SIXTH DIVISION March 31, 2006
No. 1-04-3695
) ) ) RITA AHMAD, ) Appeal from the ) Circuit Court Plaintiff-Appellee, ) of Cook County. ) v. ) No. 03 CH 21482 ) THE BOARD OF EDUCATION OF THE CITY ) Honorable OF CHICAGO, ) Martin S. Agran, ) Judge Presiding. Defendant-Appellant ) ) (HENRY GALATZ and ILLINOIS STATE ) BOARD OF EDUCATION, ) ) Defendants-Appellees). ) JUSTICE O'MALLEY delivered the opinion of the court:
On December 13, 2001, defendant, the Board of Education of the City of Chicago
(Board), charged plaintiff, Rita Ahmad, a tenured teacher, with numerous violations of
the Board's Employee Discipline Code. The Board alleged, inter alia, that plaintiff
misappropriated the merchandise of a nonprofit organization for the benefit of her
unauthorized secondary business by falsely representing herself as an agent of the
Chicago Public Schools (CPS). A hearing officer then sustained the Board's charges.
The circuit court reversed the Board's decision and ordered that it reinstate plaintiff with
back pay.
On appeal, the Board challenges the decision of the circuit court, claiming that the
hearing officer's initial decision was correct. By contrast, plaintiff insists the hearing 1-04-3695
officer erred by misapplying the standard set forth by our supreme court in Gilliland v.
Board of Education of Pleasant View Consolidated School District No. 622, 67 Ill. 2d
143, 153 (1977), which generally governs the dismissal of tenured teachers. In our
view, plaintiff's conduct here is properly characterized as immoral, indeed even criminal,
and is therefore irremediable per se, as defined by an amendment to the Illinois School
Code (Code). 105 ILCS 5/34-85 (West 2000). Thus, the present case is not controlled
by the application of Gilliland but rather by an amendment to the Code as explained in
Younge v. Board of Education of the City of Chicago, 338 Ill. App. 3d 522, 533-34
(2003). We therefore uphold the Board's decision and reverse the circuit court's order
to reinstate plaintiff.
BACKGROUND
Plaintiff, a tenured teacher at the time of this action, began working for the Board
in 1961. Plaintiff's last classroom assignment was at the Bryn Mawr School during the
spring semester of the 1998-1999 school year. During that spring semester, Ahmad
was removed from her classroom for disciplinary reasons and reassigned to the Board's
Office of Schools and Regions, where she did not retain any teaching or classroom
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responsibilities. 1
On December 13, 2001, the Board charged plaintiff with violating several provisions
of the CPS Employee Discipline Code. The Board's complaint alleged that plaintiff
misappropriated supplies from a nonprofit organization by misrepresenting herself as an
agent of CPS. The complaint further alleged that plaintiff obtained the supplies with the
intent of selling them through plaintiff's business, entitled "Ology Parent-Teacher, One
Stop Educational Supplies."
On November 13, 2002, a proceeding before a hearing officer revealed the following.
1 The record does not reveal what "disciplinary reasons" prompted the Board to
remove plaintiff from her classroom. Dr. Barbara Moore, plaintiff's supervisor, testified
that the Board removes individuals from the classroom and relocates them at the Office
of Schools and Regions for disciplinary reasons.
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On October 5, 2001, plaintiff applied for membership in the National Association for the
Exchange of Industrial Resources (NAEIR). Robert Gilstrap, vice president and chief
financial officer of NAEIR, testified before the hearing officer. He stated that NAEIR, a
nonprofit organization, allows its members to obtain donated items, including school
supplies, for a small service fee and delivery charge. NAEIR restricts its membership to
organizations and does not allow individual memberships. Plaintiff testified at the
hearing that she applied to NAEIR after seeing an article and advertisement in the
February 2000 Chicago Union Teacher (CUT) newspaper. The CUT article included the
following passage which related to the services and products that NAEIR provided:
"Free materials offered for classroom use
Teachers who are spending their own money on
supplies for their classrooms can get a bargain on many
items through a nationwide not-for-profit program called
Member's Choice.
***
Participant's pay a one-time $29.50 registration fee,
then receive quarterly mini-catalogs and monthly fliers, with
items available for shipping and handling costs ranging from
$20- $50. Values of the goods range from $100 to $500.
