APPEAL from the Circuit Court of Jasper County; the Hon.
GEORGE R. KELLY, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 24, 1979.
Plaintiff, Stephen Steinmetz, filed a petition for a writ of mandamus against defendants, Board of Trustees of Community College District No. 529 and James S. Spencer, chancellor, seeking reinstatement as a teacher with the District. Defendants filed a motion for summary judgment which was granted. Plaintiff then brought this appeal.
Plaintiff contends that the granting of summary judgment was erroneous in that genuine issues of material fact existed which would have been appropriate to decide only on the basis of sworn evidence upon a trial of the cause. Additionally, plaintiff argues that he was denied due process of law.
The factual situation presented was as follows. Plaintiff was an instructor of speech at the Olney campus of defendant Community College District No. 529. There are three campuses in operation in the District. Although plaintiff taught only speech classes, an "employment data sheet," filled out at the time plaintiff was hired, and signed by the chancellor, stated that plaintiff was qualified to teach speech and English. Plaintiff entered on continual contractual service (tenure) on April 30, 1973. The Board policy in effect at that time provided that "separation from service shall be for just cause as recommended by the Chancellor and approved by the Board of Trustees." On February 19, 1976, plaintiff received a copy of a letter from the president of Olney Central College to the chancellor of the District stating that he recommended that plaintiff's contract be terminated at the end of the academic year for reasons of retrenchment made necessary by a decline in enrollment in speech classes.
Plaintiff requested a conference with the chancellor on March 5, 1976, and was told that the chancellor would meet with him on March 8, 1976. Also on March 5, the president of Olney Central issued a communication that the recommendation to terminate plaintiff's contract would be presented for Board approval on March 16, 1976. At approximately 4:30 p.m. on March 22, 1976, plaintiff was notified in writing that an adjourned meeting of the Board of Trustees would be held the following day, March 23, at 7:30 p.m. at which time the recommendation in question would be presented to the Board. Plaintiff was present at this meeting with his attorney. Counsel for the defendant District was also present. Immediately following other business, including the approval of a resolution to name a gymnasium at the Wabash Valley College campus of the District in honor of the chancellor, the recommendation to terminate plaintiff's contract was presented by the chancellor and approved by the Board.
Plaintiff then filed a petition for mandamus, seeking reinstatement. Defendants filed an answer to which plaintiff filed a reply. Defendants responded with a motion for summary judgment, accompanied by affidavits, attesting, inter alia, to a decrease in enrollment for speech classes. Plaintiff filed counteraffidavits attesting that there was an increase in speech students for the 1974-75 school year, rather than a decrease; that during the 1974-75 school year the defendants took classes away from the plaintiff and hired other personnel to teach classes he had been teaching; that said acts were not done in good faith as a necessary reduction in personnel but were done instead to circumvent the Board's provisions concerning tenure. On July 6, 1977, the court granted summary judgment for defendants.
1 Plaintiff is apparently contending that since the Board policy in effect at the time he entered continual contractual service did not specifically provide for dismissal of teachers for reasons of retrenchment the Board is therefore prohibited from dismissing him for that reason. Defendants reply that although the Board policy provisions on tenure did not specify retrenchment as a reason for dismissal at the time plaintiff became tenured, the Board policy was changed to so specify during the time plaintiff was on tenured status. Plaintiff challenges the effectiveness of the changed policy to affect his status. He alleges that a change in tenure policy which the Board adopted after he entered upon continual contractual service is in derogation of the constitutional prohibition against the impairment of contracts and is also prohibited as an ex post facto law. Plaintiff cites this court to no case law in support of his contention and presents no argument beyond this bare assertion. However, we note that the constitutional prohibition against ex post facto laws concerns criminal matters solely and has no application to civil law. People ex rel. County Collector of Ogle County v. Chicago Burlington & Quincy Ry. Co., 323 Ill. 536, 154 N.E. 468.
2 Community college districts operate under the authority of the Public Community College Act. (Ill. Rev. Stat. 1975, ch. 122, par. 101-1 et seq.) Section 3-32 of that Act empowers the Board "to establish tenure policies for the employment of teachers and administrative personnel, and cause for removal." Under the authority of the Act the Board adopted the following policy statement:
"In addition, another reason for discharge is retrenchment, which means the decrease in number of persons employed by the Board of Trustees as a result of its decision to reduce staff or the discontinuance of some particular type of teaching service."
We perceive no irregularity in the passage or the content of this policy nor in its application to plaintiff.
3 Additionally, defendants argue that the power to dismiss for retrenchment is inherent. Plaintiff replies that the Board possesses statutorily granted powers only and has no inherent powers, quoting from Goedde v. Community Unit School District No. 7, 21 Ill. App.2d 79, 157 N.E.2d 266, to the effect that "a school district has no inherent powers and derives its existence and power wholly from the General Assembly and is limited to those powers expressly granted or such as result from necessary implication from those granted." We note that Goedde involved a public secondary school and the Illinois School Code, which is inapplicable here, although it might be argued that the situations are analogous. However, this citation does not avail the plaintiff since we are of the opinion that the power to dismiss for reasons of retrenchment is one which is necessarily implied from those powers granted to the Board. This argument becomes even more compelling when section 3-30 of the Community College Act is read. It provides:
"The board of any community college district has the powers enumerated in Sections 3-31 through 3-43. This enumeration of powers is not exclusive but the board may exercise all other powers, not inconsistent with this Act, that may be requisite or proper for the maintenance, operation and development of any college or colleges under the jurisdiction of the board." (Ill. Rev. Stat. 1975, ch. 122, par. 103-30.)
The intention of the General Assembly to grant broad powers with sufficient flexibility to meet contingencies as they might arise, including that of the need to reduce staff because of falling enrollments, is evident from this language. We are also guided in this decision by the reasoning of courts> from other jurisdictions which have dealt with this specific problem or others similar to it. Funston v. District School Board (1929), 130 Ore. 82, 278 P. 1075; People ex rel. Corrigan v. Mayor & Common Council (1896), 149 N.Y. 215, 43 N.E. 554; Ehret v. School District (1939), 333 Pa. 518, 5 A.2d 188; and Miller v. Stoudnour (1942), 148 Pa. Super. 567, 26 A.2d 113, all found that, as was aptly expressed by the Funston court, tenure provisions were not intended to "provide teachers, situated like the plaintiff, with a life income conditioned only upon their proper conduct." (130 Ore. ...