APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The plaintiff, Lawrence Milkowski, a day-by-day substitute teacher, unsuccessfully sought to recover Special Unemployment Assistance benefits provided under title II of the Emergency Jobs and Unemployment Assistance Act of 1974, 26 U.S.C. § 3304 (note for the 1977 summer vacation period). The issue in the case is whether the plaintiff could properly be considered to have had a contract to teach the subsequent year. Both the Board of Review and the trial court held that he had. We agree.
Section 203(b) of title II of the Emergency Jobs and Unemployment Assistance Act of 1974 (note to 26 U.S.C. § 3304 (1976)) provides in pertinent part:
"(b) An individual who performs services in an instructional, research, or principal administrative capacity for an educational institution or agency shall not be eligible to receive a payment of assistance or a waiting period credit with respect to any week commencing during the period between two successive academic years (or, when the contract provides instead for a similar period between two regular but not successive terms, during such similar period) if
`(1) such individual performed services in any such capacity for any educational institution or agency in the first of such academic years or terms; and
(2) such individual has a contract to perform services in any such capacity for any educational institution or agency for the later of such academic years or terms.'"
The plaintiff applied for special assistance benefits for the period from June 19, 1977, through June 25, 1977. He was the sole witness at the hearing. He testified that he had been a full-time teacher from October 1974 to September 1, 1976. While he had been invited back as a full-time teacher in June 1976, they changed his position in September to that of a day-to-day substitute teacher. As a day-to-day substitute teacher he would teach at whatever school he was sent to on that particular day. In June 1977 he was not told to come back; nor was he told not to come back. In previous years, while he was a full-time teacher, he was always told in June that he was to come back in September.
The plaintiff applied for benefits in June. He did not register with the State employment service. He contacted a friend who owned a painting service but the business was closed for the summer. He looked at some want ads and contacted a few people. Such contacts were in his words "very few and far between."
In his opinion, the referee stated that where no affirmative action has been taken by an employee or the educational institution by whom the employee was employed there is a presumption or "reasonable assurance" that the employee will return to the same work the following term or semester and that for this reason the plaintiff was excluded from receiving benefits.
The Board of Review of the Department of Labor affirmed on the ground the plaintiff had a commitment to return to work when the new school year began. The trial court affirmed on the ground the plaintiff had an implied contract to work for the Chicago Board of Education in the fall semester of 1977. The court noted that it also doubted that the plaintiff exerted sufficient effort to find another job.
We agree with the plaintiff that if the term "contract" in the statute means an agreement binding on a school board so that it could be held liable for damages for its breach there was no contract here. Clearly, the plaintiff being a non-tenured day-to-day teacher could not force the school board to use him in the fall. But the issue in this case is whether the term "contract" as used in the statute has this limited meaning. Since we find that it does not, we affirm the denial of benefits.
The particular provision in issue was first interpreted by the Department of Labor in its role of explaining and implementing the intent of Congress. The United States Secretary of Labor in Unemployment Insurance Program Letter No. 29-75 which was distributed to the States defined "contract" as used in this section to include "either a verbal, written or implied agreement." "Implied agreement" was defined as follows: "If a teacher * * * has not resigned, has not retired or has not been terminated, there may be an implied continuing contractual relationship." (See Ortiz v. Commonwealth Unemployment Compensation Board of Review (1979), 42 Pa. Commw. 234, 400 A.2d 685; Williamson v. Mississippi Employment Security Com. (Miss. 1977), 347 So.2d 978.) While the Secretary's interpretation is not binding on this court (Williamson v. Mississippi Employment Security Com. (Miss. 1977), 347 So.2d 978; Mississippi River Fuel Corp. v. Illinois Commerce Com. (1953), 1 Ill.2d 509, 116 N.E.2d 394; Olin Corp. v. Pollution Control Board (1977), 54 Ill. App.3d 480, 370 N.E.2d 3, appeal denied), the interpretation of a statute by the agency charged with the administration of the statute is entitled to substantial deference (Quern v. Mandley (1978), 436 U.S. 725, 56 L.Ed.2d 658, 98 S.Ct. 2068), and such construction should be and normally is persuasive. Mississippi River Fuel Corp. v. Illinois Commerce Com. (1953), 1 Ill.2d 509, 116 N.E.2d 394; Olin Corp. v. Pollution Control Board (1977), 54 Ill. App.3d 480, 370 N.E.2d 3, appeal denied; Hardway v. Board of Education (1971), 1 Ill. App.3d 298, 274 N.E.2d 213.
The Special Unemployment Assistance program was set up to counter the severe unemployment problem that beset the nation in 1974 (Imel v. Department of Employment (1978), 99 Idaho 224, 580 P.2d 70; Williamson v. Mississippi Employment Security Com. (Miss. 1977), ...