Arduini v. Board of Ed., Pontiac Tp. High School, Dist. 90, Livingston County, Ill.

• Decision Date: 06 March 1981
• Docket Number: No. 16504,16504
• Citation: 49 Ill.Dec. 460,93 Ill.App.3d 925,418 N.E.2d 104
• Parties: , 49 Ill.Dec. 460 Ralph A. ARDUINI, Plaintiff-Appellant, v. BOARD OF EDUCATION, PONTIAC TOWNSHIP HIGH SCHOOL, DISTRICT 90, LIVINGSTON COUNTY, ILLINOIS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 104

418 N.E.2d 104

93 Ill.App.3d 925, 49 Ill.Dec. 460

Ralph A. ARDUINI, Plaintiff-Appellant, v. BOARD OF EDUCATION, PONTIAC TOWNSHIP HIGH SCHOOL, DISTRICT 90, LIVINGSTON COUNTY, ILLINOIS, Defendant-Appellee.

No. 16504.

Appellate Court of Illinois, Fourth District.

March 6, 1981.

Rehearing Denied April 7, 1981.

Drach, Terrell & Deffenbaugh, P. C., Springfield, for plaintiff-appellant.

Thompson, Strong & Blakeman, Pontiac, for defendant-appellee; Kenneth L. Strong, Pontiac, of counsel.

MILLS, Justice:

"Liquidated damages" policy as to teachers' contracts.

Resignation of a tenured teacher.

Does a school board have authority to adopt such a policy?

If so, was it enforceable as to this teacher?

Yes to both inquiries.

We affirm.

We are required in this case to determine the validity of the following liquidated damages policy adopted by defendant school board:

"All contracts between the Pontiac Township High School and certificated personnel are entered into in good faith with the intent that the obligations stated in or implied by the contract are to be met fully.

Procedures for resignations to be effective at the close of a contractual period are adequately covered in the statutes.

Resignations terminated during a contractual period are to be mutually agreed upon by the employee and the Board of Education. These resignations, when initiated by the employee, not only cause undue hardship on the students, but create additional concern for the Board of Education and necessitate the expenditure of funds in seeking a replacement.

When a resignation is initiated by an employee for reasons other than for extenuating circumstances, the resigned shall pay the school district four (4) per cent of contract salary as liquidated damages for breach of employment contract. Employee initiated resignations will not be honored until a satisfactory replacement assumes the duty of the resigner.

Reference to this policy shall be made in all certificated employee contracts and, or notices of continuance of employment."

Here is the sequence of events that led to the instant litigation:

August 6, 1979 Defendant adopted its liquidated damages policy;

August 27, 1979 Plaintiff, a tenured teacher, began his duties for the 1979-80 school year;

September 13, 1979 Plaintiff received a "Contractual Continued Service Notification" from defendant, stating the salary plaintiff would receive for the 1979-80 school year, with a copy of the liquidated damages policy attached;

October 19, 1979 Plaintiff resigned from his teaching position in defendant's schools.

Pursuant to the liquidated damages policy, defendant withheld $715.92 4% of plaintiff's contract salary from his final paycheck. Plaintiff filed a complaint seeking recovery of that amount, and defendant subsequently filed a counterclaim for declaratory judgment asking the court to determine the validity of its liquidated damages policy. The trial court held that the policy was valid and entered judgment in favor of the defendant.

I

Plaintiff-teacher contends that he was not bound by the liquidated damages policy because it was not a part of any contract between himself and defendant. We disagree, for he accepted the policy as a part of his 1979-80 teaching contract.

What occurred between the teacher and the board in September 1979 was essentially an offer and acceptance. On September 13, defendant offered plaintiff Applying these principles, we find that plaintiff accepted the liquidated damages policy, as a part of his 1979-80 teaching contract, sometime after September 13, 1979, the date upon which he received official notice of the policy. Defendant's offer did not solicit a return promise from plaintiff to teach during the 1979-80 school year. Plaintiff therefore could accept it by beginning performance in a way that would bind him to complete it. Thus, perhaps by merely continuing his duties after September 13, he accepted the policy. But we need not rely upon such a slender reed. Rather, we see plaintiff as having accepted both the liquidated damages policy and the $17,898 salary by accepting a paycheck reflecting the salary he was to receive under the September 13 notification.

