Could Breuder's contract be ruled invalid?
If the College of DuPage board improperly approved past contracts for President Robert Breuder, can his current contract and $763,000 severance agreement be undone?
While it might be possible, contract law experts liken any such attempt to peeling an onion - a somewhat unpleasant process expected to entail a layer-by-layer dissection of board actions even before Breuder's installment in 2008. Should they go down that path, current COD board members should expect to be met with arguments by Breuder and his attorney that the beleaguered president was treated no differently by the board than his predecessors, experts say.
Attorney Mark Stern of Oak Brook said the Illinois attorney general's July 24 opinion that the board violated the Illinois Open Meetings Act has the potential to create a passageway for the recently elected board to terminate Breuder before his scheduled March 2016 departure.
The attorney general found COD's board of trustees failed to properly inform the public in 2011 that it was voting on a contract extension for Breuder.
Stern, a partner at the Chicago law firm of Burke, Warren, MacKay and Serritella who won a state Supreme Court case against Wheaton Warrenville Unit District 200 over a 2006 superintendent's contract, said an argument "can certainly be made" that Breuder's contract is not legally binding if it was not properly presented or properly voted on.
That's a route that attorneys who are representing the college are likely considering, experts say, though college officials have declined so far to tip their hand at their legal strategy.
Current COD attorney Daniel Kinsella told the Daily Herald he has "no position at this point" on the matter. Attorney Kenneth Florey, general counsel under the previous board, declined to comment, as did two other past COD attorneys. Neither Breuder nor his attorney replied to requests for comment.
"We are vitally interested in the applicability of the attorney general's letter opinion to our legal relationship to Dr. Breuder. Our attorneys are reviewing all options," board chairwoman Kathy Hamilton said in a statement.
Key for both sides in any upcoming legal wrangling is having a solid handle on how Breuder's deal unfolded.
The board hired Breuder in November 2008 with a three-year deal. He's since been awarded numerous contract extensions, raises and perks.
Attorney General Lisa Madigan's opinion found the board violated the state Open Meetings Act when it adopted a third extension to Breuder's contract in July 2011. Madigan said the board violated the act because it failed to provide sufficient public notice of the meeting and disclose information concerning the extension before it was approved.
Now, watchdog groups including OpenTheBooks.com and Edgar County Watchdogs are questioning whether other board actions over the years, including prior contract extensions and amendments, might have run afoul of the law, including scrutinizing a provision that caused Breuder's contract to be automatically extended each year unless trustees acted to terminate the pacts.
"The new board is essentially picking up someone else's mess," said Rick Lofgren, a Glen Ellyn contract law attorney who's argued numerous cases both in defense of and against the legality of business contracts.
However, the college might still be on the hook for the actions of the former board - even if some trustees who served on past boards said they did not fully understand the terms they voted on, Lofgren said. "At the end of the day, it's a similar situation as if you're buying a car. If you didn't pop the hood to see that there was no engine, who are you going to blame?" he asked.
The contract terms the board agreed to when it hired and retained Breuder - however inflated some might suggest they are - were nevertheless approved by board members at the time, he pointed out. It was that first 2008 contract, which was renewed several times by the board, that spelled out Breuder's legal entitlement to collect a severance agreement.
"My basic reaction is that the deal was struck years ago and that's when it should have been scrutinized," Lofgren said. "Contract law doesn't allow you to walk away from sour grapes."
Any fight has the potential to increase attorney fees, which rose to $687,000 for COD in just three months this year as a result of a federal inquiry into administrative practices.
Naperville attorney Shawn Collins said COD could be responsible for Breuder's costs if the terms of the contract end up in court.
Past board President Dave Carlin has said board members' extension of Breuder's 2011 contract was part of a regular practice that had been in place since at least the mid-1990s and was used with Breuder's two predecessors.
Breuder could argue that the board had full knowledge of what it was doing.
"If (I were representing him) I'd try to align his contract with the prior presidents' contract to see how similar or dissimilar they are. If they're similar, I would say, 'This is how they've done business for years,'" Lofgren said.
Breuder, now on paid leave, is scheduled to get a $762,867 buyout package when he steps down March 31. The arrangement has drawn the ire of a number of residents, faculty members and state lawmakers.
"People are upset with the board passing the severance package. When that occurred, the horse was already out of the barn," Lofgren said. "When they signed the original contract they gave him that right."
Possible legal arguments over Breuder's contract with COD
<b>The COD board majority</b>Board members seeking to terminate COD President Robert Breuder's contract could argue Breuder's contract wasn't legally entered into if certain requirements, like the Illinois Open Meetings Act, weren't met.
"There are a number of things that happened at different stages that all led to a severance package," Glen Ellyn attorney Rick Lofgren said. "It's not uncommon that people will try to go back to the root of the problem, in the attempt to nip it in the bud and say it's unenforceable."
<b>Breuder</b>If Breuder's contract is challenged, his attorneys could argue boards of directors are bound by votes approving the provisions, which included automatic rollover clauses, over the years.
"I'd try to align it (his contract) with the prior presidents' contracts to see how similar or dissimilar they are. I would say, 'This is how they've done business for years.' Because Breuder worked according to the contract set before him by the board of trustees, attorneys could argue it would be unfair to undo it," Lofgren said.
Also, the board voted two separate times to approve Breuder's $763,000 severance package in January, after complaints surfaced about whether proper procedures were followed in the first vote.