The opinion
ILLINOIS OFFICIAL REPORTS
Appellate Court
Board of Education of Valley View Community Unit School District No. 365-U v. Illinois
State Board of Education, 2013 IL App (3d) 120373
Appellate Court THE BOARD OF EDUCATION OF VALLEY VIEW COMMUNITY
Caption UNIT SCHOOL DISTRICT NO. 365-U, Plaintiff-Appellant, v.
ILLINOIS STATE BOARD OF EDUCATION, STEVEN M. BIEREG,
and LYNN REID, Defendants-Appellees.
District & No. Third District
Docket No. 3-12-0373
Filed October 25, 2013
Held A hearing officer’s reversal of plaintiff school district’s decision to
(Note: This syllabus terminate defendant from her position as a school psychologist was
constitutes no part of upheld on appeal along with the order for her reinstatement with full back
the opinion of the court pay, since the procedural errors, including the presentation of evidence to
but has been prepared the hearing officer without a stenographer, the hearing officer’s failure to
by the Reporter of state that the order entered was subject to administrative review, and his
Decisions for the failure to issue a decision within 30 days, did not materially affect the
convenience of the school district’s rights or result in any substantial injustice, and the
reader.)
hearing officer’s findings and final decision were not against the manifest
weight of the evidence.
Decision Under Appeal from the Circuit Court of Will County, No. 11-MR-0767; the
Review Hon. Barbara N. Petrungaro, Judge, presiding.
Judgment Confirmed.
Counsel on Jeffrey M. Alperin (argued), of Tressler LLP, of Bolingbrook, for
Appeal appellant.
Lisa Madigan, Attorney General, of Chicago (Janon E. Fabiano and Brian
Barov (argued), Assistant Attorneys General, of counsel), for appellee
Illinois State Board of Education.
Gilbert Feldman (argued), of Cornfield & Feldman, of Chicago, for other
appellees.
Panel PRESIDING JUSTICE WRIGHT delivered the judgment of the court,
with opinion.
Justices Carter and McDade concurred in the judgment and opinion.
OPINION
¶1 In 2010, defendant-appellee Lynn Reid (Reid), a tenured school psychologist and
employee of plaintiff-appellant, Board of Education of Valley View Community Unit School
District 365-U (the District) received an unsatisfactory performance evaluation from her
principal, Donna Nylander. The District established a remediation plan for Reid but,
eventually, the District terminated Reid’s employment claiming Reid unsuccessfully
completed the plan.
¶2 Reid appealed her termination by asking the Illinois State Board of Education (ISBE) for
an administrative review of the District’s decision. Reid asked ISBE to sustain her position
that the District improperly terminated her tenured employment. Reid also asked ISBE to
recognize that the administrator who made the final decision following remediation was
Nylander, who “was unfair and biased against [Reid].” Thus, Reid claimed the District
terminated her tenured employment without reliable evidence that her professional
performance was, in fact, deficient before or after remediation.
¶3 After a lengthy process, based on a voluminous record, the administrative hearing officer
determined the District terminated Reid based on a less than fair remediation process
initiated and managed by Nylander. The hearing officer reversed the District’s decision and
ordered the District to reinstate Reid with full back pay.
¶4 The District now challenges ISBE’s administrative decision before this court. We
confirm.
-2-
¶5 BACKGROUND
¶6 The District employed Reid as a school psychologist from 2002 to 2010, making Reid
a tenured employee. In April of 2009, Reid’s principal, Nylander, performed an evaluation
of Reid and noted deficiencies in Reid’s performance. Consequently, Reid completed a
“Professional Growth Program” to try to correct the alleged deficiencies that Nylander
identified in her evaluation of Reid in April 2009.
¶7 On October 27, 2009, Nylander, once again, conducted an evaluation of Reid and
determined Reid had not successfully completed the goals in the professional growth
program. Consequently, on December 1, 2009, Reid received a formal copy of the
evaluation, citing specific deficiencies in her performance as a school psychologist.
¶8 Thereafter, the District appointed a consulting teacher for Reid, Robin Black-Vannoy,
and implemented a “remediation plan,” effective January 11, 2010, in accordance with
section 24A-5 of the School Code (105 ILCS 5/24A-5 (West 2008)).1 The District gave Reid
the opportunity to read, develop, and provide input concerning the remediation plan. Reid
signed a copy of the remediation plan, noting that Reid understood its content.
