Aulwurm v. Board of Education

357 N.E.2d 1215, 43 Ill. App. 3d 963, 2 Ill. Dec. 772, 1976 Ill. App. LEXIS 3410

• Court: Appellate Court of Illinois
• Decided: November 17, 1976
• Docket: 76-25
• Status: Published

Opinions

Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

Plaintiff, Roy Aulwurm, filed a complaint for administrative review of the decision of defendant, Board of Education of Murphysboro Community Unit School District No. 186 of Jackson County, Illinois, dismissing him from employment. This decision, made on April 16,1975, after hearings held on March 18, 1975, and April 1, 1975, was confirmed by the circuit court of Jackson County in an order entered in December, 1975. Plaintiff brings this appeal to set aside the circuit court’s order and seeks reinstatement as a teacher.

Plaintiff, who was teaching during his third year at Murphysboro High School, had attained contractual continued service status (tenure) by virtue of the provisions of article 24 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par 24 — 11).

On January 16, 1975, the Board sent plaintiff a notice of dismissal effective immediately preceding the close of school on the last day of the school term ending in June, 1975. The reasons given in the Board’s letter informing plaintiff of its action were as follows:

“1. Your insubordination and failure to follow instructions of your supervisors;

2. Your failure to cooperate with your supervisors;

3. Your lack of preparation for your teaching duties and assignments;

4. Your lack of care for the physical school facilities of the District;

5. Your failure to comply with stated policies of the Board of Education;

6. Your failure to perform the teaching duties assigned to you;

7. Your failure to carry out tasks assigned to you by your supervisors;

8. In the opinion of the Board of Education the best interest of the school require your dismissal.”

A bill of particulars was requested and provided. It stated that plaintiff had failed to submit lesson plans and attendance forms as required by the school board, and had ignored specific requests for performance of these tasks on several occasions over a period of two years. Additionally, it was stated that plaintiff had failed to turn in needed reports dealing with student recognition as requested by his superiors. The bill of particulars also cited plaintiff’s failure to provide the students of the district an opportunity to participate in dramatics, music and voice by not giving a spring play though obligated to do so. Finally, in plaintiff*s duties as an athletic coach, he was cited with failing to cooperate with his supervisors, and being absent and late for team practices.

On March 19 and April 1,1975, hearings were held before the Board, at which times testimony was heard concerning the dismissal. At the first hearing, counsel for plaintiff moved to dismiss the action on the grounds that the Board lacked jurisdiction for the hearing, as all of the charges were remediable and the Board had failed to give written warnings and an opportunity to remedy the defects of his performance as required by section 24 — 12 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24— 12). The Board denied this motion. On April 15,1975, the Board adopted a resolution approving the dismissal of plaintiff. Attached to the resolution was a memorandum of decision in which the Board detailed its findings with respect to each charge made against plaintiff.

The first issue presented for our review is whether the School Board had been deprived of jurisdiction to act in this matter. The Illinois School Code provides that a tenured teacher may be dismissed only if the school board, when the charges against a teacher are remediable, first supplies him with a written warning:

“Before service of notice of charges on account of causes that are considered remediable, the teacher shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges.” (Ill. Rev. Stat. 1973, ch. 122, par. 24 — 12.)

If the causes are remediable, and the teacher is not given proper notice in writing, then the failure to provide the warnings required by the School Code deprives the Board of jurisdiction (Hutchison v. Board of Education, 32 Ill. App. 2d 247, 177 N.E.2d 420.) It is conceded that no written warnings were given in the instant case. The dispute concerns whether the causes that were the basis of the charges were remediable. Plaintiff contends they were, the Board determined from the beginning that they were not.

A board of education has discretion in the first instance to determine whether the causes constituting grounds for dismissal are remediable. (Wells v. Board of Education, 85 Ill. App. 2d 312, 230 N.E.2d 6; Werner v. Community Unit School District No. 4, 40 Ill. App. 2d 491, 190 N.E.2d 184.) In the instant case, the Board initially, in sending its notice of dismissal, determined that the causes were irremediable, and later, in approving plaintiff’s dismissal, made formal findings confirming its initial determination. The formal findings were rendered only after a bill of particulars was provided plaintiff and public hearings had been held. Mindful of its duty to accord plaintiff a fair hearing, the Board employed separate trial counsel to advise it as required by Miller v. Board of Education, 51 Ill. App. 2d 20, 200 N.E.2d 838. Plaintiff was represented by counsel at all times during the proceedings and was afforded his right to confront and cross-examine the witnesses against him. The Board considered the sworn testimony of plaintiffs witnesses. The attorney for the Board did not rule or attempt to rule on procedural or legal issues as in Miller, nor did any member of the Board testify against the teacher or serve as an advocate against him as in Eidenmiller v. Board of Education, 28 Ill. App. 2d 90, 170 N.E.2d 792. The Board supported its conclusions with lengthy findings of fact with respect to each charge brought. Seven of the charges were found to be sustained by the evidence and one was not.

