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Litin v. Bd. of Educ. of City of Chicago

OPINION FILED MAY 21, 1979.

JEROME A. LITIN, PLAINTIFF-APPELLANT,

v.

THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding. MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Mr. PRESIDING JUSTICE GOLDBERG delivered the opinion of the court:

The Board of Education of the City of Chicago (Board) dismissed Jerome A. Litin (plaintiff), a tenured teacher, under the provisions of section 34-85 of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 34-85). The dismissal was affirmed on administrative review. Plaintiff appeals.

In this court, plaintiff contends: (1) The Board did not serve plaintiff with a reasonable warning in writing as required by section 34-85 of the School Code; and, therefore, the Board was without jurisdiction to hear charges against plaintiff and order his dismissal; and (2) the decision of the Board was against the manifest weight of the evidence. The facts pertinent to our decision follow.

Plaintiff had been a teacher in the Chicago Public Schools for 21 years. At the time of his dismissal, he was a tenured teacher at Von Steuben Upper Grade Center. His last efficiency rating in June 1973 was "excellent." On March 19, 1976, the principal of Von Steuben issued to plaintiff a written "E-1" notice stating plaintiff's performance was unsatisfactory. The notice also contained suggestions for improvement if plaintiff wished to secure a higher rating and a warning that "failure to remove these causes, may result in charges as provided by statute."

On September 8, 1976, the principal served plaintiff with an "E-2" notice indicating his performance had not improved and his efficiency rating would be recorded as unsatisfactory. On October 1, 1976, an E-2 conference was held in the Bureau of Teacher Personnel for the purpose of reviewing and discussing with plaintiff the evaluations of his service. Plaintiff, the principal and other school officials were present. On May 25, 1977, the General Superintendent of Schools preferred charges against plaintiff for failure to perform his duties and responsibilities as a teacher in the Chicago Public Schools. The Superintendent averred that from September 3, 1975, through October 1, 1976, plaintiff had failed: to maintain proper order and discipline among his pupils; properly to supervise movements of students in his classroom to the cafeteria and to exits at dismissal time; to display his students' work on bulletin boards and to improve the appearance of his classroom; to implement an organized and effective instructional program, all notwithstanding numerous requests, suggestions, directives and orders from his superiors. Plaintiff was suspended from duty pending hearing on the charges.

Hearings were held on June 23 and July 6, 1977. On July 27, 1977, the Board confirmed the dismissal of plaintiff by adopting the report of the trial committee.

Plaintiff and the Board agree that if the causes are remediable, a written warning stating those causes which may result in charges must be sent to a tenured teacher before the Board has jurisdiction to hear charges and dismiss the teacher. They also agree that the causes herein were remediable and that the substance of the written warning received by plaintiff was sufficient to meet the statutory requirements of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 34-85). Therefore, the only issue we need consider is whether the written warning may be sent by the principal in lieu of the Board.

The pertinent statute states in relevant part (Ill. Rev. Stat. 1975, ch. 122, par. 34-85):

"Before service of notice of charges on account of causes that may be deemed to be remediable, the teacher shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges."

Plaintiff cites Paprocki v. Board of Education (1975), 31 Ill. App.3d 112, 334 N.E.2d 841, in support of his contention that the Board has a non-delegable duty to serve the notice on a tenured teacher. In Paprocki, the plaintiff was a tenured teacher with 23 years of experience. The Board of Education of the McHenry County District dismissed plaintiff after allegedly following the procedures set forth in section 24-12 of the School Code (Ill. Rev. Stat. 1971, ch. 122, par. 24-12). Plaintiff therein contended that the Board had not given the required statutory notice in writing and, therefore, it was without jurisdiction to dismiss plaintiff. The Board maintained that the written notice sent by the principal met the requirements of section 24-12. This statute provided in relevant part (Ill. Rev. Stat. 1971, ch. 122, par. 24-12):

"Before service of notice of charges on account of causes that are considered remediable, the teacher shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges."

This court (Second District) stated that the power to hire and fire is a discretionary one which cannot be delegated or limited by contract. The court held (31 Ill. App.3d 112, 114-15):

"The notice of remediable cause is jurisdictional, and a board's failure to give such warning deprives a board of the jurisdictional authority to discharge the teacher for those causes. Miller v. Board of Education, 51 Ill. App.2d 20, 29 (1964); Allione v. Board of Education, 29 Ill. App.2d ...


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