Is the Contract of COD President Breuder Legally Valid?

DuPage Co. -(ECWd) –

All indications are that President Breuder has been allowed to function in his capacity as President without any type of legal contract or appointment since the effective termination date of his first employment contract, which was 2012.  This represents a significant failure by the the law firm providing legal guidance to the Board of Trustees, and provides strength to the Quo Warranto action filed against Breuder.

At the end of November, we published a detailed article pertaining to the failings of the COD trustees and the illegal contract addenda for President Breuder.  If you have not read that article, we encourage you to read it prior to reading any further in this one.  (Click here for previous contract article)

As referenced in the previous article, we were waiting on a Freedom of Information request which can be viewed by clicking here.  The first response from COD was to extend the time frame for compliance and that extension can be viewed here.

Before we dive into COD’s response to that request, let’s take a look at the meeting in which the Board took action to first extend his contract.  We will lay out the foundation as to why that contract is ultra vires (void).

For starters, Breuder’s original contract started in January of 2009 and was a three year contract.

Can anyone explain why on April 16th, of 2009, less than 4 months after the start date of his contract, the board took action to extend his contract another three years? (Click here for the addenda approved)

It is not like his 4 months of employment was enough to lay any type of foundation to justify an extension, yet that is what they did.  When a person is less than 4 months into their employment contract why on earth would you give them another three years?  The answer is surely in the election!  The previous week they knew the election results and those candidates took office in May.

All things considered, is it possible this was done to protect a long term agenda?

The April 16th, 2009 Board Agenda contains numerous items specifically listed, such as “Comments”, “Information”, “For Approval”.  The purpose of the agenda is to inform the public of the business to be conducted and actionable items must be detailed as to ensure the public knows “what” action is going to be taken.

The Agenda from that meeting DOES NOT contain any action item for Breuder’s Contract.  The most they could legally do under the posted agenda would be to discuss it.  Anything further is a violation of the Open Meetings Act.  In this case, it is clear which items are going to have action taken because they are all established under the, “For Approval”, headings.  Note, the agenda lacks any reference to approving his contract or anything related to it! (Click here for the agenda)

Minutes from that meeting reflect a motion was made, seconded, and a vote taken, however, the word “contract” is never mentioned at all in that motion.

That is because the motion was not on Breuder’s contract.  It was a motion regarding an “addendum” to his contract. 

Not only was the action taken not even remotely listed on the agenda, it provides even more strength the action they did take is invalid, because the agenda failed to inform the public with sufficient enough information as to what was being voted on. The common person would have no indication and could not reasonably conclude that the action to be taken was to vote on an addendum to the referenced contract!  (Click here for the minutes reflecting action taken)

Voting on an addendum for an employment agreement must be listed as an item for approval or action on an agenda.  No agenda listing for the action taken, makes the action illegal and reversible.

The reason it is illegal and reversible is such action violates the Open Meetings Act (OMA) as it was not on the agenda with enough specificity to inform the public of the intent of the agenda item.  This is supported by the clear listing of all items that were up for approval.  Had they intended to approve anything related to his employment contract it should have been listed in such a fashion as the rest of the approval items. In addition, the Attorney General’s Public Access office has ruled numerous times such an actions violate OMA.

These details, in addition to those exposed in our previous article, and now being used in a Quo Warranto action, appear to be more than sufficient to force Breuder from his post, or at a minimum force him to pay back all the compensation received during the time frame he has been functioning without a legal contract or appointment. (click here for copy of Quo Warranto filing)

The FOIA response regarding key requirements in Breuder’s contract clearly point to additional failures with COD’s legal guidance, assuming they received any, as well as failures of the board members.  Failure, because they are the officials tasked with ensuring matters are complied with.  Considering trustee McGuire made a point that the board only has one employee, I find it interesting she was a party to additional failures pertaining to her obligations with Breuders employment.

Items in the FOIA request were obligations the board had pertaining to Breuders contract:

1. All copies of the COD Presidents notification in writing to the Chairperson of the COD Board pertaining to board notice of intent not to extend the Agreement.

• Breuder notified the chairman of the board as outlined in his contract however there is no evidence the Chairman ever shared the information with the rest of the board, thus concealing information from the other elected officials! Out of site out of mind. No response from the “Board” and he gets another year on his contract, so he thought. How can a board respond if they are not made aware of the notice provided to the Chairman? (Click here for those notifications)

2. Copy of minutes where a committee was formed by the Chairman of COD since 2008 for the purpose of assessing the Presidents Performance

• “No documents responsive to my request!”  The past board Chairman as well as the current Chairman, Erin Birt, FAILED to ever establish a committee to evaluate Breuder’s performance, which was a requirement in the contract.

3. Copy of all committee meeting minutes by the committee established to assess the Presidents performance since 2009.

• “No documents responsive to my request!”  No committee formed to evaluate supports no minutes of such a meeting. So now we are assured the Fox is in charge of the hen house.
  

4. Copy of the Boards written evaluation of the President since 2009.

• “Disclosure of performance evaluations are exempt under FOIA”.  Note they did not claim they did not have such a record.  In fact, the response is an acknowledgement they have it but are not releasing it because it is exempt.  How can they have a copy of a performance evaluation when there has never been a committee formed to assess Breuder’s performance? Who wrote this exempt performance evaluation?    

———

If I were a sitting board member my response to the above matters would be quite simple.

“The requirements in his contract ended being any obligation of this board upon its termination in 2012.  It is clear the actions taken during the April 2009 meeting were not done in compliance with the law.  That being the case, all indications are he is not a legal employee of this institution. 

Any and all expenditures by Breuder to include payments for his personal luxuries such as the Waterleaf and Inn at the Waters Edge, compensation, gun club etc, are all expenditures this board should have never authorized because it is clear the record reflects he is not even a legal employee of COD during this time frame. Those funds should be recovered!

Our failure in doing our job has placed us in quite a pickle.  These failures, which I blame both ourselves and our legal counsel, has created a tangled web of deceit.  I suspect, truth be known, Breuder was well aware of the manipulation that appears to have taken place in this matter.

Our Chairman, having not shared these notices about his contract renewal clause with the rest of the board appears to be an intentional concealment of public records that directly effect the financial condition of this institution and its direction and may have been done with the purpose of enriching Breuder. 

Fortunately, those concealed auto renewal notices have no bearing since his contract was never legally extended in 2009.

I am of the opinion we are sitting in a position where we don’t have a legally sitting President of this College, which if true is an atrocity to our system of government and a clear example of our legal counsel failing to do their job.

At this time I believe we should turn this matter over to the State’s Attorney for a criminal investigation pertaining to all expenditures by Robert Breuder that had no public purpose nor statutory authority.  We should immediately inform Breuder that he is not employed at COD effective at the termination date of his original contract and he needs to vacate his office immediately.   We need to appoint an interim President until we are able to properly seek a qualified person to hold that position.”

As that process moves forward it has become clear we also need to purge portions of, and possibly, the entire Executive Management Team for their failures exposed in numerous other questionable matters. 

——–

Considering I am not a trustee, I don’t have any say in the matter, however, I pray some people are paying attention to the facts of the matter and take appropriate action to hold these people accountable.