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12/31/87 Board of Education of v. the Illinois Educational

December 31, 1987





518 N.E.2d 713, 165 Ill. App. 3d 41, 116 Ill. Dec. 91 1987.IL.1986

Petition for review of order of Illinois Educational Labor Relations Board.


JUSTICE KNECHT delivered the opinion of the court. GREEN, P.J., and LUND, J., concur.


We are here asked to construe the following sequence of events:

Two parties during labor contract negotiations disagree on the interpretation of a matter within the ambit of a State administrative agency. They seek that agency's guidance in resolving the controversy. A hearing officer of that agency hands down a recommended decision. The party to which that decision is adverse requests review within the agency structure. A majority of a three-member panel, sitting as the agency's final reviewing body, renders an order effectively reversing the hearing officer's determination, with one member Dissenting. Subsequent to the issuance of that order, but apparently within the time frame allotted for appeal, one of two panel members who voted in the majority acts to recuse himself due to a conflict of interest. The recusal is accepted and the order is vacated. The remaining deadlocked members of the panel then decide to go back and allow the hearing officer's findings to stand as the final order of the agency as the law of that case alone.

The Illinois Educational Labor Relations Board (IELRB or Board), finding itself faced with essentially the same factual scenario in the instant appeal, similarly decided to adopt a hearing officer's previous recommendation in full as the Board's own order. That action is contested now, as are the merits of the findings contained in the recommended decision.

Community Consolidated High School District No. 230 (district), the petitioner, serves students in a 74-square mile block within southwestern Cook County. The district is comprised of three high schools. Amos Alonzo Stagg High School (Stagg), located at the northern end of the district, also houses all of the district's administrative offices. Carl Sandburg High School, situated 5 1/2 miles south of Stagg, encompasses the central portion of the district. Sitting at the southern tip of the district some 24 miles from Stagg is Victor J. Andrew High School. Because the central administration of the district is found at one of the three schools, each individual building operates on a fairly autonomous basis. Each school has its own principal, who acts as the administrative head of his building.

A total of some 660 people are currently employed by the district in various capacities. Five recognized bargaining units negotiate with the district on behalf of a number of these employees. Beginning in 1980, the respondent Classified Personnel Association (Association) has been the officially recognized bargaining representative for some 60 classified clerical employees within the district. The Association and the district that year secured an initial three-year labor agreement, the terms of which included the three principals' individual secretaries within the bargaining unit. In the spring of 1983, the Association affiliated with the Illinois Education Association , which also represents the high school teachers of the district.

During labor negotiations for a successor contract to cover the years 1983 through 1986, the status of the principals' secretaries was a major point of contention. The district sought to remove the secretaries from the bargaining unit. The Association objected. When negotiations reached an impasse, the parties agreed to seek a decision from the newly created IELRB. The question posed was whether the principals' secretaries were

On January 30, 1985, the Association filed a unit clarification petition with the IELRB proposing to include all three secretaries to the individual building principals within the current bargaining unit. Testimony concerning the respective roles of the district principals and their secretaries was heard at a hearing conducted April 25, 1985.

On July 2, 1985, a hearing officer issued a recommended decision granting the unit clarification petition and ordering the secretaries included in union representation. Exceptions to the recommended decision and order were timely filed by the district on July 12, 1985. Upon reviewing the evidence and testimony, the Board on August 20, 1986, by a 2 to 1 margin, dismissed the petition in an opinion and order which essentially reversed the hearing officer's holding. Voting with the majority were IELRB Chairman Gerald E. Berendt and board member Wesley A. Wildman. Member Edna Krueger wrote a Dissent.

Only an October 8, 1986, order of the IELRB appearing in the record indicates what occurred next. The order reflects that on September 27, 1986, member Wildman moved to recuse himself because "he had been a participant in the bargaining table agreement which had led to the stipulation of this case to the Board." Nothing beyond the October 8 order affords any explanation of the circumstances surrounding member Wildman's recusal, or why this fact was never raised until after the full Board had already rendered its decision. Our review of the record similarly fails to indicate any prior objection to Wildman's participation on the Board. The order only states Wildman moved to recuse himself after his previous work on behalf of the district during 1983 contract negotiations was "brought to his attention," a fact "which he had forgotten."

The Board by that same order then accepted Wildman's recusal. Saddled with a tie vote among its two remaining members, the Board concluded its prior decision must be vacated, and left open for briefing the ultimate effect of this action under the circumstances.

After considering the parties' respective arguments, the Board in an order dated December 17, 1986, decided it could neither affirm nor reverse the hearing officer's recommended decision when two remaining members were equally split as to a Disposition. Rather, the Board would allow the hearing officer's decision to stand as the law of the case, although without precedential effect. The decision was deemed the final order of the IELRB for purposes of administrative review only. By further order dated March 10, 1987, the Board reaffirmed its position, stating it "would adopt the Hearing Officer's Recommended Decision as the final order of the agency on the merits of this matter."

The district now seeks administrative review of both orders of the Board. Parenthetically, we note this matter is before us on direct appeal from the IELRB under authority of statute (Ill. Rev. Stat. 1985, ch. 48, par. 1716(a)), and we have consolidated the district's two separate appeals.

