Appeal from the Circuit Court of Cook County; the Hon. Arthur
L. Dunne, Judge, presiding.
PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Sandor Szabo, a tenured physical education teacher assigned to the MacArthur Elementary School, was dismissed from his position by the Board of Education of School District 54, Schaumburg, Illinois (Board). The Illinois State Board of Education upheld plaintiff's discharge on the ground that in 1979 and 1980 Szabo misused the school district's sick leave and business leave policies. On administrative review (Ill. Rev. Stat. 1981, ch. 110, par. 264 et seq.), the trial court reversed and ruled that plaintiff's conduct was remediable and that he should not have been discharged. The case was remanded to the Board to impose an alternative penalty.
The Board appeals the trial court's decision that plaintiff's conduct was remediable, that discharge was too harsh a penalty and that the cause should be remanded. Plaintiff alleges in his cross-appeal that he did not misuse leave policies and that the Board need not impose a lesser penalty. For the reasons that follow, we affirm in part and reverse in part.
From 1969 until November 1980, Szabo taught health and physical education at MacArthur Elementary School. During the last two years of his employment his teaching duties were performed between 8:15 a.m. and 3:30 p.m. He also held a part-time job in the late afternoon as a soccer coach at Harper Community College (Harper). Soccer was a varsity sport at Harper with regularly scheduled games against other teams. In addition to his coaching duties, Szabo was responsible for establishing the team's soccer match schedule. He decided which colleges would be placed on the schedule, the times that the games would be played and the bus schedules. Szabo received $1,062 for each season that he coached.
In 1979, Harper College participated in five soccer matches, four of which Szabo allegedly either took a personal business day or sick day to attend. On November 9, the team made the midwest regional playoffs and a game was scheduled. Departure time from the college was 11 a.m. Since November 9 was a Friday, Szabo had to give a reason for seeking personal leave. (No reasons were required for personal leave on Tuesday through Thursday.) On November 6, Szabo submitted a written request for personal business leave for November 9. He stated that he would be absent because he had a court appearance in the morning and a tournament in the afternoon. The assistant superintendent of personnel, Ronald Ruble, and the school principal, Roy Johnson, informed Szabo that one-half day of personal business leave would be allowed for the court hearing but that Szabo would be docked a half day's salary for his attendance at the soccer tournament. For the 1979 school year, Szabo was absent from his teaching duties at the elementary school five times. Each day of absence corresponded to a day that the Harper College team participated in a soccer competition that was not played on its campus.
During the 1980 school year, Szabo was absent seven times. Again, the absences corresponded to the days that the soccer team played an away game. Szabo either called in sick or took these absences as personal business days and as a result, his salary was never docked. The only date for which Szabo had taken time off at a salary deduction was, as previously stated, November 9, 1979.
School principal Roy Johnson reported Szabo's absences to the administrator of personnel relations, Curtis Casey. Casey compared Szabo's absences during 1979 and 1980 with the Harper soccer team schedule and discovered that with the exception of one occasion, Szabo had never been present at the elementary school on an afternoon when Harper played an away game. Casey notified the Board and based on his report, it voted to discharge Szabo. Subsequently a hearing was held before a hearing officer of the State board of education. Although unable to dispute the unfailing correlation of his sick and personal leave days to Harper College's away game schedule, Szabo maintained that he had not abused the school district's leave policy and that on each of the days in question he either had legitimate personal business or had been too ill to teach but not too ill to coach soccer. He denied that he had taken the afternoons off in order to arrive at Harper College earlier than his normal quitting time at the elementary school of 3:15 p.m. would have permitted. Szabo alleged that although he had scheduled the departure times for the games, the team buses never left before 3:30, which is when he said he would have arrived at Harper had he worked a full school day.
The hearing officer did not find Szabo's explanations to be credible and concluded, as had the Board, that Szabo had wilfully abused the school district's personal and sick leave policies in order to avoid pay deductions for time spent coaching soccer. The hearing officer upheld the Board's determination that Szabo's conduct was an irremediable cause for discharge and explained that Szabo's conduct had deprived his students of his services, that he had taken the school district's money under false pretenses and that he had committed a breach of trust which reflected badly on the other faculty members and on the school system. The officer ruled that since Szabo's offense involved cheating and dishonesty, no notice of remediation was required.
Szabo filed a complaint in the circuit court of Cook County alleging that the hearing officer's decision was contrary to the manifest weight of the evidence. The court ruled that although it was apparent that Szabo had lied about the reasons for his absences, his conduct was remediable. The case was remanded to the Board with instructions to impose a penalty other than discharge. This appeal followed. Plaintiff cross-appealed the court's ruling that he misused leave policies and that a lesser penalty should be imposed.
The controlling issue for our consideration is whether sufficient cause for plaintiff's dismissal is shown by the record to be irremediable. The determination of whether causes for dismissal are remediable or irremediable is a question of fact which initially lies within the discretion of the Board. A reviewing court will not interfere with the Board's decision unless the Board has acted in an arbitrary or capricious manner or the reasons formulated for the dismissal were against the manifest weight of the evidence. Gilliland v. Board of Education (1977), 67 Ill.2d 143, 153, 365 N.E.2d 322; Lowe v. Board of Education (1979), 76 Ill. App.3d 348, 355-56, 395 N.E.2d 59.
We note at the outset that in order to encourage teachers to work within the educational system and to assure teachers of experience and ability that rehiring will be based upon merit rather than upon reasons that are political, partisan or capricious, the School Code provides that a tenured teacher may only be discharged for cause. (Ill. Rev. Stat. 1981, ch. 122, par. 24-12; Morris v. Board of Education (1981), 96 Ill. App.3d 405, 410-11, 421 N.E.2d 387.) In furtherance of the goal of protecting tenured teachers, the School Code provides that:
"Before setting a hearing on charges stemming from causes that are considered remedial, a board must give the teacher reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 122, par. 24-12.
If charges against a teacher are remediable but the teacher is not given proper notice in writing, the failure to provide the warnings required by the School Code deprives the Board of jurisdiction. Aulwurm v. Board of ...