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SECOND DIVISION
March 19, 2002

PRESIDING JUSTICE BURKE delivered the opinion of the court:

Raymond Spangler was employed as a tenured fifth grade teacherby the Board at Link Elementary School in Elk Grove Village, a partof the Schaumburg School District. Spangler had been evaluated onhis performance over the years and had received satisfactoryratings. On October 2, 1996, Dr. Bruce Brown, the principal ofLink Elementary, wrote a letter to Spangler with respect to fivevisits Brown had made to Spangler's classroom during the month ofSeptember. Brown noted a consistent pattern of interaction withthe class that needed immediate attention. He also criticizedSpangler's lesson organization, instructional planning, classroommanagement, instruction method, and advised Spangler that he neededto address the individual needs of students and provide them withfeedback. Spangler was advised that if he failed to showimprovement, it might result in an unsatisfactory rating.

Subsequent to this letter, Brown completed Spangler'sevaluation for the 1996-97 school year. Brown's April 30, 1997,summative evaluation report noted that he had observed Spangler'sclassroom on 10 occasions over the course of the preceding year, 2of them prearranged. Brown stated that the following areas ofSpangler's performance needed improvement: instruction method,lesson planning and organization, concept of lesson directions, andpacing. Brown rated defendant unsatisfactory.

Because of the unsatisfactory rating, a remediation plan wasadopted to cover the period from June 1, 1997, to May 1, 1998. Theplan cited 11 areas of weakness in Spangler's performance, which hewas required to improve: failure to present instruction thatcorresponded to presented lesson plans; failure to communicateinstructional goals and objectives to the students duringinstruction; failure to structure lessons and include opening andclosing comments; failure to assign homework; failure to provideadequate feedback to the students with respect to their work;failure to deviate from "whole class, teacher-led" instructionmodel; failure to stress active participation by all studentsduring instruction; failure to show little modification in lessonsor assignments to meet the individual needs of students; failure toidentify inattentive students and develop an engagement strategy;failure to appropriately pace lessons, some being over 90 minuteslong; and failure to adequately display current student work. Itconcluded with a statement that Spangler's overall performance hadbeen rated unsatisfactory.

During the remediation period, Spangler was observed andevaluated by Dr. Brown and Marianne Zito, the assistantsuperintendent for instruction. During the first quarter, Brownobserved Spangler on nine occasions, one being prearranged. In hissummative evaluation report dated October 17, 1997, after detailinghis observation results, Brown noted that the pattern of concernsin the remediation plan remained largely unaddressed by Spangler. Accordingly, Brown gave Spangler an unsatisfactory rating on hiscurrent progress. During the second quarter, Brown observedSpangler eight times, one being prearranged. In his summativeevaluation report dated January 30, 1998, Brown again stated thatthe patterns of concern of the remediation plan were unaddressedand rated Spangler's performance unsatisfactory. During the thirdquarter, Brown observed Spangler six times, one prearranged. Brown's conclusion in his summative evaluation report dated March23, 1998, was the same. During the last quarter, Spangler wasobserved six times by Brown and at least twice by Zito. Brown'sconclusion in his summative evaluation report dated May 27, 1998,was the same.

Because Brown rated Spangler unsatisfactory and, therefore,Spangler failed to complete the remediation plan with asatisfactory or better rating, the Board passed a resolution onJune 18, 1998, to dismiss Spangler. It adopted a notice of chargesas the reason for the dismissal, setting forth the following 17charges:

"(1) Your in-class instruction frequentlyfails to correspond to teacher lesson plans; (2) You fail to communicate learningobjectives and goals to the students duringinstruction; (3) You fail to properlystructure the lesson by including opening andclosing activities; (4) You have unaccountedtime periods in your lesson plans; (5) Youhave left the classroom for unannouncedactivities, and you have left your studentsunsupervised during these times; (6) You failto properly pace and limit your lessons onindividual subjects to an appropriate lengthof time for fifth grade students; (7) You failto use a variety of teaching methods; (8) Youfail to modify your instruction to meet theindividual needs of the students; (9) You failto redirect the attention of inattentivestudents to the learning task; (10) You failto properly grade your students; (11) You failto convey accurate information to students;(12) You allow students to work outside theclassroom on an unsupervised basis; (13) Youfail to provide support or feedback toeducationally needy students; (14) You fail toprovide enrichment activities for high-achieving students; (15) You have usedinappropriate physical contact with students;(16) You are often insubordinate, and you failto act in a professional manner toward theadministration, staff, and parents; (17) Inthe opinion of the Board of Education, you arenot qualified to teach and your dismissal isin the best interests of the District.

