DuPage Co. (ECWd) -
In the world of local politics it is not very often that public officials are handed an opportunity to fix things that also just happen to have the "full" attention of the public they serve.
A recent opinion delivered by the Attorney General regarding COD and their violation of the Open Meetings act was covered in this story.
As outlined in that article, the Illinois Open Meetings Act allows the DuPage County State’s Attorney, Bob Berlin, to take action and prosecute such violations within 60 days of the discovery of those violations by his office. As reported, the AG ruling is one violation that his office is now looking into however there is much more to the story and a golden opportunity for a prosecutor.
As outlined in a press conference that was delivered in front of the State's Attorney's Office on Friday of last week, we believe the evidence supports that COD has violated the OMA on each and every action taken on Breuder's Contract except for the 4th addendum. (Click here to see the Memorandum provided to SA office)
The only reason the 4th addendum is not in question is because they fixed the error after a suit was filed against them. Regardless, if all the previous contracts and extension are declared null and void then, so too, would the 4th addendum as you can't have an addendum to something that does not legally exist.
Many have speculated the State's Attorney's office won't touch this because of possible political influence in DuPage County, however, I am not convinced of that.
If he were to prosecute and convince the courts that yes, those contracts were done in direct conflict with the spirit and intent of the law, which they were, and have said contracts declared null and void by the courts, he would garner overwhelming public support that may well secure a lengthy political career. By no means are we implying he should or would take this on for political gain as the rest of this story should assure you he will do the right thing and place the law ahead of politics. The fact he has a chance to bring both together though is a political golden springboard that only comes along once in a life time.
Bob Berlin's track record pertaining to COD and Open Meetings Act violations appears to point to a position that they had better follow the law or his office will take all legal steps necessary to force them to.
For example, May 25th, 2011, Rynda Allison, the same woman who filed a complaint with the AG that resulted in the recent OMA violation confirmation at COD, also sent a letter to the State's Attorney's office the month before on a separate OMA matter.
Once again, Former chairman Dave Carlin was found in violation of the Open Meetings Act and taken to school by the State's Attorney. What did Berlin's office tell Carlin about that complaint?
"I expect compliance with the Illinois Open Meetings Act prior to, or by the next regularly scheduled meeting, June 23 , 2011."
"This violation should be rectified, and if the Board fails to do so, I recommend that this office pursue all legal remedies available."
Note that he did not mince his words. He called it a violation, as it was, and told them to rectify the situation or his office would pursue all legal remedies available. COD did in fact fix the problem and avoided prosecution. That was in 2011. (Click here for his letter to COD and the complaint sent to his office)
Fast forward to 2015 and we find that we have very similar issues taking place and now his office is once again called on to act. What can he do? Telling COD to rectify it themselves or face legal action is one way. How does that work?
COD could call a meeting and make the case that Breuder's initial contract, extensions and secret extensions violated OMA and declare those actions void. As soon as that happens you can rest assured Breuder would lawyer up and file a lawsuit against the college.
The up side to this option, assuming the board is given direction from the SA to fix the problem or face action from his office is that COD would have simply been following the direction of the State's Attorney, which may minimize future claims by Breuder against COD in the event he were to succeed in this fight.
I suggest COD terminate his employment immediately based on those OMA violations and declare the contract null and void. Let him walk away with what he has already been paid and call it good. If he wants to sue, fight that fight when it comes.
The other option, which would put Berlin into the spotlight of a highly viewed public corruption scandal, would be for him to take action against COD for the violations of the OMA pertaining to Breuder's Contracts.
Is there enough legal posturing to make the case?
We strongly believe so and is why we joined in the recent press conference held last Friday by Adam Andrzejewski in front of Bob Berlins office. (Click here to see the Memorandum provided to SA office)
In addition to our position within state law, we also happen to have additional information that may well play a key role in how this all turns out.
"Los Angeles Superior Court judge on Wednesday (April 29th, 2015) nullified a nearly $400,000 severance agreement between Pasadena City College and its previous president after finding that school trustees broke open meetings laws while negotiating the deal." (Click here for that story)
An Appeal case from the the Circuit Court of Cook County, Illinois, December of 2007 had some very interesting legal language that may also play a role with COD and possibly with Berlin's decisions making regarding taking this case forward.
"payment of severance benefits "is permissible if such benefits form part of an employment agreement or employment policy which has been agreed to by the township and the employees in advance."
"In Advance", which means it was part of the original contract. In Breuder's case, there was no advance agreement to any severance. He submitted a retirement letter and after the fact the board gave him a severance that is the same as a GIFT, which is not allowed under Illinois Law and actually is a violation of Article VIII Section 1, which is a felony.
"a payment or allowance in excess of that which was fixed by law or contract at the time when services were rendered, and when no further services are contemplated, is a gift for the private benefit of the individual, which serves no public purpose."
"A gift or gratuity for the benefit of an employee who will render no further service, which has not been agreed to in advance by the parties, and to whom all compensation has been paid in accordance with an ordinance or agreement, however, would ordinarily not be permissible."
So the question that lies before all those of District 502 is will the State's Attorney prosecute the OMA violations that have been presented to him and seek nullification of the actions taken by those violations?
He has 60 days from his discovery of the facts to act!
The clock is ticking!