Downstate investigative journalists who helped to break the news surrounding College of DuPage’s no-bid contracts scandal years ago are asking a judge to grant them victory against defamation claims leveled against them by a former College of DuPage Foundation member who received hundreds of thousands of dollars from allegedly improper no-bid professional services contracts, but asserts articles about her involvement in the scandal unfairly tarred her reputation and ruined her business.
On March 31, an attorney representing the Edgar County Watchdogs, as well as ECW cofounder Kirk Allen and government transparency and reform advocate Adam Andrzejewski, asked DuPage County Judge Bryan S. Chapman for permission to file a motion for partial summary judgment to end a big part of a lawsuit waged by plaintiff Carla Burkhart and her company, Herricane Graphics Inc.
In that filing, the Watchdogs and other defendants assert Burkhart improperly targeted them in the lawsuit for reporting the part she allegedly played in an alleged public scandal involving the alleged misuse of millions of dollars in public money.
And her alleged part in the alleged scandal makes her a “limited public figure,” fairly subject under the First Amendment’s press protections to potentially unflattering news coverage for her alleged actions, the Watchdogs said.
“Burkhart and Herricane … became the subject of these news stories because they participated in the very subject of the controversy,” the Watchdogs said in their filing.
Burkhart first filed suit against the Watchdogs and other defendants in 2015. She accused them of defamation, saying they wrongly accused her of participating in a “pay-for-play” scheme, and falsely held herself out as an architect to obtain no-bid professional contracts at College of DuPage.
The lawsuit accused the Watchdogs of publishing the information simply to boost the political aspirations of former COD board member Kathy Hamilton and other political opponents of the former administration at COD.
The Edgar County Watchdogs launched their investigative journalism site in 2011, specializing in exposing what they perceive as corruption in local and state Illinois governments. They assert they have targeted both Republicans and Democrats, resulting in the resignations of more than 486 Illinois public employees and elected officials, and 211 state and federal indictments.
The lawsuit has centered on reporting the Watchdogs published beginning in 2013 concerning the alleged policy at the Glen Ellyn community college under former COD President Robert Breuder to award contracts worth millions of dollars to members of the COD Foundation Board, under a process that allowed the COD administration to push through professional services contracts without subjecting the work to the public scrutiny of the normal bid review procedures.
According to court filings and published news reports, COD awarded Burkhart and Herricane Graphics contracts in both 2012 and 2014 for various projects at the college.
Burkhart was a member of the COD Foundation board at the time she received contracts.
In both instances, the Watchdogs have asserted Burkhart wrongly identified herself as an architect, allowing her contract to qualify under the no-bid professional services process.
Herricane Graphics is not an architectural firm. Nor is Burkhart a licensed architect.
According to the March 31 filing, the Watchdogs further assert Burkhart even also “lied about having a college degree.”
Burkhart has denied the allegations, calling them “untrue” and part of a “campaign of terror” designed to destroy her business and personal life.
From 2013 to 2015, the Watchdogs published at least 60 articles about the alleged corruption at COD.
In early 2015, they published their first article specifically mentioning the professional services contracts awarded to Burkhart and Herricane.
That article prompted further attention from other media outlets, including the Chicago Tribune and Daily Herald newspapers; from the Illinois Department of Financial and Professional Regulation, which licenses architects and other professionals in the state; and reportedly from state and federal investigators looking into the corruption allegations at COD.
The Tribune specifically reported Burkhart and Herricane had received more than $630,000 from the contracts.
Further, the reporting spurred state lawmakers to rewrite the laws to specifically address the questionable spending practices at COD. One state lawmaker, former State Rep. Jeanne Ives, specifically referenced Burkhart by name in discussing the need for new legislation.
However, Burkhart sued only the Watchdogs and related defendants, demanding they be made to pay for allegedly costing her hundreds of thousands of dollars and ruining her business.
Discovery is nearing completion in the lawsuit, and the two sides are currently sparring in court over attempts by the Watchdogs to force Burkhart to turn over subpoenas they believe she received from grand juries investigating COD corruption.
A judge has not yet ruled on those requests, which Burkhart’s attorney has called a “fishing expedition”
The Watchdogs, however, have asserted those subpoenas will help establish that their reporting was grounded in fact, and not an untoward attempt simply to smear Burkhart.
Even as those disputes continue, however, the Watchdogs have asked Judge Chapman to grant them summary judgment, to end Burkhart’s defamation claims.
They assert her alleged involvement in the COD scandal made her a public figure, who was fair game for negative press coverage.
“Burkhart chose to become a Foundation Board member after being wined and dined and recruited by Breuder,” the Watchdogs wrote in a filing styled as a memorandum in support of their motion for partial summary judgment.
“She voluntarily entered into the 2012 and 2014 no-bid contracts that Breuder steered her way, and she took the money, despite Herricane not being an architectural firm nor Burkhart being an architect.
“Burkhart chose to sign a conflict-of-interest policy notifying her of the importance of competitive bidding and the possible damage to her reputation resulting from the public’s perception of impropriety.
“COD reported to the state that Burkhart was an architect, and she signed other documents representing same,” the Watchdogs’ filing continued.
"These actions thrust Plaintiffs (Burkhart and Herricane) into a position of special prominence in the ongoing debate over COD’s misappropriation of public funds because they participated in the very subject of the controversy.
“As such, they became the subject of the news stories and limited public figures for the limited range of issues associated with their controversial contracts at COD,” the Watchdogs said.
Burkhart and her attorney, Joshua Feagans, of St. Charles, have not yet replied to the filing.
Judge Chapman has not yet ruled on the Watchdogs’ request to file their motion for summary judgment, nor the motion itself.
The Watchdogs and related defendants are represented by attorneys Robert Dawidiuk and Kaitlyn Linsner, of The Collins Law Firm, of Naperville.