Board of Education v. State Board of Education

No. 2--96--1230

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

BOARD OF EDUCATION OF ROUND ) Appeal from the Circuit Court
LAKE AREA SCHOOLS, COMMUNITY ) of Lake County.
UNIT SCHOOL DISTRICT NO. 116, )
) No. 95--MR--529
Plaintiff-Appellant, )
)
v. )
)
THE STATE BOARD OF EDUCATION, )
JOHN F. ROZNER, and BARBARA )
COHN, ) Honorable
) Jack Hoogasian,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________

JUSTICE HUTCHINSON delivered the opinion of the court:

Defendant, Barbara Cohn, was discharged from her position as
a school teacher by plaintiff, the Board of Education of Round Lake
Area Schools, Community Unit School District No. 116 (the Board),
for insubordination and abandoning her duties. After an
administrative hearing, John F. Rozner, the hearing officer
appointed by the Illinois State Board of Education (the State
Board), found Cohn's conduct remediable, reversed her discharge,
and ordered her reinstatement as a school teacher. The Board
sought administrative review in the circuit court of Lake County,
naming the State Board and Rozner as additional defendants. The
trial court affirmed Rozner's conclusions, and plaintiff timely
appealed. On appeal, plaintiff contends that Rozner's conclusions
were against the manifest weight of the evidence in that (1)
defendant Cohn's actions were irremediable because she was
insubordinate and abandoned her duties, and (2) defendant Cohn's
due process rights were not violated. We affirm.
The administrative hearing record, including Rozner's
findings, reveals the following salient facts. Prior to her
dismissal, defendant Cohn was a tenured teacher for Round Lake Area
Community School District No. 116. She taught in the district for
the last six years and has approximately 35 years' teaching
experience. In August 1994 she began teaching students who were
labeled as having learning disabilities.
Cohn is not a "regular" classroom teacher. Students who meet
certain criteria are assigned by their regular classroom teachers
to meet with Cohn for short periods during the school day. These
students remained in their regular classrooms and fulfilled their
regular class schedules, except when their teachers excused them to
report for Cohn's instruction. On occasions when Cohn was
unavailable, the students remained with their regular classroom
teachers in their regular classrooms.
In spring 1994 the Board issued its school calendar for the
1994-95 school year. School sessions were scheduled to commence in
August 1994 and end early in June 1995. A two-week winter break
was originally scheduled to begin on December 19, 1994; a spring
break was also scheduled in March.
On October 17, 1994, the Education Association of Round
Lake/IEA-NEA (the Association) went on strike. On December 11,
1994, a strike settlement was reached, and the parties ratified the
settlement on December 12. As part of the settlement agreement,
the school calendar was modified, eliminating the winter and spring
breaks. The amended calendar was distributed to personnel on
December 12.
Just prior to the ratification meeting, Jeanne Kearby, the
Association's grievance chairperson, met with Mary Davis, the
superintendent. Their discussion centered on how to resolve the
issue of teachers who had scheduled vacations during the winter
break based on the original calendar for the school year. Davis
agreed to consider their requests for leave if they came to see her
and gave her proper documentation. Later, Davis held a meeting
with all of the principals in the district. She informed them that
any requests for leaves of absence should be forwarded to her for
specific approval; no principals were to approve leaves on their
own.
On December 13, 1994, Cohn met with her principal, Ron Kruis,
and discussed her trip scheduled for the week beginning December
19. Kruis suggested she draft a letter to Davis, which she did.
Later that afternoon Kruis suggested to Cohn that she might need to
provide Davis with documentation. On December 14, Cohn brought
photocopies of her tickets to forward to Davis.
On December 15, Davis wrote to Cohn, stating that her leave
would not be approved unless she showed "verification that booking
was made prior to the school year." On December 16, Cohn submitted
to Davis additional documents in support of Cohn's contention that
October 3 was the date of booking. The same day, Davis wrote to
Cohn, informing her that her leave request was denied because her
"travel arrangements were finalized November 11, 1994," and that
should Cohn continue with her plans, Davis would consider her
actions insubordinate and "proper administrative discipline would
follow."
Cohn prepared lesson plans to be used in her absence and
called the school clerk, Donna Dayment, to arrange for a substitute
teacher. Dayment advised her that she had no authority to arrange
for a substitute unless her leave was approved by Davis.