¶9 As required by the detailed remediation plan in place, the District began ongoing
informal observations of Reid’s performance. Nylander personally observed Reid on 24 out
of 29 occasions Reid was informally observed at work. In addition, Nylander, herself,
formally evaluated Reid’s performance in three separate, extensive, written evaluations
completed after January 11, 2010. The final remediation plan evaluation, dated June 3, 2010,
was also completed by Nylander and concluded Reid not only failed to correct her previous
performance deficiencies in 4 or 5 categories but, during remediation, became deficient in
23 areas of concern. Following Nylander’s final evaluation and based on Nylander’s
recommendation, the District terminated Reid’s tenured employment on July 6, 2010.
¶ 10 Shortly thereafter, Reid requested administrative review by ISBE of the District’s
termination decision, pursuant to section 24-12 of the School Code. 105 ILCS 5/24-12 (West
2010).2 In her request for administrative review, Reid asked the hearing officer to overturn
her termination because the District failed to provide reliable proof that she continued to
have skill deficiencies or actually unsuccessfully completed the remediation plan before her
termination. Reid also argued, before the hearing officer, that Nylander was unfair and biased
against her during the remediation plan process.
¶ 11 Pursuant to statute, the parties mutually selected the hearing officer and agreed Steven
1
The District’s brief cites the 1992 statute (105 ILCS 5/24A-5 (West 1992)), and the ISBE
brief cites the 2010 statute (105 ILCS 5/24A-5 (West 2010)). However, Public Act 96-861 (eff. Jan.
15, 2010) (amending 105 ILCS 5/24A-5 (West 2008) and other School Code provisions), but did not
become effective until after the start of Reid’s remediation plan. Thus, we use the language in effect
at the time of the start of Reid’s remediation plan (105 ILCS 5/24A-5 (West 2008)), which was the
language used by the hearing officer when referring to this section in his decision.
2
We use the statutory language from the 2010 statute, current at that time, when referring
to procedural matters used during the administrative hearing in 2011.
-3-
Biereg (the hearing officer) should be appointed by ISBE to preside over the administrative
hearing. On March 14, 2011, the administrative hearing took place.
¶ 12 However, before the hearing began, it became apparent that neither of the parties nor the
hearing officer made arrangements for a court reporter to be present. Consequently, the
hearing officer indicated he would digitally record the hearing for his own purposes and both
parties agreed to this arrangement.3 The hearing officer received the testimony of witnesses,
heard final arguments, and filed a 22-page written decision, on July 18, 2011, which
summarized the testimony of each witness before separately discussing the hearing officer’s
decision.
¶ 13 In this written decision, the hearing officer stated, “No transcript of the proceedings was
prepared although the Hearing Officer did record the Hearing.” The written decision included
six pages of facts outlining the evidence presented at the administrative hearing.4 The facts
set out below are included in the hearing officer’s summary of the evidence and testimony.
¶ 14 Reid worked at the District’s Independence School from 2002 until the end of the 2004-
05 school year. During those years, Reid consistently received excellent evaluations in all
categories. Beginning the 2005-06 school year, the District reassigned Reid to the Valley
View Early Childhood Center (Valley View), where Nylander was the principal. Reid had
not previously worked with Nylander before her assignment to Valley View.
¶ 15 In November of 2006, during Reid’s second year at Valley View, Nylander prepared
Reid’s first evaluation and gave Reid excellent ratings in all categories. In this 2006
evaluation, Nylander commended Reid “for her planning, methods and assessment skills, and
knowledge of her subject matter.”
¶ 16 In Nylander’s next evaluation, conducted nearly three years later in March 2009,
Nylander rated Reid as “unsatisfactory” in almost all categories and recommended Reid
should “undergo a Remediation at this time.” After Reid reviewed this evaluation, she
responded to and disagreed with Nylander’s conclusions.
¶ 17 Following Reid’s response, Nylander submitted a “revised evaluation” in April 2009,
which recommended “Re-employment with a Professional Growth Program,” and withdrew
the recommendation that Reid participate in a remediation plan. Reid agreed to participate
in the professional growth program because Reid said she felt she could accomplish the goals
listed in this program.
¶ 18 Reid testified that, at this point, she did not have a good working relationship with
Nylander. According to Reid, near the end of the 2009-10 school year, Nylander told Reid
3
Without objection, ISBE submitted an affidavit to the circuit court, prepared by the hearing
officer, explaining the circumstances surrounding conducting the administrative hearing without a
court reporter. According to this affidavit, neither party objected to conducting the hearing without
a reporter or indicated it would like to postpone any portion of the hearing in order to secure a court
reporter.
4
Since the hearing was not transcribed, as agreed by the parties, we derive the facts presented
at the administrative hearing as they were detailed in the hearing officer’s written decision.