The materials must be used in the school setting or
given to students." (Emphasis in the original).
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Plaintiff subsequently contacted NAEIR in an effort to secure membership. On her
initial application, plaintiff represented herself as a teacher and that she was applying
for membership on behalf of a Chicago public school. Plaintiff, however, listed her
home address and telephone number as the applying organization's address on the
application form. This application also included the following preprinted language:
"In accordance with Section 170(e)(3) of the U.S. Internal
Code [sic], materials received through NAEIR are to be used
for the care of the ill, needy or minors and shall not be
bartered, traded or sold."
According to Gilstrap=s testimony, NAEIR sent back this initial application because it
lacked a school address and the name of a school. A handwritten message on the
returned application indicated that "[i]tems requested must be shipped to the
organization" and "need school address." In response to this request, plaintiff identified
her organization as the "Chicago Public Schools, Office of Schools and Regions c/o Rita
Ahmad." Plaintiff submitted this application by facsimile with the assistance of Dr.
Barbara Moore, plaintiff's supervisor at the Office of Schools and Regions. Dr. Moore
testified before the hearing officer that plaintiff told her the purpose of the facsimile
concerned a matter relating to the Bryn Mawr School, a school that previously employed
plaintiff. Dr. Moore further testified that as a practice she always asked whether an item
sought to be faxed by an individual related to school business. Only if an individual
responded affirmatively to such a question would Moore fax the item.
NAEIR then sent plaintiff a welcome letter which, in relevant part, stated: "Your
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application has been processed and CHICAGO PUBLIC SCHOOLS OFFICE OF
SCHOOLS AND REGIONS has been issued this member number: 045494 3001 ***
Carefully read the enclosed 'Member's Choice Rules and Instruction sheet *** .' " At the
bottom of this letter a second statement read:
"CHICAGO PUBLIC SCHOOLS
OFFICE OF SCHOOLS AND REGIONS
Member's Choice
Membership Number:
04594 3001"
Plaintiff proceeded to place 16 orders of school supplies from NAEIR worth a value
of $33,979. On at least 12 of these orders plaintiff marked "Chicago Public
Schools/Office of Schools and Regions" in her own handwriting under "Organization
Name." Also, on these 12 order forms, plaintiff used the membership number "045494
3001," which NAEIR had previously assigned to the Chicago Public Schools/Office of
Schools and Regions. NAEIR billed plaintiff $4,567.50 in shipping charges for the
school supplies.
NAEIR proceeded to send plaintiff numerous invoices for the merchandise she
ordered which all contained the following warning:
"Payment of this invoice acknowledges that your
organization will use the merchandise received through
NAEIR in accordance with the provisions of IRS Code
170(e)(3). The merchandise will not be bartered, traded or
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sold and in keeping with the TERMS OF THE
MEMBERSHIP, will be used for the care of the ill, needy or
infants (minors). It is also understood that your organization
will keep a record of this transaction for the IRS in the event
they wish to verify the transaction."
As of November 14, 2002, NAEIR had not received payment from plaintiff for the school
supplies. Dr. Moore also testified that NAEIR later contacted her office seeking
compensation for an outstanding bill. After Dr. Moore questioned plaintiff about this
outstanding bill, plaintiff informed her the bill had nothing to do with "Schools and
Regions" and that "she would take care of it."
John Connolly, a Board investigator who inquired into plaintiff's relationship with
NAEIR, also testified before the hearing officer. After contacting personnel at NAEIR,
Connolly had deduced that NAEIR returned plaintiff's original application for
membership because it lacked adequate processing information and that NAEIR
eventually approved the application after plaintiff both added the name "Office of
Schools and Regions" to her application and returned the revised application to NAEIR
via facsimile with an "Office of Schools and Regions" cover sheet. Connolly also stated
that plaintiff informed him that she did not want to be interviewed, the matter was
private, and was none of the Chicago Public School's business. After reviewing various
documents, such as the NAEIR invoice and membership application forms mentioned
above, and interviewing various individuals, including NAEIR personal and Dr. Moore,
Connolly concluded Ahmad had falsified her status as an agent of CPS in an effort to
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obtain merchandise from NAEIR.
At the hearing, plaintiff claimed, among other things, that she had not understood
from the various documents introduced at the hearing that NAEIR excluded individuals
like herself from its program. In particular, she noted that the advertisement discussed
previously referred to teachers; thus, she did not believe the program excluded her.
