Find Legal Information

FIRST DIVISION
May 7, 2001

Defendant Chicago School Reform Board of Trustees of the Board of Education for the Cityof Chicago (Board) appeals the circuit court's reversal of its decision to terminate plaintiff, JosephHearne, a tenured Chicago public school teacher. Plaintiff has filed a cross-appeal against the Boardand the Illinois State Board of Education challenging the constitutionality of section 34-85 of theIllinois School Code (105 ILCS 5/34-85 (West 1994)), as amended by Public Act 89-15 (Pub. Act89-15 eff. May 30, 1995)). This statute governs dismissal of principals and tenured teachers in theChicago public schools. The circuit court granted plaintiff's request under count I and reversed theBoard's decision to dismiss Hearne. The circuit court also granted plaintiff's constitutional reliefrequested in count III, finding that section 34-85 as amended by Public Act 89-15 wasunconstitutional.

The Board and the Illinois State Board of Education then directly appealed the circuit court'sruling to the Illinois Supreme Court. The supreme court, however, remanded the case to the circuitcourt. The supreme court found that, because the circuit court granted plaintiff administrative relief,the circuit court improperly considered the constitutional issues regarding amended section 34-85. The supreme court ordered the circuit court to modify its October 20, 1997, order "to exclude theruling that section 34-85 is unconstitutional." Hearne v. Illinois State Board of Education, 185 Ill.2d 443, 457 (1999). On March 18, 1999, the circuit court excluded its constitutionality finding andgranted plaintiff administrative relief. The Board appeals from this order and claims that the circuitcourt erred in granting plaintiff administrative relief and reversing the decision of the Board toterminate plaintiff. We affirm the circuit court's order granting plaintiff's administrative relief;therefore, we need not address plaintiff's cross-appeal that section 34-85 as amended by Public Act89-15 is unconstitutional.

I. BACKGROUND

Plaintiff, a tenured Chicago public school teacher, had been employed as a teacher for 18years. Plaintiff was certified in special education and social studies for kindergarten throughgrade 12. He was teaching at the Austin Community High School (Austin). On September 6,1995, Paul Vallas, the Board's chief executive officer and general superintendent, approvedcharges against plaintiff for conduct unbecoming a teacher and gross dereliction of duties. Threespecific acts of misconduct from May 1995 were alleged to have been committed by plaintiff: (1)plaintiff was arrested for gambling with his students in his classroom during instructional time;(2) plaintiff took students to a theater as part of a field trip and did not pay admission for 11students; and (3) as part of the same field trip, plaintiff took the students to a restaurant and paidthe bill with his personal check without sufficient funds in his account to cover the check. Vallasinformed plaintiff that, because the conduct giving rise to the charges was deemed irremediable,plaintiff would be discharged unless he petitioned for a dismissal hearing pursuant to section 34-85. Plaintiff requested a dismissal hearing. Vallas suspended plaintiff without pay pending theoutcome of the hearing.

The dismissal hearing was held before a state-appointed hearing officer during December1995. The case against plaintiff was presented by an attorney from the Board's legal department,who called two witnesses. William Walker, a Chicago police officer and security officer atAustin, testified that on May 8, 1995, plaintiff called him to his classroom. Walker testified thatplaintiff told Walker that students were gambling in his class and that he allowed gambling totake place. Walker indicated that he saw students handling cards at a table in plaintiff'sclassroom. According to Walker, plaintiff said to one of the students "you're going to give memy cut," the student pulled out $2 and plaintiff took the $2 from the student. Walkerimmediately left the classroom and reported the incident to the school's principal. Walker did notconfiscate any cards or money from the classroom and admitted that he was present in theclassroom for only two to three minutes.

James Williams, the principal of Austin, testified that Officer Walker came to his officeand reported that he observed gambling in plaintiff's classroom. Williams never went to theclassroom. Williams also interviewed the students allegedly involved in the gambling incident,however these students did not testify. Williams then prepared an incident report and notifiedVallas and the Board.

