Despite College of DuPage voiding Breuder contract, others have similar deals

 
 
Updated 10/15/2015 10:39 AM
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  • Harper College President Ken Ender has a five-year contract, common among suburban community college heads. But College of DuPage trustees last month voided President Robert Breuder's contract, saying it violated an 1892 law stating such pacts could not exceed two years.

    Harper College President Ken Ender has a five-year contract, common among suburban community college heads. But College of DuPage trustees last month voided President Robert Breuder's contract, saying it violated an 1892 law stating such pacts could not exceed two years.

  • College of DuPage President Robert Breuder's contract, set to expire in 2019, was voided last month by the college board.

    College of DuPage President Robert Breuder's contract, set to expire in 2019, was voided last month by the college board.

  • David Sam, president of Elgin Community College, works under a  five-year contract.

    David Sam, president of Elgin Community College, works under a five-year contract.

  • Waubonsee Community College President Christine Sobek's contract is for five years.

    Waubonsee Community College President Christine Sobek's contract is for five years.

  • Jerry Weber, College of Lake County president, has a three-year contract.

    Jerry Weber, College of Lake County president, has a three-year contract.

  • A two-year contract recently was approved for Oakton Community College President Joianne Smith.

    A two-year contract recently was approved for Oakton Community College President Joianne Smith.

Presidents at suburban community colleges have been given contracts of up to five years, despite College of DuPage trustees declaring that their school's top administrator -- by law -- never should have received more than a two-year deal.

Last month, COD trustees cited a state law dating back to the 1890s that limits contract lengths so they could void the employment package of embattled school President Robert Breuder. That included his contract and all subsequent extensions and addendums -- even a controversial $763,000 severance package approved in January by a previous board.

They argued that Breuder's original contract, agreed upon in 2008, exceeded the authority of previous boards and violated state law because it was longer than the two-year term of the board.

"Dr. Breuder's contract with the College of DuPage has been void since November 2008," board Chairwoman Kathy Hamilton said at the time. "I am convinced that case after legal case advances the doctrine that one board cannot tie the hand of any future board."

Same as COD, trustees at other suburban community colleges are elected on a staggered basis every two years. Officials at those schools, however, say they weren't aware of any state law that would limit the length of a president's contract to a board's term.

"This is news to us," said College of Lake County spokeswoman Evelyn Schiele, adding that school President Jerry Weber received a three-year renewal of his contract in August.

Other community colleges presidents have longer deals.

Harper College President Ken Ender last year was given a five-year pact that extended his contract through June 2019. Waubonsee Community College President Christine J. Sobek and Elgin Community College President David Sam both have five-year deals that run through June 2020.

Joianne Smith, Oakton Community College's new president, was given a two-year contract. But Trustee Ann Tennes said the board's decision to limit it to two years "was not a response to anything external."

"It was only the board's sense of what was appropriate for our district and our constituents," she said.

In Breuder's case, his contract was extended last year to end in 2019, making it a five-year pact. But college trustees negotiated a deal for him to step down in 2016 with the $763,000 severance. A public backlash ensued, followed by the election of a slate of candidates who vowed to overturn the deal.

State lawmakers recently took action to limit -- to four years -- future contracts for community college administrators. The law, which Gov. Bruce Rauner signed last month, also limits severance packages to one year of pay and benefits -- a cap inspired by Breuder's $763,000 severance deal.

State Rep. Jeanne Ives, who pushed for the new law, said community college boards statewide were operating under the assumption that they could give long contracts to their school presidents.

"It's nonsense," Ives said. "A board should not be encumbered by a previous board's appointment."

Ives said she agrees with COD's view that community college boards have new iterations every two years.

State Sen. Michael Connelly, who co-sponsored the measure, said the four-year limit on administrative contracts was a compromise with community colleges that want the ability to offer longer deals to someone they are comfortable with and they like.

"The concern was about having any limitation at all," said Connelly, adding that some wanted contracts to be as long as six years. "Personally, I think four years is a good compromise."

Still, Ives says she hopes to eventually persuade fellow lawmakers to approve a two-year cap on contracts. "We still have work to do in terms of limiting contracts," she said.

Meanwhile, it's possible there will be a legal fight between COD and Breuder, who's expected to contest the voiding of his contract and buyout settlement.

COD attorney Tim Elliott has cited "a line of authority" dating back to an 1892 case -- Millikin vs. Edgar County -- that determined an outgoing board can't saddle an incoming board with a long-term contract.

He added that the doctrine has been applied multiple times in the past 15 years. And it's "almost always under circumstances where an outgoing board seeks to give a long-term contract to ... a favored employee."

And in all instances, he said, courts have held such contracts are invalid "because the elected body lacks the power to grant such a long-term contract."

Arthur Acevedo, who teaches contracts, corporations and income tax at John Marshall Law School in Chicago, said that's "a very eloquent argument" for COD to make.

"I wish we could make that for the Chicago City Council, who bound future mayors on the 75-year lease agreement with the parking meters," Acevedo said. "It's a nice argument, but I don't think it has merit because they can enter into, for example, a 20-year lease agreement. And that would bind future boards."

Another attorney, though, says she believes COD's legal argument could hold water in court.

Maryam Judar, executive director of the Elmhurst-based Citizen Advocacy Center, said the principle of the Millikin case has been applied to county appointees, township jobs and some school district hires. It doesn't apply to elementary, middle and high school superintendents. A state law enacted in 1998 allows those individuals to be given contracts of up to five years.

She said the Millikin case is "a tool" that can be used by those who want to object to a board acting beyond its authority.

"It's viable," Judar said. "It's not a dead principle or anything. It's still a principle that's alive."

A judge might someday consider whether COD trustees correctly used the principle to justify their vote to void Breuder's contract. The board would have to prove its hands were tied by the deal, Judar said.

"I think it's 50-50," Judar said. "The devil is in the details."

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