Walczak v. Board of Education of the City of ChicagoWalczak v. Board of Education of the City of Chicago
ORDER
¶ 1 Held: The circuit court‘s judgment denying administrative review of a decision to terminate a tenured Chicago Public Schools teacher is affirmed. The Chicago Board of Education did not violate plaintiff‘s due process rights when, after an
¶ 2 Plaintiff Harriet Walczak appeals from a circuit court judgment dismissing her complaint for administrative review of a decision by defendant the Board of Education of the City of Chicago (the Board) to terminate her employment as a tenured teacher in the Chicago Public School system. After the Board issued its order and resolution dismissing Walczak from her employment with the Board, Walczak filed an amended complaint for administrative review in the circuit court seeking an order reversing the Board‘s decision. The trial court affirmed the Board‘s decision and Walczаk filed this timely appeal.
¶ 3 In this appeal, Walczak argues: (1) the Board violated her right to due process when it disregarded the findings of the Hearing Officer and substituted its own findings; (2) her remediation process was defective as a matter of law; (3) the Fresh Start program under which she received remediation was void at the time of implementation; and (4) the Board erred in rejecting the testimony of her expert witness. For the reasons set forth below, we confirm the Board‘s decision and affirm the circuit court.
BACKGROUND
¶ 4 Harriet Walczak was a licensed and tenured teacher who had been employed by the Chicago Public School system for 30 years until her employment was terminated. Her last teaching assignment before her termination was at Wells Community Academy High School (Wells). At that time she primarily taught English to juniors and seniors, although she had
¶ 5 Walczak chose the remediation process set forth in Amendment # 6 to the CBA. The “Fresh Start” program became applicable to tenured teachers during the 2007-08 school year pursuant to Amendment # 6 to the parties’ CBA. Under the Fresh Start program, any tenured teacher who received an unsatisfactory rating is assigned to work with a mentor-coach during a remediation period which is designed to improve teaching skills. The mentor first meets with the teacher and principal to develop a plan for remediation. Thereafter, the mentor is to meet with the teacher, observe the teacher, confer with the teacher regarding the mentor‘s observations, and perform model teaching or co-teaching. The mentor and teacher are also to talk about the teacher‘s strengths and weaknesses, and the mentor is to give suggestions for improvement. As part of the process, the principal is required to make a preremediation observation, an observation during the remediation period, and a postremediation observation, at which time the
¶ 6 Walczak‘s mentor was Ellen Kelly. The remediation period was twenty weeks between December 2007 and May 2008. In early December 2007, principal Jackson, Kelly, and Walczak developed a written remediation plan. The remediation plan identified specific weaknesses in Walczak‘s teaching performance that needed to be corrected during the remediation: that Walczak (1) lacks skill in planning; (2) fails to exercise appropriate classroom management and control; and (3) fails to demonstrate appropriate personal characteristics and professional responsibility in that she fails to adhere to accepted policies and procedures of the Chicago Public school system.
¶ 7 At the conclusion of the remediation program, Jackson determined Walczak had not satisfactorily met the remediation goals and recommended her discharge. The chief executive officer of the Chicago Public Schools notified Walczak she would receive an administrative hearing before a Hearing Officer pursuant to section 34-85c of the Illinois School Code (
¶ 8 At the hearing, Jackson testified she was hired as principal of Wells for the 2006-07 school year. During that year she observed Walczak‘s classroom more than 10 times. Jackson
¶ 9 Based upon her observations during the previous year, in the 2007-08 school year Jackson reduced Walczak‘s teaching assignment from five classes to three, and reduced the number of her students by about half. In October 2007, Jackson observed that Walczak was not adequately prepared. Jackson testified that Walczak‘s questions did not motivate the students but only required them to recall information, which is a basic level of knowledge. Jackson testified that good teachers present lessons in more than one way--not just by lecturing. They use visual materials or handouts they can adjust for the variety of learning styles. Walczak was lecturing in the front of the classroom, not allowing student interaction. She had not assigned seats.
¶ 10 In November 2007 Jackson met with Kelly and Walczak to establish the goals of the remediation plan. Jackson testified that under the remediation plan Walczak was required to: (1) adequately prepare for class; (2) set high expectations for all students; (3) use a variety of instructional strategies, such as lecture, small group instruction and peer group interaction; (4) ask questions that require students to use different types of thinking--analytical, practical, creative and research-based; (5) implement strategies and interventions for special needs students; and (6) consistently respond to disruptive behavior in ways that demonstrate respect
¶ 11 Kelly testified that prior to mentoring Walczak, she received extensive training on the Fresh Start teacher-evaluation rubric. In 2006-07, she mentored 14 probationаry nontenured teachers for 40 hours each. After evaluating their teaching, she recommended that all 14 receive teaching contracts. Walczak was the first tenured teacher Kelly mentored. During Walczak‘s remediation, Kelly regularly visited Walczak and coached her in areas needing remediation. Kelly provided more hours of coaching than were required under the Fresh Start agreement. Kelly spent 52 hours observing Walczak‘s classrooms, modeling appropriate teaching and classroom-management techniques, and assisting Walczak with lesson planning and presentation. Most of Kelly‘s classroom visits began in the middle of a class period. Kelly testified that she observed Walczak‘s students address her as “b*tch” and that the students regularly told Walczak to “f**k off.” Kelly also testified that Walczak was taunted by her students when Kelly entered the room with the students saying to Walczak: “[Kelly‘s] here to fire your ass.”
