# Aulwurm v. Board of Education

> Appellate Court of Illinois · November 17, 1976 · 43 Ill. App. 3d 963

URL: https://www.frixlaw.com/law-library/cases/9525470

## Case

- **Full name:** ROY AULWURM, Plaintiff-Appellant, v. THE BOARD OF EDUCATION OF MURPHYSBORO COMMUNITY UNIT SCHOOL DISTRICT OF JACKSON COUNTY, Defendant-Appellee
- **Court:** Appellate Court of Illinois
- **Decided:** November 17, 1976
- **Citations:** 43 Ill. App. 3d 963; 2 Ill. Dec. 772; 357 N.E.2d 1215; 1976 Ill. App. LEXIS 3410
- **Precedential status:** Published
- **Opinion:** Dissent by Moran
- **Judges:** Eberspacher, Moran
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Mr. JUSTICE GEORGE J. MORAN, dissenting:
The majority opinion affirms a trial court decision based on a charge never presented by the Board and, consequently, never defended by Aulwurm. It is stated that while the charges made by the Board are of a remediable nature when considered separately, the composite effect of the charges elevates their significance to a standard of irremediability. No other decision is cited as sustaining this result, nor does the majority bother to explain the rationale.
Section 24 — 12 of the Illinois School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24 — 12) provides in relevant part:
“Notwithstanding the entry upon contractual continued service, any teacher may be removed or dismissed for the reasons or causes provided in Section 10 — 22.4 in the manner hereinafter provided.”
Section 10 — 22.4, one of the provisions dealing with the duties of the school board, states the grounds for dismissal in the following manner:
“° ° * for incompetency, cruelty, negligence, immorality or other sufficient cause and to dismiss any teacher, whenever, in its opinion, he is not qualified to teach, or whenever, in its opinion, the interests of the school require it, subject, however, to the provisions of Sections 24 — 10 to 24 — 15, inclusive. ” * *”
The statements above and the following language from section 24 — 12 indicate a clear legislative intent that the Board is to determine all formal charges and that the teacher is to be apprised of the nature of these charges prior to the Board’s hearing in order to prepare a defense:
“If the dismissal or removal is for any other reason or cause it does not become effective until approved by a majority vote of all members of the board upon specific charges and after a hearing, if a hearing is requested in writing by the teacher within 10 days after the service of notice as herein provided. * * ” If so requested, a bill of particulars shall be delivered to the teacher, within five days after receipt of the request. # ° ” The teacher has the privilege of being present at the hearing with counsel and of cross-examining witnesses and may offer evidence and witnesses and present defenses to the charges. The board may issue subpoenas, requiring the attendance of witnesses at any hearing and, at the request of the teacher against whom a charge is made, shall issue such subpoenas, but it may limit the number of witnesses to be subpoenaed in behalf of the teacher to not more than 10. All testimony at any hearing shall be taken under oath. 0 0 0 Before service of notice of charges on account of causes that are considered remediable, the teacher shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges. The decision of the board as to the existence of reasons or causes for dismissal or removal is final unless reviewed as provided in Section 24 — 16 of this Act.” Ill. Rev. Stat. 1973, ch. 122, par. 24 — 12.
In my opinion, the above statutory references make it clear beyond doubt that the legislature intended to vest the Board with the sole and exclusive right to determine the charges for dismissal of a teacher and that all charges must be specificaUy brought out at the Board hearing in order to allow an adequate defense against them. (See Paprocki v. Board of Education, 31 Ill. App. 3d 112, 114 , 334 N.E.2d 841 .) However, neither the specific charges sent to Aulwurm nor the requested bill of particulars stated that the totality of the charges created a condition of irremediability. The record reflects that the first reference to the composite effect of remediable charges attaining the status of irremediability was made by the trial judge when he affirmed the decision of the Board:
“That the charges against the plaintiff, a tenured teacher, when considered singly and separated from the other charges and facts surrounding each of them, were remedial in nature; however, the plaintifFs course of conduct during his employment that culminated in the charges of failure to follow instructions of his supervisors and failure to comply with stated policies of the defendant Board of Education continued for a sufficient period of time without remedy by the plaintiff so as to become irremedial in nature obviating the necessity of written notice thereof by the Board required by Ill. Rev. Stats., 1973, ch. 122, par. 24 — 12.”
This was a charge of a separate and distinct nature not previously argued by the parties. In reaching this conclusion, the trial judge violated two provisions of section 24 — 12 by making a new charge he was not authorized to make and by depriving Aulwurm of notice of this charge and the opportunity to defend against it. Since this point provided the basis for the trial court’s decision, I feel that the judgment was clearly erroneous and effectively circumvented the spirit and purpose of section 24 — 12. Sustaining such an error when the trial judge determined that the charges by the Board were individually remediable cannot be justified.
Even if the Board had specifically charged that the accumulation of other charges constituted an irremediable cause for dismissal, I cannot agree that the record supports such a conclusion.
The first charge in the bill of particulars concerned plaintiff’s failure to file lesson plans as required by the school board. The evidence indicates that the plaintiff was aware of the requirement to file and was reminded on several occasions through performance reports and discussions with his superiors of the requirement but failed to file except sporadically. Under either standard of review, this particular charge is amply supported by the evidence.
