APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
532 N.E.2d 927, 177 Ill. App. 3d 806, 127 Ill. Dec. 98 1988.IL.1897
Appeal from the Circuit Court of Rock Island County; the Hon. David DeDoncker, Judge, presiding.
JUSTICE SCOTT delivered the opinion of the court. STOUDER, P.J., concurs. JUSTICE HEIPLE, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT
On August 6, 1987, plaintiff, James Duncan, filed a petition for writ of mandamus and complaint for declaratory judgment against defendant, Board of Education of United Township High School District No. 30, in the circuit court of Rock Island County, Illinois. Defendant, the Board of Education of United Township High School, filed a motion to dismiss portions of the complaint and prayer for relief and, in the alternative, a motion for summary judgment. Plaintiff then filed an opposition to the motion together with supporting affidavits and exhibits. On January 13, 1988, after a hearing on the motions, the trial court granted defendant's alternative request for summary judgment by order dated January 13, 1988. Plaintiff appeals from the January 13 order.
Plaintiff, a certified teacher, has been continually employed as a teacher by defendant since the 1964-65 school year. Also, from 1964 through 1987, plaintiff was the director of the driver's education program during the regular school term and coordinator of the summer driver's education program. Plaintiff was paid an additional one-ninth of his salary to head the summer driver's education program and stated by affidavit that he performed the following duties:
"Finding teachers to teach drivers education during the summer school; assigning teachers according to a seniority list of those who had previously taught drivers education during the regular school term and summer school; assigning students to various instructors during summer school; filling out various and sundry records showing that students had taken and/or completed behind-the-wheel drivers education courses and submitting said records to the State of Illinois; and notifying students when certificates showing completion of drivers education programs had been received from the State of Illinois."
Defendant, through the affidavit of the current superintendent, disagreed somewhat with plaintiff's affidavit by indicating that plaintiff "assigned students and faculty to the program, evaluated faculty and effectively recommended faculty for employment or termination." Attached to the superintendent's affidavit were five memoranda prepared by plaintiff in the course of his duties as director of the summer program. These memos, of various dates in April, May and June of 1987, illustrate the administrative nature of plaintiff's position, basically discussing plaintiff's authority regarding the staffing of summer driver's education teachers.
On May 8, 1987, less than 60 days prior to the end of the 1986-87 school term, plaintiff received notice from defendant that his contract for coordinating the summer driver's education program would not be renewed for the 1987-88 school term and that his contract and salary would be reduced from 10 months to 9 months. It is undisputed that plaintiff's summer coordinator duties were transferred to another summer administrator with less seniority than plaintiff but at no additional pay.
The procedural issue before this court is whether the trial court erred in granting defendant's alternative request for summary judgment. In deciding this issue, the following substantive issues are presented for review: (1) whether plaintiff's duties as summer coordinator of the driver's education program were administrative in nature; (2) if plaintiff's duties as summer coordinator were administrative in nature, whether his summer administrative position was nonetheless encompassed within the protections afforded a teacher under section 24-12 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24-12); and (3) whether plaintiff is precluded from arguing whether administrative positions are covered by section 24-12 of the School Code on appeal because he failed to make that argument at the trial level.
Section 24 -- 12 of the School Code provides in relevant part:
"Sec. 24-12. Removal or dismissal of teachers in contractual continued service. If a teacher in contractual continued service is removed or dismissed as a result of a decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, written notice shall be given the teacher by certified mail return receipt requested at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reasons therefor, and in all such cases the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before removing or dismissing any teacher who has entered upon contractual continued service and who is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service. As between teachers who have entered upon contractual continued service, the teacher or teachers with the shorter length of continuing service with the district shall be dismissed first unless an alternative method of determining the sequence of dismissal is established in a collective bargaining agreement or contract between the board and a professional faculty members' organization and except that this provision shall not impair the operation of any affirmative action program in the district, regardless of whether it exists by operation of law or is conducted on a voluntary basis by the board." Ill. Rev. Stat. 1987, ch. 122, par. 24-12.
It is clear from the pleadings, affidavits and arguments of counsel that plaintiff's duties are administrative in nature, and we therefore agree with the trial court's finding in this regard. It is equally clear that defendant failed to give adequate notice under section 24-12 of the School Code since plaintiff is a teacher under contractual continued service as defined by section 24-11 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24-11). The ...