Spear v. Board of Education

No. 2--96--1299

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

RAY SPEAR, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
) No. 96--L--271
v. )
)
BOARD OF EDUCATION OF NORTH )
SHORE SCHOOL DISTRICT No. 112, ) Honorable
) Terrence J. Brady,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________

PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, Ray Spear, a school custodian formerly employed
by Highland Park School District No. 107 (District 107), appeals
from the dismissal of his amended complaint alleging breach of
contract by the defendant, the Board of Education of North Shore
School District No. 112 (District 112 or new district). We affirm.
According to the pleadings, District 112, an elementary school
district, was newly created as a combined school district after
three former districts, including District 107, were legally
dissolved pursuant to a voter referendum in the spring of 1992 held
in accordance with article 11B of the School Code (Code). See 105
ILCS 5/11B--1 et seq. (West 1992). The plaintiff averred that
District 112 breached an implied contract of employment when it did
not employ him during the 1993-94 school year. He asserted that
the defendant's duty to hire him arose from the failure of
dissolved District 107 to issue a notice of nonrenewal and
honorable dismissal 60 days prior to the end of the 1992-93 school
year as required by section 10--23.5 of the Code (105 ILCS 5/10--
23.5 (West 1992)). That section contains certain provisions
regarding the employment and dismissal of educational support
personnel, such as custodians. The circuit court granted the
defendant's motion to dismiss the amended complaint with prejudice,
and this timely appeal followed.
On appeal, the plaintiff contends that the trial court's
decision to dismiss the amended complaint was erroneous. He argues
that (1) he had an implied contract of employment with District 112
by virtue of his prior employment at District 107 and because of
the failure to receive the statutory notice of dismissal or
nonrenewal; (2) the newly created District 112 thereafter assumed
a contractual obligation to employ him as a matter of law; and (3)
he is entitled to reinstatement, contract damages, and
consequential damages.
The defendant refutes the plaintiff's claims and, in addition,
argues that the cause of action is time-barred by the one-year
statute of limitations found in section 8--101 of the Local
Government and Governmental Employees Tort Immunity Act (Immunity
Act) (745 ILCS 10/8--101 (West 1994)). Our consideration of the
relevant School Code provisions and the applicable law persuades us
that the plaintiff does not have a cause of action against the
defendant premised on a theory of an implied contract of continued
employment.
Plaintiff's first contention is that the failure of District
107 to give him a 60-day notice of dismissal created an implied
contract of employment for the 1993-94 school year with the newly
formed "successor" district. Section 10--23.5 of the Code provides
in pertinent part:
"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
by the board or to discontinue some particular type of
educational support service, written notice shall be given the
employee by certified mail *** at least 60 days before the end
of the school term, together with a statement of honorable
dismissal and the reason therefor." (Emphasis added.) 105
ILCS 5/10--23.5 (West 1992).
The construction and interpretation of a statute is a question
of law for the court, and, regardless of the court's opinion of the
desirability of the results surrounding the operation of the
statute, the court must interpret the statute as it is and may not,
under the guise of construction, supply omissions, remedy defects,
annex new provisions, substitute different provisions, add
exceptions, limitations, or conditions, or otherwise change the law
so as to depart from the plain meaning of the statute. Buckellew
v. Board of Education of Georgetown-Ridge Farm Community Unit
School District No. 4, 215 Ill. App. 3d 506, 511 (1991).
First, we observe that the plain language of the statute shows
that this type of notice is required when an existing school board
makes a decision to reduce the number of educational support
personnel. There is no evidence in the record that the board of
District 107 made a decision to reduce the number of employees.
The statute is silent regarding the duty of a school district to
provide the notice when it is dissolved by the voters and a new
combined district is formed. Thus, this provision does not appear
to create a duty to notify which would be transferred to the new
district.
In arguing that he has an implied contract of continued
employment because of the failure to receive the 60-day notice, the
plaintiff relies on cases where the courts found a similar notice
for teachers to be a mandatory prerequisite to their removal or
dismissal (105 ILCS 5/24--12 (West 1992)). They were cases where
an existing school district sought to reduce the number of, or to
dismiss, teachers subject to the Code's tenure provisions. See,
e.g., Koerner v. Joppa Community High School, District No. 21, 143
Ill. App. 3d 162 (1986); Hagopian v. Board of Education of Tampico
Community Unit School District No. 4, 56 Ill. App. 3d 940 (1978).
Teachers subject to tenure, a status also known as "contractual
continued service," are in a readily distinguishable class of
school employees and are provided special statutory procedural
safeguards (Koerner, 143 Ill. App. 3d at 167) which we believe do
not apply to the plaintiff here.
Despite the similarity of the 60-day notice provision to the
one applicable to teachers, the plaintiff does not persuade us that
he had a contract of employment equivalent to that of a teacher.
In the absence of a contract for a specific term, the plaintiff's
employment is more readily characterized as employment at will,
even though he may be hired on a yearly basis. See Kepper v.
School Directors of District No. 120, 26 Ill. App. 3d 372 (1975);
see also Buckellew, 215 Ill. App. 3d at 510 (although custodian
worked eight-hour days for several years on an "as needed" basis,
he was not under "contract" and his employment relationship was at
best "at will"; distinguished between support personnel and
teachers subject to tenure).
Under Illinois law, employment which is not for a fixed term
is presumed to be at will and is "terminable by either party for
good reason, bad reason, or no reason at all," and a pretermination
notice requirement does not, without more, create a protectable
property interest in continued employment. Rojicek v. Community
Consolidated School District 15, 888 F. Supp. 878, 884 (N.D. Ill.
1995) (school payroll employee deemed to be employed at will).
In attempting to equate his "implied" contractual "right" to