She also claimed she listed "Office of Schools and Regions" as her organization name
on her NAEIR application form because Dr. Moore informed her that although she no
longer worked at a school, she had been reassigned to the "Office of Schools and
Regions." Plaintiff further asserted that she never requested that Dr. Moore fax her
application to NAEIR. Plaintiff claimed the warning on the applicationB-that the goods
received may not be sold and that the materials ought to be used for the ill, needy or
minors-Bwas just a suggestion. Plaintiff testified that she formed her business, which
she had entitled "Ology Parent Teacher Supplies," to provide supplies that could not
generally be found in stores like "Toys R Us," and to educate parents on how to teach
their children. Plaintiff further stated she would have stopped teaching had her
business succeeded. She also testified that during the time she accumulated items
from NAEIR, she was still employed by the Board, but was not actually teaching.
Although plaintiff acknowledged she originally obtained the items to sell through her
business, she eventually donated all items received from NAEIR and introduced
receipts from various nonprofit organizations to this effect. She did so while aware of an
ongoing investigation into her conduct by the Board. She also claimed she did not
compensate NAEIR for shipping expenses because of financial difficulties caused by
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her excessive sick days without pay, and that her lack of business skills and funds
caused her business to fail.
After evaluating the various testimonies and exhibits at the proceeding, the
hearing officer remarked in his order:
"Based upon the evidence presented it is clear that some if
not the majority of the materials secured through NAEIR
would have been used in the furtherance of Ahmad's private
business venture.
In extending every benefit of the doubt to Ahmad it is both
illogical and unreasonable to conclude that Ahmad believed
that she could acquire product from NAEIR, and thereafter
do with that product as she saw fit. The NAEIR materials
make it very clear in terms of who may be a member, what
requirements a member must meet, what obligation a
member assumes in terms of payment requirements, and
how a member must ultimately use the product that it
receives from NAEIR."
The hearing officer decided the case by applying an analysis applicable to teacher
dismissals set forth by our supreme court in Gilliland, 67 Ill. 2d at 153. There, the court
set out the standard a school board must meet so that it may terminate a teacher
without the procedural safeguards typically afforded to tenured teachers. To dismiss a
teacher without such safeguards, according to the Gilliland court, a board must
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demonstrate that a teacher's conduct is "irremediable." To do so, the Board must
prove, by a preponderance of the evidence, that: (1) the teacher=s conduct caused
significant damage to students, faculty, or the school; and (2) the teacher would not
have corrected his conduct, even if he had been issued a written warning and afforded
a period of time for remediation. Gilliland, 67 Ill. 2d at 153. Analyzing the first prong of
Gilliland, the hearing officer determined that the Board, its students, and its faculty were
damaged in at least three ways. First, based on plaintiff's actions, NAEIR could refuse
future membership to CPS which, in turn, could deprive CPS of future affordable
services and products in an era of limited school budgets. Second, NAEIR could
rightfully seek compensation from the Board for all the unpaid supplies plaintiff ordered
in its name. Third, plaintiff's actions could jeopardize NAEIR's Internal Revenue Service
tax-exempt status and, as a consequence, may expose CPS to liability for its
contributing role to this status change.
Turning to the second Gilliland prong, namely, whether plaintiff would have
corrected her conduct if she had been issued a written warning and a period of time for
remediation, the hearing officer concluded that plaintiff's impermissible conduct was of a
continual nature and thus irremediable. He concluded the proceedings by sustaining
the Board's charges and by stating:
"It has been determined that Rita Ahmad has
engaged in activities that have resulted in her securing
merchandise and related services to which she was not
otherwise entitled which in turn resulted in gain to Ahmad
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and liability to both NAEIR and the Chicago Public Schools.
It was through these efforts and activities that an
impermissible misappropriation occurred.
It has been determined that Rita Ahmad has engaged
in activities during work time that were intended to further a
secondary business. At the same time it is also
acknowledged that Ahmad had limited duties and
responsibilities while assigned to the Office of Schools and
Regions.
It has been determined that Rita Ahmad enlisted the
service of Office of Schools and Regions personnel to assist
her his [sic] securing membership in NAEIR. At the same
time is it [sic] also acknowledged that the evidence
presented in furtherance of this activity was limited to
requesting that application material to NAEIR for the purpose
of establishing membership be sent out by District
personnel."
