The opinion
Mr. PRESIDING JUSTICE G. MORAN concurring in part and dissenting in part:
The majority opinion has failed to consider several important aspects of this case. My consideration of them requires that I concur in part and dissent in part.
To begin with, the nonrenewal of appellant’s contract was invalid because no action was ever taken on the contract by the Board of Trustees. The Board voted to suspend the notice requirement and the dean of instructional service gave appellant oral and written notice of nonrenewal, but there is no indication that the Board either authorized or ratified his acts. While the Public Junior College Act (Ill. Rev. Stat., ch. 122, par. 101 — 1 et seq.), does not expressly require that the board itself take action, the authority to dismiss faculty is vested in the board (Ill. Rev. Stat., ch. 122, par. 103 — 42). The Illinois cases in point have not dealt with the provisions of the Public Junior College Act, but without the benefit of language expressly limiting the power to dismiss faculty to the board of education under other sections of chapter 122, they have uniformly held that the board of education must itself exercise its authority not to renew a teacher’s contract. (Elder v. Board of Education, 60 Ill.App.2d 56 , 208 N.E.2d 423 ; Board of Education v. Rockford Education Association, 3 Ill.App.3d 1090 , 280 N.E.2d 286 ; Bessler v. Board of Education, 11 Ill.App.3d 210 , 296 N.E.2d 89 .) These decisions rest on the sound rationale that where the people have chosen members of the board to exercise discretionary powers, such powers should only be exercised by those in whom they have placed their confidence. (Stroh v. Casner, 201 Ill.App. 281 .) Neither the fact that different sections of chapter 122 were involved nor their added notice provisions (see Ill. Rev. Stat., ch. 122, par. 24 — 11) disturbs the logic of the rule. The actions of the dean of instructional service should be considered of no effect.
The majority analyzes appellant’s arguments by examining his right to notice of nonrenewal alternatively assuming the college handbook does apply and does not apply. Although the handbook was not expressly incorporated, the only reasonable and fair construction of the language of section three of the contract is that the handbook was part of the contract as a rule or regulation. Any interpretation of the words excluding it would be illogical and make the language of the section meaningless. Furthermore, given the nature of the regulations contained in the handbook, it is clear that rights and duties were imposed on both parties. Appellant was entitled to notice of nonrenewal before March 15 as a contract right. By the same logic, the appellee Board argued it had the right to suspend the notice requirement. I cannot find any specific basis in the Public Junior College Act or college handbook for this asserted power to unilaterally alter contract rights of employees. Under Ill. Rev. Stat. 1971, ch. 122, par. 103 — 42 the Board has the power “to establish policies governing their employment or dismissal * * but this general grant of authority cannot be construed to support the Board’s unilateral decision to alter an employee’s contract rights. If they were allowed such power, they could redefine any employee’s duties and conditions of work by holding in abeyance any regulation they had promulgated not affirmatively required by statute. The Board has no such authority to arbitrarily tamper with existing contract rights. The Board must meet its contractual obligations like any other agency of the state. Moreover, even assuming the Board had such extraordinary authority, this conclusion would not affect the Board’s duty to take action itself concerning the nonrenewal of appellant’s contract.
The majority raises as a defense that appellant failed to comply with the grievance procedure set out in the handbook. A close examination of the terms of the procedure reveals that it was intended to cover complaints concerning working conditions, not disputes about dismissal or non-compliance with the formal requirements for discharge. If not totally inapplicable, the procedure is so ill-suited to provide the employee with a reasonable chance to defend against the administration’s actions that the Board should not be able to set up the defense of failure to exhaust administrative remedies when the remedies provided are futile.
While the Board wrongfully failed to comply with the procedural requirements for not renewing appellant’s contract, the relief appellant seeks, mandamus, is inappropriate in this case. The majority correctly states the rule that to obtain mandamus relief, the relator must show “not only a clear right to the relief sought to be compelled, but also a corresponding duty on the part of the respondent, the defendant Board of Trustees, to do the act sought to be compelled * * Appellant has failed to demonstrate a clear right to reinstatement or a clear duty on the part of the Board to do so. The injury appellant has suffered though real, does not create a right to such an extraordinary remedy. Similarly, the Board’s omissions cannot be reasonably deemed to create such a great duty. Since appellant received verbal notice shortly after March 15, the appellees’ conduct cannot be considered arbitrary. Appellees’ decision not to renew appellant’s contract due to financial problems was not unreasonable, arbitrary or discriminatory. For these reasons, I concur in the court’s judgment that mandamus is inappropriate.