-4-
she intended to terminate Reid’s employment. Nylander expressed that she would
dramatically increase Reid’s workload if Reid did not resign voluntarily, but promised to
provide Reid with a favorable letter of recommendation if Reid left voluntarily.
¶ 19 Reid provided the hearing officer with a copy of the letter of recommendation Nylander
wrote for Reid, dated May 16, 2009. The letter favorably discussed, in detail, Reid’s
qualifications, assigned duties, and abilities to successfully perform her duties as a school
psychologist. In the final paragraph, Nylander recommended Reid as a school psychologist.
¶ 20 During Nylander’s testimony before the hearing officer, Nylander denied having this
conversation with Reid and denied attempting to secure Reid’s voluntary resignation.
According to Nylander, Reid was “freaking out” after receiving a negative evaluation from
Nylander and Nylander simply used her own computer to show Reid the Illinois School Job
Bank Internet site to help Reid learn how to find open positions at other school districts.
Nylander said Reid actually requested Nylander to prepare a letter of recommendation for
her to help her secure employment as a school psychologist at another school district.
¶ 21 After the May 16, 2009, letter of recommendation, Nylander next evaluated Reid on
December 1, 2009. Nylander, once again, gave Reid a rating of “unsatisfactory” noting Reid
was deficient in the areas of preparation and planning, instruction and assessment, and
classroom management or learning environment. Reid strongly disagreed with this 2009
evaluation.
¶ 22 The District then established a “Final Remediation Plan” for Reid, effective on January
11, 2010. This plan detailed, in writing, the procedures to be followed and named Robin
Black-Vannoy as Reid’s consulting teacher. During this remediation process, Reid was
observed 29 times: 24 times by Nylander and 5 times by Dr. David Hehl, described as a
“qualified administrator.”5
¶ 23 According to the hearing officer, Nylander testified extensively about her informal
observations of Reid occurring after January 11, 2010, and the contents of her three formal
written evaluations of Reid dated February 23, 2010, April 16, 2010, and June 3, 2010.6 Hehl
testified briefly concerning his observations of Reid during the same remediation period.
Black-Vannoy, the consulting teacher, did not provide any documentation of her role during
remediation or voluntarily testify at the hearing. The hearing officer, in his facts, noted that
“there is no evidence in the record of any observation, counseling, or participation by Black-
Vannoy in the Remediation Process whatsoever.”
5
Reid produced emails Nylander sent to her entire department telling all of the teachers that
they were not to talk to or ask questions of Hehl without first going through Nylander.
6
Following the February evaluation, Reid prepared a written objection to that evaluation,
included in the record, wherein Reid stated, “In November 2009[,] Donna Nylander, for no apparent
reason, completely changed our job assignments, suggesting that -she was poor at planning our job
assignments in the Fall, or -she was ‘giving me four times more work to do.’ *** I was now assigned
to do half of the evaluations, instead of a chosen few. *** This was done to give me more work to
do as she had promised.”
-5-
¶ 24 Lisa Griffin, an occupational therapist, and Diane Butler, a special education teacher,
briefly testified at the hearing as members of the “Student Assessment Team.” Both said
Reid “could have provided more input into student assessments.”
¶ 25 In the “Discussion and Findings” section of his written decision, the hearing officer noted
that Reid worked as a school psychologist for the District for 10 years until her dismissal on
July 6, 2010. The hearing officer found the evidence established Reid worked at the District’s
Independence School from 2002 until the end of the 2004-05 school year and, during those
years, consistently received excellent evaluations in all categories. After Reid was reassigned
to Valley View at the start of the 2005-06 school year, where Nylander was the principal,
Nylander prepared Reid’s first evaluation in November 2006 and also gave Reid excellent
ratings in all categories.
¶ 26 Nylander did not prepare another evaluation of Reid until March of 2009, when Nylander
rated Reid as unsatisfactory in four categories. The hearing officer found that Nylander
criticized Reid in the areas of student assessment, communication and organizational skills,
and student post-assessment debriefing participation.7
¶ 27 The hearing officer found Reid presented “extensive documentary and testimonial
evidence rebutting the evidence presented by the District.”8 After reviewing the evidence, the
hearing officer, in his written decision, concluded:
“I cannot find that the [District] has met its burden of proof to show that [Reid] was
unsatisfactory and deserved to be terminated. The evidence does not show that [Reid]
was provided with a fair opportunity to rededicate her alleged deficiencies. Nylander’s
testimony at the Hearing consisted of her reports regarding the observations of [Reid].
