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07/31/97 RAY SPEAR v. BOARD EDUCATION NORTH SHORE

July 31, 1997

RAY SPEAR, PLAINTIFF-APPELLANT,
v.
BOARD OF EDUCATION OF NORTH SHORE SCHOOL DISTRICT NO. 112, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 96--L--271. Honorable Terrence J. Brady, Judge, Presiding.

Released for Publication August 29, 1997.

Presiding Justice Geiger delivered the opinion of the court. Inglis and McLAREN, JJ., concur.

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

The plaintiff, Ray Spear, a school custodian formerly employed by Highland Park School District No. 107 (District 107), appeals from the dismissal of his amended complaint alleging breach of contract by the defendant, the Board of Education of North Shore School District No. 112 (District 112 or new district). We affirm.

According to the pleadings, District 112, an elementary school district, was newly created as a combined school district after three former districts, including District 107, were legally dissolved pursuant to a voter referendum in the spring of 1992 held in accordance with article 11B of the School Code (Code). See 105 ILCS 5/11B--1 et seq. (West 1992). The plaintiff averred that District 112 breached an implied contract of employment when it did not employ him during the 1993-94 school year. He asserted that the defendant's duty to hire him arose from the failure of dissolved District 107 to issue a notice of nonrenewal and honorable dismissal 60 days prior to the end of the 1992-93 school year as required by section 10--23.5 of the Code (105 ILCS 5/10--23.5 (West 1992)). That section contains certain provisions regarding the employment and dismissal of educational support personnel, such as custodians. The circuit court granted the defendant's motion to dismiss the amended complaint with prejudice, and this timely appeal followed.

On appeal, the plaintiff contends that the trial court's decision to dismiss the amended complaint was erroneous. He argues that (1) he had an implied contract of employment with District 112 by virtue of his prior employment at District 107 and because of the failure to receive the statutory notice of dismissal or nonrenewal; (2) the newly created District 112 thereafter assumed a contractual obligation to employ him as a matter of law; and (3) he is entitled to reinstatement, contract damages, and consequential damages.

The defendant refutes the plaintiff's claims and, in addition, argues that the cause of action is time-barred by the one-year statute of limitations found in section 8--101 of the Local Government and Governmental Employees Tort Immunity Act (Immunity Act) (745 ILCS 10/8--101 (West 1994)). Our consideration of the relevant School Code provisions and the applicable law persuades us that the plaintiff does not have a cause of action against the defendant premised on a theory of an implied contract of continued employment.

Plaintiff's first contention is that the failure of District 107 to give him a 60-day notice of dismissal created an implied contract of employment for the 1993-94 school year with the newly formed "successor" district. Section 10--23.5 of the Code provides in pertinent part:

"If an educational support personnel employee is removed or dismissed as a result of a decision of the school board to decrease the number of educational support personnel employees by the board or to discontinue some particular type of educational support service, written notice shall be given the employee by certified mail *** at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reason therefor." (Emphasis added.) 105 ILCS 5/10--23.5 (West 1992).

The construction and interpretation of a statute is a question of law for the court, and, regardless of the court's opinion of the desirability of the results surrounding the operation of the statute, the court must interpret the statute as it is and may not, under the guise of construction, supply omissions, remedy defects, annex new provisions, substitute different provisions, add exceptions, limitations, or conditions, or otherwise change the law so as to depart from the plain meaning of the statute. Buckellew v. Board of Education of Georgetown-Ridge Farm Community Unit School District No. 4, 215 Ill. App. 3d 506, 511, 159 Ill. Dec. 58, 575 N.E.2d 556 (1991).

First, we observe that the plain language of the statute shows that this type of notice is required when an existing school board makes a decision to reduce the number of educational support personnel. There is no evidence in the record that the board of District 107 made a decision to reduce the number of employees. The statute is silent regarding the duty of a school district to provide the notice when it is dissolved by the voters and a new combined district is formed. Thus, this provision does not appear to create a duty to notify which would be transferred to the new district.

In arguing that he has an implied contract of continued employment because of the failure to receive the 60-day notice, the plaintiff relies on cases where the courts found a similar notice for teachers to be a mandatory prerequisite to their removal or dismissal (105 ILCS 5/24--12 (West 1992)). They were cases where an existing school district sought to reduce the number of, or to dismiss, teachers subject to the Code's tenure provisions. See, e.g., Koerner v. Joppa Community High School, District No. 21, 143 Ill. App. 3d 162, 97 Ill. Dec. 358, 492 N.E.2d 1017 (1986); Hagopian v. Board of Education of Tampico Community Unit School District No. 4, 56 Ill. App. 3d 940, 14 Ill. Dec. 711, 372 N.E.2d 990 (1978). Teachers subject to tenure, a status also known as "contractual continued service," are in a readily distinguishable class of school employees and are provided special statutory procedural safeguards ( Koerner, 143 Ill. App. 3d at 167) which we believe do not apply to the plaintiff here.

Despite the similarity of the 60-day notice provision to the one applicable to teachers, the plaintiff does not persuade us that he had a contract of employment equivalent to that of a teacher. In the absence of a contract for a specific term, the plaintiff's employment is more readily characterized as employment at will, even though he may be hired on a yearly basis. See Kepper v. School Directors of District No. 120, 26 Ill. App. 3d 372, 325 N.E.2d 91 (1975); see also Buckellew, 215 Ill. App. 3d at 510 (although custodian worked eight-hour days for several years on an "as needed" basis, he ...


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