THIRD DIVISION June 11, 2014

No. 1-13-0588

LILLIAN MEDINA, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) No. 11CH 23406 ) BOARD OF EDUCATION OF THE CITY OF ) CHICAGO, ) Honorable ) Kathleen Kennedy, Defendant-Appellee. ) Judge Presiding.

JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Neville concurred in the judgment and opinion.

OPINION

¶1 Plaintiff-appellant, Lillian Medina, appeals from an order of the circuit court of Cook

County affirming a decision of the Board of Education of the City of Chicago removing her as

an assistant principal. Medina was dismissed as an assistant principal because she lacked the

required certification for that position. Medina claims that she was entitled to a tenured teacher

dismissal hearing under section 34-85 of the Illinois School Code (105 ILCS 5/34-85 (West

2010)), notwithstanding her administrative position, and that the Board acted ultra vires in

dismissing her without a hearing pursuant to that section. Further, Medina claims that her lack of

certification was remediable conduct, which could not serve as cause for her dismissal as a

tenured teacher. We disagree and affirm. No. 1-13-0588

¶2 BACKGROUND

¶3 Medina started working as a teacher for the Board in 1984. In June 2007, Medina was

nominated by the principal of Rachel Carson Elementary School for an assistant principal

position and was hired in July of that year to fill the position.

¶4 Medina holds elementary and secondary teaching certificates, which qualify her to teach

kindergarten through twelfth grade. Her position as an assistant principal requires a Type-75

administrative certificate. When she accepted the position, she signed an "Assistant Principal

Nomination Form," acknowledging that she was required to possess the Type-75 certificate.

This form also contained the following statement above Medina's signature:

"I understand that by accepting this administrative appointment, I relinquish the

right to bump back into a teaching position."

¶5 Medina also signed a form titled "Proof of Illinois State Certification Acknowledge [sic]

Form," which states: "I understand that the Chicago Public Schools principal/assistant principal

assignment is solely contingent on my being issued a Type-75—General Administration

Certificate by the Illinois State Board of Education (ISBE) within three (3) months from the date

of employment."

¶6 Board Rule 4-3(a)(1)(a)(i)(2) lists the means by which a tenured teacher can lose the right

to contractual continued service. In addition to honorable dismissal and dismissal for cause, the

rule provides that loss of tenure is triggered by "the tenured teacher's resignation from his/her

teacher position, which includes the tenured teacher's voluntary transfer from his/her teacher

position to an educational support personnel employee, a certificated administrator, an assistant

principal or an interim or contract principal position." (Emphases added.) Board of Education of

the City of Chicago R. 4-3(a)(1)(a)(i)(2) (rev. Mar. 2011).

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¶7 In order to obtain a Type-75 certificate, a candidate must pass a basic skills test. Medina

took the test in 2007, shortly after she was appointed to the assistant principal position, and again

in 2008, but failed to pass. She did not attempt to take the test in 2009 or 2010. Medina never

notified the Board that she had not passed the test and apparently the Board did not follow up

after Medina was hired to determine whether she had obtained the Type-75 certificate.

¶8 Sometime toward the end of 2010, the Board's labor relations officer determined that

Medina lacked the required certificate and, on December 10, 2010, the director of employee

relations notified Medina in writing that she was staffed for a position for which she was not

qualified. Medina again took the basic skills test on February 12, 2011, but did not pass. On

March 3, 2011, the Board notified Medina that she was removed as assistant principal with pay

pending the outcome of a presuspension hearing.

¶9 Medina's pre-suspension hearing was held on March 17, 2011. The following day she

was charged with violating the Board's employee discipline and due process policy for being

employed as an assistant principal without possessing a Type-75 certificate.

¶ 10 Dismissal of assistant principals and other managerial employees is governed by rules

promulgated by the Board. Board Rule 4-7(b)(4) provides, "Upon recommendation of the Chief

Executive Officer ***, the Board may dismiss assistant principals and educational support

personnel governed by collective bargaining agreements for cause in accordance with the

applicable provisions of the Board's Employee Due Process and Discipline Policy." Board of

Education of the City of Chicago R. 4-7(b)(4) (rev. Mar. 2011). The Board's due process and

discipline policy, in turn, prescribes discharge procedures for assistant principals that include

notice of charges and a hearing before a hearing officer designated by the director of labor

relations at which the assistant principal has the right to present oral and documentary evidence.