We have recently discussed the standard of review to be employed in cases of this nature in Hagerstrom v. Clay City Community Unit School District No. 10, 36 Ill. App. 3d 1, 343 N.E.2d 249, and adhere to the standard adopted therein, as well as the direction of section 11 of the Administrative Review Act (Ill. Rev, Stat., ch. 110, par. 274) that “The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” A full and independent review of the record convinces us that the evidence presented justified the Board’s finding that the causes supporting charges against plaintiff were not remediable. The test for determining remediability has been stated as follows:

“For the Board to have found the causes irremediable under current interpretation of the statute, they must find that damage had been done to the students, the faculty or the school itself, and the damage 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, 28 Ill. App. 3d 119, 123, 328 N.E.2d 23, 27.

With respect to each of the charges that/the Board determined to be sustained by the evidence, the Board specifically found that the causes for each were nonremediable and detrimental to the school, the students, and the faculty; findings which have substántial foundation in the record. While some of the causes underlying the charges against plaintiff, when considered singly and separately from the other causes, may well have been remediable in nature, the combination of the causes created a result of a different nature; one which could not have been corrected even though warnings had been given by plaintiffs superiors when they learned of each individual cause. Paprocki v. Board of Education, 31 Ill. App. 3d 112, 334 N.E.2d 841, cited by plaintiff, is distinguishable, we believe, from the case at bar. In Paprocki it was undisputed that all the causes were at one time remediable and the School Board found them to have become irremediable only because they continued over a long period of time. The court, however, reversed the Board’s dismissal of the plaintiff because it had not sent the statutorily required written notice to the plaintiff. The court held that the Board could not avoid the statutory mandate of notice through the simple passage of time. In the case at bar, unlike Paprocki, plaintiffs course of conduct over a long period of time, that culminated in the charges of failure to follow the instructions of his supervisors and failure to comply with the stated policies of defendant Board, exhibited a defiant attitude in plaintiff in the nature of a consistent challenge to authority, which was itself irremediable. (See Glover v. Board of Education, 21 Ill. App. 3d 1053, 316 N.E.2d 534; McLain v. Board of Education, 36 Ill. App. 2d 143, 183 N.E.2d 7.) Irreparable damage to the school had been done by the time the letter of dismissal had been sent and, we believe, would not have been avoided before that time. The tenure provisions of the School Code are not intended to preclude dismissal where a teacher’s conduct is detrimental to the operation of the school. (Lombardo v. Board of Education, 100 Ill. App. 2d 108, 241 N.E.2d 495.) Consequently, we hold that the Board was not deprived of jurisdiction by its failure to give plaintiff written warnings before causing charges to be brought against the teacher.

Plaintiff next contends that the decision of the Board was against the manifest weight of the evidence. Our independent review of the record leads us to conclude that the decision made by the Board was supported by the evidence. The Board heard the testimony of 15 witnesses and considered numerous exhibits. The most forceful and authoritative testimony regarding the grounds for dismissal of plaintiff was given by Theodore Schoberg, an independent evaluator employed by the Board. Mr. Schoberg, who had previously taught at both the college and high school levels, had been a superintendent of schools and had coached, testified- that he had observed plaintiff’s teaching many times over three school years. He gave many instances of plaintiff’s lack of preparation for his classes and poor teaching techniques. The contents of the evaluation reports by Schoberg were always communicated to plaintiff and his supervisors. Schoberg stated that plaintiff had failed to heed most of the suggestions he had made to him to help him improve his teaching. In Schoberg’s opinion, the plaintiff’s lack of preparation and planning made for “a very ordinary or substandard performance.”

Plaintiff himself testified that he knew of the Board’s policy requiring the preparation of lesson plans and failed to comply with it on several occasions, even after numerous written and oral requests to do so. Plaintiff also admitted that he knew of the policy concerning the recording of absences of students who failed to attend classes and that he deliberately did not do this in accordance with the policy. Plaintiff turned in absence reports only when specifically asked to do so. It is undisputed that plaintiff was notified to provide the school administration with reports that formed the basis for student awards, and knowingly failed to submit them. The Board was entitled to give little weight to plaintiff’s excuse that he did not know any of the students eligible for the awards. In addition, ample evidence exists in the record of plaintiff”s negligence in failing to give the student play which he was assigned to produce, thus denying the students a chance to participate in a musical-dramatic event. Evidence was presented tending to show that plaintiff had been derelict in his duties as football and wrestling coach, being tardy or absent on several occasions for both practices and games. Although plaintiff presented reasonable excuses for some of his absences, there was sufficient evidence to sustain the Board’s findings with respect to this charge. Finally, the evidence shows that plaintiff received an assignment to prepare a syllabus for his classes on communication and poetry and failed to carry it out. The decision of the school board dismissing plaintiff was not contrary to the manifest weight of the evidence, and has substantial foundation in the record.

For all of the foregoing reasons, we affirm the judgment of the circuit court of Jackson County.

Affirmed.

KARNS, P. J., concurs.