College of DuPage trustees' lawsuit against law firms dismissed
The Edgar County Watchdogs recently reported on the dismissal of a lawsuit by three trustees against the College of DuPage's (COD) three law firms in January.
Facing probes by county and federal authorities, as well as the college's internal and external investigations, the COD board fired the college president and two members of the administration in a contentious 4-3 vote in April 2015. The dissenting trustees began boycotting the board meetings in December and filed suit to obtain all the legal materials produced by the college's law firms. The Sept. 29 update in Illinois Leaks said the lawsuit has been dismissed with prejudice.
The saga of former COD President Robert Breuder, the board of trustees and the lawsuit began years earlier, after the president's contract was extended in a closed board meeting in July 2011. Trustees Erin Birt, Diane McGuire and Joseph Wozniak were present in that meeting.
The latest chapter was initiated after the election of trustee Katharine Hamilton to the board in April 2013.
During the president's severance-package negotiations, Hamilton was the only dissenter on the board. The board censured, then ostracized her for criticizing Breuder and the other trustees in August 2014.
After the board approved Breuder's $763,000 severance package, the DuPage grand jury issued three subpoenas in February and March 2015.
In an effort to change the direction of the board, Hamilton backed three candidates – Charles Bernstein, Deanne Mazzochi and Frank Napolitano – with nearly $120,000 in campaign contributions. It was a successful effort, leaving Hamilton as chair and leader of the 4-3 majority in April 2015.
The new board members backed Hamilton and terminated Breuder. They also stripped the president of his pension. Two members of his administration, Treasurer Thomas Glaser and Controller Lynn Sapyta were also terminated. All three filed wrongful-termination lawsuits.
Federal investigators opened a separate criminal investigation in April 2015. The two subpoenas sought documents related to the board's spending practices and other items.
The Illinois Attorney General's Office issued a letter on July 24, 2015, stating the board violated the Open Meetings Act at its July 12, 2011 special meeting.
After seven months of highly contentious board meetings, Hamilton resigned abruptly in mid-December. Her resignation letter cited personal reasons for her departure. Prior to Hamilton's resignation, the board majority -- Hamilton, Bernstein, Mazzochi and Napolitano -- hired law firms Rathje & Woodward, Schiff Hardin and Schuyler, and Roche & Crisham. Upon Hamilton's resignation, the three dissenting trustees, Birt, McGuire and Wozniak, demanded that the board fire the law firms. When the other trustees disagreed, the trio began boycotting the COD board meetings.
While boycotting meetings, the trio demanded all of the COD billing records and other documents the law firms had produced while working on internal and criminal investigations. The COD's legal expenses had increased dramatically due to the college, county and federal probes and the termination of Breuder, Glaser and Sapyta.
The trustees' attorney, Keith "Chuck" Roberts Jr. sent a letter to the law firms, demanding that they turn over the materials. Rathje & Woodward's response, dated Jan. 22, said the firm would provide the materials if authorized by the COD Board of Trustees. The firm said that individual trustees could not demand the materials be given to a third party, such as the trustees' attorney.
In addition, producing the materials would cost more than $15,000. The full board would have to approve the expenditure before the law firm could proceed.
Daniel Kinsella of Schuyler, Roche and Crisham sent a similar response to Roberts. The estimated cost of producing the requested documents and materials would be at least $20,000. Kinsella wrote: "Please understand that we cannot produce them to you or to your office because doing so would result in a waiver of the attorney-client privilege."
Trustees Birt, McGuire and Wozniak filed their lawsuit in the 18th Judicial Circuit Court on Jan. 29. The complaint demanded all of the documents and materials that the law firms had refused to provide without COD board approval.
Acting Chairman Deanne Mazzochi responded to the lawsuit in a prepared statement. Mazzochi said the three trustees had not appeared at seven consecutive board meetings and reiterated the law firms' position that the trustees could not legally obtain privileged documents and release them to third parties or waive the board's attorney-client privilege.
Downers Grove Village Board member David Olsen was appointed to the COD board in February, breaking the 3-3 stalemate. Birt, McGuire and Wozniak ended their boycott and attended the meeting.
The Edgar County Watchdogs followed up on the trustees' litigation in September. Illinois Leaks reported that the circuit court dismissed the trustees' lawsuit "with prejudice" on Sept. 15. The "with prejudice" designation means that the trustees cannot refile the case.
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