                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




              MacDonald v. State Board of Education, 2012 IL App (4th) 110599




Appellate Court            JAMES SCOTT MacDONALD, Plaintiff-Appellant, v. THE STATE
Caption                    BOARD OF EDUCATION and THE BOARD OF EDUCATION OF
                           PAWNEE COMMUNITY UNIT SCHOOL DISTRICT NO. 11,
                           Defendants-Appellees.



District & No.             Fourth District
                           Docket No. 4-11-0599


Rule 23 Order filed        February 6, 2012
Motion to publish
allowed                    March 6, 2012
Opinion filed              February 6, 2012


Held                       The dismissal of a tenured art teacher after he was rated as unsatisfactory
(Note: This syllabus       and failed to remediate was reversed and he was ordered to be reinstated
constitutes no part of     with back pay and benefits where the school board violated the
the opinion of the court   procedural requirements of section 24A-5(f) of the School Code by
but has been prepared      failing to create a remediation plan within a reasonable time following the
by the Reporter of         unsatisfactory evaluation, especially when plaintiff received the
Decisions for the          unsatisfactory evaluation on May 27, 2008, the remediation plan should
convenience of the         have been developed by June 26, 2008, and implemented for a 90-day
reader.)
                           period beginning on the first day of the 2008-09 school year, but the plan
                           was not developed and implemented until October 31, 2008.


Decision Under             Appeal from the Circuit Court of Sangamon County, No. 10-MR-351; the
Review                     Hon. Patrick J. Londrigan, Judge, presiding.
Judgment                   Reversed.


Counsel on                 Ralph H. Loewenstein (argued), of Loewenstein, Hagen & Smith, P.C.,
Appeal                     of Springfield, for appellant.

                           Everett E. Nicholas, Jr., and Susan E. Nicholas (argued), both of Robbins,
                           Schwartz, Nicholas, Lifton & Taylor, Ltd., of Decatur, for appellee.


Panel                      JUSTICE KNECHT delivered the judgment of the court, with opinion.
                           Presiding Justice Turner and Justice Pope concurred in the judgment and
                           opinion.




                                              OPINION

¶1          Plaintiff, James Scott MacDonald, a tenured teacher employed by Pawnee Community
        Unit School District No. 11, was dismissed after the Board of Education of Pawnee
        Community School District (Board) found plaintiff failed to remediate. Plaintiff appeared
        before an impartial hearing officer who concluded the Board followed the proper procedures
        for dismissal and cause existed to dismiss plaintiff. Plaintiff appealed to the circuit court of
        Sangamon County. The circuit court affirmed the hearing officer’s decision. This appeal
        followed.

¶2                                       I. BACKGROUND
¶3          Plaintiff was a tenured art teacher employed by the Pawnee School District (District).
        Plaintiff began working for the District in 1994 and received satisfactory teacher evaluation
        ratings until May 2008. On May 12, 2008, Judy Wilson, the junior high/high school
        principal, formally evaluated plaintiff. Her evaluation noted problems in instructional
        management, student management, attendance, and promptness. Wilson rated plaintiff as
        unsatisfactory and informed him of the results of the evaluation in a postobservation
        conference held on the last day of the school year, May 27, 2008.
¶4          On June 2, 2008, Wilson sent Jeff Seiler, president of the Pawnee Education Association
        (PEA), a letter informing Seiler plaintiff had been rated unsatisfactory, a remediation plan
        would be written within 30 days of the unsatisfactory evaluation (June 26, 2008), and the
        plan would commence at the beginning of the 2008-09 school year. Wilson and Lyle Rigdon,
        the superintendent, were responsible for developing and implementing the plan.
¶5          On October 22, 2008, Rigdon sent plaintiff a letter informing him a meeting would be


