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Kenny v. Interim General Superintendent

OPINION FILED JANUARY 4, 1983.

PATRICK J. KENNY ET AL., PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,

v.

INTERIM GENERAL SUPERINTENDENT OF SCHOOLS ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Reginald J. Holzer, Judge, presiding.

PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 22, 1983.

We are asked to decide whether the Chicago Board of Education (Board) made illegal expenditures of public school funds and employed persons without proper certificates. A taxpayers' suit was instituted by 14 employees of the Board who hold valid supervisory certificates issued by the Board. Eight of these individuals are residents and taxpayers of the city of Chicago. The union which represents plaintiffs, the Chicago Principals Association, is also a plaintiff in the action. Defendants are the Board, the interim superintendent of schools and the individual members of the Board.

The portion of plaintiffs' complaint involved in this appeal *fn1 contained four counts based on the Board's alleged violations of section 21-1 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 21-1), and section 4-20 of the rules of the Board. Section 21-1 of the School Code provides in part:

"No one may teach or supervise in the public schools nor receive for teaching or supervising any part of any public school fund, who does not hold a certificate of qualification granted by the Superintendent of Public Instruction or by the State Teacher Certification Board and a regional superintendent of schools as hereinafter provided, or by the board of education of a city having a population exceeding 500,000 inhabitants except as provided in Section 10-22.34 or Section 10-22.34b."

Section 4-20 of the Board rules provides:

"Certificate Requisite to Appointment on Teaching Force. No person shall be appointed to any position on the teaching force without the appropriate certificate thereof, nor shall any person be advanced to a higher position for which an examination is provided than that specified in the certificate, without additional examination and proper certificate for such advanced position."

Counts I through IV of plaintiffs' complaint alleged the following violations of section 21-1 of the School Code and section 4-20 of the Board's rules:

Count I — the Board employs persons who do not possess supervisory certificates in both supervisory positions and in administrative positions having supervisory duties.

Count II — the Board employs persons who lack supervisory certificates in the positions of "assistant principals" who actually supervise educational programs and other certified personnel.

Count III — the Board appoints a single principal to supervise more than one school or attendance center, which results in the fact that the actual supervising person is an assistant principal, teacher, or clerk, none of which holds a supervisory certificate.

County IV — the Board improperly dismissed 26 persons, including plaintiffs, from principal or associate principal positions and transferred them to teaching positions, while appointing persons without valid supervisory certificates to fill the vacancies.

Plaintiffs sought to enjoin defendants from these alleged illegal practices, an accounting of all moneys that have been illegally paid from the public school fund, a mandatory injunction requiring the Board to employ only properly certified persons in supervisory positions and other appropriate relief. In count IV, plaintiffs additionally requested an order requiring defendants to employ members of plaintiffs' class in the positions described.

Defendants motioned to strike and dismiss plaintiffs' complaint pursuant to sections 45 and 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 45, 48), now known as the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 2-615, 2-619). On January 16, 1981, the circuit court granted defendants' motion as to counts I through IV, stating that these counts were substantially and substantively identical with ...


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