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Kearns v. Bd. of Education

OPINION FILED JUNE 19, 1979.

HERSCHEL FRANK KEARNS, PLAINTIFF-APPELLANT,

v.

BOARD OF EDUCATION OF NORTH PALOS ELEMENTARY SCHOOL DISTRICT NO. 117, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Plaintiff, a tenured academic counselor employed by the defendant Board of Education of North Palos School District No. 117 ("Board"), brought suit in the circuit court of Cook County seeking invalidation of his 3 1/2-day suspension without pay, expunction of this suspension from his records, and reimbursement of $304 in withheld pay. Plaintiff appeals an order entering summary judgment for the defendant contending that (1) he was statutorily entitled to a hearing before an impartial hearing officer prior to his suspension; and (2) that the Board's action violated his procedural due process rights and infringed his first amendment right of free speech. No question as to the Board's suspension is raised in this appeal.

On August 31, 1976, the plaintiff attended an Institute Day meeting at Conrady Junior High School where he was employed. On the same day, Charles Feigl, the superintendent of the school district, and the plaintiff were sent a memorandum from Joseph Dubec, the school's principal, charging the plaintiff with improper, insubordinate, and irrational conduct at the Institute Day meeting. The following day (September 1), the plaintiff and his teacher's representative met with assistant superintendent Tom Kostes and principal Dubec. At this meeting plaintiff was given an opportunity to defend and account for his actions. Following this meeting, the assistant superintendent notified the plaintiff by a memorandum dated September 1 that he was suspended for three days as of noon September 1, and that he could appeal the decision to the superintendent or to the defendant Board.

On September 7, plaintiff was notified by telegram of a special meeting to be held on that date by the defendant Board for the purpose of reviewing his suspension. *fn1 The telegram advised the plaintiff of his right to appear and be heard at the meeting with the representative of his choice. The plaintiff was also notified that if the Board determined that his suspension was improper, he would be reimbursed for all lost pay and his record would reflect that determination. Plaintiff attended the September 7 Board meeting with several representatives, one of whom was the general counsel for the Illinois Education Association. Although no witnesses testified under oath or were cross-examined and an informal atmosphere prevailed at that meeting, the plaintiff was given an opportunity to present proof and testimony of witnesses, and to explain, controvert, and rebut the administration's reports of defects in his conduct.

The minutes of the September 7 meeting indicate the following action was taken:

"Mrs. Hodgson moved, Wanka seconded that the suspension without pay, of Mr. Frank Kearns be terminated as of tonight (Sept 7) and that Mr. Kearns be instructed to report to work in the morning (Sept. 8) * * * and that the following resolutions be adopted by the Board."

These minutes were subsequently amended at the Board's regular meeting on September 21 to read as follows:

"PAGE ONE-PARAGRAPH FOUR-should read:

`. . . . . that the suspension of 3 1/2 days without pay be upheld, of Frank Kearns, and the suspension be terminated as of tonight September 7 . . . .'"

I.

Under section 10-22.4 of the School Code, a school board is given the power:

"To dismiss a teacher for incompetency, cruelty, negligence, immorality or other sufficient cause and to dismiss any teacher, whenever, in its opinion he is not qualified to teach, or whenever, in its opinion, the interests of the schools require it, subject, however, to the provisions of Sections 24-10 to 24-15, inclusive." (Ill. Rev. Stat. 1975, ch. 122, par. 10-22.4.)

Section 24-11 of the School Code provides in pertinent part:

"This Section and succeeding Sections do not modify any existing power of the board except with respect to the procedure of the discharge of a teacher and reductions in salary as hereinafter provided. Contractual continued service status shall not restrict the power of the board to transfer a teacher to a position which the teacher is qualified to fill or to make such salary adjustments as it deems desirable, but unless reductions in salary are uniform or based upon some reasonable classification, any teacher whose salary is reduced shall be entitled ...


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