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April 24, 2024

COD Motions for Interlocutory Appeal v. Breuder –

By John Kraft & Kirk Allen

On March 18, 2017

DuPage Co., IL. (ECWd) –

On March 17, 2017, the College of DuPage filed a 9-page Motion to Certify For Interlocutory Appeal the denial of the College’s Motion to Dismiss on the basis that Dr. Breuder’s contract was void ab initio.

The core issues identified for appeal involve important issues of Illinois state law. Hopefully, the trial court will grant this motion and allow the US Court of Appeals to more fully analyze Illinois State statutes, Illinois Common Law and hopefully reverse those portions of the trial court ruling which were adverse to COD.

They asked the Court three questions:

  1. Whether, under Illinois law, a board of trustees can tie the hands of future boards to hire or fire an administrator;
  2. Whether, under Illinois law, a board of trustees can enter into an employment agreement requiring all board members’ presence at a termination hearing and a supermajority to vote to terminate: and
  3. Whether, under Illinois law, a Board can agree to extend an employment agreement based entirely on action taken in closed session.

We had already voiced our opinions on these questions long before any lawsuit was filed, and they are that:

  • Unless the legislature specifically permitted contracts extending beyond the board’s tenure, they cannot be valid. An example of Legislative permission is a Water District Director, who can contract for 5 years according to the Water District Code – there are others, but we will use this one.
  • Unless the Legislature specifically stated that all board members must be present and a supermajority vote required to terminate, the contract is invalid. An example of this is the Water District Code again, where the Legislature requires a unanimous vote of all board members to terminate a Director of a Water District.
  • Actions taken in closed session are voidable according to the Illinois Open Meetings Act and you cannot contract around the OMA’s requirements.

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  • Mark Misiorowski
    Posted at 13:19h, 18 March

    COD’s Motion to Certify For Interlocutory Appeal to the US Court of Appeals for the Seventh Circuit is First Rate–well reasoned and expertly drafted.
    Thanks for sharing.

    God Speed COD!!!

  • Dennis Finegan
    Posted at 21:44h, 18 March

    I’m confused, as is the norm recently on these matters. What constitutes a “board’s tenure”? I don’t believe all positions on the board expire at the same time so how could there be a period that is board tenure? Would the board’s tenure expire on the date of the last person elected of the board that took that action? Can someone please enlighten me?

    • jmkraft
      Posted at 21:55h, 18 March

      Generally it depends on the term of the board’s offices (chairman, secretary, etc). Some can be annual, and others two years. The election code or the Community Colleges Act (in this case) determines the “board tenure” – in the case of COD, it appears to be two years since the Community Colleges Act talks about holding an organizational meeting within 28 days following each election and canvass. It also gives the college the option of board offices each year if they establish it in policy.

      • Dennis Finegan
        Posted at 00:06h, 19 March

        Thanks for the quick response to the novice. 2017 is going to be interesting year – and a great learning experience.

  • Madison Black
    Posted at 07:27h, 20 March

    I’m still confused as to why the DuPage
    State’s Attorney is not knee deep in the whole COD matter. Appears he decided a long time ago the “potato” was too hot.

    Same question. Where is the FBI and
    Treasury Department? Where is AG Lisa Madigan or the US Attorney? As always,
    public corruption does not seem to have
    much appeal – especially in Illinois.