Hagerstrom v. Clay City Community Unit School District No. 10
343 N.E.2d 249
Ill. App. Ct.
1976
Check Treatment
Mr. PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Plaintiff-appellant, Virginia Hagerstrom, filed a petition for administrative review in the Circuit Court of Clay County from a decision of defеndant agency, Clay City Community School District No. 10, terminating for cause her position as a tenured teacher. After briefs were heard, the court affirmed the decision of the school board. Plaintiff appeals, alleging both constitutional and procedural infirmities in the dismissal proceedings.

Plaintiff’s dismissal was based upon allegations of lack of discipline in classrooms, improper use of corporal punishment and poor teaching practices. Although conflicting evidence was presented at th'e healing before the school board as to all of these allegations, plaintiff has not specifically attacked the sufficiency of the evidence ‍​‌​​​​​​​​‌‌​‌​‌​‌‌​​​‌​‌‌​‌‌‌​‌‌​​​​‌​‌‌​‌‌‌‌‌​‍below. In addition, plaintiff concedes that the procedures set forth in The School Code (Ill. Rev. Stat. 1973, ch. 122, par. 1 — 1 et seq.) for dismissal of teachers in contractual continued service (tenure) were followed. It is her contention, however, that the procedure set forth in the Code denied her due process of law.

Section 24 — 12 of the Code provided, at the time of plaintiff’s dismissal that, at the teacher’s request, a hearing be held beforе the board to review its initial decision to dismiss the teacher. The statute further provided that the teacher could apрear with counsel, cross-examine witnesses and present evidence. After the hearing, the board, by majority vote, was to decide whether to sustain or vacate the prior decision.

Mrs. Hagerstrom contends that the procedure allowing the sсhool board to sit in review of its own prior decision denied her the right to a hearing ‍​‌​​​​​​​​‌‌​‌​‌​‌‌​​​‌​‌‌​‌‌‌​‌‌​​​​‌​‌‌​‌‌‌‌‌​‍before an impartial tribunal. The argument is not a novel one and has been rejected by other appellate courts. (Pittel v. Board of Education, 20 Ill. App. 3d 580, 315 N.E.2d 179 (1974); Tetmeir v. Board of Education, 5 Ill. App. 3d 982, 284 N.E.2d 380 (1972); contra, Glover v. Board of Education, 21 Ill. App. 3d 1053, 316 N.E.2d 534 (1974), Mr. Justice Cravеn dissenting.) On the other hand, the United States Supreme Court commented unfavorably upon the procedure established by section 24 — 12 while holding that the due process issue was not properly preserved. (Pickering v. Board of Education, 391 U.S. 563, 578, 20 L. Ed. 2d 811, 823, 88 S. Ct. 1731, 1740, n. 2 (1968).) More recently, in Withrow v. Larkin, 421 U.S. 35, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975), the Court held that cоmbined investigative and adjudicative functions in an administrative agency do not necessarily deprive a litigant of a hearing bеfore a fairly constituted tribunal and that further evidence must be produced to overcome the presumption of the honesty and integrity of the adjudicators which indicates a substantial risk of actual bias or prejudgment. In a footnote to ‍​‌​​​​​​​​‌‌​‌​‌​‌‌​​​‌​‌‌​‌‌‌​‌‌​​​​‌​‌‌​‌‌‌‌‌​‍that opinion (n. 25), however, the Court distinguished situations such as the present one where a decision-making body is called upon to review its own prior decision. The Court noted unspecified “problems” occurring in the latter situation but did not discuss them. The distinction between thе two situations, however, has been described as “questionable.” 89 Harvard Law Review 1, 76 (1975).

The Illinois legislature has recently responded to the criticism of section 24 — 12 voiced here by appellant. Public Act 79-561, effective August 26, 1975, amends section 24 — 12 to providе for an independent hearing officer who is to conduct a formal hearing and render a decision once the schоol board passes a motion containing “specific charges” against a teacher. In the instant case, therefore, we are not required to proceed further than to determine if Mrs. Hagerstrom was unfairly dismissed from her position.

We would be inсlined to adopt the view expressed by Mr. Justice Craven in the dissenting opinion in Glover v. Board of Education and the caveаt expressed in Pickering v. Board of Education. We have therefore departed from the usual standard of review of deсisions ‍​‌​​​​​​​​‌‌​‌​‌​‌‌​​​‌​‌‌​‌‌‌​‌‌​​​​‌​‌‌​‌‌‌‌‌​‍of administrative agencies, which is to afford great weight to the factfinding process (Ill. Rev. Stat. 1973, ch. 110, par. 274), and to disturb this process only where the decision is against the manifest weight of the evidence. Davern v. Civil Service Com., 47 Ill. 2d 469, 269 N.E.2d 713 (1970).

Instead we have conduсted a. full and independent review of the record before us (see Pickering v. Board of Education) and feel compеlled to conclude that sufficient evidence was presented, not here challenged, to justify the action of the Board, keeping in mind at all times the board’s duty as governing body of the district to the public it serves and its power under section 10 — 22.4 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 10 — 22.4) to dismiss teachers “whenever, in its opinion, the interests of the schools require it,” subject, of course, to procedural safeguards.

Again we would emphasize that we do not understand plaintiff to quarrel with the facts as presented to the board, but rather to suggest that an independent decision maker might conclude that dismissal was not necessary оr justified on the facts presented. Our independent review of' the record, however, leads us to conclude that the decision reached was the only ‍​‌​​​​​​​​‌‌​‌​‌​‌‌​​​‌​‌‌​‌‌‌​‌‌​​​​‌​‌‌​‌‌‌‌‌​‍reasonable one. Even should we remand for rehearing under the new procedure, no diffеrent result could reasonably be expected. While we do not support or approve the procedure рreviously contained in section 24 — 12, we are convinced that Mrs. Hagerstrom was not treated unfairly and that a review by any bthér person or body would support the board’s decision.

Appellant contends that she was denied a fair hearing because thе high school principal, the main witness against appellant, was allowed to refer extensively to notes without a foundаtion having been laid for their use. Appellee contends that appellant has waived any error in this regard by failing to objеct at the hearing. Appellant did object generally on a few occasions but all objections were overruled. Thе record is unclear "as to what “notes” were used by the witness but does reveal that virtually all of the matters related by the witness wеte contained in the several exhibits admitted into evidence before the board without objection. Therefore, although the lengthy testimony was repetitive and unnecessary and perhaps unduly extended the proceedings, the witness’ testimony in no way could have prejudiced Mrs. Hagerstrom before the board.

The judgment of the Circuit Court of Clay County is affirmed.

Affirmed.

JONES and CARTER, JJ., concur.