¶ 12 Kelly addressed two main issues during the remediation period: (1) controlling student behavior and, (2) lesson planning and presentation. Kelly asked Walczak to email her lesson plans to her or place them in her mailbox at Wells. During the first week of remediation, Walczak told Kelly she did not have any time during the next week to review lesson plans. During the second week, she told Kelly she did not have time to meet because she was overwhelmed with pаperwork. In mid-January 2008, Walczak said she would have no time to meet with Kelly the following week because she was overwhelmed with finals and report cards.
¶ 13 Kelly testified that Walczak did not understand how to implement lesson plans which had
¶ 14 During Kelly‘s second observation, only 2 of Walczak‘s 11 students were on task. The others were using cell phones to take pictures, sleeping, listening to music, and crawling on the floor. When Kelly observed Walczak‘s classroom in late January, 3 of the 15 students were making friendship bracelets, 1 was listening to music on her cell phone, 4 were coloring in coloring books. The students ignored Walczak‘s request to put away their bracelets. When Kelly walked near them, they complied. Kelly repeatedly urged Walczak to walk around the room to monitor the students’ work and to enforce her rules. The Fresh Start rubric requires teachers to circulate regularly through the classroom and actively engage students.
¶ 15 At Walczak‘s request, Kelly modeled one-on-one monitoring. Kelly selected a student Walczak battled every day. When Kelly began to talk to him about the assignment, he turned off his iPod. Kelly praised his work and asked questions to encourage his thinking. He finished the assignment and did not put his headphones back on for the rest of the period. As Kelly continued walking around, other students began to work on the assignment as well. After observing Kelly‘s monitoring, Walczak said she would try it.
¶ 16 At the end of January, Kelly asked Walczak to re-teach the students her rules of classroom conduct and to follow through with the consequences she had established. Kelly made the same request in mid-February. Walczak told Kelly she sometimes felt sorry for the students
¶ 17 On February 20 and March 5, Kelly asked Walczak to address all of her students’ off-task behavior and disrespectful remarks. Kelly consistently noted that Walczak did not provide direction or instruction, but simply read to the students, asked a few basic recall questions, then assigned the students to work independently.
¶ 18 In early March, Kelly noted that Walczak did not seem to understand that assigning students to read independently and then answer questions was not teaching. She asked Walczak to teach a “focus lesson” addressing the skill highlighted in her lesson plan. Kelly broke down the components of instruction, including building uр the background of a story, reviewing vocabulary, breaking the reading into parts and leading discussions to ensure the students understood the text, and monitoring and coaching the students while they worked independently.
¶ 19 At the end of March, Kelly co-taught with Walczak and special education teacher Ms. Marzen. Walczak called security to remove a student who cursed at Kelly.
¶ 20 During the first week of April, Walczak ignored Kelly‘s repeated requests to meet. When they did meet, Walczak told Kelly the co-teaching had been very helpful. Walczak refused to meet with Kelly the following week because she was preparing for mid-term exams.
¶ 21 Kelly testified that Walczak was not concerned with her lesson plans and Walczak did not provide them to Kelly to review. On April 25, Walczak told Kelly she had no time to meet that week, so Kelly observed her classroom instead. Walczak talked to each student, asked about their work and encouraged them. She gave a writing assignment without providing any direction.
¶ 22 Kelly testified that on May 6, 2008, nine days before the remediation ended, the lesson plan Walczak posted was one month old. Walczak had three questions written on the blackboard. Walczak answered the first question--the author‘s age. Kelly pointed out that the questions in Walczak‘s lesson plan called for higher order thinking but the questions Walczak wrote on the board sought only basic recall. Three days before the remediation ended, Walczak did not have any lesson plans outlined and Kelly again referred her to the online lesson plans, but Walczak was not interested. On the last day of remediation, Walczak still had not outlined her lesson plans nor had she read the story she was planning to teach. Kelly explained to Walczak that it was important for the teacher to read the story before teaching the class so she could decide how to present the lesson.
¶ 23 The disciplinarian for Wells, Howard Frye, testified that there were worse students in the school than those in Walczak‘s classroom. He testified that police were regularly called to the school to deal with gang fights. Frye testified that Walczak referred more students to him for misconduct than any other teacher. He testified that other teachers who had the same students did not refer them to him as often.
