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Penman v. Bd. of Trustees

OPINION FILED MARCH 3, 1981.

LARRY PENMAN, PLAINTIFF-APPELLANT,

v.

THE BOARD OF TRUSTEES OF ILLINOIS EASTERN COMMUNITY COLLEGES ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Jasper County; the Hon. DANIEL H. DAILEY, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Plaintiff, Larry Penman, brought this action in mandamus to compel defendant, Board of Trustees of Illinois Eastern Community College District No. 529, to assign him to his former position as librarian for Olney Central College. The Circuit Court of Jasper County entered judgment for the Board of Trustees, finding that plaintiff was not a tenured employee.

This case involves the tenure provisions of the Public Community College Act (Ill. Rev. Stat. 1979, ch. 122, par. 101-1 et seq. (hereinafter the Act)) and a series of contracts between plaintiff and defendant.

Plaintiff executed his first contract with Olney Community College (later renamed Olney Central College) on May 16, 1966. The contract was a probationary teacher's contract for an eleven month term beginning August 22, 1966. Penman's salary was fixed at $8,433. A second probationary contract was executed on March 7, 1967, to begin July 1, 1967, and to run for 11 months with an annual salary of $8,617. At the time these contracts were executed, Olney Community College was a Class II junior college.

On May 21, 1968, prior to execution of a third contract, defendant adopted a resolution to remove Penman from the faculty salary schedule and make his position as librarian and instructor in library science an administrative appointment, the appointment to be made annually by the board. Certain changes were made in plaintiff's responsibilities; plaintiff was employed for the full year, he assumed control over textbook rentals, his work was longer, his salary increased significantly, his salary was not determined by any fixed pay scale, and his salary did not increase at a uniform rate.

Penman's third contract was executed with the board of Junior College District No. 529, Olney Community College having been incorporated into a Class I junior college district by referendum late in 1967. The third contract was in form a probationary teacher's contract, but under salary information the phrase "adm. appointment" appeared. The contract was executed by Penman on May 28, 1968. The term of the contract was for 12 months at a salary of $13,000.

The fourth contract executed by plaintiff was an administrative contract for 12 months at a salary of $14,250. Plaintiff executed this contract on March 19, 1969. However, plaintiff complained late in 1969 to Dr. James Spencer, Chancellor of Olney Central College, that he was entitled to a tenure contract. Dr. Spencer was hired in July of 1968 and was unaware, according to this testimony, of Penman's prior administrative appointment. Spencer issued a faculty tenure contract to Penman, but the contract was never formally approved by the board of trustees.

The next six contracts executed by plaintiff were all administrative contracts, and no request was made for tenure contracts. All of the administrative contracts executed by plaintiff incorporated the board's rules and regulations.

The School Code of 1961 (Ill. Rev. Stat. 1961, ch. 122, par. 1-1 et seq.) provided for the creation of junior colleges as part of the public common school system. (Ill. Rev. Stat. 1961, ch. 122, par. 13-12.) The Public Community College Act was subsequently adopted; it provided for separate junior college districts. (Ill. Rev. Stat. 1965, ch. 122, par. 104-1), classified as either Class I or Class II. Olney Community College was a Class II junior college during the first two years of Penman's employment with defendant. The tenure rules applicable to Olney College at that time were those applicable to the public common schools and are set out in section 24-11 of the School Code then in effect. (Ill. Rev. Stat. 1965, ch. 122, par. 24-11.) That section provides in part:

Any teacher who has been employed in any district as a full-time teacher for a probationary period of 2 consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least 60 days before the end of such period. If, however, a teacher has not had 1 school term of full-time teaching experience prior to the beginning of such probationary period, the employing board may at its option extend such probationary period for 1 additional school term by giving the teacher written notice by registered mail at least 60 days days [sic] before the end of the second school term of the period of 2 consecutive school terms referred to above."

Olney Community College was in transition from a Class II junior college to a Class I junior college between December of 1967 and July of 1968. A referendum establishing the Class I college had passed, and a board of trustees had been organized prior to the conclusion of the 1967-1968 school term of the Class II college. During this period when Penman was concluding his second year of employment under a probationary contract, the board of trustees of the newly organized Class I junior college changed Penman's position to an administrative appointment and Penman executed his third contract. The legislature amended the Act in 1967 to provide a tenure policy for junior colleges changing from a Class II to a Class I district. This amendment allowed Class I junior colleges to establish tenure policies (Ill. Rev. Stat. 1967, ch. 122, par. 103-32) different from that statutorily fixed by section 24-11 of the School Code (Ill. Rev. Stat. 1967, ch. 122, par. 24-11). Olney Community College was governed by section 3-32 of the Act as amended in 1967. That section empowered the board of Class I colleges:

"To establish tenure policies for the employment of teachers and administrative personnel, and the cause for removal.

If the territory of a district which operates a Class II junior college is included in the territory of a Class I junior college district, any full time teacher, or administrator, who has been assigned at least 1/2 of his contractual duties in the Class II junior college shall be considered a full-time junior college teacher, or administrator, for contractual continued service purposes in the Class I junior college at the beginning of its first year of operation, if he had attained contractual continued service with the district which operated the Class II junior college at the conclusion of the year immediately preceding the operation of the Class I junior college and accepts employment by the Class I junior college district for its first year of operation." (Emphasis added.) Ill. Rev. Stat. 1967, ch. 122, par. 103-32.

The issue in this case is whether defendant had the power under the first paragraph of section 3-32 to appoint Penman annually or whether Penman became tenured by operation of law under the second paragraph of section 3-32 of the Act. If defendant could appoint plaintiff annually, then it could also discharge plaintiff at the end of any year. However, if plaintiff was tenured, then under defendant's own rules plaintiff could only be discharged for specified reasons, and he would be entitled to a notice and hearing before being discharged. We note that plaintiff was provided with a bill of ...


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