APPEAL from the Circuit Court of Bureau County; the Hon.
THOMAS R. FLOOD, Judge, presiding.
MR. PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
This is an appeal from the order of the circuit court of Bureau County denying the petition of appellant, Norma Relph, for writ of mandamus against respondent-appellee, Board of Education of DePue Unit School District 103 of Bureau County, Illinois. The judgment was entered pursuant to respondent's motion for summary judgment.
In March 1973, petitioner was a tenured teacher employed by respondent as a full time home economics teacher. She received a notice of honorable dismissal from respondent notifying her she was being dismissed because her position was being eliminated. For the 1973-74 school year respondent employed two new non-tenured teachers in positions for which petitioner claims she was qualified. Susan Cocking was hired as a reading teacher in the district's departmentalized grade structure. Louise Zillman was hired as a half-time librarian and half-time home economics teacher. Petitioner holds a certificate issued by the State Teacher Certification Board which is valid for teaching grades 6 through 12 inclusive.
Respondent initially filed an answer denying most of the substantive allegations of the petition, with the exception that the respondent admitted the honorable discharge of the petitioner in March of 1973. Such discharge was necessitated by a reduction in staff. The petition alleged the respondent had never afforded the petitioner the opportunity of performing the services of the two non-tenured teachers described above. Respondent's initial answer in paragraphs nine and ten generally denied petitioner's allegations but in its amended answer the respondent averred that positions for which petitioner was qualified had been offered to her but she had declined.
Petitioner initially filed a motion for summary judgment supported by her affidavit alleging and supporting the facts set forth in her petition. Included in support of her motion was a discovery deposition of Susan Bentz, Assistant Superintendent, Department of Professional Relations and Services, Illinois Office of Education, and Secretary of the Illinois State Teacher Certification Board. Respondent moved to oppose petitioner's motion for summary judgment and also moved for summary judgment in its behalf. The motions of respondent were supported by several exhibits including Circular Series A, Number 160, affidavits of the president of respondent board of education listing the teachers, their tenure status and assignments for the school years 1972-73 and 1973-74, an affidavit of Susan Bentz showing that based upon an examination of petitioner's transcripts and certificates and pursuant to Circular Series A, Number 160, as of June 1973, petitioner was only qualified to teach homemaking education and finally, an affidavit of the president of the board of education that during the petitioner's years of teaching she had not taught other subjects then being taught by the non-tenured teachers. It was the major thrust of the respondent's motion that under the facts and circumstances petitioner had no rights under the teacher's tenure provisions which had been violated by the respondent.
Section 24-12 of the Illinois School Code reads in pertinent part as follows:
"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 such 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 entered upon contractual continued service and who is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service. If the board within 1 calendar year thereafter increases the number of teachers or reinstates the positions so discontinued, the positions thereby becoming available shall be tendered to the teachers so removed or dismissed so far as they are legally qualified to hold such positions." (Ill. Rev. Stat. 1973, ch. 122, par. 24-12.)
It is important to note a teacher who has entered upon contractual continued service (tenure status) has two separate job rights at two different times. In the year in which her dismissal occurs she is entitled to have the board of education remove or dismiss all teachers who have not attained tenure status and who hold positions for which she is legally qualified before she is removed or dismissed. During the calendar year following her dismissal she has a right to have tendered to her a position which becomes available if the board of education either increases the number of teachers or reinstates the position discontinued.
We are concerned only with that part of the statute relating to the rights of a tenured teacher during the calendar year following her dismissal. The two disputed passages of this statute with which we are concerned relate to the use of the term "legally qualified" and to the meaning of "if the board * * * increases the number of teachers." The questions raised on this appeal are ones of first impression and neither of the parties have been able to direct our attention to any Illinois authorities directly bearing on the issues.
• 1 The trial court found that in the school year 1973-74 there was a reduction in the number of teachers. If the board of education increases the number of teachers, the positions becoming available must be tendered first to tenured teachers who were honorably dismissed or removed within one calendar year. (Ill. Rev. Stat. 1973, ch. 122, par. 24-12.) In the instant case respondent employed 30 teachers for the 1972-73 school year and 28 for the 1973-74 school year. At the end of the 1972-73 school year the number of teachers was reduced from 30 to 26, including the termination of petitioner's services. Two new non-tenured teachers were added for the 1973-74 school year, thus accounting for the 28 teachers on the roster for that school year. Based on these figures, respondent argues and the trial court found, that there was no increase in the number of teachers for the 1973-74 school year. Accordingly, petitioner would not be entitled to be tendered either of these two positions given to new non-tenured teachers. Although the total number of teachers in the district decreased from 30 to 28, there was an actual increase of two new teachers from the number of teachers employed at the end of the 1972-73 school year. The whole purpose of the tenure provisions of the School Code could easily be circumvented by interpreting section 24-12 as argued for by respondent. The purpose of these provisions is to protect those teachers who prior to their enactment served at the pleasure of the board of education. It was enacted to assure teachers of experience and ability a continuous service and rehiring based upon merit rather than failure to be rehired for reasons that are political, partisan or capricious. (Donahoo v. Board of Education, 413 Ill. 422, 109 N.E.2d 787, and Graham v. Board of Education, 15 Ill. App.3d 1092, 305 N.E.2d 310.) It would be a sham to hold the employment of two new teachers did not result in an increase in the number of teachers employed. That portion of the statute regarding an increase in the number of teachers is applicable here and governs the rights and obligations of the parties. We hold petitioner had the right under section 24-12 of the School Code to have tendered to her the two available jobs filled by new non-tenured teachers. To hold otherwise would be to defeat the clear purpose of the tenure provisions of the School Code.
Respondent's motion for summary judgment, while initially urging there had been no increase in teaching staff, a position adopted by the trial court, also argued petitioner was not legally qualified as required by statute. In her motion for summary judgment the petitioner asserted she met all the legal qualifications specified by statute. On the other hand, the respondent insisted that petitioner's qualifications did not conform to Circular Series A, Number 160, and hence she was not qualified under the statute.
With respect to the provisions relating to the certification of teachers, section 21-1 of the School Code provides in pertinent part:
"No one may be certified to teach or supervise in the public schools of this State who is not of good character, good health, a citizen of the United States and at least 19 years of age * * *." (Ill. Rev. Stat. 1973, ch. 122, par. 21-1.)
No contention is made here that the petitioner does not meet these requirements. Section 21-5 ...