¶ 24 Retired Chicago Public Schools (CPS) teacher Carlene Blumenthal testified for Walczak.
¶ 25 Blumenthal opined that Kelly was not qualified to mentor Walczak and was a detriment to the remediation process. Blumenthal criticized Kelly for spending only 21 hours observing Walczak‘s classroom during the remediation period. Blumenthal never observed Walczak teaching during the 2007-08 school year.
¶ 26 Blumenthal opined that Kelly‘s entries into the classroom in the middle of the period were disruptive. Blumenthal opined that Kelly failed to note that the student‘s in Walczak‘s class were English as a Second Language (ESL) and special education students. These students have learning and behavioral disabilities which Kelly did not take into account. Blumenthal testified that Jackson removed a special education teacher from Walczak‘s clаssroom. Blumenthal opined that a special education teacher would have helped to modify the lesson plans to accommodate and account for the individual differences of the students.
¶ 27 Blumenthal opined that it was unconscionable that Kelly did not get the lesson plans to properly judge Walczak. Blumenthal testified that she was never in a classroom as a teacher, cooperating teacher, or supervisor without first picking up a copy of the lesson plans in the office
¶ 28 Blumenthal testified that she reviewed Walczak‘s lesson plans and found them adequate. Blumenthal opined that Kelly had no basis to judge or assist Walczak because she had no training or experience in the areas Walczak taught. Further, Blumenthal opined that Kelly did not offer anything that would enable Walczak to improved her style of teaching, her method of teaching or her relationships with the students. Blumenthal testified Kelly had no relevant experience to judge or assist Walczak. Blumenthal conceded that the Fresh Start agreement does not require the mentor to have the same subjеct matter knowledge as the teacher under remediation. Blumenthal opined that Jackson could not adequately observe Walczak‘s progress when there were just two students present during Jackson‘s final classroom observation.
¶ 29 Walczak testified that she was assaulted six times in seven weeks by students during the remediation period. Walczak testified that she attempted to control the students’ behavior by sending them to the school disciplinarian, Howard Frye, a recent hire by Jackson. Frye merely sent the students back to Walczak‘s classroom without meting out any discipline whatsoever. Walczak testified Jackson made a classroom visit at the mid-point of the remediation period on March 4, 2008. Walczak testified that during the visit, Jackson asked her students whether she was too old to teach. Jackson visited the classroom again on May 15, 2008, when only two students were in the classroom, then conducted a post-visitation conference with Walczak and informed her that her performance did not meet expectations.
¶ 31 The report further found that Jackson was under severe political pressure from the local alderman, who actively sought to have a Hispanic in the position of principal at Wells and opposed Jackson‘s continued service at the school. Jackson is an African-American woman in her early 30s, who began as Wells’ principal in 2006--her first assignment as a principal. In 2007-08, Jackson rated four tenured teachers, including Walczak, as unsatisfactory. None of the four teachers were Hispanic. At the close of Walczak‘s period of remediation, Jackson was transferred from her position as principal and reassigned to another school as an assistant principal for the following school year. Jackson‘s new position was created for her pursuant to a settlement reached between her and the Bоard in an effort to dispose of litigation regarding her claims of racial harassment by various school officials.
¶ 32 The report further found that Walczak was unable to properly defend herself against the unsatisfactory teaching charge because the assistant principal of Wells only allowed her 15
¶ 33 In respect to mentor Kelly, the report found:
“Kelly appears to be a well-intentioned person with little relevant teaching experience. She was assigned to mentor the grievant, an experienced credentialed teacher. Kelly had a gap in her own education with a late start in attaining her formal higher education. She had trained to be a religious person, a nun, and did much service for her church.
Kelly was merely and barely ‘paper-qualified’ to serve as a mentor/coach under the law, rules and procedures governing the Board and this program, but she was only barely qualified and no more than barely qualified ***. This was Kelly‘s first experience as a mentor coach and the grievant was her first assigned tenured teacher. Kelly had no professional teaching endorsements or certification for high school teaching. Her education and experience in the areas of grievant‘s assignments were limited or absent. In fact, at the time of the remediation, her own teaching certification was not recorded. This could well be considered a fatal flaw in meeting the requirements of the process. In the totality of circumstances with all of the many other deficiencies, this fact has weighed against the merits of the Board‘s case as well. It is not a major factor. Her lack of fundamental life experience is significant.”
¶ 34 The Hearing Officer‘s report found that Kelly‘s mid-class visits distracted the students and resulted in many going off-task. According to the Hearing Officer, on one occasion, a
¶ 35 After reviewing the report, the Board rejected the findings and recommendation to reinstate Walczak. In a written opinion, the Board wrote: “It is difficult to distinguish actual ‘findings of fact’ and ‘conclusions of law’ from the meandering recitations in the first 200 pages in the Hearing Officer‘s recommended decision.” The Board noted that the Hearing Officer found Kelly “paper qualified” to mentor Walczak and that he exceeded his authority when he added additional requirements, such as requiring the mentor to have the same amount of teaching experience, at the same grade level and in the same subject matter, as the unsatisfactory teacher. The Board rejected the Hearing Officer‘s finding that there was a “suggestion” that principal Jackson‘s unsatisfactory rating of Walczak was motivated by her race or age.
