                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court



         Ball v. Board of Education of the City of Chicago, 2013 IL App (1st) 120136




Appellate Court            VERA BALL, Plaintiff-Appellant, v. BOARD OF EDUCATION OF
Caption                    THE CITY OF CHICAGO; MARY RICHARDSON LOWRY, President;
                           NORMAN BOBINS, TARIQ BUTT, PEGGY DAVIS, ROXANNE
                           WARD, CLARE MUNANA and ALBERTO A. CARRERA, JR.,
                           Members; RON HUBERMAN, Chief Executive Officer; ELLEN
                           ALEXANDER, Hearing Officer; and ILLINOIS STATE BOARD OF
                           EDUCATION, Defendants-Appellees.


District & No.             First District, Second Division
                           Docket No. 1-12-0136


Rule 23 Order filed        June 18, 2013
Rule 23 Order
withdrawn                  July 18, 2013
Opinion filed              July 30, 2013


Held                       A proper basis for plaintiff’s dismissal from her teaching position existed
(Note: This syllabus       where her failure to properly supervise her students resulted in them
constitutes no part of     engaging in sexual activity in their school, especially when that conduct
the opinion of the court   was immoral, negligent and irremediable per se.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 11-CH-1021; the
Review                     Hon. Peter Flynn, Judge, presiding.
Judgment                   Affirmed.


Counsel on                 Kurtis Hale, of Poltrock & Giampietro, of Chicago, for appellant.
Appeal
                           James L. Bebley and Lee Ann Lowder, both of Law Department of Board
                           of Education of the City of Chicago, of Chicago, for appellees.


Panel                      JUSTICE SIMON delivered the judgment of the court, with opinion.
                           Justices Quinn and Connors concurred in the judgment and opinion.



                                              OPINION

¶1          This appeal is before this court following an administrative review proceeding
        concerning the December 15, 2010, decision of defendant Board of Education of the City of
        Chicago (Board) terminating plaintiff Vera Ball’s employment with the Board as a tenured
        teacher assigned to Paul Revere Elementary School (Revere). Following an administrative
        hearing, the Board accepted in part and rejected in part the hearing officer’s findings of fact,
        conclusions of law, and recommendation to reinstate Ball with a warning resolution. Ball
        sought administrative review in the circuit court of Cook County and on December 1, 2011,
        the trial court affirmed the Board’s finding. This appeal followed.
¶2          Ball asserts on appeal that the Board erred in finding that she was negligent in breaching
        her duty to supervise her seventh- and eighth-grade students on May 26, 2009, when they
        engaged in sexual activity in the school. Ball also contends that the Board failed to prove that
        she caused any physical or psychological injury to the students. Finally, Ball asserts that the
        Board’s decision to terminate her employment was arbitrary and capricious. For the
        following reasons, we affirm the decision of the Board.

¶3                                        I. BACKGROUND
¶4          On September 9, 2009, pursuant to section 34-85 of the School Code (105 ILCS 5/34-85
        (West 2010)), Chicago Public Schools (CPS) Chief Executive Officer Ron Huberman
        approved charges against plaintiff alleging conduct unbecoming a CPS employee and
        requested she be suspended, without pay, pending a dismissal hearing. The charges levied
        against plaintiff all related to events that took place at Revere on May 26, 2009, and the
        subsequent investigation of those events. Plaintiff was alleged to have violated numerous
        provisions of CPS’ employee discipline and due process policy for negligently and
        intentionally failing to supervise her students and making false statements to investigators.
        A hearing officer was selected and a dismissal hearing was held, with two days of testimony
        in January 2010.

