APPEAL from the Circuit Court of Whiteside County; the Hon.
DAN H. McNEAL, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from the Circuit Court of Whiteside County which denied petitions for writ of mandamus filed by two petitioners for reinstatement to their teaching positions and for damages.
Two tenure and two nontenure teachers were dismissed by the respondent, Board of Education of Tampico Community Unit School District No. 4 (hereinafter referred to as Tampico) in their effort to reduce the number of teachers, pursuant to provisions of the School Code of Illinois (Ill. Rev. Stat. 1975, ch. 122, par. 24-12), which provides:
"If a teacher in contractual continued service is removed or dismissed as a result of a 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 position 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. * * *" (Emphasis supplied.)
• 1 If the court has proper parties before it, the threshold issue to be resolved in any proceeding for writ of mandamus is to determine whether the performance sought is that of a specific duty imposed by law or whether the performance sought is discretionary. If petitioner seeks performance of a discretionary duty, mandamus will not lie. Both parties have addressed the issue of discretion in their briefs filed in this court.
The trial court relied upon two cases in determining whether or not the action was properly there upon a writ of mandamus: Lenard v. Board of Education (1975), 26 Ill. App.3d 188, 324 N.E.2d 657, and McNely v. Board of Education (1956), 9 Ill.2d 143, 137 N.E.2d 63.
The Lenard case involved a reduction of teaching staff. The merits of the particular teacher dismissal were not reached. The sole issue on appeal was whether or not mandamus was an appropriate remedy, as the petition had been dismissed on grounds that the proper proceeding was under the Administrative Review Act.
The case provides a comparison and discussion of reasons why (some) teacher reduction and discontinuation of particular type of teaching service cases are not suitable for review under the Administrative Review Act. Primary reasons are that the dismissed teacher has no right to a hearing under the statute and the board of education minutes are ordinarily insufficient to constitute a record to provide the basis for administrative review.
In McNely the supreme court was reviewing an action for damages for wrongful dismissal of a school superintendent brought by his executrix. Before his death the dismissed superintendent had instituted a mandamus action for reinstatement after the school board fired him in April 1951, stating the position of superintendent was being eliminated. In July 1951, the board hired one principal as combination superintendent-principal without tendering the position to McNely. The lower court decision on the mandamus action is not indicated, but the case went to the appellate court where the mandamus action abated due to the intervening death of Mr. McNely in July 1952. The executrix then commenced the damages action, as mandamus was futile as a remedy without a living person to reinstate.
The mandamus action was discussed in regard to defendant's assertion of res judicata in the second case. In disposing of the res judicata issue, the issue of whether school superintendents were teachers within the meaning of the statute set forth above and the collateral issue of review under the Administrative Review Act were considered, and the supreme court strongly implied that the original action of mandamus by the superintendent was proper and that a writ of mandamus should have issued reinstating the superintendent.
In McNely our supreme court made the following observation:
"The notice of dismissal and the resolution on which it was based were bottomed solely on the elimination and discontinuance of the job of superintendent, rather than on dismissal for cause, and under the circumstances of this case the attempted dismissal of the decedent was not in compliance with the statute and he was under contractual continued service with the board." McNely v. Board of Education (1956), 9 Ill.2d 143, 146, 137 N.E.2d 63.
It is clear that in McNely the reviewing court was confronted with a factual situation which posed several questions which had to be resolved in order to determine the issues in the case, to-wit, the effect of the elimination of a certain type of service, the dismissal of an individual who was holding a position on a contractual continued service (tenure) basis, the reinstatement of the eliminated position within one calendar year and the failure to tender the reinstated position to the individual who had been dismissed.
• 2 The petitioners in the instant case alleged facts that (1) each was a dismissed teacher (who was on contractual continued service) because (2) respondent school board decided to decrease the number of teachers and/or to discontinue some particular type of teaching service where (3) respondent school board retained or employed within one year non-tenured teachers in a position (or parts thereof) which the dismissed teacher was legally qualified to hold, and (4) the petitioners sought reinstatement and damages. We believe the trial court was well supported by precedent to proceed on a petition for writ of mandamus, and we return to the issue of school board discretionary duty which was raised in this case. Respondent maintains that school boards have broad discretionary powers to determine the legal qualifications of ...