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Massoud v. Bd. of Education

OPINION FILED JUNE 4, 1981.

SAID MASSOUD, PLAINTIFF-APPELLANT,

v.

BOARD OF EDUCATION OF VALLEY VIEW COMMUNITY DISTRICT NO. 365-U, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Will County; the Hon. THOMAS W. VINSON, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Said Massoud appeals from the judgment of the Circuit Court of Will County dismissing his complaint for administrative review of the decision and order of a hearing officer from the State Board of Education. Massoud was a tenured teacher. Charges for his dismissal were brought against him by the Board of Education of Valley View Community District No. 365-U (hereinafter Local Board).

Pursuant to applicable provisions of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24-12), a hearing was held on the charges before a hearing officer from the State Board of Education. After the hearing, the officer, Minor K. Wilson, found that the charges were well taken, and he ordered dismissal of the teacher. Massoud sought review of that decision and order in the circuit court, pursuant to the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 122, par. 24-16; Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.). The circuit court, on motion by the Local Board, dismissed the action, finding that the complaint for review was not timely filed within the 35-day limitation prescribed by section 4 of the Administrative Review Act. (Ill. Rev. Stat. 1979, ch. 110, par. 267.) From that decision and dismissal, the appellant Massoud appeals to this court. On appeal, he argues that service of notice of the decision by the State Board of Education was not proper because it was sent to his attorney of record, and not to him, as required by applicable law.

The facts are not disputed. Massoud was a tenured teacher of physical education working for the Local Board of Education. Because of alleged physical abuse of students by him, the Local Board sought his dismissal. They sent him a letter of remediation and then, later, a notice of dismissal. Thereafter, pursuant to the provisions of section 24-12 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24-12), a hearing was held on the charges before Minor K. Wilson, a hearing officer from the State Board of Education. After reviewing proferred exhibits and hearing testimony from a number of witnesses, including Massoud, the hearing officer found that the charges were well taken. He affirmed the Board's decision to dismiss, based upon the evidence at the hearing, and he ordered dismissal of Massoud. The pertinent provision of section 24-12 states:

"The hearing officer shall, with reasonable dispatch, make a decision as to whether or not the teacher shall be dismissed and shall give a copy of the decision to both the teacher and the school board. The decision of the hearing officer is final unless reviewed as provided in Section 24-16 of this Act." (Ill. Rev. Stat. 1979, ch. 122, par. 24-12.)

Pursuant to these requirements, the hearing officer, through the State Board of Education, sent notice of the decision, including a copy of the decision, to the offices of Mr. Massoud's attorney. The decision was mailed, by First Class mail, to Mr. Massoud's attorney on October 25, 1979. The complaint for administrative review of the decision was filed on November 30, 1979, being 36 days after notice was mailed by the State Board of Education. The complaint was filed by a different attorney for Mr. Massoud than the one who represented him before the hearing officer. He had changed attorneys after the decision was rendered.

In the circuit court, the Local Board filed a motion to dismiss the action, based upon the untimeliness of the filing of the complaint. The Administrative Review Act, which governs review of dismissals by virtue of section 24-16 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24-16), requires that a complaint for review of an administrative action be filed within 35 days of service of a copy of the decision upon the party affected. (Ill. Rev. Stat. 1979, ch. 110, par. 267.) Section 4 also states, in pertinent part, that unless the Act governing the procedure before agency provides otherwise, a decision shall be deemed to have been served "when deposited in the United States mail, in a sealed envelope or package, with postage prepaid, addressed to the party affected thereby at his last known residence or place of business." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 110, par. 267.) There is no dispute that 36 days had passed between the filing of the complaint and the time the notice of decision was mailed to Mr. Massoud's attorney by the State Board of Education. The issue raised by Massoud in the trial court was whether the notice to his attorney was sufficient. He argues that notice of the decision should have been mailed directly to him, as the individual affected by the decision. The trial court determined that service of notice upon the attorney was sufficient and that it complied with the requirements of section 4 of the Administrative Review Act. Accordingly, the court dismissed the appeal as untimely.

