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Elder v. Board of Ed. of School Dist. No. 127 1/2

JUNE 3, 1965.




Appeal from the Circuit Court of Cook County; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Judgment reversed.


This is an appeal from a judgment of the circuit court holding null and void the proceedings of the defendant, Board of Education, dismissing the plaintiff. The order further required that the plaintiff be reinstated as a teacher.

The plaintiff claims she had acquired tenure status under Article 24 of The School Code (Ill. Rev Stats 1961, c 122, pars 24-1 to 24-23) at the time she was dismissed, and she was entitled to a hearing as provided by the Code in the case of teachers who are on tenure. The defendant contends that plaintiff had not acquired tenure status, and that the provisions of The School Code relating to tenure teachers are not applicable to the plaintiff.

The questions raised on this appeal are whether a school board has the right to adopt a regulation defining temporary incapacity on the part of a teacher, and further providing that the teacher's contract will be terminated in the event of absence from work extending beyond the specified period of temporary incapacity. Also, whether a superintendent of schools has authority to waive the rights of a school board relating to a teacher's probationary period.

Plaintiff was a teacher in defendant's school district during the school year September, 1960 to June, 1961 under a one year contract. At the end of the first year of teaching the plaintiff entered into a second one year contract with the defendant for the school year September, 1961 to June, 1962. Plaintiff taught school from September, 1961 to December 19, 1961 under her second contract. On December 19, 1961 plaintiff suffered an injury and did not teach for the remainder of the school year ending in June, 1962. She testified, however, that she "was able to go back to school and wanted to go back."

The plaintiff testified that in the spring of 1962 she had a conversation with the Superintendent of the defendant in which she told him that she wanted to go back to teaching. She also testified that the Assistant Principal was present at that conversation. Her testimony further was to the effect that neither the Superintendent nor the Assistant Principal said anything to the effect that the defendant would rely on its three-months rule relating to temporary illness and temporary incapacity, or that they would recommend to the board that it do so.

The plaintiff further testified that Elden D. Finley, Superintendent of the defendant, told her, in the presence of the Assistant Principal, that she should remain home the rest of the year and that very shortly a new contract would be sent out for the new year and that she would be on tenure, and that remaining home would not in any way affect her job. Soon after that conversation she received a contract covering the period from September, 1962 to June, 1963.

The Superintendent of the defendant's school district testified that he had no recollection of any such conversation.

The regulations of the school board, adopted April 10, 1956, provide as follows:

"Section 40: (TEMPORARY ILLNESS AND TEMPORARY INCAPACITY) The contractual continued service status of a superintendent, principal or teacher shall not be affected by absence caused by temporary illness or temporary incapacity.

"Temporary illness and temporary incapacity are hereby defined as follows: Any Superintendent, principal or teacher who, because of ill health, or for any other reason, is physically or mentally unfit to perform his or her duties, and by reason thereof is continuously absent from his or her duties for a period of less than three (3) school months shall be considered temporarily ill or temporarily incapacitated. If, however, absence of duty continues for three months, his or her contract terminates at the end of said three months, without any action by the Board of Education and without any notice to any such superintendent, principal or teacher.

"Section 43: (TERMINATION OF EMPLOYMENT) The employment of, contractual continued service status of, and all contracts of employment with superintendents, principals and teachers is subject to the State of Illinois (sic) now or hereafter in force, and may be terminated by any superintendent, principal or teacher, or by the Board, in the manner provided by law, or by the Board in the event that the Teachers or Supervisory certificate of any such superintendent, principal or teacher shall be revoked according to law, or because of the failure of any such superintendent, principal or teacher to conform to and comply with any lawful rules, regulations or orders heretofore or hereafter adopted or amended by the Board, and during the probationary period of such superintendent, principal or teacher, either party may terminate the employment and contract at any time, upon giving thirty (30) days written notice of such termination or dismissal, no superintendent, principal or teacher shall be entitled to any further compensation."

The testimony does not establish whether or not the conversation testified to by the plaintiff with the school superintendent took place within three months of the date of plaintiff's injury. The plaintiff said she thought it was in the early part of April or perhaps in the latter part of March, 1962; the superintendent testified that he and the assistant principal had a conversation with the plaintiff in the latter part of March. Neither witness was able to give the exact date of the conversation. If it was at any time after March 19, 1962, it would have been more than three months, inasmuch as the injury occurred on December 19, 1961.

By letter dated March 28, 1963 the plaintiff was notified that it was the unanimous decision of the board to terminate her contract as a teacher at the close of the present school year. The letter set forth the reasons for the action and that the notice of termination was given her in accordance with section 11 of Article 24 of the 1961 School Code of Illinois (Ill. Rev Stats 1961, c 122, par 24-11). The plaintiff by letter dated April 5, 1963 demanded a public hearing and on April 10, 1963, the defendants, through its superintendent, advised the plaintiff by letter that her request for a public hearing had been denied by the Board of Education, because under the law a Board of Education is not required to hold a public hearing for a teacher who is not on tenure. She was further advised in that letter that in order to be on tenure she must have been employed as a full-time ...

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