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  "name": "BOARD OF EDUCATION OF ST. CHARLES COMMUNITY UNIT SCHOOL DISTRICT, NO. 303, Plaintiff-Appellee and Cross-Appellant, v. DAVID W. ADELMAN, Hearing Officer for the Illinois State Board of Education, et al., Defendants-Appellants and Cross-Appellees",
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      "BOARD OF EDUCATION OF ST. CHARLES COMMUNITY UNIT SCHOOL DISTRICT, NO. 303, Plaintiff-Appellee and Cross-Appellant, v. DAVID W. ADELMAN, Hearing Officer for the Illinois State Board of Education, et al., Defendants-Appellants and Cross-Appellees."
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        "text": "PRESIDING JUSTICE NASH\ndelivered the opinion of the court:\nDefendant, Daniel Kroll, appeals from an order of the circuit court which, on administrative review, reversed the decision of a hearing officer for the Illinois State Board of Education reinstating defendant to his teaching position with plaintiff, board of education of St. Charles Community Unit School District No. 303, from which he had been discharged.\nThis is the second appeal in this case. In Board of Education v. Adelman (1981), 97 Ill. App. 3d 530, 423 N.E.2d 254, this court affirmed the trial court\u2019s reversal of an earlier decision of the same hearing officer in which an improper \u201cclear and convincing\u201d standard of proof had been applied to the evidence, rather than the preponderance of the evidence standard which is applicable to a teacher dismissal proceeding. (97 Ill. App. 3d 530, 533, 423 N.E.2d 254.) On remand, the hearing officer again considered the evidence produced at the earlier hearing before him and, on application of the proper standard of proof, reaffirmed his earlier findings and again ordered that defendant be reinstated. In doing so, the hearing officer noted a lack of corroboration of portions of the testimony of the arresting officers and also concluded that the credibility of the witnesses to the incident in question should be resolved in favor of defendant. Plaintiff sought administrative review in the circuit court, which again reversed the decision of the hearing officer as against the manifest weight of the evidence, and this appeal followed.\nDefendant contends (1) that plaintiff school board failed to initiate the administrative review proceeding in the circuit court within the time prescribed by statute, and (2) that the trial court erred in its determination the decision of the administrative agency was against the manifest weight of the evidence. We reverse the circuit court and affirm the decision of the administrative agency.\nThe background facts in this case are stated in our earlier opinion (see Board of Education v. Adelman (1981), 97 Ill. App. 3d 530, 423 N.E.2d 254), and need not be repeated here. We consider the first issue to be dispositive.\nSection 3 \u2014 103 of the Administrative Review Act (Ill. Rev. Stat. 1983, ch. 110, par. 3 \u2014 103) provides that \u201c[ejvery action to review a final administrative decision shall be commenced by the filing of a complaint and issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.\u201d It is undisputed that a copy of the decision of the hearing officer in this case was sent by certified mail to plaintiff\u2019s attorney on June 30, 1983, and that plaintiff filed its complaint for administrative review in the circuit court 36 days later on August 5, 1983. Plaintiff contends the date it received the copy of the decision, July 5, 1983, should be considered the date it was served, and that plaintiff was thus timely in commencing its action.\nSection 3 \u2014 103 of the Administrative Review Act also states,\n\u201cThe method of service of the decision shall be as provided in the Act governing the procedure before the administrative agency, but if no method is provided, a decision shall be deemed to have been served either when personally delivered or when deposited in the United States mail *** addressed to the party affected thereby at his or her last known residence or place of business.\u201d (Ill. Rev. Stat. 1983, ch. 110, par. 3\u2014 103.)\nSection 24 \u2014 12 of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 24 \u2014 12) governs removal and dismissal proceedings of tenured teachers and requires that such matters be considered by a hearing officer appointed by the State Board of Education. The State Board is also required by section 24 \u2014 14 of the School Code to adopt standards and rules of procedure for such hearings, and it has provided in its rules that,\n\u201c \u2018Service\u2019 shall mean service of any document by personal service or by certified or registered mail, postage prepaid, to the individual\u2019s last known address.