                             2017 IL App (3d) 150643

                            Opinion filed May 9, 2017
____________________________________________________________________________

                                    IN THE

                        APPELLATE COURT OF ILLINOIS

                                THIRD DISTRICT

JOHN C. HAAG, DANIEL HARBACK,      )           Appeal from the Circuit Court

GREG MATAS, DAVID PETERSON,        )           of the 13th Judicial Circuit,

LAURIE BRAHAM, MICHAEL BREYNE,     )           La Salle County, Illinois. 

JOHN HENKEL, ELDON JENKINS,        )

PATRICIA BIROS, MARY RUTH          )

CLAYTON, BRENDA CONNOR, LAURA      )

CONNES, CINDY DUTKO, MICHELLE      )

GAYON, SUE ELLEN HENSON, KATHY     )

KMETZ, PAMELA LUCKEY, KATHLEEN     )

MAGANA, TAMARA MUSHRO, TAMELA      )

PANNO, PAMELA PODKANOWICZ,         )

DIANA POMERANKE, REBECCA SAMEK,    )

PATTI THORP, DEBRA WISSEN, DEBRA   )

WOODWARD, MARY JANE LEE, DEBBIE    )

SCOTT, and JOLYNN HAAGE, formerly  )

known as JOLYNN PEACOCK,           )           Appeal No. 3-15-0643

                                   )           Circuit No. 14 MR 32 

     Plaintiffs-Appellants,        )

                                   )

     v. 	                          )

                                   )

                                   )

THE BOARD OF EDUCATION OF STREATOR )
ELEMENTARY SCHOOL DISTRICT 44,     )           The Honorable
                                   )           Joseph P. Hettel,
     Defendant-Appellee.           )           Judge, Presiding.

____________________________________________________________________________

PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Justices Lytton and O’Brien concurred in the judgment and opinion.
____________________________________________________________________________
                                                 OPINION



¶1          The plaintiffs, educational support personnel (ESP) employed by the Board of Education

     of Streator Elementary School District 44 (Board), brought a declaratory judgment action against

     the Board, seeking reinstatement to full-time positions along with corresponding payment of

     back-pay and benefits. The plaintiffs maintained that the Board’s action in issuing each plaintiff

     an honorable discharge from full-time employment and offering to re-hire each as a part-time

     employee violated their rights under section 10-23.5 of the School Code (Code). 105 ILCS 5/10­

     23.5 (West 2012). Following cross-motions for summary judgment, the circuit court of La Salle

     County granted the Board’s motion for summary judgment and denied the plaintiffs’ motion for

     summary judgment. The plaintiffs appealed.

¶2                                           BACKGROUND

¶3          The following facts are taken from the stipulations by the parties. The Streator

     Elementary School District operated under deficit reduction plans since 2008. The District was

     placed on the Illinois State Board of Education’s (ISBE) financial watch list in 2012. Prior to that

     time, the District had been on the ISBE’s financial warning list since 2009. At the conclusion of

     the 2012-2013 school year, the plaintiffs were employed by the District as full-time custodians,

     special education aids, or behavior interventionists. The custodians’ full-time employment was

     40 hours per week and the other plaintiff’s full-time employment was 37.5 hours per week.

¶4          On January 15, 2013, the Board held a regularly scheduled meeting at which the

     superintendent recommended the adoption of a deficit reduction plan that called for reducing all

     full-time ESPs to part-time employees with no more than 29 hours of employment per week. The

     Board subsequently adopted the superintendent’s recommendation as part of an overall deficit

     reduction plan.

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¶5          On February 25, 2013, the union representing the plaintiffs submitted a request to bargain

     over the impact of the Board’s deficit reduction plan, including the decision to reduce the hours

     of any full-time employees. The union and the Board engaged in bargaining during the period

     from March 4, 2013, through July 2, 2013. The subject of the reduction of the plaintiffs’

     positions from full-time to part-time was a topic of discussion throughout the impact bargaining,

     with the union maintaining that the Board should not make the reductions, and the Board

     maintaining that the move was a matter of economic necessity.

¶6          On March 19, 2013, the Board voted to reduce custodians to part-time, effective June 30,

     2013, and to honorably dismiss three of the special education aids. On April 30, 2013, the Board

     voted to reduce the remaining special education aids to part-time, effective June 30, 2013.

     Notices of honorable dismissal were sent to those employees. On May 21, 2013, the remaining

     special education aids not previously notified were issued honorable dismissals.

¶7          As part of the 2012-2013 budget deficit plan, the Board closed one of its schools,

     Oakland Park School, in June 2013, at the end of the 2012-2013 school year.

¶8          On July 13, 2013, the Board implemented the deficit reduction plan, eliminated the

     plaintiffs’ full-time positions, issued each plaintiff an honorable discharge, and advertised part-

     time positions to perform the job duties formerly performed by the plaintiffs. It appears from the

     stipulated record that all the impacted employees were offered employment in part-time

     positions.