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Chicago Board of Education, Employee Discipline and Due Process Policy, § VI (B)(4) (adopted

July 28, 2004).

¶ 11 On April 29, 2011, Medina had an assistant principal dismissal hearing. Medina was

represented by counsel at the hearing at which testimony was taken and documents were

admitted into evidence. Through counsel, Medina maintained that she should be "grandfathered"

into the assistant principal position given that the principal of Carson Elementary was aware that

she lacked a Type-75 certificate when she was hired for the position, that she held valid

certificates as a tenured teacher and that she had been the victim of harassment and

discrimination instigated by her principal. Medina further argued that even if she was terminated

from her administrative position, she retained her status as a tenured teacher, a position from

which she could be terminated only for cause and after a hearing pursuant to section 34-85 of the

School Code. 105 ILCS 5/34-85 (West 2010). Medina specifically disavowed any claim that as

an assistant principal she was entitled to a hearing pursuant to section 34-85. Id.

¶ 12 At the hearing, Medina testified that she told the principal after the first time she took the

basic skills test that she did not pass. Between 2007 and 2010, he inquired regarding the status

of her certification periodically and she told him she was continuing to work on it. The

remainder of Medina's testimony concerned conduct and statements by the principal toward

Medina and others, which she claimed were gender-based or racially or ethnically motivated.

Although the hearing officer allowed Medina to testify to certain discriminatory comments and

conduct by the principal, she ultimately concluded that this evidence was not relevant to whether

Medina possessed the necessary certification for her position.

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¶ 13 Following the hearing, the director of the office of employee relations recommended that

Medina be dismissed for failing to possess the Type-75 certificate. The Board adopted the

recommendation and terminated Medina effective May 25, 2011.

¶ 14 Medina sought administrative review of her dismissal in the circuit court. The circuit

court affirmed Medina's dismissal and she timely filed this appeal.

¶ 15 ANALYSIS

¶ 16 In administrative review cases, we review the decision of the administrative agency, not

the decision of the circuit court. Exelon Corp. v. Department of Revenue,

(2009); Cerone v. State,

. "[T]he applicable standard of review

depends upon whether the question presented is one of fact, one of law, or a mixed question of

fact and law." (Internal quotation marks omitted.) Cinkus v. Village of Stickney Municipal

Officers Electoral Board,

(2008).

¶ 17 An agency's conclusions of law are reviewed de novo.

. If the appeal involves

a statute the agency is charged with administering, courts accord some deference to the agency's

interpretation. Swank v. Department of Revenue,

(2003); AFM

Messenger Service, Inc. v. Illinois Department of Employment Security,

(2001).

¶ 18 If the issue presented involves a mixed question of law and fact, we review the agency's

decision to determine whether it is "clearly erroneous." Cerone,

.

Mixed questions of law and fact involve "questions in which historical facts are admitted or

established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory

standard, or to put it another way, whether the rule of law as applied to the established facts is or

is not violated." Id.; see also AFM Messenger,

(mixed question of law and fact

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is one involving an examination of the legal effect of a given set of facts). An administrative

decision is clearly erroneous only when the reviewing court is " 'left with the definite and firm

conviction that a mistake has been committed.' [Citation.]"

. We review the

determination that Medina did not retain her status as a tenured teacher upon becoming an

assistant principal under the clearly erroneous standard and the Board's conclusions of law

de novo.

¶ 19 It is undisputed that the assistant principal position required a Type-75 certificate and that

Medina did not possess this credential. Medina also does not dispute that the Board was entitled

to remove her from her assistant principal position for this reason. Medina's failure to obtain the

Type-75 certificate constituted "cause" for her dismissal as assistant principal and she received

the hearing to which she was entitled under the Board's rules.

