APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding.
MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
The plaintiff, Edward Szkirpan, filed a petition in the circuit court of Cook County under the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.) to review the decision of the Board of Education of the City of Chicago dismissing him as a teacher. The circuit court affirmed the Board's decision.
The plaintiff was employed as a teacher of mathematics at Bowen High School from March, 1969, until October 15, 1971, at which time he was suspended. Before being transferred to Bowen High School, he taught at Hyde Park High School for approximately eight years. The general superintendent of schools charged that the plaintiff, while teaching at Bowen, failed and refused to sign his name to the official daily time sheets, student records such as course books, reports of student attendance and failure notices and record sheets of student's marks, although he was repeatedly requested to do so; that on October 14, 1971, during a classroom visit by the school principal and the District Superintendent, who was observing the plaintiff's teaching as a follow-up on a previously issued E-1 efficiency rating notice, the plaintiff ordered the District Superintendent out of the classroom, advanced toward him in a threatening manner, ridiculed him and made certain accusations toward him; and that, as a result, the plaintiff was arrested by the security police and removed from the school.
The plaintiff contends that the Board of Education did not have jurisdiction to order his dismissal because the Board failed to act within the time allowed by statute (Ill. Rev. Stat. 1971, ch. 122, par. 34-85), which provides in part:
"The hearing shall be held and the decision rendered within 80 days from the date of service of the notice; provided however, that continuances of said hearing granted at the request of the teacher or principal shall not be included in computing this 80 day period."
The statutory period began to run on October 27, 1971, when the defendant received notice of the charges, and the case was continued to November 27 on the motion of the Trial Committee, which consisted of three members of the Board of Education. On November 17, however, the plaintiff requested a continuance until after January 5, 1972. Ostensibly, that request was made because criminal charges were pending against the plaintiff. On March 16 one of the attorneys for the plaintiff informed the Board that the criminal aspects of the case had been disposed of and asked that a hearing be set for April 3 or April 10 and that blank subpoenas be issued. The case was set for April 12. On April 12 the plaintiff's attorney asked for a continuance to the first week in May or after June 6 because the attorney was scheduled for surgery. The record reflects no activity by either side until October 13, 1972, when the attorney for the Board sent a letter to the plaintiff's attorney setting the case for November 1. The letter noted that the plaintiff's attorney had informed the Board that he could not go to trial in the month of October. On November 1, the hearing began and on November 3, which was a Friday, the plaintiff's attorney told the Trial Committee that he was going to Washington, D.C., the following week, and the hearing was continued by agreement of the parties until November 13, at which time the hearing was concluded and the matter taken under advisement. The Trial Committee convened on January 22; the plaintiff was not present but his attorney was; and the Committee Chairwoman recommended that the matter be continued until February 14 because of the absence of the plaintiff. On February 14 the plaintiff and his attorney were present, and the Board made its decision removing the plaintiff as a teacher.
The Board concedes that it was chargeable with the period between October 27, 1971, and November 17, 1971, and the 3 days of trial in November, 1972, for a total of 24 days, thus leaving, as the Board argues, "56 days in which to review and adopt or reject the recommendations of the Trial Committee and reinstate or dismiss the teacher based on those findings." But the Board did not adopt the recommendations of the Committee and dismiss the plaintiff until February 14, 1973, or 93 days after the completion of the hearing. The question then becomes, was any part of the delay after November 13, 1972, attributable to the plaintiff? Or, as the defendant argues, is the plaintiff "estopped by his conduct" from asserting the time provision of the statute as a bar to the Board's authority to discharge him?
The brief of the defendant recites that "[f]or the benefit of the teacher, throughout the period from November 14, 1972 to January, 1973, the Trial Committee of the Board, the teacher's attorney and the attorney for the General Superintendent of Schools held post-trial conferences for the sole purpose of negotiating a compromise short of outright dismissal." The record does not support that statement, which is followed by a reference to a particular page of the report of proceedings which discloses the following remarks of Chairwoman Malis made on February 14:
"On November 13, 1972, this matter was taken under advisement after hearings on November 1, November 3 and November 13, 1972. The Trial Committee having received all of the evidence offered in support of and in defense against the charges and specifications, we considered all of the evidence that was presented to us, both written evidence that was entered into the record and also the testimony of the witnesses and we did have a post-trial conference with your attorney, Mr. Szkirpan, Mr. Ligtenberg, and we did make a recommendation to him at that time."
In the plaintiff's reply brief he contends that there was no communication after November 13 except that "counsel for the Board notified counsel for Mr. Szkirpan that the Trial Committee would hold a meeting on January 22 to propose a settlement of the case. Counsel attended the meeting of January 22 as the record shows." The report of proceedings of January 22 shows the following:
"CHAIRWOMAN MALIS: A quorum is present. However, Mr. Szkirpan does not appear to be present, and I am wondering if this Committee, Trial Committee, should not be postponed to another date when the defendant can be present to hear the recommendations of the Committee.
MR. MURRAY [Board Attorney]: Madam Chairman, I suggest that this meeting be continued until 10:30, February 14, 1972, so that
CHAIRWOMAN MALIS: You mean 1973?
MR. MURRAY: 1973, so that Mr. Szkirpan and counsel may be present together at that time to review the ...