APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
S. TESCHNER, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Joan Friesel, the plaintiff, sought reinstatement as a tenured teacher with back pay, following her dismissal by her employer, the Board of Education of Medinah Elementary School, District No. 11, Du Page County, Illinois (the Board). The trial court entered summary judgment in favor of the plaintiff, and the Board appeals.
Prior to her dismissal plaintiff had entered upon contractual continued service (tenure). In August of 1976, she informed her principal and superintendent that she would not be able to begin teaching that year because of illness. The Board does not dispute her competence as a teacher or the legitimacy of her illness; nor does it dispute the fact that prior to the commencement of the 1976-77 school year plaintiff had accumulated approximately 56 1/2 days of sick leave.
The Board obtained a substitute teacher for the start of the school year and requested a detailed physician's report from the plaintiff by a letter dated August 16, 1977. Plaintiff responded in a letter dated the next day, stating that the physician would send a letter after her August 19 appointment with him and that she would meet with the superintendent at a time when she could be with her husband. Plaintiff also sent a letter to the superintendent on August 20 saying she would be absent for at least two months. On August 26, the superintendent wrote for additional information. On September 14, the plaintiff's physician wrote a letter to the superintendent informing him of the diagnosis, treatment, and temporary incapacity of the plaintiff.
The Board, on October 4, 1976, at a regular meeting adopted a resolution defining disability. This resolution reads:
"Temporary illness of [sic] temporary incapacity are defined by this Board of Education, within the purview of Section 24-13 of the School Code of Illinois, as follows:
Any illness or other condition of illbeing [sic] which will render a teacher physically unable to perform assigned teaching duties. This period shall not exceed a total of 90 consecutive school days to run concurrently with accrued sick leave." (Emphasis added.)
On October 7 the superintendent wrote the plaintiff stating he was processing her "sick leave" and requesting more information. Ms. Friesel responded that she did not know when she could return. On November 16, the superintendent informed the plaintiff that her sick leave had expired, again asked for a medical report, and informed her that she was now on temporary illness status which was regulated under the new resolution, and if her illness lasted over 90 days the Board would terminate her tenure. More exchanges of the same nature followed.
On January 5, 1977, the plaintiff's doctor wrote to say that the plaintiff was still under his care and incapacitated. No date for return was given. On February 10, the plaintiff wrote to state that with her doctor's permission she could return to work on April 1, and affirmed this in a meeting with the superintendent on February 14.
The Board terminated plaintiff's employment, effective immediately, on February 21, 1977, for failure to comply with the regulation. No hearing was provided, and none was requested by the plaintiff.
On March 9, the plaintiff's doctor wrote stating that she could return to work on April 1. On May 12 plaintiff filed her law suit. Summary judgment was granted to the plaintiff because no hearing was granted in accordance with section 24-12 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24-12). The trial court stated that it was not necessary to rule on the validity of the regulation as grounds for dismissal because of its disposition of the case.
The issues are governed by section 24-12 of the School Code in effect when the case was filed on May 12, 1977 (Ill. Rev. Stat. 1975, ch. 122, par. 24-12), which provides as material:
"If a dismissal or removal is sought for any other reason or cause, including those under Section 10-22.4, the board must first approve a motion containing specific charges by a majority vote of all its members. Unless the teacher within 10 days requests in writing of the board that no hearing be scheduled, the board shall schedule a hearing on those charges before a disinterested hearing officer on a date no less than 30 nor more than 60 days after the enactment of the motion."
Section 10-22.4 provides that teachers may be dismissed for cause, "subject, however, to the provisions of Sections 24-10 to 24-15, inclusive" and further states that "[t]emporary mental or physical incapacity to perform teaching duties, as found by a medical examination, is ...