Subsequently, Dayment apprised Davis of the conversation, and Davis
instructed her not to arrange for a substitute.
Cohn left on Saturday, December 17, 1994, and reported back to
work on December 26. On December 19, 20, and 21, neither Kruis nor
Davis secured a substitute for Cohn; Davis arranged for a
substitute for Cohn for the remainder of the week.
Cohn returned to work on Monday, December 26, 1994. At the
request of Kruis, Cohn filled in as a substitute teacher instead of
seeing her assigned students. On December 29, 1994, Cohn sent
Davis further documentation showing that the booking date for her
travel was October 3, 1994. On January 6, 1995, Cohn received a
memorandum from Davis, stating that her leave remained unapproved
and that further action would be taken.
On January 13, 1995, Cohn received a certified letter, dated
January 12, 1995, from James Hult, the president of the Board. The
letter contained a "Notice of Charges," charging her with
insubordination and abandonment for allegedly disobeying orders
from Davis and Kruis regarding her leave during the week of
December 19, 1994. The letter stated that the charges would be
considered before the Board on January 19, 1995, and that Cohn
would be "afforded the opportunity in Closed Session to respond to
the specific charges." The letter also stated that she could
appear with her attorney or other representative.
Cohn showed the letter to Kearby, who advised her not to
attend the meeting and that she and the Association would represent
her interests. On January 19, 1995, the Board met, and after a
public session, they moved to the closed session. At this time,
Kearby and two other Association officials attempted to participate
in the closed session on behalf of Cohn. They were precluded from
doing so, however, by Hult and Robert Trevarthen, the Board's
attorney, who expected Cohn to be present. Hult and Trevarthen
informed the Association officials that they would not be permitted
to participate in the closed session without Cohn's presence or
authorization of their representation. The Board voted to dismiss
Cohn. Cohn made a timely request for a hearing officer proceeding
pursuant to the School Code (105 ILCS 5/1--1 et seq. (West 1996)).
Cohn's posttermination hearing commenced on May 18, 1995. On
October 2, 1995, Rozner made the following conclusions:
"[The Association representatives] should have ascertained the
scope of the vacation problem *** before they approached
[Davis]. This issue was of such significant financial impact
to the individual teacher that it should have been dealt with
in a formal process with a memorandum of agreement ***.
[Davis] did not reduce her so-called understanding with
Kearby to writing with copies to the Association. Had that
been done we wouldn't have a conflict as to the content of the
agreement, or its administration.
Communication with the [p]rincipals *** was *** less than
adequate***; additionally, there was no evidence that the
principals communicated the so-called vacation leave policy to
the teachers.
Even *** Hult[] was confused as to what the vacation
leave policy was ***, and this was long after he *** voted to
terminate Cohn.
The administration of the vacation leave policy was
inconsistent. Some teachers were granted leaves, some were
initially refused and then granted *** leaves ***. Others
were allowed to mix personal leave days with unpaid days ***.
[Davis] *** was not available to deal with these teacher
requests and interviews each day during the short period of
time preceding the holiday. ***
* * *
With regard to the Board hearing on January 19, 1995
there was no requirement the [sic] Cohn be present at the
hearing to consider her actions, and possible dismissal. ***
Nor was there a requirement that either or both of these
parties had to have evidence that they were authorized by Cohn
to represent her.
The three representatives *** were present in the hearing
room for the purpose of representing Cohn before the Board
***. They were asked to leave by [Davis] so the Board could
conduct some other personnel issues first. The three got up
and left the room. *** [T]hey were not allowed to return to
the Board's Executive Session. As a result the Board only
heard [Davis'] version of the charges. The Board then
adjourned the closed session and went back into the public
session where they unanimously approved the resolution
discharging Cohn.
The action of [Hult] and [Trevarthen] clearly smack[s] of
union animus. They were told that the Association
representatives were there to represent Cohn in this hearing.
They certainly knew that these people had a right to be there
but yet they were denied the opportunity to represent their
member.
In the process of denying the Association the right to
represent Cohn the Board also denied Cohn her due process
rights.
