College President Entitled to Due Process Hearing

Last week, the Seventh Circuit held that former College of DuPage President Robert Bruder’s lawsuit against the College could go forward.

Robert L. Breuder was hired as the College of DuPage’s president in 2009, with his contract running through 2019. Four years before that contract expired, newly elected members to the College’s Board of Trustees campaigned to remove him from his position. Shortly thereafter, Breuder was discharged without notice or a hearing, with the Board issuing a public statement that it was firing Bruder as a result of misconduct. In response, Breuder filed a complaint for wrongful termination and defamation against the Board, arguing that the language in his contract did not justify firing him without an opportunity to a hearing.

The Board of Trustees raised numerous defenses to the lawsuit including several arguments that the contract itself was invalid because it extended beyond the term of the Board members who approved it and the requirement of a 2/3 majority vote to terminate it violated Illinois law. The Board argued that the invalidity of those clauses invalidated the entire contract, resulting in Bruder’s employment status to be at-will and subject to termination at any time with or without cause and eliminating any claim of his to a property interest in his job created through the agreement.

The Seventh Circuit affirmed the lower court’s finding that the clauses in question were valid and noted that in any event, “there is a difference between the validity of a clause and the validity of the contract.”

Next, the Court determined that the Board of Trustees violated Breuder’s constitutional entitlement to a hearing by refusing to grant him one either before or after his termination, noting as follows:

When discharging Breuder without giving him an opportunity for a hearing, the Board issued a statement declaring that he had committed misconduct. Codd v. Velger, 429 U.S. 624 (1977), holds that even a person who has no property interest in a public job has a constitutional entitlement to a hearing before being defamed as part of a discharge, or at a minimum to a name-clearing hearing after the discharge..The Board has not offered that opportunity to Breuder, and the members insist that they need not do so. The law is clearly established against them.
The second is that a hearing is required whenever the officeholder has a “legitimate claim of entitlement”, Board of Regents v. Roth, 408 U.S. 564, 577 (1972), to keep the job. Breuder, who had a written contract for a term of years, assuredly had a legitimate claim of entitlement to have the Board honor its promise. The claim may have failed in the end, but that did not eliminate the claim’s existence.

Public employers who enter into employment contracts with their workers should be prepared to conduct a due process hearing or pay either the value of the remainder of the contract or an agreed upon severance.