Nylander provided little independent recollection of [Reid’s] behavior during the
Remediation Process. Further, while Nylander provided the overwhelming majority of
evidence on the side of the [District], Dr. Hehl, a trained psychologist, provided very
little substantive testimony. I note that the consulting teacher, who is required by the
Illinois School Code to be an integral part of the Remediation Process, was absent from
the Hearing and was not a participant in the Remediation Process. Finally, Nylander’s
glowing letter of recommendation was inconsistent with her view that [Reid] could not
function properly as a School Psychologist. It is inappropriate for an employer of any
kind to recommend a less than adequate employee to a potential employer as a means of
ridding itself of that employee. I note the burden of proof in this case is on the [District]
to prove [Reid] was an unsatisfactory School Psychologist. Based on the totality of the
7
In this evaluation, the record shows Nylander rated Reid as satisfactory in the area of
“Professional Growth.”
8
The documentary evidence consisted of Nylander’s notes of observations and evaluations,
a few notes from Hehl’s observations, and Reid’s very detailed, written comments and responses to
Nylander’s notes and evaluations of Reid (similar to an answer to a complaint in court), wherein
Reid explained changes in job assignments by Nylander in 2009; attached emails from Nylander and
other teachers showing confusion over job assignments, meetings, and Nylander ordering teachers
not to talk to Dr. Hehl about issues; and other similar extrinsic evidence supporting Reid’s position.
-6-
circumstances, I cannot find that the [District] has met its burden of proof to show that
[Reid] was provided with an adequate opportunity to be evaluated or to undergo a fair
and impartial Remediation Process.”
¶ 28 The hearing officer cited the role of the consulting teacher as specified in section 24A-5
of the School Code. 105 ILCS 5/24A-5 (West 2008). The hearing officer expressed his
concern that there was no evidence in the record documenting that the qualifications of the
consulting teacher met the requirements of the statute, or the consulting teacher actively
participated in the remediation process in any fashion.
¶ 29 In conclusion, the hearing officer’s order “sustained” Reid’s claim that the District failed
to prove Reid did not satisfactorily complete the remediation plan before her termination.
Therefore, the hearing officer overturned Reid’s dismissal and ordered the District to
reinstate Reid with full back pay.
¶ 30 Consequently, on August 16, 2011, the District filed a “Complaint for Administrative
Review” in the circuit court, pursuant to the Administrative Review Law of the Code of Civil
Procedure (735 ILCS 5/3-101 et seq. (West 2010)), naming ISBE, the hearing officer, and
Reid as defendants, and raised various contentions of error in the ISBE administrative
hearing. The Attorney General’s office filed an appearance on behalf of both the hearing
officer and ISBE and, pursuant to section 3-108(b) (735 ILCS 5/3-108(b) (West 2010)), filed
a certified copy of the record of the administrative proceedings over which the hearing officer
presided.9
¶ 31 On April 9, 2013, the circuit court found the hearing officer’s decision was not against
the manifest weight of the evidence. Accordingly, the trial judge affirmed the decision of the
hearing officer for ISBE.
¶ 32 The District filed a timely appeal with this court.
¶ 33 ANALYSIS
¶ 34 First, the District contends that reversal of the hearing officer’s decision is required due
to various procedural errors. Next, the District claims the hearing officer’s findings were
against the manifest weight of the evidence, in part, because he failed to give any weight to
Reid’s negative evaluations, prepared by Nylander, during the remediation plan period.
¶ 35 Reid contends the purported procedural errors were technical, at best, and the hearing
officer’s findings of fact were properly supported by the record and its documentary
evidence. The Attorney General filed a brief on behalf of the hearing officer and ISBE
(collectively ISBE) addressing only the procedural issues raised in the District’s appellate
brief and asserting any technical defects in the administrative hearing did not warrant
reversal.
9
ISBE’s certified copy of the administrative hearing record filed with the circuit court, as
part of its answer, consisted of 616 pages of documents and evidence.
-7-
¶ 36 I. Standards of Review
¶ 37 When reviewing administrative cases, this court reviews the decision of the
administrative agency and not the circuit court decision. Marconi v. Chicago Heights Police
Pension Board, 225 Ill. 2d 497, 531 (2006). To determine the applicable standard of review
of an administrative decision, the court must consider whether the question presented is one
of fact, one of law, or a mixed question of fact and law. Id. at 532. Rulings on questions of
fact will be reversed only if against the manifest weight of the evidence; questions of law are
reviewed de novo; and a mixed question of law and fact is reviewed under the clearly
erroneous standard. Id.
¶ 38 II. Procedural Errors
¶ 39 A. Court Reporter
¶ 40 First, the District argues that the failure to have a court reporter at the hearing
automatically requires reversal and a new hearing. Whether a party’s due process rights were
violated during the administrative hearing is a question of law this court reviews de novo.