The second charge in the bill of particulars dealt with plaintiff’s failure to file absence reports. Through the use of a special form, the parents of the school child would be informed when the number of absences from a particular class reached the total of three, and again at the total of five, and again at the total of seven. After seven absences, the student would automatically fail the course despite his actual performance on the test in the course. The evidence indicates that the plaintiff failed to submit these forms during the initial portion of the 1974-1975 school year. The evidence also indicates that the plaintiff, after he was specifically instructed to submit the reports, did in fact comply. Further, the plaintiff submitted reports of absences to the administration, although initially failing to submit the special form.
Plaintiff was also cited for his failure to submit names of students eligible for special recognition. The evidence clearly indicates that the recipients of the awards were juniors and seniors at the school. The plaintiff’s classes were composed primarily of freshmen and sophomores and he had very little contact with the older students. The evidence also establishes that other teachers turned in blank forms because they had insufficient knowledge of which student to nominate. Their failure to nominate any students was apparently not considered to have caused irreparable harm to the students or the school and the failure of the plaintiff to return his blank form cannot seriously be considered as causing irreparable harm.
The fourth charge in the bill of particulars concerned plaintiffs failure to produce a play during the 1973-74 school year. Plaintiff was assigned to produce a play in the fall of 1973. In December of 1973, the plaintiff, the principal, and two other teachers decided to present a musical. In January of 1974, a play was chosen and ordered. The plaintiff, not personally knowledgeable in the area of musicals, relied upon the advice of the school band instructor. He was informed that the musical was satisfactory and could be presented after six weeks of preparation. By March the material had not arrived. The plaintiff called to determine the status of the order and learned that stringed instruments were necessary. He then was informed by the band instructor that the instruments were not available to the band and therefore cancelled his order. As an alternative, plaintiff decided to produce four one act plays. Three of the plays were obtained from the school library and the fourth from the Southern Illinois University Library. After rehearsals had begun, the principal decided that some of the material was objectionable and cancelled the production. While it is undoubtedly unfortunate that no play was presented, the evidence tends to prove that the plaintiff faithfully attempted to perform his duty and the production failed through unforeseen circumstances rather than through any fault of the plaintiff.
The final charge in the bill of particulars concerned the performance of the plaintiff in his duties as assistant football coach. The evidence shows that the plaintiff was not present when football equipment was distributed prior to the commencement of school. However, the evidence also shows that plaintiff was vacationing in Arizona, that the equipment was distributed prior to the time practice could begin under the Illinois State High School Association Rules, and that plaintiff had returned by the first practice. The evidence indicates that plaintiff was late for one of the games. Prior to the game he informed the other assistant coach of the possibility of his late arrival. He was forced to drive to St. Louis to check on the repairs of his automobile which had been damaged in an accident when bad weather and heavy traffic delayed his return.
The plaintiff was also cited for failure to follow the directive of the head football coach to substitute for the quarterback during a football game. Plaintiff had refused because the substitute had not practiced during the week prior to the game and also because he believed he had sole responsibility for the offensive team as he had the two previous years. The evidence is insufficient to sustain a finding that plaintiff was ever informed of the change in his status.
Plaintiff’s failure to aid in the collection of equipment at the end of the season was also adequately explained. His unimpeached testimony indicated that the principal had granted him a personal leave in order to effect the return of his automobile from St. Louis. The evidence here, as with all the alleged deficiencies in his performance of coaching duties, is insufficient to support a dismissal.
Evidence as to plaintiff’s alleged failure to prepare a syllabus and to perform his duties as wrestling coach were not cited in the bill of particulars requested by plaintiff and thus were improperly introduced at the hearing.
It is therefore apparent that the only charges supported by the evidence concerned the plaintiffs failure to file lesson plans and submit absence forms. Under the test of irremediability noted by the majority, the Board must have found that irreparable damage had occurred as a result of these failures. Thus, even if the majority’s doctrine of accumulated error had legal foundation, it could not be legitimately employed in the instant case.
The dismissal of a tenured teacher is not a procedure that should be lightly undertaken. Not only are the teacher’s source of livelihood and expectations of continued employment at stake, but the school and the young people who attend the school may also be detrimentally affected. Where, as in this case, a teacher has served as a football coach, a wrestling coach and a theatrical director, as well as assuming his normal teaching responsibilities, the termination of his services for nearly insignificant reasons creates a grave injustice. For these reasons, I believe that the orders of the circuit court and the board of education should be reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9525470. Public record. Not legal advice.