Former COD chairwoman balks at turning over secretly taped conversations in Breuder case

Former College of DuPage board Chairwoman Kathy Hamilton is trying to prevent conversations she surreptitiously recorded from being entered as evidence in a wrongful termination lawsuit brought by former COD President Robert Breuder.

An attorney for Hamilton this week filed a motion seeking a protective order to stop the taped conversations from being turned over to Breuder, who has requested them as part of his legal action. The motion says disclosing the recordings would expose Hamilton to criminal and civil liability.

Recording a conversation without the consent of the others in it generally is against the law in Illinois.

The legal fight over the secret recordings comes more than four years after Breuder claimed in a federal lawsuit that he was wrongfully fired.

Breuder filed his lawsuit in October 2015, one day after being fired. The suit names the board, Hamilton and three current and former members — Deanne Mazzochi, Frank Napolitano and Charles Bernstein.

Hamilton, Mazzochi, Napolitano and Bernstein voted on Oct. 20, 2015, to fire Breuder roughly five months before he was scheduled to step down with a $763,000 severance package.

Breuder's lawsuit claims Hamilton, with the help of the other trustees, ran a “malicious and wrongful scheme” that “tarnished” his professional reputation while trampling on his contractual and constitutional rights.

The lawsuit also claims the defendants decided to terminate Breuder “long before October 20, 2015, based solely on their personal interests and political agendas.”

The lawsuit is still in the discovery phase.

Hamilton's motion for the protective order was filed Tuesday. Three other motions and two documents also were filed Tuesday and were sealed.

According to Hamilton's protective order request, she “without consent, secretly recorded conversations between herself and co-defendants, Mazzochi, Napolitano, Bernstein and non-parties.” It says she made the recordings “because of her dyslexia.”

Her lawyers argue that production of the recordings would violate state law and cause Hamilton “prejudice and harm.”

“Not only is it a violation of the Illinois Eavesdropping Act to have recorded the conversations but it is also a crime to produce them, exposing Katharine Hamilton to criminal prosecution and also civil action,” the motion reads.

Because disclosing the recordings would expose Hamilton to potential criminal charges, the motion says she has a Fifth Amendment right to refuse to produce them.

“Defendant Katharine Hamilton's motion for protective order should be granted regarding the production of the recordings because said production exposes her to criminal and civil liability and she is protected by the Fifth Amendment of the Constitution of the United States,” her lawyers wrote.

On Wednesday, Hamilton's attorneys sought to have the motion for the protective order sealed from public view, and a judge granted the request.

The original motion said it was “filed under seal pursuant to March 11, 2020 order,” but it was publicly available when the Daily Herald obtained it Wednesday morning.

Attorney Aldo Botti, who represents Hamilton, said he could not comment on the document, which he says was mistakenly made available.

An attorney for Breuder didn't immediately respond to an email from the Daily Herald.

Frank Napolitano, the current chairman of the COD board, and Deanne Mazzochi, now a state representative, declined to comment.

In the meantime, it's unclear when the trial will begin.

During his time at COD, Breuder oversaw a $550 million transformation of its Glen Ellyn campus. But his tenure also was filled with discord, including a 2014 “no confidence” vote by faculty members. That faculty vote was among several factors that prompted trustees to seek a change in school leadership.

In his lawsuit, Breuder claims he was denied due process. He alleges that a board-approved investigation into his activities during his tenure as president was a “witch-hunt” that resulted in no evidence of wrongdoing.

Mazzochi, Napolitano, Bernstein and the board have denied those allegations.

The board's vote to fire Breuder voided the school's $763,000 severance package with him — a package approved by a previous board and staunchly opposed by Hamilton and her allies.