Medina v. Board of Education of the City of Chicago

Illinois Official Reports

Appellate Court

Medina v. Board of Education of the City of Chicago,

2014 IL App (1st) 130588

Appellate Court LILLIAN MEDINA, Plaintiff-Appellant, v. BOARD OF EDUCA-

Caption TION OF THE CITY OF CHICAGO, Defendant-Appellee.

District & No. First District, Third Division

Docket No. 1-13-0588

Filed June 11, 2014

Rehearing denied July 14, 2014

Held When plaintiff gave up her position as a tenured teacher at an

(Note: This syllabus elementary school and accepted a position as a nontenured assistant

constitutes no part of the principal at the school, she knew that keeping the assistant principal

opinion of the court but position was contingent on obtaining a Type-75 certificate and that

has been prepared by the she gave up the right to revert to a tenured teacher position, and when

Reporter of Decisions she failed to obtain the Type-75 certificate, the decision of the board of

for the convenience of education to dismiss her as an assistant principal and not allow her to

the reader.) return to her prior position as a tenured teacher was affirmed.

Decision Under Appeal from the Circuit Court of Cook County, No. 11-CH-23406; the

Review Hon. Kathleen Kennedy, Judge, presiding.

Judgment Affirmed.

Counsel on Elaine K.B. Siegel & Associates, P.C., of Chicago (Elaine K.B. Siegel

Appeal and Jessica R. Hill, of counsel), for appellant.

Board of Education of City of Chicago Law Department, of Chicago

(James L. Bebley, Lee Ann Lowder, and Ann R. Slater, of counsel),

for appellee.

Panel JUSTICE MASON delivered the judgment of the court, with opinion.

Presiding Justice Hyman and Justice Neville concurred in the

judgment and opinion.

OPINION

¶1 Plaintiff-appellant, Lillian Medina, appeals from an order of the circuit court of Cook

County affirming a decision of the Board of Education of the City of Chicago (Board)

removing her as an assistant principal. Medina was dismissed as an assistant principal

because she lacked the required certification for that position. Medina claims that she was

entitled to a tenured teacher dismissal hearing under section 34-85 of the Illinois School

Code (105 ILCS 5/34-85 (West 2010)), notwithstanding her administrative position, and that

the Board acted ultra vires in dismissing her without a hearing pursuant to that section.

Further, Medina claims that her lack of certification was remediable conduct, which could

not serve as cause for her dismissal as a tenured teacher. We disagree and affirm.

¶2 BACKGROUND

¶3 Medina started working as a teacher for the Board in 1984. In June 2007, Medina was

nominated by the principal of Rachel Carson Elementary School (Carson Elementary) for an

assistant principal position and was hired in July of that year to fill the position.

¶4 Medina holds elementary and secondary teaching certificates, which qualify her to teach

kindergarten through twelfth grade. Her position as an assistant principal requires a Type-75

administrative certificate. When she accepted the position, she signed an “Assistant Principal

Nomination Form,” acknowledging that she was required to possess the Type-75 certificate.

This form also contained the following statement above Medina’s signature:

“I understand that by accepting this administrative appointment, I relinquish the right

to bump back into a teaching position.”

¶5 Medina also signed a form titled “Proof of Illinois State Certification Acknowledge [sic]

Form,” which states: “I understand that the Chicago Public Schools principal/assistant

principal assignment is solely contingent on my being issued a Type-75–General

Administration Certificate by the Illinois State Board of Education (ISBE) within three (3)

months from the date of employment.”

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¶6 Board Rule 4-3(a)(1)(a)(i)(2) lists the means by which a tenured teacher can lose the right

to contractual continued service. In addition to honorable dismissal and dismissal for cause,

the rule provides that loss of tenure is triggered by “the tenured teacher’s resignation from

his/her teacher position, which includes the tenured teacher’s voluntary transfer from his/her

teacher position to an educational support personnel employee, a certificated administrator,

an assistant principal or an interim or contract principal position.” (Emphases added.) Board

of Education of the City of Chicago R. 4-3(a)(1)(a)(i)(2) (rev. Mar. 2011).

¶7 In order to obtain a Type-75 certificate, a candidate must pass a basic skills test. Medina

took the test in 2007, shortly after she was appointed to the assistant principal position, and

again in 2008, but failed to pass. She did not attempt to take the test in 2009 or 2010. Medina

never notified the Board that she had not passed the test and apparently the Board did not

follow up after Medina was hired to determine whether she had obtained the Type-75

certificate.