¶9          The plaintiffs filed a petition, seeking a declaration by the circuit court that the Board

     violated section 10-23.5 of the Code (105 ILCS 5/10-23.5 (West 2012)) by attempting to “recall”

     the plaintiffs into part-time rather than full-time positions. The parties filed cross-motions for



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       summary judgment. The court granted the defendant’s motion, denied the plaintiffs’ motion, and

       entered judgment for the defendants. The plaintiffs filed this appeal.

¶ 10                                              ANALYSIS

¶ 11          Summary judgment is properly granted when the pleadings, depositions, and affidavits

       show that no genuine issue of material fact exists and the movant is entitled to judgment as a

       matter of law. 735 ILCS 5/2-1005(c) (West 2012); Outboard Marine Corp. v. Liberty Mutual

       Insurance Co., 154 Ill. 2d 90, 102 (1990). When parties file cross-motions for summary

       judgment, they agree that only a question of law is involved and invite the court to decide the

       issues based upon the stipulated record. Pielet v. Pielet, 2012 IL 112064, ¶ 28. Where a case is

       decided on summary judgment, our review is de novo. Schultz v. Illinois Farmers Insurance Co.,

       237 Ill. 2d 391, 399-400 (2010). De novo review is also appropriate where, as here, a case must

       be decided based on the construction of a relevant statute, which presents a question of law.

       Pielet, 2012 IL 112064, ¶ 30.

¶ 12          At issue in the instant matter is section 10-23.5 of the Code, which provides:

                      “If an educational support personnel employee is removed or

                      dismissed or the hours he or she works are reduced as a result of a

                      decision of the school board (i) to decrease the number of educational

                      support personnel employees employed by the board or (ii) to

                      discontinue some particular type of educational support service,

                      written notice shall be mailed to the employee and also given to the

                      employee either by certified mail, return receipt requested, or personal

                      delivery with receipt, at least 30 days before the employee is removed

                      or dismissed or the hours he or she works are reduced, together with a


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                      statement of honorable dismissal and the reason therefor if applicable.

                      However, if a reduction in hours is due to an unforeseen reduction in

                      the student population, then the written notice must be mailed and

                      given to the employee at least 5 days before the hours are reduced. The

                      employee with the shorter length of continuing service with the

                      district, within the respective category of position, shall be dismissed

                      first unless an alternative method of determining the sequence of

                      dismissal is established in a collective bargaining agreement or

                      contract between the board and any exclusive bargaining agent and

                      except that this provision shall not impair the operation of any

                      affirmative action program in the district, regardless of whether it

                      exists by operation of law or is conducted on a voluntary basis by the

                      board. If the board has any vacancies for the following school term or

                      within one calendar year from the beginning of the following school

                      term, the positions thereby becoming available within a specific

                      category of position shall be tendered to the employees so removed or

                      dismissed from that category or any other category of position, so far

                      as they are qualified to hold such positions.” 105 ILCS 5/10-23.5

                      (West 2012).

¶ 13          The plaintiffs argue that the Board violated section 10-23.5 of the Code in two ways: (1)

       by using an impermissible reason for reducing their hours of employment and (2) by not

       recalling them to full-time positions, instead hiring additional part-time employees so as to

       obviate the need for the recalling of full-time employees. Our resolution of these issues requires


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       us to interpret the relevant statute in a manner that will effectuate the intent of the legislature, and

       the best evidence of legislative intent will be in the words of the statute itself. Land v. Board of

       Education of the City of Chicago, 202 Ill. 2d 414, 421 (2002); Cook v. Board of Education of

       Eldorado Community Unit School District No. 4, 354 Ill. App. 3d 256, 260 (2004). We will

       address each of the plaintiffs’ two arguments in turn.

¶ 14           The plaintiffs first maintain that section 10-23.5 of the Code prohibits any reduction of

       their hours unless the purpose of the reduction is “to decrease the number educational support

       personnel employed” by the Board, or “to discontinue some particular type of educational

       support service.” Here, they maintain that the Board’s actions did not decrease the total number

       of educational support personnel employed by the Board, since the total number of employees

       actually increased after the hiring of additional part-time employees, nor did it discontinue any

       particular type of educational support service, since all of the educational support positions

       occupied by the plaintiffs continued to exist after the Board action at issue.

¶ 15           The plaintiffs argue that section 10-23.5 expresses a clear and unambiguous intent of the

       legislature to prohibit a school district from reducing the hours of educational support personnel

       unless the reduction of hours is to accomplish one of the two purposes stated in that section. The

       Board reads the same statutory provision as expressing a clear and unambiguous legislative

       intent to require notice and recall rights pursuant to section 10-23.5 only if the reduction of hours

       is for one of the two purposes stated in that section.

¶ 16           We first address the issue of whether the relevant section of the Code is ambiguous.

