Costello v. Governing Bd. of Lee County Special Educ. Ass'n

• Decision Date: 17 November 1993
• Docket Number: No. 2-93-0085,2-93-0085
• Citation: 623 N.E.2d 966,252 Ill.App.3d 547,191 Ill.Dec. 376
• Parties: , 191 Ill.Dec. 376, 87 Ed. Law Rep. 534 Will Gray COSTELLO et al., Plaintiffs-Appellees, v. The GOVERNING BOARD OF LEE COUNTY SPECIAL EDUCATION ASSOCIATION et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 966

623 N.E.2d 966

252 Ill.App.3d 547, 191 Ill.Dec. 376,

87 Ed. Law Rep. 534

Will Gray COSTELLO et al., Plaintiffs-Appellees, v. The GOVERNING BOARD OF LEE COUNTY SPECIAL EDUCATION ASSOCIATION et al., Defendants-Appellants.

No. 2-93-0085.

Appellate Court of Illinois Second District.

Nov. 17, 1993.

James T. Ferrini, Michael R. Grimm, Paul D. Kerpan, Susan Condon (argued), Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago, for Govern Bd. of Lee Co. Spec.Ed.

Ole Bly Pace III, Ward, Murray, Pace & Johnson, P.C., Sterling.

Stanley Eisenstein, Martha A. Garcia (argued), Katz, Friedman, Schur & Eagle, for Will Gray Costello and Charlene Knudton.

Justice McLAREN delivered the opinion of the court:

These consolidated cases seeking declaratory and mandamus relief and damages involve questions of first impression regarding the extent of tenure rights provided by the School Code (105 ILCS 5/1-1 et seq. (West 1992)) to teachers employed in a special educational program conducted by joint agreement. Three questions have been certified in this interlocutory appeal concerning the plaintiffs' right to immediate employment in the school districts which participate in the special education joint agreement. We will answer the certified questions, as confined by the facts presented in the instant case, and remand the cause to the trial court for further proceedings.

The plaintiffs, Will Gray Costello and Charlene Knudten, were special education teachers employed by the governing board of Lee County special education association In February 1987, each defendant faced declining student enrollment and financial constraints. Costello was honorably dismissed by the Association pursuant to section 24-12 of the School Code (105 ILCS 5/24-12 (West 1992)) effective at the end of the 1986-87 school year. At the time Costello was dismissed, he did not have sufficient years of tenure or teaching qualifications to "bump" any other teacher employed by the Association. Costello demanded a full-time position in one of the school districts participating in the Association. However, there were no vacancies. Therefore, Costello accepted a part-time position with the Association approximately one month after the 1987-88 school year began.

(the Association), a defendant. Since Costello and Knudten were employed by the Association on a continuous, full-time basis since 1980, they entered into contractual continued service, or tenure, in the Association. The remaining six defendants are six school districts which established the Association by joint agreement pursuant to section 10-22.31 of the School Code (105 ILCS 5/10-22.31 (West 1992)). The function of the Association is to provide special education services to students in each of the participating districts.

In February 1988, both Costello and Knudten were honorably dismissed by the Association effective at the end of the school year. Before the 1988-89 school year began, Costello and Knudten accepted part-time positions with the Association. Costello subsequently accepted full-time employment with a third party and resigned from his position with the Association. Although Knudten commenced the 1988-89 school year with a part-time position, additional responsibilities restored her to full-time employment by December 1, 1988.

On November 29, 1988, Costello filed an amended complaint against the Association and the member districts seeking declaratory and mandamus relief and damages resulting from his honorable dismissals in 1987 and 1988. On December 27, 1988, Knudten filed a separate action seeking similar relief. The plaintiffs' complaints alleged that, at the time of their dismissals by the Association, the member districts hired or retained nontenured teachers and teachers possessing shorter periods of tenure in positions for which the plaintiffs were legally qualified. The complaints alleged that sections 24-11 and 24-12 of the School Code (105 ILCS 5/24-11, 24-12 (West 1992)) obligated the districts to offer the plaintiffs full-time positions occupied by nontenured or tenured but less senior teachers.