¶8 Sometime toward the end of 2010, the Board’s labor relations officer determined that

Medina lacked the required certificate and, on December 10, 2010, the director of employee

relations notified Medina in writing that she was staffed for a position for which she was not

qualified. Medina again took the basic skills test on February 12, 2011, but did not pass. On

March 3, 2011, the Board notified Medina that she was removed as assistant principal with

pay pending the outcome of a presuspension hearing.

¶9 Medina’s pre-suspension hearing was held on March 17, 2011. The following day she

was charged with violating the Board’s employee discipline and due process policy for being

employed as an assistant principal without possessing a Type-75 certificate.

¶ 10 Dismissal of assistant principals and other managerial employees is governed by rules

promulgated by the Board. Board Rule 4-7(b)(4) provides, “Upon recommendation of the

Chief Executive Officer ***, the Board may dismiss assistant principals and educational

support personnel governed by collective bargaining agreements for cause in accordance

with the applicable provisions of the Board’s Employee Due Process and Discipline Policy.”

Board of Education of the City of Chicago R. 4-7(b)(4) (rev. Mar. 2011). The Board’s due

process and discipline policy, in turn, prescribes discharge procedures for assistant principals

that include notice of charges and a hearing before a hearing officer designated by the

director of labor relations at which the assistant principal has the right to present oral and

documentary evidence. Chicago Board of Education, Employee Discipline and Due Process

Policy for School-Based Union Employees (Except CTU), § VI(B)(4) (adopted July 28,

2004).

¶ 11 On April 29, 2011, Medina had an assistant principal dismissal hearing. Medina was

represented by counsel at the hearing at which testimony was taken and documents were

admitted into evidence. Through counsel, Medina maintained that she should be

“grandfathered” into the assistant principal position given that the principal of Carson

Elementary was aware that she lacked a Type-75 certificate when she was hired for the

position, that she held valid certificates as a tenured teacher and that she had been the victim

of harassment and discrimination instigated by her principal. Medina further argued that even

if she was terminated from her administrative position, she retained her status as a tenured

teacher, a position from which she could be terminated only for cause and after a hearing

pursuant to section 34-85 of the School Code. 105 ILCS 5/34-85 (West 2010). Medina

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specifically disavowed any claim that as an assistant principal she was entitled to a hearing

pursuant to section 34-85. Id.

¶ 12 At the hearing, Medina testified that she told the principal after the first time she took the

basic skills test that she did not pass. Between 2007 and 2010, he inquired regarding the

status of her certification periodically and she told him she was continuing to work on it. The

remainder of Medina’s testimony concerned conduct and statements by the principal toward

Medina and others, which she claimed were gender-based or racially or ethnically motivated.

Although the hearing officer allowed Medina to testify to certain discriminatory comments

and conduct by the principal, she ultimately concluded that this evidence was not relevant to

whether Medina possessed the necessary certification for her position.

¶ 13 Following the hearing, the director of the office of employee relations recommended that

Medina be dismissed for failing to possess the Type-75 certificate. The Board adopted the

recommendation and terminated Medina effective May 25, 2011.

¶ 14 Medina sought administrative review of her dismissal in the circuit court. The circuit

court affirmed Medina’s dismissal and she timely filed this appeal.

¶ 15 ANALYSIS

¶ 16 In administrative review cases, we review the decision of the administrative agency, not

the decision of the circuit court. Exelon Corp. v. Department of Revenue, 234 Ill. 2d 266, 272

(2009); Cerone v. State, 2012 IL App (1st) 110214, ¶ 11. “[T]he applicable standard of

review depends upon whether the question presented is one of fact, one of law, or a mixed

question of fact and law.” (Internal quotation marks omitted.) Cinkus v. Village of Stickney

Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008).

¶ 17 An agency’s conclusions of law are reviewed de novo. Id. at 211. If the appeal involves a

statute the agency is charged with administering, courts accord some deference to the

agency’s interpretation. Swank v. Department of Revenue, 336 Ill. App. 3d 851, 855 (2003);

AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 394

(2001).

¶ 18 If the issue presented involves a mixed question of law and fact, we review the agency’s

decision to determine whether it is “clearly erroneous.” Cerone, 2012 IL App (1st) 110214,

¶ 12. Mixed questions of law and fact involve “questions in which historical facts are

admitted or established, the rule of law is undisputed, and the issue is whether the facts

satisfy the statutory standard, or to put it another way, whether the rule of law as applied to

the established facts is or is not violated.” Id.; see also AFM Messenger, 198 Ill. 2d at 391

(mixed question of law and fact is one involving an examination of the legal effect of a given

set of facts). An administrative decision is clearly erroneous only when the reviewing court is

“ ‘left with the definite and firm conviction that a mistake has been committed.’ [Citation.]”

