Recent Court Decisions

The U.S. Supreme Court (Court) denied review of a petition for certiorari filed by a non-union teacher seeking a refund of fees her union had collected before the Court had declared such fees unconstitutional in its 2018 landmark Janus decision, effectively barring such claims.
 
In 2018, the U.S. Supreme Court (Court) decided Mark Janus v. American Federation of State, County and Municipal Employees, Council 31, et al. (Janus), holding that public sector agency fee arrangements (a.k.a. “fair share fees”) unconstitutionally violate the First Amendment free speech rights of nonconsenting public-sector employees by compelling them to subsidize private speech on matters of substantial public concern. As a result, unions were no longer allowed to collect such fees from employees unless they opted in to pay union fees. Following the Janus decision, numerous lawsuits were filed by non-union public sector employees seeking refunds of fees that had been paid before Janus. One case involved Stacey Mooney (Plaintiff), a public-school teacher in Eureka Comm. Sch. Dist. #140 (District) who is not a member of the Illinois Education Association (IEA). From Plaintiff’s start of employment in the District until the Janus decision, the District had deducted fair share fees from Plaintiff’s paycheck and sent them to the IEA.
 
Plaintiff sued to recover these fees on behalf of herself and a putative class of similarly situated persons in federal district court, seeking restitution under Section 1983 of the U.S. Code (42 U.S.C. §1983)_. The district court for the Central District of Illinois dismissed her claim with prejudice on April 23, 2019. Plaintiff then appealed to the Seventh Circuit appellate court, which affirmed the district court’s judgment on November 5, 2019. In so doing, the Seventh Circuit noted that the district court’s decision “joined the consensus across the country concluding that unions that collected fair-share fees prior to Janus…are entitled to assert a good-faith defense to section 1983 liability.” Plaintiff then sought review by the Court, but her petition was denied. By declining to review Plaintiff’s claim, as well as other similar claims from across the nation, the Court has effectively barred claims for refunds of fair share fees collected before Janus.
 

The Illinois Appellate Court for the 2nd District (Court) considered an appeal from the Circuit Court of Lake County (Circuit Court) and determined that a school district properly dismissed a tenured teacher for cause in 2019 because she had failed to use professional judgment and follow the Board’s policies and procedures as required by a 2016 Notice of Remedial Warning.
 
In 2016 Racheal Kalisz (Plaintiff) was a tenured teacher at Kildeer Countryside Comm. Consol. Sch. Dist. 96 (District) when she was placed on suspension with pay while the Ill. Dept. of Children and Family Services (DCFS) investigated her for an allegation of abuse involving her own children. While the DCFS investigation was pending, Plaintiff met with District administrators four times regarding the matter. At the first meeting Plaintiff refused to answer the District’s questions. At the second meeting Plaintiff refused to answer most of the District’s questions, but she denied than a physical confrontation had occurred. On April 6, 2016, Plaintiff received a letter from DCFS stating that the allegation of abuse against her was unfounded, Plaintiff’s union representative forwarded the letter to the Board, and Plaintiff met with the District for a third time. When questioned, Plaintiff stated she couldn’t remember if there was physical contact during the incident that led to the DCFS investigation but stated there was “possibly shoving.” Subsequently the Board received a copy of DCFS’s full report, and the District discovered the information in the report was inconsistent with what Plaintiff had stated in her meetings. On May 3, 2016, Plaintiff met with the District for a fourth time and claimed the DCFS report was inaccurate. The District believed Plaintiff was lying because the DCFS report contained consistent stories from multiple individuals, and the consequences of lying to DCFS would have been significant for Plaintiff. As a result, the District recommended that the Board issue Plaintiff a Notice of Remedial Warning. On May 17, 2016, the Board approved a Notice of Remedial Warning informing Plaintiff that her conduct was unprofessional and unsatisfactory because she failed to cooperate with the Board’s investigation of the DCFS matter, obstructed the Board’s investigation process, and provided untruthful statements. The Notice of Remedial Warning also warned Plaintiff that the following conduct, if repeated, could result in dismissal charges: 1) engaging in conduct unbecoming a Board employee, 2) failing to cooperate with Board administration during its investigation, 3) giving false statements to Board administration during its investigation, 4) showing poor professional judgment and unprofessional conduct, 5) violating Board policy 5:120, Ethics and Conduct, 6) engaging in misconduct as defined by Board policy, including behavior that disrupts the educational process and immoral conduct, 7) violating Board policy by failing to maintain standards of service required by a teacher, and 8) engaging in insubordinate conduct by disregarding Board policies and directives. To remedy her unprofessional and unsatisfactory conduct, Plaintiff was directed, among other things, to abide by all expectations set forth in Board policies, be truthful when communicating with administration and in her teaching duties, exercise appropriate and professional judgment as a teacher, conduct herself in a professional manner, and follow all board policies, procedures, and practices.
 
