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BAKALIS v. BOARD OF TRUSTEES OF COMMUNITY COLLEGE

September 13, 1996

MICHAEL J. BAKALIS, Plaintiff,
v.
BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 504, COUNTY OF COOK, STATE OF ILLINOIS (TRITON COLLEGE); MS. JENNI GOLEMBESKI; MR. MARK R. STEPHENS; MR. MERRILL BECKER; MR. JAMES DURKIN, Defendants.



The opinion of the court was delivered by: BUCKLO

 The Board has filed a motion for summary judgment, and the the individual defendants have as well. For the reasons stated below, the Board's motion is denied, and the individual defendants' motion is granted in part and denied in part.

 Background

 The following facts are undisputed. Dr. Bakalis was employed by the Board as President of Triton College from October 25, 1990 until July 7, 1992, two years prior to the completion of his written employment contract. In April, 1992, the Triton College Faculty Association held a special meeting at which they decided to issue a "vote of no confidence" in Dr. Bakalis and to request the Board to begin searching for a new President. At a meeting on May 26, 1992, the Board voted to retain a law firm to determine whether there was cause to terminate Dr. Bakalis' contract. By resolution, dated June 23, 1992, the Board stated that it would seek to terminate Dr. Bakalis for cause pursuant to paragraph 10(B) of his employment contract *fn1" and set forth the procedures that it planned to follow in doing so. On July 7, 1992, the Board held a pre-termination hearing to decide whether it should terminate plaintiff's contract. After the hearing, a majority of the Board voted to terminate the contract. Dr. Bakalis then requested a post-termination hearing. Ms. Golembeski appointed three members of the Board, two of whom had previously voted in favor of dismissing Dr. Bakalis, to conduct the hearing. In the middle of the post-termination hearing, Dr. Bakalis announced through his counsel that he would not further participate in the hearing and was withdrawing from it. The hearing committee held two more sessions at which neither Dr. Bakalis nor his attorney were present. The committee subsequently recommended to the Board that because Dr. Bakalis' request for a post-termination was withdrawn, his termination be considered final. On January 19, 1993, the Board unanimously voted to adopt the hearing committee's recommendation and terminated plaintiff.

 Due Process

 Dr. Bakalis was entitled to due process of law when he was terminated as President of Triton College only if he had a property interest in retaining his position. Defendants argue that Dr. Bakalis neither had such a property interest nor has stated a claim for a procedural due process violation. These issues have, however, already been resolved in favor of Dr. Bakalis. Bakalis v. Board of Trustees of Community College District No. 504, 1993 U.S. Dist. LEXIS 17881, No. 93 C 0483, 1993 WL 528084 (N.D. Ill. Dec. 17, 1993) (" Bakalis I "), aff'd sub nom Bakalis v. Golembeski, 35 F.3d 318 (7th Cir. 1994)(" Bakalis II "). In Bakalis I, 1993 WL 528084 at *3, Judge Holderman held that plaintiff had a property interest in his position and that defendants were not entitled to qualified immunity. Defendants appealed Judge Holderman's holding on qualified immunity. In affirming Judge Holderman' decision, the Seventh Circuit in Bakalis II, 35 F.3d at 323, "evaluated whether the actions taken by the defendants violated Dr. Bakalis' right to due process of law." The Seventh Circuit further held that "a body that has prejudged the outcome [of a hearing] cannot render a decision that comports with due process" and stated that "there is evidence that members of the Board had prejudged Dr. Bakalis' fate prior to the hearing; this prejudgment, if it existed, rendered the hearing violative of due process." Id. at 326. In determining that Dr. Bakalis was entitled to due process of law when defendants terminated his employment as President, the Seventh Circuit necessarily decided that he had a property interest in retaining his position as President and has stated a cause of action for a procedural due process violation.

 Under the law of the case doctrine,

 
once an appellate court either expressly or by necessary implication decides an issue, the decision will be binding upon all subsequent proceedings in the same case. This consistency protects parties "from the expense and vexation attending multiple lawsuits, conserves judicial action, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions."

 Key v. Sullivan, 925 F.2d 1056, 1060 (7th Cir. 1991)(quoting Montana v. United States, 440 U.S. 147, 153-54, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979)). The law of the case doctrine "is based on the salutary and sound public policy that litigation should come to an end." Id. Accordingly, because the Seventh Circuit in Bakalis II necessarily ruled that Dr. Bakalis had a property right in continuing to act as President of Triton College, the law of the case doctrine prevents me from re-examining that ruling. *fn2"

 Similarly, the law of the case doctrine prevents me from re-determining whether plaintiff waived his due process claim by deciding not to participate in the post-termination hearing. The Seventh Circuit in Bakalis II, 35 F.3d at 321, was fully aware of Dr. Bakalis' decision not to take part in that hearing. In spite of Dr. Bakalis' conduct in this regard, the Court found that Dr. Bakalis would prevail on his due process claim if a trier of fact were to credit his evidence showing that members of the Board had prejudged him prior to the pre-termination hearing. Id. at 326. Thus the Seventh Circuit necessarily determined that Dr. Bakalis had a due process claim that he did not waive by deciding not to attend the post-termination hearing. *fn3"

 Defendants argue that the "rule of necessity" bars Dr. Bakalis from pursuing his due process claim because under Illinois law and the employment contract, the Board had the nondelegable duty to hire and fire a President. Defendants maintain that, therefore, even if they were biased, it was their obligation to make the employment determination. Judge Holderman rejected this argument. See Bakalis II, 35 F.3d at 327 n.11. Although the Seventh Circuit in Bakalis II had "no occasion to address this argument on the merits," it instructed:

 
We do not believe that the record before us would support a defense based on the rule of necessity ... . It appears that, under the law of Illinois, an administrative body can invoke the rule of necessity when, as a corporate body, it has a conflict of interest and a nontransferable duty to adjudicate the matter at hand. ... Here, however, each defendant is accused of a personal bias and, until a sufficient number of members of the Board recused themselves, there was no occasion to invoke the rule of necessity. The rule does not become applicable until there are sufficient recusals to render the body without a quorum.

 Id. (emphasis supplied)(citations omitted). Thus the Seventh Circuit held that if Board members were pre-biased, then they were required to excuse themselves from participating in decisions respecting plaintiff so long as a quorum (i.e., a majority of the Board, which is four members) could have been achieved without them. See also Board of Education of Community Consolidated High School District 230 v. Illinois Educational Labor Relations Board, 165 Ill. App. 3d 41, 518 N.E.2d 713, 717-18, 116 Ill. Dec. 91 (4th Dist. 1987)(holding rule of necessity inapplicable where recusal of board member left quorum); Shipp v. Davis, 48 Ill. App. 3d 463, 362 N.E.2d 822, 825, 6 Ill. Dec. 187 (3rd ...


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