APPEAL from the Circuit Court of De Witt County; the Hon.
WILLIAM C. CALVIN, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
This case primarily concerns the question of whether a public school district effectively terminated the contract under which plaintiff Richard C. Davis was employed as its superintendent. At issue is the interpretation of and relationship between legislation requiring the meetings of public bodies to be open to the public and legislation prescribing the procedure for dismissal of a school superintendent.
The crucial portions of these statutes are the following:
Section 2 of the Open Meetings Act which provides in part,
"All meetings of any legislative, executive, administrative or advisory bodies of * * * school districts * * * which are supported in whole or in part by tax revenue, * * * shall be public meetings * * *
This Section does not prevent any body covered by this Act from holding closed sessions to consider information regarding appointment, employment or dismissal of an employee or officer or to hear testimony on a complaint lodged against an employee or officer to determine its validity, but no final action may be taken at a closed session" (Ill. Rev. Stat. 1977, ch. 102, par. 42),
and section 10-21.4 of The School Code which concerns employment of superintendents and states in part,
"Notice of intent not to renew a contract must be given in writing stating the specific reason therefor by April 1 of the contract year unless the contract specifically provides otherwise. Failure to do so will automatically extend the contract for an additional year. Within 10 days after receipt of notice of intent not to renew a contract, the superintendent may request a closed session hearing on the dismissal. At the hearing the superintendent has the privilege of presenting evidence, witnesses and defenses on the grounds for dismissal." Ill. Rev. Stat. 1977, ch. 122, par. 10-21.4.
Plaintiff Richard C. Davis sued the Board of Education of Farmer City-Mansfield Community Unit School District No. 17, De Witt, Piatt and McLean Counties, and the members of that Board in the circuit court of De Witt County seeking a declaratory judgment that he was superintendent of that district for the 1976-77 school year and thereafter and that he was entitled to 85 days unused vacation time with full pay. He also sought to enjoin the defendants from dismissing him until they complied with certain statutory provisions. Subsequently, the trial court granted the defendants a summary judgment dismissing plaintiff's amended complaint. Plaintiff appeals.
The facts stated in the next two paragraphs are shown in the record and not disputed by the parties.
At meetings of the defendant board on January 12 and 19, 1976, a portion of the meeting was held in closed session in which a discussion occurred concerning plaintiff's performance as superintendent and the continuation of his employment. At the January 19 closed session, a resolution was adopted finding plaintiff's performance to be unsatisfactory for reasons specified in detail and reciting a "tentative opinion and judgment" of the Board that he not be rehired. The secretary of the Board was directed to privately deliver a notice of the Board's actions and reasons for the same to plaintiff within 24 hours. Final action upon the Board's tentative decision was set for the regular board meeting on February 2, 1976. The minutes of the two closed sessions were kept separate from those of the open sessions. The minutes of the open sessions recited that the Board had met in closed session to consider an evaluation of plaintiff's work and that the same had not been completed but would be further considered at the next meeting.
A notice of the Board's tentative decision made in the closed session on January 19 was personally served on plaintiff on that date. The notice set forth in detail specific reasons for the Board's action. After meeting in closed session on February 2, 1976, the Board returned to open session and unanimously passed a resolution stating that "in the best interest of the education system" of the district, the board determines that plaintiff not be reemployed as superintendent for the coming year but that if an unfilled position exists which he was certified and qualified to fill he be assigned to that position "the exact assignment, if any, to be hereafter determined by" the Board.
Section 10-21.4 of The School Code requires that in order to terminate a superintendent's employment as superintendent, the district's board must form an intent not to renew the superintendent's contract and then give him timely notice of that intent by a written document which sets forth the specific reasons for the board's action. The only written notice given plaintiff which meets those requirements was the notice of the Board's "tentative decision" given pursuant to the resolution of the Board enacted at the January 19 closed session.
1, 2 The provision of the law on open meetings which permits closed sessions to consider the discharge of an official (Ill. Rev. Stat. 1977, ch. 102, par. 42) does not say whether a resolution may be passed at such a session and no case has been called to our attention ruling upon the question. If the passage of a resolution of a tentative intent to terminate a contract with an employee is "final action," then the notice subsequently given here was without authority and invalid. It would logically follow that absent a valid notice as required by section 10-21.4, the Board's subsequent action discharging plaintiff as superintendent would be void. However, the statement in the statute that "final action" may not be taken in a closed session indicates that action that is not final may be taken. Here, the action taken at the January 19 closed session, stating an intent to terminate plaintiff's employment as superintendent and ordering notice, did not dispose of the question of whether that employment should ...