The defendants moved to dismiss the plaintiffs' complaints for failure to state a cause of action. (735 ILCS 5/2-615(a), 2-619(a)(9) (West 1992).) The Association's motion alleged that the limited tenure rights provided by the School Code to teachers employed in special education programs conducted by joint agreement arise only upon termination of the joint agreement's entire array of special education services. (105 ILCS 5/24-11, 24-12 (West 1992).) An affidavit from the Association's executive director was filed in support of the motion to dismiss which stated that the Association and its special education services had not been terminated. The motion further asserted that, if the entire special education program was terminated, the only right provided by the School Code was to an existing vacancy in one of the member districts, provided the plaintiff was qualified to teach the vacant position. (105 ILCS 5/24-11, 24-12 (West 1992).) According to the defendants, the districts were not required to dismiss a teacher to create vacancies the plaintiffs could fill. Alternatively, the Association asserted that it should be dismissed from the case because the plaintiffs were offered part-time teaching positions in the Association subsequent to their dismissals and had been provided the full benefits of tenure.

Likewise, the motions of the member school districts asserted that the plaintiffs failed to state a claim under the School Code. According to the school districts, section 24-11 allows dismissed teachers to fill an existing vacancy in a member district The circuit court denied the defendants' motions to dismiss in a memorandum opinion and order dated December 7, 1989. According to the trial court, the word "program" in the concluding paragraph of section 24-11 of the School Code referred to the individual joint program or programs operating within the member districts. The court further determined that the School Code granted the plaintiffs tenure in each of the participating districts. On this basis, the trial court determined the plaintiffs were eligible for vacant positions in the participating districts "in the event of termination of the program."

                [191 Ill.Dec. 380]  only upon termination of the Association's entire array of special education services.  (105 ILCS 5/24-11 (West 1992).)   Attached to the motions were the affidavits of the superintendents of the member school districts stating that the school districts were reducing their staff and did not have any vacancies
                

The defendants subsequently filed a motion pursuant to Supreme Court Rule 308 (134 Ill.2d R. 308) to pursue an interlocutory appeal regarding (1) the extent of tenure provided by section 24-11 of the School Code; (2) the meaning of the phrase "termination of the program" contained in section 24-11 of the School Code; and (3) whether the language of the School Code limits the rights of tenured teachers to existing vacancies. The circuit court found there was substantial ground for difference of opinion concerning the construction of sections 24-11 and 24-12 of the School Code and that an immediate appeal from the order denying the defendants' motions to dismiss would materially advance the ultimate termination of the pending litigation. The following three questions of law were certified for review in our court:

"(1) Does the phrase 'in the event of the termination of the program' in section 24-11 of the School Code mean:

(a) complete cessation of all activities of the cooperative;

(b) reduction of service from full to part-time in an area provided by the cooperative (e.g. hearing impairment);

(c) reduction in number of teachers providing a particular service;

(d) complete cessation of the particular type of service provided by the cooperative; or

(e) some combination of any of the above alternatives?

(2) If a tenured teacher employed by a special education cooperative prior to July 1, 1987, [sic ] is honorably dismissed as a full-time employee due to reduction in force, but is offered part-time employment by the cooperative, does such teacher have an immediate right to full-time employment in a member district, when:

(a) there is a vacancy in a member district for which the teacher is qualified; or

(b) a position for which the cooperative teacher is qualified is occupied by a teacher junior in terms of years of employment to the cooperative teacher?

(3) If a tenured teacher employed by a special education cooperative is honorably dismissed under circumstances giving rise to employment rights in a member district pursuant to section 24-11 of the School Code, but none of the districts has an unfilled teaching position, must a member district terminate a teacher who has comparable qualifications but is junior to the teacher in the cooperative to create a position for the teacher in the cooperative?"

BACKGROUND

A teacher enters into contractual continued service, or tenure, when that teacher is employed full-time for a probationary period of two consecutive school terms without receiving notice of dismissal. (Verdeyen v. Board of Education of Batavia Public School District No. 101 (1986), 150 Ill.App.3d 915, 927, 103 Ill.Dec. 620, 501 N.E.2d 937.) Section 24-12 of the School Code grants tenured teachers two important rights within their employing districts. First, the employing board must remove or dismiss nontenured teachers before it can dismiss tenured teachers. Between tenured teachers, teachers with the shorter length of tenure in the district must be dismissed first. (105 ILCS 5/24-12 (West 1992).) Exercise of this priority right is known as "bumping." (See Zink v. Board of Education of Chrisman Community Unit No. 6 (1986), 146 Ill.App.3d 1016, 1020, 100 Ill.Dec. 657, 497 N.E.2d 835.) Secondly, if the board has a vacancy for the following school term or within one...