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Kinsella v. Board of Educ.

Court of Appeals of Illinois, First District, Second Division

February 10, 2015

KATHLEEN KINSELLA, Petitioner,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, DAVID VITALE, President, Board Members JESSE RUIZ, HENRY BIENEN, MAHALIA HINES, CARLOS AZCOITA, DEBORAH QUAZZO and ANDREA ZOPP, BARBARA BYRD-BENNETT, Chief Executive Officer ILLINOIS STATE BOARD OF EDUCATION And VICKI PETERSON COHEN, Hearing Officer, Respondents

Page 227

On Petition for Review of a Final Administrative Decision of the Board of Education of the City of Chicago. Board Resolution No.: 13-0824R38.

SYLLABUS

Defendant school board's finding that plaintiff teacher was " under the influence" based solely on her breath-test score of 0.053 and that her conduct was cause for her dismissal was arbitrary and not supported by the evidence; therefore, the board's final decision was reversed.

FOR PETITIONER: Jessica R. Durkin, Of Counsel, Miroballi, Durkin & Rudin, LLC, Chicago, Illinois.

FOR RESPONDENTS: James L. Bebley, Of Counsel, Board of Education of the City of Chicago, Law Department, Chicago, Illinois.

JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Neville and Liu concurred in the judgment and opinion.

OPINION

Page 228

PIERCE, J.

[¶1] Defendant Board of Education of the City of Chicago (Board) terminated petitioner Kathleen Kinsella's employment as a tenured teacher for violation of Board rules and policy finding she was under the influence of alcohol when she reported to work based on a blood-alcohol level of 0.053. After a hearing, the hearing officer found the Board did not prove by a preponderance of the evidence that Kinsella was under the influence of alcohol and recommended reinstatement. The Board accepted the hearing officer's findings of fact but rejected her legal conclusion that the evidence did not support the finding of " being under the influence." The Board terminated Kinsella, finding she was under the influence of alcohol in violation of Board policies. Petitioner filed a direct appeal to this court for administrative review pursuant to section 34-85(a)(8) of the Illinois School Code (105 ILCS 5/34-85(a)(8) (West 2012)). Jurisdiction lies in this court pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994).

[¶2] BACKGROUND

[¶3] Hearing officer Vicki Peterson Cohen conducted a two-day hearing in January and March of 2013, which produced the following evidence. Kathleen Kinsella was a tenured teacher employed by the Board since 2008. During her entire teaching career she taught kindergarten at William H. Ray Elementary School.

[¶4] Jeffrey Alstadt, the school's assistant principal, testified that on May 10, 2012, petitioner reported to work at 8:31 a.m. Shortly thereafter, he smelled a " fragrance" like " grain alcohol" coming from the area near Kinsella. He engaged in a short conversation with Kinsella and confirmed that she was the source of the odor. He testified that Kinsella was in a good mood, her eyes were a " little glazed" and her speech was a " little slurred." He reported to principal Tatia Beckwith that Kinsella smelled of alcohol but he did not tell Beckwith that Kinsella's speech was slurred. Alstadt further testified that Kinsella's face looked normal; she did not have dilated pupils; she exhibited no tremors; she was not profusely sweating; she did not appear to be excessively tired or demonstrate a lack of coordination. Prior to May 10, he had never smelled alcohol on Kinsella nor heard any reports of Kinsella smelling of alcohol at work.

[¶5] Approximately 15 minutes after Alstadt informed Beckwith of his observation, Beckwith called Kinsella into the main office, where Beckwith confirmed the odor of alcohol on Kinsella's breath. Beckwith testified that this gave her a reasonable suspicion that Kinsella was under the influence of alcohol. This was just before the school day began and Kinsella's students were not yet in class. Beckwith could not remember if Kinsella exhibited other signs of being under the influence of alcohol or was otherwise impaired.

[¶6] Beckwith stated that, according to Board policy, when two administrators or one administrator and one supervisor have a " reasonable and articulated belief that the employee is using alcohol or a prohibited drug, *** based on specific contemporaneous observations ...


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