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09/01/87 the Board of Trustees of v. Ronald Mckinley Et Al.

September 1, 1987





513 N.E.2d 951, 160 Ill. App. 3d 916, 112 Ill. Dec. 342 1987.IL.1272

Appeal from the Circuit Court of Cook County; the Hon. David J. Shields, Judge, presiding.


JUSTICE HARTMAN delivered the opinion of the court. STAMOS and FREEMAN, JJ., concur.


Plaintiff, board of trustees of Community College District 508 (board), appeals from circuit court orders on administrative review which affirmed a hearing officer's reversal of a board employee discharge ruling. The issues presented in this appeal include whether: (1) the hearing officer's ruling was a final administrative decision subject to administrative review; (2) the board satisfied due process pretermination hearing requirements; (3) the hearing officer's decision reversing the board was against the manifest weight of the evidence; and (4) the discharged, tenured employee was entitled to back pay.

Defendant Ronald McKinley was employed by the board as a tenured full-time radiology instructor at Malcolm X. College from March 30, 1973, to December 23, 1981. His employment application and his annual employment contracts with the board prohibited his accepting or continuing any "current full-time [employment] position or positions equal to a full-time position" while he remained a full-time teacher. Full-time employment by the board for a professor under board rules was limited to 30 hours per week. The collective bargaining agreement between the board and the teachers' union contained a similar provision. No definitions were set forth in either document of what was meant by "concurrent full-time position," or whether the same 30-hour rule was intended to be applied to the hours spent in outside employment or whether the judgment of whether the outside employment was full- or part-time should be made by the outside employer. The only explanation of what was meant by part-time employment was an unofficial newspaper column authored by the then chancellor of District 508, appearing in the Chicago Tribune of September 10, 1978, which stated that: "Outside employment is another 'right' that full-time faculty have won -- up to 99 per cent of a full-time outside job."

Evidence later presented to a hearing officer revealed the facts which follow. Subsequent to his employment by the board, McKinley began working in the radiology department at Norwegian-American Hospital (hospital) on December 16, 1977. Whether his hospital employment was for full-time or part-time employment was the subject of conflicting evidence. Between December 1977 and August 31, 1981, McKinley worked an average of 37.13 hours per week at the hospital. There was substantial evidence supporting his belief that he was actually a part-time employee: hospital employment guidelines defined full-time employment there as 75 or more hours per two-week pay period; his application for hospital employment specified that he was to work 72 hours per two-week pay period and his supervisor testified that he was expected to work only 70 to 72 hours per two-week pay period; the head of the radiology department, his supervisor, stated that McKinley had been hired as a part-time employee specifically due to his teaching responsibilities; McKinley had replaced a previous part-time employee; and McKinley had received full-time benefits merely as an employment inducement because he was a high caliber employee. McKinley also worked about 1 1/2 hours per week as a vocalist at a funeral home after 1976: two or three selections per service lasting five to seven minutes each, as needed.

Evidence which conflicted with, or contradicted, that set forth in the preceding paragraph was also introduced and considered by the hearing officer.

Board policies prohibiting full-time outside employment required employees to complete outside employment disclosure statements beginning in October 1978. McKinley filed disclosure statements on October 18, 1978, March 9, 1979, October 16, 1980, February 17, 1981, and August 20, 1981. He disclosed his employment by the funeral home on each of the statements, but disclosed his employment at the hospital only on the last statement, August 20, 1981, revealing employment of 16 to 20 hours per week. On August 31, 1981, McKinley voluntarily reduced his work period at the hospital to 20 hours per week.

In October 1981, plaintiff's director of labor relations (director) noted McKinley's part-time employment and contacted the hospital for verification. McKinley requested that the hospital disclose only his then part-time employment; nevertheless, the hospital disclosed McKinley's entire employment record, first identifying it as full-time prior to August 31, 1981, but later changing the characterization to part-time.

Thereafter, the director recommended to the chancellor of District 508 that McKinley be discharged. The chancellor notified McKinley by letter on October 22, 1981, of his intention to recommend his discharge to the board by reason of McKinley's violation of his employment contracts in working full-time for the hospital. The letter also stated that McKinley could meet with the director and discuss the charge prior to the chancellor's recommendation being made to the board.

McKinley met with the director on October 23, 1981, and attempted to persuade him that his employment by the hospital had been merely part time. The director thereafter reasserted his discharge recommendation to the chancellor, basing it on both McKinley's outside employment and on his false disclosure statements. The chancellor thereafter recommended McKinley's discharge to the board.

On November 3, 1981, the board adopted a resolution discharging McKinley, of which it notified him on November 4, 1981. McKinley requested and received a bill of particulars from the board which specified that his "holding of positions equal to a full-time position with Norwegian-American Hospital and Griffin Funeral Home constitutes a direct violation of a specific condition of employment [and] . . . constitutes cause for . . . dismissal" and "false and intentional misrepresentations of . . . outside employment . . . constitutes cause for . . . ...

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