¶ 20 Medina claims that despite the form she signed when she accepted the assistant principal

position acknowledging that she was relinquishing her ability to "bump back" to a tenured

teacher position and contrary to the provisions of the Board's rules regarding loss of tenure, she

was still a tenured teacher and could not be terminated except for cause related to her

performance as a teacher. She argues that the Board's rules providing for a tenured teacher's

relinquishment of that status upon acceptance of an assistant principal position run contrary to

the provisions of the School Code and her property interest in her tenured position. According to

Medina, once she was terminated from her assistant principal position, the Board was required to

transfer her to a teaching position. Thus, the primary issue is whether Medina retained her status

as a "teacher" to which she reverts upon being dismissed as an assistant principal. We conclude

that she does not.

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¶ 21 In McCutcheon v. Board of Education of the City of Chicago,

(1981),

this court considered a similar claim by a principal who argued that after she was terminated as a

principal, she should have been retained as a tenured teacher. After finding the record supported

the Board's conclusion that plaintiff had engaged in irremediable conduct warranting her

termination as a principal, the court addressed plaintiff's further contention that she should have

been retained as a teacher since the charges against her only related to her service as a principal.

Rejecting this contention, the court stated:

"At the time these proceedings commenced plaintiff was employed as a principal

and so the charges were necessarily restricted to her performance in that position.

Plaintiff has cited no authority for her implicit contention that although fired as a

principal she had a continuing right to employment as a teacher. Section 34-85

[of the School Code] by its terms refers to removal of a principal or teacher and

we find no basis for determining that the statute contemplates a two-step removal

process for principals, first as principals, and then as teachers. [Citation.]"

(Emphasis in original.)

.

¶ 22 Medina counters that the principal in McCutcheon did receive a dismissal hearing

pursuant to section 34-85. 105 ILCS 5/34-85 (West 2010). But Medina's attempt to distinguish

McCutcheon on this basis sidesteps the issue and overlooks the fact that the principal in

McCutcheon was terminated only for her conduct as a principal. It is not the section of the

School Code pursuant to which the dismissed employee's hearing was held that is determinative,

a conclusion highlighted by Medina's argument that even had the Board afforded her a tenured

teacher dismissal hearing, it could not have dismissed her because a Type-75 certificate was not

required for a tenured teacher. Rather, McCutcheon points to the conclusion that when a tenured

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teacher accepts a promotion to a nontenured administrative position such as an assistant

principal, she does not retain her "permanent" tenure as a teacher despite being terminated from

the administrative position for cause.

¶ 23 Medina contends that the Board's rule dictating that tenure is lost upon a teacher's

voluntary acceptance of an assistant principal position runs counter to section 34-84 of the

School Code providing that tenure, once obtained, is "permanent." 105 ILCS 5/34-84 (West

2010). But Medina has cited no authority for this result. If Medina's interpretation of

"permanent" tenure was correct, the tenured teachers in Chicago Teachers Union, Local No. 1 v.

Board of Education of the City of Chicago,

, who were subject to layoffs for

financial reasons, would have prevailed in their contention that they were entitled to be rehired

once teacher vacancies again became available. Our supreme court rejected the union's

contention that "permanent" tenure conferred a substantive right to continued employment so

that tenured teachers were entitled to a preference in filling vacant positions over equally or less

qualified new teachers. Id. ¶ 19. Similarly, after she voluntarily accepted a promotion to a

nontenured administrative position, Medina did not retain a substantive right to be transferred to

a tenured teacher position upon her dismissal for cause as an assistant principal.

¶ 24 Medina's argument on the meaning of "permanent" tenure is based on extrapolations of

case law holding that a tenured teacher can be involuntarily transferred from a nontenured

assistant principal position to a teaching position (Bart v. Board of Education of the City of

Chicago,

(1993)), or from a guidance counselor position to a teaching

position (Newby v. Board of Education, Lake Zurich Community Unit School District No. 95,

(1977)), and that a school board cannot confer tenure where it is not

authorized under the School Code (Evans v. Benjamin School District No. 25, 1134 Ill. App. 3d

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875, 882 (1985)). Medina reasons that because the Board could have transferred her to a

teaching position prior to her dismissal, it must do so now, and that because the Board's decision

to confer tenure on an unqualified teacher is ultra vires, its decision to terminate her as a

"tenured teacher" other than for cause related to her performance as a teacher is likewise ultra

vires.