[49 Ill.Dec. 463] two terms of employment in return for his teaching during the 1979-80 school year: (1) a salary of $17,898 and (2) the liquidated damages policy. Like any offeree, he had the freedom to accept the offer or reject it. That plaintiff signed no document containing the liquidated damages policy does not mean he never accepted it, for contract law recognizes various modes of acceptance other than signing a piece of paper. If, for instance, an offer does not specify a particular manner of acceptance, an offeree may accept by performing the act contemplated by the offer. (Yoder v. Rock Island Bank (1977), 47 Ill.App.3d 486, 5 Ill.Dec. 755, 362 N.E.2d 68; Central National Bank & Trust Co. of Rockford v. Consumers Construction Co. (1972), 5 Ill.App.3d 274, 282 N.E.2d 158; see Restatement (Second) of Contracts secs. 31 and 53 (1973).) Under such [93 Ill.App.3d 929] circumstances, the offeree is regarded as having accepted the contract by beginning performance in a way that would bind him to complete it. (Village of Hoffman v. Meier (1972), 4 Ill.App.3d 949, 282 N.E.2d 245; see Restatement (Second) of Contracts sec. 52, comment b (1973).) Another means by which an offeree may be regarded as having accepted a tendered contract is by accepting the benefits of the contract. Toto v. Durand & Kasper Co. (1919), 214 Ill.App. 449; James v. P. B. Price Construction Co. (1966), 240 Ark. 628, 401 S.W.2d 206.

The record does not specifically show that plaintiff received a paycheck between September 13 and October 19. However, teachers' salaries are required by statute to be paid monthly. (Ill.Rev.Stat.1979, ch. 122, par. 24-1.) Since the period of time between plaintiff's actual notice of the liquidated damages policy and his resignation exceeded one month, he of necessity received a paycheck during that time. We hold, therefore, that upon his acceptance of that paycheck he accepted the terms of employment defendant had offered for the 1979-80 school year including the liquidated damages policy.

If plaintiff found the policy repugnant when he learned of it on September 13, 1979, it became incumbent upon him to manifest some kind of objection. He could not simply wait until the policy adversely affected him and only then decide that he did not approve of it. A tenured teacher who does not wish to work under terms proposed for a new school year continues working under the terms and conditions of employment for the previous year. (Bond v. Board of Education of Mascoutah Community Unit School District No. 19 (1980), 81 Ill.2d 242, 42 Ill.Dec. 136, 408 N.E.2d 714.) In Bond, plaintiff teachers refused to sign a contract containing a no-strike clause. The supreme court upheld the school board's decision to pay signing teachers under the higher salary scale for the new year and held that the nonsigners were properly payable under the prior year's scale. See also Davis v. Board of Education of Aurora Public School District No. 131 of Kane County (1974), 19 Ill.App.3d 644, 312 N.E.2d 335; Allen v. Maurer (1972), 6 Ill.App.3d 633, 286 N.E.2d 135.

Thus, plaintiff in this case had the right to demand payment under the 1978-79 salary schedule and not be bound by the liquidated damages policy. But he cannot at a later time, when the policy becomes a burden to him, claim that he has not accepted it, while at the same time clutching tightly to the salary increase he received for the 1979-80 school year. II

The fact that plaintiff accepted the liquidated damages policy is not, however, the end of our inquiry, for if defendant lacked the authority to adopt the policy, then it is void. (See Beaver Glass & Mirror Co. v. Board of Education of Rockford School District No. 205, Winnebago County (1978), 59 Ill.App.3d 880, 17 Ill.Dec. 378, 376 N.E.2d 377; Wesclin Education Association v. Board of Education of Wesclin Community Unit School District No. 3 of Clinton and St. Clair Counties (1975), 30 Ill.App.3d 67, 331 N.E.2d 335.) A school board has no inherent powers. (Dato v. Village of Vernon Hills (1965), 62 Ill.App.2d 274, 210 N.E.2d 626.) Rather its powers consist only of ones specifically granted by statute and the powers necessary to carry out those expressly granted. Craddock v. Board of Education of Annawan Community Unit School District No. 226 of Henry County (1979), 76 Ill.App.3d 43, 29 Ill.Dec. 376, 391 N.E.2d 1059; Byerly v. Board of Education of Springfield School District No. 186 of Sangamon County (1978), 65 Ill.App.3d 400, 22 Ill.Dec. 374, 382 N.E.2d 694.

Plaintiff's argument that defendant lacked the authority to adopt a liquidated damages policy rests primarily upon his interpretation of section 24-14 of the School Code (Ill.Rev.Stat.1979, ch. 122, par. 24-14):

"Termination of contractual continued service by teacher. No teacher who has entered upon contractual continued service may terminate such service during the part of the school year when school is in session nor for a period of 60 days just previous to the beginning of the school term except by agreement of the board and the teacher. No teacher entered upon contractual continued service shall be permitted to terminate it during any other part of the school year except by service upon the secretary of the board of written notice of the termination. Any teacher terminating said service not in accordance with this section is guilty of unprofessional conduct and liable to suspension of certificate, as provided under the law relating to the certification of teachers, for a period not to exceed 1 year."

Plaintiff contends that since section 24-14 provides for suspension of the certificate of a teacher resigning in mid-year, the legislature intended that to be a school board's only recourse.

However, he has conceded both in...