Had they conducted a proper hearing the Board would have
had the opportunity to hear: that Cohn had prepared lesson
plans for the substitute teacher to use during her absence,
that [Davis] had instructed [Dayment] not to arrange for a
substitute for Cohn, that [Kruis] did not call for a
substitute ***, that the L.D. children remained in their
regular classrooms during these days, that *** when [Davis]
returned *** she was surprised that a substitute had not been
secured blaming *** Kruis even though she had previously
instructed [Dayment] not to respond to Cohn's request for the
substitute. The Board would have found that [Kruis] and
[Davis] shared the blame for not providing a substitute on
those first three days of the week.
The Board would have found that Cohn was welcomed back by
Kruis, and that she continued to work from the date of her
return, December 26, to January 20, even filling in as a
substitute fifth grade teacher, certainly evidence that she
was not considered guilty of an irremedialble [sic] offense.
The Board may have concluded as I have that this was not
a case of wilful defiance but rather the product of a confused
set of rules, and values. ***
The Board would have found that *** at least thirty
teachers were granted personal days preceding and following
the Christmas and New Year holidays and were replaced by
substitutes. They may have concluded that the issue of
regular teachers being present in their class rooms [sic]
every day during these few weeks following the resumption of
the school term was not as critical as [Davis] stated.
To deprive this teacher of her job, to cause her the
embarrassment of being discharged without giving her an
opportunity to have a full and thorough hearing by the Board
prior to discharge is an inexcusable denial of her
constitutional due process rights."
Rozner ordered that Cohn be reinstated with full back pay and
benefits from the date of her discharge, January 20, 1995. The
Board appealed to the circuit court of Lake County, which affirmed
Rozner's findings. The Board now timely appeals to this court.
This court has a highly circumscribed role when reviewing an
administrative appeal of a circuit court order affirming the State
Board. Our standard of review for a hearing officer's decision is
governed by the Administrative Review Law (735 ILCS 5/3--101 et
seq. (West 1996)). The Administrative Review Law provides that our
review extends to all questions of law and fact presented by the
entire record. Abrahamson v. Illinois Department of Professional
Regulation, 153 Ill. 2d 76, 88 (1992). The statute further
mandates that an administrative agency's factual findings are "held
to be prima facie true and correct." 735 ILCS 5/3--110 (West
1996); see also Antonelli v. Board of Trustees of the Hillside
Police Pension Board, 287 Ill. App. 3d 348, 353 (1997); Oregon
Community Unit School District No. 220 v. Property Tax Appeal
Board, 285 Ill. App. 3d 170, 174-75 (1996).
Our role as an appellate court is to review the administrative
decision, not the circuit court decision. Denton v. Civil Service
Comm'n, 277 Ill. App. 3d 770, 773 (1996). We give no deference to
the determination of the trial court when it sits in administrative
review. Pontiac Lodge No. 294 v. Department of Revenue, 243 Ill.
App. 3d 186, 192 (1993).
On review, we are prohibited from reweighing the evidence or
making an independent determination of the facts. Abrahamson, 153 Ill. 2d at 88; Oregon Community Unit School District No. 220, 285
Ill. App. 3d at 175. Rather, we are limited to ascertaining
whether the factual findings of the hearing officer are against the
manifest weight of the evidence. Abrahamson, 153 Ill. 2d at 88;
Golab v. Department of Employment Security, 281 Ill. App. 3d 108,
112 (1996). Factual findings of the State Board are against the
manifest weight of the evidence only where all reasonable and
unbiased persons would agree it is clearly evident the State Board
erred and should have reached the opposite conclusion. See La
Salle Partners, Inc. v. Illinois Property Tax Appeal Board, 269
Ill. App. 3d 621, 632 (1995).
We are not justified in reversing findings made by an
administrative agency even if an opposite conclusion is reasonable
or given that we might have ruled differently. Abrahamson, 153 Ill. 2d at 88; Teil v. City of Chicago, 284 Ill. App. 3d 167, 171
(1996). We may not substitute our judgment for that of the
administrative agency. Abrahamson, 153 Ill. 2d at 88. In making
our determination, we may not reevaluate the credibility of the
witnesses who testified before the State Board. See Trayling v.
Board of Fire & Police Commissioners, 273 Ill. App. 3d 1, 9 (1995).
Finally, if the record contains evidence supporting the agency's
decision, it should be affirmed. Abrahamson, 153 Ill. 2d at 88,
citing Commonwealth Edison Co. v. Property Tax Appeal Board, 102 Ill. 2d 443, 467 (1984).
