Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Allen A. Freeman, Judge, presiding.
JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 26, 1986.
The board of education of the city of Chicago sought the dismissal for cause of Robert J. Kimbrough (Kimbrough), a tenured teacher, pursuant to section 34-85 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 34-85). A hearing officer held that the board failed to sustain its original charge against Kimbrough by clear and convincing evidence and thus he was entitled to back pay and benefits from the date of his original suspension to the date an amended charge was filed against him. However, the hearing officer held that the board had sustained its amended charge against Kimbrough and thus he was to be dismissed. The difference between the original and the amended charges is explained below. On judicial review, the circuit court of Cook County held that while the hearing officer had erred in applying the clear and convincing evidence standard of proof rather than the preponderance of the evidence standard of proof, the error was harmless since under either standard the hearing officer's decision as to the specifications of the original charge was not against the manifest weight of the evidence. It also held that the hearing officer had erred in consolidating the original specifications and the additional specifications of the amended charge for hearing. The court thus remanded certain specifications of the amended charge for appointment of a hearing officer and a proceeding thereon as provided in the statute.
The appellate court affirmed the dismissal of the original specifications. The court held that the hearing officer was correct in applying the clear and convincing standard and not the preponderance of the evidence standard. (134 Ill. App.3d 612, 615.) It also concluded that the trial court's determination as to the additional specifications in the amended charge was not final and appealable since it had been remanded for further proceedings and thus did not address questions raised by the board as to those specifications. (134 Ill. App.3d 612, 616.) We granted the board's petition for leave to appeal (94 Ill.2d R. 315).
Kimbrough was employed by the board as a physical education teacher in 1959 and served as a tenured teacher during the period pertinent to this appeal. On September 10, 1979, Mrs. Janie Evans, then president of the P.T.A., went to the office of the principal at the school where Kimbrough taught and told the principal that Kimbrough had offered her son, Anthony Evans, who was a student at that school, $500 to kill the principal and two assistant principals. The next day Anthony Evans told the principal and a youth officer from the Chicago police department that Kimbrough had offered him $500 on several occasions to secure a gun and to "knock off" the principal and the two assistant principals "because they were blocking him from advancing in the system." Kimbrough was arrested on September 12, 1979, and was charged by indictment with three counts of solicitation to commit murder. Significant press coverage surrounded Kimbrough's arrest, and scholastic activities at the school were disrupted by the appearance at the school of reporters from the local television and radio stations and newspapers.
On October 17, 1979, the board adopted a report submitted by the general superintendent of schools charging Kimbrough with conduct unbecoming a teacher. The charge contained two specifications:
"1. Robert J. Kimbrough, on more than one occasion, offered a student * * * money to secure a gun and shoot two assistant principals and the principal * * *.
2. The conduct of Robert J. Kimbrough is deemed irremediable."
Kimbrough was suspended pending hearing on the charge. Subsequently, the parties agreed to postpone the dismissal hearing until Kimbrough's criminal indictment for solicitation was resolved. On December 23, 1980, prior to Kimbrough's trial, he was again arrested and charged by indictment with solicitation to commit another murder. He was alleged to have solicited a former student, Andre Rolland, to kill Anthony Evans (the principal witness in the prior solicitation charge). At Kimbrough's request both indictments were tried together in the circuit court of Cook County in March 1982. He was found not guilty by the court as to all charges.
On June 2, 1982, the hearing officer, Julius Rezler, was appointed to hear the dismissal proceeding. Six hearings were conducted. At the first hearing the board requested and was granted a continuance to review the transcripts of the criminal trial and to consider a request by Kimbrough for reinstatement. Based on information contained in the transcripts, the board, on October 13, 1982, adopted an amended report submitted by the general superintendent of schools. The amended report again charged Kimbrough with conduct unbecoming a teacher, but changed the specifications. The amended specifications read as follows:
"1. Robert J. Kimbrough,
on more than one occasion, offered solicited a student * * * money to secure a gun and shoot two assistant principals and the principal * * *.
2. That on or about July 11, 1979, Robert J. Kimbrough witnessed a sale of cocaine and failed to report said transaction to the proper authorities.
3. That on or about September of 1980, Robert J. Kimbrough did solicit one Andre Roland [sic] to commit a crime.
24. The conduct of Robert J. Kimbrough is deemed irremediable." (The underscored portion was added; the struck-through portion was deleted.)
The hearing officer ruled that the specifications of the original charge and specifications 2 and 3 in the amended charge constituted two separate sets of charges. However, stating that he realized that this ruling would cause considerable delay in resolving Kimbrough's employment status, the hearing officer stated that hearings on the two separate sets of charges would be conducted simultaneously and that evidence with regard to both sets of charges would be accepted. He explained that at the conclusion of the testimony he would consider first the original charge in view of evidence originating before October 17, 1979, the date the original charge was adopted by the board. If he sustained Kimbrough's dismissal on the basis of the original charge, he would not consider the amended charge and specifications. However, if the original charge was not sustained, he would proceed to specifications 2 and 3 in the amended charge. Should they be sustained, Kimbrough's suspension and dismissal would be effective October 13, 1982, the date the board adopted the amended charge.
The evidence as to the specifications of the original charge consisted primarily of the testimony of Anthony Evans, Kimbrough, and Andre Rolland. However, there was also testimony by the principal, one assistant principal, two assistant superintendents of personnel employed by the board, Kimbrough's wife, and two members of the P.T.A. Mrs. Evans did not testify at the dismissal hearings, although she had testified at Kimbrough's criminal trial.
Anthony Evans testified that Kimbrough offered him money in June 1979 to kill the three administrators, that Kimbrough met with him several times over the summer at various locations to discuss arrangements for the murders, and that during June, Kimbrough drove him (Evans) in his car and pointed out the homes of the administrators. He also testified that Kimbrough showed him a gun he could use and later asked him to obtain ...