Williams also testified about plaintiff's alleged misconduct regarding the student fieldtrip. Williams testified that he approved the student field trip on May 4, 1995, to the ETA theatreand Shakey's pizza, and that plaintiff was responsible for paying the theatre and Shakey's pizza. After the trip, the ET1A theatre called him and reported that the school still owed the theatre $33. Williams asked plaintiff about the money that was owed the theatre and plaintiff said that hewould pay it. Within the next two weeks, the theatre continued to call about the money owed. Plaintiff had been transferred from Austin following the gambling charges, and Williams referredthe theatre to the Board's legal department. Williams received a similar call from Shakey's pizzaabout an unpaid bill. Williams told the manager of Shakey's pizza that the unpaid balance wasplaintiff's responsibility because the school had reimbursed plaintiff for this expense. Williamsspoke with plaintiff and plaintiff stated that he would pay the pizza bill.

Plaintiff testified on his own behalf and called as witnesses three students who supportedhis testimony. These students were not the same students allegedly involved in the gamblingincident. Plaintiff and the three student witnesses refuted the allegations of gambling. Duringthe period when the gambling allegedly occurred, plaintiff testified that students, who had lunchduring this period, routinely used his classroom to study while he worked with his specialeducation students in another part of the classroom. Plaintiff testified that on the morning of theday of the alleged gambling incident, he had asked a student to buy some juice and had given thestudent $2. The student, however, never bought any juice and refused to return the money. Plaintiff then informed Officer Walker of the student's failure to return the $2 and requestedWalker's presence in the classroom to pressure the student. Plaintiff testified that he neverpermitted or allowed any gambling in his classroom. The three students also testified that theydid not see gambling in plaintiff's classroom and that plaintiff did not permit gambling to occur.

Regarding the field trip, plaintiff testified that he had payment for theatre admissionsfrom all students authorized for the field trip. When he arrived at the theatre there were studentsfrom other schools present. In addition, plaintiff saw about 11 other Austin students or formerstudents at the theatre. They had not used the school bus from Austin to travel to the theatre. The theatre did not take an actual head count, allowed all students inside, and some unauthorizedstudents attended the show. Plaintiff testified that he told the theatre director about theunauthorized students and that he would get payment from these students. Plaintiff neverrequested that Austin pay for these other students. Plaintiff testified that he planned to getpayment from the unauthorized students after the field trip, but, because of his subsequent arreston gambling charges, he was unable to collect the money. Plaintiff eventually paid the theatrethe $33 that was owed.

Plaintiff testified that these unauthorized students also went to Shakey's pizza. Therestaurant did not take a head count but allowed everyone into the restaurant. Following themeal, plaintiff received a bill for $363.30 even though Austin only authorized the plaintiff tospend $228. Plaintiff then provided Shakey's with a postdated check for the full amount of thebill. When he obtained the reimbursement check from Austin, he testified that he mistakenlydeposited it into his savings account, rather than his checking account. As the result of his arrestand transfer from Austin, he did not immediately find out that the check was returned unpaid bythe bank. After he found out that the check had been returned, he provided Shakey's with acashier's check for the full amount plus any returned check fee. It was not refuted that both thetheatre and Shakey's pizza were paid in full by the plaintiff.

On March 18, 1996, the hearing officer issued written findings of fact, concluding that theBoard failed to prove by a preponderance of the evidence that plaintiff was guilty of the threecharges. Consequently, the hearing officer recommended that plaintiff be restored to his teachingposition with back pay and benefits. The hearing officer's recommended decision was servedupon both plaintiff and the Board on March 20, 1996.

On April 24, 1996, Vallas submitted to the Board a written "request for the rejection of[the] hearing officer's decision," stating "[t]he rationale for this recommendation is that theHearing Officer's decision is contrary to the weight of credible evidence in the case whichdemonstrated cause for termination under section 34-85." That same day, the Board agreed withthe request by Vallas to reject the hearing officer's recommendation and terminated plaintiff forcause. The Board informed plaintiff of its decision on April 27, 1996.