Buckner v. University Park Police Pension Fund, 2013 IL App (3d) 120231, ¶ 21; Marconi,
225 Ill. 2d at 532.
¶ 41 The record on appeal includes an affidavit the hearing officer submitted to the circuit
court, without objection, indicating neither party arranged to have a court reporter present
for the hearing. Rather than delay the hearing, according to the affidavit, both parties agreed
to proceed with the hearing without a court reporter present knowing the hearing officer
would record the hearing.
¶ 42 When seeking review in the circuit court, neither party objected to the hearing officer’s
affidavit. In addition, neither party criticized the hearing officer’s summary of the testimonial
evidence, contained in the 22-page order, as incomplete or inaccurate. Finally, when before
the circuit court, neither party requested leave to supplement the hearing officer’s recitation
of the facts with an agreed statement of facts or bystander’s report.
¶ 43 Counsel for the District asserted, during oral argument before this court, that the lack of
a transcribed record prevented him from measuring the accuracy of the hearing officer’s
recitation of the testimony set out in the hearing officer’s written order. This argument is not
persuasive and even the District’s counsel, an officer of the court, does not suggest any party
has contested the accuracy of the hearing officer’s recitation of the testimony of each witness.
Moreover, the hearing officer indicated that, during Nylander’s testimony, Nylander had little
independent recollection and basically recounted the details set out in her written notes and
evaluations, which are also a part of this record and available for our review.
¶ 44 Reid and ISBE allege the District forfeited its right to argue the issue regarding the lack
of a transcript before this court. See Buckner, 2013 IL App (3d) 120231, ¶ 22. While
forfeiture may apply, we consider this issue more akin to one of invited error. In another
administrative hearing case, our supreme court held “[t]he rule of invited error or
acquiescence is a form of procedural default also described as estoppel.” Gaffney v. Board
of Trustees of Orland Fire Protection District, 2012 IL 110012, ¶ 33; In re Detention of
Swope, 213 Ill. 2d 210, 217 (2004). Thus, the rule prohibits a party from acquiescing to
-8-
proceed in one manner and then contending on appeal that the requested action was error.
Id. Based on existing case law, we conclude the absence of a stenographer does not entitle
the District to a new hearing before the hearing officer under the circumstances presented to
this court in the case at bar.
¶ 45 B. Findings of Fact
¶ 46 Next, the District claims the hearing officer failed to include findings of fact in his
decision. The Illinois Administrative Procedure Act provides, “A final decision shall include
findings of fact and conclusions of law, separately stated.” 5 ILCS 100/10-50 (West 2010).
Although there is no specific template as to how these findings must be laid out in the order,
our supreme court has explained that “a decision by an administrative agency must contain
findings to make possible a judicial review of the agency’s decision.” Reinhardt v. Board of
Education of Alton Community Unit School District No. 11, 61 Ill. 2d 101, 103 (1975).
¶ 47 Our careful review of the hearing officer’s 22-page order reveals that pages 15 through
21 of the hearing officer’s decision fall under the heading “Discussion and Findings.” In this
section, the hearing officer carefully detailed the facts he found were established by credible
testimony or documentary evidence and were relevant to his resolution of the issues.
Thereafter, the hearing officer carefully stated his conclusions based on those facts in that
portion of his order. Thus, we conclude the hearing officer’s decision adequately provided
his findings of the facts in a fashion sufficient for judicial review.
¶ 48 C. Evidence Regarding Consulting Teacher
¶ 49 The District contends, based on section 24A-5 of the School Code, that the hearing
officer erred by requiring the District to present testimony from Reid’s appointed consulting
teacher, Black-Vannoy. Section 24A-5(j) provides, in part:
“Districts and teachers subject to dismissal hearings are precluded from compelling the
testimony of consulting teachers at such hearings under Section 24-12 or 34-85, either
as to the rating process or for opinions of performances by teachers under remediation.”
105 ILCS 5/24A-5(j) (West 2008).
We note, the hearing officer did not compel either party to present the testimony of the
consulting teacher.
¶ 50 Although noting that the consulting teacher did not voluntarily appear before the hearing
officer to testify on behalf of either party, the hearing officer was obviously more troubled
by the fact that there was no evidence in the record documenting the consulting teacher’s
qualifications or her level of participation, if any, in the remediation process. The hearing
officer was justifiably concerned that, after expressing a desire to force Reid to voluntarily
resign sometime before drafting the May 16, 2009, letter of recommendation, Nylander
became Reid’s primary observer and solely conducted each one of the formal evaluations
documenting Reid’s continued and growing number of deficiencies as a school psychologist.
