COD President Breuder without contract?

DuPage Co. (ECWd) –

In the November issue of “COD This Week“, written by the President of the College of DuPage, Robert Breuder, it raised some serious questions and concerns.

Specifically, in the Rumor section of the newsletter where Breuder makes a claim that he has a contract through June of 2019.  Could this be a typo?  (click here for copy of that section of the newsletter)

What if we were to tell you that he is currently operating without any contract? Is the Board of Trustees so inept that they have not even reviewed his employment contract and addenda to it?

In 2008 Breuder entered into a contract with COD, which can be reviewed by clicking here.

 Of serious concern is the following section of that contract : 

On or before April 1, 2010, and April 1 of each year thereafter, the term of this Agreement will be automatically extended for an additional one (1) year period unless either party provides to the other, prior to the 15th day of March of such Agreement year, written notice of his or its intention to terminate this Agreement at the end of the then-current Agreement term which expires no earlier than June 30, 2012 but may be extended as provided in this Agreement. The President will notify in writing the Chairperson of the Board by February 1 of each such year that failure of the Board to give the President notice of intent not to extend the Agreement will extend this Agreement one (1) additional year. The Failure of the President to give the written reminder notice to the Chairperson of the Board waives the obligation of the board to hereunder to give its written notice of intent by March 15. The Board’s notice need not be acted upon publicly, but authorization to give such notice will be recommend in the closed session minutes of the Board.

The first concern comes from the language in the end of this statement. “The Board’s notice need not be acted upon publicly, but authorization to give such notice will be recommend in the closed session minutes of the Board.”   This may be the first verification that the attorney who wrote the contract has no clue of the requirements of public officials as it relate to taking action.  If that is the case, the attorney might want to take the Open Meetings Act training to understand legal obligations of public officials.  No action can be taken in closed session!  NONE!  All actionable items MUST be taken in public session.  Any action taken in a closed session can be overturned by the courts.

Upon receipt of a FOIA I filed Saturday it should prove interesting to see how this Board has been dealing with that particular paragraph in Breuder’s Agreement.  (Click here for copy of the FOIA)

More interesting is the response I already received!  (Click her for copy of FOIA response from COD).  Particularly in item number two, a Copy of minutes where most recent amendment or addendum to his contract was voted on. You see there are three addenda to his contract, of which the third one extends his employment agreement to 2016, not 2019.  (Click here for copy of all addendum’s to the employment agreement)

So assuming these addenda have any legal authority, his employment agreement only caries him into 2016, not 2019 as he claimed in his newsletter.

Legal Authority? 

We know that when it comes to contracts and public bodies there are key legal requirements in order for things to be binding.  One of those is openness to the public, as in all action must be taken in a public setting.  The items must be on an agenda and voted on.  As we can see here, the previous board chairmen have signed these addenda that provided a substantial increase to the pocket book of Robert Breuder, both with time and money.  Note that each and every one outlines in the very first paragraph that it is a contract between Breuder and the Board.

The COD Board is made up of seven members.  In order for any single board member to sign a contract it requires action.  Action in the form of a vote authorizing such an action to be taken.  In this case, each and every addendum must be voted on by the board in order for it to have any legal authority.

As can be seen by the FOIA response from COD, there are no minutes reflecting any authorization for these addenda.

No votes, no legal contract.

It appears the action of signing the contract was taken by previous board chairmen and done in secret, as no public record reflects this matter was ever voted on by the board.

As if those items are not disturbing enough, in reviewing this portion of Breuder’s contract, why would the law firm representing the college allow the section claiming the board’s notice to Breduer need not be acted on publicly?  Anyone with even the smallest understanding of the Open Meetings Act knows all action is required to be done in a public setting.  An additional concern is the fact the law firm allowed these addenda to be signed without board action.