Several purported errors in the Board's treatment of this case are raised for our consideration by the district, errors which may be broken down into procedural and substantive concerns. We are first presented with the question of whether, under the facts, the Board's procedural undertakings yielded a proper and final administrative decision amenable to judicial review. Should the answer to this query be in the affirmative, we may then examine the second, substantive issue. There the district assails as contrary to the manifest weight of the evidence the hearing officer's ultimate finding that all three high school principals' secretaries are not "confidential employees" within the meaning of section 2(n) of the Act. Ill. Rev. Stat. 1985, ch. 48, par. 1702(n). I

Initially we surmise a step-by-step analysis of the proceedings before the Board is in order. Only then may we discuss whether the legal effect of these factual underpinnings comports with the result settled upon by the Board.

The fact of board member Wildman's participation as a member of the district's team in the negotiations at issue is unchallenged, even though his participation is not expressly shown beyond the IELRB's October 8, 1986, order. Taking this as a given, we agree Wildman should have been disqualified from rendering a decision in this particular matter.

Our supreme court has firmly established the rule that no person may play a decision-making role in either a judicial or administrative proceeding in which that person arguably has a personal interest. (In re Heirich (1956), 10 Ill. 2d 357, 384, 140 N.E.2d 825, 838, cert. denied sub nom. Erickson v. Bristow (1957), 355 U.S. 805, 2 L. Ed. 2d 49, 78 S. Ct. 222.) "Interest" as referred to in this sense need not be pecuniary; it need only be that "which can be viewed as having a particularly debilitating effect on the impartiality of the decision-maker." International Harvester Co. v. Bowling (1979), 72 Ill. App. 3d 910, 914, 391 N.E.2d 168, 171.

The major point in controversy during negotiations for the 1983 contract -- indeed, the only point on which no accord could be reached without outside assistance from an administrative agency -- is precisely the issue the IELRB was asked to resolve. Wildman's vote with the majority sided with the position he presumably took on behalf of the district during collective-bargaining talks: namely, that the principals' secretaries are confidential employees not susceptible to inclusion in the bargaining unit. Even though there is no evidence Wildman, as decision maker on the Board, acted in anything less than an exemplary manner, the existence of any personal interest in the outcome is sufficient in and of itself to invalidate a Board's decision. (Board of Education of Niles Township High School District No. 219, Cook County v. Regional Board of Trustees of Cook County (1984), 127 Ill. App. 3d 210, 215, 468 N.E.2d 1247, 1250.) Where one member of an administrative body is not completely disinterested, his participation adversely affects the action of the whole. City of Naperville v. Wehrle (1930), 340 Ill. 579, 173 N.E. 165.

Again accepting as true the facts in the uncontroverted order, the remaining members of the IELRB properly accepted Wildman's recusal based upon a conflict of interest. The mere existence of any potentially disqualifying interest on Wildman's behalf tainted with invalidity the Board's September 20, 1986, opinion and order. We conclude the Board was correct when it vacated its previous decision, particularly since recusal left the Board unavoidably deadlocked.

Our Conclusion is not swayed by the district's argument that the Board was without the requisite authority, either by expression of statute or inherently, to vacate its prior ruling on the merits. The district asserts because the only means of contesting a final IELRB order is via judicial review in the appellate court (Ill. Rev. Stat. 1985, ch. 48, par. 1716(a)), and not by rehearing or otherwise modifying its own decision, the Board usurped its statutory grant of power. To the contrary, once the invalidity of the Board's decision was timely discovered and acted upon because of the disqualifying interest of one member, its action was appropriate. By acting accordingly, the Board saved a reviewing court from undertaking the same step.

Likewise, we see no timeliness problem in vacating the Board's opinion. The Act provides for judicial review of any final IELRB order in accordance with the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 48, par. 1716(a)), which further mandates any such appeal must be initiated within 35 days of an adverse decision (Ill. Rev. Stat. 1985, ch. 110, par. 3-103). The only express reference to the recusal procedure contained in the record (the October 8, 1986, order) relates Wildman informed the Board of his conflict on September 17, 1986, and his motion was accepted. The October 8 order, however, was entered beyond the 35-day time limit.

The district postulates that upon the running of the 35-day statutory time limit without a request for review by the Association, the Board's August 20 order became final, and the IELRB lost jurisdiction of the cause. As the Board's October 8 order was also entered more than 35 days after its original decision, the district asserts the Board was without authority to vacate.

Assuming arguendo these premises may be taken as correct statements of the law, and once again taking the uncontested facts expressed in the October 8 order as true, we believe instead Wildman's recusal on September 17 was timely accomplished as within 35 days of the Board's August 20 opinion. The Board was possessed of the authority within 35 days to accept the recusal and then vacate its decision.

The district's attempt in its brief to invoke the common law "rule of necessity" is similarly unavailing. The "rule" authorizes a decision to be made by an official who has the legal duty to make it, despite also having some personal interest or stake in the outcome. (International Harvester Co. v. Bowling (1979), 72 Ill. App. 3d 910, 914, 391 N.E.2d 168, 171; see also People ex rel. Illinois Federation of Teachers v. Lindberg (1975), 60 Ill. 2d 266, 326 N.E.2d 749, cert. denied (1975), 423 U.S. 839, 46 L. Ed. 2d 58, 96 S. Ct. 67.) However, where there is anyone else who can act in place of the interested administrative or judicial officer, the rule of necessity will not be applicable. (Smith v. Department of Registration & Education (1952), 412 Ill. 332, 342, 106 N.E.2d 722, 727.) Thus in Mank v. Board of Fire & Police Commissioners (1972), 7 Ill. App. 3d 478, 288 N.E.2d 49, the court deemed the rule inapplicable where one member of a three-person board could have excused himself from hearing a dispute, and the agency could still proceed with its two remaining members constituting a statutory quorum. There is also commentary to the effect the rule does not operate where the disqualification of one member of a board would leave an even number of ...

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