DuPage Co. (ECWd) -
Why would a fired law firm, Community College Association, and the Illinois Community College Board Executive Director provide bad advice to a COD Administrator and Trustee? Were money and power the driving force?
As the College of DuPage (COD) has painfully learned from the Higher Learning Commission, you had better make sure the legal advice you get advises you to be above board and do the right, moral, and ethical thing. The College got into trouble during the Breuder era by using its lawyers to create CYA documentation to justify them doing the wrong thing. It is hardly surprising the first thing the new Board members did was to fire all the lawyers and then retain new counsel.
However, much as Trustee McGuire likes to complain about the legal bills now, she was silent when the College’s attorneys were doing less work for more money each year, and gave bad advice that in our opinion has led in part to the College turmoil and HLC probation decision. Robbins Schwartz had a pretty cushy position and influence at the College for over a decade.
Robbins Schwartz – Former COD legal Counsel (Ken Florey of Robbins Schwartz had many flaws, including frustrating FOIA; facilitating Dr. Breuder’s desire to avoid sending out service contracts for bid; drinker of wine paid for by the College; attendee at Max McGraw; conflicts of interest in both his Foundation role and his efforts to cover Dr. Breuder when even Trustee McGuire complained things not going out for bid created the appearance of pay to play); failure to warn of conflicts of interest; attendee to drum up business at ICCTA meetings, oh, and, presiding over the meeting that awarded Dr. Breuder his much objected to “severance” package)
Robbins Schwartz - Legal counsel for Joliet Junior College (JJC)
Todd Hayden – Robbins Schwartz attorney representing Joliet Junior College (JJC)
Frank Garrett – Robbins Schwartz attorney – Former COD legal counsel - Also legal counsel who filled in for Hayden at Joliet Junior College while Hayden was on vacation.
Illinois Community College Trustee Association – much to the ire of COD reformers, the ICCTA has fought against reform efforts at the College – and even bragged about that to one of the COD Board members. That led to the Reform Board declining to re-up their membership (which we understand would have cost over $50,000 a year) in the ICCTA. The Executive Director of the ICCTA presumably was not happy about losing that revenue, or the prestige associated with the flagship institution of the Illinois community college world.
Illinois Community College Board - The Executive Director, according to e-mails, provided advice in opposition to COD legal counsel in what appears to be a well-coordinated effort to assist in efforts to halt now Chairman Mazzochi from becoming Chairman after Hamilton's resignation.
Chairman resigns from Board of Trustees
The apparent pattern or practice of the Robbins Schwartz attorneys is to give inconsistent advice depending on who they want in power, and who in turn would help them get and keep legal business and appears to be perfectly illustrated when we consider the Tales of Two Chairmen, one at COD, one at JJC.
Both JJC and COD experienced the resignation of the Chairman of the Board. The JJC chair resigned in July of 2015, and the COD chair resigned in December of 2015. So we aren’t dealing with any change in the law here. Here is what the Illinois Public Community College Act said at the time:
110 ILCS 805/3-10: The chairman shall preside at all meetings and shall perform such duties as are imposed upon him by law or by action of the board. The vice-chairman shall serve in the chairman's absence.
110 ILCS 805/3-8: Following each election and canvass, the new board shall hold its organizational meeting on or before the 28th day after the election.
JJC minutes reflect the Vice Chair took over as Chairman at the meeting following the resignation of the chair. Robbins Schwartz were the JJC attorneys.
By contrast, when COD attempted to do the same thing, Robbins Schwartz urged Dr. Collins to prevent Reform Board member, then-Vice Chair Mazzochi, from serving as Chairman. There was instead a deliberately orchestrated attempt to take over the Board by the Breuder holdovers. The Agendas the Breuder board members advanced included (1) trying to fire the COD attorneys who replaced Robbins Schwartz (but using procedurally improper language to try to get around the majority rule requirement- first exposed in this article); (2) bringing in the ICCTA to perform an “evaluation” of the Board (as we see it: designed to try to create a media story where the supposedly “neutral”—but really vengeful—ICCTA could criticize and try to squelch the Reform Board’s efforts and push for Dianne McGuire as the new chair); and (3) hold an organizational meeting.