Id. at 395. We review the determination that Medina did not retain her status as a tenured

teacher upon becoming an assistant principal under the clearly erroneous standard and the

Board’s conclusions of law de novo.

¶ 19 It is undisputed that the assistant principal position required a Type-75 certificate and that

Medina did not possess this credential. Medina also does not dispute that the Board was

entitled to remove her from her assistant principal position for this reason. Medina’s failure

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to obtain the Type-75 certificate constituted “cause” for her dismissal as assistant principal

and she received the hearing to which she was entitled under the Board’s rules.

¶ 20 Medina claims that despite the form she signed when she accepted the assistant principal

position acknowledging that she was relinquishing her ability to “bump back” to a tenured

teacher position and contrary to the provisions of the Board’s rules regarding loss of tenure,

she was still a tenured teacher and could not be terminated except for cause related to her

performance as a teacher. She argues that the Board’s rules providing for a tenured teacher’s

relinquishment of that status upon acceptance of an assistant principal position run contrary

to the provisions of the School Code and her property interest in her tenured position.

According to Medina, once she was terminated from her assistant principal position, the

Board was required to transfer her to a teaching position. Thus, the primary issue is whether

Medina retained her status as a “teacher” to which she reverts upon being dismissed as an

assistant principal. We conclude that she does not.

¶ 21 In McCutcheon v. Board of Education of the City of Chicago, 94 Ill. App. 3d 993 (1981),

this court considered a similar claim by a principal who argued that after she was terminated

as a principal, she should have been retained as a tenured teacher. After finding the record

supported the Board’s conclusion that plaintiff had engaged in irremediable conduct

warranting her termination as a principal, the court addressed plaintiff’s further contention

that she should have been retained as a teacher since the charges against her only related to

her service as a principal. Rejecting this contention, the court stated:

“At the time these proceedings commenced plaintiff was employed as a principal and

so the charges were necessarily restricted to her performance in that position. Plaintiff

has cited no authority for her implicit contention that although fired as a principal she

had a continuing right to employment as a teacher. Section 34-85 [of the School

Code] by its terms refers to removal of a principal or teacher and we find no basis for

determining that the statute contemplates a two-step removal process for principals

first as principals, and then as teachers. [Citation.]” (Emphasis in original.) Id. at 998.

¶ 22 Medina counters that the principal in McCutcheon did receive a dismissal hearing

pursuant to section 34-85. 105 ILCS 5/34-85 (West 2010). But Medina’s attempt to

distinguish McCutcheon on this basis sidesteps the issue and overlooks the fact that the

principal in McCutcheon was terminated only for her conduct as a principal. It is not the

section of the School Code pursuant to which the dismissed employee’s hearing was held that

is determinative, a conclusion highlighted by Medina’s argument that even had the Board

afforded her a tenured teacher dismissal hearing, it could not have dismissed her because a

Type-75 certificate was not required for a tenured teacher. Rather, McCutcheon points to the

conclusion that when a tenured teacher accepts a promotion to a nontenured administrative

position such as an assistant principal, she does not retain her “permanent” tenure as a

teacher despite being terminated from the administrative position for cause.

¶ 23 Medina contends that the Board’s rule dictating that tenure is lost upon a teacher’s

voluntary acceptance of an assistant principal position runs counter to section 34-84 of the

School Code providing that tenure, once obtained, is “permanent.” 105 ILCS 5/34-84 (West

2010). But Medina has cited no authority for this result. If Medina’s interpretation of

“permanent” tenure was correct, the tenured teachers in Chicago Teachers Union, Local No. 1

v. Board of Education of the City of Chicago, 2012 IL 112566, who were subject to layoffs for

financial reasons, would have prevailed in their contention that they were entitled to be

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rehired once teacher vacancies again became available. Our supreme court rejected the

union’s contention that “permanent” tenure conferred a substantive right to continued

employment so that tenured teachers were entitled to a preference in filling vacant positions

over equally or less qualified new teachers. Id. ¶ 19. Similarly, after she voluntarily accepted

a promotion to a nontenured administrative position, Medina did not retain a substantive right

to be transferred to a tenured teacher position upon her dismissal for cause as an assistant

principal.

¶ 24 Medina’s argument on the meaning of “permanent” tenure is based on extrapolations of

case law holding that a tenured teacher can be involuntarily transferred from a nontenured

assistant principal position to a teaching position (Bart v. Board of Education of the City of

Chicago, 256 Ill. App. 3d 880, 884 (1993)), or from a guidance counselor position to a

teaching position (Newby v. Board of Education, Lake Zurich Community Unit School District

No. 95, 53 Ill. App. 3d 835, 837 (1977)), and that a school board cannot confer tenure where

it is not authorized under the School Code (Evans v. Benjamin School District No. 25, 134 Ill.

