Berlin: College of DuPage broke law with Breuder's contract extension
College of DuPage trustees violated the Illinois Open Meetings Act two years ago when they agreed in closed session to extend the contract of then-President Robert Breuder -- an extension that should be overturned, DuPage State's Attorney Robert Berlin says.
In a complaint filed this week in DuPage Circuit Court, Berlin says the board acted improperly during a 90-minute executive session on March 6, 2014. A majority of trustees on the seven-member panel voted by a show of hands to extend Breuder's contract by an additional year to 2019 and to authorize then-Chairwoman Erin Birt to relay word of that decision to Breuder, the complaint says.
Berlin said the "showing of hands was ... a vote resulting in a 'final action' within the meaning of Open Meetings Act since the board of trustees did not subsequently repeat the vote in an open session."
Because the board took final action in the closed session, he is asking the court to declare that it violated the act and to overturn the contract extension.
Such a move would further call into question the $762,868 severance package Breuder received in January 2015, in which the remaining time on his contract was a factor. The buyout sparked a firestorm of controversy and fueled the election of three new trustees last spring, and the new board fired Breuder not long after it was in place. The board also voided Breuder's contract, including the buyout package.
"We haven't yet seen the allegations, and we will need time to deliberate the full impact of the complaint," said Deanne Mazzochi, now the COD acting chairwoman who was not on the board at the time of the contract extension. "Our board must be absolutely committed to accountability, full transparency, and following the law."
State's attorney spokesman Paul Darrah declined to elaborate on the complaint. "We are not going to comment as it is now pending litigation," he said.
Breuder's attorney, Martin Dolan, said in a statement Breuder wasn't present when the contract extension was discussed by the board in closed session and he "relied on the board chair's communication pertaining to his extension."
Birt didn't respond to a request for comment Thursday night.
In his complaint, Berlin said he reviewed minutes and verbatim records of four closed meetings -- two in February 2014 and two in March of that year. Most of the deliberations during those meetings were appropriate for closed sessions, he said.
Ironically, the board was not required to vote to extend Breuder's contract. His agreement with COD called for his contract to be extended automatically for a year every April 1 -- unless either Breuder or the board provided written notice of their intent to terminate the pact.
Those contract extensions, which began in 2010 and were not made public, helped drive up the cost of Breuder's eventual $762,868 severance package.
In the March 6 closed meeting, Berlin said, the board "recognized that taking final action to authorize such notice in closed session would be contrary to the Open Meetings Act."
But the board's lawyer, who was not identified in Berlin's complaint, asked trustees for a show of hands to reflect support for extending the contract.
"The contract calls for authorizing the Chair to extend," the lawyer told trustees. "I don't want a voting in a closed, so why don't we just raise hands as to who would be willing to authorize the Chair to extend the contract."
Berlin initially sought records of the closed session meeting in January this year; a month later the COD board voted 4-3 to comply with the request.
Breuder was fired last October. Questions later arose about the validity of the contract extension because of a claim in a federal wrongful termination lawsuit filed by Breuder.
According to the lawsuit, Birt told Breuder on March 7, 2014, that the majority of trustees had extended his contract through 2019.
COD officials said records from January 2014 show that Breuder sent a letter to Birt stating he wanted to extend his contract an additional year through June 30, 2019.
One month after getting the extension, in April 2014, Breuder expressed an interest in retiring in March 2016. He and the board then spent nine months discussing the terms and conditions of his planned departure.