DuPage Co. (ECWd) -
"Attorney General Ryan noted that the debates of the General Assembly "strongly" signaled its legislative intention that voidance was a remedy available only for violations which occurred in closed sessions. The transcripts of the debates themselves reveal just how strong that intention was"- DuPage County State's Attorney page 3
For over a year we have challenged the legality of Robert Breuder's contract on several fronts. Most of those matters tied to contract dates in conjunction with specific meeting dates and what we considered to be illegal action in open meetings.
In light of the Motion to Dismiss filed by COD, we firmly agree that the contract in question was in fact a violation of well established case law, and are hopeful the Federal Courts will see it the same way.
However, in the event the Federal Courts find otherwise, new evidence has come to light, and should raise serious concern for those involved. It now appears the very issues raised in DuPage County State's Attorney Bob Berlin's analysis as to what 'would' lead to justifiable action by his office on an OMA violation may have been handed to us on a golden platter.
A key point in the Breuder lawsuit, which we pointed out in this article is listed below.
- On March 7, 2014, Dr. Breuder was informed by then-Chairman Erin Birt that the majority of the Board had approved the extension of his Employment Contract to June 30, 2019.
That was they day after a special meeting was held at COD. There are no records of any kind on any agenda in 2014, or any other year, that listed a contract extension for Breuder to June 30, 2019. Since there is no public notice of such action, we know it was not properly posted, which is one of the issues raised in Berlins analysis.
"A key consideration is that the Attorney General specifically concluded in her determination letter that the College provided adequate notice of the meeting and of the business before it under the version of the Act that was in effect at the time." (Dupage County State's Attorney Bob Berlin - page 6)
Mr. Berlin, it is clear, according to Robert Breuder's Federal lawsuit filing, a claim has been made of a majority vote being taken on what appears to be March 6th, 2014 when looking at the record in entirety. The very reason you pointed too, for not moving forward on an OMA violation was the fact, in the past action by the board, it had provided adequate notice of the meeting, as pointed out by the Attorney General.
That is not the case here as there was no such notice found anyhwere in the record that the board was going to take any action pertaining to Breuder's contract in March of 2014.
Since there was no such adequate notice of this action to be taken, clearly that is a prosecutable OMA violation.
In addition, considering there is nothing in the open meeting minutes outlining this approval, the only explanation is that it was action taken and approved during a closed session.
"If the Board reached a consensus to permit Dr. Brueder's contract to renew in a closed session, its decision not to act would constitute the taking of a final action in a closed session and thus violate the Open Meetings Act." (Dupage County State's Attorney- see page 8)
The key, as outlined in my public comment during last night's COD meeting, rests in what the closed session record contains. There is no other explanation for Breuder's claim in a federal court filing. (Public Comment 00:30:05 - 30 minute 5 second mark of the video)
March 6th, 2014, there was a special meeting called. Considering no such action item was listed on the agenda, we find one prong needed to prosecute, as referenced by State's Attorney Bob Berlin.
All indications are the action had to have taken place in a closed session.
"As a practical matter, the only sanction which could impact the validity of the third addendum is a judicial declaration that the Board's violation rendered its action null and void. However this sanction does not appear to be available because the Board's violation occurred during an open, rather than a closed meeting." (Dupage County State's Attorney- see page 2)
I am placing my bets that if Berlin were to obtain the closed session record, both written and recorded, he will find that action was in fact taken during a closed session meeting, thus he could in fact prosecute under the OMA statute and seek a judicial declaration that COD violated OMA by taking action in a closed session. In addition, that action taken, using his own analysis, can in fact be voided by the courts, which has a direct impact on Breuder's claims!
It should be noted that this meeting in question and the action taken is not about a Paragraph F issue in the Brueder contract as those matters were related to a so-called one-year automatic extension. In this case, it is being claimed in the Breuder federal lawsuit that board took action and extended a contract to June 30, 2019, which is over 5 years down the road. Hardly a one year Paragraph F matter.
At a minimum, we are asking DuPage County State's Attorney to investigate what appears to be illegal action taken during closed session on March 6th, 2014.
A date that had never exposed itself in anyone's investigation until Breuder filed his case in the Federal courts and pointed us to this obscure March 2014 date - Thank you to the Breuder Attorney!
We believe Berlin should prosecute COD under OMA in the event those closed session records prove what we believe took place. What is accomplished by investigating this and prosecuting is it will expose the smoking gun.
The smoking gun being the key answer to the question of why Birt and others on the old board have fought so hard to protect Breuder and not disclose information while they were in charge. If action was taken, then Erin Birt, an attorney, would have clearly violated OMA and she should be held accountable, as should every other person who voted for this contract extension in secret.
We contend Erin Birt violated OMA, as did the rest of the board who took action in a closed session to extend Breuder's contract to June 30, 2019.
The DuPage County State's Attorney Bob Berlin must investigate the March 6th, 2014 meeting.
This call for action from his office is based on his own comments!
"Please do not construe this opinion as addressing or otherwise impacting the sufficiency of any other argument or legal theory that the Board may wish to assert in order to determine the validity of Dr. Brueder's contract or any subsequent addenda thereto." - Dupage County State's Attorney Bob Berlin - see page 8
Clearly, this information falls under the purview of another argument or legal theory. That being the case, it appears to be welcomed by Mr. Berlin based on his closing statement above.
We challenge the board of trustees, and especially the three who make up the 'Breuder Board', Birt, McGuire, and Wozniak, to vote in favor of releasing the closed session recording of the March 6th, 2014 meeting so the public knows the truth.
A refusal to do this clearly sends the message that your claims of being about transparency is nothing more than lip service.
We ask that the COD legal council review this information and forward to the proper authorities for their review and appropriate action.
In addition, in the event our analysis is correct, which we firmly believe it is, we are also placing bets that the COD attorney was present during those violations and allowed it to happen or facilitated the action. If that turns out to be the case we fully intend on filing an ARDC complaint against that attorney.
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