Evans v. Benjamin School Dist. No. 25

• Decision Date: 15 July 1985
• Docket Number: No. 84-0440,84-0440
• Citation: 89 Ill.Dec. 637,134 Ill.App.3d 875,480 N.E.2d 1380
• Parties: , 89 Ill.Dec. 637, 26 Ed. Law Rep. 753 Constance EVANS, Petitioner-Appellee, v. BENJAMIN SCHOOL DISTRICT NO. 25, a body corporate and Politic, Respondent- Appellant.
• Court: United States Appellate Court of Illinois

Page 1380

480 N.E.2d 1380

134 Ill.App.3d 875, 89 Ill.Dec. 637,

26 Ed. Law Rep. 753

Constance EVANS, Petitioner-Appellee, v. BENJAMIN SCHOOL DISTRICT NO. 25, a body corporate and Politic, Respondent- Appellant.

No. 84-0440.

Appellate Court of Illinois Second District.

July 15, 1985.

Scariano, Kula & Assoc., Robert H. Ellch, Joanne P. Schochat, Chicago Heights, for respondent-appellant.

Smith & Munson, Ltd., Lester E. Munson, Jr., Wheaton, for petitioner-appellee.

NASH, Presiding Justice:

Respondent, Benjamin School District No. 25, appeals from a summary judgment entered in a mandamus action brought against the District by petitioner, Constance Evans, which directed she be reinstated as a school teacher and awarded back pay with interest.

The primary issue presented in this appeal is whether a school board is authorized to grant tenure to a part-time teacher who has not met the service requirements of section 24-11 of the School Code (Ill.Rev.Stat.1983, ch. 122, par. 24-11).

This matter was heard in the trial court upon a stipulation of facts which disclosed the following:

Petitioner, Constance Evans, is a teacher who has been certified to teach elementary grades and respondent is a school district operating under the provisions of the Illinois School Code (Ill.Rev.Stat.1983, ch. 122, par. 1-1 et seq.). Evans taught in the District's schools from 1972 until her termination by the District in June 1982. She was paid on a full-time basis, however, only during the 1974-75 and 1981-82 school years; in each of the other school years of her employment by the District Evans was paid 5/10ths of a full-time salary.

The stipulation further provided that at a meeting of the District's board of education held March 18, 1975, a motion was made and carried that Evans (and three other teachers) be approved for "tenure status". Thereafter, at a meeting of the board held September 28, 1981, a motion was made and carried rescinding the action of the former board granting tenure to part-time certified staff as unlawful and contrary to section 24-12 of the School Code. The board noted in its minutes that "although well-intended, past boards had taken action without authority to do so and under the circumstances tenure was a fantasy and not a fact."

Thereafter, on March 1, 1982, the board, on recommendation of the superintendent, terminated Evans' employment as of the end of the 1981-82 school year, noting she was a "first year teacher". The parties further stipulated that during the years 1972-1982 in which Evans was employed by the District, she had no other employment and devoted all of her working hours to the District.

After hearing arguments of counsel, the trial court ordered that petitioner be reinstated as a teacher "on the basis that she was something more than a first year teacher and her removal was, therefore, invalid."

The District initially contends reinstatement was erroneous as petitioner had never fulfilled the requirements of section 24-11 of the School Code necessary to attain the status of contractual continued service and the board of education in March 1975, therefore, lacked authority to grant tenure absent statutory compliance. Petitioner responds that she was a full-time teacher within the meaning of section 24-11 of the School Code and was thus properly granted tenure.

Section 24-11 provides, in part:

"Any teacher who has been employed in any district as a full-time teacher for a probationary period of 2 consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least 60 days before the end of such period. For the purpose of determining contractual continued service, the first probationary year shall be any full time employment from a date before November 1 through the end of the school year. If, however, a teacher has not had one school term of full-time teaching experience before the beginning of such probationary period, the employing board may at its option extend such probationary period for one additional school term by giving the teacher written notice by registered mail at least 60 days before the end of the second school term of the period of 2 consecutive school terms referred to above. Such notice must state the reasons for the one year extension and must outline the corrective actions which the teacher should take to satisfactorily complete probation.

Any full-time teacher who is completing the first year of the probationary period described in the preceding paragraph, or any teacher employed on a full-time basis not later than January 1 of the school term, shall receive written notice from the employing board at least 60 days before the end of any school term whether or not he will be re-employed for the following school term. If the board fails to give such notice, the employee shall be deemed reemployed, and not later than the close of the then current school term the board shall issue a regular contract to the employee as though the board had reemployed him in the usual manner.

