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Plaintiff, Board of Education of Joliet ("Board") dismisseddefendant Sandra Betts, a tenured teacher, for misuse of sickleave. Betts requested an administrative hearing, and the hearingofficer reinstated her. The trial court affirmed the hearingofficer, and we affirm the trial court.

The contractual agreement between the Joliet school districtand its teachers provides for several forms of leave for teachers,including professional, personal, and sick leave. It alsodescribes the proper uses of each type of leave. Attendance at aprofessional conference is not a proper use of sick leave under thecontract. The contractual agreement does not state theconsequences of misuse of leave; however, it does state thatabsences not covered by any form of leave will result in adeduction from a teacher's paycheck.

Betts was a teacher in the Joliet school district. In 1997,she requested four professional leave days to attend a professionalconference. Betts learned on the day before she was scheduled toleave for the conference that the administration had lost herrequest for leave; as a result, the request had not been approved. Because she had already made arrangements for her attendance, Bettstook personal leave days for the first two days of the conference. She told her supervisor that she would return to school and missthe last two days of the conference. However, she did not returnas promised. Instead, she had her husband call the school andreport her ill so she could use sick leave days for the end of theconference.

Betts later discussed her attendance of the conference withher superiors, and requested conversion of the two "personal leave"absences to "professional leave" absences. Administrators grantedher request and made no mention of any consequences for her use ofsick leave to attend the conference.

The next year, Betts wished to attend the same annualprofessional conference. She chose not to seek professional leavefor that conference. Instead, she took sick leave days for thedays of the conference, telling her department head that her sisterwas ill and needed her attention.

Through an internal investigation, the school administrationfound that Betts used sick leave to attend the 1998 conference. The administration reported its findings to the Board, and theBoard dismissed her.

Betts requested a hearing, and the hearing officer determinedthat her conduct was remediable. He held that she could not bedismissed without first receiving a written warning.

The Board sought administrative review of the hearingofficer's decision in the circuit court, which then affirmed thehearing officer. The Board appeals, asserting that: (1) thehearing officer improperly applied the legal test ofirremediability; (2) the hearing officer's findings were againstthe manifest weight of the evidence; (3) Betts already received asufficient warning; and (4) allowing Betts to return to herteaching position violates public policy.

1.

The Board claims that Betts' actions constitute shocking andimmoral conduct. Therefore, her conduct should be consideredirremediable, even if a warning could have altered it. Wedisagree.

Section 24-12 of the School Code of 1961 provides that beforeteachers may be dismissed for remediable conduct, they must receivea written warning to cease that conduct. 105 ILCS 5/24-12 (West1998). However, a teacher may be immediately dismissed forirremediable deficiencies or actions. 105 ILCS 5/24A-5 (West1998). Conduct is irremediable if it (1) causes damage to thestudents, faculty or school and (2) could not have been correctedif the teacher's superiors had warned her. Gilliland v. Board ofEducation of Pleasant View Consolidated School District, 67 Ill. 2d143, 153 (1977).

The second prong of the test is not applicable if the conductin question is "immoral conduct" that "has no legitimate basis inschool policy or society." Board of Education of Sparta CommunityUnit School District v. Illinois State Board of Education, 217 Ill.App. 3d 720, 729 (1991). Shocking or criminal conduct is neverremediable. See Sparta, 217 Ill. App. 3d at 729.

To dispense with the second prong of Gilliland, courts mustfind conduct substantially more shocking or immoral than Betts'actions here. See Sparta, 217 Ill. App. 3d 720 (improper sexualadvances toward young girls); Massie v. East St. Louis SchoolDistrict, 203 Ill. App. 3d 965 (1990) (allowing teenage girls todrink alcohol in a teacher's home); Fadler v. Illinois State Boardof Education, 153 Ill. App. 3d 1024 (1987) (sexual contact withyoung girls); McBroom v. Board of Education of District No. 205;144 Ill. App. 3d 463 (1986) (theft from a student's locker). Herimproper use of sick leave, while hardly exemplary behavior, is notso odious that the court can dispense with a finding that it couldnot have been corrected with a warning.

