{ "id": 5583225, "name": "JEROME A. LITIN, Plaintiff-Appellant, v. THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee", "name_abbreviation": "Litin v. Board of Education", "decision_date": "1979-05-21", "docket_number": "No. 78-723", "first_page": "889", "last_page": "894", "citations": [ { "type": "official", "cite": "72 Ill. App. 3d 889" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "388 N.E.2d 398", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. 2d 314", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2991536 ], "opinion_index": 0, "case_paths": [ "/ill-2d/75/0314-01" ] }, { "cite": "367 N.E.2d 1337", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "67 Ill. 2d 434", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5813000 ], "year": 1979, "pin_cites": [ { "page": "442-43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0434-01" ] }, { "cite": "296 N.E.2d 89", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 210", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2934286 ], "weight": 3, "pin_cites": [ { "page": "212" }, { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0210-01" ] }, { "cite": "370 N.E.2d 157", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 568", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3404542 ], "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0568-01" ] }, { "cite": "165 N.E.2d 300", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "18 Ill. 2d 618", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328631 ], "year": 1977, "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0618-01" ] }, { "cite": "20 Ill. App. 2d 504", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5194355 ], "year": 1959, "pin_cites": [ { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/20/0504-01" ] }, { "cite": "29 Ill. App. 2d 261", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5220984 ], "year": 1961, "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/29/0261-01" ] }, { "cite": "51 Ill. App. 2d 20", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5277561 ], "year": 1964, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/51/0020-01" ] }, { "cite": "334 N.E.2d 841", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 112", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2709496 ], "weight": 3, "pin_cites": [ { "page": "114-15" }, { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0112-01" ] } ], "analysis": { "cardinality": 619, "char_count": 13894, "ocr_confidence": 0.9, "pagerank": { "raw": 1.1746960500616998e-07, "percentile": 0.5872755515862121 }, "sha256": "f19bc55524c7d05386b82a4e19ab376ab0a897edadd2ff002ff950c723a47cdd", "simhash": "1:b6aca0642ad3740d", "word_count": 2264 }, "last_updated": "2023-07-14T14:39:04.921292+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JEROME A. LITIN, Plaintiff-Appellant, v. THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE GOLDBERG\ndelivered the opinion of the court:\nThe Board of Education of the City of Chicago (Board) dismissed Jerome A. Litin (plaintiff), a tenured teacher, under the provisions of section 34 \u2014 85 of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 34\u2014 85). The dismissal was affirmed on administrative review. Plaintiff appeals.\nIn this court, plaintiff contends: (1) The Board did not serve plaintiff with a reasonable warning in writing as required by section 34 \u2014 85 of the School Code; and, therefore, the Board was without jurisdiction to hear charges against plaintiff and order his dismissal; and (2) the decision of the Board was against the manifest weight of the evidence. The facts pertinent to our decision follow.\nPlaintiff had been a teacher in the Chicago Public Schools for 21 years. At the time of his dismissal, he was a tenured teacher at Von Steuben Upper Grade Center. His last efficiency rating in June 1973 was \u201cexcellent.\u201d On March 19, 1976, the principal of Von Steuben issued to plaintiff a written \u201cE-l\u201d notice stating plaintiff\u2019s performance was unsatisfactory. The notice also contained suggestions for improvement if plaintiff wished to secure a higher rating and a warning that \u201cfailure to remove these causes, may result in charges as provided by statute.\u201d\nOn September 8, 1976, the principal served plaintiff with an \u201cE-2\u201d notice indicating his performance had not improved and his efficiency rating would be recorded as unsatisfactory. On October 1, 1976, an E-2 conference was held in the Bureau of Teacher Personnel for the purpose of reviewing and discussing with plaintiff the evaluations of his service. Plaintiff, the principal and other school officials were present. On May 25, 1977, the General Superintendent of Schools preferred charges against plaintiff for failure to perform his duties and responsibilities as a teacher in the Chicago Public Schools. The Superintendent averred that from September 3, 1975, through October 1, 1976, plaintiff had failed: to maintain proper order and discipline among his pupils; properly to supervise movements of students in his classroom to the cafeteria and to exits at dismissal time; to display his students\u2019 work on bulletin boards and to improve the appearance of his classroom; to implement an organized and effective instructional program, all notwithstanding numerous requests, suggestions, directives and orders from his superiors. Plaintiff was suspended from duty pending hearing on the charges.\nHearings were held on June 23 and July 6,1977. On July 27,1977, the Board confirmed the dismissal of plaintiff by adopting the report of the trial committee.