{ "id": 3338565, "name": "RICHARD C. DAVIS, Plaintiff-Appellant, v. THE BOARD OF EDUCATION OF FARMER CITY-MANSFIELD COMMUNITY UNIT SCHOOL DISTRICT NO. 17 et al., Defendants-Appellees", "name_abbreviation": "Davis v. Board of Education", "decision_date": "1978-08-25", "docket_number": "No. 14755", "first_page": "495", "last_page": "501", "citations": [ { "type": "official", "cite": "63 Ill. App. 3d 495" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "339 N.E.2d 39", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 914", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2874289 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0914-01" ] }, { "cite": "91 A.L.R.2d 1078", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1963, "opinion_index": 0 }, { "cite": "372 N.E.2d 129", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. App. 3d 387", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3412432 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0387-01" ] }, { "cite": "37 Ill. 2d 627", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "230 N.E.2d 893", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "87 Ill. App. 2d 269", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2547553 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-app-2d/87/0269-01" ] }, { "cite": "277 N.E.2d 748", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "2 Ill. App. 3d 802", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2756233 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/0802-01" ] }, { "cite": "86 N.E.2d 670", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "338 Ill. App. 43", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5003300 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app/338/0043-01" ] } ], "analysis": { "cardinality": 641, "char_count": 13798, "ocr_confidence": 0.891, "pagerank": { "raw": 7.599644412695406e-08, "percentile": 0.45002604398943724 }, "sha256": "fb8ef9ab32418b95fcb5b05ad0ac282aedf5351509acb6e68910ce05875f8a31", "simhash": "1:2fe8566661064ddf", "word_count": 2261 }, "last_updated": "2023-07-14T19:24:25.660634+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RICHARD C. DAVIS, Plaintiff-Appellant, v. THE BOARD OF EDUCATION OF FARMER CITY-MANSFIELD COMMUNITY UNIT SCHOOL DISTRICT NO. 17 et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE GREEN\ndelivered the opinion of the court:\nThis case primarily concerns the question of whether a public school district effectively terminated the contract under which plaintiff Richard C. Davis was employed as its superintendent. At issue is the interpretation of and relationship between legislation requiring the meetings of public bodies to be open to the public and legislation prescribing the procedure for dismissal of a school superintendent.\nThe crucial portions of these statutes are the following:\nSection 2 of the Open Meetings Act which provides in part,\n\u201cAll meetings of any legislative, executive, administrative or advisory bodies of * * * school districts * * \u00ae which are supported in whole or in part by tax revenue, * * * shall be public meetings * 0 \u00b0.\nThis Section does not prevent any body covered by this Act from holding closed sessions to consider information regarding appointment, employment or dismissal of an employee or officer or to hear testimony on a complaint lodged against an employee or officer to determine its validity, but no final action may be taken at a closed session\u201d (Ill. Rev. Stat. 1977, ch. 102, par. 42),\nand section 10 \u2014 21.4 of The School Code which concerns employment of superintendents and states in part,\n\u201cNotice of intent not to renew a contract must be given in writing stating the specific reason therefor by April 1 of the contract year unless the contract specifically provides otherwise. Failure to do so will automatically extend the contract for an additional year. Within 10 days after receipt of notice of intent not to renew a contract, the superintendent may request a closed session hearing on the dismissal. At the hearing the superintendent has the privilege of presenting evidence, witnesses and defenses on the grounds for dismissal.\u201d Ill. Rev. Stat. 1977, ch. 122, par. 10\u2014 21.4.\nPlaintiff Richard C. Davis sued the Board of Education of Farmer City-Mansfield Community Unit School District No. 17, De Witt, Piatt and McLean Counties, and the members of that Board in the circuit court of De Witt County seeking a declaratory judgment that he was superintendent of that district for the 1976-77 school year and thereafter and that he was entitled to 85 days unused vacation time with full pay. He also sought to enjoin the defendants from dismissing him until they complied with certain statutory provisions. Subsequently, the trial court granted the defendants a summary judgment dismissing plaintiff\u2019s amended complaint. Plaintiff appeals.\nThe facts stated in the next two paragraphs are shown in the record and not disputed by the parties.\nAt meetings of the defendant board on January 12 and 19, 1976, a portion of the meeting was held in closed session in which a discussion occurred concerning plaintiff\u2019s performance as superintendent and the continuation of his employment. At the January 19 closed session, a resolution was adopted finding plaintiff\u2019s performance to be unsatisfactory for reasons specified in detail and reciting a \u201ctentative opinion and judgment\u201d of the Board that he not be rehired. The secretary of the Board was directed to privately deliver a notice of the Board\u2019s actions and reasons for the same to plaintiff within 24 hours. Final action upon the Board\u2019s tentative decision was set for the regular board meeting on February 2, 1976. The minutes of the two closed sessions were kept separate from those of the open sessions. The minutes of the open sessions recited that the Board had met in closed session to consider an evaluation of plaintiff\u2019s work and that the same had not been completed but would be further considered at the next meeting.