APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. CURRY, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Plaintiffs were tenured elementary school teachers in defendant School District No. 87, Cook County, Illinois. On March 15, 1976, defendant dismissed 41 teachers, including plaintiffs, because of declining enrollments. Within one calendar year thereafter, defendant hired a number of additional teachers; some were untenured. The additional teachers were hired to fill vacancies that had occurred during the year as the result of deaths, resignations, etc. As tenured teachers, plaintiffs insisted that they should have been given priority to fill the vacancies. When defendant refused, plaintiffs filed a petition for a writ of mandamus to compel defendant to hire them. Plaintiffs brought the suit both individually and on behalf of all those similarly situated. Defendant filed a motion to dismiss, which the trial court granted.
On appeal, plaintiffs argue that the trial court erred in dismissing their petition inasmuch as section 24-12 of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 24-12) requires that tenured teachers be given priority in the filling of vacancies that have occurred due to attrition.
The facts are not disputed. Plaintiffs Anabelle Bilek, Rita Governale, Mildred Levand, Georgette Tolen, Helen Voolach, and Jeanne Wind were tenured, elementary school teachers in defendant Berkeley School District No. 87, Cook County, Illinois. On February 23, 1976, defendant adopted a resolution authorizing the closing of two school buildings due to a decrease in student enrollment. Pursuant to that resolution, it was necessary that a number of teachers be dismissed. On March 15, 1976, defendant dismissed 41 teachers, reducing the staff from 164 teachers to 123. Plaintiffs were among the 19 tenured teachers that were honorably dismissed. The remaining teachers dismissed were non-tenured teachers.
Subsequent to March 15, 1976 and within one calendar year, defendant hired new teachers to fill vacancies that had occurred due to attrition (deaths, resignations, pregnancies, etc.). Of the nine new teachers hired, five were rehired tenured teachers who had previously been honorably dismissed. The other four were untenured teachers. After the hirings, there were still 123 teachers on defendant's staff. There was no net increase or decrease in the number of teachers employed.
On August 23, 1976, plaintiffs' attorney wrote defendant and stated that section 24-12 of the Illinois School Code (Ill. Rev. Stat. 1975, ch. 122, par. 24-12), commonly known as the Teacher Tenure Act, required that all vacancies be filled by tenured teachers who had been honorably dismissed within the preceding year. When defendant disputed this interpretation of section 24-12, plaintiffs filed a petition for writ of mandamus on September 3, 1976. Defendant filed a motion to dismiss which was subsequently granted by the trial court. Plaintiffs appealed.
On appeal, plaintiffs argue that section 24-12 of the School Code mandates that honorably dismissed tenured teachers be given priority when vacancies due to attrition are filled. They conclude therefore, that the trial court erred in dismissing their petition. We agree.
1 Section 24-12 of the Illinois School Code (Ill. Rev. Stat. 1975, ch. 122, par. 24-12) provides:
"Removal or dismissal of teachers in contractual continued service. 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."
The issue presented is one of statutory interpretation. Section 24-12 gives honorably dismissed tenured teachers hiring priority when positions are reinstated or the teaching staff is increased. However, it does not delineate the rights of honorably dismissed tenured teachers when vacancies are to be filled. We must therefore analyze the issue in terms of rules of construction and legislative intent.
The purpose of the tenure provision of the School Code of Illinois was interpreted by the supreme court in McNely v. Board of Education (1956), 9 Ill.2d 143, 137 N.E.2d 63, and Donahoo v. Board of Education (1952), 413 Ill. 422, 109 N.E.2d 787. In McNely the court said:
"The Teacher Tenure Law was enacted primarily for the protection of educational personnel who, prior to its enactment in 1941, served at the pleasure of school directors or boards of education. Its object was to improve the Illinois school system by assuring personnel of experience and ability a contractual continued service status based upon merit rather than insecurity of employment based upon political, partisan or capricious consideration. Donahoo v. Board of Education, 413 Ill. 422, Betebenner v. Board of Education, 336 Ill. App. 448." (9 Ill.2d 143, 147, 137 N.E.2d 63, 66.)
Similarly, in Graham v. Board of Education (1973), 15 Ill. App.3d 1092, 305 N.E.2d 310, we held that the Teacher Tenure Act must be construed consistently with its prime purpose of protecting teachers who have qualified for the protection of the Act. See also Reinhardt v. Board of Education (1974), 19 Ill. App.3d ...