The Board also attached to the resolution a bill of particulars insupport of the charges.

Subsequently, Spangler requested an administrative hearingpursuant to section 24-12 of the Code (105 ILCS 5/24-12 (West1998)). This hearing commenced on December 1, 1998, and concludedin March 1999. Both parties presented evidence and testimony intheir favor, more fully discussed below. Following the hearing,the hearing officer, in a lengthy decision issued September 21,1999, reversed the Board's dismissal of Spangler. After detailingthe evidence presented by both parties, the hearing officerrendered the following conclusions on each charge: (1) Failure tofollow lesson plans--"Based on the evidence in the record Mr.Spangler's deviations are not a serious fault"; (2) Failure tocommunicate learning objectives and goals to students--"AlthoughMr. Spangler may be deficient on this point, it hardly appears tobe so serious as to warrant an unsatisfactory rating"; (3) Failureto structure lessons by doing opening and closing activities--"Thischarge is closely related to the one preceding it. In both chargesMr. Spangler is at fault but not as great as the charges would haveus believe"; (4) Unaccounted periods in lesson plans--"Dr. Brownhad good reason to fault Mr. Spangler on this charge"; (5) Leavingclassroom with students unsupervised--"This is certainly a minorincident, Mr. Spangler's explanation makes sense"; (6) Failure topace lessons and limit them to appropriate length--"Mr Spanglerevidently realizes that his lessons are sometimes too long,maintaining that he improved as time went on, so this is alegitimate complaint"; (7) Failure to use a variety of teachingmethods--"He deserves to be censured on this charge"; (8) Failureto meet the needs of individual students--"There is a mixed bag onthis charge. Mr. Spangler did meet individual needs in someinstances, but failed in others. The charge is only partlyproven"; (9) Failure to redirect inattentive students to learningtask--"Fifth grade students can indeed be expected to beinattentive some of the time. We do not know whether these fifthgraders goofed off more than others. Some of Mr. Spangler'sexplanations may be suspect, such as saying students moved about todiscard used tissue, but it is hard to fault the teacher for lackof attention, although some blame must rest with this teacher";(10) Improper grading--"There is some basis to this charge,although all of it is not proven"; (11) Failure to convey accurateinformation to students--"Based on Dr. Brown's statements, thischarge is sustained"; (12) Students working outside classroomunsupervised--"No preponderance of the evidence exists on most ofthis charge, although the purpose of the reading race is neverexplained"; (13) Failure to provide support to educationally needystudents--"This charge is partially supported"; (14) Failure toprovide enrichment activities for high-achieving students--"Thischarge is sustained"; (15) Inappropriate physical contact withstudents--"Evidence supporting Dr. Brown is convincing and backsthe charges. There is only this one incident, however, which isserious enough, but Mr. Spangler is not accused of inappropriatecontact with students regularly"; (16) Insubordination and failureto act professionally towards administration, staff and parents--"Insubordination is not directly related to Mr. Spangler'steaching; (17) Not qualified to teach--"[T]his is a mixed bag." His letters do exhibit sarcasm and hostility, but these too do notsquarely bear on his ability as a teacher." Based on all theevidence presented, the hearing officer concluded that the Boardfailed to show by a preponderance of the evidence that Spanglerdeserved an unsatisfactory rating during the remediation year, norshould he have been dismissed.

Thereafter, the Board filed a complaint for administrativereview in the circuit court. The trial court subsequentlyconfirmed the hearing officer's decision. This appeal followed.

The Code provides a mandatory procedure for dismissal oftenured teachers. Section 24A-5 of the Code allows

"dismissal in accordance with Section 24-12*** of any teacher who fails to complete anyapplicable remediation plan with a'satisfactory' or better rating." 105 ILCS5/24A-5(j) (West 1998).⁽¹⁾

Section 24-12 of the Code provides:

"If a dismissal or removal is sought forany other reason [other than a decrease in thenumber of teachers] or cause, *** the boardmust first approve a motion containingspecific charges by a majority vote of all itsmembers. Written notice of such charges shallbe served upon the teacher within 5 days ofthe adoption of the motion. Such notice shallcontain a bill of particulars. No hearingupon the charges is required unless theteacher within 10 days after receiving noticerequests in writing of the board that ahearing be scheduled, in which case the boardshall schedule a hearing on those chargesbefore a disinterested hearing officer ***. The hearing officer shall hold a hearing andrender a final decision.