¶ 25 But the school employees in Bart and Newby who were involuntarily transferred from

nontenured administrative positions to teaching positions were not the subject of proceedings to

terminate them for cause from their administrative positions. And cases that hold that a school

board cannot confer tenure where not otherwise authorized do not automatically lead to the

conclusion that it is beyond the Board's authority to efficiently manage its workforce by

requiring teachers who voluntarily seek promotions to nontenured administrative positions to

relinquish the ability to return to the tenured teaching staff. Finally, to the extent that dicta in

other cases cited by Medina in her reply brief suggests that administrators retain their status as

tenured teachers (see Van Dyke v. Board of Education of School District No. 57,

(1969); Koerner v. Joppa Community High School, District No. 21,

(1986)), we note that none of these cases involved the Board rule at issue here or a teacher's

express relinquishment of her ability to return to a teaching position.

¶ 26 It defies logic to suggest that when the Board has cause to terminate an administrator, it is

nonetheless obligated to continue to employ that person as a tenured teacher. Taken to its logical

extreme, Medina's argument would mean that no matter the cause for an assistant principal's

dismissal, that employee would always, and without exception, revert to a tenured teacher

position. This is so because the grounds for dismissal of an assistant principal (or any other

managerial employee) will always relate to conduct in that administrative position and not as a

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tenured teacher. Thus, when an employee is serving in the capacity of assistant principal and is

not simultaneously teaching, the Board would never, under Medina's reading of the School Code,

have "cause" to dismiss that employee as a tenured teacher.

¶ 27 Such a construction of the Board's power under the School Code is inconsistent with the

strict construction of teacher tenure mandated in Bart. "[T]eacher tenure provisions of the

School Code are in derogation of common law and must be strictly construed in favor of the

school district." Bart,

. See also Evans, 134 Ill. App. 3d at 879 (teacher

tenure provisions must be strictly construed "so as not to unduly interfere with local board

responsibility to operate educational systems efficiently [citations]").

¶ 28 Moreover, the procedures applicable to dismissal of assistant principals and tenured

teachers are different in important respects. Prior to a dismissal for cause, assistant principals are

entitled, pursuant to Board rule, to notice and a hearing before a hearing officer designated by the

Board.

¶ 29 In contrast, tenured teachers are provided a broad array of statutory protections prior to

dismissal. Dismissal of tenured teachers is governed by section 34-85 of the School Code, which

provides: "No teacher employed by the board of education shall *** be removed except for

cause." 105 ILCS 5/34-85 (West 2010). Charges against a tenured teacher must be approved by

the general superintendent. Id. The teacher may demand a hearing before an impartial hearing

officer selected from a list maintained by the Illinois State Board of Education and the hearing

must be scheduled no less than 15 nor more than 30 days after approval of the charges. Id. If the

conduct that is the subject of the charges is deemed remediable, the teacher must be given a

written warning, prior to the initiation of charges, that the conduct, if not corrected, can lead to

charges. Id. Section 34-85 also specifies time limits for the hearing officer's decision and

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consequences for the failure to adhere to those time limits. Id. Having sought and accepted a

nontenured administrative position, Medina received the process she was due prior to her

termination and her arguments on appeal improperly conflate her rights as an assistant principal

with those attendant to her former position as a tenured teacher.

¶ 30 CONCLUSION

¶ 31 Fundamentally, Medina's loss of tenure resulted from her voluntary decision to seek and

accept a promotion to a nontenured assistant principal position. She was aware both that her

decision to accept the position resulted in the relinquishment of her right to return to a tenured

teacher position and that her right to remain in the assistant principal position was contingent on

her obtaining a Type-75 certificate, which she failed to do. As we are not left with the definite

and firm conviction that a mistake has been committed nor do we find any error of law, we

affirm the decision of the Board dismissing Medina as an assistant principal.

¶ 32 Affirmed.

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