Courts have applied both prongs of Gilliland to actions suchas Betts'. See Szabo v. Board of Education of CommunityConsolidated School District 54, 117 Ill. App. 3d 869, 875 (1983)(using sick leave to pursue other employment); Board of Educationof Round Lake, Community Unit School District No. 116 v. Cohn etal., 292 Ill. App. 3d 101 (1997)(using vacation days even thoughinformed that permission to do so had been revoked at the lastminute). The hearing officer correctly found that Betts' actionswere remediable.

2.

The Board also claims that since Betts' contract made clearthat attendance at a professional conference was not a proper useof sick leave, her actions were intentionally insubordinate andcould not have been changed by any warning. See Yuen v. Board ofEducation of School District No. 46, 77 Ill. App. 2d 353 (1966);Christopherson v. Spring Valley Elementary School District, 90 Ill.App. 3d 460 (1980).

Whether a cause for dismissal is irremediable is a question offact. Szabo, 117 Ill. App. 3d at 872. The findings of anadministrative hearing officer on questions of fact are consideredto be prima facie true and correct and cannot be set aside unlessthey are against the manifest weight of the evidence. Massie, 203Ill. App. 3d at 971. Such findings are against the manifest weightof the evidence only when all reasonable and unbiased persons wouldagree it is clearly evident that the hearing officer erred andshould have reached the opposite conclusion. Round Lake, 292 Ill.App. 3d at 109.

In Yuen and Christopherson, teachers defied direct warningsfrom their school boards that they would not be allowed absences onparticular days; they were told that they could be fired if theydisregarded these directives. See Yuen, 77 Ill. App. 2d 353;Christopherson, 90 Ill. App. 3d 460. Both teachers proclaimed thatthey would not abide by the decisions of their respective boards,and they did not. Both courts found that this direct, openchallenge to the authority of a school board was behavior thatcould not be changed by a warning. See Yuen, 77 Ill. App. 2d 353;Christopherson, 90 Ill. App. 3d 460.

Misusing leave days, however, even in derogation of a knownschool policy, is not equivalent to open defiance of a schoolboard's authority. See Szabo, 117 Ill. App. 3d at 873 (findingthat intentional misuse of sick leave was remediable anddistinguishing Yuen and Christopherson).

At the hearing, Betts testified that she would not have usedher sick leave to attend a conference if she had been warned of theconsequences, and that the administration had led her to believethat use of sick leave for this purpose was not a serious offense. Though the Board elicited some contradictory testimony, theopposite conclusion was not overwhelmingly obvious. It is not ourplace to reweigh the evidence presented at an administrativehearing. See Round Lake, 292 Ill. App. 3d at 109. Based on Betts'testimony and demeanor at her dismissal hearing, the hearingofficer found that she was not intentionally insubordinate and thather conduct could have been changed by a warning. We cannot findthat the hearing officer's holding was against the manifest weightof the evidence.

3.

The Board also claims that no written warning was necessary inthis case because Betts had previously received a notice to remedy. The record reveals that Betts did receive an earlier notice toremedy unrelated to any misuse of leave, that she fully cured allof the deficiencies in that notice, and that the schooladministration certified that she had satisfactorily completed thatremediation. Thus, the notice to remedy could not serve as awarning to correct Betts' misuse of leave in this case.

4.

Finally, the Board claims that Betts' reinstatement wasagainst public policy because her absences amounted to a theft ofpublic funds. Classifying this type of conduct as theft is "overlyharsh." Szabo, 117 Ill. App. 3d at 875. Though Betts' conduct iscertainly not laudable and not the best example for students, sheappears to have had no criminal intent, and we will not imply any. We cannot say that the hearing officer's finding that her conductis remediable is against public policy.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

BRESLIN, J., concurring, and McDADE, J., dissenting.

JUSTICE McDADE, dissenting:

For the reasons set out below, I would find the trial court'saffirmance of the administrative decision to be contrary to themanifest weight of the evidence and would reverse.