In May 1996, plaintiff filed a verified complaint for administrative review, mandamus,and declaratory and injunctive relief in the circuit court. Count I of plaintiff's complaint soughtadministrative review of the decision of the Board to discharge plaintiff from employment as ateacher. Count II sought plaintiff's reinstatement through the remedy of mandamus. Counts III,IV, and V requested the trial court to declare unconstitutional section 34-85 of the School Code,as amended by Public Act 89-15.

On November 4, 1996, the circuit court in an oral ruling from the bench, remandedplaintiff's case to the Board for further consideration. The judge based her decision on twofactors: first, the judge could not discern from the administrative record whether the Board hadreviewed the transcript of the administrative hearing and/or the hearing officer's recommendationbefore rejecting it; and, second, the judge could not determine how, or upon what basis, theBoard made its decision to terminate plaintiff. Pursuant to the circuit court's order, the Boardreconsidered plaintiff's case on December 17, 1996. The record indicates that Vallas was presentduring this closed session meeting, but plaintiff and his attorney were not allowed to attend. TheBoard again decided to discharge plaintiff.

On January 8, 1997, the circuit court was advised that the Board, in an executive sessionon December 17, 1996, reconsidered plaintiff's case and voted to dismiss plaintiff based upon therecord of the hearing before the hearing officer. The circuit court ordered the Board to providean affidavit as to who was present at the executive session on December 17, 1996, as to theHearne matter, and to advise the court as to whether the summary minutes of the December 17,1996, meeting were approved and when a record of the meeting would be prepared. The Boardsubsequently filed with the circuit court a "Record Upon Remand" that included, but was notlimited to, the following: (1) exhibit G, an affidavit of the Board's assistant secretary stating whowas present and what was considered at the closed session meeting regarding the Hearne matter;(2) exhibit H, a communication approved by the Board on December 17, 1996, regarding its finaldecision to dismiss Hearne and its plan to issue written findings no later than January 3, 1997; (3)exhibit I, the Board's written findings regarding its final decision to dismiss Hearne; and (4)exhibit J, a transcript of the Board meeting on December 17, 1996.

On August 4, 1997, the circuit court granted plaintiff relief on both his administrativereview action (count I) and his due process claim (count III). The circuit court found that section34-85 of the School Code, as amended by Public Act 89-15, was unconstitutional on its face andas applied to plaintiff. In granting plaintiff relief on the administrative review claim contained incount I of his complaint, the court noted:

"This Court read the transcript of proceedings originallywhen the case came before me the first time, together with all ofthe exhibits. I also read what I believed at that time to be a verywell reasoned and thorough decision of Hearing Officer LawrenceM. Cohen, C-o-h-e-n.

People disagree. And I am not supposed to reweigh whatthe Board did. I have examined again in its entirety the decision ofthe hearing officer and the entirety of the record. And it is clearthat there is sufficient evidence in this record to support bothdischarge and the reinstatement of Mr. Hearne."

Then, the court observed "[i]f this were a case coming to me straight on administrativereview from the Board, giving due deference to the administrative agency, I could not say thatthis decision of the Board is against the manifest weight of the evidence because there is enoughin this record *** to support [plaintiff's] discharge." However, the judge believed the languageof section 34-85 required her to review the hearing officer's decision. The court reviewed thatdecision and found that the hearing officer's recommendation of plaintiff's reinstatement was notagainst the manifest weight of the evidence. Thus, the circuit court granted plaintiff relief on hisadministrative review claim, reversing the decision of the Board, and ordered that plaintiff bereinstated with back pay and benefits.

The circuit court also ruled that section 34-85 of the School Code as amended by PublicAct 89-15 was unconstitutional on its face on due process grounds. The court was troubled bythe lack of any statutory language requiring the Board to review the administrative record, reviewthe hearing officer's decision and provide factual findings for its decision. A written orderreflecting the trial court's oral ruling granting plaintiff relief on both counts I (administrativeclaim) and III (constitutional claim) of his complaint was entered on August 5, 1997. The Boardthen filed a motion to reconsider, claiming that the court improperly reached plaintiff'sconstitutional claim in count III. On October 12, 1997, the circuit court denied the motion toreconsider.

