The opinion of the court was delivered by: Justice O'mara Frossard
Not Released For Publication
JOSEPH HEARNE, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
CHICAGO SCHOOL REFORM BOARD OF TRUSTEES OF THE BOARD OF EDUCATION FOR THE CITY OF CHICAGO, GREY CHICO, NORMAN R. BOBINS, TARIG BUTT, SHARON GIST GILLIAM, GENE R. STAFFORD, PAUL VALLAS, CHIEF EXECUTIVE OFFICER, AND ILLINOIS STATE BOARD OF EDUCATION, DEFENDANTS-APPELLANTS AND CROSS-APPELLEES.
The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County
Honorable Dorothy Kirie Kinnaird, Judge Presiding.
Defendant Chicago School Reform Board of Trustees of the Board of Education for the City of Chicago (Board) appeals the circuit court's reversal of its decision to terminate plaintiff, Joseph Hearne, a tenured Chicago public school teacher. Plaintiff has filed a cross-appeal against the Board and the Illinois State Board of Education challenging the constitutionality of section 34-85 of the Illinois School Code (105 ILCS 5/34-85 (West 1994)), as amended by Public Act 89-15 (Pub. Act 89-15 eff. May 30, 1995)). This statute governs dismissal of principals and tenured teachers in the Chicago public schools. The circuit court granted plaintiff's request under count I and reversed the Board's decision to dismiss Hearne. The circuit court also granted plaintiff's constitutional relief requested in count III, finding that section 34-85 as amended by Public Act 89-15 was unconstitutional.
The Board and the Illinois State Board of Education then directly appealed the circuit court's ruling to the Illinois Supreme Court. The supreme court, however, remanded the case to the circuit court. The supreme court found that, because the circuit court granted plaintiff administrative relief, the circuit court improperly considered the constitutional issues regarding amended section 34-85. The supreme court ordered the circuit court to modify its October 20, 1997, order "to exclude the ruling that section 34-85 is unconstitutional." Hearne v. Illinois State Board of Education, 185 Ill. 2d 443, 457 (1999). On March 18, 1999, the circuit court excluded its constitutionality finding and granted plaintiff administrative relief. The Board appeals from this order and claims that the circuit court erred in granting plaintiff administrative relief and reversing the decision of the Board to terminate plaintiff. We affirm the circuit court's order granting plaintiff's administrative relief; therefore, we need not address plaintiff's cross-appeal that section 34-85 as amended by Public Act 89-15 is unconstitutional.
Plaintiff, a tenured Chicago public school teacher, had been employed as a teacher for 18 years. Plaintiff was certified in special education and social studies for kindergarten through grade 12. He was teaching at the Austin Community High School (Austin). On September 6, 1995, Paul Vallas, the Board's chief executive officer and general superintendent, approved charges against plaintiff for conduct unbecoming a teacher and gross dereliction of duties. Three specific acts of misconduct from May 1995 were alleged to have been committed by plaintiff: (1) plaintiff was arrested for gambling with his students in his classroom during instructional time; (2) plaintiff took students to a theater as part of a field trip and did not pay admission for 11 students; and (3) as part of the same field trip, plaintiff took the students to a restaurant and paid the bill with his personal check without sufficient funds in his account to cover the check. Vallas informed plaintiff that, because the conduct giving rise to the charges was deemed irremediable, plaintiff would be discharged unless he petitioned for a dismissal hearing pursuant to section 34-85. Plaintiff requested a dismissal hearing. Vallas suspended plaintiff without pay pending the outcome of the hearing.
The dismissal hearing was held before a state-appointed hearing officer during December 1995. The case against plaintiff was presented by an attorney from the Board's legal department, who called two witnesses. William Walker, a Chicago police officer and security officer at Austin, testified that on May 8, 1995, plaintiff called him to his classroom. Walker testified that plaintiff told Walker that students were gambling in his class and that he allowed gambling to take place. Walker indicated that he saw students handling cards at a table in plaintiff's classroom. According to Walker, plaintiff said to one of the students "you're going to give me my cut," the student pulled out $2 and plaintiff took the $2 from the student. Walker immediately left the classroom and reported the incident to the school's principal. Walker did not confiscate any cards or money from the classroom and admitted that he was present in the classroom for only two to three minutes.
James Williams, the principal of Austin, testified that Officer Walker came to his office and reported that he observed gambling in plaintiff's classroom. Williams never went to the classroom. Williams also interviewed the students allegedly involved in the gambling incident, however these students did not testify. Williams then prepared an incident report and notified Vallas and the Board.
Williams also testified about plaintiff's alleged misconduct regarding the student field trip. Williams testified that he approved the student field trip on May 4, 1995, to the ETA theatre and Shakey's pizza, and that plaintiff was responsible for paying the theatre and Shakey's pizza. After the trip, the ET1A theatre called him and reported that the school still owed the theatre $33. Williams asked plaintiff about the money that was owed the theatre and plaintiff said that he would pay it. Within the next two weeks, the theatre continued to call about the money owed. Plaintiff had been transferred from Austin following the gambling charges, and Williams referred the theatre to the Board's legal department. Williams received a similar call from Shakey's pizza about an unpaid bill. Williams told the manager of Shakey's pizza that the unpaid balance was plaintiff's responsibility because the school had reimbursed plaintiff for this expense. Williams spoke with plaintiff and plaintiff stated that he would pay the pizza bill.