*** The hearing officer shall considerand give weight to all of the teacher'sevaluations written pursuant to Article 24A. The hearing officer shall, within 30 days fromthe conclusion of the hearing or closure ofthe record, whichever is later, make adecision as to whether or not the teachershall be dismissed and shall give a copy ofthe decision to both the teacher and theschool board. *** The decision of the hearingofficer is final unless reviewed as providedin Section 24-16 of this Act." 105 ILCS 5/24-12 (West 1998).

These sections provide the mandatory procedures and requirementsnecessary for a district to dismiss a tenured teacher.

We first address the scope of the hearing officer's authorityunder section 24-12 of the Code because the Board contends that thehearing officer exceeded the authority extended to him under theCode by substituting his judgment for that of the Board. Prior toAugust 1975, a school board was vested with the multiple functionsof investigation, prosecution, and factual determination. Morelliv. Board of Education, Pekin Community High School District No.303, Tazewell County, 42 Ill. App. 3d 722, 728, 356 N.E.2d 438(1976). As such, the school board would issue the initial chargeor determination of probable cause to remove a teacher and thenultimately adjudicate, based upon a majority vote of all boardmembers, to dismiss the teacher. Board of Education of Valley ViewCommunity Unit School District No. 365U v. File, 89 Ill. App. 3d1132, 1134, 412 N.E.2d 1030 (1980). Thus, it was the schoolboard's responsibility to determine facts, weigh the evidencepresented to it, and, after due consideration of matters withrespect to credibility, ascertain whether there was sufficientevidence to support dismissal of a tenured teacher. Morelli, 42Ill. App. 3d at 726-27. Importantly, the different functions ofthe school board, e.g., the investigative/charging function versusthe adjudicative function, subsume different bases and purposes. Morelli, 42 Ill. App. 3d at 728.

Effective August 26, 1975, the legislature amended section 24-12 and placed the hearing function with an impartial hearingofficer. Board of Education, School District No. 151, Cook Countyv. Illinois State Board of Education, 154 Ill. App. 3d 375, 381,507 N.E.2d 134 (1987); File, 89 Ill. App. 3d at 1135. The schoolboard now possesses only an investigatory/charging function. Assuch, the board makes the initial determination whether there aregrounds for dismissal. Board of Education of Round Lake AreaSchools, Community Unit School District No. 116 v. State Board ofEducation, 292 Ill. App. 3d 101, 110, 685 N.E.2d 412 (1997). Whenthe board adopts charges to dismiss a teacher, it "sets thedismissal process in motion." Combs v. Board of Education of AvonCenter School District No. 47, 147 Ill. App. 3d 1092, 1096, 498N.E.2d 806 (1986). In other words, although the board stillpossesses the power to dismiss a teacher, the procedures by whichthe dismissal is accomplished is governed by the requirements ofsection 24-12. File, 89 Ill. App. 3d at 1135.

Despite the above-referenced amendment, the Board argues thatthe hearing officer has no authority to evaluate the seriousness orgravity of the charges when ascertaining whether the Board had metits burden of proving that an unsatisfactory rating was justified. Rather, according to the Board, the hearing officer can onlydetermine whether the Board had proven, by a preponderance of theevidence, the charges alleged. We disagree based on thelegislative purpose and comments at the time of the amendment, aswell as the inherent nature of the proceedings contemplated andauthorized by the legislature.

The legislature's comments made at the time the amendment wasbeing debated demonstrate that it was the legislature's intent togive full and total authority to the hearing officer to make theultimate decision and determination as to dismissal. See, e.g.,79th Ill. Gen. Assem., Senate Proceedings, May 13, 1975, at 30(statements of Senator Glass) ("The bill *** would create a hearingofficer who would have the power, after a board of education hasdischarged a teacher, *** to hold a hearing and, in effect, reversethe board of education"); 79th Ill. Gen. Assem., SenateProceedings, May 22, 1975, at 153-54 (statements of Senator Glass)(this bill "is an attempt to take away from the local school boardsthe authority to discharge a teacher ***[,] the local board candischarge a teacher, but then the hearing officer holds the hearingand can overrule the board," this bill is "taking away power fromthe local board ***. This is just another step in...in reducingpower of our local authorities"); 79th Ill. Gen. Assem., SenateProceedings, May 22, 1975, at 154 (statements of Senator Fawell)("we would be taking from our local boards of education the rightto make a very basic decision in regard to the dismissal of atenured teacher"); 79th Ill. Gen. Assem., Senate Proceedings, May22, 1975, at 155-56 (statements of Senator Fawell) (the amendment"will take from the board the discretion in regard to the dismissalof a tenure[d] teacher"); 79th Ill. Gen. Assem., SenateProceedings, May 22, 1975, at 158 (statements of Senator Bruce)("That dismissal, however, is subject to review, the very basicsystem of justice we have is that decisions are subject toimpartial third party review, and that's what this bill providesfor"); 79th Ill. Gen. Assem., House Proceedings, June 26, 1975, at325 (statements of Representative Jaffe) ("This is merely a matterof procedural due process"). The rationale for the amendment wasbased on the "potential for abuse present where a local board ofeducation itself decides whether it had just cause to remove atenured teacher from its employment," which abuse "could beeliminated by replacing the local board with an impartial hearingofficer." File, 89 Ill. App. 3d at 1135. Accordingly, the purposeof the amendment was to "avoid inequities which may result from aschool board hearing and deciding a case in which they had alreadymade an initial decision to discipline the teacher, having passeda motion containing specific charges against the teacher. [Citation.] A school board can not be antagonist and judge andstill provide due process to the teacher." Craddock v. Board ofEducation of Annawan Community Unit School District, No. 226 ofHenry County, 76 Ill. App. 3d 43, 45, 391 N.E.2d 1059 (1979).

