Eveland v. Board of Education of Paris Union School District

92 N.E.2d 182, 340 Ill. App. 308

• Court: Appellate Court of Illinois
• Decided: May 2, 1950
• Docket: Gen. 9,691
• Status: Published

Opinions

Mr. Justice Dady

delivered the opinion of the court.

On July 8, 1949, a complaint was filed in the circuit court of Edgar county by appellee, Ernest W. Eveland, individually, and by appellees Charles P. Brown and Alan Jay Parrish, as taxpayers, on behalf of themselves and all others similarly situated, against defendants appellants, the Board of Education of the Paris Union School District, the members and officers thereof, and the superintendent of schools.

Count 1 thereof was by Eveland, and Count 2 was by the two taxpayers.

On July 9 such court, without notice to appellants and without requiring bond, ordered the temporary injunction hereafter referred to.

On August 4 such court entered an order denying a motion of appellants to vacate such injunction. Appellants thereupon brought this appeal from the order of July 9.

Count 1 of the complaint alleged that for about 14 years immediately prior to filing the complaint Eve-land had been continuously employed by the Board as a teacher of physical education and interscholastic basketball director in and for such high school, that on April 15, 1949, a contract was entered into whereby Eveland was hired by the Board for the year ending “1950,” which provided, among other things, that Eveland was “to teach, govern and conduct to the best of his ability the class or classes of the schools of such district to which he shall be assigned, ’ ’ for a stipulated salary, and provided, that in case he “should be dismissed ... by the board . . . for incompetency, cruelty, negligence, ... he should not be entitled to compensation after such dismissal . . . , ” and that on June 7 the Board, and a majority of the members thereof, sent to Eveland by registered mail a letter dated June 7, signed by the Board by the president and secretary and superintendent thereof, which, so far as is material, stated:

“We are directed by the Board ... to notify you that you are hereby dismissed as a teacher in the high school . . . , such dismissal to be effective November 2, 1949. The Board has taken this action for the following reasons: ’ ’

“1. You have failed to organize and conduct a program of physical education covering twelve activities for a minimum of twelve clock hours each, as required by the University of Illinois for acceptance of credits in courses of physical education for admission to the University of Illinois.”

“2. You have failed to comply with the requirements of this Board of Education that you organize and conduct a diversified program of physical education and, in particular, you have failed to comply with the instructions so given to you by The Board of Education of Paris Union School District #95 on May 11, 1948.”

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“6. You have frequently used loud and profane language in public while in charge of teams representing this school district in interscholastic athletic competitions. ’ ’

“7. You have caused the high school of this district to be put on probation by the E. I. League.”

“8. You have caused the high school of this district to be put on probation by the North Central Association of Colleges and Secondary Schools.”

“9. You have caused the high school of this district to be censured by the Illinois High School Association. ’ ’

“10. Your conduct on the athletic field in interscholastic competition toward officials, your indulgence in profanity, and your toleration of profanity on the part of the students, have brought the high school of this district into bad repute among the schools with which it competes and have caused schools to discontinue athletic relations with this high school, and others to threaten to do so.”

“11. You have frequently used profane and vulgar language in the presence of students of the high school of this district.”

“12. On April 21, 1949, you struck James Stephens, a student of the high school in this district, and used vulgar and profane language toward him. ’ ’

“13. In a second hour physical education class in the fall of 1948 you used vulgar and profane language toward William Welch, a student of this high school, and threatened him with physical violence.”

“14. When questioned by the Board of Education concerning the incidents of vulgar and profane language herein before specified, you falsely denied the use of such language.”

The letter concluded with this statement:

“All these matters have been repeatedly called to your attention without effect. Your refusal to comply with school policies amounts to insubordination. The Board does not believe that you are competent to conduct the type of physical education program which we wish to offer to the students in this community. It is the opinion of the Board . . . that the interest of the high school require that you be removed as a teacher for the reasons given. Your dismissal has been approved at a special meeting of the Board ... by a majority vote of all of the members of the Board.”

