Verticchio v. Divernon Community Unit School Dist. No. 13

• Decision Date: 31 May 1990
• Docket Number: No. 4-89-0833,D,No. 13,13,4-89-0833
• Citation: 144 Ill.Dec. 379,555 N.E.2d 738,198 Ill.App.3d 202
• Parties: , 144 Ill.Dec. 379, 61 Ed. Law Rep. 207 Mark VERTICCHIO, Plaintiff-Appellant, v. DIVERNON COMMUNITY UNIT SCHOOL DISTRICT NO. 13, Joseph Klein, in his official capacity as President of the Board of Education, Divernon Community Unit School District, and Thomas Veihman, in his official capacity as Superintendent of Schools, Divernon Community Unit School District, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 738

555 N.E.2d 738

198 Ill.App.3d 202, 144 Ill.Dec. 379,

61 Ed. Law Rep. 207

Mark VERTICCHIO, Plaintiff-Appellant, v. DIVERNON COMMUNITY UNIT SCHOOL DISTRICT NO. 13, Joseph

Klein, in his official capacity as President of the Board of

Education, Divernon Community Unit School District No. 13,

and Thomas Veihman, in his official capacity as

Superintendent of Schools, Divernon Community Unit School

District No. 13, Defendants-Appellees.

No. 4-89-0833.

Appellate Court of Illinois,

Fourth District.

May 31, 1990.

R. Mark Mifflin, Giffin, Winning, Cohen & Bodewes, P.C., Springfield, for plaintiff-appellant.

Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago (James T. Ferrini, John M. Hynes, Richard R. Winter, of counsel), for defendants-appellees.

Justice SPITZ delivered the opinion of the court:

Plaintiff Mark Verticchio appeals the circuit court's order granting summary judgment for the defendants Divernon Community Unit School District No. 13 (School District), Thomas Veihman, superintendent of schools, and Joseph Klein, president of the school board. The issue in this case is whether the defendants violated section 24-11 of the School Code (Code) in the procedure they used in dismissing the plaintiff from his teaching position. (Ill.Rev.Stat.1987, ch. 122, par. 24-11.) We hold they did not, and we affirm.

Plaintiff was employed by defendant School District and was serving his second year as a full-time probationary nontenured teacher. Prior to the March 8, 1989, school board meeting, Veihman, according to his affidavit, informed plaintiff and his attorney Rick Verticchio, that Veihman intended to recommend plaintiff's employment be terminated. The reasons given were plaintiff's failure to establish and follow orderly lesson objectives, and failure to maintain classroom noise at an appropriate level. No notice to this effect had yet been mailed to the plaintiff.

On March 8, 1989, the school board meeting was held in which plaintiff was granted a hearing, held in closed session. During this hearing, plaintiff submitted a written memorandum explaining his position on the issues. After their presentation, the plaintiff and his attorney were excused and the board went into executive session for approximately 15 minutes. According to the affidavit of school board president Klein, during this executive session, the board discussed the matter, the superintendent informed the board of the above mentioned reasons for the dismissal, and recommended plaintiff be dismissed. At this time, the superintendent presented to the board a proposed resolution dismissing plaintiff as a teacher. Also presented to the board at this time was the letter which was to be sent to plaintiff, informing him of the dismissal, and which had the words "exhibit A" printed at the bottom of the page. The resolution stated plaintiff was to be dismissed, and directed the president and the secretary of the board of education to execute and mail to plaintiff the form attached as exhibit No. A. The resolution gave no specific reasons for the dismissal. The letter exhibit No. A, however, contained both reasons discussed previously for the dismissal.

The board then went into open session. The superintendent recommended the board adopt the termination resolution. The superintendent handed the proposed resolution to the board president seated next to him. This resolution did not have the letter exhibit No. A attached to it. The resolution was then passed unanimously during this open session. Plaintiff's attorney asked to examine the resolution, then pointed out exhibit No. A was not attached. The superintendent removed the exhibit from the folder in front of him, and showed it to the president of the school board. There is no dispute that exhibit No. A was then sent to plaintiff by certified mail, and that plaintiff received the letter no less than 60 days prior to the end of the school year.

On June 23, 1989, plaintiff filed a complaint, specifically alleging the method of dismissal was a violation of section 24-11 of the Code. (Ill.Rev.Stat.1987, ch. 122, par. 24-11.) On October 10, 1989, the trial court entered its judgment order granting defendants' and denying plaintiff's motion for summary judgment in that defendants had complied with section 24-11 of the Code in the dismissal of a nontenured teacher.

Section 24-11 of the Code states 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 certified mail, return receipt requested by the employing board at least 60 days before the end of such period." (Ill.Rev.Stat.1987, ch. 122, par. 24-11.)

"Summary judgment should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show there is no genuine issue as to a material fact, and that the movant is entitled to judgment as a matter of law." (Cronic v. Doud (1988), 168 Ill.App.3d 665, 668, 119 Ill.Dec. 708, 710, 523 N.E.2d 176, 178.)

By examining the affidavits in the record, there is no dispute a written notice of termination was sent by certified mail to the plaintiff before the 60-day limitation had passed, and this notice included the specific reasons for the dismissal. The defendants' affidavit stated the board saw this notice and was aware of its contents. The board also heard the superintendent recommend termination based on these reasons.

The plaintiff argues this discussion as to the reasons of his termination took place in closed session and, therefore, the board's alleged silent knowledge of these reasons is irrelevant and contrary to the Open Meetings Act of Illinois (Act) (Ill.Rev.Stat.1987, ch. 102, pars. 41 through 46). In a dismissal of a school teacher, the fact a decision maker, such as a school board member, had taken a position prior to a hearing does not disqualify him as a decision maker and "[t]here is a strong presumption of honesty and integrity in those serving as adjudicators." (Grissom v. Board of Education of Buckley-Loda Community School District No. 8 (1977), 55 Ill.App.3d 667, 673, 13 Ill.Dec. 271, 276, 370 N.E.2d 1298, 1303). Therefore, even if such discussions took place in closed session, this does not make such discussions or knowledge suspect or irrelevant. In Grissom, a case of a dismissal of a tenured teacher, the board deliberated on this matter in closed session and upon returning to open session, a roll call vote was taken. This roll call vote was held to be a sufficient final action even though full discussion of the matter took place in closed session. (Grissom, 55 Ill.App.3d at 675, 13 Ill.Dec. at 277, 370 N.E.2d at 1304.) Thus, according to Grissom, simply because discussion of the reasons for dismissal took place in closed session does not make such discussions irrelevant or ineffective. This being the case for the dismissal of a tenured teacher, it should be no less a case for a nontenured teacher.

Section 2 of the Act clearly states "[t]his Section does not prevent any body covered by this Act from holding closed meetings to consider information regarding * * * dismissal of an employee * * *." (Ill.Rev.Stat.1987, ch. 102, par. 42.) Therefore, the discussion regarding the reasons for Mark's dismissal could effectively take place in closed session without violating this Act. Further, in order to claim a violation of the Act, civil action must take place "prior to or within 45 days after the meeting alleged to be in violation of this Act." (Ill.Rev.Stat.1987, ch. 102, par. 43(a).) Since the meeting in which the alleged violation took place was held on March 8, 1989, and the first complaint by the plaintiff was filed on June 23, 1989, more than 45 days had passed. Accordingly, any issue regarding a purported violation of the Act has been effectively waived.

We next consider whether the action of the school board violated section 24-11 of the Code. The plaintiff argues the notice was ineffective, since the board discussed the reasons for dismissal in closed session only. The plaintiff further argues that since the specific reasons for dismissal were not attached...