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Contractual continued service shall continue in effect the terms and provisions of the contract with the teacher during the last school term of the probationary period, subject to this Act and the lawful regulations of the employing board. This Section and succeeding Sections do not modify any existing power of the board except with respect to the procedure of the discharge of a teacher and reductions in salary as hereinafter provided. Contractual continued service status shall not restrict the power of the board to transfer a teacher to a position which the teacher is qualified to fill or to make such salary adjustments as it deems desirable, but unless reductions in salary are uniform or based upon some reasonable classification, any teacher whose salary is reduced shall be entitled to a notice and a hearing as hereinafter provided in the case of certain dismissals or removals." (Emphasis added.) Ill.Rev.Stat.1983, ch. 122, par. 24-11

A tenured teacher, in contractual continued service, is one who has been employed as a full-time teacher for a probationary term of two (or three in certain circumstances) consecutive yearly school terms without receiving a notice of dismissal, as provided in section 24-11. (Johnson v. Board of Education (1981), 85 Ill.2d 338, 343, 53 Ill.Dec. 234, 423 N.E.2d 903; Bessler v. Board of Education (1977), 69 Ill.2d 191, 196-97, 13 Ill.Dec. 23, 370 N.E.2d 1050.) The purpose of the tenure system is to afford tenured teachers procedural safeguards, guarantee continuous service on the basis of merit for able, experienced teachers and prevent dismissal for political, partisan or capricious reasons. (Johnson v. Board of Education (1981), 85 Ill.2d 338, 344, 53 Ill.Dec. 234, 423 N.E.2d 903; McLain v. Board of Education (1978), 66 Ill.App.3d 1024, 1026, 23 Ill.Dec. 746, 384 N.E.2d 540.) As tenure provisions are in derogation of the common law, they must be strictly construed in favor of school districts so as not to unduly interfere with local board responsibility to operate educational systems efficiently (Johnson v. Board of Education (1981), 85 Ill.2d 338, 344, 53 Ill.Dec. 234, 423 N.E.2d 903; Kuykendall v. Board of Education (1982), 111 Ill.App.3d 809, 812, 67 Ill.Dec. 530, 444 N.E.2d 766, appeal denied; Thrash v. Board of Education (1982), 106 Ill.App.3d 182, 186, 62 Ill.Dec. 68, 435 N.E.2d 866) and must be construed to effect the intention of the legislature. Board of Trustees v. Taylor (1983), 114 Ill.App.3d 318, 322, 70 Ill.Dec. 170, 448 N.E.2d 1171.

Petitioner argues she should be considered as a "full-time" teacher as she devoted all of the hours that she worked to the District teaching kindergarten and had no employment elsewhere. She asserts that was a full-time job and, although she taught class for only one-half day and was paid for one-half time, she worked many hours each day outside of classroom instruction in planning and preparation for classes. She also notes the Illinois Teachers' Retirement System defines full-time employment as that which requires at least four hours daily in public schools. Ill.Rev.Stat.1983, ch. 108 1/2, par. 16-106(h).

To gain tenured status the School Code requires that a teacher must first complete two consecutive school years as a full-time teacher. (Ill.Rev.Stat.1983, ch. 122, par. 24-11.) For eight of the ten years petitioner taught, she was employed and paid in a half-time position; while she was employed and paid on a full-time basis for two school years, they were not consecutive. That petitioner personally considered her teaching efforts to be a full-time activity or that she, like all teachers, was necessarily employed in planning and preparation in addition to the classroom teaching periods, is not determinative of the question. Nor do we consider that the requirements for benefits under Teachers' Retirement System can resolve the issue. It provides there must be at least four hours daily employment to be considered full-time teaching (Ill.Rev.Stat.1983, ch. 108 1/2, par. 16-106), but does not purport to define that term for purposes of the School Code. Nor is there anything in this record to establish that petitioner applied four hours each day to teaching during her eight years of part-time employment.

In Johnson v. Board of Education (1981), 85 Ill.2d 338, 53 Ill.Dec. 234, 423 N.E.2d 903, the court understandably considered that a 4/10ths teaching position was part-time employment and, in the School Code, a full school day is considered to be five hours in other contexts (see Ill.Rev.Stat.1983, ch. 122, pars. 18-8(A)(1)(c), 21-9). It is apparent that for the years Evans was employed in a 5/10ths position it was for less than the full-time basis which is required under section 24-11, and she thus failed to complete the two consecutive full-time...