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08/19/87 the Board of Education of v. the State Board of

August 19, 1987

THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, PLAINTIFF-APPELLANT

v.

THE STATE BOARD OF EDUCATION ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

513 N.E.2d 845, 160 Ill. App. 3d 769, 112 Ill. Dec. 236 1987.IL.1202

Appeal from the Circuit Court of Cook County; the Hon. Charles E. Freeman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McNAMARA delivered the opinion of the court. RIZZI and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff, board of education of the city of Chicago, discharged defendant, Catherine Parkman, from her position as a tenured school nurse for allowing students to receive inoculations without parental consent, conduct which plaintiff found to be irremediable. Defendant Illinois State Board of Education appointed a hearing officer, who found the conduct was remediable, reversed the discharge and directed plaintiff to reinstate Parkman with full back pay. On administrative review, the trial court confirmed the State Board decision. Plaintiff appeals, contending that the decision is contrary to law and against the manifest weight of the evidence.

Parkman began working for plaintiff as a school nurse in 1975 and achieved tenured status in 1979. On May 18, 1983, she was coordinating an inoculation program at a federally funded pre-school, the Farren Child-Parent Center in Chicago, in cooperation with the Illinois Department of Public Health. On that day, 43 four- and five-year-old children were inoculated. Forty of the consent forms were signed by Parkman in the parents' names and initialed by Parkman. After several parents complained that their children had been inoculated without their permission and a preliminary investigation was made, plaintiff relieved Parkman of her assignment to any child-parent preschool centers and reassigned her to office duties. Seven months later, in January 1984, plaintiff adopted a resolution suspending Parkman immediately, without pay, pending a hearing. Plaintiff referred the matter to the State Board for the appointment of a hearing officer. The charge for dismissal stated that Parkman was guilty of "conduct unbecoming a school nurse," that Parkman had "allowed students to receive inoculations without the written signature of the parents of the students," and that plaintiff found the conduct to be irremediable.

At Parkman's request, plaintiff filed a bill of particulars detailing seven alleged acts of misconduct upon which plaintiff based its charge for dismissal: (1) Parkman signed numerous requests for the inoculation of minor children without written authorization of the parents of those children; (2) Parkman signed numerous requests for inoculations of minor children without the written or oral authorization of the parents of those children; (3) Parkman falsely stated that Dr. Oliver Crawford had approved inoculations for Seena Paul; (4) Parkman erroneously stated to Olestine Jude that, if Olestine's child did not receive inoculations, the child would be excluded from school; (5) Parkman acted contrary to State of Illinois Department of Public Health Guidelines of Immunization and the Procedures promulgated by plaintiff by her actions as described in paragraphs 1 and 2; (6) Parkman submitted numerous authorizations stating incorrect addresses of students; and (7) Parkman failed to give the children who received shots the parent notification form to take home.

On December 6, 1985, the hearing officer issued a decision which found that charge 1 was substantiated by plaintiff only as to three children, Tiffany Hall, Seena Paul, and Thomas Tweedle. As to the other 37 children, plaintiff failed to prove that in signing the original consent forms Parkman acted without written or oral authorization of the parents. Charge 5 was proved only to the extent that Parkman failed to notify her section coordinator, Harryetta Matthews, that the inoculation program was scheduled, and was held on May 18, 1983. Charge 6 was proved to the extent that Parkman recorded the approximate address of the school rather than home addresses; however, the act was only a technical violation of an implied requirement and had no harmful consequences. All other charges and allegations were dismissed either because they overlapped with other charges or were not substantiated by plaintiff. The hearing officer then found that the substantiated charges involved remediable conduct, thus requiring plaintiff to issue the statutory warning to Parkman. Because plaintiff had not issued such a notice, it was without jurisdiction to suspend her. The hearing officer ordered Parkman's reinstatement within 10 days and full back pay and benefits from January 26, 1984, the date of her suspension.

On August 19, 1986, the trial court found that the decision of the State Board finding Parkman's conduct to be remediable and reinstating her was not contrary to law and not against the manifest weight of the evidence. This court subsequently entered a stay of the trial court order awarding back pay, but denied plaintiff's request for a stay of the trial court order directing reinstatement of Parkman.

The findings and Conclusions of an administrative agency on questions of fact are deemed to be prima facie true and correct. (Ill. Rev. Stat. 1985, ch. 110, par. 3-110.) Those findings of fact will not be disturbed unless they are contrary to the manifest weight of the evidence. (Last v. Board of Education (1962), 37 Ill. App. 2d 159, 185 N.E.2d 282.) Findings are against the manifest weight of the evidence only if Conclusions opposite to those reached by the agency are clearly evidenced. (Board of Trustees of Community College District No. 501 v. Illinois Community College Board (1976), 43 Ill. App. 3d 956, 357 N.E.2d 1222.) A court of review will not reweigh the evidence or substitute its judgment for that of the hearing officer where substantial evidence supports the hearing officer's decision. Gilliland v. Board of Education (1977), 67 Ill. 2d 143, 365 N.E.2d 322.

Under section 34-85 of the School Code, no tenured teacher shall be removed except for cause. (Ill. Rev. Stat. 1985, ch. 122, par. 34-85.) Written warnings must be given to a tenured teacher before dismissal if the causes assigned for dismissal are considered remediable. (Ill. Rev. Stat. 1985, ch. 122, par. 34-85.) Where no warning is given, the board's evidence must prove that the teacher's conduct is irremediable. When the board fails to meet its evidentiary burden of proving that the teacher's conduct is irremediable, and when no warning has been given, the board is deprived of jurisdiction to terminate the teacher. McBroom v. Board of Education (1986), 144 Ill. App. 3d 463, 494 N.E.2d 1191; Chicago Board of Education v. Payne (1981), 102 Ill. App. 3d 741, 430 N.E.2d 310.

The hearing officer correctly found that irremediability is the primary issue of fact in this case. Plaintiff initially contends, however, that the hearing officer's decision is based on erroneous findings of fact. Before addressing the irremediability issue, therefore, we review the preliminary findings of fact made by the hearing officer.

In a written decision, the hearing officer presented a thorough and well-reasoned analysis of the lengthy testimony as it related to the issue of whether plaintiff had proved each of the seven charges against Parkman. We hold that the hearing officer's findings received substantial support from the evidence.

As to the first and primary charge regarding failure to obtain written parental permission, Parkman admits she signed the 40 consent forms after receiving either verbal parental consent over the telephone or written parental consent on a list she had circulated. The hearing officer found "massive evidence" that Parkman obtained consent "in an ...


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