Plaintiff testified on his own behalf and called as witnesses three students who supported his testimony. These students were not the same students allegedly involved in the gambling incident. Plaintiff and the three student witnesses refuted the allegations of gambling. During the period when the gambling allegedly occurred, plaintiff testified that students, who had lunch during this period, routinely used his classroom to study while he worked with his special education students in another part of the classroom. Plaintiff testified that on the morning of the day of the alleged gambling incident, he had asked a student to buy some juice and had given the student $2. The student, however, never bought any juice and refused to return the money. Plaintiff then informed Officer Walker of the student's failure to return the $2 and requested Walker's presence in the classroom to pressure the student. Plaintiff testified that he never permitted or allowed any gambling in his classroom. The three students also testified that they did not see gambling in plaintiff's classroom and that plaintiff did not permit gambling to occur.
Regarding the field trip, plaintiff testified that he had payment for theatre admissions from all students authorized for the field trip. When he arrived at the theatre there were students from other schools present. In addition, plaintiff saw about 11 other Austin students or former students at the theatre. They had not used the school bus from Austin to travel to the theatre. The theatre did not take an actual head count, allowed all students inside, and some unauthorized students attended the show. Plaintiff testified that he told the theatre director about the unauthorized students and that he would get payment from these students. Plaintiff never requested that Austin pay for these other students. Plaintiff testified that he planned to get payment from the unauthorized students after the field trip, but, because of his subsequent arrest on gambling charges, he was unable to collect the money. Plaintiff eventually paid the theatre the $33 that was owed.
Plaintiff testified that these unauthorized students also went to Shakey's pizza. The restaurant did not take a head count but allowed everyone into the restaurant. Following the meal, plaintiff received a bill for $363.30 even though Austin only authorized the plaintiff to spend $228. Plaintiff then provided Shakey's with a postdated check for the full amount of the bill. When he obtained the reimbursement check from Austin, he testified that he mistakenly deposited it into his savings account, rather than his checking account. As the result of his arrest and transfer from Austin, he did not immediately find out that the check was returned unpaid by the bank. After he found out that the check had been returned, he provided Shakey's with a cashier's check for the full amount plus any returned check fee. It was not refuted that both the theatre and Shakey's pizza were paid in full by the plaintiff.
On March 18, 1996, the hearing officer issued written findings of fact, concluding that the Board failed to prove by a preponderance of the evidence that plaintiff was guilty of the three charges. Consequently, the hearing officer recommended that plaintiff be restored to his teaching position with back pay and benefits. The hearing officer's recommended decision was served upon both plaintiff and the Board on March 20, 1996.
On April 24, 1996, Vallas submitted to the Board a written "request for the rejection of [the] hearing officer's decision," stating "[t]he rationale for this recommendation is that the Hearing Officer's decision is contrary to the weight of credible evidence in the case which demonstrated cause for termination under section 34-85." That same day, the Board agreed with the request by Vallas to reject the hearing officer's recommendation and terminated plaintiff for cause. The Board informed plaintiff of its decision on April 27, 1996.
In May 1996, plaintiff filed a verified complaint for administrative review, mandamus, and declaratory and injunctive relief in the circuit court. Count I of plaintiff's complaint sought administrative review of the decision of the Board to discharge plaintiff from employment as a teacher. Count II sought plaintiff's reinstatement through the remedy of mandamus. Counts III, IV, and V requested the trial court to declare unconstitutional section 34-85 of the School Code, as amended by Public Act 89-15.
On November 4, 1996, the circuit court in an oral ruling from the bench, remanded plaintiff's case to the Board for further consideration. The judge based her decision on two factors: first, the judge could not discern from the administrative record whether the Board had reviewed the transcript of the administrative hearing and/or the hearing officer's recommendation before rejecting it; and, second, the judge could not determine how, or upon what basis, the Board made its decision to terminate plaintiff. Pursuant to the circuit court's order, the Board reconsidered plaintiff's case on December 17, 1996. The record indicates that Vallas was present during this closed session meeting, but plaintiff and his attorney were not allowed to attend. The Board again decided to discharge plaintiff.
On January 8, 1997, the circuit court was advised that the Board, in an executive session on December 17, 1996, reconsidered plaintiff's case and voted to dismiss plaintiff based upon the record of the hearing before the hearing officer. The circuit court ordered the Board to provide an affidavit as to who was present at the executive session on December 17, 1996, as to the Hearne matter, and to advise the court as to whether the summary minutes of the December 17, 1996, meeting were approved and when a record of the meeting would be prepared. The Board subsequently filed with the circuit court a "Record Upon Remand" that included, but was not limited to, the following: (1) exhibit G, an affidavit of the Board's assistant secretary stating who was present and what was considered at the closed session meeting regarding the Hearne matter; (2) exhibit H, a communication approved by the Board on December 17, 1996, regarding its final decision to dismiss ...