¶ 36 The Board found that the “Individual Educational Plans” of the special education students assigned to Walczak did not require a special education teacher or assistant. The Board also stated there is no evidence to support Hearing Officer‘s finding that the well-behaved students were removed and replaced with poorly-behaved special education students. The Board rejected the Hearing Officer‘s finding that Jackson was an inexperienced and inеffectual administrator as
¶ 37 The Board rejected the Hearing Officer‘s finding that Blumenthal was qualified to give expert testimony in the area of adolescent psychology and further rejected any opinion testimony she offered in that area. The Board found that Blumenthal lacked any degree or credential in the field of psychology, and was therefore unqualified to render an expert psychological opinion.
¶ 38 The Board then addressed Blumenthal‘s criticisms of Kelly. The Board noted that the Hearing Officer found Blumenthal had “great credibility” in her criticisms of the deficiencies Kelly noted in her testimony and logs regarding Walczak‘s performance. The Board further noted that the Hearing Officer acknowledged that he based his opinion, that Jackson was wrong in her evaluation of Walczak, upon Blumenthal‘s testimony.
¶ 39 The Board noted Blumenthal never held an administrative Type 75 state certificate that would qualify her to evaluate a teacher, nor has she ever been responsible for formally evaluating any teacher‘s performance. The Board further noted that Blumenthal never observed Walczak‘s classroom during the remediation. Blumenthal admitted that she did not have any firsthand
¶ 40 The Board noted that one of Blumenthal‘s most damning criticisms of Kelly was that she never had copies of Walczak‘s lesson plans while she was observing Walczak‘s teaching. However, on cross-examination Blumenthal was forced to concede that Kelly repeatedly referred to Walczak‘s lesson plans in her mentor logs. The Board found this admission undermined one of Blumenthal‘s most critical criticisms of Kelly. Additionally Blumenthal insisted on direct examination that it was indefensible for Kelly not to have requested rosters of Walczak‘s students. However, she admitted on cross-examination that Kelly noted in her logs her review of Walczak‘s student roster. The Board rejected Blumenthal‘s criticisms of Kelly‘s performance, as they were contradicted by Blumenthal‘s own testimony. The Board also rejected as “sheer speculation” the Hearing Officer‘s findings that Walzcak would have met all expectations if she had the assistance of a more experienced principal, mentor, and special education assistant, more ideal students and a more ideal school setting.
¶ 41 The Board rejected the Hearing Officer‘s findings and recommendation and issued its own opinion and order terminating Walczak‘s employment. The Board found that although Jackson saw some improvement in Walczak‘s performance, in Jackson‘s opinion this improvement was not sufficiently significant or consistent to determine that Walczak had
¶ 42 Walczak appealed the Board‘s decision to the circuit court of Cook County. The circuit court entered an order affirming the decision of the Board.
¶ 43 This appeal followed.
ANALYSIS
¶ 45 In administrative review cases, we do not review the decision of the Hearing Officer or the circuit court; rather, we review the decision of the Board. Ahmad v. Board of Education of the City of Chicago, 365 Ill. App. 3d 155, 162 (2006); Hearne v. Chicago School Reform Board of Trustees of the Board of Education for the City of Chicago, 322 Ill. App. 3d 467, 478 (2001). On review of an administrative decision to discharge an employee, we must first determine whether the Board‘s findings of fact and decision were against the manifest weight of evidence, then we determine whether those findings sufficiently support the Board‘s conclusion that cause for discharge exists. Charlene Raitzik v. Board of Education of the City of Chicago, 356 Ill. App. 3d 813, 823 (2005).
¶ 46 A reviewing court will not reverse an agency‘s findings unless they are against the manifest weight of the evidence. Ahmad, 365 Ill. App. 3d at 162. An agency‘s findings are against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Id. Ultimately, the Board‘s finding of cause for dismissal can be overturned only if it is “arbitrary and unreasonable or unrelated to the requirements of service.” Raitzik, 356 Ill. App. 3d at 831 (quoting Yeksigian v. City of Chicago, 231 Ill. App. 3d 307, 312 (1992)). Regardless of the reasoning provided by an agency for its decision, this court may affirm an agency‘s decision on
1. Validity of the Fresh Start Program
¶ 48 We first consider Walczak‘s claim that the Board‘s decision to dismiss her is void because her remediation was invalid. Walczak argues that the Fresh Start program had not been adopted for tenured teachers at the time of her remediation and, therefore, her due process rights were violated when she was subjected to remediation under the Fresh Start program. Specifically, Walczak argues that the Fresh Start remediation was void because (a) Amendment # 6 to the collective bargaining agreement applied the Fresh Start program to tenured teachers, (b) the Board and the teachers’ collective bargaining unit agreed that Amendment # 6 would become void if the General Assembly did not adopt legislation to permit the Board and teachers to agree to create a pilot program to apply Fresh Start to tenured teachers by a date certain, and (c) the General Assembly did not adopt the amendments by that date; therefore Amendment # 6 is void and the Board cannot apply Fresh Start to tenured teachers.
