HB2801 102ND GENERAL ASSEMBLY

LRB102 14523 CMG 19876 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB2801

Introduced 2/19/2021, by Rep. Sonya M. Harper

SYNOPSIS AS INTRODUCED:

105 ILCS 5/34-85

from Ch. 122, par. 34-85

Amends the Chicago School District Article of the School Code. Makes a technical change in a provision concerning the removal of a teacher or a principal.

A BILL FOR

AN ACT concerning education.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The School Code is amended by changing Section 34-85 as follows:

(105 ILCS 5/34-85) (from Ch. 122, par. 34-85)

Sec. 34-85. Removal for cause; notice and hearing; suspension.

(a) No teacher employed by the the board of education shall (after serving the probationary period specified in Section 34-84) be removed except for cause. Teachers (who have completed the probationary period specified in Section 34-84 of this Code) shall be removed for cause in accordance with the procedures set forth in this Section or, at the board's option, the procedures set forth in Section 24-16.5 of this Code or such other procedures established in an agreement entered into between the board and the exclusive representative of the district's teachers under Section 34-85c of this Code for teachers (who have completed the probationary period specified in Section 34-84 of this Code) assigned to schools identified in that agreement. No principal employed by the board of education shall be removed during the term of his or her performance contract except for cause, which may include but is not limited to the principal's repeated failure to implement the school improvement plan or to comply with the provisions of the Uniform Performance Contract, including additional criteria established by the Council for inclusion in the performance contract pursuant to Section 34-2.3.

Before service of notice of charges on account of causes that may be deemed to be remediable, the teacher or principal must be given reasonable warning in writing, stating specifically the causes that, if not removed, may result in charges; however, no such written warning is required if the causes have been the subject of a remediation plan pursuant to Article 24A of this Code or if the board and the exclusive representative of the district's teachers have entered into an agreement pursuant to Section 34-85c of this Code, pursuant to an alternative system of remediation. No written warning shall be required for conduct on the part of a teacher or principal that is cruel, immoral, negligent, or criminal or that in any way causes psychological or physical harm or injury to a student, as that conduct is deemed to be irremediable. No written warning shall be required for a material breach of the uniform principal performance contract, as that conduct is deemed to be irremediable; provided that not less than 30 days before the vote of the local school council to seek the dismissal of a principal for a material breach of a uniform principal performance contract, the local school council shall specify the nature of the alleged breach in writing and provide a copy of it to the principal.

(1) To initiate dismissal proceedings against a teacher or principal, the general superintendent must first approve written charges and specifications against the teacher or principal. A local school council may direct the general superintendent to approve written charges against its principal on behalf of the Council upon the vote of 7 members of the Council. The general superintendent must approve those charges within 45 calendar days or provide a written reason for not approving those charges. A written notice of those charges, including specifications, shall be served upon the teacher or principal within 10 business days of the approval of the charges. Any written notice sent on or after July 1, 2012 shall also inform the teacher or principal of the right to request a hearing before a mutually selected hearing officer, with the cost of the hearing officer split equally between the teacher or principal and the board, or a hearing before a qualified hearing officer chosen by the general superintendent, with the cost of the hearing officer paid by the board. If the teacher or principal cannot be found upon diligent inquiry, such charges may be served upon him by mailing a copy thereof in a sealed envelope by prepaid certified mail, return receipt requested, to the teacher's or principal's last known address. A return receipt showing delivery to such address within 20 calendar days after the date of the approval of the charges shall constitute proof of service.

(2) No hearing upon the charges is required unless the teacher or principal within 17 calendar days after receiving notice requests in writing of the general superintendent that a hearing be scheduled. Pending the hearing of the charges, the general superintendent or his or her designee may suspend the teacher or principal charged without pay in accordance with rules prescribed by the board, provided that if the teacher or principal charged is not dismissed based on the charges, he or she must be made whole for lost earnings, less setoffs for mitigation.

(3) The board shall maintain a list of at least 9 qualified hearing officers who will conduct hearings on charges and specifications. The list must be developed in good faith consultation with the exclusive representative of the board's teachers and professional associations that represent the board's principals. The list may be revised on July 1st of each year or earlier as needed. To be a qualified hearing officer, the person must (i) be accredited by a national arbitration organization and have had a minimum of 5 years of experience as an arbitrator in cases involving labor and employment relations matters between employers and employees or their exclusive bargaining representatives and (ii) beginning September 1, 2012, have participated in training provided or approved by the State Board of Education for teacher dismissal hearing officers so that he or she is familiar with issues generally involved in evaluative and non-evaluative dismissals.