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¶5         Ball had been a special education instructor for CPS since 1997 working with students
       with behavioral problems and learning disabilities at Revere and had no significant prior
       disciplinary history. Revere is a prekindergarten through eighth-grade elementary school
       located in the Grand Crossing neighborhood at 1010 East 72nd Street, Chicago, Illinois. The
       neighborhood was described as a high violence area with a high incidence of single-parent
       households, domestic violence, and drug and gang activity.
¶6         Approximately 400 students are enrolled at Revere, where 2 buildings comprise the
       closed campus and house 15 classrooms for the students. The school day at Revere runs from
       9 a.m. to 2:45 p.m. with after-school activities after that. Because of the high gang activity
       in the area, students are required to wear uniforms to school. In addition, under the school
       policy, students are to be supervised at all times by teachers, including when in the hallways
       and on bathroom breaks. One security guard patrols both buildings, but security cameras are
       positioned throughout the school buildings and campus.
¶7         Veronica Thompson, principal for Revere, initiated a policy at the school when she
       started in 2005 called the “Three P’s,” which stands for permission, pass and partner. She
       testified that this stood for the requirement that any student not in a classroom and without
       a teacher had to have the teacher’s permission, a pass, and a partner. At the beginning of the
       school year Thompson informed the teachers of their supervision responsibilities and
       reinforced that policy regularly in her weekly e-mail bulletins to staff. Thompson indicated
       in her bulletin that students should never be left unsupervised, particularly when in the halls
       and bathrooms. Teachers were required to escort their students to their “specials,” noncore
       classes, and to and from the lunchroom. Teachers did not have a set lunch period but were
       granted two 10-minute breaks during the day. Ball took both her breaks during her students’
       lunch break from 10:54 to 11:16 a.m.
¶8         Ball’s class during the 2008-09 school year met in Room 300 on the third floor and
       consisted of nine students of various abilities from fifth to eighth grade, including T.T., J.W.,
       T.M. and L.A. K.B. was a 12-year-old female student in Ebonee Greene’s classroom.
       Because of their disabilities and behavioral history, each of these students required greater
       supervision and Ball had a special education assistant, Willimer Hill, for her classroom.
       Hill’s son was formerly a special education student at Revere and she volunteered there from
       1997 to 2003 when she became a teacher’s aide. In 2009, Hill’s duties were to assist Ball by
       helping students with reading and math and by escorting students to other classrooms or the
       lunchroom during the school day.
¶9         On Sunday May 24, 2009, Thompson sent an e-mail to Ball and other teachers with the
       subject line reading “Urgent Summer School PD registration by 5/26.” Thompson wrote
       “Please register for summer school PD [professional development] asap. If you don’t attend
       both sessions, you will not be allowed to teach. Initial trainings are 6/2, 6/3 and 6/4. Follow-
       up sessions are 6/29 and 7/1.” Thompson provided a website for registration as well as a
       telephone number for questions.
¶ 10       On Tuesday May 26, 2009, the school day began as normal. Ball testified that at
       approximately 10:54 a.m., she and Hill walked downstairs to the second floor with their
       students. Ball stated that she went into the disciplinarian office in Room 200 at


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       approximately 10:55 a.m. and Hill escorted the students to the lunchroom. While T.T.
       testified that Ball watched from the third-floor stairwell as the students went to the first-floor
       lunchroom, the video surveillance shows the students leave Room 300 unescorted at 10:52
       a.m., Hill and Ball leave Room 300 at 10:53 and the students reach the first floor seconds
       later, and then at 10:54 it shows Ball enter Room 200 and Hill continue to the first floor to
       escort the students to the lunchroom.
¶ 11        Room 200 was where a phone was located that teachers could utilize if they needed to
       make calls during the school day. Ball attempted to register for her professional development
       courses at this time. Hill returned to Room 200 during the lunch break, then went back to the
       lunchroom. At 11:17 a.m., Hill brought the students to Room 200. The students remained
       with Ball and Hill in Room 200 for the next 30 minutes doing nothing while Ball continued
       to attempt to register for her classes. Ball granted permission to the children to use the
       washroom and Hill stood in the doorway while some students paired up to use the
       washrooms.
¶ 12        On the way to the washroom, T.T. and L.A. met up with K.B. from Greene’s class and
       they went into the copy room. T.T. testified that K.B. and L.A. went into a closet in the room
       and he saw K.B. engaged in oral sex with L.A. The three then left the copy room and
       returned to their classes unescorted. Hill escorted the class from Room 200 back to Room
       300 between 11:45 a.m. and 11:50 a.m. At approximately noon, Ball returned to Room 300
       to rejoin the class.
¶ 13        Ball stated that she conducted regular classroom activities with the students from noon
       until approximately 2 p.m. Shortly before 2 p.m., Ball had her students begin cleaning the
       classroom in preparation for the seventh and eighth graders to go to their special, computer
       class, to end the day. A pair of students was given a pass to go to the office and pick up some
       fliers and another pair, T.M. and T.T., were granted permission to clean the turtle tank. Ball
       stated that she then asked Hill to take the seventh and eighth graders to specials. Ball testified
       that she continued to try and register for professional development while the two remaining
       students continued to clean the classroom at around 2:05 p.m.
¶ 14        However, Hill testified that Ball was not in the classroom at any time after lunch until
       approximately 2 when she returned and told the older students to go to their lockers and
       specials. Hill claimed that R.H. came in and said that J.W. and others had left so Hill
       informed Ball that she needed to tell the kids to come back, but Ball told her that they had
       gone to specials and did nothing. Hill testified that Ball did not instruct her to escort the kids
       at this time and that both she and Ball stayed in the classroom until the end of the school day.
¶ 15        T.T. testified that the students did not have an escort to computer class on May 26, 2009,
       and stated that they were not always escorted. He testified, and the surveillance cameras also
       indicate, that the students met up with K.B. in the hallway at this time. T.T., J.W., and T.M.
       were playing around in the hallway when K.B. invited them to go to the auditorium. At 2:14
       p.m. T.T. went to the computer lab on the second floor but the substitute teacher did not see
       him, so he turned around and went to the auditorium. At 2:18 p.m., the three boys can be
       seen going into the auditorium. In the auditorium, K.B. engaged in oral sex with T.M. and
       vaginal intercourse with T.T.