During the 2017-2018 school year, Plaintiff taught in a school using a model where each classroom had a content teacher (Plaintiff) and a specialist who assisted in designing lesson plans for specific populations of students. The Board learned that from November 2017 through March 2018, Plaintiff often left her classroom during co-teaching and while students were present, and for various reasons (including to make a phone call, rearrange an airline flight, and smoke a cigarette). On one occasion, Plaintiff told her co-teacher she was having stomach problems and left for the day but Plaintiff did not notify the administration, seek approval, request personal or sick time to cover her absence, or request a substitute teacher. The Board began an investigation and Plaintiff admitted that she left the classroom often and for various reasons. The District recommended to the Board that the Plaintiff be dismissed, and the Board approved this recommendation at a June 2018 Board meeting. Plaintiff was sent a Notice of Charges, including a Bill of Particulars, stating the reasons for her dismissal. Such reasons included exercising unprofessional judgment and violating Board policies related to ethics, conduct, responsibilities, and duties – behaviors that Plaintiff failed to remediate as required by her 2016 Notice of Remedial Warning.
 
Plaintiff requested a tenured teacher dismissal hearing, during which she testified that the 2016 Notice of Remedial Warning said nothing about leaving the classroom, taking too frequent restroom breaks, or failing to notify the administration about an emergency absence. Plaintiff claimed that if she had been allowed to correct these deficiencies then she could have remedied the behavior. On May 10, 2019, the hearing officer issued a written opinion finding that the Board had cause to dismiss Plaintiff and recommended that the dismissal be upheld. The hearing officer noted that Plaintiff demonstrated a lack of professional judgment, which she was warned about in 2016, therefore Plaintiff’s dismissal complied with the School Code because Plaintiff failed to remediate her behavior. The Board adopted the hearing officer’s findings and recommendations, and passed a resolution affirming Plaintiff’s dismissal. Plaintiff sought administrative review of the Board’s decision, and on January 7, 2020 following a hearing, the Circuit Court found the Board’s decision to dismiss Plaintiff was clearly erroneous. The Board then appealed to the Court.
 
On appeal, the Board argued that the Circuit Court erred because the 2016 Notice of Remedial Warning required Plaintiff to use professional judgment and follow the Board’s policies and procedures. Plaintiff counter-argued that the 2016 Notice of Remedial Warning could not be the basis for her dismissal because it was based on dishonesty and failing to cooperate, whereas the 2018 charges were not.
 
The School Code requires that before a teacher can be dismissed for conduct considered remediable, “a board must give the teacher reasonable warning in writing, stating specifically the causes that, if not removed, may result in charges.” 105 ILCS 5/24-12(d)(1). If warning is not given, then the board lacks jurisdiction to dismiss the teacher. In reviewing a teacher dismissal, courts evaluate whether a board’s factual findings are against the manifest weight of the evidence, and whether those findings provide a sufficient basis for dismissal. Generally a Board’s decision is reviewed, but because the Board adopted the hearing officer’s decision, the Court reviewed the hearing officer’s decision to determine if it was erroneous. In this case the factual findings were not disputed by either party, so the only issue before the Court was whether the factual findings supported the Board’s conclusion that cause existed to dismiss Plaintiff.
 