\nPlaintiff and the Board agree that if the causes are remediable, a written warning stating those causes which may result in charges must be sent to a tenured teacher before the Board has jurisdiction to hear charges and dismiss the teacher. They also agree that the causes herein were remediable and that the substance of the written warning received by plaintiff was sufficient to meet the statutory requirements of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 34 \u2014 85). Therefore, the only issue we need consider is whether the written warning may be sent by the principal in lieu of the Board.\nThe pertinent statute states in relevant part (Ill. Rev. Stat. 1975, ch. 122, par. 34 \u2014 85):\n\u201cBefore service of notice of charges on account of causes that may be deemed to be remediable, the teacher shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges.\u201d\nPlaintiff cites Paprocki v. Board of Education (1975), 31 Ill. App. 3d 112, 334 N.E.2d 841, in support of his contention that the Board has a nondelegable duty to serve the notice on a tenured teacher. In Paprocki, the plaintiff was a tenured teacher with 23 years of experience. The Board of Education of the McHenry County District dismissed plaintiff after allegedly following the procedures set forth in section 24 \u2014 12 of the School Code (Ill. Rev. Stat. 1971, ch. 122, par. 24 \u2014 12). Plaintiff therein contended that the Board had not given the required statutory notice in writing and, therefore, it was without jurisdiction to dismiss plaintiff. The Board maintained that the written notice sent by the principal met the requirements of section 24 \u2014 12. This statute provided in relevant part (Ill. Rev. Stat. 1971, ch. 122, par. 24 \u2014 12):\n\u201cBefore service of notice of charges on account of causes that are considered remediable, the teacher shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges.\u201d\nThis court (Second District) stated that the power to hire and fire is a discretionary one which cannot be delegated or limited by contract. The court held (31 Ill. App. 3d 112, 114-15):\n\u201cThe notice of remediable cause is jurisdictional, and a board\u2019s failure to give such warning deprives a board of the jurisdictional authority to discharge the teacher for those causes. Miller v. Board of Education, 51 Ill. App. 2d 20, 29 (1964); Allione v. Board of Education, 29 Ill. App. 2d 261, 267 (1961); Keyes v. Board of Education, 20 Ill. App. 2d 504, 509 (1959).\nWhile the Board admits that it sent no notice to plaintiff, it asserts that the letter which plaintiff received from the school principal fulfilled the notice requirement of section 24 \u2014 12. As previously discussed, the duty to send notice of remediable cause lies solely with the Board, and is a nondelegable responsibility. The principal\u2019s letter cannot, therefore, serve in lieu of notice from the Board. Since no written warning of remediable causes was sent by the Board, its action was not within the contemplation of the statute and was void ab initio.\u201d\nThe Board contends that Paprocki is inapplicable to the instant case because section 34 \u2014 85 applies to cities of over 500,000 inhabitants while section 24 \u2014 12 (involved in Paprocki) applies to all other cities. Plaintiff maintains that since the wording of these sections is identical in the pertinent portions thereof, the reasoning in Paprocki governs the instant case.\nDuring oral argument, the Board countered by stating that the legislature had amended section 24 \u2014 12 four days after the decision in Paprocki to require that \u201ca board must give the teacher reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges.\u201d (Ill. Rev. Stat. 1977, ch. 122, par. 24 \u2014 12.) Section 34 \u2014 85 has not been so amended. The Board reasoned that the fact the legislature did not amend section 34 \u2014 85 to require specifically that the Board itself must give notice evidences an intent by the legislature to permit Boards operating under this particular section of the statute to delegate this duty to the principals.\nOn the contrary, it appears to us that the situation here is governed by the fundamental rule of statutory construction that \u201cthe legislature knew of the prior interpretation placed on its language by judicial decision.\u201d (Illinois Power Co. v. City of Jacksonville (1960), 18 Ill. 2d 618, 622, 165 N.E.2d 300.) This rule has also been stated as, \u201c[w]hen a statute is amended after judicial opinions construing it have been published, the legislature is presumed to have acted with knowledge of those opinions.\u201d Leischner v. Daniel\u2019s Restaurant, Inc. (1977), 54 Ill. App. 3d 568, 570, 370 N.E.2d 157.\nIn the case before us these two sections of the School Code had identical language with reference to the service of the warning notice upon the teacher. The legislature amended section 34 \u2014 85 of the School Code pertaining to schools in cities with population over 500,000 on four occasions all after the decisions in Paprocki and in Bessler v. Board of Education (1973), 11 Ill. App. 3d 210, 212, 296 N.E.2d 89. (Ill. Ann. Stat., ch. 122, par. 34 \u2014 85, at 56 (Smith-Hurd 1978 Supp.).) None of these amendments pertain to the question of service of the warning notice. We are required to presume that the legislature tacitly approved of the court interpretations of the language used in this provision by permitting it to remain unchanged by the various amendments.\nThe inherent fallacy in the Board\u2019s argument is that it fails to recognize that the authority of the School Board to hire and fire a teacher is discretionary and cannot be delegated or exercised by someone other than the Board. (Paprocki, 31 Ill. App. 3d 112, 114, and cases cited therein.) \u201cThis is true even where the delegation is expressly authorized by the School Board.