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       held on October 27, 2008, to discuss the contents of his remediation plan. The letter indicated
       Rigdon, Wilson, and Amy Howard, a consulting teacher, would be present at the meeting.
       Plaintiff was unable to attend the meeting due to previously scheduled medical appointments,
       and the meeting proceeded without him. At a second meeting on October 31, 2008, plaintiff
       was present and was provided with the remediation plan. Wilson, Rigdon, and Ralph
       Hennemann, a PEA representative, were also present but Amy Howard was not. Plaintiff
       contends the plan did not go into effect until November 21, 2008, after Wilson provided him
       with a revised copy of the plan.
¶6         On November 10, 2008, Wilson conducted an evaluation as required by section 24A-5
       of the School Code (105 ILCS 5/24A-5(h) (West 2008)) (requiring “evaluations and ratings
       once every 30 school days for the 90 school day remediation period”). At this time, plaintiff
       was rated “Unsatisfactory/Satisfactory (Improving!).” On January 20, 2009, Wilson again
       evaluated plaintiff and rated him unsatisfactory. On February 23, 2009, Linda Cline, the
       grade school principal, evaluated plaintiff and rated him unsatisfactory. Finally, on March
       16, 2009, Wilson again evaluated plaintiff and rated him unsatisfactory. On April 14, 2009,
       Wilson prepared a summation evaluation. Wilson found plaintiff did not successfully
       complete the remediation and found his final rating to be unsatisfactory. On April 22, 2009,
       the Board voted to dismiss plaintiff based on these findings.
¶7         Plaintiff requested a hearing before an impartial hearing officer. See 105 ILCS 5/24-12
       (West 2010) (the board shall schedule a hearing before a disinterested hearing officer after
       receiving a request for such hearing from the dismissed teacher). James Rapp, the hearing
       officer, held the dismissal proceeding on January 13, 14, 15, 26, and 27, 2010. At the
       hearing, plaintiff made several challenges to the procedures of the school administrators in
       developing and carrying out his remediation plan. Plaintiff also alleged the Board lacked
       cause to dismiss him. The hearing officer found the school administrators complied with
       procedural requirements, found cause existed to dismiss plaintiff, and upheld the Board’s
       decision to terminate plaintiff’s employment.
¶8         In June 2011, plaintiff filed a complaint for administrative review in the circuit court of
       Sangamon County. See 105 ILCS 5/24-16 (West 2010) (“[t]he provisions of the
       Administrative Review Law *** shall apply to and govern all proceedings instituted for the
       judicial review of final administrative decisions of a hearing officer under [s]ection 24-12”);
       735 ILCS 5/3-104 (West 2010) (“[j]urisdiction to review final administrative decisions is
       vested in the [c]ircuit [c]ourts”). He alleged procedural errors by the Board and argued the
       Board failed to prove cause to dismiss him. In a June 2011 docket entry, the trial court
       upheld the hearing officer’s decision. Plaintiff filed a timely appeal of the trial court’s final
       judgment. See Ill. S. Ct. R. 303(a) (eff. June 4, 2008).

¶9                                        II. ANALYSIS
¶ 10       On appeal, plaintiff argues (1) the Board violated section 24A-5(f) of the School Code
       (105 ILCS 5/24A-5(f) (West 2008)) and the District’s evaluation plan by failing to develop
       and implement the remediation plan within 30 days of the unsatisfactory rating; (2) the Board
       violated section 24A-5(f) by failing to give plaintiff a 90-day remediation period and failing


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       to perform evaluations every 30 days within that period; (3) the Board violated section 24A-
       5(h) of the School Code, the administrative regulations, and the District’s plan by failing to
       require a consulting teacher to participate in the remediation; (4) the Board violated section
       24A-5(h) of the School Code, the administrative regulations, and the District’s plan by
       failing to offer him assistance; and (5) the hearing officer’s decision plaintiff failed to
       achieve a satisfactory rating at the end of the remediation period was clearly erroneous. We
       find the Board violated the procedural requirements of section 24A-5(f) by failing to create
       a remediation plan within a reasonable time and reverse on these grounds. We need not
       address the remaining issues.