After reviewing the hearing record, the Court determined that the Board’s conclusion that Plaintiff’s 2017-2018 conduct violated the 2016 Notice of Remedial Warning was a proper basis for dismissal. The Court reasoned that in 2016 Plaintiff was specifically warned to exercise appropriate and professional judgment, to conduct herself professionally, and to follow all Board policies and practices, and stated “[t]here is no question that the plaintiff’s conduct in 2017-2018 violated these warnings.” The Court reversed the Circuit Court’s decision and upheld the Board’s dismissal of Plaintiff.

The Illinois Appellate Court for the 2nd District (Court) considered an appeal from the Circuit Court of Lake County (Circuit Court) and affirmed the dismissal of a tenured teacher for sexual harassment of a student as irremediable conduct, denying the teacher’s complaint for administrative review seeking reinstatement.
 
Lance Pacernick (Plaintiff) began working for Waukegan CUSD No. 60 (District) during the 2002-03 school year as a teacher and served as head coach of the Waukegan High School girls’ track team from January 2014 through March 2017. In March 2017, a member of the girls’ track team reported that Plaintiff had touched some of the girls on the buttocks. The District promptly began a thorough investigation into the allegations, headed by the Title IX Coordinator. On the first day of the investigation, the District held a due process meeting with Plaintiff and his union representative and placed Plaintiff on paid administrative leave pending the investigation. A few weeks later a second due process meeting was held with Plaintiff and his union representative, during which Plaintiff was informed of, and denied, the allegations. Plaintiff then submitted a written statement denying the allegations, and he was provided with redacted statements from 48 current and former students interviewed during the investigation. Four students reported unwelcomed touching on their buttocks, seven reported receiving inappropriate verbal comments, 17 witnessed unwelcomed touching and/or comments to their teammates, and eight reported feeling discomfort or suspecting “other” intentions from Plaintiff. Five of these students were also in Plaintiff’s English class. On April 19, 2017, Plaintiff’s dismissal was recommended to the Superintendent, who approved the presentation to the Board of Education (Board). On April 21, 2017, a third due process meeting was held with Plaintiff where he was informed his dismissal would be recommended to the Board.
 
On May 9, 2017, the Board received a two-page Executive Summary of the allegations against Plaintiff and the investigation’s findings, as well as a three pages of Supporting Documents that included a factual timeline of the investigation, summary of a 2012 investigation, and summary of relevant Board policies. The Investigator recommended that the Board terminate Plaintiff for sexual harassment of female students and the Board unanimously approved the recommendation. On May 16, 2017, the Board gave Plaintiff a nine-page Notice of Charges with a Bill of Particulars, informing Plaintiff that the Board unanimously approved his dismissal. Notably, the Bill of Particulars related a May 2012 incident that had been unfounded but that had clearly put Plaintiff on notice that “care in [his] dealings with female students was necessary and that sexual misconduct of any nature with students is intolerable and a potential basis for discipline.” Despite this 2012 warning, Plaintiff did not change his behavior or exercise sufficient care. The Bill of Particulars also noted that Plaintiff’s continued denial of the allegations in the face of “voluminous accounts of inappropriate incidents” showed a lack of candor that “buttressed negative conclusions about [his] character and [his] conduct.” As a result, the Board concluded that Plaintiff’s conduct was irremediable, having a negative impact on the teaching profession and psychologically harmful to students.
 
Plaintiff chose to have a tenured teacher dismissal hearing, which began in December 2017 before an Illinois State Board of Education hearing officer and involved the testimony of 16 witnesses for the Board. Plaintiff did not put on a case. In an October 2018 decision, the hearing officer found that the Board had proven that Plaintiff engaged in the charged offenses and that these offenses were sufficient for dismissal under the School Code (105 ILCS 5/24-12(d)(1)). Regarding whether Plaintiff’s conduct was remediable, the hearing officer noted the test was whether: 1) damage was done to the students, faculty, or school, and 2) the conduct could have been corrected had the teacher been warned. The hearing officer found Plaintiff’s conduct had harmed both the students and school, and that Plaintiff’s conduct would likely not have been corrected if he had received a warning because he had already received a warning in 2012 about getting too close to students. Accordingly, the hearing officer recommended that Plaintiff be dismissed. On December 11, 2018, the Board adopted the hearing officer’s findings and dismissal recommendation, and it notified Plaintiff of this on December 12, 2018. Plaintiff sought administrative review of the Board’s decision, and on October 8, 2019, the Circuit Court affirmed the Board’s findings and its dismissal of Plaintiff. Plaintiff then appealed to the Circuit Court.
 
