THE BOARD OF EDUCATION OF WAUKEGAN COMMUNITY SCHOOL DISTRICT No. 60, Plaintiff-Appellee,
SHELLEY ORBACH, Defendant-Appellant (Illinois State Board of Education, Alan J. Cook, and The State of Illinois, Defendants)
On appeal from the trial court’s reversal of an administrative hearing officer’s reinstatement of defendant teacher following his dismissal by plaintiff board of education based on the teacher’s failure to remediate deficiencies in his performance, the hearing officer’s decision was reinstated, since the School Code did not override the parties’ collective bargaining agreement, and defendant’s overall rating as a teacher was satisfactory, and pursuant to the parties’ collective bargaining agreement, he was entitled to reevaluation rather than dismissal.
Appeal from the Circuit Court of Lake County, No. 11-MR-1796; the Review Hon. Christopher C. Starck, Judge, presiding.
Gilbert Feldman, of Cornfield & Feldman, of Chicago, for appellant.
Nancy G. Lischer and Alex Breland, both of Hinshaw & Culbertson LLP, of Chicago, and Thomas A. Morris, Jr., of Waukegan, for appellee.
Panel JUSTICE HUDSON delivered the judgment of the court, with opinion.. Presiding Justice Burke concurred in the judgment and opinion. Justice McLaren dissented, with opinion.
¶ 1 Defendant, Shelley Orbach, appeals from the trial court's reversal of an administrative hearing officer's decision to reinstate him as a tenured high school science teacher after the Board of Education of Waukegan Community Unit School District Number 60 (Board) dismissed him. Orbach argues that (1) he was denied procedural due process under the School Code (Code) (105 ILCS 5/24A-1 et seq. (West 2010)); (2) the Board breached its collective bargaining agreement with the Lake County Federation of Teachers (Union); (3) the decision of the administrative hearing officer is not clearly erroneous; and, (4) in the alternative, this cause must be remanded as there are other issues that need to be addressed in light of the trial court's reversal. We find Orbach's second argument dispositive, and we reverse.
¶ 2 I. BACKGROUND
¶ 3 Orbach was a tenured high school science teacher employed by Waukegan Community Unit School District Number 60 (District). On April 27, 2010, as required by the Code, he was formally evaluated by a qualified administrator, Molly Schaefer, his school's principal. The evaluation consisted of six component categories: "Organization, " incorporating 3 separate elements; "Management, " incorporating 7 elements; "Content, " incorporating 5 elements; "Methodology, " incorporating 15 elements; "Personal Interaction, " incorporating 5 elements; and "Professional Responsibilities, " incorporating 15 elements, with 1 element comprised of 5 subparts. Performance on each element had four possible ratings: "Excellent, " valued at two points; "Satisfactory, " valued at one point; "Unsatisfactory, " valued at zero points; and " Not Observed." Performance on each category was then rated as "Excellent, " "Satisfactory, " or "Unsatisfactory, " based on the mathematical average of the scores for the element within the category. There was also an "OVER-ALL RATING FOR THIS OBSERVATION, " with "Excellent, " "Satisfactory, " and "Unsatisfactory" as the possible ratings. The overall rating was based on the mathematical average of the six component category scores.
¶ 4 On the evaluation, Orbach was rated "Unsatisfactory" on 23 separate elements and he received no "Excellent" ratings. As a result of the averaging methodology, he was rated "Unsatisfactory" in two component categories and "Satisfactory" in the other four categories. Nevertheless, his overall rating for the observation was "Satisfactory." On May 28, 2010, the District developed a remediation plan that included both an explanation of each deficiency and an outline of recommendations to improve performance in the two deficient categories, "Management" and "Methodology." The plan was in effect during the first semester of the 2010-11 school year. The plan included the following "INDICATORS OF SUCCESS": "The indicators for success are satisfactory ratings on the summative evaluation in each of the deficient areas." The "TIMELINE FOR COMPLETION" was the first semester of the 2010-11 school year.
¶ 5 Orbach was reevaluated on September 27, 2010, by Ms. Schaefer; on November 2, by Karen Frank, the math/science division head; and on December 15, by Ms. Schaefer again. On the September 27 evaluation, he was rated "Unsatisfactory" on 10 elements; however, he received a "Satisfactory" rating in five of the six categories (all except "Methodology") and for the overall rating. On the November 2 evaluation, he was rated "Unsatisfactory" on 13 elements; "Unsatisfactory" in one category ("Methodology"); and "Satisfactory" for the overall rating. On the December 15 evaluation, he was rated "Unsatisfactory" on 13 elements; "Unsatisfactory" on "Methodology"; and "Satisfactory" for the overall rating.
¶ 6 Despite being rated as performing satisfactorily overall, Orbach was dismissed by the Board on January 11, 2011. The Board's resolution stated that "pursuant to Article 24A of the School Code and the Evaluation Plan, any teacher receiving an 'unsatisfactory' rating at the end of the Remediation Plan shall be dismissed in accordance with the law." It then found that "the failure of [Orbach] to accomplish the specific remediation objective and to perform the required activities regarding the objectives as embodied in the Remediation Plan, and therefore failing to satisfactorily complete the Remediation Plan, constitute grounds for his dismissal."
¶ 7 The Union requested a hearing before the Illinois State Board of Education, which was held on June 14 and 15, 2011. On September 22, 2011, the administrative hearing officer reinstated Orbach "to a substantially similar teaching position before the start of the next school semester." The hearing officer's written decision noted that the District contended that "Methodology" was "the most important category of an evaluation since it considers how content is delivered to students." The written decision also noted that Orbach contended that the collective bargaining agreement (CBA or contract) between the Board and the Union "provides that successful completion of a remediation plan depend[s] on the teacher's overall rating at the end of the plan."
¶ 8 The hearing officer reasoned that three main provisions were in play. Section 24A-5 of the Code described the content of evaluation plans. See 105 ILCS 5/24A-5 (West 2010). Article IV, section 12, of the CBA discussed remediation matters that had been agreed to by the District and the Union. Section 24-12 of the Code related to the dismissal process for tenured teachers. See 105 ILCS 5/24-12 (West 2010). The hearing officer found that the CBA provided for remediation of a teacher if any of the categories were rated as unsatisfactory, but it called for dismissal only if the overall rating was unsatisfactory. Since Orbach received a "Satisfactory" overall rating, he should not have been dismissed. Instead, he should have been subject to reevaluation the following year. Hence, Orbach's dismissal was reversed.
¶ 9 The Board appealed to the trial court for judicial review of the administrative proceedings, pursuant to the Code (105 ILCS 5/24-16 (West 2010)) and the Illinois Administrative Review Law (735 ILCS 5/3-104 (West 2010)). After hearing argument, the court ruled as follows:
"It seems to me that the reversal of the decision [of the Board] was incorrect, that both the Code and the CBA require the teacher to improve on the items which were deficient beforehand. If the teacher did not improve on those items, the teacher needs to be removed. And there really is no factual question. The way I am interpreting the Code and the CBA, the teacher should, in fact, have been removed. So I am going to reverse the decision."
¶ 10 Orbach timely appealed.
¶ 11 II. ANALYSIS
¶ 12 As an initial matter, the parties disagree as to the applicable standard of review. Orbach contends that the "clearly erroneous" standard applies because this appeal involves a mixed question of law and fact, i.e., one where the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or whether the rule of law, as applied to the established facts, is violated. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill.2d 380, 391 (2001). The Board counters that Orbach's reliance on AFM Messenger Service is ...