With COD's Breuder on medical leave, is it legal to put him on admin leave?

  • College of DuPage President Robert Breuder has taken a medical leave of absence, though the board is still expected to vote Thursday to put him on administrative leave.

      College of DuPage President Robert Breuder has taken a medical leave of absence, though the board is still expected to vote Thursday to put him on administrative leave. Mark Black | Staff Photographer, April 2012

 
 
Updated 4/30/2015 7:08 AM

Medical leave or not, a vote to put embattled College of DuPage President Robert Breuder on paid administrative leave is expected Thursday night after a new voting bloc takes control of the school's board of trustees.

The board is scheduled to decide whether to put Breuder on leave after three new trustees -- Charles Bernstein, Frank Napolitano and Deanne Mazzochi -- are seated on the seven-member panel.

                                                                                                                                                                                                                       
 

All three are allied with Trustee Kathy Hamilton, a frequent Breuder critic, who is expected to be named board chairwoman and begin pushing immediately for sweeping reforms.

The new board majority on Tuesday announced its plans to order Breuder to step aside. The same day, the college announced Breuder was going on medical leave.

That move prompted some to question whether the board vote can proceed.

"I'm not sure legally what we can or can't do," Napolitano said Wednesday. "If we're going to take action on it, I think we need to have the legal opinion of somebody who deals with HR."

Hamilton said she still expects the vote to take place.

"We had planned days in advance of his (Breuder's) declaration of medical leave to put him on administrative leave," Hamilton said Wednesday. "And we haven't changed our plan."

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COD has been facing a firestorm of controversy since January when the board approved a $762,868 buyout package for Breuder, who is to receive that money when he retires in March 2016.

The controversy escalated recently when it became public that federal investigators issued subpoenas requesting years of records related to Breuder, college trustees, senior management personnel and COD Foundation members. DuPage County prosecutors also issued subpoenas seeking years of spending records and contract information for Breuder.

Hamilton, meanwhile, has said Breuder should be fired, for cause, and receive no significant severance payment. She was the lone trustee to vote against Breuder's buyout package.

                                                                                                                                                                                                                       
 

According to a memorandum in the board packet, placing Breuder on administrative leave would allow the board to conduct an investigation into "the policies, personnel, practices and finances of the college." The board's agenda for Thursday includes hiring a law firm to conduct an internal investigation.

As for Breuder's medical leave, a COD spokesman has said it was approved under policies and protocols the college established to comply with federal guidelines for the Family and Medical Leave Act.

COD officials on Wednesday refused to disclose how long Breuder's leave could last.

Under the Family Medical Leave Act, employees are entitled up to 12 weeks off, without pay, for medical reasons that could include "a serious health condition that makes the employee unable to perform the essential functions of his or her job," according to a COD human resources document.

Employees who have accrued vacation and sick leave must use it in conjunction with FMLA leave.

According to Breuder's employment contract, he is entitled to 25 vacation days, 15 sick days and five personal days each year. College officials on Wednesday refused to provide the exact number of leave days Breuder has remaining.

Under Breuder's contract, he also is eligible to receive an annual "respite and renewal leave" of up to 12 days to be taken during the summer, though he must seek the approval of the board chairman on or before April 30.

COD employees can take up to an additional year for an unpaid leave of absence if all other paid leave is used, according to the school's policy.

COD employees must fill out a medical leave request form and get a medical certification from a doctor. The college's benefits manager evaluates employees' requests for leave.

During the leave, the college can ask that the employee provide recertification of the health condition. The employee also must give the college updates in writing about his or her status and intent to return to work.

Breuder must undergo an annual comprehensive physical examination by his personal doctor, at the board's expense. His contract states he must provide a comprehensive report of that examination at the board's request.

Meanwhile, one legal expert said Breuder's medical leave may not preclude trustees from taking action to place him on administrative leave. And it may not protect him from the possibility of being fired.

"If they were going to terminate his employment anyway and it has nothing to do with his health condition, I believe they can still go forward with it," said David Porter, a Chicago attorney who specializes in employment law. "There has to be a provision for termination for cause. It would be a matter of, 'Did he violate that?'"

As part of Thursday's vote, Executive Vice President Joseph Collins is expected to be appointed acting interim president of the college.

"I really don't have anything to discuss at this time," Collins said Wednesday in an email. "The appointment has not occurred yet, so it would not be appropriate for me to comment on it. I will be in a better position to make a comment after Thursday's board meeting."

Faculty Association President Glenn Hansen said Collins already has been talking to the Faculty Senate to address concerns about how the college is being run.

"Until they find a permanent interim president, we look forward to working with Joe," Hansen said.

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