¶ 49 Walczak argues the Fresh Start program was not formally adopted until December 2007 after her remediation had begun. Walczak argues that the Board could not incorporate Amendment # 6 into the subsequent collective bargaining agreement by reference because incorporation by reference “cannot breath life back into something which is void.” She also argues that her union did not have blanket authority to bind her to an expired agreement, and her own acquiescence to participation in the program is not a significant action tо show consent or an intent to be bound to Amendment # 6.
¶ 50 The Board and the CTU entered into Amendment # 6 to the 2003--07 CBA. Amendment
¶ 51 The Board and the CTU approved the CBA on August 28, 2007. According to testimony from Marc Wigler, vice president of the CTU, the Fresh Start agreement was subsequently incorporated by reference into the 2007--12 CBA. The Board asks this court to take judicial notice of the fact it and the CTU executed an agreement to amend the CBA to include the Fresh Start agreement on December 19, 2007, retroactive to the start of the 2007-08 school year. A certified copy of the amendment was filed with the Illinois State Board of Education on May 5, 2008. Walczak did not object in her reply brief, and this court will take judicial notice of the document. Wigler tеstified that the CTU members at Wells voted to approve the Fresh Start program at their school, with Walczak present, with a positive vote of 95% while only a superapproval vote in excess of 80% was required to initiate the program. Walczak did not seek to transfer from Wells after the Fresh Start program was approved at Wells despite the opportunity to do so.
¶ 52 Walczak concedes the parties to a collective bargaining agreement do not need to reduce
¶ 53 We cannot say Bricklayers supports Walczak‘s argument. Rather, Bricklayers refutes Walczak‘s claims. According to the record, the Fresh Start program initially was to be tested during a 5-year period. The Fresh Start pilot program for tenured teachers’ evaluation began during the 2007-08 school year. Wells was one of eight schools in the pilot program. Prior to the program beginning at Wells, Walczak was given an opportunity to transfer to another school not covered by the Fresh Start program--she declined to do so. She also signed the “FS School Program Remediation Plan.” She agreed to participate in the her remediation plan, then went through 20 weeks of remediation. We conclude Walczak manifested an intent to be bound by the Fresh Start remediation program. Bricklayers, 385 F. 3d at 768-69. Therefore, based on the
2. Defective Remediation Claim
¶ 54 Walczak next argues that the remediation process was defective. The Fresh Start program requires mentors to be “willing and able to make good faith evaluations of tenured teachers’ performance.” Walczak argues her remediation is invalid because the Hearing Officer found that Kelly is not able to make good faith evaluations of her performance. The Fresh Start program also requires the teacher’s principal to observe the teacher during the remediation period. At the end of the remediation period, the principal must evaluate the teacher’s performance in accordance with the guidelines established in the Fresh Start agreement and make a determination of whether the teacher’s performance is meeting expectations. Walczak argues that her entire remediation process is void because the Hearing Officer’s findings demonstrate that Jackson did not evaluate Walczak’s performance “from the objective standpoint envisioned and embodied in the ‘criteria and rubrics’ under the Fresh Start program.” Specifically, Walczak argues that the Hearing Officer found that Jackson was biased, and the environment in which Walczak was to be remediated was not fair because Walczak did not have a legally mandated special education teacher or advisor to assist her in the classroom. Walczak asserts that the failure to provide a qualified mentor, or to evaluate her performance in a fair environment, were failures or omissions in the requirements of the remediation process which substantially affected her rights.
¶ 56 Walczak cites Chicago Board of Education v. Smith, 279 Ill. App. 3d 26, 28 (1996), in
¶ 57 Smith is inapplicable to this case because Walczak has not pointed to any omissions from or failures to comply with any of the procedural requirements set forth in the School Code or the Fresh Start agreement. Smith, 279 Ill. App. 3d at 31. In this case, Walczak does not argue the Board skipped any procedural steps in her disciplinary process; rather, she argues that because (1) the Hearing Officer’s report found Kelly was unqualified to be a mentor to a tenured teacher or make evaluations; and (2) the report found principal Jackson was biased against Walczak, the process was defective.