¶ 51 Similarly, we are also concerned that this record does not contain any negative
observations of Reid’s performance by the consulting teacher. In addition, there is nothing
-9-
in this record to suggest Reid failed to comply with and implement any constructive advice
the consulting teacher may have suggested to Reid during intensive remediation.
¶ 52 Further, the statute clearly dictates the role and qualifications of a consulting teacher.
Subsection (g), in part, provides the qualifications required of a consulting teacher, as
follows:
“[A] consulting teacher is an educational employee as defined in the Educational Labor
Relations Act, has at least 5 years’ teaching experience and a reasonable familiarity with
the assignment of the teacher being evaluated, and who received an ‘excellent’ rating on
his or her most recent evaluation.” 105 ILCS 5/24A-5(g) (West 2008).
Subsection (h) provides, in part:
“The consulting teacher shall provide advice to the teacher rated ‘unsatisfactory’ on how
to improve teaching skills and to successfully complete the remediation plan. The
consulting teacher shall participate in developing the remediation plan, but the final
decision as to the evaluation shall be done solely by the administrator ***.” 105 ILCS
5/24A-5(h) (West 2008).
The documentation presented to the hearing officer by Reid and Nylander did not indicate
the consulting teacher was qualified to serve in this capacity or actively participated in any
manner in the remediation process. Since the record does not contain evidence the consulting
teacher either shared, corroborated, or attempted to address Nylander’s concerns with respect
to Reid’s performance, or had any involvement with Reid to address Nylander’s concerns,
we agree the absence of information is significant and was properly considered by the
hearing officer. We conclude the hearing officer’s observations with respect to the consulting
teacher’s role were accurate, supported by the record, and did not violate the School Code.
¶ 53 D. Burden of Proof
¶ 54 The District claims the hearing officer incorrectly placed the burden of proof on the
District at the administrative hearing. During oral argument, counsel for the District stated,
with regard to the burden of proof before the hearing officer, as follows, “All we have to do
is to show that, by a preponderance of the evidence *** that the tenured employee failed to
complete the remediation plan with a satisfactory or better rating which constituted cause for
dismissal.”
¶ 55 We are aware that our supreme court has held, “[A] plaintiff to an administrative
proceeding bears the burden of proof, and relief will be denied if he or she fails to sustain
that burden.” Marconi, 225 Ill. 2d at 532-33. In this case, Reid framed the issue for the
administrative review hearing in terms of the lack of evidence supporting the District’s
contention that she failed to complete the remediation with a fairly determined and accurately
measured unsatisfactory rating.
¶ 56 Specifically, the hearing officer found, “The evidence presented does not show that
[Reid] was provided with a fair opportunity to remediate her alleged deficiencies.” In other
words, the hearing officer held Reid to her burden of proof to show the District did not have
an adequate basis to terminate her because the underlying remediation process was unfair.
-10-
¶ 57 Clearly, the hearing officer found Reid’s testimony credible regarding Nylander’s threat
to increase her workload if Reid did not resign. Reid’s testimony was corroborated by a copy
of Nylander’s favorable letter of recommendation for Reid if she voluntarily resigned, and
the record reveals Reid’s workload did increase based on Nylander’s reassignment of duties.
Reid’s evidence showed that Nylander did make significant reassignments of caseloads, in
November 2009, thereby significantly increasing the number of student evaluations to be
completed by Reid beyond those originally assigned to her in the past.
¶ 58 Since Nylander acted as both the primary observer of and final evaluator for Reid’s
performance during remediation, the hearing officer concluded the remediation process was
not designed to provide Reid with a fair opportunity to cure her deficiencies and avoid
termination through remediation. This finding is supported by the record.
¶ 59 Finally, we focus on the language used by the hearing officer when sustaining Reid’s
objection to the remediation process. In the conclusion of the hearing officer’s decision, the
officer wrote, “The [District] has failed to prove that [Reid] failed to satisfactorily complete
a Remediation Plan pursuant to Section 24A-5 of the Illinois School Code and therefore her
Dismissal is overturned.” Based on this language, we determine the hearing officer did not
misapply the burden of proof.
¶ 60 E. Failure to Render Decision Within 30 Days
¶ 61 The District also claims the hearing officer’s failure to render a decision within 30 days
of the hearing, as mandated by section 24-12 of the School Code (105 ILCS 5/24-12(d)(7)
(West Supp. 2011)), requires us to reverse the order to reinstate Reid with full back pay. The
statute at issue provides: “The hearing officer shall, within 30 days from the conclusion of
the hearing or closure of the record, whichever is later, make a decision as to whether or not
the teacher shall be dismissed pursuant to Article 24A of this Code or report to the school
board findings of fact and a recommendation as to whether or not the teacher shall be
dismissed for cause and shall give a copy of the decision or findings of fact and
recommendation to both the teacher and the school board.”