\nA notice of the Board\u2019s tentative decision made in the closed session on January 19 was personally served on plaintiff on that date. The notice set forth in detail specific reasons for the Board\u2019s action. After meeting in closed session on February 2, 1976, the Board returned to open session and unanimously passed a resolution stating that \u201cin the best interest of the education system\u201d of the district, the board determines that plaintiff not be reemployed as superintendent for the coming year but that if an unfilled position exists which he was certified and qualified to fill he be assigned to that position \u201cthe exact assignment, if any, to be hereafter determined by\u201d the Board.\nSection 10 \u2014 21.4 of The School Code requires that in order to terminate a superintendent\u2019s employment as superintendent, the district\u2019s board must form an intent not to renew the superintendent\u2019s contract and then give him timely notice of that intent by a written document which sets forth the specific reasons for the board\u2019s action. The only written notice given plaintiff which meets those requirements was the notice of the Board\u2019s \u201ctentative decision\u201d given pursuant to the resolution of the Board enacted at the January 19 closed session.\nThe provision of the law on open meetings which permits closed sessions to consider the discharge of an official (Ill. Rev. Stat. 1977, ch. 102, par. 42) does not say whether a resolution may be passed at such a session and no case has been called to our attention ruling upon the question. If the passage of a resolution of a tentative intent to terminate a contract with an employee is \u201cfinal action,\u201d then the notice subsequently given here was without authority and invalid. It would logically follow that absent a valid notice as required by section 10 \u2014 21.4, the Board\u2019s subsequent action discharging plaintiff as superintendent would be void. However, the statement in the statute that \u201cfinal action\u201d may not be taken in a closed session indicates that action that is not final may be taken. Here, the action taken at the January 19 closed session, stating an intent to terminate plaintiff\u2019s employment as superintendent and ordering notice, did not dispose of the question of whether that employment should be terminated and, therefore, was not final action. The action at that closed session did not violate the statute concerning open meetings. By that action, the intent of the Board was validly established and the subsequent notice to plaintiff was authorized.\nThe final action terminating plaintiff\u2019s status as superintendent was taken in an open meeting on February 2,1976. The January 19 notice had adequately set forth the specific reasons for the Board\u2019s intent not to renew the contract and the notice had been timely served. Defendants had not requested a closed meeting. The procedure followed was sufficient to terminate plaintiff\u2019s position as superintendent.\nThe allegations upon which plaintiff\u2019s other claims for relief were based were stricken from the original complaint upon defendants\u2019 motion and were not realleged in the amended complaint. Defendants contend that therefore they were waived (Smith v. Nauer (1949), 338 Ill. App. 43, 86 N.E.2d 670; Coffey v. MacKay (1972), 2 Ill. App. 3d 802, 277 N.E.2d 748). However, we need not consider the waiver question because we do not find the contentions meritorious.\nPlaintiff\u2019s contract with the district provided,\n\u201c[A]ll Board Policies of this Unit are a definite part of this contract.\nIt is further agreed that this contract is subject to the School Laws of Illinois and the reasonable and lawful regulations of the said Board, \u201d \u201d\nA policy adopted by the Board stated:\n\u201cAt the January meeting each year, the Board shall appoint or reappoint a Superintendent of Schools for a term of one or more years from July 1st to June 30th.\u201d\nPlaintiff maintains that the incorporation of this policy into his contract creates a situation within the exception to section 10 \u2014 21.4 of The School Code which designates April 1 as the last day for giving notice of intention to renew the superintendent\u2019s contract \u201cunless the contract specifically provides otherwise.\u201d A dismissal of the superintendent after January would be inconsistent with the Board policy of renewing contracts at the January meeting. Thus, it can be strongly argued that plaintiff\u2019s contract, with the Board policies incorporated therein, by reference, implies a different time limit for giving notice of intent to terminate the contract than that set forth in section 10 \u2014 21.4. However, the contract does not \u201cspecifically\u201d so provide. The statutory time limit for giving notice of intention to terminate prevails. That notice was timely given.