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Bd. of Education v. Metskas

AND JUNE 7, 1982.

BOARD OF EDUCATION OF BERWYN SCHOOL DISTRICT NO. 100, COOK COUNTY, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

GEORGE METSKAS ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

1982 and rehearing petitions denied May 10, 1982

Opinion filed March 29, 1982. Opinion modified May 10,

The Board of Education of Berwyn School District No. 100 in Cook County (plaintiff), acting under section 24-1 et seq. of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24-1 et seq.), dismissed George Metskas (defendant) from his position of orchestra teacher. A hearing officer of the State Board of Education ordered reinstatement. On administrative review this order was affirmed. Plaintiff appeals.

The evidence shows defendant was first employed in 1952. His duties pertained largely to the school orchestral program. He received salary increases from time to time as provided in the collective bargaining agreement between plaintiff and the South Berwyn Educational Association. In addition to regular teaching duties, defendant rendered additional services such as his special work with the student orchestra.

Defendant's compensation took into account his extra services in connection with teaching and rehearsals with the members of the school orchestra. For some years defendant received a 15% addition to salary and a 5% addition for participation with the orchestra in an annual competition sponsored by a parents' club in the area. These additions were in the amount of approximately $2,500. However, the contract tendered defendant for the school year 1977-1978 shows a reduction in this additional salary for extra duties to $1,000. This step was unilaterally taken by the plaintiff. Defendant had no knowledge thereof until he received the contract.

It is agreed that the $1,000 addition in the new contract was for concert performances by students and participation in the orchestral contest. Defendant complained verbally to the school superintendent. This touched off a flurry of correspondence between defendant and the superintendent. The details of these letters need not be noted. The correspondence continued until the early part of 1978. Defendant finally refused to participate in the contest for solo members and the entire orchestra which was held on Saturday, February 25, 1978. It may readily be surmised that part of the difficulty reflected in this appeal resulted from a difference of opinion and perhaps in personality between defendant and plaintiff's superintendent of schools.

On December 14, 1977, plaintiff sent defendant a written notice of remediation directing defendant to perform his extra duties or face possible dismissal. This notice summarized the alleged failure and refusal of defendant to perform his duties and insubordination in that defendant failed to provide rehearsals for student participation in solo and orchestral competition and failed and refused to accompany students to the competition.

Defendant was ordered to appear at the solo and orchestra contests held on Saturday, February 25, 1978. He did not comply. Plaintiff dismissed the defendant by formal resolution on February 28, 1978.

The record shows a total of 10 charges specified in the dismissal. There was a considerable degree of duplication in these charges. However, on oral argument counsel agreed that all of the charges generally fall into two categories. First, there is a general charge that defendant was guilty of insubordination. Second, defendant is charged with harassing and intimidating students and parents with whom he came into contact.

• 1 The second type of charge is clearly rebutted by the record. This matter is concerned with various alleged complaints by parents which allegedly demonstrate emotional strain on the parents and on the students. It is clear that the plaintiff did not act on these charges because the record shows the parents communicated with the superintendent of schools regarding these matters on the date defendant was dismissed. This was some 2 1/2 months after the notice of remediation and consequently these allegations were not contained within the notice. We accordingly reject this group of charges as support for plaintiff's position. (Ill. Rev. Stat. 1979, ch. 122, par. 24-12; Grissom v. Board of Education (1979), 75 Ill.2d 314, 332, 388 N.E.2d 398.) It remains to consider the issue of insubordination.

As indicated, the hearing officer and the trial court agree that the dismissal was improper. The findings of fact upon which the administrative body based its reversal of the dismissal are prima facie correct. (Ill. Rev. Stat. 1979, ch. 110, par. 274.) Additionally, the trial court in administrative review is duty bound to sustain the administrative findings unless they are "contrary to the manifest weight of the evidence." (Gilliland v. Board of Education (1977), 67 Ill.2d 143, 153, 365 N.E.2d 322, and authorities there cited.) The fact that a trial court might have drawn a different factual inference does not warrant a conclusion contrary to that reached by the administrative body. Caterpillar Tractor Co. v. Industrial Com. (1980), 81 Ill.2d 416, 421, 410 N.E.2d 850.

The salient facts pertaining to the alleged insubordination are above set forth. However, the able trial judge reviewed the entire record and heard argument of counsel precisely as this court has done. The trial court expressly held that the hearing officer reached the correct decision that the action of defendant "was not insubordination so as to justify dismissal."

In this regard it must also be noted that a good part of the charge of insubordination is based upon the fact that at the height of the salary dispute defendant refused to be present when the solo and orchestra competitions were held. This took place on Saturday, February 25, 1978. As defendant correctly points out, the pertinent statute (Ill. Rev. Stat. 1979, ch. 122, par. 24-2), specifically provides that teachers "shall not be required to teach on Saturdays * * *." A question may be raised as to whether these orchestral activities are actually teaching or are best described as nonteaching duties. (See District 300 Educational Association v. Board of Education (1975), 31 Ill. App.3d 550, 334 N.E.2d 165, appeal denied (1975), 61 Ill.2d 597.) Defendant urges that his ...


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