McGuire's letter to Madigan

Here's a copy of a letter from Dianne McGuire to Illinois Attorney General Lisa Madigan, edited to remove McGuire's home address.

October 27, 2015

Dianne McGuire

Lisa Madigan

Illinois Attorney General

Attn: Opinions Bureau

500 S. Second Street

Springfield, IL 62706

RE: Request for Opinion

Indemnification of Board Members

Dear Attorney General Madigan:

The College of DuPage (COD) is a community college established by and operated under the Illinois Community College Act (110 ILCS 805/1-1 et seq.). The Board of Trustees for the College of DuPage is made up of seven members who are elected in staggered 6-year terms at consolidated elections. The current board is comprised of the following members: Chair Katharine Hamilton, Vice-Chair Deanne Mazzochi, Secretary Frank Napolitano, Charles Bernstein, Erin Birt, Dianne McGuire, and Joseph Wozniak.

Mazzochi, Napolitano, and Bernstein were elected to the board at the April 2015 consolidated election. At the first meeting of the new board on April 30, 2015, these three new members joined Hamilton in voting to place COD President Robert Breuder on administrative leave. At the same meeting, these four trustees then hired new law firms (Rathje & Woodward and Schuyler, Roche & Crisham) whose attorneys have personal and political connections to Hamilton. These four trustees then voted on October 20, 2015 to terminate Dr. Breuder's employment at COD.

On October 21, 2015, Dr. Breuder filed a complaint in the U.S. District Court for the Northern District of Illinois against the College of DuPage (COD) and four trustees of COD in their individual capacities (please see the enclosed complaint). The complaint includes six counts, including violations of due process, conspiracy, breach of contract, tortuous interference with a contract, and defamation. The counts involving conspiracy, tortuous interference with a contract, and defamation are aimed solely at the named trustees (Hamilton, Mazzochi, Napolitano, and Bernstein) in their individual capacities. These counts also include allegations of wrongdoing prior to the election and seating of Mazzochi, Napolitano, and Bernstein as members of the board.

It is expected that Hamilton, Mazzochi, Napolitano, and Bernstein will seek indemnification from COD to cover their legal expenses associated with the complaint. Section 3-29 of the Community College Act gives the Board of Trustees power “To indemnify and protect board members … against civil rights damage claims and suits, constitutional rights damage claims and suits, death, bodily injury and property damage claims and suits, including defense thereof, when damages are sought for alleged negligent or wrongful acts while such board member … is engaged in the exercise or performance of any powers or duties of the board….” 110 ILCS 805/3-29.

Because I do not believe the college's legal counsel will provide candid and unbiased advice regarding the indemnification of the four trustees responsible for hiring them, I request that you provide opinions on the following three questions of law:

1. Does the Board of Trustees need to affirmatively vote in open session to authorize indemnification, or is indemnification automatic as a matter of law?

2. If an affirmative vote is required, do the trustees who stand to benefit from such indemnification need to recuse themselves from voting on such indemnification?

3. Does section 3-29 empower the Board of Trustees to indemnify board members against claims for conspiracy, tortuous interference with a contract, and/or defamation when these types of claims are not included among the claims listed in the section? Can conspiracy, tortuous interference with a contract, and/or defamation be considered “the exercise or performance of any powers or duties of the board” within the meaning of section 3-29?

4. Does section 3-29 empower the Board of Trustees to indemnify board members against claims arising from actions occurring before the members' election and service as members? Specifically, can members Bernstein, Mazzochi, and Napolitano be indemnified against claims of conspiracy, tortuous interference with a contract, and defamation when the conspiracy was formed by these persons before their election as members, when acts of tortuous interference were committed by these persons before their election as members, and when these persons made defamatory statements before they were elected as members?

Thank you for your consideration of these questions. Contact me should you have any questions or need additional information.

Sincerely,

Dianne McGuire, Trustee

College of DuPage

Encl.

cc: College of DuPage Board of Trustees (w/o enclosure)

Joseph Collins, Acting Interim President