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updated: 11/8/2017 10:29 AM

$2 million at stake in Breuder's College of DuPage lawsuit

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  • Former College of DuPage President Robert Breuder listened to the residents speak out against the $763,000 buyout of his contract before the deal was approved in January 2015.

      Former College of DuPage President Robert Breuder listened to the residents speak out against the $763,000 buyout of his contract before the deal was approved in January 2015.
    Mark Black | Staff Photographer

  • More than 300 people attended the January 2015 meeting where College of DuPage trustees approved a $763,000 retirement buyout of former school President Robert Breuder's contract.

      More than 300 people attended the January 2015 meeting where College of DuPage trustees approved a $763,000 retirement buyout of former school President Robert Breuder's contract.
    Mark Black | Staff Photographer

  • Kathy Hamilton, center, speaks with Frank Napolitano and Deanne Mazzochi during Napolitano's and Mazzochi's first College of DuPage board meeting after being elected to the panel in April 2015.

      Kathy Hamilton, center, speaks with Frank Napolitano and Deanne Mazzochi during Napolitano's and Mazzochi's first College of DuPage board meeting after being elected to the panel in April 2015.
    Mark Black | Staff Photographer

  • Breuder timeline

    Graphic: Breuder timeline (click image to open)

 
 

In 2015, three new College of DuPage trustees and the board chairwoman who helped them get elected were determined to fulfill a campaign pledge: to fire embattled school President Robert Breuder without giving him a controversial $763,000 buyout.

To do that, Chairwoman Kathy Hamilton and trustees Deanne Mazzochi, Charles Bernstein and Frank Napolitano declared Breuder didn't have a valid employment contract. They cited a state law dating to the 1890s to support the claim.

Breuder is challenging that decision in a federal wrongful termination lawsuit filed after he was fired in October 2015. And earlier this year, the trial judge in the case said Breuder's employment contract was valid.

On Tuesday, that contract will be a key issue argued in an appellate courtroom in Chicago, when lawyers on both sides of Breuder's lawsuit make the case for and against dismissing it.

End of the Breuder era

Breuder was unceremoniously fired from the state's largest community college following a series of events that began in 2014.

During his time with COD, Breuder oversaw a $550 million transformation of its Glen Ellyn campus. But there also was discord during his tenure. In September 2014, COD's full-time faculty members took a "no confidence" vote in his leadership.

The faculty vote was among several factors that prompted trustees to seek a change in school leadership. In January 2015, they approved a $763,000 retirement buyout of Breuder's contract.

The agreement called for Breuder to be paid nearly three times his base salary if he retired on March 31, 2016, about three years before his contract was set to expire. It also called for the school to name its Homeland Security Education Center in his honor.

But the deal sparked a firestorm of criticism, including that of some state lawmakers who proposed legislation to prevent other public institutions from approving similar agreements.

Hamilton, a longtime critic of Breuder who voted against the buyout, announced she was endorsing Mazzochi, Bernstein and Napolitano in the April 2015 election.

The self-described "Clean State" candidates were victorious after a series of media reports raised questions about, among other things, no-bid contracts for insiders and administrators dining at COD's upscale Waterleaf restaurant. An administrator later told the Daily Herald's Editorial Board that the media reports were "exaggerated based on what the reality was."

Once Hamilton and her political allies gained control of the seven-member COD board, they immediately put Breuder on paid leave and banned him from the campus. The board also hired attorneys to do an internal investigation of the school's policies, personnel, practices and finances.

Termination proceedings began in August 2015 after the internal investigation was completed.

Voiding the contract

It was unclear, though, whether Breuder could legally be ousted before his planned retirement date. Without the buyout deal, Breuder's employment contract wouldn't expire until 2019.

Still, Hamilton long argued that Breuder should be terminated for cause with no significant severance payment.

Hamilton and her allies achieved that goal in September 2015 by declaring that Breuder was an "at-will employee" without a contract.

They voted 4-3 to void Breuder's original employment contract, agreed upon in November 2008, and all subsequent contract extensions and addendums, including the $763,000 severance package.

COD officials, at the time, argued that Breuder's contract and all its amendments and addendums exceeded the authority of previous boards and violated state law.

Attorneys for the school cited "a line of authority" dating back to an 1892 case -- Millikin vs. Edgar County -- that determined an outgoing board can't saddle a new one with a long-term contract.

Breuder was just four months into his tenure when the board that hired him added three years to his contract, extending it to June 2015. The vote happened in April 2009 after new trustees were elected but not yet seated.

COD's attorneys argue that Breuder's contract was void "ab initio" (from the beginning) because its multiyear term deprived future boards the power to hire and fire COD's president.

Voiding Breuder's contract cleared the way for Hamilton, Mazzochi, Bernstein and Napolitano to vote to terminate him in October 2015.

The legal fight

One day after his firing, Breuder sued the board and specifically Mazzochi, Napolitano, Bernstein and Hamilton, who has since left the board.

The lawsuit alleges breach of contract, conspiracy, defamation and violation of Breuder's due process rights. He is seeking more than $2 million in compensatory and punitive damages.

Attorneys for the board and the individual trustees filed separate motions last year to dismiss all six counts of Breuder's lawsuit.

In March, U.S. Northern District Court Judge Andrea Wood dismissed one of the counts -- which alleged interference with Breuder's contract -- in its entirety. She also dismissed portions of two other counts but allowed parts of them to remain.

That prompted the attorneys for the board and the individual trustees to appeal Wood's ruling.

Due process

One question that's going to be argued in the appellate court is whether Breuder's due process rights were violated. Breuder claims Hamilton, Mazzochi, Bernstein and Napolitano denied it by suspending and terminating him without a proper hearing.

But attorneys for the trustees contend that Breuder's contract was void. As a result, Breuder was an "at-will employee," who wasn't owned a process before his termination.

In defending that argument, they say: The pact exceeded the ratifying board's power because it extended beyond that board's term. In addition, it required a supermajority vote of the board to fire him, which contradicts the Public Community College Act. Finally, the contract allowed for automatic reappointment and action in closed session, which violates the state's Open Meetings Act.

The trial judge didn't accept any of those arguments, however.

Wood, for example, said other state laws give elected boards the power to grant long-term contracts. The Public Community College Act also gives community college boards the power "to establish policies for the employment and removal of teachers and administrators," Wood wrote.

If Wood's ruling stands, the lawsuit will continue at the trial court level. But if attorneys for Hamilton, Mazzochi, Bernstein and Napolitano can convince the appellate judges to overturn Wood's decision, the case could come to an end.

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