In October 1997, Mrs. Betts made a timely application forprofessional leave to attend a conference of the NationalConference of Teachers of English (NCTE) occurring on four days inNovember. Because of administrative errors, the application wasnot acted upon and Mrs. Betts' supervisor suggested that she use"personal" days to attend. Because she did not have four personaldays left, Mrs. Betts informed her supervisor that she would onlyattend two days of the conference and would forego the last twodays and return to school. Instead, she had her husband call tosay she was sick and would not be coming in. Regarding those twodays, Mrs. Betts would later testify that she had never intended tobe in school for them and had intentionally deceived the board soshe could attend the entire conference.

In May 1998, Mrs. Betts wanted to attend the graduation of aformer student but had already used all but 1/4 day of her personalleave allotment for that year. She sought, and was allowed,reinstatement of the two personal days she had used to attend the1997 conference. She did not direct any attention to the two days'sick leave by including them in her reinstatement request.

In February 1998, following her attendance at the 1997 NCTEconference, a grievance was filed against Mrs. Betts by 20students. The focus of the grievance was her claimed failure toattend her classes 1-2 days per week, to provide adequateassistance with preparation for an upcoming examination, and toprepare for those classes she did attend. In response to theircomplaint, Mrs. Betts admitted that she had not kept any grade orattendance records and had, for this reason, given all of herstudents B or B- grades. The admitted deficiency was remediated.

During school year 1996-1997, Mrs. Betts had taken 16professional leave days. Fearing that she intended to repeat thatpattern in 1997-1998, her principal, Craig Spiers, sought and gota list of Mrs. Betts' professional commitments for the currentschool year. In response, Spiers advised her to follow through onthose commitments but indicated to her that the number ofprofessional leave days would be limited the following year by apolicy that he intended to propose and that he expected the boardto adopt. Although his proposal was ultimately not approved, Mrs.Betts was aware of his concern. After February 1998 she was alsoaware that her students found her attendance and teachingperformance inadequate to their needs.

Because of this knowledge, and her belief, which sheacknowledged during the hearing, that a request by her forprofessional leave would not be granted, Mrs. Betts did not evenseek such leave to attend the November 1998 NCTE conference. Shehad, however, registered in October for the conference. To ensureher ability to attend, she falsely informed her supervisor onNovember 16-17 that her sister was scheduled for surgery andrequested family medical leave to help her out. The dates of hersister's purported surgical need coincided with the conferencedates. Investigation disclosed that Mrs. Betts was, in fact, inattendance at the conference, not with her sister. She stated atthe hearing that, because of her conference responsibilities, shewas "going to go no matter what."

In the face of these facts, the hearing officer found that,although her conduct was "willful, in the dictionary sense of theterm," he did "not believe that she [acted knowingly] in order toflaunt or defy the Employer's legitimate interests." I believethat this finding is against the manifest weight of the evidence,including Mrs. Betts' own admissions of deliberate lying tofrustrate the perceived efforts of her supervisors to curb herabsences and to further her own intention of attending theconference "no matter what."

I have no quarrel with the cases of Szabo v. Board ofEducation of Community Consolidated School District 54, 117 Ill.App. 3d 869 (1983), and Board of Education of Round Lake, CommunityUnit School District No. 116 v. Cohn et al., 292 Ill. App. 3d 101(1997), which have found the unauthorized use of sick and vacationdays to be remediable in certain circumstances. In my opinion,however, Mrs. Betts' conduct, as shown by the overwhelming weightof the evidence, amounts to deliberate deception and intentionalinsubordination, and, therefore, falls within the controlling ruleestablished by this court in Christophersen v. Spring ValleyElementary School District, 90 Ill. App. 3d 460, 413 N.E.2d 199,201(1980) (finding that "once the willful violation [has] occurred,the damage has been done.") I believe the hearing officer'sdetermination that Mrs. Betts was "capable of remediation if shehad been warned in the first instance," is contrary not only to hersworn testimony at the hearing but also to this court's decision inChristophersen.

In light of the specific facts with which we have beenpresented in this case, I respectfully dissent.