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Van Dyke v. Board of Ed. of School Dist. No. 57

JUNE 6, 1969.

RICHARD M. VAN DYKE, PLAINTIFF-APPELLANT,

v.

BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 57, COOK COUNTY, ILLINOIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

This is an administrative review action. Plaintiff seeks the reversal of an administrative decision of the defendant Board of Education, which transferred plaintiff from the position of principal to that of classroom teacher at the uniform salary for teachers in the classification to which he was transferred. On defendant's motion the trial court struck plaintiff's amended complaint and dismissed the suit.

On appeal plaintiff contends that (1) the defendant Board of Education's attempt to transfer plaintiff from the position of principal to that of classroom teacher was a violation of the Board's prior voluntary agreement to limit its power to transfer; and (2) the Board's transfer of plaintiff at a reduction in salary because plaintiff refused to resign was a violation of plaintiff's tenure rights, and the transfer was in reality a dismissal or removal requiring compliance by the School Board with the Illinois Teacher Tenure Law (Ill Rev Stats, c 122, §§ 24-11 to 24-16).

On May 18, 1966, plaintiff commenced the instant administrative review proceedings. In substance, plaintiff's amended complaint alleged in detail the following: Plaintiff began employment as a principal in defendant's schools in the 1963-64 school year. He continued in that position through 1964-65 and into the 1965-66 school year, when the matters in dispute arose. On January 21, 1966, the Superintendent of Schools asked plaintiff to resign from the school district and threatened plaintiff that if he did not resign, he would assign plaintiff or have plaintiff assigned as a classroom teacher; on February 25, 1966, the defendant Board of Education voted to reassign plaintiff from the position of principal to the position of classroom teacher for the 1966-67 school year, with a salary reduction from $10,800 per year to $9,000 per year, "as determined by placement on the teachers' 1966/7 salary schedule applicable to all certificated employees of the district."

On March 5, 1966, plaintiff notified the defendant that he considered the action of the Board to be a dismissal and requested a bill of particulars and a public hearing. A hearing was conducted and on April 18, 1966, the defendant Board adopted a resolution which included, "This Board therefore holds and it is its decision that the provisions of The School Code have been fully complied with and that the resolution of this Board of Education of February 25, 1966 is reaffirmed and it is its judgment that Richard Van Dyke be transferred to the position of teacher and assigned to such teaching duties as the Superintendent shall deem proper with due regard to Mr. Van Dyke's qualifications."

The amended complaint also alleged that plaintiff held written contracts with the Board for all the years of his employment, and "pursuant to the terms of the written contracts entered into by the parties, the plaintiff was employed as a principal in and for said school district," and served as a principal and had no other duties. The amended complaint charged that the action of the Board in reassigning him "was not made in good faith but was arbitrary, capricious, unreasonable and deliberately calculated to support the unlawful efforts of the Superintendent of Schools in seeking to remove the plaintiff in violation of the Teacher Tenure Act."

The defendant Board moved to dismiss plaintiff's amended complaint and to dismiss the action, asserting that plaintiff's claim or demand was barred by reason of Article 24-11 of the School Code (Ill Rev Stats 1965, c 122), which section provides inter alia:

"`[T]eacher' means any or all school district employees regularly required to be certified under laws relating to the certification of teachers. . . . This section and succeeding sections do not modify any existing power of the board except with respect to the procedure of the discharge of a teacher and reductions in salary as hereinafter provided. 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."

Defendant's motion to dismiss further stated that "any public hearing furnished to the plaintiff was strictly gratuitous and not required by statute," and that plaintiff was not entitled to any administrative review of the final decision of the Board of Education "since this was not a tenure dismissal action on the part of the Board of Education, but merely a transfer and therefore not reviewable under the provisions of the administrative review act."

On January 23, 1968, the trial court entered an order which allowed defendant's motion and dismissed the action. This is the order from which plaintiff appeals.

On appeal plaintiff concedes that boards of education in Illinois have the power to transfer employees from one position to another but asserts that this power is not absolute, and there are at least three possible limitations which might restrict this power: (1) where the person is not qualified to assume the position to which he is assigned; (2) where the board exercises its power in bad faith; and (3) where the board has voluntarily agreed to limit its power to transfer. Plaintiff states that limitation (1) is not involved in this case.

Initially, and as to plaintiff's assertion that the Board voluntarily limited its power to transfer plaintiff, we note that plaintiff's amended complaint does not include or set forth the "written contracts" or terms thereof, on which plaintiff maintains that he was employed as a principal. Plaintiff's brief states: "It should be further pointed out that these contracts are not part of the record because of the peculiar posture in which this case is presented to the Appellate Court. The contracts with the specific language in it are part of the record which was made before the board of education and which the board of education would normally have been required to file pursuant to the provisions of the Administrative Review Act. However, the sustaining of defendant's motions to dismiss has prevented that record from being filed."

Plaintiff's explanation as to why the alleged contracts or terms thereof are not a part of the instant record is not sufficient to empower this court to consider or interpret the alleged contracts by which plaintiff argues that the Board voluntarily agreed to limit its powers to transfer. Therefore, we have not considered this contention.

Considered next is plaintiff's basic contention that the Board's "transfer of plaintiff at a reduction in salary because plaintiff refused to resign was a violation of plaintiff's tenure rights." Plaintiff submits that his complaint amply shows that the action of the Board in transferring him and reducing his salary "was not bona fide but was in the nature of chicanery or subterfuge designed to subvert the provisions of the Teacher Tenure Law." Plaintiff argues that "a board of education has a duty to exercise its discretion in good faith and when that is challenged by an injured party he should ...


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