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September 22, 1997


Appeal from the Circuit Court of Lake County. No. 95-MR-529. Honorable Jack Hoogasian, Judge, Presiding.

Released for Publication October 24, 1997.

The Honorable Justice Hutchinson delivered the opinion of the court. Inglis and McLAREN, JJ., concur.

The opinion of the court was delivered by: Hutchinson

The Honorable Justice HUTCHINSON delivered the opinion of the court:

Defendant, Barbara Cohn, was discharged from her position as a school teacher by plaintiff, the Board of Education of Round Lake Area Schools, Community Unit School District No. 116 (the Board), for insubordination and abandoning her duties. After an administrative hearing, John F. Rozner, the hearing officer appointed by the Illinois State Board of Education (the State Board), found Cohn's conduct remediable, reversed her discharge, and ordered her reinstatement as a school teacher. The Board sought administrative review in the circuit court of Lake County, naming the State Board and Rozner as additional defendants. The trial court affirmed Rozner's conclusions, and plaintiff timely appealed. On appeal, plaintiff contends that Rozner's conclusions were against the manifest weight of the evidence in that (1) defendant Cohn's actions were irremediable because she was insubordinate and abandoned her duties, and (2) defendant Cohn's due process rights were not violated. We affirm.

The administrative hearing record, including Rozner's findings, reveals the following salient facts. Prior to her dismissal, defendant Cohn was a tenured teacher for Round Lake Area Community School District No. 116. She taught in the district for the last six years and has approximately 35 years' teaching experience. In August 1994 she began teaching students who were labeled as having learning disabilities.

Cohn is not a "regular" classroom teacher. Students who meet certain criteria are assigned by their regular classroom teachers to meet with Cohn for short periods during the school day. These students remained in their regular classrooms and fulfilled their regular class schedules, except when their teachers excused them to report for Cohn's instruction. On occasions when Cohn was unavailable, the students remained with their regular classroom teachers in their regular classrooms.

In spring 1994 the Board issued its school calendar for the 1994-95 school year. School sessions were scheduled to commence in August 1994 and end early in June 1995. A two-week winter break was originally scheduled to begin on December 19, 1994; a spring break was also scheduled in March.

On October 17, 1994, the Education Association of Round Lake/IEA-NEA (the Association) went on strike. On December 11, 1994, a strike settlement was reached, and the parties ratified the settlement on December 12. As part of the settlement agreement, the school calendar was modified, eliminating the winter and spring breaks. The amended calendar was distributed to personnel on December 12.

Just prior to the ratification meeting, Jeanne Kearby, the Association's grievance chairperson, met with Mary Davis, the superintendent. Their discussion centered on how to resolve the issue of teachers who had scheduled vacations during the winter break based on the original calendar for the school year. Davis agreed to consider their requests for leave if they came to see her and gave her proper documentation. Later, Davis held a meeting with all of the principals in the district. She informed them that any requests for leaves of absence should be forwarded to her for specific approval; no principals were to approve leaves on their own.

On December 13, 1994, Cohn met with her principal, Ron Kruis, and discussed her trip scheduled for the week beginning December 19. Kruis suggested she draft a letter to Davis, which she did. Later that afternoon Kruis suggested to Cohn that she might need to provide Davis with documentation. On December 14, Cohn brought photocopies of her tickets to forward to Davis.

On December 15, Davis wrote to Cohn, stating that her leave would not be approved unless she showed "verification that booking was made prior to the school year." On December 16, Cohn submitted to Davis additional documents in support of Cohn's contention that October 3 was the date of booking. The same day, Davis wrote to Cohn, informing her that her leave request was denied because her "travel arrangements were finalized November 11, 1994," and that should Cohn continue with her plans, Davis would consider her actions insubordinate and "proper administrative discipline would follow."

Cohn prepared lesson plans to be used in her absence and called the school clerk, Donna Dayment, to arrange for a substitute teacher. Dayment advised her that she had no authority to arrange for a substitute unless her leave was approved by Davis. Subsequently, Dayment apprised Davis of the conversation, and Davis instructed her not to arrange for a substitute.

Cohn left on Saturday, December 17, 1994, and reported back to work on December 26. On December 19, 20, and 21, neither Kruis nor Davis secured a substitute for Cohn; Davis arranged for a substitute for Cohn for the remainder of the week.

Cohn returned to work on Monday, December 26, 1994. At the request of Kruis, Cohn filled in as a substitute teacher instead of seeing her assigned students. On December 29, 1994, Cohn sent Davis further documentation showing that the booking date for her travel was October 3, 1994. On January 6, 1995, Cohn received a memorandum from Davis, stating that her leave remained unapproved and that further action would be taken.

On January 13, 1995, Cohn received a certified letter, dated January 12, 1995, from James Hult, the president of the Board. The letter contained a "Notice of Charges," charging her with insubordination and abandonment for allegedly disobeying orders from Davis and Kruis regarding her leave during the week of December 19, 1994. The letter stated that the charges would be considered before the Board on January 19, 1995, and that Cohn would be "afforded the opportunity in Closed Session to respond to the specific charges." The letter also stated that she could appear with her attorney or other representative.

Cohn showed the letter to Kearby, who advised her not to attend the meeting and that she and the Association would represent her interests. On January 19, 1995, the Board met, and after a public session, they moved to the closed session. At this time, Kearby and two other Association officials attempted to participate in the closed session on behalf of Cohn. They were precluded from doing so, however, by Hult and Robert Trevarthen, the Board's attorney, who expected Cohn to be present. Hult and Trevarthen informed the Association officials that they would not be permitted to participate in the closed session without Cohn's presence or authorization of their representation. The Board voted to dismiss Cohn. Cohn made a timely request for a hearing officer proceeding pursuant to the School Code (105 ILCS 5/1--1 et seq. (West 1996)).

Cohn's posttermination hearing commenced on May 18, 1995. On October 2, 1995, Rozner made the following conclusions:

"[The Association representatives] should have ascertained the scope of the vacation problem * * * before they approached [Davis]. This issue was of such significant financial impact to the individual teacher that it should have been dealt with in a formal process with a memorandum of agreement * * *.

[Davis] did not reduce her so-called understanding with Kearby to writing with copies to the Association. Had that been done we wouldn't have a conflict as to the ...

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