Within 5 business days after receiving the notice of request for a hearing, the general superintendent and the teacher or principal or their legal representatives shall alternately strike one name from the list until only one name remains. Unless waived by the teacher, the teacher or principal shall have the right to proceed first with the striking. If the teacher or principal fails to participate in the striking process, the general superintendent shall either select the hearing officer from the list developed pursuant to this paragraph (3) or select another qualified hearing officer from the master list maintained by the State Board of Education pursuant to subsection (c) of Section 24-12 of this Code.

(4) If the notice of dismissal was sent to the teacher or principal before July 1, 2012, the fees and costs for the hearing officer shall be paid by the State Board of Education. If the notice of dismissal was sent to the teacher or principal on or after July 1, 2012, the hearing officer's fees and costs must be paid as follows in this paragraph (4). The fees and permissible costs for the hearing officer shall be determined by the State Board of Education. If the hearing officer is mutually selected by the parties through alternate striking in accordance with paragraph (3) of this subsection (a), then the board and the teacher or their legal representative shall each pay 50% of the fees and costs and any supplemental allowance to which they agree. If the hearing officer is selected by the general superintendent without the participation of the teacher or principal, then the board shall pay 100% of the hearing officer fees and costs. The hearing officer shall submit for payment a billing statement to the parties that itemizes the charges and expenses and divides them in accordance with this Section.

(5) The teacher or the principal charged is required to answer the charges and specifications and aver affirmative matters in his or her defense, and the time for doing so must be set by the hearing officer. The State Board of Education shall adopt rules so that each party has a fair opportunity to present its case and to ensure that the dismissal proceeding is concluded in an expeditious manner. The rules shall address, without limitation, the teacher or principal's answer and affirmative defenses to the charges and specifications; a requirement that each party make mandatory disclosures without request to the other party and then update the disclosure no later than 10 calendar days prior to the commencement of the hearing, including a list of the names and addresses of persons who may be called as witnesses at the hearing, a summary of the facts or opinions each witness will testify to, and all other documents and materials, including information maintained electronically, relevant to its own as well as the other party's case (the hearing officer may exclude witnesses and exhibits not identified and shared, except those offered in rebuttal for which the party could not reasonably have anticipated prior to the hearing); pre-hearing discovery and preparation, including provision for written interrogatories and requests for production of documents, provided that discovery depositions are prohibited; the conduct of the hearing; the right of each party to be represented by counsel, the offer of evidence and witnesses and the cross-examination of witnesses; the authority of the hearing officer to issue subpoenas and subpoenas duces tecum, provided that the hearing officer may limit the number of witnesses to be subpoenaed in behalf of each party to no more than 7; the length of post-hearing briefs; and the form, length, and content of hearing officers' reports and recommendations to the general superintendent.

The hearing officer shall commence the hearing within 75 calendar days and conclude the hearing within 120 calendar days after being selected by the parties as the hearing officer, provided that these timelines may be modified upon the showing of good cause or mutual agreement of the parties. Good cause for the purposes of this paragraph (5) shall mean the illness or otherwise unavoidable emergency of the teacher, district representative, their legal representatives, the hearing officer, or an essential witness as indicated in each party's pre-hearing submission. In a dismissal hearing in which a witness is a student or is under the age of 18, the hearing officer must make accommodations for the witness, as provided under paragraph (5.5) of this subsection. The hearing officer shall consider and give weight to all of the teacher's evaluations written pursuant to Article 24A that are relevant to the issues in the hearing. Except as otherwise provided under paragraph (5.5) of this subsection, the teacher or principal has the privilege of being present at the hearing with counsel and of cross-examining witnesses and may offer evidence and witnesses and present defenses to the charges. Each party shall have no more than 3 days to present its case, unless extended by the hearing officer to enable a party to present adequate evidence and testimony, including due to the other party's cross-examination of the party's witnesses, for good cause or by mutual agreement of the parties. The State Board of Education shall define in rules the meaning of "day" for such purposes. All testimony at the hearing shall be taken under oath administered by the hearing officer. The hearing officer shall cause a record of the proceedings to be kept and shall employ a competent reporter to take stenographic or stenotype notes of all the testimony. The costs of the reporter's attendance and services at the hearing shall be paid by the party or parties who are paying the fees and costs of the hearing officer. Either party desiring a transcript of the hearing shall pay for the cost thereof. At the close of the hearing, the hearing officer shall direct the parties to submit post-hearing briefs no later than 21 calendar days after receipt of the transcript. Either or both parties may waive submission of briefs.