To try to force the reformers to surrender to their improper demands, three trustees boycotted the COD Board meetings, which lasted until the three Breuder-era trustees were finally boxed into appearing at a February 3, 2016, 7:00 pm Board meeting to vote on at least some College business. Thankfully, all that boycott drama ended when the ICCB appointed a replacement Trustee. But let’s not forget the excuse that the boycotting Trustees used at the time. They wanted the ICCTA and other attorneys to take the position that the vice Chairman does not serve as Chair upon a resignation of the Chair.
But let’s get back to what the law says: "the vice-chairman shall serve in the chairman’s absence." Note that it does not give stipulations as to the cause of said absence, which became the focal point of what we considered tortured construction of the law by Robbins Schwartz and the ICCTA.
The advice given to JJC by Robbins Schwartz attorney Frank Garrett was pretty straight forward. “Trustee Mihelich would like to recommend that we hold a special meeting to elect a board chair (Same as Breuder holder-overs wanted to do at COD). "Attorney Garrett commented that he does not interpret the policy this way and feels that it clearly provides that the vice chair shall succeed to the position of board chair. However the then open position of vice chair would call for a meeting to vote on that position.” (See 7.5 in the minutes) You can see attorney Garrett’s presentation and board discussion beginning at the 39:00-minute mark of the video here
Considering attorney Garrett is employed by Robbins Schwartz we should be able to safely assume the same law firm would have the same position as it relates to any Community College, right? A chairman resigns, the vice-chair serves as chairman; and there is no need to hold a reorganizational meeting, though you can fill the Vice-Chair position once the Vice-Chair ascends to the Chair position.
What advice did the Managing Partner of Robbins Schwartz Joseph Perkoski direct to Joe Collins to try to persuade him to not accept the Vice Chair stepping into a vacancy of the Board Chairman?
“The Vice Chair Only Has Authority in the Absence of an Existing Chair Not in Lieu of a Resigned Chair.” He goes on to state: “Notwithstanding the absence of either statutory or policy provisions on the replacement of a resigned chair, the only logical conclusion is that the Board must meet and conduct an election of a new chair. We believe that the term of the office for the newly elected chair would be until the following annual organizational meeting.” (See Robbins Schwartz opinion to Joe Collins here)
We find this opinion in direct conflict with the advice given at JJC and seriously lacking in legal analysis, which is rather comical since the one giving the advice is a managing partner of the firm, which many would say is directly responsible for many of the legal issues COD currently is facing.
Making matters worse is that at a Community College, Joseph Perkoski chose not to do his homework to try to figure out what was the right answer, as opposed to peddling an answer he wanted in hopes of getting his firm back in the COD game.
For example, Perkoski ignores these COD Board policies or grossly misrepresents them:
Policy No. 5-55 - Election of Officers
The Board of Trustees will annually elect or appoint a Chair, Vice-Chair, Secretary, and Treasurer at its annual organizational meeting. The Board will elect from its membership a Chair and Vice-chair.
Policy No. 5-65 - Duties of the Vice Chair
The duties of the Vice-Chair of the Board of Trustees shall include the following:
- Serve as Chair in the Chair’s absence.
- Perform such other duties as prescribed by law or by Board action.
Policy No. 5-75 - Term of Office (Board Member Officers)
All officers of the Board of Trustees who are elected from the membership at an annual organizational meeting of the Board will serve until the next succeeding annual organizational meeting unless an officer is unable to serve due to death, incapacity, resignation, or removal from office. Removal of an officer before the next succeeding annual organizational meeting will be by majority vote of the entire Board of Trustees and will be based on a finding by the Board that the removal is in the best interests of the Board.
See Part II for the remaining exposure of the behind the scenes manipulation that took place at COD.
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