¶ 58 In regard to the mentor Kelly, the Board made a finding that Kelly was qualified. The qualifications to be a mentor are set forth with specificity in the Fresh Start agreement. The
¶ 59 The Board also rejected the Hearing Officer‘s conclusion that Jackson was biased due to Walczak’s race and age because it was not supported by the record. Walczak argues on appeal that the Hearing Officer’s findings constitute a general finding of bias, rather than a specific bias against teachers of Walczak’s race or age. The Hearing Officer found that much of Jackson’s “actions reported by other witnesses in their testimony, her own testimony, and her conduct at the hearing suggests a bias against this grievant and a less than supportive role in evaluating the grievant or helping the grievant in the remediation process.” The Hearing Officer did not find that any biases tainted the evaluation of Walczak’s performance, the report only suggests that biases may have hindered Walczak’s ability to remediate her performance to a satisfactory level. Because Jackson’s role in the remediation process was not to correct Walczak’s performance, only to evaluate her performance, the Hearing Officer’s conclusions regarding Jackson’s alleged bias are irrelevant.
¶ 60 There is no requirement that Kelly and Jackson be supportive. To the extent the Hearing Officer’s recommendation suggests that Jackson’s alleged bias led to “a less than supportive role in evaluating the grievant or helping the grievant in the remediation process,” the Board rejected any conclusion that Jackson had that obligation to Walczak. The Board’s finding that Jackson had no legal obligation to support or assist Walczak, but only to evaluate her performance, is
¶ 61 The evidence submitted at the hearing that Walzcak did not comply with the requirements of the remediation plan was largely uncontradicted and there were no procedural steps that were not followed as was the case in Smith. Therefore, we do not find the process was deficient.
3. Due Process Claim
¶ 63 We next consider Walczak’s claims that the Board violated her constitutional right to due process when it substituted its own factual determinations for those made by the Hearing Officer. A public employee, who may be terminated only for cause, has a property interest in her employment within the meaning of the due process guarantees of the United States and Illinois constitutions. Prato v. Vallas, 331 Ill. App. 3d 852, 867 (2002). The employer may not terminate such an employee--thereby depriving her of this property interest--without due process of law. Id. at 868. Walczak cites Hearne, 322 Ill. App. 3d 467, for the proposition that it is inappropriate for the Board to make its own credibility and factual determinations, and must base its decision only on the facts found by the Hearing Officer. Id. at 479-80. Walczak argues Homefinders Inc. v. City of Evanston, 65 Ill. 2d 115 (1976), supports her reading of Hearne.
¶ 64 Under
¶ 65 In Hearne, this court noted that “[d]ue process *** may require sufficient interaction and participation between the hearing officer and the board when the evidence before the hearing officer is in conflict and the resolution of the credibility and weight of the testifying witnesses is
“We are not saying that the hearing officer should participate in the decision making process of the board in every case or that the board should confer with the hearing officer in every case where the board rejects the recommendation of the hearing officer. However, where credibility is the determining factor and where as in this case the final decision making body reverses each and every credibility finding of the hearing officer, we believe the hearing officer should participate in the decision making process and the board should confer with the hearing officer.” Hearne, 322 Ill. App. 3d at 484.
¶ 66 In Hearne, the credibility of the witnesses was the determining factor because that case “involved a credibility dispute over whether [the] plaintiff allowed gambling in his classroom and acted improperly during [a] field trip.” Hearne, 322 Ill. App. 3d at 480. Because the credibility of the witnesses to the conduct at issue “was the determining factor in this case *** it was incumbent on the Board to have conferred with the hearing officer on the issue of credibility.” Id. at 483. Instead, the Board reweighed and reevaluated the credibility of the witnesses, then “entirely rejected the hearing officer’s credibility findings.” Id. Moreover, it did so without “any substantive discussion on why the Board chose to reject every single factual and
¶ 67 Walczak argues the Board had no legal authority to make its own findings of fact and was required to accept the findings of the hearing officer. This argument has no merit and is contrary to law. “The findings and conclusion of the administrative agency on questions of fact shall be held to be prima facie true and correct.”
¶ 68 Here, the Board reviewed and considered the Hearing Officer’s report, ultimately finding that Walczak failed to successfully remediate. There is sufficient evidence in the record to support the finding. Indeed Walczak does not contend that she successfully completed remediation. As a result, we cannot say Walczak’s right to due process was violated.
¶ 69 Walczak claims that the Board failed to follow Homefinders, Inc. v. City of Evanston, 65 Ill. 2d 115, 122 (1976), in that it did not consider thе evidence contained in the Hearing Officer’s report, did not base its determination on the report, and substituted its findings of fact for those of the Hearing Officer. In Homefinders, Inc., 65 Ill. 2d at 122, our supreme court noted that “[t]he requirements of due process are met if the decision-making board considers the evidence contained in the report of proceedings before the hearing officer and bases its determinations thereon.” Id. at 128. The issue in that case was “whether the Fair Housing Review Board acted within the scope of the powers conferred upon it by ordinance when only four of its seven members conducted hearings and issued a report which made findings and imposed fines.” Id. Our supreme court held that because three members did not participate, the plaintiffs’ challenge to the composition of the Board and its authority to conduct hearings must be sustained. Homefinders, Inc., 65 Ill. 2d at 126. The court found the weight of authority to be that due process is satisfied if an administrative board’s decision, after administrative proceedings
¶ 70 Walczak’s arguments under Homefinders, Inc. must fail because the Homefinders, Inc. court did not discuss how a board was to construe a hearing’s officer’s report of proceedings. The holding in Homefinders, Inc. is not a blanket restriction of an administrative board’s power to accept or reject a hearing officer’s findings of fact. The Homefinders, Inc. case does not require a board to adopt the hearing officer’s report. Homefinders, Inc. requires the board to base its decision on the record of the proceedings before the hearing officer.