\nPlaintiff also maintains that his rights were violated under sections 24\u2014 11 and 24 \u2014 12 of The School Code (Ill. Rev. Stat. 1975, ch. 122, pars. 24\u2014 11 and 24 \u2014 12). Those sections deal with the procedural rights of teachers in contractural continued service (tenure). As a teacher, plaintiff had tenure but as a superintendent he had no tenure unless his rights under section 10 \u2014 21.4 be so defined. (Lester v. Board of Education (1967), 87 Ill. App. 2d 269, 230 N.E.2d 893, appeal denied (1968), 37 Ill. 2d 627.) As we have indicated, his rights under the latter section were properly terminated.\nThe resolution by which this was done also provided that for the next year if a position existed which he was \u201ccertified and qualified to fill,\u201d he was to be assigned to that position. Under section 24 \u2014 12, the Board could have discharged him as a teacher for cause only after a notice and a hearing of a type that was not given here. The Board could also have discharged him as a teacher because of the unavailability of a position for him only after a notice not given here and after previously discharging all nontenured teachers of similar qualifications. Section 24 \u2014 11 required that his salary not be reduced unless it was to an amount based upon a reasonable classification for the teaching he was doing.\nThe resolution making plaintiff\u2019s future employment as a teacher contingent was not within the Board\u2019s statutory authority. The Board had not complied with the provisions of section 24 \u2014 12 empowering the district to terminate his employment as a full-time teacher. Plaintiff therefore was entitled under section 24 \u2014 11 to a salary based upon a reasonable classification for the work to which he was assigned and was entitled to be assigned to work for which he was qualified regardless of the availability of such a position. If the Board did not comply with these rights, however, plaintiff\u2019s remedy was to mandamus the Board to do so and not to require the District to reinstate him as superintendent.\nPlaintiff calls our attention to our decision in Taylor v. State Board of Education (1978), 56 Ill. App. 3d 387, 372 N.E.2d 129, where we ruled that when a school district takes action to reassign a tenured teacher and reduce his salary, sets a hearing on that issue and gives the teacher notice within the terms set forth in section 24 \u2014 12 of the Code, the State Board of Education is, upon request, required to send out a list of possible hearing officers as provided for in that section. Section 24 \u2014 11 states that when a district reduces a teacher\u2019s salary \u201cunless reductions in salary are uniform or based upon some reasonable classification, any teacher whose salary is reduced shall be entitled to a notice and a hearing as hereinafter provided in the case of certain dismissals or removals.\u201d The State Board of Education argued that the foregoing required the holding of a hearing only if the salary reduction was neither uniform nor based upon a reasonable classification. We concluded that one of the purposes of holding the hearing was to determine whether the salary reduction was of the described nature and stated that when a salary reduction was made, the tenured teacher has a right to a notice and hearing as set forth in section 24 \u2014 12.\nPlaintiff correctly points out that no such notice was given nor hearing held here. Our decision in Taylor was rendered while this case was on appeal. Apparently neither side in the instant case placed the same interpretation upon the language as we did. Defendants gave no such notice and set no such hearing for plaintiff although his salary was being reduced. Although plaintiff\u2019s original complaint alleged an improper discharge, no allegation was made in either the original or the amended complaint that his salary had been reduced without compliance with the particular provisions. Accordingly, we rule the issue not to be before us.\nPlaintiff\u2019s latest written contract attached to the original complaint stated in part, \u201cPayment for extra duties not included in above are: School calendar holidays and vacations and four week vacation.\u201d The original complaint alleged that by the terms of his contract as renewed plaintiff was given a four-week vacation each year, that at the time of the complaint he had 85 unused vacation days and that an actual controversy existed between the parties concerning these days. The prayer of the complaint requested that plaintiff be entitled to 85 days of vacation with full pay.\nThe trial court did not err in striking this allegation. The complaint alleged neither an express nor implied agreement for accumulation of vacation time nor a custom that it be given. In the absence of such an allegation, no award could be made. (See Annot., 91 A.L.R.2d 1078 (1963).) In Olson v. Rock Island Bank (1975), 33 Ill. App. 3d 914, 339 N.E.2d 39, relied upon by plaintiff, the award was apparently based upon a custom of the employer.\nFor the reasons stated, we affirm.\nAffirmed.\nREARDON and TRAPP, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE GREEN" } ], "attorneys": [ "Monroe, Wilson, Dyar, Houchen, McDonald & Taylor, of Decatur, for appellant.", "Herrick, Rudasill & Moss, of Clinton (A. J. Rudasill, of counsel), for appellees." ], "corrections": "", "head_matter": "RICHARD C. DAVIS, Plaintiff-Appellant, v. THE BOARD OF EDUCATION OF FARMER CITY-MANSFIELD COMMUNITY UNIT SCHOOL DISTRICT NO. 17 et al., Defendants-Appellees.\nFourth District\nNo. 14755\nOpinion filed August 25, 1978.\nMonroe, Wilson, Dyar, Houchen, McDonald & Taylor, of Decatur, for appellant.\nHerrick, Rudasill & Moss, of Clinton (A. J. Rudasill, of counsel), for appellees." }, "file_name": "0495-01", "first_page_order": 517, "last_page_order": 523 }