¶ 62 Under the Administrative Review Law, “[t]echnical errors in the proceedings before the
administrative agency or its failure to observe the technical rules of evidence shall not
constitute grounds for the reversal of the administrative decision unless it appears to the court
that such error or failure materially affected the rights of any party and resulted in substantial
injustice to him or her.” 735 ILCS 5/3-111(b) (West 2010). Additionally, our supreme court
has held that procedural due process in an administrative proceeding does not require a
proceeding in the nature of a judicial proceeding. Abrahamson v. Illinois Department of
Professional Regulation, 153 Ill. 2d 76, 92 (1992).
¶ 63 It is well established that mandatory and directory provisions of a statute can both be
couched in obligatory language, but the difference is whether noncompliance with that
obligatory language mandates a result due to noncompliance. People v. Robinson, 217 Ill.
2d 43, 54 (2005). Thus, the use of the word “shall” is not determinative as to whether the
statute is mandatory or directory, but it depends upon the legislative intent of the statute. Id.
at 54. “Whether a statutory command is mandatory or directory is a question of statutory
-11-
construction, which we review de novo.” Id.
¶ 64 Our supreme court, in addressing the mandatory versus directory dichotomy has held:
“[S]tatutes are mandatory if the intent of the legislature dictates a particular consequence
for failure to comply with the provision. [Citation.] In the absence of such intent the
statute is directory and no particular consequence flows from noncompliance.” People
v. Delvillar, 235 Ill. 2d 507, 515-16 (2009).
The Delvillar court held that a directory reading of a statute may still have consequences, but
acknowledges only that no specific consequence is triggered by the failure to comply with
the statute. Id. at 516 (citing Carr v. Board of Education of Homewood-Flossmoor
Community High School District No. 233, 14 Ill. 2d 40, 43-44 (1958) (a provision in the
election statute was directory where the statute did not expressly void ballots cast without
statutory affidavits)).
¶ 65 Section 24-12 of the School Code lists several remedies available for violation of this 30-
day rule. 105 ILCS 5/24-12 (West 2010). None of the express remedies provide for reversal
of the hearing officer’s decision issued beyond the 30 days. The statute expressly states,
“[ISBE] shall not lose jurisdiction to discharge a teacher if the hearing officer fails to render
a decision within the time specified in this Section.” Id. We note the remedies included in
this statute allow for the parties to select a new hearing officer to review the case, after 30
days, and render an expedient decision; or the hearing officer who is delinquent in rendering
a decision can be removed from the master list of hearing officers for ISBE. Id. Additionally,
section 24-12 specifically provides, “If the hearing officer fails to render a decision within
30 days, the State Board of Education shall communicate with the hearing officer to
determine the date that the parties can reasonably expect to receive the decision.”10 Id. Based
on the specific language of the statute, we conclude that this is a directory statute and the
hearing officer’s decision, issued after the 30-day period, is not invalid.
¶ 66 F. Failure to Include Appeal Language in Order
¶ 67 Next, as to procedural defects, the District claims the hearing officer’s decision should
be reversed by this court because, in his written decision, he failed to include language that
the decision was a final order subject to administrative review as required by section 10-
50(b) of the Administrative Procedure Act (5 ILCS 100/10-50(b) (West 2008)). This is a
technical defect that, in this case, did not affect the District’s due process rights. We note that
the District filed a complaint for administrative review in a timely manner asking the trial
court to review the hearing officer’s decision, therefore, the hearing officer’s failure to
include this information in his decision did not affect the District in any negative manner.
10
This clause of the statute was in effect at the time of the administrative hearing, March of
2011, and is therefore relevant to the case at bar. This provision was removed in an amendment to
this section that became effective on June 13, 2011 (Pub. Act 97-8 (eff. June 13, 2011)).
-12-
¶ 68 G. Cumulative Effect of Procedural Errors
¶ 69 As discussed above, we agree this record documents various procedural errors. First, the
hearing officer accepted the parties’ decision to present evidence to the hearing officer
without a stenographer. 105 ILCS 5/24-12 (West 2010). Second, the hearing officer did not
indicate the order was a final order subject to administrative review as required by section
10-50(b) of the Administrative Procedure Act (5 ILCS 100/10-50(b) (West 2010)). Third,
the hearing officer did not issue a decision within 30 days as required by section 24A-5(d)(7)
of the School Code (105 ILCS 5/24A-5(d)(7) (West Supp. 2011)). The District asserts the
cumulative effect of the combined procedural defects denied the District a fair hearing.