\u201d (23 Ill. Adm. Code 51.10.)\nFurthermore, the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1983, ch. 127, pars. 1001 et seq.) applies to the administrative rules and procedures of the State Board under the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 1A \u2014 7), and it provides,\n\u201cParties or their agents appointed to receive service of process shall be notified either personally or by registered or certified mail of any decision or order.\u201d (Ill. Rev. Stat. 1983, ch. 127, par. 1014.)\nSee Massoud v. Board of Education (1981), 97 Ill. App. 3d 65, 68-69, 422 N.E.2d 236, appeal denied (1981), 85 Ill. 2d 556.\nIt is established that when no method of service has been provided by statute, the decision of an administrative agency will be deemed served when mailed. (Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 403, 451 N.E.2d 842.) In the present case, it has been provided by statute and rules of procedure that such a decision of this administrative agency will be deemed served when mailed, and it is clear plaintiff\u2019s petition for administrative review of this decision was thus not timely filed.\nPlaintiff argues that the act of mailing of the decision merely serves to create a rebuttable presumption that the notice of the decision was received, citing A-l Security Services, Inc. v. Stackler (1978), 61 Ill. App. 3d 285, 377 N.E.2d 1199, and Avdich v. Kleinert (1977), 69 Ill. 2d 1, 370 N.E.2d 504, in support of that view. We do not agree. Though the issue in A-l Security Services, Inc. is virtually identical with today\u2019s question, the court in that case erroneously relied upon Pearce Hospital Foundation v. Illinois Public Aid Com. (1958), 15 Ill. 2d 301, 154 N.E.2d 691, and Orrway Motor Service, Inc. v. Illinois Commerce Com. (1976), 40 Ill. App. 3d 869, 353 N.E.2d 253, neither of which is on point. Our supreme court examined a similar argument in Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 402-03, 451 N.E.2d 842, and declared, And in an analysis of A-l Security Services, Inc. a court pointed out that Orrway merely holds that a party is presumed to have received a properly mailed order. Thompson v. Civil Service Com. (1978), 63 Ill. App. 3d 153, 155, 379 N.E.2d 655.\n\u201cThe issue presented in Pearce Hospital *** was whether the order of the agency was an administrative decision from which an appeal could be taken and did not present the question whether the statutory period commenced to run from the date of mailing or the date of receipt.\u201d\nIn Advich v. Kleinert (1977), 69 Ill. 2d 1, 370 N.E.2d 504, the supreme court construed the notice provision of the landlord and tenant statute (Ill. Rev. Stat. 1975, ch. 80, par. 10) which allowed service by certified mail with a required returned receipt signed by the addressee. Noting that the legislative purpose of the requirement was to facilitate proof of service in such situations, the court concluded that service under the statute is not complete until it is received by the addressee.\nThe present case presents no indications of a similar legislative intent. Unlike the landlord and tenant statute in Avdich, the State Board\u2019s Rules and Regulations allow service by personal service, certified mail or registered mail, without a requirement of a returned receipt from the addressee and we may not infer such a requirement here. (Chin v. Illinois Department of Public Aid (1979), 78 Ill. App. 3d 1137, 1140, 398 N.E.2d 135.) \u201c[T]he conditions and requirements that the statute prescribes in conferring jurisdiction must clearly exist ***.\u201d Fitzgerald v. Quinn (1896), 165 Ill. 354, 360, 46 N.E. 287, quoted in Avdich v. Kleinert (1977), 69 Ill. 2d 1, 6, 370 N.E.2d 504.\nPlaintiff also argues that \u201cservice\u201d should be construed in its popularly understood meaning which emphasizes delivery. However, where a word or term has a settled, fixed legal meaning or usage, the court should infer that the legislature intended to incorporate this established meaning. (Illinois Power Co. v. Johnson (1983), 116 Ill. App. 3d 618, 452 N.E.2d 347, appeal denied (1983), 96 Ill. 2d 539; Martin v. Luther (7th Cir. 1982), 689 F.2d 109.) It is apparent that the legislative usage of the term \u201cservice\u201d denotes application of the \u201cMailbox Rule,\u201d which deems a decision of notice served when it is mailed. Sjostrom & Sons, Inc. v. D. & E. Mall Restaurant, Inc. (1975), 29 Ill. App. 3d 1082, 332 N.E.2d 62; Winkfield v. American Continental Insurance Co. (1969), 110 Ill. App. 2d 156, 160, 249 N.E.2d 174.