(5.5) In the case of charges involving sexual abuse or severe physical abuse of a student or a person under the age of 18, the hearing officer shall make alternative hearing procedures to protect a witness who is a student or who is under the age of 18 from being intimidated or traumatized. Alternative hearing procedures may include, but are not limited to: (i) testimony made via a telecommunication device in a location other than the hearing room and outside the physical presence of the teacher or principal and other hearing participants, (ii) testimony outside the physical presence of the teacher or principal, or (iii) non-public testimony. During a testimony described under this subsection, each party must be permitted to ask a witness who is a student or who is under 18 years of age all relevant questions and follow-up questions. All questions must exclude evidence of the witness' sexual behavior or predisposition, unless the evidence is offered to prove that someone other than the teacher subject to the dismissal hearing engaged in the charge at issue.

(6) The hearing officer shall within 30 calendar days from the conclusion of the hearing report to the general superintendent findings of fact and a recommendation as to whether or not the teacher or principal shall be dismissed and shall give a copy of the report to both the teacher or principal and the general superintendent. The State Board of Education shall provide by rule the form of the hearing officer's report and recommendation.

(7) The board, within 45 days of receipt of the hearing officer's findings of fact and recommendation, shall make a decision as to whether the teacher or principal shall be dismissed from its employ. The failure of the board to strictly adhere to the timeliness contained herein shall not render it without jurisdiction to dismiss the teacher or principal. In the event that the board declines to dismiss the teacher or principal after review of a hearing officer's recommendation, the board shall set the amount of back pay and benefits to award the teacher or principal, which shall include offsets for interim earnings and failure to mitigate losses. The board shall establish procedures for the teacher's or principal's submission of evidence to it regarding lost earnings, lost benefits, mitigation, and offsets. The decision of the board is final unless reviewed in accordance with paragraph (8) of this subsection (a).

(8) The teacher may seek judicial review of the board's decision in accordance with the Administrative Review Law, which is specifically incorporated in this Section, except that the review must be initiated in the Illinois Appellate Court for the First District. In the event judicial review is instituted, any costs of preparing and filing the record of proceedings shall be paid by the party instituting the review. In the event the appellate court reverses a board decision to dismiss a teacher or principal and directs the board to pay the teacher or the principal back pay and benefits, the appellate court shall remand the matter to the board to issue an administrative decision as to the amount of back pay and benefits, which shall include a calculation of the lost earnings, lost benefits, mitigation, and offsets based on evidence submitted to the board in accordance with procedures established by the board.

(9) If the Governor has declared a disaster due to a public health emergency pursuant to Section 7 of the Illinois Emergency Management Act, except if the parties mutually agree otherwise and the agreement is in writing, the requirements of this Section pertaining to prehearings and hearings are paused and do not begin to toll until the proclamation declaring the disaster is no longer in effect. If mutually agreed to and reduced in writing, the parties may proceed with the prehearing and hearing requirements of this Section connected to the appointment and selection of a hearing officer and those connected to commencing and concluding a hearing. Any hearing convened during a public health emergency pursuant to Section 7 of the Illinois Emergency Management Agency Act may be convened remotely. Any hearing officer for a hearing convened during a public health emergency pursuant to Section 7 of the Illinois Emergency Management Agency Act may voluntarily withdraw from the hearing and another hearing officer shall be selected or appointed pursuant to this Section.

(b) Nothing in this Section affects the validity of removal for cause hearings commenced prior to June 13, 2011 (the effective date of Public Act 97-8).

The changes made by Public Act 97-8 shall apply to dismissals instituted on or after September 1, 2011 or the effective date of Public Act 97-8, whichever is later. Any dismissal instituted prior to the effective date of these changes must be carried out in accordance with the requirements of this Section prior to amendment by Public Act 97-8.

(Source: P.A. 101-531, eff. 8-23-19; 101-643, eff. 6-18-20.)