On appeal, Plaintiff argued that the Board erred in dismissing him because: 1) they erroneously found he had sexually harassed track team members and that his conduct was irremediable, and 2) the Board had not strictly complied with required procedures for dismissing a tenured teacher for cause because it never approved a motion with specific charges and did not timely mail to Plaintiff a Notice of Charges and Bill of Particulars.
 
The Court first reviewed whether the Board’s factual findings were against the manifest weight of the evidence, and whether those findings provided a sufficient basis for dismissal. Generally a Board’s decision is reviewed, but because the Board adopted the hearing officer’s decision, the Court reviewed the hearing officer’s decision to determine if it was erroneous. The School Code only allows a tenured teacher to be dismissed for cause. Though the School Code does not define “cause,” case law has defined it as “that which law and public policy deem as some substantial shortcoming which renders a teacher’s continued employment detrimental to discipline and effectiveness.” Thus, a school board has the power to dismiss a teacher for various reasons, including incompetency, cruelty, negligence, immorality or other sufficient cause. A school board must prove there is cause for dismissal by a preponderance of the evidence. After reviewing the hearing record, the Court determined that the Board’s conclusion that Plaintiff sexually harassed female students and that this was sufficient cause for dismissal was not erroneous. Moreover, the Court found that the Board correctly determined Plaintiff’s conduct violated its policies – most significantly its policy prohibiting sexual harassment.
 
Next, the Court considered whether Plaintiff’s conduct was irremediable. The Court used the same test for determining whether cause for dismissal is irremediable as the hearing officer had used: 1) whether damage has been done to students, faculty, or school, and 2) whether the conduct resulting in that damage could have been corrected had the teacher’s superiors warned the teacher. To meet the first prong, the Board had relied only on the students’ testimony about the damage that was done – and the Court found no error with the Board’s analysis. To meet the second prong, the Board had determined Plaintiff was unlikely to fix his behavior because had had already been warned in 2012 – and the Court found no error with this analysis either. The Court succinctly stated “the harm Plaintiff caused here by his demeaning treatment of the students who were entrusted to his care cannot be undone or corrected.”
 
Third, the Court considered Plaintiff’s argument that the Board hadn’t strictly complied with required procedures. Section 24-12(d)(1) of the School Code requires that a board seeking dismissal of a tenured teacher “first approve a motion containing specific charges” and then provide the teacher with “written notice of such charges, including a bill of particulars” by mail and also by certified mail or personal delivery within five days of adoption of the motion. Plaintiff claimed the Board’s Executive Summary wasn’t a “motion” with “specific charges” because it described his conduct as sexual harassment but didn’t provide context, so it was an incomplete and misleading presentation to the Board. The Court disagreed, finding that both the two-page Executive Summary and three pages of Supporting Documents, despite their titles, reasonably apprised Plaintiff of the allegations against him as required by the School Code. As for the five-day timeline, the Court found that strict compliance was not necessary here, where there was only a one-day delay and the delay didn’t cause prejudice to Plaintiff because he was able to have a hearing and was represented by counsel. The Court affirmed the Circuit Court’s decision upholding the Board’s dismissal of Plaintiff.
 

The Illinois Appellate Court for the 4th District (Court) considered an interlocutory appeal from the Circuit Court of Sangamon County (Circuit Court) and determined that the 1-year statute of limitations period in the Local Government and Governmental Employee Tort Immunity Act (Tort Immunity Act) does not control over the limitations period set out in the Childhood Sexual Abuse Act, which expressly states that its terms apply “notwithstanding any other provision of law.”
 