Both the Board and the Illinois State Board of Education appealed directly to the supremecourt as a matter of right pursuant to Supreme Court Rule 302(a) (134 Ill. 2d R. 302(a)). Thesupreme court, however, did not address the constitutional arguments raised by the parties in thismatter. Remanding the case back to the circuit court, the supreme court found that the circuitcourt improperly reached plaintiff's constitutional claim because it was not essential to thedisposition of plaintiff's administrative claim. Hearne, 185 Ill. 2d at 456. The supreme courtordered that the circuit court's October 20, 1997, order be vacated and then modified to excludeits ruling finding amended section 34-85 unconstitutional. Hearne, 185 Ill. 2d at 457. On March18, 1999, the circuit court excluded its ruling finding section 34-85 unconstitutional and grantedthe Board's motion to reconsider its order of August 5, 1997. The court re-entered the ordergranting plaintiff relief on count I. This appeal followed.

A. Circuit Court Is Required to Review Chicago Board's Final Decision

We first address the issue of whether the circuit court in resolving plaintiff'sadministrative claim in count I is required to review the decision of the hearing officer or thefinal decision of the Board. Defendants contend that the circuit court erred in reviewing thedecision of the hearing officer as opposed to the decision of the Board. Defendants furthercontend that the decision of the Board to terminate plaintiff was not against the manifest weightof evidence and thus should be sustained. Plaintiff contends that the trial court properly appliedthe language of the statute and reviewed the decision of the hearing officer. Because theinterpretation of a statute is a legal question, we review the trial court's construction of section34-85 de novo. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204(1998).

The principles of statutory interpretation require the court to ascertain and give effect tothe true intent and meaning of the legislature. Chicago School Reform Board of Trustees v.Illinois Educational Labor Relations Board, 309 Ill. App. 3d 88, 93 (1999). The court will firstexamine the statutory language and "[w]here the language of a statutory provision is clear andunambiguous, the plain and ordinary meaning of the words will be given effect without resortingto extrinsic aids for construction." Chicago School Reform Board of Trustees, 309 Ill. App. 3d at93-94. When the language is ambiguous, it is appropriate for courts to look beyond the languageof the statute and examine the purpose behind the law and the legislative history. Kunkel v.Walton, 179 Ill. 2d 519, 533-34 (1997).

In this case, we find the language of amended section 34-85 is ambiguous. Prior to theamendments of Public Act 89-15, section 34-85 of the School Code provided that any tenuredteacher subject to a dismissal proceeding could request a hearing before an independent hearingofficer. The decision of the hearing officer to retain or dismiss the teacher was final and subjectto administrative review. 105 ILCS 5/34-85 (West 1994). Following the enactment of PublicAct 89-15, amended section 34-85 still authorized a hearing before an independent hearingofficer. However, under amended section 34-85, the hearing officer's finding of facts anddecision constitute a "recommendation," and, within 45 days of receiving this recommendation,the Board "shall make a decision as to whether the teacher or principal shall be dismissed fromits employ." Pub. Act 89-15, eff. May, 30, 1995 (amending 105 ILCS 5/34-85 (West 1994)). Amended section 34-85 further states "[t]he decision of the board is final unless reviewed asprovided in Section 34-85b of this Act." 105 ILCS 5/34-85 (West 1998). This language withinsection 34-85 vests the Board with the final administrative decision on teacher and principalremoval.