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¶ 16       Yolanda Davis, site coordinator for the after-school program, went to the auditorium at
       around 2:25 p.m. on May 26, 2009, to see if the custodial staff had cleared the area for the
       after-school ballet club. When she went into the auditorium, she heard a noise and heard
       people run out of the back door of the stage area when she asked who was there. She went
       up to the stage and found K.B. on the floor of the stage, naked from the waist down. Davis
       had K.B. get her pants on while she called security and then took K.B. to Thompson’s office.
¶ 17       K.B. first stated that the boys forced her to have sex with them, but later admitted that
       it was consensual. Her mother was called into the office and K.B. was transported to the
       hospital by ambulance before the police arrived. The boys involved were then called into
       Thompson’s office and questioned.
¶ 18       Ball left for the day at 2:55 p.m. When she clocked out at the office, Jacqueline
       Cheatham, the assistant principal, was at the counter of the office and said something about
       Ball’s boys being into something. Ball testified that Cheatham was smirking when she
       addressed her and Ball responded that it had been a long day, she did not know, and did not
       want to know.
¶ 19       On May 27, 2009, Ball was called to a meeting in Thompson’s office early in the day
       with the students that were involved, the students’ parents, and Ebonee Greene. J.W. did not
       talk other than to admit he only watched. T.M. denied any involvement before admitting that
       he had oral sex with K.B. T.T. admitted that he had consensual sex with K.B. and also
       offered that K.B. had given L.A. “some head” earlier in the day and that he witnessed it in
       the copy room.
¶ 20       Raymond Poloko, an investigator for the Board, testified that Ball informed him that
       either she or Hill always escorted the students to specials. She claimed that Hill escorted the
       students on May 26, 2009. He also testified that he interviewed Hill, who told him that Ball
       was lying. Hill claimed that Ball almost never escorted the students, but would just let them
       leave the classroom, only sometimes walking to the stairwell to watch them go to the second
       floor. Poloko concluded that Ball was negligent on May 26, 2009.
¶ 21       The hearing officer found the video footage supported the testimony that Ball’s students
       went to the cafeteria unescorted at 10:52 a.m. while Ball and Hill went to Room 200. At
       11:24 students reported to Room 200 where Ball remained until 11:48. During this time T.T.,
       K.B. and other students were unsupervised in the hallway. They went into the copy room
       during this time where the first incident of sexual activity occurred. The hearing officer
       found this 30- to 45-minute period where Ball attempted to register for her professional
       development class and did not teach or supervise her students closely constituted pedagogical
       negligence. She opined that this was not a pattern of reckless behavior, but a moment of
       carelessness and neglect.
¶ 22       The hearing officer also found that Ball knowingly violated the school’s internal policy
       of constant supervision for failing to escort the students to the computer room around 2 p.m.
       She opined that Ball “was negligent, but neither grossly negligent nor reckless in allowing
       her students to go by themselves down a flight of stairs to their next class. It was wrong, but
       it was also able to be addressed or ‘corrected by a warning.’ ” Therefore, while the Board
       proved its charges that Ball made a false statement to the investigator, failed to comply with