       When the plain language of a statute is clear and unambiguous, the legislative intent that is

       discernable from that language must prevail, and no resort to other tools of statutory construction

       are necessary. Paris v. Feder, 179 Ill. 2d 173, 177 (1997). “A statute is ambiguous if it is


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       susceptible to two reasonable and conflicting interpretations.” Land, 202 Ill. 2d at 426. “Only if

       the statutory language is ambiguous may we consider extrinsic aids for construction, such as

       legislative history, to determine legislative intent.” Id. Further, where the language of the statute

       is unambiguous, a court must give it effect without reading into it exceptions, limitations, or

       conditions that are not expressly stated in the statute. Id. at 426-27; Davis v. Toshiba Machine

       Co., America, 186 Ill. 2d 181, 184-85 (1999). Moreover, it is a fundamental principle of statutory

       construction that we view all the provisions of a statute as a whole and that no single provision

       be viewed in isolation so as to create the appearance of an ambiguity. Michigan Avenue National

       Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000).

¶ 17             The plaintiffs maintain that section 10-23.5 of the Code unambiguously limits a school

       board’s ability to terminate employment or reduce the hours of ESPs to only the two situations

       expressly mentioned in the statute. We find no clear legislative intent articulated in that section

       of the Code. While we recognize the maxim of statutory construction, expression unius est

       exclusion alterius (the expression of one thing excludes any other thing), we also note its

       limitation. Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 153-55 (1997). The maxim is

       applied only when it appears to point to the intent of the legislature, not to defeat an otherwise

       strong indication of legislative intent. Id. In other words, the maxim may be employed to resolve

       an ambiguity, not to create one. See Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 555

       (1992).

¶ 18             In the present case, we hold that language of section 10-23.5 cannot be read in isolation

       as suggested by the plaintiffs. We note that ESPs are considered to be “at-will” employees who

       have far less expectation of continued employment than teachers subject to the Code’s tenure

       protection provisions. Spear v. Board of Education of North Shore School District No. 112, 291


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       Ill. App. 3d 117, 120 (1997); Buckellew v. Board of Education of Georgetown-Ridge Farm

       Community Unit School District No. 4, 215 Ill. App. 3d 506, 510 (1991); Kepper v. School

       Directors of District No. 120, 26 Ill. App. 3d 372, 375 (1977). The plaintiffs’ reading of section

       10-23.5 would put ESPs on an equal footing with certified teachers when it comes to

       expectations of continued employment and protections from employment termination or

       reduction of hours. This concept has been specifically rejected by our courts. Spear, 291 Ill. App.

       3d at 120 (“Teachers subject to tenure, a status known as ‘contractual continued service,’ are in a

       readily distinguishable class of school employees and are provided special statutory procedural

       safeguards *** which we believe do not apply to [ESPs].”); Buckellew, 215 Ill. App. 3d at 512

       (contractual continued service protections do not apply to those employees covered by section

       10-23.5 of the Code). Relevant case law clearly establishes a legislative intent under the Code to

       distinguish between certified teachers and ESPs and to provide greater protections from lay-offs

       or reduction of hours to teachers. The plaintiffs’ position is contrary to that precedent.

¶ 19          The plaintiffs next argue that the Board violated section 10-23.5 of the Code by not

       recalling them to full-time positions, and instead hiring additional part-time employees so as to

       obviate the need for the recalling of full-time employees. We disagree. The statutory recall rights

       provided to ESPs under section 10-23.5 are limited to employees “removed or dismissed” from a

       specific category of position and requires a school district to recall effected employees to “that

       category or any other category of position, so far as they are qualified to hold such positions.”

       105 ILCS 5/10-23.5 (West 2012). The plaintiffs’ argument, therefore, fails in two regards. First,

       recall rights under section 10-23.5 of the Code are triggered when employees are “removed or

       dismissed,” not when their hours of employment have been reduced. See Buckellew, 215 Ill.

       App. 3d at 509. Second, the plaintiffs point to no authority, either in the School Code or


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       elsewhere, to support their proposition that a school board cannot reduce the hours of

       employment of employees other than certified teachers. See Piquard v. Board of Education of

       Pekin Community High School District No. 303, 242 Ill. App. 3d 477, 484 (1993). Absent such

       express statutory authority, we are not convinced that the Board in the instant matter is precluded

       from recalling the plaintiffs to any category of positions for which they are qualified, without the

       ability to set the hours of employment. Simply put, the School Code provides tenure rights to

       full-time employment to a single category of employee (certified teachers), and the plaintiffs

       were not members of that category. They have failed to show that they are entitled to judgment

       as a matter of law. Conversely, the Board did establish that it was entitled to judgment as a

       matter of law, since the statutory framework of providing greater protections to tenured teachers

       than ESPs supported the Board’s actions.

¶ 20                                            CONCLUSION

¶ 21          For the foregoing reasons, the judgment of the circuit court of La Salle County, granting

       the Board’s motion for summary judgment and denying the plaintiffs’ motion for summary

       judgment, is affirmed.

¶ 22          Affirmed.




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