¶ 11                           A. Section 24A-5 and Strict Compliance
¶ 12        On review, “we are limited to ascertaining whether the factual findings of the hearing
       officer are against the manifest weight of the evidence.” Board of Education v. State Board
       of Education, 292 Ill. App. 3d 101, 109, 685 N.E.2d 412, 417 (1997). Before such a
       determination, we must first consider whether the steps and procedures required by law were
       taken. Waller v. Board of Education of Century Community Unit School District No. 100,
       13 Ill. App. 3d 1056, 1058, 302 N.E.2d 190, 192 (1973). “If, upon examination of the record
       *** [this] court concludes that there were failures or omissions which substantially affect the
       rights of the party against whom the proceedings are taken, [we have] no choice but to
       reverse.” Waller, 13 Ill. App. 3d at 1058, 302 N.E.2d at 192. See also Neal v. Board of
       Education, School District No. 189, 56 Ill. App. 3d 10, 14, 371 N.E.2d 869, 872 (1977)
       (finding “[t]he teacher tenure act is essentially procedural” and a dismissal that fails to adhere
       to the statutory time requirements is void).
¶ 13        Plaintiff argues the Board failed to comply with section 24A-5 of the School Code, which
       requires the Board to develop and implement a remediation plan within 30 days of a tenured
       teacher receiving an unsatisfactory rating. 105 ILCS 5/24A-5(f) (West 2008). Plaintiff
       received his unsatisfactory evaluation on May 27, 2008. A remediation plan should have
       been developed by June 26, 2008, to be implemented for a 90-day period beginning on the
       first day of the 2008-09 school year. This was the time frame indicated in Wilson’s June
       2008 letter to the PEA. However, the hearing officer found the plan was not developed and
       implemented until October 31, 2008. Plaintiff contends it took the Board 158 days, five times
       the length of time allowed by statute, to implement the plan, and he is entitled to reversal for
       a violation of his procedural rights. We agree.
¶ 14        The Board argues it was not required to strictly comply with the 30-day guideline
       outlined in section 24A-5. The Board contends any variation from the time frame is excused
       by the express provisions of section 24A-5, and further, any delay was not prejudicial to
       plaintiff. This argument was presented to, and accepted by, the hearing officer. The hearing
       officer was not presented with prior decisions or rulings on this issue. Consequently, in the
       hearing officer’s interpretation of the statute, he relied on Senator Berman’s legislative
       remarks in finding the 30-day requirement to be directive and not mandatory. The hearing
       officer found “the development and implementation of the remediation plan was timely” and
       did not prejudice plaintiff.


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¶ 15       Whether plaintiff was afforded the proper procedural protections turns on the hearing
       officer’s interpretation of section 24A-5. An administrative agency’s interpretation of a
       statute is not binding and is subject to de novo review. Board of Education, 292 Ill. App. 3d
       at 109, 685 N.E.2d at 418. In interpreting a statute, the statute’s language is the “most
       reliable indicator of legislative intent.” Buchna v. Illinois State Board of Education, 342 Ill.
       App. 3d 934, 936, 795 N.E.2d 1045, 1046 (2003). However, when the answer cannot be
       found in the statutory language alone, it is not uncommon for courts and administrative
       agencies to look to remarks made during legislative hearings for guidance. The hearing
       officer did so in this case and found Senator Berman’s remarks were “persuasive” in
       concluding the 30-day time period is not mandatory and the Board was timely in creating the
       remediation plan. The senator’s comments at the legislative hearing were as follows:
           “The other point that’s changed that’s addressed here is that the time line that’s spelled
           out in the remediation plan; namely that a...within thirty days after completion of the
           evaluation, a teacher...a teacher shall receive the remediation plan. We have said here that
           failure to comply with the time...with that time requirement, namely, thirty days, shall not
           invalidate the results of the remediation plan.” 84th Ill. Gen. Assem., Senate Proceedings,
           June 26, 1985, at 276 (statements of Senator Berman).
       The statute reads “[f]ailure to strictly comply with the time requirements contained in
       [s]ection 24A-5 shall not invalidate the results of the remediation plan.” 105 ILCS 5/24A-5
       (West 2010). The senator’s remarks provide no extra insight into statutory construction, as
       they are nothing more than a summation of what was to be included in the final statutory text.
¶ 16       We find the plain language of the statute is the best indicator of legislative intent. We
       agree with the hearing officer the 30-day time requirement in section 24A-5 is directory and
       not mandatory and failure to strictly comply does not result in invalidation of the plan.
       However, we do not find a procedural violation because the Board did not “strictly comply”
       with the statute as the plain language indicates. Our concern lies with the Board’s lack of
       effort to substantially comply with the time requirements of section 24A-5 or act reasonably
       under the circumstances.
¶ 17       Strict compliance would result in developing and implementing a remediation plan
       within 30 days as directed by the statute. However, we find the Board’s actions could also
       be categorized as substantially compliant or noncompliant.
¶ 18       Under the particular circumstances of this case, we conclude the Board’s actions are best
       characterized as noncompliant. School officials waited 158 days to develop and implement
       plaintiff’s remediation plan. The record shows school officials knew the plan was to be
       created within 30 days of plaintiff receiving an unsatisfactory evaluation. On June 2, 2008,
       Wilson sent Seiler a letter notifying the PEA plaintiff had been rated unsatisfactory and a
       plan would be written within 30 days of his evaluation date. Rigdon testified he was aware
       of the requirement. Additionally, Jerry Harrison, plaintiff’s union representative, brought the
       failure to meet the time requirement to Rigdon’s attention during the summer and prior to
       the final development of the plan.
¶ 19       Our decision is further supported by the 30-day time requirement set forth in the
       District’s own evaluation plan. It states “[a] teacher having an unsatisfactory rating on the