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       the safety rules of the school, and violated school rules in a way that seriously disrupted the
       educational process in the school, she found the students’ sexual behavior was not a
       foreseeable and direct result of Ball’s actions and the school community’s and K.B.’s
       reputations were not irretreviably damaged. She recommended Ball be reinstated and placed
       in a warning performance status.
¶ 23        The Board found that Ball’s statements to the investigator that she or Hill also escorted
       the students to computer lab were false and adopted the hearing officer’s finding on that
       allegation, as well as her other two findings of violations. The Board opined that Ball’s
       attempt to register for her professional development class while the students sat idle was
       unprofessional and unsatisfactory. Had Ball not knowingly violated rules and abandoned her
       post, the Board concluded, the students would not have had the opportunity to undertake the
       sexual activities. The Board rejected the conclusion that the students were only potentially
       psychologically harmed as the boys were initially charged with rape and questioned by the
       administrators, parents and police. In addition, K.B. never returned to Revere.
¶ 24        The Board found Ball’s comments to Cheatham were emblematic of a lax work ethic that
       was unacceptable, harmful and irremediable. The Board disagreed with the hearing officer’s
       conclusion that this was simply a single day of carelessness. Taking notice that Greene,
       K.B.’s teacher, was also discharged, it held both Ball and Greene equally accountable for the
       incident. The Board found Ball’s neglect, indifference and dishonesty required her dismissal
       as it was “loathe to risk the safety and well-being of students on the hope that this was Ball’s
       ‘one day of carelessness and neglect.’ ” Accordingly, the Board terminated Ball’s
       employment pursuant to section 34-85 of the School Code.
¶ 25        Ball filed a complaint in administrative review with the circuit court of Cook County.
       Following briefing and a hearing, that court affirmed the Board’s decision and Ball’s
       dismissal. This appeal followed.

¶ 26                                       II. ANALYSIS
¶ 27       Under the Administrative Review Law, we review the decision of the Board, not that of
       the circuit court. Ahmad v. Board of Education of the City of Chicago, 365 Ill. App. 3d 155,
       162 (2006); 735 ILCS 5/3-101 et seq. (West 2010). Factual determinations by an
       administrative agency are held to be prima facie true and correct and will stand unless
       contrary to the manifest weight of the evidence. 735 ILCS 5/3-110 (West 2010);
       Bloomington Public Schools, District No. 87 v. Illinois Property Tax Appeal Board, 379 Ill.
       App. 3d 387, 390 (2008). However, questions of law are subject to de novo review. Cook
       County Board of Review v. Property Tax Appeal Board, 384 Ill. App. 3d 472, 479 (2008).
       An agency’s findings of fact will be held against the manifest weight of the evidence only
       if the opposite conclusion is clearly evident. Abrahamson v. Illinois Department of
       Professional Regulation, 153 Ill. 2d 76, 88 (1992). Further, regardless of the basis or
       reasoning provided by an agency for its decision, we may affirm the agency’s decision on any
       basis appearing in the record. Ahmad, 365 Ill. App. 3d at 162.
¶ 28       Section 34-85 reads, in pertinent part: “No written warning shall be required for conduct
       on the part of a teacher or principal that is cruel, immoral, negligent, or criminal or which in