Conversely, an administrative agency's determinations of law
are not accorded the same deference as its findings of fact.
Oregon Community Unit School District No. 220, 285 Ill. App. 3d at
175, citing Perto v. Board of Review, 274 Ill. App. 3d 485, 490
(1995). An administrative agency's interpretation of a statute, or
its finding on a question of law, is not binding on this court.
Abrahamson, 153 Ill. 2d at 97, citing City of Decatur v. American
Federation of State, County, & Municipal Employees, Local 268, 122 Ill. 2d 353, 361 (1988). Thus, our review of legal issues is de
novo. Du Page County Board of Review v. Property Tax Appeal Board,
284 Ill. App. 3d 649, 653 (1996). However, substantial weight and
deference will be accorded to the administrative agency in its
interpretation of a particular statute. Abrahamson, 153 Ill. 2d at
97-98.
Therefore, when presented with a mixed question of law and
fact, we must first determine whether the findings of fact are
against the manifest weight of the evidence. Abrahamson, 153 Ill. 2d at 98; Oregon Community Unit School District No. 220, 285 Ill.
App. 3d at 175. Once that determination has been made, we must
engage in our own independent analysis in applying those facts to
the questions of law. Oregon Community Unit School District No.
220, 285 Ill. App. 3d at 175-76. We have reviewed the record,
including the transcript of the hearing, and determine that
Rozner's findings of fact are not against the manifest weight of
the evidence.
In the present case, the Board dismissed Cohn on a "for cause"
basis. In Illinois, no school teacher in contractual continued
service may be removed from employment except for cause. See 105
ILCS 5/10--22.4 (West 1996). "Cause" connotes some substantial
shortcoming rendering continuance in employment detrimental to
discipline and effectiveness of service; cause is something which
the law and sound public opinion recognize as a good reason for the
teacher to no longer occupy her or his position. Chicago Board of
Education v. Payne, 102 Ill. App. 3d 741, 747 (1981). Section 24--
12 of the School Code (105 ILCS 5/24--12 (West 1996)) dictates the
circumstances under which teachers in contractual continued service
may be dismissed. An adjunct of the power to dismiss a tenured
teacher is the school board's corresponding duty to make the
initial determination of whether the cause is remediable or grounds
for dismissal. deOliveira v. State Board of Education, 158 Ill.
App. 3d 111, 121 (1987).
Insubordination is grounds for dismissal of a teacher. See
Board of Education v. Harris, 218 Ill. App. 3d 1017 (1991); Hazel
Crest Federation of Teachers, Local 2077 v. Board of Education of
School District 152«, 206 Ill. App. 3d 69 (1990). In an employment
relationship, insubordination "imports a wilful or intentional
disregard of the lawful and reasonable instructions of the
employer." Black's Law Dictionary 801 (6th ed. 1990). It
therefore follows that the instructions, or rule, of the employer
must first be reasonable. Once the rule is determined to be
reasonable, then it must be determined whether the breach or
violation of the rule was wilful or intentional or their equivalent
(cf. Pesce v. Board of Review, 161 Ill. App. 3d 879, 882 (1987),
citing Jackson v. Board of Review, 105 Ill. 2d 501, 512-13 (1985)),
because not every violation of a rule will be tantamount to
insubordination (cf. Caterpillar, Inc. v. Fehrenbacher, 286 Ill.
App. 3d 614, 622-23 (1997)).
In assessing whether a rule is reasonable, reviewing courts
consider many factors, including the rule's relationship to
workplace efficiency, safety, or discipline; its clarity or
precision; and the extent to which it infringes upon an employee's
legally protected behavior. Cf. Caterpillar, Inc., 286 Ill. App.
3d at 621-22. There must be some nexus between the rule and the
employment. A rule is not reasonable unless it provides guidelines
that are or should be known by the employee. Garner v. Department
of Employment Security, 269 Ill. App. 3d 370, 375-76 (1995); cf.
McElroy v. Cook County, 281 Ill. App. 3d 1038 (1996); McAllister v.
Board of Review, 263 Ill. App. 3d 207 (1994). Further, warnings or
disciplinary measures contemplated for violations of the rule must
be both explicit and specific to the conduct for which an employee
would be reprimanded. Cf. Garner, 269 Ill. App. 3d at 376. Logic
and common sense dictate that one cannot be insubordinate for
failing to follow an unreasonable rule.
