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:
- Whether, under Illinois law, a board of trustees can tie the hands of future boards to hire or fire an administrator;
- 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
- 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.