Count 1 then alleged that within ten days after June 7, Eveland wrote a letter to the Board, acknowledging receipt of such letter of June 7, in which he stated that:

“Without waiving any of my rights as to the legality of your present action . . . and without waiving any of my rights under the notice of employment for the coming school year, ... I do hereby respectfully request a hearing on the charges mentioned in your letter of June 7, 1949, and I do hereby request that such hearing be public.”

Such letter requested that all of the 14 charges, except No. 12, be made more specific. As to No. 12 the letter stated:

“This is a specific charge and I shall at the proper time and place be prepared to meet the same.”

Count 1 then alleged that all of the charges or reasons contained in the letter of June 7 were unfounded and untrue, that the alleged illegal and wrongful acts and threatened acts of the Board “subjects or threatens to subject this plaintiff to the loss of rights and benefits to which he would be or become entitled to” under the provisions of the Teachers’ Retirement System, “and will result in great and irreparable damage and injury to plaintiff and for which plaintiff has no relief, except in a court of equity,” that defendants are “threatening to hire or employ another interscholastic basketball director and physical education teacher in the place and stead of this plaintiff at great and substantial expense and in duplication of the services and duties which plaintiff is now under contract with said Board to do and perform, ” that at the date of a meeting of the Board on April 1, 1949, there was known to the Board and all members thereof all of the supposed reasons or grounds stated in the letter of June 7, with the exception of reason No. 12, and that with full knowledge of the supposed existence of said purported grounds or causes for removal or discharge of plaintiff, the Board took “the necessary action as above set forth to retain” Eveland in his employment.

Count 2 adopted the allegations of count 1, and then alleged that such two taxpayers were informed and believed and stated that the Board had refused Eve-land admission to the school gymnasium and locker room, that the Board threatened and intended to employ a full time teacher and interscholastic basketball director to replace Eveland, and was interviewing applicants for such position, that the Board on July 7, without right of authority, set for hearing on July 20, 1949, the alleged charges against Eveland, and had employed or threatened to employ counsel to represent the Board at such hearing, “all of which will result in illegal diversion of the funds and moneys” of the district, and in an increase of taxation. Count 2 then asked the same relief as prayed in Count 1.

Each count asked for the issuance of an injunction.

The order granting the temporary injunction enjoined the appellants from conducting any hearing under the notice of dismissal of June 7, from denying Eveland the salary and performance on his part of his said contract of employment, from spending public school funds for the hiring of any other person to perform the services “which it is alleged in said sworn complaint of the plaintiff . . . that Eveland is under contract to perform,” . . . and from “doing any act which will interfere with the status of the contractual rights of” Eveland with said Board, until the further order of the court.

Under section 6-36 of the School Code (ch. 122, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 123.610 et seq.]) the board of school directors has the power “to dismiss a teacher for incompetency, cruelty, negligence, immorality or other sufficient cause.”

Section 7-6 provides that the board of education “has all the duties and powers of school directors” as set forth in section 6-36.

Under section 7-13 the board “has the power to dismiss and remove any teacher, whenever, in its opinion, he is not qualified to teach, or whenever, in its opinion, the interests of the schools require it, subject, however, to the provisions of Sections 24-2 to 24-7, inclusive. ’ ’

Sections 24-2, 5, 6 and 7 are not applicable.