continued employment to that of teachers, the plaintiff fails to
distinguish between the limited provisions governing support
personnel and the specific, express terms of the Code providing for
the continued employment of teachers pursuant to detailed
procedural requirements. See 105 ILCS 5/24--11 (West 1992).
Indeed, even where governmental employees such as teachers or
principals may enjoy certain statutory benefits and protections
arising under the tenure laws, our supreme court concluded in one
case that these provisions do not create a contractual right to
continued employment--although they may establish a property
interest subject to due process procedural protections. Fumarolo
v. Chicago Board of Education, 142 Ill. 2d 54, 105-07 (1990).
In short, the plaintiff does not have the more extended
procedural protections enjoyed by teachers despite the similarity
in the notice provisions for each class of employee. Moreover, he
does not have a contractual right to continued employment, implied
or otherwise.
Further support for our conclusion that the plaintiff does not
have rights coextensive with those of teachers is found in article
11B of the Code governing the creation of combination school
districts. 105 ILCS 5/11B--1 et seq. (West 1992). When the
creation of the new combined district becomes effective for
purposes of administration (usually July 1 following the date of
the election and after the time for appeal has run), section 11B--9
provides in pertinent part:
"[T]he positions of teachers in contractual continued
service in the districts involved in the creation of the new
district are transferred to such newly created district
pursuant to the provisions of Section 24--12 ***. The
contractual continued service status of any teacher *** is not
lost and the new board is subject to this Act *** in the same
manner as if such teacher was the district's employee ***."
105 ILCS 5/11B--9 (West 1992).
(This section was recently amended to allow the officers of the new
district to take various actions, with the stipulation of the
former districts, to conduct its affairs during the transition
period--including the receipt and expenditure of funds from the
former district. However, support personnel are again not
specifically provided for. See 105 ILCS 5/11B--9 (West 1996).)
Although section 11B--9 provides for the transfer of tenured
teachers from a dissolved district to a new combination district,
it is significant that the Code fails to provide similar
protections for educational support personnel (or even nontenured
teachers). The failure of the statute to include persons such as
the plaintiff strongly intimates that the legislature did not
intend to confer upon these persons a right to continued
employment, and we will not correct the omission under the guise of
statutory construction. See Welch v. Johnson, 147 Ill. 2d 40, 51-
52 (1992).
The plaintiff further argues that the newly created
combination District 112 assumed, as a matter of law, all of the
assets and liabilities of District 107, as its successor, including
the "employment contract" of the plaintiff and any liability for
his "implied contract of employment." The plaintiff cites
Chalstran v. Board of Education of Township High School District
13, 244 Ill. 470 (1910), and Board of Education, Community Unit
School District No. 325 v. Board of Education, Special Charter
School District No. 150, 2 Ill. App. 3d 643 (1971). These cases
are readily distinguishable.
In Chalstran, the reviewing court determined, based on
equitable principles, that the assets of the dissolved school
district, which were transferred to the township treasurer
according to the statutes then in force, were to be made available
for the payment of a debt arising from a written contract where the
creditor had performed work on the dissolved district's building
prior to the dissolution. That case did not concern whether a
successor district assumed liability for the contract and offers
little guidance here.
In District No. 325, where the high school district was
partially annexed to a special charter school district, the court
determined that, under article 7 of the Code, the annexing district
was entitled to receive the assets of the existing annexed
district, including buildings and buses. The court presumed that
the annexing district also assumed all of the obligations of the
annexed district, including employment contracts. See Ill. Rev.
Stat. 1963, ch. 122, par. 7--12 (now 105 ILCS 5/7--12 (West 1992))
("annexing district *** shall receive all of the assets and assume
all of the obligations and liabilities including the bonded
indebtedness *** of the district annexed").
District No. 325 concerned the assumption of existing assets
and liabilities by an annexing district under article 7 of the
Code. However, as we have pointed out, the provisions of article
11B regarding the creation of a new combination district are silent
with respect to educational support personnel; there are no express
provisions there stating the district must assume all of the
obligations and liabilities of the dissolved districts--except for
the transfer of tenured teachers and bond indebtedness. See 105
ILCS 5/11B--9, 11B--11 (West 1992).
The Chalstran and District No. 325 cases concerned existing
contractual debts for work performed or existing assets to be
transferred. We have already ruled that the plaintiff had no
vested contractual right to continued employment--either express or
implied. The statutes are silent with respect to the plaintiff's
specific claim of continued employment. Assuming arguendo (without
deciding) that the successor district ought ordinarily to assume
all the assets and liabilities of the defunct district, this
plaintiff's claim would still not qualify as a liability or
obligation of the new district. He was not under a contract for a
fixed term and could be dismissed at any time.
The limited facts before us tend to show the existence of an
implied dismissal of the plaintiff upon District 107's dissolution,
rather than an implied contract of continued employment. The
legislature has not provided a remedy for a person such as the
plaintiff, who is dismissed without notice under the circumstances
presented. We do not know whether this legislative omission was
intentional and based on sound policy reasons or whether it was
merely an oversight. It is possible that the legislature intended
to give such new districts a substantially clean slate to
effectuate certain economies at least with respect to staffing. In
any case, we cannot supply new provisions under the guise of
statutory construction. In view of our conclusion that this
plaintiff has no cause of action, we need not resolve the remaining
issues raised by the parties.
The judgment of the circuit court of Lake County is affirmed.
Affirmed.
INGLIS and McLAREN, JJ., concur.