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March 26, 1996



The Honorable Justice Scariano delivered the opinion of the court: Hartman P.j., and Burke, J., concur.

The opinion of the court was delivered by: Scariano

The Honorable Justice SCARIANO delivered the opinion of the court:

The issue in this case centers on whether the proper procedures were observed in the dismissal of respondent Vashti Smith. Smith, a teacher in the Chicago public schools since 1969, was dismissed near the end of the 1990-91 school year. During that year, Smith's principal, Robert A. Kellberg, observed deficiencies in her teaching performance which resulted, on March 6, 1991, in his serving her with an "E-3" notice, informing her that her performance was unsatisfactory.

Some of the deficiencies listed in the "E-3" notice included: failure to record grades in her gradebook; failure to follow the proper time distribution of scheduled lessons; failure to maintain the bulletin board in her classroom; failure to maintain math cards; failure to follow math curriculum; failure to implement her school's home communication policy; failure to implement emergency plan (provides guidance to substitute teachers); failure to implement report cards; failure to keep accurate attendance cards; and deficient lesson plans.

Kellberg had a conference with Smith, at which he provided her with a remediation plan designed to guide her in her efforts to improve her teaching skills, and told her, "read your contract over very carefully -- we shall follow it with total fidelity"; he also selected Barbara Moore as Smith's consulting teacher for the remediation process. The remediation period, which is required by the Illinois School Code (105 ILCS 5/24A (West 1994)) ("School Code") and the "Teacher Evaluation Plan and Handbook of Procedures" ("Handbook"), began on March 12, 1991.

After Kellberg conducted at least four observations of Smith and had several conferences with her between March 12 and May 2; and after she participated in consultations with Moore, Kellberg recommended her dismissal to the Deputy Superintendent of Schools in a letter dated May 24, 1991. Kellberg testified that her remediation period ended May 21, 1991. On May 23, 1991, Kellberg met with Smith and informed her that her performance was still unsatisfactory, that the remediation period would not be extended, and that he was going to recommend that she be dismissed. He gave her a document which he had prepared on May 21, 1991, and which stated at the top, "YOU HAVE NOT COMPLIED WITH THE FOLLOWING"; and the remediation plan, "almost verbatim", as Kellberg testified, followed.

Although Kellberg prepared this document on May 21, 1991, on May 23, he visited Smith's classroom and filled out a "Classroom Teacher Visitation" form as required by the Handbook, and on June 13, 1991, he revisited Smith's classroom.

Smith protested her dismissal, and a hearing was held before Hearing Officer Lawrence Cohen. At the hearing, Kellberg admitted that the collective bargaining agreement ("CBA") between the teachers' union and the Board requires that "during the remediation period, the teacher under remediation shall receive quarterly evaluations (each 45 days) and ratings from the principal." He further testified that the document entitled "YOU HAVE NOT COMPLIED WITH THE FOLLOWING" served as Smith's required evaluation and rating. Moore testified she told Kellberg she did not think that Smith would be able to improve if she were given an extended remediation period.

After Kellberg and Moore testified, the Board rested its case. Smith then moved for a "directed finding" *fn1 on the ground that the proper visitation forms were not used after the "E-3" was issued, and, more important, for the reason that Smith did not receive an evaluation at the conclusion of the remediation period as required by the Handbook and the School Code. The hearing officer denied the motion, but asked the parties to cover the issue in their post-hearing briefs. Although Smith testified and presented witnesses in her favor, the result we reach in this case makes it unnecessary to go into their testimony.

On October 9, 1992, the hearing officer issued his decision. He found that Smith's dismissal was void because, after Smith was placed on remediation, the Board failed to utilize the "Classroom Teacher Visitation Form" and failed to provide an evaluation at the end of her remediation period:

"Clearly, by not utilizing the Classroom Teacher Visitation Form, even if Kellberg met with Ms. Smith after each visitation, the procedures set forth in the Handbook were not followed. Moreover, and perhaps even more significant, the document given to Ms. Smith at the end of her remediation period did not constitute an evaluation."

The hearing officer based his decision on both the Handbook and the School Code (105 ILCS 5/24A-5). *fn2 At the hearing and in post-hearing briefs, the Board argued that the evaluation issued June 14, satisfied the Handbook and School Code requirements. However, the hearing officer held that the June 14 form did not satisfy the mandated evaluation requirements because it "was tainted by Kellberg's observations on May 23 and June 13, after the end of the remediation period." He further stated that Smith's

"conduct subsequent to May 21, the end of her remediation period, is not relevant. The request for Ms. Smith's termination, adopted by the Board, was predicated solely on her ...

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