The language of amended section 34-85, however, is not completely clear as to whetherthe circuit court is required to review the decision of the hearing officer or the final decision ofthe Board. Section 34-85b states that "[t]he provisions of the Administrative Review Law ***shall apply to and govern all proceedings instituted for the judicial review *** of finaladministrative decisions of the hearing officer under sections 34-15 and 34-85" (emphasis added)(105 ILCS 5/34-85b (West 1998)). Moreover, according to amended section 34-85, "if adecision of the hearing officer is adjudicated upon review or appeal in favor of the teacher ***,then the trial court shall order reinstatement" (emphasis added) (105 ILCS 5/34-85 (West 1998)). The circuit court relied on this language to conclude that it reviews the decision of the hearingofficer and not the Board on administrative review. In effect, this interpretation by the circuitcourt negates the language of the statute vesting the Board with the final decision on teacher andprincipal dismissals. According to the circuit court's approach, if a teacher or principal files anadministrative review of the decision to terminate, the court reviews the decision of the hearingofficer. Under the approach taken by the circuit court in this case, even though the Board makesthe final decision to terminate, on administrative review the circuit court would not review thefinal decision of the Board, but would review the decision of the hearing officer.

We reject plaintiff's arguments that the unambiguous terms of the statute mandate afinding that, on administrative review, the circuit court reviews the decision of the hearingofficer. The language supporting this interpretation is in complete conflict with the otherlanguage in the statute providing that the Board's decision is final and subject to administrativereview. The cardinal rule of statutory construction and application is to effectuate the intent ofthe legislature. Antunes v. Sookhakitch, 146 Ill. 2d 477, 484 (1992). "To ascertain the legislativeintent, the court must look first to the language of the statute, examining the language of thestatute as a whole, and considering each part or section in connection with every other part orsection." Antunes, 146 Ill. 2d at 484. It is also well settled that statutes should be construed togive them a reasonable meaning and to avoid absurdity or hardship. Antunes, 146 Ill. 2d at 486. "A statute will be interpreted to avoid a construction which would raise doubts as to the statute'svalidity." Antunes, 146 Ill. 2d at 486.

To ascertain the true intent and meaning of the legislature, we are required to examinethe history and course of the legislation and recent legislative action. Carey v. Elrod, 49 Ill. 2d464, 471-72 (1971). We must also give deference to the Board's interpretation of this ambiguousstatute because it is the agency charged with the administration and enforcement of the statute. Central City Educational Ass'n v. Illinois Educational Labor Relations Board, 149 Ill. 2d 496,510 (1992).

Both the decision to amend section 34-85 and the legislative history behind theamendment demonstrate a legislative intent to grant the Board the final decision makingauthority in teacher and principal dismissal proceedings. As noted above, the language ofamended section 34-85 vests the Board with the final decision making authority regardingteacher and principal dismissals. Public Act 89-15 amended section 34-85, which had previouslyvested this authority in the hearing officer. In 1995, Public Act 89-15 was enacted with theexpress purpose to address an "educational crisis" in the Chicago public schools and to makelegislative changes to rectify this crisis. 105 ILCS 5/34-3.3 (West 1996). The legislative historyof Public Act 89-15 indicates a similar intent. Legislative debates over Public Act 89-15 discussthat its purpose was to "give considerable power and authority to the Board" (89th Ill. Gen.Assem., Senate Proceedings, May 23, 1995, at 163 (statements of Senator Watson)) and tostreamline the teacher dismissal process (89th Ill. Gen. Assem., Senate Proceedings, May 23,1995, at 164). The overall legislative comments during these debates "confirm that thelegislative intent [of] Public Act 89-15 was to grant the [Board] more power in dealing with itsschools and its employees." Chicago School Reform Board of Trustees, 309 Ill. App. 3d at 97.

