Board of Educ. of Community Consol. High School Dist. No. 230, Cook County v. Illinois Educational Labor Relations Bd.

• Decision Date: 31 December 1987
• Docket Number: Nos. 4-87-0037,4-87-0207,s. 4-87-0037
• Citation: 116 Ill.Dec. 91,165 Ill.App.3d 41,518 N.E.2d 713
• Parties: , 116 Ill.Dec. 91, 44 Ed. Law Rep. 530 BOARD OF EDUCATION OF COMMUNITY CONSOLIDATED HIGH SCHOOL DISTRICT NO. 230, COOK COUNTY, Illinois, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and the Classified Personnel Association, IEA/NEA, Respondents.
• Court: United States Appellate Court of Illinois

Page 713

518 N.E.2d 713

165 Ill.App.3d 41, 116 Ill.Dec. 91,

44 Ed. Law Rep. 530

BOARD OF EDUCATION OF COMMUNITY CONSOLIDATED HIGH SCHOOL DISTRICT NO. 230, COOK COUNTY, Illinois, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and the Classified Personnel Association, IEA/NEA, Respondents.

Nos. 4-87-0037, 4-87-0207.

Appellate Court of Illinois Fourth District.

Dec. 31, 1987.

James P. Bartley, Karl R. Ottosen, Klein, Thorpe & Jenkins, Ltd., Chicago, for petitioner.

Winston & Strawn, Chicago, Gregory J. Malovance, David B. Love, for Classified Personnel Assoc.

Neil F. Hartigan, Atty. Gen., Chicago, Roma Jones Stewart, Sol. Gen., William D. Frazier, Asst. Atty. Gen., for I.E.L.R.B.

Justice KNECHT delivered the opinion of the court:

We are here asked to construe the following sequence of events:

Two parties during labor contract negotiations disagree on the interpretation of a matter within the ambit of a State administrative agency. They seek that agency's guidance in resolving the controversy. A hearing officer of that agency hands down a recommended decision. The party to which that decision is adverse requests review within the agency structure. A majority of a three-member panel, sitting as the agency's final reviewing body, renders an order effectively reversing the hearing officer's determination, with one member dissenting. Subsequent to the issuance of that order, but apparently within the time frame allotted for appeal, one of two panel members who voted in the majority acts to recuse himself due to a conflict of interest. The recusal is accepted and the order is vacated. The remaining deadlocked members of the panel then decide to go back and allow the hearing officer's findings to stand as the final order of the agency as the law of that case alone.

The Illinois Educational Labor Relations Board (IELRB or Board) finding itself faced with essentially the same factual scenerio in the instant appeal, similarly decided to adopt a hearing officer's previous recommendation in full as the Board's own order. That action is contested now, as are the merits of the findings contained in the recommended decision.

Community Consolidated High School District No. 230 (district), the petitioner, serves students in a 74-square mile block within southwestern Cook County. The district is comprised of three high schools. Amos Alonzo Stagg High School (Stagg) located at the northern end of the district, also houses all of the district's administrative offices. Carl Sandburg High School, situated five-and-one-half miles south of Stagg, encompasses the central portion of the district. Sitting at the southern tip of the district some 24 miles from Stagg is Victor J. Andrew High School. Because the central administration of the district is found at one of the three schools, each individual building operates on a fairly autonomous basis. Each school has its own principal, who acts as the administrative head of his building.

A total of some 660 people are currently employed by the district in various capacities. Five recognized bargaining units negotiate with the district on behalf of a number of these employees. Beginning in 1980, the respondent Classified Personnel Association (Association) has been the officially-recognized bargaining representative for some 60 classified clerical employees within the district. The Association and the district that year secured an initial three-year labor agreement, the terms of which included the three principals' individual secretaries within the bargaining unit. In the spring of 1983, the Association affiliated with the Illinois Education Association (IEA/NEA), which also represents the high school teachers of the district.

During labor negotiations for a successor contract to cover the years 1983 through 1986, the status of the principals' secretaries was a major point of contention. The district sought to remove the secretaries from the bargaining unit. The Association objected. When negotiations reached an impasse, the parties agreed to seek a decision from the newly-created IELRB. The question posed was whether the principals' secretaries were "confidential employees" as that term is defined in the Illinois Educational Labor Relations Act (Act) ( Ill.Rev.Stat.1985, ch. 48, par. 1701 et seq.). If so, they would be inappropriate for inclusion within the bargaining unit. In the interim, and in the interest of reaching some form of collective-bargaining agreement, it was stipulated the principals' secretaries would be excluded from the bargaining unit until the IELRB could reach its determination. A labor contract between the parties reflecting that accord was ratified on December 19, 1983.