¶ 71 Walczak’s reliance on Hearne is misplaced because that case is limited to those situations where credibility is the determinative factor in the final decision of the Board. Hearne, 322 Ill. App. 3d at 485 (“based on the totality of the circumstances, the Board in applying section 35–84 of the School Code *** did not sufficiently comply with the principles of due process by failing to confer with the hearing officer where credibility was the determinative factor in the final decision of the Board.”). The court in Hearne held due process does not require the board to
¶ 72 The Board may reject the Hearing Officer’s findings if they are not supported by the entire record before the Board. In Ball v. Board of Education of the City of Chicago, 2013 IL App (1st) 120136, ¶ 1, “the Board accepted in part and rejected in part the hearing officer’s findings of fact, conclusions of law, and recommendation to reinstate Ball with a warning.” Id. The hearing officer had found that the conduct forming the bases of the allegations against the tenured teacher were “not a pattern of reckless behavior, but a moment of carelessness and neglect.” Id. at ¶ 21. “The Board disagreed with the hearing officer’s conclusion that this was simply a single day of carelessness.” Id. at ¶ 24. The Board terminated the teacher’s employment. Id.
¶ 73 In Ball, 2013 IL App (1st) 120136, ¶ 36, this court wrote as follows:
“[I]t was not arbitrary and capricious to reject the hearing officer’s finding without consultation. [Citation.] Unlike Hearne, credibility is not the determining factor and the Board did not produce a half-page decision with conclusory findings. [Citation.] Rather, the Board produced an extensive and well-reasoned decision, cited to testimony and video evidence in support of its conclusion, and even agreed with several of the hearing officer’s conclusions. The Board added some fact discussion and presented reasoning for rejecting the hearing officer’s conclusion that Ball *** was not reckless or grossly negligent. The Board’s thoughtful analysis of the facts and the law did not violate Ball’s due process rights ***.” Id.
¶ 74 In this case, the Board’s opinion and order states that after reviewing the transcript of the proceedings, documents, arguments, and the Hearing Officer’s recommendation, the Board rejected “certain of the Hearing Officer’s findings of fact and conclusions of law.” Further,
¶ 75 An example is the issue of whether Kelly was qualified to be a mentor. This is a matter of whether Kelly had the requisite credentials, not credibility. The Fresh Start program did not require Kelly to be certified to teach the same subjects as Walczak and the record shows Kelly was not certified to teach high school students. However, under the Fresh Start program Kelly’s job was to help teach Walczak new teaching techniques. Although the Board disagreed with many of the Hearing Officer’s findings, those findings were not based on the credibility or demeanor of the witnesses. Therefore the due process concerns raised in Hearne are not invoked here. In this case the Board reviewed the record and made findings that were not determined by the credibility and demeanor of the witnesses. Therefore, Hearne is not invoked. The Board did not violate Walczak’s right to due process.
¶ 76 Nor do Walczak’s arguments as to the Board’s alleged violation of her right to due process have substantive merit.
“[W]e may not substitute our judgement for that of the Board, and reversal of the Board’s decision is not justified simply because the opposite conclusion is reasonable or because we might have ruled differently. [Citation.]
Instead, in order for us to find that the Board’s decision is truly against the manifest weight of the evidence, we must be able to conclude that all reasonable and unbiased persons, acting within the limits prescribed by the law and drawing all inferences in support of the finding, would agree that the finding is erroneous ([citation]) and that the opposite conclusion is clearly evident.” Raitzik, 356 Ill. App. 3d at 823-24.
¶ 77 Walczak argues the Board violated her right to due process when it (1) rejected the Hearing Officer’s finding that Jаckson lacked experience and maturity and was biased against Walczak; (2) found Kelly qualified to act as Walczak’s mentor despite the Hearing Officer’s express finding to the contrary; and (3) substituted its finding that Walczak’s classroom was not “filled” with “poorly behaved special education students” and did not require a special education teacher or assistant, for the Hearing Officer’s finding that Walczak struggled due to numerous special needs students without qualified assistance from a special education teacher.
