APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Plaintiffs, The Illinois Education Association Local Community High District 218 (Association), a voluntary organization of classroom teachers, and Henry F. Davis, a member, brought action for declaratory judgment and a writ of mandamus against defendant, The Board of Education of School District 218, Cook County, Illinois (Board). The Association and Board had entered into a collective bargaining agreement. Plaintiff Davis was dismissed by the Board as a probationary teacher. The trial court entered a judgment order which found that defendant breached the agreement and had improperly dismissed Davis, and ordered Davis reinstated and placed on tenure as a teacher, and further allowed a writ of mandamus commanding defendant to assign Davis as a full-time tenure teacher. Defendant appeals.
The issues presented are:
(1) Was the dismissal for causal reasons outside the scope of Appendix XXX of the Collective Bargaining Agreement;
(2) Are the provisions of Appendix XXX ultra vires as a delegation or restriction of the Board's statutory authority;
(3) Does recourse to the grievance procedure with advisory arbitration under the agreement bar a de novo court hearing on the same issues;
(4) Is mandamus a proper remedy;
(5) Did the trial court usurp the statutory discretion of defendant whether to place a probationary teacher on tenure or on third-year probation.
The facts giving rise to this proceeding follow.
Plaintiff Henry F. Davis was employed under annual contract by the defendant Board as a full-time art teacher at the Eisenhower High School in Blue Island, Illinois, for the consecutive school terms of 1969-70 and 1970-71. He was then a non-tenure probationary teacher. On September 28, 1970, the Association and the Board entered into a collective bargaining agreement for the 1970-71 term.
On March 18, 1971, plaintiff Davis was advised in a letter written by Dr. James B. Miller, Assistant Superintendent for Personnel of School District 218, that he would not be recommended for reemployment for the following school term for certain causes, listing the following charges:
(1) Permitting students to remain in his classroom when their presence was required in other classes;
(2) Leaving his classes unsupervised on three specific occasions;
(3) Failure to exercise reasonable judgment and provide reasonable support to the administration and staff during a period of confrontation between the school district and the students, thus encouraging rebellion against emergency schedules established by the district;
(4) Unacceptable and uncooperative conduct on a specified date wherein Davis made an obscene gesture to security officers during a time of student disturbances and discipline problems;
(5) Failure to maintain an acceptable and cooperative general attitude and accept guidance and suggestions;
(6) Failure to maintain satisfactory working relationships with colleagues, staff members and employees;
(7) Unwillingness to adequately share and fulfill responsibilities in the total school program.
On the following day Davis requested a hearing before the Board which was held on March 29, 1971, and the reasons for non-retention were presented to the Board. Davis attended the hearing, accompanied by counsel, but offered no evidence to rebut the charges made against him. The next day he was advised by letter that the Board decided to and would terminate his services and contract as a teacher, effective June 8, 1971, the last day of the term. Davis then filed a grievance under the terms of the collective bargaining agreement which eventually resulted in advisory arbitration. Davis and the Association then filed the instant proceedings which were then pending concurrently with the grievance procedure. At a hearing on defendant's amended motion to dismiss this action the trial court ordered the motion held in abeyance pending completion of the arbitration process. On December 10, 1971, the arbitrator held that the provisions of Appendix XXX of the agreement were not violated in the dismissal of Davis. Subsequently, an answer was filed by defendant and a trial held on April 6, 1972.
At trial, plaintiff Davis testified to the following: His contract of employment for the 1970-71 school term was completed on June 8, 1971. During the first semester of the term neither the building principal nor an immediate supervisor acquainted him with the evaluation procedures, standards and instruments. He was not advised as to who would observe him and evaluate his performance. Although a probationary teacher, he was not evaluated at any time during the semester; no classroom observation was made of him; no copy of a formal evaluation was given to him; no conference was held between him and the principal; no consulting teacher was assigned to him; and at no time during the semester were recommendations made to him to improve the quality of his teaching or eliminate the difficulties therein. He was formally evaluated twice during the second semester of the 1970-71 school term. After being notified that termination of his services would be recommended he was not advised of the necessary improvements needed to continue his employment and he was not advised by the superintendent or a designee of his rights under the Illinois Teacher Tenure Act.
Dr. James B. Miller, assistant superintendent, testified. At a conference with Davis on March 18, 1971, he notified him that he would not be recommended for continued employment and handed him a letter setting forth the reasons. They then reviewed Davis' personnel file. He did not advise Davis of the necessary improvements which would have to be made for him to continue in the employ of the Board because he felt the charges in his letter to Davis were self-explanatory. Miller admitted ...