Appeal from the Superior Court of Cook County; the Hon. DONALD
S. McKINLAY, Judge, presiding. Judgment reversed, and cause
remanded with directions.
MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT:
Relator filed her petition for writ of mandamus alleging that defendants had terminated her services "as a probationary kindergarten-primary teacher" without giving her the reasons for her dismissal, and asking that she be reinstated in her position. Defendants' answer averred that she was discharged by the board of education (board) as a probationary teacher within the statutory three-year probationary period on the recommendation, accompanied by the written reasons therefor, of the general superintendent of schools, as required by statute (Ill Rev Stats 1961, c 122, § 34-84). The case was heard by the trial judge on the pleadings, consisting of relator's petition, defendants' answer thereto, together with their exhibits consisting of the board report of dismissal of relator, a probationary teacher, statements of reasons for dismissal, letter and copy of board report sent to relator, and, in addition, relator's group exhibit, being her personnel file records from the board, which included the official records of her employment as a substitute teacher and as a regular teacher subject to probation. The trial judge issued a writ of mandamus, and defendants appeal.
There is no dispute as to the essential facts. From February 1953 to June 1958 relator was employed by the board as a substitute teacher on a temporary teaching certificate and on a day-to-day basis. On March 2, 1957 she took the examination for a regular teaching certificate as a kindergarten-primary teacher, but failed to pass. Subsequently, on March 15, 1958, she again took the examination, and this time was successful. Effective September 1, 1958, pursuant to the provisions of the School Code (Ill Rev Stats 1961, c 122, § 34-84), relator was appointed from the eligible list as a teacher on her regular teaching certificate, subject to a probationary period of three years. The pertinent language of the statute is as follows:
". . . . Appointments and promotions of teachers . . . shall be made for merit only, and after satisfactory service for a probationary period of 3 years (during which period the board may dismiss or discharge any such probationary employee upon the recommendation, accompanied by the written reasons therefor, of the general superintendent of schools) appointments of teachers . . . shall become permanent. . . ."
On October 31, 1960, relator, pursuant to the request of the department of personnel of the board, was given a health examination. The director of medical and school health service reported that relator's behavior and attitude were indicative of a mental and an emotional disturbance, in consequence of which it was recommended that she not teach at that time. The department of personnel then advised relator that she was not to return to school duties until she received medical approval. Shortly thereafter she reported to the department of personnel that she would confer with her physician and would request psychiatric treatment before seeking reinstatement, and accordingly applied for an illness leave of absence based on the medical and school health service report. Her application was approved by the board; the illness leave was granted on November 23, 1960. However, relator subsequently refused to follow the advice and suggestions of the department of personnel and refused to avail herself of medical assistance. Thereafter, on January 11, 1961, the board adopted a report dismissing relator from its employ as a probationary teacher on the recommendation, accompanied by written reasons, of the general superintendent. The report stated that relator had failed to satisfactorily complete the three-year probationary period required by the School Code for attainment of tenure. To this report was attached a statement of reasons for termination of relator's services as a probationary teacher; the statement is as follows:
"Miss Marylyn Thomas has made repeated and persistent telephone calls from the Joseph Stockton Elementary School building to the home of a former employer, harassing the said former employer and his family. It has been necessary for the police department to be called to remove her from the premises of said former employer. She has persisted in making such harassing telephone calls after being admonished to desist by her superiors in the Board of Education."
A statement of the facts, headed "REASONS FOR DISMISSAL," on file in the office of the secretary of the board, is as follows:
"Miss Thomas made phone calls from the school building to the home of a former employer who is a Chicago business man, and resident of the Chicago Metropolitan area, harassing the wife and family of this former employer. Miss Thomas admitted making the calls and alleged that she `only wanted to be friends with the persons called.' The calls continued until Miss Thomas threatened to visit the home of the former employer. Miss Thomas carried out her threats and created such a disturbance that the police had to be called to remove her from the premises.
"In an effort to clarify for Miss Thomas the seriousness of her involvement, the Department of Personnel called her in for interviews in order to ascertain her explanation of her conduct. During the interviews Miss Thomas indicated little concern for the seriousness of her conduct. Her conduct during the interviews was such that it was believed that there was need for a health examination. This examination was arranged for her by appointment with the Bureau of Medical and School Health Services of the Board of Education. On November 2, 1960, Miss Thomas was informed by Dr. McVey, Assistant Superintendent in charge of Personnel, that it would be advisable for her to seek some medical assistance for herself.
"On November 29, 1960, a further conference was held with Miss Thomas to inquire what steps had been taken with respect to her health condition. At this meeting with the Assistant Superintendent and Director of Teacher Personnel, Miss Thomas indicated that she was perfectly well and that under no circumstances would she request medical assistance. At this time the attitude of Miss Thomas indicated that it would be unwise to permit her to attain full tenure as a teacher in Chicago Public Schools."
On January 12, 1961 the department of personnel sent relator a copy of the report adopted by the board on January 11, 1961, together with the reasons for her dismissal, and pursuant to this action her services as a probationary teacher were terminated at the close of the school day effective January 13, 1961.
In issuing the writ, the trial judge arrived at his decision by adding to relator's period of service as a probationary teacher the time she was employed on a day-to-day basis as a substitute teacher before the commencement of her probationary period; he concluded, as a matter of law, that on January 13, 1961, when relator was discharged, she had completed six years and four months of full-time teaching as a substitute and regular teacher, that on the basis of such combined service she had completed the three-year probationary period required under Illinois law for the position of permanent tenure teacher after appointment, and that, accordingly, she was entitled to a hearing by the board before she could be discharged.
Illinois courts have specifically held that persons occupying positions in the public service and in municipal employment as mere temporary employees cannot, by performing such services as temporary employees, gradually acquire civil service or tenure rights; to permit such a practice would nullify the purposes of tenure laws.
In Hartman v. City of Chicago, 343 Ill. App. 103, 98 N.E.2d 148 (1951), 363 temporary appointee patrolmen, who later qualified and were appointed as civil service patrolmen, sought to have their time of service as temporary patrolmen added to their time of service as civil service patrolmen in computing their pay under an ordinance which varied ...