The Board then adopted the hearing officer's recommendation and terminated plaintiff's
employment.
On April 24, 2004, plaintiff filed a complaint for administrative review before the
trial court. The trial court found the damages claimed by the Board speculative in
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nature and therefore ordered plaintiff's reinstatement with back pay. The Board
appealed.
STANDARD OF REVIEW
In administrative review cases, we review the Board's decision, not the circuit
court's decision. Board of Education of Community Consolidated School District No. 54
v. Spangler, 328 Ill. App. 3d 747, 757 (2002); 735 ILCS 5/3-101 et seq. (West 2002).
Furthermore, the hearing officer acts as the factfinder and in that capacity hears the
testimony of witnesses, determines their credibility and the weight to be given their
statements, and draws reasonable inferences from all evidence produced in support of
the charges against the accused. Spangler, 328 Ill. App. 3d at 757. An agency's
findings of fact are considered prima facie true and correct. Grames v. Illinois State
Police, 254 Ill. App. 3d 191, 202 (1993). Accordingly, a reviewing court will not reverse
an agency's findings unless they are against the manifest weight of the evidence.
Szabo v. Board of Education of Community Consolidated school District No. 54, 117 Ill.
App. 3d 869, 872-873 (1983). An agency's findings are against the manifest weight of
the evidence only if the opposite conclusion is clearly evident. Abrahamson v. Illinois
Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992). Regardless of the
reasoning provided by an agency for its decision, this court may affirm an agency's
decision on any basis appearing in the record. Younge, 338 Ill. App. 3d at 530; Midwest
Central Educational Ass'n v. Illinois Educational Labor Relations Board, 277 Ill. App. 3d
440, 448 (1995).
Here, the parties do not contest in their appellate briefs, and we will not address,
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whether the decision of the hearing officer is against the manifest weight of the
evidence. Rather, we address whether the hearing officer erred by applying the
standard expressed in Gilliland, 67 Ill. 2d at 153. This presents a question of law, which
we review de novo. Midwest Central Education Ass'n v. Illinois Educational Labor
Relations Board, 277 Ill. App. 3d 440, 444-45 (1995).
ANALYSIS
Under section 10-22.4 of the Code, a tenured school teacher may be removed from
employment only for cause. 105 ILCS 5/10-22.4 (West 2002). Two kinds of misconduct
may constitute cause. First, "irremediable" misconduct, that is, conduct which causes
damage to the students, the faculty or the school itself that could not have been
corrected if warnings had been given by the teacher's superiors when they learned of
the cause. Yesinowski v. Board of Education of Byron School District No. 226, 28 Ill.
App. 3d 119, 123 (1975). Second, "remediable" conduct, that is, "misconduct by a
teacher, in her ordinary course of duties, which, if called to her attention, can ordinarily
be remedied"; the term "remediable" has been applied to situations concerning "
'deficiencies in teaching performance [citation] or corporal punishment.' " Younge, 338
Ill. App. 3d at 532, quoting McBroom v. Board of Education of District No. 205, 144 Ill.
App. 3d 463, 473-74 (1986).
Before a school district can terminate a tenured teacher who engages in
"remediable" conduct, the district must provide a written "Notice to Remedy" of those
"causes which, if not removed, may result in charges." 105 ILCS 5/24-12 (West 2002).
As noted in Gilliland, 67 Ill. 2d at 153, however, a school district need not take this step
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if the teacher=s conduct is deemed "irremediable." In the present case, the hearing
officer concluded that plaintiff's actions constituted "irremediable" conduct by applying
the Gilliland analysis. As mentioned previously, the Supreme Court in Gilliland set forth
a two-part analysis pertinent to whether conduct is irremediable: (1) whether the
teacher=s conduct caused significant damage to students, faculty, or the school; and (2)
whether the teacher would not have corrected her conduct, even if she had been issued
a written warning and a period of time for remediation. Gilliland, 67 Ill. 2d at 153.