• 1 While the specific focus has been upon which person received the decision, the essential question raised on appeal is whether the service of the copy of the decision, which was made upon Mr. Massoud's attorney of record, complied with the requirements of the applicable statutory provisions. The Local Board argues, and the circuit court agreed, that the governing provision is section 4 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 267), which states that service of a decision shall be deemed received when deposited in the mail, postage prepaid, addressed to the party affected thereby at his last known residence or place of business. This section controls, according to the Local Board, because the School Code itself makes no provision for the method of notice in this case. We disagree, for the School Code does make provision for the method of notice and, therefore, section 4 does not control.

The School Code, in section 24-12 (Ill. Rev. Stat. 1979, ch. 122, par. 24-12), which governs teacher removal and discharge proceedings, requires a hearing before a hearing officer from the State Board of Education. The State Board, in section 24-12, is directed to promulgate uniform standards and rules of procedure for such hearings. Furthermore, the State Board of Education was established by amendments to the School Code in 1973. (Ill. Rev. Stat. 1979, ch. 122, par. 1A-1 et seq.) In section 1A-7 of the Code, the legislature adopts and incorporates the provisions of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1001 et seq.) into the School Code, to apply to administrative rules and procedures of the State Board under the School Code. (Ill. Rev. Stat. 1979, ch. 122, par. 1A-7.) In turn, the Administrative Procedure Act, in pertinent part, requires that a final decision in a contested case be in writing and stated in the record. It also provides:

"Parties or their agents appointed to receive service of process shall be notified either personally or by registered or certified mail of any decision or order." (Ill. Rev. Stat. 1979, ch. 127, par. 1014.)

This provision for personal service of notice or service by certified or registered mail is found repeated in the Rules and Regulations promulgated by the State Board and adopted pursuant to the direction in section 24-12 of the School Code. In its Rules and Regulations, the State Board defines service.

"1.02 `Service' shall mean service of any document by personal service or by certified or registered mail, postage prepaid, to the individual's last known address."

Thus, it can be seen that the governing provision is found in the School Code and the State Board's Rules and Regulations, and not, as argued by the Local Board, in section 4 of the Administrative Review Act.

• 2, 3 In the instant case, notice of the decision has not been shown to have complied with the requirements of the School Code or the Board's Rules and Regulations. Notice was not given by certified or registered mail, but only by first class mail, so far as the record shows. Had notice been given by certified or registered mail, then the date of mailing would be controlling. (See Avdich v. Kleinert (1977), 69 Ill.2d 1, 370 N.E.2d 504; Thompson v. Civil Service Com. (1978), 63 Ill. App.3d 153, 379 N.E.2d 655.) It would have made no difference that the notice of the decision was upon the attorney for Massoud, since the governing provision, section 14 of the Administrative Procedure Act, permits notice to the party or to an agent appointed to receive service. Certainly, an attorney of record before an administrative agency is appointed to receive service for his client, barring an express statement to the contrary in his entry of appearance. In the instant case, however, the requirements of the statute as to the method of mail notification were not strictly followed by the State Board. Given its failure to comply with the specific notice requirements of the statute, we will not presume that notice was received on the date of mailing. To do so would be to fully condone the lack of strict compliance by the State Board. However, we do not conclude that the decision and order is void, based upon the failure to strictly comply with the notice requirements. (See Ill. Rev. Stat. 1977, ch. 127, par. 1014; cf. Glover v. Board of Education (1925), 62 Ill.2d 122, 340 N.E.2d 4.) Here, there was substantial compliance with the requirement of notice, and there is no dispute that notice and a copy of the decision was received by Massoud's attorney within days after the decision was rendered. Under the circumstances, the actual date of the receipt of the notice by Massoud's attorney should control, for purposes of filing the review action. The day of ...


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