\nPlaintiff also contends that it was never served with a copy of the hearing officer\u2019s decision and thus his complaint for administrative review cannot be untimely. Though a copy of the decision was sent via certified mail to E. Allan Kovar, the plaintiff\u2019s attorney, plaintiff argues that service upon the board of education is also required.\nPlaintiff premises its argument first upon section 1014 of the Administrative Procedure Act which provides that \u201c[u]pon request a copy of the decision or order shall be delivered or mailed forthwith to each party and to his attorney of record.\u201d (Ill. Rev. Stat. 1983, ch. 127, par. 1014.) However, there is nothing in the record indicating that plaintiff made such a request and thus this provision is inapplicable. Plaintiff also looks to section 3 \u2014 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 3 \u2014 103), which requires that a copy of the decision be \u201cserved upon the party affected thereby\u201d and argues that this provision requires service upon the school board itself, and is not satisfied merely by service upon its attorney. This argument, however, does not take into account the rule that service upon an attorney is service upon his client. \u201cIf a party is represented by an attorney of record, service shall be made upon the attorney.\u201d (87 Ill. 2d R. 11.) \u201cThe law is well settled that notice to an attorney is notice to the client that employs him, and knowledge of an attorney is knowledge of or imputed to his client.\u201d (People ex rel. Rogers v. Elrod, (1975), 35 Ill. App. 3d 26, 28, 340 N.E.2d 598; People v. Tarkowski (1982), 106 Ill. App. 3d 597, 601, 435 N.E.2d 1339, appeal denied (1982), 91 Ill. 2d 578.) In Massoud v. Board of Education (1981), 97 Ill. App. 3d 65, 69, 422 N.E.2d 236, appeal denied (1981), 85 Ill. 2d 556, the court noted, \u201c[c]ertainly, an attorney of record before an administrative agency is appointed to receive service for his client, barring an express statement to the contrary in his entry of appearance.\u201d We agree with this view and reject plaintiff\u2019s contention that service upon its attorney was not effective as service upon itself.\nWe note that the 35-day filing period is a jurisdictional requirement (Fredman Brothers Furniture Co. v. Department of Revenue (1984), 129 Ill. App. 3d 38, 40, 471 N.E.2d 1037), and a one-day delay in filing will bar relief. In one instance, a court refused to make an exception where a plaintiff attempted to file his complaint one hour before the close of the circuit court clerk\u2019s office on the 35th day, was refused by the clerk\u2019s office because the summons was improperly prepared, and did properly file a new complaint and summons on the 36th day. (Ellis v. Miller (1983), 119 Ill. App. 3d 579, 456 N.E.2d 987.) It is clear that no exception may be made in this case.\nWe must reject plaintiff\u2019s arguments and agree with dictum in Massoud v. Board of Education (1981), 97 Ill. App. 3d 65, 69, 422 N.E.2d 236, appeal denied (1981), 85 Ill. 2d 556, where'notice of an administrative decision was improperly given by first class mail. There, the court noted that \u201c[h]ad notice been given by certified or registered mail, then the date of mailing would be controlling.\u201d\nWe conclude that the decision was deemed to have been served when it was mailed under the statutes and the State Board\u2019s Rules and Regulations, and, as plaintiff failed to initiate administrative review proceedings within the jurisdictional 35-day limit, it is barred from judicial review. Ill. Rev. Stat. 1983, ch. 110, par. 3 \u2014 103; Howard v. Miller (1982), 108 Ill. App. 3d 1, 438 N.E.2d 680.\nAccordingly, the judgment of the circuit court is reversed and the decision of the hearing officer is final.\nReversed.\nHOPE and LINDBERG, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE NASH"
      }
    ],
    "attorneys": [
      "Stephen M. Cooper, of Geneva, for appellants.",
      "E. Allan Kovar, of Kovar, Nelson & Brittain, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "BOARD OF EDUCATION OF ST. CHARLES COMMUNITY UNIT SCHOOL DISTRICT, NO. 303, Plaintiff-Appellee and Cross-Appellant, v. DAVID W. ADELMAN, Hearing Officer for the Illinois State Board of Education, et al., Defendants-Appellants and Cross-Appellees.\nSecond District\nNo. 84 \u2014 0923\nOpinion filed November 6, 1985.\nStephen M. Cooper, of Geneva, for appellants.\nE. Allan Kovar, of Kovar, Nelson & Brittain, of Chicago, for appellee."
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