On January 30, 1985, the Association filed a unit clarification petition with the IELRB proposing to include all three secretaries to the individual building principals within the current bargaining unit. Testimony concerning the respective roles of the district principals and their secretaries was heard at a hearing conducted April 25, 1985.

On July 2, 1985, a hearing officer issued a recommended decision granting the unit clarification petition and ordering the secretaries included in union representation. Exceptions to the recommended decision and order were timely filed by the district on July 12, 1985. Upon reviewing the evidence and testimony, the Board on August 20, 1986, by a 2 to 1 margin, dismissed the petition in an opinion and order which essentially reversed the hearing officer's holding. Voting with the majority were IELRB Chairman Gerald E. Berendt and Board Member Wesley A. Wildman. Member Edna Krueger wrote a dissent.

Only an October 8, 1986, order of the IELRB appearing in the record indicates what occurred next. The order reflects that on September 27, 1986, Member Wildman moved to recuse himself because "he had been a participant in the bargaining table agreement which had led to the stipulation of this case to the Board." Nothing beyond the October 8 order affords any explanation of the circumstances surrounding Member Wildman's recusal, or why this fact was never raised until after the full Board had already rendered its decision. Our review of the record similarly fails to indicate any prior objection to Wildman's participation on the Board. The order only states Wildman moved to recuse himself after his previous work on behalf of the district during 1983 contract negotiations was "brought to his attention," a fact "which he had forgotten."

The Board by that same order then accepted Wildman's recusal. Saddled with a tie vote among its two remaining members the Board concluded its prior decision must be vacated, and left open for briefing the ultimate effect of this action under the circumstances.

After considering the parties' respective arguments, the Board in an order dated December 17, 1986, decided it could neither affirm nor reverse the hearing officer's recommended decision when two remaining members were equally split as to a disposition. Rather, the Board would allow the hearing officer's decision to stand as the law of the case, although without precedential effect. The decision was deemed the final order of the IELRB for purposes of administrative review only. By further order dated March 10, 1987, the Board reaffirmed its position, stating it "would adopt the Hearing Officer's Recommended Decision as the final order of the agency on the merits of this matter."

The district now seeks administrative review of both orders of the Board. Parenthetically, we note this matter is before us on direct appeal from the IELRB under authority of statute (Ill.Rev.Stat.1985, ch. 48, par. 1716(a)), and we have consolidated the district's two separate appeals.

Several purported errors in the Board's treatment of this case are raised for our consideration by the district, errors which may be broken down into procedural and substantive concerns. We are first presented with the question of whether, under the facts, the Board's procedural undertakings yielded a proper and final administrative decision amenable to judicial review. Should the answer to this query be in the affirmative, we may then examine the second, substantive issue. There the district assails as contrary to the manifest weight of the evidence the hearing officer's ultimate finding that all three high school principals' secretaries are not "confidential employees" within the meaning of section 2(n) of the Act. Ill.Rev.Stat.1985, ch. 48, par. 1702(n).

I.

Initially we surmise a step-by-step analysis of the proceedings before the Board is in order. Only then may we discuss whether the legal effect of these factual underpinnings comports with the result settled upon by the Board.

The fact of Board Member Wildman's participation as a member of the district's team in the negotiations at issue is unchallenged, even though his participation is not expressly shown beyond the IELRB's October 8, 1986, order. Taking this as a given, we agree Wildman should have been disqualified from rendering a decision in this particular matter.

Our supreme court has firmly established the rule that no person may play a decision-making role in either a judicial or administrative proceeding in which that person arguably has a personal interest. (In re Heirich (1956), 10 Ill.2d 357, 384, 140 N.E.2d 825, 838, cert. denied sub nom., Ericksen v. Bristow (1957), 355 U.S. 805, 78 S.Ct. 22, 2 L.Ed.2d 49.) "Interest" as referred to in this sense need not be pecuniary; it need only be that "which can be viewed as having a particularly debilitating effect on the impartiality of the decisionmaker." International Harvester Co. v. Bowling (1979), 72 Ill.App.3d 910, 914, 29 Ill.Dec. 9, 12, 391 N.E.2d 168, 171.

The major point in controversy during negotiations for the 1983 contract--indeed, the only point on which no accord could be reached without outside assistance from an administrative agency--is precisely the...