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       original assessment shall have a remediation plan and procedure implemented within 30 days
       after completion of the assessment.” The District’s plan uses the mandatory term “shall”
       when speaking of the 30-day time requirement. While the language in 24A-5 is directory and
       not mandatory, the Board cannot reasonably argue it did not have to adhere to the 30-day
       time frame considering both the School Code and its own plan directed it to do so.
¶ 20        The Board contends (1) the delay in creation of the plan was due to difficulty in finding
       a qualified consulting teacher to participate in the plan and should therefore be excused; and
       (2) the summer break accounted for part of the 158 days and plaintiff was not harmed by the
       delay, but rather benefitted from having additional time. We consider each in turn.

¶ 21                             B. Locating a Consulting Teacher
¶ 22        The Administrative Code requires the school officials responsible for creating the
       remediation plan to “undertake a diligent effort to identify a consulting teacher.” 23 Ill. Adm.
       Code 1.320(b) (2012). A diligent efforts includes
            “but should not be limited to:
                   A) contacting qualified teachers within the district;
                   B) requesting the regional superintendent of schools to supply a roster of
                qualified consulting teachers; and
                   C) requesting the exclusive bargaining agent for the district to supply a roster of
                qualified consulting teachers.” 23 Ill. Adm. Code 1.320(b)(1)(A)-(C) (2012).
       School officials did not make a diligent effort in locating a consulting teacher. We reject the
       Board’s argument its difficulty in finding a consulting teacher excuses its delay in creating
       the remediation plan.
¶ 23        The record shows the first attempt to locate a consulting teacher was on June 2, 2008.
       Wilson sent a letter to Seiler in which she asked for a recommendation for a consulting
       teacher. Rigdon testified he spoke with Seiler at the end of June, but Seiler was unable to
       assist Rigdon in obtaining a consulting teacher.
¶ 24        A second attempt to find a consulting teacher was not made until July 16, 2008, 50 days
       after plaintiff received an unsatisfactory evaluation, and 20 days past the 30-day time
       requirement for preparing a remediation plan. Rigdon sent an e-mail directed to the area
       superintendents in which he stated he needed a consulting teacher and asked for suggestions
       of possible participants. The regional superintendent was party to this e-mail. Rigdon
       testified he did not receive any responses to his request other than responses wishing him
       well in his search. However, the record shows Jill Hamilton e-mailed Rigdon on July 22,
       2008, telling Rigdon a consulting teacher, Terry Doti, an art teacher from Mt. Zion, had been
       found. On July 23, 2008, Rigdon responded to this e-mail, stating “I will contact her when
       I return. We need to start thinking about how to pay her.” Rigdon testified he contacted Doti
       but received no response. Rigdon also testified he contacted the regional office on July 17,
       2008, and spoke with the assistant regional superintendent, who directed Rigdon to contact
       the State Board of Education (State Board) to assist him in finding a consulting teacher.
¶ 25        On July 29, 2008, Rigdon contacted the State Board to inquire about a consulting teacher.

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       The State Board informed Rigdon it did not have a list of consulting teachers. Rigdon
       testified he attended a meeting for area superintendents in August 2008 and spoke to
       colleagues about suggestions but “no one had anything.” Almost two more months went by
       before another attempt was made. Wilson testified “when [Rigdon] was unsuccessful, then
       I did consult my colleagues to see if there was anyone who could be of assistance.” Wilson
       admitted she made no personal attempts to find a consulting teacher until October 2008, after
       Rigdon was unsuccessful. The remediation plan went into effect on October 31, 2008.
¶ 26       Wilson and Rigdon did not make a diligent effort in attempting to locate a consulting
       teacher as they failed to perform even the minimum actions required by section 1.320 of title
       23 of the Illinois Administrative Code. Of the three minimum requirements, Rigdon did
       request the bargaining agent to supply a roster. The record shows Rigdon only contacted one
       qualified consulting teacher, Terry Doti, before Wilson was able to recruit Amy Howard for
       the position. Further, nothing in the record shows Rigdon requested the regional
       superintendent to supply a roster other than including the regional superintendent in a mass
       e-mail he sent to all superintendents in the area asking “please let us know if you have
       someone who might be available.” Although Rigdon testified he requested the help of the
       assistant regional superintendent to no avail, his actions fell short of what the Illinois
       Administrative Code requires. Even if the school administrators met the three minimum
       requirements, we still do not find they performed a diligent search as they were required to
       take actions beyond those specifically outlined in the Administrative Code.
¶ 27       Wilson and Rigdon’s only attempt to locate someone in the first 30 days was no more
       than a request to the PEA to recommend someone. All later attempts were separated by
       weeks or months in time and were equally as passive as the first attempt. We conclude a
       letter, an e-mail, and a handful of conversations over a period of five months, in light of
       knowing a 30-day time requirement was in place, shows the Board did not act diligently in
       attempting to locate a consulting teacher.
¶ 28       Wilson did not get involved in the search until October 2008 after Rigdon exhausted
       what he believed to be all of his options. Wilson was almost immediately successful in
       locating a consulting teacher once she requested the assistance of her principal colleagues.
       Waiting until October was not diligent. We find the delay in locating a consulting teacher
       was due to a lack of effort on the part of the school administrators and do not excuse such
       delay.