Moreover, section 34-85b provides that judicial review should be in accordance with the Illinois Administrative Review Law of the Code of Civil Procedure (735 ILCS 5/3-101 et seq.(West 1998)). 105 ILCS 5/34-85b (West 1998). Under the Administrative Review Law, thecircuit court only has jurisdiction to review final administrative decisions. 735 ILCS 5/3-105(West 1998). Both the School Code and the Code of Civil Procedure define an administrativedecision as "any decision, order, or determination of any administrative agency rendered in aparticular case, which affects the legal rights, duties or privileges of parties and which terminatesthe proceedings before the administrative agency." 735 ILCS 5/3-101 (West 1998); 105 ILCS5/34-85b (West 1998). Under amended section 34-85, the decision of the Board in teacher andprincipal dismissal cases terminates the proceedings before the administrative agency andconstitutes the final administrative decision. The Board has interpreted amended section 34-85to grant it final decision making authority in teacher and principal dismissal cases and to subjectits decisions to administrative review. As the Board is the agency charged with the enforcementand administration of this statute, we must give proper deference to its interpretation of amendedsection 34-85. Consequently, based on the Board's interpretation of amended section 34-85,together with the legislative history and purpose of Public Act 89-15, we conclude that thelegislature intended amended section 34-85 to grant the Board the final decision makingauthority in teacher and principal dismissal proceedings. On administrative review, the circuitcourt is required to review the final decision of the Board.

We additionally agree with defendants that the references within the statute to a review ofthe hearing officer's decision are typographical errors. The circuit court in fact noted that "I thinkwhoever proofread this particular bill missed some important things in [amended] section 34-85. *** [W]hoever put this final bill together failed to correct the sentence in the paragraph thatbegins 'The hearing officer.'" The circuit court, nonetheless, relied on this language inconcluding that the circuit court reviews the decision of the hearing officer. The court's primarygoal in construing a statute is to effectuate the intent of the legislature; therefore, we may, whennecessary to achieve that intent, "'alter, supply or modify words and correct obvious mistakes.'" Village of South Holland v. Chernick, 233 Ill. App. 3d 860, 863-64 (1992), quoting People v.Garrison, 82 Ill. 2d 444, 455 (1980). Based on the legislative intent of amended section 34-85 tostreamline and modify the tenured teacher dismissal process, and to give considerable power andauthority to the Board, we believe that the references in amended sections 34-85 and 34-85b toan administrative review of the decision of the hearing officer are obvious mistakes that we maycorrect. These references should not be read as to negate the legislative intent to make thedecision of the Board final and subject to administrative review. Therefore, we interpretamended section 34-85 and section 34-85b of the School Code as to require the circuit court toreview the final decision of the Board. 105 ILCS 5/34-85, 34-85b (West 1998).

B. Due Process

We next address the Board's decision to reject the hearing officer's recommendation andterminate plaintiff. When the legislature amended section 34-85 to make the Board the finaldecision maker in teacher discipline cases, the Board was required to conduct its proceedings in amanner consistent with settled principles of law. The appellate court reviews the record beforethe administrative agency to determine whether its findings are against the manifest weight of theevidence or whether the agency "acted arbitrarily, without cause, or in a clear abuse of itsdiscretion." North Avenue Properties , L.L.C. v. Zoning Board of Appeals, 312 Ill. App. 3d 182,184 (2000).

Although an administrative proceeding must comply with procedural due process, suchproceedings may be conducted by hearing officers who make recommendations and refer the caseto a decision making board that has not personally heard the evidence. Ruther v. Hillard, 306 Ill.App. 3d 997, 1005 (1999). In Ruther, both the hearing officer and the police board of the City ofChicago found that plaintiff violated certain departmental rules and regulations and terminatedhim. On administrative review, the circuit court found that the police board's decision wasagainst the manifest weight of the evidence. On appeal, this court further addressed the issue ofwhether the plaintiff's procedural due process rights were violated. The court recognized that,when credibility issues are determinative in an administrative proceeding, due process mayrequire that the hearing officer participate in the board's decision and submit a report of thehearing officer's conclusions and impressions. Ruther, 306 Ill. App. 3d at 1005. The court,however, found no violation of procedural due process because the hearing officer made an oralreport to the police board and the hearing officer conferred with the police board before itrendered its decision. In addition, the record reflected that the police board reviewed all theevidence of the plaintiff's hearing. Ruther, 306 Ill. App. 3d at 1005. The court in Rutherconcluded, "Due process was provided where the Board conferred with the hearing officer andreviewed all the evidence and the transcript of proceedings." Ruther, 306 Ill. App. 3d at 1005.