The Board contends that the hearing officer erred in not
upholding Cohn's discharge on the basis of insubordination. The
Board argues that Cohn's one-week abandonment of her teaching
duties amounted to insubordination. The hearing officer found,
inter alia, that Davis' leave policy was never reduced to writing,
was ineffectively, if at all, communicated to the teachers, and was
inconsistently administered. The hearing officer also considered
the events leading up to and after Cohn's leave of absence and
concluded that "this was not a case of wilful defiance but rather
the product of a confused set of rules, and values." We cannot
adduce from the record any evidence of Cohn's cognizance of Davis'
leave policy as Davis stated it to be, nor can we glean any
evidence of explicit or specific provisions regarding discipline
for violations of the leave policy.
Here, Cohn was not charged with failing to follow proper
procedures. She was charged with insubordination for failing to
obey a rule imposed by Davis. Since we hold, as a matter of law,
that Davis' parameters of policy and procedure for taking leaves
during the previously scheduled winter break do not constitute a
reasonable rule, it necessarily follows that the decision of the
Board finding that Cohn was insubordinate for violating the rule
was erroneous. The hearing officer's finding that Cohn was not
insubordinate is not against the manifest weight of the evidence.
The Board also argues that Cohn's conduct was irremediable.
The test for determining whether conduct is irremediable was set
forth by our supreme court in Gilliland v. Board of Education of
Pleasant View Consolidated School District No. 622, 67 Ill. 2d 143
(1977), superseded by statute as stated in Board of Education v.
Harris, 218 Ill. App. 3d 1017 (1991). In Gilliland, our supreme
court affirmed the dismissal of a public school teacher who, for a
four-year period, violated school board regulations. Gilliland set
forth a two-pronged test for irremediability: whether the
teacher's conduct (1) has caused significant damage to students,
the faculty, or the school, and (2) could not have been corrected
had superiors warned the individual charged. Gilliland, 67 Ill. 2d
at 153; see also Board of Education of School District No. 131 v.
State Board of Education, 99 Ill. 2d 111 (1983).
In the present case, the Board was required to show that
Cohn's conduct caused significant damage to students, faculty, or
the school. The hearing officer, Rozner, found that Cohn was not
"guilty of an [irremediable] offense." Rozner noted that Kruis
welcomed back Cohn, that Cohn worked continuously until the date of
her termination, and substituted for another teacher when she came
back from her leave. Although not so expressly stated by Rozner,
the Board apparently failed to show significant damage to the
students, faculty, or the school as a result of Cohn's actions.
Rozner, instead, looked at the underlying causes of confusion in
determining that Cohn was not wilfully defiant. Rozner also cited
to the record, which in fact discloses numerous examples of leaves
taken by teachers during the winter break period and the resulting
administrative action. The record further discloses that Davis'
leave policy was never reduced to any type of writing or
disseminated to the teachers. We do not believe that a tenured
teacher who unknowingly fails to conform to a "spur-of-the-moment"
oral policy reaches the level of conduct our legislature envisioned
when it drafted section 10--22.4 of the School Code. We agree that
the Board failed in its burden to prove damage to the school,
faculty, or students.
Plaintiff must also demonstrate that defendant Cohn's conduct
could not have been corrected had she been warned. Plaintiff
contends that Cohn was warned a number of times by Davis, through
their written exchanges, that Cohn's conduct of going on an
unapproved leave would result in discipline. The hearing officer
stated that the discussion between Kearby and Davis regarding
leaves of absence during the winter break period occurred on
December 12, 1994. The time frame at issue is roughly one week.
Arguably, Cohn's actions could have been altered--theoretically, it
is possible she could have canceled the trip that she had arranged
more than two months earlier. However, the heart of the policy,
its actual contents, was never effectively communicated to the
principals and teachers. If Cohn was never informed of the actual
contents of the leave policy, as Davis argued them to be, then it
cannot be maintained that her conduct could have been altered to
conform to those contents, given the one-week time frame involved.
Therefore, the opposite conclusion is not clearly evident. We hold
that the hearing officer's finding, that Cohn was not guilty of an
irremediable offense, is not against the manifest weight of the
evidence.
