Buckellew v. Board of Education

575 N.E.2d 556, 215 Ill. App. 3d 506, 159 Ill. Dec. 58, 1991 Ill. App. LEXIS 1033
CourtAppellate Court of Illinois
DecidedJune 18, 1991
DocketNo. 4—90—0649
StatusPublished
Cited by43 cases

This text of 575 N.E.2d 556 (Buckellew v. Board of Education) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buckellew v. Board of Education, 575 N.E.2d 556, 215 Ill. App. 3d 506, 159 Ill. Dec. 58, 1991 Ill. App. LEXIS 1033 (Ill. Ct. App. 1991).

Opinions

JUSTICE SPITZ

delivered the opinion of the court:

Plaintiff Marvin Buckellew brought this action for a writ of mandamus and for declaratory judgment, contending he was protected as an educational support personnel employee under section 10 — 23.5 of the School Code (Code) (Ill. Rev. Stat. 1989, ch. 122, par. 10 — 23.5) from the reduction in hours effected by defendant school district. The circuit court of Vermilion County granted defendant school district’s motion for summary judgment (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005), and plaintiff appeals.

Plaintiff was employed as a custodian by defendant Board of Education of Georgetown-Ridge Farm Community Unit School District No. 4 (District). Plaintiff began working for the District in 1984, as part of an Illinois Department of Public Aid work-experience program in which the District participated. By 1987, plaintiff was no longer part of this public aid program, but worked directly for the District. During this time, plaintiff worked the following hours: 1985 — 133 hours; 1986 — 1,465 regular hours and 34 overtime hours; 1987 — 2,033 regular hours and 68 overtime hours; 1988— 2,097 regular hours and 38 overtime hours; and 1989 — 1,928 regular hours and 84 overtime hours.

Testimony by the school superintendent and maintenance supervisor indicated plaintiff was not salaried, under express contractual relationship with the District, or subject to a collective-bargaining agreement, but was paid by the hour on a “day-to-day” and “as needed” basis. Although plaintiff consistently worked eight-hour days during 1987, 1988, and up to October 1989, he was still considered by the District to be a substitute or part-time employee. In minutes of school board meetings, plaintiff was never listed as a contractual or full-time employee, but appeared only on the non-certified substitute employee lists. While so employed, plaintiff was eligible for no employee benefits other than workers’ compensation. In an undated letter plaintiff wrote to the District’s superintendent, he apparently acknowledged he was not a full-time employee, stating: “I would like to have a full-time job.”

On October 5, 1989, plaintiff was given a hand-delivered notice that beginning October 10, his regular working hours would run from 11 a.m. to 3 p.m. Plaintiff also received notice on March 12, 1990, that he would be honorably dismissed from employment with the District the following school year.

On February 2, 1990, plaintiff filed a petition for writ of mandamus and complaint for declaratory judgment, asking that he be reinstated to a “full-time” position and awarded damages equal to the difference between what he had been paid for working reduced hours since October 10, 1989, and what he would have been paid as a full-time employee. The circuit court granted summary judgment for the District, finding section 10 — 23.5 of the Code did not apply to plaintiff, due to his status as a nonpermanent employee, and therefore, the plaintiff was not entitled to the notice set forth in the statute.

Section 10 — 23.5 of the Code provides in pertinent part:

“Educational support personnel employees. *** If an educational support personnel employee is removed or dismissed as a result of a decision of the school board to decrease the number of educational support personnel employees employed by the board or to discontinue some particular type of educational support service, written notice shall be given the employee by registered mail at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reason therefor.” Ill. Rev. Stat. 1987, ch. 122, par. 10 — 23.5.

On appeal, plaintiff contests only his reduction in hours effective from October 1989 through the end of the 1989-90 school year, which he claims was made in violation of the 60-day notice requirement; he does not challenge the propriety of the honorable dismissal which followed. Plaintiff contends that since he worked eight-hour days for at least two years prior to the reduction notice, he was a full-time educational support personnel employee (despite the classification given to him by the school board) and, thus, statutory notice applied to him. Defendant argues this statutory notice does not apply to plaintiff since (1) he was neither removed nor dismissed on October 10, 1989, and (2) plaintiff was a part-time, substitute, and temporary employee.

“The primary rule of statutory construction is to ascertain and effectuate the legislature’s intent in drafting that statute.” (International Bureau of Fraud Control, Ltd. v. Clayton (1989), 188 Ill. App. 3d 703, 710, 544 N.E.2d 416, 421.) The term “educational support personnel” is not defined in the Code, but during debates concerning the amendment which added this language, i.e., the 60-day notice provision (Pub. Act 85 — 647, eff. Sept. 20, 1987 (1987 Ill. Laws 2748)), the sponsor stated that “[ejducational service personnel are the more than fifty thousand public school employees who serve in the capacity of secretaries, custodians, teacher aides, librarians and others.” (85th Ill. Gen. Assem., Senate Proceedings, May 22, 1987, at 259 (statements of Senator Jacobs).) It thus appears that a custodian may fall within the designation of educational support personnel employee for purposes of the Code.

The record nevertheless shows that, despite his having worked an eight-hour day for several years, plaintiff received no employment-related benefits, was under no contract, was paid on a different cycle than contract personnel, and appeared on the District’s list of substitute custodians. The relationship that existed between the plaintiff and the District was, at best, an implied contract at will, wherein plaintiff served on an “as needed” basis, and could stop working for the District at any time; the terms of this employment could likewise be modified at will. (Ohlemeier v. Community Consolidated School District No. 90 (1987), 151 Ill. App. 3d 710, 716, 502 N.E.2d 1312, 1317.) Plaintiff remained a temporary and substitute employee irrespective of the number of hours he worked.

The sole issue before us is whether hours of part-time, substitute, or temporary educational support personnel employees may be reduced without the statutory notice described in section 10 — 23.5 of the Code. First of all, since this is a question of law and no genuine issue of material fact exists, this is an appropriate case for the issuance of a summary judgment. (Johnson v. American Family Mutual Insurance Co. (1990), 193 Ill. App. 3d 794, 550 N.E.2d 668.) Second, even though plaintiff asks this court to apply a rule of statutory construction to interpret the statute in question, judicial construction of a statute is necessary only when the statute is unclear or ambiguous. (Bergeson v. Mullinix (1948), 399 Ill. 470, 78 N.E.2d 297; 34 Ill. L. & Prac. Statutes §101 (1958).) This rule is applied even though the language may be considered unwise or to cause a serious impairment to the statute as a whole. (In re Jankowski (1976), 38 Ill. App.

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Cite This Page — Counsel Stack

Bluebook (online)
575 N.E.2d 556, 215 Ill. App. 3d 506, 159 Ill. Dec. 58, 1991 Ill. App. LEXIS 1033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckellew-v-board-of-education-illappct-1991.