¶ 29                        C. Additional Time During Summer Break
¶ 30      The Board also argues its delay in creating the remediation plan should be excused
       because part of the 158 days included the summer break. Section 24A-5 and the District’s
       evaluation plan both refer to 30 days, not school days. If the legislature intended to exclude
       summer days or other non-school days from being counted toward the 30-day time
       requirement, it would have made such a distinction as it did so in other sections of the statute
       and when it provided for the length of the remediation plan. Compare 105 ILCS 5/24A-5(f)
       (West 2008) (“within 30 days after completion of an evaluation rating a teacher as
       ‘unsatisfactory’, development and commencement by the district *** of a remediation plan”


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       which “shall provide for 90 school days of remediation within the classroom” (emphases
       added)), with 105 ILCS 5/24A-5(h) (West 2008) (“evaluations and ratings once every 30
       school days for the 90 school day remediation period” (emphases added)).
¶ 31       The Board also argues the delay provided plaintiff additional time to address the issues
       set forth in his evaluation, and he therefore benefitted from it. We do not agree. Although
       plaintiff may have had access to his unsatisfactory evaluation, the evaluation could not have
       provided him with the same guidance as a remediation plan. The purpose of a remediation
       plan is to specifically address a teacher’s deficiencies by providing a unique and specialized
       plan that provides a detailed explanation of how the teacher may correct those deficiencies.
       An unsatisfactory evaluation falls short of this criteria. Access to the evaluation did not
       sufficiently benefit plaintiff so as to outweigh the prejudice the delay caused him.
¶ 32       Plaintiff received his unsatisfactory evaluation on May 27, 2008. A remediation plan
       should have been in effect by June 26, 2008. Had such a plan been in place, plaintiff could
       have benefitted from the summer months as the Board suggests. Plaintiff could have used
       this time to attend a professional development class, rewrite his lesson plans, organize his
       classroom per the administration’s specifications, or begin to address any other deficiencies
       cited in the plan. The District chose the evaluation date and should not be allowed to bypass
       statutory time requirements because the 30-day period happened to fall over summer months.
       Plaintiff had no control over the date of the anticipated plan and cannot be charged with
       obtaining a benefit he did not actually receive.
¶ 33       Plaintiff was permitted to begin a new school year using his same teaching methods for
       2 1/2 months before he was provided with the remediation plan. Plaintiff was permitted to
       begin teaching in the way he taught for the 15 years prior to the unsatisfactory evaluation.
       If plaintiff’s deficiencies were as serious as the Board contends, the Board should not have
       waited 158 days to write the plan. If the Board was interested in seeing plaintiff successfully
       remediate, it would have made a more focused effort to have the plan ready by the beginning
       of 2008-09 school year.
¶ 34       We conclude the Board failed to comply with the procedural requirements of section
       24A-5 of the School Code. We find the Board was not diligent in its efforts to identify a
       qualified consulting teacher, and do not excuse its delay on this basis. The fact summer
       accounted for a portion of the 158 days it took the Board to create the plan does not excuse
       its delay. The Board’s failure to comply with procedural requirements results in an
       invalidation of the plan and reversal of plaintiff’s dismissal.

¶ 35                                   III. CONCLUSION
¶ 36       For the foregoing reasons, we reverse the hearing officer’s decision. We order plaintiff
       to be reinstated with back pay and benefits.

¶ 37      Reversed.




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