Plaintiff's second contention on appeal states that defendant
Cohn's due process rights were not violated. The hearing officer,
Rozner, determined that Cohn's due process rights were violated
when the Board would not allow the three Association
representatives into the closed session hearing. Plaintiff argues
that Cohn received her notice of the charges against her on January
13, 1995, and was afforded an opportunity to respond on January 19.
Plaintiff argues that it had no duty to allow the Association
representatives into the closed session meeting because they were
not the subject of an employment termination. Although this issue
was presented, the trial court relied on the first issue in
affirming, without passing on the merits of the due process claim.
A tenured teacher has a property interest in continued
employment that is protected by the due process clause of the
fourteenth amendment. Board of Education v. Weed, 281 Ill. App.
3d 1010, 1018 (1996), citing Dusanek v. Hannon, 677 F.2d 538, 542
(7th Cir. 1982). The due process clause of the fourteenth
amendment provides that life, liberty, and property cannot be
deprived without due process. U.S. Const., amend. XIV. Section 2
of article I of the Illinois constitution similarly provides that
"[n]o person shall be deprived of life, liberty or property without
due process of law nor be denied the equal protection of the laws."
Ill. Const. 1970, art. I, 2. Administrative proceedings are
governed by the fundamental principles and requirements of due
process of law. Abrahamson, 153 Ill. 2d at 92; General Service
Employees Union, Local 73 v. Illinois Educational Labor Relations
Board, 285 Ill. App. 3d 507, 515 (1996); Seul's Inc. v. Illinois
Liquor Control Comm'n, 240 Ill. App. 3d 828, 833 (1993).
Due process for a tenured public employee requires oral or
written notice of the charges, an explanation of the employer's
evidence, and an opportunity to present her side of the story.
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 84 L. Ed. 2d 494, 506, 105 S. Ct. 1487, 1495 (1985); see also Allen v.
Board of Trustees of Community College District No. 508, 285 Ill.
App. 3d 1031, 1037 (1996). Further, in administrative proceedings,
"due process is satisfied when the party concerned is provided an
opportunity to be heard in an orderly proceeding which is adapted
to the nature and circumstances of the dispute." Obasi v.
Department of Professional Regulation, 266 Ill. App. 3d 693, 702
(1994).
On administrative review, our duty is " 'to examine the
procedural methods employed at the administrative hearing, to
insure that a fair and impartial procedure was used.' "
Abrahamson, 153 Ill. 2d at 92-93, quoting Middleton v. Clayton, 128
Ill. App. 3d 623, 630 (1984). A fair hearing before an
administrative agency includes the opportunity to be heard, the
right to cross-examine adverse witnesses, and impartiality in
ruling upon the evidence. Abrahamson, 153 Ill. 2d at 95, citing
Goranson v. Department of Registration & Education, 92 Ill. App. 3d
496, 501 (1980).
In Loudermill, a consolidation of two cases, the Supreme Court
considered the pretermination process that must be given to a
public employee who can be discharged only for cause. One of the
discharged employees, James Loudermill, was a security guard
employed by the Cleveland Board of Education. By virtue of his
position, he was classified as a civil servant who could be
terminated only for cause; upon discharge, he could obtain
administrative review. He was subsequently discharged for
dishonesty in filling out the employment application. Loudermill
had no opportunity to respond to the dishonesty charge or challenge
his dismissal. The board officially approved Loudermill's
discharge, and he appealed.
The other discharged employee, Richard Donnelly, worked as a
bus mechanic for the Parma Board of Education. He was likewise
considered a public employee who could be discharged only for
cause. Donnelly was terminated for failing an eye examination. He
declined the invitation to retake the examination. The Civil
Service Commission, to which Donnelly appealed, ordered him
reinstated without back pay. He appealed the order of the Civil
Service Commission.
As a threshold matter, the Supreme Court reviewed the relevant
Ohio statute and determined that the statute conferred property
rights in continued employment to Loudermill and Donnelly.
Loudermill, 470 U.S. at 538-39, 84 L. Ed. 2d at 501, 105 S. Ct. at
1491. The Court then reiterated that the " 'root requirement' " of
the due process clause is " 'that an individual be given an
opportunity for a hearing before [she or] he is deprived of any
significant property interest.' " (Emphasis in original.)
Loudermill, 470 U.S. at 542, 84 L. Ed. 2d at 503-04, 105 S. Ct. at
1493, quoting Boddie v. Connecticut, 401 U.S. 371, 379, 28 L. Ed. 2d 113, 119, 91 S. Ct. 780, 786 (1971). Therefore, "some kind of
a hearing" is required prior to the individual's discharge.
