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Board of Education v. Epstein





APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.


Arnold Agnos, an English teacher, successfully defended himself against dismissal charges in a hearing held before Albert Epstein, a hearing officer selected from a list submitted by the State Board of Education, on charges filed by Agnos' employer, the Board of Education of Niles Township High School District No. 219, Cook County (hereinafter referred to as the District). The District filed an action for administrative review in the circuit court of Cook County, which upheld the hearing officer's determination that the evidence produced did not warrant dismissal. The District appeals from that judgment. For the reasons stated below, we affirm.

The subject hearing was held under the new procedure specified in section 24-12 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24-12), which replaces the former procedure under which a local school board would hold a hearing on charges it had brought and make its own determination. Under the new procedure, the local board of education approves a motion to seek dismissal of a teacher and schedules a hearing before a disinterested hearing officer. After receiving a notice of the charges, the State Board of Education provides a list of five prospective, impartial hearing officers from which the local board and the teacher each strike one name until only one remains. Prospective hearing officers must be accredited by a national arbitration association and must not reside in the school district involved. The decision of the hearing officer is final under the statute unless an administrative review is taken.

The District contends that the hearing officer usurped powers reserved to local school boards under the School Code as amended in that he overruled the District's determination as to the type of conduct or deficiency which constitutes cause for the discharge of a tenured teacher. The foundation of this argument is that under prior practice it was the local school board that adjudicated such matters and that the disposition of dismissal cases necessarily involves both a determination of what facts are established by the evidence and of whether such facts constitute cause for dismissal. The District makes a spirited argument that, under the amendments to the Code, the only power transferred from local boards to the hearing officer is the power to find facts, so that the power to determine what constitutes cause remains with local boards.

• 1 The weakness of this argument lies not in any particular wording of the statutory provisions involved, but rather in their clear practical significance. Only two actions of a remotely adjudicatory nature are called for under the new procedure, a vote by the local school board to seek a teacher's dismissal based on specific charges and a decision by a hearing officer after a full presentation of evidence. The District contends that the decision to seek dismissal constitutes a determination that, if the evidence establishes that the teacher engaged in any of the conduct alleged, his dismissal is warranted, so that the allegations themselves constitute a determination that the conduct alleged constitutes cause. Such a determination, however, made without benefit of the facts in the particular case, is clearly unworkable, because the determination as to whether certain conduct constitutes cause must inevitably depend on surrounding facts and circumstances. This is because the definition of "cause" is a "substantial shortcoming" so that dismissal may not be based on charges that are trivial (Kreiser v. Police Board (1977), 69 Ill.2d 27, 370 N.E.2d 511; Fox v. Illinois Civil Service Com. (1978), 66 Ill. App.3d 381, 383 N.E.2d 1201; Fornuto v. Police Board (1976), 38 Ill. App.3d 950, 349 N.E.2d 521, appeal denied (1976), 63 Ill.2d 556). Accordingly, it is necessary to "`evaluate the gravity of the violations and decide if the infractions were so substantial as to constitute cause for discharge.'" Hardaway v. Civil Service Com. (1977), 52 Ill. App.3d 494, 498, 367 N.E.2d 778, citing Petraitis v. Board of Fire & Police Commissioners (1975), 31 Ill. App.3d 864, 335 N.E.2d 126.

Thus, in Kreiser, proven misconduct by a police officer was held not to constitute grounds for discharge because it was not sufficiently related to his official duties, and in Fox, proven misconduct by an employee of the Department of Revenue was held not to constitute cause because her actions appeared to have been provoked. As stated in Caliendo v. Goodrich (1975), 34 Ill. App.3d 1072, 1076, 340 N.E.2d 560, "A defendant before an administrative agency is entitled to have that body base its decision upon evidence received at the hearing." In that case a police officer's involvement in a shooting incident while on vacation was evaluated strictly on the basis of evidence before the administrative panel and held not to be of sufficient gravity to warrant dismissal.

To regard a school board's charges against a teacher as determinations of cause would be to ignore the fact that these determinations were made without an evidentiary basis and not only would be irreconcilable with the authorities discussed above, but also would lead to predictably unrealistic results from mechanically applying such abstract standards. For example, the second and third charges in the present case allege failures to perform certain tasks. Obviously, even if the evidence of such failure were conclusive, it would be unreasonable to conclude that dismissal of the teacher was required if other evidence was also produced which showed a good reason for such failure.

• 2 It must be concluded that no provision is made in the statutes for a determination of cause by local school boards. Only one decision based on the evidence submitted is provided for, and that is the decision of the appointed hearing officer.

In attacking that decision, the District contends that it was contrary to the manifest weight of the evidence presented at the hearing.

The charges against Agnos were first listed in a September 9, 1974, "notice of remediation." A year later, the same charges, based on alleged continuing misconduct, were the substance of the motion to seek his dismissal. Agnos was charged with:

(1) Negligence in promptly grading and returning student work;

(2) Failure to maintain necessary and proper records of student attendance and performance as required under the School Code, Section 24-18, Board policy 4116.16, and the Niles East Teachers Handbook, Page C-2, Paragraph D;

(3) Failure to notify parents of unsatisfactory academic work as required by Board policy 4116.16;

(4) Making statements and expressions and/or conducting himself in a manner tending to demean, insult and ...

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