Appeal from the Circuit Court of Lake County; the Hon. William
C. Block, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 30, 1986.
Plaintiff, Russell Combs, brings this appeal from a judgment of the circuit court of Lake County upholding his discharge from his position as a tenured public school teacher. Section 24-12 of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 24-12) provides for a hearing before an independent hearing officer when the employing school board seeks the dismissal or removal of a tenured teacher. The hearing officer in Mr. Combs' case found discharge to be warranted by the evidence, and, on administrative review, the circuit court upheld his decision.
Plaintiff's arguments on appeal can be summarized as follows: (1) that his due process rights were violated because (a) section 24-12 unconstitutionally permits prehearing suspension without pay, and (b) the procedural protections outlined in section 24-12 were not followed, resulting in his prehearing termination; (2) that his dismissal is void for lack of jurisdiction because the procedures required by section 24-12 and by the rules of the Illinois State Board of Education were not followed; and (3) the hearing officer's decision was against the manifest weight of the evidence.
Plaintiff was a teacher at Avon Center School (District No. 47, Lake County) for approximately 10 years. He was formally notified on May 17, 1982, by the Avon Center school board (school board) that his performance was unsatisfactory and that if specific deficiencies, including failure to maintain discipline and to properly supervise students, were not remedied, they would result in charges and dismissal. During the school year 1982-83, Mr. Combs' class was formally observed by the school's principal, superintendent, and an independent consultant, and a number of meetings were held between the teacher and the administration. It is undisputed that Mr. Combs' class was unruly. The administration attributes the problem to plaintiff's inability to properly handle his students, while plaintiff attributes it to four particularly disruptive students (three of whom were known to have learning disabilities), and the administration's lack of support or cooperation.
On June 7, 1983, the Avon Center board approved and served on plaintiff a formal notice of charges and dismissal and a bill of particulars. The notice stated, "You are hereby notified that you are dismissed as a teacher in Avon Center School District 47" and informed plaintiff that a hearing would be held on the charges.
Plaintiff made no request to forgo a hearing, and the Illinois State Board of Education (ISBE) provided a list of five prospective hearing officers as required by statute (Ill. Rev. Stat. 1983, ch. 122, par. 24-12). By letter dated July 5, 1983, plaintiff refused to participate in the selection process, claiming that because he had already been dismissed by the school board, the procedures mandated by section 24-12 had not been followed, and participation would act as a waiver of the due process rights section 24-12 was intended to protect. However, after being informed that the ISBE intended to proceed with the selection by appointing an officer of the school board's choice, and that the ISBE considered Combs to be an employee of the school board until the hearing officer's decision, plaintiff agreed to participate in the process. The selection was then completed and a hearing officer was appointed on August 5, 1983.
After a delay caused primarily by plaintiff's filing a motion to dismiss with the hearing officer, which was denied, the hearing was held over nine sessions from December 9, 1983, through February 7, 1984. The hearing officer received the final transcript on March 8, 1984, but did not render his decision finding that dismissal was warranted until July 5, 1984.
Plaintiff claims that his due process rights were violated by the procedure used to discharge him. The notice of charges and dismissal served on plaintiff on June 7, 1983, purported to dismiss him immediately, but also notified him that the school board would schedule a hearing on the charges. Additionally, section 24-12 of the School Code provides that unless a teacher elects otherwise a final decision is to be rendered by an impartial hearing officer. *fn1 Section 24-12 provides, in pertinent part, as follows:
"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. * * * The hearing officer shall hold a hearing and render a final decision. * * * If in the opinion of the board the interests of the school require it, the board may suspend the teacher pending the hearing, but if acquitted the teacher shall not suffer the loss of any salary by reason of the suspension." (Ill. Rev. Stat. 1983, ch. 122, par. 24-12.)
The apparent inconsistency has led to considerable confusion as to plaintiff's status pending the hearing.
Plaintiff claims that the notice effectively terminated him prior to a hearing in violation of both the statute and his constitutional due process rights. The school board also initially considered the notice to be an immediate dismissal, as evidenced by correspondence between the board and the ISBE. However, it apparently reconsidered its position because, in August 1983, it suspended plaintiff without pay pending the hearing. The ISBE has consistently taken the position that plaintiff remained a school board employee until the hearing officer rendered a decision.
Plaintiff contends that if the notice was an immediate termination it did not meet the due process requirements set out by the United States Supreme Court in Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 84 L.Ed.2d 494, 105 S.Ct. 1487.
In Loudermill, the court reviewed the terminations, prior to a hearing, of two Ohio public employees. Ohio law provided that they could be dismissed only for cause, thus creating a property right, and entitled them to a full post-termination hearing. (470 U.S. 532, 538, 84 L.Ed.2d 494, 501, 105 S.Ct. 1487, 1491.) The court, balancing the interests of the employee in retaining his employment against the employer's interest in expediency, concluded that ...