Loudermill, 470 U.S. at 542, 84 L. Ed. 2d at 504, 105 S. Ct. at
1493. The Loudermill court next balanced the competing interests
of the individual and the government, using the test set forth in
Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893
(1976). The Court concluded that the employee's interests in
presenting her or his side of the case and staying employed
outweighed the government's interest in immediate termination.
Loudermill, 470 U.S. at 543-44, 84 L. Ed. 2d at 504-05, 105 S. Ct.
at 1493-94. The Court further noted that providing an employee
with a pretermination hearing might provide against an erroneous or
impetuous termination decision. Loudermill, 470 U.S. at 543-44, 84 L. Ed. 2d at 504-05, 105 S. Ct. at 1493-94.
In requiring at least an informal pretermination opportunity
to be heard, the Loudermill court stated that the opportunity need
only be extensive enough to guard against a mistaken decision.
Loudermill, 470 U.S. at 545-46, 84 L. Ed. 2d at 505-06, 105 S. Ct. 1493-94. The Court explained:
"[The pretermination hearing] should be an initial check
against mistaken decisions--essentially, a determination of
whether there are reasonable grounds to believe that the
charges against the employee are true and support the proposed
action. [Citation.]
The essential requirements of due process *** are notice
and an opportunity to respond. The opportunity to present
reasons, either in person or in writing, why proposed action
should not be taken is a fundamental due process requirement.
[Citation.] The tenured public employee is entitled to oral
or written notice of the charges against [her or] him, an
explanation of the employer's evidence, and an opportunity to
present [her or] his side of the story. [Citations.] ***
Our holding rests in part on the provisions in Ohio law
for a full post-termination hearing." Loudermill, 470 U.S. at
545-46, 84 L. Ed. 2d at 506, 105 S. Ct. at 1495.
Illinois reviewing courts have followed the Loudermill
analysis. See Villegas v. Board of Fire & Police Commissioners,
167 Ill. 2d 108 (1995); Allen v. Board of Trustees of Community
College District No. 508, 285 Ill. App. 3d 1031 (1996); Massie v.
East St. Louis School District No. 189, 203 Ill. App. 3d 965
(1990); Phillips v. Civil Service Comm'n, 172 Ill. App. 3d 278
(1988); Board of Trustees of Community College District 508 v.
McKinley, 160 Ill. App. 3d 916 (1987).
In the present case, Rozner held that Cohn's due process
rights had been violated because the Board would not allow her
representatives to be present at the pretermination hearing and
respond to the charges against Cohn. The Board notified Cohn of
the impending action against her and offered her the opportunity to
meet with the Board on January 19. Cohn spoke with her union
representatives, who advised her that they would attend in her
stead. However, Trevarthen and Hult would not allow them into the
meeting. Rozner found that, as a result, Cohn's version of the
events were not related to members of the Board.
We agree with plaintiff that a "full and thorough" hearing is
not required. However, an informal pretermination opportunity to
be heard is required, and it only needs to be extensive enough to
guard against a mistaken decision. See Loudermill, 470 U.S. at
545-46, 84 L. Ed. 2d at 505-06, 105 S. Ct. at 1493-94. Cohn was
not required to be present. In examining the procedural methods
employed, we cannot say that a fair and impartial procedure was
used. See Abrahamson, 153 Ill. 2d at 92-93. In keeping with the
informal nature of the hearing, as suggested in Loudermill, the
Board should have allowed Cohn's representatives to participate at
the closed session pretermination hearing. Doing so would have
allowed the members to hear both sides of the story, enabling them
to make an informed decision.
Because the Board's actions at the pretermination hearing were
arbitrary and unreasonable, we agree with Rozner's determination
that defendant Cohn's due process rights were violated at the
pretermination hearing. A school board cannot simply notify a
tenured teacher charged with insubordination that a pretermination
hearing will be held, only then to deny her representatives
entrance to that meeting without the tenured teacher's presence.
This procedure is contrary to the spirit of Loudermill, and we
decline to adopt it here.
For the foregoing reasons, the judgment of the circuit court
of Lake County is affirmed.
Affirmed.
INGLIS and McLAREN, JJ., concur.