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Lester v. Board of Ed. Sch. Dist. No. 119

NOVEMBER 3, 1967.

JAMES E. LESTER, PLAINTIFF-APPELLANT,

v.

BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 119 OF JO DAVIESS COUNTY, ILLINOIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Jo Daviess County, Fifteenth Judicial Circuit; the HON. MARVIN F. BURT, Judge, presiding. Order affirmed. MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

The plaintiff, James E. Lester, herein called Lester, filed an action for administrative review, asking reversal of the decision of the Board of Education of School District No. 119 of Jo Daviess County, herein called the board, which relieved him of all administrative duties and assigned him to the position of teacher, with a reduction in salary from $11,500 to $6,800. The Circuit Court of the 15th Judicial Circuit affirmed the decision of the board and an order was entered dismissing the complaint.

On June 1, 1959, Lester was employed by the board to serve "as Superintendent of Schools and teach" for a period of nine months at an annual salary of $6,500. He executed a form contract which bore the entitlement, "Teacher's Contract — Teacher's Tenure Law (Board of Education)." It provided "that this contract is subject to the School Laws of Illinois and the reasonable and lawful regulations of said Board."

Lester acquired tenure as superintendent and teacher, and served as superintendent and principal during the 1964-1965 school year, with no teaching duties, at a salary of $9,000. In the 1965-1966 school year, he continued his duties as superintendent and principal, and was also assigned to teach all commercial subjects, at a salary of $11,500. The salary increase of $2,500 was due to the additional teaching duties. At this time, Lester held a life supervisory certificate which had been issued by the State Superintendent of Public Instruction pursuant to sections 21-1 and 20 of the School Code. (Ill Rev Stats 1949, c 122, pars 21-1 and 20.) This certificate qualified Lester to teach and supervise "in any and all grades of the common schools" subject to the requirements set forth therein.

On March 25, 1966, Lester was duly notified by the board that effective with the next school term he would be relieved of his administrative duties, and would be assigned to the position of teacher at a salary of $6,300. The notice did not state any specific reason for the board's action.

Upon receipt of such notice, Lester promptly requested a bill of particulars and a hearing pursuant to the provisions of the Teacher Tenure Law relative to his removal and transfer as a teacher and his decrease in salary. The bill of particulars furnished by the board stated that Lester was not being dismissed or removed as a teacher, but was being relieved of his administrative duties; that he would be assigned as a teacher only; and that no question was raised as to his competency as a teacher.

A hearing was held by the board on May 18, 1966, pursuant to such request. At the conclusion of this hearing, the board reaffirmed its prior decision, except that it then voted to increase his salary for the next year from $6,300 to $6,800. The record indicates that Lester had a Master's degree; that $11,500 was the highest salary paid in the county to a school superintendent; and that the salaries of teachers in the county varied from $5,500 to $7,400 for the 1965-1966 school year. At no stage of this controversy was any question raised as to the competency of Lester as a teacher, and the record contains no statement as to the reason for the action of the board in relieving Lester of his administrative duties.

Section 24-11 of the School Code provides, among other things, that "teacher" means any or all school district employees regularly required to be certified under the laws relating to the certification of teachers; that "board" means a board of education; that any teacher who has been employed as a full-time teacher for a probationary period of two consecutive school terms shall enter upon contractual continued service unless given a written notice of dismissal by the employing board at least sixty days before the end of such period; and that such contractual continued service shall continue in effect the terms and provisions of the contract with the teacher during the last school term of the probationary period, subject to the provisions of the Teacher Tenure Law and the lawful regulations of the employing board. It further provides that this section and succeeding sections do not modify any existing power of the board, except with respect to the procedure for the discharge of a teacher and reductions in salary as thereinafter provided; and that contractual continued service status shall not restrict the power of the board to transfer a teacher to a position which the teacher is qualified to fill, or to make such salary adjustments as it deems desirable, but unless reductions in salary are uniform or based upon some reasonable classification, any teacher whose salary is reduced shall be entitled to a notice and a hearing as thereinafter provided in the case of certain dismissals or removals.

Section 24-12 provides, among other things, that a teacher may be removed or dismissed for the reasons or causes provided in section 10-22.4 of the School Code (Ill Rev Stats 1965, c 122, par 10-22.4), which are: incompetency, cruelty, negligence, immorality or other sufficient cause; and whenever in the opinion of the board the teacher is not qualified to teach or the interests of the schools require it. It further provides, that if the removal or dismissal results from the decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, written notice shall be given the teacher by registered mail at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reason therefor, and in all cases, the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before removing or dismissing any teacher who has acquired such status and is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service; and that if the dismissal or removal is for any other reason or cause, it does not become effective until approved by a majority vote of all members of the board upon specific charges and after a hearing, if a hearing is requested in writing by the teacher within 10 days after the service of notice as therein provided.

Lester contends that an individual serving as superintendent and teacher is entitled to retention in grade under sections 24-11 and 12 of the School Code (Ill Rev Stats 1965, c 122, pars 24-11 and 12); and that he was discharged by the Board in violation of the tenure provisions of the School Code.

The board concedes that Lester had "tenure" as a certified employee of the board, and that his salary could not be reduced without a hearing, but denies that he was entitled to continue in effect for succeeding years the terms and provisions of his contract during the last school term of his probationary period, in the absence of cause for removal. The board argues that such contention disregards that part of section 24-11 of the Code which states:

"Contractual continued service status shall not restrict the power of the board to transfer a teacher to a position which the teacher is qualified to fill or to make such salary adjustments as it deems desirable, but unless reductions in salary are uniform or based upon some reasonable classification, any teacher whose salary is reduced shall be entitled to a notice and a hearing as hereinafter provided in the case of certain dismissals or removals." (Emphasis ours.)

The board further argues, and we agree, that it would be unreasonable to construe that part of section 24-11, which provides for the continuation "in effect the terms and provisions of the contract with the teacher during the last school term of the probationary period," to mean that neither the board could vary the duties of the teacher thereafter nor the teacher teach or perform any services other than those specified in the contract of the last probationary year. People ex rel. McCoy v. McCahey, 296 Ill. App. 310, 323, 15 N.E.2d 988 (1938).

In McNely v. Board of Education of Community Unit School Dist. No. 7, 9 Ill.2d 143, 137 N.E.2d 63 (1956), the court held that a superintendent who did no teaching was included within the provisions of the Teacher Tenure Law, and his dismissal upon the subterfuge of abolishing the job, following which another was appointed to such position, was illegal. At page 147, the court stated:

"The Teacher Tenure Law was enacted primarily for the protection of educational personnel who, prior to its enactment in 1941, served at the pleasure of school directors or boards of education. Its object was to improve the Illinois school system by assuring personnel of experience and ability a contractual continued service status based upon merit rather than insecurity of employment based upon political, partisan or capricious ...


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