Appeal from the Circuit Court of St. Clair County; the Hon.
Stephen Kernan, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 18, 1984.
This appeal and cross-appeal concern section 24-12 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24-12), relating to the removal or dismissal of teachers in contractual continued service. The controversy focuses on the requirement of section 24-12 that the State Board provide, within 10 days after receiving notice of hearing, a list of five prospective, impartial hearing officers. Section 24-12 provides in pertinent part:
"If a dismissal or removal is sought for * * * cause * * *, the board must first approve a motion containing specific charges by a majority vote of all its members. Unless the teacher within 20 days requests in writing of the board that no hearing be scheduled, the board shall schedule a hearing on those charges before a disinterested hearing officer on a date no less than 30 nor more than 60 days after the enactment of the motion. Written notice of such charges shall be served upon the teacher at least 21 days before the hearing date. Such notice shall contain a bill of particulars. The secretary of the school board shall forward a copy of the notice to the State Board of Education. Within 10 days after receiving this notice of hearing, the State Board of Education shall provide a list of 5 prospective, impartial hearing officers. Each person on the list must be accredited by a national arbitration organization. No one on the list may be a resident of the school district. The Board and the teacher or their legal representatives within 5 days shall alternately strike one name from the list until only one name remains. The teacher shall have the right to proceed first with the striking. * * * The hearing officer shall hold a hearing and render a final decision." Ill. Rev. Stat. 1979, ch. 122, par. 24-12.
The plaintiff, Hattie Watts, a tenured teacher, was advised in a letter dated July 17, 1979, of the motion of the defendant, the Board of Education of School District 189, that she be dismissed for cause. The defendant scheduled a hearing on September 6, 1979, at 10 a.m. The plaintiff received the notice of hearing and bill of particulars on August 14, 1979. A copy of the notice of hearing reached the offices of the Illinois State Board of Education (hereafter referred to as State Board) on August 13, 1979, but the copy of the notice was lost at those offices. On September 4, 1979, the defendant sent a duplicate of the notice to the State Board and notified the plaintiff and the State Board that the hearing had been rescheduled on September 14, 1979, at 10 a.m. On or about September 5, 1979, the State Board sent a list of five prospective hearing officers. Counsel for defendant received the list on September 7, 1979, and counsel for plaintiff received the list on September 11, 1979. The following day counsel for plaintiff and defendant met to select a hearing officer for the hearing from the list of names submitted. At that time, apparently, counsel for plaintiff determined that one of the five prospective hearing officers on the list was deceased. Although the following fact is not included in the parties' stipulation of facts, it is undisputed that counsel for defendant agreed to strike, as one of defendant's two "strikes," the name of the deceased prospective hearing officer listed. According to the stipulation of facts, "plaintiff's attorney declined to proceed with the selection until five available arbitrators were provided." On September 17, 1979, counsel for defendant received from the State Board the name of a substitute, and on September 18, 1979, counsel for plaintiff received the name of the substitute. By letter dated September 17, 1979, the defendant advised the plaintiff that it was ready to proceed with the selection of the hearing officer, achieved by the striking of four names on the list of five. However, plaintiff declined to proceed with the selection of the hearing officer and on September 21, 1979, in the circuit court of St. Clair County filed a petition for a writ of mandamus against defendant ordering reinstatement, back pay, and withdrawal of the "Notice of Charges and Dismissal dated July 17, 1979 and to be further barred from action on that Notice." In the petition for writ of mandamus the plaintiff sought also attorney fees and costs and entry of "such other Orders and [granting of] such relief as justice may require." Defendant subsequently filed a third-party complaint against the State Board.
Plaintiff moved for summary judgment. In an order filed March 9, 1981, the trial court denied the motion, finding "that plaintiff was not deprived of a substantial right or prejudiced by acts or omissions of either defendant." Thereafter, by letter dated June 26, 1981, a copy of which is included as Exhibit O of the stipulation of facts, the plaintiff, through her attorney, asked that she be "given a hearing on the Notice of Dismissal previously filed by District 189." By letter dated June 29, 1981, the defendant advised the plaintiff that it would consider her request at its meeting of July 20, 1981. In a letter dated July 9, 1981, included as Exhibit Q in the stipulation of facts, counsel for the State Board responded to a letter of plaintiff's counsel dated June 26, 1981, in which counsel for plaintiff had requested "that the State Board of Education submit five prospective arbitrators `as required by the Illinois School Code.'" Counsel for the State Board expressed the view that the State Board's obligation to provide a list of five prospective hearing officers does not arise until the secretary of a local school board forwards to the State Board written notice of a charge against a particular teacher. Counsel for the State Board was of the opinion that the State Board was not authorized by statute to act as plaintiff had requested. In a letter dated August 11, 1981, counsel for defendant notified counsel for plaintiff that the defendant had voted to deny the hearing plaintiff had requested.
In August of 1981 the motions for summary judgment of the defendant and third-party defendant were denied by the trial court. In October of 1981, with leave of court, the plaintiff filed an amended complaint for a writ of mandamus, in the first count of which the plaintiff sought what she had sought initially, that is, reinstatement, back pay, withdrawal of the notice of charges and dismissal dated July 17, 1979, with the defendant to be "further barred from action on that Notice," attorney fees and costs, and entry of "such other Orders and [granting of] such relief as justice may require." In the second count of the amended complaint for a writ of mandamus, the plaintiff sought an order,
"in the alternative to its prayer for recovery in Count I, as follows:
a) Compelling defendant to direct its Secretary to request the State Board of Education of Illinois to submit the names of five (5) potential arbitrators as required in the Illinois Revised Statutes;
b) To proceed with the scheduling of a hearing on the Notice of Dismissal prepared and forwarded by defendant."
Following a hearing at which no evidence was taken, the parties having stipulated to the facts, in an order filed December 18, 1982, the trial court entered judgment in favor of the defendant and against the plaintiff as to count I except subparagraph (e) thereof, that is, the prayer for the court "[t]o enter such other Orders and grant such relief as justice may require." The trial court found and ordered as follows:
"iii) That there are conclusions in the stipulation herein that evidence which would have been produced at a September, 1979 hearing is now stale. However, there is no evidence in the stipulation that any evidence which would have been produced in 1979 is no longer available due to the passage of time, lapse of memory, or otherwise.
It is therefore ordered that School District 189 contact the State Board of Education immediately to determine whether or not the list of five arbitrators ultimately tendered in September of 1979 is still up to date and useable. If such is the case, then the parties herein are to complete the striking of names on such list within ten days of the date of this order. If the State Board advises that the list is not useable, then the State Board shall supply the parties with a new list within ten days of this date, and the parties thereafter to complete the striking of names within ten days of receipt of the new list.
The hearing officer so selected shall set a hearing date as soon as possible, but in no case later than ...