defense of retaliation from the onset of the proceedings," Knippen said. "It is obviously a significant issue."

The opening arguments will begin at 4 p.m. Feb. 5, with the hearing scheduled to continue Feb. 12-14.

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