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       any way causes psychological or physical harm or injury to a student as that conduct is
       deemed to be irremediable.” 105 ILCS 5/34-85 (West 2010). Activity that is cruel, immoral,
       negligent or criminal is irremediable per se. Younge v. Board of Education of the City of
       Chicago, 338 Ill. App. 3d 522, 534 (2003). This type of behavior “demonstrate[s] a basic
       character flaw which makes [a teacher’s] future employment at the Board of Education,
       which is partially responsible for molding the character of our youth, untenable” and
       “dismissal [is] entirely appropriate.” Ahmad, 365 Ill. App. 3d at 167.
¶ 29       In Younge, plaintiff teachers were terminated for separate incidents of being under the
       influence of marijuana while at work. Younge, 338 Ill. App. 3d at 524-29. The Younge court
       highlighted the 1995 amendments to section 34-85 that provided that cruel, immoral,
       negligent or criminal behavior was irremediable per se and no proof of damage from such
       an action was necessary to support termination. Id. at 533-34. The hearing officers and the
       Board found that the teachers, one who admitted the use of marijuana and one who did not,
       “violated several of the Board’s rules and policies, but also constituted immoral conduct” and
       their dismissal without written warning or progressive discipline was appropriate. Id. at 534.
¶ 30       The facts of Ahmad are more similar to the instant scenario. In Ahmad, plaintiff teacher
       misrepresented herself as an agent of CPS in order to obtain free goods from a company
       while also concealing her actions from CPS. As a result, she obtained shipments of goods
       valued over $30,000, sold that merchandise under a private venture, and did not pay the bill.
       Ahmad, 365 Ill. App. 3d at 157-60. The Ahmad court found the plaintiff’s intentional acts of
       dishonesty for personal gain was immoral conduct and supported termination under section
       34-85. Id. at 164-65.
¶ 31       In the instant matter, the Board concluded that Ball’s dishonesty, indifference and
       negligent actions warranted her dismissal. The hearing officer and Board both found that Ball
       made false and deliberately inaccurate statements to the investigator. The Board notes that
       Ball has not contested this finding.
¶ 32       The testimony and evidence show that Ball tended to her personal need to register for
       professional development classes during the first incident while some students sat idle in the
       room with her and others snuck off when on a bathroom pass and engaged in sexual acts with
       another student. It also shows that Ball’s students were not escorted to the computer lab
       around 2 p.m. Ball lied to the investigator about the fact her students were always escorted
       to class and that they were escorted on this day. Allowing the children to go unescorted
       through the school violated school policy and was negligent oversight compounded by Ball’s
       tending to personal needs instead of properly overseeing her special education students.
¶ 33       Ball argues that, unlike Ahmad, there was no fraud or personal gain. She claims that there
       was no showing that her untruthfulness to the investigator was intended to mislead the Board
       or damage the investigation. She contends that the Board’s argument that lying is immoral
       conduct is not supported. Ball points to the Board policy and notes that its policy does not
       require dismissal for making false statements to investigators. This argument is specious;
       Ball does not dispute that she made false statements to the investigator and those statements
       could only be made in her attempt to personally gain by avoiding responsibility for her
       negligent acts. Furthermore, as stated in Younge, even where the Board’s policy provides for


                                                -7-
       a different penalty, the School Code provides that dismissal is proper for such immoral
       action.
¶ 34       Ball’s additional arguments also fail. First, Ball admits that she waived her argument that
       the Board failed to prove her guilty of negligence as she did not advance that argument
       before the hearing officer or Board, but contends this court should consider this argument as
       waiver is a limitation on the parties, not this court. American Federation of State, County &
       Municipal Employees, Council 31 v. County of Cook, 145 Ill. 2d 475, 480 (1991). We agree
       that this argument was waived, and even if not waived, Ball’s argument improperly applies
       the elements for the tort of negligence, not a determination in a disciplinary action for
       negligent acts. As the Younge court identified, a specific harm from the teacher’s behavior
       need not be shown to support dismissal under section 34-85.
¶ 35       Ball’s attempts to demonstrate the Board’s decision was arbitrary and capricious also fail.
       Ball asserts that the Board failed to recognize that the substitute computer teacher, Mr.
       Armstrong, or her assistant, Ms. Hill, failed to properly supervise students involved in this
       incident and they were not disciplined. She claims that the evidence showed that she told Hill
       to escort the children and that Armstrong failed to take attendance or notice when T.T.
       opened the door to the classroom, but then left to the auditorium, and that the Board ignored
       the testimony placing responsibility on the substitute teacher, Mr. Armstrong. As the Board
       found, Ball had primary responsibility as the teacher and the evidence showed that she failed
       to properly supervise the children and lied about that. It was not arbitrary and capricious not
       to place the blame on the other staff members.
¶ 36       Finally, it was not arbitrary and capricious to reject the hearing officer’s finding without
       consultation. Hearne v.Chicago School Reform Board of Trustees of the Board of Education
       for the City of Chicago, 322 Ill. App. 3d 467, 484 (2001). Unlike Hearne, credibility is not
       the determining factor and the Board did not produce a half-page decision with conclusory
       findings. Id. Rather, the Board produced an extensive and well-reasoned decision, cited to
       testimony and video evidence in support of its conclusion, and even agreed with several of
       the hearing officer’s conclusions. The Board added some fact discussion and presented
       reasoning for rejecting the hearing officer’s conclusion that Ball conceivably could have
       thought the children were properly escorted and was not reckless or grossly negligent. The
       Board’s thoughtful analysis of the facts and the law did not violate Ball’s due process rights
       under Hearne. Accordingly, we agree with the Board that Ball’s actions were immoral and
       negligent and, therefore, irremediable per se and a proper basis for her dismissal under
       Younge and Ahmad and we affirm the final decision and order of the Board.

¶ 37                                  III. CONCLUSION
¶ 38      For the foregoing reasons, the decision and order of the Board is affirmed.

¶ 39      Affirmed.




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