Section 24-3 provides that “Notwithstanding the entry upon contractual continued service, any teacher may be removed or dismissed for the reasons or causes provided in Sections 6-36 and 7-13, in the manner hereinafter provided. If the removal or dismissal results from the decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, .... If the dismissal or removal is for any other reason or cause it shall not become effective until approved by a majority vote of all members of the board upon specific charges and after a hearing, if a hearing is requested in writing by the teacher within ten days after the service of notice as herein provided. Written notice of such charges shall be served upon the teacher at least sixty days before the effective date of the dismissal or removal, which date shall be between November first and the date of the close of the school term. The hearing shall be held and the decision rendered within said period of sixty days but at least ten days shall intervene between the dates of the notice and hearing. . . . The teacher has the privilege of being present at the hearing with counsel and of cross-examining witnesses and may offer evidence and witnesses and present defenses to the charges. ... All testimony at any hearing shall be taken under oath. . . . The board shall cause a record of the proceedings to be kept and shall employ a competent reporter to take stenographic or stenotype notes of all of the testimony. ... If in the opinion of the board the interests of the school require it, the board may suspend the teacher pending the hearing, but if acquitted the teacher shall not suffer the loss of any salary by reason of the suspension. Before service of notice of charges on account of causes that may be deemed to be remediable, the teacher shall be given reasonable warning in waiting, stating specifically the causes which, if not removed, may result in charges. The decision of the board as to the existence of reasons or causes for dismissal or removal shall be final unless an appeal to the county superintendent is taken.” Section 2T-4 provides that “If after the hearing the teacher desires to appeal from the decision of the board, he must notify the county superintendent in writing, within ten days after the decision, stating a desire to have the ease reviewed by an appeal committee. The appeal committee shall be appointed by the county superintendent of schools and shall consist of three members, none of whom shall be a resident of the district in which the teacher teaches. One of the members shall be a public school teacher, one a school board member, and the third, who shall act as chairman, shall be neither a teacher nor a board member. . . .

“The appeal committee shall confine its review to the record of the proceedings before the board, or, if a transcript of the testimony is filed with the appeal committee, to the record and transcript. The hearing-before the appeal committee shall be public at the request of either the teacher or the board. The teacher and the board may be represented at the hearing- by counsel. If the appeal committee finds from the record and transcript or the record, that the notice of charges by the board to the teacher did not set forth any lawful reason or cause for discharge or that there was no substantial evidence to support any lawful reason or cause for discharge, the appeal committee shall reverse the decision of the board and thereupon give written notice to the board of its decision, whereupon the teacher shall be reinstated.”

Section 24-8 provides that the decision of the appeal committee shall be subject to review under the Administrative Review Act. (See ch. 110, Ill. Rev. Stat. par. 264 et seq. [Jones Ill. Stats. Ann. 104.094 (1) et seq.].)

Appellants contend that a court of equity has no jurisdiction to enjoin a Board of Education from dismissing a teacher or hiring a new teacher. Appellees contend that the rights of Eveland under the Teacher Tenure Act and the School Code are property rights, and that the protection of such property rights is within the jurisdiction of equity.

It is our opinion that, in passing- upon the propriety of the injunction order appealed from, it is not necessary for us to discuss or attempt to pass upon general questions of law and procedure in cases where a statutory remedy, such as we believe is given by the School Code, offers opportunity for adequate relief.

In Anderson v. Board of Education of School Dist. No. 91, 390 Ill. 412, 422, the court held that the Teacher Tenure Law is a statute creating a new liability and should be strictly construed in favor of persons sought to be subjected to its operation.

In City of Chicago v. O’Connell, 278 Ill. 591, 608, the court refused to enjoin the enforcement of an order of the Utilities Commission, saying: “The Public Utilities Act provides for a hearing before the commission upon that question, at which the person or corporation complained of is entitled to be heard and to introduce evidence, and if such person or corporation desires to contest the reasonableness of the order made by the commission after such hearing, he or it is by the Act allowed an appeal to the Circuit Court of Sangamon County and a further appeal to this court. The statutory method of reviewing the reasonableness of orders of the commission is exclusive.”

In Acme Printing Ink Co. v. Nudelman, 371 Ill. 217, the court said, “Where the statutory remedy offers opportunity for adequate relief it must be exhausted before equity will act.”

In Heinroth v. Kochersperger, 173 Ill. 205, 208, the court said, “It is fundamental that the aid of equity can only be invoked in the absence of an adequate legal remedy.” (See White v. City of Ottawa, 318 Ill. 463.)