In April 2019, Plaintiff Michelle Forbes (Plaintiff) filed a complaint against Defendants New Berlin Community Unit School District No. 16 (the District) and Carroll Owen Smith (Smith) seeking damages based on alleged childhood sexual abuse directly and proximately caused by Defendants. Plaintiff alleged counts of willful and wrongful conduct, negligence, negligent failure to follow established policies and procedures, breach of fiduciary duty, and intentional infliction of emotional distress against the District. Plaintiff also alleged counts of assault and battery and intentional infliction of emotional distress against Smith. These counts are based on allegations that between 1985 and 1989, when Plaintiff was a high school student, Smith recruited her to help him with paperwork while the two were alone in his office. While in his office, Smith allegedly then engaged in acts of sexual grooming and sexual abuse against Plaintiff. Plaintiff claimed that she suffered personal, pecuniary, and emotional injuries as a result, but that she did not discover the causal connection of her injuries until 2015, when she was 44 years old.
 
The District responded by filing a motion to dismiss, arguing that Plaintiff’s claims were time-barred by the Tort Immunity Act’s 1-year statute of limitations. Plaintiff argued that her case was not time-barred because the Childhood Sexual Abuse Act applied, and she filed her case within 20 years after her action accrued. The Circuit Court denied the District’s motion to dismiss, and the District then asked the Circuit Court to either reconsider its ruling or, in the alternative, certify the following question for appeal:

“Does the 1-year statute of limitations period in the Local Government and Governmental Employee Tort Immunity Act, 745 ILCS 10/8-101, control over the limitations period set out in the current version of the Childhood Sexual Abuse Act, 735 ILCS 5/13[-]202.2 (effective January 1, 2014), which by its express terms applies ‘[n]otwithstanding any other provision of law’?”
 
The Circuit Court declined to reconsider its ruling but did certify the question for appeal.
 
On appeal, the Court reviewed the limitations periods in both acts. The Tort Immunity Act, which shields local public entities from liability arising from the operation of government, provides that no civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. In contrast the Childhood Sexual Abuse Act, which governs civil actions for sexual abuse of a person under 18 years of age, provides:
 
(b) Notwithstanding any other provision of law, an action for damages for personal injury based on childhood sexual abuse must be commenced within 20 years of the date the limitation period begins to run…or within 20 years of the date the person abused discovers or through the use of reasonable diligence should discover both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the childhood sexual abuse.
 
Looking to the plain language of these acts, the Court held that the language of the Childhood Sexual Abuse Act clearly applies to claims based upon childhood sexual abuse, despite any other statute of limitations, due to the phrase “notwithstanding any other provision of law.” The Court’s decision is consistent with the decision reached by the Second District Appellate Court in Doe v. Hinsdale Township High School Dist. 86, 388 Ill.App.3d 995 (2nd Dist. 2009), a case that also involved personal injury based on alleged childhood sexual abuse proximately caused by a defendant school district and its employees.
 
 

The Cook County Assessor’s Office (Assessor) violated Section 3(d) of FOIA by failing to respond to a FOIA request.
 
On September 29, 2020, Requestor submitted a FOIA request to the Assessor, seeking information regarding who had filed for a division of an identified property and a copy of the recent application related to the property, which Requestor identified by its Property Index Number. Requestor did not receive a response to his request.
 
On October 21, 2020, Requestor submitted a Request for Review to the PAC, alleging the Assessor failed to respond to his FOIA request. The PAC then wrote to the Assessor regarding this matter, but the Assessor did not respond. After multiple communication attempts by the PAC, on December 15, 2020, the Assessor finally responded to the PAC via a voicemail stating that the Assessor was preparing its response to the FOIA request and anticipated the response would issue within 10 days. As of December 30, 2020, the PAC had not received a written response from the Assessor and Requestor had not received a response to his FOIA request.
 
Section 3(d) of FOIA states that “each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request…” Because the Assessor did not comply with Section 3(d), the PAC ordered the Assessor to take immediate and appropriate action to provide Requestor with all records responsive to his request, subject only to permissible redactions.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.