THE BOARD OF EDUCATION OF VALLEY VIEW COMMUNITY UNIT SCHOOL DISTRICT NO. 365-U, Plaintiff-Appellant, v. ILLINOIS STATE BOARD OF EDUCATION, STEVEN M. BIEREG, and LYNN REID, Defendants-Appellees.
Appeal No. 3-12-0373
APPELLATE COURT OF ILLINOIS THIRD DISTRICT
Opinion filed October 25, 2013
2013 IL App (3d) 120373
Honorable Barbara N. Petrungaro, Judge Presiding.
A.D., 2013; Circuit No. 11-MR-0767; Will County, Illinois
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,
¶ 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.
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.
¶ 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 (
¶ 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.
¶ 11 Pursuant to statute, the parties mutually selected the hearing officer and agreed Steven Bierig (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
¶ 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 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-
¶ 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.”
¶ 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
¶ 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 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.
¶ 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
¶ 30 Consequently, on August 16, 2011, the District filed a “Complaint for Administrative Review” in the circuit court, pursuant to the Administrative Review Act of the Code of Civil Procedure (
¶ 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.
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 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)
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.
II. Procedural Errors
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 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
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.”
¶ 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.
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 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) .
“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 the 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 the consulting teacher‘s role were accurate, supported by the record, and did not violate the School Code.
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
¶ 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.
¶ 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
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 (
¶ 62 Under the Administrative Review Act, “[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.”
¶ 63 It is well-established that mandatory and directory provisions of a statute can both be
¶ 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.
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 (
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
¶ 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 of 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.”
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.”
¶ 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
¶ 76 Faced with conflicting evidence, it was 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 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.
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.