In this connection appellees contend that the notice given by the letter of June 7 was a final dismissal instead of a notice of an intention to dismiss.

The statute does not state that before a dismissal can be made of a teacher who has entered upon contractual continued service, for the reasons specified in sections 6-36 and 7-13, there must be given any notice of the intention to dismiss, or of a hearing of such intention, but so far as is applicable, provides that, “any teacher may be removed or dismissed” for such specified reasons, but that such dismissal “shall not become effective until approved by a majority vote of all members of the Board upon specific charges and after a hearing, if a hearing is requested in writing by the teacher within ten days after the service of notice as herein provided(Sec. 24-3.) (Italics are ours.)

Appellees contend that, because of such italicized words, before the board could consider and determine in the first instance to remove Eveland the board had to give Eveland at least ten days ’ written notice of the specific charges. We do not agree with such contention. This court is not authorized to rewrite the school code by reading into it a provision that requires any such notice in the first instance.

In our opinion the procedure followed by the Board sufficiently conformed to the statute. Under the statute the dismissal of a teacher is first authorized by a majority vote of the whole board upon specific charges. That ends the matter, unless the teacher asks for a hearing. If he does ask for a hearing then the dismissal does not become effective unless thereafter approved by a majority vote of the whole board after the hearing so asked for.

Appellees contend that by section 24-3 “the legislature meant that the date for the service of the written charges against the teacher should be between November first and the date of the close of the school term.” We consider it sufficient to say that in our opinion the reference in the statute to a date between November first and the date of the close of the school term means and refers to ‘ ‘ the effective date of the dismissal or removal,” and does not refer to the date of the service of written charges.

As we read the brief of appellees, and as they allege in the complaint, it is their contention that all of the “causes” or charges in the Board’s letter of June 7 “may be deemed remediable,” and that therefore “before service of notice” of such charges the statute is mandatory that Eveland should have been “given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges. ’ ’

In Joyce v. Board of Education of Chicago, 325 Ill. App. 543, 551, 552, it is said “The question as to who shall determine what constitutes cause has frequently been presented to the Court, and the rule to be deduced from the authorities is that where the statute is silent as to what constitutes cause, the right to determine the question is in the tribunal having jurisdiction of the particular officer or employee.”

In Powell v. Board of Education, 97 Ill. 375, 387, the court said: “Directors are invested by law with large discretion in all matters pertaining to the management of schools. With the discretionary powers of officers, whether executive or judicial, courts have no rightful authority to interfere unless where there has been such abuse of their discretion as works palpable injustice or injury. ’ ’

It is our opinion that the statute gave the Board ample authority to determine in the first instance what causes were or were not remediable, and that the Board was well within its rights in apparently determining, in the first instance, and until a final hearing, that the charges, particularly when considered as a whole, were not remediable.

The complaint alleged that the “purported reasons or charges” were “in fact remediable” and were “untrue,” and that “the board without justification and in violation of Eveland’s contractual rights attempted ... to dismiss him . . . . ” Appellees now contend that the effect of the motion to dissolve was to admit such allegations. Such a motion admits facts well pleaded, but does not admit conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. (See Gar of alo Co. v. St. Mary’s Paching Co., 339 Ill. App. 412.) We do not believe that a teacher can circumvent the procedure provided for by the Teacher Tenure Act by merely alleging that the charges are untrue or remediable, or by similar allegations.

We do not' consider that any facts well pleaded in count 2 justified the issuance of such injunction. (See 47 Am. Jur. p. 308, § 15, and p. 365, § 94; also 56 C. J. p. 415, § 362.)

It is our opinion that the trial court erred in ordering the injunction in question.

Such order granting the injunction is therefore reversed, and the cause is remanded to the trial court with directions to vacate such injunction and for further proceedings consistent with this opinion.

Reversed and remanded with directions.

Wheat, P. J., concurs.