We are mindful of the fact that it is common for the final decision maker in anadministrative proceeding to be a commission or board drawn from within the agency, and thatdue process does not require the commission or board to defer to the finding of a hearing officer. United States v. Raddatz, 447 U.S. 667, 680-81, 65 L. Ed. 2d 424, 436, 100 S. Ct. 2406, 2415(1980). Due process, however, may require sufficient interaction and participation between thehearing officer and the board when the evidence before the hearing officer is in conflict and theresolution of the credibility and weight of the testifying witnesses is the determining factor. Serio v. Police Board, 275 Ill. App. 3d 259, 266 (1995) (requirements for procedural due processmet where board read transcript, considered the evidence and hearing officer made an oral reportand conferred with the board before a decision was reached.); Quincy Country Club v. HumanRights Comm'n, 147 Ill. App. 3d 497, 500 (1986) ("where credibility is a determining factor in acase, we believe the presiding administrative law judge must participate in the decision").

Here, we find based on this record that the Board failed to comply with procedural dueprocess, when without sufficient interaction and participation of the hearing officer upon remandby the trial court, it rejected the decision of the hearing officer, made its own credibilitydeterminations, and terminated plaintiff. This case involved a credibility dispute over whetherplaintiff allowed gambling in his classroom and acted improperly during the May 4, 1995, fieldtrip. The state-appointed hearing officer determined that the Board failed to present sufficientevidence to sustain the charges against plaintiff.

The only witness to the alleged gambling was Officer Walker. The Board has the burdenof proof at the hearing to establish by a preponderance of the evidence that the conduct ordeficiencies for which dismissal is sought occurred as charged. Board of Education of the City ofChicago v. State Board of Education, 113 Ill. 2d 173 (1986). The hearing officer found the Board presented "scant evidence" and had "failed to prove by a preponderance of the evidence,that Hearne acted with conduct unbecoming a teacher in gross dereliction of his duties." Thehearing officer specifically found that plaintiff 's testimony combined with the three students'"credible" and "objective" testimony rebutted Officer Walker's claim that plaintiff admitted thathe allowed gambling in his classroom. According to the hearing officer, "[i]f Walker's testimonyis to be believed *** Hearne, an experienced teacher of many years, would have to be presumedto have been so ignorant - or defiant - of his teaching responsibilities and the criminal law that heopenly admitted to running a gambling establishment in his classroom and even requested thatWalker witness the blatant misconduct. *** The amount of gain to Hearne - two dollars- wouldnot have justified the disastrous consequences. And why, if gambling was a recurrent event inHearne's classroom, had not that situation surfaced prior to May 8?" Thus, the hearing officerfound Walker's testimony defied common sense and everyday experience. The hearing officeralso found insufficient evidence to sustain the charge that plaintiff's conduct on the May 4, 1995,field trip regarding payment of the theatre bill and pizza bill was irremediable.

We note the hearing officer concluded that, "[g]iven the evidence presented at thehearing, the Board of Education has failed to prove, by a preponderance of the evidence, thatHearne acted with conduct unbecoming a teacher or in gross dereliction of his duties." However,the hearing officer further indicated the possibility that he could entertain a motion forreconsideration. "There remains, however, Hearne's impending criminal trial. Because thoseproceedings have not yet concluded, additional evidence could be presented in the criminalproceedings which would alter my recommendation. Accordingly, if the criminal courtsconclude, by a more stringent standard than present here, i.e., beyond a reasonable doubt, thatHearne engaged in criminal activity in his classroom, I would entertain a motion forreconsideration in order to present additional evidence from that case." The record reflects nosuch motion for reconsideration before the hearing officer.

After the Board met, plaintiff received a letter that, despite the hearing officer'srecommendation, the Board decided to terminate plaintiff. The letter further stated that thehearing officer's findings and recommendations were "contrary to the weight of credible evidencepresented." In the circuit court plaintiff filed his complaint for administrative review. The Boardpresented no evidence that it had reviewed the transcripts of plaintiff's hearing or therecommendation of the hearing officer. It only submitted to the circuit court a 1