App. 3d 875, 882 (1985)). Medina reasons that because the Board could have transferred her

to a teaching position prior to her dismissal, it must do so now, and that because the Board’s

decision to confer tenure on an unqualified teacher is ultra vires, its decision to terminate her

as a “tenured teacher” other than for cause related to her performance as a teacher is likewise

ultra vires.

¶ 25 But the school employees in Bart and Newby who were involuntarily transferred from

nontenured administrative positions to teaching positions were not the subject of proceedings

to terminate them for cause from their administrative positions. And cases that hold that a

school board cannot confer tenure where not otherwise authorized do not automatically lead

to the conclusion that it is beyond the Board’s authority to efficiently manage its workforce

by requiring teachers who voluntarily seek promotions to nontenured administrative positions

to relinquish the ability to return to the tenured teaching staff. Finally, to the extent that dicta

in other cases cited by Medina in her reply brief suggests that administrators retain their

status as tenured teachers (see Van Dyke v. Board of Education of School District No. 57, 115

Ill. App. 2d 10 (1969); Koerner v. Joppa Community High School, District No. 21, 143 Ill.

App. 3d 162 (1986)), we note that none of these cases involved the Board rule at issue here

or a teacher’s express relinquishment of her ability to return to a teaching position.

¶ 26 It defies logic to suggest that when the Board has cause to terminate an administrator, it is

nonetheless obligated to continue to employ that person as a tenured teacher. Taken to its

logical extreme, Medina’s argument would mean that no matter the cause for an assistant

principal’s dismissal, that employee would always, and without exception, revert to a tenured

teacher position. This is so because the grounds for dismissal of an assistant principal (or any

other managerial employee) will always relate to conduct in that administrative position and

not as a tenured teacher. Thus, when an employee is serving in the capacity of assistant

principal and is not simultaneously teaching, the Board would never, under Medina’s reading

of the School Code, have “cause” to dismiss that employee as a tenured teacher.

¶ 27 Such a construction of the Board’s power under the School Code is inconsistent with the

strict construction of teacher tenure mandated in Bart. “[T]eacher tenure provisions of the

School Code are in derogation of common law and must be strictly construed in favor of the

school district.” Bart, 256 Ill. App. 3d at 883. See also Evans, 134 Ill. App. 3d at 879 (teacher

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tenure provisions must be strictly construed “so as not to unduly interfere with local board

responsibility to operate educational systems efficiently [citations]”).

¶ 28 Moreover, the procedures applicable to dismissal of assistant principals and tenured

teachers are different in important respects. Prior to a dismissal for cause, assistant principals

are entitled, pursuant to Board rule, to notice and a hearing before a hearing officer

designated by the Board.

¶ 29 In contrast, tenured teachers are provided a broad array of statutory protections prior to

dismissal. Dismissal of tenured teachers is governed by section 34-85 of the School Code,

which provides: “No teacher employed by the board of education shall *** be removed

except for cause.” 105 ILCS 5/34-85 (West 2010). Charges against a tenured teacher must be

approved by the general superintendent. Id. The teacher may demand a hearing before an

impartial hearing officer selected from a list maintained by the Illinois State Board of

Education and the hearing must be scheduled no less than 15 nor more than 30 days after

approval of the charges. Id. If the conduct that is the subject of the charges is deemed

remediable, the teacher must be given a written warning, prior to the initiation of charges,

that the conduct, if not corrected, can lead to charges. Id. Section 34-85 also specifies time

limits for the hearing officer’s decision and consequences for the failure to adhere to those

time limits. Id. Having sought and accepted a nontenured administrative position, Medina

received the process she was due prior to her termination and her arguments on appeal

improperly conflate her rights as an assistant principal with those attendant to her former

position as a tenured teacher.

¶ 30 CONCLUSION

¶ 31 Fundamentally, Medina’s loss of tenure resulted from her voluntary decision to seek and

accept a promotion to a nontenured assistant principal position. She was aware both that her

decision to accept the position resulted in the relinquishment of her right to return to a

tenured teacher position and that her right to remain in the assistant principal position was

contingent on her obtaining a Type-75 certificate, which she failed to do. As we are not left

with the definite and firm conviction that a mistake has been committed nor do we find any

error of law, we affirm the decision of the Board dismissing Medina as an assistant principal.

¶ 32 Affirmed.

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