Plaintiff argues that the hearing officer erred in concluding that plaintiff caused
damages under the first prong of Gilliland because such damages were of a speculative
nature. She further argues that the hearing officer misapplied the second prong of
Gilliland, i.e., the hearing officer erred in concluding that plaintiff would not have
corrected her conduct if the Board had issued her a written warning and afforded her a
period of time for remediation. We agree that the hearing officer misapplied Gilliland,
but not for the reasons argued by plaintiff. We deem the analysis provided by Gilliland
inapplicable to instances, such as the present case, where conduct clearly warrants an
"immoral" classification as stated in the Code and explained in our recent decision in
Younge, 338 Ill. App. 3d at 533-34.
In Younge, two teachers tested positive for marijuana in violation of district policy.
The teachers were charged with violating several district policies and both were
provided a hearing in which the hearing officers affirmed the terminations. The district
and the hearing officers considered the teacher's behavior irremediable, thus not
requiring the implementation of the warning and progressive discipline procedures
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provided in the Code. We affirmed the Board's decision to terminate the teachers. In
so doing, we examined the legislature's amendment of section 34-85 of the Code, which
states as follows:
"No written warning shall be required for conduct on the part
of a teacher or principal which is cruel, immoral, negligent, or
criminal or which in any way causes psychological or
physical harm or injury to a student as that conduct is
deemed to be irremediable." (emphasis added) 105 ILCS
5/34-85 (West 2000).
Interpreting this amendment, we clarified the irremediable conduct test under Gilliland,
by stating:
"There is no need, however, to apply the Gilliland test
in this case. Gilliland was decided almost 20 years before
the 1995 Chicago school reform amendments [citation]. The
Chicago School Reform Act was enacted in 1998 in an
attempt to resolve certain serious problems in Chicago's
public school system [citation.] ***
*** Thus, pursuant to section 34-85 of the School
Code [citation], it is unnecessary to employ the Gilliland test
to cases involving cruel, immoral, negligent, or criminal
conduct because the statute now makes this conduct
irremediable per se. Not only is no warning required for this
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type of conduct, but it is also unnecessary for the Board to
show that this type of conduct caused damage." Younge,
338 Ill. App. 3d at 533-34.
We agree with this interpretation of the Code's amendment. If, as the Code indicates,
conduct that is immoral, criminal or negligent is "deemed to be irremediable," it follows
that one need not apply the two-pronged Gilliland test. We now turn to the issue of
whether the record shows plaintiff's conduct was indeed "immoral" pursuant to the 1998
amendment to the Code. 2 Where, as here, a statute does not define a term, we
will assign such a term its ordinary and commonly understood meaning and may use a
dictionary for this endeavor. Cojeunaze Nursing Center v. Lumpkin, M.D., 260 Ill. App.
3d 1024, 1029-30 (1994). Here, the Code does not define "immoral" conduct. Immoral
conduct has been defined as "shameless" conduct showing "moral indifference to the
opinions of the good and respectable members of the community." Black's Law
Dictionary 751 (6th ed. 1990). 3 Applying this definition to the present case, we find that
2 This amendment applies only to schools in Chicago. 105 ILCS 5/34-1 (West
2004) ("This Article applies only to cities having a population exceeding 500,000."); see
also Watts v. Board of Education, School District No, 189, 125 Ill. App. 3d 532, 538
(1984) ("[T]he requirements set forth in 34B85 apply to schools in Chicago and do not
apply to schools outside Chicago").
3 As an aside, we reject plaintiff's argument that the
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Black's Law Dictionary may not be used as an aide in statutory
construction; more specifically, as an aide to define "immoral
conduct" in the Code. Illinois courts routinely refer to the
Black's Law Dictionary when determining the meaning of an
otherwise undefined word or phrase. See, e.g., People v. Ward,
215 Ill. 2d 317, 325 (2005) (relying on Black=s Law Dictionary
when determining the meaning of a statutory phrase); People v. Blair,
215 Ill. 2d 427, 439-45 (2005) (relying on Black=s Law Dictionary in defining legal terms
such as "waiver" and "res judicata"). We therefore see no reason why we may not
similarly employ the assistance of a dictionary when determining the meaning of
"immoral" in the Code.
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the record reveals an abundance of evidence demonstrating plaintiff engaged in
conduct one might properly characterize as immoral, perhaps even criminal, i.e., theft
by deception. See 720 ILCS 5/16-1(a)(2) (West 2002) ("A person commits theft when
he knowingly: *** [o]btains by deception control over property of the owner").
