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Grissom v. Board of Education

OPINION FILED APRIL 3, 1979.

RICHARD GRISSOM, APPELLANT,

v.

THE BOARD OF EDUCATION OF BUCKLEY-LODA COMMUNITY SCHOOL DISTRICT NO. 8 ET AL., APPELLEES.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Ford County, the Hon. William Roberts, Judge, presiding.

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

The board of education of Buckley-Loda Community School District No. 8, defendant, dismissed the plaintiff, Richard Grissom, a tenured teacher, at the end of the 1973-74 school year. At a meeting of the board on March 25, 1974, it had voted not to rehire Grissom, and had sent him a notice of dismissal the following day. Grissom, within the statutorily required 10 days (Ill. Rev. Stat. 1973, ch. 122, par. 24-12), requested a hearing and a bill of particulars, and stated that the apparent causes for his discharge were remediable, thus entitling him to a warning which had not, the board agrees, been given. The board sent a bill of particulars, which Grissom maintains was inadequate, and set a date for the hearing, which started May 7, 1974, and continued on subsequent dates through the summer of 1974. Following the hearing, the board made findings and voted to dismiss the plaintiff, who filed for administrative review in the circuit court of Ford County (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.). The circuit court affirmed, as did the appellate court (55 Ill. App.3d 667), and we granted leave to appeal (65 Ill.2d R. 315).

The plaintiff has raised several issues in addition to the apparent issue of whether the dismissal was contrary to the manifest weight of the evidence. He first asserts he was denied a fair and impartial hearing because the board members were not impartial but antagonistic towards him, and because the board's attorney acted as both prosecutor before and advisor to the board. This argument is a variation of the due process challenge presented in Gilliland v. Board of Education (1977), 67 Ill.2d 143.

The present dismissal procedure (Ill. Rev. Stat. 1977, ch. 122, par. 24-12) provides for the appointment of an independent hearing officer in teacher dismissal disputes. The procedure in effect at the time of the instant case did not (Ill. Rev. Stat. 1973, ch. 122, par. 24-12). Instead section 24-12, as effective then, gave a local board of education the responsibility for initiating and finalizing teacher dismissals, for cause, and the competence to act as a hearing tribunal if the "charged" teacher wanted a hearing. The role of the board's attorney as both advisor to the board — for example, on questions of evidence and objections — and allegedly as "prosecutor" is irrelevant. The question is whether the board fulfilled its proper function as established by the legislature. The board's function has been to hire teachers, assign them, and remove them if necessary. This requires the board to establish charges against teachers it finds incapable or wanting, and, as the statute was in effect then, to hold hearings. The record here indicates that the statutory procedure (Ill. Rev. Stat. 1973, ch. 122, par. 24-12) was adhered to. The plaintiff's argument, then, is a constitutional challenge already settled by this court in Gilliland v. Board of Education (1977), 67 Ill.2d 143, 154-56. We also note, as did the Gilliland decision, that a similar procedure has survived constitutional challenge in Hortonville Joint School District No. 1 v. Hortonville Education Association (1976), 426 U.S. 482, 49 L.Ed.2d 1, 96 S.Ct. 2308. Accord, Withrow v. Larkin (1975), 421 U.S. 35, 43 L.Ed.2d 712, 95 S.Ct. 1456 (where the Supreme Court stated that the combination of investigative and adjudicative functions in a State licensing agency does not in itself have an unacceptable risk of bias). Cf. Miller v. Board of Education (1964), 51 Ill. App.2d 20, 38-41.

Does this mean, then, that despite the existence of bias on the part of a decision maker, e.g., here a board member, a petitioner in such a proceeding has no other recourse once a procedure is found constitutionally sufficient? Not at all. Withrow v. Larkin (1975), 421 U.S. 35, 58, 43 L.Ed.2d 712, 730, 95 S.Ct. 1456, 1470, pointed out that special facts, demonstrating denial of due process, might exist. But without "a showing to the contrary, state administrators `are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.'" (Withrow v. Larkin (1975), 421 U.S. 35, 55, 43 L.Ed.2d 712, 728, 95 S.Ct. 1456, 1468.) Moreover, "[m]ere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not, however, disqualify a decisionmaker. [Citations.] Nor is a decisionmaker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not `capable of judging a particular controversy on the basis of its own circumstances.'" (Hortonville Joint School District No. 1 v. Hortonville Education Association (1976), 426 U.S. 482, 493, 49 L.Ed.2d 1, 9, 96 S.Ct. 2308, 2314. Accord, Carrao v. Board of Education (1977), 46 Ill. App.3d 33.) The plaintiff believes overwhelming bias existed on the part of the board. As evidence of this, he cites some instances. The plaintiff had been honorably let go in 1971 because the agriculture program, for which he had been hired, had been discontinued. He successfully sued to be reinstated. In the spring of 1974, the board chairman, James Flanigan, was approached with the question, "What's this you trying [sic] to get rid of Mr. Grissom again?" To which he admitted he replied, "What do you mean again? We never have stopped." The plaintiff also noted the following instances: the board sustained all nine of its attorney's objections while denying or overruling 19 of plaintiff's 24 motions or objections; one of the board members had reason to be biased because his son had been disciplined by the plaintiff; and Flanigan, in the presence of another board member, expressed the view to a prospective witness (whose testimony was recorded and allowed in on plaintiff's behalf) that the plaintiff was unreasonable and incompetent as a teacher.

The examples the plaintiff calls to our attention are not persuasive. Flanigan's remarks were thoughtless and indiscreet, but hardly so substantial as to evidence a vendetta or prejudice violative of the standards of Withrow v. Larkin (1975), 421 U.S. 35, 43 L.Ed.2d 712, 95 S.Ct. 1456, Gilliland v. Board of Education (1977), 67 Ill.2d 143, Fender v. School District No. 25 (1976), 37 Ill. App.3d 736, Carrao v. Board of Education (1977), 46 Ill. App.3d 33, and Morelli v. Board of Education (1976), 46 Ill. App.3d 722. Moreover, they are the only evidence of hostility on the part of the seven-member board. The plaintiff has failed to show that any other member was biased; he must show more than the mere possibility of bias. We are unable to say the board, in the exercise of its duties, displayed unfairness to the plaintiff by favorably acting on only six of his motions or objections. Plaintiff was accompanied by counsel, had the opportunity to cross-examine, and was permitted to offer as evidence tape recordings of testimony taken by his attorney without the presence of the board's attorney.

The plaintiff next asserts that the charges in the notice of dismissal and bill of particulars were insufficiently specific. The charges listed in the notice of dismissal (March 26, 1974) were:

"1. Inability or failure to discipline students, or maintain classroom discipline, in a proper or appropriate manner.

2. Failure to maintain and protect school property and equipment, under your charge or supervision, from defacement, damage or destruction.

3. Inability or unwillingness to convey proper classroom instruction to students so as to promote their comprehension and retention of the subject matter being taught; and, inability or unwillingness to utilize proper or appropriate instruction or teaching techniques.

4. Failure or refusal to accept and act upon suggestions, advice and directions provided to you by the Superintendent and Principal of the school, particularly in regard to those matters noted in the preceding subparagraphs."

The bill of particulars (April 9, 1974) expanded upon the charges above by repeating them but with additional, specific subparagraphs underneath each charge:

"I * * *

a. Use of unnecessary and unwarranted physical force and violence in dealing with or disciplining students.

b. Failure to observe or correct unruly or undisciplined, and often physically unruly, conduct of students under your ...


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