\u201d (Bessler, 11 Ill. App. 3d 210, 212.) Thus, the Board necessarily retains the sole nondelegable duty and power to: (1) determine whether the causes which may result in charges are remediable, and (2) if remediable, to serve the required notice on the teacher. (See Aulwurm v. Board of Education (1977), 67 Ill. 2d 434, 442-43, 367 N.E.2d 1337; Bessler, 11 Ill. App. 3d 210.) As a consequence, the principal\u2019s letter in the instant case cannot serve in lieu of notice from the Board. The Board was therefore without jurisdiction to hear charges and dismiss plaintiff. See Grissom v. Board of Education (1979), 75 Ill. 2d 314, 388 N.E.2d 398.\nAccordingly, the judgment appealed from is reversed and the case remanded for further proceedings not inconsistent with this opinion. In view of this disposition, we need not consider plaintifFs additional issue as to whether the decision \u00f3f the Board was against the manifest weight of the evidence.\nJudgment reversed and cause remanded.\nO\u2019CONNOR and CAMPBELL, JJ., concur.\nSUPPLEMENTAL OPINION ON DENIAL OF REHEARING\nMr. PRESIDING JUSTICE GOLDBERG\ndelivered the opinion of the court:\nUpon detailed consideration of the petition for rehearing filed by the Board, we wish to point out:\n(1) Page 3 of the petition states that the amendment to section 24 \u2014 12 of the School Code, which required the service of notice by the Board, \u201cultimately passed both Houses on June 26,1975.\u201d The petition states on page 4 that the Paprocki decision was not filed until August 22, 1975. Therefore, the Board urges that this amendment to section 24 \u2014 12 necessarily did not result from Paprocki. Reference to our opinion shows that in this regard we simply paraphrased a contention made by the Board in oral argument before us. The very next two paragraphs of our opinion show we first cited the general legal theory that where legislative amendments are made after judicial opinions, the legislature is presumed to have acted with knowledge of those opinions. The paragraph immediately following states that the legislature amended section 34 \u2014 85 of the School Code on four occasions, all after the decisions in Paprocki and in Bessler which dealt with language in section 24 \u2014 12, virtually identical to that used in section 34 \u2014 85. We therefore were obliged to reach the result that by four, nonpertinent amendments to section 34 \u2014 85 the legislature, at least by implication, manifested a desire to permit this section to remain unchanged as regards the point here at issue.\n(2) As applicable here, section 34 \u2014 85 (Ill. Rev. Stat. 1975, ch. 122, par. 34 \u2014 85) provided:\n\u201cBefore service of notice of charges on account of causes that may be deemed to be remediable, the teacher shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges.\u201d\nThis same section of the 1975 statute also provides that all principals shall be given \u201creasonable advance notice * 9 *in writing\u201d of a proposed reclassification. At the present time, by amendment, this section provides (Ill. Rev. Stat. 1977, ch. 122, par. 34 \u2014 85):\n\u201cBefore service of notice of charges on account of causes that may be deemed to be remediable, the teacher or principal shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges.\u201d\nThus, in the present version of the Code, as above shown, there is provision for service of notice upon both the principal and the teacher with reference to remediable charges. In the event of either an attempted removal or reclassification of a principal, he certainly could not be expected to serve a warning notice upon himself. In view, therefore, of the language now appearing in the statute, the only natural and logical interpretation is that reasonable warning in writing regarding remediable charges shall necessarily be served upon the teacher by the Board.\nIn our view, this progression of four statutory changes, all adopted by the legislature after the decisions in Paprocki and Bessler, reflects a clear statutory intent to provide for service of warning notices by the Board for remediable matters. Also, special emphasis must be placed upon the change from 1975 to 1977 above noted to broaden the requirement of warning notices to include principals. These factors strengthen the implication that such notices must be served by the Board.\n(3) We have given special attention to the statements in the petition that our decision \u201cwill hamper the efficient and effective operation of the Board\u201d and also \u201cundermine the evaluation and supervision of teachers by principals.\u201d We have concluded that these matters should be addressed to the legislature.\nThe petition for rehearing is accordingly denied. The alternative request for a certificate of importance is also denied.\nO\u2019CONNOR and CAMPBELL, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE GOLDBERG Mr. PRESIDING JUSTICE GOLDBERG" } ], "attorneys": [ "Ligtenberg, Dejong, Poltrock & Giampietro, of Chicago (Lawrence A. Poltrock, of counsel), for appellant.", "Michael J. Murray, of Chicago (Christine Cheatom, of counsel), for appellee." ], "corrections": "", "head_matter": "JEROME A. LITIN, Plaintiff-Appellant, v. THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee.\nFirst District (1st Division)\nNo. 78-723\nOpinion filed May 21, 1979.\nSupplemental opinion filed on denial of rehearing on June 25, 1979.\nLigtenberg, Dejong, Poltrock & Giampietro, of Chicago (Lawrence A. Poltrock, of counsel), for appellant.\nMichael J. Murray, of Chicago (Christine Cheatom, of counsel), for appellee." }, "file_name": "0889-01", "first_page_order": 911, "last_page_order": 916 }