These comments and purposes show an intent that all issuesinherent to the dismissal determination and discretion inevaluating the issues were to be made by the hearing officer, i.e., not only whether the Board had proven the alleged charges, butalso, whether the charges were sufficiently grave to ultimatelyjustify dismissal. See Powell v. Board of Education of City ofPeoria, District 150, 189 Ill. App. 3d 802, 807, 545 N.E.2d 767(1989) ("a reading of section 24-12 as amended, reflects thelegislature's intent to remove from the jurisdiction of localboards the ultimate responsibility on a termination decisionfollowing remediation to a disinterested hearing officer"). If thelegislature intended to leave any discretion or determination withthe local board, it clearly would have said so. It did not. Rather, the legislature utilized the term "final decision" withreference to the hearing officer's determination. A "finaldecision" is "[o]ne which leaves nothing open to further disputeand which sets at rest [a] cause of action between parties. ***One which settles rights of parties respecting the subject-matterof the suit and which concludes them until it is reversed or setaside." Black's Law Dictionary 567 (5th ed. 1979). "Final" isdefined as "[l]ast; conclusive; decisive; definitive; terminated;completed." Black's Law Dictionary at 567. Clearly, if thehearing officer is to render the final decision, he must beafforded the opportunity to evaluate all issues, weigh theevidence, and decide whether the charges are sufficiently grave towarrant dismissal. Moreover, if any discretion had been left withthe school board to ultimately determine any of the factors orissues relevant to the dismissal determination, the opposition tothe amendment would not have been so extensive. See, e.g., 79thIll. Gen. Assem., Senate Proceedings, May 22, 1975, at 153-54(statements of Senator Glass); 79th Ill. Gen. Assem., SenateProceedings, May 22, 1975, at 154, 155-56 (statements of SenatorFawell); 79th Ill. Gen. Assem., Senate Proceedings, May 22, 1975,at 157-58 (statements of Senator Shapiro) (comments of thoseopposed to the bill). See also 79th Ill. Gen. Assem., SenateProceedings, May 22, 1975, at 158 (vote 31 ayes, 19 nays). Lastly,the legislature clearly concluded that local boards were not alwaysdisinterested nor impartial and, therefore, were unable to affordthe necessary process required prior to dismissal of a tenuredteacher. Thus, the legislature deemed a need for an impartialhearing officer.

Accordingly, the legislative comments and purposes, as well asthe statutory language itself, indicate that the hearing officerpossesses the authority to decide all issues with respect to adismissal decision, including the gravity of the charges. Ingiving the hearing officer authority, we conclude that thelegislature contemplated giving him full authority over thedecision.

Additionally, we believe that the inherent nature of theproceedings authorized by the legislature manifest that the hearingofficer has authority to evaluate the gravity of the charges. Because a tenured teacher has a property interest in continuedemployment that is protected by principles of due process (RoundLake Area Schools, 292 Ill. App. 3d at 113), the legislature hasprovided this due process by allowing a hearing before an impartialhearing officer. The administrative proceedings before the hearingofficer, which are quasi-judicial in nature, are governed byfundamental principles and requirements of due process. Round LakeArea Schools, 292 Ill. App. 3d at 113. A "hearing" is a"[p]roceeding of relative formality (though generally less formalthan a trial), generally public, with definite issues of fact or oflaw to be tried, in which witnesses are heard and parties proceededagainst have the right to be heard, and is much the same as a trialand may terminate in a final order." Black's Law Dictionary at649. The hearing before a hearing officer under the section 24-12provision is strongly akin to the dictates and commands of anactual trial. The hearing is public (23 Ill. Admin. Code