Initially, we note that the record shows that plaintiff wilfully misled both her
employer and NAEIR by falsely representing herself as an agent of CPS to obtain
goods from NAEIR while concealing such conduct from CPS. In response to plaintiff's
application, NAEIR requested additional information. Plaintiff then asked Dr. Moore, her
supervisor, to send a facsimile to NAEIR identifying her "organization" as the "Chicago
Public Schools, Office of Schools and Regions c/o Rita Ahmad." When Moore asked
plaintiff whether the facsimile was related to school business, plaintiff answered yes.
She did so while knowing she intended to use the product for her own business, rather
than for the benefit of the school. Plaintiff proceeded to place 16 orders of school
supplies from NAEIR worth a value of $33,979. Further, on at least 12 occasions she
named the "Chicago Public Schools/Office of Schools and Regions" as the organization
requesting merchandise, rather than naming her own business venture. Also on these
12 occasions, plaintiff used the membership number "04594 3001" on the NAEIR order
forms, which NAEIR had previously assigned to the Chicago Public Schools/Office of
Schools and Regions. Later, plaintiff informed John Connolly, a Board investigator
investigating plaintiff's relationship with NAEIR, that she did not want to be interviewed,
that the matter was private, and that the matter was none of the Chicago Public
School's business. She also refused to discuss this matter with Dr. Moore, her
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The foregoing evidence persuades us that plaintiff intentionally misled both NAEIR
and her employer as to the true nature of her intentions concerning the merchandise
she obtained from NAEIR, which, according to her own testimony, was to sell through
her business venture. We further concur with the hearing officer's conclusion that
plaintiff's claimed ignorance as to the permissible use of NAEIR products is
disingenuous, unreasonable, even feigned, in light of the clear admonishments
appearing on NAEIR's application form and numerous order forms that plaintiff signed.
Finally, plaintiff's later decision to donate her ill-gotten merchandise does not negate the
original immoral conduct plaintiff engaged in to acquire the merchandise. It is
completely unreasonable to believe that plaintiff acquired $33,979 worth of merchandise
for the purpose of donating it to the Salvation Army and other charities.
Although we are mindful that plaintiff apparently has had other "disciplinary"
problems which caused her to be removed from a classroom, this fact in no way
relieved plaintiff of her responsibility to act in an ethical fashion toward her employer.
We have on other occasions affirmed the dismissal of a tenured teacher who has
engaged in unethical conduct, although the offending conduct did not involve students
and did not occur on the school premises. See e.g., McCullough v. Illinois State Board
of Education, 204 Ill. App. 3d 1082, 1090 (1990) (affirming the dismissal of a teacher
with a criminal tax conviction and noting that "[w]here [a teacher] can no longer function
as a role model to impart basic societal values and qualities of good citizenship to his
students, his conduct is irremediable"); Chicago Board of Education v. Payne, 102 Ill.
-19- 1-04-3695 App. 3d 741, 748 (1981) (affirming the dismissal of teacher who pled guilty to
possessing marijuana, outside of school, and noting, "[w]e do not doubt that knowledge
of a teacher's involvement in illegalities such as possession of marijuana would have a
major deleterious effect upon the school system and would greatly impede that
individual's ability to adequately fulfill his role as perceived by the Board."); Scott v.
Board of Education of Alton, Community Unit School District No. 11, 20 Ill. App. 2d 292,
295-96 (1959) (teacher's dismissal for two public intoxication arrests occurring outside
of school affirmed where the court found the incidents were not in keeping with the
"dignity and leadership" the Board desired for teachers).
These cases stand for the proposition that where teachers indulge in conduct
that is immoral at best, and criminal or quasi-criminal at worst, they demonstrate a basic
character flaw which makes their future employment at the Board of Education, which is
partially responsible for molding the character of our youth, untenable. Although plaintiff
had previously been removed from direct contact with children, this incident makes clear
that she is not capable of modeling societal values for children and therefore could not
return to the classroom, should that option arise. She has also abused her current
assignment thereby making dismissal entirely appropriate. For these reasons, we
reverse the judgement of the circuit court and reinstate the decision of the hearing
officer.
CONCLUSION
We conclude that the Board's decision to terminate plaintiff for cause was supported
by the evidence. Accordingly, we reinstate the hearing officer's decision and reverse
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Reversed.
TULLY and FITZGERALD-SMITH JJ., concur.
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