¶ 78 “An agency’s findings of fact are considered prima facie true and correct, and we will reverse an agency’s findings only where they are against the manifest weight of the evidence. [Citation.] A finding is against the manifest weight of the evidence when an opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not based on the evidence.” (Internal quotation marks omitted.) Young-Gibson v. Board of Education of the City of Chicago, 2011 IL App (1st) 103804, ¶ 56 (2011). The Board’s finding that Jackson was and is a competent school administrator is not against the manifest weight of the evidence. The
¶ 79 The Hearing Officer speculated as to the factors that may have caused Jackson‘s alleged bias, but concluded that “this award makes no finding either way regarding those factors.” Thus, other than the Board’s specific rejection of specific biases, the Hearing Officer made no findings for the Board to reject.
¶ 80 The Board did not contravene the Hearing Officer’s findings as to Kelly’s qualifications to act as Walczak’s mentor. Walczak’s arguments that the Board’s finding in this regard contradicts the Hearing Officer’s finding is refuted by the record. The Board correctly found that the Hearing Officer did find that Kelly was qualified to act as Walczak’s mentor/coach. The Board relied on the Hearing Officer’s finding that “Kelly was merely and barely ‘paper-qualified’ to serve as a mentor/coach under the law, rules, and procedures governing the Board and this program, but she was only barely qualified and no more than barely qualified.” The Hearing Officer alsо denied Walczak’s motion to strike and disregard all testimony and conclusions by Kelly. Walczak moved to strike Kelly’s testimony on the grounds “Kelly was not qualified to
¶ 81 Despite denying the motion, the Hearing Officer stated that the arguments in support of that motion “were used *** to give Kelly’s testimony much less weight.” The Board and the Hearing Officer disagree as to what weight Kelly’s testimony is due, not based on her credibility, but based on her experience. The Board stated its reasons for disagreeing with the Hearing Officer. The Board noted that in reaching his conclusion the Hearing Officer added a requirement to the agreement between the Board and the CTU regarding similarity of experience. The Board also found that the parties agreed Kelly was qualified when the Board and the CTU jointly hired Kelly for the position. The Board did not violate Walczak’s due process rights by rejecting the Hearing Officer’s determination that Kelly’s testimony was entitled to less weight based on her experience as a mentor.
¶ 82 Finally, the Board did not substitute alternate findings of fact for the Hearing Officer’s finding that Walczak struggled due to numerous special needs students without qualified assistance from a special education teacher. The Board rejected the Hearing Officer’s legal conclusion that Walczak’s classroom was required by law to be staffed with a special education teacher or assistant during the remediation period. The Board found that the only evidence that could establish whether such an obligation existed--Walczak’s students’ Individual Educational Plans (IEPs)--did not support that conclusion. See
¶ 83 On appeal, Walczak admits that the Hearing Officer’s conclusion that her classroom required special education assistance was based on testimonial evidence, but does not refute that any statutory obligation to staff special education teachers can only be determined from the students’ IEPs. The Board did not violate Walczak’s due process rights by construing the legal effect of the evidence. The Hearing Officer further speculated that if the principal was more supportive of Walczak, she could have successfully completed the remediation. We reject the implication that the Hearing Officer’s findings regarding Walczak’s students should lead this court to conclude that with better students she would have met expectations and for that reason, the Board’s decision should be reversed. At the end of the remediation period, Jackson was required to evaluate Walczak’s performance to determine whether her performance was meeting expectations under the evaluation criteria and rubrics established under the Fresh Start agreement. The Board correctly found that the issue before it was whether Walczak actually remediated her teaching, not whether she might be able to do so under different circumstances.
¶ 84 The Board’s findings are reasonable and unbiased. Therefore, we find that the Board’s findings are not against the manifest weight of the evidence.
4. Expert Witness
¶ 86 Finally, Walczak claims the Board violated her right to due process when it rejected the Hearing Officer’s determination that Blumenthal qualified as an expert and rejected
¶ 87 The Board’s opinion states that it “rejects the Hearing Officer’s finding that Blumenthal was qualified to give expert testimony in the area of adolescent psychology and further rejects any ‘opinion’ testimony she offered in that area.” Walczak does not identify in her appellate brief any particular opinion offered by Blumenthal in the field of psychology which was rejected by the Board. Thus Walczak’s claim is without merit.
¶ 88 Walczak argues that Blumenthal is “highly knowledgeable in terms of pedagogical techniques, the Chicago Public School system, and how to mentor teachers.” At the hearing, the Board argued that Blumenthal was not qualified to render an opinion because she had never been an administrator responsible for formally evaluating a tenured teacher’s performance. The Board’s opinion does not find that Blumenthal was not qualified to testify as an expert in the field of teaching methodology. The Board’s opinion does, however, reject Blumenthal’s opinions about Walczak’s performance as without basis in the record, as well as her criticisms of Kelly’s performance as Walczak’s mentor as contradicted by Blumenthal’s own testimony.
5. Conclusion
¶ 91 For the foregoing reasons, the Board’s decision is confirmed and the judgment of the circuit court is affirmed.
¶ 92 Affirmed.