¶ 70 We have carefully reviewed the cumulative effect of all three errors. First, the absence
of a transcribed record, resulting from invited error, created the same disadvantage for each
party for purposes of review, but it is not alleged to have affected the outcome or the fairness
of the administrative hearing itself. In addition, neither party asserts the hearing officer failed
to provide an accurate recitation of the testimonial evidence presented by each side during
the administrative hearing. While we would have preferred to have a transcribed record for
purposes of review, the District, which acquiesced to this procedure, has not convinced this
court that this procedural error resulted in an inaccurate record upon review or an unfair
hearing for the District.
¶ 71 The hearing officer’s failure to issue the decision within 30 days and the failure to
identify the order as final did not negatively impact the outcome of the hearing or negatively
affect the District’s ability to seek appellate review. We conclude these errors did not
materially affect the District’s rights or result in a substantial injustice to the District. As
previously stated, “Technical errors in the proceedings before the administrative agency or
its failure to observe the technical rules of evidence shall not constitute grounds for the
reversal of the administrative decision unless it appears to the court that such error or failure
materially affected the rights of any party and resulted in substantial injustice to him or her.”
735 ILCS 5/3-111(b) (West 2010).
¶ 72 Therefore, after considering the cumulative effect of the undisputed procedural errors
present in this record, we conclude the combined effect of these errors did not result in a
substantial injustice to the District. See Abrahamson, 153 Ill. 2d at 92-93. We conclude the
District received a fair and impartial hearing in this case and was not denied due process.
¶ 73 III. Was the Decision Against the Manifest Weight of the Evidence?
¶ 74 In the alternative, the District claims that the hearing officer’s decision was contrary to
the manifest weight of the evidence and should be reversed. The Administrative Review Law
provides that the “findings and conclusions of the administrative agency on questions of fact
shall be held to be prima facie true and correct.” 735 ILCS 5/3-110 (West 2008). “ ‘An
administrative agency decision is against the manifest weight of the evidence only if the
opposite conclusion is clearly evident.’ ” Marconi, 225 Ill. 2d at 534 (quoting Abrahamson,
153 Ill. 2d at 88). Furthermore, when examining an administrative agency’s factual findings,
a reviewing court does not weigh the evidence or substitute its judgment for that of an
administrative agency, and if the record contains evidence to support the agency’s decision,
-13-
that decision should be affirmed. Id.
¶ 75 In his order, the hearing officer expressed that it was his job, as the hearing officer, to
“determine whether the principal properly concluded at the end of the Remediation period
that [Reid’s] performance was unsatisfactory.” The hearing officer heard testimony from
Reid and Nylander and considered a “voluminous record” of documentation from each
witness.11 When evaluating the evidence, the hearing officer took into consideration all of
Reid’s excellent evaluations, prior to being assigned to Nylander’s school in 2005,
Nylander’s first excellent evaluation of Reid in November of 2006, and Nylander’s May
2009 letter recommending Reid for future employment as a school psychologist, as well as
Nylander’s unsatisfactory evaluations of Reid in April 2009, October 2009, December 2009,
and the last three negative evaluations Nylander prepared during the remediation period
which began January 11, 2010. The hearing officer determined Reid’s testimony was credible
concerning Nylander’s expressed preference for Reid to resign or be subjected to increased
workloads and eventual termination. Since Nylander denied this conversation, the officer’s
findings indicated he did not view Nylander as a credible witness, especially with respect to
the timing of and reason for the favorable evaluation Nylander drafted for Reid on May 16,
2009.
¶ 76 Faced with conflicting evidence, it was the officer’s function, as the finder of fact, to
assess the credibility of the documentary information and the testimony of the witnesses and
to determine the appropriate weight to be given the evidence. Marconi, 225 Ill. 2d at 540. We
are not at liberty to substitute our judgment for that of the hearing officer with respect to
credibility or the weight to be given to the evidence presented. Based on a careful review of
the record, we conclude that the hearing officer’s findings and ultimate decision were not
against the manifest weight of the evidence.
¶ 77 CONCLUSION
¶ 78 For the foregoing reasons, we confirm the decision of ISBE, through the hearing officer,
reversing the District’s decision to terminate Reid and ordering the District to reinstate Reid
with full back pay.
¶ 79 Confirmed.
11
The 616-page certified copy of the record of administrative proceedings, filed with the
circuit court, consisted mostly of documents tendered by Nylander or Reid.
-14-